Farms and Land in Farms 2019 Summary, U.S.D.A. NATIONAL AGRICULTURAL STATISTICS

from UCLA Undergraduate Law Journal - Volume XX

MacDonald & Hoppe, supra note 10

STIMULATING ANTITRUST ENFORCEMENT TO EXPAND THE REGENERATIVE AGRICULTURE MOVEMENT

C. Cargill v. Monfort

Cargill v. Montfort served to dilute enforcement of the Clayton Act, creating monopsony power. In this case, the Supreme Court overruled the Circuit and District Courts and decided that the plaintiff, Montfort, did not establish sufficient antitrust injury under Section 16 of the Clayton Act by claiming a threat of loss of profits to sue Excel. Monfort, the fifth largest beef packing corporation in the United States, was contesting the merging of Excel and Spencer, the second and third largest beef packing corporations in the United States. Excel is a wholly owned subsidiary of Cargill, Inc., which owns more than 150 subsidiaries in over 35 countries.57 The merger would have still left Excel as the second largest packer, but its market share would almost equal the largest packer, IBP, Inc.58

The case was first brought to the Tenth Circuit Court, where they agreed that the plaintiff proved antitrust standing and was able to seek injunction under Section 16 of the Clayton Act, which allows for a party to sue for injunctive relief due to “threatened loss or damage by a violation of the antitrust laws.”59 This conclusion was reached because Montfort’s viability in the market would be injured by (1) a threat of loss of profits from the possibility that Excel would lower its prices to a level at or only slightly above its costs, and (2) a threat of being driven out of business by the possibility that Excel would lower its prices to a level below its costs, which would violate Section 7 of the Clayton Act.60 Section 7 intends to prohibit actions that substantially lessen competition or tend to create monopolies.61 These injuries would be met on the premise that Excel would injure Montfort by enacting a “price-cost squeeze.” A price-cost squeeze would involve Excel increasing the bidding price it would pay for cattle while lowering the price it sells the end product, boxed beef, to a level at or only

57 Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 107 (1986). 58 Id. 59 15 U.S.C. § 26. 60 Cargill, 479 U.S. at 115. 61 15 U.S.C. § 18.

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slightly above its production costs.62 In effect, this would require Montfort to also lower its prices in order to remain competitive, causing them to suffer profit losses.63 Excel’s large financial resources endowed by its owner, Cargill, would allow it to accept far lower profit margins than firms like Montfort, which would eliminate competitors in the short run and reduce competition in the long run.64 This would violate the Clayton Act by creating a “threatened loss or damage” via a price-cost squeeze, which would “substantially… lessen competition” and create a dynamic in which Excel controls market behavior.65

The District Court agreed that Montfort’s allegations and proof of anticompetitive effect were sufficient given that Excel, being the second largest producer, could create an acquisition that realistically threatens Montfort’s position as a strong competitor in the marketplace.66 The Court of Appeals also affirmed this ruling and held that the respondent’s allegation of a “price-cost squeeze” was not just harm from competition, but constituted a claim of injury as a form of predatory pricing because Excel would drive other companies out of the market.67

D. The Supreme Court’s Ruling on Cargill v. Monfort

Undermined the Clayton Act

In response to the District and Circuit Court rulings, the Supreme Court’s first argument was that the showing of loss or damage merely due to increased competition does not constitute antitrust injury to seek relief under Section 16.68 The Supreme Court looked back to its rulings on Brunswick Corp. V. Pueblo BowlO-Mat, Inc., where they held that “antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition,

62 Cargill, 479 U.S. at 115. 63 Id. at 122. 64 Monfort of Colorado, Inc. v. Cargill, Inc., 591 F. Supp. 683, 692 (D. Colo. 1983). 65 15 U.S.C. § 26; 15 U.S.C. § 18; Cargill, 479 U.S. at 122. 66 Monfort of Colorado, Inc., 591 F. Supp. 683 at 698. 67 Id. 68 Cargill, 479 U.S. at 106.

STIMULATING ANTITRUST ENFORCEMENT TO EXPAND THE REGENERATIVE AGRICULTURE MOVEMENT

but only against the loss of profits from practices forbidden by the antitrust laws.”69 Here, the Court found that the competition that Montfort delineated— competition for increased market share—was simply vigorous competition, and not actively forbidden by antitrust laws.70 The Court suggests that if antitrust laws protected competitors from the loss of profits due to this price competition, any decision by a firm to cut prices in order to increase market share would be rendered illegal.71

However, showing loss or damage due to increased competition does constitute antitrust injury. Antitrust injury results from predatory pricing, an anticompetitive practice forbidden by antitrust laws where a corporation intentionally lowers prices below normal competitive prices in order to monopolize part of the market.72 Montfort demonstrated that this injury is at play because they proved with high likelihood that Excel would engage in a price-cost squeeze. A price cost squeeze may be viewed as “simply vigorous competition” in the short run. However, if the practice continues, it will greatly reduce competition in the long run. Furthermore, antitrust laws focus on protecting competition in the long run rather than treating these matters as mere short term price wars. In this case, the Court focused on the postmerger conduct and opted to deny relief unless the plaintiff could prove a violation of the Sherman Act. Instead, the Court should focus its attention on the merger itself and grant relief if there is a significant probability that the merger will adversely affect competition in the market, focusing on the probable threat of harm rather than actual harm.73 This aligns with the purpose of Section 7 in the Clayton Act to prevent mergers that “may substantially lessen competition, or tend to create a monopoly” without requiring initial proof of ongoing, established harm to the plaintiff.74 Section 16 of the Clayton Act is not being properly enforced to protect

69 Id. at 117. 70 Id. 71 Id. 72 15 U.S.C. § 26. 73 Cargill, 479 U.S. at 126. 74 Id. at 111.

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competition if it does not grant plaintiffs antitrust injury on the basis that there is a threat of loss of profits due to possible post-merger price adjustments.

The Supreme Court’s second argument is that the respondent neither raised nor proved any claim of predatory pricing before the District Court. This is because Montfort did not allege that Excel’s engaging in a price-cost squeeze was included in predatory activities.75 Although Montfort may only have four passing references that claim that Excel would be able to and would probably engage in predatory pricing, it should not need to claim this, rather, the evidence of a price-cost squeeze likely occurring is enough to satisfy antitrust injury.

The Court's ruling on Cargill v. Montfort did not, however, set a per se rule, which would have unequivocally “denied competitors standing to challenge acquisitions on the basis of predatory pricing theories.”76 Therefore, competitors can still challenge acquisitions on the basis of predatory pricing. However, because the Court ruled that showing loss of damage merely due to increased competition, or the threat of loss of profits due to possible price competition following a merger does not constitute antitrust injury to give injunctive relief under Section 16,77 if following competitors try to bring up this reason for antitrust injury, they will most likely be denied standing as the Court will refer back to this case. This language has not been overturned or amended since, and the Court recently cited it in the definition of antitrust standing in Glen Holly Entm’t, Inc. v. Tektronix Inc (2003).78 The subsequent adverse impacts of consolidation on the market demonstrate that showing loss of damage due merely to increased competition, or the threat of loss of profits due to possible price competition following a merger does constitute antitrust injury and should be struck down.

75 Id. at 104. 76 Id. at 105. 77 15 U.S.C. § 26. 78 Glen Holly Entm’t, Inc. v. Tektronix Inc., 343 F.3d 1000, 1001 (9th Cir. 2003).

STIMULATING ANTITRUST ENFORCEMENT TO EXPAND THE REGENERATIVE AGRICULTURE MOVEMENT

III. Prong Two: The DOJ and FTC Have Significantly Decreased the Number of Agriculture and Meatpacking Merger Acquisitions that They Block

A. The DOJ’s Antitrust Division and the FTC Evaluate Mergers

Federal agencies also exert substantial influence over antitrust enforcement. The DOJ and FTC are the federal agencies that evaluate if corporate merges valued at more than $94 million can occur.79 Since the 1980s, regulation by the FTC and DOJ has significantly decreased. Every year the FTC and DOJ review over a thousand merger filings, and it was found that between 2000 and 2005, 95 percent of merger filings presented no competitive issues.80 For mergers that “may… substantially… lessen competition, or tend to create a monopoly,”81 the FTC conducts more in-depth investigations using their Merger Best Practices guidelines.82 Oftentimes, competitive issues with these mergers are solved by consent agreement with the parties. In the few cases where the agency and parties cannot agree on a way to fix the competitive problems, the agency may bring the merger to administrative trial in federal court.83

These agencies base their determination on whether a merger is likely to create or increase market power.84 Market power is the ability of a seller or a group of sellers to profitably maintain prices above competitive levels for a

79 Merger Review, FEDERAL TRADE COMMISSION, https://www.ftc.gov/enforcement/mergerreview, (last visited Feb. 10, 2021); Federal Register Vol. 85, No. 18, U.S. GOVERNMENT PUBLISHING OFFICE (Jan. 28, 2020), https://www.govinfo.gov/content/pkg/FR-2020-0128/pdf/2020-01423.pdf. 80 Deborah Platt Majoras, Reforms to the Merger Review Process, FEDERAL TRADE COMMISSION (Feb. 16, 2006), https://www.ftc.gov/sites/default/files/attachments/mergerreview/mergerreviewprocess.pdf. 81 Id. 82 Mergers, FEDERAL TRADE COMMISSION (Jun. 11, 2013), https://www.ftc.gov/tipsadvice/competition-guidance/guide-antitrust-laws/mergers. 83 Id. 84 Douglas Ross, Antitrust Enforcement and Agriculture, ANTITRUST DIVISION OF THE U.S. DEP’T OF JUSTICE (Aug. 20, 2002), https://www.justice.gov/atr/speech/antitrust-enforcement-andagriculture-2.

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significant period of time or the ability of a buyer or coordinating group of buyers to depress prices below competitive levels.85 When a merger is brought before them, such as the acquisition of Cargill by Continental, the Division conducts extensive research. In this case, they worked with over 20 attorneys, economists and paralegals who reviewed over 400 documents and consulted with officials from the USDA, FTC and state attorneys general offices. They interviewed over 100 farmers, farm organization officials, agricultural economists, grain company executives, and other individuals. In conducting their analysis, the Division determines the size and shape of the product and geographic markets, how recent buying and selling patterns would be affected by the merge, analyzes the size of the firms’ market shares, and looks at the pre- and post-merger levels of concentration in the market.8687 From this, the Division decides if the effect of the merger may substantially lessen competition in the relevant market, which determines whether or not to allow the merger to exist.88 In Philadelphia National Bank, the Supreme Court set forth an additional test that said if mergers control an undue percentage share of the relevant market and which results in a significant increase in the concentration of firms in the market inherently likely to lessen competition, then they violate Section 7 of the Clayton Act.89

After the Division follows these steps, they can prevent the merger from existing or allow the merger to proceed if they follow restructuring recommendations. In the case of Cargill, they concluded that the merger would prevent competition and options for farmers to sell their products to. Thus, the Division suggested multiple divestitures in Cargill and Continental facilities throughout the Midwest, West and Texas Gulf. The Division did this because they wanted to ensure that farmers in the affected markets would have alternative buyers to sell their grain and soybeans to.90 This case exemplifies that

85 Id. 86 Id. 87 THOMPSON, supra note 36. 88 Id. 89 Id. 90 Ross, supra note 84.

STIMULATING ANTITRUST ENFORCEMENT TO EXPAND THE REGENERATIVE AGRICULTURE MOVEMENT

the DOJ and FTC are empowered to determine how much evidence is needed to prove injury, what constitutes control of an “undue percentage share of the relevant market,” and what “a significant increase in the concentration of firms in the market” is.91 Although the investigation of Cargill and Continental resulted in antitrust enforcement measures, the majority of cases do not face comparable intervention.

B. Regulation by the DOJ has Significantly Decreased

Decreased regulation by the DOJ and FTC has eroded competition. From 2010 to 2019, despite a 79.16 percent increase in the number of pre-merger submissions to the DOJ and FTC, the percentage of mergers that these agencies conducted a second request for decreased by 0.5 percent and 0.3 percent respectively for the DOJ and FTC.92 Despite a clear increase in the number of merger requests, the DOJ and FTC have not proportionally increased the usage of their enforcement mechanisms.

The Cargill case epitomizes the Court’s lenient attitude specifically against enforcement of Section 7 of the Clayton Act where the federal agencies also need to increase enforcement to uphold the goals of the statute. Under Section 7 in the Clayton Act, the number of merger cases investigated by the DOJ have decreased in each decade following the Bork era: 125.3 merger cases per year in the pre-Bork era from 1970 to 1979,93 95.1 cases per year in the post-Bork era from 1980 to 1989,94 and most recently, only 69.8 cases per year from 2010 to

91 THOMPSON, supra note 36. 92 Joseph J. Simons & Makan Delrahim, Hart-Scott-Rodino Annual Report: Fiscal Year 2019,

FEDERAL TRADE COMMISSION AND DEPARTMENT OF JUSTICE ANTITRUST DIVISION, https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-bureaucompetition-department-justice-antitrust-division-hart-scottrodino/p110014hsrannualreportfy2019_0.pdf, (last visited Feb. 10, 2021). 93 Antitrust Division Workload Statistics FY 1970-1979, U.S. DEP’T OF JUSTICE https://www.justice.gov/atr/antitrust-division-workload-statistics-fy-1970-1979#N_1_, (last updated June 25, 2015). 94 Antitrust Division Workload Statistics FY 1980-1989, U.S. DEP’T OF JUSTICE https://www.justice.gov/atr/antitrust-division-workload-statistics-fy-1980-1989 (last updated June 25, 2015).

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2019.95 Since the 1970s, it has become dramatically less likely that a case evaluation results in DOJ conducting a second request, finding violation of antitrust laws, and barring a merger from proceeding. For agriculture enforcement specifically, since 1969, the DOJ has only filed 10 cases against company mergers for fluid milk manufacturing and dairy products, while meat packing firms have only faced 7 cases cumulatively.96 The DOJ’s decreasing regulation of mergers that substantially harms competition has caused the agriculture market to become more consolidated; therefore, it must reinvigorate its deference to its statutory duties to uphold the Clayton Act and strike down anticompetitive mergers.

From 2008 to 2011, the FTC challenged nearly all mergers that would result in three or fewer significant competitors, most that would result in four or fewer significant competitors, and none that would leave five or more competitors.97 This practice closely resembles Robert Bork’s philosophy arguing that mergers resulting in four or more competitors should be presumptively lawful.98 Although the FTC was diligent in challenging mergers that would result in three or fewer significant competitors, having five large competitors on the market still constitutes a substantially consolidated market, further decreasing competition and preventing smaller businesses from surviving and profiting.

IV. Recommendations

In order to uphold competition in the marketplace (and incentivize the transition to regenerative agriculture in the process), the courts and federal agencies must take deliberate action against mergers that will inevitably have profound effects on long-term competition. In order to address prong one, where the courts have not erred on the side of precaution and have not granted

95 Antitrust Division Workload Statistics FY 2010-2019, U.S. DEP’T OF JUSTICE, https://www.justice.gov/atr/file/788426/download (last visited Feb. 21, 2021). 96 Antitrust Case Filings, U.S. DEP’T OF JUSTICE, https://www.justice.gov/atr/antitrust-casefilings (last visited Feb. 21, 2021). 97 Antitrust Enforcement Data, supra note 39. 98 Id.

STIMULATING ANTITRUST ENFORCEMENT TO EXPAND THE REGENERATIVE AGRICULTURE MOVEMENT

antitrust injury to parties that claim “the threat of loss of profits due to possible price competition,” the courts should interpret American antitrust laws in line with Congress’s original intent to protect competition, rather than through the lens of consumer welfare, an ideological approach which does not empirically hold water.99 Specifically, they should interpret Section 16 of the Clayton Act to allow for antitrust injury to include the threat of loss of profits due to possible price competition following a merger. Not only will this rightfully decrease the barrier to bringing forth an antitrust injury, but it will bring precedent back into alignment with the purpose and intention of the Clayton Act and prevent further consolidation of agricultural firms.

In order to address prong two, where the DOJ and FTC have largely allowed consolidation in the marketplace to transpire with limited regulation, the DOJ and FTC must increase the number of agriculture and meatpacking merger acquisitions that they block by holistically analyzing the scope of the merger’s market power. Additionally, they must reinvestigate firms in the market that currently retain substantial market power, such as Tyson, and require divestiture. Tyson is sued on average 2.7 times every month, however, it still holds a substantially large percentage of the meat processing and packing industry.100 By implementing both of these recommendations, the federal government can truly fulfill their regulatory responsibilities and increase competition, simultaneously bringing the promises of regenerative agriculture within reach.

Conclusion

The growing consolidation of America’s agriculture industry is alarming and poses a continuous threat to the expansion and transition to regenerative farming practices. The DOJ, FTC and the Courts have embraced Robert Bork’s

99 KWOKA, supra note 38. 100 Analytics: How the Meat Industry Leads to Dozens of Antitrust Lawsuits, LAW STREET MEDIA (Nov. 9, 2020), https://lawstreetmedia.com/agriculture/analytics-how-the-meat-industryleads-to-dozens-of-antitrust-lawsuits/.

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“consumer welfare standard” philosophy and employ stricter standards to prove antitrust injury, allowing more consolidation to occur in the agriculture industry. These conglomerates have increased market prices,101 and in the long run, are implementing farming practices that are destroying the soil and eroding food security nationwide. There are more small and medium sized farms that implement regenerative practices such as applying manure and organic fertilizers. In order to expand the implementation of regenerative practices, large operations need to be broken down and further prevented from forming. Ultimately, allowing injurious mergers to occur and deregulating the market harm consumers, farmers, and the government.

In the agricultural market, the principles of fairness and equal opportunity in the United States economy are under threat. The government, consumers, and farmers rely on a handful of exorbitantly powerful firms as key suppliers and buyers; such dominance by a handful of corporations gives way to their disproportionate influence over the very same regulatory and political processes meant to hold them accountable. The DOJ, the FTC and the courts must embrace their statutory responsibilities to create and maintain a more competitive marketplace. This will allow more firms to implement regenerative practices and protect our food systems and environment for generations to come. A failure to act constitutes a dereliction of duty to the people, the planet, and the very purpose of antitrust laws.

101 Cattle: Marketing Year Average Prices Received, U.S.D.A. NATIONAL AGRICULTURAL

STATISTICS SERVICE, https://www.nass.usda.gov/Statistics_by_State/Washington/Publications/Historic_Data/live stock/cattlmya.pdf (last visited Feb. 14, 2021).

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Josh Mimura

Gaming or Gambling: Examining the Legality of Loot Boxes in America

ABSTRACT. Video game loot boxes lack a clear legal identity. No court has ruled on their legality and no legislature has passed any policy regulating these products. This article reduces the legal ambiguity surrounding loot boxes by situating them along a legal spectrum of gambling bound by two extremes. On one end of this spectrum lies trading cards, a product that remains legal and is very similar to loot boxes. On the other, lies illegal gambling products, which violate state gambling laws. This article positions loot boxes against both extremes. First, it explores whether the case law that affirms the legality of trading cards also protects loot boxes. It finds that, while both products share fundamental similarities, they also differ in ways that sever interpretations of their legal equivalence. As such, loot boxes are not legal per trading card case law. Second, this article examines whether loot boxes are implicated by current state gambling laws. It concludes that while loot boxes warrant more legal skepticism than do trading cards, they are not illegal under current law. Thus, loot boxes land somewhere between the two extremes on the legal spectrum of gambling. Finally, this article argues that state governments should heavily regulate or prohibit loot boxes due to their moral, behavioral, and financial harms. To achieve these ends, state governments must eliminate the legal ambiguity surrounding loot boxes by creating a specific, distinct, and relevant legal classification for such products called Digital Loot Rewards Systems.

Introduction

Innovations in digital technology and visual software have vastly improved the video game experience for consumers around the world. Accordingly, the

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video game community has grown drastically throughout the last decade.1 To capitalize on this growth, video game developers have integrated a new marketing mechanism into their products called the loot box. A loot box is a purchasable video game feature that rewards players with a random assortment of in-game items. Loot boxes offer gamers an entertaining way to win valuable items such as weapons, skins, and upgrades that can provide an advantage over other players. Some of the largest video game titles in the world—including Madden, FIFA, Overwatch, and Star Wars Battlefront 2—have increasingly utilized lucrative loot box mechanics in their products.2

In recent years, loot boxes have been the subject of major scrutiny. Lawmakers and activists allege that loot box mechanics are an illegal form of online gambling.3 They argue that young children purchase loot boxes in hopes of receiving a random prize in much the same way a slot machine player pays for a chance to win money at a casino. Furthermore, new research on the effects of loot boxes reveals that these chance-based rewards systems give rise to and exacerbate addictive gambling tendencies in young children and adults.4 As such, the push for loot box regulation has grown in the United States and around the world. While various countries have taken steps to eliminate all or certain types of predatory loot boxes, the United States has not taken any action to regulate them despite well-supported efforts to do so.5

However, industry stakeholders, video game developers, and publishers continue to defend loot box mechanics.6 They argue that loot boxes are not implicated by current gambling laws because their rewards do not have real-

1 Video Games, STATISTA, https://www.statista.com/outlook/203/100/videogames/worldwide#market-revenue (last visited Apr. 21, 2021). 2 Mattha Busby, Loot Boxes Increasingly Common Video Games Despite Addiction Concerns, THE GUARDIAN (Nov. 22, 2019), https://www.theguardian.com/games/2019/nov/22/loot-boxesincreasingly-common-in-video-games-despite-addiction-concerns. 3 Jason Schreier, U.S. Senator Says His Anti-Loot Box Bill has the Video Game Industry Worried, KOTAKU (May 21, 2019), https://kotaku.com/u-s-senator-says-his-anti-loot-box-bill-has-thevideo-1834905639. 4 David Zendel et al., Adolescents and Loot Boxes: Links with Problem Gambling and Motivations for Purchase, 6 R. Soc. Open Science 1, 17 (June 19, 2019) 5 Straub, Every Country with Laws Against Loot Boxes (& What the Rules Are), SCREEN RANT (Oct. 05, 2020), https://screenrant.com/lootbox-gambling-microtransactions-illegal-japan-chinabelgium-netherlands/. 6 EA games: Loot boxes aren’t gambling, they’re just like a Kinder Egg, BBC NEWS (June 20, 2019), https://www.bbc.com/news/newsbeat-48701962.

GAMING OR GAMBLING

world value and can often be obtained through organic in-game progress.7 Most commonly, proponents of loot boxes point to the striking similarity between loot boxes and trading card products, which have not been prohibited by the courts.8 They argue that there is essentially no difference between buying a virtual loot box and opening a pack of random baseball cards bought from the store. As such, game developers and companies continue to integrate loot boxes into their products, maintaining that these purchasable features are perfectly legal. Despite arguments from both sides, loot boxes lack a clearly defined place in the American legal system. No legislature has enacted any laws relating to loot box mechanics, and the courts have said nothing on the issue.9

Though the legality of loot boxes remains ambiguous, these products lie somewhere on a legal spectrum of gambling bound by two relevant extremes. On one end lie trading card products, which have survived several illegal gambling accusations in the courts and thus remain legal.10 On the opposite end of the spectrum lie illegal gambling products, such as underground poker rings and online blackjack rooms, which violate current state gambling laws. By examining loot boxes against each of these extremes, this article aims to situate loot boxes along the legal spectrum of gambling and reduce the legal ambiguity surrounding them.

7 Leon Xiao, Chase Cards in Booster Packs Constituted Illegal Gambling Under US Law: Implications of Schwartz v. Upper Deck Co for the Regulation of Loot Boxes, (Nov. 2018), https://www.researchgate.net/publication/335227791_Chase_Cards_in_Booster_Packs_Cons tituted_Illegal_Gambling_Under_US_Law_Implications_of_Schwartz_v_Upper_Deck_Co_ for_the_Regulation_of_Loot_Boxes?channel=doi&linkId=5d58f80392851cb74c74cfe6&showF ulltext=true; James Batchelor, Digital Minister Margot James defends loot boxes, Gamesindustry.biz (July 02, 2019), https://www.gamesindustry.biz/articles/2019-07-02-digital-minister-margot-james-defendsloot-boxes; Letter from Patricia Vance, President, Entertainment Software Rating Board, to Margaret Wood Hassan, Sen., (Feb. 27, 2018) https://www.scribd.com/document/372547777/ESRB-Response-to-SenatorHassanhttps://www.scribd.com/document/372547777/ESRB-Response-to-Senator-Hassan. 8 Maddie Level, Unboxing the Issue: The Future of Video Game Loot Boxes in the U.S., 68 U. KAN. L. REV., 201, 210 (2019). 9 David Kim & Aalok Sharma, What’s Loot Got to Do With It?, JD SUPRA (Nov. 10, 2020), https://www.jdsupra.com/legalnews/what-s-loot-got-to-do-with-it-57429/. 10 Kyle D. Craddock, The Cardstock Chase, Trading Cards: A Legal Lottery?, 8 GAMING L. REV., 310, 313 (2004).

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Part I of this article will examine whether case law affirming the legality of trading card products is applicable to loot boxes. This examination reveals that, while trading cards share some similarities with loot boxes, other significant differences between the two complicate and ultimately interrupt their legal equivalence. As such, case law that protects the legality of trading cards cannot do the same for loot boxes. Part II applies state gambling laws to loot boxes in order to determine whether they already constitute an illegal form of gambling without the need for further legislation or judicial insight. This analysis finds that loot boxes do not constitute illegal gambling under current law because they fail to definitively satisfy two of the three necessary criteria that characterize illegal gambling activities. As a result, this article determines that loot boxes exist between the polar ends of the legal spectrum of gambling. Part III cites the predatory nature, addictive effects, and financial harm associated with loot boxes. An evaluation of these negative impacts reveals that loot boxes ought to be heavily regulated or prohibited in the United States. The legal ambiguity surrounding loot boxes necessitates that states first carve out a new legal classification for these products, which is coined in this article as Digital Loot Rewards Systems (DLRSs). This article urges relevant jurisdictions to heavily regulate or ban the use of DLRSs in video games sold to children and identifies the benefits of creating a relevant, specific, and distinct legal classification for loot boxes in the digital era.

I. Trading Card Case Law

A. Three Necessary Components of Gambling

Understanding basic gambling law is necessary to examine the legality of loot boxes. While the federal government oversees certain areas of gambling under the Commerce Clause, the power to regulate gambling falls chiefly in the hands of the states. The definitions of gambling vary from state to state, but they all characterize an illegal gambling practice as one that has three necessary components: consideration, chance, and prize. If any one of these elements does not exist, then the activity or product in question does not constitute gambling.

GAMING OR GAMBLING

The courts have defined consideration as anything of value that an individual offers in exchange for a chance to win a prize.11 Within the definition of consideration are two sub-conditions—chance and necessary risk—that a product or activity in question must meet in order to satisfy the component as a whole.12 First, one must offer consideration in exchange for a chance. 13 That is, the benefit that the buyer receives in exchange for their consideration must be a variable entity, not something of guaranteed value.14 For instance, offering money to buy groceries at the store is not gambling because the benefits received for the consideration are guaranteed goods in return. On the other hand, an underground lottery in which players offer money for the mere chance to win a prize pot would more likely constitute illegal gambling because the consideration involved yields only a chance at return value. The second sub-condition of consideration is that of necessary risk. That is, a purchase itself must be necessary in order to obtain a chance to win a prize.15 If someone can obtain a particular prize without hazarding a payment (e.g., free giveaways), consideration most likely does not exist.16 Consideration and its two sub-conditions play a critical role in examining the legality of loot boxes.

Chance is the second required component of gambling. The chance criteria is satisfied when luck or randomness plays a role in the distribution of a prize.17 To determine whether an activity satisfies chance, different state courts employ one of three common tests: the predominant purpose test, the material element test, and the any chance test.18

11 Hotel Employees & Restaurant Employees Internat. Union v. Davis, 21 Cal. 4th 585 1, 10 (Cal. 1999); People v. Hecht, 119 Cal. App. Supp. 788 1, 9 (Cal. App. 1931); Level, supra note 8, at 213. 12 Level, supra note 8, at 213; Yellow-Stone Kit v. State, 88 Ala. 196 1, 1 (Ala. 1889); Miss Gaming Comm’n v. Treasured Arts, 699 So. 2d 1, 1 (Miss. 1997); Craddock, supra note 10, at 315. 13 Hotel Employees, 21 Cal. 4th 585 1, 10; Hecht, 199 Cal. App. Supp. 788 1, 9. 14 Hecht, 199 Cal. App. Supp. 788 1, 9. 15 David Castillo, Unpacking the Lootbox: How Gaming's Latest Monetization System Flirts with Traditional Gambling Methods, 59 SANTA CLARA L. REV., 164, 185 (2019); Craddock, supra note 10, at 315; Miss Gaming, 699 So. 2d 1, at 12. 16 Miss Gaming, 699 So. 2d 1, at 1. 17 People ex rel. Green v. Grewal, 61 Cal. 4th 544 1, 24 (Cal. 2015). 18 Lawrence G. Walters & Neil Braslow, Skill Gaming Legal Guide, WALTERS LAW GROUP (June 22, 2017), http://gamblinglawupdate.com/archives/2017/06/22/skill-gaming-legalguide/#:~:text=4.,role%20in%20determining%20the%20outcome.

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The third necessary element of gambling is a prize. For a product or activity to constitute gambling, there must be a prize distributed to the winner(s).19 What constitutes a prize is often vague and determined on a state-by-state basis.20 However, an Ohio circuit court utilized a generally functional definition for the term: a prize is an “item(s) of value.”21 Section IID discusses the extent to which digital rewards and virtual currency constitute “items of value.” Together, the three necessary components of gambling provide the subsequent analysis with the legal foundation necessary to situate loot boxes on the legal spectrum of gambling.

B. 1990s Trading Card Lawsuits

Trading cards and loot boxes are fundamentally similar products.22 Trading cards are most commonly sold in packs of 10-15 random paperboard cards, each with an image and description of a particular character, player, or other topical entity. Similarly, loot boxes feature a random assortment of digital items that provide aesthetic, functional, and some collectible value to the consumer. Just as trading card enthusiasts purchase card packs in hopes of receiving valuable rewards, so do gamers when purchasing a loot box. While the courts have yet to address the legality of digital loot boxes, they have spoken to the legality of trading cards.23 As such, examining trading card case law may help to reduce the legal ambiguity surrounding loot boxes.

By the early 1990s, trading card products had become an extremely popular pastime for millions of Americans.24 In order to increase their size and profits further, card companies integrated a new feature into their products referred to as “chase cards.”25 A chase card is a card with a limited number of prints, making them extremely valuable to collectors and resellers. Understanding the

19 Western Telcon, Inc. v. California State Lottery, 13th Cal. 4th 475 1, 7 (Cal. 1996). 20 Nev. Rev. Stat. Ann. § 463.01862 (LexisNexis 2020); Cal. Agric. Code § 319 (Deering 2021); Wash. Rev. Code Ann. § 9.46.0237.x (LexisNexis 2020); Castillo, supra note 15, at 189. 21 State v. Mills, 62 Ohio St. 3d 357 1, 6 (Ohio Ct. App 2012). 22 Level, supra note 8, at 213. 23 Chaset v. Fleer/Skybox Int’t, 300 F. 3d 1083 1, 8 (9th Cir. 2002). 24 Ryan Cracknell, Why Your Sports Cards from the Early 90s Are Worthless, THE CARDBOARD CONNECTION, https://www.cardboardconnection.com/why-sports-cards-early-90s-worthless. 25 Craddock, supra note 10, at 310.

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lucrative potential of these products, Upper Deck, a large sports card company, introduced the first chase cards in 1990.26 Expectedly, collectors and enthusiasts began engaging in the “chase” for such cards in order to show them off in their collections or resell them later for a much higher price. This “chase effect” drove up profits and encouraged other card companies to integrate chase cards into their own products.27

However, the advent of the chase card also shifted the public’s perception of the trading card industry.28 People began to understand the trading card experience to be a blind, expensive hunt for valuable cards rather than a relaxed weekend hobby.29 More importantly, the public started noticing the similarities between purchasing card packs in hopes of drawing a high-value chaser and other forms of illegal gambling.30

This growing likeness resulted in several lawsuits beginning in the early 1990s. In Price v. Pinnacle Brands, the first of these cases, a group of trading card purchasers brought suit against Pinnacle Brands, a card manufacturer.31 The plaintiffs alleged that Pinnacle was engaging in illegal gambling activity by producing randomized card packs which may or may not contain a chase card. They argued that the payment of real-world money for a chance to receive a card of value constituted illegal gambling and that the harms suffered during this process were recoverable under the Racketeer Influenced and Corrupt Organizations Act (RICO). At least 15 similar cases soon followed, each involving a charge of illegal gambling under RICO against a different card manufacturer.32

In all such cases, however, the courts found that the plaintiffs lacked standing under RICO.33 According to Section 1964(c), plaintiffs must show that the unlawful acts of the defendant have injured their business or property.34

26 Id. 27 Id. 28 Stephan Fatsis, Sports Trading Cards: Wholesome Fun or Gambling?, THE WALL STREET JOURNAL (Oct. 25, 1996), https://www.wsj.com/articles/SB846202501868224000. 29 Id. 30 Xiao, supra note 7, at 5. 31 Price v. Pinnacle Brands, 138 F.3d 602, 1 (N.D. Tex 1997). 32 Schwartz v. Upper Deck Co., 104 F. Supp. 2d 1228 1, 1 (S.D. Cal. Civ. R. 1.1(a) 2000); Chaset, 300 F. 3d 1083 1, at 7. 33 Xiao, supra note 7, at 6. 34 18 U.S.C. §1964, (1995), https://www.law.cornell.edu/uscode/text/18/1964.

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Echoing the courts’ rulings in all similar cases, the Ninth Appeals Court in Chaset v. Fleer/Skybox International found that the plaintiff’s “disappointment upon not finding an insert card in the package is not an injury to property.”35 As such, the courts dismissed Chaset v. Fleer/Skybox International, Price v. Pinnacle Brands, and all other lawsuits brought against trading card companies due to lack of standing.36

It is important to consider that had the plaintiffs in these cases successfully shown standing, the courts would have then more closely considered whether or not trading cards constituted illegal gambling products under respective state law. Specifically, the courts would have examined the extent to which trading card products fulfill each of the three components of gambling described in section IA. In actuality, the courts never reached this point of legal analysis and dismissed the cases without handing down a clear and definitive ruling on the legal status of trading cards. Nevertheless, the courts still discussed the legality of trading card products throughout the course of these cases. These nugatory sentiments offer valuable insight into the general judicial attitude towards trading cards.

The dominant interpretation adopted throughout the 1990s cases was that trading cards did not constitute illegal gambling.37 The reasoning behind this attitude was that trading card products contained value regardless of whether or not chasers were included; the buyer simply paid a set amount of money for a pack of cards to add to his or her collection.38 Echoing this sentiment, the New York Eastern District Court in Major League Baseball Props., Inc. v. Price found that a trading card transaction “delivers actual value to each party...regardless of whether or not the card purchaser suffers a ‘loss.’”39 Furthermore, the Southern District Court of California in Schwartz v. Upper Deck Co. stated that “plaintiffs knew when they made their purchase that they might not draw a chase card and that the most they might receive would be a pack of non-chase trading cards.”40 Similarly, the defendant in Price v. Pinnacle Brands stated that

35 Chaset, 300 F. 3d 1083 1, at 7. 36 Price, 138 F.3d 602, at 1. 37 Craddock, supra note 10, at 313. 38 Id. 39 Major League Baseball Props., Inc. v. Price, 105 F. Supp. 2d 46 1, 12 (E.D.N.Y. 2000). 40 Schwartz v. Upper Deck Co., 104 F. Supp. 2d 1228 1, 1 (S.D. Cal. Civ. R. 1.1(a) 2000).

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the “plaintiffs received a pack of trading cards for their money; they got exactly what they paid for.”41 The courts acknowledged the guaranteed value of trading card products as a whole and did not label them as illegal forms of gambling.42 Thus, the unofficial attitude of the courts favored the continued legality of trading cards.

The particular judicial concept that preserved the legality of trading cards throughout these cases was the distinction made between the static value and variable value of trading card products.43 The Southern California District Court in Schwartz v. Upper Deck Co. identified two distinct components of the price of a pack of cards: the money paid for the guaranteed “regular cards” (static value) and the money paid for the chance to receive a chaser card (variable value).44 This distinction implies that trading cards are not fully products of chance. That is, while the existence of a chaser card relies on chance, the existence of nonchaser cards is guaranteed. Thus, when purchasing a trading card pack, the buyer receives static value in the form of guaranteed non-chaser cards whether or not a chaser card appears. Moreover, due to the collectability and functionality of non-chaser cards, the static value of trading card packs is substantive. For example, a collector who opens a pack of Yugioh cards and fails to draw a chaser card can still add the non-chaser cards to his or her collection or use them in an upcoming weekend tournament.

Because trading card products provide substantive static value regardless of the presence of a chaser card, it is difficult to argue that consumers are risking consideration for a chance to win a prize. Chance may be a part of the product, but it is hardly the entirety of the product being purchased. A conceptually relevant case from Mississippi illuminates the significance of this subtle distinction. In Mississippi Gaming Commission v. Treasured Arts, Inc., the Mississippi Supreme Court considered whether phone cards with scratch-andwin games attached to them violated the state’s gambling laws.45 The phone card manufacturer argued that those who purchased the cards were not paying

41 Price, 138 F.3d 602, at 1. 42 Craddock, supra note 10, at 313. 43 Major League, 105 F. Supp. 2d 46 1, at 8. 44 Major League, 105 F. Supp. 2d 46 1, at 8; Schwartz, 104 F. Supp. 2d 1228 1, at 7. 45 Miss Gaming Comm’n v. Treasured Arts, 699 So. 2d 1, 1 (Miss. 1997); Scratch Ticket, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/scratch%20ticket (last visited Apr. 25, 2021).

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for the scratch-and-win attachment. Instead, they were paying for the minutes on the phone cards themselves; the lottery was an aspect of the product, but not one paid for.46 The court agreed and found that the phone cards did not satisfy the consideration criterion, ultimately deeming them legal. The reason being that when a product, such as the phone cards, consists of a static value (minutes) and a variable value (scratch-and-win), and the value of the former is substantive, then the purchaser is not really offering consideration for a chance to win a prize.47 The same reasoning can apply in the context of trading cards. The static value of guaranteed non-chaser cards derived from their collectability and usability is material enough to account for the price of a card pack regardless of the realization of the variable value involved (i.e., chaser card).48 Thus, had the courts definitively addressed the legality of trading cards, they would have held that such products fail to fulfill the element of consideration.

The judicial insights addressing the legality of trading cards are limited but clear. Though these products contain an element of chance, the chance itself is not purchased. Rather, the value of the non-chaser items found in every card pack accounts for the cost of the product as a whole. Lacking the element of consideration combined with the fact that the purchase of such products are fair transactions in which consumers get what they knowingly paid for, trading cards are and will remain legal in the eyes of the judiciary.49 Therefore, the critical question is whether or not the similarities between trading cards and loot boxes allow the case law on the former to affirm the legality of the latter.

C. Applicability to Loot Boxes

Trading cards and loot boxes differ in ways that complicate the applicability of the case law between the two. These differences are so significant that the applicability of trading card case law to the question of loot box legality is actually very weak. Thus, one cannot argue that loot boxes are legal simply because they fall under the same judicial favorability extended to trading card

46 Miss Gaming, 699 So. 2d 1, at 1. 47 Craddock, supra note 10, at 313. 48 Price v. Pinnacle Brands, 138 F. 3d 602 1, 9 (5th Cir. 1998). 49 Id.

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products. Rather, digital loot boxes demand much more legal skepticism than do trading cards.

The most critical difference between trading card products and loot boxes that interrupts their legal equivalence is that loot boxes are much more likely to satisfy the element of consideration than are trading cards. There are three broad characteristics of digital loot boxes that account for this difference. 1. Low Value of Non-Chaser Items

First, the non-chaser rewards of loot boxes have much less collectible and functional value than those of trading card products. Three features specific to loot boxes account for this disparity. First, many digital loot boxes offer rewards that lose substantial relevance and value within a year because a newer version of a given game enters the market. Infamously, games such as Madden, FIFA, and 2K allow gamers to create an “Ultimate Team” by compiling sports players pulled from purchasable loot boxes.50 However, because these franchises release a new game every year, the value of these items drastically diminishes when the next game enters the market. Gamers who spend $100 on Ultimate Team players in FIFA 19 will have to start from scratch in FIFA 20 because their rewards are non-transferable.51 The temporary value of loot box rewards eliminates their collectible appeal, making non-chaser items essentially worthless. As such, non-chaser loot box rewards are unlike those of trading card packs.

Another distinguishing characteristic of loot boxes is that even their nonchaser rewards are not always guaranteed due to a process which forces buyers to select only a subset of prizes from a particular loot box. In Madden games, for instance, players can purchase certain loot boxes that reveal several possible rewards. However, players can only choose to receive a few of these loot box items for their collection.52 At most, therefore, players will walk away from loot

50 Madden NFL 21 Ultimate Team, EA, https://www.ea.com/games/madden-nfl/madden-nfl21/ultimate-team; EA Sports FIFA 21, PLAYSTATION, https://www.playstation.com/enus/games/ea-sports-fifa-21/fifa-ultimate-team/; NBA 2K MyTEAM, NBA 2K, https://nba.2k.com/my-team/. 51 FIFA 20 Carryover and Item Transfer Guide, FIFAPLAY, https://www.fifplay.com/fifa-20carryover-guide/. 52 Zirksee, I Can’t Believe this! Series 3 Legend Fantasy Bundle | Madden 21 Ultimate Team, YOUTUBE (Nov. 8, 2020), https://www.youtube.com/watch?v=KTxWlV7KHi0&ab_channel=Zirksee.

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boxes only with the most valuable items they have chosen from that particular box. This process drastically devalues non-chaser cards and more importantly, further reduces loot boxes to a product of chance. That is, buyers who only receive a selected subset of a loot box’s rewards are not guaranteed any substantive value; instead, they are paying for a chance to choose a chaser reward—should it appear. Thus, the reward selection process built into many digital loot boxes devalues their non-chaser contents.

The third distinguishing characteristic of loot boxes is the high degree of homogeneity of their non-chaser rewards. On the one hand, low-value trading cards are all aesthetically and functionally distinct. For instance, the Pokemon Trading Card Game features no two identical cards (excluding copies).53 Even if the “attack power” of two different Pokemon cards are the same, one will have a unique functional ability that the other does not.54 On the other hand, digital loot boxes are full of functionally identical items.55 For instance, players who purchase loot boxes in Star Wars Battlefront 2 have the chance to receive Han Solo's Hoth outfit,56 Smuggler outfit,57 or Endor outfit. 58 None of these items offer any unique advantage and the cosmetic differences between them are barely noticeable in-game. Loot boxes in many other games similarly offer meaningless variations of the same low-value reward. Because the non-chaser rewards of loot boxes are more homogenous than those of trading card packs, the value disparity between chaser and non-chaser rewards in loot boxes is larger and more defined. Consequently, the non-chaser rewards of loot boxes make up a lesser value of the overall product than those of trading cards. In sum, the

53 Pokémon TCG Card Database, POKÉMON, https://www.pokemon.com/us/pokemontcg/pokemon-cards/. 54 Id. 55 Andrew E. Freedman, What Are Loot Boxes? Gaming’s Big Controversy Explained, TOM’S GUIDE (Aug. 09, 2019), https://www.tomsguide.com/us/what-are-loot-boxesmicrotransactions,news-26161.html. 56 Hoth (Han Solo Appearance), FANDOM, https://battlefront.fandom.com/wiki/Hoth_(Han_Solo_Appearance) (last visited Apr. 22, 2021). 57 Smuggler, FANDOM, https://battlefront.fandom.com/wiki/Smuggler (last visited Apr. 22, 2021). 58 Endor (Han Solo Appearance), FANDOM, https://battlefront.fandom.com/wiki/Endor_(Han_Solo_Appearance) (last visited Apr. 22, 2021).

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temporary, non-guaranteed, and homogenous nature of non-chaser loot box rewards reduces the static value of loot boxes relative to that of trading cards. This disparity severs the legal equivalence between trading cards and loot boxes on the issue of consideration.

As aforementioned, the sustained legality of trading card products hinges on the lack of consideration involved in their purchase.59 The integrity of this argument relies on the static value of the non-chaser cards that buyers are guaranteed to receive. However, because the non-chaser rewards of loot boxes have much less value relative to that of the chaser items, the static value of a loot box is hardly comparable to that of a trading card pack. The courts could thus interpret loot boxes as a product of chance with very little static value rather than as a product of static value with an attachment of chance. In fact, the Southern California District Court in Schwartz v. Upper Deck Co. acknowledged this possibility with regards to trading cards.60 It stated that “as long as plaintiffs allege that they purchased packages of Upper Deck trading cards at least partially for the chance of winning a valuable chase card, then they have sufficiently alleged ‘racketeering activity' for purposes of RICO.”61 While the court's assertion did not guarantee that they would deem trading cards as illegal gambling products if the expressed conditions were met, such a statement lends support to the idea that the legality of a similar product may depend on the extent to which that product is mainly a product of chance or one of static value. In sum, the court's position was that “a plaintiff would have to show that they purchased the packs of cards for the purpose of buying a chance to obtain a chase card, rather than for the purpose of buying the cards for their collection or for playing a game with.”62 Given the extremely low static value of non-chaser rewards in loot boxes and the resulting inflated value of variable chaser items, plaintiffs could more easily allege that the money paid for loot boxes constitutes consideration put forth for a product of chance, rather than for a product of substantive static value. In this way, the loot boxes are legally distinct from trading card products. Therefore, trading card case law cannot affirm the legality of loot boxes.

59 Craddock, supra note 10, at 313. 60 Schwartz v. Upper Deck Co., 104 F. Supp. 2d 1228 1, 7 (S.D. Cal. Civ. R. 1.1(a) 2000). 61 Id. 62 Craddock, supra note 10, at 315.

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2. Supplements to an Experience

The second critical difference between loot boxes and trading card products that interrupts their legal equivalence is that the purchasers of loot boxes are buying attachments to an experience whereas purchasers of trading cards are buying an experience itself. For instance, it is impossible to play in a Pokémon tournament without a set of Pokémon cards. Thus, when someone purchases a pack of Pokémon cards, he or she is paying not only for the cards but also for access to the game experience itself. This access contributes to the static value of the pack and strengthens the argument that trading cards are not chancebased products. In fact, when buyers brought suit against the manufacturer of Pokémon cards for illegal gambling activity in 2001, the defendant asserted that because “purchasers of Pokémon cards buy them both for the chance to obtain the more valuable cards and to play the game,” the money paid for their products was not risked entirely on a “chance.”63 Much of the payment, they argued, was simply for the static value of the Pokémon cards including the access they provide to a new gaming experience.

In contrast, purchasing a loot box does not provide access to a larger gaming community and therefore the static value is diminished. Rather, many loot box rewards only add additional features or items to a game that buyers already have access to. For example, an Overwatch player can buy a loot box to obtain new outfits and emotes, but the value of that purchase does not extend beyond the minute cosmetic satisfaction of the loot box’s rewards because that player has already bought the game itself.64 Legally, this lack of static value is significant because one could not claim digital loot boxes provide access to an entire gaming experience in the same way that the manufacturer of Pokémon cards successfully did in 2001.65 Thus, it is difficult to argue that loot box buyers are offering consideration for static value rather than for a chance—especially when the static value of a loot box makes up such a small proportion of the product’s overall value. Once again, loot boxes come much closer to satisfying the criterion of consideration than do trading cards.

63 Chaset, 300 F. 3d 1083 1, at 8. 64 Freedman, supra note 55. 65 Chaset, 300 F. 3d 1083 1, at 8.

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One may argue that purchasing loot boxes in certain games does in fact grant buyers access to a “new” gaming experience. This argument rests on the assumption that in pay-to-win games, buying loot boxes is necessary to actually enjoy the game itself.66 In pay-to-win games, organically progressing through the game and “leveling-up” is extremely slow and cumbersome—so much so that players must pay for extra content and advantages to have an enjoyable gaming experience.67 In this sense, purchasing loot boxes in pay-to-win games may provide players with access to the more functional version of the game.

However, even when framing the purchase of loot boxes in pay-to-win games as granting access to an enhanced gaming experience, such access is subject to the same conditions that devalue loot box rewards. Just as loot box rewards are temporary, non-guaranteed, and homogenous, so are their gameimproving effects.68 For instance, while a gamer may receive a powerful item from a loot box, the game-improving effects of that item become irrelevant when a newer title of the game is released. In contrast, the purchase of trading cards guarantees permanent access to an entirely new gaming experience, amounting to much more static value than does the enhanced gaming experience provided by loot boxes. Thus, the conclusion that loot box products are far more chancebased than their physical counterparts is unavoidable. Ultimately then, loot boxes are much more likely than are trading cards to satisfy the consideration component of gambling. 3. Digital Nature of the Loot Box

The third and final difference that complicates the legal equivalence between loot boxes and trading cards is the digital nature of loot boxes. The capacities of the digital platform on which loot boxes exist expedite and desensitize the purchasing experience in three ways. First, the delivery of digital loot boxes is instantaneous. With a payment source remotely linked to their accounts, gamers can buy in-game loot with a click of a button. Second, rewards

66 Kourosh Azin, How Pay-to-Win Makes Us Lose: Introducing Minors to Gambling through Loot Boxes, 61 B.C. L. REV. 1577, 1582 (2020). 67 Id. 68 Daniel Friedman, Are Overwatch’s Loot Boxes Worth Your Money?, POLYGON (May 26, 2016), https://www.polygon.com/2016/5/26/11785084/overwatch-loot-system-guide; Patricia E. Vance, What Parents Need to Know About Loot Boxes (and Other In-Game Purchases), ENTERTAINMENT SOFTWARE RATING BOARD (July 24, 2019), https://www.esrb.org/blog/whatparents-need-to-know-about-loot-boxes-and-other-in-game-purchases/.

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of loot boxes are automatically discarded into a virtual storage void. That is, after gamers open a loot box, close out of the interface, and return to their game, the rewards of the loot box they have just opened no longer exist—even on screen. Instead of being kept in physical boxes or in organized collections, these rewards are stored digitally in code. Third, the instantaneous delivery of loot boxes and the ability of gamers to quickly discard their rewards into digital storage increases the ease and likelihood of consecutive loot box purchases.69 If a gamer misses out on a chaser item in one loot box, it is faster and more enjoyable to simply buy another loot box than to accept the loss and move on.70

In combination, these three capacities expedite and desensitize the loot bot purchasing experience, which complicates the legal equivalence of loot boxes and trading cards in two ways.71 First, the speed and effortlessness with which gamers can purchase several loot boxes in a short amount of time transforms the loot box experience into a “wild hunt” for chaser items. This often occurs because gamers simply keep buying loot boxes until they receive the chaser reward they want.72 Given the homogeneity and low value of the non-chaser loot box rewards, the purchase of a loot box essentially functions as one of many attempts to obtain a wanted reward. In this context, purchasing a loot box can be interpreted more as an iterative attempt to hit a jackpot rather than as an independent transaction for static return value. As such, the payment for a loot box fulfills the first sub-condition of consideration (exchange for a chance) to a greater extent than does the payment for trading cards.

Second, the digital nature of loot boxes decreases the static value provided by the loot box consumption experience. The total value of a loot box or a pack of trading cards does not lie only in their rewards but also in the experience of

69 Gabe Duverge, Insert More Coins: The Psychology Behind Microtransactions, TOURO (Feb. 25, 2016), https://www.tuw.edu/psychology/psychology-behind-microtransactions/. 70 Id. 71 Wanda Thibodeaux, People Still Value Physical Goods More than Digital Ones, Research Shows, INC. (Dec. 18, 2017), https://www.inc.com/wanda-thibodeaux/people-still-value-physicalgoods-more-than-digital-ones-research-shows.html. 72 Luke Winkie, Here’s How Loot Boxes & Microtransaction Addictions Destroy Lives, IGN (July 13, 2020), https://www.ign.com/articles/heres-how-loot-box-addiction-destroys-lives; Over 1 in 10 Gamers Get into Debt by Buying Loot Boxes, ROYAL SOCIETY FOR PUBLIC HEALTH (Dec. 23, 2020), https://www.rsph.org.uk/about-us/news/over-1-in-10-young-gamers-get-into-debt-because-ofloot-boxes.html.

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purchasing and consuming them.73 In the case of trading cards, their physical nature forces consumers to purchase them at a local card shop or order them to be delivered. When opening a pack, the slow reveal of the crisp cards provides a hands-on satisfaction that contributes to the product’s static value.74 On the other hand, the delivery of a loot box is instantaneous and virtual. There is no exciting, hands-on reveal of its rewards nor is there a sense of physical ownership over these virtual items.75 Unlike trading card products, therefore, loot boxes offer very little static value in the process of their purchase and consumption. This disparity strengthens the claim that loot boxes are more chance-based than are trading cards and that the payment for a loot box is more likely to constitute consideration under state law. Therefore, the digital capacities endowed to the loot box distinguish it from a physical pack of trading cards in ways that further interrupt their legal equivalence.

In sum, the legal defense of trading cards hinges on their consistent static value and resulting inability to satisfy the condition of consideration.76 However, the low value of non-chaser loot box rewards, the lack of access to a new gaming experience, and the digital nature of the loot box all reduce the static value of loot boxes in general. When the static value decreases, the variable value increases as a proportion of the product’s total value. As a result, loot boxes are far more likely to satisfy the element of consideration than are trading cards. Trading card case law cannot definitively affirm the legality of loot boxes.

II. Application to Current Gambling Law

Loot boxes cannot derive legal protection from past case law on trading cards. However, this does not automatically designate loot boxes as illegal forms of gambling. To determine whether loot boxes are truly illegal, this analysis turns

73 How Throne of Eldraine Revolutionizes Booster Packs, WIZARDS PLAY NETWORK (Aug, 21, 2019), https://wpn.wizards.com/en/article/how-throne-eldraine-revolutionizes-booster-packs; Charlie Etheridge-Nunn, The Joy of Opening a Booster Pack, WHO DARES ROLL (Aug. 29, 2018), http://www.whodaresrolls.com/the-joy-of-opening-a-booster-pack/; Alex Wiltshire, Behind the Addictive Psychology and Seductive Art of Loot Boxes, PC GAMER (Sept. 28, 2017), https://www.pcgamer.com/behind-the-addictive-psychology-and-seductive-art-of-loot-boxes/. 74 Thibodeaux, supra note 71; Etheridge-Nunn, supra note 73. 75 Id. 76 Craddock, supra note 10, at 315.

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to the other end of the gambling spectrum and applies current state gambling laws to these products. This application reveals that loot boxes are not illegal under current gambling law. As a result, the legal identity of loot boxes falls somewhere between the two extremes on the legal spectrum of gambling.

A. Components of Gambling

The power to regulate gambling generally falls in the hands of the states.77 Each state defines illegal gambling differently, but all such definitions require the presence of three components: consideration, chance, and prize.78 David J. Castillo, a deputy district attorney for Santa Clara County, coins a simple working definition of gambling: “any activity in which consideration is given in a game of chance in return for a prize.”79

The most relevant of the three components in this analysis is consideration, or something of value risked for a chance to win a prize.80 There is less contest as to whether something of value is present in the loot box transaction. Real money or in-game currency bought with real money is valuable.81 However, the discussion becomes more complex when debating whether consideration is risked for a chance to win a prize through the purchase of a loot box. While the courts have acknowledged that the large static value of trading cards weakens the idea that the payment for these products constitutes consideration, loot boxes offer much less static value and are products of chance to a much greater extent.82 As such, the legal argument that consideration is being risked for a chance and not static value is much stronger in the context of loot boxes. The question, therefore, is whether loot boxes do in fact satisfy consideration as well as the other two elements of gambling. Should they, one could define loot boxes as illegal without any further legislation or court rulings on the matter.

77 Gambling, LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/wex/gambling (last visited Apr. 22, 2021). 78 Craddock, supra note 10; Castillo, supra note 15, at 184. 79 Id. 80 Level, supra note 8, at 213. 81 Id. 82 Craddock, supra note 10, at 313.

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B. Failing Consideration

Loot boxes come very close to satisfying the element of consideration. However, one cannot definitively interpret the money paid for such products as being risked for a mere chance to win a prize. Just as there are certain characteristics that decrease the static value of loot boxes, so are there elements that increase and maintain the static value of these products. Specifically, the published odds and inclusion of guaranteed winnings as well as the liquidatability of loot box rewards minimize loot box variability and ensure their consistent value, respectively. 1. Transparent Odds and Guaranteed Winnings

First, many of the major game publishers release the detailed odds and information about the guaranteed winnings of their loot boxes.83 For instance, Overwatch publicizes the percentage odds of receiving any item from a loot box, from Rare Victory Poses (23%) to Legendary Items (7.5%). In Madden and FIFA, EA notifies potential buyers of the guaranteed winnings in each loot box available for purchase.84 In the Madden Superstars Pack, for example, buyers are guaranteed to receive “a 77+ Gold or better Superstar player, an additional 66+ Silver or better player, and three additional 62+ Silver or better players.”85 While EA does not detail the exact cards that buyers will receive, they make explicit the rarity and general value of the items within their loot boxes. When a loot box guarantees a particular chase card, such as a Gold player in Madden, the chance involved is no longer about whether or not a chase item exists. Rather, the chance involved only lies in which particular chase item it will be. As such, the knowledge beforehand of when and if a valuable prize will exist weakens the claim that buyers are offering consideration for a chance at a prize. In examining the legality of trading cards, the Pinnacle court implied that if plaintiffs could

83 Kyle Orland, Sony, Microsoft, Nintendo team up to force loot box odds disclosures, ARS TECHNICA (Aug. 7, 2019), https://arstechnica.com/gaming/2019/08/console-makers-will-requiredisclosure-of-loot-box-odds/. 84 Nicole Carpenter, Overwatch drop rates confirmed across all regions, DOT ESPORTS (July 17, 2017), https://dotesports.com/overwatch/news/overwatch-loot-box-drop-rates-blizzard15955; Loot Box, Fandom, https://overwatch.fandom.com/wiki/Loot_Box (last visited Apr. 22, 2021); Madden Ultimate Team Pack Probability, EA, https://www.ea.com/games/maddennfl/madden-nfl-21/news/madden-ultimate-team-21-pack-probability (last visited Apr. 25, 2021). 85 Hirun Cryer, Madden 20 MUT Pack Odds and Prices, USGAMER (Feb. 4, 2019), https://www.usgamer.net/articles/25-07-2019-madden-20-ultimate-team-packs.

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show that they paid money for a chance to win a chaser, their accusation of gambling would be much stronger.86 However, because many loot boxes contain guaranteed chaser rewards, the previous line of reasoning is no longer available to potential plaintiffs. The more developers define and limit the variability associated with loot boxes, the more loot boxes conform to the 1990s attitudes towards trading cards–that consumers know exactly what they are buying and receive exactly what they pay for.87 2. Virtual Liquidatability

The second characteristic of loot boxes that prevents them from fulfilling the element of consideration is the ability to repackage and liquidate their rewards for in-game currency. In many games, players are allowed to “Quick Sell” or auction off items from the loot boxes they open.88 For instance, in FIFA 21, buyers who receive one chaser item and nine non-chaser items in a loot box can trade, sell, and auction off the nine non-chaser items in exchange for in-game currency.89 This capability complicates the question of consideration because even if players do not receive what they wished for in a loot box, they can easily liquidate the unwanted items and use that value to purchase items that they do want. As a result, loot boxes provide consumers with a consistent level of minimum value across every purchase. The only chance involved in these transactions is the chance to receive an even higher return on investment. Given the consistent minimum value of liquidatable loot boxes, buyers do not stand a risk of loss.90 Instead, consumers simply are purchasing a product of guaranteed value with an attached chance of receiving a chaser. In such a context, the Mississippi Supreme Court ruled that the payment for products with both variable and substantive static value does not constitute consideration.91

86 Price v. Pinnacle Brands, 138 F. 3d 602 1, 9 (5th Cir. 1998); Craddock, supra note 10, at 313. 87 Price, 138 F.3d 602, at 9. 88 Sky Flores, NBA 2K21: How to Unlock the Auction House, SCREEN RANT (Sept. 10, 2020), https://screenrant.com/nba-2k21-unlock-auction-house/; Madden NFL 21 Mobile Auction House, EA, https://www.ea.com/games/madden-nfl/madden-nfl-21-mobile/tips-and-tricks/maddenmobile-21-auction-house. 89 FIFA 21 Transfer Market, FIFAPLAY, https://www.fifplay.com/fifa-21-transfer-market/. 90 Castillo, supra note 15, at 185. 91 Miss Gaming Comm’n v. Treasured Arts, 699 So. 2d 1, 1 (Miss. 1997).

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The ability to liquidate loot box rewards eliminates a key potential argument against the legality of loot boxes. In Price v. Pinnacle Brands, the Fifth Appeals Court suggested that a viable argument against trading cards would have been to allege that the “value of the cards [received is] less than the consideration paid,” implying that the remaining part of the price could constitute the consideration paid for a chance to “win” an insert card.92 Perhaps one could argue the same for loot boxes; the value of the loot box rewards received is less than the price paid and the remaining difference constitutes the consideration offered for a chance to win chaser rewards. However, the capability of loot box buyers to repackage, resell, and liquidate rewards rules out this line of legal reasoning. Even if a buyer does not receive a chaser, one could successfully argue that the mass repackaging and liquidation of the loot box items received amounts to enough value to justify the consideration paid. For example, if a FIFA gamer opens a loot pack of 20 players, and every player is below a 70 rating, he or she could sell each unwanted player for in-game currency and use the total accumulated value to buy a more desirable 80 rated player. In this situation, and many others, the buyer spent three dollars in exchange for enough digital value to buy an 80 rated player on the auction market. As a result, it would be difficult and arbitrary to argue that the consideration put forth for loot boxes is somehow worth less than the value returned. In sum, the ability to liquidate the rewards of loot boxes ensures their consistent value and dismantles the argument that buyers are purchasing a mere chance for return value. 3. Necessary Risk

Loot boxes also fail to satisfy another sub-condition of consideration: necessary risk. For consideration to exist, the buyer must be required to risk something of value in order to receive a chance to receive a prize.93 Accordingly, if someone can obtain a particular prize without hazarding a payment (e.g., free giveaways), consideration most likely does not exist.94 Most jurisdictions have supported this view. In Yellow Stone Kit v. State, the Alabama Supreme court considered whether a circus tent business that distributed tickets entitling audience members to a chance to win a prize was violating state gambling laws.95

92 Price v. Pinnacle Brands, 138 F. 3d 602 1, 9 (5th Cir. 1998). 93 Castillo, supra note 15, at 185. 94 Miss Gaming, 699 So. 2d 1, at 1. 95 Yellow-Stone Kit v. State, 88 Ala. 1961, 8 (Ala. 1889).

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The court observed that the audience members were paying for admission to the circus, but were not paying for the prize ticket they would receive during the performance.96 These prize tickets were distributed freely, and were a product independent of the circus itself.97 Thus, the court ruled that “no consideration existed because the payment of money was not required for a chance to win.”98 The Mississippi Supreme Court came to a similar conclusion in Mississippi Gaming Commission v. Treasured Arts, Inc. when considering whether Treasured Arts’ phone cards with scratch-and-win games attached to them constitute illegal gambling devices. Because Treasured Arts mailed free scratch-and-win game pieces to customers per request, the court found that the purchase of the phone cards themselves was not necessary to participate in these lotteries and therefore, the element of consideration did not exist.99 Similarly, gamers can obtain the rewards found in loot boxes without purchasing loot boxes themselves. When players purchase a video game, they gain access to the entirety of its content.100 As players organically progress through the game and “level up,” they begin to unlock this content (rewards and in-game items), which also happens to be available through purchasable loot boxes. For example, a player can spend $10 on a loot box to receive a sought-after Darth Vader skin in Star Wars Battlefront 2. However, they could also level up in Multiplayer mode and unlock the same skin without buying a loot box. Loot boxes are not the sole mechanism through which players can obtain their rewards; they merely offer opportunities for in-game acceleration. As a result, loot boxes do not meet the standards for consideration because purchasing them is not necessary to access their rewards.

C. Satisfying Chance

Loot boxes easily satisfy the chance component of gambling.101 Whether through the predominant purpose test, material element test, or any chance test,

96 Id. 97 Id. 98 Castillo, supra note 15, at 185. 99 Craddock, supra note 10, at 315; Miss Gaming, 699 So. 2d 1, at 12. 100 Castillo, supra note 15, at 187. 101 Id.

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loot boxes are undeniably implicated by every state’s definition of chance.102 All loot box mechanisms determine their rewards using randomization algorithms, and gaming companies often publish the probabilities of receiving different types of rewards.103 There is no dispute as to whether or not random chance plays the sole role in the distribution of loot box prizes.

D. Failing Prize

A practice must involve a prize in order to constitute gambling.104 The issue of prize is particularly contentious in the loot box debate because the rewards provided by these products are virtual. Though the lay definition of a prize is anything of value, the courts have interpreted the meaning of “value” quite narrowly.105 In fact, “most courts that have considered the issue in the context of mobile games have found that ‘prizes’ awarded in video games do not constitute things of value because players cannot sell them [for real money].”106 For example, in Soto v. Sky Union, the United States District Court of Northern Illinois considered whether the virtual rewards offered in the game Castle Clash constituted prizes under California gambling law.107 The court found that these rewards (heroes, honor badges, gems, and shards) have no measurable monetary value and thus are not prizes under Section 319 of the California penal code.108 In Kater v. Churchill Downs Incorporated, a Washington District Court found that a particular virtual casino game did not constitute gambling because the winnable in-game chips could not be converted into real money.109 Granted, Kater appealed this decision in the 9th Circuit Court of Appeals, which reversed the lower court’s decision.110 The Circuit Court agreed with the plaintiffs that

102 Castillo, supra note 15, at 187; In re Allen, 95 Cal. 2d 5 1, 1 (Cal. 1962); Tenn. Code Ann. §3917-501 (2020). 103 Level, supra note 8, at 214 104 Nelson Rose, Gambling and the Law®: An Introduction to the Law of Internet Gambling, 10 UNLV GAMING RESEARCH AND REV. J. 1, 2 (2006). 105 Memorandum from Skadden, Arps, Slate, Meagher & Flom LLP (Sept. 26, 2019) (on file with author) [hereinafter Memorandum]. 106 Id. 107 Soto v. Sky Union, LLC, 159 F. Supp. 3d 871 1, 20 (N.D. III. Crim. R. 1.1 2016). 108 Cal. Code Regs. tit. Lottery defined, § 319 (2021); Soto, 159 F. Supp. 3d 871 1, at 20. 109 Kater v. Churchill Downs, Inc., 2015 U.S. Dist LEXIS 1, 9 (W.D. Wash. Civ. R. 85 2015). 110 Kater v. Churchill Downs Inc., 886 F.3d 784, 2018 U.S. App. LEXIS 7739 1, 2 (9th Cir. 2018).

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the virtual casino chips in question did, in fact, constitute value because “[they] extend the privilege of playing Big Fish Casino.”111 However, unlike the virtual chips in question, loot box rewards do not extend the privilege of playing a video game. Gamers gain access to a game through an up-front purchase; whether or not they choose to buy loot boxes within that game does not affect their ability to continue playing it. Thus, even in the rare case in which a court held virtual rewards as “things of value,” the reasoning for doing so is inapplicable in the context of loot boxes. Loot boxes that award only in-game digital items fail to satisfy the prize component of gambling.

One may argue that digital loot box rewards do have real-world value and thus fulfill the element of prize by pointing out the existence of secondary markets for these items. For instance, websites like GamerMarkt and PlayerAuctions allow gamers to buy and sell gaming accounts for real money.112 As such, one can argue that receiving loot box rewards increases the value at which someone can sell their account for physical currency. However, the purported existence of secondary markets for loot box rewards holds little weight in the context of a civil suit. Video game companies have explicit prohibitions on the monetization of their digital content and rewards.113 For example, before playing Madden, FIFA, and other EA games, users must agree to not “sell, buy, trade or otherwise transfer or offer to transfer your EA Account, any personal access to EA Services, or any EA Content associated with your EA Account, including EA Virtual Currency and other Entitlements, either within an EA Service or on a third party website, or in connection with any outof-game transaction.”114 Players agree to refrain from monetizing any in-game content and as a result, video game companies are not likely to be held liable in court for resulting damages.115 Their intention is for loot box rewards to exist purely within a digital world.116 In this context, the courts have made clear that

111 Id. at 6. 112 Sell Your Game Accounts for Real Money, PLAYER AUCTIONS, https://www.playerauctions.com/sell-other-games-account/. 113 Castillo, supra note 15, at 190. 114 Electronic Arts User Agreement, EA (Sept. 8, 2020), https://www.ea.com/terms-of-service. 115 Castillo, supra note 15, at 191; Jeremy Merkel, Mobile In-Game Apps: Mindless Fun or Illegal Gambling?, 9 NAT’L L. REV. (2020); https://www.natlawreview.com/article/mobile-app-gamesmindless-fun-or-illegal-gambling.

116 Id.

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such rewards do not have real-world value and thus do not fulfill the element of prize.

Furthermore, even when disregarding questions of liability, secondary markets still have little legal effect on whether or not loot boxes satisfy the component of prize. Critically, secondary markets only allow players to sell their accounts, not their in-game currency or specific loot box rewards. Such rewards may be attached to the products on secondary markets but are not the products themselves. The Fourth Appeals Court in Mason v. Machine Zone highlights the importance of this distinction. In this case, the plaintiff sued the developer of the mobile game Game of War: Fire Age, alleging that she had suffered losses by participating in the game’s virtual prize wheel mechanism.117 However, the court found that the payment of virtual currency to spin the prize wheel did not constitute “money” as termed under Maryland's Loss Recovery statute. Critically, the court's decision was “not affected by Mason’s contention that because Game of War participants can sell their accounts in a secondary market, money is at stake when a player spins the virtual wheel in the virtual casino.” The court ruled instead that “virtual gold and virtual chips are not sold on the secondary market and, therefore, are not equivalent to money. Rather, players sell in the secondary market their entire accounts, which include their levels of advancement in the game.”118 The court’s refusal to acknowledge the existence of secondary markets for Game of War’s virtual rewards weakens the legal claim that similar markets exist for loot box rewards in the first place. As such, it is likely futile to argue that loot box rewards derive real-world, monetary value through secondary markets.

Granted, there are social, moral, and philosophical arguments that attempt to expand the definition of “real-world value” to include virtual rewards.119 For instance, one may argue that real-world rewards are not functionally different than are virtual rewards. Just as consumers purchase and enjoy “real life” entertainment experiences—such as going to see a movie—so do gamers when

117 Mason v. Mach. Zone, Inc., 851 F. 3d 315 1, 2 (4th Cir. R. 32.1 2017). 118 Id. at 9. 119 Katherine Cross, How the Legal Battle Around Loot Boxes Will Change Video Games Forever, THE VERGE (Dec. 19, 2017), https://www.theverge.com/2017/12/19/16783136/loot-boxes-video-games-gambling-legal.

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purchasing a loot box.120 Given the prevalence and immersiveness of video games, one could also argue that virtual rewards provide just as much real-world satisfaction to gamers as would an equivalent amount of real money.121 However, such arguments have yet to produce definitive judicial outcomes that expand the legal interpretation of “prize” to include items of virtual value.122 Given the predominant attitude of the courts aforementioned and strength of precedent, loot boxes would most likely fail to satisfy the prize component of gambling if tested tomorrow.

In sum, loot boxes satisfy neither the element of consideration nor the element of prize. Thus, while loot boxes warrant much more legal skepticism than do trading cards, they are not illegal under current law.

III. Situating Loot Boxes

A. Between the Poles

Loot boxes are neither protected by trading card case law nor implicated by current gambling laws. As a result, loot boxes fall somewhere in between the two extremes on the legal spectrum of gambling. Given the lingering ambiguity surrounding the legal identity of loot boxes, this article considers whether or not loot boxes should be legal. Because trading card case law and current state gambling law do not offer answers to this question, other moral, behavioral, and economic considerations become significant in the discussion. There are three reasons why state governments ought to heavily regulate or prohibit loot boxes in video games. 1. Immoral Exploitation of a Young Audience

First, loot boxes target young consumers and take advantage of their cognitive and emotional vulnerability for profit.123 An overwhelming amount of research shows that children and adolescents are far more prone to short-term

120 Jing Shi et al., Understanding the Lives of Problem Gamers: The Meaning, Purpose, and Influences of Video Games, 91 COMPUTERS IN HUMAN BEHAVIOR 291, 299 (2019).

121 Id. 122 Castillo, supra note 15, at 192; Memorandum, (Sept. 26, 2019) (on file with author). 123 Jane Bradley, Young Gamers in Loot Box Debt Warning, THE SCOTSMAN (Dec. 23, 2020), https://www.scotsman.com/business/consumer/young-gamers-loot-box-debt-warning3076205.

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thinking and impulsiveness than are older age groups.124 Unlike their older peers, young people are more likely to fall victim to the appealing visual, digital, and dynamic capabilities of the loot box experience.125 A survey of 1,013 undergraduate students found that the unique characteristics of video games such as hyper-interactivity and virtual immersiveness exploit compulsive tendencies and correlate with greater addictive behavior even among young adults.126 The immersive digital environment in which loot boxes exist similarly capitalizes on adolescent impulsiveness in order to make game developers more money.127

Additionally, loot boxes that serve as key progression mechanisms in payto-win games further prey on the cognitive underdevelopment of children. Without purchasing loot boxes in pay-to-win games, gamers would be subject to a competitive disadvantage and a worse gaming experience overall.128 In linking the quality of the gaming experience to the purchase of loot boxes, game developers create an insurmountable level of temptation for young kids and prey on their impulsivity to drive profits.129 Furthermore, according to a 2020 report by the Gambling Health Alliance, young people struggle to track their spending on loot boxes and microtransactions.130 The lack of financial accountability amongst young people, especially when their parent’s money is involved, is yet another characteristic that loot boxes succeed in exploiting.

124 Christina Leuker & Wouter van de Bos, I Want it Now! The Neuroscience of Teenage Impulsivity, FRONTIERS (June 7, 2016), https://kids.frontiersin.org/article/10.3389/frym.2016.00008. 125 Video Game Addiction Statistics 2020: Is the World Addicted to Video Games?, HEALTHY GAMER (June 17, 2020), https://www.healthygamer.gg/video-game-addictionstatistics/#:~:text=However%2C%20the%20research%20is%20mixed,to%20mobile%20games%20t han%20men. 126 Gregor Pouliot, Can Videogames be Addicting? An Investigation into the Specific Game Features and Personal Characteristics Associated with Problematic Videogame Playing, (May 19, 2014) (Ph.D. dissertation, Eastern Michigan University), https://commons.emich.edu/cgi/viewcontent.cgi?article=1951&context=theses/ 127 Lynden Crunch, Pay to Win – The History of Microtransactions in Video Games, Medium (Feb. 1, 2019), https://medium.com/@sacrfox/pay-to-win-the-history-of-microtransactions-in-videogames-48ca64425704. 128 Azin, supra note 66, at 1582. 129 Id. at 1583.

130 GAMBLING HEALTH ALLIANCE, WHAT IS THE FINANCIAL IMPACT OF LOOT BOXES ON CHILDREN AND YOUNG PEOPLE?, 2 (2020).

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Another vulnerable group that loot boxes target are those with gambling issues. In a large study of over 1,000 gamers in three different countries, Aaron Drummond of Massey University found that subjects with higher levels of existing gambling tendencies spent more on loot boxes, on average, than those with lower levels.131 He concluded that those with impulsive gambling issues are far more likely to overspend on loot boxes and attributed this pattern to the gambling-like cognitive stimulation experienced when opening a box.132 In short, loot boxes prey on cognitively underdeveloped children and people with preexisting gambling issues, raising serious moral concerns about the place loot boxes should have in American video games. 2. Psychological and Behavioral Impacts

In addition to worsening pre-existing gambling tendencies, loot boxes can also create gambling addictions, imposing long-lasting behavioral effects on consumers. A novel study on the impacts of loot boxes examined the spending behaviors of over 1,000 16- to 18-year-olds.133 It found a strong relationship between loot box spending and gambling problems, concluding that loot boxes give rise to and exacerbate addictive gambling behaviors. Andrew Brady and Garry Prentice of the Dublin Business School explored the causal mechanism within this relationship by studying the physiological patterns associated with purchasing a loot box.134 Using heart rate monitors and galvanic skin receptors on 25 men, they found that the act of buying and opening a loot box creates spikes in cognitive and emotional stimulation similar to the physiological patterns that occur when playing a slot machine or roulette.135 Furthermore, they found that the participants who already had addictive gaming tendencies experienced weaker cognitive spikes when opening loot boxes. They explain that this pattern of hyposensitivity is a common symptom of addiction; as people become more addicted to an activity, the degree of stimulation derived from that

131 Aaron Drummond et al., The Relationship Between Problem Gambling, Excessive Gaming, Psychological Distress and Spending on Loot Boxes in Aotearoa New Zealand, Australia, and the United States—A Cross-National Survey, PLOS ONE 1, 14 (2020). 132 Id. at 15. 133 Zendel et al., supra note 4, at 6. 134 Andrew Brady & Gary Prentice, Are Loot Boxes Addictive? Analyzing Participant’s Physiological Arousal While Opening a Loot Box, 14 GAMES AND CULTURE 1, 5 (2019). 135 Chanel J. Larche et al., Rare Loot Box Rewards Trigger Large Arousal and Reward Responses, and Greater Urge to Open More Loot Boxes, 37 J GAMBL. STUD. 141, 158 (2021).

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activity levels out while their addictive behavior does not.136 Growing evidence continues to suggest that loot boxes give rise to and exacerbate gambling tendencies in children and adolescents, strengthening the call for the heavy regulation or prohibition of such products.137 3. Financial Harms

Third, in addition to their predatory nature and detrimental psychological effects, loot boxes also impose a steep financial cost on many families. In a large survey of gamers ages 13 to 24 conducted by the Gambling Health Alliance, 11% of respondents indicated that they purchase loot boxes on a daily or weekly basis.138 Around 10% of respondents claimed to spend around $1,000 a year on loot boxes at an average of $20 per week. More alarmingly, 13% of respondents stated that “their loot box purchases had gotten them into debt” and 15% admitted to spending their parent’s money without permission. While the average loot box costs no more than $10, their predatory and addictive nature combined with their common integration into pay-to-win systems can lead to huge loot box expenses over time. For instance, a gamer from County Durham, England, spent more than $700 on loot boxes in a one-month period.139 Though shocking, this level of spending is not unique. Thousands of gamers around the world spend significant amounts of money on loot boxes every month, and they show no signs of slowing down.140

Given their moral, behavioral, and economic harms, loot boxes ought to be heavily regulated or prohibited. However, because legal ambiguity surrounding

136 Adam Felman, What Are the Symptoms of Addiction?, MEDICAL NEWS TODAY (Oct. 26, 2018), https://www.medicalnewstoday.com/articles/323459. 137 Zendel et al., supra note 4, at 1; Brady & Prentice, supra note 134, at 1. 138 Over 1 in 10 gamers get into debt by buying loot boxes, ROYAL SOCIETY FOR PUBLIC HEALTH (Dec. 23, 2020), https://www.rsph.org.uk/about-us/news/over-1-in-10-young-gamers-get-into-debtbecause-of-loot-boxes.html; What is the Financial Impact of Loot Boxes on Children and Young People?, GAMBLING HEALTH ALLIANCE 1, 2 (2020). 139 Lydia Thomas & Mike Young, ‘I Spent £700 on Loot Boxes in a Month,’ BBC NEWS (Mar. 7, 2019), https://www.bbc.com/news/business-47470182. 140 Over 1 in 10 Gamers Get into Debt by Buying Loot Boxes, Royal Society for Public Health (Dec. 23, 2020), https://www.rsph.org.uk/about-us/news/over-1-in-10-young-gamers-get-into-debtbecause-of-loot-boxes.html; Adam Clarkson, Coronavirus: The gamers spending thousands on loot boxes, BBC NEWS (Nov. 13, 2020), https://www.bbc.com/news/uk-england-54906393; Tae Kim, ‘Loot Boxes’ Could Be Trouble for the Video Game Industry. Here’s What You Need to Know, BARRON’S (Apr. 14, 2019), https://www.barrons.com/articles/videogame-publishers-facescrutiny-over-the-use-of-lock-boxes-51555120828.

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loot boxes still exists, states should first carve out a specific and distinct legal classification for loot boxes called a Digital Loot Rewards System (DLRS). Then, states should ban or highly restrict DLRSs in video game products.

B. Digital Loot Rewards Systems and the Impacts of a Clear

Legal Identity

A Digital Loot Rewards System (DLRS) is any digital mechanism that offers in-game or virtual rewards to persons at the cost of in-game or real-life currency, contains a partial element of probability in the distribution of its rewards, and whose non-chaser rewards have little collectible or functional value to the buyer.

Under this definition, a mechanism must have four primary characteristics to constitute a DLRS. First, it must exist on a digital platform and offer virtual rewards. Second, such rewards must come at a cost to the buyer either through virtual currency or real money. Third, the digital mechanism must contain a partial element of chance in the way it distributes its rewards. Critically, the element of chance can be partial; even if a loot box offers some static value, as long as a portion of that product’s value relies on chance, then it satisfies the third condition of the DLRS definition. Fourth, a DLRS offers non-chaser rewards that have little to no collectible or functional value to the buyer. This condition (as well as the first) is particularly important in distinguishing a DLRS from trading cards. Trading card products provide considerable static value through the collectability and functionality of their non-chaser rewards whereas loot boxes do not. As such, the DLRS classification above provides loot boxes with a specific and distinct legal identity.

The relevance and specificity of this new DLRS classification will benefit three stakeholder groups: (1) the government and the courts, (2) the private industry, and (3) consumers. First, a straightforward and clear legal identity for loot boxes will allow enforcement agencies and the courts to more efficiently identify, regulate, and prosecute DLRSs.141 Using the specific definition of a

141 Daniel Malen, The Law Can’t Keep Up with New Tech. Here’s How to Close the Gap, WORLD ECONOMIC FORUM (June 21, 2018), https://www.weforum.org/agenda/2018/06/law-too-slowfor-new-tech-how-keep-up/; Robin Tricoles, Smart Tech Sprints Forward, but the Law Lags Behind, KNOWLEDGE ENTERPRISE (Mar. 21, 2019), https://research.asu.edu/smart-tech-sprintsforward-law-lags-behind; Steven Blickensderfer & Nicholas A. Brown, U.S. Regulation of Loot Boxes Heats Up with Announcement of New Legislation, THE NAT’L L. REV. (May 9, 2019),

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DLRS, courts can better delineate between predatory loot boxes and less harmful products like trading cards. Courts will also be able to cite specific statutes in cases involving DLRSs, ultimately improving the confidence and consistency of their rulings.142 Enforcement agencies will also benefit from the DLRS classification, using it to clearly identify which loot rewards systems to prosecute.

In a parallel way, the DLRS classification will aid private industry stakeholders by eliminating any legal ambiguity with regards to loot boxes. Currently, video game companies are forced to blindly navigate an untested legal frontier that could change at any moment.143 For instance, a company’s decision to invest millions of dollars to develop a new loot box system rests on speculation about the legality of the resulting product. However, the DLRS classification will allow companies to confidently work and innovate within defined legal boundaries. It will be clear whether or not one of their products would be implicated by the DLRS definition and as a result, companies will no longer risk wasting money on illegal and costly ventures. In addition, private industry stakeholders will be able to avoid lawsuits and subsequent financial losses that often result from overstepping ambiguous legal borders.144

Finally, and most importantly, the DLRS classification will benefit current and potential consumers of loot box products. Given the ease with which enforcement agencies and courts will be able to identify and restrict DLRSs, the behavioral and financial harms of these predatory systems will be eliminated as well.

https://www.natlawreview.com/article/us-regulation-loot-boxes-heats-announcement-newlegislation#:~:text=Demonstrating%20the%20differing%20views%20on,the%20industry%20to%20 regulate%20itself.&text=In%20the%20United%20States%2C%20there,place%20to%20regulate%20 this%20practice. 142 Level, supra note 8, at 202; David Kim & Aalok Sharma, What’s Loot Got to Do with It?, JD SUPRA (Nov. 10, 2020), https://www.jdsupra.com/legalnews/what-s-loot-got-to-do-with-it57429/. 143 Id. at 223.

144 Id.

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Conclusion

The emergence of digital loot boxes has illuminated the inability of current American law to effectively deal with the rise of new technologies in the modern era. This Article situates loot boxes along the legal spectrum of gambling in an effort to refine their legal identity. It began by examining loot boxes in relation to one polar extreme of this spectrum using trading card case law. While the similarities between trading cards and loot boxes justify the common comparisons between the two, the differences between them are too significant to conclude that they are legally equivalent. As such, the case law that affirms the legality of trading cards is inapplicable to loot boxes. Next, this Article examined whether loot boxes constitute illegal gambling products under current law. It found that loot boxes fail to definitively satisfy two of the three required components of gambling: consideration and prize. As it stands, therefore, loot boxes are not illegal gambling products. However, given the detrimental moral, behavioral, and financial impacts of loot boxes, such products ought to be heavily regulated or prohibited. Achieving these ends first requires carving out a new legal classification for loot box products: Digital Loot Rewards Systems. This specific, distinct, and relevant legal classification would enhance the regulatory process for the government, clarify legal boundaries for private industry stakeholders, and reduce the negative effects of loot boxes on consumers.

The novel capabilities of rising digital technologies will continue to complicate the application of current laws in the years to come. Instead of forcibly relying on outdated case law or archaic statutory language to legally define these technologies, one should acknowledge the inability of the American legal system to accomplish such a task. Then, it is necessary to consider the practical and moral impacts of a given product to inform prescriptive attitudes towards its legality. Finally, governments must create new legal definitions and categories for emerging technologies that current laws cannot account for. After all, the digital era is revolutionizing the way people live, eat, sleep, travel, and communicate. Proactive legal adaptation to these changes will ensure an efficient and equitable transition into the digital future.

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Annika Sial

Overcrowded and Confined: Evaluating and Improving Farmed Animal Welfare in United States CAFOs

ABSTRACT. At present, 99% of farmed animals in the United States are raised and slaughtered in industrial farming complexes, otherwise known as factory farms. Yet, the obscurity of legislation around factory farms allows the exploitation and poor treatment of farmed animals for the maximization of profit. As a result, it is industrystandard practice to keep animals at extremely high or low temperatures, provide insufficient space for them to stand up or walk around, and maintain extremely unhygienic conditions, among other concerns. This paper analyzes existing legislation to propose a policy plan which meaningfully ensures farmed animal welfare in the United States. While some existing laws explicitly hinder animal welfare, others attempt to address animal welfare concerns at a national or state level. However, the poor enforcement, limited scope, and low standards established in these regulations limit their effectiveness. The failure of these laws to ensure animal welfare indicates fundamental flaws in the United States’ approach to regulating industrial farming: existing legislations are inadequate and lack enforcement measures. This paper proposes that the federal government be responsible for ensuring farmed animal welfare throughout the United States by implementing clearer, more enforceable standards for farmed animal welfare with transparent accountability measures.

Introduction

A 2015 undercover investigation of Cactus Acres Holsteins, a dairy farm in Colorado, found that its employees punched and kicked their cows, used milking

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equipment to hit them, and stabbed them with sharp objects, including screwdrivers. As is customary in factory farms, Cactus Acres Holsteins housed the cows in overcrowded and unhygienic conditions and denied the cows appropriate medical treatment to address the wounds from their abuse and resulting infections.1 As a result, cows at Cactus Acres Holsteins systemically experienced rampant abuse, resulting in demonstrated physical and psychological trauma. Although federal investigators examined the farm when the investigation was published, they did not file criminal charges. While the investigation did lead to the firing of 5 workers and additional training for 7 others, Cactus Acres Holsteins did not commit to educating its employees more thoroughly on the appropriate treatment of dairy cows in the future.2

Animal suffering in factory farms is not isolated to this incident. Rather, farming in the United States is systemically centered around the practice of keeping animals overcrowded and confined in order to maximize profit: sows are kept in pens which are too small to allow standing up or walking; cattle live in similarly small enclosures, chickens are de-beaked and their tails removed. The unsanitary conditions in which these animals live often lead to health concerns such as burns, tumors, infections, digestive diseases, and lung and heart disease.3 99% of farmed animals in the United States live in overcrowded and inhumane conditions like these in Concentrated Animal Farming Operations (CAFOs), large-scale operations where animals are confined for at least 45 days a year that do not include pastures or vegetation.4 CAFOs are characterized by the concentration of large numbers of animals in relatively small spaces for the purposes of industrialized farming.

1 Heartbreaking Footage Shows Baby Cows Stolen from Their Mothers, GOTMISERY.COM, http://gotmisery.com/readmore. 2 Csaba Sukosd, Authorities Investigate Alleged Abuse at Colorado Dairy WSYX (2015), https://abc6onyourside.com/archive/authorities-investigate-alleged-abuse-at-colorado-dairy. 3 Elizabeth Overcash, Detailed Discussion of Concentrated Animal Feeding Operations: Concerns and Current Legislation Affecting Animal Welfare, MICH. ST. L. REV. 3 (2011). 4 2012 Census of Agriculture, (2014), https://www.nass.usda.gov/Publications/ AgCensus/2012/Full_Report/Volume_1,_Chapter_1_US/usv1.pdf.

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This article takes a pragmatic approach to the issue of animal farming in CAFOs, with the understanding that the political and economic effects of CAFOs render it unlikely that they will be entirely eliminated despite their association with animal suffering. Although some may argue that CAFOs and animal welfare are entirely in opposition, in this article, I aim to explore how legislation can partially alleviate animal welfare concerns in CAFOs in order to decrease animal suffering overall. In order to overview the development of farming operations like CAFOs, the social and political context in which CAFOs came to exist, and the stakeholders involved, the article will first examine the history of factory farming practices in the United States in Section I. Considering this context, Section II will examine federal statutes and guidelines, as well as the moral basis for protecting animal welfare, to demonstrate why government intervention is necessary in farming operations and establish a pragmatic definition of animal welfare. Finally, Section III will evaluate the effectiveness of existing laws which affect animal welfare at both the federal and state levels. Based on these findings, the article will make a recommendation for the enforcement of existing laws and the creation of new, more specific policy to ensure animal welfare in farming operations.

I. History of Factory Farming

In the early nineteenth century, most households relied upon animals for many aspects of life, including transportation, food supply, and waste management.5 As such, animal agriculture was not centralized on farms, but rather existed at a smaller scale in each unique household. However, as the nineteenth century progressed, animal agriculture was centralized in more dedicated, concentrated units, such as piggeries and dairies which could be considered precursors to contemporary factory farming within urban limits, intended to maximize production of animal products. This led to concerns about

5 Catherine Brinkley & Domenic Vitiello, From Farm to Nuisance, 13 J. PLAN. HISTORY 1 (2013).

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the safety of products produced in these urban conditions. By the mid-late nineteenth century, cities began to pass ordinances restricting animals from being kept in city limits.3 Those city ordinances, therefore, encouraged farming to shift to more rural spaces.

Factory farming began in earnest in the twentieth century, with the firstknown broiler, or industrialized chicken farming facility, established in the 1920s.6 Livestock farms became increasingly specialized as production moved off family farms and onto industrialized factory farming facilities in the midtwentieth century.7 Farming facilities have continued to grow larger in size, more specialized, and more concentrated. Over the last 60 years, for instance, factory farms have made massive productivity gains largely associated with worsening conditions for livestock on those farms, such as increased deliverance of growth-hormones and antibiotics, closer living conditions, and worse hygiene and living conditions.

At the same time, industrialized animal agriculture has become deeply intertwined with the economic structures of the United States. As of 2019, the U.S. value of animal production was valued at $181 billion.8 As a result, the animal agriculture industry now also plays a major role in politics, with the meat industry making $3,951,869 of political donations in the 2020 election cycle9 and the dairy industry $5,157,240.10 As a result, there is a complex system of stakeholders involved in establishing new regulations on animal agriculture including companies that are directly involved in animal agriculture, their employees and investors, and government officials. However, animal agriculture practices have also long drawn criticism from human health and

6 US Animal Agriculture: Making the Case For Productivity, 3 J. AGROBIOTECHNOLOGY MGMT. & ECON. 1 (2000). 7 Hurt, C., 2019. The Economic Importance of U.S. Animal Agriculture. farmdoc daily (9):158, Department of Agricultural and Consumer Economics, University of Illinois at Urbana-Champaign, p.1. 8 Id. 9 Meat Processing & Products, OPENSECRETS.ORG (2020), https://www.opensecrets.org/industries/indus.php?ind=G2300. 10 Dairy: Long-Term Contribution Trends, OPENSECRETS.ORG (2020), https://www.opensecrets.org/industries/totals.php?cycle=2020&ind=a04.

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animal welfare advocates. Upton Sinclair’s 1906 novel The Jungle, for instance, criticized the poor conditions faced by workers in Chicago meat-packing plants. More recently, there has been substantial growth in anti-animal agriculture movements such as veganism and new legislation like the Farm System Reform Act of 2019 in the Senate which attempt to address animal welfare. Thus, it is clear that despite the continuing growth of factory farming and animal agriculture, concerns about the welfare of animals in animal farming operations have also become more prevalent.

II. Necessity of Intervention

The federal government has expressed a commitment to protecting animal welfare through the Animal Welfare Act (AWA), which regulates the treatment of animals, including pets, that are utilized for research, sold, exhibited to the public, or transported commercially.11 As a result, it is clear that the treatment of animals, including animals that are sold commercially, is within the federal government’s jurisdiction. While the AWA excludes livestock, separate federal laws also demonstrate that the government is committed to maintaining animal welfare in farming operations. For instance, in the Humane Methods of Slaughter Act, the U.S. government directly expresses a commitment to maintaining “humane” slaughter for animals, demonstrating that the welfare of livestock is of major concern to the federal government. Similarly, the TwentyEight Hour Act indicates that animals should be transported in a “humane” way.12 The federal government’s expressed commitment to maintaining humane treatment of farmed animals in each of these legislations establishes a precedent for federal intervention in animal welfare.

The lack of a clear definition for humane treatment poses a major issue for the evaluation of animal welfare standards. For the purposes of this paper, animal welfare will be defined as the uniform treatment of animals that fulfills

11 Animal Welfare Act, USDA NATIONAL AGRICULTURAL LIBRARY, https://www.nal.usda.gov/awic/animal-welfare-act. 12 7 U.S.C. §1901 (1958).

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their physiological and social needs. I will primarily focus on the treatment of animals in CAFOs, but farmed animal welfare pertains to all elements of the animal agriculture process, including the farming operation, transport, and slaughter of animals. The primary objective of achieving farmed animal welfare is to ensure that the highest possible proportion of farmed animals are living with their needs fulfilled.

In their present state, CAFOs typically violate both the specific animal welfare standard of fulfilling physiological and social needs and the federal government’s expressed commitment to humane treatment. Farmed animals in CAFOs are kept in extremely cramped and unsanitary conditions, forced to undergo acts of violence, and do not have access to pastures or the outdoors. Subjectively, these conditions seem inhumane, but they also objectively preclude farmed animals from fulfilling basic physiological needs by avoiding medical conditions such as infection, obtaining a balanced nutritional profile, and being able to stand up or walk around. According to animal behaviorist Jonathan Balcombe, the practice of factory farming, as a whole, constitutes animal suffering, and thus a violation of animal welfare, because it prevents animals from expressing their natural behaviors.13 Thus, considering the federal government’s commitment to the protection of animal welfare, it is clear that the federal government is obligated to implement laws mitigating the current circumstance of CAFOs, which generally compromise the treatment of animals in order to maximize commercial production.

III. Evaluating the Effectiveness of Legislation

Although there is existing federal legislation concerning farmed animal welfare, there are no federal laws that directly regulate the treatment of animals on farming operations, either in general or on CAFOs specifically. As a result, I will analyze the only two federal laws which currently address the humane treatment of livestock, the Twenty-Eight Hour Law and the Humane Methods of Slaughter Act. These two laws exemplify the shortcomings and successes of

13 Balcombe, J., Animal Pleasure and Its Moral Significance, APPLIED ANIMAL BEHAVIOUR SCIENCE, 118, 208-216. (2009).

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the federal government’s approach to animal welfare. However, some laws which are not welfare-centric also have major implications for animal welfare: for example, the Organic Foods Production Act, a set of federal laws pertaining to organic food production, establish health guidelines that indirectly promote animal welfare.

State-level animal welfare laws perhaps serve as the best model for legislation intended specifically to address animal welfare, but they also coexist in states which also implement laws such as Right to Farm Statutes and ag-gag laws intended specifically to support CAFOs and minimize animal welfare claims. Thus, this paper will also analyze the success of animal welfare laws within the context of other prominent examples of laws which are generally considered to be harmful to animal welfare to understand how each component affects animal welfare.

A. Harmful to Animal Welfare

4. Right-to-Farm Statutes

Right-to-Farm Statutes protect farms, including industrial farming operations like CAFOs, from nuisance lawsuits, typically with the condition that they predate the plaintiff. Right-to-Farm Statutes were first enacted in some states in the 1970s, as urban sprawl brought larger groups of people to live near previously isolated rural farms. There are Right-to-Farm Statutes currently in effect in all 50 states. While the specific terms of each statute differ, they commonly contain prohibitions against government intervention in longrunning farms.14 This poses a concern for animal welfare, however, as these restrictions have been used to prevent action against the development of new CAFOs in several prominent cases across the country.

The most prominent example of such a nuisance lawsuit is Himsel v. Himsel. In this case, the Himsel plaintiffs filed suit when a neighboring farm in Indiana,

14 Kitt Tovar, Update on Right-to-Farm Legislation, Cases, and Constitutional Amendments Center for Agricultural Law and Taxation, IOWA STATE CENTER FOR AGRICULTURAL LAW AND TAXATION (2019), https://www.calt.iastate.edu/article/update-right-farm-legislation-casesand-constitutional-amendments.

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which grew only crops until 2013, began operating a CAFO. In 2013, the Himsel defendants applied for their farm to be re-zoned from Agricultural Residential to Agricultural Intensive, which would allow the construction of a CAFO, built two CAFO buildings, each intended to hold 4000 hogs, and, in October 2013, fully populated the buildings with hogs. In response, the Himsel plaintiffs filed a nuisance and negligence suit, alleging that the presence of the CAFO greatly decreased their quality of life.15

Indiana restrictions on lawsuits against farms are primarily guided by two laws: Ind. Code § 32-30-6-9, or the Indiana Right to Farm Act (the RTFA) and Ind. Code § 15-11-2-6(a), which states that Indiana agricultural laws “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.”19 The RTFA, in particular, states that farms are protected from nuisance suits when “(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following: (A) The conversion from one type of agricultural operation to another type of agricultural operation. (B) A change in the ownership or size of the agricultural operation.”16 In its decision, the court found that the transition of the crop farm to a CAFO does not constitute a “significant change in the type of operation.” Therefore, the court ruled that the Plaintiffs’ nuisance complaint was invalid.19

This ruling hinders the protection of animal welfare in Indiana. While CAFOs pose significant animal welfare concerns in addition to their negative impact on local health and the environment, treating CAFOs as “not a significant change in the type of operation” from crop farms permits the continued growth of Indiana CAFOs. Nuisance lawsuits against CAFOs, such as Himsel v. Himsel, affect the conditions of farmed animals because they often address the smell, noise, or environmental effects of CAFOs. These poor conditions also act as indicators lack of animal welfare in those facilities. As a result, nuisance suits against CAFOs can lay the groundwork for minimizing

15 Himsel v. Himsel, 122 N.E.3D 935 (Ind. App. 2019). 16 Ind. Code § 32-30-6-9 (2005).

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animal suffering in CAFOs by requiring welfare measures such as waste cleanup. Yet, by framing the development of a CAFO as a change in technology and, in conjunction, disregarding its drastic impacts on animal welfare and local communities, the Indiana decision protects farmers from addressing these concerns in the development of new CAFOs. As a result, it strengthens the capacity for continued farmed animal abuse in CAFOs.

The use of Right-to-Farm Statues to protect CAFOs in this way has occurred in cases in several other states. For instance, there have been a series of court cases in Iowa, including Bormann v. Board of Supervisors ex rel. Kossuth County (1998), Gacke v. Pork Xtra, L.L.C. (2004), and Honomichl v. Valley View Swine, L.L.C. (2018) with conflicting results on the constitutionality of Right to Farm Statutes and the rights afforded to plaintiffs; therefore, such judicial inconsistency has resulted in several revisions of Right to Farm Statutes in Iowa over the past thirty years.17

Most recently, in 2017, Iowa enacted Iowa Code § 657.11A, which increases the evidentiary standard on plaintiffs, places maximum limits on the fees incurred by the defendants, and explicitly adjusts other aspects of the law to be more favorable to CAFOs.18 It requires that CAFOs comply with federal and state laws regarding CAFOs and use “existing prudent generally utilized management practices reasonable for the animal feeding operation.”19 This holds CAFOs to an extremely minimal standard for animal welfare. As aforementioned, federal laws on the treatment of farmed animals do not pertain directly to CAFOs and are nonetheless highly underenforced. Similarly, “generally utilized management practices” accept and promote poor standards of animal welfare in CAFOs. By including these conditions, Iowa minimizes the potential consequences encountered by CAFOs and normalizes the farmed animal abuse common in CAFOs. In this way, Iowa Right to Farm Statues, much like those in Indiana, facilitate the growth of CAFOs but shield them from

17 Beau R. Morgan, Iowa and Right to Farm: An Analysis of the Constitutionality of Right to Farm Statutes Across the United States, 53 CREIGHTON L. REV. 623 (2020). 18 Here We Go Again: A Third Legislative Attempt to Protect Polluting Iowa CAFOs from Neighbors’ Nuisance Actions, IOWA L. REV. 41 (2018). 19 Iowa Code § 657.11A (2017).

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addressing animal welfare concerns. In fact, between 2011 and 2017, the number of CAFOs in Iowa, already the state with the most CAFOs, increased by 117.72%.20 This demonstrates a pattern in the use of some Right-to-Farm Statues, particularly in states where animal farming is more common, to defend CAFOs from managing animal welfare. 5. Ag-gag Laws

Several states have also implemented legislation, commonly known as aggag laws, which restrict unauthorized whistleblower recordings at farming facilities. Ag-gag laws reduce the accessibility of information about farmed animal welfare by limiting undercover investigations’ ability to access animal farming operations and, as a result, their capacity to construct a case with enough tangible evidence for major legal action or prosecution.21 There are three primary types of ag-gag laws which limit undercover investigations at industrial animal farming operations: agricultural interference laws which ban recordings without the consent of the operation’s owner, agricultural fraud laws which ban applying to work at such operations under false pretenses, and rapid reporting laws which require recordings of the operations to be turned into the authorities within a certain amount of time.22 At present, six states—Montana, North Dakota, Iowa, Missouri, Arkansas, and Alabama—have ag-gag laws, and two additional states, Kansas and North Carolina, struck down previous ag-gag laws as recently as 2020.23

In Iowa, for example, the state legislature has passed three unique ag-gag laws in the past 10 years: Iowa Code § 717A.3A(2012), an agricultural fraud law which was struck down by a US District court in January 2019,24 Iowa Code §

20 Christopher Walljasper, Large Animal Feeding Operations on the Rise, MIDWEST CENTER FOR INVESTIGATIVE REPORTING (2011), https://investigatemidwest.org/2018/06/07/large-animalfeeding-operations-on-the-rise/. 21 Legal Protections for Animals on Farms, ANIMAL WELFARE INSTITUTE (Dec., 2019), https://awionline.org/sites/default/files/uploads/documents/19LegalProtectionsFarm.pdf. 22 Alicia Prygoski, Legal Protections for Animals on Farms, MICH. ST. L. REV.1 (2015). 23 What Is Ag-Gag Legislation?, ASPCA, https://www.aspca.org/animal-protection/publicpolicy/what-ag-gag-legislation. 24 Federal District Court Says Iowa's Ag Fraud Statute Unconstitutional, IOWA STATE UNIVERSITY

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717A.3A(2019), a similar agricultural fraud law which was blocked by a permanent injunction,25 and, most recently, Iowa Code § 716A.7, which criminalizes unauthorized entrance to food operations.26 Iowa Code § 716A.7, currently in effect, may also penalize individuals employed under false pretenses in order to collect information for undercover investigations, as the law states that trespass does not apply to “A person employed by a food operation while acting in the course of employment.” It is unclear whether undercover investigators employed by industrialized animal farming operations would be considered to be “acting in the course of employment.” In this way, ag-gag laws like these Iowa laws limit undercover investigators’ access to farming operations, which prevents them from publishing information about animal welfare.

While it is difficult to concretely understand the effects of ag-gag laws on farmed animal welfare because there is minimal record about the conditions in which farmed animals live in states with ag-gag laws, it is clear that third-party undercover investigation of CAFOs is vital to the development of farmed animal welfare, as they are often the only reliable resources which create transparency in CAFOs and expose poor conditions. Undercover investigative reports have been the basis for lawsuits and internal government investigations, even sometimes leading to new legislation and major public health directives, such as meat recalls.27 This paper also relies upon these investigations in order to establish a third-party image of animal welfare in CAFOs at present. Individuals in the US are also more likely to use these investigative organizations as a source for their knowledge about farmed animal welfare than they are to consult livestock and poultry industries.28 Yet, ag-gag laws serve to suppress efforts to spread information and reshape farmed animal welfare.

25 Iowa Code § 717A.3A (2019). 26 Iowa Code § 716A.7 (2020). 27 Sarah Hanneken, Principles Limiting Recovery Against Undercover Investigators in Ag-Gag States: Law, Policy and Logic, 50 J.MARSHALL L. REV. 649 (2017). 28 M. G. S. McKendree, C. C. Croney & N. J. O. Widmar, Effects of Demographic Factors and Information Sources on United States Consumer Perceptions of Animal Welfare, 92 J. ANIMAL SCI. 3161 (2014).

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B. Constructive for Animal Welfare

In spite of the existence of these laws undermining animal welfare, there are also contradictory laws, both at the federal and the state levels, which specifically aim to promote farmed animal welfare. However, existing legislation on the welfare of farmed animals is flawed in that it is very limited in scope and often poorly enforced. Rather than setting specific standards for the treatment of animals on CAFOs or AFOs, current legislation addresses particular aspects of their raising, such as their transportation or slaughter. There also exists legislation addressing the treatment of livestock who are certified to produce organic foods. Yet, due to the narrow scope, low standards, and consistent underenforcement of these laws, they have failed to significantly affect farmed animal welfare. 1. The Twenty-Eight Hour Law

The Twenty-Eight Hour Law, originally passed in 1873 but amended in 1994, establishes standards for the transportation of farmed animals with the explicit purpose of conserving farmed animal welfare. In particular, the law limits the time animals can spend confined in a vehicle without being unloaded for food, water, and rest to a maximum of 36 hours, except for in unavoidable circumstances which make the unloading of animals impossible. When animals are unloaded, the Twenty-Eight Hour Law requires that animals be moved “in a humane way” into pens prepared for food, water, and rest and remain there for at least five hours.29 To implement the law, United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) personnel at slaughterhouses examine some arriving animal shipments for exhaustion or dehydration, as indicated in FSIS Directive 6900.2. If animals appear unhealthy, the FSIS personnel ask the slaughter establishment manager whether the truck driver complied with the Twenty-Eight Hour Law. If there appears to have been a violation, the FSIS personnel contacts the Animal and Plant Health Inspection Service (APHIS), which would open an investigation. APHIS Veterinary

29 49 U.S.C. §80502 (2011).

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Services also examines the logs of truck drivers for compliance with the TwentyEight Hour Law when animals are transported over national borders.30

Yet, even after its contemporary amendments, the Twenty-Eight Hour Law fails to meaningfully ensure humane transport of animals. The most significant concern associated with the law is its lack of implementation. For one, relatively few farmed animal shipments are monitored for violation of the Twenty-Eight Hour Law. While only animal shipments transported interstate to slaughterhouses or over national borders are monitored for possible violations, in 2017, at least 32% of pigs and 40% of cattle were transported interstate for feeding or breeding purposes. Because these animals do not arrive at slaughterhouses, they are not examined by FSIS personnel.31 The existing monitoring is also inadequate in ensuring the enforcement of the law. There is no standardized inspection specifically for the Twenty-Eight Hour Law, nor is there standardized paperwork tracking the conditions in which animals are kept. These shortcomings have culminated in minimal enforcement of the law overall: the last enforcement action on its behalf was taken in 1960.32 Furthermore, even if the law were to be enforced and violators convicted, the maximum penalty for a willful violation is only $500.33

Based on veterinary standards for preserving animal welfare in transport, the guidelines established by the Twenty-Eight Hour Law are inadequate for preserving humane treatment of farmed animals in transport. Veterinarians Andrea Gavinelli, Maria Ferrara, and Denis Simonian, for instance, advocate for standards that incorporate the monitoring and regulation of physiological welfare indicators in animals. They also recommend the training of animal handlers to identify and mitigate animal welfare concerns.34 However, the Twenty-Eight Hour Law excludes chickens and lacks actionable restrictions on

30 Animals in Transport Languish as Twenty-Eight Hour Law Goes off the Rails, 25 ANIMAL. 1 (2018). 31 Id. 32 David N. Cassuto, Environment, Ethics, and the Factory Farm, 54 S. TEX. L. REV. 579 (2013). 33 49 U.S.C. §80502 (2011). 34 Andrea Gavinelli et al., Formulating Policies for the Welfare of Animals During Long Distance Transportation, 44 VETERINARIA ITALIANA 71 (2008).

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temperature, space for bedding, or clearance of waste; rather, it favors broad regulations discussing “humane” treatment, without clearly defining how animals can be treated humanely. The lack of clear restrictions hinders animal welfare: a 2012 study found that animals transported in temperatures below −15°C or above 30°C, or in small space allowances (conditions which might be considered “humane” under the current legislation) were significantly more likely to die or become non-ambulatory.35 In addition, interviews of truck drivers indicate that some drivers do not understand or consider the regulations imposed by the Twenty-Eight Hour Law when transporting animals.36 As a result, the Twenty-Eight Hour Law is unsuccessful in ensuring farmed animal welfare in transport due to both its minimal enforcement and inadequate terms. 2. The Humane Methods of Slaughter Act

The Humane Methods of Slaughter Act (HMSA), passed initially in 1958, requires that animals held for slaughter are treated in a humane way and restricts potential methods of slaughter to those which are explicitly considered “humane.” Humane methods are further defined as methods in which “animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut.” There is also an exception for slaughter conducted in accordance with religious requirements, called ritual slaughter, as long as “the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument and handling in connection with such slaughtering.”37 In 9 C.F.R. parts 31338 and 500,39 FSIS issues specific guidelines for the handling of animals held for slaughter related to the maintenance of their living space, unloading and movement, and the process of slaughter. Like the Twenty-Eight

35 Luciano Adrian Gonzalez et al., Relationships Between Transport Conditions and Welfare Outcomes During Commercial Long Haul Transport of Cattle in North America, 90 J. ANIMAL SCI. 5 (2012) 36 Farmed Animals in Transport: An Analysis of the Twenty-Eight Hour Law and Recommendations for Greater Animal Welfare, MICH. ST. L. REV. 13 (2016). 37 7 U.S.C. §1907 (1958). 38 9 C.F.R.§313 (1988). 39 9 C.F.R.§500 (1999).

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Hour Law, implementation of HMSA is outlined in FSIS Directive 6900.2, which requires the oversight of slaughterhouses by FSIS personnel at all times for antemortem and postmortem inspection of animals to ensure that they are treated humanely and fit for human consumption.40

Numerous reports and investigations documenting rampant violations of standards established in the law have found enforcement of HMSA insufficient to effectively promote the welfare of slaughtered animals. The U.S. Government Accountability Office (GAO) and the USDA’s Office of the Inspector General have each repeatedly determined that HMSA is underenforced: for instance, in a review of 158 Noncompliance Records, OIG found 10 egregious violations, such as a pig being boiled alive, which, despite being grounds for slaughterhouse suspension, did not result in an actual suspension.41 Independent investigators have found other similar issues with lack of enforcement. For example, although HMSA prohibits both the slaughter of non-ambulatory livestock for human consumption and the abuse of any animals intended to be slaughtered, FSIS found that a slaughterhouse in California did not accurately report on the ambulatory status of its cattle after they were inspected in 2008. Their report prompted the Humane Society of the United States (HSUS) to investigate the treatment of non-ambulatory cattle in slaughterhouses and ultimately collect evidence of inhumane handling of nonambulatory cattle before slaughter in four other states.42

While FSIS expanded guidance on egregious violations after this instance, the most recent GAO reports continue to find inconsistent HMSA enforcement. This is due to a lack of clarity in defining what makes a violation egregious and minimal training for personnel on when a violation should be reported. One survey of FSIS inspectors found that, when presented with a case of electrical prodding, 23% of inspectors indicated there should not be action, 22% indicated there should be a Noncompliance Report, 40% indicated that there should be

40 Humane Methods of Slaughter Act, 7 U.S.C. §§ 1901 (1978). 41 Bruce Friedrich, When Regulators Refuse to Regulate: Pervasive USDA Underenforcement of the Humane Slaughter Act, 104 GEO. L.J. 197 (2015). 42 7 U.S.C. §§ 1901 (1978).

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regulatory control action, and 9% indicated that the plant should be suspended.43 This broad distribution of responses indicates a lack of clarity in what constitutes a HMSA violation, which likely contributes to the underenforcement of the law, even in the case of egregious violations, and has created a culture wherein the violation of HMSA is relatively common.

In addition, the existing regulations and directives dictating the enforcement of HMSA entirely exclude the portion of the act which requires an animal to be rendered unconscious before being ritually slaughtered, creating a gap in oversight for ritual slaughter known as the “ritual bubble.” As a result, there is no oversight of ritual slaughter, and FSIS even released a guidebook indicating that inspectors are not permitted to intervene in ritual slaughter practices even when the welfare of livestock is compromised.44 In 2004, People for the Ethical Treatment of Animals (PETA) released documentation that AgriProcess Inc., one of the largest Kosher slaughterhouses in the United States, violated the HMSA requirement of unconscious slaughter by ripping out the larynx and trachea of cattle while they were still conscious. However, USDA inspectors at the plant did not cite it for the violations, nor did the United States Attorney for the District of Northern Iowa find that these were evidence of HMSA violations, because HMSA does not contain enforcement clauses for ritual slaughterhouses. This has led to continued records of farmed animal abuses in ritual slaughterhouses which are not litigated as recently as 2017.45 In this way, the “ritual bubble” is emblematic of the concerns associated with HMSA. Although HMSA establishes some meaningful guidelines towards the maintenance of the welfare of animals intended for slaughter, the extreme underenforcement of those guidelines, due to ambiguity, legislative

43 HUMANE METHODS OF SLAUGHTER ACT: Actions Are Needed to Strengthen Enforcement 2, United States Government Accountability Office (2010). 44 Bruce Friedrich, Ritual Slaughter, Federal Preemption, and Protection for Poultry: What Legislative History Tells Us about the USDA Enforcement of the Humane Slaughter Act, 24 ANIMAL L. 137 (2018). 45Axl Campos Kaminski, The Stunning Reality behind Halal Meat Production, 9 EARTH

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workarounds, and issues with oversight, has permitted animal welfare to be severely undermined in slaughterhouses. 3. The Organic Foods Production Act

Unlike the two aforementioned laws, the Organic Foods Production Act (OFPA) is not directly intended to ensure farmed animal welfare. Rather, it establishes uniform guidelines for the production of agricultural goods marketed as organic, including animal products, governed by the National Organic Services Board (NOSB). Yet, OFPA is still intimately connected to animal welfare. For one, consumers believe that there is a link between animal welfare and organic foods: one study found that perceived animal welfare standards are a significant influencing factor on consumers’ choice to purchase organic foods.46 Furthermore, the restrictions on animal farming and CAFOs, do have secondary effects on animal welfare through the regulation of the treatment of animals, particularly dairy and poultry animals which are entirely disregarded by HMSA and the Twenty-Eight Hour Law. More specifically, OFPA prohibits organic livestock from being fed plastic pellets, manure, or food containing urea. It also restricts the use of growth promoters, antibiotics, parasiticides, and medicine in the absence of illness and expands these guidelines to poultry and dairy livestock.47 NOSB has also addressed further animal welfare concerns: protections of livestock under OFPA were further expanded in 75 Fed. Reg. 7154, for example, which requires that organic slaughter livestock obtain at least 30% of their dry food from pasture grazing on average. This regulation was specifically intended to make access to pasture clauses of OFPA more enforceable through the establishment of more concrete guidelines.48

With the exception of these pasture clauses, however, the majority of rules established by OFPA pertaining to the treatment of farmed animals are, much like the Twenty-Eight Hour Law and HMSA, difficult to administer due to their broad nature. The regulations established by NOSB do not sufficiently protect farmed animal welfare: for example, they do not establish clear minimum space

46 Gemma C. Harper & Aikaterini Makatouni, Consumer Perception of Organic Food Production and Farm Animal Welfare, 104 BRIT. FOOD J. 287 (2002). 47 7 U.S.C. §6509 (1990). 48 75 C.F.R. § 7153 (2010).

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requirements for individual animals, they permit farmed animal welfare abuses such as the de-beaking of chickens and tail-docking of pigs, and they allow loopholes to limit some animals’ outdoor access.49 In this way, the human health-centric scope of OFPA limits the possibility of it being used to protect animal welfare.

In fact, OFPA is not permitted to directly address animal welfare concerns. The Organic Livestock and Poultry Practices (OLPP) regulation, which was published by NOSB in January 2017, was explicitly intended to clarify “how producers and handlers participating in the NOP must treat livestock and poultry to ensure their wellbeing” under OFPA. In particular, the law increased protections of organic livestock by establishing more detailed rules about the conditions in which organic livestock were required to live.50 However, the new regulations were never fully implemented: OLPP was withdrawn in May 2017, before it was scheduled to be fully implemented in March 2018, on the grounds that OFPA does not have the authority to address “stand-alone animal welfare concerns.”51 These limitations indicate the need for more animal welfarecentric legislation and legislative entities.

Furthermore, even if OFPA were highly successful in protecting farmed animal welfare, because it pertains only to certified organic livestock, it still only regulates an extremely small portion of farmed animals. The most common organic livestock specialty is dairy cows, but only 3% of dairy cows were certified organic in 2011. Similarly, organic layer hens, the most common organic poultry specialty, made up only 2% of all layer hens.52 Thus, while successful regulations on organic livestock such as 75 FR 1754 can serve as a model for enforcing welfare standards, they do not have a substantial impact on overall animal welfare because of their highly limited scope. 4. State-level Animal Welfare Laws

49 Aurora Paulsen, Welfare Improvements for Organic Animals: Closing Loopholes in the Regulation of Organic Animal Husbandry, 17 ANIMAL L.J. 337, 358 (2011). 50 75 C.F.R. § 7042 (2017). 51 83 C.F.R. § 10775 (2018). 52 Organic Production Documentation, USDA ECONOMIC RESEARCH SERVICE (2019), https://www.ers.usda.gov/data-products/organic-production/documentation/.

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Animal welfare laws establish standards for animal confinement with a main objective of improving industrially farmed animal welfare on a state level. They include a variety of strategies including regulating confinement practices, prohibiting particular actions that are damaging to farmed animals, banning the sale of products made under certain conditions which are harmful to farmed animal welfare, and other techniques. Sixteen states have implemented such animal welfare laws.53

California, for instance, has established two major animal welfare laws through use of ballot initiatives. In 2008, California voted to approve the Protection of Farm Animal Cruelty Act, which, in addition to the broad condemnation of the “cruel” treatment of animals, establishes an enforceable requirement for animal welfare.54 In 2018, California voters passed another ballot proposition, the Farm Animal Confinement Initiative, which served to expand the restrictions on industrial animal farming established in the Protection of Farm Animal Cruelty Act. The Farm Animal Confinement Initiative establishes concrete guidelines for the amount of floorspace required for egg-laying hens, breeding pigs, and cows raised for veal, and expresses a commitment to minimizing “cruel confinement of covered animals,” even when enforcement conflicts with other laws.55 Laws like these, which establish concrete guidelines and commit directly to the maintenance of humane animal treatment, facilitate the promotion of farmed animal welfare and, even more importantly, permit future growth of animal welfare movements. California’s commitment to return to farmed animal welfare regulations draws the issue into the spotlight.

There is still concern, however, about the enforcement of animal welfare laws by states; ultimately, state-level animal welfare laws experience similar

53 AWI Analysis Finds Weak Enforcement of State Farm Animal Welfare Laws, ANIMAL WELFARE INSTITUTE (2020), https://awionline.org/awi-quarterly/winter-2019/awi-analysis-finds-weakenforcement-state-farm-animal-welfare-laws. 54 California Proposition 2 – Standards for Confining Farm Animals Initiative Statute, MICHIGAN STATE UNIVERSITY ANIMAL CENTER (2008), https://www.animallaw.info/statute/cainitiatives-proposition-2-farm-cruelty. 55 Cal. Health & Safety Code § D. 20, Ch. 13.8.

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challenges to enforcement as broader, federal-level laws. Of the sixteen states that have established animal welfare laws, the Animal Welfare Institute (AWI) found that only nine had records publicly available or could provide such records of implementation when requested. This is especially the case for anticonfinement laws, of which AWI received record of enforcement for only one of the eighteen laws for which they requested evidence.56 Even when government agents are informed about potential violations, they rarely lead to convictions, as courts often find that the animal mistreatment may have been “necessary” for the farming process; when there is a conviction, many state laws establish minimal fines. In Rhode Island, for instance, the maximum fee for a violation of the state animal welfare law is $500.57

It is also important to note that establishment of animal confinement laws is often limited to states which have relatively low numbers of farmed animals in industrial farming operations or where industrial farming takes up a relatively small portion of the economy.58 While ballot-initiatives and animal welfare laws have been somewhat successful in states like California, Oregon, and Massachusetts, who also have less extensive protections of CAFOs via Rightto-Farm Statutes, state-level laws and ballot-initiatives are not as successful in other states, particularly those that are more economically dependent upon industrial factory farming. Iowa, for instance, implemented state-level requirements to require the availability of traditional, caged eggs at all grocery stores participating in federal programs.59 Furthermore, many successful ballotinitiatives are ineffective in improving overall animal welfare because they seem to drive CAFOs to states where animal welfare laws are less strict: for instance, while the number of CAFOs in California remained relatively stable, with only a 7% increase from 2011 to 2017, after the Protection of Farm Animal Cruelty

56 AWI Analysis Finds Weak Enforcement of State Farm Animal Welfare Laws, ANIMAL WELFARE INSTITUTE (Winter 2019), https://awionline.org/awi-quarterly/winter-2019/awi-analysis-findsweak-enforcement-state-farm-animal-welfare-laws. 57 Kelly Levenda, Science-Based Farmed Animal Welfare Laws for the U.S., 13 J. ANIMAL & NAT. RESOURCE L. 93 (2017). 58 Legal Protections for Animal on Farms, ANIMAL WELFARE INSTITUTE (Dec. 2019), https://awionline.org/sites/default/files/uploads/documents/19LegalProtectionsFarm.pdf. 59 I.C.A. § 135.16A.

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Act was passed, the number of CAFOs in Iowa increased from 1,648 to 3,588, or by nearly 120%.60 Thus, while successful state-level regulations can serve as a model for the progression of future federal regulation, farmed animal welfare is an issue that must be uniformly addressed federally, as in non-farmed animal welfare legislation, in order to ensure consistent guidelines for the production of products.

IV. Proposed Solutions

To address the present ineffectiveness of animal welfare legislation, the federal government must implement a cohesive policy plan which expands protections of animals, establishes more enforceable regulations, and creates a new agency which specifically addresses animal welfare concerns.

At the judicial level, it is vital that violators of the Twenty-Eight Hour Act, HMSA, and various other state-level animal welfare laws are charged and prosecuted. Similarly, ag-gag laws are not only harmful to animal welfare because they prevent the creation of concrete cases against CAFOs by preventing undercover investigation or creating reporting requirements, but also contradict the First Amendment. Following the precedent of PETA et al. v. Stein, which struck down a North Carolina ag-gag law for violating the First Amendment, these laws should be struck down in state court systems.61

Addressing the inadequate guidelines in present laws requires a multipronged approach. First, I propose that the federal government expand the AWA to include livestock and establish specific minimum guidelines for the treatment of farmed animals. Rather than using broad and unenforceable terms, laws should be created collaboratively with scientists and veterinarians with clear, empirical minimum guidelines for animal conditions, such as the amount of space provided to each animal in square feet, the quality of feed, the level of hygiene and cleanliness in animal pens, and the minimum and maximum

60 Christopher Walljasper, Large Animal Feeding Operations on the Rise, INVESTIGATE MIDWEST INVESTIGATE MIDWEST (2018), https://investigatemidwest.org/2018/06/07/large-animalfeeding-operations-on-the-rise/. 61 PETA, Inc. v. Stein, 122 N.E.3D 935 (Ind. App. 2019).

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temperatures. A study in the United Kingdom used a modified Delphi process which included two rounds of surveys and one workshop to solicit information about farm animal welfare issues from veterinarians and identified welfare concerns to guide policy, research, and education.62 The AWA should use a similar process to establish effective guidelines that enforce a persistent level of animal welfare and address all relevant aspects of animal treatment in CAFOs. A panel of veterinarians and other experts in the field should review the guidelines on a regular basis in order to ensure that they are up to date with new developments in the field.

New guidelines for the treatment of livestock should be drafted and implemented by a specific agency for animal welfare outside of FSIS. At present, farmed animals are treated more as commodities than as living creatures, which compromises animal welfare in favor of producing a valuable product. FSIS, which is primarily responsible for the enforcement of HMSA, explicitly prioritizes human outcomes, as it “protects the public's health by ensuring the safety of meat, poultry and egg products,” according to its website.63 As demonstrated by the aforementioned case studies, FSIS has been historically more likely to intervene in a case which involves human health and safety, such as concerns of contaminated meat sales in California, than in a case where animal welfare is compromised, like that of a ritual slaughterhouse. The new agency should be targeted to specifically manage farmed animal welfare, in particular, to prioritize farmed animal welfare as its primary concern.

This new agency should establish uniform standards for tracking animal welfare to minimize state-level subjectivity and hold CAFOs more accountable. When the European Union, like the United States, encountered difficulties implementing farmed animal welfare guidelines, a European Union Special Report suggested cross-compliance audits incorporating cross-checking of

62 Fiona C. Rioja-Lang et al., Prioritization of Farm Animal Welfare Issues Using Expert Consensus,

6 FRONTIERS IN VETERINARY SCIENCE (2020). 63 About FSIS, FOOD SAFETY AND INSPECTION SERVICE, https://www.fsis.usda.gov/about-fsis (accessed May 9, 2021).

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animal welfare measures in multiple databases to improve enforcement.64 Based on this standard, the United States should also reinforce records and monitoring mechanisms. The animal welfare agency should standardize welfare paperwork for CAFOs and establish a database which stores all evaluations to prevent interstate variation from affecting enforcement of laws. Owners of CAFOs should also be required to establish clear checkpoints in the farming operations where personnel perform thorough examinations of animals and their conditions in order to open for businesses. Monitoring should include third-party audits by organizations like HSUS and PETA, which have historically noted many concerns about animal welfare overlooked by FSIS and APHIS through their independent investigations. The agency should work with these external organizations in order to cross-check evaluations, document violations, and ensure that CAFOs are following guidelines.

Furthermore, new federal regulations should have more specific fines and punishments which can be scaled to the severity of the crime. Existing federal regulations such as the Twenty-Eight Hour Law have relatively low maximum fines, which incentivizes companies to prioritize profit-making rather than lawabiding. Therefore, minimum and maximum base fines should account for the range in severity of farmed animal welfare violations, and offense level and culpability should play a higher role in the determination of fines, as they are for quantifiable pecuniary offenses.65 Fines should be high enough that companies cannot afford the fines associated with animal welfare laws as collateral damage and are instead forced to comply with the welfare guidelines established in the laws.

However, implementing these policies requires the owners of CAFOs to shoulder the economic responsibility of addressing animal welfare concerns. To mitigate the burden on CAFO owners, I propose that the legislation includes a clause providing debt relief to farmers transitioning CAFOs, modelled on

64 EUROPEAN COURT OF AUDITORS, ANIMAL WELFARE IN THE EU: CLOSING THE GAP BETWEEN AMBITIOUS GOALS AND PRACTICAL IMPLEMENTATION 64 (2018), https://www.eca.europa.eu/Lists/ECADocuments/SR18_31/SR_ANIMAL_WELFARE_EN. pdf. 65 USSG § 8C2.1-8C2.10 (2013).

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Section 103 of the Farm System Reform Act of 2019. This section proposed the establishment of a voluntary debt forgiveness and transition assistance program for entities transitioning AFOs to other ventures.66 This clause would minimize the economic harm associated with the establishment of stricter animal welfare guidelines in CAFOs.

Conclusion

Although scientists and federal law both identify a need to ensure animal welfare in the farming process, at present, poor treatment of animals is rampant in industrial animal farming operations. Farmed animal welfare legislation is overall unsuccessful in promoting animal welfare despite minor improvements.

The failures of existing laws, both at the state and federal levels, can largely be attributed to inadequate standards and lack of enforcement. For one, farmed animal welfare laws, particularly at the federal level, are too limited in scope to significantly affect animal welfare. Second, the unclear standards, minimal oversight, and limited consequences established by farmed animal welfare laws at present make the laws extremely difficult to enforce. This has created a culture in the concentrated animal farming industry wherein violations are fairly common. Furthermore, some state-level laws, such as ag-gag laws and Right-toFarm statues, directly contradict the objective of improving farmed animal welfare by restricting accountability measures for CAFOs.

Considering these concerns, it is vital that the federal government establishes more adequate and enforceable standards for CAFOs. While the implementation of new standards in CAFOs would not constitute the complete assurance of animal welfare, they would improve conditions within the existing economic system.

Overall, the United States must take a more welfare-centric approach to legislating animal farming. The most effective way to implement this would be to create a unique agency, which works with a variety of stakeholders including farmers, animal welfare experts, and third-party accountability organizations, to establish and implement farmed animal welfare standards. Animal welfare experts’ involvement in the writing of new laws would ensure that the laws

66 Farm System Reform Act of 2019, S. 3221, 116th Cong. §103 (2019).

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establish sufficient standards for improving animal welfare. Furthermore, creating a more consistent and robust framework for monitoring and penalizing animal welfare violations at CAFOs would ensure the enforcement of these standards.

It is an unfortunate reality that standard industrial animal farming practices neglect animal welfare. In an undercover investigation of one farm which supplies chicken for Costco, for instance, Mercy for Animals found that chickens are bred to grow so large, so fast, that they are often unable to stand up or support their own weight. As a result, many suffer chemical burns from spending so much time sitting in their own waste. Others die from organ failure due to their disproportionate builds.67 Yet, Costco general counsel called these practices “normal and uneventful activity” in an interview with the New York Times.68 With conditions like these common in CAFOs, it is vital that the federal government establish more comprehensive and enforceable welfare standards for farmed animals to improve their treatment.

67 COSTCO EXPOSED, https://costcoexposed.com/ (last visited May 9, 2021). 68 Nicholas Kristof, The Ugly Secrets Behind the Costco Chicken, N.Y. TIMES, Feb. 6, 2021, https://www.nytimes.com/2021/02/06/opinion/sunday/costco-chicken-animal-welfare.html.

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Camille Schaefer

Juveniles and California’s Three Strikes Law: Erosion of the Right to a Jury Trial*

ABSTRACT. The right to a jury trial is one of the most significant and foundational rights in the American judicial system. It functions as the primary, tangible difference between juvenile and adult proceedings; the former does not permit jury trials. While this distinction exists to uphold the rehabilitative and informal approach taken to handling juvenile adjudications, certain existing sentencing law schemes defeat the purpose of the lack of a jury trial. California’s Three Strikes Law is a prominent example of this today: this sentencing law acknowledges certain juvenile adjudications as “strikes” and allows for their use to increase the sentences of future double or triple offenders severely. This improperly shifts the role of the jury onto the judge. In this article, I will analyze the existing precedent that sets apart juvenile and adult proceedings and punishments. I will also detail how both state and federal courts have interpreted and decided the necessity of the jury trial when enhancing sentences for felons. In doing so, I will argue against the inclusion of juveniles in California’s Three Strikes Law as it functions contrary to precedent and raises significant and dangerous concerns about the jury trial’s role in all judicial proceedings.

* This article was written prior to the United States Supreme Court ruling in Jones v. Mississippi on Thursday, April 22, 2021, which held that Miller v. Alabama and Montgomery v. Louisiana do not require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing a youth defendant to life without parole.

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Introduction

Currently, the United States population makes up less than 4.25% of the world’s total population,1 yet contains more than 20% of the world’s incarcerated population.2 This disproportionate incarceration rate signifies a need for long-term reform in the nation’s criminal justice system, at both the state and federal levels. While the state of California is known for its progressive approach to public policy, it simultaneously functions under an inordinately strict sentencing enhancement scheme. This poses a stark barrier to achieving a more equitable justice system, particularly with regard to juveniles. Fortunately, the relevance of criminal justice reform and sentencing law is present in the minds of California following George Gascon’s 2020 election as Los Angeles County’s District Attorney and the passage of Ballot Proposition 17 which restored the ability for felons to vote while on parole.3 Aligning with this push for change, now is an optimal time to review and reform the state’s sentence enhancement statutes and their implications.

As it stands today, the American criminal justice system incarcerates almost 2.3 million people, a 500% increase over the last 40 years.4 These staggering numbers can largely be attributed to the war on drugs and the tough-on-crime era that started in the 1970s.5 Incarceration rates grew fastest during the Reagan administration in the 1980s and through the early 1990s, as evidenced by the passage of the 1994 Violent Crime Control and Law Enforcement Act which further funded state policies that increased prison populations.6 In 1993, the nation’s first Three Strikes Law (TSL) passed in Washington, heightening the

1 Countries in the World by Population (2021), WORLDOMETER, https://www.worldometers.info/world-population/population-by-country/ (last visited Feb. 2, 2021). 2 Wendy Sawyer & Peter Wagner, Mass Incarnation: The Whole Pie 2020, PRISON POLICY INITIATIVE (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html. 3 California Proposition 17, Voting Rights Restoration for Persons on Parole Amendment (2020), BALLOTPEDIA (February 2, 2021), https://lao.ca.gov/BallotAnalysis/Proposition?number=17&year=2020 4 Sawyer & Wagner, supra note 2. 5 James Cullen, The History of Mass Incarceration, BRENNAN CENTER FOR JUSTICE (July 20, 2018), https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration. 6 Id.

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sentence lengths of repeat offenders in an effort to deter further crime.7 In the years following, almost three dozen other states adopted TSLs of their own.

California passed its TSL in 1994 amidst a movement for decarcerating and minimizing prison populations. A series of federal class-action lawsuits against Governor Jerry Brown of California during the 1990s and early 2000s, which culminated in Brown v. Plata, functioned as the catalyst for this movement. Their rulings ultimately deemed California’s overpopulated prisons a violation of the Eighth Amendment’s cruel and unusual punishment clause in 2011.8 Following Brown, California began a hurried attempt to reduce prison populations through measures including the Public Safety Realignment Plan of 2012,9 2011 Assembly Bill 109,10 and 2011 Assembly Bill 117.11 While these three bills were passed to decrease incarceration rates and corrections costs, the TSL worked counter to this, by solely functioning to increase the sentence lengths of the incarcerated and grow incarceration rates. The contradictory existence of these approaches in California’s criminal justice system led California to grow and maintain an incarceration rate that is more than double that of countries like Canada, the United Kingdom, and France: 581 per 100,000.12

As it stands currently, California’s TSL, enumerated in California Penal Code 667, increases sentence lengths for individuals 16 years of age and older in the instance that they commit more than one serious or violent felony. This makes California’s TSL significantly more punitive than the 29 other states in the U.S. that have active TSLs. While California extends the TSL’s sentence-

7 R. David Lacourse, Jr, Three Strikes, You’re Out: A Review, WASHINGTON POLICY CENTER, (Jan. 1, 1997), https://www.washingtonpolicy.org/publications/detail/three-strikes-youre-outa-review. 8 Brown v. Plata, 563 U.S. 493 (2010) (Kennedy, A. affirming). 9 Magnus Lofstrom &, Brandon Martin, Public Safety Realignment: Impacts So Far. PUBLIC POLICY INSTITUTE OF CALIFORNIA (Sept., 2015), https://www.ppic.org/publication/publicsafety-realignment-impacts-so-far/. 10Lauren Salins & Shepard Simpson, Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic, 44 LOY. UNIVERSITY CHI. L.J. 1153, 1172 (2013), https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1491&context=luclj. 11 Id. 12 California Profile, PRISON POLICY INITIATIVE (Feb. 2, 2021), https://www.prisonpolicy.org/ profiles/CA.html.

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enhancing abilities to juveniles, all other states refine their TSLs to only pertain to adults 18 years and older.13

California’s inclusion of juveniles as possible strike offenders in its TSL is deeply problematic as it undermines case precedent, refutes the legal distinctions between juveniles and adults in the criminal justice system, and imposes daunting questions of viability upon the role of the jury in America’s judicial process. In Parts I, II, and III of this article, the established distinctions between juveniles and adults in the criminal justice system will be detailed to argue how the consideration of juvenile adjudications as “prior convictions” and “strikes” under California Penal Code 667(d)(3) is contradictory to the basis for the distinction.14 These Parts will highlight the significance of differences in language used in such proceedings, for example, the consideration of juvenile adjudications as “adjudications” and not criminal convictions, as well as the enumerated differences that are detailed in McKeiver v. Pennsylvania. 15 Part IV will analyze the existing Supreme Court precedent regarding the enhancement of sentences past their statutory maximums. Part V will focus on the distinctions in punishment that have expanded over the last two decades: juveniles are now restricted from receiving the death penalty and mandatory life without parole (LWOP) in juvenile court, regardless of the crime. Part VI will argue that the psychological bases for these heightened distinctions contradict their use for enhancing sentences per the TSL. The unique psychological differences of youth further counter the deterring-intention of the TSL as predicting future criminality of youth has shown to be unreliable. Part VII will emphasize not only the legal precedent that the TSL’s inclusion of juveniles invalidates but also the legislative precedent. Finally, in Part VIII, I will argue that the questions raised by the California TSL’s inclusion of juveniles pose significant and avoidable doubts upon the necessity and vitality of one of

13 Jennifer Corbett, Three Strikes Law in Different States: 3 Strikes Law Facts, LEGAL MATCH, https://www.legalmatch.com/law-library/article/three-strikes-laws-in-different-states.html. 14 Cal. Penal Code § 667 (Cal. Legislative Information, 1982), https://leginfo.legislature.ca.gov/ faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=667. 15 McKeiver v. Pa., 403. U.S. 528 (1971).

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America’s hallmark symbols of justice: the jury. Thus, the inclusion of juveniles in the TSL must cease.

I. California’s Three Strikes Law

California first passed its TSL in 1994 to stifle growing crime rates and deter recidivism. Proponents of the bill argued in favor of strengthening sentences of repeat felons in order to shut the “revolving door” phenomenon seen in the short sentences and early paroles of serious and violent offenders.16 Following the lead of Washington, California added section §667 to its penal code, officially codifying the TSL into law.

The crime’s statutory maximum is the maximum sentence length for a crime that a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant.17 Under §667, a current felony offense’s statutory maximum can be enhanced if the offense meets two prongs: (1) the current offense is considered a “serious” felony under §1192.7(c) or a “violent” felony under §667.5(c) and (2) if the offender has committed one or more serious or violent felonies before.18 Per §667(e)(1), if the offender has committed one serious or violent felony before, the sentence length of the current felony must be doubled. Per §667(e)(2)(a), if the offender has committed two serious or violent felonies before, the sentence length of the current felony must be increased to 25 years to life. The TSL also includes sentence-enhancing provisions depending on any aggravating factors or sexual crimes regardless of prior offenses under §667.61.

Shortly after its implementation into the state’s penal code, the TSL faced numerous challenges at each level of the judicial system. Most notable of these challenges was the argument that the TSL’s extremely punitive approach bordered on violating the Eighth Amendment’s cruel and unusual punishment

16 Robert Clinton Peck, Ewing v. California: Upholding California’s Three Strikes Law, 32 PEPP. L. REV. 191, 192-194 (2005), https://digitalcommons.pepperdine.edu/plr/vol32/iss1/5/. 17 Blakely v. Wash., 542 U.S. 296 (2004). 18 Cal. Penal Code § 667.

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clause. This argument made its way to the Supreme Court of the United States in Ewing v. California in 2002.19 Justice Sandra Day O’Connor, writing for the majority in the 5-4 decision, upheld the statute as constitutional under the Eighth Amendment and cited it as a “rational legislative judgment” that “is justified by the State's public-safety interest in incapacitating and deterring recidivist felons,” and therefore not in violation of the Eighth Amendment.20 Though Ewing allowed the TSL to continue unhindered, it did acknowledge that all punishment schemes are still subject to the proportionality review of the Court, and therefore, not inherently constitutional.

Ten years following Ewing, California’s TSL underwent a significant revision after the passage of Ballot Proposition 36. Before 2012, the TSL only required the third felony to be serious or violent. Following Prop. 36’s passage, the revised statute required all three felonies to be serious and/or violent in order for the 25-years-to-life sentence to be imposed.21 This revision allowed those already serving TSL-enhanced sentences to seek dismissal of the remainder of their sentences in the instance that their convictions were neither serious nor violent. While this revised version of the TSL resolved additional arguments about potential contradictions to the Eighth Amendment, the statute has persisted as problematic in the courts due to its inclusion of non-jury juvenile adjudications as strikes.

II. Juvenile v. Adult Distinctions in Constitutional Rights: McKeiver

The American criminal justice system is a misnomer. Rather than providing all American citizens and residents identical procedure and due process, the system diverges into two nearly inverse forms, each dependent on the age of the individual. When it comes to constitutionally-enumerated rights and protections in legal proceedings, juveniles receive virtually all of the same 5th,

19 Ewing v. Ca., 538 U.S. 11 (2003). 20 Peck, supra note 16. 21 Steve Cooley & Lael R. Rubin, Proposition 36: A Brief History, 25 FED. SENTENCING REPORTER 263 (2013), https://heinonline.org/HOL/Page?public=true&handle=hein.journals/fedse n25&div=57&start_page=263&collection=journals&set_as_cursor=5&men_tab=srchresults.

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6th, 7th, and 14th Amendment rights as adults: protection from selfincrimination, protection from double jeopardy, the rights to call and crossexamine witnesses, the right to know the charges against them, and the right to counsel.22 Juveniles are also afforded the same burden of proof beyond a reasonable doubt in their proceedings for sentencing and incarceration. The distinguishing right between juvenile and adult proceedings is the right to a jury trial: all juvenile adjudications occur via a bench trial with a singular judge unless the juvenile is tried as an adult. The lack of a jury trial is the primary legal distinction by which I argue the inclusion of juveniles in California’s TSL is unfair.

The United States Supreme Court case McKeiver v. Pennsylvania most clearly detailed the reasons for the distinctions between juveniles and adults in judicial proceedings. McKeiver determined that juvenile proceedings are intended to be more informal, more rehabilitative, and less punitive than adult proceedings—as evidenced by naming juvenile proceedings and decisions “adjudications” as opposed to “convictions.”23 As a result of this more relaxed environment, the Court in McKeiver cited evidence that juveniles are more inclined to confess to crimes and accept plea deals in order to settle their cases in comparison to adults.24

Noting these intended differences, McKeiver argued that the use of juries would jeopardize the efficacy of juvenile adjudications.25 Outside of legal contexts, juveniles are afforded substantially higher standards of privacy in comparison to adults. Juvenile records are often sealed and confidential, requiring prosecutors to obtain court orders in order to gain access.26 With this

22 McKeiver v. Pa., 403 U.S. 528 (1971). 23 Id. 24 Cynthia J. Najdowski et al, Jurors’ Perceptions of Juvenile Defendants: The Influence of Intellectual Disability, Abuse History, and Confession Evidence, 3 Bᴇʜᴀᴠɪᴏʀᴀʟ Sᴄɪᴇɴᴄᴇs & ᴛʜᴇ Lᴀᴡ 402 (2009), https://onlinelibrary.wiley.com/doi/abs/10.1002/bsl.873?casa_token=lVtoHuAyTIAAAAA:a8avvE4ROiydIWJXAmQThpiNJYlyD5dpzESHQRvFsx41w8meWmmJ2_9S8n4ERCc-9zgSgoqFpi7bQ. 25 People v. Nguyen, 46 Cal 4th 1007 (2009). 26 Mary Curtius & Dan Morain, Juvenile Felonies Can Count Toward 3 Strikes, Lᴏs Aɴɢᴇʟᴇs Tɪᴍᴇs (July 4, 1997), https://www.latimes.com/archives/la-xpm-1997-jul-04-mn-9670story.html.

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in mind, McKeiver found that jury trials may potentially undermine the confidentiality of juvenile judicial proceedings by exposing a minor’s private information to a group of a dozen individuals. The McKeiver court then analyzed the importance of a jury trial in fact-finding, ultimately deciding that the presence of a jury is not an essential component of it. Therefore, the Court argued, the exclusion of juries in juvenile adjudications did not violate the Fifth Amendment’s due process clause nor the credibility of the juvenile adjudication.

Though there is no dispositive test by which a conviction is deemed fair and credible, the right to a jury trial is so foundational and characteristic to the integrity of legal proceedings that its absence, taken in combination with a sentencing scheme (like the TSL) that produces harsher sentences, is conducive to the maintenance of an overly punitive justice system. Including juvenile strikes in the TSL impugns the “fundamental triumvirate of procedural protections” of fair notice, proof beyond a reasonable doubt, and the right to a jury trial.27 Aligned with Supreme Court Justice Antonin Scalia’s concurring opinion in Jones v. United States (1999), juvenile adjudications should not be considered strikes under California’s TSL as it is “unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant is exposed.”28 It is thereby improper for a juvenile offense to be considered towards a scheme that lengthens punishment as it was ruled upon by a judge and not a jury.

III. How California’s TSL Distinguishes Between Juveniles and Adults

The original text of the 1994 TSL was vague as to whether or not juvenile adjudications could be considered strikes. While it did ensure the inclusion of juvenile strikes if the juvenile was tried as an adult via a jury trial,29 the text did

27 Jones v. U.S 526, U.S 227, (1999). 28 Id. 29 The Three Strikes and You’re Out Law, Lᴇɢɪsʟᴀᴛɪᴠᴇ Aɴᴀʟʏsᴛ’s Oғғɪᴄᴇ (1995), https://lao.ca.gov/analysis_1995/3strikes.html.

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not distinguish whether or not juveniles tried as juveniles via a bench trial could commit strike offenses.30 In 1997, the California Supreme Court clarified this ambiguity in People vs. Davis, 31 by explicitly applying the statute to 16- and 17year olds with cases handled in juvenile court.32 This 4-3 decision secured the use of serious or violent felony juvenile adjudications as strikes under the TSL regardless of the court in which the adjudication was dealt with: adult or juvenile, or the body that made the decision: judge or jury. The capability of felons to receive enhanced sentences due to prior non-jury, juvenile adjudications is the precise constitutional dilemma that the Supreme Courts of both the United States and California have argued over the last fifty years.

IV. Apprendito Today: The Court’s View of Non-Jury Sentencing Enhancements

One of the most far-reaching precedents regarding the issue of whether juvenile felonies can be counted as strikes is the United States Supreme Court case Apprendi v. New Jersey (2000). The question in Apprendi was whether the Due Process Clause of the Fourteenth Amendment required any fact to be presented to a jury if it could be used to increase the punishment for the crime. Justice John Paul Stevens, writing for the majority, argued that any fact, other than the fact of a prior conviction, must be proven to a jury beyond a reasonable doubt. Essentially, Apprendi deemed the use of juvenile strikes to enhance sentences not an issue as the juvenile strike fell under the “prior conviction” category. In ruling this, the Court opened the door for states, like California, to include juvenile, non-jury adjudications as strikes under the TSL. However, Justice Stevens’ further argument in the Apprendi decision sparks doubt in California’s inclusion of juvenile strikes. While he argues in favor of exempting prior convictions from being proven to a jury, he also argues that any variance from presenting enhancing factors to a jury would be an “unacceptable

30 Daniel Weintraub, ‘3 strikes’ law goes into effect, Lᴏs Aɴɢᴇʟᴇs Tɪᴍᴇs (Mar. 8, 1994), https://www.latimes.com/archives/la-xpm-1994-03-08-la-me-threestrikes-wilson-samueltimeline-story.html. 31 People v. Davis, Cal 4th 938, P.2, (1997). 32 Curtius & Morain, supra note 26.

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departure” from the Sixth Amendment right to a jury trial. Justice Stevens goes so far as to define the jury trial right as an “indispensable part” of the American judicial system, thus reaffirming the jury trial as one of the requisite procedural safeguards between person and government.33

In U.S. v. Tighe (2001), a divided panel of the Ninth Circuit Court of Appeals ran the arguments of Apprendi in the opposite direction.34 It held that that a juvenile adjudication is not a prior conviction per Apprendi’s rule and therefore ought to be treated like other sentence-enhancing facts per Apprendi if used to enhance sentences. It must be proven beyond a reasonable doubt to a jury. The Tighe majority determined that exceptions for prior convictions were narrowed to prior convictions from proceedings, which “afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt,” thus supporting the exclusion of juvenile, non-jury strikes from the TSL.35

The constitutionality of the absence of a jury trial in proceedings, juvenile or adult, was most recently argued in California’s Supreme Court in People v. Nguyen in 2009.36 The Nguyen court held in part that the Fifth, Sixth, and Fourteenth Amendments did not preclude the use of a prior, valid juvenile adjudication to enhance the sentence of an adult felon per the TSL even if the adjudication did not include a jury trial. I argue that despite this decision, existing precedent from the U.S. Supreme Court which distinguishes the punishment of juveniles from adults deems the inclusion of non-jury, juvenile strikes in California’s TSL unjust.

V. Juvenile v. Adult Distinctions in Punishment: Roper, Graham, Miller, and Caballero

In addition to the constitutional distinctions between juveniles and adults in judicial proceedings, a series of Supreme Court decisions from the early 2000s further emphasize the distinctions between juveniles and adults in punishment

33 Apprendi v. N.J., 530 U.S. 466, 120 (2000). 34 U.S v. Tighe, 266 F.3d 1187 (2001). 35 Id. 36 People v. Nguyen, 46 Cal. 4th 1007 (2009).

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or, as referred to in juvenile court, disposition. These decisions, as well as the application of them in California’s Supreme Court, make up the legal precedent by which California’s inclusion of juveniles in its TSL contradicts.

Roper v. Simmons was the first United States Supreme Court case in which the psychological differences between minors and adults were detailed,37 deeming death penalty sentences for minors unconstitutional per the Eighth Amendment’s cruel and unusual punishment clause.38 The rationale behind the Roper court’s decision came from the psychological and emotional variance identified in juveniles compared to adults. The Court’s majority asserted that the “transitory” personalities of youths demonstrate a heightened ability to reform. This ruling upheld the rehabilitative approach of juvenile adjudications as opposed to the punitive style of adult convictions. The Roper majority further reinforced the Court’s belief in the likelihood of rehabilitation in youths by asserting it was “less supportable to conclude that even a heinous crime committed by [the] juvenile is evidence of irretrievably depraved character.”39

Five years later, the Court echoed its Roper decision in Graham v. Florida which decided that life sentences without the chance of parole for non-homicide juvenile offenders were unconstitutional.40 Justice Anthony Kennedy, writing for the majority, based the Court’s opinion on the categorical analysis framework developed by Roper. This framework required the justices to consider not only constitutional precedent and historical conceptions, but also the evolving standards and morals of society at the time. Applying this framework to Graham, Justice Kennedy found that LWOP sentences for nonhomicide juvenile offenders were largely unsupported by the public and were deemed a violation of the Eighth Amendment’s cruel and unusual punishment clause. Chief Justice Roberts, in a concurring opinion, further recognized in Graham the distinction between juvenile and adult proceedings by asserting

37 Anna K. Christensen, Rehabilitating Juvenile Life Without Parole: An Analysis of Miller v. Alabama, Cᴀʟɪғᴏʀɴɪᴀ Lᴀᴡ Rᴇᴠɪᴇᴡ (Oct. 2014), https://www.californialawreview.org/rehab ilitating-juvenile-life-without-parole-an-analysis-of-miller-v-alabama/. 38 Roper v. Simmons, 543 U.S. 551 (2005). 39 Christensen, supra note 37, at 136. 40 Graham v. Fla., 560 U.S., 48 (2010).

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criminal procedure laws that do not consider the defendant’s youthfulness and age are flawed.

Shortly after, this decision was expanded to include homicide juvenile offenders in Miller v. Alabama, which strengthened the claim that the “transitory” and “environmentally vulnerable” mental state of minors was not crime-specific and enhanced the probability for the minor to reform.41 Miller, therefore, prohibited mandatory LWOP sentences for all juveniles, regardless of crime per the Eighth and Fourteenth Amendments.25 The Miller Court detailed its application of the Eighth Amendment as a right based on the tenet of justice that punishment for a crime should be proportional to both offender and offense, and that juveniles and adults are constitutionally different for sentencing purposes.

Roper, Graham, and Miller further distinguished between the natures of minors and adults by citing the diminished culpability of children, their lack of maturity, underdeveloped senses of responsibility, immature personalities, and vulnerability to negative influences.42 Due to these psychological and biological disparities in behavior and responsibility, the Roper, Graham, and Miller courts prevented some of the most serious, long-term punishment arrangements from being used on juveniles. As discussed in Miller, mandatory penalty schemes prevent consideration of factors like youth and age and therefore impugn the decisions made in Graham and Roper. Applying this same logic to the Three Strikes penalty scheme in California, the inclusion of juvenile adjudications as strikes fails to consider and fully ignores youthfulness and age as key factors at the time of sentencing. The Supreme Court of California has taken measures a step further than the U.S. Supreme Court, ruling in People v. Caballero that the Court’s categorical ban on LWOP sentences for juveniles under Miller and Graham extended to any juvenile sentences that are its “functional equivalent.”43 The

41 Id. 42 Eva Marie Loney, Incorrigibility Is Inconsistent with Youth”: Exclusion of Three Strikes Offenders Is Inconsistent with the Goal of the Youth Offender Parole Hearing, 23 UC Dᴀᴠɪs Jᴏᴜʀɴᴀʟ ᴏғ Jᴜᴠᴇɴɪʟᴇ Lᴀᴡ & Pᴏʟɪᴄʏ 193, 198 (2019).. 43 People v. Caballero, 282 P.3d 291 (2012).

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Caballero court highlighted the rehabilitative nature of youths and decided in favor of providing a “meaningful opportunity” for juveniles, or adults serving juvenile dispositions, to seek release based on demonstrated rehabilitation and maturity.

It is unjust to prevent serious punishments for these juveniles now, yet allow the use of the same felonies to enhance their sentences later. In accordance with Roper, Graham, Miller, and Caballero, California must remove juvenile adjudications from its TSL.

VI. The Inaccuracy of Predicting Criminality in Youth

Due to the biological and psychological differences between juveniles and adults and the increased likelihood of youths engaging in risky or criminal behavior, the correlation drawn between current juvenile criminal behavior and future adult criminal behavior is poor and unreliable.44 Ample psychobiological evidence has revealed the anatomical differences between the brains of adults and children that explain this unreliability. The frontal lobe governs the brain’s capacity to plan and organize thoughts and actions and is underdeveloped in adolescents. As a result, juveniles have a lessened ability to respond appropriately when experiencing strong emotions as well as when controlling impulsive behavior.45 In addition, the dorsolateral prefrontal cortex, a critical part of the brain for impulse control and the ability to weigh consequences, does not fully develop until an individual reaches their twenties. A child’s antisocial and risk-taking behavior peaks around the age of seventeen and declines steeply until he or she reaches age thirty. A large body of research shows that the propensity towards criminality follows this same trend: peaking in adolescence and decreasing as age increases, due to both the aforementioned factors as well as the environmental changes and pressures to conform to society’s expected roles for adults.46

44 Christensen, supra note 37. 45 Tony Cheng, When the Cure is Worse than the Disease, Cᴀʟɪғᴏʀɴɪᴀ Lᴀᴡ Rᴇᴠɪᴇᴡ (2020), https://www.californialawreview.org/when-cure-is-worse-than-disease/. 46 Jeffery T. Ulmer & Darrell Steffensmeier, The Age and Crime Relationship, Tʜᴇ Nᴜʀᴛᴜʀᴇ Vᴇʀsᴜs Bɪᴏsᴏᴄɪᴀʟ Dᴇʙᴀᴛᴇ ɪɴ Cʀɪᴍɪɴᴏʟᴏɢʏ: Oɴ ᴛʜᴇ Oʀɪɢɪɴs ᴏғ Cʀɪᴍɪɴᴀʟ Bᴇʜᴀᴠɪᴏʀ ᴀɴᴅ

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Predicting future criminal behavior based on juvenile conduct is also inaccurate insofar that it attributes future behavior to a misplaced cause. Rather than it being based on previous conduct, it is largely based on the punishment and treatment of juveniles after sentencing. Both the Graham and Miller courts stressed the difficulty in predicting whether present conduct can be used to predict future criminality. In analyzing whether this phenomenon is reliable or not, the majority of each court found that LWOP sentences and their surrounding impacts signaled to juveniles a removal from society and refusal to offer any chance of redemption.47 As a result, juveniles serving serious dispositions may become discouraged from developing any intrinsic motivation, identifying incentives to better themself, seeking penance for their crimes, or refraining from future unlawful conduct.48 Rather than finding evidence that showcases an increased likelihood to commit crime due to previous criminal behavior, the Court found that the length and severity of punishment were strong factors in instigating future criminal behavior. As a result, the majority of Justices on both the Miller and Graham courts ruled against a finding of incorrigibility of youths and concluded that mitigating factors, such as youth, must be taken into consideration at the time of sentencing.49

Extending the Courts’ arguments of misplaced causes of recidivism, longer dispositions have been found to actually increase recidivism as opposed to deter it,50 with studies finding that it is the exposure to the juvenile justice system that leads to future criminal behavior.51 Seeing as the original intention of California’s TSL was to deter criminals and cease recidivism, the inclusion of juveniles in its text is, thus, counterproductive. A 2018 study conducted by the Annie E. Casey Foundation determined that the recidivism rate for low-risk youth dropped 45% when youth were referred to diversionary programs rather

Cʀɪᴍɪɴᴀʟɪᴛʏ 378-79 (2014), https://www.sagepub.com/sites/default/files/upmbinaries/60294_Chapter_23.pdf. 47 Graham v. Fla., 560 U.S., 48 (2010). 48 Miller v. Ala., 429 U.S., 490 (2012). 49 Workman v. Commonwealth, 429 W.2d, 374 (1968). 50 Joan McCord et al., Juvenile Crime, Juvenile Justice, 154 (2001), https://www.nap.edu/read/9747/chapter/7. 51 Id. at 6.

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than being formally charged in juvenile court.52 Thus, it is the penalty for the offense, not the offense itself, which creates the propensity to criminality. In order to realign with the original intention of the statute to reduce crime rates and juveniles should therefore be excluded from the TSL. Quantifying these observations, studies conducted examining the unreliability of predicting criminality have determined false positives (predicting a juvenile will pursue criminal behavior in the future when in fact they do not) at a success rate of 87%.53 Thus, any potential deterrence achieved from including juvenile adjudications as strikes is substantially outweighed by the negative impacts of imposing harsher sentences on that individual.

It is contradictory, inconsistent, and fundamentally unfair to provide youths with fewer procedural safeguards in the name of rehabilitation, treat them differently in the punishment of their adjudications, and then use those same adjudications later to punish them more severely as adults.

VII. Legislative Contradictions to the TSL’s Inclusion of Juvenile Strikes

Not only does the TSL’s inclusion of juvenile strikes contradict legal precedent, but it also contradicts legislative precedent. California Senate Bill 260, passed in 2014, established a youth offender parole hearing process that caps the maximum amount of time juvenile offenders may be incarcerated before they are eligible for a parole hearing.54 This statute allows juvenile offenders the opportunity to seek parole and be reviewed by a parole board within twenty-five years of their offense.55 The characteristics of adolescents considered by the LWOP parole boards per S.B. 260 mirror those cited in McKeiver, Roper, Graham, and Miller: the diminished culpability of juveniles as

52 The Annie E. Casey Foundation, Transforming Juvenile Probation: A Vɪsɪᴏɴ ғᴏʀ Gᴇᴛᴛɪɴɢ ɪᴛ Rɪɢʜᴛ (2018), https://www.aecf.org/resources/transforming-juvenile-probation/. 53 APA Brief, supra note 56, at 22 (citing ROLF LOEBER & DAVID FARRINGTON, YOUNG HOMICIDE OFFENDERS AND VICTIMS: RISK FACTORS, PREDICTION, AND PREVENTION FROM CHILDHOOD 75 (2011)). 54 Loney, supra note 42, at 193. 55 Id.

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compared to that of adults, the hallmark features of youth, any subsequent growth, and increased maturity of the individual.56 Unique to the statute is the time frame in which the juvenile’s offense can be committed. Rather than only include offenses committed age eighteen or younger, S.B. 260 allows juvenile offenders to seek parole for offenses committed up until they are twenty-five years old. This statutory age range puts California in a contradictory gridlock: through S.B. 260, the judicial system allows increased rehabilitative opportunities for juvenile offenders, but through the TSL, it allows the same offenses to contribute to the imposition of harsher sentences on adult offenders later on.

VIII. Questions That Arise out of the TSL’s Inclusion of Juvenile Strikes

A. Can trying juveniles in adult court solve the problem of a missing jury?

In the instance that juveniles are tried in adult court via a jury trial, the aforementioned issue of the Sixth Amendment’s right to a jury trial is appeased as the jury trial is an automatic and established right in adult court. Following the passage of California Ballot Proposition 36 in 2012, this phenomenon increased as felonies considered strikes per California’s TSL largely crossed over with the catalog of felonies that allowed juveniles to be transferred to adult court. As a result, the frequency by which non-jury, juvenile adjudications were considered strikes lessened as more juvenile strike offenses were handled in front of juries in adult court.

However, within the last three years, efforts to restrict and even end the ability of juveniles to be tried as adults have prevailed. 2018 California Senate Bill No. 1391, 2016 Proposition 57, and the recent 2020 election of George Gascon as Los Angeles’s District Attorney have restricted this ability on a spectrum. While S.B. 1391 restricts the transfer of juveniles to adult court “if

56 SB-260, Youth Offender Parole Hearings, § [Section 4] (2013-2014) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140SB260.

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the defendant was not apprehended until after the juvenile court jurisdiction,”57 Los Angeles District Attorney Gascon has fully prohibited the use of sentencing enhancements in Los Angeles as well as the trying of juveniles as adults entirely.58 While this makes the issue of juvenile strikes no longer applicable in Los Angeles, in the remaining counties of California, any alleviation once offered by Prop. 36 has ended.

Although trying juveniles as adults for strike offenses does give them the opportunity to be tried in front of a jury, it is not a secure solution because such a transfer is an increasingly rare occurrence and does not account for the abundant differences in juvenile proceedings as detailed in McKeiver.

B. Does the TSL’s inclusion of juvenile strikes refute the importance of the jury?

Though deemed constitutional by McKeiver, the use of non-jury convictions to enhance sentences undermines the critical role that the Sixth Amendment right to a jury trial plays in due process. The Sixth Amendment right to a jury trial has faced a significant number of challenges since the mid-twentieth century. Courts have shifted from preserving significant discretion to the jury in accordance with the Founders’ intentions to rationalizing the lack of a jury trial in judicial proceedings as long as the burden of proof is met before a judge.

Apprendi, and its progeny, map out this wavering perspective on the right to a jury trial by referring to the jury trial right as a constitutional protection “of surpassing importance” that is also an indispensable part of the nation’s criminal justice system. Blakely v. Washington upheld Apprendi yet further strengthened the jury trial right by redefining it as a key “power in our constitutional structure” as intended by the Framers as opposed to a “procedural formality.”55 Just as the ability to vote upholds the peoples’ control over the legislative and executive branches, the jury trial upholds their control

57 Assembly Bill, No.1869, § [Section No. 1], Aᴘᴘᴇʟʟᴀᴛᴇ ᴅᴇғᴇɴᴅᴇʀs, http://www.adisandiego.com/news_alerts/recent_changes_statutes.asp. 58 James Queally, On First Day as L.A. County D.A., George Gascón eliminates bail, remakes sentencing rules, Lᴏs Aɴɢᴇʟᴇs Tɪᴍᴇs (2020), https://www.latimes.com/california/story/202012-07/in-first-day-on-job-gascon-remakes-bail-sentencing-rules.

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in the judiciary.59 Blakely ensured that judges were required by the Sixth Amendment to only rely upon facts proven to a jury and utilized in coming to a verdict before increasing a sentence beyond its statutory maximum.

As detailed in People v. Nguyen, a question of the Sixth Amendment’s right to a jury trial and its interaction with the Apprendi rule arises in the instance that a second striker waives their right to a jury trial for proving the existence of a juvenile non-jury strike during sentencing. In Nguyen, the defendant committed a second felony strike following a first juvenile strike and as a result, received a sentence that was double the statutory maximum. In the trying of the second strike, the defendant waived their right to a jury trial, ultimately causing both strikes to never be handled with a jury present. Since the right to a jury trial was offered in the proceedings of the second felony, Apprendi is not violated in Nguyen. However, the mere occurrence of an individual being sentenced to double the statutory maximum for a crime based solely on the existence of a prior felony, without ever being presented to a jury, raises serious questions about the importance of the jury trial right.

The viability and makeup of the jury have developed significantly over the last half-century. As detailed in Ballew v. Georgia, the size of the deciding body greatly impacts its fact-finding function: a jury of only five members was found to violate the Sixth and Fourteenth Amendments.60 Citing empirical studies, Ballew argued that the accuracy of juries of less than six members was significantly impaired. Smaller juries were characterized as having poorer group deliberation, stifled group memory of testimony details, and more subjectivity as a result of the prejudices of individual jurors not being counterbalanced by a larger group.61

Writing for the majority in Ballew, Justice Harry Blackmun further cited statistical evidence showcasing an increased risk of jury error as the size of the jury changed.62 Jury error, categorized either as Type I: convicting an innocent person, or Type II: failing to convict a guilty person, has been shown to be largely

59 Blakely v. Wash, 542 U.S. 296 (2004). 60 Ballew v. Ga., 435 U.S 223 (1978). 61 Id. 62 Id.

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impacted by the size of the jury. Type I error increases as jury size decreases, while Type II error increases as jury size increases. Seeing that these errors move inversely, a function of the two has been taken resulting in an optimal jury size that is at least six and no more than twelve. Regardless of the exact number of jurors, it is clear, thanks to Ballew, that the Sixth Amendment requires a moderately-sized panel of individuals to best ensure criminal and civil rights. In the majority opinion for Ring v. Arizona, Justice Ruth Bader Ginsburg wrote in favor of including juries in capital cases. Ginsburg argued that the inclusion of juries to increase a defendant’s sentence, yet not put the defendant to death, “senselessly diminished” the enumeration of the jury right in the Sixth Amendment.63

Withal, the inclusion of juvenile adjudications achieved via a bench trial of a singular judge counteracts the legal precedent and reasoning behind the function, size, and efficacy of the jury. It is by the same logic of Ring, Ballew, and Blakely by which the inclusion of non-jury juvenile adjudications in California’s TSL imposes serious doubts upon the jury’s role as both fact-finder and bulwark.

Conclusion

The jury trial right is so paramount to the foundation of the American justice system that it is defined and promised in two separate areas of the Constitution. Not only is it enumerated at an individual level for its protective power to the accused, but it also functions as a collective right, defined as a method by which a community can punish but also restore an offender back to their place in society. The jury functions as the most substantive difference between juvenile and adult judicial proceedings, emphasizing the significant and tactical divergence between the two. Key to this distinction is the purpose of juvenile proceedings protecting the privacy and adolescence of the juvenile. Since juvenile adjudications do not involve juries to fulfill this purpose, the consideration of these adjudications as “strikes” to exacerbate punishment

63 Ring v. Ariz., 536 U.S., 584 (2002).

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refutes the purpose of the jury as it moves the jury’s power to the judge. As the Court said in Jones: “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the court’s duty is to adopt the latter.” Removing juvenile strikes from California’s Three Strikes Law invites California to join the twenty-nine other states who tailor their Three Strikes Laws only to adults. In doing so, this fulfills the duty of the California courts to interpret and apply the statute in a way that such dire questions of the jury’s importance are avoided, existing legal and legislative precedent is recognized, and the basis for treating juveniles differently than adults in judicial proceedings is upheld.

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Daniella Efrat

Immigration Related Retaliation Facing Undocumented Low-Income Workers: A Review of Judicial & Statutory Protections

ABSTRACT. Wage theft, the illegal refusal by an employer to pay workers’ wages and benefits that they have earned, disproportionately impacts undocumented, immigrant workers. Undocumented workers encounter significant and unique obstacles when asserting wage claims, often having to balance whether they want to keep a low profile and avoid attracting attention from the authorities, or whether they should assert their legal rights and file a claim with a government agency. Arguably, the most significant barriers impeding undocumented immigrant workers’ ability to assert claims of labor violations is the threat of immigration related retaliation by their employer. This article reviews federal statutory provisions and judicial precedent addressing retaliatory actions by employers against undocumented workers asserting a wage claim. It finds that federal statutory law protects undocumented workers from employer’s retaliation when asserting wage claims, as it prohibits employers from reprisals when workers engage in protected workplace activity, regardless of the worker’s immigration status. Similarly, federal courts have broadly interpreted federal law to prohibit employers from engaging in immigration related retaliation against undocumented workers. Findings suggest that, although undocumented workers do not have the legal protections to work in the United States, they are seen as equally protected under the law from retaliatory actions by their employer. The article concludes with suggested reform provisions designed to ensure federal law continues to promote dignified employment conditions for workers, regardless of immigration status.

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Introduction

On an annual basis, over two thirds of low-wage workers face a type of wage theft violation.1 Wage theft is the illegal refusal by an employer to pay workers’ wages and benefits that they have earned.2 This can occur when an employer fails to pay minimum wage or overtime benefits, distributes checks that bounce, misclassifies their workers as independent contractors, or withholds workers’ tips, or sick pay earned, among other instances.3

Wage theft is a growing problem in the U.S., exceeding $15 billion annually and affecting over two-thirds of low-wage workers.4 This challenge presents multiple predicaments for society at large. Wage theft perpetuates income inequality while keeping low-wage earners in poverty. Instances of wage theft decrease a minimum wage worker's income by 49% on average and drives more than 302,000 families below the poverty line.5 This can mean the difference between barely making ends meet and falling into extreme poverty for low-wage workers.6 Wage theft demoralizes hard working individuals and inflicts unfair harm to the most vulnerable members of our society--including their dependents. Finally, it shifts the burdens and cost of the phenomenon onto the

1 DAVID COOPER & TERESA KROEGER, EMPLOYERS STEAL BILLIONS FROM WORKERS’ PAYCHECKS EACH YEAR, 2 (2017), https://files.epi.org/pdf/125116.pdf. 2 Stephen Lee, Policing Wage Theft in the Day Labor Market, 4 U.C. IRVINE L. REV. 655, 656 (2014). 3 29 U.S.C. § 203(o) (2016) (establishing that hours worked will be used to measure minimum wage and overtime); 30. 29 U.S.C. § 206(a)(1)(C) (2016) (setting federal minimum wage at $7.25 an hour); see 29 U.S.C. § 207(a)(1)(C) (2016) (defining overtime compensation). Nicole Hallett, The Problem of Wage Theft, YALE L. & POL. REV. 94, 98 note 22 and 26 (briefly refer to failure to pay money owed and sick pay earned), https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1731&context=ylpr; BRADY

MEIXELL & ROSS EISENBREY, AN EPIDEMIC OF WAGE THEFT IS COSTING WORKERS HUNDREDS OF MILLIONS OF DOLLARS A YEAR 1, 1 (2014), https://www.epi.org/publication/epidemic-wagetheft-costing-workers-hundreds/. 4 COOPER & KROEGER, supra note 1. 5 EASTERN RESEARCH GROUP, INC., THE SOCIAL AND ECONOMIC EFFECTS OF WAGE VIOLATION: ESTIMATES FOR CALIFORNIA AND NEW YORK 1, 4 (2014) https://www.dol.gov/sites/dolgov/files/OASP/legacy/files/WageViolationsReportDecember2 014.pdf. 6 Daniella Salas-Chacon, Effects of Senate Bill 4 on Wage-Theft: Why All Workers Are at Risk in Low-Income Occupations, 20 THE SCHOLAR 387, 398 note 71 (2018), https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1007&context=thescholar.

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broader society by exacerbating the increased need for poverty reduction and government-subsidized housing programs, among other cost-based programs.7

Workers in low-wage industries, ranging from construction to food services to janitorial work, are most susceptible to the adverse economic impact of wage theft.8 These industries are disproportionately represented by immigrant populations.9 As a result, immigrant workers are inordinately adversely affected by wage theft.10 The U.S. Department of Labor conducted a study that found non-citizens were up to three times more likely to suffer from a minimum wage violation and 20% more likely to suffer from an overtime violation than their citizen peers.11

Among immigrant workers, undocumented immigrant workers appear to be most susceptible to wage rights violations.12 One study found that 85% of undocumented workers do not receive overtime pay compared to the 67% for documented immigrants.13 The study also found that unauthorized immigrant workers have been subjected to minimum wage violations at a significantly higher rate compared with the victimization rate of authorized immigrants and of U.S.-born citizens, at 37%, 21%, and 16%, respectively.14

7 Meredith Minkler et al., Wage Theft as a Neglected Public Health Problem: An Overview and Case Study From San Francisco’s Chinatown District, 104 AM. J. PUB. HEALTH 1010 (2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4062017/. 8 Salas-Chacon, supra note 6; see also REBECCA SMITH & EUNICE H. CHO, WORKERS RIGHTS ON ICE: HOW IMMIGRATION REFORM CAN STOP RETALIATION AND ADVANCE LABOR RIGHTS note 14 (2013), http://stage.nelp.org/wp-content/uploads/2015/03/Workers-Rights-on-ICERetaliation-Report.pdf. 9 Salas-Chacon, supra note 6; see also REBECCA SMITH & EUNICE H. CHO, supra note 8; Rebecca Smith et al., Undocumented Workers: Preserving Rights and Remedies after Hoffman Plastic Compounds v. NLRB, NAT’L EMP. L. PROJECT, note 5 (refers to Pew Hispanic Center report on demographics of undocumented workers). See generally STEVEN GREENHOUSE, THE BIG

SQUEEZE: TOUGH TIMES FOR THE AMERICAN WORKER (1st ed. 2008); JEFFREY S. PASSEL & D’VERA COHN, Trends in Unauthorized Immigration: Undocumented Inflow Now Trails the Legal Inflow, Washington DC: Pew Hispanic Center (2008).

10 SHANNON GLEESON, CONFLICTING COMMITMENTS: THE POLITICS OF ENFORCING IMMIGRANT WORKER RIGHTS IN SAN JOSE AND HOUSTON (2012), https://www.universitypressscholarship.com/view/10.7591/cornell/9780801451218.001.0001/ upso-9780801451218; see also Daniella Salas-Chacon, supra note 6.

11 EASTERN RESEARCH GROUP, supra note 5. 12 SMITH & CHO, supra note 8.

13 Id.; see also ANNETTE BERNHARDT ET AL., BROKEN LAWS, UNPROTECTED WORKERS: VIOLATIONS OF EMPLOYMENT AND LABOR LAWS IN AMERICA’S CITIES, NATIONAL EMPLOYMENT LAW PROJECT 44 (2009), https://www.nelp.org/publication/broken-laws-unprotected-workersviolations-of-employment-and-labor-laws-in-americas-cities/. 14 Id.

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Many scholars posit that undocumented workers face wage theft violations in part because of their vulnerability to exploitation as a result of limited language proficiency, lower levels of education, and general unfamiliarity with American labor law.15 Moreover, undocumented immigrant workers tend to be hired in industries which are known to be particularly susceptible to workplace violations, such as the restaurant, construction and manufacturing industries.16

Finally, scholars contend that employers’ exploitation of undocumented workers is prompted, partially, by the limited alternative employment options available to the undocumented workers who lose their jobs after asserting their wage claim rights. These employers know that these workers will not risk the opportunity to work simply to report abuses to labor agencies.17

I. Barriers Facing Undocumented Workers in Asserting Wage Claims

Beyond the vulnerabilities undocumented immigrant workers face in the workplace, they also encounter significant obstacles when asserting claims for wage and hour abuses. While some of the obstacles preventing undocumented workers from asserting wage claims are experienced by all low-income workers, some of the obstacles are unique to them. First, undocumented workers are disproportionally represented in temporary and precarious occupations where labor laws are difficult to enforce, as wage and hour laws place the burden on the worker to assert the violation.18 Further, both federal and state labor enforcement agencies report shortages of investigators, long processing times,

15 GLEESON, supra note 10; BERNHARDT ET AL., supra note 13. 16 PASSEL & D’VERA, supra note 9. 17 Kathleen Kim, Beyond Coercion, 62 UCLA L. REV. 1558, 1569-82 (2015) (describing how employers often incorporate immigration restrictions to have their undocumented workers accept substandard working conditions). 18 Diana Velios, Immigrant Latina Domestic Workers and Sexual Harassment 5 AM. UNIV. J. GENDER, SOC. POL’Y & LAW 407 (1996); ABLE VALENZUELA ET AL., ON THE CORNER: DAY LABOR IN THE UNITED STATES (2006), https://www.coshnetwork.org/sites/default/files/Day%20Labor%20study%202006.pdf; LAURA

HUIZAR, EXPOSING WAGE THEFT WITHOUT FEAR (ANTONIO PONTO-NUNEZ ET AL., 2019), https://www.nelp.org/publication/exposing-wage-theft-without-fear.

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and limited success in recovering unpaid wages on behalf of wage theft victims, all of which add additional obstacles for undocumented claimants in obtaining relief.19 As a result of the numerous barriers facing undocumented workers in asserting wage claims, many choose not to assert those claims.20

The vulnerability of undocumented workers can also be contributed to what sociolegal scholarship coins as undocumented immigrants’ contradictory legal position, whereby immigrants are prohibited from residing or working in the U.S. but are still afforded “on paper” many of the same legal workplace protections as native-born workers.21 Undocumented immigrants often balance whether they want to keep a low profile and avoid attracting attention from the authorities, or whether they should assert their legal rights and file a claim with a government agency. This contradictory situation not only exacerbates the vulnerability of undocumented workers on the job but augments their reluctance to assert claims when their labor rights have been violated.22

19 Kim Bobo, WAGE THEFT IN AMERICA: WHY MILLIONS OF AMERICANS ARE NOT GETTING PAID—AND WHAT WE CAN DO ABOUT IT (2008). 20 See David Weil & Amanda Pyles, Why Complain? Complaints, Compliance, and the Problem of Enforcement in the U.S. Workplace, 27 COMP. LAB. L. & POL'Y J. 59, 78-79 (2005) (referring to data that up to 800 wage violations under the Fair Labor Standards Act occur for every one violation reported to the Wage and Hour Division of the U.S. Department of Labor); see also Nat’l Employment Law Project, Used and Abused: The Treatment of Undocumented Victimes of Labor Law Violations since Hoffman Plastic Compounds vs. NLRB 2 (2003), available at http://www.nelp.org/docUploads/Used%20and%2OAbused%20101003.pdf (describing how undocumented workers often chose not to assert a labor claim in the face of workplace violations); Connie de la Vega & Conchita Lozano-Batista, Advocates Should Use Applicable International Standards to Address Violations of Undocumented Migrant Workers' Rights in the United States, 3 HASTINGS RACE & POVERTY L.J. 35, 40-44 (2005) (describing adverse workplace conditions of undocumented migrant workers). 21 See generally Susan Coutin, Citizenship and Clandestiny among Salvadoran Immigrants, 22 POL.

& LEGAL ANTHROPOLOGY REV. 53 (1999). 22 Gleeson, supra note 10, at 580 (study of restaurant workers found that both explicit employer intimidation, as well as an "ever-present implicit fear of deportation," inhibited undocumented workers from making claims in the workplace); See also Nicole Taykhman, DEFYING SILENCE: IMMIGRANT WOMEN WORKERS, WAGE THEFT, AND ANTIRETALIATION POLICY IN THE STATES, COLUMBIA JOURNAL OF GENDER AND LAW 96 note 21 (2017), ttps://academiccommons.columbia.edu/doi/10.7916/D8W66RDX; Charlotte S. Alexander & Arthi Prasad, Bottom-Up Workplace Law Enforcement: An Empirical Analysis, 89 INDIANA L.J. 1069 1113-18 (2014) (finding that workers that made claims inevitably suffered some form of unlawful retaliation by their employers, including calls to the police or immigration). Undocumented workers’ fear of asserting wage claims appears to be more prevalent during periods that have a more restrictive immigration policy in the U.S. See SalasChacon, supra note 6 (contending that restrictive immigration laws contribute to less wage-theft victims asserting claims against employers who refuse to pay their wages).

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Arguably, the most significant barriers impeding undocumented immigrant workers’ ability to assert claims of labor violations is the threat of immigration related retaliation by their employer. Immigration related retaliation includes instances in which employers threaten to report workers to immigration authorities after the workers raise issues over violations of working conditions.23 By doing so, employers essentially produce a chilling effect, which silences the undocumented workers and undermining their bargaining power.24 Undocumented immigrants appear to be deterred from asserting a wage claim due to the fear of retaliation,25 and in particular the fear of losing one’s job or for being “outed” to the immigration authorities after they assert a claim.26 Moreover, employer’s retaliatory or the instilled fear of retaliatory actions impose significant financial and emotional harm to the affected undocumented workers.27

A number of studies documented instances of employer intimidation, whereby the worker’s immigration status is often wielded as a threat to prevent immigrants from asserting a claim.28 One survey of over 4,000 low-income

23 Salas-Chacon, supra note 6. 24 Jed DeVaro, Stealing Wages From Immigrants, 46 COMPENSATION AND BENEFITS REV. 96 (2014). 25 Anna-Maria Marshall, Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies, 39 LAW & SOC. REV. 83 (2005); David Weil & Amanda Pyles, Why Complain? Complaints, Compliance, and the Problem of Enforcement in the U.S. Workplace, 27 Comp. Lab. L. & Pol'y J. 59, 83-84 & n.19 (2005) (referring to studies indicating that many workers, particularly undocumented workers, believe that they will lose their job if they exercise their workplace rights); see also HUMAN RIGHTS WATCH, UNFAIR ADVANTAGE: WORKERS’ FREEDOM OF ASSOCIATION IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS 42 (Cynthia Brown, 2000) (discussing many undocumented workers' fear of suffering immigration related retaliation by their employers if they assert their labor rights violations), https://www.hrw.org/reports/pdfs/u/us/uslbr008.pdf 26 See Gleeson, supra note 10. See also BERNHARDT ET AL., supra note 9(A 2008 survey of more than 4300 low-wage workers, many of whom were undocumented workers, in the three largest U.S. cities demonstrated that fear of retaliation was the most common reason that workers did not complain, even after they had identified a workplace problem); Rivera v. NIBCO Inc., 364 F.3d 1057, 1065 (9th Cir. 2004) (noting how undocumented workers are reluctant to report abusive or discriminatory practices by their employers for fear of deportation). 27 Testimony of Laura Huizar to the U.S. House of Representatives Committee on Appropriations, Subcommittee on Labor, Health and Human Services, Education, and Related Agencies (Apr. 9, 2019), https://s27147.pcdn.co/wp-content/uploads/Testimony-HouseHearing-Wage-Theft-Laura-Huizar.pdf.

28 HUMAN RIGHTS WATCH, IMMIGRANT WORKERS IN THE UNITED STATES MEAT AND POULTRY INDUSTRY (2005), https://www.hrw.org/legacy/backgrounder/usa/un-sub1005/.

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workers, which included a sizeable number of undocumented workers (39% of the sample), found that 43% of low-income workers experienced one or more forms of employer retaliation after they asserted a wage claim.29 The second most frequently cited retaliatory action taken by employers, according to the workers, was referral to the immigration authorities (47%).30 In another study, researchers found that immigration raids are correlated with an increased number of claims filed with the state agency responsible for investigating wage claims.31

Courts recognized the unique retaliatory predicament many undocumented workers face when asserting wage claims.32 As the Ninth Circuit Court of Appeals noted: “Many of these workers are willing to work for substandard wages in our economy's most undesirable jobs. While documented workers face the possibility of retaliatory discharge for an assertion of their labor and civil rights, undocumented workers confront the harsher reality that their employer will likely report them to the INS and they will be subjected to deportation proceedings or criminal prosecution. As a result, most undocumented workers are reluctant to report abusive or discriminatory employment practices.”33 In recognition of their plight, some courts have carved out an exception allowing undocumented workers to bring suit for wage violations anonymously.34

The goal of this article is to review federal statutory provisions as well judicial precedent addressing retaliatory action by employers against undocumented workers asserting a wage claim. The article will begin, in section

29 BERNHARDT ET AL., supra note 9, at 24. 30 Id. at 25. 31 Michael J. Wishnie, Introduction: The Border Crossed US: Current Issues in Immigrant Labor, 28 N.Y.U. REV. L. & SOC. CHANGE 389, 390-92 (2004) (summarizing data showing a correlation between INS raids in New York and state labor complaints). 32 See e.g., Fuentes v. INS, 765 F.2d 886, 887 (9th Cir. 1985) (employer reported undocumented workers he had employed for three years for less than minimum wage when they filed suit to recover wages owed), vacated by Fuentes v. INS, 844 F.2d 699 (9th Cir. 1988). 33 Rivera v. Nibco, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004). 34 See e.g., Nazih v. Café Istanbul of Columbus, LLC, 2018 U.S. Dist. LEXIS 154283 (S.D. Ohio, 2018) (the court held that given the fear of the undocumented workers of adverse immigration consequences to the extent they their names is associated with a wage claim lawsuit justifies allowing the undocumented workers join the lawsuit anonymously); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1062-63 (9th Cir. 2000) (court allowed the undocumented workers to plead their claims anonymously due to their fear of retaliatory deportation).

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I, by summarizing federal statutory law affording undocumented workers rights to assert wage claims and protections from wage claim retaliation. The article will then trace federal cases addressing these two issues since the enactment of the 1986 Immigration Reform and Control Act (IRCA). It will examine the evolution of federal judges’ disposition towards undocumented workers’ wage claims, and undocumented workers’ claims for immigration related retaliation actions. Finally, the article will identify shortcomings for anti-retaliation protection in the current framework under federal law, as well as possible alternatives to address the shortcomings.

II. Federal Statutory Law Affording Undocumented Workers’ Rights to Assert Wage Claims and Protections from Wage Claim Retaliation

The Fair Labor Standards Act of 1938 (FLSA) is the federal law designed to eliminate substandard working conditions by, for example, establishing minimum wage and overtime pay.35 The FLSA extends protection to undocumented workers as it covers all employees without regard to their citizenship or work eligibility.36 Undocumented workers experiencing wage theft violations may be eligible for various remedies such as compensatory damages for time actually worked, declaratory injunctive relief, attorney fees, liquidated damages, and punitive damages.

Consistent with the FLSA mandate, the U.S. Department of Labor's Wage and Hour Division enforces the FLSA regardless of whether an employee is documented.37 State and federal agencies implemented policies that clarify

35 29 U.S.C. §§ 206(a)(b), 207(a), 211 (c) (2004); see Salas-Chacon, supra note 6; 42 U.S.C. § 2000e-5(g) (listing remedies available when employer engaged in unlawful employment practice). 36 The FLSA’s definition of employee is broad to include both documented and undocumented workers. See 29 U.S.C. § 203(e)(1)-(5) (defining employees as all who are engaged in interstate commerce or in the production of goods for commerce, or who are employed by an enterprise engaged in commerce or in the production of goods for commerce). 37 Fact Sheet #48, WAGE & HOUR DIV., https://www.dol.gov/whd/regs/compliance/whdfs48.pdf (clarifying the Department of Labor will enforce the FLSA, which requires employers to pay covered employees the federal minimum wage and time and a half for overtime hours, regardless the workers’ immigration status).

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undocumented workers are legally entitled to the same wage protections as documented workers.38

Aside from extending protection of wage-claim making to undocumented workers, federal law also protects undocumented workers from employer’s retaliation when asserting wage claims. Employers are prohibited from reprisals when workers engage in protected workplace activity, regardless of the worker’s immigration status.39 Pursuant to Section 15(a)(3) of the FLSA, a person may not discharge or discriminate against “any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”40 Federal law provides both compensatory and “equitable relief” for undocumented workers facing retaliation for asserting wage claims.41 In examining that provision, most courts interpreted it to authorize granting emotional damage awards, while courts are split on whether the provision also allows punitive damage awards.42

Congress enacted this anti-retaliatory statutory provision in an attempt to offer undocumented workers the ability to freely advocate on their behalf when they experience wage theft. Anti-retaliation protections counter the chilling effect that the possibility of immigration related retaliation has on

38 Salas-Chacon, supra note 21; see generally Kati L. Griffith, The Power of a Presumption: California as a Laboratory for Unauthorized Immigrant Workers' Rights, 50 UC DAVIS L. REV. 1279, (2020). 39 SMITH & CHO, supra note 17. 40 Fact Sheet #77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA), DEPARTMENT OF LABOR: WAGE AND LABOR DIVISION (Dec. 2011), http://www.dol.gov/whd/regs/compliance/whdfs77a.htm (detailing the retaliation provision of the FLSA). 41 Fuentes v. INS, supra note 32 and accompanying text; 29 U.S.C. § 216(b) (2000) (stating that an employer who violates antiretaliation provision of FLSA "shall be liable for such legal or equitable relief as may be appropriate"). 42 Moore v. Freeman, 355 F.3d 558, 563 (6th Cir. 2004) (authorizing an award of compensatory damages as a result of retaliation for protected FLSA activity, including $40,000 for mental and emotional distress as a result of FLSA retaliation where an employee was fired after raising FLSA claims); Travis v. Gary Cmty. Mental Health Ctr., 921 F.2d 108 (7th Cir. 1990)(upholding an award of $35,000 for emotional distress and $45,500 in punitive damages for FLSA retaliation where the employer fired a supervisor who testified in an employee’s FLSA case). But see Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 936 (11th Cir. 2000) (concluding that that punitive damages are not available under the FLSA); Jackson v. Estelle's Place, LLC, 391 Fed. App'x 239, 247 (4th Cir. 2010) (noting that punitive damages "are not available for claims under the FLSA").

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undocumented worker contemplating about the advisability of asserting a wage claim against his or her employer.43

III. Federal Case Law Adjudicating Undocumented Workers Wage Claims, And Wage Claim Retaliation

A. Case Law Adjudicating Undocumented Workers’ Wage Claims

Consistent with federal statutes, federal courts interpreted labor laws to afford protections to undocumented workers.44 Hence, federal courts recognized that undocumented workers are entitled to file wage grievances against employers when pursued under FLSA rights.45 Courts generally affirmed the right of undocumented immigrants to sue employers well before the passage of IRCA in 1986, a law which prohibited the employment of undocumented immigrants. For example, prior to 1986, federal courts consistently held that unauthorized immigrants enjoyed the minimum wage protections of the FLSA.46

43 Nicole Taykhman, Defying Silence: Immigrant Women Workers, Wage Theft and Anti-Retaliation Policy in the States, 32 COLUM. J. GENDER L. 96, 122-123 (2006). 44 Patel v. Quality Inn. South, 846 F.2d 700, 704-05 (1 1th Cir. 1988). Undocumented aliens are "employees" covered by the FLSA. Id.; In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987). The protections of the FLSA are applicable to citizens and aliens alike. In re Reyes, 814 F.2d at 170. Whether the alien is documented or undocumented is irrelevant. 45 In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (establishing that the FLSA is applicable to citizens and undocumented alike); see also Contreras v. Corinthian Vigor Ins. Brokerage, 25 F. Supp. 2d 1053, 1056 (N.D. Cal. 1998) (noting that Congress has expressly manifested its intent that all employees, regardless of immigration status, are protected by the FLSA’s anti-retaliation provisions); Patel v. Quality Inn S., 846 F.2d 700 (11th Cir. 1988) (applying the FLSA’s minimumwage and overtime violations provisions to undocumented workers). Patel, 846 F.2d at 704-05; Zirintusa v. Whitaker, 2007 U.S. Dist. LEXIS 29 (D.D.C. 2007); Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1277-1279 (N.D. Okla. 2006); Flores v. Limehouse, 2006 U.S. Dist. LEXIS 30433 (D.S.C. 2006); (“Unauthorized aliens are entitled to minimum and overtime wages under the FLSA.”); Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 321-25 (D.N.J. 2005) (denying motion to dismiss in which defendant argued that Hoffman precludes FLSA claims asserted by undocumented workers); Lucas v. Jerusalem Cafe, LLC, 721 F.3d 927, 933 (8th Cir. 2013) (holding that undocumented workers could collect unpaid or underpaid wages under the FLSA); Contreras v. Corinthian Vigor Ins. Brokers, Inc., 25 F.Supp.2d 1053 (N.D.Cal. 1998) (the court concluded that "[t]here is no question that the protections provided by the FLSA apply to undocumented aliens."). 46 See generally Keith Cunningham-Parmeter, Redefining the Rights of Undocumented Workers, 58 AM. UNIV. L. REV. (2009), https://core.ac.uk/download/pdf/235402877.pdf; see supra note 30

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Aside from pointing out that the plain language of FLSA extends protections to undocumented workers, some judges also rationalized their decisions on recognizing the right of undocumented workers to pursue wage claims against employers based on policy grounds.

Those courts found that protection of undocumented workers in the labor market discourages the hiring of them and, hence, reinforce immigration laws barring the hiring of undocumented workers.47 Specifically, the courts noted that, by denying undocumented workers the right to assert wage claims against their employers, the system will create an incentive for employers to violate immigration laws by encouraging them to hire undocumented workers and then not fully pay the undocumented workers for their work. Denying undocumented workers recourse to pursue relief in court lowers employers' potential liability and provides a financial incentive to employers to violate immigration laws by hiring undocumented workers.48 Using this rationale, courts were enabled to reconcile the tension between FLSA and IRCA. The courts find that insisting that an employer compensate their undocumented workers for work, rendered as required by FLSA, does not condone an immigration law violation that has already occurred. Instead, in doing so, it only ensures that the employer does not take advantage of violating immigration law.49 As the 8th Circuit noted: "The

and accompanying text; In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (finding that the status of an alien as undocumented is irrelevant to FLSA protections); Donovan v. Burgett Greenhouses, Inc., 759 F.2d 1483, 1485-86 (10th Cir. 1985) (affording FLSA protections to undocumented workers) Patel v. Quality Inn S., 846 F.2d 700, 704 (11th Cir. 1988) (holding that undocumented workers are entitled to protections afforded under the FLSA); In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (finding that both undocumented and documented workers are covered under the FLSA). 47 See e.g., Patel v. Quality Inn S., 846 F.2d 700, 704 (11th Cir. 1988) (holding that "the FLSA's coverage of undocumented aliens goes hand in hand with the policies behind the IRCA… . If the FLSA did not cover undocumented aliens, employers would have an incentive to hire them… . By reducing the incentive to hire such workers the FLSA's coverage of undocumented aliens helps discourage illegal immigration and is thus fully consistent with the objectives of the IRCA"). 48 See e.g., Singh v. Jutla & C.D. & R's Oil, Inc., 214 F. Supp. 2d 1056, 1062 (N.D. Cal. 2002) (stating that the FLSA "discourages employers from hiring such workers because it eliminates the employers' ability to pay them less than minimum wage or otherwise take advantage of their status"); Patel v. Quality Inn S., 846 F.2d 700, 704 (11th Cir. 1988) (noting that it is the procurement of employment at any wage, not the prospect of job related protections under the labor laws, that attracts illegal immigrants, and that if the FLSA did not cover undocumented aliens, employers would have a greater incentive to hire them). 49 Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 243 (2d Cir. 2006); Lamonica, 711 F.3d at 1308 (11th Circuit).

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IRCA and FLSA together promote dignified employment conditions for those working in this country, regardless of immigration status, while firmly discouraging the employment of individuals who lack work authorization."50

While federal courts have mostly held that undocumented workers are statutorily entitled to seek compensation for work already performed through the FLSA, some employers nonetheless continue to challenge undocumented workers’ claims to receive pay for work done. Their claim has largely relied on fault doctrines of unclean hands and estoppel as affirmative defenses. Specifically, some employers have argued that the doctrine of unclean hands, which bars relief to a party who has engaged in inequitable behavior, or estoppel, which precludes a worker who has acted fraudulently in obtaining work with improper documentation, to seek relief against the employer. Some federal courts found these defenses warranted under limited circumstances, such as where the worker has engaged in egregious behavior.51 Nonetheless, most courts that have considered cases in which employers asserted the doctrine of unclean hands or estoppel to preclude recovery of wages by an undocumented worker rejected those defenses.52 Some of those courts noted that such defenses would be inconsistent with the mandates of the FLSA.53 Other courts rejected such defenses since the wrongdoing of the undocumented workers (providing false documents to obtain work) is not the cause of the injury (nonpayment of wages), and, since the employer has reaped the benefits of the worker’s labor, it is difficult to find injury to the employer.54

50 Lucas v. Jerusalem Café, LLC. 721 F.3d 927, 936 (2013). 51 See, e.g., Wlodynski, 2008 WL 2783148, at 4 (finding that the "affirmative defense of unclean hands may be applicable to FLSA claims in limited circumstances"); Green v. City & Cnty. of S.F., No. C 06-6953 SI, 2007 WL 521240, at 1 (N.D. Cal. Feb. 15, 2007) (finding that the equitable doctrine of unclean hands may bar recovery where the party engaged in "reprehensible conduct in the course of the transaction"). 52 See, e.g., Bailon v. Seok AM No. 1 Corp., No. C09-0548, 2009 WL 4884340, at 4 (W.D. Wash. Dec. 9, 2009). 53 Morrison v. Exec. Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1320 (S.D. Fla. 2005) ("The doctrine of estoppel is not recognized under the FLSA."); Askin Trucking, 2006 U.S. Dist. LEXIS 97552, at 7 ("It is well-established that the defenses of waiver and estoppel are precluded under the FLSA."). 54 See, e.g., McGlothan v. Wal-Mart Stores, Inc., No. 6:06-CV-94-ORL-28JGG, 2006 WL 1679592, at 3 n.3 (M.D. Fla. June 14, 2006) (explaining that the unclean hands defense requires

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Consistent with the consensus among federal courts allowing undocumented workers to assert wage claims against their employers under FLSA, the U.S. Department of Labor (DOL) proclaimed that it will enforce back pay claims under the FLSA without regard to whether an employee is documented or undocumented.55

B. Case law adjudicating undocumented workers’ claims for unfair employer’s retaliation claims.

One of the most common fears of undocumented workers who have been denied wages or benefits earned is that the employer would contact the immigration authorities if such a claim is asserted. To address this fear, Congress passed the anti-retaliation provisions of the FLSA. The purpose of the FLSA’s anti-retaliation provisions is to allow employees to report violations of the FLSA without fear of reprisal from their employer. Under the FLSA, the employer is prohibited from engaging in retaliatory communications to immigration authorities and is subjected to a number of penalties and damage claims if retaliation occurs.56

Congress enacted this anti-retaliation measure "to prevent fear of economic retaliation from inducing workers quietly to accept substandard conditions, and to foster an atmosphere protective of employees who lodge such complaints."57 Furthermore, in enacting the anti-retaliation provision, Congress also aimed to “encourage speedier and more efficient resolution of employee grievances and resolving FLSA-related issues before employees have lost significant wages or other benefits."58

To establish a prima facie case of immigration related retaliation under the FLSA, federal courts have required the aggrieved employee to establish that: (1)

that the plaintiff's wrongdoing "is directly related to the claims against which it is asserted" and the defendant is injured by the plaintiff's conduct). 55 Tanya L. Goldman, Tool 4: Introduction to Strategic Enforcement, CLASP (2018), note 16 and 47-9, https://www.clasp.org/publications/report/brief/labor-standards-enforcement-toolboxintroduction-strategic-enforcement. 56 29 U.S.C. 216(b) (2000) (stating that an employer who violates anti-retaliation provision of FLSA "shall be liable for such legal or equitable relief as may be appropriate"); 42 U.S.C. 2000e5(g) (listing remedies available when an employer engaged in unlawful employment practice). 57 Greathouse v. JHS Sec. Inc., 784 F.3d 105, 113 (2d Cir. 2015). 58 Id. at 114.

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the employee’s participated in protected activity known to the employerdefendant; (2) the employer took an adverse employment action against the employee that disadvantages the employee; and (3) a causal connection between the protected activity and the adverse employment action.59 If the employee meets this burden, the employer must identify a legitimate, non-retaliatory reason for their actions. If the employer presents such a reason, the employee must demonstrate that there is sufficient evidence for a reasonable juror to find that the reason offered by the defendant is mere pretext for retaliation.60

In examining the first element for immigration related retaliation claims, federal courts construed “participation in protected activity” in the context of immigration related retaliation to include: filing a lawsuit, submitting a written complaint, orally asserting a claim for unpaid wages, and filing a formal wage claim with an administrative agency.61 Courts have gone even further and extended protections under this statute to undocumented workers who had not yet engaged in protected activity (i.e., "potential class members") but who were nevertheless subject to anticipatory retaliation by an employer. Anticipatory retaliation occurs where the employer preemptively takes adverse employment actions against employees whom it believes is about to assert a wage claim. Such anticipatory retaliatory actions are designed to keep undocumented workers

59 In general, an adverse action "following close on the heels of protected activity can support an inference of retaliation." Knickerbocker v. City of Stockton, 81 F.3d 907, 912 (9th Cir. 1996). See also Contreras v. Corinthian Vigor Ins. Brokerage, 103 F. Supp. 2d 1180, 1182, 2000 (finding that the fact that the employer called the INS immediately after the pre-hearing conference on the wage claim creates an inference of a causal connection between the pre-hearing conference and the report to the INS). 60 Torres v. Gristede's Operating Corp., No. 04 Civ. 3316, 2008 WL 4054417, at 16 (S.D.N.Y. Aug. 28, 2008); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (“If the defendant meets this burden, the plaintiff must produce 'sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.'"). 61 Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011) (interpreting the FLSA anti-retaliation provision to find that oral complaints may be protected activity), on remand, 703 F.3d 966 (7th Cir. 2012) (holding that plaintiff's oral complaint to his manager was protected activity); Minor v. Bostwick Labs, Inc., 669 F.3d 428 (4th Cir. 2012) (ruling that internally filed complaints are protected activity under the FLSA, consistent with the majority of circuits to have addressed the issue); Santos v. E T & K Foods, Inc., 2017 U.S. Dist. LEXIS 100495 (noting that “participation in protected activity” is satisfied when the worker files a lawsuit for unpaid wages in court); Moore v. Freeman, 355 F.3d 558, 562 (6th 2004) (interpreting informal complaint to management regarding working conditions to constitute a "filed complaint" under Section 215(a)(3)).

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quiet and deter them from ever asserting a claim. In such circumstances, the courts have generally issued a protective order prohibiting the employer from taking adverse action against any potential claimants.62

In examining the second element for immigration related retaliation claims, federal courts have observed that an employment action which disadvantages a worker is one that “might have ‘dissuaded a reasonable worker from making or supporting [similar] charge[s]….’”63 Courts noted that various forms of employer’s actions in response to assertion of wage claim constitute adverse employment actions that disadvantages the worker. For example, courts stated that an employer’s call or threats of contacting U.S. Immigration and Custom Enforcement (ICE) constitutes “adverse employment action.”64 Other adverse

62 Urtubia v. B.A. Victory Corp., 857 F. Supp. 2d 476 (S.D.N.Y. 2012) (an employee decided not to join a wage claim suit after the employer "threatened to have him reported to immigration authorities and possibly deported." The court found that the employer’s "workplace relationship with current employees, and their knowledge of sensitive information about current and former employees, put them in a position to exercise strong coercion in connection with potential class members' decisions regarding participation in this litigation." Finding that the employer’s threats amounted to "actual interference . . . with the rights of potential class members to receive advice and consider whether to assert claims," the district court issued an injunction prohibiting the employer from communicating "directly with current and former employees who are potential class members regarding this litigation and its subject matter." The court offered protection to workers who had not yet engaged in protected activity, but who were nonetheless subjected to anticipatory retaliation.). See also Recinos-Recinos v. Express Forestry, Inc., No. 05-1355, 2006 U.S. Dist. LEXIS 2510, at *4 (E.D. La. Jan. 23, 2006); Garcia v. Lee, 10CV-1618 (JG) (E.D.N.Y. May. 26, 2010). 63 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). 64 See Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 103 F. Supp. 2d 1180 (N.D. Cal. 2000) (holding that calls to immigration authorities were adverse employment action required for showing retaliation in a wage dispute); Singh v. Jutla & C.D. & R's Oil, Inc., 214 F. Supp. 2d 1056, 1057 (N.D. Cal. 2002) ((denying motion to dismiss FLSA retaliation claims because the complaint included allegations that the employer reported the employee to immigration authorities in retaliation for FLSA protected conduct). See also Centeno-Bernuy v. Perry, No. 03-CV-457, 2009 WL 2424380 (W.D.N.Y. Aug. 5, 2009) (finding retaliation where employer reported H2A workers to DHS who had filed a FLSA claim, accusing workers of being terrorists); Aponte v. Modern Furniture Mfg. Co., LLC, No. 14 Civ. 4813 (ADS) (AKT), 2016 U.S. Dist. LEXIS 131408 (E.D.N.Y. Sept. 26, 2016) ("[T]hreats to report plaintiff and his son to the immigration authorities would, by themselves, dissuade a reasonable employee from participating in this lawsuit . . . ."); Guohua Liu v. Elegance Rest. Furniture Corp., 2017 U.S. Dist. LEXIS 160110 (E.D.N.Y. Sept. 25, 2017) ("reporting or threatening to report an undocumented immigrant to immigration authorities constitutes a retaliatory employment action"); Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 136 (W.D.N.Y. 2003) (concluding that by "reporting plaintiffs to the INS and making baseless allegations to the government that plaintiffs are terrorists, constitute an adverse employment action."); Liu v. Elegance Rest. Furniture Corp., 2017 U.S. Dist. LEXIS 160110, at 14 (E.D.N.Y. Sep. 25, 2017) (finding that a former employer's text messages threatening to alert authorities of plaintiff's immigration status is an adverse employment action); Montano-Perez v. Durrett Cheese Sales, Inc., 666 F. Supp. 2d 894, 901-02 (M.D. Tenn. 2009); Valle v. Beauryne Builders LLC, 2018 U.S. Dist. LEXIS 47901 (“threatening or contacting immigration services in retaliation for filing FLSA claims

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employment actions in the context of immigration related retaliation include where the employers instructs third parties, such as the employee’s supervisor, to report the employee to the immigration authorities,65 or where the employer, upon learning of the asserted wage claim, demands that the employee complete immigration verification paperwork previously completed when the employee was first hired.66

While typically an anti-retaliatory claim is brought against the employer for retaliatory actions taken against an undocumented worker, the broad language of the statute has been construed to mean that individual employees, managers, and even non-employees acting in the interest of the employer can be held individually liable for FLSA retaliation.67 In a recent case, a federal court of appeals enabled the undocumented worker to pursue anti-retaliatory action claim against the employer’s attorney. In that case, the employer’s attorney attempted to derail the employee’s wage claim case shortly before trial by notifying ICE of the employee’s immigration status. In particular, the attorney scheduled the employee’s deposition and then told ICE where it could find the employee that day. The court found that, while the attorney was not the plaintiff’s employer, the attorney’s conduct was an attempt to penalize the

against an employer has been recognized by many courts as an adverse employment action under the FLSA anti-retaliation provision.”); Perez v. Jasper Trading, Inc., 2007 U.S. Dist. LEXIS 103814 (finding a prima facie case of retaliation under the FLSA where "[i]n response to the plaintiffs' requests, and for the purpose of discouraging the plaintiffs from pursuing their rights, the defendants threatened to contact governmental and immigration authorities if the plaintiffs continued to demand just compensation"). 65 Bartolon-Perez v. Island Granite & Stone, Inc., 108 F. Supp. 3d 1335, 1338 (S.D. Fla. 2015) (in an affidavit, one plaintiff noted that his supervisor told him “I should be afraid because ... (one of the owners) had the ability to call immigration on me “any person” who retaliates. Further, section 203(d) extends this concept to “any person acting directly or indirectly in the interest of an employer in relation to an employee.” See Id. § 203(d). Thus, Congress clearly means to extend section 215(a)(3)’s reach beyond actual employers). See Montano-Perez v. Durrett Cheese Sales, Inc., 666 F. Supp. 2d 894 (M.D. Tenn. 2009). See Keith Cunningham-Parmeter, Fear of Discovery: Immigrant Workers and the Fifth Amendment, 41 CORNELL INT’L L.J. 27, 44 (2008). 66 Bartolon-Perez, 108 F. Supp. 3d at 1338 (holding that the employer requires the employee to fill out an I–9 form again and offering to resolve his wage claim with a “one-way ticket to Mexico,” threatening to report him to immigration constitutes adverse employment action). 67 Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 135 (W.D.N.Y. 2003) (concluding entities and individuals other than an individual's employer can violate the FLSA given the broad language of Section 215(a)(3) of the FLSA).

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employee for complaining about his pay and, therefore, “manifestly falls within the purview, the purpose, and the plain language” of the FLSA.68

Similarly, federal courts extended the reach of the anti-retaliation provision of FLSA to hold officers of County Sherriff Office liable when evidence was presented indicating that the officers had referred the undocumented worker to immigration authorities at least in part due to the workers’ assertion of a wage claim. In Montano-Perez v. Durrett Cheese Sales, Inc., the wage claimants were frequently underpaid and paid late by the employer. After waiting for their pay for an extended period and being given various excuses by the employer, the undocumented workers refused to leave the employer's premises until paid, even after they were fired. As a result, the employer summoned the county sheriff officers who were informed by the employer that the workers were undocumented and should be reported to the immigration authorities. After the workers refused to leave the employer’s premises, the officers arrested and reported them to Immigration and Customs Enforcement (ICE). The district court denied the defendant's motion for summary judgment in a retaliation claim brought by the undocumented workers, concluding that given the broad language of 29 U.S.C.A. § 215(a)(3), individuals other than the employer, such as County Sheriff Officers, could violate the FLSA.69

At times, employers facing a wage claim under FLSA have attempted to use discovery tools to indirectly send a message of exposing the undocumented worker to immigration authorities. By using depositions and document requests as part of discovery into the immigration status of the aggrieved worker, employers, without violating anti-retaliation employment protections, can indirectly threaten adverse immigration outcomes.70 The mere possibility that the undocumented workers may be compelled to disclose their immigration status is sufficient to deter many undocumented workers from pursuing wage

68 Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017) (in finding the employer’s attorney liable for immigration related retaliation, the court noted that the anti-retaliation provision of the code under 29 U.S.C. § 215(a)(3) refers to “any person” who retaliates. Further, section 203(d) extends this concept to “any person acting directly or indirectly in the interest of an employer in relation to an employee.” See Id. § 203(d). Thus, Congress clearly means to extend section 215(a)(3)’s reach beyond actual employers). 69 Montano-Perez v. Durrett Cheese Sales, Inc., 666 F. Supp. 2d 894 (M.D. Tenn. 2009). 70 Cunningham-Parmeter, supra note 46.

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claims.71 The status-based discovery tactic may also deter documented workers from asserting those claims in court since some of them may live in a mixedstatus household where some household members are undocumented.72

The use of status-based discovery has the potential of exploiting a legal procedure to deter undocumented workers from asserting wage claim violations. While those discovery attempts are not considered, per se, “retaliatory,” courts have almost unanimously rejected such attempts. Courts have recognized that the “in terrorem effect” of inquiring into the claimant’s immigration status would likely result in intimidating and deterring the undocumented workers from asserting their rights.73 To counter these attempts by employers, courts issued protective orders to prevent having undocumented workers release such information to the opposing party as part of litigation.74

71 See e.g., Flores v. Albertsons, Inc., 2002 U.S. Dist. LEXIS 6171, 2002 WL 1163623 ("It is entirely likely that any undocumented class member forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face termination and/or potential deportation."). 72 Cunningham-Parmeter, supra note 46 ("[Q]uestions about status dissuade lawful permanent residents from going to court. These legal immigrants often live in 'mixed families' in which some family members are U.S. citizens and others are unauthorized immigrants. If litigating workplace claims entails extensive discovery about status, many of these legal immigrants will decline to sue in order to avoid answering invasive questions about their families and themselves."). 73 Flores v. Amigon, 233 F. Supp. 2d 462, 465 (E.D.N.Y. 2002) (“"If forced to disclose their immigration status, most undocumented aliens would withdraw claims or refrain from bringing an action . . . in the first instance. This would effectively eliminate the FLSA as a means for protecting undocumented workers from exploitation and retaliation."). 74 See e.g., Rengifo v. Erevos Enterprises, Inc. - 2007 U.S. Dist. LEXIS 19928 (S.D.N.Y. Mar. 20, 2007) (finding that the “protective order became necessary as it was entirely likely that any undocumented litigant forced to produce documents related to his or her immigration status would withdraw from the suit rather than produce such documents and face potential deportation.”); Chavez v. Arancedo, 2018 U.S. Dist. LEXIS 165211, 11-12 (“[C]ourts that have examined this issue have nearly unanimously found that defendants typically are not entitled to information related to the immigration status of plaintiffs seeking FLSA relief."); Villareal v. El Chile, Inc., 266 F.R.D. 207, (N.D. Ill. 2010) (“The reasons Defendant proffers for introducing Plaintiff's immigration status are unpersuasive because they could be applicable in any case where a plaintiff may be an undocumented immigrant.”); Romero-Hernandez v. Alexander, 2009 U.S. Dist. LEXIS 61017 (N.D. Miss. June 24, 2009) (noting that courts have held that the likely prejudice of allowing disclosure of the claimant's immigration status outweighs the benefits to the employer, absent some particularized reason for the information); Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002) ("courts addressing the issue of whether defendants should be allowed to discover plaintiff-workers' immigration status in cases seeking unpaid wages brought under the FLSA have found such information to be undiscoverable."); Uto v. Job Site Servs. Inc., 269 F.R.D. 209, 211 (E.D.N.Y. 2010) ("permitting inquiry into a party's immigration status, when not relevant, presents a danger of intimidation that would inhibit plaintiffs in pursuing their rights"); Rivera v. NIBCO, Inc., 364 F.3d 1057,

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IV. Shortcomings of Federal Immigration Related AntiRetaliation Protection and Possible Reform

There are several shortcomings of the existing federal legislation in affording adequate protection to undocumented workers from immigration related retaliation. First, the federal legislative prohibition against retaliatory action against undocumented workers does not clearly cover retaliatory actions against the undocumented worker when retaliatory conduct is initiated by a proxy of the employer, such as the employer’s attorney or another third party acting on behalf of the employer. While some federal courts have broadly interpreted 29 U.S.C.A. § 215(a)(3) to cover retaliatory actions undertaken by others acting on behalf of the employer,75 an express language in the federal statute to that effect would eliminate any ambiguity in that regard for future cases.

Moreover, while the Department of Homeland Security (DHS) and the Department of Labor (DOL) have entered into a memorandum of understanding dating back to 1998 restricting the ability of DHS from initiating immigration enforcement proceedings during a DOL investigation of immigration-related retaliation,76 federal law does not expressly prohibit such proceedings from moving forward. The uncertainty arising in the absence of express statutory prohibition on initiating deportation proceedings pending a DOL investigation of immigration related retaliation warrants adding express language in federal law codifying the 1998 memorandum of understanding.

Federal statutory reform may also include a provision codifying several federal court’s findings that interprets "adverse employment action" to expressly include contacting immigration authorities or threatening to contact immigration authorities. By specifically including those actions in the definition

1064 (9th Cir. 2004) (concluding that the aggrieved workers would be required to "confront the harsh reality that, in addition to possible discharge, their employer will likely report them to the INS and they will be subjected to deportation proceedings or criminal prosecution.”). 75 Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017) (holding that an employer’s attorney may be held liable for immigration related retaliation under 29 U.S.C.A. § 215(a)(3)). 76 Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites (Dec. 7, 2011), https://www.braziliancenter.org/images/resources/DHS-DOL-MOU.pdf.

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of “adverse employment action,” federal law makers would reduce the fear reported by undocumented workers in asserting a wage claim. Moreover, to deter employers from engaging in immigration-related retaliation against undocumented workers, federal statutes may be amended to allow awards of punitive damages in cases of immigration-related retaliation. Currently, punitive damages are not universally available for retaliation claims under the FLSA.77 Allowing punitive damages could concurrently incentivize undocumented workers to assert wage claims, while deterring employers from engaging in those unlawful practices. Finally, and perhaps more fundamentally, immigration-related retaliation against undocumented workers can be curtailed by pursuing a comprehensive immigration reform that would remove from employers the option of engaging in immigration related retaliation.78

Conclusion

Overall, undocumented workers are equally protected under the law from retaliatory actions by their employer. Although undocumented workers do not have the legal protections to work in the United States, they do have the right to pursue claims against their employer. Courts have been vigilant in protecting this right from broadening the definition of who can be held liable for FLSA retaliation to include non-employees acting in the interest of the employer, to extending FLSA protections to include undocumented workers who were subject to anticipatory retaliation by an employer. These actions have been designed to counter the chilling effect that the possibility of status related

77 Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 936 (11th Cir. 2000) (concluding that punitive damages are not available under the FLSA); Jackson v. Estelle's Place, LLC, 391 Fed. App'x 239, 247 (4th Cir. 2010) (noting that punitive damages "are not available for claims under the FLSA"). But see Moore v. Freeman, 355 F.3d 558, 563 (6th Cir. 2004) (authorizing an award of compensatory damages as a result of retaliation for protected FLSA activity, including $40,000 for mental and emotional distress as a result of FLSA retaliation where an employee was fired after raising FLSA claims); Travis v. Gary Cmty. Mental Health Ctr., 921 F.2d 108 (7th Cir. 1990)(upholding an award of $35,000 for emotional distress and $45,500 in punitive damages for FLSA retaliation where the employer fired a supervisor who testified in an employee’s FLSA case). 78 SMITH & CHO, supra note 8.

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retaliation has on undocumented workers by providing them with additional protections to assert their claims. Future legal reforms may consider codifying past legal memorandums and federal court interpretations designed to reduce the fear reported by undocumented workers in asserting a wage claim to ensure these protections have a long-standing impact and alleviate the burden faced by undocumented workers when assessing whether they should assert a wage grievance claim.

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Elaine Chen

Freedom of Choice and Reproductive Justice for All: The Super Precedent of Roe v. Wade & its Implications on the Hyde Amendment

ABSTRACT. For decades, the United States Supreme Court has affirmed the constitutional right to access a safe and legal abortion in the landmark decision of Roe v. Wade. Yet, the Court has also stripped that right away from low-income individuals through their decision to validate the Hyde Amendment. The Hyde Amendment prevents the funding of abortions for Medicaid recipients, a group considered to be the nation’s most financially vulnerable demographic. Taking away such a fundamental right from this class not only disproportionately burdens them financially, but directly contradicts the right to freedom of choice every person is promised. This article will argue against the legality of the Hyde Amendment by advancing a legal theory known as “super precedent” and applying it to the Supreme Court decision in Roe v. Wade. In addition to establishing Roe as super precedent and deeming it contradictory to Harris’s decision, I will discuss how the Hyde Amendment introduces an undue burden on the path to abortion, which deliberately targets and discriminates against the poor. To conclude, I will argue for the immediate repeal of the law, first by exploring how the Supreme Court should reexamine the Hyde Amendment and then by proposing efforts from Congress to pass a law striking it down.

Introduction

During the Senate confirmation hearings for her nomination to the Supreme Court, Amy Coney Barrett remained largely tight-lipped with regard to how she

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would vote on a number of issues including healthcare, gun rights, and voting rights.1 Of the questions she faced,2 a considerable amount were dedicated to probing the likeliness of whether she would consider overturning Roe v. Wade, the landmark Supreme Court decision which established the right to safe and legal abortions.3 Senator Amy Klobuchar seemed to finally extract a hint of an answer when she questioned Barrett on her thoughts on the relationship between super precedent and Roe, to which Barrett answered by defining the theory of super precedent as “cases that are so well settled that no political actors and no people seriously push for their overruling.”4 She then proceeded to state that because she was being asked so many questions about Roe in her confirmation hearing, it indicated that the court decision “doesn’t fall in that category.” Just days after this exchange occurred, Barrett was confirmed to a seat on the nation’s highest court, thus beginning an era of a conservative-controlled Supreme Court by a margin of 6 to 3.5 Such an appointment has led to fierce speculation as to whether or not a newly seated conservative justice will herald the end of the nationwide legalization of abortion.6

Justice Barrett’s anti-abortion record coupled with a conservative majority in the Supreme Court raises valid fears about the future of reproductive rights.7 However, this future is already inaccessible for many living in America: low-income people dependent on the Medicaid program have been denied freedom over their reproductive rights since 1976. The Hyde Amendment, an annually renewed

1 Deirdre Walsh, Takeaways from Amy Coney Barrett’s Judiciary Confirmation Hearings, NPR (Oct. 15, 2020), https://www.npr.org/2020/10/15/923637375/takeaways-from-amy-coneybarretts-judiciary-confirmation-hearings. 2 Daniel Strauss, Amy Coney Barrett dodges abortion, healthcare and election law questions, THE GUARDIAN (Oct. 14, 2020), https://www.theguardian.com/us-news/2020/oct/13/amy-coneybarrett-dodges-abortion-healthcare-election-law-questions-hearing. 3 Roe v. Wade, 410 U.S. 113 (1973). 4 Aaron Blake, Amy Coney Barrett’s most telling exchange on abortion and Roe v. Wade, WASH. POST (Oct. 14, 2020), https://www.washingtonpost.com/politics/2020/10/13/amy-coneybarretts-most-telling-exchange-abortion-roe-v-wade/. 5 Amy Coney Barrett, BALLOTPEDIA, https://ballotpedia.org/Amy_Coney_Barrett (last visited Jan. 18, 2021). 6 Sarah McCammon, A Look at Amy Coney Barrett’s Record On Abortion Rights, NPR (Sept. 28, 2020), https://www.npr.org/2020/09/28/917827735/a-look-at-amy-coney-barretts-record-onabortion-rights. 7 Adam Liptak, Amy Coney Barrett, Trump’s Supreme Court Pick, Signed Anti-Abortion Ad, N.Y. TIMES (Oct. 1, 2020), https://www.nytimes.com/2020/10/01/us/amy-coney-barrettabortion.html.

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provision to the federal provisions bill, has limited reproductive rights for a substantial number of people since its passing in 1976. This statute (1) directly contradicts what was already settled in the case of Roe v. Wade, (2) places an undue burden on the indigent, and (3) discriminates against the indigent, and, for those reasons, this article will argue for its repeal.

Part I will introduce the history of the Hyde Amendment, detailing its beginnings, how it came to be upheld in the Supreme Court case of Harris v. McRae, and the problems that arise when states are given authority to allocate their Medicaid funds for abortion as they see fit. In Part II, I will elaborate on the definition of super precedent and Justice Barrett’s position on the term in regards to Roe. I will also argue that Roe v. Wade should qualify as super precedent by underlining a tradition that already exists of following Court precedent, emphasizing the Supreme Court’s own numerous affirmations of the central holdings of Roe. After demonstrating Roe v. Wade’s status as super precedent, I will then argue against the Court opinion in Harris v. McRae, a case decided by the Court in error that not only disregarded the central holdings of Roe v. Wade but also incorrectly held that the Hyde Amendment does not place an undue burden on a person’s right to choose or discriminate against the poor. In Part III, I will make recommendations for the Supreme Court to accept a challenge to the Hyde Amendment and interpret the law by upholding Roe v. Wade’s super precedent, as well as incorporating the undue burden standard and the Fifth Amendment’s Due Process Clause. I will then suggest Congress to immediately pass a law repealing the Hyde Amendment, provided the Supreme Court does not allow reconsideration of Harris v. McRae.

A. I. From Congress to the Courts: The History and Impact of the Hyde Amendment

The historic decision of Roe v. Wade in 1973 prompted a wave of legislative attacks on the Supreme Court decision respecting a woman’s right to choose.8

8 Planned Parenthood, Roe v. Wade: Its History and Impact, PLANNED PARENTHOOD FED’N OF AM. (Jan. 2014), https://www.plannedparenthood.org/files/3013/9611/5870/Abortion_Roe_History.pdf.

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The case began as a challenge to a state law in Texas which banned abortion except for when the pregnancy endangered the life of the mother. The Court concentrated on the Due Process Clause of the Fourteenth Amendment, which bars states from depriving “any person of life, liberty, or property, without due process of law.”9 From this clause, the Court interpreted an inherent right to privacy from state action that included the right to decide whether or not to terminate a pregnancy.10 Amidst a slew of attempts to reverse the ruling, Henry Hyde, then-congressman of Illinois, introduced a provision to the Medicaid program which would prohibit federal funding for abortion unless the pregnancy endangered the life of the woman.11 Congress subsequently passed the first “Hyde Amendment'' in 1976 and has renewed it every fiscal year since then.12 The Hyde Amendment has only had minor changes in the following years to include exceptions for pregnancies that have resulted from rape or incest and pregnancies that would cause long-term damage to the carrier’s health if the pregnancy were to be carried to term.13

Following the passage of the first Hyde Amendment, Cora McRae, a pregnant Medicaid recipient, filed suit in the U.S. District Court for the Eastern District of New York against Patricia R. Harris, then Secretary of Health and Human Services.14 The plaintiffs included McRae and the New York City Health and Hospitals Corporation, and they asserted that the Hyde Amendment violated the First, Fourth, Fifth, and Ninth Amendments of the Constitution insofar as the law denied funding for abortions while permitting funds for childbirth-associated costs. The District Court then entered a preliminary injunction to prohibit enforcement of the Hyde Amendment and certified the case as a nationwide class action lawsuit. When the District Court ultimately ruled that the Hyde Amendment was unconstitutional under the Fifth

9 U.S. Const. amend. XIV, § 1. 10 Roe, 410 U.S. at 113. 11 ACLU, Access Denied: Origins of the Hyde Amendment and Other Restrictions on Public Funding For Abortion, ACLU, https://www.aclu.org/other/access-denied-origins-hyde-amendment-andother-restrictions-public-funding-abortion (last visited Jan. 18, 2021). 12 Alina Salganicoff et al., The Hyde Amendment and Coverage for Abortion Services, KAISER FAMILY FOUND. (Sept. 10, 2020), https://www.kff.org/womens-health-policy/issue-brief/thehyde-amendment-and-coverage-for-abortion-services/. 13 Id. 14 Harris v. McRae, 448 U.S. 297 (1980).

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Amendment’s Due Process Clause and the First Amendment’s Establishment Clause, Secretary Harris appealed to the Supreme Court in Harris v. McRae. In Harris, the Court ruled in a 5-4 decision that the 1976 Hyde Amendment was constitutional, effectively overturning the District Court’s ruling.

From the year the Hyde Amendment was passed, statistics have suggested a strong relationship between the codification of the law and the number of abortions performed through Medicaid. While it is difficult to pinpoint an exact estimate of childbirths that have directly resulted from the Hyde Amendment’s enactment, research from organizations of differing ideologies have provided their own analyses of the law, coming to the mutual conclusion that the number of abortions that decreased for Medicaid recipients after the enactment of the Hyde Amendment is a substantial amount. The American Civil Liberties Union (ACLU) reported that, after the Hyde Amendment was passed, abortions provided by federal Medicaid funds dropped from roughly 300,000 per year to only a few thousand.15 The Charlotte Lozier Institute, an anti-abortion organization, released its own report and estimated that, from 1976 to 2016, the Hyde Amendment had prevented 2.13 million abortions.16 A study conducted by BMC Women’s Health in Louisiana from 2015 to 2017 estimated that 29 percent of Medicaid eligible women who would have had an abortion instead give birth.17 Such statistics point to a disturbing trend, indicating that despite a watershed moment for reproductive rights in the decision of Roe, a great number of people seem to be excluded from accessing that very liberty.

In addition to limiting the number of abortions performed among Medicaid recipients, the Hyde Amendment has also played a role in reinforcing socioeconomic inequality among low-income people. Considering Medicaid is a service reserved for the nation’s most financially vulnerable population,

15 ACLU, supra note 11. 16 Michael J. New, Hyde @ 40: Analyzing the Impact of the Hyde Amendment, CHARLOTTE LOZIER INST. (Sept. 2016), https://s27589.pcdn.co/wp-ontent/uploads/2016/09/OP_hyde_9.28.3.pdf. 17 Sarah M.C. Roberts et al., Estimating the proportion of Medicaid-eligible pregnant women in Louisiana who do not get abortions when Medicaid does not cover abortion, BMC WOMEN'S HEALTH (2019), https://bmcwomenshealth.biomedcentral.com/articles/10.1186/s12905-019-0775-5.

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accounting for 97 million low-income Americans in 2018,18 fundamentally stripping this demographic of access to safe abortions can have spillover effects onto their overall socioeconomic well-being. Despite the fact that the Hyde Amendment does provide compensation for costs associated with childbirth, a considerable number of financial consequences still reside with the child bearer. Studies from the Brookings Institution suggest that unplanned pregnancy and childbearing can depress the mother’s educational attainment and reduce labor force participation, which in turn has negative effects on the child’s academic, economic, and health outcomes.19 The American Public Health Association also conducted its own study on the impacts of abortion on women and found that those who were denied the procedure were more likely to be receiving public assistance and have a household income below the federal poverty level one year later than women who had received an abortion.20 In other words, the Hyde Amendment does not only disrupt female reproductive health, it stunts a lowincome person’s chances of upward socioeconomic mobility.

However, the financial impact of the Hyde Amendment varies from state to state. Medicaid is both a state and federal program, and the Hyde Amendment only restricts federal Medicaid funds to be used for abortion. This means that states are allowed to delegate how much, if any, of their finances are allocated to Medicaid-funded abortions.21 Differing state legislation has resulted in a myriad of abortion coverage levels and, while a handful of states allow their own revenues to pay for abortions under Medicaid, a majority of states follow the Hyde restrictions and do not fund abortions. A 2019 study from the Government Accountability Office (“GAO”) found that South Dakota, a state that goes beyond the federal standard for limiting abortion access through Medicaid, had violated federal law as the state only covers abortions in the case of life

18 Center on Budget and Policy Priorities, Policy Basics: Introduction to Medicaid, CENTER ON BUDGET & POL’Y PRIORITIES (Apr. 14, 2020), https://www.cbpp.org/research/health/policybasics-introduction-to-medicaid. 19 Adam Thomas, Policy Solutions for Preventing Unplanned Pregnancy, BROOKINGS INST. (Mar. 1, 2012), https://www.brookings.edu/research/policy-solutions-for-preventing-unplannedpregnancy/. 20 Diana Greene Foster et al., Socioeconomic consequences of abortion compared to unwanted birth, AM. PUBLIC HEALTH ASSOC’N (Oct. 30, 2012), https://apha.confex.com/apha/140am/webprogram/Paper263858.html. 21 Center on Budget and Policy Priorities, supra note 18.

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endangerment but not in the cases of rape or incest.22 While the Centers for Medicare and Medicaid Services (“CMS”) was made aware of South Dakota’s violation, they did not have any plans to enforce compliance with the Hyde Amendment’s standards. The GAO has also noted that several states have established intrusive requirements in order to qualify for an abortion covered by Medicaid. As of the publication of the report, fourteen states require documentation that the Medicaid beneficiaries reported the case of rape or incest to law enforcement or another public agency.23 These harsh guidelines exist despite statistics pointing to the drastically underreported numbers of sexual assault.24 This stringent standard for those who qualify for subsidized abortions under the Hyde standard further makes the case for the repeal of the Hyde Amendment, as it has even managed to fail the very slim population of those to whom it stated it would provide abortion services.

B. II. The Case for Super Precedent and a Critique of the Holdings of Harris v. McRae

C. The following section will make the case for Roe v. Wade to be considered as super precedent. I will then make the argument that, against a history of cases which have upheld the fundamental right to choose, Harris therefore contains erroneous judgements – namely a violation of the undue burden standard and Equal Protection clause of the Fifth Amendment

A. Establishing Roe v. Wade as Super Precedent

While courts are bound by precedent, alternatively known as the doctrine of stare decisis, Roe v. Wade is still actively contested today, which is what gives anti-

22 U.S. Government Accountability Office, CMS Action Needed to Ensure Compliance with Abortion Coverage Requirements (January 2019), https://www.gao.gov/assets/700/696338.pdf. At the time of this article's publication, the CMS has yet to enforce South Dakota's compliance with the Hyde Amendment's standards. 23 Id. 24 The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/criminaljustice-system#:~:text=Only%20230%20out%20of%20every,out%20of%204%20go%20unreported (last visited Jan. 18, 2021).

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abortion, or “anti-choice,” advocates hope that the case stands a chance at being overturned. Stare decisis, or “let the decision stand,” is a doctrine which gives deference to cases that have already been ruled.25 Courts will typically look to settled holdings if they are facing a case dealing with similar issues. While courts do traditionally obey precedent, reversing a Supreme Court decision, though extremely difficult, is not impossible.26 The fact that the Court is capable at all of overturning their own decisions is what encourages anti-choice activists in their efforts to take down Roe v. Wade. However, a legal theory has recently gained traction, emphasizing the importance of Court precedent on issues that have cemented themselves so deeply into law, rendering the prospect of overturning them nearly impossible. This idea has been coined as the principle of “super precedent.”27 There is no general consensus on an exact definition of super precedent, although there has been agreement on the idea that super precedent involves cases that the Supreme Court should neither revisit nor reverse.28 The term was used in regards to Roe at the 2005 Supreme Court confirmation hearings of Justice John Roberts when then-Senator Arlen Specter asked if Justice Roberts agreed that cases such as Roe had become “super precedents or ‘super-duper’ precedent”29 – so embedded into law that they should be especially hard to overturn. Without commenting directly on whether he believed Roe qualified as super precedent, Justice Roberts stated that the Supreme Court has consistently reaffirmed a constitutional right to privacy, a right affirmed in Roe to encompass the right to abortion.

Yet, not every Supreme Court Justice would be so open in implying that Roe could be considered as super precedent. As mentioned previously, the term resurfaced during the 2020 Supreme Court confirmation hearings for Amy Coney Barrett. Aside from introducing her perspective on the definition of super precedent and claiming that Roe does not fall into that category, she brought up

25 Stare decisis, LEGAL INFO. INST., https://www.law.cornell.edu/wex/stare decisis (last visited Feb. 1, 2021). 26 Adam Liptak, Justices Split Over the Power of Precedent, N.Y. TIMES (May 13, 2019). 27 Jeffrey Rosen, So, Do You Believe in ‘Super precedent’? N.Y. TIMES (Oct. 30, 2005). 28 Blake, supra note 4. 29 Rosen, supra note 27.

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Brown v. Board of Education as a case which she believes counts as a precedent “that no one questions anymore.”30

However, I contend that the theory of super precedent should be applied to the case of Roe v. Wade. Roe is not the only Supreme Court case which has validated the constitutional right to abortion, and the question of revisiting the decision in Roe has even been settled in the 1992 Supreme Court case Planned Parenthood of Southeastern Pennsylvannia v. Casey. In this case, the Court was primarily concerned with whether or not a series of restrictive abortion laws in Pennsylvania were constitutional, including one which required informed consent and a twenty-four-hour waiting period prior to the abortion. Additionally, Casey raised the question of whether Roe v. Wade should be reexamined or overturned.31 While the outcome of the case did uphold most of the state’s abortion laws, the Court opinion, crafted by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, said in regards to Roe: “[T]he reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.”32 The Opinion also noted that overturning Roe would be “at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.”33 In addition to clearly acknowledging the weight that Supreme Court precedent carries, the Court in Casey all but admitted that given how entrenched Roe is in the law, the prospect of revisiting the case was not up for debate.

Furthermore, the Court set unofficial criteria to consider when determining whether to overrule a prior holding. Listed in the Court opinion in Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter stated:

“[W]e may ask whether the rule has proven to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no

30 Blake, supra note 4. 31 Planned Parenthood of Southeastern Pa v. Casey, 505 U.S. 833 (1992). 32 Id. at 853. 33 Id. at 869.

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more than a remnant of abandoned doctrine, or whether facts have so changed ... as to have robbed the old rule of significant application or justification.”34

In applying these questions to Roe v. Wade, the Court questioned whether the right to choose has become unworkable, whether overturning the case would come with severe consequences, and whether the legal principles behind the case have developed to a point where Roe is now considered moot. The Court then concluded that (1) Roe has not “proven [to be] ‘unworkable,’” (2) “the certain cost of overruling Roe for people who have ordered their thinking and living around that case [cannot] be dismissed,” and (3) “[n]o evolution of legal principle has left Roe’s doctrinal footings weaker than they were in 1973.”35 The Justices affirmed the permanence of Roe by directly answering the question of whether Roe should be overturned. Casey was not a total affirmation of the right to choose, especially since the Court introduced new standards to determine the validity of abortion laws, known as the undue burden test.36 Still, the Court opinion contained extensive language defending the fundamentals of Roe and a right to abortion has continued to prove resilient against subsequent court cases attempting to strike it down.37 In sum, reversing a decision which has been explicitly upheld by the nation’s highest Court would cause irreparable harm to the Court’s reputation and completely erode the nature of precedent, especially one as firmly integrated into law as Roe.

B. Revisiting Harris v. McRaeand its Contradictions to the Fundamentals of Roe v. Wade

As it is clear that Roe should stand as an exceptional case of precedent that deserves the highest protections from reversal, what follows is the faulty decision the Court made when it chose to deny abortion rights from those who

34 Id. at 855. 35 Id. at 855; 856; 857. 36 Id. at 877. The standard of an “undue burden” was introduced in Planned Parenthood v. Casey, where Justice O’Connor, Kennedy, and Souter stated in the Court opinion that if a state regulation “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus," then the regulation cannot stand. 37 A History of Key Abortion Rulings of the U.S. Supreme Court, PEW RSCH. CENTER (Jan. 16, 2013), https://www.pewforum.org/2013/01/16/a-history-of-key-abortion-rulings-of-the-ussupreme-court/.

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need it the most. As Justice Marshall plainly stated in his dissent in Harris v. McRae, “The Court’s opinion studiously avoids recognizing the undeniable fact that for women eligible for Medicaid – poor women – denial of a Medicaidfunded abortion is equivalent to denial of legal abortion altogether. By definition, these women do not have the money to pay for an abortion themselves.”38 The Court opinion in Harris was largely built on the belief that since the government was not directly introducing an obstacle to block the path to abortion, it did not stand as an undue burden prohibiting freedom of choice. Justice Potter Stewart, who wrote Harris’s Court opinion, deemed the Hyde Amendment innocent of acting as such an obstacle, asserting that “[t]he financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.”39 With this statement, Justice Stewart shifted the blame off of the government, placing it instead on the pregnant person and claiming that being unable to practice a constitutionally protected right to choice was their fault.

However, when taking into consideration the overall purpose of the Medicaid program, the costs associated with obtaining an abortion, and Congressman Hyde’s intentions when drafting the first Hyde Amendment, it becomes clear that the statute does create conditions equivalent to an undue burden and renders the indigent stripped of their constitutional right to choose. The Medicaid program was created with the goal of assisting lower-income Americans with healthcare40 and, as such, people who apply to be covered by this plan struggle financially.41 Planned Parenthood has determined that an abortion can cost anywhere from $0 to $1000 depending on factors such as insurance program, area of residence, and type of abortion procedure. What

38 Harris, 448 U.S. at 338. 39 Id. at 316. 40 Medicaid, https://www.medicaid.gov/medicaid/index.html (last visited Jan. 18, 2021). 41 The Affordable Care Act attempted to expand coverage for those up to 138 percent above the federal poverty level (FPL). National Federation of Independent Business v. Sebelius allowed states to decide whether to expand the eligibility standards, resulting in twelve states which have not expanded Medicaid to those even slightly above the FPL threshold. Even so, to be at 138 percent above the FPL is still not a generous financial standing: for a household of two, this standard asks for an annual income of $23,791 or less (not including Alaska and Hawaii, which have stricter eligibility standards).

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tends to result from pairing the indigent with exorbitant, and often unexpected, costs is the fact that Medicaid recipients by and large will struggle to pay out of pocket for an abortion. An article from Women’s Health Issues studied the out of pocket costs that women were paying for abortions and found that as much as one third of their sample, in paying for their abortions, had used money meant for basic living expenses such as food, rent, and utilities.42 These factors paint an ugly picture: people who are insured by Medicaid and in need of an abortion may oftentimes be forced into an unwanted birth unless they forego essential living costs to cover an abortion. Being coerced into carrying a pregnancy on the basis of a financial cost-benefit analysis cannot and should not be allowed as a status quo in a post-Roe society. Lastly, Congressman Hyde, author of the controversial bill, stated himself that, preferably, he would be able to restrict abortion rights for “a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the…Medicaid bill.”43 Hyde himself acknowledged that the legislation would effectively remove freedom of choice from the indigent by preventing Medicaid to cover abortion costs. This law was written to purposefully disenfranchise the nation’s most financially vulnerable of their constitutional right to make private decisions about their own bodies, and to see it upheld in the Supreme Court – where Roe v. Wade exists as a forceful and binding precedent – is nothing short of a major insult.

In addition to evidence pointing towards the tangible cost hurdle that the Hyde Amendment introduces to low-income persons seeking abortion, the dissenting opinions in Harris v. McRae also contain practical arguments further refuting the opinion that the Hyde Amendment does not qualify as an unconstitutional impediment on the right to choose. In his dissent in Harris v. McRae, Justice William J. Brennan Jr. found a burden in the unequal subsidization of federal funds in a situation of pregnancy, writing that “[b]y thus injecting coercive financial incentives favoring childbirth into a decision that is

42 Rachel K. Jones et al., At What Cost? Payment for Abortion Care by U.S. Women, WOMEN’S HEALTH ISSUES (Mar. 4, 2013), https://www.guttmacher.org/sites/default/files/pdfs/pubs/journals/j.whi.2013.03.001.pdf. 43 Heather D. Boonstra, The Heart of the Matter: Public Funding Of Abortion for Poor Women in the United States, GUTTMACHER POL’Y REV. (2007), https://www.guttmacher.org/sites/default/files/articlefiles/gpr100112.pdf.

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constitutionally guaranteed to be free from governmental intrusion, the Hyde Amendment deprives the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the due process liberty right recognized in Roe v. Wade.”44 Additionally, Justice Brennan reminded everyone that the Court has before invalidated schemes “granting or withholding financial benefits that incidentally or intentionally burdens one manner of exercising a constitutionally protected choice” in the 1963 case of Sherbert v. Verner. 45 The Court, in Sherbert v. Verner, invalidated the restriction of unemployment compensation for the appellant, Adeil Sherbert, who was fired for refusing to work on Saturday, the Sabbath day of her faith. In their opinion, the Court claimed that the withholding of such funds is not allowed under Sherbert’s constitutionally protected First Amendment right to practice her faith.46 Justice Brennan then proclaimed that the Hyde Amendment’s provision to the Medicaid program should be examined the same way as Sherbert in that in both cases, “the government withholds financial benefits in a manner that discourages the exercise of a due process liberty.”47

When Justice Stewart examined the Hyde Amendment under the Due Process Clause of the Fifth Amendment, he found precedent that he considered indistinguishable from the case at hand and came to the conclusion that “poverty, standing alone, is not a suspect classification.”48 The Due Process Clause in the Fifth Amendment requires the federal government to practice equal protection of the law.49 There is a generally agreed-upon (although unofficial) list of groups who qualify as a suspect classification to be protected under the Fifth Amendment: race, religion, national origin, and alienage.50 Usually utilized in arguments regarding discrimination, the appellees had argued in Harris that the Hyde Amendment had violated the equal protection

44 Harris, 448 U.S. at 333. 45 Id. at 334. 46 Sherbert v. Verner, 374 U.S. 398 (1974). 47 Harris, 448 U.S. at 336. 48 Id. at 323. 49 Equal Protection, LEGAL INFO. INST., https://www.law.cornell.edu/wex/equal protection (last visited Jan. 18, 2021). 50 Suspect classification, LEGAL INFO. INST., https://www.law.cornell.edu/wex/suspect classification (last visited Jan. 18, 2021).

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component within the Fifth Amendment by discriminating against the poor.51 The ruling in question that Justice Stewart used was from Maher v. Roe, a case which validated the limitation of Medicaid funds for abortion in Connecticut and declared that withholding such benefits did not violate the Fourteenth Amendment’s Equal Protection clause, which requires states to practice equal protection.52 Maher held specifically that “[f]inancial need alone does not identify a suspect class for purposes of equal protection analysis.”53 However, the Court failed to consider, in both Maher and Harris, the state of poverty ought to stand as a suspect class when positioned with other mitigating factors. When contextualizing the equal protection component of the Fifth Amendment against the withholding of Medicaid funds for abortion and Roe v. Wade’s rudimentary promise, it becomes clear that the indigent can and should meet the standards of a suspect class. Justice Stewart claimed that poverty does not singlehandedly stand as a suspect classification.54 Yet, as noted by Congressman Hyde, the objective of this bill was to single out a demographic of people and exploit their socioeconomic status to influence a supposedly protected choice. And, in practice, the bill has historically taken advantage of the conditions of the indigent to deny them access to abortions. Therefore, although it may be conceded that poverty alone cannot qualify as a protected class, the malicious and targeted action of the legislation in attempting to deny the Fourteenth Amendment’s Due Process Clause to the indigent has created the conditions to qualify poverty as a suspect class. The Hyde Amendment has denied a protection purely on the basis of economic class, and such a demeaning law must be dealt with as a blatant form of wealth discrimination.

Even if the violation of the Fifth Amendment’s Equal Protection Clause continues to be disputed, Roe v. Wade still establishes a firm constitutional right to choose to terminate a pregnancy and legislation such as the Hyde Amendment contradicts the fundamentals of Roe v. Wade, a case that carries the

51 Harris, 448 U.S. 297. 52 Equal Protection, LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/wex/equal protection (last visited Jan. 18, 2021). 53 Maher v. Roe, 432 U.S. 464 (1977). 54 Id.

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weight of super precedent. If such a restrictive law had not been introduced, low-income people would be able to exercise the right to choose in the same capacity as others not in their income bracket. Instead, lawmakers, such as Congressman Hyde, deliberately chose to attack low-income people, knowing that by creating circumstances such as subsidization for childbirth expenses and not abortion, the indigent may feel more compelled to make the choice which does not place immediate financial consequences in their path.

III. From the Courts Back to Congress: The Fight Continues

A. The Judicial Path to Repeal One can apply the criteria utilized in Casey to argue for the grounds on which Harris should be overturned. As stated earlier, the Court in Casey wrote that in deciding whether or not to overturn a holding, they often examine its workability, whether its reversal would introduce inequitable costs, and whether the law has evolved to render the prior holding moot.55 In the years since Harris’s decision, an overwhelming amount of research has been published to imply that despite a previously held decision respecting freedom of choice, freedom to choose is simply not an option for many folks living in the United States. Further evidence has been presented to point to the negative socioeconomic implications the Hyde Amendment has had on the livelihood of the child bearer. Having exhausted the detrimental ways the law has impacted low-income folks, it follows that the Hyde Amendment has not proven to be workable. Additionally, rather than adding unjust consequences, overturning Harris would remedy the glaring inequities that have stemmed from implementation of the Hyde Amendment – specifically, inequitable access to abortion and inequitable consequences of unwanted childbirth. Due to the Hyde Amendment’s role in financially incentivizing the indigent to choose childbirth over abortion, the law stands responsible for the subsequent effects that

55 Casey, 505 U.S. at 855.

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manifest from an unplanned pregnancy. And as aforementioned, the indigent are most often the ones who suffer the harshest consequences in light of such a scenario; as stated by Sarah Weddington, who represented the appellant in Roe, “[a pregnancy] disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts her entire family life.”56 It is certainly feasible to argue that the magnitude of interference on livelihood a pregnancy will have on a person who is financially struggling will be greater than that of someone who is financially comfortable. Therefore, if the Court were to overturn its decision in Harris, a state of inequity would not be amplified – it would be reduced.

Lastly, with each challenge to the basic fundamentals of Roe v. Wade, the right to abortion has stood resilient against every attempt to strike it down, establishing the case as super precedent. Accordingly, the Court should be reconsidering the Hyde Amendment through the scope of Roe’s super precedent standing. The Court erred in their validation of the Hyde Amendment, but they can and must make amends to allow a disproportionate amount of people to resume control over their reproductive rights.

B. Out with the Hyde, In with the New (Legislation) The Hyde Amendment can also be challenged through Congress. As the Hyde Amendment is part of an annual appropriations bill for the Department of Health and Human Services, it is not permanent law and has the potential to be removed from the appropriations bill for the following fiscal year.57 Rather than being guided by the timely restraint of the once-a-year opportunity to negotiate the removal of the Hyde Amendment on the annual spending package, I recommend that Congress immediately put together and pass a bill with language to repeal the law. Low-income people should not be forced to forego their reproductive rights another day. Taking swift measures to

56 Transcript of Oral Argument, Roe v. Wade, 410 U.S. 113 (1971) (No. 70-18). 57 Maggie Astor, What Is the Hyde Amendment? A Look at Its Impact as Biden Reverses His Stance, N.Y. TIMES (June 7, 2019), https://www.nytimes.com/2019/06/07/us/politics/what-is-thehyde-amendment.html.

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repeal this law instead of waiting for the next annual spending bill will allow lowincome communities to instantly – and rightfully – assume the same control of their reproductive lives as those outside their economic class.

Conclusion

The Hyde Amendment is an unequivocally harmful and discriminatory law. The nation’s highest court wrongfully upheld a statute that continues to penalize lower income folks for trying to exercise the same right that others are constitutionally guaranteed, as per the case of Roe v. Wade. Furthermore, the lack of oversight regarding the way states decide to distribute their revenue towards Medicaid expenses has resulted in states taking advantage of the Hyde Amendment to withhold abortion subsidization even for those who meet the requirements.

Despite precedent in the Supreme Court acknowledging the right for pregnant persons to be afforded the privacy in deciding whether or not to carry to term, the Court blatantly disregarded Roe v. Wade’s core in Harris v. McRae. Further, the willful ignorance the Court displayed in their Harris opinion, by turning a blind eye to the fact that the Hyde Amendment did, in fact, discriminate and introduce an undue burden, unfairly deprived the poor of a constitutional right that they otherwise held.

Settling Roe once and for all and a subsequent reconsideration of the Court’s holding in Harris are imperative to achieving equitable abortion access. While many may be up in arms over a conservative-leaning Supreme Court threatening Roe v. Wade, what must be reckoned with first is the already-existing curtailment of reproductive rights for a significant portion of this country’s population.

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Josie Sheridan

Housing and Power: Bridging the Gap Between Land Use Policies and Human Rights

ABSTRACT. The exclusive nature of zoning laws in the United States has created a shortage of adequate and affordable housing nationwide. Residential zoning laws determine the types and dimensions of housing units that can exist in certain areas, affecting housing prices and supply. While the U.S. has assented to numerous international measures acknowledging the human right to adequate housing, housing opportunity domestically continues to be severely restricted for many. Historically, zoning was used to establish de jure residential segregation and although segregation was eventually outlawed, zoning laws continue to uphold socioeconomic barriers to the right of adequate housing. The power vested in land regulation laws and its developers have enabled such exclusionary practices to persist. Accordingly, this paper demonstrates the need for multipronged reforms to existing zoning regulations and municipal control.

Introduction

Housing disparities afflict nearly every single county in the U.S. today.1 Disparities are evident through the shortage of affordable and adequate housing supply, which range anywhere between 8,200 homes in Wyoming to almost 1 million in California.2 In the U.S., 37.1 million households, or 30.2% of all households in the country, have been deemed housing cost-burdened by

1 NATIONAL LOW INCOME HOUSING COALITION, OUT OF REACH: THE HIGH COST OF HOUSING 1-11 (2020). https://reports.nlihc.org/sites/default/files/oor/OOR_2020_Mini-Book.pdf [hereinafter OUT OF REACH].

2 NATIONAL LOW INCOME HOUSING COALITION, THE GAP: A SHORTAGE OF AFFORDABLE RENTAL 1-20 (Mar., 2020), https://reports.nlihc.org/sites/default/files/gap/GapReport_2020.pdf [hereinafter THE GAP].

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spending at or above 30% of their income on housing.3 Of these 37.1 million households, 17.6 million spend half or more of their income on housing.4 Housing units, which are affordable to lower-income households, are not necessarily available, as they are competed for by higher-income households.5 For extremely-low income renters, whose incomes are at or below 30% of the area median income (AMI), 36 affordable and available homes exist for every 100 households nationwide.6

Current municipal zoning regulations tend to be a large factor in reducing the supply and types of housing in an area—particularly multi-family and affordable housing—through exclusive language that prevents sufficient development. Zoning was officially established to fulfill the safety, environmental, and aesthetic goals of policymakers. However, its measures have also limited affordable housing opportunities.7 The language in residential zoning laws significantly impacts community development by placing restrictions on a range of specific dwellings and related dimensions that can exist in certain areas.8 Zoning has all but ensured that the supply of adequate housing units exceeds the demand, and thus, contributes to rising housing costs.9 This article will focus on single-family and multi-family zoning, because these types show direct correlation to housing inequities due to the exclusiveness of singlefamily zoning and the conditions of multi-family zones.

This article will examine how the legal language in zoning laws perpetuates unequal power dynamics that allow exclusionary practices and human rights violations to persist. Although the U.S. has formally recognized housing as a

3 JOINT CENTER FOR HOUSING STUDIES OF HARVARD UNIVERSITY, THE STATE OF THE NATION'S HOUSING: 2020 1-34 (2020), https://www.jchs.harvard.edu/sites/default/files/reports/files/H arvard_JCHS_The_State_of_the_Nations_Housing_2020_Report_Revised_120720.pdf [hereinafter THE STATE]. 4 Id. 5 THE GAP, supra note 2. 6 Id. 7 Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, CATO INSTITUTE (Oct. 18, 2017), https://www.cato.org/publications/policy-analysis/zoning-landuse-planning-housing-affordability. 8 Galt, Cal., Mun. Code § 18.16. 9 Calder, supra note 7.

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human right, affordable housing availability remains severely limited as a consequence of zoning practices. Limited supply of adequate housing also has deleterious exterior effects on health, access to community resources, societal mobility, and economic productivity.10

In Part I, this article will examine the evolution of the jurisprudence of land use policies and how it laid the foundation for exclusionary zoning measures that infringe on the right to adequate housing. Part I will also explore the shift in power from federal to local authority to enact land regulations that widened housing disparities. Part II will then analyze core case rulings and legal principles in modern zoning practices to highlight how their legal language upholds barriers to housing opportunities. Part II will also review the effects of exclusive zoning laws to restrict particularly underserved socioeconomic groups from adequate housing. Finally, Part III will outline recommendations to mitigate housing disparities that can help achieve more inclusionary housing nationwide.

I. Background

A. Housing as a Human Right

The U.S. has formally recognized housing as a human right in a number of United Nations (U.N.) accords, such as the Universal Declaration of Human Rights in 1948 and the New Urban Agenda in 2016.11 In addition, the U.S. has acknowledged its responsibilities to promote housing policies which support adequate housing for all, address discrimination, and focus on the needs of homeless and low-income groups.12 Although the U.S. has internationally

10 Michaela Zonta, Expanding the Supply of Affordable Housing for Low-Wage Workers, CENTER FOR AMERICAN PROGRESS (Aug. 10, 2020), https://www.americanprogress.org/issues/econo my/reports/2020/08/10/488313/expanding-supply-affordable-housing-low-wage-workers/. 11 Eric Tars, Housing as a Human Right, NAT’L LOW INCOME HOUS. COAL. 2017 ADVOCATE’S GUIDE 13-15 (2017), https://nlihc.org/sites/default/files/AG-2017/2017AG_Ch01S06_Housing-Human-Right.pdf. 12 Id.

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committed to respecting, protecting, and fulfilling the right to adequate housing, it has not done so domestically.13

As of 2019, an estimated 568,000 individuals experience homelessness on any given night.14 Furthermore, an individual working full-time with a standard 40-hour work week earning the federal, state, or local minimum wage is unable to afford a two-bedroom rental home at fair market rent in any county nationwide.15 The U.S. has been assessed by several groups including the Human Rights Council and U.N. treaty bodies and has been found to be in breach of human right treaties related to housing rights such as with homelessness.16 U.N. representatives have additionally addressed the commodification of housing in the U.S. as a direct contradiction of international human right norms and law.17

B. Evolution of Jurisprudence of Land Regulation

Historically, the U.S. federal government has enacted land regulations to further its colonial agenda.18 However, the power to regulate land use has shifted locally and immense municipal control was solidified following Buchanan v. Warley and Village of Euclid v. Ambler Realty Co. 19 Extensive municipal power

13 Id.

14 U.S. GOVERNMENT ACCOUNTABILITY OFFICE, HOMELESSNESS: BETTER HUD OVERSIGHT OF DATA COLLECTION COULD IMPROVE ESTIMATES OF HOMELESS POPULATION 1-39 (July 2020), https://www.gao.gov/assets/gao-20-433.pdf. 15 OUT OF REACH, supra note 1.

16 Eric Tars, NATIONAL CENTER ON HOMELESSNESS & POVERTY, VIOLATIONS OF THE HUMAN RIGHTS OF PERSONS EXPERIENCING HOMELESSNESS IN THE UNITED STATES: A REPORT TO THE SPECIAL RAPPORTEUR ON EXTREME POVERTY & HUMAN RIGHTS 1-6 (Oct. 16, 2017), https://nlchp.org/wp-content/uploads/2018/10/sr-ep-2017.pdf. 17 Jackie Smith & Emily Cummins, U.N. to U.S. Government: Do Better on Housing, SHELTERFORCE (June 3, 2019), https://shelterforce.org/2019/06/03/u-n-to-u-s-governmentdo-better-on-housing/. 18 Evelyn Nanako Glenn, Settler Colonialism as Structure: A Framework for Comparative Studies of U.S. Race and Gender Formation, 1 AM. SOCIOLOGICAL ASS’N 54-71 (June 2, 2020), https://journals.sagepub.com/doi/10.1177/2332649214560440. 19 James W. Ely, Jr., Reflections on Buchanan v. Warley, Property Rights, and Race, 51 VAND. L. REV. 953-72 (1998), https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=210 7&context=vlr.

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has enabled local authorities to enact regulations that foster exclusionary zoning, which has created barriers to equitable housing opportunities.

Land regulation in the U.S. has its roots in colonialism.20 Anglo-American settlers colonized the U.S. by displacing Indigenous people from their land using federal policy and force.21 For example, the 1830 Indian Removal Act allowed the federal government to negotiate removal treaties with Indigenous communities living west of the Mississippi River, in exchange for western land.22 While the Act was purportedly meant to be voluntary and peaceful, those who did not comply were forced to leave.23 Similar to municipal zoning, early federal land policy spatially marginalized underrepresented groups. Power vested in land regulation laws and its developers have enabled such exclusionary practices to persist.

Federal land policy established the government’s ongoing interest in how individuals and groups are distributed through space. Zoning embodies this same government interest and became an adopted practice of land regulation following federal colonial measures.24 Zoning achieves four things: it divides regions into zones, specifies the types of structures that can be built within each zone, creates limits on the dimensions of each structure type, and defines the process local governments may grant new development.25 Specifically, exclusionary zoning relies on abundant single-family zoning at the expense of an adequate multi-family housing supply.26

20 Glenn, supra note 18. 21 Id. 22 Indian Removal Act, S. 102, 21ST CONG. (1830). 23 Id. 24 Jonathan L. Wharton, Gentrification: The New Colonialism in the Modern Era, 4 F. PUB. POL’Y 1-8 (2008). 25 Jenny Schuetz, Is Zoning a Useful Tool or a Regulatory Barrier?, BROOKINGS (Oct. 31, 2019), https://www.brookings.edu/research/is-zoning-a-useful-tool-or-a-regulatory-barrier/. 26 Revisiting Single-Family Zoning: Creating Options for a More Affordable Housing Supply, LOCAL GOVERNMENT COMMISSION (2019), https://www.lgc.org/newsletter/revisiting-single-familyzoning-creating-options-for-a-more-affordable-housing-supply/ [hereinafter Revisiting].

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Early zoning efforts in the U.S. began in 1885 and, by the 1930s, nearly all states had developed zoning laws.27 Although zoning was originally established in the interest of public welfare, it has created exclusionary barriers against prospective residents from underserved racial and economic groups. In 1910, Ordinance 610 in Baltimore, Maryland explicitly banned any Black individual from moving “into a block in which more than half [were] White” and that “no White person could move into a block in which more than half the residents [were] colored.” 28 The overtly discriminatory language of early municipal zoning laws, like Ordinance 610, enabled local government to further segregation.

It was not until 1917, with Buchanan v. Warley, that explicitly racial language in land regulation ordinances was declared unconstitutional.29 Modeled after Ordinance 610, a 1914 city ordinance in Louisville, Kentucky prevented white and non-white individuals from living in the same neighborhoods.30 The Court declared that the ordinance violated individual property rights protected by the Fourteenth Amendment as it took away the right to acquire, enjoy, and dispose of property.31 Following this decision, lower courts struck down all active racial zoning plans.32

However, the legal language of zoning laws adapted to preserve segregation in more implicit ways. Village of Euclid v. Ambler Realty Co. was a key case that empowered local governments to enact land use regulations that mirror the effects of overtly exclusionary zoning. Specifically, the Court found a zoning ordinance that placed limitations on certain areas of land, such as through restricting industries, multi-family and single-family houses, and size and height of developments, to be constitutional.33 Such policies on residential types and

27 Amanda Erickson, The Birth of Zoning Codes, a History, BLOOMBERG (June 19, 2012), https://www.bloomberg.com/news/articles/2012-06-19/the-birth-of-zoning-codes-a-history. 28 Anne A. Burnett & Peter M. Dolkart, Baltimore Housing Policy, 7 CMTY. SCOPE 1-17 (2019).

29 Christopher Silver, URBAN PLANNING AND THE AFRICAN AMERICAN COMMUNITY: IN THE SHADOWS 38-42 (1st ed.1997). 30 Buchanan v. Warley, 245 U.S. 60 (1917). 31 Id. 32 Silver, supra note 29. 33 Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

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dimensions have restricted lower-cost and higher-density housing opportunities.34 As a result, economic and racial diversity among residential areas has been limited.35

Single-family zoning following Buchanan and Euclid surged, maintaining socioeconomic barriers to entry into neighborhoods without the explicit language. Single-family units are significantly more expensive to purchase or rent than multi-family units due to more restrictive lot regulations for a single dwelling.36 The cost has made it difficult for many low-income households to find affordable housing in single-family areas.37 Furthermore, exclusionary zoning regulations have limited multi-family housing supply.38 Buoyed by the Court’s decision in Euclid, municipalities have enacted zoning laws that uphold socioeconomic barriers, which will be analyzed in further sections.

Ultimately, zoning laws are a relic of colonial land regulations that unjustly limits housing opportunities for individuals on the basis of race and socioeconomic status. Together, Buchanan and Euclid solidified the role of local government in land use decision-making. Municipalities have leveraged the significant power given to them in ways that allow housing segregation to survive. While overt exclusion-based zoning was outlawed, measures such as single-family zoning achieved similar effects, which I will examine in the next section.

II. Zoning Exclusiveness and Housing Disparities

The exclusivity of U.S. zoning laws is one of the main contributors to housing inequity.39 Regulations also affect the production of affordable and adequate housing, and the lack of housing supply compared to the growth of

34 Maya Brennan et al., How Zoning Shapes our Lives, URBAN INSTITUTE (June 12, 2019), https://housingmatters.urban.org/articles/how-zoning-shapes-our-lives. 35 Id. 36 Michael Manville et al., It’s Time to End Single-Family Zoning, 86 J. AM. PLAN. ASS’N. 106-112 (Dec. 6, 2019). 37 Id. 38 Brennan et al., supra note 34. 39 Sahar Segal, The International Human Right to Adequate Housing: An Economic Approach, 20 CHI. J INT’L L. 486-525 (2020).

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demand substantially contributes to raised housing costs.40 Specifically, limitations on land use type, density, minimum lot size, parking and other factors reduce the availability of residential land and make housing less affordable.41 Residential use of single-family and multi-family zoning in particular and their related dimensions make adequate housing disproportionately inaccessible for many low-income households and people of color.42

This section will examine how the legal language in zoning laws reinforce economic and racial barriers that infringe on the right to adequate housing. Furthermore, it will consider the extensive role of municipal power in shaping zoning restrictions that generate housing disparities.

E. Zoning Restrictions and Human Rights

The restrictive language of zoning laws limits the accessibility of adequate housing by preventing a sufficient amount of affordable and available units. The Village of Euclid v. Ambler Realty Co. ruling empowered cities to restrict a majority of land to single-family housing, leaving those unable to afford those units with little housing opportunities.43 Municipalities following Euclid also held the authority to develop laws that have outright prohibited any multi-family units in single-family areas.44 The exclusivity of single-family zoning is further reinforced by the dimensional requirements for all structures within a zone. Requirements include minimum lot sizes as well as height maximums, both of which raise prices by restricting zoned areas to single-family homes, which are

40 Calder, supra note 7. 41 Jenny Schuetz, To improve housing affordability, we need better alignment of zoning, taxes, and subsidies, BROOKINGS (Jan. 7, 2020), https://www.brookings.edu/research/is-zoning-a-usefultool-or-a-regulatory-barrier/. 42 Revisiting, supra note 26. 43 John M. Quigley & Larry A. Rosenthal, The Effects of Land Use Regulation on the Price of Housing: What Do We Know? What Can We Learn?, 8 CITYSCAPE: J. DEV. AND RES. 69-137 (2005). 44 Manville et al., supra note 36.

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typically more expensive for a household than a multi-family unit due to utilizing less land per home.45

Single-family zoning essentially excludes many low-income families from living in selected neighborhoods. In 2017, 4% of detached, single-family homes nationwide were occupied by renters with incomes of less than $25,000.46 Among low-income groups, households of color are most heavily impacted by housing inequities.47 In 2019, 43% of Black households, 40% of Latinx households, and 32% of Asian households spent over 30% of their incomes on housing compared to 25% of White households.48 The greater housing cost burdens which fall on underserved racial groups are to an extent due to lowerincomes, though racial inequities also exist for those in the same income groups.49 Thus, the discrimination outlawed by Buchanan v. Warley continues to exist in more insidious ways. The right to adequate housing essentially has been insufficiently fulfilled due to restrictive zoning measures that most severely affect low-income and underserved racial groups.

Those who cannot afford homes in single-family zoned areas are left to choose from limited multifamily housing options, often located in neighborhoods with fewer high-quality amenities such as schools and parks.50 Furthermore, compared to single-family housing, multi-family units are often zoned adjacent to highways and areas with a higher risk of air pollutants, posing a severe health threat to residents.51 In California, the lowest-income households reside in areas where particulate matter air pollution is 10% higher than the state average, whereas the highest-income households reside in areas 13% below the

45 Cecile Murray & Jenny Schuetz, Is California’s Apartment Market Broken? The Relationship Between Zoning, Rents, and Multifamily Development, BROOKINGS (July 2019), https://www.brookings.edu/wp-content/uploads/2019/07/20190711_metro_Is-CaliforniaApartment-Market-Broken-Schuetz-Murray.pdf. 46 Manville et al., supra note 36. 47 Airgood-Obrycki et al., supra note 3. 48 Id. 49 Id. 50 Brennan et al., supra note 34. 51 Id.

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average.52 In cities where residential zoning leaves minimal room for multifamily development, the lack of supply frequently leads to higher housing prices for multi-family units; the least expensive units are in the least desirable areas with the most health risks.53 The lack of affordable multi-family units leave many low-income individuals with close to zero affordable and adequate housing options.54

The consequences of housing disparities caused by zoning is devastating to the lives, work, and safety of those affected. Restrictive zoning limits access to many opportunities include higher paying jobs, higher quality schools, and safer, unpolluted environments.55 Although formally outlawed, discriminatory land regulation persists in how local zoning policies most severely restrict lowincome households and people of color from finding housing in communities of opportunity. As a result, the right to affordable and adequate housing is bound by socioeconomic status.

F. Constraints of Single-Family Zoning: Los Angeles

One example of the drastic influence residential zoning can have on an area and its people are the zoning measures of Los Angeles, California. Around 62% of the city’s residential land is subject to single-family zoning.56 In other words, in the majority of residential area in Los Angeles, it is illegal to develop anything other than a detached, single family home.57

52 Inequitable Exposure to Air Pollution from Vehicles in California, UNION OF CONCERNED SCIENTISTS (Feb. 2019), https://www.ucsusa.org/resources/inequitable-exposure-air-pollutionvehicles-california-2019. 53 Brennan et al., supra note 34. 54 Pamela Blumenthal et al., The Cost of Affordable Housing: Does it Pencil Out?, URBAN INSTITUTE (July 2016), https://apps.urban.org/features/cost-of-affordable-housing/. 55 Brennan et al., supra note 34. 56 Liam Dillon, California could bring radical change to single-family-home neighborhoods, L.A. TIMES (May 13, 2019), https://www.latimes.com/politics/la-pol-ca-single-family-zoningchanges-senate-bill-50-legislation-20190513-story.html. 57 Emily Badger & Quoctrung Bui, Cities Start to Question an American Ideal: A House With a Yard on Every Lot, N.Y. TIMES (June 18, 2019), https://www.nytimes.com/interactive/2019/06/18/upshot/cities-across-america-questionsingle-family-zoning.html.

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Language in Los Angeles single-family zoning ordinances constrains allowable structure use, yard setbacks, lot area, and maximum residential floor area and massing.58 Per the city’s municipal zoning code, the land use of structures in single-family zoned areas must comply with a “one-family dwelling,”59 which refers to one unit with “a group of two or more rooms, one of which is a kitchen, designed for occupancy by one family for living and sleeping purposes.”60 This explicitly rules out the opportunity for multi-family dwelling units in single-family zones.

Dimensional constraints reinforce the exclusiveness of single-family zoning, further preventing construction of affordable units and multi-family housing. Relevant lot area regulations in Los Angeles single-family zones dictate that “every lot shall have a minimum width of 50 feet in depth and a minimum area of 5,000 square feet” and “minimum lot area per dwelling unit shall also be 5,000 square feet, except for two-family dwellings on lots having a side lot adjoining a lot in a commercial or industrial zone.61 These constraints ensure single-family homes on single-family lots have a significant minimum area for a single unit, guaranteeing high construction costs and property values and thus pricing out many low-income households.62 In comparison, every lot in multifamily zones in Los Angeles must also “have a minimum width of 50 feet and a minimum area of 5,000 feet,” but “the minimum lot area per dwelling unit shall be 800 square feet.”63 The multi-family lot regulations are able to reduce per unit costs, therefore increasing affordability compared to a single-unit home in the same area.64

58 A Short Introduction to Zoning in Los Angeles, Let’s Go L.A. (Sept. 1, 2016), https://letsgola.wordpress.com/2016/09/01/a-short-introduction-to-zoning-in-los-angeles/. 59 L.A., Cal., Mun. Code § 12.08. 60 L.A., Cal., Mun. Code § 12.03. 61 L.A. § 12.08. 62 Eric Gaffe, Why Minimum Lot Sizes Are a Growing Affordability Problem, SIDEWALK LABS (Jan. 24, 2020), https://www.sidewalklabs.com/blog/why-minimum-lot-sizes-are-a-growingaffordability-problem/. 63 L.A., Cal., Mun. Code § 12.10. 64 Murray & Schuetz, supra note 45

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Additionally, notable single-family yard setback constraints in Los Angeles include “a front of not less than 20% of the depth of the lot…without exceeding 20 feet,” and “additional one-foot side yard for each story above the second story.”65 Such dimensions require structures to leave considerable space for a yard which may exceed what is needed for access or privacy.66 These constrictive requirements prevent structures with more units from being considered without an increase in lot size and, thus, costs, curtailing the population a neighborhood can accommodate.

Relevant single-family maximum residential floor area and massing regulations in Los Angeles zoning codes maintain “for lots outside of a hillside or coastal zone, the maximum residential floor area contained in all buildings and accessory buildings shall not exceed 45 percent of the lot area” and “maximum lot coverage, maximum height of building, and maximum height at which the encroachment plan shall not exceed the amounts specified for each zone.”67 These constraints limit developers’ ability to construct more units and multistory dwellings by placing a hard limit on the floor-area ratio (FAR) of new developments.

Single-family-only zoning, as it is legally enforced in Los Angeles, prevents the sufficient construction of affordable housing.68 Land use and dimensional constraints of single-family-only zoning prevent the development of affordable units as well as multi-family housing, such as duplexes and triplexes, that could otherwise provide a more affordable option.

Crucially, Los Angeles single-family zoning exclusionary measures and dimensions is representative of much of residential zoning regulations nationwide. In many cities across the country, 75% of residential land is zoned

65 L.A. § 12.08. 66 Dennis Stuckey et al., An Analysis of Regulatory Barriers to Housing Affordability in Lancaster County, LANCASTER PLANNING COMMISSION 1-59 (Oct. 2009) https://www.lhop.org/wpcontent/uploads/2019/04/Analysis-of-Regulatory-Barriers-to-Housing-Affordability.pdf. 67 L.A. § 12.08. 68 Pramod Sukumaran, Can Ending Single-Family Zones Help the Affordable Housing Crisis?, Salud America! (Jan. 31, 2020), https://salud-america.org/can-ending-single-family-zones-help-theaffordable-housing-crisis/.

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for a detached single-family home.69 Cities with considerable amounts of residential land zoned for detached, single-family homes include Portland (77%), Seattle (81%), Arlington (89%), and Minneapolis (70%).70 To consider the supply restriction single-family zoning creates, in Minneapolis, the gradual development of triplexes on just 5% of single-family lots of at least 5,000 square feet could produce an estimated 6,200 housing units.71 Through the language in zoning ordinances, municipal authorities are able to dictate the types of homes and thus individuals that can live in certain areas. Highly restrictive measures such as single-family perpetuate segregation by creating distinct socioeconomic barriers to entry to adequate and affordable housing.

G. Zoning and Housing Supply

Facilitated through exclusionary zoning measures, the national shortage of affordable and adequate housing supply has limited the right to housing for many. The shortage of affordable homes across the U.S. most severely affects lower-income groups.72 Exclusionary zoning has significantly contributed to factors reducing housing supply growth where housing demand growth is not sufficiently met, raising costs.73 Zoning constraints tend to limit the amount of houses that can be built in places where demand is the highest.74 Supply is limited through zoning by development restrictions on housing types, such as multi-family housing from single-family zones, and by relative dimensions, including minimum lot size and height.75 Furthermore, the extensive and costly development standards of zoning often deters or prevents developers from

69 Badger & Bui, supra note 57. 70 Id. 71 Id. 72 THE GAP, supra note 2. 73 Calder, supra note 7 74 THE STATE, supra note 3 75 Brennan et al., supra note 34.

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building more houses.76 On average, regulations are found to make up 32% of development costs.77

As single-family homes tend to be more expensive compared to multifamily units, individuals unable to afford single-family homes are left to seek more affordable housing in multifamily developments.78 However, as noted before, multi-family zoning supply is severely limited, and units in multi-family zoned neighborhoods also become expensive.79 The lack of affordable housing supply creates significant barriers for many low-income households to find adequate housing. Moreover, multi-family units are competed for by both low- and higher-income households, further reducing the amount of affordable housing supply.80

Restrictive zoning regulations essentially are unable to meet the demand for affordable housing supply, whereby low-income households are most severely limited to the right of adequate housing. Over 30% of households are deemed housing-cost burdened, spending at or above 30% of their income on housing.81 Extremely low-renters, who compromise over 10.9 million of the nation’s 47.3 million renters, face a shortage of 7.3 million affordable and available homes as no state in the nation has a sufficient supply.82 To attain adequate and affordable housing supply, zoning reform should be considered amongst a multitude of factors to produce effective results. Other components to account for include construction costs, economic conditions, labor costs and availability, and housing demand.83 Furthermore, the role of power should be considered relative

76 Calder, supra note 7. 77 Lisa Blackwell & Kimble Ratliff, The Housing Affordability Challenge, National Multifamily Housing Council (2020), https://www.nmhc.org/advocacy/issue-fact-sheet/affordablehousing-fact-sheet/. 78 Rebecca Phillips, To Dream the Impossible Dream, WSU INSIDER (July 21, 2020), https://news.wsu.edu/2020/07/21/dream-impossible-dream/. 79 Brennan, et al., supra note 34. 80 THE GAP, supra note 2. 81 THE STATE, supra note 3. 82 THE GAP, supra note 2. 83 Lydia R.P. Lo et al., Land Use Reforms for Housing Supply: Case Studies on the Process for Passing and Implementing Regulation Changes, URBAN INST. 1-49 (Oct. 2020), https://www.urban.org/ sites/default/files/publication/103104/land-use-reforms-for-housing-supply_0.pdf.

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to affordable housing supply as local control has historically been used to exclude multi-family and low-income housing development.

H. Effects of Zoning Exclusiveness on Society & Economy

In addition to issues of affordability, housing disparities also significantly impact the social and economic growth of areas that are important for the development of communities and those living in them. As mentioned before, zoning laws uphold economic and racial barriers to adequate housing. Exclusion from higher opportunity areas limits an individual’s access to better amenities such as higher-quality schools, healthier stores, and available work.84 Higheropportunity areas tend to be the places with the highest housing demand.85 Especially in cities of strong economic growth, costly zoning regulations leave low-income households unable to afford the higher housing prices.86 Thus, many low-income workers are left to live in areas with fewer job opportunities, which also limits U.S. productivity if workers are unable to best utilize skill sets.87 The discrepancy of labor supply to job opportunity due to zoning regulations decreases economic output by an estimated 8.9%.88 Stronger social and economic growth could be better achieved through more affordable and adequate housing supply, which can benefit multiple factors of a community.

Essentially, the lack of affordable housing opportunities that would accommodate low-income individuals in amenity-rich areas threatens the growth of local economies by limiting economic opportunity. Economic opportunity extends to social mobility, which those in higher-opportunity areas have greater access to. However, the legal language in zoning laws upholds disparities which calls for real systemic change. This would require creating the opportunity for inclusionary housing by altering the legal language of zoning

84 Brennan et al., supra note 3 85 Murray & Schuetz, supra note 45. 86 Id. 87 Calder, supra note 7. 88 Id.

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laws. Specifically, changing the language relating to land use and dimensional features in order to allow a wider range of housing options in a certain area.

III. Recommendations to Create Housing Opportunities for All

When approaching the exclusionary language of zoning laws as it contributes to housing disparities, the U.S. must work toward a more inclusive future. Local context is important as specific changes in the legal language will depend on a multitude of factors in a certain area.89 Some items to consider include a city's current housing circumstances, history, people, economy, environment, and relevant state laws. Inclusionary efforts should also account for preservation and protection of affordable housing and those already residing in them.90 As mentioned before, zoning reform used alone may not produce sufficient supply of affordable housing and should be used amongst other measures.91 However, in addressing zoning’s contributions and exclusionary nature there are a few reformative actions cities should consider using to help alleviate the lack of affordable and adequate housing supply.

Zoning reform efforts should focus on increasing access to exclusive neighborhoods that could otherwise satisfy a community’s affordable housing supply need. For instance, single-family-only zoned areas should allow more housing types, such as duplexes and triplexes, in order to break the barriers to entry and allow for greater multifamily housing supply. In turn, this would also allow more households to access neighborhood assets, such as better schools, employment, and greenspace.92 Efforts to include underserved households to mixed-income areas may also help reduce multi-generational poverty.93 There

89 Solomon Greene & Jorge Gonzalez, How Communities Are Rethinking Zoning to Improve Housing Affordability and Access to Opportunity, Urban Wire (June 12, 2019), https://www.urban.org/urban-wire/how-communities-are-rethinking-zoning-improve-housingaffordability-and-access-opportunity. 90 Allison Allbee et al., Preserving, Protecting and Expanding Affordable Housing, CHANGELAB SOLUTIONS 3-51 (2015). 91 Lo et al., supra note 83. 92 Brennan et al., supra note 34. 93 Raj Chetty et al., The Effects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment, 106 AM. ECON. R. 855-902 (2016).

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are two key alterations to existing land use policies that government officials should seek to implement. Local leaders ought to embrace mixed-use zoning as a strategy to foster inclusive and vibrant communities, and state leaders ought to curtail excessive and misused local control, which allowed for exclusionary zoning in the first place.

A. Mixed-Use Zoning

One approach is to allocate more mixed-use zoning in areas that previously excluded it. Mixed-use zoning is a development project that provides more than one type of family dwelling among a shared building or establishment region.94 Projects could involve any blend of residential, recreational, retail, medical, commercial, or industrial uses.95 For the purposes of breaking down socioeconomic barriers, a variety of mixed-use developments in an area should give the opportunity for more residential zoning, especially where affordable units are limited. Depending on the demographics and needs of neighborhoods, available land, and existing zoning schemes, zoning laws should allocate a certain portion of developments to be mixed-use.96

Incorporating mixed-use zoning into residential areas could entail changing the language to allow multi-family units, including duplexes, triplexes, or low apartment complexes, to coexist in areas that were previously exclusive from such units. Affordable multi-family options in various use areas that have higherquality amenities, such as single-family-only residential and commercial areas, may offer more opportunities for both housing and social and economic mobility. Allowing for a variety of housing options that accommodate the needs of an area can help alleviate housing barriers by providing greater housing opportunities and promoting equity.

94 What Does "Mixed-Use Development" Mean?, FEDERAL RESERVE BANK OF MINNEAPOLIS (Dec. 1, 1998), https://www.minneapolisfed.org/article/1998/what-does-mixeduse-developmentmean. 95 Id. 96 Municipal Corner Planning Toolbox: Mixed-use Development, Chester County Planning Commission, https://www.chescoplanning.org/MuniCorner/Tools/MixedUse.cfm.

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B. Inclusionary Zoning

Another approach to eliminating the exclusivity of zoning laws is through inclusionary zoning (IZ) where there is sufficient housing supply. IZ requires that a certain amount of new housing development must be affordable to low- or moderate-income households.97 IZ must be accompanied by sufficient supply as developers may otherwise be economically disincentivized to construct affordable housing, which could then lead to even higher housing prices.98 Overall, housing supply may be achieved in part through the efforts mentioned of mixed-use development and allowing multi-family units in single-family-only zones. Though where there is enough supply, IZ helps mixed-income development promote affordable housing in a certain area.99 In this way, IZ helps reduce housing disparities and dismantle economic barriers to adequate housing.

The implementation of IZ in legal writing could entail requiring a certain percent of housing to be accessible for households considered low-income in a given area. This is critical for highly exclusionary areas, such as Los Angeles, to take become more inclusionary. Montgomery County, Maryland practices inclusionary zoning by requiring developers to allocate 12 to 15% of new homes at below-market rates.100 Furthermore, the public housing authority is designated to purchase a part of these units.101 Since implementation of the law in 1974, over 12,000 affordable units have been contracted.102

97 At a Glance: Inclusionary Zoning (IZ), HOMES FOR ALL, https://homeforallsmc.org/toolkits/inclusionary-zoning/ [hereinafter At a Glance] (last visited Apr. 21, 2021). 98 Calder, supra note 7. 99 At a Glance, supra note 97. 100 Heather Schwartz et al., Do the Joneses Help You Keep Up? A Natural Experiment in Exposure to Nonpoor Neighbors, 25 HOUS. POL’Y DEB. 320-52 (2015).

101 Id. 102 Donna Kimura, Montgomery County, Md.: 12,000 Units Created by Montgomery County Program, Affordable Housing Finance (Oct. 1. 2006), https://www.housingfinance.com/policylegislation/montgomery-county-md-12-000-units-created-bymontgomery-county-program_o

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Inclusionary zoning can help spread affordable housing as well as alleviate displacement in neighborhoods undergoing development and gentrification.103 IZ is a balance for communities by providing a middle ground to all levels of income. Additionally, IZ acts as a market-based tool that supports private sector development, resulting in less public investment compared to other affordable housing schemes.104 By generating local revenue and increasing affordability for all income earners, IZ can provide overwhelming benefit to multiple parts of a community.

C. Rethinking Municipal Power

A different approach to mitigating the exclusionary effects of zoning is through reducing the extensive and misused power municipalities have over land regulations by providing inclusionary standards from higher government levels. Local governments currently hold excessive power to shape communities, which in part is how exclusionary barriers have been able to be widely produced.105 In order to compel municipalities to implement inclusive zoning practices such as mixed-use and IZ, higher levels of government could intervene to guide such measures.106 For instance, California SB 50 would have superseded municipal authority by allowing higher density housing near public transit and job-rich areas.107 However, local governments not in favor of SB 50’s provisions could otherwise develop their own plan within two years of the bill’s adoption that produces the same amount of housing.108 Aside from the components of SB 50’s proposed method, the application process models how

103 At a Glance, supra note 97.

104 Id. 105 Ely, Jr., supra note 19. 106 Gretchen Blankinship & Andy Winkler, Eliminating Land-Use Barriers to Build More Affordable Homes, BIPARTISAN POLICY CENTER (Sept. 26, 2019), https://bipartisanpolicy.org/blog/eliminating-land-use-barriers-to-build-more-affordablehomes/. 107 Erin Baldassari, Time Is Ticking on Controversial SB 50 Bill to Boost New Housing in California, KQED (Jan. 28. 2020), https://www.kqed.org/news/11798357/time-is-ticking-on-controversialsb-50-bill-to-boost-new-housing-in-california.

108 Id.

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inclusionary practices may be ensured by higher levels of government holding local powers more accountable to take action. State authorities could use this to propose policies for areas where income and racial disparities are most imbalanced, wherein they must include a corresponding percent of multi-family units in developments. Furthermore, restructuring local control over public amenities can help ensure adequate access to resources that may otherwise be locationally restricted.

Conclusion

Zoning originated as a mechanism of exclusion. Thus, it is unsurprising that zoning laws continue to deepen housing disparities today. The posturing of the U.S. in recognizing the human right to housing yet enabling exclusionary land regulation ought to be addressed through decisive action. The language of current zoning practices enables disparities and systemic barriers to persist. To combat this issue, there are a number of effective strategies. Among them are mixed-use zoning, inclusionary zoning, and restructuring local power. The significant housing issues the U.S. faces need to be addressed by tackling the root of the issue (power imbalance and misapplication) and by legally establishing a thoughtful and equitable system of land use.

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Elana Luo

California Must Decarcerate in Response to the COVID-19 Pandemic

ABSTRACT. This article calls for a rapid, significant decrease in the population of California’s prison facilities as a moral imperative and constitutional requirement to protect incarcerated people from the effects of the novel coronavirus. I will first discuss the ongoing legal efforts to decarcerate detention facilities in California during the COVID-19 pandemic. Then, engaging with the United States Supreme Court ruling in Brown v. Plata, I will argue that the failure of the state to rapidly address and take action to protect those who are incarcerated is a violation of the Eighth Amendment’s protection against cruel and unusual punishment. Furthermore, actions taken during the pandemic to decarcerate should be a part of a larger effort to combat mass incarceration, respect the dignity of people who are incarcerated, and shift the focus of the justice system from punishment to rehabilitation.

Introduction

Adnan Khan was formerly incarcerated at San Quentin State Prison.1 In September of 2020, he discovered his friend had died from COVID-19 in prison.2 After a botched transfer to San Quentin, his friend was mixed with others who were positive and contracted COVID-19.3 His friend then died from

1 Adnan Khan, My Friend Died in San Quentin Due to COVID-19. His Death Was Entirely Preventable, THE APPEAL, Aug. 5, 2020, https://theappeal.org/my-friend-died-in-san-quentindue-to-covid-19-his-death-was-entirely-preventable/. 2 Id. 3 Id.

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the disease.4 His death was a direct result of the recklessness of state prison officials and, in effect, he suffered the death penalty solely for the “crime” of being incarcerated in a crowded state facility during a global pandemic.

Thus, while the COVID-19 pandemic may have quarantined millions of people, it has also foregrounded the discussion of just the opposite: decarceration of correctional facilities. The highly contagious coronavirus has turned detention facilities across the nation into “petri dishes of disease,” making it all the more urgent for the government to address and rectify the larger problems of inhumane prison conditions and overcrowding.5 The numerous outbreaks of disease and many subsequent deaths of those incarcerated in California’s prisons have exposed the government’s carelessness toward those in its custody. I will discuss the consequences of unchecked coronavirus transmission in California prison facilities in Part I. First and foremost, these consequences are dangerous and, oftentimes, fatal to those who are incarcerated. Additionally, the government’s negligence amounts to a constitutional violation. In Part II, I will discuss the legal argument against inhumane prison conditions and the legal developments around this issue including lawsuits against the California Department of Corrections and Rehabilitation (CDCR), judicial responses to petitions for habeas corpus, and court orders. However, I will find all of these measures inadequate and, in Part III, will arrive at the conclusion that the only viable solution to the problem of overcrowding during COVID-19 is decarceration by rapid release. I will then contextualize this recommendation in the movement for prison abolition in Part IV. I will discuss decarceration in relation to the larger issue of shifting the goal of the American justice system from punishment to true rehabilitation.

Finally, as a note, the pandemic is ongoing at the time of this article’s publication and the case count and death toll from COVID-19 continues to rise

4 Id. 5 Timothy Williams, et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, NEW YORK TIMES, Mar. 30, 2020, https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html.

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daily. This article will focus on data and developments through the end of 2020.

I. Dangerous Living Conditions and Discrimination Stemming from Covid-19 In Prison

A. Unsanitary and Unsafe Conditions in Prisons During the Pandemic

In 2020, the overcrowded detention facilities of California became a breeding ground for COVID-19. In centers of all kinds, men, women, and children who are incarcerated have become particularly exposed to the rapidly spreading virus, creating a horrifying punitive experience. By the end of 2020, there were over 40,000 confirmed cases in all CDCR facilities.6 This is nearly half of the total incarcerated population at the CDCR, which is some 90,000.7 The death toll was reported to be 129 at the end of the year.8

In May of 2020, April Harris, a woman incarcerated at the California Institution for Women in Chino wrote in an email to the California Coalition for Women Prisoners that almost her entire unit had tested positive for the coronavirus and that they had not been given water or cleaning supplies.9 Furthermore, women who had tested positive still worked in communal spaces such as the kitchen, canteen, or prison factory,10 where they could likely infect more people.

Incarcerated children were just as vulnerable. The Division of Juvenile Justice (DJJ) has a population less than 800, and as of December 14th, 2020, 119 youth, or 15% of the population, had tested positive for COVID-19.11 Over the summer of 2020, those detained in the state youth correctional system were

6 Population COVID-19 Tracking, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, https://www.cdcr.ca.gov/covid19/population-status-tracking/ (last visited Jan. 1, 2020). 7 Id. 8 Id. 9 Jonah Valdez, ‘We are terrified’: Coronavirus Outbreak Reported at Chino Women’s Prison, THE DAILY BULLETIN, May 17, 2020, https://www.dailybulletin.com/2020/05/17/we-are-terrifiedcoronavirus-outbreak-reported-at-chino-womens-prison/. 10 Id. 11 Renee Menart and Maureen Washburn, COVID-19 Cases Surging in CA Youth Prisons, CENTER ON JUVENILE AND CRIMINAL JUSTICE, Dec. 15, 2020, http://www.cjcj.org/news/13049.

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trapped in stiflingly hot cells, spending most of the day in close proximity to others and in shared facilities.12

The pandemic has also imposed the possibility of solitary confinement or the de facto death penalty on all people incarcerated in detention facilities. Regardless of the crime that they have committed, anyone in a detention facility during the pandemic is vulnerable to catching the virus. Though some may recover from the disease, solitary confinement and death are two other grave outcomes.

Rather than providing proper medical care, prison officials at San Quentin’s notorious maximum-security prison have been reported to use solitary confinement to house people sick with the coronavirus.13 Unfortunately, this practice is neither unique to nor uncommon during the COVID-19 era. During flu epidemics, San Quentin officials commonly send sick people to “The Hole” for “medical isolation.”14 Michael D. Adams, an incarcerated person at San Quentin who was sent to “The Hole” during the 2019 flu season, described his solitary cell as filthy and littered with dirty clothes and old medication strewn about.15 Edward Dewayne Brooks, who experienced isolation due to the flu in 2017, described his cell as having “snot blown on the walls and was extremely grimy and dusty.”16 During the COVID-19 pandemic, San Quentin has made increased use of solitary confinement to deal with those sick with the coronavirus.17 The use of punishment in response to illness is a particularly cruel practice that causes undue suffering to people who are incarcerated. On top of suffering from the disease, they are forced to suffer solitary confinement, which, in the words of Supreme Court Justice Sonia Sotomayor, “Imprints on those it

12 Id. 13 Juan Moreno Haines, “Man Down:” Left in the Hole at San Quentin During a Coronavirus Pandemic, SOLITARY WATCH, Jul. 7, 2020, https://solitarywatch.org/2020/07/07/man-downleft-in-the-hole-at-san-quentin-during-a-coronavirus-crisis/. 14 Juan Moreno Haines, In San Quentin Prison, Getting the Flu Can Land You in Solitary Confinement, THE APPEAL, Feb. 20, 2020, https://theappeal.org/san-quentin-prison-flusolitary-confinement/. 15 Id. 16 Id. 17 Haines, Man Down, supra note 13.

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clutches a wide range of psychological scars.”18 These can include emotions of panic and rage, anxiety, depression, deteriorated cognitive ability, psychosis, and paranoia.19

Then of course there is the fatal outcome for those who catch the virus and do not recover: death. The death penalty is usually reserved for people who have been convicted of extremely serious crimes and ordered after extensive legal consideration. The Supreme Court in Coker v. Georgia (1977) ruled that the severity of a punishment must be proportionate to the crime committed.20 Any punishment that is disproportionate is a violation of the Eighth Amendment’s protection against “excessive” punishment.21

But those who die after contracting the virus in prison have essentially become victims of the death penalty regardless of the original crime they were imprisoned for. Indeed, advocates for prison releases have begun calling for “No execution by COVID-19.”22 The state’s failure to control the spread of COVID19 in prisons has effectively reduced the criteria for who receive these extreme punishments at best to chance, and at worst to discrimination against those who are elderly, those who have pre-existing medical issues, or those who are most vulnerable to falling ill and succumbing to it.

B. Discrimination due to Coronavirus Vulnerability and

Prison Demographics

The coronavirus hospitalization and death rates for older people and people of color are higher than their younger and white counterparts, respectively: for example, the hospitalization rate for people aged 65-74 is 5 times higher than the rate for 18–29-year-olds, 23 and the hospitalization rate for Hispanic or Latino

18Apocdaca v. Raemisch, 139 S. Ct. 5, 10 (2018) (Sotomayor, J., statement regarding denial of certiorari). 19 Mary Murphy Corcroan, Effects of Solitary Confinement on the Well Being of Prison Inmates, APPLIED PSYCHOLOGY OPUS, https://wp.nyu.edu/steinhardt-appsych_opus/effects-of-solitaryconfinement-on-the-well-being-of-prison-inmates/. 20 Coker v. Georgia, 433 U.S. 584, 592 (1977). 21 Id. 22 Bruce Western and Emily Wang, California Must Reduce Jail and Prison Populations to Fight COVID-19—and Racism, THE SACRAMENTO BEE, Nov. 6, 2020, https://www.sacbee.com/ opinion/california-forum/article246788412.html. 23 Hospitalization and Death by Age, CENTERS FOR DISEASE CONTROL AND PREVENTION, Feb. 18,

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people is 3.1 times higher than the rate for non-Hispanic white people.24

The California State Prison system has long had a problem of imprisoning disproportionate numbers of people of color. Black and Hispanic people comprised 28.38% and 43.75% of the total in-custody population of the CDCR in June 2018, respectively, as compared to the 21.18% that are white.25 This is despite the fact that Black, Hispanic, and white people are estimated to comprise 6.5%, 39.4%, and 71.9% of the total California population, respectively.26

Those who are incarcerated are at the mercy of the state. Therefore, state officials allowing those in its custody to be exposed to the virus, which has disproportionate effects on those who are older and in poor health or with underlying health conditions, amounts to discrimination within the state prison system. The overrepresentation of particular racial and ethnic groups in prison also means that if a facility is exposed to the virus, then it is mostly people belonging to those groups that are at risk of suffering from the virus. This is another example of discrimination resulting from the state’s incompetency. Thus, along with the cruelty of punishment by disease and the nonexistent or ineffective protection against it, the coronavirus in California prisons enables state ageism and racism.

II. Legal Analysis

A. Unsafe Prison Conditions Amount to Violations of The

Eighth Amendment

The Eighth Amendment of the United States Constitution states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

2021, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigationsdiscovery/hospitalization-death-by-age.html. 24 Hospitalization and Death by Race/Ethnicity, CENTERS FOR DISEASE CONTROL AND PREVENTION, March 12, 2021, https://www.cdc.gov/coronavirus/2019-ncov/coviddata/investigations-discovery/hospitalization-death-by-race-ethnicity.html. 25 Offender Data Points, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Oct., 2020, https://www.cdcr.ca.gov/research/wp-ontent/uploads/sites/174/2020/10/201906DataPoints.pdf. 26 California QuickFacts, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/CA (last visited Jan. 4, 2020).

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unusual punishments inflicted.”27 Present society’s primary form of criminal punishment is incarceration, and thus, the Eighth Amendment’s protections are necessarily relevant when evaluating prison conditions. As Professor of Law Sharon Dolovich reasons, “when it puts people in prison, [the state] places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm.”28 Then, when prison conditions are dangerous, such as those of overcrowding during an outbreak of disease, they amount to cruel punishment and are a violation of the Eighth Amendment rights of people who are incarcerated. Therefore, they require affirmative action by the state to rectify the violation.

At the end of 2020, there were 95,456 people in custody at the CDCR’s 35 institutions.29 Facilities were 102.8% occupied overall, but some facilities, such as the High Desert State Prison, were occupied at percentages as high as 142.0%.30 Writing for the Supreme Court majority in Brown v. Plata (2011), Justice Kennedy declared that prison crowding creates “unsafe and unsanitary living conditions that hamper effective delivery of medical and mental health care” and ultimately violates inmates’ Eighth Amendment rights.31 The coronavirus has drastically amplified the dangers and constitutional violations outlined in Plata caused by overcrowding in the dozens of detention facilities in California. A single person who has tested positive can go on to infect anyone in the shared facilities and close quarters. Facilities that were designed to confine people translate to living spaces with poor ventilation. The state’s focus on punishment rather than rehabilitation means that it has little interest in providing adequate health care to the people who are in its custody.

In Plata, the Supreme Court held that “severe and unlawful mistreatment

27 U.S. Const. amend. VIII. 28 Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, VOL. 84, NYU L. REV. 881, 891 (2009). 29 Population Report, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Dec. 30, 2020, https://www.cdcr.ca.gov/research/wpcontent/uploads/sites/174/2020/12/Tpop1d201230.pdf. 30 Id. 31 Brown v. Plata, 563 U.S. 493, 515 (2011).

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of prisoners through grossly inadequate provision of medical and mental health care” constitutes a violation of the prisoners’ Eighth Amendment rights.32 In particular, the Court noted that “crowding...creates unsafe and unsanitary living conditions that hamper effective delivery of medical and mental healthcare...Numerous experts testified that crowding is the primary cause of the constitutional violations.”33

The Court held that the “extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.”34 It noted that the Prison Litigation Reform Act of 1995 (PLRA) authorizes three-judge appellate courts to mandate a population limit in order to address the violation of the prisoner’s constitutional rights caused by overcrowding.35 This means that if a prison population is at a dangerous level for the safety and wellbeing of the people in custody, then a court can order the facility to remove people from the facility.

Although California’s prison system as a whole now meets the 137.5% of design capacity population cap set in Plata, certain facilities such as High Desert and Kern Valley remain over this limit, at 142% and 147.6%, respectively, taking advantage of the fact that only the state’s average occupancy percentage must comply with the court’s limit, not the occupancy percentage of each facility.36 But more importantly, the presence of an infectious disease like COVID-19 renders any kind of crowding extremely deadly, and over half of the CDCR’s institutions are over 100% occupancy.37 The caseload and death toll from COVID-19 in prisons are more than sufficient evidence that prisoners are not receiving adequate care or protection against the disease.

B. Lawsuits and Legal Developments in 2020

The legal efforts to address the inhumanity of being incarcerated during the

32 Id. at 496, 497. 33 Id. at 515. 34 Id. at 541. 35 Id. at 497. 36 Population Report, supra note 29. 37 Id.

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pandemic have been feeble and ineffective. In April of 2020, the U.S. District Court for Northern California denied an emergency motion by the inmates of the California state prison system requesting it to order the CDCR to develop a plan to manage and prevent the spread of COVID-19, including reduction of the prison population.38 The court held that the state has “the ability to take additional steps to decrease the risk of spreading the disease, [and] Plaintiffs have not demonstrated that Defendants’ response at this time is constitutionally deficient.”39 In the months following, outbreaks of COVID-19 exploded in facilities all across the state.40 Across the nation, the COVID-19 case rate for people who were imprisoned was more than four times as high as the case rate for the general population.41

After the devastating outbreak of COVID-19 at San Quentin over the summer of 2020 during which approximately 75% of the inmate population and prison staff were infected, the state Court of Appeals of the First Appellate District granted the writ of habeas corpus to an elderly petitioner named Ivan von Staich who tested positive for COVID-19, and ordered on October 20, 2020 that “the prison population at the prison be reduced to 50% of current capacity…via decarceration” in order to protect the Eighth Amendment rights of the remaining population in accordance with the Supreme Court’s ruling in Brown v. Plata. 42

Unfortunately, as of December 23rd, 2020, the California Supreme Court stepped in and ordered the Appellate Court to review the efficacy of the measures prison officials have or have not taken to abate the risk of serious harm.43 This order only increases the amount of time before action can be taken, thereby increasing the amount of risk for those still incarcerated at San Quentin.

38 Plata v. Newsom, 445 F. Supp. 3d 557, N.D. Cal. (2020) (Order denying emergency motion). 39 Id. at 571. 40 Population COVID-19 Tracking, supra note 6. 41 Brian Schwartzapfel, et al., 1 in 5 Prisoners in the U.S. Has Had COVID-19, THE ASSOCIATED PRESS, Dec. 18, 2020, https://apnews.com/article/pandemics-race-and-ethnicity-prisonsunited-states-coronavirus-pandemic-0bef0673013aa579551db5ad61b885e0. 42 In re Ivan von Staich, 56 Cal. App. 5th 53, 80 (2020). 43 Docket No. S265173, Appellate Courts Case Information, Dec. 23, 2020, https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&docid=2331976&docn o=S265173&requesttoken=NiIwLSEmTkw%2BWzBJSyNdVEhJUEA0UDxTJSNOQz1TQCAg Cg%3D%3D.

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San Francisco Deputy Public Defender Danielle Harris responded, “‘Conditions continue to be inhumane for those confined there…[there is] inadequate ventilation, inconsistent mask wearing by staff with little to no consequences, a mandate for staff testing imposed only last week, and…nine months of solitary confinement imposed upon every single incarcerated person in California.’”44 Harris denounced this order as just another “‘block to relief for those who have been trapped in San Quentin’s dilapidated and unsanitary prison through the pandemic.’”45 Thus, not only has the effort to decarcerate been met with denial and hostility from prison officials, it has been bogged down in the courts by bureaucratic obstacles at a moment when time is of the essence. Although the department has reduced its in-custody population by 23,719 prisoners since March 11, 2020,46 decarceration efforts have overall not been aggressive enough. Less than 1% of the more than 8,200 medically at-risk incarcerated people have been released as of late November 2020.47 The governor’s executive order on March 24, 202048 to suspend intake into state facilities for 30 days merely resulted in about 8,000 prison-bound people “stockpiled in the county jails – passing the burden to California’s sheriff’s departments.”49 Overcrowding in jails, which are facilities that are not intended for long-term detention, condemns not only those who are convicted of a crime to the mercy of COVID-19, but also those who may never be convicted or who have been wrongly detained. This violates one of the most sacred principles of the American criminal justice system, namely that a defendant is innocent until proven guilty.50 As such, a person should most certainly not be punished by

44 Bob Egelko, San Quentin Prison COVID Releases Delayed by State Supreme Court, SAN FRANCISCO CHRONICLE, Dec. 30, 2020, https://www.sfchronicle.com/bayarea/article/SanQuentin-Prison-COVID-releases-delayed-by-15837153.php. 45 Id.

46 COVID-19 Information, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, https://www.cdcr.ca.gov/covid19/ (last visited Jan. 3, 2020). 47 Id. 48 Executive Order N-36-20, STATE OF CALIFORNIA EXECUTIVE DEPARTMENT, March 4, 2020, https://www.gov.ca.gov/wp-content/uploads/2020/03/3.24.20-EO-N-36-20.pdf. 49 Anita Chabria and Richard Winton, COVID-19 Continues to Roil California Prisons, Jails as Officials Face New Criticism, LOS ANGELES TIMES, Nov. 29, 2020, https://www.latimes.com/ california/story/2020-11-29/coronavirus-outbreaks-california-state-prisons. 50 Presumption of Innocence, LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/wex/ Presumption of innocence.

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death before they have been proven guilty.

In April 2020, the American Civil Liberties Union filed a lawsuit against the Orange County Sheriff calling for the immediate release of enough people from jail who are particularly vulnerable to COVID-19 so that social distancing is possible.51 The lawsuit contended that the overcrowding and lack of proper medical care in jails amounted to constitutional violations of the Eighth Amendment protections against cruel and unusual punishment as well as against disability discrimination for those who are disabled and; therefore, more vulnerable to catching the disease.52 Extensively citing the Appeals C ourt ruling from In re Ivan Von Staich, the Orange County Superior Court issued an order to reduce the inmate population by 50% in response to the lawsuit in December.53

While the courts are somewhat recognizing the issue of the high risk of contracting COVID-19 in the state’s detention facilities, the state has yet to take any action that meaningfully alters the dangerous and inhumane circumstances that the people incarcerated in California’s detention centers face. The burden of protection against the coronavirus should not lie with those who have caught the disease in prison. People who are incarcerated are at the mercy of the government, and it is the government’s constitutional imperative to ensure that the people in its custody are not subject to cruel and unusual punishment.

III. The Solution Must Be Rapid Decarceration By Release

The October Appeals Court order to decarcerate takes care to specify that it does “not order the release of petitioner [Ivan von Staich] or any other inmate.”54 This means that the respondents can either release or transfer those incarcerated from San Quentin to a different facility. However, I argue that the only real solution to the dangers posed by the coronavirus in prisons is release.

51 ACLU Sues O.C. Sheriff Over Jail Conditions During Pandemic, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, April 30, 2020, https://www.aclusocal.org/en/pressreleases/aclu-sues-oc-sheriff-over-jail-conditions-during-pandemic. 52 Id.

53 Order: Alhman v. Barnes, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, Dec. 11, 2020 https://www.aclu.org/legal-document/order-ahlman-v-barnes. 54 In re Ivan von Staich, 56 Cal. App. 5th 53, 80 (2020).

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As we have seen, the coronavirus ravishes individual facilities as it is transmitted from person to person, but transferring a person from a facility with COVID-19 cases to a different facility creates the possibility for hundreds of new cases at the new facility.

This is exactly what happened between two state facilities in the summer of 2020. In late May, there were no known cases of the virus at San Quentin.55 Then, a busload of prisoners arrived from the California Institution for Men in Chino as part of a plan to reduce the population numbers and control the outbreak of coronavirus there.56 In June, cases of coronavirus exploded at San Quentin and more than 1,100 of the 3,700 prisoners were infected.57 Experts denounced the transfer of inmates as a public health failure.58 The outbreak at San Quentin is evidence, at a high and deadly cost, that the movement of people who have possibly come in contact with the disease from one facility to another is an extremely unwise and dangerous choice of action.

Even worse was that executives were aware of this danger when they made the decision to make this transfer. In the February 2021 COVID-19 Review of the CDCR, the inspector general found that a healthcare executive at the Institution for Men explicitly ordered that the incarcerated persons not be retested before the transfers began.59 Email communications also showed that several prison executives were aware that the test results that they did have were outdated.60 Yet, the transfer went on anyway, showing that the prison officials were completely indifferent to the wellbeing of the people in their custody. Thus, even if transfers were a safe solution, the reckless and willful negligence of the prison officials in charge of carrying them out renders them unviable.

55 Timothy Williams and Rebecca Griesbach, San Quentin Prison Was Free of the Virus. One Decision Fueled an Outbreak, NEW YORK TIMES, June 30, 2020, https://www.nytimes.com/ 2020/06/30/us/san-quentin-prison-coronavirus.html. 56 Id. 57 Id. 58 Id. 59 Roy W. Wesley and Brian B. Byer, COVID-19 Review Series: Part 3, OFFICE OF THE CALIFORNIA INSPECTOR GENERAL, Feb. 2021, https://www.oig.ca.gov/wpcontent/uploads/2021/02/OIG-COVID-19-Review-Series-Part-3-%E2%80%93-Transfer-ofPatients-from-CIM.pdf. 60 Id.

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Within prisons themselves, prison staff have also proven themselves to be either incompetent or indifferent to enacting protective measures. In the October 2020 COVID-19 Review of the CDCR, the inspector general found that both staff and incarcerated persons frequently failed to comply with mask mandates and physical distancing requirements.61 Between May 19, 2020 and July 29, 2020, inspectors observed staff noncompliance with the CDCR’s face covering requirements at 23 of the 34 prisons they visited.62 Staff and incarcerated people were often observed to be wearing their face coverings incorrectly, such as under the nose or under the chin, or not wearing a face covering at all.63 Finally, the inspector noted that there was little to no corrective or disciplinary action taken to enforce the face covering and physical distancing directives, which was unsurprising due to supervisors and managers’ disregard of the requirements themselves.64

Thus, prison staff are unreliable in implementing protective measures within correctional facilities. This failure proves the inefficacy of in-facility solutions to the Eighth Amendment violation posed by the department’s negligence in protecting people in its custody from the coronavirus. Even if the department enacts protective rules such as mask mandates or physical distancing requirements, there is little to no enforcement of them. The larger problem of staff negligence cannot be addressed by in-facility mandates.

This includes other measures such as comprehensive testing or widespread vaccination. The inefficacy of prison staff undermines the ability to even identify people who have tested positive before they spread. Although people in CDCR facilities are high-priority on the list of people who may receive the vaccine, as of January 2021, the CDCR does not require staff or inmates to receive it.65 Leaving people at the mercy of the careless prison staff and thus the virus and

61 Roy W. Wesley and Brian B. Byer, COVID-19 Review Series: Part 2, OFFICE OF THE CALIFORNIA INSPECTOR GENERAL, Oct. 2020, https://www.oig.ca.gov/wpcontent/uploads/2020/10/OIG-COVID-19-Review-Series-Part-2-%E2%80%93-Face-Coveringsand-PPE.pdf. 62 Id. 63 Id. 64 Id. 65 COVID-19 Vaccine Frequently Asked Questions, CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, https://cchcs.ca.gov/covid19-vaccine/ (last visited Jan. 2, 2021).

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its consequences amounts to a violation of their Eighth Amendment rights. The bottom line is that the state has proven that it cannot be trusted to uphold the rights of the people in its custody. Therefore, in-facility solutions are not viable which necessarily points us to consider others. I call for rapid decarceration, and specifically, the removal of people from CDCR facilities.

IV. Broader Context: Prison Abolition

The COVID-19 pandemic has brought the question of the purpose of the justice system into focus. It has highlighted the unsanitary spaces that people who are incarcerated are forced to live in and the indifferent treatment they receive in the state’s facilities. Such living conditions reflect the carelessness of the justice system towards those it incarcerates.

At the same time, the pandemic has allowed for radical changes in the CDCR and the criminal justice system more broadly, opening up the possibilities and providing frameworks for these changes to continue moving past the pandemic. In April of 2020, the Judicial Council of California adopted “a statewide emergency bail schedule at $0 for most misdemeanor and lowerlevel felony offenses.”66 The releases that did take place in 2020 showed that it is not necessary and in fact dangerous to keep so many people incarcerated.

But even after release from the state’s detention facilities, formerly incarcerated persons may face homelessness, food insecurity, joblessness, and a variety of other factors that may hinder their re-entry into regular society. In the pandemic, they may also be sick and require medical care that they may not be able to afford. The pandemic has highlighted the need for drastic changes in the way that the state takes care of its most vulnerable.

The project of prison abolition refocuses the goal of the justice system to prevention and rehabilitation rather than punishment, which actively fights discrimination and eliminates the Eighth Amendment violation identified by the

66 Blaine Corren, Second Emergency Meeting Amid COVID-19 Pandemic, JUDICIAL BRANCH OF CALIFORNIA, April 4, 2020, https://newsroom.courts.ca.gov/news/judicial-council-holdsecond-emergency-meeting-amid-covid-19-pandemic.

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Plata Court that is inherent in mass incarceration. Advocates campaign for preventative measures such as school demilitarization, revitalizing education, and free mental and physical healthcare for all in addition to a justice system based on reparation and reconciliation rather than retribution and vengeance.67 To care about the wellbeing of those who are incarcerated is to see them as more than their worst moment. It is to recognize their dignity and the possibility for redemption. But at the bare minimum, it is ensuring that they do not come to cruel and unusual harm at the hands of the state, a right that all citizens of the United States are guaranteed in the nation’s Constitution.

The problems posed by overcrowding as well as a slew of other issues with the modern prison industrial complex require the kind of drastic changes that the COVID-19 pandemic is spurring forward. Decarceration is only the beginning of a re-imagination of the justice system, and there is yet a long way to go in order to support the basic rights of all people in California and the United States.

Conclusion

Leaving the people imprisoned in California detention facilities during a deadly pandemic is a despicably careless and cruel act of punishment. The Eighth Amendment of the United States Constitution was written in recognition of the dignity of Americans who are incarcerated, regardless of their crime. As the Court in Brown v. Plata opines,

The law and the Constitution demand recognition of…the essence of human dignity inherent in all persons…To incarcerate, society takes from a person the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care…A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.68

In our present pandemic situation, people who are currently imprisoned do not have the freedom to socially distance, wear masks, have access to sanitary living conditions and facilities, or take any other preventative measure against

67 ANGELA DAVIS, ARE PRISONS OBSOLETE?, 105-115 (Seven Stories Press 2003). 68 Brown v. Plata, 563 U.S. 493, 515 (2011).

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catching the coronavirus. The state’s failure to facilitate these measures or take any meaningful action to protect those in its custody is flagrant disregard for the health and wellbeing of those people.

The COVID-19 pandemic is a harsh lens through which the egregiousness of the carceral system can be seen. The lack of concern or action from prison officials and other state authorities reveals an indifference to the health and wellbeing of the Americans who are incarcerated in California’s detention facilities. In order to change this mentality, it is necessary to shift the focus of the justice system from punishment to rehabilitation. With this shift, one must necessarily be concerned with the wellbeing of those who are incarcerated.

The issues of overcrowding and negligence have brought the larger problems of mass incarceration and lack of respect for the dignity of incarcerated people into sharper focus. Incarceration does not give the state the right to deny people in its custody their humanity. These deadly circumstances must force the state to contend with its duty to protect all citizens, and the first step forward is decarceration.

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Micah Mekbib

Criminalization of the Use of Naturally Occurring Substances: History, Law, and Ethics

ABSTRACT. This article will examine the (im)moral principles guiding the criminalization of the use of naturally occurring substances in the United States (U.S.). It will provide an exploration of Indigenous and Western drug use both historically and contemporarily. This article will also review relevant historical regulation and their failures in curbing drug supply while simultaneously targeting poor, marginalized communities. An analysis of this regulation will provide context for the argument for criminalization before the article delves into recent advancements and benefits of decriminalization. The second half of this article will focus on the philosophical question of whether or not it is ethical to criminalize the use of naturally occurring substances (i.e., drugs), chiefly incorporating the concept of cognitive liberty. Cognitive liberty consists of freedom from external interference and, more significantly in this context, the right to self-determination. The latter becomes especially relevant when considering that one of the benefits of consuming naturally occurring substances is the psychological exploration it offers. In this article, I will argue that heavy regulation of naturally occurring drug usage is a violation of cognitive liberty, particularly the human right to self-determination and freedom of thought. I will additionally question the validity of criminalizing what is not ours, arguing that individuals deserve the right to access Earth’s natural properties as they please. What is not ours is a term I have coined to indicate substances that are not made by humans (i.e., naturally occurring substances). This is in contrast to substances synthesized in a laboratory setting, such as hallucinogens like lysergic acid diethylamide (LSD) and 25I-NBOMe (N-Bomb). Thus, this article also proposes that there should be a difference in how synthetic and naturally occurring substances are treated.

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Introduction

The extensive application of naturally occurring substances in traditional, spiritual, and religious practices has characterized human history for centuries. Indigenous cultures and religions throughout the Americas and Africa feature a history of shamanic tradition and the sacramental adoption of certain plants with psychoactive ingredients. At the time, there was an opposition to the usage of psychoactive plants in Western religious practices. However, by the early twentieth century, Indigenous usage of these hallucinogens had stimulated a revolution of psychedelic research studies examining their effects and potential benefits in Western societies.1 Despite many positive explorations of natural and synthetic substances, the publicization of the high risk associated with their use prevented these substances from being socially accepted or legalized at the time. This publicity was mainly endorsed by the U.S. government, which sensationalized drug use to the American people, going as far as to call drug users “cocaine-crazed Negros” and “Mexican reefer madness.”2 There exist heavy barriers to further research on these substances because their use has been regulated legally, stigmatized socially, and generally criminalized. These barriers reinforce themselves—thorough research, which could demystify these substances and publicize their positive benefits, would lessen stigma and regulation, but such research cannot occur because of the same stigma and regulation.

With that being said, I will define the scope of naturally occurring substances as any compound that is naturally present in the environment (not a compound synthesized from natural components). The particular substances of focus in this article are cannabis and the following natural hallucinogens (i.e., psychedelics): ayahuasca, psilocybin, ibogaine, and N,N-Dimethyltryptamine (DMT). These substances can leave their users prone to abuse. Though psychedelic drugs and marijuana do not have typical addictive properties

1 Ben Sessa, Why Psychiatry Needs Psychedelics and Psychedelics Need Psychiatry, 46 J. PSYCHOACTIVE DRUGS 61, at 57-62 (2014). 2 Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn't: Wasted Whiteness,“Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 CULTURE, MED., AND PSYCHIATRY 666, at 664-686 (2016).

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(compared to opioids such as heroin, fentanyl, etc.), people may become addicted to the escape from reality that drugs offer.3 Combined with a lack of appropriate preparation and potentially pre-existing mental illnesses, it is possible that improper psychedelic consumption can result in severe distress, with exceptionally large doses increasing the possibility of dangerous delusions.4 As a result, the United States Drug Enforcement Administration (DEA) labels such drugs as Schedule I controlled substances in the Controlled Substances Act of 1970 because of their high levels of risk.5 Their placement in the Schedule I category indicates that they are not only federally illegal, but they are also viewed as unsafe to consume even with medical supervision. One exemption to drug regulation is the legalization of cannabis by select state governments,6 though cannabis consumption is still diligently regulated in these states.7 The dangers of drug use, coupled with strict legal caution, suggest why there is public reservation. However, this article will argue that the media, manipulated as a tool to further the U.S. government’s agenda, has historically exaggerated the dangers of consuming naturally occurring substances while doing little to educate people that safe and enlightening experiences are more common than not.

The aforementioned cycle of mutual reinforcement created by criminalization and regulation further inhibits the ability to evaluate the medical usage of select naturally occurring substances. Not only does this limit the expansion of research that may provide insight on the comparability of these natural drugs to modern medicine, but it is also important to evaluate the ethics

3 MICHAEL POLLAN, HOW TO CHANGE YOUR MIND: WHAT THE NEW SCIENCE OF PSYCHEDELICS TEACHES US ABOUT CONSCIOUSNESS, DYING, ADDICTION, DEPRESSION, AND TRANSCENDENCE 11 (2018). 4 Id. 5 Controlled Substances Act, 21 U.S.C. §§ 801–971 (2012 & Supp. 2017). The CSA states that, “[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally–to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 6 Michael Gabay, The Federal Controlled Substances Act: Schedules and Pharmacy Registration, 48 HOSP. PHARMACY 473, at 473-74 (2013). 7 All states have mixed or full legalization of marijuana except for Idaho, Kansas, Nebraska, North Carolina, Tennessee, and Wyoming. Mixed legalization ranges from as little as only permitting CBD oil in a medicinal setting (ex. Georgia) to both decriminalization and medicinal usage.

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of criminalizing what is not ours. This evaluation is largely concerned with determining if humans are vested with different degrees of authority in regulating synthetic, man-made products (ours) versus natural products from the earth (not ours). This contention in the relationship between man and nature inspires a crucial question: what is the ethical validity of labelling a naturally occurring substance, one that has been used for centuries and seemingly existed long before humankind, illegal?

This is the primary question that will set the tone for discussion throughout this article. Humans certainly have control over artificial products they create, but what rights do they exercise over things that belong to the earth? Who decides what is bad and why? This moral responsibility ultimately lies within the government. Though many may be concerned with negative effects of drug consumption, a balance between promoting their positive usage and regulating harm is necessary. This equilibrium can only be achieved with an appropriate degree of deregulation that enforces safety and awareness of one’s health, and simultaneously allows room for medicinal and recreational usage. Because of the controversial history of drug regulation and incarceration, society must assess the ethics of criminalizing both drugs and what is not ours. When this article discusses ethics, it is examining the moral principles behind drug regulation, primarily focusing on whether or not such drug regulation creates a loss of personal autonomy and cognitive liberty among people. It is important to note that this argument for cognitive liberty is significantly concerned with recreational drug use while health benefits will mainly center around advocacy for medicinal use.

In Part I, I describe historical usage of naturally occurring substances in both Indigenous and Western context and explore its benefits. In Part II, I begin my argument that society must reframe how the legal system views natural drugs by reviewing the evolution of drug regulations in America. Treating drug use as a criminal issue has only contributed to the prison industrial complex and mass incarceration in America, rather than preventing their usage.8 In Part III, I am

8 Kurt L. Schmoke, An Argument in Favor of Decriminalization, 18 HOFSTRA L. REV. 503, at 50125 (1990).

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largely concerned with arguing that society must reframe how the legal system views natural drugs and ultimately shift the paradigm from treating their use as a criminal issue to a health issue. The suggestion of a health issue refers to two attached ideologies: (1) a movement away from the idea that substance abuse and addiction should be criminalized and (2) consideration of the rehabilitative features of certain drugs in successfully treating illnesses or ailments. In Part IV, I discuss the idea of cognitive liberty and control of one’s body, navigating this section with respect to the ethics of regulation. I will also affirm that the benefits of regulation are not enough to compensate for what is inherent to policed drug use: infringement of freedom of expression, loss of personal autonomy of individuals, and loss of health benefits. This article will examine the intersection of the benefits of such substances and the validity of their historical criminalization despite their natural origins.

I. Drug Usage as a Form of Alternative Medicine

A. Traditional and Holistic Healing

Many Indigenous peoples have holistic systems of care that tend to spiritual, physical, and mental well-being. These systems are deeply entrenched in their cultures and often include plant-based medicines that contain psychoactive ingredients.9 Typically, these psychoactive plants are considered sacred and are carefully consumed in a communal, spiritual ceremony led by a shaman-like leader.10 These plants produce effects like a state of altered consciousness, dissociation, and auditory and visual stimulation, and are sometimes also believed to allow communication with ancestral beings, especially bestowment of divine knowledge by family.11

9 Jamilah R. George et al., The Psychedelic Renaissance and the Limitations of a White-dominant Medical Framework: A Call for Indigenous and Ethnic Minority Inclusion, 4 J. PSYCHEDELIC STUD. (July 1, 2019), https://doi.org/10.1556/2054.2019.015. 10 Id. 11 Id.

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For instance, the usage of ayahuasca is rooted in Amazon tradition as a means of spiritual cleansing and detoxification. The drug is used as a tool to identify any personal trauma from past life experiences and address the internal issues that arise from such trauma. Multiple sessions under the influence of ayahuasca have been cited as ameliorating addiction and addiction-related issues with no adverse neurocognitive effects.12 Other Indigenous peoples, namely Navajo and Huichol, also consume peyote—a small cactus containing psychoactive mescaline—in religious healing traditions as a method of overcoming life stressors such as alcohol abuse. Peyote reputedly offers the ability to communicate with a higher power; users tend to leave these psychedelic experiences with increased self-reliance, self-realization, and familial devotion.13 Furthermore, psilocybin—a psychoactive ingredient commonly found in certain fungi—was also regularly consumed by the Aztecs for medicinal, religious, and recreational purposes.

Traditional usage of psychedelics extends beyond the Americas. Ibogaine is a psychoactive ingredient found in plants native to the West African region and commonly celebrated in the Bwiti religion. Like peyote and psilocybin, ibogaine is believed to provide a pathway to communication and interaction with ancestral and spiritual beings.14 These examples highlight traditional holistic approaches to managing psychological human issues, but recent research on natural drugs from the past few decades may also indicate that they are more beneficial than most have been led to believe.15

B. Psychedelic therapy in the Global west

In a clinical setting, several studies have investigated the implementation of certain drugs as a supplementary practice to psychotherapy in treating psychiatric conditions.16 The usage of psychedelics, like the naturally occurring

12 Id. 13 John F. Garrity, Jesus, Peyote, and the Holy People: Alcohol Abuse and the Ethos of Power in Navajo Healing, 14 MED. ANTHROPOLOGY Q. 529, at 521-42 (2000). 14 George et al., supra note 9. 15 Id. 16 Matthew J. Begola & Jonathan S. Dowben, The Re-emergence of Hallucinogenic Research, 54 PERSP. PSYCHIATRIC CARE 523, at 523-526 (2018).

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DMT, has been hypothesized to reverse the effects of post-traumatic stress disorder (PTSD). While this postulation is largely unfounded empirically, proponents of hallucinogenic consumption advocate that the drug-altered experience is so profound that it has the ability to affect subsequent life experiences.17 The pattern of thought in this approach is that if a certain event can invoke exceptionally strong negative effects, it is not ludicrous to believe that an equally impactful event (a psychedelic experience) can inspire the reversal, or at least a reduction, of such effects.18

Psilocybin studies using subjects with healthy mental states indicated that certain doses of the drug (when given with supervision, such as during psychotherapy) have produced long-lasting positive changes to both physical and mental well-being. In fact, neuroimaging of these subjects illustrated that psilocybin caused clear, significant alterations in brain function that parallel those of antidepressants.19 Charles Grob, M.D., a UCLA professor of Psychiatry and Biobehavioral Sciences, conducted a study on the efficacy of psilocybin to late-stage cancer patients. His results marked patient experience with reduced anxiety and/or depression and a better sense of life purpose and direction since their diagnoses.20

This is only a sample of illustrations of the potential therapeutic benefits of these substances. Western psychology points to the nature of the chemical reaction that occurs upon consumption to explain the success of these natural psychedelics in treating mental disorders. Neuroimaging highlights that these reactions disrupt thought and behavioral patterns. Because mental disorders are often characterized by cycles of internal conflict, psychedelics pause this repetition to allow for moments of clarity and insight. Paired with professional psychotherapy, individuals are able to tackle their concerns more efficiently.21

Psychedelic research became popular in the 1960s as interest in these drugs and their effects have peaked. But, by the end of the 20th century, this

17 Id. 18 Id. 19 Charles S. Grob et al., Pilot Study of Psilocybin Treatment for Anxiety in Patients with AdvancedStage Cancer, 68 ARCHIVES GEN. Psychiatry 71 (2011). 20 Id. 21 David Nutt & Robin Carhart-Harris, The Current Status of Psychedelics in Psychiatry, 78 JAMA PSYCHIATRY 121 (2021).

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fascination revealed unethical practices in Western psychedelic studies, leading to public outrage that increased regulation and decreased funding toward research.22 There were strong government crackdowns from the late 1960s throughout the 1980s, most notoriously with the War on Drugs. While it primarily focused on crack cocaine and cannabis, it created a precedent that affected the legislative treatment and social perspective of psychedelic drugs.23

II. The Evolution of Legal Retribution

Preservation of human life is a primary motive behind drug legislation. When drugs we use harm others or ourselves, it becomes a problem that must be addressed through public policy or other measures that protect against the infringement of civil rights and liberties. Examples of drug-related self-harm include decreases in personal well-being and productivity. 24 Furthermore, drugrelated harm often extends beyond the self; it is often not an isolated experience because of the social nature of humans. These are negative effects that can filter into the interactions of that person’s life by affecting their familial, professional, and personal relationships. For example, one’s substance abuse can strain their relationships within their family and negatively impact their career performance. From an economic standpoint, their hospitalization, a likelihood that inevitably increases when engaging with psychedelic drugs, would increase funding demand of the medical sphere, their unproductivity at work would decrease the output of the company they work for, and so on. When considering these factors, the historically strict regulation that follows, like the War on Drugs, seems lucrative. However, as discussed in the upcoming section, this U.S. legislation did not seem to have the well-being of citizens at the forefront of its intent, but was, rather, a disguised assault against poor, marginalized communities.

22 George et al., supra note 9. 23 Id. 24 Paul Smith, Drugs, Morality and the Law, 19 J. APPLIED PHIL. 234, at 233-244 (2002).

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A. Say No to Drugs: History of Regulation and Criminalization

The earliest sign of the crackdown on drugs came with the U.S. ratification of the Single Convention on Narcotic Drugs in 1961, which restricted the production, possession, and distribution, of cannabis, among other drugs, to medical and scientific purposes.25 The preamble of the Convention labels the usage of cannabis as a “serious evil” and a threat to social and economic wellbeing.26 Similarly, around this time, the lack of regulations on psychedelic drugs led to a surge in studies with poor experimental design and lack of appropriate ethical or medical oversight. For example, the Harvard Psilocybin Project was spearheaded by Harvard psychology professors in 1962 and aimed to deeply characterize the effects of psychedelic drugs. This project was controversial because of its lack of medical supervision. Consequently, regulations were implemented, some of the most notable being the amendments to the Food and Drug Administration’s (FDA) scope of power. These amendments authorized the FDA to require demonstration from pharmaceutical companies that a drug is safe and effective before being approved for administration in research studies.27

However, the publicity of the Harvard Psilocybin Project and similar studies continued to create an unhealthy relationship between the public and drugs like psilocybin; they were perceived as dangerous, unnecessary, and not beneficial. In his book, How to Change Your Mind, Michael Pollan comments on the swiftness of this turn from excitement of the psychedelic counterculture to moral panic and the role that the media played in its development.28 In 1965, the media began explicitly warning the public of the severe side effects associated with the consumption of these drugs, such as “psychotic breaks [and] suicide.”29 Pollan writes, “As quickly as the culture and the scientific

25 Dustin Marlan, Beyond Cannabis: Psychedelic Decriminalization and Social Justice, 23 LEWIS & CLARK L. REV. 866, at 851-92 (2019). 26 Id. at 867. 27 Id. at 867-69. 28 Counterculture refers to the radical movement in the 1960s until the early 1970s that centered around an anti-establishment rhetoric such as antiwar ideologies, minority rights, sexual and gender fluidity, and psychoactive experimentation. 29 Pollan, supra note 3, at 3.

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establishment had embraced psychedelics, they now turned sharply against them. By the early 1970s, psychedelic drugs were outlawed and forced underground.”30 The media’s sensationalization of drug usage and exaggerated caricatures of drug users were effective in flipping the narrative within a few years. This was only worsened by the War on Drugs, spearheaded by Richard Nixon, the 37th U.S. President.

President Nixon’s complex public fight against drugs began in 1970, when he consolidated over 200 previous drug laws into a single statute: The Controlled Substances Act. This statute labeled the substances discussed in this article, among many others, as Schedule I controlled substances because of their high levels of risk and31 regulated the manufacture and distribution of such substances. During the same year he passed this statute, Nixon ratified the United Nations (U.N.) Convention on Psychotropic Drugs, which abruptly made the supply and possession of psychedelic drugs illegal.32 The decision to control these drugs across borders successfully signaled his intent and dedication to the cause, contributing to anti-drug cultural norms and setting a precedent for drug criminalization. In addition, President Nixon dramatically expanded the size and presence of federal drug control agencies, creating the DEA in 1973. Coupled with the Nixon administration’s implementation of mandatory sentencing and no-knock warrants, which authorized police officers with a warrant to enter premises without announcing their presence, new legislation such as the Controlled Substances Act, U.N. Convention on Psychotropic Drugs, and development of the DEA severely criminalized drug usage.

The most egregious aspect of the War on Drugs is that it was motivated by discriminatory sentiment. In 1994, Nixon’s domestic policy chief, John Ehrlichman, admitted:

30 Id. 31 The high levels of risk were determined by considering the substances’ potential for abuse, global status, and medical benefits. 32 Convention on Psychotropic Substances of 1971, 21 February 1971, 1019 UNTS 175, 10 ILM 261. The Convention on Psychotropic Substances of 1971 is otherwise referred to as the “Psychotropics Convention,” and entered into force on August 16, 1976.

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You want to know what this was really all about. The Nixon campaign in 1968, and the

Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying. We knew we couldn’t make it illegal to be either against the war or Blacks, but by getting the public to associate the hippies with marijuana and

Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.33

These sentiments were effective. As one of the earliest combinations of social stigmatization and legal regulation of drugs, the War on Drugs successfully vilified Black and Brown communities. Those who were poor, homeless, racial minorities, or otherwise part of a marginalized population were often at risk for drug use, and Nixon’s campaign engineered fear of drug use and caricatured stereotypes of drug addiction. This generated a near-resentful disapproval of the aforementioned communities because of their association to these drugs. Such an attitude was partially a result of the War on Drugs’ criminalizing legislation, but also served to reinforce the rhetoric of Nixon’s campaign. The cycle that was birthed from these cultural norms made it progressively more difficult for individuals to be unbiased toward psychedelic research and see its potential positive benefits.

These federal regulations produced by the War on Drugs also trickled down to affect state legislation. By 1973, public pressure for stricter penalties regarding drug criminalization in New York had become so potent that mandatory minimum sentencing for possession of four ounces of narcotics became approximate to that of a second-degree murder.34 These were famously called the Rockefeller Drug Laws and were a significant historical marker of the War on Drugs’ grip on America at the time.35 The central ideology of drug regulation criticism questions the government’s constituency: if individuals are abusing these drugs and/or suffering from the very health crises that the media informs,

33 Drug Policy Alliance, A Brief History of the Drug War (Feb. 5, 2021), https://drugpolicy.org/issues/brief-history-drug-war. 34 These narcotics included marijuana, cocaine, and heroine. For the context of this article, importance and focus is attached to marijuana legislation. 35 Madison Gray, A Brief History of New York’s Rockefeller Drug Laws, TIME (Apr. 2, 2009), http://content.time.com/time/nation/article/0,8599,1888864,00.html.

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then why are they not being treated accordingly? Despite such criticism, antidrug legislation continued to establish an overwhelming presence in the 1980s under President Reagan’s administration; mass incarceration continued to grow exponentially as the prison population increased eight-fold from 1980 to 1997.36 However, currently in the 21st century, progressive areas of the nation are starting to overturn such historical regulation.

B. Recent Decriminalization

Still deep in an anti-drug America, Oregon sent shockwaves as the first state to decriminalize cannabis in 1973. As of 2020, only seven states in the U.S. still fully illegalize cannabis usage, while sixteen completely legalize it for medicinal and recreational use. The rest of states lie within a range of mixed legislation: some only legalize CBD oil or medical usage while others fully decriminalize its use (a step further than legalization). However, despite this progress, there still are half a million inmates incarcerated solely for drug law violations.37

Popularity of psychedelic research resurfaced in the 1990s, creating a second and current wave of research in the West. Despite the presence of antidrug legislation for decades at that point, there was progress to respect Indigenous use of psychedelic drugs. Notably, the U.S. Congress enacted the Religious Freedom Restoration Act in 1993.38 It legalized non-drug, sacramental use of psychedelic plants for those who identify as practicing Indigenous religions.39 Paired with the freedom of religion protected by the First Amendment of the U.S. Bill of Rights, this has allowed an exemption to the prohibition of ayahuasca.40 This reflects the characterization of ayahuasca in Indigenous Amazonian Brazilian culture as a legal sacrament for multiple

36 Drug Policy Alliance, supra note 33. 37 Id. 38 Religious Freedom Restoration Act of 1993, 42 U.S.C. ch. 21B §§ 2000bb-2000bb-4. 39 Id. 40 Id.

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churches.41 Native American churches have been granted an exemption to the prohibition of peyote by the same institutions for the same reasons.42

The most exceptional advances seen in decriminalizing psychedelic drugs occurred in May 2019 when Denver, Colorado became the first city in the U.S. to decriminalize psilocybin.43 The following year, Oregon became the first U.S. state to similarly decriminalize psilocybin and other small amounts of drugs with Measure 110.44 Oregon’s Measure 110 not only promises a decriminalization of all recreational possession of drugs, but outlines expansion of access to rehabilitative treatment, housing services, and harm reduction services for anyone facing drug abuse or addiction. These services are funded by immense tax revenue from legal cannabis consumerism and the millions of dollars that would normally go toward housing individuals in the incarceration system.45 These decisions, while admittedly passed in some of the most socially liberal cities in the nation, reflect a political progression from treating drug use as a criminal issue to a health issue. Oregon’s decriminalization fully indicates a movement toward “prioritiz[ing] health over punishment” and is estimated to decrease 95% of racial disparities in the state’s drug arrests.46

If the pattern following the watershed Oregon decriminalization of cannabis is similar to their decriminalization of drugs, we may see other states decriminalize more drugs as well. In fact, the influence of Measure 110’s passage is already quantifiable. In August 2020, the Drug Policy Alliance released a legislation proposal outlining a drug decriminalization framework at the federal level. It seeks to realign the responsibility of drug policies from the DEA to the National Institutes of Health (NIH), a branch of the Department of Health and

41 Xavier Fernández & Josep M. Fábregas, Experience of Treatment with Ayahuasca for Drug Addiction in the Brazilian Amazon (Nov. 2014). 42 George et al., supra note 9. 43 Id. 44 Decriminalization is not equal to legalization. In Denver's case, psilocybin has been reduced to a low enforcement priority. They are choosing not to criminally prosecute users at the state level. If individuals are criminalized, it would be through the Controlled Substances Act. 45 Matt Sutton, Drug Policy Action’s Measure 110 Prevails, Making Oregon the First U.S. State to Decriminalize All Drugs & Expand Access to Addiction and Health Services, DRUG POLICY ALLIANCE (Nov. 3, 2020), https://drugpolicy.org/press-release/2020/11/drug-policy-actionsmeasure-110-prevails-making-oregon-first-us-state. 46 Id.

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Human Services (HHS).47 While the proposal has not yet passed, it indicates a significant ideological development of understanding drug use as a health issue, and no longer labeling it as a criminal issue. This growth is largely due to the aforementioned second wave of research studies that feature better experiment design and more ethical safety guidelines.

III. The Argument for Decriminalization

This section will focus on the two ideologies attached to the central theme of reclassifying drug use from a criminal issue to a health issue. It involves a movement away from the idea that drug abuse and addiction should be criminalized.

A. Prisoners are not the Answer

The current consequence of possessing or using drugs is imprisonment, which has proven to be ineffective in rehabilitating individuals for a release back into society, much less in facilitating development of a healthy relationship between drugs and their users. In fact, approximately 80% of U.S. prisoners who may benefit from drug use treatment do not receive it while incarcerated.48 There is adequate evidence to strongly suggest two important findings: (1) instead of achieving the goal of reducing drug supply during the War on Drugs, the U.S. experienced massive exponential growth of domestic and international illicit markets that increase risk among drug users;49 and (2) eliminating criminal penalties for possession of drugs would not significantly increase the rate of drug usage.50

47 Matt Sutton, Drug Policy Alliance Proposes Federal All-Drug Decriminalization, Releases New Legislative Framework, DRUG POLICY ALLIANCE, (Aug. 6, 2020), https://drugpolicy.org/pressrelease/2020/08/DrugPolicyReformAct. 48 Redonna K. Chandler, Bennett W. Fletcher & Nora D. Volkow, Treating Drug Abuse and Addiction in the Criminal Justice System: Improving Public Health and Safety, 301 JAMA PSYCHIATRY 185, at 183-90 (2009). 49 Sutton, supra note 47. 50 Drug Policy Alliance, It’s Time For The U.S. To Decriminalize Drug Use and Possession (Aug. 30, 2017), https://drugpolicy.org/resource/its-time-us-decriminalize-drug-use-and-possession.

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Contrary to the goals of the War on Drugs, drug supply seemed to actually increase: at the peak of Reagan’s leadership of the War on Drugs, illicit markets were abundant and successful in smuggling drugs into the U.S. One of the most explosive disclosures regarding the War on Drugs occurred in 1986, when a Senate Foreign Relations Committee report revealed that there was evidence indicating a link between payments from the U.S. government to Nicaraguan Contras51 under the guise of humanitarian assistance and increased imports of cocaine into the U.S.52 This cocaine was then converted into crack cocaine by domestic manufacturers and delivered to inner-city Black and Latino communities by dealers. It is alleged that the U.S. government was complicit in this high presence of drugs in the U.S. and even protected Nicaraguan Contra smugglers who delivered drugs to these communities from criminal prosecution. These findings underscore the fact that the War on Drugs was rarely, if ever, about reducing drug supply and usage in the U.S., but more about creating a form of social control over Black and Latino people.53

Experts generally agree about one thing: punitive drug policies seem to do nearly as much harm as the drugs themselves, and only serve to worsen harm by assigning sanctions and stigma to what should be a public health concern.54 This discussion on health bleeds into the second ideology: the efficacy of these drugs in positively impacting health at a holistic level, even as a means of treating both mental and physical illnesses.

B. Consideration of Rehabilitative Features

This article has discussed the medical benefits of consuming psychoactive substances in both Indigenous cultures and Western clinical settings.55 This

51 Nicaraguan contras was a U.S.-backed rebel group that opposed the Marxist Nicaraguan government from the late 1970s to the early 1990s. 52 Hearings Before the Subcommittees on Terrorism, Narcotics, and International Communications and International Economic Policy, Trade, Oceans, and Environment of the Committee on Foreign Relations United States Senate, 100th Cong., (1987), https://babel.hathitrust.org/cgi/pt?id=mdp.39015014580339&view=1up&seq=1. 53 Id. 54 Sutton, supra note 47. 55 Medical benefits are contingent upon proper practice, such as participating in a ceremony led by a revered shaman, or pairing substance use with psychotherapy under medical supervision.

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section will discuss the medical advantages of deregulating drug research, whether or not that also includes decriminalizing its recreational use.

It is important to consider that the risk level of psychedelic drugs is not similar to that of other drugs like opioids because psychedelic drugs are not as physically addictive. Furthermore, the media has long since exaggerated the effects of drug usage in ways that made it nearly impossible for their target audience, adolescents and young adults, to view the harmful effects of drugs as credible. For example, First Lady Nancy Reagan’s “Just Say No” campaign was nearly completely defined by a video analogizing brain activity on drugs as a frying egg. However, scientific studies have substantially disputed the validity of these videos.56 While it is possible for individuals to experience psychosis while on drugs (and those with familial predisposition to mental illness are at a much higher risk), it is not as common as marketed. Oftentimes, cases diagnosed as psychotic breaks are typically revealed later as shorter panic attacks caused by psychedelic experiences such as sensory overload and paranoia.57 The media has blurred the line between drug usage in uncontrolled and risky settings versus controlled settings with careful attention put toward preparation.58

A study from 2010 ranked psilocybin as safer than alcohol and tobacco.59 With this pattern of thought, many question why alcohol and tobacco are fully legalized and readily available in everyday society, while psychedelic drugs are heavily prohibited. Nevertheless, the nature of a psychedelic experience poses separate risks, ranging from psychotic episodes to long-term psychological trauma and personality deterioration. These risks are a huge barrier to a semblance of public acceptance of—or even discussion about—legalizing the

56 Peter Balonon-Rosen, From Cringeworthy to Scary: A History of Anti-drug PSAs, Marketplace (Mar. 26, 2019), https://www.marketplace.org/2019/03/26/advertisings-war-drugs-alsofailed/. 57 Pollan, supra note 3, at 11. 58 Defining uncontrolled and risky settings as those in which individuals are consuming aboveaverage doses in oversaturated and loud settings, have a history with mental illness or other substance abuse. Controlled settings are adequate emotional and mental preparation, trusting and safe settings, or under clinical conditions and medical supervision. 59 Roland R. Griffiths et al., Psilocybin Produces Substantial and Sustained Decreases in Depression and Anxiety in Patients with Life-threatening Cancer: A Randomized Double-blind Trial, 30 J. PSYCHOPHARMACOLOGY 1182, at 1181-97 (2016).

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use of hallucinogenic substances in the same manner that alcohol or cannabis legalization has manifested.

However, recent research and regulatory progress indicates that there are ways to mitigate these risks. The use of criminalized drugs in medical settings is not unprecedented. In its history, the FDA has approved medical use of certain drugs deemed as illegal in the Controlled Substances Act.60 For example, in 2019, the FDA approved esketamine, a synthetic hallucinogenic drug like those examined throughout this article, to treat depression.61 Another prominent step in this same direction was signaled by the FDA’s recognition of results from a study that championed psilocybin-assisted psychotherapy as a viable form of combatting depression long-term (for at least six months).62 This official recognition of medical potential could lower barriers to research and, thus, expedite it. These instances inform society that it is undoubtedly possible to create secure methods of consuming certain drugs, should they indicate enough medical benefit to be considered for safe administration. It is possible to regulate naturally occurring substances in a way that nurtures, rather than limits, their potential.

IV. The Ethics of Restricting Access to a Natural Substance

One of the initial questions leading the discussion in this article was the identification of these substances as relatively free from human intervention: they grow as naturally as a peach in one’s garden, and who is to determine the ethics of regulating something as natural as consuming a peach? This question inspires a large shortcoming of the current framework of cannabis and psychedelic use within the context of health: while it provides a strong argument

60 John Halpern, The Promise of LSD Microdoses and Other Psychedelic Medicines, SCIENTIFIC AMERICAN (July 10, 2017), https://blogs.scientificamerican.com/cross-check/the-promise-oflsd-microdoses-and-other-psychedelic-medicines/. 61 Matt Lamkin, Psychedelic Medicine Is Coming, The Law Isn’t Ready, SCIENTIFIC AMERICAN (July 31, 2019), https://blogs.scientificamerican.com/observations/psychedelic-medicine-is-comingthe-law-isnt-ready/. 62 Daniel Covas & Madeline Campbell, Psilocybin May Brighten the Future for Depression Patients, JD SUPRA (Jan. 15, 2021), https://www.jdsupra.com/legalnews/psilocybin-may-brighten-thefuture-for-9729116/. The DEA has yet to parallel these FDA developments. Psilocybin still remains a Schedule 1 controlled substance, indicating both a high risk for abuse and little to no medical potential.

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for decriminalization for medicinal purposes, it fails to defend recreational use of these substances or consider other reasons for decriminalization besides its medical benefits. I will next examine the use of psychedelic drugs within the contexts of religious and cultural freedoms and cognitive liberty as I deconstruct the moral implications of restrictive drug legislation.

A. Substance Use as a Form of Religious and Cultural Freedom

Drug prohibition has historically had its exceptions, whether that be U.N. Conventions that permitted drug usage in a medical context or the gradual legalization of recreational drug usage. However, this leniency has not always been extended to Indigenous usage of psychedelic drugs, which was often viewed by the Western world as a “[barrier] to civilized progress and [a burden] on personal and racial health.”63 Despite growing respect to Indigenous culture and rights throughout the 20th century, more success has been found in creating medical exemptions to drug regulations, as opposed to cultural or religious exemptions. Measurers of public health are more objective and tangible; those of cultural significance are harder to quantify and thus make it more difficult to convince governments to enact cultural exemptions. For example, Christian missionaries took the spread of peyotism as a “threat to their work.”64 Consequently, they collaborated with the Bureau of Indian Affairs (BIA), a U.S. federal agency, to suppress the Indigenous use of peyote. Throughout the late 1800s, peyote prohibitions were imposed upon several reservations. Multiple Congressional attempts to outlaw peyote followed, namely in 1918.65 It was not until 1965 that the U.S. government legalized the religious usage of peyote for Indigenous American tribes with the Drug Abuse Control Amendments (DACA).66 Despite the fact that the amendments objectively

63 BEATRIZ CAIUBY LABATE & CLANCY CAVNAR, PROHIBITION, RELIGIOUS FREEDOM, AND HUMAN RIGHTS: REGULATING TRADITIONAL DRUG USE 5 (2014). 64 Labate & Cavnar, supra note 63, at 67. 65 Id. at 68. 66 Id.

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expanded peyote usage, usage still remained controversial because of the way in which the government recognized members of tribes as those with at least 25% Native blood quantum.67 This failed to preserve traditional Indigenous religious practices because it “assert[ed] the dubious notion that biology and religious belief are related.”68 This mandated correlation between race and religion that the government imposes is particularly harmful because culture and religion are not the same entity, nor mutually exclusive. Those with strong cultural ties to the Indigenous community but who do not meet the blood quantum minimum are not protected under DACA. While peyote has seen some success in legalization, the same cannot be said for other natural substances that are used in similar religious practices. For example, ayahuasca, which is a legal sacrament in Brazil, does not possess the same legal status as peyote in the U.S. for it is completely outlawed.69 The nature of Indigenous usage of hallucinogens indicates that their consumption goes beyond the benefits of recreational usage (as a means of a social lubricant, for visual and auditory enhancement, etc.). Rather, consumption of these psychoactive plants has the primary function of maintaining cultural identity, community, and dignity of Indigenous tribes despite Western colonialism attempting to disrupt their societies.70 Therefore, anti-hallucinogen drug laws intersect to impede upon people’s religious and cultural freedoms.

B. Cognitive Liberty 1. Freedom from Interference and a Right to SelfDetermination

Cognitive liberty is a synthesis of two main concepts: freedom from interference by other entities and freedom to self-determination. Neuroethicist Wrye Sententia is credited for developing this definition that serves to ensure

67 Measuring blood quantum, a common practice in the U.S. and other countries, is a method of determining the amount of Native blood in an individual. This amount is then used to determine the individual’s legal rights. 68 Labate & Cavnar, supra note 63, at 65. 69 Id. at 67. 70 Id. at 66.

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personal autonomy and privacy. Her definition of freedom of interference is an imperative that individuals not be compelled to partake in any activity that may affect their psychological state without their consent—e.g. individuals should not be forced to take the natural drugs discussed in this article. Dr. Sententia’s freedom to self-determination explicates that individuals should not be prohibited (socially, legally, etc.) from partaking in aforementioned activities, such as consuming naturally occurring drugs.71 These two parts of cognitive liberty seek to provide negative and positive rights to individuals in that they are not forced to alter their brain chemistry non-consensually, and that they are given the right to do so if they wish. A negative right guarantees protection from infringement from external entities while a positive right delineates certain liberties to individuals. The overarching purpose of cognitive liberty is to advocate for individuals’ rights to determine their own mental functions, maintaining personal autonomy over them.72

Though religious freedom is defended in the First Amendment, which plays a critical role in protecting Indigenous usage of psychedelic drugs, one will not find the right to cognitive liberty in the U.S. Constitution. The freedom to selfdetermination is also lacking in any U.S. legal codes, but it does appear in Common Article I of the 1996 International Covenant on Civil and Political Rights: “All peoples have the right of self-determination...[thus] they freely determine their political status and freely pursue their economic, social and cultural development.”73 Though this mention is brief, it gives some indication of the implications of self-determination. Though self-determination is a right that is explicitly given in Common Article I, it is often considered an innate right that does not need to be recognized by the government to exist validly. Lawyer and political scientist James Ostrowski summarizes this idea of a natural right in his article in the Hofstra Law Review:

71 Wrye Sententia, Neuroethical Considerations: Cognitive Liberty and Converging Technologies for Improving Human Cognition, 1013 ANNALS N.Y. ACAD. SCI. 223, at 221-28 (2006). 72 Id. 73 International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 1, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 1, 993 U.N.T.S. 3.

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[Self-determination] is not a legal right, but a moral right. It is a right which exists regardless of whether or not it is recognized in various legal codes and constitutions.

Rather, it is to such rights that the drafters of constitutions and legal codes should refer.

It is such rights which serve as the basis for criticizing the legal acts of governments which are alleged to violate the rights of individuals. Such rights are referred to as

‘natural rights’ because they are usually justified by reference to the nature of man or the natural state of man, and are to be distinguished from ‘positive rights’ which are those rights actually recognized in legal codes and constitutions.74

What Ostrowski describes is the inherent, permanent nature of the right of self-determination, so long as it does not impede upon others’ rights to selfdetermination.75 Regardless of what social contract an individual enters in a society mandated by a government, the right of self-determination remains. With this context, it is now possible to narrow the scope of cognitive liberty to its inclusion of the right to self-determination—freedom of thought—and apply it to drug usage. 2. Criminalizing Substances Violates Freedom of Thought

Freedom of thought is defined as freedom from others’ control over one’s thoughts. The properties of this concept manifest into two ideologies: freedom for cognitive function and freedom from external forces that can monitor thought.76 The main focus will be the latter, particularly concentrating on the government as an external force that monitors thought by regulating the consumption of psychedelic drugs, which alter mental processes. The absence of freedom of thought in legal texts does not mean that government officials do not think through its implications; both Supreme Court Justices Benjamin N. Cardozo (1932-1938) and Frank Murphy (1940-1949) have notable discussions about freedom of thought in a legal context. Justice Cardozo labeled freedom of thought as “the indispensable condition of nearly every other form of freedom,” demonstrating its significance of being the foundation for other freedoms.77 Justice Murphy attached a similar reverence and value to freedom of thought,

74 James Ostrowski, The Moral and Practical Case for Drug Legalization, 18 HOFSTRA L. REV. 626, at 607-702 (1990). 75 Id. 76 Jan Christoph Bublitz, Cognitive Liberty or the International Human Right to Freedom of Thought,

in HANDBOOK OF NEUROETHICS (JENS CLAUSEN & NEIL LEVY, 2015). 77 Marlan, supra note 25, at 866.

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describing it as the “absolute of its own nature” because of the inability of even the most oppressive of governments to control the inner mind.78 Circling back to the right of self-determination, one can think of cognitive liberty, or freedom of thought, as “self-determination over [one’s] own brain chemistry.”79 It emphasizes the right of humans to be able to be in full control and direction of their own consciousness, mental processes, beliefs, etc. In the Supreme Court cause, Lawrence v. Texas, 80 freedom of thought is explained as the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”81 Drug regulation implicates a violation of freedom of thought because it interferes with the very freedom of defining one’s own concept of existence, whether that be a concept of existence developed through enlightenment birthed from drug consumption, or merely the ability to do as one pleases, so long as it does not infringe upon others’ liberties. This concept of existence is heavily intertwined with the ability to decide what is best for oneself. Restricting the consumption of cannabis and psychedelic drugs produces dissonance with the concepts of personal autonomy and freedom of thought.82 This restriction undermines personal autonomy by subjecting individuals to the control of other entities (i.e., the government and government officials who pass this legislation). 83 3. What Is Not Ours: A Natural Right to Consumption and Environmental Rights

The common factor among the substances explored throughout this article is the fact that they are all naturally occurring. Though there may be similar findings about these drugs’ synthetic counterparts, the focus on purely natural drugs was intentional in further challenging their criminalization because they manifest the unique concept of natural human rights. A natural right is one that

78 Id. 79 Id. 80 Lawrence v. Texas, 539 U.S. 558, 563-64 (2003). Lawrence v. Texas was a Supreme Court case that ruled that the criminalization of private sexual intimacy between same-sex couples violated the Due Process clause, which guarantees a right of liberty to engage in conduct without government intervention. 81 Eric Blumenson & Eva Nilsen, Liberty Lost: The Moral Case for Marijuana Law Reform, 85 INDIANA L. J. 293, at 279-99 (2010). 82 Id. 83 Marlan, supra note 25, at 866.

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is possessed on the basis of being a human being, rather than being dependent upon customs, laws, or a political status.84 The connection between natural rights and naturally occurring substances is rooted in the argument that humans should possess the right to substance consumption because of their natural properties. Plants with these psychoactive properties were not only present on Earth for hundreds of years, but archaeological evidence also suggests that their first usage occurred thousands of years ago.85 These plants were naturally farmed in the same manner that common fruits like oranges or avocados are today; fruit farming is a legal practice. With this logical pattern, individuals should be able to legally farm and consume plants of their choice because of the manner in which these plants belong to the earth, not humans. This argument is in comparison to manmade substances such as LSD, for example, which is a synthetic substance. Because of the human role in its creation, this article additionally argues that humans do have some control over its production, distribution, and usage. Environmental rights—the right to a safe environment and the use of such an environment—are not fully recognized as natural human rights despite recent attempts to include them as such.86 Environmental rights become applicable when considering the origins of naturally occurring substances. If one was to understand these substances as belonging to the environment, a concept that this article proposes, then one may begin to see a correlation between environmental rights and the consumption of naturally occurring substances. Consequently, the inclusion of environmental rights as natural rights is imperative to gaining autonomy over the consumption of naturally occurring substances because of the way in which governments are not to impede upon natural rights. This recommendation of including environmental rights as a natural right indicates an advancement in thought that can permit individuals to practice consumption of naturally occurring substances as they please.

84 Stanford Encyclopedia of Philosophy, The General Idea of Human Rights (Apr. 11, 2019), https://plato.stanford.edu/entries/rights-human/#EnviRigh. 85 Labate & Cavnar, supra note 63, at 6. 86 Stanford Encyclopedia of Philosophy, Environmental Rights (Apr. 11, 2019), https://plato.stanford.edu/entries/rights-human/#EnviRigh. The right to a safe environment and how to use it is related to substance consumption because they are naturally growing plants.

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C. Recommendations for Legislative Reform

It would be a disservice to discuss the argument for decriminalization of naturally occurring substances and fail to put forth some framework for what legislative reform could look like. As mentioned in an earlier section, heavy barriers to drug research are mainly due to significant government restrictions that leave research expensive and tedious.

One step forward to alleviate the current financial burdens of this research would be to fund statewide psychedelic and cannabis research programs. This is not unheard of; Oregon’s Measure 110 that decriminalized drugs boasted its rehabilitative treatments for drug users, funded by the influx of tax revenue from legal cannabis sales.87 I propose that alike advancements can be made in other U.S. states that have adopted similar legalization of cannabis for research funding. Another achievement that could make research more feasible would be for these naturally occurring substances to gain FDA approval and removal from the Controlled Substance Act’s Schedule I. Research facilities would have to jump through fewer regulatory hoops, making research less cumbersome and bureaucratic.

Much of Western research, especially in its early years, is indebted to Indigenous cultures for the insight gained from their practices. Considering that the earliest known psychedelic practices occurred in Indigenous civilizations approximately two centuries before those of the Western world, it is no surprise that Western research drew heavily from what was already known in Indigenous practices.88 It is crucial that this foundation is not forgotten when conducting psychedelic and cannabis research studies. This inclusion of different races in such research can also be applied to government legislation and medical practices.

The U.S. has had a tumultuous past with discriminatory regulation that disproportionately and wrongfully affected Black and Latino communities while failing to equally being imposed on white communities. In the same way that drug legislation is infected with systemic racism, medical frameworks in the U.S.

87 Sutton, supra note 47. 88 George et al., supra note 9.

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are often white-dominant, leading to racial inequality in treatment. Negative stereotypes of Black people during the Jim Crow era, for example, created large disparities in equal access to health care and treatment in a white-dominated field.89 Racial biases of health care providers combined with a historical lack of appropriate medical research regarding non-white bodies has led to a consistently substandard medical treatment of non-white people. A lack of effort in recognizing how humans of varying races react differently to ailments, and subsequently researching how to care for such diversity, has undoubtedly contributed to widespread systemic racism that remains resilient in the U.S. today.90 If psychedelic research becomes more lucrative, it is imperative that Indigenous and ethnic minorities are included and kept in mind when conclusions are reached. It is important to give credit where credit is due in regard to the way Indigenous peoples introduced the benefits of naturally occurring substances to the Western world, and as their cultural practices continue to inform Western research by providing a foundation of experience. In addition, there are realistic ways to prevent inequalities in medical treatment. For example, psychedelic and cannabis research studies should be diverse in subjects to account for how race and ethnicity may change their effects.

Conclusion

The criminalization of naturally occurring substances has historically done more harm than good. While Indigenous peoples have been incorporating these psychoactive substances into their cultures and religions for centuries now, Western governments have continued to heavily regulate their usage, creating high barriers to research that have delayed, if not prevented, thorough exploration of these drugs in different contexts. Furthermore, the U.S.’s historical anti-drug laws failed to reduce the quantity of drugs and prevalence of drug usage while simultaneously contributing to exponential growth in mass incarceration. Consequently, it is imperative that society begins to treat the use

89 David R. Williams & Toni D. Rucker, Understanding and Addressing Racial Disparities in Health Care, 21 HEALTH CARE FIN. REV. 78, at 75–90 (2000). 90 Id.

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of natural drugs as a health issue rather than a criminal issue, especially if one’s relationship with the drug becomes abusive or otherwise harmful.

This framework allows for the healthy exploration of naturally occurring substances by encouraging research studies on the effects of these drugs. It permits actions that can also inform individuals on how to form a healthy relationship with substances when accessible to the public. Considering drug usage within a context of health actively works towards improving the general well-being of individuals by advocating for increased access to rehabilitative practices. This alternative could ideally reduce the number of jailed individuals convicted of nonviolent drug offenses. These efforts are not unfounded nor impossible to reach. Measure 110, the 2020 Oregonian legislation that decriminalized small amounts of drugs, came into effect just last month in February 2021.91 Although federal legislative change is much more complex than state government processes, it is not unimaginable: just last year the U.S. House of Representatives passed the Drug Policy Alliance’s legislative proposal advocating for decriminalization of marijuana.92

The current regulation of drugs dually affects the human psyche by threatening individuals’ cognitive liberties. Combined with a lack of adequate psychedelic and cannabis research studies, U.S. legislation—largely informed by discriminatory rhetoric and systemic racism—violates individuals’ rights to self-determination. The restrictions imposed by such legislation threaten and limit people’s abilities to control their thought processes and brain chemistries. Ultimately, a government is intended to support its constituents and their livelihoods while preserving their natural and legal rights. I believe the shift in culture described throughout this article is conducive to this ideal.

91 S.B. 755, 81st Leg. Assemb., Reg. Sess. (Or. 2021). 92 Marijuana Opportunity Reinvestment and Expungement Act of 2020, H.R. 3884, 116th Cong. (2020).

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Michael Pepito

In Defense of Statehood: The Disenfranchisement of American Citizens in the Nation’s Capital1*

ABSTRACT. Even though the federal government remains reluctant to grant statehood to Washington D.C., the Constitution obliges Congress to enfranchise the district’s citizens. The original Framers of the Constitution did not envision D.C. becoming a large metropolitan city, therefore living constitutionalism is necessary in discussing the issue of D.C. statehood. Though originalists claim that the status quo protects the integrity of the Constitution, they fail to acknowledge that to grant statehood is to restore constitutionally guaranteed civil liberties. Additionally, the capital territory practices several state-like norms, such as seeking consent of the electorate for D.C. statehood and sharing the federal tax burden, that render it worthy of statehood. Moreover, the enumerated powers of the legislative branch in Article 1, Section 3 of the Constitution provide a non-judicial pathway to statehood. Legally, D.C. deserves the right to statehood. To that end, this paper recommends immediate congressional approval of H.R. 5803 and the subsequent ratification of a 28th Amendment that would restore voting privileges to citizens living in the nation’s capital.

1* This article was written between December and February, 2020-21. On April 22, 2021, HR 5803 was passed by the House of Representatives (216-208), demonstrating a significant step towards D.C. statehood.

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Introduction

The phrase “end taxation without representation” is issued on all D.C. license plates.2 Although this phrase was the battle cry for the American Revolution over 200 years ago, it is still relevant for D.C. citizens today as they struggle to achieve adequate representation in government.3

When the U.S. Constitution was ratified in 1788, it called for the creation of a federally controlled territory to serve as the permanent capital of the national government.4 D.C. was originally conceived as an independent territory, after the Pennsylvania Mutiny of 1783 laid bare the necessity of an independent capital to protect the federal government from state power. However, this distinction stripped D.C. residents from their constitutionally protected rights.5 While American citizens living in states had the protected freedom to vote and to elect federal representatives, D.C. residents were not guaranteed these rights. Unlike the separation of legislative power between Congress and state legislatures, laws passed by the district’s local government are subject to a congressional review period, effectively eliminating the separation between local and federal authority.6 Although there are more than 700,000 D.C. residents who pay federal income tax and are directly subject to federal laws, the Constitution does not provide D.C. residents with congressional representation.7 Instead, D.C. is granted a singular non-voting delegate seat in the House of Representatives, currently held by Congresswoman Eleanor Holmes Norton.8 Though every other state in the Union can elect senators and

2 DEP’T OF MOTOR VEHICLES, https://dmv.dc.gov/service/end-taxation-withoutrepresentation-tags (last visited Mar. 12, 2021).3 NCC Staff, Constitution Daily, NATIONAL CONSTITUTION CENTER, https://constitutioncenter.org/blog/250-years-ago-today-no-taxation-without-representation. (last updated Oct. 7, 2020). 4 H.R. Rep. No. 166TH-IF11443 at 1 (2020).5 History, Chasing Congress Away, U.S. H.R.: HISTORY, ART, AND ARCHIVES (Jun. 1, 2015), https://history.house.gov/Blog/2015/June/6-1-Chasing-Congress/.6 H.R. Rep. No. 166TH-IF11443, supra note 3, at 2. 7 Id. at 3. 8 Id.

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representatives who can vote on federal legislation, the D.C. electorate cannot elect senators or voting representatives to represent their interests to the federal government. This lack of representation in Congress denies the D.C. electorate a crucial political voice on issues, inter alia, concerning how Congress appropriates their federal tax dollars.9

With these issues in mind, some members of Congress are currently considering granting D.C. statehood. H.R. 5803 would admit D.C. as the 51st state of the United States if passed by both chambers of Congress with a simple majority and signed into law by the President of the United States.10 The debate on whether D.C. should be granted statehood or remain a federally controlled territory, like many constitutional debates, is mainly argued between an originalist and living constitutionalist perspective.11 The former believes that the federal authority over D.C., as mandated in the Constitution, should be upheld.12 The latter believes that other factors have rendered this mandate obsolete, so more flexibility in constitutional interpretation is needed.13 Granting D.C. statehood will finally dismantle one of the last remnants of de jure voter suppression in the United States and grant universal suffrage to citizens who, simply by virtue of their place of residence, are currently disenfranchised. In Part I, I will discuss the historical context in which the Framers imagined a federally governed capital as well as how the current status of D.C. conflicts with the principles of the American Revolution. In Part II, I will describe previous legislation that supports D.C. statehood. In Parts III and IV, I will then provide an analysis of the constitutionality of D.C. statehood through

9 The Informed Citizen, DC Residents-- Taxation with Some Representation, N.J. STATE BAR ASSOCIATION (Nov. 4, 2019), https://njsbf.org/2019/11/04/dc-residents-taxation-with-somerepresentation/. 10 Washington, D.C. Admission Act, H.R. 5803, 116th Cong. (2020).11 Steven G. Calabresi, Interactive Constitution, NATIONAL CONSTITUTION CENTER, https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-inconstitutional-interpretation (last visited Mar. 1, 2021).12 Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court’s Federalism Decisions,69 U. CHI. L. REV. 429, 448-50 (2002).13 Charles A. Beard, The Living Constitution, 185 ANNALS AM. ACAD. POL. & SOC. SCI. 29, 30 (1936).

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an originalist and living constitutionalist perspective in conjunction with the practical reasons D.C. should become a state. Lastly, I will advocate the passing of H.R. 5803 and a new constitutional amendment to grant D.C. statehood.

I. The Historical Basis for Washington D.C. as a

Federally Governed Territory

The issue of D.C. statehood demonstrates an obvious contradiction to the foundational principles of representative government that American colonists fought for during the American Revolution. In 1767, the British Parliament passed the Stamp and Townshend Acts in order to collect wide-ranging taxes on economic transactions from the American colonies.14 Prior to these acts, “each colony had its own government that decided which taxes they would instate, and collected them.”15 However, these acts superseded the local authority of the colonists because of their lack of political representation in the British Parliament. In response, colonial Americans rebelled against the British Monarchy because they believed that “taxation without representation” was a violation of their unalienable civil liberties and right to self-govern.16 These ideals of representative government and fair taxation—predicated upon a public mandate and political participation—evolved from the denial of governmental representation and non-consensual taxation by the British monarchy.17

Before the establishment of D.C. as the nation’s capital, the sentiment for a federally-governed capital territory began after the Pennsylvania Mutiny of 1783

14 The Editors of Encyclopedia Britannica, Stamp Act, ENCYCLOPÆDIA BRITANNICA (Dec. 6, 2020), https://www.britannica.com/event/Stamp-Act-Great-Britain-1765. 15 Charles R. Ritcheson, The Preparation of the Stamp Act, 10 WM. & MARY Q. 543, 545 (1953).16 NCC Staff, supra note 3. 17 Jean Deaderick, 1776 Was More About Representation than Taxation, NATIONAL BUREAU OF ECONOMIC RESEARCH, (Dec. 2016), https://www.nber.org/digest/dec16/1776-was-more-aboutrepresentation-taxation.

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impeded the ability of the Continental Congress to federally govern. The mutiny prompted the creation of D.C., and is the reason why it is not a state.18 The Continental Congress was unable to pay the Continental Army for their services in the Revolutionary War.19 As a result, over one hundred Continental Army officers and members of local militias rallied around the Continental Congress in Philadelphia, Pennsylvania, to demand years of back pay.20 In response, the members of the Continental Congress demanded the Pennsylvania state government deploy local militias to quash the unruly mob.21 However, they were met by deaf ears as the Pennsylvania state government and the Continental Congress were unable to acquire the required number of congressmen for a quorum due to the physical blockade from the mob.22 The mob of militiamen successfully halted the federal government and prevented its ability to govern.23

Although this event ended peacefully and the Continental Congress eventually organized the back payment for the congressional troops, the denial of protection by the Pennsylvania state government presented a troubling problem for the balance of power between local and federal government.24 If federal institutions and government buildings were established within state territories, then states could have an alarming amount of physical and political leverage over the proceedings of the federal government.25 The entire safety of the federal government would rely on how willing the state governor would be to protect against actions that could harm federal lawmakers or impede their ability to perform their legislative duties.

18 Evan Butts, The Case for and Against D.C. Statehood, THE PRINDLE POST, (Jul, 13, 2020), https://www.prindlepost.org/2020/07/the-case-for-and-against-d-c-statehood/. 19 Kenneth R. Bowling, New Light on the Philadelphia Mutiny of 1783: Federal-State Confrontation at the Close of the War for Independence, 101 PA. MAG. HIST. & BIOGRAPHY 419, 449 (1977).20 History, supra note 4. 21 Id. 22 Id. 23 Id. 24 Bowling, supra note 18, at 450.25 David Fontana, Federal Decentralization, 104 VA. LA. REV., 735-738 (2018).

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Furthermore, political bias could affect how the state governor would react if there was a call for help from a Congress that mostly consists of members belonging to a different political party. Additionally, the state government could enact statutes that prevent the function of the federal government, such as curfews, road closures, and prevention of access to basic services.26 The unequal influence the Pennsylvania state government retained over the Continental Congress threatened the integrity of federal authority and balance of state power within a representative government.27 As the future Framers of the Constitution experienced the chaos of the Pennsylvania mutiny, they soon realized the necessity of developing a capital territory that had an independent jurisdiction free from state influence to preserve the balance of state and federal power.28

II. The Evolution of Legislation Regarding D.C.

Statehood and Representation

The 1790 Residence Act established the location of the nation’s capital by the cessation of a portion of land between Maryland and Virginia.29 Although critics of D.C. statehood argue Maryland still holds responsibility for the land it ceded to the federal government, legal scholars argue that Maryland formally relinquished control over the land it surrendered.30 These scholars posit that, if Maryland still maintained legal possession over the territory of D.C., then it too would have unequal leverage over the functions of the federal government compared to other states.31 However, the logic of this argument fails to acknowledge the already existing leverage Maryland and Virginia retained over

26 George Derek Musgrove, Statehood Is Far More Difficult: The Struggle for D.C. SelfDetermination, 29 WASH. HIST. 2 (2017). 27 Peter Raven-Hansen, Constitutionality of D.C. Statehood, 1 GEORGE WASH. L. REV. 60, 160193, (1991). 28 Bowling, supra note 18, at 438. 29 D.C. Statehood: Hearings and Markups Before the Subcommittee on Fiscal Affairs and Health of the Committee on the District of Columbia, 100TH CONGRESS (1987).30 Id. 31 Id.

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the functions of the federal government. No matter where the Founding Fathers chose to establish a capital territory, bordering states of these territories would have an unequal influence due to the natural influx of labor into the federal district.32 Consequently, this scholarly debate is falsely centered around protecting the federal government’s security and freedom from nongovernmental paths of influence, and critics fail to acknowledge the legitimate issue at hand: the disenfranchisement of D.C. residents.

The first piece of legislation that sought to inhibit the voting rights and federal representation of D.C. residents was the District of Columbia Organic Act of 1801.33 This act stripped residents of their voting rights since it “no longer permitted residents of the District of Columbia to continue to vote in the states from which the District had been created.”34 At this time, the majority of people living in D.C. declared residency in either Virginia or Maryland, which allowed them to vote in federal elections. 35 However, voting rights are not the only component of this broader decimation of political rights. In 1802, the locallyelected government was abolished, and the city was subject to a 12-member council and a mayor that was directly appointed by the federal government.36 Citizens of D.C. objected to the treatment they received from the federal government because it did not resemble the representative republic they were promised; rather, the nonconsensual federal authority resembled the oppressive treatment of the British monarchy before the Revolutionary War.37 If D.C.

32 Yesim Sayin Taylor, DISTRICT MEASURED, https://districtmeasured.com/category/residentemployment/ (last modified Apr. 29, 2015). 33 Mark David Richards, The Debates over the Retrocession of the District of Columbia, Vol. 16 WASH. HIST. 54, 57 (2004).34 A History of Democracy Denied, DC VOTE (Mar. 7, 2021), https://www.dcvote.org/fightequality/washington-dc-historical-timeline-nations-capital.35 Barbara Sprunt & Miles Parks, NPR, https://www.npr.org/2020/06/26/883257215/somelongtime-d-c-residents-still-vote-in-other-states-is-that-legal (June 27, 2020).36 Editorial Note: Bill to Establish a Government for the Territory of Columbia, Founders Online, NATIONAL ARCHIVES, https://founders.archives.gov/documents/Jefferson/01-36-02-00270001. [Original source: BARBARA OBERG, THE PAPERS OF THOMAS JEFFERSON, VOL. 36, 1 DECEMBER 1801–3 MARCH 1802 32 (2009).].37 Musgrove, supra note 25, at 29.

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citizens could not elect their own federal representatives, such as congressmen or senators, they would be undemocratically subjected to federal statutes. The 1970 District of Columbia Delegate Act allowed D.C. to elect a single representative that could attend congressional hearings and sit on congressional committees but lacked the ability to vote for legislation.38 Although the District of Columbia Delegate Act provided a certain extent of political participation, D.C. constituents still lack real political representation, as their elected delegate cannot convey the electorate’s political interests with a vote.39 In 1973, Congress passed the Home Rule Act, which restored an extent of local autonomy to D.C. but did not diminish the high level of federal legislative authority.40 The Home Rule Act allowed D.C. to create a municipal government in the form of a mayor-council government.41 This new government included a locally-elected city council that would serve as the primary legislative body and a mayor that would serve as the City’s chief executive.42 However, the Home Rule Act preserved the federal government’s right to review and approve municipal legislation as well as the city’s annual operating budget.43 Effectively, all legislation that is passed by the local council and approved by the mayor is still subject to congressional oversight. However, if H.R. 5803 is passed, D.C. citizens would finally be free from this form of federal oversight.

38 Delegate to the HOUSE OF REPRESENTATIVES FROM THE DISTRICT OF COLUMBIA § 1-401 (DC Law Library 1970). 39 Id. 40 D.C. Home Rule Act § 401 (Council of the District of Columbia 1973). 41 Id. 42 Id. 43 Id.

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III. Constitutional Arguments

A. Originalism v. Living Constitutionalism

The debate on whether D.C. should become a state or remain a federally controlled territory reflects two different forms of constitutional interpretation: originalism and living constitutionalism.

Originalism is a form of legal interpretation that prioritizes the original meaning of the Constitution at the time it was ratified.44 Furthermore, originalism exists independently of the subjective “intentions” of those who wrote the text or of the “original expected applications” that the Framers of the Constitution conceived.45

On the contrary, living constitutionalism is a form of legal interpretation that asserts that the meaning of the Constitution’s text changes over time, as social attitudes and external circumstances change.46 While originalists interpret the Constitution verbatim, living constitutionalists interpret the Constitution as an amendable document that should fit the needs of modern society.47 Critics of D.C. statehood, who are usually originalists, assert that the Constitution specifically outlines the federal government’s absolute jurisdiction over D.C.: “[Congress shall have the power] to exercise exclusive Legislation in all Cases whatsoever, over such District.”48 Proponents of D.C. statehood demonstrate a living constitutionalist perspective and argue that the Framers of the Constitution did not intend to disenfranchise the over 700,000 U.S. citizens currently living in D.C. Therefore, federal legislation and a new constitutional

44 Steven G. Calabresi et al., On Originalism in Constitutional Interpretation, THE NATIONAL CONSTITUTION CENTER, (Jan. 18, 2021), https://constitutioncenter.org/interactiveconstitution/white-papers/on-originalism-in-constitutional-interpretation.45 Id. 46 Id. 47 Id. 48 U.S. CONST. art. 1, § 8.

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amendment are necessary to provide D.C. residents with adequate political representation.

B. How the Framers Envisioned the Capital

The original reasoning behind a federally governed capital territory was to protect the functions and authority of the federal government by granting the legislative branch permanent control over the capital territory.49 However, the verbatim text in Article 1, Section 8, Clause 17 reveals the difference between the intended structure of D.C. as a military stronghold and the civilian hub it is today.50

As a result of the unequal balance between state and federal authority revealed during the Pennsylvania Mutiny of 1783, Article 1, Section 8, Clause 17 grants Congress the power to “exercise legislation in all cases whatsoever... and to exercise like [a]uthority over all [p]laces purchased by the [c]onsent of the legislature in which the state shall be, for the erection of [f]orts, [m]agazines, [a]rsenals, dock-yards, and other needful Buildings.”51 The importance of creating defense and military-related structures emphasizes that D.C. was conceived based on the protection, security, and functional independence of the federal government. Simply put, D.C. was envisioned to be a military base, not a large metropolis. The Founding Fathers did not and could not have foreseen D.C. becoming the latter, challenging the originalist interpretation of how the capital territory should be treated today.52 Furthermore, the act of carving D.C. out of territory ceded by Maryland and Virginia that was “10 miles square” adds to the constitutional sentiment that the Founding Fathers could not have foreseen a significant civilian population living within the capital territory,

49 Fontana, supra note 24, at 738.50 U.S. CONST. art. 1, § 8, cl. 17.51 Id. art. 1, § 8, cl. 17. 52 Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation, 133 Harv. L. Rev.1049, 1052 (2020) [Original source: Bruce Ackerman, WE THE PEOPLE: FOUNDATIONS 105 (1991).].

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further solidifying the argument that the Founding Fathers did not intend to cause mass voter disenfranchisement.53

The Founding Fathers imagined D.C. residents like federal troops that are deployed to a foreign military base rather than American citizens residing in a state. Although members of the military live and work outside of their home state, they are still registered as voters and residents of the state in which they originated from. Similarly, the Framers intended for federal workers within the territory of D.C. to be registered voters in the neighboring state they were from (either Maryland or Virginia). This would guarantee every American the opportunity to vote and participate in representative government.

However, as the federal government grew in size after the signing of the Constitution, so did the necessary labor requirements needed to support vital federal institutions.54 As a result, federal employees gradually began declaring residence within the capital territory to live close to their places of work.55 A living constitutionalist perspective is therefore necessary in interpreting Article 1, Section 8, Clause 17 of the Constitution. When considering the intent of the Framers, it is clear they did not foresee 700,000 American citizens living and working in D.C., so it is imperative to include these citizens in the democratic process.56 Living constitutionalism clearly provides a more viable approach to considering the current reality of mass voter disenfranchisement citizens in D.C. face today.

C. Constitutional Amendments

To understand the legal challenges that face advocates for statehood, it is also important to note the applicable constitutional amendments. The 23rd

53 Id. 54 Fontana, supra note 24, at 745.55 Id. 56 DC HEALTH MATTERS, https://www.dchealthmatters.org/demographicdata. (last updated Jan. 2021).

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Amendment highlights the constitutional dilemma between a federally controlled territory and the right to vote, as guaranteed by the 15th Amendment.

Under the District of Columbia Organic Act of 1801, political participation was stripped from the District of Columbia and only partly returned after the passing of the 23rd Amendment in 1961.57 The District of Columbia Organic Act of 1801 “no longer permitted residents of the District of Columbia to continue to vote in the states from which the District had been created.”58 The 23rd Amendment formally allowed residents of D.C. to vote during presidential elections via the Electoral College:

A number of electors of President and Vice President equal to the whole number of

Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State.59

As of now, D.C. justifiably receives the minimum amount of three electoral votes because of its relatively low population of 700,000.60 In comparison, Vermont has a population of 626,000 and Alaska has a population of 737,000, both afforded three votes in the Electoral College.61 However, according to the 23rd Amendment, even if the population of D.C. doubled or tripled, the D.C. electorate would still be afforded only three electoral votes. Although other states are subject to Electoral Vote revisions if their populations change, D.C. is arbitrarily limited in its Electoral College representation.

The 23rd Amendment does not rightfully guarantee equal political expression and the right to vote as guaranteed by the 15th Amendment. Section 1 of the 15th Amendment ensures that “The [r]ight of citizens to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” while Section 2 of the 15th

57 Clement E. Vote, When District of Columbia Representation Collides with the Constitutional Amendment Institution, 9 J. FED.ISM 105, 106 (1978).58 A History of Democracy Denied, supra note 33. 59 U.S. CONST. amend. XXIII. 60 Vote, supra note 56. 61 2020 U.S. Census Apportionment Results, U.S. CENSUS BUREAU, https://www.census.gov/data/tables/2020/dec/2020-apportionment-data.html (last visited Mar. 5, 2021).

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Amendment assures that “congress shall have the power to enforce this article through legislation.”62 Although the 15th Amendment guarantees the right to vote to every American citizen, D.C. residents, despite being U.S. citizens, are excluded. Moreover, the 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.63

Therefore, stripping D.C. citizens of the right to vote is a violation of the 14th Amendment since it legalizes the uneven application of federal laws and does not protect the “privileges and immunities of all U.S. citizens.” There is a clear difference in how voting rights are applied to American citizens living within the district versus the rest of the country.

Although Article I, Section 8, Clause 17 of the Constitution explicitly outlines federal authority over D.C., Article IV, Section 3 highlights a constitutional path to political enfranchisement and D.C. statehood. Section 3 delineates:

New states can be admitted into the Union, but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states… without the consent of the legislatures of the States concerned as well as Congress.64

This section of the Constitution provides a legislative path to D.C. Furthermore, it legitimizes the possibility of carving out a part of the territory of D.C. to either form a new state or transfer residential areas of D.C. back to Maryland or Virginia. If a new state were to be carved out of the current territory of D.C., then only legislation originating from Congress is needed.65 If the

62 U.S. CONST. amend. XV. 63 U.S. CONST. amend. XIV. 64 U.S. CONST. art. IV, § 3. 65 Peter Raven-Hansen, The Constitutionality of D.C. Statehood, 60 GEO. WASH. L. REV. 160, 193 (1992).

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residential areas of D.C., where the population resides, is ceded back to the original states of Maryland and Virginia while federal buildings are preserved in the capital territory, this would require consent from the Virginia legislature, Maryland legislature, and Congress.66 Either way, there exists a viable path to ensuring D.C. residents have the opportunity to participate in the electorate.

Additionally, Article I, Section 3 further legitimizes D.C.’s path to statehood due to its grouping with colonized territories external to the contiguous United States: “Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory [D.C.] or other Property belonging to the United States.”67 Although this clause restricts the independence of D.C., it does highlight the path to statehood, much like how previous external territories like Hawaii and Alaska were admitted into the Union by Congress.68 Although originalist critics of D.C. statehood argue that the Constitution does not provide a pathway for D.C. statehood, they are wholly incorrect, as D.C. is an unincorporated territory and thus, can be legally granted statehood under Article 1, Section 3.

However, several constitutional challenges to H.R. 5803 debated in the House Committee on Oversight and Reform posit that the federal government does not have the constitutional authority to grant the transferring of D.C. territory based on the limit of their congressional powers enumerated in the Constitution. For example, the anti-statehood originalists interpretations of Article 1, Section 8, Clause 17 lean on the perspective that the Framers of the Constitution had the intent to create a federally-controlled capital territory to ensure self-government, individual liberty, and the rights of minorities and that the components of the federal system must be independent of each other if they

66 Id. 67 U.S. CONST. art. I, § 3. 68 DAN BOYLAN & T. MICHAEL HOLMES, JOHN A. BURNS: THE MAN AND HIS TIMES 141-54 (2000).

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are to serve their function.69 They claim that residents of D.C. are too economically intertwined with the function of the federal government and that they would effectively have a disproportionate amount of influence over federal affairs.70 However, through this logic, the residents of D.C. already maintain a disproportionate level of leverage against the federal government as the right to protest is protected by the First Amendment. If a vast majority of D.C. residents comprise the government workforce, then they could, in theory, collectively strike and inhibit the functions of the federal government, but this is an unfounded concern.71 If D.C. is granted statehood, then its leverage over the federal government and other states in the country would not substantively change. Additionally, if the mere collectivization of the electorate is a real threat to the function of the federal government, then the argument against statehood is unconstitutional.72 The right to protest is protected under the 1st Amendment, so if D.C. residents are denied the right to collective political expression, then this would further legitimize the argument that denying D.C. statehood inhibits the protected freedoms and rights in the Constitution.73

IV. Practical Reasons for Statehood

It is also imperative to consider D.C.’s role as a functioning state in practice, despite not being afforded the privileges of statehood in name. For instance, D.C. pays federal taxes despite lacking congressional representation.74 Furthermore, by denying the will of D.C. residents to become a part of the federal electorate, Congress enforces its will against the people by silencing demands of equality and true representation. It is upon this premise that we

69 Id. 70 Id. 71 B.P. Rath & B.B. Das, Right to Strike: An Analysis, 41 INDIAN J. INDUS. REL. 248, 251 (2005).72 Id. 73 U.S. CONST., amend. I. 74 Why Statehood for DC. Last visited Jan. 3, 2021. https://statehood.dc.gov/page/whystatehood-dc.

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must consider the willingness of D.C. residents to participate in a republican democracy and the ability of D.C. to share the federal tax burden.

A. Consent of the Electorate for D.C. Statehood

Some of the core principles of the Declaration of Independence and representative democracy is adhering to the consent of the governed in order to protect the electorate from tyranny, ensure the fair application of the law, and to protect minority voices from oppression.75 Despite these core principles, the D.C. electorate’s pleas for political enfranchisement have been left unanswered by the federal government. Local leaders and the majority of the D.C. population have expressed their desire for voting rights. 76 The recently drafted state constitution and the referendum on statehood both reflect this desire. Eleanor Norton is the sole non-voting congresswoman representing D.C. and is the chief author of a draft of the district's state constitution.77 The Constitution does not formally define whether or not a state needs its own constitution. However, D.C. leaders successfully fulfill a norm of statehood through a written state constitution, further cementing their status as a de facto state and demonstrating the pro-statehood sentiment of local leaders representing the electorate.78

Additionally, D.C. underwent a statehood referendum during the 2016 presidential election that determined if the public wanted to split the nation’s capital into a new state called New Columbia; this would grant them the ability to vote on a new state constitution, and subsequent boundaries of the territory.79 The results of this referendum proved that the majority of D.C. residents

75 William F. Dana, The Declaration of Independence, 13 HARV. L. REV. 319, 343 (1900).76 Musgrove, supra note 25, at 29. 77 New Columbia Const. pmbl.78 Musgrove, supra note 25, at 29. 79 Washington D.C., Statehood Referendum, BALLOTPEDIA , https://ballotpedia.org/WashingtonD.C., Statehood Referendum (November 2016) (last visited May 4, 2021).

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desired statehood, as 78.3% of the electorate voted in favor.80 This referendum further illustrates the public mandate of statehood and the legal necessity for political enfranchisement.

B. D.C.’s Ability to Share the Federal Tax Burden

Despite paying the highest per-capita federal income taxes in the U.S., D.C. residents are unfairly subjected to federal tax law without any form of representation within Congress.81 Overall, D.C. residents pay more in federal income tax than 22 other states in the country.82 Additionally, in 2014, D.C. residents paid the federal government $26.4 billion in taxes while only receiving $3.5 billion in return.83 Only 25-30% of D.C.’s annual budget relied on federal appropriations; as a percentage, this is less than five states and on par with three others.84 Although the ratio of taxed income and funding received is one-sided, the mere taxation (in any amount) of American citizens that are disenfranchised is unjust.85 Although the 16th Amendment states that “Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration,” it is undeniably undemocratic that citizens living within the United States subject to federal income taxes do not have the ability to participate in the creation or cutting of federal funds they help generate.86 The federal government unfairly taxes D.C. residents and allocates federal funds towards programs in other states that D.C. residents have no say in. Within the House of Representatives, the House Committee on Appropriations is

80 Id. 81 Why Statehood for DC, supra note 73. 82 Id. 83 Rachel Sadon, D.C. Paid More in Federal Taxes Than 22 States Last Year, DCIST, https://dcist.com/story/16/04/25/infuriating-tax-figure-time/ (last visited Mar. 1, 2021).84 Why Statehood for DC, supra note 73. 85 Nancy Staudt, Taxation Without Representation, 55 NYU TAX L. REV. 555, 566 (2010).86 U.S. CONST., amend. XVI.

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responsible for appropriating tax revenue to support most of the functions of the federal government.87 The subcommittees of the House Committee on Appropriations determine the federal budget for defense programs, homeland security, water and environmental services, general government and financial services, education, state and foreign operations, transportation, and housing and urban development programs.88 In all of these proceedings, D.C. lacks tangible representation. Although D.C. is not a state, it demonstrates a higher degree of economic self-sufficiency compared to several states in the union that generate less revenue for the federal expenditure and rely heavier on federal aid.89 It is inequitable that D.C. generates 7.5 times the amount of federal funds than it receives and is not considered a state.90 Granting D.C. statehood would allow D.C. to elect at least one voting representative to the House of Representatives, which would finally grant D.C. residents a voice in the appropriation of their tax dollars.

Conclusion

Congressional approval of H.R. 5803 and the ratification of a new constitutional amendment would secure statehood for the district, and adequate political representation for its citizens. If Congress does not take this path of action, they are complicit in the denial of the right to vote as guaranteed by the 15th Amendment. Furthermore, the question of D.C. statehood boils down to whether the Constitution should be interpreted verbatim, using an originalist approach, or more adaptively, applying a living constitutionalist perspective. Living constitutionalism is clearly necessary, as D.C. no longer resembles the

87 Jurisdiction, HOUSE COMMITTEE ON APPROPRIATIONS, (Apr. 25, 2019), https://appropriations.house.gov/about/jurisdiction-and-rules. 88 Subcommittees, HOUSE COMMITTEE ON APPROPRIATIONS, (last visited Apr. 26, 2021), https://appropriations.house.gov/subcommittees.89 Washington, SELF SUFFICIENCY STANDARD, http://www.selfsufficiencystandard.org/sites/default/files/selfsuff/docs/WA2020SSS.pdf (last updated 2020). 90 Why Statehood for DC, supra note 73.

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federal capital the Framers had envisioned. For instance, D.C. already acts as a state by shouldering a substantial (and asymmetrical) federal tax burden. Only by granting D.C. statehood will the political principles the Founding Fathers laid out—a true democracy, free of taxation without representation—finally come wit

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Will White

Anti-Queer Xenophobia: A Case for Reform in Immigration Law

ABSTRACT. Federal immigration laws of admissibility disproportionately exclude queer migrants attempting to enter the United States. In the late 1800s, Congress passed several restrictive immigration laws in response to an increase in Chinese immigrants, many of whom were sex workers deemed physically or mentally unwell. Today, these laws have created an excuse for the U.S. to shun queer and transgender migrants. Moreover, expedited removal, a process by which immigrants are denied entry or removed from the U.S. without normal proceedings, eliminates access to appeals and an attorney, leaving migrants defenseless. This article explores the moral and legal imperative to abolish expedited removal as well as statutes that make prostitution and health grounds for inadmissibility.

Introduction

In late-nineteenth century China during the Qing dynasty, natural disasters and landlord-based oppression left families in financial shambles.1 As a result of such an environment, many Chinese women worked as prostitutes to help provide for their families.2 In this hostile economic environment, many of these women chose to migrate to the U.S. At the time, the U.S. sought Chinese immigrants as a cheap source of male labor, however, the demographic of Chinese migrants changed at a time where anti-immigration sentiment in the

1 Lucie Cheng Hirata, Free, Indentured, Enslaved: Chinese Prostitutes in Nineteenth Century America, 5 SIGNS 3, 5 (1979), https://www.jstor.org/stable/3173531?seq=3#metadata_info_tab_contents. 2 Id.

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U.S. was rising.3 In response, Congress created laws tightening immigration admissibility standards against Chinese women through the Immigration Act of 1875 and the Chinese Exclusion Act of 1882.4 Chinese women were labeled as unsanitary, immoral, and deviant for engaging in prostitution.5 Today, restrictions on immigrant sex workers exist in Title 8 of the United States Code (U.S.C.) § 1182 (2)(D). While Chinese exclusion no longer dominates immigrant sex work discourse, U.S. law bars entry for prostitutes.6

This law has generated a new crisis at the southwest border. Camila Díaz was a 29-year-old transgender sex worker who attempted to flee to the U.S. several times from El Salvador after receiving multiple death threats for being transgender.7 In January of 2019, Díaz left her house in El Salvador for a usual night in the city and was beaten to death by police officers. She had been deported just 14 months earlier from the U.S. by Immigration and Customs Enforcement (ICE).8 Unfortunately, her case is not an unusual one. Reports show that, between 2013 and 2019, 138 people were killed after being deported from the U.S.9 Additionally, that same report suggested the tally is likely much higher because the U.S. does not formally track the people they deport.10

In 1996, the U.S. government established expedited removal so immigration officers could quickly deport undocumented citizens, with the stated goal of

3 Catherine Lee, Prostitutes and Picture Brides: Chinese and Japanese Immigration, Settlement, and American Nation Building, 1870-1920, THE CENTER FOR COMPARATIVE IMMIGRATION STUDIES, at 3, https://ccis.ucsd.edu/_files/wp70.pdf. 4 Id. at 4. 5 Id. 6 Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641, 641 (2005), https://scholarship.law.duke.edu/faculty_scholarship/3826/. 7 Jorge Valencia, ICE Deported a Trans Asylum-seeker. She was Killed in El Salvador., THE WORLD (Feb. 13, 2020), https://www.pri.org/stories/2020-02-13/ice-deported-trans-asylum-seekershe-was-killed-el-salvador. 8 Michelle Kim, Three El Salvador Police Officers Convicted for Murder of Trans Woman, THEM (Aug. 4, 2020), https://www.them.us/story/three-el-salvador-police-officers-convicted-formurder-of-trans-woman. 9 Id. 10 Kennedy and Alison Parker, Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse, HUMAN RIGHTS WATCH, https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policiesexpose-salvadorans-death-and#.

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cracking down on crime.11 However, expedited removal frees immigration officers from any accountability, placing the burden of proof on arriving immigrants to show that they do not potentially violate admissibility criteria.12 The law also removes immigrants’ right to due process, including the right to an attorney and a hearing in front of a judge, which means that officers can immediately deport migrants without a trial. Individuals are detained until removal and are not allowed to apply for an appeal. As a general rule, migrants without legal permanent resident status in the U.S. who fail to prove credible fear in an interview are subject to expedited removal. However, immigration officials arbitrarily determine credible fear.13 Additionally, if an immigrant reapplies for entry into the U.S. as an asylum seeker, they must prove reasonable fear—a higher standard of proof than credible fear that leaves their asylum case largely up to the individual discretion of immigration officials.14 In this system, transgender women and refugees facing mental health challenges are often profiled, judged to be in violation of admissibility standards, and deported without a fair trial.

Health-based restrictions are another tool of immigrant exclusion detrimental to those at the margins of society. Just like prostitution, healthbased admissibility standards for citizenship originate from congressionallybacked Chinese exclusion.15 Congress aimed to exclude people considered to be perverted or mentally inferior.16 Such motivations are encoded into health security concerns under 8 U.S.C. § 1182 (1)(A), which bars entry and justifies deportations due to physical and mental diseases. Such restrictions include, but are not limited to, those who are affected by human immunodeficiency virus infection (HIV) and post-traumatic stress disorder (PTSD). By design, these

11 A Primer on Expedited Removal, AMERICAN IMMIGRATION COUNCIL (July 22, 2019), https://www.americanimmigrationcouncil.org/research/primer-expedited-removal. 12 Id. 13 Id. 14 Id. 15 Kristin Garrity Sekerci & Azza Altiraifi, A US Immigration History of White Supremacy and Ableism, Aljazeera (Jan. 31, 2018), https://www.aljazeera.com/opinions/2018/1/31/a-usimmigration-history-of-white-supremacy-and-ableism. 16 Id.

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restrictions disproportionately impact queer migrants and refugees. As an example, in 2020 in Lesbos, Greece, 50 Afghan refugee children were considered suicidal due to war-related PTSD.17 In the future, if these children wan to migrate to the U.S., they will be barred entry since they have been labeled a potential security risk.

This article will explore the federal laws that create criteria for immigration admissibility which disproportionately harm the queer and trans community. The article will begin by revealing how expedited removal unduly impacts queer immigrants of color, violates due process, and does not benefit national security. Then, this article will argue that restrictions on immigrant prostitution actively endanger queer migrants. Finally, the article will expand on the definition of health-based restrictions and how their application is violent, incoherent with the spirit of federal protections for citizens, and antithetical to preventing the spread of disease.

I. Expedited Removal

A. The Application of Expedited Removal and its Impacts

The first step in unveiling how immigration laws target vulnerable people is to examine expedited removal and its consequences. The 1990s saw an influx of undocumented immigration in the U.S. from around the world because of perceived economic growth and opportunities in states like California.18 This prompted Congress to create a framework for expedited removal as a part of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Per the IIRIRA, expedited removal authorizes ICE to remove immigrants without normal removal proceedings, which involve hearings before an immigration

17 Katy Fallon, Mental Health ‘Emergency’ Among Child Refugees in Greece, ALJAZEERA (Feb. 11, 2021), https://www.aljazeera.com/news/2021/2/11/children-dont-play-at-all-mental-healthcrisis-stalks-lesbos. 18 Faye Hipsman & Doris Meissner, Immigration in the United States: New Economic, Social, Political Landscapes with Legislative Reform on the Horizon, MIGRATION POLICY INSTITUTE (Apr. 16, 2013), https://www.migrationpolicy.org/article/immigration-united-states-new-economicsocial-political-landscapes-legislative-reform.

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judge.19 The goal of expedited removal was to deter illegal immigration and prevent migrants from making fraudulent claims to gain asylum status. Independently, the addition of Section 235(b)(1) in 1996 to the Immigration and Nationality Act of 1954 (INA) gave immigration officers the authority to remove immigrants expeditiously.20 In other words, the IIRIRA created the method of expedited removal, but the INA gave explicit authority to ICE agents to utilize this method to deport immigrants. Though Congress planned to encourage legal immigration by strictly enforcing illegal immigration, undocumented immigration increased from 5 million to 12 million by 2006 after the act was implemented,.21 Expedited removal proved to be futile to its original intent as well as detrimental to immigrants.22

In 2020, the United States Supreme Court ruled in Department of Homeland Security v. Thuraissigiam that immigrants do not have the right to challenge their expedited removal in federal court, thereby solidifying the power of immigration officers.23 The Court dismissed claims of due process and justified expedited removal as a way to deter fraudulent asylum claims.24 Furthermore, in Section 242(e) of the INA, Congress declared that no court could issue an order stopping an expedited removal, squashing hope of a favorable court decision for undocumented immigrants unless one claims to be a permanent resident, or that they were previously granted refugee status.25

Expedited removal also disproportionately impacts immigrants of color. ICE agents can quickly issue deportation orders at the border on mere suspicion of an immigration violation, often relying on appearance to make this

19 A Primer on Expedited Removal, supra note 11. 20 Madhuri Grewal, A Deportation Moratorium, What Comes Next for Biden?, ACLU NEWS AND COMMENTARY (Dec. 20, 2020), https://www.aclu.org/news/immigrants-rights/a-deportationmoratorium-what-comes-next-for-biden/. 21 Dara Lind, The Disastrous, Forgotten 1996 Law that Created Today's Immigration Problem, VOX (Apr. 28, 2016), https://www.vox.com/2016/4/28/11515132/iirira-clinton-immigration. 22 Grewal, supra note 20. 23 Dept. of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020). 24 Id. 25 Aaron Reichlin-Melnick, The Supreme Court Won't Protect Immigrants' Rights. Now It's Up to Congress, SLATE MAGAZINE (July 1, 2020), https://slate.com/news-andpolitics/2020/07/congress-iirira-reform-thuraissigiam-asylum.html.

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judgment.26 The effect of unconscious racism, and even more overt racism, is strongly prevalent here as ICE agents have complete control over deportations with no consequences for an incorrect or harmful decision. People of color are thus more at risk for being targeted. For example, transgender Latina women are more likely than the average immigrant to be detained or deported by ICE agents.27

Expedited removal undermines an immigrant’s ability to challenge wrongful deportation orders. An immigrant must demonstrate a “credible fear” of persecution in their country of origin in order to challenge a deportation order, but the definition of “credible fear” is subject to the immigration official’s discretion.28 If an immigrant fails to prove credible fear, they are immediately deported. In 1998, Congress instructed the U.S. Commission on International Religious Freedom to review the expedited removal process and its potential implications on asylum seekers attempting to escape religious persecution.29 Reports from 2005 and 2016 found that asylum-seekers were often incorrectly processed and thus had their claims denied by agents who mishandled the law or denied these migrants a fair process.30 Moreover, expedited removal forces undocumented immigrants to live in fear and uncertainty without a way of protecting themselves from the unchecked authority of immigration officials.31

26 Nicole Narea, The Supreme Court Just Allowed Trump's Expansion of Deportations to Go Unchecked, VOX (June 25, 2020), https://www.vox.com/policy-andpolitics/2020/6/25/21302168/supreme-court-immigration-trump-deportation-thuraissigiam. 27 Kerry Battenfeld, Moral Crimes Post-Mellouli: Making a Case for Eliminating State-Based Prostitution Convictions as a Basis for Inadmissibility in Immigration Proceedings Comments, 65 BUFF. L. REV. 619, 622 (2017), http://www.buffalolawreview.org/past_issues/65_3/Battenfeld.pdf. 28 Reichlin-Melnick, supra note 25. 29 Id. 30 Id. 31 Jasmine Aguilera, What to Know About DHS' New 'Expedited Removal' Rule, TIME (July 23, 2019), https://time.com/5632671/undocumented-immigrants-expedited-removal.

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B. The Unconstitutionality of Expedited Removal

Expedited removal is inherently unconstitutional. The Fifth Amendment holds that “no person…shall be deprived of life, liberty, or property, without due process of law” with the Fourteenth Amendment concurring that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Expedited removal bars immigrants from receiving due process and a meaningful opportunity to be heard in a court hearing or through further review by an administrative determination of removability.32

Furthermore, years of Supreme Court precedent support the assertion that a non-citizen alien is entitled to Fifth and Fourteenth Amendment protection, even in the case of unlawful or brief residence in the U.S. In the 1886 case Yick Wo v. Hopkins, the Court determined that non-citizen aliens were protected by the Fourteenth Amendment from deprivation of life, liberty, or property without due process of law.33 Then, in the 1896 case Wong Wing v. U.S., the Court held that non-citizens convicted of illegal entry or presence in the United States were still afforded Fifth Amendment rights.34 In the 1903 case Yamataya v. Fisher, the Supreme Court held that deportation procedures were subject to constitutional scrutiny under the Due Process Clause of the Fifth and Fourteenth Amendments, even after only four days of residence in the U.S.35 Therefore, expedited removal is unconstitutional because it violates the Fifth and Fourteenth Amendments of the Constitution as well as past Supreme Court precedent and prevents immigrants from challenging wrongful deportation orders.36

32 Hillel R. Smith, The Department of Homeland Security’s Nationwide Expansion of Expedited Removal, CONGRESSIONAL RESEARCH SERVICE (June 30, 2020), at 4, https://crsreports.congress.gov/product/pdf/LSB/LSB10336. 33 Yick Wo v. Hopkins, 118 U.S. 356 (1886). 34 Wong Wing v. United States, 163 U.S. 228 (1896). 35 Yamataya v. Fisher, 189 U.S. 86 (1903). 36 Ebba Gebisa, Constitutional Concerns with the Enforcement and Expansion of Expedited Removal, 2007 U. CHI. LEGAL F. 565, 584, https://chicagounbound.uchicago.edu/uclf/vol2007/iss1/18.

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C. The Failure of Expedited Removal’s Original Intent

Proponents of expedited removal argue that it deters criminal refugees from countries that incentivize crime, often citing places like Myanmar, Iraq, and Somalia.37 However, there is no concrete evidence that the presence of more asylum seekers and immigrants in the U.S. overall increases crime rates. In fact, some studies suggest that overall crime rates were lower after an influx of asylum seekers. The New American Economy Research Fund in 2017 confirmed this by looking at the Worldwide Refugee Processing System data from the Department of Homeland Security. Nine out of ten communities monitored saw a near 70% reduction in crime after an influx of immigrants.38 Security arguments against incoming refugees ignore empirical analysis that concludes that there is no security threat. These arguments merely serve to stigmatize migrants of color.

II. Prostitution

A. The Effect of Current Restrictions on Immigrants with a History of Prostitution

The federal terms of inadmissibility for immigrants unduly impact queer women of color with a history of prostitution. 8 U.S.C. § 1182 (2)(D) mandates that immigrants who have participated in prostitution will be deported or denied entry into the United States.39 The only exceptions to deportation or entry denial are if immigrants participated in prostitution over ten years before their arrival or were victims of violent coercion. However, the exception is arbitrarily applied. For instance, in 2009, an unnamed applicant was convicted four times under New York state law for prostitution-related offenses.40 The applicant

37 Is There a Link Between Refugees and U.S. Crime Rates?, NEW AMERICAN ECONOMY RESEARCH FUND (Aug. 14, 2020), https://research.newamericaneconomy.org/report/is-there-a-linkbetween-refugees-and-u-s-crime-rates/. 38 Id. 39 Inadmissible Aliens, 8 U.S.C. § 1182 (2)(D) (2020). 40 Kerry Battenfeld, Moral Crimes Post-Mellouli: Making a Case for Eliminating State-Based Prostitution Convictions as a Basis for Inadmissibility in Immigration Proceedings Comments, 65 BUFF. L. REV. 619, 622 (2017), http://www.buffalolawreview.org/past_issues/65_3/Battenfeld.pdf.

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argued that she was a victim of coercion, as she was led to believe that her family was in danger if she did not comply.41 Additionally, her attorneys stated that she was admissible because she was subjected to duress, in reference to a Board of Immigration Appeals’ (BIA) decision in 1956 in which an applicant was allowed into the U.S. under the same reasoning. The Administrative Appeals Office (AAO) disagreed. It reasoned that the record of convictions suggested that the applicant could not claim duress.42 However, the AAO did not explain why one case of duress was not considered applicable over another. This lack of clarification is problematic because constituents are unable to identify whether there is a logistical issue they can correct or if their conviction is a result of hidden prejudice they cannot control.

B. The Effect on the Queer Immigrant Demographic

Immigration restrictions based on prostitution make both cis and trans women of color unfairly suspicious under the law.43 Sex workers already experience high rates of violence from customers and police. According to data from the Urban Justice Center, prostitutes are disproportionately people of color.44 Additionally, a 2011 study of 220 transgender male-to-female Latines in Los Angeles, California, found that eighty percent had traded sex for necessities like food, money, or shelter.45 Of that group, thirty-one percent reported that sex work was their primary employment source.46 Queer people of color constitute a large portion of the migrant sex worker demographic, and their occupation stems from necessity. Restrictions on this group therefore police their methods of survival. Enforcement of sex work laws at large favors white

41 Id. 42 Id. 43 Id. 44 Juhu Thukral & Melissa Ditmore, Revolving Door: An Analysis of Street Based Prostitution in New York City, URBAN JUSTICE CENTER (2003), https://sexworkersproject.org/downloads/RevolvingDoor.pdf. 45 Battenfeld, supra note 40, at 644. 46 Id.

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cisgender individuals, who receive lighter sentences than women of color and transgender people engaged in the same work.47

Returning to their home country is often not an option for migrant transgender women involved in sex work. One study found that in Columbia and Guatemala between 2005 and 2012, 95 transgender women were murdered without investigations or legal proceedings.48 Being denied entrance to the U.S. by the AAO, therefore, is highly dangerous and often deadly. Even if transgender women do not face the immediate threat of death in their home countries, they still encounter covert forms of structural violence such as poverty. According to the World Health Organization (WHO), transgender people at large face higher rates of unemployment and poverty.49 This statistic reveals that transgender people are at a higher risk of facing the worst impacts of poverty simply because of their identity, including limited access to essentials like health care and housing security. A study administered by the Imperial College London adds that living in poverty takes ten years off someone’s life expectancy. 50 These studies suggest that harm is an unavoidable consequence of transgender women being barred entry to the U.S. Evidently, 8 U.S.C. § 1182 (2)(D) creates a unique form of necropolitical violence that determines who lives and who dies, actively and disproportionately endangering queer and transgender migrants.51

47 Catherine Hanssens et al., A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People Living with HIV, THE CENTER FOR HIV LAW AND POLICY, https://www.hivlawandpolicy.org/resources/a-roadmap-change-federalpolicy-recommendations-addressing-criminalization-lgbt-people-a-0. 48 Voxxi Voxxi, Violence Against Transgender Women in Latin America Thwarts HIV Efforts, HUFFINGTON POST (Mar. 4, 2013), https://www.huffpost.com/entry/transphobia-latinamerica-thwarts-hiv-efforts_n_2805976. 49 Transgender People, WORLD HEALTH ORGANIZATION (Jan. 23, 2017), https://www.who.int/hiv/topics/transgender/about/en/. 50 May Bulman, Poorest Dying Nearly 10 Years Younger than the Rich in 'Deeply Worrying' Trend, INDEPENDENT (Nov. 22, 2018), https://www.independent.co.uk/news/uk/home-news/lifeexpectancy-poor-rich-poverty-death-health-lancet-imperial-college-london-a8646946.html. 51 Christine Quinan & Kathrin Thiele, Biopolitics, Necropolitics, Cosmopolitics – Feminist and Queer Interventions: An Introduction, 29 J. GENDER STUD. 1, 3 (Dec. 15, 2019), https://doi.org/10.1080/09589236.2020.1693173.

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III. Health-Based Restrictions

A. Health-Based Restrictions and How They Fail

Health-based admissibility is a code of federal law under 8 U.S.C. § 1182 (1) that aims to prevent the spread of diseases in the U.S. The law states that applicants seeking admission for permanent resident status that have a disease of public health significance, fail to provide documents for vaccine-preventable diseases, or have a disorder that poses a threat to property or safety will be denied citizenship or deported. Regardless of the framing of this law to prevent the spread of disease in the U.S., it serves more as a tool of exclusion rather than good health policy.

Health-based admissibility standards for immigration are tools for antiqueer ableism. These restrictions bar immigrants on the basis of ability and sexuality. For instance, in 2003 during the Severe Acute Respiratory Syndrome outbreak, the U.S. focused on controlling the border as a part of its efforts to mitigate the public health disaster.52 However, mathematical models of influenza transmission predicted that travel bans did not reduce the spread of diseases but instead discouraged investments in vaccines and other health infrastructure.53 Additionally, these exclusions were applied far more to immigrants and visa seekers rather than short-term travelers and tourists who are more likely to spread disease.54

Immigrants applying for a visa must take a medical exam at an embassy or consulate abroad.55 These exams look to deny entry based on physical, mental, and cognitive disabilities like PTSD or autism and do not have substantive criteria for what is considered a security risk. There are three glaring issues with these exams. First, HIV is a disease that prompts immigration officials to administer these medical examinations. However, these tests are unlikely to

52 PATRICIA M. L. ILLINGWORTH & WENDY E. PARMET, THE HEALTH OF NEWCOMERS: IMMIGRATION, HEALTH POLICY, AND THE CASE FOR GLOBAL SOLIDARITY 41–51 (1st ed. 2017). 53 See Figure 3, Joshua M. Epstein et al., Controlling Pandemic Flu: The Value of International Air Travel Restrictions, 2 PLOS ONE 1, 7 (May 2007), doi: 10.1371/journal.pone.0000401. 54 ILLINGWORTH & PARMET, supra note 52. 55 Id.

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prevent infections as they are administered based on appearance.56 Second, most of the time screenings are not followed with proper medical care such as vaccines and treatment from either country.57 Third, these immigration restrictions place responsibility onto the prospective immigrant, however, an individual has no control over whether they are born with autism or experience something traumatic.58 Although medical restrictions to mitigate disease transmission are sometimes necessary, especially during the COVID-19 pandemic, these restrictions on immigration have historically served to bar entry in a discriminatory manner.

B. The Legal Contradiction of Health Based Restrictions

Health-based restrictions for immigration are legally incoherent. According to the Rehabilitation Act of 1973, ICE agents are prohibited from discriminating against people with disabilities.59 This means that individuals arriving at airports and borders and individuals detained in federal, state, and private detention facilities are entitled to reasonable accommodations/modifications if necessary to avoid disability discrimination.60 However, many immigrants who are forcibly detained in detention centers due to health-based immigration restrictions still experience inhumane living conditions and extreme medical neglect, contradicting the Rehabilitation Act.61

Health-based restrictions related to medical conditions such as HIV disproportionately impact queer people, as they are the population most

56 Frank H. Galvan & Mohsen Bazargan, Interactions of Latine Transgender Women with Law Enforcement, UCLA SCHOOL OF LAW WILLIAMS INSTITUTE (Apr. 2012), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Galvan-Bazargan-Interactions-April2012.pdf. 57 ILLINGWORTH & PARMET, supra note 52. 58 Id. 59 See Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 (1973). 60 See Alexander v. Choate, 469 U.S. 287, 301 (1985), holding that detained individuals are entitled to reasonable accommodations under Section 504 of the Rehabilitation Act. 61 Maya Finoh, Allegations of Forced Sterilization in ICE Detention Evoke a Long Legacy of Eugenics in the United States, CENTER FOR CONSTITUTIONAL RIGHTS, (Sept. 18, 2020), https://ccrjustice.org/home/blog/2020/09/18/allegations-forced-sterilization-ice-detentionevoke-long-legacy-eugenics.

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affected by HIV in the U.S.62 In 2018, gay and bisexual men made up 69% of the 37,968 new HIV diagnoses.63 Due to the number of queer people impacted by HIV, health-based admissibility becomes mainly a tool of exclusion instead of public health. Queer people are the primary targets of this law and thus are systematically prevented from becoming residents of the U.S.

Conclusion

Three imperatives must be addressed to achieve immigration justice for queer people of color. First, expedited removal must be abolished as it often labels migrants of color as guilty until proven innocent in the eyes of immigration officers, who misuse their power under the pretense of crime control. It is blatantly unfair that the right to due process is guaranteed to legal citizens of the United States but not refugees applying for asylum; immigrants must have the ability to challenge unjust deportation orders. Second, the federal standard of rejecting migrants with a history of prostitution must be removed, as it affects a disproportionate number of transgender women of color, who already face unique systemic injustices compared to their white counterparts. Third, disabled and queer people are unfairly and unduly targeted by legally incoherent health-based admissibility standards. Under the current system, these immigration restrictions are fulfilling their original goals. Congress must correct its past actions by repealing restrictions that have caused years of federally sanctioned violence.

62 HIV and Gay and Bisexual Men, CENTERS FOR DISEASE CONTROL AND PREVENTION (Sept. 16, 2020), https://www.cdc.gov/hiv/group/msm/index.html. 63 Id.

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