Undergraduate Law Review: Volume V, Issue I

NEW YORK UNIVERSITY

Undergraduate Undergraduate Law Review Law Review NEW YORK UNIVERSITY

VOLUME V | ISSUE I | FALL 2021

COPYRIGHT © 2021 by THE UNDERGRADUTE LAW REVIEW at NEW YORK UNIVERSITY, NEW YORK, N.Y.

NEW YORK UNIVERSITY

Undergraduate Law Review VOLUME V | ISSUE I | FALL 2021

COPYRIGHT © 2021 by THE UNDERGRADUTE LAW REVIEW at NEW YORK UNIVERSITY, NEW YORK, N.Y.

TABLE OF CONTENTS

Introduction Mission Statement

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Letter from the Editor

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Editorial Team

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Articles Modern Day Slavery in America: The Legality of Penal Labor

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Elijah Smith

Education Inequity

The Legal Development of Special Education

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Joanna Pisacone

The Siren Song of Sentencing:

Detriments of the Algorithmic Criminal Risk Assessment

Pragya Parthasarathy

Unassuming Means and Pernicious Ends

The Expansion of Executive Power Under President George W. Bush

Kyle Leonard

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MISSION STATEMENT Founded in 2017, the Undergraduate Law Review at New York University provides a platform for the submission and discussion of law-related topics for students at New York University. We accept undergraduate student submissions of articles that examine and explore topics pertaining to law and the legal field. As a journal that fosters scholarly debate, research, and analysis, our mission is to encourage legal and political awareness in the NYU community.

SUBMISSIONS The Undergraduate Law Review at New York University publishes pieces that cover a wide range of topics grounded in a legal foundation. The Journal often publishes analysis that either covers a legal subject relevant to the present day or reviews and comments on history from a legal angle. We appreciate bold and unique perspectives that contribute to New York University’s broader discourse and debate. Writers are allowed freedom in length and structure of their piece; however, all compositions must follow the Journal’s writing and style guide, found online at ulrnyu.org.

Please send submissions to ulrnyu@gmail.com.

Previous Editions of our Journal may be found online at ulrnyu.org This journal is published by students at New York University and NYU is not responsible for its contents.

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LETTER FROM THE EDITOR Dear Reader, On behalf of the editorial staff of the Undergraduate Law Review, I am delighted to present the first edition of the fifth volume of our Journal’s printed publication at New York University. This is my first edition as Editor-in-Chief after two years of editing for this publication. This year, I had the pleasure of working with an amazing team of editors and writers at the Undergraduate Law Review at New York University. Despite the difficulties we faced in the past year, I am excited to see where our Journal is headed. Last semester, we had to make the difficult choice of not publishing a new volume of our journal, but this semester I was inspired by the enthusiasm and energy the members of the team brought to the table. Thank you to all those who have helped us in fulfilling our mission and with putting forth an excellent volume. A special thank you to NYU faculty, our editorial staff, our community of determined writers, and our fantastic business team.

It is our pleasure to share with you four fantastic articles that, as in semesters past, cover a broad range of issues. The topics we cover in this volume are the racist and classist history of penal labor, educational inequity for children with special needs, disadvantages of algorithmic risk assessment, and the expansion of executive power under President George W. Bush. As such, the variety of subjects we cover reflects the diversity and complex issues that we, as students and thinkers, are considering. In this edition, we are pleased to be featuring articles by current staff writers, a previous staff writer, and a student at the University of Florida.

To view our current online edition, please visit our website: ulrnyu.org. We hope to continue fostering curiosity, critical thinking, and intellectual rigor within our wonderful undergraduate community with this publication and the many to follow. We are proud to put forth a publication that not only showcases academic excellence, but also careful attention and sensitivity to deeply important social issues.

Sincerely, Pacy Yan Editor-in-Chief FALL 2021: VOL V: ISSUE I

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EDITORIAL TEAM

Editor-in-Chief Pacy Yan

Executive Editors Jungin Kim

Pablo Vargas

Amanda McBain

Leonard Zhu

Associate Editors Michael Galati Jack Katz Daria Kowalski

Megan Schwartz Manning Snyder Rajan Srinivasan

Patricia Len

Ashwath Subramanian

Kathy Liu

Shivani Thanneer

Elena Maghsoodnia Carisha Pranyoto

Abney Turner Eric Wu

Business Team Manager and Designer Katarina Demos

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Modern Day Slavery in America The Legality of Penal Labor Elijah Smith New York University Spring 2021 I. Introduction With the passage of the Thirteenth Amendment on January 31, 1865, it was declared that “[n] either slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist in the United States or any place subject to their jurisdiction.”1 While the passage of this amendment was one of—if not the most—monumental steps toward racial justice in the United States, in hindsight it becomes clear that the inclusion of involuntary servitude as a constitutional punishment for those convicted of a crime is a loophole intended to be weaponized.

Immediately following the amendment’s passage and the abolition of slavery, there was a sharp increase in the arrests of newly-freed Black men: where else could Americans find free labor following the abolition of a primary mode of production? Black men were perfect targets due to the fact that their options for employment were slim and vagrancy laws were designed to target those out of work.

Modern prison advocacy groups continue to call for reform of the penal labor system; the United States Court of Appeals for the Third Circuit ruled in 1999 that the relationship between a prison and a penal laborer is not purely capitalistic in nature and, therefore, does not warrant inmate eligibility for the Fair Labor Standards Act.2 This decision deems prisoners unworthy of the most basic of labor protections: a mandated minimum wage. Today, the language used in the Thirteenth Amendment allows for multibillion dollar companies as well as the federal government to utilize prison labor with absolutely no protections for said workers, leading to inmates working for as little as 30 cents an hour.3 The government’s decision that prisoners are not eligible to receive the same worker protections as nonincarcerated citizens has allowed for the labor of prisoners to remain uninterrupted, even during the deadly COVID-19 pandemic.

II. The History of Penal Labor in The United States A. Post Revolution Era Prison Labor Prison labor has been present in the United States since the era following the Revolutionary War—a practice adopted from the British, who utilized prison labor to teach inmates discipline.4 While the British used prison labor as a means through which to “humanely” rehabilitate the imprisoned—or 1 U.S Cᴏɴsᴛ. amend. XII, §1.

2 Tourscher v. McCullough (3rd

Cir. 1999).

Eisen, Brennan Center for Justice, “Covid-19 Highlights the Need for Prison Labor Reform” (April 17, 2020), https://www.brennancenter.org/our-work/analysis-opinion/covid-19-highlights-need-prison-labor-reform.

4 Kamau Littletree-Holston, Confluence, “Prison Labor in the United States” (April 23, 2019), https://confluence.gallatin.nyu.edu/ context/interdisciplinary-seminar/prison-labor-in-the-united-states.

3 Lauren-Brooke

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at least properly train them in trades so inmates could voluntarily flood the job market post-release—the United States quickly saw an opportunity to profit off of the use of inmate labor and began to exploit inmates into completing infrastructural work for no wages.5 The earliest versions of American prisoners involved in prison labor were those who, rather than being sentenced to death for their crimes, were instead forcibly chained together and publicly embarrassed by being made to fix roads and buildings for hours until it was time for them to return to their cells at nightfall.6 Pennsylvania became the first state to industrialize prison labor, implementing structured factory work that mirrored those outside of prison walls.7 Other northern states soon followed suit, thus establishing the prison industrial complex in the United States. Business owners and manufacturers soon realized that it would be beneficial to utilize prison labor rather than the labor of free men, as contracting the prisoners was much cheaper than paying the wages of the non-incarcerated. The contracting system worked as such: “private corporations would purchase a state’s property rights in convict labor, in exchange for the revenue produced through said labor—which could sometimes end up being 150 percent of the original costs of inmate incarceration.”8 While this system led to large amounts of profit for both the corporations and the owners of the contracted prisons, it also brought about an increase in the overworking of the prisoners who were forced to participate in the labor. Conditions in the workplace were dire and, should an inmate attempt to shirk their responsibilities, the consequences often included “beatings or outright torture.”9 B. Post Civil War Era Prison Labor Following the American Civil War, the economy of the South was left decimated. Having been completely reliant on the exploitation of slave labor, the South was in desperate need of some form of assistance that could deliver them from their economic rut, finding reprieve in the Thirteenth Amendment— the same legislation from which their troubles originated. In fact, it was Southern lawmakers who suggested the Thirteenth Amendment’s provision for the use of involuntary servitude of those convicted of a crime in order to allow the South to continue its use of free labor, this time from prisoners rather than slaves.10 Acting upon their fears, Southern states began to implement Black Codes: laws that applied exclusively to Black people, whose alleged noncompliance would result in imprisonment.11 These codes made it illegal for Black people to have any occupation other than “farmer” or “servant” under contract without annual re-registration while also targeting the homeless with their inclusion of vagrancy laws.12 Additionally, the codes effectively othered Black people by “bann[ing] black people from possessing most firearms, making or selling liquor, and coming into the state without first posting a bond for ‘good behavior’.”13 These strict laws led to the first boom in the United States’ prison population, with the newly incarcerated being primarily Black men who were arrested, in effect, simply for not being enslaved.

With the prison population reaching a record high, southern states began to practice “convict LeBaron, Genevieve, The Journal of Labor and Society, “Rethinking Prison Labor: Social Discipline and the State inHistorical Perspective (September 2021).

6 Id 7 Id 8 Id 9 Id 10 Nancy Bilyeau, The Crime Report, “Prison Labor During Pandemic Fuels Calls for New Constitutional Amendment” (14 October 2020), https://thecrimereport.org/2020/10/14/prison-labor-during-pandemic-fuels-calls-for-new-constitutional-amendment/.

11 Constitutional Rights Foundation, “Southern Black Codes” (Accessed 16 October, 2020), https://www.crf-usa.org/ brown-v-board-50th-anniversary/southern-black-codes.html.

12 Id 13 Id 5

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“convict leasing”: an inmate rental system that functioned similarly to the recently outlawed practice of slavery. Penal laborers forced into the convict leasing system were often not even held within an actual prison building, but rather in rolling cages that would travel across the South to whichever job site had leased out the prisoners.14 The primarily Black penal laborers were forced to work on plantations, build railroads, operate mines, and complete other grueling jobs involving manual labor. Often horrifically underfed, inmates would work for up to 17 hours a day and toiled under labor managers who would often punish inmates in the same manner a slave owner would a slave, with beatings, whippings, and occasionally, death.15 As slavery under a different name, the practice of convict leasing was nevertheless able to operate legally because the inmates had been duly convicted, transitively deeming their grueling and oftentimes deadly worka valid form of punishment. Due to the lack of restrictions of involuntary servitude as a punishment for the incarcerated, convict leasing continued until the early twentieth-century, when the South’s economy was finally replenished (a process that was accelerated due to the labor it had exploited from leased convicts and sharecroppers) and the demand for inmate laborers died down.

By then, 25 percent of the convicts involved in the practice had died due to poor health conditions and extreme over-work.16,17 II. Modern Penal Labor in the United States A. Poor Wages and Corporate Exploitation Today, prison labor more closely resembles the prison industrial complex formed in Pennsylvania prior to the American Civil War more than the convict leasing system practiced in the South. Inmates in State and Federal prisons are required to work if medically able, and often complete tasks around the prison by working as plumbers, groundskeepers, or in any other role that helps to maintain the prison itself; they are compensated with an hourly rate of 12 to 40 cents an hour.18 Some inmates, however, are assigned jobs that do not help to maintain the day-to-day at their prisons, but rather help the federal government profit. These jobs range from working at government farms and factories to answering phones at government call centers, and pay between 23 cents to $1.15 an hour.19 These minimal wages allow the government, as well as any industry that the government may contract, to manufacture goods through their prisons and benefit financially while penal laborers are forced to accept whatever payment is offered, no matter how inadequate.

Private prisons, however, manage to exploit inmate laborers to another degree. These prisons are owned by multibillion dollar corporations—the largest three beingCoreCivic, GEO Group, and Management and Training Corp —which earn a combined $3.9 billion in revenue through the government for Kamau Littletree-Holston, Confluence, “Prison Labor in the United States” (April 23, 2019), https://confluence.gallatin.nyu.edu/ context/interdisciplinary-seminar/prison-labor-in-the-united-states.

15 Id 16 Id 17 Digital History, “Convict Lease System” (2019), https://www.digitalhistory.uh.edu/disp_textbook.cfm?smtid=2&psid=3179.

18 Federal Bureau of Prisons, “Work Programs”, https://www.bop.gov/inmates/custody_and_care/work_programs.jsp.

19 Alexia Fernández Campbell, “The federal government markets prison labor to businesses as the ‘best-kept secret’” (August 24, 2018), https://www.vox.com/2018/8/24/17768438/national-prison-strike-factory-labor.

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the incarceration of prisoners alone.20 These privately contracted prisons often work with other large corporations, such as McDonald’s, Victoria’s Secret, Walmart, and Starbucks, allowing these industry giants to contract prisoners that manufacture goods for rates at less than a dollar an hour—amounts that are essentially negligible to the aforementioned companies.

B. Lack of Legally Guaranteed Labor Protections To date, those who participate in penal labor are not protected by the Fair Labor Standards Act, nor by the National Labor Relations Act, and are excluded from protection by the United States Occupational Health and Safety Administration.21 Without any of these protections, inmates have no access to a human resources department, lack a guaranteed minimum wage, are not legally required to be paid overtime, and are left vulnerable, overworked, and underpaid.

The lack of protections for inmates was challenged in 1997 by Mark D. Tourscher. In 1995, Tourscher was sentenced to up to 22 years in prison. He appealed this conviction and, while his appeal was being processed, was made to work in the prison cafeteria lest he face disciplinary action from prison officials—a job which Tourscher alleged was akin to involuntary servitude. On August 23, 1996, the Pennsylvania Superior Court vacated Tourscher’s first conviction and remanded his case for a new trial, setting his new bail for December of that year. Tourscher argued that the day his case was remanded, was the very day he was no longer a duly convicted prisoner, and that this development in his status meant that any work he completed in the prison following August 23, 1996 was in direct violation of the Thirteenth Amendment as well the Fair Labor Standards Act, as he had not been paid the minimum wage for his labor.23 Ultimately, Tourscher’s claims were refuted, with the Third Circuit referring to a precedent set by the Second Circuit that stated: “The relationship is not one of employment; prisoners are taken out of the national economy; prison work is often designed to train and rehabilitate; prisoners’ living standards are determined by what the prison provides; and most such labor does not compete with private employers”24 Additionally, the court rejected Tourscher’s notion that when his case was remanded he was no longer a duly convicted prisoner,and deemed any work he completed in the prison after August 23, 1996 to be valid and not in violation of the Thirteenth Amendment.

C. Lack of Legally Mandated Safety Regulations Another case involving the lack of labor protections that are provided to inmates was Bibbs v.

Armontrout, a case in which John Bibbs, a Missouri State Penitentiary inmate, lost two fingers while manufacturing license plates. Upon further investigation, it was discovered that Bibbs had lost his fingers due to prison staff removing the guards covering the ink gears—an action that Bibbs alleged to be cruel and unusual punishment and thus in violation of his Eighth Amendment rights. Bibbs went on to allege that the gross neglect of safety precautions as well as the lack of safety checks that the machines were given before use constituted the negligent placement of prisoners under unsafe working conditions.

Ultimately, the case was decided against Bibbs due to a “lack of evidence” that supported his contention Peter Wagner, Prison Policy Initiative, “Following the Money of Mass Incarceration” (January 25, 2017), https://www.prisonpolicy. org/reports/money.html.

21 Eisen, supra note 3.

22 Commonwealth v. Tourscher, 453 Pa. Superior Ct. 1 (1996).

23 Id 24 Id 20

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that the prison staff was aware that guards had removeds the ink guards or that the guards had done so with the intent to inflict harm upon prisoners.26 Arnold v. S.C. Dep’t of Corr. is a similar case in the sense that it pertained to unsafe working conditions. Chris Arnold, an imprisoned cafeteria worker in McCormick Correctional Institution, was injured after a steam pot holding gallons of hot water fell and scalded him.27 Arnold attested to the fact that prison faculty had been notified several times that the equipment was faulty and unstable but had done nothing to replace or update it. Arnold argued that the failure to update and properly supervise the use of kitchen equipment was intentional andtherefore constituted a violation of his constitutional rights as his injury could have been avoided. The court denied the complainant’s argument that he had been wronged, as Arnold had failed to prove that the incident qualified as cruel and unusual punishment, though even if he had done so successfully, there was no precedent supporting the idea that inmates had a right to “properly functioning” prison equipment in the first place.28 To date, prison laborers remain incredibly vulnerable under the absence of guaranteed protections.

Race plays a large role when one calls the validity of this work into question: Black Americans are incarcerated at a rate that is 5.1 times the incarceration of White Americans, with disparities reaching up to 10 times more in certain parts of the country.29 The large proportion of Black penal laborers and the lack of labor protections in prisons thus represents what is essentially modern prison labor.

D. Has 2020 Highlighted the Need for Reform?

While the COVID-19 pandemic was in full swing and states were actively seeking protective gear in order to lower transmission rates, many turned to penal labor as a means through which to increase production of necessary materials. Inmates in states across the country produced hand sanitizers, masks, and toilet paper for $0.30-$0.71 per hour while simultaneously putting themselves at increased risk of contracting the virus—a risk they did not assume voluntarily.30 Had these men and women not been behind bars, they would have been lauded for being brave essential workers.

Prison labor has also been spotlighted due to the wildfires that raged in California throughout 2020.

The California Department of Forestry and Fire Protection (CDFFP) utilized prison “fire camps”:squadrons of low security inmates who assist firefighters in combating wildfires. Though considered “an integral part of [the CDFFP’s] firefighting operations,” by the CDFFP , inmates who participated in this program only earned $3.63 a day, with an additional $1.00 per day if they were fighting an active fire.31 To put this into perspective, while an inmate’s day of labor is valued at $3.63, a singular bag of Doritos at a prison commissary is priced around $5.00.32 While calls mounted for aid from essential workers during the pandemic, prison advocacy groups and families of prisoners could not help but emphasize that penal laborers were completing tasks that put them at the same level of risk with a fraction of the support. According to Kate Chatfield of the 26 Id 27 Arnold v. S.C. Dep’t of Corr., 843 F. Supp. 110 (D.S.C. 1994).

28 Id 29 Ashley Nellis, Ph.D., The Sentencing Project, “The Color of Justice:

Racial and Ethnic Disparity in State Prisons” (June 14, 2016), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.

30 Eisen, supra note 3.

31 Id 32 The Indicator From Planet Money, NPR, “The Uncounted WorkForce” (June 29, 2020), https://www.npr.org/transcripts/884989263.

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a pandemic. This should appall everyone who wants to live in a civilized society.”33 IV. Conclusion Since the founding of the United States, penal labor has been used as a method of financial advancement for both the government and corporations at the cost of inmate exploitation. With roots in racism and classism, prison labor forces inmates from low income areas to labor away without ever receiving adequate compensation.34-35 This modern form of slavery is still considered legal under the Thirteenth Amendment and has repeatedly been upheld by the United States judicial system. Prison labor allows multibillion dollar corporations and the federal government to continue to profit while providing nothing to the prisoners in return. Tracking its history from the revolutionary war to the present, it is clear that prison has become less about rehabilitation and more about profit, with penal laborers being seen as a means of production rather than as American Citizens, and as people.

Nancy Bilyeau, The Crime Report, “Prison Labor During Pandemic Fuels Calls for New Constitutional Amendment” (14 October 2020), https://thecrimereport.org/2020/10/14/prison-labor-during-pandemic-fuels-calls-for-new-constitutional-amendment/.

34 Zaid Jilani, The Intercept, “New Report Finds Class Is a More Potent Predictor of Incarceration Than Race” (February 5, 2018), https://theintercept.com/2018/02/05/mass-incarceration-class-predictor-race/.

35 John N. Mitchell, The Philadelphia Tribune, “BREAKING POVERTY: Crime, poverty often linked” (September 16, 2018), https://www.phillytrib.com/metros/breaking-poverty-crime-poverty-often-linked/article_258b0eac-33f6-570e-89bf-b2d83635a13b. html#new_tab.

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Education Inequity The Legal Development of Special Education Joanna Pisacone New York University Spring 2021 I. Introduction Until a few decades ago, students with disabilities faced severe discrimination and the refusal of their right to an education, an exclusion that has inevitably had lasting consequences. Only recently were students with disabilities included in the conversation regarding their education. Ultimately, the ways in which people with disabilities were treated within the education system reflected the manner in which they were treated in society as a whole: the marginalization of people with disabilities within society pervaded classroom walls. Therefore, in order to best provide an equitable and appropriate education for students with disabilities, future legislation must be centered around more nuanced inequities, which may not be as explicitly detrimental. Moreover, without renewed drive to amend current legislation that intends to protect students with disabilities, the stagnation in progress will continue on.

II. Historical Background Throughout American history, people with disabilities have been constrained by discrimination and pervasive stereotypes that prevent them from full societal participation. There is extensive history of the isolation and exclusion of individuals with disabilities, pronouncing them targets of discrimination.1 The disabled community was often erroneously assumed to be unfit to contribute to society as adequately as their abled peers.2 This, in turn, impacted the opportunity for individuals with disabilities to receive equal education.

The Civil Rights Movement of the mid-1960s created the most propitious conditions (to date) for disability rights activists.3 Activists took to lobbying Congress and marching on Washington with the objective of including people with disabilities in the conversation about civil rights and equality.4 Disability activists also marched against non-codified social discrimination that required new legislation to be resolved. The subsequent influx in disability rights legislation and litigation progressed in tandem with the acceleration of the civil rights movement.

Given the relative youth of disability legislation as a whole, legal developments within the field of special education are also new and underdeveloped. As a matter of fact, prior to the emergence of legislation regarding special education in the 1960s, students with disabilities had little to no rights in obtaining any education. This was as schools could legally deny enrollment to students with disabilities 1 Edwin W. cation for

2 Ibid 3 “A Brief 4 Id. at 2.

Martin, Reed Martin and Donna L. Terman, “The Legislative and Litigation History of Special Education,” 6 Special EduStudents with Disabilities No. 1 (1996), at 26.

History of the Disability Rights Movement,” Anti-Defamation League (2018), at 1.

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— or fail to provide adequate accommodations — on the premise that they were considered uneducable.5 For example, Pennsylvania state law in the 1970s provided legal grounds for schools to exclude students with disabilities.6 The law became a precedent for other states to follow, facilitating active discrimination against students with disabilities.

III. Landmark Cases Although Brown v. Board of Education (1954) was centered in race-based inequities, it also had a significant impact on the development of rights for students with disabilities by providing legal precedent for subsequent cases under the Fourteenth Amendment’s Equal Protection Clause.7 Although the Constitution does not explicitly enumerate the right to an education, the Fourteenth Amendment does require equal protection under the laws. In addition to the Equal Protection Clause, the Fourteenth Amendment’s Due Process Clause stands as a further procedural safeguard to call attention to disputes regarding special education.8 Both the Equal Protection and Due Process Clause are used as legal precedent to strengthen the legal arguments for inclusive education.

The first legal case invoking the explicit right to education for disabled students was PARC v.

Commonwealth of Pennsylvania (1971).9 PARC contested a Pennsylvania law that enabled schools to deny education to children who had not attained the mental age of five, citing Brown as precedent — in addition to the Fourteenth Amendment — as reason for why this exclusion was a violation of students’ rights.10 Pennsylvania, in turn, was ordered by the Court to provide full access to education for students with disabilities up to the age of twenty one. As a result, this case established a standard of appropriateness, which required each child to be placed in the least restrictive environment possible, as well as offered an education appropriate to their respective learning abilities.

The next year, Mills v. The Board of Education (1972) expanded upon the PARC ruling, advancing legal protections against disability discrimination in public education.11 Mills established that children with disabilities were guaranteed the right to an education, and ensured this right even if they could not afford it. This case was in response to the D.C. Public Schools System refusing to enroll students — and at times resorting to expelling them — on the basis of their disabilities.12 The D.C. Public School System’s primary argument was that they did not have the funds to support students with disabilities, as these students may require greater resources.13 However, the Court maintained that schools do not have the right to deny any child an education due to disabilities or handicaps.14 More so, the Court asserted that funds must be divided equitably amongst all programs for both abled and disabled students, in order to best ensure that no individual is entirely excluded from the opportunity of an education.

IV. Special Education Legislation History Mills and PARC stand as landmark cases that have shaped the special education landscape, and both 5 Id. at 27.

6 PARC v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (1971).

7 U.S. Const. amend. XIV, § 1, cl. 4.

8 U.S. Const. amend. XIV, § 1, cl. 3.

9 PARC v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (1971).

10 Ibid.

11 Mills v. The Board of Education, 348 F. Supp 866 (1972).

12 Mills v. The Board of Education, 348 F. Supp 866 (1972).

13 Ibid.

14 Ibid.

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both of them had substantial impact, creating the momentum for further legislation. Examining the history of special education legislation pertaining to students with disabilities, however, begins a few years earlier in 1965.

A. Elementary and Secondary Education Act (1965) Although originally focused on low-income students, the Elementary and Secondary Education Act of 1965 (ESEA) created the foundation for future special education legislation.15 This act established a comprehensive plan for addressing inequalities faced by underprivileged students. Soon after its implementation, additional amendments were designed in order to account for the needs of students with disabilities. These amendments included state and federal grants dedicated to promoting the wellbeing and education of students with disabilities. Additionally, subsequent amendments initiated the development of programs that aim to support and improve special education. ESEA has since been renamed and is now known as the more recent No Child Left Behind Act of 2001 (NCLB).

NCLB aims to improve education outcomes for students with disabilities by dedicating resources to ensuring that they reach the same academic standards that their peers do.16 Although the legislation continues to use the ideals of ESEA as its foundation, it has been reformed to further facilitate equal education attainment. NCLB’s four principles include: stronger accountability for results, increased flexibility and local control, expanded options for parents and an emphasis on teaching qualifications and methods.17 The implementation of these principles aim to strengthen the academic achievement of students with disabilities and close the achievement gap. The element of accountability incorporated into NCLB ensures that schools are providing equal educational opportunities to all students. This may be done through accommodations or modifications to account for the individualized needs of students.

The implementation of NCLB is evaluated through accountability measures, such as state standards and testing.18 Therefore, monitoring the impact of NCLB is rooted in testing measurements that determine whether or not all students are meeting the proficiency standards set by states. Identifying student subgroups, including students with disabilities, is necessary to measure the success of specific groups to ensure all students are being supported and reach academic standards. If a subgroup is found to be lagging behind their peers, the problem area is pinpointed and labeled as an area for improvement. As a result, modifications will be made to improve academic outcomes.

B. The Rehabilitation Act, Section 504 (1973) The Rehabilitation Act of 1973 was the first law to guarantee civil rights to students with disabilities.

Per Section 504, federal programs cannot discriminate based on disability.19 Most importantly, Section 504 requires that all students be provided a free and appropriate public education (FAPE) by their school district regardless of the severity or context of their disability.20 FAPE includes access to aids or services that are needed in order to meet the standard of what is considered an appropriate education.

15 Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6301.

16 “ESEA/NCLB,” National Learning Center for Disabilities (25 September 2019).

17 Ibid.

18 Kerston Carlson Le Floch et al., “Accountability Under No Child Left Behind,” RAND 19 Rehabilitation Act of 1973, 29 U.S.C. § 701 (1973).

20 “Protecting Students with Disabilities,” U.S. Department of Education (2020).

Corporation (2007).

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C. The Education for All Handicapped Children Act (1975) Disability legislation continued to expand under the Education for All Handicapped Children Act of 1975, now known as the Individuals with Disabilities Education Act (IDEA).21 This act further builds upon Section 504’s component of the right to a free and appropriate public education with additional provisions that further protect students with disabilities. The IDEA has been continually amended since its introduction in 1990 to expand the range of rights provided to students with disabilities. IDEA provides students with an Individualized Education Program (IEP), which maps out the students’ goals for their education, determines what services will be provided to obtain an appropriate education, and creates a plan for post-graduation.22 Another important aspect of an IEP is the parents and child’s right to be involved in the decision-making processes. This inclusion ensures that the IEP is creating reasonable goals for the student and providing services that will actually be beneficial.

Additionally, the IDEA guarantees due process protection to the students and their families. The legislation entails a process that has regulated policies and procedures to ensure students with disabilities are receiving the services and education they deserve.23 This process includes the right to an appropriate evaluation, so that students who are thought to have a disability are given the right to be evaluated by a nondiscriminatory party, in order to determine if assistive services are needed. As of today, the IDEA is the most influential special education legislation within the United States, and is seen globally as a leading example for the development of civil rights for individuals with disabilities.

V. Refining Disability Legislation As policy and legislative initiatives that pertain to special education continue to advance, a higher degree of clarity will be of paramount importance regarding policy and program qualifications, purposes, resource allocation, and requirements. The need for clarity is particularly evident in the multitude of legal cases that have addressed whether schools are providing education that reaches an appropriate standard.

In these cases, conflicts often relate back to funding and resources, particularly whether the school is legally required to provide them, and if so, how much. Two cases stand as instructive case studies here.

A. Endrew F. v. Douglas County School District (2017) Endrew F. was a student with autism who was enrolled in a private school to obtain a better education than his public school was providing. Endrew’s parents, in turn, sued for reimbursement, which is granted under the IDEA if the public school of a student with a disability is not adequately meeting their needs, requiring their enrollment in a private school.24 This suit highlighted the need for greater clarification regarding the level of educational benefit a school is obligated to provide to a student, to meet the conditions of a free and appropriate public education. In a unanimous decision, the Supreme Court determined that in order to be considered an appropriate education, a school must offer an IEP that reasonably enables the student to progress in light of their situation.25 This includes setting realistic and attainable goals, as well as providing resources that will assist in educational outcomes. Although rights 21 Individuals with Disabilities Education Act, Pub. L. 101-476, 104 Stat. 1142..

22 “Thirty-five Years of Progress in Educating Children With Disabilities Through 23 Ibid 24 Endrew F. v. Douglas County School District RE–1, 580 U.S. ___ (2017) 25 Ibid.

IDEA,” U.S. Department of Education (2010).

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for students with disabilities are already provided under existent legislation, their interpretation largely results from disputes such as Endrew, which clarify what is protected under the law. Consequently, it has become apparent that protections granted through relevant laws must be more thoroughly outlined and clarified, in order to guarantee their full exercise for students with disabilities. The current state of legislation has resulted in the protection of rights being interpreted on an individual basis, rather than providing a clear framework for schools and other educational figures to follow.

B. Board of Educ. v. Rowley (1982) Amy Rowley was a deaf student whose public school denied her request for a sign language interpreter. Rowley’s parents sued the school, arguing that the refusal was a violation of the Education for All Handicapped Children Act of 1975 (EHA), as the school was not providing their child with the resources they felt were guaranteed under the EHA.26 The Supreme Court held that because Rowley was provided a learning environment that was equal to her non-handicapped peers, as well as additional personalized instruction, she was not being denied an appropriate education.27 Rowley was the first case brought to the Supreme Court regarding the EHA. Therefore, the decision was significant, forming consequential precedent regarding what constitutes an appropriate education for subsequent cases involving the EHA and disability legislation at large.

The Court ultimately decided that as long as there was an equal opportunity for students with disabilities to learn in comparison to their abled peers, the standard for an appropriate education would have been met.28 Therefore, the school was not required through current legislation to provide more than what is considered to be appropriate. However, this decision can, in turn, backfire, negating progress made on the development of disability rights. This holding by the Court ensures access to schooling, but equal opportunity does not correlate with the equal capacity to learn. Therefore, in order to truly provide an appropriate education, the necessary additional accommodations that students may need must be taken into consideration. Rowley was not a unanimous case due to different interpretations of what protection ongoing legislation would provide. Despite being a part of the majority opinion, Justice Rehnquist concluded that: A “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction.29

This conclusion is significant, as Justice Rehnquist recognized the importance of recognizing and adhering to differences in ability to ensure successful education outcomes. However, the ambiguity of the language in the legislation at hand led the Court to rule in favor of the school district, rather than the student in need.

These cases are only two examples of many that have emerged as a result of the legislation created pertaining to special education. Given how the legislation is still relatively new, it is continuously 26 Board 27 Ibid.

28 Ibid.

29 Ibid

of Educ. v. Rowley, 458 U.S. 176 (1982).

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laws differently and dispute what is truly guaranteed under legislation pertaining to inclusion. As seen through the differences in outcomes for Endrew and Rowley, what constitutes an equal or appropriate education is still changing.

VI. Conclusion Legislation that provides safeguards for the civil rights of students with disabilities is still unsettlingly new. The United States has had systems in place to provide an education for its citizens for an extensive amount of time, yet people with disabilities have just recently been included in the conversation. Thus, the delay in including students with disabilities in education has had detrimental effects. Legislation requiring schools to more adequately support children with special needs is long overdue.

Despite monumental changes in the education landscape made through legislation thus far, it is apparent that there is still plenty more that needs to be done. Moreover, though children with special needs are now guaranteed a seat in the classroom, they are not necessarily receiving an education that is on par with that of their peers without disabilities. Current legislation aims to prevent this discrepancy from existing, but does not always ensure equal opportunity, which at times allows students with disabilities to fall within the cracks of the education system. Therefore, in order to best provide an equal and appropriate education for all students, there must be legislation created or refined to address both the explicit and subtle inequities that students with disabilities grapple with.

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The Siren Song of Sentencing: Detriments of the Algorithmic Criminal Risk Assessment Pragya Parthasarathy New York University Fall 2021

I. Introduction The legal system is embracing technology. In 50 years, one could assume that automation will have swept the courtrooms. As such, a defendant may then complete a list of inquiries for their personal information on a computer screen: Name. Age. Gender. Highest Education Completed. Socioeconomic Status. Prior Convictions. Prior Arrests. Most Recent Encounter with Law Enforcement. Said Defendant has had a history of racial profiling and police harassment, has not completed high school, lives within a poor zip code. Despite these damning factors, he answers honestly. Defendant completes the list of questions.

Defendant is deemed “high-risk” by an automated voice and given the maximum sentence.

Perhaps this scene may be reminiscent of science fiction, yet its implications are not distant from the reality of many who enter the criminal justice system. The ethics of risk assessment algorithms, a computerized method of calculating an offender’s risk of recidivism, are often overlooked in jurisprudence.

Still, their use by judges has been commonplace practice for decades.1 Such fiction as above may seem ludicrous at first glance, only to realize that this is the practice’s terminus.

Risk algorithms often have over one hundred inputs that determine the overall recidivism assessment score; these inputs can include one’s age, sex, employment status, socioeconomic status, and characteristics of their neighborhood.2 The algorithm, taking into account all these inputs, will produce a singular ordinal assessment score from a scale of one (lowest risk) to ten (highest risk).3 There is high variability among the algorithms in use in the United States. Often, these algorithms are proprietary and thus are not subject to state or federal government laws.4 Additionally, the federalist organization of jurisdiction results in many different versions of algorithms being used. Regarding freedom, a court has many possible assessments to choose from and is free to use their discretion on using any or all parts of the assessment.

There are three main systems that jurisdictions may use or reconstruct as they see fit: Correctional Offender Management Profiling for Alternative Sanctions (“COMPAS”), Public Safety Assessment (“PSA”), and Level of Service Inventory-Revised (“LSI-R”).5 From the for-profit company Equivant, See John Monahan, Risk Assessment in Sentencing, Reforming Criminal Justice (Erik Luna ed., 2017), at 77, 79, https://papers.ssrn. com/sol3/papers.cfm?abstract_id=3024016 2 “AI in the Criminal Justice System,” EPIC, Accessed October 20, 2020, https://epic.org/algorithmic-transparency/crim-justice/.

3 Ibid.

4 Ibid 5 Ibid 1

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formerly known as Northpointe, COMPAS categorizes inputs under five main areas: personality, family, relationships, social exclusion, and criminal involvement.6 LSI-R, developed by Canadian company Multi-Health Systems, uses ten categories: criminal history, education/employment, finances, lifestyle, companions, family/marital life, alcohol/drug usage, emotional/personal life, attitude/orientation, and accommodations.7 The other tool, the PSA, from the Laura and John Arnold Foundation, narrows parameters that only relate to the offender’s age and criminal history.8 This paper will focus on COMPAS when discussing risk assessment algorithms in-depth, one of the most frequently used algorithms in the nation.

The American Bar Association has encouraged using these algorithmic predictions in the name of aiding “low-risk” offenders in avoiding further encounters with the criminal justice system.9 However, despite these claims and their possible veracity notwithstanding, this practice not only treads on the border of unconstitutional but is also tantamount to scientific rationalization of discrimination.

This technology is deeply misunderstood and undertheorized by those who wield it and those affected by it. In 2014, then-US Attorney General Eric Holder called upon the U.S. Sentencing Commission, the independent judicial federal agency, to study the use of these assessments by judges, concerned that they may be perpetuating bias.10 The Justice Department echoed similar bias concerns regarding assessments’ consideration of education level, employment history, familial relationships, and demographic characteristics, as these are highly racialized, genderized, economized factors.11 In 2018, Senators Cory Booker and Brian Schatz called on then-Attorney General Jeff Sessions and the Sentencing Commission to conduct independent studies looking into these algorithms and “issue a policy statement to guide jurisdictions implementing these tools.”12 Understanding the inner workings of these impenetrable algorithms is incredibly difficult for the general public. Simply attaining their source codes, many of which are developed by private companies, becomes a matter of intellectual property. The introduction of intellectual property creates unparalleled tensions between the very bedrock of American democracy: the unalienable rights of life, liberty, and property. The secrecy of these algorithms prevents the ability to discern their validity and have no visibility into their weightage of specific inputs, which may disparagingly and disproportionately target Black and Brown communities. Ultimately, there is no system of accountability for a computer program, and the legal system falls very short of protecting these vulnerable groups.

Risk assessment algorithms have infected the criminal justice system with a new angle of bias integration. These automated criminal justice technologies are encouraged under the guise of enhancing objectivity in decisions otherwise made by imperfect humans, but, arguably, they exacerbate bias and erroneous decision-making while only appearing more scientific and logical. On the current course, risk assessment algorithms will further deepen the structural inequality embedded in society – and it is evident that the Constitution lacks the legal substructure to address the use of these algorithmic risk assessments. Hence, the resolution to address their problematic nature must be governmental.

6 Ibid 7 Ibid.

8 EPIC, supra note 2.

9 American Bar Association, State Policy Implementation Project (2011), https://notjustforlawyers.com/ch-21-two-commissions/.

10 EPIC, supra note 8.

11 Ibid.

12 Letter from Senators Cory Booker & Brian Schatz to Jefferson Sessions, Attorney General, and Judge William Pryor, Chair of the

United States Sentencing Commission (Feb. 5, 2018), https://www.booker.senate. gov/?p=press_release&id=745.

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II. State v. Loomis A. Significance The court case of State v. Loomis is instrumental in establishing the functionality of these assessments. Loomis also reveals the general lack of understanding of these assessments, the incompatibility of the assessment’s very purpose with the court’s guidelines on how to use them, and the legal system’s conflict of the defendant’s right to due process and the protection of trade secret information.

B. Facts of the Case The Wisconsin Supreme Court decided the case. Eric Loomis, the driver in a drive-by shooting, was charged as a repeat offender with five counts: recklessly endangering safety in the first degree, attempting to flee or elude a traffic officer (one of the less severe charges), operating a motor vehicle without the owner’s consent (another less severe charge), possession of a firearm by a felon, and possession of a short-barreled shotgun or rifle. Loomis denied his involvement in the shooting, attesting that he had only driven the car after the shooting took place.13 Nonetheless, Loomis waived his right to a trial and pleaded guilty to the two lesser charges under the plea agreement that the other charges would be dismissed while still read-in.14 Loomis’ pre-sentence investigation report included a COMPAS risk assessment, which evaluated Loomis as ‘high-risk of recidivating’ in his pre-trial release risk category, general recidivism category, and violent recidivism category.­15 The State argued at sentencing that the circuit court should use the COMPAS assessment as a factor in determining Loomis’ sentence. The presiding circuit court subsequently decided to deny probation for Loomis and considered the read-in – as well as dismissing charges in determining his sentence. The circuit court judge said: “I’m ruling out probation because of the seriousness of the crime and because [the defendant’s] history, [the defendant’s] history on supervision, and the risk assessment tools that have been utilized, suggest that [the defendant is] extremely high risk to re-offend.”16 Loomis filed a motion for a new hearing arguing that the circuit court’s consideration of the COMPAS assessment violated his right to due process: that the proprietary nature of the algorithm precluded his ability to determine if the assessment was valid, that he had been deprived of an individualized sentence, and that the circuit court relied on gender as a factor in sentencing. Loomis also argued that the circuit court had wrongly exercised its discretion by erroneously assuming that he was guilty of his read-in, dismissed charges.

C. Decision The appellate court, siding with the State in a narrow decision, found that the circuit court did not violate Loomis’ rights. The court informed Loomis of the legal standard of considering his read-in charges. After allowing both the prosecution and defense to discuss the merits of Loomis’ charges, the court believed the State. Thereafter, the appellate court found that the use of the COMPAS assessment did not violate Loomis’ right to due process because Loomis failed to prove that the court relied on 13 State v. Loomis, 14 Ib at 755.

15 Ibid.

16 Ibid

881 N.W.2d 749 (Wis. 2016).

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gender as a factor in sentencing him. However, despite ruling that the use of the COMPAS assessment was permissible, the appellate court acknowledged that there are “limitations and cautions a circuit court must observe to avoid potential due process violations.”17 Specifically, the appellate court said that courts may not rely on risk assessments as the determinative factor in sentencing and that courts are required to disclose their reasoning behind a sentencing decision. In addition, courts may not use the risk assessments to determine whether or not an individual will eventually be incarcerated, nor are they allowed to use them to determine the severity of the sentence. Finally, courts that decide to use COMPAS’ assessment must be given a “written advisement” of its limitations.18 D. Analysis Simply put, the court’s Loomis decision is flawed. There is no way to ensure that their guidelines can or will be followed, and arguably, the court does not understand how the COMPAS assessment works.

Equivant describes COMPAS as an “actuarial risk assessment instrument” which serves as an “objective method” to estimate or predict recidivism.19 The purpose of the assessment is to discern between “high-risk” and “low-risk” groups and demarcate an individual’s risk based on their similarity to a group possessing similar characteristics with known outcomes. For example, as explained by Equivant, if a defendant scores a 3, this means that 70% of the population appears riskier than the defendant, and 20% appear less risky.20 It is clear that the score produced by the risk assessment is not individualized and thus is inadequate in predicting the individual’s risk of reoffending.

Furthermore, not only is the court’s understanding of the risk assessment insufficient, but its precepts for judges seem quite impracticable. For instance, the risk assessment is not to be used as the decisive factor in determining whether or not a defendant will be incarcerated. The risk assessment is also not to be used to determine how severe a sentence may be. Yet, the very nature of the “high-risk” characteristic that the assessment can label an offender clouds the probability of the offender earning a minimal sentence or avoiding jail time altogether.

There is also the matter of intellectual property rights that the court fails to address. Arguably, the lack of understanding of these assessments stems from their vast opacity, and public knowledge is limited only to the inputs which contribute to an offender’s score, but not the different weights of different inputs. With this logic and the group alignment methodology used by the algorithm, problematic and discriminatory factors such as race, gender, education level, or socioeconomic background may be abused to determine an individual’s risk of reoffending.

However, the weaknesses of the court’s decision notwithstanding, there are legitimate arguments made in Loomis. There are genuine concerns regarding the unregulated nature of these algorithms and the lack of framework in the Constitution with respect to these black box, opaque technologies, or, more generally, the intellectual propertization of such core elements of the criminal justice system.

17 Loomis, supra note 13.

18 Ibid.

19 Practitioner’s Guide to

COMPAS Core, Equivant (Dec. 19, 2017), http://www.equivant.com/assets/img/ content/Practitioners_ Guide_COMPASCore_121917.pdf [hereinafter Practitioner’s Guide 2017].

20 Practitioner’s Guide To COMPAS, Northpointe 5 (Aug. 17, 2012), http://www.northpointeinc.com/ files/technical_documents/ FieldGuide2_081412.pdf [hereinafter Practitioner’s Guide 2012]. This explanation has since been removed from the disseminated written advisements.

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III. Constitutional Doctrinal Inadequacies A. Eighth Amendment: Do Algorithmic Risk Assessments Qualify as Cruel and Unusual Punishments?

The discussion of constitutional inadequacy in litigating algorithmic risk assessments begins with the Eighth Amendment.

In the dicta of Harmelin v. Michigan, Justice Anthony Kennedy wrote that the Cruel and Unusual Punishments Clause of the Eighth Amendment encompassed a “narrow proportionality principle” applying to “noncapital sentences.”21 Following this logic, it is unfair to use COMPAS assessments, for the repeat offender is subject to punishment for actions beyond the crime in question. The punishment levied on the defendant, as a result, violates this proportionality principle. Yet, the Eighth Amendment falls short of delineating the legality and fairness of using risk assessments in general, as risk assessments have been a permissible tool since Barefoot v. Estelle, in which the Supreme Court found that psychiatric evidence predicting the defendant’s future hazard is admissible in the courtroom, even if the prediction is inaccurate and with no guidelines for interpretation given to the jury.22 Moreover, the Supreme Court rarely finds the aforementioned noncapital sentences violating this proportionality principle, deferring discernment to the legislative branch. 23 Jurisprudence and specialized judicial protections of the Eighth Amendment have largely regarded capital cases,24 where the Court found in Furman v. Georgia that capital punishment has often been “disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups.”25 Given the biased inputs of risk assessments, it is plausible that risk assessments are simply another vehicle to create an unconstitutional predicament similar to that in Furman. However, since Furman concerned a capital crime, this theorization may not be applicable for noncapital sentences.

Arbitrary punishment is also unconstitutional under the purview of the Eighth Amendment. There is the mentioning of this concept in the Furman decision where Justice William O. Douglas writes that a punishment qualifies as ‘unusual’ should it be “administered arbitrarily or discriminatorily.”26 However, a court’s liberty to define ‘arbitrary’ creates yet another dilemma. For example, if the court believes that the algorithm is fair or credible, COMPAS assessments do not qualify as arbitrary punishment.

In regards to COMPAS’ credibility, a Dartmouth study found that a group of random individuals with no prior criminal law experience were able to correctly predict if the individual would recidivate more often than the COMPAS assessment.27 The volunteers used only seven inputs – contrasting COMPAS’ 137 – which casts doubt over its credibility, validity, and fairness if a group of laypersons with less information can achieve more accuracy than this heralded and widely-used assessment. Despite this deficiency in COMPAS, ultimately, the concept of “arbitrary” is quite amorphous in Eighth Amendment 21 Harmelin v. Michigan, 501 U.S. 957, 997 (1991).

22 Barefoot v. Estelle, 463 U.S. 880, 884–85 (1983).23 Ibid.

23 Furman v. Georgia, 408 U.S. 238, 249–50 (1972).

24 Id. at 286 (Brennan, J., concurring) “Death is a unique punishment

. . . . [D]eath is the ultimate sanction. . . . No other punishment has been so continuously restricted. . . . Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers.”

25 Id. at 249–50.

26 Id. at 249.

27 Hannah Devlin, Software ‘No More Accurate Than Untrained Humans’ at Judging Reoffending Risk, The Guardian (Jan. 17, 2018), https://www.theguardian.com/us-news/2018/jan/17/ software-no-more-accurate-than-untrained-humans-at-judging-reoffending-risk.

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jurisprudence. Additionally, the proprietary nature of these algorithms inhibits a defendant’s ability to prove that the result is erroneous or determined by a biased input. Furthermore, the very purpose of the algorithm is to predict. Hence, it is not necessarily possible to prove if the prediction is incorrect.28 In all of these rationales thus far, the Eighth Amendment fails to solve the problem posed by the COMPAS assessment.

B. Fourteenth Amendment: Do Algorithmic Risk Assessments Trespass on Equal Protection?

The Equal Protection Clause in the Fourteenth Amendment of the Constitution, similar to the legal quandary of the Cruel and Unusual Punishments Clause in the Eighth Amendment, falls short in remedying the problem created by algorithmic risk assessments. In theory, the Equal Protection Clause mandates the equal treatment of people under the law. Yet, in practice, there is a great burden of proof required in Equal Protection Clause cases which often trump the complainant’s petition. The legislature is responsible for proving that if unequal treatment under the law does exist, the government has a “rational basis” for doing so.29 Different suspect classifications apply to different categories; for example, if the claim is about gender or sexual orientation, this is a quasi-suspect class that requires intermediate scrutiny, and the legislature is required to prove that the treatment in question will advance “important governmental objectives.”30 However, if the claim is about race, this is a suspect class and requires a higher standard for a rational basis. As such, the legislature must prove there is “a compelling governmental interest” material to advance governmental objectives.31 For these special claims of unequal racial treatment, the Supreme Court requires that the defendant must not only prove a racially skewed impact but there must be a racially discriminatory purpose. In the case of COMPAS, one may prove there is a racially skewed impact but will be unable to prove a racially discriminatory purpose. As previously discussed, there are highly racialized factors – proxies – used in determining an individual’s score to re-offend, and studies show these risk assessments come to racially biased results. However, COMPAS does not use race as an input in its algorithm; thus, proving a racially discriminatory purpose is unfeasible. Attempting to prove a racially discriminatory purpose with a racial proxy is also challenged further because the source code is unavailable, and the weightage of these racial proxies is unknown. Realistically, a programmer has no incentive for explicitly using race to predict recidivism, as this would violate the Equal Protection Clause. Thus, the defendant cannot meet the standard required by the Supreme Court, and the default standard of the “rational basis” scrutiny is used, which in the case of COMPAS can easily be argued by the legislature.32 Referring to Loomis, Loomis did not have an Equal Protection claim because the algorithm’s consideration of gender is lawful. The Court held in Craig v. Boren that although data backing genderbased generalizations were empirically accurate, the data did not reflect a relationship between the law and the governmental objective in maintaining public safety.33 While Boren may support a challenge 28 In

another hypothetical situation, say that the defendant is labeled high-risk and is sentenced to jail time. After release, the defendant recidivates, which proves it correct. However, say the defendant does not recidivate after jail time. The algorithm is not proven false, as there are a variety of reasons as to why the defendant did not recidivate (the efficacy of the jail time, rehabilitation resources, etc.).

Evidently, it is possible to prove the algorithm’s prediction correct, but not necessarily possible to say that the prediction was incorrect.

29 Armour v. Indianapolis, 566 U.S. 673, 680 (2012).

30 United States v. Virginia, 518 U.S. 515, 533 (1996).

31 Palmore v. Sidoti, 466 U.S. 429, 432–33 (1984).

32 Washington v. Davis, 426 U.S. 229, 246–47 (1976).

33 Craig v. Boren, 429 U.S. 190, 192–93 (1976).

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to COMPAS at first glance, the gender input in the algorithm requires only intermediate scrutiny. The legislature only needs to show that the “classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”34 In Loomis, the court found the governmental objective to be improving the prediction’s accuracy, which does not serve a discriminatory purpose but rather, an administrative one. The court also believed that the gender input was necessary since failing to distinguish between genders would result in misclassification.35 Socioeconomic class, another problematic input, does not qualify as a suspect class under the Fourteenth Amendment. The most judicial protection the Supreme Court has offered to protect from unjust discrimination is that socioeconomic status can not be the determinative factor in sentencing. And, when considering the risk of recidivism, the Court allows finances to be used as a factor in sentencing.36 In the context of the Fourteenth Amendment, despite its controversial racialized, genderized, and economized inputs, COMPAS is still technically constitutional.

C. Fifth and Fourteenth Amendments: Do Algorithmic Risk Assessments Inhibit Due Process?

Finally, there is similar inadequacy in the Due Process Clauses of the Fifth and Fourteenth Amendments, which guarantee the defendant’s right to a fair trial, confronting the evidence incriminating him, and individualization in sentencing. As shown, COMPAS prevents a defendant’s right to be sentenced using accurate information. Furthermore, in the Loomis dictum, the court asserted that it is in the defendant’s right to “review and verify information contained in the [presentence investigation report] upon which the circuit court bases its sentencing decision.”37 However, the challenge arises when considering what information specifically the defendant can access – if the defendant is within rights to review the algorithm’s source code or if he only needs to review his score produced by it. The Loomis decision does not stipulate the specificities of this “information.”

Even if the defendant were allowed to review his inputs in-depth, which the Loomis court believed would enable the opportunity to “refute, supplement, or explain” the existing information, he would not be able to evaluate the algorithm’s accuracy even if he were able to verify that the inputs were factually correct.38 Since COMPAS uses a group-aligned methodology in the algorithm, examining and verifying a mere individual’s inputs will not reveal potentially inappropriate or inaccurate conclusions from group data. This impasse also further reflects the court’s insufficiency in its rationale.

Given that the concealed source code prevents the ability to prove inaccuracy, the Due Process Clauses are additionally inadequate in addressing the COMPAS assessment problem. The Loomis court decided to provide autonomy to jurisdictions utilizing the risk assessment algorithms, requiring that they “must ensure they have the capacity for maintaining those tools and monitoring their continued accuracy.”39 32 Washington v. Davis, 426 U.S. 229, 246–47 (1976).

33 Craig v. Boren, 429 U.S. 190, 192–93 (1976).

34 Virginia, supra note 30.

35 Loomis, supra note 13, at 759.

36 Bearden v. Georgia, 461 U.S. 660, 671 (1983) 37 Loomis, supra note 13, at 760.

38 Loomis, supra note 35 39 Ibid.

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As previously stated, the defendant has the right to confront and understand incriminating evidence.

However, this right seems incompatible with risk algorithms used by judges who do not understand them, let alone the defendant who is affected by them. Furthermore, these algorithmic assessments have a reputation of being “superior” to imperfect human rationale since they are the product of technology.

This can create a bias for judges to use these risk assessments despite their damaging impacts, and these scores can realistically usurp a judge’s decision-making ability. Even though defendants are granted this protection during trial, the same right is weakened during sentencing, especially in noncapital situations.

The Supreme Court ruled in Williams v. New York that it is permissible for a judge to use information “obtained outside the courtroom from persons whom a defendant [had] not been permitted to confront or cross-examine” during sentencing.40 Under Due Process protection, the defendant also has the right to an individualized sentence, which COMPAS may transgress as it draws its conclusions from group data and not from the individual.

However, the Loomis dictum states that the risk assessments may not be used as the determinative factor in sentencing, and thus, they do not violate the individualized sentence precept.

Clearly, after reviewing the relevant constitutional clauses, it appears there is no substantive constitutional framework to properly address or remedy the problems created by the COMPAS assessment.

IV. Remedying Algorithmic Oppression A. Transparency To understand the flaws of algorithmic risk assessments and remedy their detrimental impacts, there must be transparency surrounding them. In addition to the intellectual property rights preventing the public from conducting comprehensive validation analysis, there are also varying conclusions found on the studies that have been conducted.41 Having complete transparency will allow for more reliable discourse on their efficacy.

Furthermore, the defendant affected by the risk assessment should have the opportunity to have the algorithm’s decision and foundation explained to them. Ideally, the algorithms’ source codes should be ‘legible’ to laypeople and not just the technocrats who implement them.

This goal of transparency includes transferring the algorithms from the private to the public sector in hopes of not only circumventing steel-strong intellectual property laws but also removing the distrustful profit motives and hidden agendas that cloud the quality and validity of these assessments.

Using public data and relying on a public source code will ensure more transparency and understanding on the defendant’s part, and fiscally speaking, will also serve as a cost incentive since the government will no longer have to pay private companies for proprietary algorithms.

40 Williams v. New York, 337 U.S. 241, 245 (1949).

41 See Jennifer L. Skeem & Jennifer Eno Louden, Assessment of

Evidence on the Quality of the Correctional Offender ManageProfiling for Alternative Sanctions (COMPAS) 28 (2007), http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.732.5843 (found there was not enough information to make a solid conclusion about what exactly COMPAS is assessing); See David Farabee et al., Cal. Dep’t of Corr. & rehab., COMPAS Validation Study: Final Report 3-4 (2010), Bar Association, State Policy Implementation Project, http://www.northpointeinc.com/downloads/research/COMPAS_Final_UCLA_08-11-10.pdf (found that while COMPAS’ assessment is imperfect, it is reliable). ment

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B. Consistency There is also the issue of consistency. The vast variability of interpretation can create great legal disparities. To ameliorate this variability, it is necessary to create consistency within state and federal government sentencing practices. Using the Loomis decision as a cornerstone for such guidelines, it is also necessary to reiterate that, though the consideration of these risk assessments is permissible under law, the risk assessment can not be the determinative factor of whether or not a defendant will be incarcerated or how severe his sentence is. The warnings that are to be given to judges must include how the risk assessments disproportionately affect minority defendants and that the purpose of COMPAS is predictive. These tools are not meant to be sentencing guides.

A key element in the use of these assessments is ensuring that there is a clear understanding from judges on how these assessments work. The Loomis court concurs; the “[trial] court’s lack of understanding of COMPAS was a significant problem.”42 Simply put, a tool can not be responsibly or accurately used if the carpenter does not know how to use it. Furthermore, because of the risk score’s simplicity, there lacks any context to create a meaningful recidivism prediction. Because of rapidlyadvancing technology, there is also the appearance that these risk assessment scores are more reliable and accurate than the judge’s logic, which will create an overreliance and bias to use these assessments even if they are not superior. At a minimum, there must be a training infrastructure to guarantee that judges properly use the assessments and safeguard the defendant’s wellbeing. This would also heighten a judge’s ability to critique the effectiveness of the algorithm, which could only benefit its accuracy in the longrun.

C. Technocratic Accountability Expanding on the concept of automation bias, these algorithms, contrary to the idealistic view that they create more perfect results, are imperfect. Algorithms are ultimately created by biased human beings.

The results these algorithmic assessments produce are based on human-created program design and structure, as well as group data that encompasses characteristics up to the discretion of the programmer.

If the data reflect bias, then it is a logical conclusion that the algorithm will also reflect that bias. While it is impracticable to hold a machine learning algorithm accountable, it is entirely possible to hold creators accountable.

The legislature must mandate internal reviews by companies that create these algorithms. These internal reviews must consider public criticism, and the company must create a gateway so that the public can share concerns and have their questions answered to increase societal understanding and discourse surrounding this issue. There must also be external, independent governmental bodies on the federal and local levels responsible for conducting validation and discrimination tests and ensuring a framework to hold these companies and their products accountable. Effectively, this would increase precautions taken by private companies to improve the quality and fairness of their algorithms.

The codes of conduct in which judges are held are stringent in the legal system, and there is no logical reason why creators of these risk algorithms are not held to the same standards. Should they still be involved in the criminal justice system, these private companies must provide in-detail explanations 42

Loomis, 881 N.W.2d at 749, 759.

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If the Constitution’s doctrinal inadequacies can reveal any general points, technology is rapidly outpacing the law’s ability to regulate it. State and federal governments must continually test, audit, and research these technologies, especially if they are in widespread use, for the judicial branch to accept and adapt to the reality of increased reliance on automated criminal justice tools.

VIII. Conclusion It is critical to the fairness of the criminal justice system that a change is made to the current ways these algorithms are used. The Constitution’s dogmatic deficiencies have created legal pathways for discrimination to infect judicial decision-making in sentencing in the name of science. The widespread practice of using risk assessments in sentencing thus far has undoubtedly detrimentally affected alreadydisproportionately targeted Black and Brown communities; with continued unfettered and unregulated use, the inequality chasm will grow.

A legislative blueprint earmarking transparency, consistency, and technocratic accountability will help remedy the harm caused to these communities and establish checks and balances on these assessments, both their design and usage. Perhaps upon a perfunctory glance of the algorithms, there will be no discrimination found. Yet, a more profound examination may uncover these suspected inaccuracies or discriminatory aspects. Imperative to the justice system is ensuring due process; if the practice of using these algorithms is beyond repair, then it becomes a moral responsibility to no longer use them.

With increased awareness of these highly undertheorized tools, these algorithms are approaching their sentencing. We assess them as “high-risk.”

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Unassuming Means and Pernicious Ends The Expansion of Executive Power Under President George W. Bush Kyle Leonard University of Florida Spring 2021 I. Introduction The first decade of the new millennium radically changed the presidency through the massive expansion of executive power. President Bush unlawfully expanded the powers of the president by applying a dangerous theory of executive power through aggressive political and legal action that gravely threatened the separation of powers and limitations of government necessary for a successful republic.

Bush’s utilization of the unitary executive theory, unilateral executive action, assertion of expanded authority as Commander-in-Chief and usurpation of legislative and judicial power enabled him to achieve his policy goals, while threatening the very fiber of American democracy. These actions by Bush and the argument for their grave implications are well-evidenced by contemporary journalism, academic scholarship and the writings of the founding fathers. The effects of his impact are lasting and were not limited to the end of the Bush administration. While a singular president may assert expanded executive power, the future inhabitants of the office rarely relinquish the authority. This indisputably leads to the invigoration of authority in the presidency, further distancing itself from its Madisonian roots.

II. BACKGROUND ON THE UNITARY EXECUTIVE THEORY A central tenet of the war powers controversy revolves around a theory of executive power known as the unitary executive theory. While popular media such as the film Vice and political commentators recently brought the term into the vernacular, the theory long precedes the attacks of 2001 or the actions taken since. Scholars generally believe the theory arose from a group of lawyers and politicians within the Reagan administration in order to enlarge executive power. The administration sought to prevent any regulation of executive power by Congress or the courts and assert the presidential authority to initiate war. A generation of politicians quickly adopted the theory. Advocates, such as then-Congressman Richard Cheney and Justice Scalia argued for a unitary executive who possessed the plenary power to run and manage the executive branch, which neither the legislature nor the judiciary could interfere with, and a presidency with the decision-making authority to bring the nation to war.1 In what would otherwise be an obscure clause of the Constitution, proponents of the unitary executive theory believe the Executive Vesting Clause establishes a unitary executive with unchallengeable executive power. As the Constitution states, “[t]he executive power shall be vested in a President of the United States of America,” adherents believe that any attempt to exercise or regulate “executive power” to be unconstitutional.2,3 These “unconstitutional” attempts to balance executive power may be as subtle 1 See Cheney’s Iran-Contra Minority Report 2 U.S. Const. art II § 1 3 Melanie M. Marlowe, The Unitary Executive,

CQ Press, 2012, pp. 137–158.

Contending Approaches to the American Presidency, edited by Michael A. Genovese,

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as an independent counsel or regulations on military prisoners. Supporters of the theory also rally behind the president’s status as Commander-in-Chief as means to assert near unlimited authority to use the military, intelligence community, and national security apparatus as he sees fit.4 This authority may not be challenged by or shared with any other branch. Legal scholar Richard Epstein described “their talk of the inherent power of the Presidency,” as “saying that the courts can’t stop them, and neither can Congress.”5 These powers, advocates believe, are inherent to the office.

The claims of freedom from oversight were extreme. When the White House prevented the Centers for Disease Control (CDC) from publishing an informational pamphlet on AIDS, Congress ordered the director to publish the pamphlet via statue. The Office of Legal Counsel (OLC) retorted that, “[a]ny attempt by Congress to constrain the President’s authority to supervise and direct his subordinates in this respect, violates the Constitution.”6 Garrett Epps, an American legal scholar, strongly challenged the legitimacy of the OLC opinion, writing for The Atlantic: This is hardly an obvious reading. The text of Article II is silent. (Indeed, the Constitution doesn’t even explicitly give the President the power to fire federal officials.) And the Constitution does say that Congress has the authority to enact laws “necessary and proper” for executing not just its own authorities, but all powers that the Constitution vests in “any department or officer” of “the government of the United States.” This certainly suggests Congress has a share of the power to direct those “departments and officers.”7 The expansive interpretation of executive power, along with the defense of said interpretation, however, lived beyond 1989 through those impacted by the Reagan Revolution.

A critical cadre of advisors, namely Vice President Dick Cheney, John Yoo and Alberto Gonzales, influenced and led by the expansionist thinkers from the Reagan administration, joined the team of George W. Bush in 2001. They soon possessed an excess of political capital, not seen since December 8, 1941, to spend as desired. This cadre moved swiftly to assert executive power both far beyond its previous limits as well as into new realms of government power, to include the establishment of courts and the declaration of war.

III. BUSH’S METHODS OF ASSERTING BROADER POWERS Signing Statements Just as any political idea becomes real policy, in order for the theories of expansive executive power evangelized to leap from the pages of law journals and magazines into the toolbox of the bureaucracy, government agents must act to institutionalize the theory. The means of instituting these theories of power varied, some established methods, such as OLC opinions, and some freshly refined, as with signing statements.

While signing statements trace their beginnings to the Monroe administration and saw increased 4 Idib 5 quoted in Jane Mayer, The Hidden Power, The New Yorker, 3 July 2006 6 12 Op. O.L.C. 47 7 Garrett Epps, Constitutional Myth #3: The ‘Unitary Executive’ Is a Dictator

ny, 11 July 2011.

in War and Peace, The Atlantic, Atlantic Media Compa-

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usage during the Reagan and Clinton presidencies, George W. Bush radically expanded their praxis to aggrandize his powers and restrain the effectiveness of Congressional oversight.8 His signing statement on the Detainee Treatment Act of 2005, in the views of his critics, marked a brazen attempt to assert unitary executive authority and limit the legislature’s and the judiciary’s ability to fulfill its duties to check and balance power. Statement reads: The executive branch shall construe... the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power....9 Bush’s statement indicated, as did numerous previous and future statements, he would not fully and faithfully execute certain provisions of the law that he considered to unconstitutionally interfere with his own authority. These statements, such as the quoted except, defy the intent of Congress, effectively removing its power to check executive power so long as the president believes Congress’s action to be unconstitutional. These statements faced wide condemnation from the American Bar Association and academia alike for their undermining of the rule of law and attempts to weaken the separation of powers.

Bush’s signing statements subverted the rule of law in part by questioning a core tenant of the Constitution. The Congress makes all laws, and the president, “shall take Care that the Laws be faithfully executed.”10 The veto endures as the Constitutional remedy to unconstitutional legislation. “The idea that the president could choose not to [execute] the laws was never considered at the Convention.”11 The founders specifically included the qualified veto as the means which, “enable [the president] to defend himself;” Hamilton outlined in Federalist No. 73 that the veto, “not only serves as a shield to the executive, but it furnishes an additional security against the enactment of improper laws.”12 The writings of the founders clearly establish the veto, not disobedience to the law, as the means to protect the nation from improper legislation.

While Bush may insist the Executive Vesting Clause provides him unitary executive power, his official interpretations of the Constitution conflict with the Judicial Vesting Clause. The judicial clause, in near identical manner to that of the executive, states the “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts.”13 The Constitution vests a plenary power in the judiciary to interpret the law. The president’s interpretations of the charter conflict with the text of the Constitution and the progeny of case law spawned from Marbury v. Madison (1803), which affirmed the judiciary’s responsibility to interpret the Constitution.

Memoranda Perhaps the most pernicious tool used by the administration, however, were the prolific memoranda, Christopher S. Kelly, Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency. Miami University, 2005, pp. 1–60, Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency.

9 George W Bush. “President’s Statement on Signing of H.R. 2863, the ‘Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006’ .” President’s Statement on Signing of H.R. 2863, the “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006” , Office of the Press Secretary, 2005, emphasis added.

10 Supra note 1 11 James P. Pfiffner, Presidential Signing Statements and Their Implications for Public Administration, Public Administration Review, 7 (2009).

12 Alexander Hamilton et al. The Constitution of the United States of America and Selected Writings of the Founding Fathers. Barnes & Noble Inc., 584 (2012).

13 U.S. Const. art. III § 1 8

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originating chiefly from the OLC. Unlike signing statements, which were transparent, grandiloquent redefinitions of the law, the OLC memos were secret, insidious means to justify appalling abuses of government power. The most infamous of these memos became known as the “torture memos” as they justified the torture of individuals in U.S. custody. Immediately following the attacks of 9/11, through memos, the advocates proclaimed the inherent power of the president to make war and pursue his objectives as he sees fit, unbound by Congress’s restrictions. In fact, “[t]he memo’s broad definition of the enemy went beyond that of Congress, which, on September 14th, had passed legislation authorizing the President to use military force against “nations, organizations, or persons” directly linked to the attacks,” as well as declaring the right to invade states which had absolutely no part in the attacks of September 11th.14 Another memo sanctioned torture when the President deems it necessary; yet another claimed that there were virtually no valid legal prohibitions against the inhumane treatment of foreign prisoners held by the C.I.A. outside the U.S. Most of these decisions, according to many Administration officials who were involved in the process, were made in secrecy, and the customary interagency debate and vetting procedures were sidestepped.15 The president effectively nullified the Geneva Convention in a memorandum by his own hand which claimed, “[p]ursuant to my authority as Commander in Chief...I...determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world.”16 Memoranda justified Bush’ assertion that he possessed the right to establish military tribunals without Congress.

The memorandum authored by Jay Bybee of the OLC justifying torture under the name of enhanced interrogation techniques attacked the authority of the legislature or judiciary to stop such practices. Bybee stated the president “enjoys complete discretion” in determining interrogation practices, and that any attempt to apply the law to limit his authority must be unconstitutional.17 Pfifner summarized the position as Bush using, “the commander-in-chief clause to argue that a presidential policy takes precedence over public law. Thus, the administration argued, the president is not bound by the law, despite the Article II, section 3 provision of the Constitution that the president ‘shall take care that the Laws be faithfully executed.’” Bush relied on these memos, lacking any Constitutional authority, as a sufficient legal basis to justify the power to act contrary to the supreme law of the land and quell oversight from equal branches.

IV. CONSEQUENCES OF THE UNITARY EXECUTIVE Presidential Prerogative to Initiate War Despite the Constitutional declaration, “[t]he Congress shall have Power … to declare war,” numerous presidents asserted their own right to begin military campaigns without the consent of Congress.19 President George W. Bush flexed the Constitution beyond its breaking point by subordinating the right 14 Supra note 4 15 Idib 16 James P. Pfiffner,

Constraining Executive Power: George W. Bush and the Constitution, Presidential Studies Quarterly, vol. 38, no.

1, 126, March 2007.

17 Id. at 128 18 Idib.

19 U.S. Const. Art. I § 8

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of the Congress to the will of the president. Bush claimed, through a variety of the aforementioned legal, political, and bureaucratic means, that the decision to commit American forces to an invasion of Iraq laid solely with the president; Congressional authorization, in the view of the president, was not necessary.

John Yoo, Deputy Assistant Attorney General at the Office of Legal Counsel during the second Bush administration, remains the most ardent and infamous advocate for this presidential power. Two weeks after the attacks of September 11th, Yoo authored a memo which asserted three core tenets of the administration’s future approach to national security powers. Yoo declared, that the President has broad constitutional power to use military force … the President has the constitutional power not only to retaliate against any person, organization, or state suspected of involvement in terrorist attacks on the United States, but also against foreign states suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the states that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11th.20 Yoo continued, “[t]he power of the President is at its zenith under the Constitution when the President is directing military operations,” and, “it is beyond question that the President has the plenary Constitutional power to take such military actions.”21,22 “These decisions, under our Constitution, are for the President alone to make,” Yoo closed the memo, justifying these three monarchical contentions.23 In a manner resembling shotgun argumentation, Yoo draws on numerous reasons why he supports the presidential authority to begin armed conflict. He postulates that, “[w]hen the Constitution was written, however, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities.”24 While this explanation appears quaint and adequate, true originalists disagree that Yoo’s definition accurately depicts the thoughts of the founding fathers on “declaring” war. Declaring war had a much broader definition than a mere diplomatic dispatch in the eighteenth century. Military action was a declaration of war, and nations “declared” war by action alone. The coeval definition of “Congress’s constitutional power ‘to declare War’ broadly encompass[ed] the power to initiate warfare.”26 Yoo also asserted that the absence of war making restrictions on the executive, like on the states, must mean the executive is free to begin a war.

Article I, Section 10, for example, declares that the states shall not “engage” in war “without the consent of Congress” unless “actually invaded, or in such imminent danger as will not admit of delay.” … If the framers had wanted to require congressional permission before the president could wage war, they simply could have repeated this provision and applied it to the executive.27 Of course, the absence of a restriction does not mean the permission to do so any more than the absence of an enumerated right means the permission to vanquish such a right.

20 25 Op. O.L.C. 188, emphasis added 21 Idib 22 25 Op. O.L.C. 214 23 Idib 24 John Yoo, War Powers Belong to the President, ABA Journal, American Bar Association, 1 February 2012.

25 Michael D. Ramsey, Textualism and War Powers, The University of Chicago Law Review, vol. 69, no. 4, 2002, 26 Idib 27 Supra note 23

pp. 1543–1638

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One of the claims presented by Yoo and Bush’s advocates was a supposedly originalist interpretation of the War Powers Clause. Some originalists, who generally interpret the Constitution through its supposed meaning when ratified by using historical dictionaries and writings, argue that the clause must be defined in terms of the British executive war power as the logical reference point for the former British colony. According to Shulman and Lee, “the president’s role as commander in chief was intended to institutionalize civilian control over the military; absent an immediate threat, the president may only execute Congress’s decision to initiate war.”28 Scholars and writers, such as Schulman and Lee, take issue with this claim as the intent of the revolution was to free the states from excessive executive power, not to subjugate itself under a new crown.

While the president championed the shift of power from the Congress to the presidency, the full indictment for this transfer of power must target not only the administration, but the body which relinquished its power. Scholars, such as Louis Fisher and R. Hendrickson, have long criticized Congress’s abdication from its Constitutional duty to declare war. The forfeiture of such immense power in one office directly contradicts the intentions of the founding fathers. James Madison, the “father of the Constitution,” foresaw failures of this transfer in a letter to Thomas Jefferson where he cautioned, “[t] he constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly, with studied care, vested the question of war in the Legislature.”29 The prophecy of the founder highlights the moral failing of the legislative body to retain its war-making power as its abdication increases the likelihood the nation finds itself at war, as it did in Iraq.

Enemy Combatants While the OLC’s memos covered a variety of topics, their greatest infringement of the law and human rights remains their justification for “enhanced interrogation techniques,” Orwellian doublespeak for torture. These memos collectively became known, through their eventual leaking, as the “torture memos,” attributed mainly to John Yoo, David Addington and Jay Bybee. The memos subverted existing U.S. law, namely the Geneva Convention Relative to the Treatment of Prisoners of War. The memos in effect overrode the international accord, irrespective of their ratification by the Senate and thus their status as supreme law of the land. The president decided, “that al Qaeda and Taliban detainees are not prisoners of war under the GPW [Geneva Convention on Prisoners of War].”30 Gonzales, in an attempt to quash the concerns raised by Colin Powell about the decision, asserted that, “[the] OLC’s interpretation of this legal issue is definitive,” and that, “[t]his new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges.”31 These memos began the shift away from the “strict limitations of questioning” to the systematic physical, mental, and sexual torture of detainees at black sites around the world. Andrew Cohen, writing in The Atlantic, summarized the shift of U.S. policy Mark R Shulman and Lawrence J. Lee, “The Debate Over War Powers.” American Bar Association, American Bar Association, 1 Jan. 2003 29 Madison, quoted in Adam Cohen, Congress, the Constitution and War: The Limits on Presidential Power, The New York Times, 29 January 2007, www.nytimes.com/2007/01/29/opinion/29mon4.html.

30 Alberto R. Gonzales, “Memorandum for the President: Decision RE Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban.” Received by President George W. Bush, Memorandum for the President: Decision RE Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban, Office of the White House Counsel, 1, 25 Jan. 2002.

31 Idib.

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through memoranda as an unaccountable stroke of a pen in stark contrast to the intentions of the founding fathers. “Poof. Just like that, with no judicial review, meaningful Congressional oversight, or public scrutiny, and based significantly upon the recommendations of a man … the United States became an outlier to the Geneva Convention, an international scofflaw.”32 In the view of Bush and his advisers, the direction of one man alone, the unitary executive, was sufficient to reverse human rights protections, codified as law. Through executive memoranda, Bush authorized the standardized violation of the law and human decency. The true price of no oversight and absolute authority revealed itself. Torture is just example of the true price of the unitary executive.

The government argued in briefs that these enemy combatants had no right to counsel, no right to trial nor any right of habeas corpus, and the government acted in accordance with these positions. When detainees filed for a writ of habeas corpus, the government argued that the prisoners held no right to habeas corpus or even any right to petition for such a writ.33 Gonzales even stated before Congress in 2007 that, “there is no express grant of habeas [corpus] in the Constitution.”34 Perhaps this line of reasoning emboldened the administration to indefinitely detain U.S. citizens as enemy combatants without the Constitutional right to counsel as with defendants Jose Padilla and Yaser Esam Hamdi.35 Of course, while their Constitutional rights to fair trial were ignored, and the same government demurred that they possessed any right such high-mindedness as human rights as they continued to torture these detainees without trial, apparently including detained U.S. citizens.36 Usurpation of Legislative and Judicial Power As a result of the torture suffered by detainees, the fear of transparency and the inadmissibility of evidence plague the proceedings at Guantanamo Bay. The Bush administration, however, paired its development of “enhanced interrogation techniques” with complementary memoranda regarding enemy combatants to assuage the need for any legitimate trial. Bush’s military order from November 13th, 2001 asserted the right to detain non-citizens suspected of terrorism as “enemy combatants,” and that such combatants would be tried before undefined military tribunals.37 Despite legal objections, such minutiae as Articles I and III of the Constitution rarely concerned the national security apparatus of exclusively non-lawyers.38 While “such inferior courts as the Congress may from time to time ordain and establish,” clearly requires Congress establish new courts, Bush asserted his right to establish military tribunals on his own.39 While, in the view of the administration, the executive vesting clause prevented any interference in the executive from the equal branches, they apparently believed the judicial vesting clause to be entirely different. Bush claimed his authority as Commander-in-Chief inherently bestowed the authority to establish and regulate such courts. The government, at the direction of the executive, established hearings, Combatant Status Review Tribunals, which presumed the defendant to be guilty, allowed no attorney to be present and provided no evidence to the defendant against him.40 32 Andrew Cohen, The Torture Memos, 10 Years Later, The Atlantic, 6 February 2012.

33 Jeffery Toobin, “Killing Habeas Corpus.” The New Yorker, 4 Dec. 2006.

34 Quoted in Aaron Rupar, “Gonzales: ‘There Is No Express Grant of Habeas Corpus In The

Constitution’.” ThinkProgress, 19 Jan. 2007, 35 Nancy Kassop, The War Power and Its Limits, Presidential Studies Quarterly, vol. 33, no. 3, 520, September 2003.

36 Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration. W.W. Norton & Co Inc, 102, 2009.

37 Supra note 517 38 Supra note 4 39 U.S. Const. art. III § 1 40 Supra note 30

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The government even began to detain individuals, including U.S. citizens, as enemy combatants who were arrested by federal law enforcement within the United States, namely José Padilla. Military tribunals determined the legal status of detainees without any authorization from the Uniform Code of Military Justice or Geneva Convention, a fact recognized in Hamdan v. Rumsfeld (2006). A Marine Corps lawyer defending an Australian detainee said of the tribunals: It was a political stunt. The Administration clearly didn’t know anything about military law or the laws of war. I think they were clueless that there even was a U.C.M.J. and a Manual for Courts-Martial! The fundamental problem is that the rules were constructed by people with a vested interest in conviction.41 The tribunals, in the view of military lawyers, had no jurisdiction or authority over the crimes the detainees were accused of, and the Supreme Court of the United States agreed. The Court held (5-3) in Hamdan v. Rumsfeld that the presidency bestowed no such power, and that Congress must establish the courts and regulations for trying the held enemy combatants.42 In a rare act of inter-branch cooperation, solely as a result of the Court’s rejection of the unitarian acts, Republican Congressmen under the direction of Vice President Cheney pushed forward the Military Commissions Act of 2006, which would remove the detainees Constitutional rights by statute and the courts’ jurisdiction from the matter.43 The Court, however, struck down the law as unconstitutional in Boumediene v. Bush (2008).

V. LEGACY The unitary executive theory remains a quaint interpretation of executive power, but clearly would have been opposed by founding fathers, proven even by Hamilton’s interpretation of the Constitution.

Despite insistence otherwise from men such as Addington and Yoo, the theory has fostered predictably dangerous results. Asserting rights through signing statements, memoranda and direct usurpations of judicial and legislative power disastrously threaten the balance of power between branches and the effectiveness of checks and balances. During the presidency of George W. Bush the authority to declare war, establish courts and judicial review were hijacked from Congress and the courts. Congress’s influence over government greatly diminished. Bush and his successors learned they could make policy on their own and ignore the limitations of the law. The Bush administration quite literally said “thanks, but no thanks,” to Congress.­44 The consequences were dire: illegal NSA wiretaps, torture at the hands of U.S. personnel and executive control over courts.

While future presidents feel emboldened to decry the actions of the Bush administration, the established precedent appears too attractive to relinquish. Despite fervent opposition to the unitary executive theory and Bush’s decision to invade Iraq, President Barack Obama unilaterally involved U.S. forces in attacks on Libya during Operation Odyssey Dawn. Obama exuberantly expanded the usage of secret, unreported drone strikes to assassinate targets abroad, including U.S. citizens without any due process. NSA wiretaps expanded to the mass collection of nearly every American’s communications.46 President Donald Trump similarly felt embolden to attack targets of both the uniformed Syrian and 41 Mori, quoted in supra note 4 42 Supra note 30 43 Idib 44 Addington, quoted in idib.

45 Supra note 32 46 Glenn Greenwald, No Place to

Hide. Picador, (2014).

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and Iranian militaries without so much as a notice to Congress. It was their inherent authority as Commanderin-Chief, perhaps. The theory and the Bush-era expansion of authority made possible contemporary arguments that the president must be immune from criminal investigation. This concentration of power in a single executive has lost the meaning of “energy of government,” and, as shown January 6th, 2021, may have deadly consequences for the future of the republic. The road the country now walks is precarious and threatens the essence of the republic. But as for now, new, responsible leadership and the strength of a Court loyal to the separation of powers may be the only hope.