Wellesley College Pre-Law Journal Spring 2022

CONTENTS LETTERS TO THE COMMUNITY Letter from the Presidents 4 Letter from the Editors 5

GENDER AND LAW The Ginsburg Strategy: Are Male Plaintiffs the Key to Securing Gender Equality?

6

HANNA-MARY COOK ’23

A Negligent Nation: A Discussion of America’s Rape Kit Backlog

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VICTORIA PERCOCO ’23

HEALTH, SAFETY AND EDUCATION State Failure to Respect the Health of the Terre Haute Prison Community During the 2020 Coronavirus Outbreak

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ELEANOR MALLETT ’22

School Funding in Texas

29

LAILA ROUHI ’25

The Right to Asylum in Islamic Refugee Law and International Law: Issues in Modern Refugee Response

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CLARA SHANABROOK ’23

U.S. LAW AND POLITICS Cruel, Unusual, and Grossly Disproportionate: Ending Punitive Excess in Pre-Trial Detention 41 HAILEY CHO ’23

Prosecutorial Discretion: What is it, why is it important, and what do we do about it?

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HAYLEY MONIZ ’22

The War on Hollywood: Pentagon-Sponsored Films on U.S. Attitudes SHAYLA ZAMORA ’23

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INTERNATIONAL LAW AND POLITICS The Deal with the Paris Climate Accords

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ENYA CHI ’23

How Did the Cold War Affect Global Inequality, Both Within and Between Countries?

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JENNA LU ’22

Recommendations to Enhance MENA Women’s Political Power RADHIKA SESHADRI ’23

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LETTER FROM THE PRESIDENTS May 2, 2022 Dear Wellesley Community, It is with great excitement that we present to you the eleventh edition of the Wellesley PreLaw Society’s Law Journal, The Effects of Power. We want to extend an immense token of gratitude towards our law journal editors, Nerine ’24 and Emily ’22 for their tireless efforts in pulling this together for your perusal. Another big thank you to the Pre-Law E-Board for their assistance in recruitment, publishing, and distribution. Finally, to the authors featured in this volume: thank you. Without your work, ideas, and dedication to this topic, this journal would not be possible.

As we prepare to turn the page (both physically in this journal and metaphorically on our tenures as co-presidents), it seems fitting to reflect on the past year at the helm of this organization.

We are proud of the work Pre-Law has done in this extraordinary return to more familiar meetings and events. The essays contained here are a mark of not just extraordinary resilience, but defiance; the ability to continue forward through what has been a pretty bizarre set of years. The unwillingness to waiver and the commitment to extraordinary work in pursuit of justice is inspiring, and we hope you take the lessons you learn in these pages far beyond the covers that enclose them.

As a Society, we are preparing to welcome a new set of leaders in the fall. We are excited about what the future of the Pre-Law Society holds, and we know that the members of the Wellesley Pre-Law community are in good hands with excellent leadership ready to guide them through.

Looking into that future, we are proud to offer this bi-annual publishing opportunity to Wellesley College students. We are always looking for fresh ideas to publish. Any piece of writing under 20 pages is eligible for submission, so long as it discusses topics related to law and/or policy.

We love to see your submissions! Deadlines are typically at the end of the fall semester and the middle of the spring semester.

As always, we are here to support you in your Pre-Law journey and are happy to answer any questions (or to direct you to someone who has a better answer). We are so proud of our community here at Wellesley, and we hope to connect with you soon!

Best, Hayley Moniz ’22 and Grace Woo ’22 Wellesley Pre-Law Society Co-Presidents 2021-2022

LETTER FROM THE EDITORS May 2, 2022 Welcome to Volume 11 of the Wellesley College Pre-Law Society Law Journal!

Published twice a year, the Wellesley College Law Journal is a premier location for students to publish their thoughts on politics and policy, civil and human rights, and general law. The Journal is a student publication by the Wellesley Pre-Law Society, featuring articles selected and edited by the Law Journal Editors.

The Effects of Power marks the second issue since our return as a campus to in-person learning following the onset of the COVID-19 pandemic. Despite many challenges, students have continued to research and advocate at a high caliber. In this volume, students not only reveal many of the injustices present in our current world, but also challenge and even propose solutions to some of those issues. A common thread that runs through these articles is the effects of power: power can be used to change things for the better, but it can just as easily be abused. We hope that the ideas and narratives featured in this issue inspire efforts to realize the effects of your own power and ways to use it to shape the future for the better.

We are thrilled to present the Wellesley College community with the Spring 2022 edition of the Journal. We hope that these 11 articles inspire you to continue reflecting on and engaging with the world.

Happy Reading!

Emily Williams ’22 and Nerine Uyanik ’24 Wellesley Pre-Law Society Co-Journal Editors 2021-2022

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THE GINSBURG STRATEGY: ARE MALE PLAINTIFFS THE KEY TO SECURING GENDER EQUALITY?

by Hanna-Mary Cook When the movie On the Basis of Sex came out in 2018, Ruth Bader Ginsburg was nearing the end of an esteemed career spent relentlessly pursuing gender equality. Looking back on her career, one of her biggest accomplishments, as highlighted by the movie and countless legal scholars and professionals, is the argumentation strategy that she used as a litigator to establish some of the initial constitutional protections against gender discrimination. This litigation strategy entailed representing male plaintiffs rather than females. Sometimes referred to as the “Ginsburg Strategy,” this phenomenon has proven so compelling in the federal court system that “to this day, men outnumber women among the ranks of constitutional sex discrimination plaintiffs who have reached the Supreme Court” (Franklin, 2013, p. 228). Prior to 1970 and Ruth Bader Ginsburg’s debut as a litigator, however, only female plaintiffs had raised Fifth and Fourteenth Amendment gender discrimination claims in the federal court system, demonstrating the drastic impact of cases brought by male plaintiffs once the strategy gained popularity (Franklin, 2013, pp. 227-28). The Ginsburg Strategy of representing male plaintiffs in gender discrimination cases has achieved the level of success that it has because it elicits empathy from the male-dominated pool of federal judges by playing to their inherent gender biases, challenges recognizably outdated gendered stereotypes that are being used to justify discrimination on the basis of sex, and pursues formal equality theory, which is simpler to prove than disparate impact or other forms of discrimination.

Ruth Bader Ginsburg and Formal Equality Theory Initially finding her inspiration in Sweden’s revolutionary approach to gender equality in which men and women were recognized as legally equal, Ruth Bader Ginsburg dedicated her career to pursuing formal gender equality rather than elevated or specialized status for women (Franklin, 2013, pp. 229-30). Formal equality theory aims to achieve formal equality between men and women by enacting gender-neutral laws, which would legally recognize men and women as being in the exact same position (Dukart, 2005, p. 556). The theoretical framework of formal equality entails combating and dismissing traditional gender stereotypes and gender roles based on separate spheres ideology, which assumed that men should serve as breadwinners and women should be economically dependent on their husbands, and that men should work in the public sphere, while women should act as mothers and homemakers in the private sphere (Franklin, 2013, pp. 229-30).

Ruth Bader Ginsburg’s approach to pursuing formal equality between men and women attempted to expose the role of the law in the subordination of women through the enforcing of gender stereotypes and the separate spheres tradition. She pursued formal gender equality through gender discrimination cases, mainly those which facially discriminated between men and women, as facial discrimination is all that is needed for the pursuit of formal equality.

As Ruth Bader Ginsburg and those following in her footsteps came to realize, it is not relevant whether plaintiffs are male or female when the ultimate goal is to rid the law of formal sex qualifications. Indeed, it actually turned out to be a strategically preferable choice to employ a male plaintiff in gender discrimination cases (Franklin, 2010). Ginsburg’s strategy of representing male plaintiffs helped to deny that women were “different” than men and to depict women as similarly situated to men so that instances of discrimination could be easily identified using that basis.

Ginsburg recognized that she was in need of a reason that would convince the male-dominated

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court to treat sex discrimination as seriously as they already treated race discrimination, and that the level of scrutiny used by the court would have to be more serious to accomplish this (Longoria & Abumrad, 2021). She decided to move slowly on a case-by-case basis and to represent male plaintiffs in order to gradually increase women’s rights and to gradually expose the court to the idea of considering gender discrimination cases using the strict scrutiny framework (Longoria & Abumrad, 2021). And ultimately, by representing male plaintiffs and tailoring her arguments to the male-dominated legal system, Ruth Bader Ginsburg “played by men’s rules, and she prevailed” (Cole, 1984, p. 55).

Following her landmark wins in gender discrimination cases like Frontiero v. Richardson, Craig v. Boren, Weinberger v. Wiesenfeld, and Califano v. Goldfarb, Ruth Bader Ginsburg had laid a solid foundation and appropriate legal landscape to eventually place women on “exactly the same plane as men” (West & Cohen, 2018). Ultimately, it is widely accepted that “Ruth Bader Ginsburg quite literally changed the way the world is for American women” and that Ginsburg’s success on behalf of women is largely attributable to her revolutionary strategy of representing male plaintiffs in gender discrimination cases (West & Cohen, 2018).

Why Male Plaintiffs?: Psychological Effects Following Ginsburg’s transition from arguing cases as a litigator to deciding them as a federal court judge and a Supreme Court Justice, litigators across America have continued to use the strategy that she established. The Ginsburg Strategy has attained great success largely because of the psychological effect that it has on male judges. The two main psychological phenomena which cause the male-dominated federal judiciary to side with male plaintiffs are inherent ingroup biases and the resulting subconscious empathetic responses to ingroup members (Dukart, 2005, p.

570).

Since male judges and male plaintiffs have their gender in common, the adjudicator is able to form an emotional connection to the injured party, who they immediately recognize as a fellow ingroup member (p. 570). An ingroup which shares a characteristic, such as gender in this instance, also shares distinct experiences and socialization on account of that characteristic. These shared experiences on the basis of gender help to bond those sharing a gender category to each other. Due to these strong intrinsic bonds, the tendency of one to categorize oneself as an ingroup member increases when the group is being threatened. A threat to the ingroup’s rights is an especially compelling reason for the adjudicator to identify with their fellow ingroup members in an attempt to assist them or at minimum to express solidarity (p. 570).

Preference for ingroup members is automatic and inherent, not conscious, and sex is a characteristic that is frequently noticed and used subconsciously to classify people that one is unfamiliar with (p. 571). Therefore, when judges subconsciously take note of a plaintiff’s sex and form an initial impression of the plaintiff using that information, it will naturally tend to be a more favorable impression if they share the same sex identity and therefore share the same ingroup.

This natural bias that develops in favor of ingroup members sometimes plays a role in determining reward allocation (in this case, a favorable judgment), increases the adjudicator’s empathy towards ingroup members, increases the tendency to validate ingroup members’ perceptions, and causes the attribution of external causal forces (p. 572). Ingroup biases also lead to a higher likelihood and amount of help for ingroup members (p. 573). As such, litigators who represent male plaintiffs have higher chances of success and are given more favorable judgments since the overwhelming majority of federal judges and Supreme Court Justices are male. Therefore,

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representing a male plaintiff provides one with the benefits associated with the subconscious ingroup bias in favor of males that is commonly exhibited by the judiciary (p. 573).

A major effect of ingroup bias is that male ingroup members will be more empathetic towards a fellow man than they are towards women. It is much easier to understand the perspective of an ingroup member due to shared experiences and socialization, and it is therefore easier to empathize with an ingroup member (p. 574). This empathetic connection results in more concern being shown towards ingroup members. When a perceiver (in this case, a judge) is able to identify with a victim (in this case, a plaintiff), they are more likely to perceive harm, to perceive the harm as being significant, and ultimately to respond emotionally (p. 574). Additionally, the desire to help a victim increases when the alleged harm is perceived by the judge as something that could possibly happen to them (p. 576). Following the perception of harm, ingroup members are more likely to accept each other's judgments and interpretations of the harm done (p. 574). Since ingroup members trust each other more, male adjudicators will be more likely to accept the allegations and the testimonies of male plaintiffs as true and accurate, and conversely, male plaintiffs will be more likely to accept and abide by the conclusions made by male judges.

Finally, the invocation of formal equality theory increases the likelihood of success for the plaintiff because the issue of wrongful classifications being made on the basis of sex is one that the adjudicators recognize that they could experience themselves, and as such, they are more willing to prevent such classifications from occurring again in a way that could harm them (p. 576).

Why Male Plaintiffs?: Standing In most of the gender discrimination cases that have had male plaintiffs, men were those who experienced the injury clearly and actually alleged the claims in court, but women often suffered the critical consequences which ultimately led to the legal action. Part of the reason that male plaintiffs are chosen for gender discrimination cases is the court’s requirement for standing, which often requires finding someone who has been harmed in a direct fashion (even if the harm was insignificant) (Cole, 1984, p. 57). Since the court was for the most part not yet able to recognize or act sympathetically towards women’s discrimination claims at the time that this strategy was pioneered, finding a male plaintiff who was harmed was essential to achieving success in a gender discrimination case (p. 57).

Review of Case Law To demonstrate the success of the Ginsburg Strategy of utilizing male plaintiffs in sex discrimination cases, a review of relevant cases in which the strategy was employed and the plaintiff was successful follows.

In 1976, the Court handed down its opinion in a historic gender discrimination case, Craig v. Boren. In Craig v. Boren, Curtis Craig (a male between the ages of 18-20) and Carolyn Whitener (a female licensed vendor of 3.2% beer) challenged an Oklahoma statute which prohibited the sale of 3.2% beer to males under 21 and females under 18. They alleged that the statute discriminated on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment (Craig, 1976, p. 194). Their claims demonstrated discrimination against both men and women on the basis of sex. The Court adopted the standard of review that classifications by gender must serve important governmental interests and be substantially related to the achievement of those state interests (p.

197). The Court decided that under these standards, the protection of public health and safety is an important function of state and local governments, so the state’s objective of enhancing traffic safety is acceptable. However, they also decided that the statistics presented in support of the state’s

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objective did not support the conclusion that the gender-based distinction “closely serves to achieve that objective,” so the distinction cannot withstand the challenge based on equal protection (p. 198).

Therefore, under these standards, the difference between males and females with regard to the purchase of 3.2% beer does not warrant the differential in age in the Oklahoma statute. Ultimately, the Court concluded that “Oklahoma’s gender-based differential constitutes an invidious discrimination against males 18-20 years of age in violation of the Equal Protection Clause” that is not warranted by the statistics provided by the state in defense of its statute (p. 194).

Craig v. Boren importantly established that statutory or administrative gender classifications are subject to intermediate scrutiny under the Equal Protection Clause of the Fourteenth Amendment. While it is not strict scrutiny (as Ginsburg wanted), the establishment of intermediate scrutiny as the official standard of review for gender discrimination cases was an important step in the right direction and a clear success of the strategy of using male plaintiffs in gender discrimination cases.

In another important case, Weinberger v. Wiesenfeld, the plaintiff, Stephen Wiesenfeld, alleged that s 402(g) of the Social Security Act was discriminatory on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. Under the act, survivors’ benefits were to be granted based on the earnings of a deceased husband and father to both his female widow and the couple’s minor children in the widow’s care, but if the husband and father was the surviving spouse, benefits were to be granted based on the earnings of a deceased wife and mother only to the couple’s minor children, not to the male widower (Wiesenfeld, 1975, p. 639).

Wiesenfeld claimed that the challenged section of the Social Security Act discriminated against female wage earners who paid social security taxes since it provided them with less protection for their surviving family members than would be provided if they were male (p. 639).

The case was brought by a male plaintiff since his wife was deceased and therefore could not argue on behalf of herself, but also because he alleged discrimination against men who were not the primary wage earners in their families. Mr. Wiesenfeld’s wife, Paula, had been the primary source of income for their family. When she died in childbirth, Mr. Wiesenfeld sought social security benefits so that he could care for his son full time. He was denied his widow’s benefits on account of such benefits only being available to women, but he was given his son’s benefits (p. 640).

Wiesenfeld argued in the case that the distinction made by s 402(g) on the basis of sex was based on an “archaic and overbroad” generalization that male workers’ wages are vital to supporting their families financially, while female workers’ earnings do not provide significant support (p. 639).

He also argued that social security benefits are “noncontractual” and do not correlate to work performed or contributions to the program. Rather, they depend on a covered employee’s participation in the work force and since only covered employees pay taxes toward the system, its benefits must be distributed according to classifications that are made without considering a person’s sex (p. 639). Lastly, Wiesenfeld argued that the statute intended to provide benefits to women who had elected not to work and to instead care for their children in the event of their husband’s passing, and was not premised upon an assumed disadvantage of women (p. 639).

The Court decided that the different treatment of men and women under s 402(g) of the Social Security Act “unjustifiably discriminated against female wage earners by affording them less protection for their survivors than is provided to male employees” (p. 640). The Court came to this conclusion since Mr. Wiesenfeld was not even given the opportunity to show that he was dependent on his wife for support or that if his wife were alive he still would have stayed at home with their son while she worked, because Mrs. Wiesenfeld was deprived of part of her own earnings to contribute to a fund which benefited other families but not her own even though she paid social security taxes equal to those paid by men, and because the Act was based upon an outdated

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presumption that men were responsible for working to support their wife and children and that women were not significant contributors to supporting their families (p. 641).

Stephen Wiesenfeld was an ideal plaintiff since he defied the gender stereotypes which the statute was dependent upon. In the Wiesenfeld's marriage, the husband and wife held the opposite of the traditional gender roles, providing solid evidence that the stereotypes relied upon by the government in order to justify the statute were untrue (Cole, 1984, p. 74).

Finally, in Califano v. Goldfarb, a male widower who was applying for social security benefits following his wife’s passing encountered a different problem with the Social Security Act than challenged in Wiesenfeld. Leon Goldfarb’s wife earned a wage and paid social security taxes, however, she contributed less than half of the Goldfarb’s family income. Upon her passing, Leon Goldfarb attempted to collect survivors’ benefits, but he was denied. Under s 402(f)(1)(D) of the Social Security Act, survivors’ benefits were to be awarded to a female widow based on the earnings of her deceased husband covered by the Act regardless of her dependency on his salary, but benefits were only payable to a male widow on the basis of a deceased wife covered by the act if he was receiving at least half of his support from her (Goldfarb, 1977, p. 201). Therefore, had Mr. Goldfarb been more dependent on his wife than he was or if their sexes had been reversed, he would have been awarded the benefits. As such, he alleged discrimination against he and his wife on the basis of sex in violation of the Due Process Clause of the Fifth Amendment.

The Court concluded that the distinction made between the sexes in this case was constitutionally forbidden, at least when the most substantial justification made was based on old assumptions about dependency that are more consistent with the historical assignment of gender roles than with the modern reality, as was true in this case (p. 202). Ultimately, s 402(f)(1)(D) of the Social Security Act was declared unconstitutional based on its unlawful differentiation between male and female widowers and widows based on an outdated presumption that men are the primary earners in a family and that women are dependent on them for support. Since Leon Goldfarb and his wife occupied gender roles that were the opposite of what was assumed, he was a wellpositioned male plaintiff in this case for challenging the “male breadwinner” stereotype (Cole, 1984, p. 77).

Part of the success in Wiesenfeld and Goldfarb may be attributable to the fact that beside both of the male plaintiffs, there were female wage earners attached by marriage who were also portrayed as victims of discrimination (Cole, 1984, p. 72). So although the cases were brought by male plaintiffs, their marriages to women who were also victims of discrimination caused the focus of the cases to encompass women’s interests. Additionally, the marriage relationships pointed out the asymmetry of the gender classifications to the court, since there was a clearly visible contrast between how the husbands and wives were or would have been treated when attempting to collect social security benefits as widowers (Cole, 1984, pp. 72-73). Therefore, both the plaintiff and defendant ended up furthering claims related to the inequality of women compared to their husbands, demonstrating to the court that men and women were indeed treated differently by the challenged statutes in an unconstitutional way. Craig v. Boren also included both a male and female plaintiff in conjunction, allowing it to have similar effects and to show that both men and women were wrongfully discriminated against by Oklahoma’s statute.

Limitations of the Male Plaintiff Strategy Although the strategy of using male plaintiffs to pursue gender equality has clearly proven successful, there are certainly limitations to this strategy and the pursuit of formal equality theory using this strategy, as well as larger problems related to gender inequality that are reflected in the

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strategy. For example, “the fact that male plaintiffs have proved so useful highlights serious preexisting gender biases in the legal system” (Cole, 1984, p. 39). The use of male plaintiffs has successfully secured more rights for women than they have had in the past, but it has done so while simultaneously reinforcing the belief that men can be more useful than women and while catering directly to the demands of an inherently patriarchal and sexist society. Harms committed against women should be recognizable on their own, and it should not be necessary for men to prove that they have been disadvantaged in order for women to procure equal rights.

Additionally, there is concern that simply ridding the law of unconcealed gender classifications is not enough to truly improve the standing of women in the American legal system and in society as a whole (Franklin, 2013, p. 85). The approach of representing male plaintiffs can obscure that women are often treated as inferior citizens to men and only solves the problem of facial sex classifications in legislation, not in society (p. 86). Regarding the approach of formal equality theory in sex discrimination cases, the theory cannot address disparate impact allegations.

If a law does not facially distinguish between men and women, then the court will not find it violative of equal protection under the Fifth or Fourteenth amendments (Dukart, 2005, p. 85).

Formal equality is unable to address disparate impact claims because it aims to treat men and women the same, not necessarily to get rid of all of women’s many disadvantages (p. 579). As such, formal equality theory is tailored to a legal framework which clearly distinguishes between men and women in a discriminatory manner, but not one in which either sex happens to be discriminated against as a byproduct of laws which discriminate non-facially. Since existing legal frameworks have been developed around the norm of men being dominant in the workplace and in all of society and are dominated by men themselves, the courts struggle to recognize disparate impact as harm (p. 580). So rather than admitting to the inherent flaws of the workplace structure, the court analyzes discrimination claims in the context of the existing male-dominated work environment, which leads to inevitable male bias and women benefiting only when men have been harmed too (p. 580).

Another flaw of formal equality is that its goal of treating men and women the same with regard to the law fails to acknowledge that the existing structure of the workforce favors men (p.

580). Since the social inequalities between men and women exist independently of laws declaring them as being on equal ground, it is very difficult to increase the standing of women as compared to men using formal equality theory pursued only in the courts. This is the danger of the “assimilationist” nature of formal equality theory and the use of male plaintiffs. No matter how far women may rise legally, it is not possible for women to be fully equal to men in a world that was made by and for men. Simply trying to insert women into an environment that was built in order for men to succeed is not as effective or as significant a change as rebuilding the system as a whole to better equip women with what they need for basic equality and to be successful. Therefore, a sex-blind doctrine of legal equality is unable to disrupt patterns of discrimination in a society that was created by and for men and their interests (p. 580).

Lastly, using male plaintiffs finds limitations in its failure to recognize genuine biological differences between men and women and by attaching gender discrimination claims to some subject areas but not others. Formal equality theory, in the name of true equality, overlooks even biological differences between men and women, such as the ability to be pregnant and the battle for reproductive freedom (p. 581). Therefore, pregnancy discrimination is not even on the radar of formal equality theory and is largely ignored by the court as a possibility in many gender discrimination cases. Women also struggle in the courts with other forms of reproductive freedom, which along with pregnancy discrimination, is an area in which women must be treated differently than men in order to be treated equally to them (Cole, 1984, p. 55). However, as long as men

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dominate the judiciary, it will be difficult to find and implement an appropriate adjudicative solution to these issues (p. 56).

Forms of gender discrimination aside from economic discrimination have also been overlooked in part due to the types of cases which are used in male plaintiff cases. Several of Ruth Bader Ginsburg’s most notable gender discrimination cases involved economic discrimination based on discriminatory practices in tax collection or social security benefits (p. 73). While these cases made significant forward progress and established important precedents for other gender discrimination cases, the tactic of attaching stereotypical harms and gender discrimination cases to economic burdens has caused the judiciary to potentially overlook other forms of discrimination outside of that which affects women economically (pp. 73-74). However, the limited judicial focus imposed by the sole redress of economic harms was at least partially resolved by the resulting inquiry into outdated stereotypes and gender roles, which led to the court clearly expressing its disapproval of the use of such outdated norms and stereotypes (p. 74).

Conclusion Ruth Bader Ginsburg is known as a champion of women’s rights and formal gender equality. Many do not realize that her level of success was partially attributable to her ingenious strategy of representing male plaintiffs alleging discrimination on the basis of sex. As demonstrated by the successes of Craig v. Boren, Weinberger v. Wiesenfeld, and Califano v. Goldfarb, among others, the Ginsburg Strategy led to some of the most significant legal expansions of women’s rights, and women might not be where they are today without Ginsburg’s development and use of this strategy. The use of male plaintiffs in gender discrimination cases has proven to be an exceptional success, however, the limitations of this theory must not be overlooked and in order to enact the most positive change towards formal gender equality, the theory should be paired with social movements for change and even a deeper look at the sexist inner workings of the Americal legal system. But in the end, the strategy should be carried on in remembrance of the great Ruth Bader Ginsburg until the fight for gender equality is complete.

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References Califano v. Goldfarb, 430 U.S. 199 (1977).

Cole, D. (1984). Strategies of Difference: Litigating for Women’s Rights in a Man’s World.

Minnesota Journal of Law and Inequality, 2(1), 33–96.

Craig v. Boren, 429 U.S. 190 (1976).

Dukart, J. Y. (2005). Geduldig Reborn: Hibbs as a Success (?) of Justice Ruth Bader Ginsburg’s Sex-Discrimination Strategy. California Law Review, 93(2), 541–586.

Franklin, C. (2010). The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law. New York University Law Review, 85(1), 83–173.

Franklin, C. (2013). Justice Ginsburg’s Advocacy and the Future of Equal Protection. 122, 227– 234.

How Ruth Bader Ginsburg became a trailblazer on equal protection under the law. (2020, September 25). In PBS NewsHour. PBS. https://www.youtube.com/watch?v=PyV5cwLFcSg Longoria, J., & Abumrad, J. (2021, April 22). How RBG Became ‘Notorious.’ In The Experiment.

The Atlantic and WNYC Studios. https://www.wnycstudios.org/podcasts/experiment/episodes/more-perfect-ruth-baderginsburg Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).

West, B., & Cohen, J. (2018). RBG. Magnolia Pictures.

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A NEGLIGENT NATION: A DISCUSSION OF AMERICA’S RAPE KIT BACKLOG

by Victoria Percoco In 2011, the hit drama series Law and Order: SVU aired the third episode of its twelfth season titled Behave. The episode chronicles a young woman, Vicki, who the detectives discover has been sexually assaulted four times over the course of a decade by the same man. As the episode progresses, viewers learn Vicki’s rapist has been roaming free for years, all because her rape kit sat in a warehouse untested for a decade along with those of her attacker’s other victims, and hundreds of thousands more. Had the numerous rape kits collected from his victims been tested in a timely manner – or tested at all – Vicki’s attacker could’ve been identified earlier, before he had the chance to victimize other women, and before the statute of limitations on his victims’ cases lapsed, making him nonprosecutable. While SVU is a fictional TV show, several episodes are “ripped from the headlines” and parallel cases of real victims of sexual assault. Behave was one of those episodes and the show’s writers based the storyline on the experience of a California woman who underwent a rape kit examination, only to have that kit sit untested in a police storage facility for fourteen years while her attacker remained free and assaulted several other women. For many people watching the episode that day, it was the first time they ever heard of the United States’ pervasive rape kit backlog.

Every 68 seconds, an American is sexually assaulted. Of those individuals, 90% are women, with statistics showing one in six women will be sexually assaulted in their lifetimes. As of this moment, 17.7 million women (and counting) have been victims of sexual assault, with those between the ages of 16 and 34 being most at risk (RAINN, 2021). Despite the almost ubiquitous nature of sexual assault, it remains one of the most undereported crimes and one of the least prosecuted. Out of every 1,000 rapes, only 310 are reported to police. Only 50 of those reports lead to arrest and only 28 of those cases will be prosecuted. In the end, “less than 0.5% of rapes will make it through the criminal justice system to conviction,” making it “by far the easiest violent crime to get away with” (Hagerty 2019, and Jones 2021, p. 1787). The rape kit backlog, the phenomenon by which hundreds of thousands of rape kits sit untested in police storage facilities and crime labs across the United States, is a key part of the explanation for this abysmal conviction rate, working in tandem with other cultural practices that limit victims’ access to justice (End the Backlog, 2021). In this paper, I will explore the causes and nature of the extensive rape kit backlog and present evidence as to why the dissolution of this backlog is absolutely essential in attempting to obtain justice for survivors. I will also explain how, in tandem with an equally pervasive acceptance of rape culture, this lack of testing dangerously undermines faith in the criminal justice system. Further, I will present a case in which survivors allege the rape kit backlog violates their right to equal protection as granted by the Fourteenth Amendment. Finally, I will present solutions that would help end the backlog and restore victims’ confidence in their ability to obtain closure and justice.

The Rape Kit One of the traumas of sexual assault is the way in which it makes the victim’s body a crime scene in itself. Thus, in the wake of an assault, women who report or seek treatment from a hospital may submit to a sexual assault kit (SAK), more colloquially known as a rape kit, so evidence can be collected from her body that might help find her attacker. The exam takes four to six hours to

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complete and is highly invasive. Many victims find the poking and prodding of the exam – a full body examination, including internal examinations of the mouth, vagina, and anus, and the taking of samples of blood, urine, hair, and swabs of bodily surfaces – retraumatizing (RAINN, 2021).

Survivors choose to endure the exam, however, “in hope that the evidence will be used by police and prosecutors to hold perpetrators accountable” (Campbell et al., 2017, p. 454). Survivors may also be inclined to submit to the exam because “prosecutors are significantly less likely to charge a case if there is no physical/forensic evidence” (Campbell et al., 2017, p. 455). Once the exam is complete, the swabs, samples, and collections are hermetically sealed in a 10 inch by 12 inch box and sent to the police department responsible for the investigation. From there, the kits are sent to the department’s crime lab for testing. Although the kits may seem small, “their importance cannot be overstated—rape kits contain crucial forensic evidence often necessary to solve sexual assault investigations” (Jones, 2021, p. 1782).

The Problem The problem starts once these kits arrive at the police departments. Conservative estimates currently have the number of untested rape kits in the U.S. at somewhere between 200,000 and 400,000 (Campbell et al., 2017, p. 454). This is an estimate because without a comprehensive auditing process, there is no official data on the size of the national backlog (Jones, 2021, p. 1789).

As of 2017, large stockpiles of kits were found in the storage facilities of police departments in over five jurisdictions, with some cities having over 10,000 untested kits in their single city alone (Campbell et al., 2017, p. 454). Prior to the backlog receiving national attention, New York City had nearly 16,000 untested kits, Los Angeles County had 12,669, and Detroit had 11,341 untested kits (Fucci, 2015, pp. 198, 205). There are two components to the backlog at this stage in processing. First, one part of the backlog occurs when police departments collect and log a kit, but fail to submit the evidence to the crime lab for DNA analysis (the exact purpose of the kit) (Fucci, 2015, p. 197). These are referred to as unsubmitted kits. The second component occurs when the police departments do submit the kits to the crime lab, but the lab either fails to test the kit at all or before the statute of limitations runs out on a victim’s case (Strom et al., 2021). These are referred to as untested kits. “41-62% of SAKs collected at hospital emergency rooms and health care clinics are not submitted for DNA forensic testing” (Campbell et al., 2017, p. 454).

Importance of Testing To understand the impact the non-testing of kits has on survivors’ claims to justice, we first have to understand the power of the rape kit itself. The significance of the collected evidence is far reaching when it comes to DNA identification. Upon testing, any DNA collected and identified by the lab will be uploaded to the Combined DNA Index System (CODIS), the national database of DNA profiles of convicted offenders and developed from DNA left at crime scenes. Law enforcement agencies across the country use CODIS to match offenders to crimes currently under investigation, and DNA uploaded from one crime in one state can help investigators from another jurisdiction identify a perpetrator and solve their own cases. Thus, when rape kits are properly and timely tested, they can help identify an unknown perpetrator (whose DNA is already in CODIS for another violation), confirm the presence of a known suspect, affirm a survivor’s account of their assault, help solve open cases in other jurisdictions, and exonerate the innocent. Most importantly,

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DNA evidence provided in a kit can connect a suspect to other crime scenes, even those in other jurisdictions, and help catch serial rapists (Adlesic & Gandbhir, 2017).

Rape kit testing is especially crucial in the context of helping to identify serial rapists. While the majority of men (94%) do not commit sexual assault, of the 6% that do, 60% will rape more than once. In fact, repeat offenders average 5.8 rapes apiece (Marcotte, 2014). Properly testing the DNA contained in a SAK enables law enforcement to identify, apprehend, and prosecute an offender before he can commit additional sex crimes. In this way, rape kits are a powerful tool of crime prevention, as well as crucial to the immediate case at hand. When kits are not tested, valuable DNA evidence sits uselessly in a box while a perpetrator roams free, rendering “community members unprotected from sexual violence” (Jones, 2021). While testing a singular woman’s rape kit cannot change what happened to her, in testing her kit, we can prevent the same thing from happening to someone else.

The domino effect of untested rape kits was on full display in regards to Charles Courtney, a truck driver and serial rapist, whose known victims came forward in the 2017 HBO documentary, I Am Evidence. In 1996, Courtney abducted 17-year-old Helena at knifepoint in Los Angeles, California and assaulted her repeatedly. Helena agreed to undergo a rape kit exam in hopes that the DNA results would help find her attacker. Unbeknownst to Helena, and despite her various follow up inquiries, her kit sat in an LAPD warehouse – untested – for 14 years. In the meantime, Charles Courtney continued assaulting women all along his truck route from California to Ohio, including another woman in Fairfield, Ohio, in 1998, named Amberly. Amberly also agreed to undergo a rape kit exam, only for her kit to go untested for three years. When the results of Amberly’s kit finally came back, the DNA was a match to Courtney who was already in CODIS for a domestic dispute back in 1996. Soon after, LAPD finally tested Helena’s kit which also confirmed a match to Charles Courtney. One of the officers who worked on Amberly’s case referred to the 14 years Helena’s kit went untested as time “that a police department wasted in not taking care of its business.” Amberly believes “if [the police] would have taken it more seriously and believed Helena, and did their jobs and ran her rape kit in a timely manner, I would have never gotten raped because he would have already been caught” (Adlesic & Gandbhir, 2017).

Causes of the Backlog If the value of testing rape kits is so obvious, the natural next question is why is there a backlog? For years, police departments and their affiliated labs have claimed a lack of funding was behind their failure to test. In certain cities, this was absolutely the case. In Detroit specifically, the city did not even have enough money to maintain the storage facility the kits were stored in let alone foot the $1,000 to $1,500 cost to test a singular rape kit (End the Backlog, 2021). “For many jurisdictions, lack of critical resources (e.g., time, personnel, expendable finances) left [law enforcement agencies] prioritizing the investigation of cases that did not require forensic testing” (Strom et al., 2021, p. 4). In response to departments’ claims that funding was an issue, several federal initiatives were enacted to bolster individual police departments’ ability to test rape kits specifically. The first, passed in 2004, was the Debbie Smith Act (named after another sexual assault survivor whose rape kit went untested) which established the Debbie Smith DNA Backlog Grant Program. The goal of the program was to provide police departments with grants so they could assess the extent of their backlogs, test their kits, and improve the investigation and prosecution of sexual assault cases (Jones, 2021, p. 1790). Then in 2013, Congress passed the Sexual Assault Forensic Evidence Reporting (SAFER) Act, streamlining funds more directy to

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state and local governments to help them clear their backlogs. In 2016, President Obama, through his Justice Department’s grant program, allocated another $41 million directly to a Sexual Assault Kit Initiative, further empowering state and local authorities to test their kits (Jones, 2021, p. 1791).

Despite the federal funds specifically designated to address the problem, the backlog still persists, implying that there are underlying reasons besides cost that lead to a lack of action by law enforcement. In fact, “researchers who have worked with and helped train the police point to one factor: law enforcement’s abiding skepticism of women who report being raped.” Consequently, regardless of the promise of rape kits and adequate funding to test them, “police bias more often than not stands in the way of justice” (Jones, 2021, p. 1791). To be sure, police bias is no more problematic than that of the wider public, however, the issue is when rape culture – “in which sexual violence is treated as the norm and victims are blamed for their own assaults” – infiltrates the exact institutions responsible for safeguarding victims of sexual violence (Taub, 2014). Since only eight states have laws on the books that require the testing of rape kits, individual departments and officers exercise the utmost discretion when it comes to the decision to test and follow up on a kit (Adlesic & Gandbhir, 2017). “Allowing police officer discretion in the testing of rape kits creates the problem that officers and detectives blame the victim or disbelieve the survivor's statements” (Fucci, 2015, p. 205).

Influence of Rape Culture In 2019, Professor Eryn O’Neal set out to conduct a study to discern how exactly officer and detective biases – often a victim’s first point of contact in the criminal justice system – impact the treatment of a victim’s rape kit and case altogether. She interviewed 52 LAPD sex crimes detectives to understand their perceptions of the victims they were charged with helping. Her findings revealed that “it is particularly problematic that police officers, who often lack training on dealing with sexual assault cases [and] frequently rely on erroneous beliefs about victim credibility have the power to decide which cases to advance and which to drop without further investigation” (Jones, 2021, p. 1793). The detectives she interviewed consistently described their decision to advance a case/test a kit if the victim appeared to be “righteous,” characterized by “a woman who [did not] know her assailant, who fought back, [and] who has a clean record” (Jones, 2021, p.

1794). The detectives persistently articulated their ideas of what a real victim “should” look, sound, or act like. Often their ideas of a real victim were predicated on stereotypical behaviors such as demonstrating fear or anger, crying uncontrollably, and reporting the crime immediately and without hesitation. One detective was quoted as saying “a victim should be a complete hot mess.

They should be crying. They should be very, very traumatized” (Jones, 2021, p. 1793).

The behaviors these officers use to identify credible victims have “very little overlap with victims in actual rape cases” and indicate that “despite police knowledge of the laws they are expected to enforce, male police mentality is often identical to the stereotypical views of rape that are shared by the rest of male culture" (Fulton, 2018; Jones, 2021, p. 1974). Detectives described a righteous victim as one who didn’t know her assailant, yet four out of five victims of sexual assault do know their assailant (Jones, 2021, p. 1794). When these victims came forward, officers categorized their accounts as “buyer’s remorse” and a full 19.7% of officers surveyed agreed that women in those scenarios “secretly wish to be raped” (Jones, 2021, p. 1794). In regards to the detectives’ second criteria – that the victim tried to fight her attacker off – they fail to recognize the numerous ways women are unable to fight back in the midst of their attack. Some victims are held at gunpoint, otherwise threatened, drugged, unconscious when attacked, or experience tonic

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immobility, “a temporary state of motor inhibition believed to be a [biological] response to situations involving extreme fear” (Abrams et al., 2009). The tendency to typify “real” rape victims as presenting with certain criteria leads to attitudes that “blame the victim, question the victim’s credibility, imply the victim deserved being raped, and trivialize the rape experience” (Fulton, 2018). This was even more true for victims who the detectives perceived as lacking “moral character” (O’Neal and Hayes, 2020, p. 26).

A victim lacked moral character in the eyes of detectives if she was assaulted while under the influence of alcohol or drugs, was employed as a sex worker, had mental health issues, or had a perceived motive to lie (Fulton, 2018, p. 30). Some detectives even called for women to limit their use of alcohol, shifting the onus of sexual assault prevention to the victims themselves. One detective suggested women stop drinking altogether: “Ninety percent of our date rape cases involve alcohol. Women who drink find themselves in positions that make them vulnerable, make bad decisions, or are unable to battle back against a male’s advances even by just saying no.” He elaborated, saying, “If I had a daughter I would say, ‘don’t drink; don’t put yourself in those situations.’” Another detective claimed “we see a lot of self-victimization. Girls who go to Hollywood clubs and drink alone” (Fulton, 2018, p. 34). Thus, the prevailing attitude of detectives in regards to non-righteous victims was that they were complicit in their own attacks, leading them to be nearly four times as likely to question the credibility of complaintaints with these so-called “reputation issues” (O’Neal and Hayes, 2020, p. 29). “Consequently, and possibly unconsciously, these attitudes often shape the decision of whether to push forward with kit testing” (Fulton, 2018).

Ironically, detectives justified their decision not to forward kits for testing on the basis that these victims could not provide adequate corroboration, but “they fail to realize the kits do serve as corroborating evidence” (Fulton, 2018).

Erosion of Trust The impact of police biases on victims are far reaching. The rape kit backlog is tragic in and of itself in that it leaves victims without justice or closure, however, its damage extends much further to fundamentally erode trust in the criminal justice system. Mariska Hargitay, founder of the End the Backlog movement, asserts that “the rape kit backlog is the clearest and most shocking demonstration of how we regard these crimes” (Adlesic & Gandbhir, 2017). The backlog tells women their public safety doesn’t matter, “tells survivors that their rape does not matter, and sends a message to women that their bodily integrity does not warrant protection” (Jones, 2021, p. 1795).

It is no wonder, then, that sexual assualt is one of the most underreported crimes. In fact, a Department of Justice survey found that one in five women who had been sexually assaulted named the fact that “police would not or could not do anything to help” as their reason for not reporting the attack (Jones, 2021, p. 1796). Why would any woman volunarily report when she is almost guaranteed to be retraumatized by an invasive rape kit examination and a system that, at its core, looks for ways to undermine her account and leaves parts of her crime scene – her body – shelved for years on end? If women cease reporting, at what point do we stop pretending that rape is anything but a crime in name only? “For a survivor to come forward, to muster that courage and to then have nothing done about it, what are we saying? Who are we protecting? … By not testing the rape kits, we’re saying, ‘it’s ok, you can do it again’” (Mariska Hargitay in Adlesic & Gandbhir, 2017).

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As the issue of the nationwide backlog received increasing attention after news of Detroit’s backlog broke in 2009, an increasing number of survivors came out of the woodwork having found out that their kits, too, remained untested in cities across the country. While many of them took to advocacy efforts and renewed persistence in pressuring law enforcement to take their cases seriously, some decided to go a different route. They took the cities and police departments to court.

One of the more successful cases involved the Memphis Police Department (MPD) in the matter of Doe v. The City of Memphis. In March of 2001, Jane Doe was violently raped by an intruder who entered her home in the middle of the night. She agreed to a rape kit which was then transported to the MPD, “ostensibly for testing and to be used as evidence” (Jones, 2021, p. 1803).

Yet, over the next thirteen years, Doe’s kit was never tested despite her frequent inquiries regarding its status. At one point an MPD officer told her the kit had been tested and did not indicate a DNA match, only for Doe to later find out the officer lied to get her to stop calling and that the kit remained sealed. When the kit was finally tested, the DNA collected matched a man who had previously been convicted of aggravated rape and who, over the course of the thirteen years Doe’s kit remained shelved, sexually assualted several other women. In addition to Doe’s kit, it was discovered the MPD was sitting on over 15,000 untested rape kits.

In 2013, Doe brought suit against the city of Memphis, alleging it had a “policy, practice, and/or custom” of failing to submit SAKs for testing in violation of her constitutional right to equal protection enshrined in the Fourteenth Amendment. Her complaint alleged the city perpetually “afforded less protection to female victims of rape and sexual assault than to victims of other crimes” (Jones, 2021, p. 1803). She sought a preliminary injunction prohibiting the MPD from refusing to test rape kits. In order to be successful in an equal protection claim, plaintiffs must prove discriminatory intent on the part of the defendant, prove their constitutional denial was a result of state action, and that the state’s actions did not advance a legitimate government interest (Jones, 2021, p. 1810). In Doe’s case, she argued discriminatory intent could be inferred from substantial evidence that the police egregiously “fail to respond adequately to victims of sexual assault,” who are overwhelmingly female, by neglecting to follow up on DNA evidence. In regards to the second prong, Doe argued police officers were undoubtedly state actors operating under state authority and “the denial of police protective services has been held to be sufficient to make an equal protection claim” (Jones, 2021, p. 1818). Finally, Doe argued the state’s failure to test over 15,000 rape kits did not advance a legitimate interest. In fact, “not testing rape kits is ananthema to the important government interests of public safety and public trust in the government” (Jones, 2021, p. 1820). Testing the kits would only advance public safety in that it would help identify perpetrators and bring them to justice. While the city argued not testing kits served the government’s interest of efficiency and cost effectiveness, Frontiero v. Richardson (1973) established administrative ease as insufficient to constitute a legitimate government interest. The district court ruled in favor of Doe, inferring intent to discriminate based on “the lack of testing, the severe discriminatory effect, and the factual allegations that Defendant’s agents were consistently untruthful” (Jones, 2021, p. 1804). The Sixth Circuit, however, reversed the summary judgment and remanded the case for further discovery where it currently stands. Regardless, Doe’s case acts as an example of one of several routes victims might be able to use to pursue recompense.

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Aside from equal protection claims, more tangible policies can help victims get justice.

Cities such as Los Angeles, Detroit, and New York serve as model cities on this front. In 1999, New York City had approximately 16,000 untested rape kits in its possession. Since then, that number has dropped to zero with the city completely eliminating its backlog in 2003 (Fucci, 2015, p. 198). Similarly, Los Angeles and Detroit eradicated their backlogs in 2011 and 2021 respectively. Several policies have allowed these cities to do so. First, while many law enforcement agencies leave the decision to send kits for testing up to the discretion of individual detectives, these cities require testing of any and all rape kits that cross their desks (Fucci, 2015, p. 197). Not only do they require testing, but they require it to be done in a timely manner: between 30 and 90 days from date of submission (Golden, 2020). State legislatures have also designed inventory bills which would require jurisdictions to count kits in their possession and “have law enforcement agencies report that count to the legislature by a specified date, so that the legislature could fully understand the extent of the backlog” and appropriately allocate resources to ensure their timely testing (Fucci, 2015, p. 209).

Despite these cities’ incredible progress, they are still, unfortunately, the minority and inhibited by the lack of a federal tracking system. These cities face the “nationwide challenge of counting kits without a centralized database in which to input the backlogged kits where they can track [their] precise numbers and locations” (Fucci, 2015, p. 200). Thus, advocates recommend cities conduct an annual audit of their inventory and use an electronic tracking system to follow kits from their point of collection through their final disposition. At least 30 states have implemented an annual audit, but only five have passed laws that require electronic tracking (End the Backlog, 2021). As Wayne County prosecutor Kym Worthy claims, “if we can track our Amazon deliveries, we can track a rape kit with today’s technologies” (Adlesic & Gandbhir, 2017).

Finally, any solution to the backlog must be “survivor-centered and trauma-informed” (End the Backlog, 2021). Thus, advocates urge jurisdictions to create protocols for victim notification so victims are not left in the dark about the status of their kits. Such a practice would further hold law enforcement accountable for the timely testing of the kits, keep survivors in the loop and engaged in the criminal justice response to their case, and also support their healing as they can better appreciate the steps being taken on their behalf.

Conclusion As of 2021, Detroit became the last of the leading testing cities to completely eliminate its backlog. Among its first 2,000 kits tested after their discovery in a decrepit warehouse in 2009, 473 hits popped in CODIS, “including hits linking to crimes committed in 23 other states and the District of Columbia” (Fucci, 2015, p. 207). As of August 2015, when Detroit had successfully tested 10,000 of its 11,341 backlogged kits, 2,478 DNA matches had been found and 469 serial rapists were identified, with links to crimes committed in 39 other states (Fucci, 2015, p. 207).

Similar results arose in New York. After testing nearly 16,000 rape kits, 2,000 DNA matches were discovered, leading to the prosecution of over 200 cold cases (Fucci, 2015, p. 203). Unfortunately, for some victims, this was too little too late. By the time their kits were finally tested, the statute of limitations had run out on their cases, rendering their claims to justice essentially moot. Thus, a rape kit is more than a collection of swabs and forensic evidence. A rape kit represents an “opportunity to bring healing and justice to a survivor of sexual violence” (End the Backlog, 2021).

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On the flip side, if a rape kits goes untested, it acts as a vehicle of retraumatization: “In addition to being traumatized by the assailant, the survivors are traumatized by a system that forgot about them” (Fulton, 2018).

But the rape kit backlog is just a tangible symptom of a greater disease – one in which a criminal justice system and society at large continue to intrinsically doubt women’s claims about their own experiences and fail to exact punishment for perpetrating violence against women. Yes, eradicating the backlog on a national scale is an important step in bolstering survivors' access to justice, but it is just the beginning. Rather, the cultural assumptions that underlie the backlog and allow for its persistence must also be dismantled for victims to truly lay claim to the justice they so richly deserve.

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Abrams, M. P., Nicholas Carleton, R., Taylor, S., & Asmundson, G. J. G. (2009). Human tonic immobility: Measurement and correlates. Depression and Anxiety, 26(6), 550–556. https://doi.org/10.1002/da.20462 Adlesic, T., & Gandbhir, G. (2018, April 16). I Am Evidence. HBO. Campbell, R., Fehler-Cabral, G., Bybee, D., & Shaw, J. (2017). Forgotten evidence: A mixed methods study of why sexual assault kits (SAKs) are not submitted for DNA forensic testing. Law and Human Behavior, 41(5), 454–467. https://doi.org/10.1037/lhb0000252 End The Backlog. (2021, September 21). What Is the Backlog? End The Backlog. https://www.endthebacklog.org/what-is-the-backlog/ Fucci, G. E. (2015). No Law and No Order: Local, State, and Federal Government Responses to the United States Rape Kit Backlog Crisis. Cardozo Public Law, Policy, and Ethics Journal, 14(1), 193–227.

Fulton, S. (2018). The Rape Kit Backlog: The Continuous Hampering of Society’s Protection and Liberty Interests. Women’s Rights Law Reporter, 40(1/2).

Golden, V. (2020, February 14). Rape kits sit in labs, untested as required. Times Union. https://www.timesunion.com/news/article/Rape-kits-sit-in-labs-untested-as-required15056171.php Hagerty, B. B. (2019, July 22). An Epidemic of Disbelief. The Atlantic. https://www.theatlantic.com/magazine/archive/2019/08/an-epidemic-of-disbelief/592807/ Jones, E. (2021). Untested and Neglected: Clarifying the Comparator Requirement in Equal Protection Claims Based on Untested Rape Kits. Northwestern University Law Review, 115(6), 1781–1828.

Marcotte, A. (2014, May 1). Rape Victims Are Common. Rapists Are Not. Slate. https://slate.com/human-interest/2014/05/campus-sexual-assault-statistics-so-manyvictims-but-not-as-many-predators.html O’Neal, E. N., & Hayes, B. E. (2020). “A Rape Is a Rape, Regardless of What the Victim Was Doing at the Time”: Detective Views on How “Problematic” Victims Affect Sexual Assault Case Processing. Criminal Justice Review, 45(1), 26–44. https://doi.org/10.1177/0734016819842639 Strom, K., Scott, T., Feeney, H., Young, A., Couzens, L., & Berzofsky, M. (2021). How much justice is denied? An estimate of unsubmitted sexual assault kits in the United States.

Journal of Criminal Justice, 73, 101746. https://doi.org/10.1016/j.jcrimjus.2020.101746 Taub, A. (2014, December 15). Rape culture isn’t a myth. It’s real, and it’s dangerous. Vox. https://www.vox.com/2014/12/15/7371737/rape-culture-definition

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STATE FAILURE TO RESPECT THE HEALTH OF THE TERRE HAUTE PRISON COMMUNITY DURING THE 2020 CORONAVIRUS OUTBREAK

by Eleanor Mallett On the outskirts of a small city in rural Indiana lies the United States Penitentiary (USP) Terre Haute. The high security federal detention center is unique because it contains a Special Confinement Unit, more commonly known as death row, and execution chamber where almost all federal executions have taken place since 1993. This past year during the historic outbreak of COVID-19 (coronavirus) penitentiaries have been the site of some of the worst outbreaks and death rates of the virus due to overcrowding and poor sanitary conditions. The 2020 Terre Haute coronavirus outbreak is a microcosm of a deeper problem in the U.S. prison-industrial complex where basic human rights, such as health, are frequently disregarded and systematically harmed.

This essay will dive deep into the relationship of duty between the state and the inmates of USP Terre Haute. Using Michael Krennerich’s theory from his book Healthcare as a Human Rights Issue of the state obligation to respect the human right to health, I will show how inmates’ lives were jeopardized through a series of specific harmful actions by the federal government.

The story of the Terre Haute outbreak begins in summer 2020 when President Trump’s term in office was coming to an end. The administration decided to accelerate the federal execution schedule, putting a man to death for the first time in seven years, the first woman in 67 years, and fast-tracking the death sentences of 13 total death row inmates. All of these executions took place at USP Terre Haute by lethal injection (Death Penalty Information Center, 2020a). The American Civil Liberties Union was able to obtain documents from the Federal Bureau of Prisons (BOP) through the Freedom of Information Act which revealed the timeline of events that led to the Terre Haute COVID-19 outbreak. In the days leading up to the first execution on July 14th, a BOP staff member from the Special Confinement Unit tested positive for the coronavirus. The staff member was involved in carrying out executions and was reported to have had “a lot” of close contact with several inmates and other staffers and repeatedly did not wear a mask while working (ACLU, 2020). The BOP conducted limited contact tracing and testing after the employee’s positive test result. A staff testing document shows that the BOP tested just 22 staff members who were exposed to the infected staffer even though the ACLU reports “the BOP infected staff member attended training meetings of teams described as comprising 50 members, in addition to his contact with multiple staff within the prison. BOP did not even offer testing to all staff exposed, let alone follow up on that testing” (ACLU, 2020). Furthermore, the BOP adopted a policy that permits infected staff to return to work after 10 days without symptoms and without being retested, instead of the 14 days and a negative test that most public health experts recommend including the Centers for Disease Control (Baptiste, 2020).

The institutional failure to follow basic health guidelines on part of the BOP had disastrous consequences on death row and proceeded to affect the larger Terre Haute community. The ACLU concluded their investigation with the following figures: According to the BOP’s website, there were 206 people at Terre Haute Correctional Complex who have tested positive for COVID-19 on September 18. Two weeks before the first federal execution took place there, there were 11 positive cases. This is likely a serious undercount: The BOP has only administered 722 tests since March, less than a third of the 2,397 people incarcerated there (ACLU, 2020).

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Although the BOP has not released updated coronavirus information in 2021, it was reported that as of December 17th, more than 300 inmates at Terre Haute have tested positive with 45 new cases springing up in just 10 days (Death Penalty Information Center, 2020). As of the last update in September, six inmates have died from the virus (Baptiste, 2020). With spotty reporting from the BOP, an updated number of people affected by the virus at Terre Haute has not been publicized.

For the sake of this essay I will hone in on how BOP’s failure to test and contact trace according to CDC standards breached the human right to health. However, in addition to these infractions several other relevant concerns have been raised about the conditions that made Terre Haute such a hotbed for COVID-19. Monica Foster, a lawyer for one of the condemned men on death row is quoted saying, “The quick spread is unsurprising because of poor ventilation in the special confinement unit” (Fuchs, 2020). Her other client on death row, Nolan Holder, has been unable to access a computer to refill his epilepsy medication. Another contributing factor to the Terre Haute outbreak is that incarcerated people suffer unique health challenges compared to the general public, making them more susceptible to the virus (Cohen and Lauren-Brooke, 2021; Cloud 2020). In addition to these contributors: staff members not always wearing masks, crowding and poor ventilation in the prison facility, and the underlying health conditions of inmates, medical services were also not sufficiently available to infected inmates. Multiple lawyers reported that a doctor had still not come to the prison a week after the initial positive tests (Trigg, 2020).

The final contributor to the outbreak was the physical gathering that took place at each individual execution. According to the New York Times, “executions are conducted in a separate building on the Terre Haute campus from where the inmates live, the process draws tens if not hundreds of people to the federal prison complex and the area around it, including protesters, witnesses, lawyers, media personnel and Bureau of Prisons employees” (Fuchs, 2020). Due to the State of Emergency of the pandemic that was declared by Indiana Governor Eric Holcomb in late March, physical gatherings of more than 10 people were prohibited in the state at the time that the executions began taking place. Each federal execution brings in a specialized team of technicians, spiritual advisors, friends and family of the condemned, reporters, protesters, and legal teams. To make matters worse, Vigo County where Terre Haute is located had one of the highest COVID-19 rates in Indiana (Tarm, Balsamo, and Sisak, 2021). The state’s decision to hold executions despite these social distancing mandates essentially drew people into a coronavirus hotbed. At this juncture it is important to distinguish the two separate storylines running parallel here: first, the Trump Administration rushing to execute people in the middle of a deadly pandemic risked the health of a vulnerable community. Second, the federal government did not provide basic health services to citizens who had a right to them. This first narrative links Trump’s agenda to execute people with the COVID-19 outbreak in Terre Haute. This relationship is probably true, however, it is based on the general context of Trump’s attitude toward the pandemic and his various political motivations.

Since it is difficult to identify the exact victims and duty-bearers involved in this storyline, any definitive claims about Trump violating human rights are challenging to support with human rights theory. In the second narrative, however, there is a direct, evidential link between the state’s insufficient health practices in the prison and the outcome on public health. After laying out all of the information relevant to the outbreak, we are finally able to bring the picture into focus – the state’s failure to provide basic health services to citizens caused avoidable illness and death, and it should be questioned under a critical human rights framework.

To provide logic and theoretical support to this claim, we can look to human rights theorist Michael Krennerich, particularly his chapter The Human Right to Health, Fundamentals of a Complex Right in a section where he delineates the state’s obligation to respect the human right to

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health of its citizens. His argument is built on the understanding that when we talk about rights, we are talking about relationships of duty. Rudimentary human rights theory proclaims that the presence of a right creates an obligation. This relationship looks like the following: A has a right to x via B. Regardless of an individual’s morality or varied societal conceptualizations of ‘right and wrong’, a human right is indisputable and exists simply because we exist. In this relationship, A is each citizen, x is their health, and B is the state. A is allowed to claim their right because of the title they hold. Some critics may argue that ‘title’ becomes complicated in the case of incarcerated people because the state does not see them as citizens. Authors such as Lisa Guenther write about the dehumanization of incarcerated people and how that facilitates the state’s abuse of their human rights. For the sake of this paper I have chosen to dissolve this criticism by claiming that incarcerated people must count as citizens in our human rights framework. To endorse this assumption, Krennerich explicitly includes prisoners in a list of marginalized groups who deserve respect from the state: Here it needs to be examined whether laws, regulations or just the practice in public health facilities deny or hinder open access to specific population groups or individuals. This could be, for example ethnic groups or national minorities, persons with disabilities, the psychologically ill or women, but also foreign nationals, refugees, »irregular« migrants or prisoners. (Krennerich, 2017, p. 33) After establishing that incarcerated people can claim the ‘title’ of citizens, we can move forward with analyzing the question of what the state owes to all citizens.

If A has a right to x via B, and A can claim x because of their title (a citizen), then B is officially obligated to act in a manner that respect’s A’s right. This brings us to the question of how we value x, and more specifically, what does it look like when B is not respecting A’s right to x?

Krennerich provides significant insight into this question in his chapter on the state obligation to respect. He begins by defining this phrase: “obligations to respect require the states to refrain from infringing the right to health themselves. The states may not therefore undertake any actions which run contrary to the right to health and which can result in bodily harm, unnecessary morbidity and preventable mortality” (Krennerich, 2017, p. 29). He goes on to ask, “What could such actions be?

With regard to healthcare this encompasses generally all state actions which impede the availability, access to, or adequateness and quality of healthcare to such an extent that the health of the people is endangered or harmed” (p. 29). With this framework in mind, let us think back to the story of USP Terre Haute and COVID-19.

The BOP, a federal agency representing the state, committed multiple infringements of the human right to health of the men on death row. First, after not regulating mask-wearing around the facility, they did not test everyone who came into contact with the infected staff member. Next, they allowed employees who tested positive to return to work after 10 days with no symptoms rather than the CDC’s standard: 14 days of isolation and a negative test. Then, the BOP failed to adequately trace the positive case. Following this, tests were not provided by the prison to staff members, they had to obtain them individually at nearby drugstores. Lastly, inmates reported to their lawyers that medical aid was not accessible – some symptomatic individuals got moved to the hospital, but for at least the first week no doctor was available and inmates with underlying health conditions were not able to access medication refills while in isolation. The state’s actions compounded, producing a serious COVID-19 outbreak in the Terre Haute community that endangered everyone involved in federal executions, especially inmates.

The BOP’s actions directly echo the examples that Krennerich provides for state failure to respect the right to health. His phrase “unnecessary morbidity and preventable mortality” becomes

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relevant when we compare the measures taken to prevent Coronavirus in USP Terre Haute to the general community. For example, the state of Indiana instituted a contact tracing system that immediately notifies close contacts of a positive case. The governor also issued a stay-at-home order that shut down crowded public events such as sports games and concerts, as well as all bars, restaurants, movie theaters, and any gathering larger than 10 people. Testing was available to any symptomatic or asymptomatic resident of Indiana for free (Indiana University Health, 2021). These were the resources available to the average citizen, but not to the inmates at Terre Haute. This comparison allows us to see how the state had the resources to prevent the outbreak, but did not make them available to the incarcerated population in the same way that they did to the general public, further confirming the “preventable mortality” of the situation. If the BOP had made these resources available to the inmates of Terre Haute, perhaps the initial outbreak would have been contained and overall mortality would have looked different.

Krennerich adds that nondiscrimination is an important aspect of the state obligation to respect. He writes, Everybody must also have access to medical facilities and treatment – in several respects: without discrimination, also and in particular in the case of population groups which are especially in need of protection and marginalised. Physically, i.e. within easy reach and accessible – in particular to women, children, older people and people with chronic diseases or disabilities; economically – in such a way that public or private medical facilities and treatments are affordable for everybody, including poor and socially disadvantaged people; informed – in the sense that the people have the right to seek, receive and pass on healthrelevant information as long as in doing so the personal protection of legitimate expectations is not affected. (Krennerich, 2017, p. 36) This is a salient point because incarcerated people fall under most of these marginalized groups: economically disadvantaged, older in age, and experiencing chronic diseases and mental and physical disabilities (Federal Bureau of Prisons, 2021b). Additionally, the Terre Haute community did not have equal access to health-relevant information as evidenced by the BOP’s failure to accurately report cases (ACLU, 2020).

Krennerich provides a theoretical backbone for the claim that the state failed to respect citizens’ human right to health. He lays out the infractions that would constitute a breach of this right, several of which match the actions taken by the BOP to allow the virus to spread through death row and end in multiple mortalities. The state did not fulfill its obligation, causing the relationship of duty to collapse and the inmates’ human rights to be definitively disrespected. The COVID-19 outbreak at USP Terre Haute tells a grave story of prison conditions in the United States and calls into question the health services that our government owes every American. Illuminating this specific human rights violation can hopefully contribute to a larger conversation regarding the rights that continue to be denied to incarcerated people.

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American Civil Liberties Union. (n.d.). Federal Executions in the Time of COVID-19. American Civil Liberties Union. Retrieved April 3, 2021, from https://www.aclu.org/other/federalexecutions-time-covid-19 American Civil Liberties Union. (2020, September 21). BOP Data Show Federal Executions Likely Caused COVID-19 Spike. American Civil Liberties Union. https://www.aclu.org/press-releases/bop-data-show-federal-executions-likely-caused-covid19-spike Baptiste, N. (2020, September 21). The Trump Admin’s Execution Spree May Have Caused a Coronavirus Outbreak. Mother Jones. https://www.motherjones.com/crimejustice/2020/09/the-trump-admins-execution-spree-may-have-caused-a-coronavirusoutbreak/ Cloud, D. (2020, December 8). On Life Support. Vera Institute of Justice. https://www.vera.org/publications/on-life-support-public-health-in-the-age-of-massincarceration Cohen, A., & Lauren-Brooke, E. (2021, March 29). Reducing Jail and Prison Populations During the Covid-19 Pandemic. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/reducing-jail-and-prisonpopulations-during-covid-19-pandemic Crime and Justice Institute. (n.d.). Justice system responses to COVID-19. Crime and Justice Institute. Retrieved April 3, 2021, from https://www.cjinstitute.org/covid/ Death Penalty Information Center. (2020a, September 22). ACLU: Documents Show Federal Executions Likely Caused Prison COVID-19 Outbreak. Death Penalty Information Center. https://deathpenaltyinfo.org/news/aclu-documents-show-federal-executions-likely-causedprison-covid-19-outbreak Death Penalty Information Center. (2020b, December 21). Federal Prisoners Facing Execution Contract COVID-19 in Outbreak Spread by Prior Executions. Death Penalty Information Center. https://deathpenaltyinfo.org/news/federal-prisoners-facing-execution-contractcovid-19-in-outbreak-spread-by-prior-executions Federal Bureau of Prisons. (2021a). BOP: COVID-19 Update [Federal Bureau of Prisons]. https://www.bop.gov/coronavirus/ Federal Bureau of Prisons. (2021b). BOP Statistics: Average Inmate Age. Federal Bureau of Prisons. https://www.bop.gov/about/statistics/statistics_inmate_age.jsp Fuchs, H. (2020, December 21). Virus Hits Federal Death Row, Prompting Calls for Delays in Executions. The New York Times. https://www.nytimes.com/2020/12/21/us/politics/coronavirus-death-row-executions.html Indiana University Health. (2021, March 27). COVID-19 Resource Center. Indiana University Health. https://iuhealth.org/covid19 Krennerich, M. (2017). The Human Right to Health. Fundamentals of a Complex Right. In K. Sabine (Ed.), Healthcare as a Human Rights Issue (pp. 23–54). Transcript Verlag. http://www.jstor.org/stable/j.ctv1fxf7w.4 Press, M. Y. (2018, February 26). How Bad is Prison Health Care? Depends on Who’s Watching.

The Marshall Project. https://www.themarshallproject.org/2018/02/25/how-bad-is-prisonhealth-care-depends-on-who-s-watching

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Tarm, M., Balsamo, M., & Sisak, M. R. (2021, February 5). Federal executions in Terre Haute likely a COVID-19 superspreader. Associated Press. https://www.indystar.com/story/news/2021/02/05/covid-terre-haute-indiana-death-rowfederal-executions-superspreader-events/4413089001/ The Marshall Project. (2021, March 25). A State-By-State Look at 15 Months of Coronavirus in Prisons. The Marshall Project. https://www.themarshallproject.org/2020/05/01/a-state-bystate-look-at-coronavirus-in-prisons Tribune-Star Staff Report. (2021, February 10). 6th inmate at Terre Haute federal prison complex dies of COVID-19. Terre Haute Tribune-Star. https://www.tribstar.com/news/6th-inmateat-terre-haute-federal-prison-complex-dies-of-covid-19/article_ccefbd7a-6bad-11eb-89f0bfca9a06200b.html Trigg, L. (2020, December 23). COVID-19 soars at Terre Haute federal prison complex. Terre Haute Tribune-Star. https://www.tribstar.com/news/covid-19-soars-at-terre-haute-federalprison-complex/article_57a3ad58-4464-11eb-b444-0702db9b765d.html

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Wellesley Law Journal SCHOOL FUNDING IN TEXAS

by Laila Rouhi

“A child’s zip code should never determine their future” is a tirelessly overused and meaningless slogan. Although an accurate statement, policymakers have repeatedly failed to move forward with an equitable funding system for education in Texas. The Texas Education Agency (TEA) executes the funding plan, Foundation School Program (FSP) and other wealth equalization provisions such as Robinhood aiming to properly fund public schools across the large state.

Unfortunately, the FSP is a failure and current attempts to improve the system are also currently failing underfunded districts and wealthier districts that are subject to recapture. Additionally, since the largest contributor to funding for schools are property taxes, this fosters a stark divide between the local revenue streams for wealthy and poor districts.

Three broad areas of research inform the current study. The first assesses the importance of funding equity among school districts across Texas and how equal access to education is a fundamental right rather than a luxury. A second set of studies focuses on assessing how the current funding system for the education system in Texas is inadequate with a few analytical examples.

The third area of research will propose measures to repair the broken funding system of public education in Texas.

The Effects of Funding Inequity. Why Does It Matter?

There are a multitude of benefits to educating a population. Education provides the clearest path out of the generational poverty cycle, it increases individual earnings, promotes economic growth, and should in theory, significantly reduce economic inequality. For these reasons, it is crucial that all students have equal access to an education without stark disparities between the quality of education. School districts with higher funding have on average, better facilities such as science labs, music classrooms equipped with new instruments, and adequate gyms. They also have better educated, higher quality teachers with a lower turnover rate. These factors contribute to a significantly different academic background for a student in a highly-funded district when compared to a low-funded district.

Inadequate funding negatively affects student outcomes. A study conducted by Kreisman and Steinberg (2018) analyzes the size adjustment funding provision for increased funding for geographically large districts and low student enrollments. Although this provision fails because it benefits some rural districts and not others, there were proven positive outcomes within the districts that received additional funding. The authors found that the districts that did qualify for the funding had significantly higher student achievement outcomes, such as higher standardized test scores in reading and math, higher rates of graduation and participation in college when compared to the other rural districts that did not receive the additional funding. It is crucial to note that these positive effects were found most impactful among districts that had higher percentages of economically disadvantaged students, and English Language Learners (ELL.) To ensure that students in economically disadvantaged communities are equally benefiting from the educational system, the Texas funding plan needs to equally fund all rural districts and properly decide which schools should receive additional benefits such as the stated funding provision for rural schools.

Additionally, a study conducted by Baker (2012) found that in the five large urban school districts located in: Houston, Dallas-Fort Worth, Austin, and San Antonio, the teachers employed in these

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schools were of significantly lower quality when compared to their neighboring districts. The teachers employed by these massive urban districts were more likely to have failed the state certification exam and these districts had a higher student ratio per teacher employed than other nearby schools.

Throughout this paper, I will draw analysis from several sources and cross-compare several districts to prevent subjective cherry-picked evidence. I will also analyze the Eanes ISD and Spring ISD districts which were two districts I had personally attended in Texas, which ultimately fostered my passion towards understanding why districts can have such incredibly different budgets and resources.

How Robinhood and M&O Taxes Place an Undue Burden on Local Districts Texas currently funds its schools through the Texas Foundation School Program (FSP) which manages state and local funding for public and charter schools through the three tiered system: TIer 1, Tier 2, and Tier 3 which plates into the Robinhood system of “recapture.” Robinhood recaptures the “excess” money earned by wealthier districts through their local taxes and distributes it to lower-income schools in the surrounding areas. This ensures that the amount of money that highproperty wealth districts generate is capped and recaptured to fund property-poor districts. When I attended the wealthy district, Eanes ISD, the school was subject to heavy recapture, which disenfranchised the school from having enough funding. The attempted equalization was not equal for Eanes ISD and surrounding districts as the other districts received significantly more funding due to higher percentages of ELL and Title 1 students.

In order to understand the specific mechanisms of the tiered funding system, understand that for property-rich districts, any money earned from the first $1.00 per $100 of property tax value above $5,140 is “recaptured” through Robinhood and redistributed to less affluent districts so that the districts would be able to meet their goal of $5,140, because it is assumed low-income districts cannot meet this standard which is why they recapture money from wealthier districts. To put this into context, without the Robinhood recapture plan, a wealthy district with an average property value of $950,000 per student would receive $9,500 per student (for the first $1.00 per $100 of property wealth) just for Tier 1 funding. This figure of $9,500 would have been significantly higher than the basic $5,140 given to lower-income districts, so the additional $4,360 would be taken from the wealthier district for redistribution to low-income districts. Tier 1 funding also gives additional funding for Bilingual students, special education, gifted and talented, and career, technology and education programs (CTE).

During the last fiscal year, Tier 1 funding composed approximately 87% of state and local funding for schools while Tier 2 only composed 10%. The calculation of Tier 2 funding uses the weighted average daily attendance (WADA) of a district. To understand how Tier 2 funding functions, it is crucial to understand the concept of “golden pennies” and “copper pennies” in relation to recapture and tax efforts. First, for a district to be eligible for Tier 2 funding, they need to tax at a rate greater than $1.00 per every $100 of property value but not greater than $1.17. The concept of obtaining revenue from tax rates is unequal, as property-rich districts who maintain the same tax rate as a property-poor district will earn significantly more per WADA. Property-poor districts earn $27.53 per penny of tax effort per WADA, whereas property-rich districts earn $95.00 per penny of tax effort per WADA. The current plan to solve for the disparity in tax revenue is the state providing additional funds to property-poor districts through the penny-based system. Golden pennies refers to the pennies of the additional tax rate from $1.00-$1.06 per $100 of property wealth

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and copper pennies as the pennies of the additional tax rate from $1.07-$1.17. Texas guarantees that property-poor districts will receive $77.53 per golden penny ($1.00-$1.06 per $100 of property wealth) and $31.95 per copper penny ($1.07-$1.17). These guarantees are the absolute bare minimum for poor-districts and provide another reason why property-poor districts receive less funding than property-rich districts.

In regards to the Robinhood recapture policy, it only applies to the “copper pennies” of additional tax effort between $1.07-$1.17 of the tax rate per $100 of property wealth and not the “golden pennies.” At a disadvantage to property-rich districts that tax above a rate of $1.06 per $100 of property wealth, most of their additional funding would be “recaptured” and distributed to property-poor districts. Texas recaptures above the $1.06 mark because Texas policy has set a maximum of $3,195 of tax funding per student in attempts to maintain equity. This ensures that the amount of money that high-property wealth districts generate is capped and recaptured to fund property-poor districts. When I attended the wealthy district, Eanes ISD, the school was subject to heavy recapture, which disenfranchised the school from having enough funding. Further in-depth analysis on this example will be completed in the next few pages.

Tier 3 is of less importance than the other two as it only composes 3% of total state funding for schools in Texas. Tier 3 essentially subsidizes school facilities debt and offers specific funding for facilities through the two state programs: the Instruction Facilities Allotment (IFA) and Existing Debt Allotment (EDA.) With the IFA, districts can apply for funding to pay off their debt on specific bonds related to construction of instructional facilities. Through the EDA program, districts are guaranteed $35 per average daily attendance (ADA) per penny on the I&S taxes levied. This money is often used to pay faculty or interest on bonds (Texas Education Agency, 2017).

Aside from the tiered funding system, it is crucial to acknowledge other current downfalls for the funding system. In Texas, local property tax revenue is the largest source of revenue for school districts. Theoretically, state revenue was intended to cater to poorer districts in balancing the inherently inequitable system that arises from funding districts on local property taxes. But, state revenue has drastically declined, when instead it should increase progressively throughout the years to account for inflation, higher costs, and increasing student populations. It is estimated that the decline in state revenue for schools was close to 12.6% per pupil between 2008 and 2017, despite a 13.7% increase in student enrollment (Knight, 2017). This has further burdened poorer districts to scrounge for additional revenue and wealthier districts in reducing their rightfully earned funding from local property taxes. When the state reduced education funding, the burden of the cuts fell most heavily on districts that contain higher demographics of students in poverty and emergent bi-lingual students (Knight, 2017).

As stated before, Texas schools are funded by local and state tax revenues. Local tax revenues are collected by districts through annual property taxes and school bonds. They are generated through Maintenance and Operation (M&O) taxes which pay for operating expenses and salaries of faculty. Additionally, Interest and Sinking (I&S) taxes are used to repay school bonds.

It’s important to note that local taxes (property taxes) provide the majority of funding for Texas schools which is a reason why there is such inequity. Federal funding is also incorporated into funding for Texas schools, but the figure is not entirely significant. Even still, some lower-income districts receive 5.5% less federal funding than other similar low-income districts (Knight, 2017).

Additionally, any excess money earned through M&O taxes are recaptured and redistributed through Robinhood.

Robinhood recapture is a horrible funding scheme implemented by the Texas government to progressively reduce state funding for schools, placing a bigger burden on the need for local tax

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revenues (which fosters inequity), which allows the state government to take this money and use it for items not related to public education. In Austin, Texas more than half of all district’s local property taxes go to the state. In order to reduce recapture, lawmakers should increase the basic allotment that the state provides for every student instead of decreasing it.

Wealthier districts in Austin become more disenfranchised after recapture than their counterparts. The wealthy district of Eanes ISD in Austin, Texas, is primarily funded through local school property taxes (Eanes Independent School District, 2021b). These M&O taxes largely compose their general fund which is entirely controlled by the state. Eanes ISD uses this fund to pay for operations such as; payroll, supplies, maintenance, etc, but the largest cost in the general fund is the Robin Hood recapture which significantly reduces the dollars available for operations within the district. Eanes ISD is unable to rely heavily on this fund, as an increasing portion of local tax dollars are being taken away and used for budget items that are not related to public education.

To quantify, the current tax rate in Eanes ISD is the lowest of the eight surrounding school districts, of 1.06. For the owner of a $500,000 home in the district, the estimated 2019 tax bill is $5,423, which 53% of it at $2,549 would be subject to recapture. Additionally, according to the 2021-2022 Adopted Budget for Eanes ISD, the district had a total estimated revenue of $184,334,049, but after their recapture payment taking $102,556,577, they were left $81,777,472 which is significantly less than half of their initial estimated revenue (2021).

Robin Hood sounds feasible in theory for serving underprivileged communities, but it should not be heavily at the expense of other students who exist on a higher socioeconomic level.

Additionally, in July of 2021, the superintendent, Tom Leanord spoke about the financial situation that Eanes ISD is facing. He stated that Eanes ISD has significantly less money than the majority of other districts per student. Federal relief money (ESSER) was given to schools due to the pandemic, but he stated that ESSER money was dependent on the amount of their Title 1 students, of which they have less than 5 percent. For every Eanes ISD student, they received $1 compared to $16 per every Austin ISD child. This totaled only $1.8 million in ESSER funds for Eanes ISD and $242 million for Austin ISD (Karmout, 2021). Because of the large lack in funding, Eanes ISD was unable to remain virtual during the pandemic and return to in-person education much quicker than Austin ISD. There are rising tensions between wealthier and poorer districts in regards to recapture.

Both types of districts are upset that the state only contributes a small portion of district funding which places a heavy burden on local property tax funding. Wealthy districts do not like that a large portion, sometimes more than 50% of their funding is being taken by state for recapture (and sometimes not even used for educational purposes) meaning that poorer districts will get the same per student funding in addition to generous additional Title 1, ELL, and disability funding. And lastly, poorer districts are naturally upset that they don’t have enough funding from local property tax or the state to adequately compare to wealthier districts. For example, between the wealthy district of Eanes ISD and a poor district, Spring ISD near Houston, they share the same per pupil expenditure figures yet perform incredibly differently. Perhaps equal expenditure is not enough.

According to a research paper by Bringham in 2007, Eanes ISD had an RPT Index of 1.33 which substantially exceeds equality (an RPT index of 1 is equivalent to perfect equality) whereas Spring ISD barely met equality at an RPT index of 0.99. The RPT index compares revenue to population as a simplified method of analyzing available funding for districts by dividing the percentage of funds available by Weighted Average Daily Attendance (WADA). This shows how unequal both are, but Eanes is more advantaged and Spring is significantly less advantaged than Eanes. Although they are very unequal, they spend roughly the same amount on students. Spring ISD spends $9,844

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per student and Eanes ISD spends $10,251 per student. These two districts are comparatively similar in size and location, but the student outcomes and demographics are astronomically different. This is a seemingly “successful” example where recapture equalizes education spending for two districts, but even in cases where it appears to “work”, student outcomes for these two districts prove otherwise. For Eanes ISD, only 3% of the district is economically disadvantaged and 31% are considered minorities, whereas Spring ISD has an 84% minority enrollment and 66% (more than double) are considered economically disadvantaged. To compare student outcomes, US Best News states that for Eanes ISD, students had a 99.8% graduation rate, 73% college readiness, and 83% of students took AP courses, whereas in Spring ISD, students had a 84.1% graduation rate, 16% college readiness, and 47% of students took AP courses which are rates significantly lower than Eanes.

Proposed Measure to Repair Broken Funding System There is not a perfect, one-size-fits-all solution to funding districts, which is why every state in the United States has a different way they fund their districts. But Texas policymakers need to completely reconsider how to fund their schools and radically change the current system in place.

A possible solution could include abolishing the M&O school property tax and replacing it with a consumption tax (sales tax) or other source other than income tax (doesn’t exist in Texas) or property tax that will also broaden the tax base. Lawmakers should increase the sales tax incrementally to not discourage economic transitions significantly while reducing expenditures in other areas, which also incorporates the elimination of wasteful spending. Additionally, during the last legislative session, a state representative suggested increasing the motor fuel tax which already funds 25% of education in Texas. The use of these methods could remove the burden on school districts to raise funding from local property taxes and inadequate state funding.

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Baker, B. D. (2012). Rearranging Deck Chairs in Dallas: Contextual Constraints and WithinDistrict Resource Allocation in Urban Texas School Districts. Journal of Education Finance, 37(3), 287–315.

Bigham, G., Nix, S., & Hayes, A. (2014). Small Texas School Districts’ Response to State Funding Reductions. Rural Educator, 36(1). https://eric.ed.gov/?id=EJ1225577 Bingham, W., Jones, T. B., & Jackson, S. H. (2007). Examining Equity in Texas Public School Funding. International Journal of Educational Leadership Preparation, 2(1). https://eric.ed.gov/?id=EJ1066695 DeMatthews, D., & Knight, D. S. (2018, October 9). Texas Needs to Fund Its Public Schools Differently. UT News. https://news.utexas.edu/2018/10/09/texas-needs-to-fund-its-publicschools-differently/ Eanes Independent School District. (2021a). 2022 Adopted Budget June 22, 2021 for Fiscal Year July 1, 2021—June 30, 2022. Eanes Independent School District. https://resources.finalsite.net/images/v1635191778/eanesisdnet/phibqdgzdpdz7hw4kjwl/20 21-22AdoptedBudget.pdf Eanes Independent School District. (2021b). The Facts: How is the school district funded? (p. 2).

Eanes Independent School District.

Karmout, K. (2021, July 27). Lack of federal funds in Eanes ISD prevents virtual learning option.

KXAN Austin. https://www.kxan.com/news/education/lack-of-federal-funds-in-eanes-isdprevents-virtual-learning-option/ Knight, D. S. (2017a). Are High-Poverty School Districts Disproportionately Impacted by State Funding Cuts? School Finance Equity Following the Great Recession. Journal of Education Finance, 43(2), 169–194.

Knight, D. S. (2017b). Are High-Poverty School Districts Disproportionately Impacted by State Funding Cuts? School Finance Equity Following the Great Recession. Journal of Education Finance, 43(2), 169–194.

Kreisman, D., & Steinberg, M. P. (2019). The effect of increased funding on student achievement: Evidence from Texas’s small district adjustment. Journal of Public Economics, 176, 118–141. https://doi.org/10.1016/j.jpubeco.2019.04.003 McCann, A. (2021, August 3). Most & Least Equitable School Districts in Texas. WalletHub. https://wallethub.com/edu/e/most-least-equitable-school-districts-in-texas/77134 National Center for Education Statistics. (n.d.-a). Search for Public Schools—School Detail for SPRING H S. National Center for Education Statistics; National Center for Education Statistics. Retrieved December 15, 2021, from https://nces.ed.gov/ccd/schoolsearch/school_detail.asp?Search=1&DistrictID=4841220&Sc hoolPageNum=3&ID=484122004720 National Center for Education Statistics. (n.d.-b). Search for Public Schools—School Detail for WESTLAKE H S. National Center for Education Statistics; National Center for Education Statistics. Retrieved December 15, 2021, from https://nces.ed.gov/ccd/schoolsearch/school_detail.asp?Search=1&DistrictID=4817760&ID =481776001549 Texas Education Agency. (2017). State Funding. Texas Education Agency. https://tea.texas.gov/finance-and-grants/state-funding

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The Kinder Institute for Urban Research. (2020, August 13). Per-student spending and state funding are lagging in Texas. Meanwhile, the window is closing on an accurate census count. The Kinder Institute for Urban Research. https://kinder.rice.edu/urbanedge/2020/08/13/census-count-spending-per-student-statefunding-schools-Texas

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RIGHT TO ASYLUM IN ISLAMIC REFUGEE LAW AND INTERNATIONAL LAW: ISSUES IN MODERN REFUGEE RESPONSE

by Clara Shanabrook Before the inception and codification of international law, religious law provided fundamental guidelines for how individuals, groups, and states should interact with one another.

Institutions of religious law established the right of protection for the most vulnerable, as well as the processes by which this should occur. Within Islamic shari’a law “man’s right to asylum is one of the most important basic rights guaranteed and effectively secured” (Abū al-Wafā, 2009, p. 14).

In the Qur’an there exist no fewer than 396 references which affirm the right to asylum and the obligation of Muslims to protect and assist refugees. These teachings are confirmed by over 850 authentic hadiths which specifically concern the protection and assistance of refugees. Despite the frequency of this theme, not one contradiction exists in the norms presented. Among Muslims and in the Middle East, “offering protection to people in distress has been an innate peculiarity,” forming “perhaps the most generous right to asylum” that exists (p. 30).

In 1967, when the United Nations created protocols for the treatment of refugees, they looked to this fourteen century long rich Arab-Islamic tradition of protecting migrants as a precedent. Today, the standards and norms of Islamic shari’a and Arab customs underpin the legal framework of the Office of the United Nations High Commissioner for Refugees. “More than any other historical source, the Holy Qur’an along with the Sunnah and Hadith of the Prophet of Islam are a foundation of contemporary refugee law” (p. 5). Despite this legacy, “ ‘orientalist problematique’ myths based on ‘Islamophobia’ … purport Islamic Law to be defensive, particularly as it relates to international law” (Zaat, 2007). Holding to this perspective alientates Islamic law from international law such that, despite parallel directives, the systems are divided in implementing support of the ongoing refugee crisis in the Middle East.

At a time when the majority of the world’s 84 million displaced people are hosted in Muslim majority countries, failure to give credence to the contributions of Islamic law threatens the upholding of human rights (United Nations High Commissioner for Refugees [UNHCR], n.d.).

Despite being the written precedent and in accordance with international refugee law, Islamic refugee law and international refugee law lack a genuine partnership, an estrangement which ultimately only serves to hurt the refugees both systems aim to protect. To strengthen the response to the refugee crisis in the Muslim world, the international community should value and recognize the contributions of Islamic law to modern law and should ground its regional responses in the application of Islamic norms in tandem with those of international law.

In the Middle East, the practice of ijara, a form of tribal hospitality aspiring to ensure the safety and security of foreigners while traveling, pre-dated the founding of Islam. As Islam spread, hijarah was endorsed and incorprated into shari’a law as a good practice, involving the ethical values shari’a encourages. The fleeing of the Prophet Muhammad from Mecca to Medina as he sought refuge is an event “evidenced through both oral and archeological artifacts (that) forms the very foundation of Islamic history” and indeed serves as the reference point for the Muslim calendar (Zaat, 2007, p. 15).

The experience of the Prophet as a refugee sets “an important precedent for the relationship between the asylum-seeker and the asylum provider, whereby the rights of the former are linked to the duties of the latter” (Abū al-Wafā, 2009, p. 5). Under the definition of Islamic refugee law, a refugee is simply a person in need of protection. Asylum should be granted to all those who are

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refugees and who are present within a Muslim country. In Islam, the obligation to protect and assist refugees is both a negative and positive norm. Individuals are permitted to migrate, as evidenced by the Qur’anic verse “God’s Earth is vast - so migrate to seek refuge from oppression” but individuals should not be the cause of others' migration (“you shall not shed your kinsmen’s blood, or turn them out of their dwellings...Surely their expulsion is unlawful”) (Quran, 9:6; 2:84). Those who assist refugees will be rewarded (“Those who give (them) asylum and aid,- these are (all) in very truth the believers: for them is the forgiveness of sins and a provision most generous”), and those who do not will be punished (“He whoever talks (harshly) to, detracts from, over tasks or takes out something from a zimmi (protected person) against his will, will have me (The Prophet Muhammad) as his adversary on the Day of Judgment”) (Surat al-Anfal, 74, Qur’an, 8:74; AbuDawood, n.d., as cited in Abū al-Wafā, 2009, p. 218).

Under Islam, the granting of asylum is a promise of safety and protection. As such, refugees are entitled to care, assistance, and the meeting of their physical needs. These needs are not restricted to food and shelter but “extend to all essential needs...necessary to maintain their physical health and moral safety and integrity” (Abū al-Wafā, 2009, p. 145). The vulnerability of refugees places muhajirin (forced migrants) into a separate legal grouping where they are entitled to particular types of assistance and protection, besides the rights accorded to all persons.

In addition to strict rules regarding how refugees should be treated, shari’a also provides clear instructions regarding who can be denied asylum and when, if ever, asylum can be taken away. Based in the Islamic principle “before the world’s calamities, all sons of Adam (human beings) are equal,” the right to non-discrimination states that asylum should be granted to whoever solicits it, regardless of race, religion, education, or socioeconomic status (Shaykh, n.d., as cited in Abū al-Wafā, 2009, p. 124). Even non-Muslims are entitled to these same protections and rights without requiring any form of conversion to Islam or disavowing of their faith. This is according to the Ayah: “Let there be no compulsion in religion: truth stands out clear from error” (Surat alBaqarah, Qur’an 2:256). In Islamic refugee law, individuals should not be discriminated against in the asylum process but further, immigrants should not be rejected even if residents of the host territory have scarce resources. The Ayah directs, “show their affection to those who came to them for refuge, and entertain no desire in their hearts for things given to the (latter), but give them preference over themselves, even though poverty was their (own lot)” (Qur’an, 59:9). In Islam, aslyum may only be denied to criminals, particuarly those found guilty of hudud or those claiming asylum in order to remain unpunished from crimes they committed in a country of origin.

Once asylum has been granted, there are few non-consensual pathways under which it can be revoked or under which an individual can be returned to his country of origin. Islam forms one of the first refugee laws to establish the non-refoulement principle and the rule of non-extradition (Mahmassani, 1966, p. 256). The principle of non-refoulement, which forbids the return of asylum seekers to a country where they would likely be in danger, was applied to and endorsed by the Prophet Muhammad, making it applicable to any refugee. Jurists have upheld this principle even in extreme cases, arguing that a hostage or non-Muslim protection-seeker should not be extradited in exchange for a Muslim hostage (Ash-Shibani, n.d., as cited in Abū al-Wafā, 2009, p. 61). Even if the country of origin threatens to wage war as an ultimatum, the protection-seeker should not be extradited. Under only two cases may extradition, the surrender of an individual by one state to another, be permissible. First, if an Islamic state has approved an international treaty that allows for extradition, this obligation should be honored since the fulfillment of a promise is a basic tenet of shari’a (Imam al-Mawardi, n.d., as cited in Abū al-Wafā, 2009, p. 192). Second, if a refugee is

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a criminal to the extent that extradition of criminals is generally admissible in Islam, he may be extradited.

These comprehensive principles and their procedures of Islamic refugee law form the precedent to international refugee law and underpin the legal framework upon which international law rests. However, in order for the tenets of Islamic refugee law to both prove useful and be accepted, “they must also be compatible with and capable of addressing the modern geopolitical context” (Yakoob & Mir, 2005). It is therefore critical to study Islamic refugee law in contrast to current international refugee law and how each law functions in practice.

According to international refugee law, a refugee is a person who “...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality” (UNHCR, 2006). If a person meets these criteria they are entitled to asylum and the rights that accompany asylum. In turn, it is incumbent upon refugees to conform to the laws and regulations of their host country (UNHCR, 1967, Article 2). Similarly to Islamic law, in international law asylum implies a right to protection and support, however, in international law the mechanisms for this support are not as enshrined as in shari’a.

The United Nations 1951 Convention discussing the Status of Refugees provides most of the current guidance for the legal rights of refugees. This convention established refugees’ right to the same two principles established by Islamic law, the right to non-discrimination and the right to non-refoulement including extradition. All refugees are entitled to the same rights, and should not be discriminated against for reasons related to race, religion or country of origin (UNHCR, 1967, Article 3). This principle has been broken many times, most clearly in recent years by the 2017 United States “Muslim Ban” which, through Executive Order No. 13769 banned citizens from six Muslim majority countries from entering the U.S., suspended all refugees from entering the U.S. for 120 days, and halted Syrian refugees from entering the U.S. indefinitely. This order faced significant legal backlash and was ultimately overturned as it “both in purpose and effect, discriminates against Muslims and their religion” and “violates the clear statutory prohibition on nationality-based discrimination” (International Refugee Assistance Project v. Trump, 2017).

The second principle of rights to refugees, the right to non-refoulement, establishes that a refugee shall not be returned or expelled to a place where he is persecuted or in need of protection, regardless of whether or not that individual has received formal refugee status (UNHCR, 1967, Article 33). The right to non-refoulement should only be broken if a refugee has been convicted of a serious crime that would constitute a danger to the community or there exists reasonable grounds that a refugee is a danger to national security. Like the right to non-discrimination, this principle is frequently violated. Asylum-seekers are turned away from borders, refugees are deported without due process, and stowaway refugees are rejected (Llain, 2015).

As can be seen, Islamic refugee law and international law unsurprisingly, given their history as precedent and product, share a number of similarities. There does not appear to be any significant discordance or conflict between international refugee law and Islamic refugee law. Still, as the product of religious versus secular law, the two differ significantly in the grounding of the rights of refugees. This is an important distinction as “the positive means to promote any concept within a particular culture is through evidential support from within its legitimizing principles” (Baderin, 2005, p. 6).

Within Islamic law, the obligation to offer protection is based on the overarching principle that the earth belongs to God and there is no human ownership over countries. Opposingly, international law is grounded in the rights of states. In Islam, individuals are obligated to take

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personal action to help refugees. In international law, individuals are responsible for holding their states accountable.

These differing perspectives generate distinct procedures for asylum, most importantly, who can grant asylum and to whom asylum can be granted. In international law, only governments can grant asylum: “It shall rest with the State granting asylum to evaluate the grounds for the grant of asylum” (United Nations, 1967). In contrast, under Islamic law asylum can be granted by individuals as well as states, a directive based on the Hadith by Prophet Muhammad, “Muslims are equal in blood; the lowest-ranking among them can give aman and observe zimma (covenant of safety) given by other Muslims and they are united against others” (Abū al-Wafā, 2009, p. 237).

The religious basis for Islamic refugee law may also confer a legitimacy to its procedures causing them to be more strictly adhered to than those of international law. For example, family reunification is considered a right by both Islamic and international law. In Islam, it is haram (religiously forbidden) to separate family members. If family members are separated there is an obligation to reunify them. Prophet Mohammad said, “He who ever separates a mother from her child, Allah will have him separated from his beloved on the Day of Judgment” (As-San›anni, n.d., as cited in Abū al-Wafā, 2009, p. 155). International law likewise affirms the right for families to be kept together but only obligates that “a state shall facilitate in every possible way family reunification” (Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, 1977). Islamic refugee law “makes nonseparation an obligatory duty on Muslims; international law merely provides for a dispersed family to be as far as possible reunited. This could give space for discretionary powers that may be abused by states and individuals” (Abū al-Wafā, 2009, p. 155).

Albeit in different ways, Islamic refugee law and international refugee law reach the same conclusions in respect to the rights to refugees. However, these differences do not alienate one from another nor suggest the primacy of one over the other. In fact, the ability to legitimize an obligation through both secular and religious, individual and state responsibilities is a potential strength not yet explored in the current refugee response. Today, the majority of refugees worldwide are Muslim and reside within Muslim host countries. While the protection of these refugees is implemented by Muslim states it is heavily overseen and internally managed by multi-lateral international organizations and primarily Western non-governmental organizations. The actions of these organizations to protect refugees are based in the protections afforded by international agreements rather than in Islamic refugee law (Zaat, 2007, p. 4). However, in the Middle East, legitimacy is gained through adherence to Islamic law and traditions rather than the implementation of international principles, regardless of whether the two are in agreement. Enforcing international law within Muslim societies without recognition or adherence to the structures of Islamic refugee law “creates tensions and reactions against the secular nature of the international regime no matter how humane or lofty such international norms may be” (Baderin, 2005, 30). Regardless of how aligned the principles and procedures of international law and Islamic refugee law are, “humanitarianism which remains the sole preserve of the West and fails to enlist the involvement of local peoples and governments as well as to establish resonance with the rich resources of nonJudaeo-Christian religious traditions, will remain unnecessarily foreign and interventionist in nature” (Weiss & Minear, 1991).

There exists no fundamental discordance between Islamic refugee law and international refugee law which both serve to govern the relationship between people and states with the goal of equal treatment and the protection of the most vulnerable. These lofty goals are currently unmet in regions where Islamic law is the most powerful. There is a strong need to “draw from ancient Arab-

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Islamic traditions an appropriate approach to the protection and assistance of forced migrants” (Zaat, 2007, p. 35). In the Muslim world, the application of Islamic refugee legal norms in tandem with international legal protections is vitally important to their common goal: the protection of refugees.

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Abū al-Wafā, A. (2009). The Right To Asylum Between Islamic Shari’ah And International Refugee Law A Comparative Study. UNHCR. Abu-Dawood: as-sunan, kitab al-kharaj wal-imarahwal-fay’, bab taqsheer al-az-zimmah iza ikhtalafou bit-titajarat. No. 3052, Vol. 3, p. 288.

Ash-Shibani, sharh as-siyar al-kabeer, Institute of Manuscripts, League of Arab States, Cairo, 1972, Vol. p.1612; see Hyderabad ed., Vol. 3 p.300- 301.

As-San›anni, subul as-salam, ibid, v2, pp 494-495, ch. shurout al-bay’ wa ma nuhiya anhu, Hadith No. 30.

Arboleda, E., & Hoy, I. (1993). The Convention Refugee Definition in the West: Disharmony of Interpretation and Application. International Journal of Refugee Law, 5(1), 66–90. https://doi.org/10.1093/ijrl/5.1.66 Baderin, M. A. (2005). International Human Rights And Islamic Law. Oxford University Press.

Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts. (1977, June 8). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1). United Nations. https://www.ohchr.org/en/instrumentsmechanisms/instruments/protocol-additional-geneva-conventions-12-august-1949-and Imam al-Mawardi: al-hawi al-kabir, op. cit, Vol. 18, pp 412, 426.

International Refugee Assistance Project v. Trump, (D. Md. 2017).

Llain, S. (2015). Violations to the Principle of Non-Refoulement Under the Asylum Policy of the United States. Anuario Mexicano de Derecho Internacional, 15(1), 283–322. https://doi.org/10.1016/j.amdi.2014.09.005 Mahmassani, S. (1966). The Principles of International Law in the Light of Islamic Doctrine. In Collected Courses of the Hague Academy of International Law (Vol. 117). Brill. https://referenceworks.brillonline.com/entries/the-hague-academy-collectedcourses/*A9789028615427_03 Shaykh ‹Othman ibn Foudi: bayan wojoub al-hijrah a’ala al-’ibad wa bayan wojoub nasb imam wa iqamat al-jihad, verified by Fat-hi al-Misri, University of Khartoum publishing House, 1977, p. 124.

UN General Assembly. (1967). Declaration on Territorial Asylum, G.A. res. 2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967). Human Rights Library. http://hrlibrary.umn.edu/instree/v4dta.htm UNHCR. (n.d.). Refugee Statistics. UNHCR. Retrieved December 22, 2021, from https://www.unhcr.org/refugee-statistics/ UNHCR. (1967). 1951 Convention Relating to the Status of Refugees. In Convention and Protocol Relating to the Status of Refugees. UNHCR. https://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-statusrefugees.html UNHCR. (2006, April 7). Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked. UNHCR. https://www.unhcr.org/publications/legal/443b626b2/guidelines-international-protection-7application-article-1a2-1951-convention.html

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Weiss, T. G., & Minear, L. (1991). Do International Ethics Matter? Humanitarian Politics in the Sudan. Ethics & International Affairs, 5, 197–214. https://doi.org/10.1111/j.17477093.1991.tb00238.x Yakoob, N., & Mir, A. (2005). A Contextual Approach Towards Improving Asylum Law and Practices in the Middle East. Jura Gentium. https://www.juragentium.org/topics/islam/rights/en/yakoob.htm Zaat, K. (2007, December). The protection of forced migrants in Islamic law, Kirsten Zaat.

UNHCR. https://www.unhcr.org/research/working/476652cb2/protection-forced-migrantsislamic-law-kirsten-zaat.html

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CRUEL, UNUSUAL, AND GROSSLY DISPROPORTIONATE: ENDING PUNITIVE EXCESS IN PRE-TRIAL DETENTION

by Hailey Hyun-Min Cho Introduction In 2019, 38-year-old Allen Russell was sentenced to life in prison after a jury found him guilty of possession of more than 30 grams (or 1.05 ounces) of marijuana (Willingham, 2021). His sentence, despite seeming vastly disproportionate, was justified on the basis of mandatory minimum sentencing laws. In the state of Mississippi, a person can be sentenced to life in prison after serving “at least one year in prison on two separate felonies, one of which must be a violent offense” (Willingham, 2021). At the time of his arrest, Russell had already been convicted twice, once in 2004 of burglary, and once in 2015, when he was convicted of unlawful possession of a firearm. By the time of his third arrest in 2017, Russell was what the state deemed as a “habitual offender” and was sentenced to mandatory life in prison without the possibility of parole (Willingham, 2021). Russell filed a notice of appeal, claiming that his sentence is “cruel…unusual…and grossly disproportionate to the crime committed” (Willingham, 2021). His appeal was denied in May 2021. Mr. Russell is expected to die in prison.

To the average American, Russell’s story may seem like an extreme outlier—a disturbing case where justice was not served. In reality, however, sentencing people to disproportionately lengthy sentences is a common practice in America, where a deadly culture of punitive excess is upheld at every juncture of the criminal justice system. Approximately 2.3 million Americans are incarcerated today, and in recent decades, sentences have become increasingly long (Nellis, 2021).

In fact, one in 7 people in U.S. prisoners is serving a life sentence. The number of people serving life without parole—the most extreme type of life sentence—has increased by 66% since 2003 (Nellis, 2021). Such unprecedented rates of incarceration are largely due to punitive policies that either incarcerate millions charged with but not convicted of any crime, or sentence those who are convicted to excessively long prison sentences. These punitive policies are largely due to past reforms that aimed to curb the “War on Crime” and “War on Drugs” that began in the 1970s (Cullen, 2018). Intended to lower drug abuse and improve public safety, these policies led to unintended consequences that exacerbated racial and socioeconomic disparities. The purpose of this paper is to address the broad issue of mass incarceration by focusing on pretrial and sentencing policies, which constitute one of the primary drivers of mass incarceration. This discussion is followed by recommendations for future research as well as proposals for reform.

The History of Mass Incarceration The roots of punitive excess in the American criminal justice system are inexorably entwined with the legacy of slavery, and have marginalized impoverished communities and people of color through over-criminalization and excessive punishment. However, it wasn't always like this. The U.S. incarceration rate was relatively steady until 1970, when the incarcerated rate started to “grow by an average of 12 percent each year to reach a total increase of about 400 percent,” making America the country with the highest incarceration rate in the world (Cullen, 2018). This was largely because politicians and the media used fear and racial rhetoric to push for increasingly punitive policies. The shift began with Nixon, who declared a War on Drugs, leading to longer

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sentences, often for nonviolent crimes. However, the prison population truly exploded when President Ronald Reagan took office in 1980. By the time he left office eight years later, the U.S. prison population had essentially doubled, from 329,000 to 627,000 (Cullen, 2018).

Over time, America’s “tough-on-crime” rhetoric bled into mainstream public policy.

Policymakers argued that in the long term, draconian sentencing laws and incarceration would be a cost-effective way to reduce crime. The majority of elected officials at the time expressed their support for punitive policies, including the 1994 Federal Crime Bill which created tougher criminal sentences and incentivized states to build more prisons (Galston & Ray, 2020). In fact, the prison and jail expansion occurred on such an intensive scale that this era is now known as the “prison boom.” Gradually, courts and legislatures became less interested in issues surrounding incarcerated people’s constitutional rights and more focused on “getting tough” by subjecting individuals to increasingly punitive and cruel sentences. Courts and politicians felt little pressure to address the mounting human toll of mass incarceration, thereby giving birth to a culture of punitive excess.

Recently, there is a growing bipartisan consensus that America’s “tough-on-crime” policies were a mistake. As a result, there is a growing effort on the national, state, and local scale to reduce mass incarceration through policy reforms—and we are making progress. In the last decade, prison populations have declined by about 10 percent (Cullen, 2018). Racial disparities have also fallen.

However, this is just the beginning. According to the Brennan Center for Justice, even at the current rate of decline, “it will take decades to achieve incarceration rates appropriate to the current violent crime rate, which is roughly where it was in 1971” (Cullen, 2018). Similarly, even at the current pace, the rate of incarceration for African Americans “would only match the incarceration rate of whites after 100 years”(Cullen 2018). We live in a transformative era where the criminal justice system has finally begun to shift its course—it is our duty to make sure it stays on the right path.

Mandatory Minimums To dismantle America’s dehumanizing and racially unjust incarceration system, we must tackle the issue of mandatory minimums. Traditionally, the U.S. justice system gives judges the right to weigh all the facts of a case before determining an offender’s sentence. In the 1970s and 1980s, however, the U.S. Congress passed mandatory minimum sentencing laws that essentially shackled judges, forcing them to give fixed prison terms to those convicted of specific crimes, the most common being nonviolent drug offenses (Siegler, 2021). At the time, members of Congress believed that federal “get-tough” sentences would have a “trickle-down” effect; by taking excessively punitive measures against those at the top of the drug trade, they believed that others would refrain from entering it. One of the most draconian examples of such policies is the AntiDrug Abuse Act of 1986, which established a “100:1 crack to powder cocaine ratio in the sentencing calculus” (Asmussen Frank, Bjerge, and Houborg, 2008, p. 237). In other words, the law established that “possession of 5 kilograms of powder cocaine was equivalent to 50 grams of crack cocaine and would result in the same sentence: a ten-year-mandatory minimum sentence” (p.

237). By the end of the 1980s, all 50 states had enacted mandatory minimum sentencing laws (Siegler, 2021). Yet instead of improving public safety, these laws filled prisons with low-level offenders, resulting in prison overcrowding and higher costs for taxpayers. The human toll on incarceration is equally devastating. Today, mandatory minimum laws not only wastes resources, but destroy communities, tear apart families, and ruin the lives of black, brown, and lower-income Americans at shockingly disproportionate rates.

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Mandatory minimums are especially cruel because they dehumanize individuals by acting as “sledgehammers rather than scalpels,” falling with equal force on those “whose circumstances are dramatically different from one another and preventing judges from calibrating punishment to suit the person or the crime” (Bibas, 2004, p. 86). Justice can only be served when sentencing is carried out by a neutral judge, yet mandatory minimums upend this system by positioning the adversary—the prosecutor—as the ultimate decision-maker, preventing the judge from reaching a more holistic decision by taking into consideration factors such as a person’s history, family responsibilities, role in the offense, and the likelihood of rehabilitation. This not only removes checks and balances—the backbone of the American Constitutional system—but also fuels racial disparities. To illustrate, a recent study published by the University of Michigan Law School found that prosecutors’ mandatory minimum charges resulted in “Black individuals spending more time in prison than whites for the exact same crimes” (Siegler, 2021). Additionally, prosecutors bring mandatory minimums “65 percent more often against Black defendants, all else remaining equal” (Rehavi and Starr, 2014, p. 1323).

Furthermore, mandatory minimums do not improve community safety. Rather, they do the exact opposite. Incarceration automatically increases the risk of recidivism because the experience of incarceration is inherently criminogenic. For instance, in 1979, Florida was one of first states to enact mandatory minimum drug laws in hopes of reducing violent crime. By 1990, Florida’s violent crime rate rose by “nearly 50 percent between 1979 and its peak in 1990” (Newburn and Nuzzo, 2019, p. 12). Additionally, from 1980 to 1988, “prison admissions for drug offenses increased by 942%” (p. 12). Long sentences also harm communities by wasting human potential and diverting resources that could be better spent on fostering rehabilitation. They tear families apart, and harm some 5 million children who have or had a parent in prison, including one in nine black children (Paquette, 2015). They also contribute to high recidivism and unemployment rates. According to a study published by the Council of Economic Advisors, formerly incarcerated employees make “10 to 40 percent less money than similar workers with no history of incarceration,” and the probability of a family being stuck in poverty increases “by almost 40 percent when a father is imprisoned” (Office of the Press Secretary, 2016).

Pretrial Detention and Cash Bail Equally troubling to mandatory minimum sentencing laws is pretrial detention. Today, nearly 70 percent of the entire jail population (536,000 people) are detained pretrial, meaning that they are legally innocent (Onyekwere, 2021). The reason why so many individuals are jailed while still awaiting trial is because of the cash bail system. Cash bail was first introduced to serve as collateral to ensure that defendants appear in court for their trial. If the individual makes all necessary court appearances, the money is returned. However, if they fail to show up, the bail money is forfeited to the government, regardless of the reason for not showing up for the trial or their financial circumstances. In most states, all monetary sanctions must be paid in full before a person is released from court supervision. Furthermore, while a “standard bail amount is set for an alleged offense,...judges typically have broad discretion to either raise or lower the price” (Onyekwere, 2021). Studies have shown that bail practices are often discriminatory, with “Black and Latino men assessed higher bail amounts than white men for similar crimes by 35 and 19 percent on average, respectively” (Onyekwere, 2021).

When defendants are unable to post bail, they become chained to the criminal justice system and are caught up in an endless cycle of additional legal consequences. To illustrate, not only are

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people who are behind in their payments sent regular court summonses, but in some instances, even those making their monthly payments “must report to the court about their employment and living arrangements” on a regular basis (Lattimore et al., 2021). This may cause individuals to miss work or force them to pay for childcare and transportation just to attend court hearings. To make matters worse, in many states, people are denied the right to vote and drive until all costs are paid—even if they need to drive in order to get to the job that will enable them to pay their debt (Lattimore et al., 2021). When people have been summoned to court but fail to receive notice, bench warrants are issued for their arrest. In this view, pretrial detention is an ineffective system that often sets individuals up for failure. Additionally, data shows that pretrial detention can negatively impact the outcome of a defendant’s case. For instance, those who are held pretrial are “four times more likely to be sentenced to prison” than defendants released before trial (Lattimore et al., 2021).

Pretrial detainees are also more likely to fall victim to coercive plea bargaining, a process that encourages individuals to plead guilty to a lower charge and spend less time behind bars instead of taking their case to trial and risk the possibility of receiving a harsher sentence, or “trial penalty” (Pfaff, 2017).

Thus, what the pretrial system creates is a “two-tiered system of justice”: one for people with financial means and one for people without (Harris, 2021). In a country already riven by so much inequality, pretrial detention and cash bail create a system of “coerced financialization,” where the freedom of the poor and the racially marginalized are placed on a “perpetual layaway plan” (Harris, 2021). It’s a system so fully embedded in the American criminal justice system that the American Rescue Plan Act, passed by Congress in March 2021 to alleviate some of the financial burdens caused by the COVID-19 pandemic, “allowed private collectors and courts to seize the $1,400 stimulus grants from people burdened with unpaid penal debt, either public or private” (Harris, 2021). The U.S. pretrial system is purposefully designed to extract wealth from society's most disadvantaged—a “pound of flesh” that many are simply unable to provide (Harris, 2021).

Reform Measures Based on the issues outlined above, there are several policy measures that can be adopted to dismantle the American system of monetary sanctions. The following set of policy recommendations should be implemented on a national-scale to sustain the momentum to undo the failed apparatus of mass incarceration.

1. Focus on decriminalization and rehabilitation First and foremost, policymakers must focus on decriminalization. Transformative pretrial reforms must be implemented by ensuring that incarceration is not the default response to individuals struggling with systemic issues, such as homelessness and drug addiction. Congress and state legislatures have greatly expanded statutory criminal statutes through counterproductive policies such as the exploitation of so-called “quality of life” offenses, which perpetuate the criminalization of poverty. Currently, the American justice system does not provide appropriate support and treatment to people with substance use disorders and mental illnesses. Jurisdictions should begin by narrowing down their criminal codes and decriminalizing behaviors that could be better addressed through rehabilitative, community-based alternatives. Decriminalization makes communities safer by allowing people to work, attend school, and take care of their families, rather than destabilizing them. Public safety would be better achieved if the government focused on

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spending less money incarcerating people and more money on education, housing, health care, and vocational programs, among others.

2. Eliminate fixed fines and fees A reform that could be accomplished in the short term is adjusting fees based on ability to pay. Fixed fines and fees can trap those with limited financial means in an endless cycle of fines and additional legal consequences, resulting in perpetual punishment and crippling debt.

Furthermore, in clear cases of indigence, courts should have the authority to waive all fines, fees, and surcharges. In the long term, statutes can hopefully be revised entirely to discontinue monetary sanctions associated with felony convictions all together. There is simply no reason why someone should be required to pay for their freedom. Furthermore, incarcerated individuals shouldn’t be subject to financial penalties, much less be charged daily room and board fees. Monetary sanctions are also excessive when imposed on juveniles, the unemployed, the homeless, or those suffering from mental health or chemical addiction disorders. Burdening people who are unable—and who may never be able—to pay financial debts is excessively cruel.

3. Repeal mandatory minimum sentences Congress should repeal mandatory minimum sentences, returning discretion to judges who are best placed to determine an appropriate sentence based on the unique circumstances of a particular case. Mandatory minimum sentencing is an outdated, one-size-fits-all policy that gets in the way of justice. While those opposed to this reform might argue that repealing mandatory minimums provides an “easy way out” by letting defendants “off the hook,” this is simply not the case (Law, 2021). Repealing mandatory minimums means restoring power to judges and allowing them to make more holistic decisions that fit the crime. Changing the system will also enable legislators to honor the expertise of judicial officials to determine what is in the best interest of public safety on a case-by-case basis. The most comprehensive solution introduced in recent years was the “Mandatory Minimum Sentence Reform Act of 2017, which would have repealed all mandatory minimums for federal drug crimes” (Siegler, 2021). Furthermore, the bipartisan Smarter Sentencing Act of 2021 would “enact a narrower reform, reducing mandatory minimums for certain non-violent drug offenses and making other reforms retroactive” (Siegler, 2021). Continuing to support such reforms, and expanding them to include all crimes, not just non-violent drug offenses, can lead us one step closer to establishing a new order that repeals mandatory minimums and protects human dignity.

4. Reconsider parole practices Jurisdictions should reconsider probation and parole practices that contribute to mass incarceration. Instead of focusing on solving the minimal risk of flight, for instance, policymakers should focus on addressing the greater obstacles that prevent court return. There is a common misconception that court nonappearance is at crisis proportions and that people who miss court do so deliberately. In reality, however, most instances of nonappearance result from obstacles that include “work schedules, childcare responsibilities, lack of access to adequate transportation, and difficulty navigating confusing court systems” (The Bail Project, 2020). Contrary to popular belief, data collected by the Bail Project shows that willful flight from jurisdiction is a very rare cause of

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nonappearance, despite the entire system being designed around that scenario (The Bail Project, 2020). To rectify this, parole practices should focus on addressing these obstacles. This can be achieved by investing in court reminders, free transportation to court, and childcare assistance.

Additionally, state and local jurisdictions must discontinue the practice of suspending both driver’s licenses and voting rights due to failure to pay court fees. The practice of issuing warrants related to nonpayment must also cease to exist.

5. Improve Data Collection Finally, in order to ensure meaningful and enduring reform while avoiding unintended negative consequences, meticulous data collection is essential. The current state of criminal justice data collection across the country is limited and lacks transparency. To bridge the gap between research and practice, states must require all jurisdictions to report all monetary sentences and fees to a statemonitored database while protecting individual privacy. Such data should include amounts collected, amounts waived, and any additional charges imposed related to nonpayment, such as late fees, interest, and collection fees. Finally, jurisdictions must publicize and share data on a regular basis to evaluate progress, identify discriminatory patterns, and hold the criminal legal system accountable to the communities it serves.

Despite the fact these reforms have already gained wide bipartisan support, transformative change will most likely be opposed by private collection companies, who directly profit off of pretrial services. To illustrate, many states allow cities and counties to engage in "contracts with private collection companies, and when debt is transferred to these agencies, additional collection fees are assessed—as much as 50 percent of the principal owed” (Harris, 2021). These publicprivate debt collection arrangements affect the individuals’ “credit scores, limit their employment opportunities, and inhibit their ability to access housing, education, and transportation” (Harris, 2021). Furthermore, the price of services such as telephone calls, electronic communication, video visitation, and health care all include “kickbacks" from private companies to local jurisdictions— “the price collection agencies pay to win exclusive contracts” (Harris, 2021). However, the socalled “financial losses” that might result from widespread decarceration is minuscule at best when compared to the staggering cost of mass incarceration. Currently, American taxpayers pay $14 billion each year to keep people incarcerated pretrial (The Bail Project, 2020). Meanwhile, the $2 billion bail industry—with its well-documented predatory and exploitative practices—extracts money from precisely those communities that have the fewest resources. Factoring in the impact of pretrial detention on families, communities, and social services, “the true economic cost of this crisis has been estimated to approach $140 billion annually” (The Bail Project, 2020).

Recommendations for Future Research Fixing the U.S. criminal justice system will require identifying and implementing more effective, just, and cost-efficient ways of reform. Future research should focus on gaining a better understanding of the relationship between less punitive alternatives and outcomes, identify unwarranted disparity in pretrial detention, and embark on a path of continuous improvement of the criminal justice system. In order to achieve this, there needs to be more research on the disparities at earlier stages such as pretrial detention and how they accumulate as individuals make their way through the criminal justice system. Research should also focus on assessing the different

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types of punishment with a focus on whether more punitive sentences lead to higher or lower recidivism rates. Finally, evaluation research should study the process, outcomes, impacts, costs, and benefits of pretrial and sentencing reforms. What needs to be produced are better estimates of the “costs of punishment” across the justice system. These estimates should include the explicit costs to local, state, and federal jurisdictions, as well as the implicit costs to individuals, their families, and their communities. Taking these steps should help to identify what works and what doesn’t, and lead to positive change. Repairing America’s broken justice system will require a sustained effort on a national scale. Policymakers and reformers should aim high.

Conclusion Inflexible sentencing policies and pretrial detention are the root causes of mass incarceration in the United States. These punitive policies have disproportionately affected the poor and people of color, are economically inefficient, and often result in punishment that is excessively disproportionate to the severity of the crime. The issues outlined in this paper makes it clear: in America, all persons are not equal before the law. Those who enter the criminal justice system are divided into two groups: those “deserving” of justice (people with financial means) and those who are not (the marginalized). Individuals who are sentenced to monetary sanctions are treated as second-class citizens—they are indefinitely subjected to court and police surveillance, control, and punishment. In light of this evidence, the policy proposals outlined above—to focus on decarceration, eliminate fixed fines, repeal mandatory minimum sentences, reconsider parole practices, and improve data transparency—provide a blueprint for improving the U.S. pretrial system. Implementing these reforms has the potential to end mass incarceration, substantially increase social welfare, and ensure that defendants are treated equally under the rule of law. There are alternative methods. We just need a sustained effort to make real change.

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Asmussen Frank, V., Bjerge, B., & Houborg, E. (2008). Drug Policy: History, Theory, and Consequences.

Bibas, S. (2004). Plea Bargaining Outside the Shadow of Trial. Harvard Law Review, 2463– 2547.

Cullen, J. (2018, July 20). The History of Mass Incarceration. Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration Galston, W. A., & Ray, R. (2020, August 28). Did the 1994 crime bill cause mass incarceration?

Brookings Institution. https://www.brookings.edu/blog/fixgov/2020/08/28/did-the-1994crime-bill-cause-mass-incarceration/ Harris, A. (2021, July 26). Monetary Sanctions as a Pound of Flesh. Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/monetary-sanctions-pound-flesh Lattimore, P. K., Spohn, C., & DeMichele, M. (2021, April 30). A better path forward for criminal justice: Reimagining pretrial and sentencing. Brookings Institution. https://www.brookings.edu/research/a-better-path-forward-for-criminal-justicereimagining-pretrial-and-sentencing/ Law, V. (2021). “Prisons Make Us Safer”: And 20 Other Myths About Mass Incarceration.

Beacon Press.

Nellis, A. (2021, February 17). No End In Sight: America’s Enduring Reliance on Life Imprisonment. https://www.sentencingproject.org/publications/no-end-in-sight-americasenduring-reliance-on-life-imprisonment/ Newburn, G., & Nuzzo, S. (2019, February 19). Mandatory Minimums, Crime, and Drug Abuse: Lessons Learned and Paths Ahead. James Madison Institute. https://www.jamesmadison.org/mandatory-minimums-crime-and-drug-abuse-lessonslearned-and-paths-ahead/ Office of the Press Secretary. (2016, April 23). CEA report: Economic Perspectives on Incarceration and the Criminal Justice System. The White House. https://obamawhitehouse.archives.gov/the-press-office/2016/04/23/cea-report-economicperspectives-incarceration-and-criminal-justice Onyekwere, A. (2021, February 24). How Cash Bail Works. Brennan Center for Justice. https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works Paquette, D. (2015, October 27). One in nine black children has had a parent in prison.

Washington Post. https://www.washingtonpost.com/news/wonk/wp/2015/10/27/one-innine-black-children-have-had-a-parent-in-prison/ Pfaff, J. (2017). The Man Behind the Curtain. In Locked In: The True Causes of Mass Incarceration-and How to Achieve Real Reform (pp. 127–159). Basic Books.

Rehavi, M. M., & Starr, S. B. (2014). Racial Disparity in Federal Criminal Sentences. Journal of Political Economy, 122(6), 1320–1354. https://doi.org/10.1086/677255 Siegler, A. (2021, October 18). End Mandatory Minimums. Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/end-mandatory-minimums The Bail Project. (2020). After Cash Bail: A Framework for Reimagining Pretrial Justice. The Bail Project. https://bailproject.org/after-cash-bail/ Willingham, L. (2021, May 12). Mississippi court upholds life sentence for pot possession. AP News. https://apnews.com/article/mississippi-0e463c390bedc7f6b25fb7e54b955b74

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PROSECUTORIAL DISCRETION: WHAT IS IT, WHY IS IT IMPORTANT, AND WHAT DO WE DO ABOUT IT?

by Hayley Moniz Defining Discretion “What makes prosecutors different and distinctive from the larger community of lawyers?”

I boldly ask former state and federal prosecutors alike. I (virtually) sit across from seven people who have seen everything from turnstile jumpers to criminalized drug users to gang violence come across their desks. The answer always boils down to their discretion, but no two answers are the same. One characterized it as a tool to bring justice and fairness. Another defined it as a necessity, something required for narrowing down broad laws. One even told me that it was the professional freedom to do what he thought was right. Prosecutorial discretion has been and continues to be a difficult phenomenon to conceptualize, but one that scholars would agree is a necessity in our current legal system (Pfaff, 2017). So, for a practice that is so inherent to the everyday practice of prosecution, what is it, and why do we struggle to define it?

Prosecutorial discretion is a power held by government prosecutors—that is, District Attorneys (DAs), United States Attorneys (USAs), and their assistants (ADAs and AUSAs, respectively). As the name implies, it is the ability to make influential decisions, but it is the breadth of these decisions that often goes unnoticed. At nearly every point in a legal proceeding, a prosecutor has the ability to alter the path of a case. Practically speaking, this can look like making the decision to drop charges or move a case forward, whether or not to offer a plea bargain, making a sentencing recommendation to the judge, and a myriad of other pre-, peri-, and post-trial strategies for accomplishing their end goal. Part of the danger the legal system has run into is that that goal varies between states, jurisdictions, offices, and even between prosecutors.

Unchecked Power: Why is Understanding Prosecutorial Discretion Important?

I always ask the prosecutors I interview what they believe to be the role of a prosecutor in the criminal legal system today. I typically get responses that talk about their duty to keep the community safe and to uphold justice, but one prosecutor told me something interesting: he believed that the role of prosecutors was to serve as a check on the actions of the police and the decisions of judges. If he thought the police’s investigation was flawed, he would refuse to bring charges. If he did not agree with aggression (or lack thereof) in a judge’s punishment, he would threaten to drop the charges. So if a prosecutor can serve as a check on these two important entities, who checks the prosecutor?

It can be argued that state prosecutors are checked by the electorate – after all, District Attorneys are elected in all but four states (Lantigua-Williams, 2016). Theoretically, voters have the power to oust a prosecutor whose practices they disagree with simply by voting them out of office. But in practice, this is a much more difficult task than it seems. Over 80% of all incumbent prosecutors run without a challenger at both the primary and general election stage (Wright, 2016).

Even in opposed general elections, the incumbent still comes out on top 70% of the time. Once a DA wins their first election, it is highly likely that they will continue to win the subsequent elections they enter into. This is the case for a few reasons: first, incumbents in any seat in our democracy have an advantage over challengers in any election, because they have the added benefit of name

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recognition (Erdody, 2014)). Also, prosecutor elections have very low turnout (Pfaff, 2017). In Massachusetts specifically, DAs are elected in years when the President is not up for election, and midterm elections historically pull fewer voters to the booths (Galvin, n.d.-a, n.d.-b). There is also very little voter education about the election of prosecutors, so it’s common for voters to simply stick with the person who has been in office, regardless of if crime is rising or falling (Pfaff, 2017).

Finally, it is imperative to understand that not all prosecutors are subject to elections: only the District Attorney is. Eleven DAs are subject to accountability in the form of elections in Massachusetts, but their roughly 785 Assistants – who are assigned by the DA to represent the Government in most cases – are not (“Massachusetts District Attorney Association,” n.d.). The election system of accountability is failing to ensure that all prosecutors in a state act with integrity.

The courts have made it a point to stay out of the way of prosecutors. For years, courts, including the Supreme Court, have declined to explicitly regulate prosecutorial discretion. Various court opinions cite the separation of power doctrine, saying that courts are forbidden to run judicial interference with prosecutorial discretion (Levine, 2017). The fear is that if the court had the ability to check prosecutorial decisions, their oversight would be ill-informed because gaining the information to validate a charging decision would impede them from judging the case fairly.

Because the courts are reluctant to serve as a check on prosecutorial power and the main accountability measure is made obsolete through low turnout and education, prosecutors are then emboldened to become the most insulated party in the criminal legal system.

Discretion in Darkness: Why Accountability is Needed More accountability for prosecutors is absolutely necessary in the current criminal legal system. The refusal to hold prosecutors accountable generates a lot of harm within the criminal legal system. Because the election of prosecutors rarely challenges the status quo, what results is a slate of state prosecutors that lacks diversity: 95% of elected prosecutors are white, and 79% are white men (Graham, 2015). Police overwhelmingly target people of color, so it is important for the people evaluating the cases brought forward to in some way reflect the people being charged (Federal Bureau of Prisons, n.d.). Three of my interviewees are women of color, and they all echoed how dangerous it is to have a disproportionate number of white men behind the counsel table. I’ll never forget this reflection: [My race] allowed me not only to convey messages with some clarity to a jury, but allowed me to fairly look at what might be the appropriate results for each of the stakeholders in the process. I worked together with colleagues on a number of matters where it became evident at some point in the process that they couldn't identify with, understand or even recognize the human humanity in the individuals that were being charged, and that to me was a problem.

This prosecutor told me how much easier it was for her to see the humanity in defendants because of her race, and noted how discouraging it was when her white male colleagues were unable or unwilling to seek what justice would look like in this situation as opposed to a one-size-fits-all definition of justice.

When a prosecutor fails to see the defendant as a human being, especially one that they do not demographically identify with, it may be easier to propose a harsher plea deal. At the time of this writing, there is very little research on racial disparities in plea bargaining, but the small amount of evidence that does exist shows that white defendants were more likely to be offered pleas that

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involved community service, while Black defendants were more likely to have their plea bargain offers involve time in jail or prison (Kovera, 2019; Kutateladze et al., 2014).

Much of a prosecutor’s work is conducted out of the public eye, which makes inconsistencies such as those mentioned above more likely to go unnoticed and unreported. Judges at all levels have voiced their misgivings about this, because it is often the judge who has to face public backlash for the decisions of a prosecutor (Davis, 2007). Mandatory minimum sentencing is one such decision – it was implemented to shrink judicial discretion in an attempt to bring about more parity in sentencing, but in reality, it shifted that discretion onto the shoulders of prosecutors.

If a prosecutor charges for a crime that carries a mandatory minimum and the defendant is convicted, the judge must sentence to the mandatory minimum. One federal judge told The Atlantic how frustrating this can be, especially because judicial decisions are subject to appellate review and media scrutiny while the prosecutor’s “discretion is exercised in darkness” and is not subject to review (van Meter, 2016). Why does society trust prosecutors – the actor in the system with the most power – to act fairly in darkness?

The justification possibly lies in the promise they make when they start their practice. At the beginning of their careers, lawyers take an oath. The oath varies by state, but they are all in some capacity committed to upholding fairness, respect, and truthfulness in an attorney’s representation of a client (Robb, n.d.). Five states’ oaths explicitly mention discretion, but none detail what using your “best discretion” looks like. Because of the oath that they have taken, we as a society have come to expect that lawyers will uphold the ideals represented in it. There are accountability measures in place for when a lawyer breaks their oath, but these measures are rarely used (Perota et al., 2018).

The inability to take action against prosecutors likely arises from the multiple inconsistencies between prosecutors’ offices across the country. All prosecutors are motivated differently, whether that be by a drive to bring justice, to give a voice to victims, or win cases. To measure this, I like to ask prosecutors how their bosses evaluated them while they were on the job– did their boss pay attention to how many cases they were winning? Did it matter how many indictments they were bringing (federal) or cases they were charging (state)? Was it about the quality of their written work? Or maybe, the relationships they were building? The answer is yes, all of those things, but not all at the same time. Some attorneys I spoke with would say it was only on their relationships with judges and their colleagues, and certainly not about their conviction statistics. Others told me it was absolutely about the stats. The varied office cultures make different kinds of conduct normalized; there is no universally accepted or ethical way to be a prosecutor in the United States, because each jurisdiction values something different from its prosecutors. This means that the office culture around how prosecutors are motivated is going to result in different approaches to cases and plea bargains.

The Politics of Plea Bargaining A prosecutor’s most well-known way of exercising discretion is through plea bargaining. Without plea bargains, the criminal legal system would come to a halt—about 95% of cases are resolved before a case reaches the trial stage (Devers, 2021). However, the process produces highly variable outcomes, and routinely disadvantages poor, non-white populations. Plea bargains often ask defendants to choose between impossible options: plead guilty to a lesser charge (that they may not even be guilty of), or exercise their right to trial, but face the possibility of a more severe punishment for refusing the plea. The decisions a prosecutor makes in charging and

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bargaining are unreviewable. These options are made possible through a practice called “creative lawyering,” where a prosecutor persuades a defendant to take a plea (and resolve a case quickly) by making the threat of trial even scarier than the punishment they’d receive through the plea.

Creative lawyering is the result of politics influencing prosecution (Whitman, 2009).

Political Influence: The Ashcroft Memo Political agendas have long influenced the approach that attorneys take to plea bargaining, particularly at the federal level. The most glaring example of this is when former United States Attorney General John Ashcroft released the infamous Ashcroft Memo (Ashcroft, 2003). As we talked about earlier, there truly is no universal way to prosecute crimes in the United States, and Ashcroft used his positioning as Attorney General to try and correct that. He wrote that federal prosecutors “must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case.” This marked a few major departures from previous Department of Justice (DOJ) officials. Previous Attorneys General who had issued directives on this matter wrote how prosecutors should pursue cases in a specific way, whereas Ashcroft’s must is more stern. The memo created pressure on prosecutors to be tougher on crime and go after more serious charges that carried heavier sentences. It also eliminated a practice that the DOJ used to use called “individualized assessment” – where prosecutors would evaluate how charges fit a case’s circumstances – in favor of more unrelenting aggression towards criminal acts (Vera Institute of Justice, 2017).

Ashcroft has not been the only political actor to use his post to influence how prosecutors do their jobs, which is what makes political influence over prosecutors all the more dangerous. One interviewee divulged her experience working for the DOJ during the Trump administration and into the beginning of Biden's term. She noted how the politics, attitude, and language around crime depended on the United States Attorney – a Presidential appointee – that was leading the office.

She told me how when she joined the office, her view of the DOJ was one of hope, justice, and fairness, but by the end of her time there in July 2021, the integrity of those around her had eroded over her five years because of how politically driven the work had been.

This inconsistent, back-and-forth is not a sustainable way to handle crime in a society. It reveals that the system is easily influenced by outside opinions about crime rather than focused on justice, fairness, and the protection of rights. The varied approaches to crime are how we encounter disparate treatments of different populations in our society, and in order for us to begin to function more fairly, we must come up with a reform that is not tilted by politics in the way our current practices are.

What Can be Done?

Reforms to date have largely ignored the work of the prosecutor. Reformists have been more concerned with correcting the discriminatory acts of police officers and inconsistencies in judicial sentencing, and have worked to limit the amount of discretion these to parties have in an effort to reduce disparities. However, discretion cannot be eliminated; only transferred from one party to another (Kaminer, 2010). Limiting a judge’s discretion shifts it to the prosecutor, taking it away from the prosecutor would pass it onto the police. The key to a more just and fair system is not to take everyone’s discretion away, but rather to incentivize using concentrated discretion in a responsible and accountable manner.

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Data Collection Encouraging more data collection throughout the criminal legal system is a common reform that rarely accomplishes real change. Yet, it is still a critical element that informs how the system should go about progressing from the harmful state we have now. Authors who take on prosecutorial discretion and its destructive nature commonly call attention to how there is so much we don’t know; but it is important to consider that we cannot stop at simply collecting the data (Plaff, 2017). Compiling it does nothing if policy makers do not pay attention to it and use it to inform their reforms.

If data collection is taken seriously, there are many points of contention that could use solid data to validate the existence of harm. I am partial to this first one, but collecting more data on what motivates prosecutors and how they understand their role in inflating mass incarceration is important so that we may begin to understand what makes these offices tick. Second, courts should increase their documentation of prosecutorial misconduct, and which allegations result in disciplinary action. It is also crucial to gather more data on the racial disparities in plea bargaining.

Duke Law has taken up the last suggestion – the study they have launched, called the Plea Tracker Project, is leading the way in collecting data on plea agreements. The study requires prosecutors to track the progression of a plea deal as it evolves and until the case has been resolved (Harrington et al., 2021). This Project is an exciting window into how prosecutors utilize their discretion, but it may not provide for the most helpful or meaningful results because the prosecutors are aware that they are participating. By having to document their approaches and reflect on why they made the offer that they did, they might be more inclined to act differently while the study is being conducted, because they know their actions are being observed and evaluated in a way that they typically are not. Realistically, this may be a good thing – prosecutors in those districts might be using their discretion more carefully than usual – but for the data collection, it is impossible to know if the results from this study will reflect the way that discretion is actually wielded by prosecutors. Additionally, only two DAs offices are participating at the moment, which is a farfrom-representative sample.

This highlights an important reality about using data collection as a check on the system.

As one author for The Atlantic put it, collecting and publishing data cannot address the shortfalls of the system because “transparency is not a cure for the disparities that data show” (Covert, 2021).

Prosecutors need more than just data collection to act as a check on the unbridled power they possess, and society deserves a check that will ensure that prosecutors are acting fairly and in their best interest.

Three-Point Plan One blanket reform policy will not be able to reign in prosecutorial discretion across the country. Reforming the power these prosecutors hold will take a multi-step process that does not attempt to approach all crimes and prosecutions the same way; the reform will have to preserve some level of discretion, but ensure that it is being used equitably. The reforms that I propose below are adapted from the plan that law professor Angela J. Davis maps out in her book, Arbitrary Justice: The Power of the American Prosecutor.

The key to launching prosecutorial reform is the recognition that something needs to change. This mindset shift must originate within the legal profession, and lawyers will have to come to an understanding of what sound ethics are in the prosecutor’s line of work. The governing

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body of lawyers – the American Bar Association – should initiate this by drafting and enacting newer, more binding standards for conduct for prosecutors. As it stands today, the ABA does have standards for how a prosecutor should use their discretion, but Davis notes that “No prosecutor is required to follow or even consider them” (Davis, 2007). This is entirely unacceptable; the new standards should be part of job training and implemented into job evaluations in order to ensure compliance.

The second phase is to strengthen the public accountability measures for prosecutors, and this will look like three steps: data collection, public information campaigns, and prosecutor review boards. Data collection in a few areas is imperative to the equitable growth of the profession. In addition to what I said earlier, more studies are needed on racial disparities in plea bargaining and sentencing, and this should be coupled with studies that look at whether the race or gender of the prosecutor influences the outcomes of cases. But this data collection cannot stand alone; rather, it is to better inform public information campaigns about prosecutors, their role in the system, and to help voters make more educated choices at the polls. Because the election itself cannot hold every prosecutor accountable, it is vital that the data collection be publicized to, at minimum, hold the DA accountable for the work of their ADAs at the state level, and keep a closer eye on the federal prosecutors who are not elected at all. This will allow the public to demand more of the prosecutors who theoretically represent the interests of the community they serve. In that vein, prosecutorial review boards are the final, and possibly, the most important measure in this step. A board filled out with community members with adequate representation should be started in all jurisdictions.

They will be tasked with reviewing cases at random to ensure sound decision making and good conduct among the prosecutors in their community. Because the review process is randomized, it incentivizes prosecutors to conduct business properly at all times, because any of their cases could be selected for review.

Legislative action is the third and final phase of Davis’ plan, in order to not take a “one size fits all” approach to reform. Mandatory minimum sentencing is a not-so-sparkling example of what happens when reforms attempt to standardize society’s approach to crime: individual circumstances disappear, and the number of people under carceral surveillance increases. Discretion is impossible to eliminate entirely, legislative action is important both to ensure compliance with the new reforms above and to allow for customization between jurisdictions. Mandates on data collection and reforming, guidelines about informative and ethical campaigning, and standards for review boards are just a few examples of what this could look like.

Most, but not all, prosecutors are likely opposed to these changes. It provides for more oversight of their work, and eliminates a lack of transparency that used to be an integral part of their process.

With more accountability, they might argue that they will be more hesitant in their bargaining and charging. The public could go one of two ways on this: if they do not see a need for reform (which is likely, because the role of the prosecutor is so hidden), they will side with the prosecutors, arguing that the new approach will make the legal system go “soft on crime,” instilling a fear that crime will increase uncontrollably. Alternatively, they could recognize the need for reform and be in favor of the propositions, because it could provide for a long overdue increase in transparency in their public servants, which the electorate is always after. Theoretically, there is a possibility that judges are in favor of this change. These actions would disincentivize the use of mandatory minimums, which limit the judge’s discretion, and in turn might return some discretion back to the bench.

Changing anything about how the criminal legal system currently operates will undoubtedly have unintended effects. Prosecutors might weaponize data collection to prove they are “tough on

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crime.” Knowing that their decisions are being monitored, elected prosecutors might attempt to beef up the statistics either close to their election or over the course of their term, and use it as proof that they are relentless on criminals and the only “tough on crime” candidate. So long as the random review process is utilized and results are publicized, society may start to turn away from the tough and soft on crime dichotomy, realize that justice can be individualized, and invalidate this campaign approach.

Concluding Remarks Talking with former prosecutors has illuminated just how many facets there are to prosecution, and how there is little to no consistency across jurisdictions. While conformity certainly is not the goal, it is dangerous for discretion to continue in the current state. Without more information and reform, we risk inflating prison and jail populations more than they already are, and especially risk that increase being composed of disproportionately non-white individuals. It is time for reforms that attack mass incarceration to focus on prosecutors, because after all, someone had to make a series of decisions to place each person under the watch of the carceral state – and that person was a prosecutor. Their unchecked power has grown beyond anything we could have conceived, and it is especially threatening that it was able to do so without the public recognizing how substantial the prosecutor’s role in our legal system has become. It cannot be understated how pivotal it is to understand prosecutorial discretion if we are aiming for a more just society.

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Ashcroft, J. (2003, September 22). Memo Regarding Policy On Charging Of Criminal Defendants. Department of Justice. https://www.justice.gov/archive/opa/pr/2003/September/03_ag_516.htm Covert, D. (2021, June 14). The False Hope of the Progressive-Prosecutor Movement. https://www.theatlantic.com/ideas/archive/2021/06/myth-progressive-prosecutor-justicereform/619141/ Davis, A. (2007). Arbitrary Justice: The Power of the American Prosecutor. Oxford University Press.

Devers, L. (2021). Plea and Charge Bargaining (p. 8). Bureau of Justice Assistance.

Erdody, L. (2014, October 20). Political advantage tends to rest with incumbents. TCA Regional News. http://www.proquest.com/docview/1613908297/abstract/B791E7FF88884E9DPQ/1 Federal Bureau of Prisons. (n.d.). BOP Statistics: Inmate Race. Federal Bureau of Prisons.

Retrieved December 22, 2021, from https://www.bop.gov/about/statistics/statistics_inmate_race.jsp Galvin, W. (n.d.-a). Elections: Statewide Office Elections Schedule: 2020-2028. Secretary of the Commonwealth of Massachusetts. Retrieved December 22, 2021, from https://www.sec.state.ma.us/ele/elesched/schedidx.htm Galvin, W. (n.d.-b). Elections: Voter Turnout Statistics. Secretary of the Commonwealth of Massachusetts. Retrieved December 22, 2021, from https://www.sec.state.ma.us/ele/elevoterturnoutstats/voterturnoutstats.htm Graham, D. A. (2015, July 7). Does It Matter That Most States Elect No Black Prosecutors? The Atlantic. https://www.theatlantic.com/politics/archive/2015/07/american-prosecutors-areincredible-whitedoes-it-matter/397847/ Harrington, A., Deberry, S., & Quigley-McBride, A. (2021, October 18). Why prosecutors must shine a light on plea agreements. The Boston Globe. https://www.bostonglobe.com/2021/10/18/opinion/why-prosecutors-must-shine-light-pleaagreements/ Kaminer, W. (2010, December 22). Mandatory Sentences and Myths of Equal Justice. The Atlantic. https://www.theatlantic.com/national/archive/2010/12/mandatory-sentences-andmyths-of-equal-justice/68399/ Kovera, M. B. (2019). Racial Disparities in the Criminal Justice System: Prevalence, Causes, and a Search for Solutions. Journal of Social Issues, 75(4), 1139–1164. https://doi.org/10.1111/josi.12355 Kutateladze, B. L., Andiloro, N. R., Johnson, B. D., & Spohn, C. C. (2014). Cumulative Disadvantage: Examining Racial and Ethnic Disparity in Prosecution and Sentencing.

Criminology, 52(3), 514–551. https://doi.org/10.1111/1745-9125.12047 Lantigua-Williams, J. (2016, May 18). Why Prosecutors Hold the Key to Justice Reform. The Atlantic. https://www.theatlantic.com/politics/archive/2016/05/are-prosecutors-the-key-tojustice-reform/483252/ Levine, S. (2017). The Potential Utility of Disciplinary Regulation as a Remedy for Abuses of Prosecutorial Discretion. Duke Journal of Constitutional Law & Public Policy, 12(2), 1–13.

Massachusetts District Attorney Association. (n.d.). Mass.Gov. Retrieved December 22, 2021, from https://www.mass.gov/orgs/massachusetts-district-attorney-association

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Perota, J., Werner, C., Hoskinson, J., Pennolino, P., & Leddy, B. (2018, August 6). Prosecutors: Last Week Tonight with John Oliver (HBO) [YouTube]. HBO. https://www.youtube.com/watch?v=ET_b78GSBUs Pfaff, J. (2017). Locked In: The True Causes of Mass Incarceration—And How to Achieve Real Reform. Basic Books.

Robb, M. (n.d.). Oaths of Admission for All 50 States. Retrieved December 22, 2021, from https://cdn.ymaws.com/www.inbar.org/resource/resmgr/litigation/Oaths.pdf van Meter, M. (2016, February 25). One Judge Makes the Case for Judgment. The Atlantic. https://www.theatlantic.com/politics/archive/2016/02/one-judge-makes-the-case-forjudgment/463380/ Vera Institute of Justice. (2017, May 25). The Sessions Memo: Back to the Past? Vera Institute of Justice. https://www.vera.org/news/the-sessions-memo-back-to-the-past Whitman, J. Q. (2009). Equality in Criminal Law: The Two Divergent Western Roads. Journal of Legal Analysis, 1(1), 119–165. https://doi.org/10.4159/jla.v1i1.8 Wright, R. F. (2016). Beyond Prosecutor Elections. SMU Law Review, 67(3), 593–616.

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Wellesley Law Journal THE WAR ON HOLLYWOOD: PENTAGON-SPONSORED FILMS ON U.S. ATTITUDES

by Shayla Zamora Abstract

The government, particularly the Department of Defense (DOD), has collaborated with Hollywood since its origin. With hundreds of projects based on this partnership, a central question arises: how do Pentagon-sponsored films affect U.S. attitudes towards government and war?

Additionally, what are the implications of this partnership, and how does the privately mediated production of wartime films affect the reception of these movies? Through the theoretical foundation of Hortense Powdermaker, Jurgen Habermas, Marshall McLuhan, and Benedict Anderson, this paper reveals how Hollywood and the Pentagon create narratives of morality and patriotism to increase citizen military enlistment while producing positive attitudes towards war and government. A thorough analysis of five films from the last 35 years, in addition to a brief discussion of the movie Wings (1927), reveals the themes, censorship, and conflicting alliances between the two spheres. From this analysis, it is clear that the DOD works with Hollywood to subtly display messages of heroism and “true” patriotism throughout all films. Through this subtle propaganda, the DOD uses Hollywood and its efforts to increase positivity towards war and enlistment to the military.

Introduction The United States government, Hollywood, and the Department of Defense (DOD) have collaboratively worked together since the start of the 20th century with the rise of the booming moving-pictures industry. While, at first glance, this collaboration does not seem troubling to an average consumer, the repercussions are perilous. Mainly since the late 20th century, White House officials and the Pentagon have worked with Hollywood to “sell the global war on terror” (Jacobson, 2020). In fact, after the attacks of September 11, 2001, “Pentagon officials and a veritable who's who of Hollywood producers, directors, and screenwriters met in the wake of the attacks … to brainstorm about future threats and attack scenarios” (Jacobson, 2020). To make matters worse, a spokesperson for President Bush once stated: “I have great respect for the industry and its ability to educate at home and abroad” (Jacobson, 2020). The administration's blatant commitment to sell the idea of Hollywood as educational is concerning since “western audiences often think … it's just a movie, it's escapism so [they] don't have to take these almost subliminal messages very seriously at all” (Jacobson, 2020). With hundreds of projects based on this partnership, a central question arises: how do Pentagon-sponsored films affect U.S. attitudes towards government and war? Additionally, what are the implications of this partnership? It is abundantly clear that audiences in the United States have a misconception that the movies created

by Hollywood are for educational purposes, not for entertainment. However, what happens when Hollywood portrays war and government positively? This paper reveals how Hollywood and the Pentagon create narratives of morality and patriotism to increase citizen military enlistment while producing positive attitudes towards war and government. From this analysis, it is clear that the DOD works with Hollywood to subtly display messages of heroism and “true” patriotism

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throughout all war films. The DOD blatantly uses Hollywood and its productions to increase positivity towards war and enlistment to the military through this subtle propaganda.

This paper will analyze six films to identify core themes, moments of censorship, and the conflicting alliances between the two spheres to understand the propaganda used by Hollywood and the government. The films the paper focuses on include Wings (1927), Top Gun (1986), Black Hawk Down (2001), Iron Man (2008), Independence Day: Resurgence (2016), and Captain Marvel (2019). It is important to note that most of these films were released in the last 35 years, except for Wings. Because of its historical importance, Wings serves as a broad foundation for movies based in the early 20th century. While an analysis of the earlier war films would provide a greater understanding of the origins and influence of the collaboration, this paper is interested in the recent propaganda techniques Hollywood and the government have implemented and how they increase the public's positive attitudes towards war and military involvement. In addition, while the earlier 20th century films generally focus on World War I, World War II, and the Cold War, the late 20th century and 21st-century films feature a wider variety of wars and conflicts. The variation dramatically adds to the paper's analysis based on how the U.S. decided to portray their involvement in these events, especially questionable ones.

A Brief History of the Relationship between Hollywood and the Pentagon According to the DOD, the Pentagon has “been working with filmmakers for nearly 100 years with a goal that’s two-fold: to accurately depict military stories and make sure sensitive information isn’t disclosed” (Lange, 2018). However, their partnership was not always official. It was not until “the end of World War II, [that] the Army finally set up an official Hollywood office that was part of the Signal Corps,” where there were even active-duty members whose sole job was to create films as part of the war effort (Lange, 2018). The government saw the power in video and filmmaking and took advantage of these efforts. Phil Strub, the entertainment liaison at the DOD since 1989, admitted in 2011 that “the relationship between Hollywood and the Pentagon has been described as a mutual exploitation. We’re after military portrayal, and they’re after our equipment” (Weisman, 2014). Hollywood gets the opportunity to save millions of dollars on equipment, locations, and military advisors.

In contrast, “the image and message of the American armed forces gets projected before a global audience” (Weisman, 2014). Thus, the Pentagon uses Hollywood as a way to create an imagined community where “the military are portrayed as good people trying to do the right thing the right way” (Rose, 2009). Current members of the American military, future armed forces enlistees, and the citizens of the United States view Hollywood films as proof of “a deep, horizontal comradeship,” regardless of “the actual inequality and exploitation that may prevail” in the armed forces and by the military (Anderson, 2006, p. 7).

Additionally, the government exploits the villagized globe created by films “to change not just the portrayal of the military but the portrayal of history for Americans. The result is the manipulation of the public’s view of its government - often substituting revisionist accounts for historical fact” (Robb, 2004, p. 13). Although the objects of negotiations and mediations - military personnel and equipment - are properties of the taxpayers, the military denies many scripts brought

by Hollywood “if they show the military in a negative light, such as scenes that include drug use, murder, or torture without subsequent punishment,” causing only films that are “uncritical and intensely patriotic” to be backed by the government (Robb, 2004, p. 21; Weisman, 2014).

Therefore, “these films were not simply the product of art and history but of a process of

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manipulation and negotiation. The ultimate subject of these negotiations was not the movie, but us.

The question is what we would be allowed to see and how particular images might influence our view of the military” (Robb, 2004, p. 22). To acknowledge the propaganda techniques created by the government with Hollywood’s aid, this critical lens of the audience as the subject of negotiations must be at the forefront of this analysis.

A Deeper Look: An Analysis of the Films The primary scholar the analysis surrounds includes the ideas presented by Hortense Powdermaker in “Hollywood and the USA.” Through the background presented prior, it is clear that “Hollywood is no mirror-like reflection of our society, which is characterized by a large number of conflicting patterns of behavior and values. Hollywood has emphasized some, to the exclusion of others” (Powdermaker, 2002, p. 162). Through the Pentagon and Hollywood partnership, negotiations shape the behaviors and values that dominate the films, particularly patriotism, honor, and valor (p. 163).

Powdermaker is used in conversation with Marshall McLuhan’s idea of the villagized globe since movies give people “ideas of what foreigners are like, and the latter may get their pictures of Americans in the same way” (Powdermaker, 2002, p. 163). Through the “manipulation of people through mass communications” facilitated by technology’s ability to “alter sense ratios or patterns of perception steadily and without any resistance,” audiences absorb films without hesitation and allow their perceptions of others to change drastically based on the power of this medium (Powdermaker, 2002, p. 162; McLuhan, 2002, p. 25).

Movies also allow businessmen and government officials “to take over the functions of the artists and to substitute his values for theirs” while mechanizing artists’ creativity (Powdermaker, 2002, p. 168). This mechanization of Hollywood creates patterns and themes throughout all war films. As Hollywood establishes these themes, the world’s public sphere is altered as films are “transformed by the influx of private interests” (Habermas, 1989, p. 76). As the U.S. government and the Pentagon alter the public sphere, Hollywood creates an imagined community of United States patriotism and a shared passion for war, industrialization, and honor.

Wings: The Origins of Hollywood Patriotism Wings was released in 1927, a few years after the end of World War I, and is regarded as “the first air epic and the last great silent film.” (Allen, 2015). It is the first film to receive the Academy Award for Best Picture and is notable for its “meticulously re-created battle scenes that drew on the skills of real pilots and soldiers” (Allen, 2015). Unlike other directors of the time, only Wellman had flown in combat in World War I, enabling him “to know exactly what he wanted to do with his planes and pilots on the screen” (Suid, 2002, p. 35). Because of his experience and relationship with the military, Wellman had a drastically different experience with the DOD compared to future war film producers and directors. Wellman “brought a no-nonsense attitude,” and he “took the War Department’s initial agreement to provide assistance to Wings as a blank check” (p. 35). The DOD changed its regulations concerning work with Hollywood in the 1960s.

Before this, “the final decision on the amount of assistance actually provided rested with the local commanders” (p. 35). Thus, Wellman received “unprecedented support in the form of men, materiel and staging areas.” (Allen, 2015). Because of the amount of support he received for Wings, the film sets a standard for military cooperation for all future war films.

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The DOD supported Wings to an extraordinary level because of its apparent patriotism.

Wellman dedicated the film to “those young warriors of the sky whose wings are folded about them forever” and is the first to feature the Air Corps (Wellman, 1927). The DOD needed a film of solid patriotism during this time. As John Manguso, author of Fort Sam Houston, states, “after the ‘war to end all wars’ and the pacifist streak that followed … a swashbuckling war film would be good for recruiting” (Wellman, 1927). Thus, Wings is one of the first films to start using military patriotism for enlistment.

Like future war films, Wings sets up clear themes relating to war, establishing imagined communities of patriots and altering the public sphere regarding attitudes towards the military.

Through phrases like “Youth answered the challenge” or “a man returning, where a boy had gone away,” Wellman creates a sense of community by establishing enlistment to the military as a rite of passage (Wellman, 1927). Wellman also establishes the ideal of soldiers as valent heroes, saving the people from destruction. “While over the world hung a cloud which spread and spread until its shadow fell to some degree on every living person,” the Youth, particularly men, went through the “door that only the bravest of the brave dared open - a path of glory mounting toward the stars!”

(Wellman, 1927).

Wings also creates a sense of brotherhood and comradeship between the two protagonists, Jack Powell and David Armstrong. The film centers on the relationship between the two and the love triangle they are in with Sylvia Lewis. The film highlights comradery between both characters and makes a point to argue that their relationship is much more significant than the love of a woman.

Wellman also establishes the theme of sacrifice and losing loved ones because of war. Two of the most predominant women in the film, Mary Preston and Mrs. Armstrong, express feelings of lament and loss but excuse their loss because “it was war!” Both women say, “it wasn’t your fault” or “I can’t blame anyone for anything” to Jack (Wellman, 1927). Wellman is, therefore, establishing the belief that people cannot blame someone or something for loss because it is a consequence of war that cannot be changed. This dismissive attitude also excuses U.S. behavior and involvement in the war since war is portrayed as uncontrollable.

Top Gun: Recruitment Race Against Vietnam War Like Wings, Top Gun features predominant pro-military themes that foster positive attitudes towards government and war. This film features the sensation of brotherhood and comradeship, as seen through the relationship between Maverick and Goose and the other soldiers. For example, it is not uncommon to hear Maverick or other characters say comments like, “when I fly, I’ll have you know that my crew and my plane come first” (Scott, 1986). It is important to note that the protagonists’ real names are Pete and Nick, respectively. Using the characters’ “call names” in place of their given names establishes a new identity for the characters as if they are embedded in a new imagined community of soldiers with shared beliefs and interests. Like Wings, there is a sense of competition between soldiers when in training, but they form part of the same team against a common enemy when in combat. This behavior establishes an “us versus them” mentality that aids the audience in understanding that regardless of differences at home, the real issue is abroad, as seen by statements from the character Iceman: “You may not like who’s flying with you, but whose side are you on?” (Scott, 1986). Additionally, Top Gun, similar to Wings, establishes emotions and beliefs of valor and “bestness.” Through phrases like “you are America’s best” and “make us proud,” the audience embraces the idea that the military is a positive and protective institution in society, fostering a sense of pride and patriotism (Scott, 1986).

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Unlike Wings, Top Gun bases its plot around a stubborn rebel, which is interesting for Pentagon sponsorship since a military requires soldiers that obey the rules. Film producers Don Simpson and Jerry Bruckheimer believed that Top Gun “really did not have a lot to do with the Navy, per se. It had a lot more to do with a contemporary American rebel, who was untamed, but got better through understanding that when he teamed up and played within the structure, not necessarily within the rules, he won in even a bigger way” (Suid, 2002, p. 495). Although the film “used the service as a backdrop to a love story” featuring an idealized soldier, they did not believe the audience would receive the film as a pro-military movie because of the pacifist attitudes postVietnam war (p. 497). They stated that “the military is probably never going to be safe for Hollywood again. Vietnam was a major fuck up. So the military is never going to be safe, not as long as people who lived during Vietnam are alive and are making movies” (p. 495). Tom Cruise, the actor who played Maverick, shared these beliefs. Cruise commented: “I want the kids to know that that’s not the way war is - that Top Gun was just an amusement park [sic] ride, a fun film with a PG-13 rating that was not supposed to be reality … it’s like a simple fairy tale” (p. 500).

Regardless of the intentions towards the production and meaning of the film, the audience created their interpretation with the aid of military intervention. The Navy viewed the film as “a proper depiction of what the armed forces are like and how they operate,” so much so that they set up recruitment booths in movie theaters (Robb, 2004, p. 183). After Top Gun was released, “recruitment of young men wanting to become naval aviators went up 500 percent” (Robb, 2004, p. 182).

Whereas Wings had complete control over military intervention and censorship in the film, Top Gun featured heavy censorship, a theme throughout all future films. The Navy lent Tony Scott and his producers “aircraft carriers, planes, and pilots and perfecting aerial choreography” in exchange for Scott “to film planes taking off and landing on aircraft carriers and combat scenes above the ocean, so as to give the film the ‘Navy’ stamp” (Valantin, 205, p. 7). This way, the Pentagon would show the film’s global audience their innovative equipment in hopes of increasing military enlistment. Additionally, the film’s screenwriters had to change the occupation of Maverick’s love interest. In the original script, the love interest “was an enlisted woman in the navy. The navy, however, forbids fraternization between officers and enlisted personnel,” so the screenwriters changed her to an outside contractor (Robb, 2004, p. 94). As seen by these adjustments by the Navy, they attempt to create a positive, innovative, and “true” portrayal of active duty members to encourage recruits. The relationship between Hollywood and the Pentagon was especially needed at the time the film was released “when polls showed many Americans expressing doubts about the post-Vietnam military and about the constant saber-rattling from the White House” (Sirota, 2011).

Black Hawk Down: Gore, Reality, and Censorship By 1991, Phil Strub told the Hollywood Reporter that “he’d seen a 70 percent increase in the number of requests from filmmakers for assistance,” radically changing the way the Pentagon worked with Hollywood post-Top Gun (Sirota, 2011). This radicalization in Pentagon sponsorship is evident in Black Hawk Down, where the military forced major adaptations to portray the military positively.

Black Hawk Down is based on an actual event where there was U.S. military intervention in the Somalian civil war. Ranger Specialist John Stebbins was a real soldier from this event. Before the film’s production, Stebbins “was court-martialed and sentenced to serve thirty years in a

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military prison for raping a twelve-year-old boy” (Robb, 2004, p. 91). Because of this, the Pentagon required Stebbins’s name to be changed in the movie, and the producers agreed. The film required military assistance for the use of their helicopters. Stebbins’s name change was caused by the belief from the army that they “didn’t want one of its heroes to be tarnished in the public’s mind by his real-life crimes” (Robb, 2004, p. 92). The Pentagon’s decision to change Stebbins’s name was controversial because “according to [A Producer’s Guide to U.S. Army Cooperation with the Entertainment Industry], the army will provide assistance only to films that depict real people and real events if those people and events are portrayed in an ‘authentic’ manner” (p. 92). By changing the name of a real person, they are not authentically representing the military. Regardless, they did this to ensure positive attitudes from the audience. Military intervention in the film is surprising overall because of the message and reception of the film. Some saw the film as “racist, since white soldiers comprised most of the force that went into Mogadishu and killed black Somalis. Others saw the movie as portraying the failure of a noble, humanitarian effort to feed starving people or the defeat of elite American forces by a ragtag native population.” (Suid, 2002).

The film features the same general themes from Wings and Top Gun, like brotherhood, as seen through the repeating motto of “no one gets left behind” (Scott, 2002). The film also includes themes of heroism and spreading democracy and humanitarian efforts, as seen by the infamous quote: “Look, these people, they have no jobs, no food, no education, no future. I just figure that we have two things we can do. Help, or we can sit back and watch a country destroy itself on CNN. Right?” (Scott, 2002). Regardless, the film features incredibly gory and brutal scenes that can drive audiences away. However, the film’s realism is what the Pentagon enjoyed from the film. The Pentagon liked the film because “the movie realistically depicts young men fighting the enemy up close, fighting for their buddies and, like the Rangers’ creed, never leaving a fallen comrade” (Snead, 2002). Matt Eversmann, an Army Ranger portrayed in the film, states: “I hope people see this movie and leave thinking, ‘Wow, we have brave men who are committed to defending our country.’ That’s what I hope will come from this” (Snead, 2002). Thus, the goriness and messy politics of the film was welcomed by the Pentagon. Like Top Gun and Wings, Black Hawk Down instills a sense of pride from the audience and a feeling of protection. On behalf of young men watching the movie, it inspires them to enlist to be called heroes by their families, communities, and the country - furthering the feeling of pride.

Iron Man: Enemy Turned Hero As observed in Wings, Top Gun, and Black Hawk Down, the Pentagon has used Hollywood to subside pacifist attitudes of the audience due to questionable or general tiredness of U.S. military interventions. From World War II, the Vietnam and Cold War, and the Somalian civil war, films portray the military in a positive light to U.S. citizens and showcase the American military as a global power. “Post 9/11, the appetite of U.S. film-goers for patriotic entertainment might be undiminished, but recruitment rates are low” (Rose, 2009). There has been an increasing trend of the Pentagon supporting science fiction films instead of solely ‘real’ war films to combat this. The 2008 Iron Man film is one of the first to begin the trend. Interestingly, the DOD decided not to sponsor later Iron Man films, including The Avengers films, because they were too unrealistic.

Regardless, science fiction films allow the Pentagon to intervene and demonstrate their technology, equipment, and power without the fear of the potential repercussions of political and ethical dilemmas.

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Similar to the previous films, Iron Man includes themes that show the military in a positive light. Lieutenant Colonel James Rhodes, Tony Stark’s friend, and military liaison, often praises the military. Rhodes embraces the comradeship found in the service, which is evident when he states, “I see in that mirror that every person that’s got this uniform on got my back!” (Favreau, 2008). In other words, like Top Gun and Black Hawk Down, there is an understanding between soldiers that they all work as a unit and support one another in times of need. Additionally, Rhodes takes pride in being a pilot: “The future of air combat... Is it manned, or unmanned? I’ll tell you in my experience, no unmanned aerial vehicle will ever trump a pilot’s instinct” (Favreau, 2008).

Regardless of the technological innovations created, the Pentagon clarifies that the soldiers are at the heart of the military, invoking pride in servicemen and women and encouraging others to enlist.

Similarly, there is the common motif of pride and honor. When the enemy uses Stark's military equipment, Stark realizes that he “had more to offer this world than just making things that blow up” (Favreau, 2008). In a way, this sounds anti-military, but he also states: “I saw young Americans killed by the weapons I created to defend them and protect them” (Favreau, 2008).

Therefore, there is still a sense of protecting U.S. citizens. Stark also states that he “had become part of a system that is comfortable with zero accountability” (Favreau, 2008). Statements like this from Stark, who works for the U.S. government, make the government seem more accountable because he realizes the errors of his ways and attempts to fix them by becoming Iron Man. Thus, by addressing the questionable military intervention and substituting it with a science-fiction solution, Iron Man creates a parallel to the Pentagon’s strategy of making the switch to science fiction films while broadcasting propaganda messages subtly.

The positive attitude towards Iron Man is surprising since the motivation behind the character was supposed to create the opposite effect. Stan Lee, the creator of Marvel Comics, stated: I think I gave myself a dare. It was the height of the Cold War. The readers, the young readers, if there was one thing they hated, it was war, it was the military … So I got a hero who represented that to the hundredth degree. He was a weapons manufacturer, he was providing weapons for the Army, he was rich, he was an industrialist. I thought it would be fun to take the kind of character that nobody would like, none of our readers would like, and shove him down their throats and make them like him … And he became very popular.

(Keller, 2020) Regardless of this self-imposed challenge by the creator, Iron Man does an excellent job of portraying the military-industrial complex, where “the military exists only as a means to compare and contrast” to demonstrate their global power (Keller, 2020).

Independence Day: Resurgence: The Switch to Science Fiction Continuing the science fiction trend, Independence Day: Resurgence portrays the U.S. military positively. However, it is interesting to note the changing attitudes towards the franchise.

The DOD did not back the original Independence Day with Will Smith because they did not favor military interests. In an official memo by a DOD official, the Pentagon stated the following: “the plot is the same tired story of nasty aliens ruthlessly brushing aside the pathetically desperate, inappropriate, and completely futile attempts by the military to counter-attack” (Robb, 2004, p. 67).

In another memo by Lieutenant Dustin Salem, deputy director of the Marine Corps’ public affairs office in Los Angeles, the DOD claimed:

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We see military bases and aircraft decimated by the aliens and ultimately it takes a civilian to stop the alien takeover … As it stands, Steve Hiller [played by Will Smith] is the main military hero. Steve’s cavalier attitude and irresponsible actions - saying ‘let’s kick some alien ass’, giving fireworks to a child, etc. - do not reflect the maturity and leadership traits that a real Marine Corps officer must have. Steve may be a crack pilot, but he is no leader of Marines. Although Steve acts historically in the end, he has some serious character flaws that need to be addressed. The fact that Steve dates a stripper also reflects poorly on his character. (p. 68) The dissatisfaction with Independence Day’s military and the protagonist’s lack of maturity or leadership traits is interesting, especially when combined with Top Gun’s Maverick character.

Maverick rebelled against his superiors and killed his best friend, Goose, because of his arrogance.

Top Gun encouraged poor behavior from active duty members. A sequel to the film was never produced because of The Tailhook Scandal that “occurred in 1991 at the Las Vegas Hilton Hotel, where hundreds of navy pilots took part in the molestation and mauling of eighty-seven women” (p. 182). Thus, films that featured drinking and womanizing were frowned upon. Therefore, the distinction between the first and second Independence Day films is necessary to understand the relationship between Hollywood and the Pentagon.

Inspirational speeches from the president and service people are prevalent throughout the film, again invoking positive attitudes from the audience. Curiously, the film makes comments like “people of one world” after the victory from the original movie. In a speech from the U.S. president of the fictitious world, she stated that “for 20 years the world has seen no armed conflict. Nations have put their petty differences aside. United, we rebuild our families, our cities, and our lives (Emmerich, 1996). While this seems like a utopian future, the film enforces the U.S. as a global superpower since it is based on the U.S. Air Force. Because of the power of the military, a phenomenon arises: “the Air Force saves the United States and thus the world” (Valantin, 2005).

Jean-Michel Valantin claims that the military has Pearl Harbor syndrome where “the struggle presents itself as the way in which the ideal of ‘global reach’ can be attained, in other words, the ability to project forces anywhere in the world in a very short space of time” (Valantin, 2005). By conquering the aliens, the U.S. achieves the Pearl Harbor syndrome by affirming its legitimacy and global dominance.

Similar to previous films, Independence Day: Resurgence includes common themes relating to pride, honor, leadership, and comradery. The president from the first film and the father of one of the protagonists in Independence Day: Resurgence tells his daughter, “it’s good to see you flying again. Your place is in the air” (Emmerich, 1996). A positive attitude towards belonging to the Air Force is enforced with this dialogue and encourages others with a need for belonging to enlist. There is also a sense of honor and duty to U.S. citizens. Messages like “we can’t let them down” and “we all have to fight till our last breath” create attitudes similar to Black Hawk Down, where the audience feels pride towards their army for sacrificing their lives to save the U.S. and, therefore, the world (Emmerich, 1996).

Independence Day: Resurgence also features direct interventions by the military to promote enlistment. In a trailer for the movie, “Join the ESD,” released in 2016, stars from the films talk directly to the camera, praising the U.S. military and requesting that viewers join the Earth Space Defense hosted on the official Army website. To gain access to movie extras, visitors can sign up using their Facebook information, providing the Army access to their personal information.

Additionally, the website visitors accomplish tasks as they play games inspired by Independence Day: Resurgence. Once users finish the games, a pop-up message detailing real-life Army careers

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encourages users to enlist (McIntosh, 2016). Like the direct intervention for enlistment purposes for Top Gun, the military uses this trailer as propaganda disguised as a virtual game. Similar trailers for Independence Day: Resurgence include these subtle messages that change the film’s reception as a pro-military film, even if it is about aliens. These trailers, like the film, are “appealing to patriotism, it’s appealing to service, it’s a higher calling. Those connections are still there whether it’s that made-up thing or if it’s real” (Ulaby & Siegel, 2016).

Captain Marvel: Science Fiction Prevails and Feminist Patriotism Similar to Independence Day: Resurgence, much of the advertising for the movie includes cross-promotion for the Air Force, directly influencing the reception of the film. Captain Marvel predominantly featured two advertisements, “Monday Motivation: Taking Flight” and “Origin Story.” The primary motivation is clear: “the superheroics and virtuous qualities of fictional Air Force pilot Carol Danvers are directly compared to real life Air Force pilots” (Baron, 2019). In one of the ads, Brie Larson, who plays Carol Danvers, states that “the core of [Carol Danvers] is the Air Force,” encouraging the audience to view the Air Force as they do Captain Marvel (Whalen, 2019). The ads are so effective and pro-military that they are described as “the recruiting tool of the Air Force's dreams” since “marketing for the movie emulated military recruitment ads in its depiction of a young woman's transformation from new recruit to warrior” (Whalen, 2019).

Like Top Gun and the Navy's recruitment efforts, “the Air Force placed pre-show ads in more than 3,600 theaters nationwide, bought space at geek hubs such as Fandom.com, and hosted its own press events with Larsen, as well as a red-carpet screening in Washington, D.C.” (Pawlyk, 2020). Because of these efforts, “the Air Force Academy's class of 2023 will be the highest in the last five years” (Pawlyk, 2020). The military is calling this phenomenon the “Captain Marvel Effect.” The DOD declared that they intend on getting “involved in everything ... and [they are] going to do what [they] can do to get out and make sure [they] get [their] message across” (Pawlyk, 2020).

Besides ads, the film includes the same trends from the previous films that create a sense of pro-military attitudes. Much like Wings, war is seen as a natural thing with inescapable consequences. Characters within the film frequently state that “war is a universal language” (Boden & Fleck, 2019). Talos, the original villain of the film, even states, “this is war. My hands are filthy from it, too. But we're here now” (Boden & Fleck, 2019). By normalizing war, the film naturalizes death and destruction and influences the public sphere to believe that war is simply something that, unfortunately, must be done.

Additionally, the film establishes parallels between Carol Danvers and the Air Force by highlighting her heroism and honor for the safety and protection of the people. Danvers constantly makes comments like, “if there are lives at stake, I'll fly the plane” (Boden & Fleck, 2019) Similarly, her superiors tell her and the other Kree warriors to “serve well, and with honor” (Boden & Fleck, 2019). With the already established imagined communities surrounding beliefs on the military and their positive work, Captain Marvel helps continue that legacy to enforce the communities' public sphere.

Final Thoughts on the War on Hollywood Since the early 1900s, especially in the last 35 years, the Department of Defense has embedded itself within Hollywood, heavily influencing the reception of war and conflict movies.

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Through sinister marketing and advertising techniques, the Pentagon infiltrates the Entertainment Industry to increase recruitment efforts and change the perception of military attitudes in the public sphere. The influence of the public sphere by this relationship is discussed in the prelude to JeanMichel Valantin’s book, Hollywood, the Pentagon, and Washington: By the power and suggestion of cinema, they cause a surge in the nation’s collective consciousness of fundamental themes running through the current issues in the American strategic debate … In the United States, the issue of national Destiny is the subject of several cinematic traditions… The second is that of national security cinema, which, through detective films, war films, spy movies, science fiction, and even romantic comedies, questions America’s chances of survival and the legitimacy and use of her armed power, now and in the future … Cinema gives substance and the emotional reality of the cinematic image to the virtual Nature of strategic thinking, or to the impermanence of collective recall, by creating an alternative history, imagined and transformed into a shared spectacle which establishes a mental universe where strategic current affairs are played out, or replayed, in order to be knocked down or ‘built up’ … History not being strictly linear but also synchronic, the approach adopted here is both chronological and thematic in order to take into account this complex process where strategy and the cinema industry intersect. (p. XXII) Hollywood and the Pentagon legitimize the United States’s global power and dominance in the villagized globe established by cinema. History is seen as ‘synchronic’ to account for the military strategies proposed by the DOD and highlighted through Hollywood. The ‘synchronic’ outlook on how history is represented in movies is very similar to Dina Iordanova’s perspective, as outlined in chapter five of Cinema of Flames: Balkan Film, Culture and the Media. According to Iordanova, historians work with criteria to establish objectivity, whereas “filmmakers have no illusions that in historical reconstruction there is an intricate selectivity as to what is remembered when, and what aspects of the past are left to gather dust in remote corners” (Iordanova, 2001, p. 89).

Because of the duality of representing history, Iordanova notes that filmmakers have an advantage because they approach “historical material by creating a picture of multiple, fragmented pasts, and have relied on discontinuous narratives, most often with the intention of commenting on the present” (p. 89). Due to the fragmentation of history and the discontinuous narratives presented by filmmakers, “cinematic accounts of history give us the chance for a much richer and multidimensional grasp of the past and its extended influences on the present” (p. 91). Although Iordanova offers a more optimistic outlook on the representation of history in film, a parallel emerges between Balkan film and U.S. Pentagon-sponsored movies.

Both attempt to subject their audiences to a fragmented, synchronic representation of history while simultaneously highlighting cinematic themes that aid in the reception of the filmmaker’s subjective understanding of events. While Iordanova broadcasts Robert Rosenstone’s belief that “filmmaking should be seen as an alternative to the standard historical discourse,” this paper argues that Hollywood should proceed with caution (p. 91). The capability Hollywood possesses to influence the global public sphere on the power of the U.S. military is dangerous and has irreversible consequences if not mediated.

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Allen, P. (2015, April 12). “Wings” brought Hollywood to S.A. San Antonio Express-News. https://www.expressnews.com/150years/culture/article/War-movie-Wings-broughtHollywood-to-SA-6192708.php?converted=1 Anderson, B. (2016). Imagined Communities: Reflections On the Origin and Spread of Nationalism (Second). Verso.

Baron, R. (2019, March 16). The MCU’s Relationship With the Military, From Iron Man to Captain Marvel. CBR. https://www.cbr.com/captain-marvel-mcu-military-relationship/ Boden, A., & Fleck, R. (2019, March 8). Captain Marvel. Walt Disney Studios Motion Pictures.

Emmerich, R. (1996, July 3). Independence Day. 20th Century Fox. Favreau, J. (2008, May 2). Iron Man. Paramount Pictures.

Habermas, J. (1989). The Public Sphere: An Encyclopedia Article. In Critical Theory and Society: A Reader. Routledge.

Iordanova, D. (2001). Chapter 5: Balkan Film and History: The Politics of Historical Collage. In Cinema of Flames: Balkan Film, Culture and the Media. British Film Institute.

Jacobson, A. (2020, May 20). From patriotism to recruitment: How Hollywood helped the U.S. military sell the War on Terror. CBC Radio. https://www.cbc.ca/radio/from-patriotism-torecruitment-how-hollywood-helped-the-u-s-military-sell-the-war-on-terror-1.5580543 Keller, J. (2020, August 11). That one scene in “Iron Man” that captures the irony of the US military’s role in comic book movies. Task & Purpose. https://taskandpurpose.com/entertainment/iron-man-f22-raptor-scene/ Lange, K. (2018, February 28). How & Why the DOD Works With Hollywood. U.S. Department of Defense. https://www.defense.gov/News/Inside-DOD/Blog/Article/2062735/how-whythe-dod-works-with-hollywood/ McIntosh, J. (2016, September 28). Military Recruitment and Hollywood [YouTube]. Pop Culture Detective. https://www.youtube.com/watch?v=N5xfBtD6rLY McLuhan, M. (2002). The Medium Is the Message. In K. Askew & R. R. Wilk (Eds.), The Anthropology of Media: A Reader (Vol. 2). Blackwell Publishers.

Pawlyk, O. (2020, January 5). “Captain Marvel” Effect? Air Force Academy Sees Most Female Applicants in 5 Years. Military.Com. https://www.military.com/dailynews/2020/01/05/captain-marvel-effect-air-force-academy-sees-most-female-applicants-5years.html Powdermaker, H. (2002). Hollywood and the USA. In K. Askew & R. R. Wilk (Eds.), The Anthropology of Media: A Reader (Vol. 2). Blackwell Publishers.

Robb, D. (2004). Operation Hollywood: How the Pentagon Shapes and Censors the Movies.

Prometheus Books.

Rose, S. (2009, July 6). The US military storm Hollywood. The Guardian. https://www.theguardian.com/film/2009/jul/06/us-military-hollywood Scott, R. (2002, January 18). Black Hawk Down. Sony Pictures Releasing.

Scott, T. (1986). Top Gun. Paramount Pictures.

Sirota, D. (2011, August 26). 25 years later, how ‘Top Gun’ made America love war. Washington Post. https://www.washingtonpost.com/opinions/25-years-later-remembering-how-top-gunchanged-americas-feelings-about-war/2011/08/15/gIQAU6qJgJ_story.html

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Snead, E. (2002, January 13). The Special Operation Of “Black Hawk Down.” Washington Post. https://www.washingtonpost.com/archive/lifestyle/style/2002/01/13/the-special-operationof-black-hawk-down/cbf4cff9-610e-49d2-b44c-7a12f10909f5/ Suid, L. (2002). Guts & Glory: The Making of the American Military Image. The University Press of Kentucky.

Ulaby, N., & Siegel, R. (2016, May 12). U.S. Army Takes Unique Approach With New Recruitment Video: NPR. In All Things Considered. NPR. https://www.npr.org/2016/05/12/477835964/u-s-army-takes-unique-approach-with-newrecruitment-video Valantin, J.-M. (2005). Hollywood, the Pentagon and Washington: The Movies and National Security from World War II to the Present Day. Anthem Press.

Weisman, A. (2014, March 5). One Man In The Department Of Defense Controls All Of Hollywood’s Access To The Military. Business Insider. https://www.businessinsider.com/phil-strub-controls-hollywoods-military-access-2014-3 Wellman, W. A., & d’Abbadie d’Arrast, H. (1929, January 5). Wings. Paramount Pictures.

Whalen, A. (2019, February 28). “Captain Marvel” is the latest superhero movie to promote the U.S. military. Newsweek. https://www.newsweek.com/captain-marvel-superhero-moviesair-force-comic-book-military-promotion-1348486

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Wellesley Law Journal THE DEAL WITH THE PARIS CLIMATE ACCORDS

by Enya Chi

As climate change worsens with increased globalization and industrial activity, there has never been such urgency for the need of global climate action. To battle the impending consequences of global warming, leaders from 175 countries congregated in Paris on December 12, 2015 at the United Nations Framework Convention on Climate Change’s (UNFCCC) 21st Conference of the Parties (COP 21) to strike up a global plan to curb climate change. The treaty, which went into effect on November 4th 2016, is known as the Paris Climate Accords. It is a landmark international treaty adopted by 197 countries to address climate change and its negative impacts. The treaty aims to substantially reduce global greenhouse gas emissions to below 2, preferably to 1.5 degrees Celsius, compared to pre-industrial levels. To achieve this long-term temperature goal, countries plan to reach global peaking of greenhouse gas emissions as soon as possible and all major emitting countries committed themselves to cut their climate pollution in order to reach a net-neutral world by mid-century (United Nations Framework Convention on Climate Change [UNFCCC], 2016). The Paris Agreement marked a historic turning point for global climate action as world leaders came to a consensus about measures to combat the climate crisis and adapt to its impacts.

However, five years into the Agreement, much of our environment remains much unchanged, and in some places, progressively worse, which makes the effectiveness of the Paris Agreement questionable. Thus, this makes us wonder, why has the Paris Climate Agreement failed to facilitate policy change despite widespread acceptance, and in what type of world system does the current state of international relations fall under that led to inadequate climate action? In sum, realism best explains the reality of international politics as anarchy and self-interest trumps the need for global collective action, even though elements from social constructivism and liberalism would expect us to come to a very different conclusion about the issue, where by changing the conversation and reconstructing the problem, and cooperation works with institutions, we might be able to add new policies to the agenda to resolve the current shortcomings of the Paris Climate Accords that failed to create substantial climate impact.

While the Paris Climate Accords is the first time that global actors reached a multilateral agreement about the necessity for climate change on the international front, climate change activism itself is not a new theme, with its origin finding roots in domestic policies and social norms and activism that ultimately found its way into the transnational agenda. The importance of climate change has continuously circulated among citizens and the media since the 1960s. Some examples include the environmental protests following the 1962 book Silent Spring, observation of Earth Day/Earth Hour, Environmentalism, and the Chipko Movement, that met large social successes and greatly influenced people and governments to push for domestic and global change towards the climate crisis. In fact, many local states at the provincial, state, and municipal status have already adopted environmental goals to limit carbon emission. For example, British Columbia has imposed a carbon tax, California has initiated a cap-and-trade carbon plan, and Melbourne has set a goal of zero net emissions by 2020 (Looney, 2016). It is expected that these movements will gain momentum in other parts of the world too, since climate change is a global phenomenon. As people become better educated on this subject and feel their lives negatively impacted by climate disasters, they will be more inclined to vote for leaders and give the government more accountability to adopt better policies in response to climate change, effectively forcing politicians to take a long-run view

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on sustainability (“Most Registered Voters,” 2016). Hence, when all governments are pushed locally towards greater environmental responsibility, they will therefore be more motivated to join a global environmental movement, such as the Paris Agreement, as climate change is a global issue.

This is social construction at work in international relations, where actors are influenced by domestic policies and norms set by the standards of appropriate behavior, and come together to focus on global change in organizations of domestic and international life. In international relations, social constructivism, according to Baylis, focuses on the “centrality of ideas and human consciousness,” and “stresses a holistic and idealistic view of structures,” in that “the view of the structures cannot be decomposed into the individual units and their interactions because structures are more than the sum of their parts” (Baylis et al., 2020, p. 196). The Paris Climate Accord is a prime example where social norms to reverse climate change and greenhouse emissions become internationalized and institutionalized in an international treaty that holds every actor responsible in upholding these values. As the actors’ interest in solving the climate crisis is influenced by domestic culture, identity, and prevailing ideas, their choices often reflect norms of appropriate behavior, and the Agreement sustains these identities and shapes actions through enforcing norms of just and appropriate behavior, or in this case, solutions for climate change. The international socialization of the severity of global warming and environmental awareness is thus spread via diplomatic praise and acceptance, legitimized through networks and international organizations like the Paris Agreement that act as agents for socialization and policy changes.

Moreover, because the success or failure in the battle against climate change is determined by whether the international collective goal is achieved, it is thus logical for the Paris Climate Accord to be constructed on the basis of interdependence and international cooperation. The system of interdependence, checks and balances, and democratic legitimacy that the Paris Accord is agreed upon makes it a prime example of liberal internationalism at work, as global actors scramble towards the common goal of reducing emissions. In the treaty, a framework of support is established between developed and undeveloped countries in climate finance, technology development, and capacity building support in order to finance large-scale investments and reduce emissions (UNFCCC, n.d.-b). This approach reaffirms liberal ideals that developed countries should take the lead in providing financial assistance to countries that are less endowed and more vulnerable, showcasing the intricate link between global interdependence and peaceful cooperation. As liberal internationalism is founded upon Kant’s Enlightenment theories of a republic state, freedom, and universal peace, it emphasizes on “the gradual process of integration and unification of states and peoples” through a “shared sense of identity and belonging” for global actors to “talk about the rights and responsibilities that exist as a result of internationalism” (Baylis, Smith, and Owens 2020, p. 104-7). The Paris Accord reiterates this global liberal order defined by international regimes and institutional rules by enabling the sharing of state power through democratic negotiations and treaties that provides a pathway for developed nations to assist developing nations in their climate mitigation and adaptation efforts.

Additionally, the legitimacy and democratic transparency of the Paris Climate Accord also enhances its liberal values and gives hope for a future of peaceful international cooperation and democracy towards a common goal. In order for the Agreement to be lawfully implemented, at least 55 UNFCCC parties, which accounts for 55% of global greenhouse gas emissions, must ratify and accept the clauses of the treaty. Since 2015, 197 countries—nearly every nation on Earth— have endorsed the Paris Agreement, and the Paris Accord went into effect on November 4th 2016, 4 years earlier than the intended 2020 deadline (UNFCCC, 2016). Given a democratically

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determined outcome, the enthusiasm of global actors to formally approve the treaty enhances the legitimacy and importance of the Agreement in shaping global actions and interests. Furthermore, the Agreement also has a transparent framework to help countries build mutual trust and confidence. Under Article 13, all nations are expected to report “national greenhouse gas inventory, progress made in implementing and achieving nationally determined contribution, and climate change impacts and adaptation,” which will “undergo technical expert review of information submitted” to verify the feasibility of the plans (United Nations Framework Conference on Climate Change). This not only reinforces liberal concepts such as harmony, innovation, trust, and democracy, it also pushes countries to opt into policies favoring interdependence and global collaboration, binding world governments to an international political commitment that strives towards a shared goal.

Nevertheless, because the Agreement is a politically binding, but not legally binding, treaty, actors may not be committed to it as much as what’s best for the environment. To begin, the Agreement lacks a transparent monitoring, reporting, and enforcement system to incentivize its actors to follow its norms, and there are currently no consequences in breaking the rules. This has caused each country to pursue a very individualized path in reducing greenhouse emissions, and is slowing down global development towards reaching carbon neutrality by 2050 (Martini, 2016). For example, between June 1, 2017 to February 19, 2021, the United States, under the leadership of President Trump, withdrew from the Paris Agreement because “it imposed an unfair burden on the U.S. and has done little to slow down emissions from other countries” (Jacobo, 2020). However, the United States faced little consequences for leaving the Agreement other than receiving international backlash. America’s temporary departure from the treaty led to global concerns about the Agreement’s administrative measures and weakened the resolve of other countries to make their own cuts to reduce emissions, undermining the liberal agenda of transnational cooperation and institutional legitimacy (McBride, 2017). Therefore, in order for the Agreement to work more effectively for the global community, it needs a more forceful execution, such as implementing a “name and shame” policy for parties that are not meeting their stated emission reduction targets, fining countries who do not meet goals, and collecting exit fees from countries who wish to leave the treaty (Martini, 2020).

Another shortcoming of the Agreement is that it fails to address the free-rider problem, which means that all countries, regardless of their contributions, would enjoy the benefits of global efforts to limit emissions, deeply disturbing the liberal value of interdependence and balance.

Indeed, it seems like even written in the Accord, there are policies fueling the free-rider dilemma, as found in Article 13, which gives exceptions to “the least developed countries (LDCs) and Small Island Developing States (SIDS) to report at their discretion,” and there are no firm rules limiting what a country cannot do while the treaty is in function (United Nations Framework Conference on Climate Change). In fact, between 2015 to 2018, developing countries such as Myanmar experienced a 49% increase in carbon emissions per capita from 0.36 mtu to 0.61 mtu, and lowermiddle income countries, such as India, increased carbon emissions per capita by 11.2% between 2015 to 2018, from 1.6 mtu to 1.8 mtu by increasing domestic usage of coal. However, in other countries such as Sweden who taxes emissions of nitrogen oxides, carbon emissions per person have decreased by 12.5%, from 4 mtu to 3.5 mtu in the same time period (Data Commons, n.d.).

As a result, the free-rider problem creates a temptation for countries with less active environmentalist policies to ride on the emissions cuts of other nations, and can doom the overall effort of the rest of the world (Kusnetz, 2021). Given that climate change is a global crisis,

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interdependence is key for successful climate politics and change, but the Paris Agreement just doesn’t seem to be there quite yet.

Similarly, as people, and ultimately leaders, are influenced by outside factors such as domestic norms, cultures, familial ties, economic incentives, etc., one limitation of social constructivism is that there are simply too many ideas floating around in society that overwhelm the choices our leaders make. As our leaders draw on influences from a plethora of platforms, government policies are determined by taking account of more than just one voice from the community, and can sometimes be contradictory, but necessary, from the government’s perspective. For many countries such as Canada, the United States, and Australia who have failed to adopt a national strategy for combating climate change, these failure at large is attributed to pressures from local lobbyists, mostly from the fossil fuel industries, who oppose moving towards a more green environmental policy due to perceptions that environmentalism comes at the expense of jobs and low energy prices that disrupts their business (Kottasova, 2021).

For example, in the U.S., long-term campaigns of disinformation funded by the fossil fuel sector have given rise to a large group of climate-change deniers, and Russia and Germany, who are both large players in the Paris Agreement, have agreed to build a natural gas pipeline running from St. Petersburg to Germany through the Baltic Sea. The project, called Nord Stream 2 Pipeline, will transport natural gas into the European Union at the expense of environmental damages from the release of methane in the extraction and transportation of the gasses. Methane is also eight times more harmful to the climate than carbon dioxide (NABU, n.d.). However, the project, which is funded by Russian natural gas megagiant Gazprom, will bring substantial gain to the Russian economy, and is equivalent to an economic output of more than €6,100 million, adding nearly €2,700 million to its annual GDP (Kruse, 2019). Thus, faced with a trade off between reducing greenhouse gas emissions and economic growth, countries have to choose which path they choose, and as of right now, profit is the more lucrative option. Because of a plethora of domestic influence and interests, it has led to the sad reality where we are not seeing the effects of the Paris Agreement work so smoothly. This also reflects that the social norm for fighting against climate action has not been normalized to the point that the norm becomes so widely accepted that they are internalized in our global society. As climate change is a global phenomenon, it requires the effort of everybody to change their life patterns in order to succeed.

The failure of the Paris Climate Accord reflects the realist state of the world given the lack of social commitment from people with opposing views and weak inter-country policing and accountability. Because of states’ individual inaction to act in accordance with the Agreement and opted instead to pursue policies that are most beneficial for itself, it suggests that the world laid out by liberalism and social constructivism is overshadowed by persistent realist desires that put countries against each other. Realism’s central claim is that international policies are laid out in a system of anarchy, where there is “no overarching central authority above individual sovereign states,” that leads to a “lack of central authority” in the international regime (Baylis, Smith, and Owens 2020, p. 135). Realists shape their foreign policy decisions around ideas of statism, survival, and self-help, and see “national security” as its top priority (p. 140). As a result, realists have a skeptical attitude towards the feasibility of international institutions to make a legitimate impact in world politics. However, this doesn’t mean realists are completely against international organizations and cooperation, but rather see it as a useful tool to achieve one’s own interests when the said institution will allow the state to gain more relative to others. Thus, putting this theory in terms of the Paris Agreement, there seems like no states, rather big or small, see following the treaty as giving them significant advantage over others, given the large socioeconomic adjustments

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and sacrifices associated with going green that might actually decrease one’s potential power in the global sphere, whether economically, socially, politically, or militarily. As no one is willing to take the risk associated with stricter environmental policies, each country’s individualized response and violations of the Paris Agreements is a clear sign of anarchy at work in world politics, and the decentralization of global authority that lies in our troubled international system.

Poland is a prime example where liberalism and social constructivism fails and realism triumphs. As a signer of the Paris Agreement, Poland has subsequently announced plans to reduce greenhouse gas emissions by 30% in 2030 through developing renewable energy sources and nuclear power (Stepien, 2021). Furthermore, there is a large environmentalist movement among Polish youths, who, inspired by Greta Thurnberg, marched on the streets in protest against climate change, giving strong demands for the Polish government to phase out Poland’s massive coal industry by 2030 (Rogala, 2021). With a commitment to the Agreement and a strong local force behind the climate movement, it seems like liberal values of cooperation and international institutions are working in Poland, aided by strong public opinions from citizens that enhances the social constructivist view. However, a different narrative put forward by the Polish government shows that Poland has no plans to decrease greenhouse gas emissions through its continued support of its domestic coal industry, which provides 80% of energy supplies in Poland. In fact, in September 2021, Poland vowed to keep its coal mines in Turów open and is willing to pay a €500,000 fine to the European Court of Justice (ECJ) for each day the mine is operating, arguing that its suspension would put the country’s energy security at risk (Boffey, 2021). While Poland does not export its coal supply, coal is of strategic importance to the Polish economy, including providing jobs to thousands of people and power to factories, houses, and infrastructure, making Poland the second largest coal mining country in Europe and the ninth largest in the world.

Moreover, Polish police have also arrested youth activists in the past who protested during climate strikes, citing them as “breaking Environmental law because they used a megaphone,” which shows the extent to which the Polish government wants to silence voices that’s fighting against their coalcentric agenda (Kelava, 2021).

As shown through the continued climate injustices that Poland commits, it reflects the realist nature of our world. In terms of risk assessment, Poland has more to lose than gain in all forms of power dynamics in the international regime if following through with the Paris Agreement, which is why, in a realist sense, Poland chose not to cooperate with climate action.

Given that alternative energy resources are lacking in Poland and it is currently a self-sufficient energy producing country, if Poland were to give up coal, it would jeopardize its national security by making them reliant on other countries for energy, which could easily be cut off or used as a threat against Polish national interest, which would increase the overall cost of living for its people and decrease its GDP, which places a double burden on Poland (Cienski, 2020). Therefore, Poland, by forgoing its commitment to the international community that it initially agreed on, acts in selfinterest and undermines the legitimacy of international institutions and treaties to enforce the country's behaviors. Even if Poland is pressured by other countries to stop using coal, it has the power to defy their desires because realism says that in our anarchic world system, there is no international central authority that one country must adhere to. Ultimately, it is individual states who determine what policy their country follows, not international treaties.

Overall, while social constructivism and liberalism would lead to more effective climate change policies by fostering more social impact and global cooperation, realism best characterizes the current state of international relations that is failing to adequately address climate change.

Global leaders must realize that without substantial change to the way the international system

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interacts with each other, we are vulnerable to a total collapse of our ecosystem. Moving forward, we must stray away from world politics that antagonize one another, but rather embrace international cooperation, institutions, and one another with trust, accountability, and mutual commitment towards fighting the climate crisis.

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Wellesley Law Journal References

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Greenpeace International. https://www.greenpeace.org/international/story/46892/polishstate-intimidating-youth-climate-activists Kottasová, I. (2021, September 16). Not a single G20 country is in line with the Paris Agreement on climate, analysis shows. CNN. https://www.cnn.com/2021/09/15/world/climate-pledgesinsufficient-cat-intl/index.html Kruse, M. (2019, May). Nord Stream 2 Economic Impact on Europe. Arthur D. Little. https://www.adlittle.com/en/nord-stream-2-economic-impact-europe Kusnetz, N. (2021, July 28). Why the Paris Climate Agreement Might be Doomed to Fail. Inside Climate News. https://insideclimatenews.org/news/28072021/pairs-agreement-successfailure/ Looney, R. (2016, June 1). Democracy Is the Answer to Climate Change. Foreign Policy. https://foreignpolicy.com/2016/06/01/democracy-is-the-answer-to-climate-change/ Martini, C. (2016, May 29). Transparency: The Backbone of the Paris Agreement. Yale Center for Environmental Law & Policy. https://envirocenter.yale.edu/transparency-the-backboneof-the-Paris-Agreement McBride, J. (2017, June 1). The Consequences of Leaving the Paris Agreement. Council on Foreign Relations. https://www.cfr.org/backgrounder/consequences-leaving-parisagreement Most Registered Voters Say the US Should Participate in the Paris Agreement. (2016, November). Yale Program on Climate Change Communication. https://climatecommunication.yale.edu/visualizations-data/registered-voters-say-usparticipate-paris-agreement/ Paris Agreement—Status of Ratification. (2016, October 5). United Nations Framework Convention on Climate Change. https://unfccc.int/process/the-paris-agreement/status-ofratification Pipeline passing through marine protected areas? (n.d.). NABU. Retrieved April 23, 2022, from https://en.nabu.de/topics/ecosystems/nordstream2.html Rogala, B. (2021, September 1). Coal and conservatism: How Polish activists push for more climate action. Clean Energy Wire. https://www.cleanenergywire.org/news/coal-andconservatism-how-polish-activists-push-more-climate-action

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Stepien, T. (2021, September 3). Poland’s solar capacity doubles in a year. Argus Media. https://www.argusmedia.com/en/news/2250757-polands-solar-capacity-doubles-in-a-year The Paris Agreement. (n.d.). United Nations Framework Convention on Climate Change.

Retrieved April 23, 2022, from https://unfccc.int/process-and-meetings/the-parisagreement/the-paris-agreement Timelines Explorer. (n.d.). Data Commons. Retrieved April 23, 2022, from https://datacommons.org/tools/timeline#place=country%2FMMR%2Ccountry%2FIND%2 Ccountry%2FSWE&statsVar=Amount_Emissions_CarbonDioxide_PerCapita&chart=%7B %22amount%22%3A%7B%22pc%22%3Afalse%7D%7D

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HOW DID THE COLD WAR AFFECT GLOBAL INEQUALITY, BOTH WITHIN AND BETWEEN COUNTRIES?

by Jenna Lu The almost half-century-long hostility between the US and the Soviet Union transformed not only their respective national progress, but also altogether the post-war global order. The culminating tension between the two superpowers shadowed by the fear of nuclear annihilation dominated the international political system up to almost the turn of a millennium. Although not a war in the most traditional sense, the Cold War caused slaughters and suffering everywhere in the world, perhaps not less so than traditional warfare. Its legacy also remained complex and profound.

Internationally, the Cold War signified a difficult, yet successful power balance that prevented successfully a horrible, nuclear-age world war from happening. The Cold War era also saw the demise of an old racial global order as America and its Western allies had to include racial equality into their agenda in their global democracy campaign against the Soviet Union. However, the power-accumulating ideology battle centered in the Cold War meant that constant interventions and ideology preaching in geopolitically peripheral countries were constant. Although having managed to sustain a fragile global balance of power, American intervention in Central America against communist regimes brought slaughters and humanitarian terror upon local people and virtually destroyed national autonomy in these regions. This greatly hindered the progress to a more egalitarian world of equal rights and access to health and safety. The international relations in the Cold War era also shaped the domestic political and civil history of America. America’s pressure to present itself as the model democracy as well as high international attention pushed the US government to seriously reflect on and improve the racial inequalities they had at home. This tendency encouraged the Civil Rights Movement and resulted in the abolishment of Jim Crow and the improvement of the conditions of African Americans in numerous ways. However, the antiracist discourse and activism were confined to the narrow boundaries of American patriotism and resulted in few meaningful restorative social and economic policies. The gradually conservativeturning government also hindered domestic gender equality and social equality by removing many left-leaning officials from the government in anti-Communist loyalty checks, many of whom progressive women that had pushed for the better living standards of the American working-class.

The Cold War has a complex impact on the American domestic racial struggles. The progress of the Cold War both helped fuel and undermined the Black struggle. On one hand, America started seriously paying attention to the problem of racism when they realized that America's racial equality had become not just a domestic issue, but also one with crucial global impacts during the Cold War. In this global leadership of bipolarity, America’s chief theme of foreign policy was to bring the American way, its ideology of justice, freedom, and democracy to as many places in the world as possible, and the harsh environment of black Americans without a doubt undermined their own brand. The image of American justice and equality that the US set out to present to the world to counter the communist ideologies had driven the state to better reflect on their segregationist policies and the domestic racial environment at large. What’s more, the pressure did not come from America itself alone. In 1958, the death penalty of Jimmy Wilson caused a global stir (Dudziak, 2000, p. 5). Wilson was an African-American farmhand who was convicted to death by a full-white jury for stealing less than 2 dollars. When this sentence was announced, the whole world reacted very negatively. Some strong criticism came from the Soviet Union and its satellites, as they had always been weaponizing American racism to attack American democracy

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and highlighting American hypocrisy (Lake & Reynolds, 2008, p. 352). Other new African nationstates also passionately joined to condemn, together with even America’s white allies like Canada.

The black issue in America was also magnified by the international community into a bigger racial issue. The anti-fascist root of America was questioned when the racism against black people was compared to the racism against Jews in Germany and Japanese colonialism in Asia, with Japan reportedly declaring, in reference to American racism, “ in the Philippines, in China, in India….. that there is no basis for hope that colored people can expect any justice from the US government” (Dudziak, 2000, p. 8). The International reaction to the Wilson case was an example of the global impact of American racial discrimination. Driven by the American mission of global hegemony and having felt the brunt of their domestic action, America realized, and as NAACP in 1943 accurately described, that “race is not a national or sectional issue but a global one” (p. 8). The awareness of the intimate correlation between racial equality and American democracy fueled the Civil Rights Movement that ended the Jim Crow segregation in the South and many other discriminatory policies, and as a result, the institutional environment of Black Americans and Americans of color have improved.

However, the anti-Communist origin of American anti-racism during this time meant great limitation to the shape and direction of anti-racist movements and discourses, and have resulted in limited social changes and therefore caused great dissatisfactions amongst activists against the state. Because the state’s driving motivation for resolving domestic racial struggles was their international image as the ambassador of anti-Communist democracy, the extent to which they genuinely cared about minorities was questionable. Dudziak described the narrow boundaries of Cold War-era civil rights politics as having “kept discussion of broad-based social changes or a linking of race and class off the agenda” in raging sentiments against socialism (p. 16). The intersectionality of race and class was muted as anti-racism discourses were only allowed within the framework of American Patriotism. This meant a liberal embrace of legal equality and equal citizenship but simultaneously a rejection of economic egalitarianism. This theme of anti-racism ignored the fact that racism had also an economically institutional impact on black Americans and led to insufficient economic and welfare policies from governments to help the impoverished people of color even at the height of the movement. The limited social change due to the narrow boundaries of anti-racist efforts in America led to outrage and violence in later civil rights movements, driving the movement into a more divisive and black nationalist direction (Singh, 2004, p. 6). The conflicts between a supranational racial identity and national identity further intensified especially as the late-stage Cold War American government adjusted their attention from war against poverty in the 1960s to war against drugs in the 1980s, disproportionally targeting the economically impoverished black community (p. 9). Ever since Nixon and later Reagan started moving away from the New-Deal liberalism in the 1960s and toward republicanism, consciously rallying Southern and urban white voters and consolidating white identity through attacks against “ black special pleading in the marketplace and black misbehavior in the public square”, intentional hostility toward African Amerians grew considerably (p. 8). Moreover, anti-black activism inevitably intersected with anti-war and anti-imperialist movements, forming another dimension of tension with the state. Martin Luther King Jr. was accused of crossing the line of civil rights in 1967 for expressing his anti-war sentiment towards Vietnam (p. 3). The socialist and internationalist tendency in anti-racist activists often expressed put them in constant conflicts with the designated state ideology. This made the conservative republican government grow more hostile towards racial equality at home. In general conclusion, the Cold War both facilitated and hindered the progress of racial equality in America.

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As mentioned previously as intersectional to race, economic equality and gender equality added more dimensions to the scene of American domestic inequalities. McCarthyism from the end of the Second World War onwards and the anti-Communist sentiment elicited from the federal government during the Cold War had negative impacts on both women’s space in the public and a welfare state . The loyalty program developed in the late 1940s designed to eradicate Soviet espionage within the American system was taken advantage of by the republican government in the 1960s and led to a disproportionate removal of female and left-leaning officials.. This program was a prime example of how the American government removed political dissents in the name of national security. Often ignoring the fact that loyalty defendant may well have been spies, the program targeted officials who publicly manifested egalitarian or left-leaning views, calling into question if the real function of the red scare, in fact, was not entirely rational but rather a purge“ to discharge resentment and frustrations whose roots lay elsewhere than in communist issues itself” (Storrs, 2013, pp. 20-30). In Roosevelt and Truman's time, a small number of women were able to achieve positions in the government as lawyers, economists, and social workers, associating themselves oftentimes with the Labor and Commerce department and welfare programs (p. 16).

But the loyalty program disproportionately questioned female officials and further pushed them out of the government for being too effeminate and thus in nature more “egalitarian” (p. 17). As public statements and private correspondence both indicated, the loss of white male control was associated with Communism, and antifeminism, therefore, became itself object targeted in the anti-communist campaign. The withdrawal from the federal government had collateral damage to social welfare.

Although many female government officials were not leftists, the ones that were created a close bond working together in fields like labor, poverty, public health, and housing, etc. Those who were in a relative position of power were able to push for egalitarian policies to improve the living standards of working-class Americans and advocated for a more planned economy, public work, and public spendings in general. The gradual exit of these women greatly hindered the future of American welfare policies,while wealth inequality kept widening under free-market policies. In this sense, the anti-communist purge during the Cold War greatly impeded America’s potential to be a more economically and socially egalitarian society.

Globally, the Cold War also had complex impacts on inequality. The subtle balance of power between the US and the Soviet, albeit an enduring and difficult time, was a success in preventing global war atrocities. It was also due to the ideology-driven propaganda competition that historically White-supremacist European countries had to gradually acknowledge racial equality as the now emerging global order. Besides, the domestic racial struggles had a positive and liberating impact on other colored counterparts around the world. Meanwhile, unfortunately, the third world nations were manipulated and used by the two superpowers to accumulate their respective influences. Moreover, regional violence was incited and regional inequalities were widened by superpowers to maintain global bipolarity leadership.

The very nature and the fundamental success of the Cold War were to, eventually, stop a real war from happening. Both the global conditions and the behaviors acted as stabilizing elements in the international system during the Cold War. The post-war global order of US- Soviet bipolarity was stable for several reasons. The bipolarity, as opposed to the interwar global order multipolarity, was free of redistribution of power. In other words, it accurately reflected the realities of global political and military power. Hence, the system was more stable as the simple structure of power required less maintenance. This also means that the regional breakout of wars or defections of countries were less likely to disturb the overall balance of power between the two superpowers.

The remoteness of the two nations in terms of geography and overall lack of mutual dependence

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also reduced friction and minimized opportunities for direct conflicts that may contribute to the breakout of a deadly war. It is further observed that, albeit the economic competition was fierce and military spending skyrocketed during the Cold War, the necessity of an actual war to break out was very low. American capitalism, argued by some, replaced traditional warfare and traditional colonialism as the new way to “extend the American system throughout the world” and thus avoided the need for traditional military confrontations (Gaddis, 1986, p. 116). The behaviors of both countries in acknowledging a level of mutual respect, developing new spying technologies, and fearing mutual annihilation also helped maintain the fragile balance of power in the Cold-War era international system. From an anti-war perspective, the success of the Cold War brought global peace and thus helped maintain global equality.

The Cold War period also saw the gradual rise in the international recognition of racial diversity, as democracy and the notion of self-determination were propagated across the world by White men’s countries. The Universal Declaration of Human Rights passed in 1948with the support of 48 countries clarified that being “free and equal in dignity and rights” is entitled to “everyone… without distinction of any kind, such as race, color, sex, language, religions…” (Lake & Reynolds, 2008, p. 348). In 1947, with ROC’s request to ratify conditions of entry for Chinese, Australia officially established a new Commonwealth Immigration Advisory Council. More major steps away from global racial discrimination happened in the 1960s and 70s, with countries like the US and Canada passing laws on nondiscrimination and Australia announcing its official shift from white-centrism to “multiculturalism” before passing the Racial Discrimination Act in 1975.

Receiving international pressure and feeling the need to be model nations for the world to follow, historically white men’s countries started shifting to legally improve international racial equality (Lake & Reynolds, 2008, p. 353). The American domestic racial liberation movements under the conditions of the Cold War also in turn had positive global impacts. The decolonization and anticaste efforts in India paralleled and gained strength from the Civil Rights movement and created an internationalist sense of “colored cosmopolitanism” that raised global anti-racism awareness (Slate, 2012, p. 2).

However, general global peace came at the expense of regional violence, especially in historically colonized third-world countries. Westad argues that the nature of the Cold War shaped the political, social, and cultural progress in not just Europe but also Africa, Asia, and Latin America (Westad, 2014, p. 3). Since the nature of the Cold War was ideological warfare, the US and the Soviet Union were inherently driven to meddle in the Third World to accumulate their global influence. The American discourse on liberty and democracy harbored innately a sense of superiority and a mission to bless the ignorant across the world, while the Bolsheviks wished to spread their emphasis on a collective form of modernity to the Balkan and Slavic cultural circles and beyond (p. 6). The lack of respect for the Third World sponsored regional conflicts in Kosovo, Latin America, and other places, and caused humanitarian disasters. American participation in Central America was especially cruel. During Reagan’s presidency in the 1980s, America directly and preemptively intervened to crush the communist efforts in Nicaragua and El Salvador, following the CIA-sponsored coup against Guzman in Guatemala decades ago that later landed on a military government. The various preemptive counterinsurgency practices and coups backed by the US resulted in regional warfare, massive killings, and state violence across Latin America.

Grandin argued that Central America’s peripheral position in global geopolitics rendered itself an ideal workshop for American imperialism to practice preemptive anti-communist violence without disturbing too much the bipolar world order. In Central America, as a result, “mass slaughter became a crucial instrument of US foreign policy” (Grandin 2006, p. 86). Hence, it is reasonable

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to say the cold war had devastating effects on Central America’s national sovereignty, human rights, and civil liberty, thus deeply hindering intentional equality.

In conclusion, the Cold War’s impact on global inequality was manifold. Between countries, the Cold War pushed traditionally white men’s countries to gradually renounce white supremacy and recognize racial equality and multiculturalism. However, it also deepened inequalities between the Third World and European states when America devastated Central America with state-backed coups and regional warfare’s, having little regard for their human rights and livelihood. Within the border of America, the Cold War sparked the Civil Rights Movements and pushed the discourses and activism around racial equality forward by a big step. But the nationalist origin of the state’s motivation to resolve racial problems meant that the social changes were only limited. Moreover, ideological hostility against Communism was exploited by the conservative government favoring a free economy to purge progressive officials, welfare advocates, and women within the government, impeding America’s potential towards a more egalitarian society.

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Dudziak, M. L. (2000). Cold War Civil Rights: Race and the Image of American Democracy (Revised). Princeton University Press.

Gaddis, J. L. (1986). The Long Peace: Elements of Stability in the Postwar International System.

International Security, 10(4), 99–142. https://doi.org/10.2307/2538951 Grandin, G. (2006). Empire’s Workshop: Latin America, the United States, and the Rise of the New Imperialism. Macmillan.

Lake, M., & Reynolds, H. (2008). Drawing the Global Colour Line: White Men’s Countries and the International Challenge of Racial Equality. Cambridge University Press.

Singh, N. P. (2004). Black Is a Country: Race and the Unfinished Struggle for Democracy.

Harvard University Press.

Slate, N. (2012). Colored Cosmopolitanism: The Shared Struggle for Freedom in the United States and India. Harvard University Press.

Storrs, L. R. Y. (2013). The Second Red Scare and the Unmaking of the New Deal Left. Princeton University Press.

Westad, O. A. (2014). The Global Cold War: Third World Interventions and the Making of Our Times. Cambridge University Press.

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RECOMMENDATIONS TO ENHANCE MENA WOMEN’S POLITICAL POWER

by Radhika Seshadri Similar to most other areas of the world, women remain underrepresented in the MENA region’s political spheres. While this is a significant issue, simply subsuming all of the region’s women into a politically voiceless monolith couldn’t be farther from the truth. Such is an orientalist approach that devalues the wide diversity that exists related to women’s political participation throughout the region. In fact, according to the Council on Foreign Relations’ Women’s Power Index, MENA countries rank among the best and worst in the world for female governmental representation. For instance, with a political parity score of 43 out of 100, Tunisia outperforms the United States and the United Kingdom in its progress related to women’s political power, while Yemen lags far behind with a score of 1 (Vogelstein & Bro, 2021). Not only do these statistics reveal the flawed nature of reductionist approaches to understanding women’s political underrepresentation in the region, but they also underscore the importance of addressing the problem in a multi-faceted manner. Targeting my recommendations to improve MENA women’s political participation towards the many feminist civil society organizations in the region, I suggest that the widespread initiation of media campaigns to counter the patriarchal social norms that inhibit women’s ability to hold political office combined with the establishment of funds to help women overcome the financial barriers to mounting a successful political campaign holds promise for enhancing MENA women’s political power.

Before detailing my suggestions to effectively improve female political participation in the MENA region, it’s important to first discuss why women’s representation in government matters.

Beyond the simple fact that greater female representation in political bodies is key for furthering equity, ensuring that women are well-represented in the political sphere is also significant for advancing social justice, prosperity, and democracy. In terms of social justice, female politicians tend to be advocates for marginalized communities such as women and racial minorities. As Vogelstein and Bro indicate, women are more likely than men to “pass and implement legislation that advances gender equality, including laws on domestic violence, rape, and sexual harassment” (Vogelstein & Bro, 2021). Sandra Pepera from the National Democratic Institute furthers this point by describing how there is a “corollary increase” in policymaking that “reflects the priorities of families, women, and ethnic, and racial minorities” when “more women are elected to office” (Pepera, 2018). Through analyzing this, it becomes clear that increasing women’s political participation could be key for advancing social justice in the MENA region. Prosperity-wise, female politicians have been proven to “prioritize health, education, and other key development indicators” that advance nations’ economic growth (Pepera, 2018). Moreover, women are less likely than men to respond to conflict with violence and increased female representation in government has been linked to a lowered risk of civil war—something that is significant given that violent crises only exacerbates economic instability (Vision of Humanity, 2021; Vogelstein & Bro, 2021). In addition to the above-noted social justice and economic benefits of increasing women’s representation in government, higher levels of female political participation are also key for strengthening democracy. Beyond the fact that having more women participate in politics upholds democracy’s mandate that governments are representative of all citizens, higher rates of female political participation tend to result in “greater responsiveness to citizen needs [and] increased cooperation across party and ethnic lines”—advancements that could only improve democracy in the MENA region (Pepera, 2018). While simply increasing the number of women in political office

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certainly does not guarantee the above-noted advancements in social justice, prosperity, and democracy, doing so would likely be a step towards achieving this reality. Thus, failing to advance MENA women’s political power would only be a lost opportunity to further social justice, prosperity, and democracy in the region.

Having now established the importance of female representation in the political sphere, my suggestions to improve MENA women’s political participation involve two recommendations for the region’s feminist civil society organizations. The first is focused on implementing a media campaign to counter the patriarchal social norms that render women unfit to hold political power— an issue that is widespread throughout the region and was illustrated well in Madame Parliamentarian. In response to a question on whether or not Lebanese women should run for elected office, an interviewee in the film stated, “I would not encourage a woman to run because it requires strength. Women are tender and emotional” (Itani, 2013). Not only is such an outlook prominent in countries like Lebanon where women are significantly underrepresented in the political sphere, but it is also an issue in areas of the region where women hold more political power such as Tunisia. Yerkes and McKeown emphasize this when describing the significant backlash that Souad Abderrahim faced after becoming the first woman elected to be mayor of Tunis— something that Abderrahim attributes to the “masculine mentality of the people” (Yerkes & McKeown, 2018). It would be a mistake to believe that the widespread resistance to female political participation that exists in the MENA region stems from religious conservatism. As Benstead illustrates, religion does not serve as the causal factor behind the region’s patriarchal social norms that limit women’s representation in politics (Lynch, 2016). Rather, her analysis found that this issue stems from role congruity theory—a phenomenon that manifests in a mismatch between the stereotypical traits associated with a woman and the traits associated with being a leader capable of holding political power (Lynch, 2016). Thus, the media campaigns that I suggest civil society organizations initiate should specifically focus on messaging that counters patriarchal stereotypes of what women are or should be—subsequently bridging the gap between public opinions of women and the ideal political leader. Not only would this messaging likely push women to see themselves as qualified to run for political office, but it would likely also help the public realize that women are just as capable as men to hold political power—thereby shifting the conventional patriarchal social norms that limit many MENA women from seeking political office. While such a task may seem ambitious, the Lebanese Association for Democratic Elections’ (LADE) media campaign to encourage female political participation in Lebanon provides a powerful model for feminist civil society organizations to follow. Characterized by a local journalist as having an “effective impact” and being seen by “a lot of people,” LADE’s media campaign was a widespread success within Lebanon—a reality that affirms the potential power of my recommendation for similar media campaigns to be implemented throughout the region (Itani, 2013). Reflecting on the reasoning behind LADE’s success, the journalist describes how the organization made use of mediums that individuals could not ignore such as billboards and TV advertising while also ensuring that their campaign was disseminated throughout all areas of the nation—including rural regions (Itani, 2013). Considering this, it becomes evident that the success of the media campaigns I propose will hinge on feminist civil society organizations’ ability to utilize widely viewed platforms like billboards, TV advertising, and newspapers throughout both rural and urban populations. Only after achieving such a reality will this aspect of my recommendation be positioned to have a far-reaching impact.

Some may suggest that the widespread adoption of gender quotas is enough for improving MENA women’s political representation—thereby rendering my recommendation for feminist

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civil society organizations to initiate media campaigns on the matter unnecessary. While gender quotas are important and have furthered significant advances in female political representation within the MENA region, analyzing the continued barriers faced by women elected through quotas underscore their limits as standalone interventions. Gouvy touches upon this when describing how Tunisian women remain underrepresented in positions of high political power despite the country’s gender quotas. She states, “You’ll never see a woman heading the interior or the defense ministries—these are still the preserve of men. Women virtually only ever end up with the ministry of women’s affairs” (Gouvy, 2021). Yerkes & McKeown echo these sentiments in their discussion of the limits of Tunisia’s gender quotas. They state, “Quotas are the first step… But they are not enough to fully empower women. Tunisia may have made progress at the ballot box, but its women continue to experience discrimination within the political establishment and pushback from some members of the public” (Yerkes & McKeown, 2018). Last, the Congressional Research Service’s report on MENA women elaborates on this issue in Libya by stating, “...though women held 16% of seats in the Libyan parliament (due in part to gender quotas), female members of parliament were challenged by practices such as holding meetings late at night when it is not socially acceptable for women to be out or in places considered unsafe for women to attend” (Danon & Collins, 2021, p. 15). While these cases don't erase the importance of gender quotas, they certainly complicate the popular narrative that these stipulations are enough to enhance women’s political power on their own—especially in a manner that is sensitive to the nature of female political representation. In particular, they force one to realize that solely implementing a gender quota is insufficient because this would fail to alter the patriarchal mentalities that deem women unfit to hold political power in the first place—giving way to their discrimination within elected office.

Moghadam touches on this issue broadly when describing the limits of only relying on legal reforms for advancing gender equality in the MENA region. She states, “...legal advances have occurred, principally the result of years of feminist advocacy. And yet there is always a cultural lag that remains, or weak enforcement of the law” (Moghadam, 2020, p. 70). Considering this, it becomes clear that solely implementing a gender quota to improve MENA women’s participation in government would fall short in addressing the long-standing patriarchal social norms that are at the root of women’s political underrepresentation in the region. Thus, the particular utility of my recommendation for feminist civil society organizations to launch media campaigns is that it could serve as a powerful supplement to gender quotas—bridging the gap between policy reform and socially transformative progress.

The next aspect of my recommendation focuses on addressing the financial barriers that limit MENA women from holding political office. Specific to the Lebanese context, this is an issue that Dr. Marguerite Helou described in Madame Parliamentarian when remarking on how “financial pressure pushes women to withdraw their candidacies” as many can’t “afford more than a few thousand dollars”—a figure that pales in comparison to the “millions and millions of dollars” fronted by political elites (Itani, 2013). The gendered impact of this financial barrier in Lebanon is particularly evident when considering the fact that of the only 17 women who have reached the nation’s parliament since 1943, most come from elite backgrounds with significant political connections. Colloquially referred to as the “women dressed in black,” these women were elected to office to replace the seats of their husbands, brothers, or sons—naturally facing no financial obstacles to entering politics (Itani, 2013; Nassar, 2021). It would be a mistake, however, to assume that the financial pressures faced by women seeking political office are restricted to Lebanon. As an OECD report emphasizes, “women’s limited access to financing” is a key barrier that often restricts Egyptian women from mounting successful political campaigns (OECD, 2018, p. 56).

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Further, analysis by the International Knowledge Network of Women in Politics describes how women’s low “financial independence” is a significant deterrent to their political prospects throughout the MENA region—especially if they lack family support, connections, or wealth (International Knowledge Network of Women in Politics, 2009, p. 3). Reflecting on these aforementioned issues, it’s clear that financial barriers render it nearly impossible for many MENA women to be represented in government—exactly why the second part of my proposal suggests that the region’s feminist civil society organizations establish funds to help elect women to political office. While certainly ambitious, this is a model that has already been implemented quite successfully in America thanks to EMILY’s List—an organization that funds the political campaigns of the women it recruits (EMILY’s List, 2021). Since 1985, EMILY’s list has had great success in eliminating the financial barriers that would otherwise limit recruited candidates from entering the predominantly white, male, and wealthy sphere that still characterizes the United States government (EMILY’s List, 2021). Viewing EMILY’s List as an example for feminist civil society organizations in the MENA region to emulate, the initiation of funds for MENA women looking to mount a political campaign could be a powerful way to ensure that money is significantly less of a barrier to women’s political prospects in the region—thereby helping improve their governmental representation.

An important caveat to this aspect of my suggestion is that feminist civil society organizations must be careful in who they fund—especially on an ideological basis. In particular, a main criteria that should be upheld by organizations seeking to implement this aspect of my recommendation is that recruited women must be committed to the ideals of gender equality as evidenced by their backgrounds and policy positions. While easy to be overlooked given that female politicians are often advocates for women’s rights, this is not always the case. Bush and Gao emphasize this issue when describing how conservative Jordanian Islamist parties who are against gender equality often nominate like-minded women to hold political office—thereby packing government bodies with women whose actions run contrary to feminist ideals (Bush & Gao, 2017). Manea echoes these sentiments when describing the kinds of women in Tunisia’s parliament. She states, “...the majority of women parliamentarians are members of the Islamist Ennahda party and they often follow their party’s conservative line on gender” (Manea, 2015, p.

162). Specific to Lebanon, Ghassan Makarem corroborates this issue when emphasizing that the women elected to Lebanese parliament are “not representative of the women’s movement” (Itani, 2013). Through collectively analyzing these cases, it becomes evident that it will be important for feminist civil society organizations in the MENA region who are interested in funding the campaigns of female political candidates to require that those they support are committed to furthering gender equality. While this might seem difficult to implement, it is important to emphasize that this approach mirrors exactly what EMILY’s List does in the United States.

Specifically, the organization ensures that recruited candidates uphold their moral values by requiring that those seeking funding from them are aligned with the Democratic party and identity as pro-choice (EMILY’s List, 2021). While feminist civil society organizations in the MENA region cannot follow EMILY’s List’s specific recruitment criteria due to America’s differing political dynamics, requiring that those who seek funding be committed to the ideals of gender equality will only be in line with this model. Through enforcing such a stipulation, organizations who seek to implement my suggestion can ensure that those they fund will be held accountable for advancing the status of women and girls when in office—thereby ensuring that increases in female political representation can actually result in tangible gains for gender justice.

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Ultimately, dismantling both social and financial barriers is key for enhancing MENA women’s political participation. To achieve this, I suggest that feminist civil society organizations in the MENA region launch media campaigns to counter the patriarchal stereotypes that render women incapable of holding political office along with funds to provide women with the financial support needed to run a successful political campaign. Given that many MENA countries are home to vibrant feminist civil society organizations with strong ties to each other, the region is particularly well suited for implementing my recommendations. Specifically, it’s likely that even if one feminist civil society organization in the region successfully carries out my suggestions, other allied organizations will quickly follow suit—resulting in a spillover effect. Over time, the cumulative impact of this spillover effect across the region’s various feminist civil society organizations can be a powerful force for collectively enhancing MENA women’s political power.

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Bush, S. S., & Gao, E. (2017). Small Tribes, Big Gains: The Strategic Uses of Gender Quotas in the Middle East. Comparative Politics, 49(2), 149–167. https://doi.org/10.5129/001041517820201323 Danon, Z., & Collins, S. R. (2021). Women in the Middle East and North Africa: Issues for Congress (No. R46423). Congressional Research Service. https://sgp.fas.org/crs/mideast/R46423.pdf EMILY’s List. (n.d.). Our History. EMILY’s List. Retrieved December 19, 2021, from https://www.emilyslist.org/pages/entry/our-history Gouvy, C. (2021, January 17). A decade after revolution, Tunisia’s women face an uphill battle.

Al Jazeera. https://www.aljazeera.com/news/2021/1/17/a-decade-after-revolution-tunisiaswomen-face-an-uphill-battle International Knowledge Network of Women in Politics. (2009). Financing women candidates in Muslim countries. International Knowledge Network of Women in Politics. https://www.iknowpolitics.org/sites/default/files/cr_financing20women20candidates20in20 muslim20countries_en.pdf Itani, R. (2013). Madame Parliamentarian.

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Moghadam, V. M. (2019). Social Change in the Middle East. In E. Lust (Ed.), The Middle East (pp. 233–268). CQ Press.

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92 Vol. 11

Wellesley Law Journal

93 Vol. 11

Wellesley Law Journal