Monday, February 27, 2012
JURIST Guest Columnist Lowry Pressly graduated from Yale Law School in January of 2012. While in school, he had the opportunity to study the Religion Clause under Professor Stanley Fish. Here he explores the history and purpose of the Religion Clause and how it relates to the current contraception debate...
[I]f peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while . . . who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice, but the slaughter of calves, thereby prohibited.Locke was an undeniable influence on the framers. Though his foundational separation of the private sphere, where one has one's relationship with God, from the public realm where the laws that govern each of the comprehensive doctrines that make up the plurality, is cited today as the progenitor of the secular state, it was in fact premised upon his Christian Protestant understanding of religion and salvation. Free exercise was something enjoyed within the confines of one's church, one's domicile, one's secret person, and was meant to be compatible with the principle of strict separation enshrined by the very first right in the Bill, that right to live in a liberal republic where not "three pence"—as Madison famously wrote—would be taken from a citizen by the state to support a religion to which he might not subscribe. This, however, is exactly what an exception the generally applicable regulation regarding contraceptive coverage—a regulation counterpoised between the rights of religious free exercise and female reproductive rights—amounts to, for it is disingenuous at best to describe an exception to a mandatory payment as anything but a subsidy.
That the Court has traded religion clause counterpoise for a preference for the positive right of free exercise (free of the negative antiestablishment right) can be seen in Chief Justice Roberts' selective historical treatment in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Writing for the Court, the Chief Justice, in a remarkably selective and brief historical preamble, propones a history that would have the Establishment Clause read as a compliment to the Free Exercise Clause—i.e. that it was designed as a protection against the state meddling in the business of religion, surely a major problem in 18th century England. This interpretation is not faithful to the framers' intent, and it is especially uncharacteristic of Madison's thoughts on the subject. For Madison, whom Chief Justice Roberts acknowledges as the architect and prime mover behind the First Amendment, the Establishment Clause was primarily intended to protect the polis from the influence of religion, not the other way around for, as he wrote in his Remonstrance, "[the] preservation of a free Government requires not merely that the metes and bounds which separate [religion and the state] be invariably maintained; but more especially that neither of the be suffered to overleap the great Barrier which defends the rights of the people." The Establishment Clause prevents the "establishment of any particular sect of Christians, in exclusion of all other Sects" not primarily to protect the religious freedom of those other sects, but rather to protect the plural citizenry as a whole from the influence of religion in government. Madison called the presumption that the civil magistrate could "employ Religion as an engine of Civil policy" an "unhallowed perversion." The Supreme Court has, since its decision in Everson, worked to bronze this unhallowed perversion as constitutional law and continues to take the names and liberal principles of our founding fathers in vain.
There is little doubt that much of the carping about "religious liberty" in the wake of Obama's contraception debacle is political posturing. No doubt some of these angry men sincerely believe that their rights were being trampled—the regulation's exception for churches and the countervailing rights of women notwithstanding—but as we watch these men chew the scenery of political talk shows, it should not be forgotten that the framers of our Constitution gave pride of place to the right that we all share, religious or not, to live in a nation of religiously indifferent laws and not of men or their dogmas.
Lowry Pressly recently graduated from Yale Law School. He worked on a number of journals, and was published in the The Yale Journal of International Law. Lowry is currently working in the chambers of Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit, and has previously worked as a legal adviser to the Republic of Liberia in Monrovia and at the Equal Justice Initiative.
Suggested citation: Lowry Pressly, Contraception and the Forgotten Victory of Church Over State, JURIST - Dateline, Feb. 27, 2012, http://jurist.org/dateline/2012/02/lowry-pressly-contraception-debate.php.
Wednesday, February 22, 2012
JURIST Assistant Editor Kimberly Bennett, University of Pittsburgh School of Law Class of 2014, argues that the Stolen Valor Act is a piece of wartime legislation that is not the least restrictive means of furthering the government's interest and, as such, should be overturned... (Her opinions are not intended to represent those of JURIST)
The Stolen Valor Act was signed into law by President George W. Bush on December 20, 2006, just over three years after the start of the Iraq War and five years after the start of the war in Afghanistan. As with any legislation passed during a time of war, such as the USA Patriot Act and the Military Commissions Act of 2006 before it, the judiciary must be careful to examine this act under a constitutional scrutiny that does not overly defer to executive and military interests, and maintains civil rights. Critics of such wartime legislation argue that it was passed opportunistically, leaving little room for debate. This was seen in the passage of the Patriot Act, which arguably violates the Fourth Amendment, where members of Congress have said that they did not have time to even read the bill in the wake of 9/11. Now that the Iraq War has formally ended, Alvarez gives the judiciary the occasion to examine this legislation without the influence of the war. The discussion of checks on both legislative and executive power in a time of war has been the subject of ongoing debate. As history has demonstrated, national emergencies have led to bad law. For this reason, it is imperative that the judiciary use its power to determine that the Stolen Valor Act unconstitutionally infringes on our constitutional right to free speech.
While the controversial provisions of the Patriot Act have yet to be visited by the Supreme Court, Hamdi v. Rumsfeld provides an example of hastily passed wartime legislation that was struck down for violating the constitutional right to due process. One week after the terrorist attacks of 9/11, Congress passed a resolution entitled the Authorization for Use of Military Force (AUMF). The Act authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Suspecting that Hamdi was involved in terrorist activities while in Afghanistan, the government detained him without adhering to due process requirements, relying on the language of the AUMF to deem his detention "necessary and appropriate." Finding the detention unlawful, the Court ruled that Congress's grant of authority does not supersede the constitutional requirements of due process, acknowledging, however, that in some instances of emergency there might be reason to suspend constitutionally protected rights.
This case crucially demonstrates the absolute need for judicial review of wartime legislation. In Hamdi the government had a legitimate interest in protecting the national security of our nation. However, the government was unable to establish the "emergency" situation that would have warranted contravention of the Due Process Clause. Similarly, in Alvarez, while the government alleges that it has a legitimate interest in protecting the honor of those that serve our country, as in Hamdi, it cannot prove the existence of an emergency situation that warrants the suspension of free speech, nor can it prove that this is the least restrictive means of furthering the government's alleged interest.
Echoing the holding of Hamdi, the Supreme Court in Boumediene v. Bush also determined that habeas corpus rights are only to be suspended under careful interpretation of the Suspension Clause. This case analyzes the constitutionality of the Military Commissions Act, which was drafted in response to the holding in Hamdi. The act denies jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants for any alien detained after September 11, 2011. The Supreme Court struck down these provisions, finding that the petitioners had the constitutional privilege of habeas corpus. Accordingly, they were not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated enemy combatants or because of their presence at Guantanamo Bay. However, in this case, the Supreme Court expanded its reasoning by pointing to the intent of the Framers of the Constitution. The Court states, "[t]hat the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension." The Court goes on to conclude that a holding to the contrary would be inconsistent with the principle of separation of powers, stating that, "[t]o hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is."
Both Hamdi and Boumediene demonstrate the level to which constitutional rights are protected, even during trying times. If a fundamental right is to be denied through legislation, the government must demonstrate that the contravention of said right comports with the the requirements that have been set out for its denial. Our laws must be enacted and executed in accordance with the Constitution, and in some instances of ambiguity looking to the intent of the Framers can be particularly instructive. In Alvarez, the limits to the fundamental right of free speech are questioned. And, with respect to free speech, Benjamin Franklin, one of the Framers of the Constitution, made very clear his view of the importance of unrestricted free speech, contending that:
Misrepresentation of publick Measures is easily overthrown, by representing publick Measures truly; when they are honest, they ought to be publickly known, that they may be publickly commended; but if they are knavish or pernicious, they ought to be publickly exposed, in order to be publickly detested.Free speech should, therefore, be broadly protected unless it falls within the well-defined historical and traditional categories that have been carved out for its derogation.
Content-based speech is subject to strict scrutiny unless it falls into a narrow class of speech that has been historically defined, and which is comprised of: libel, defamation and slander. The speech prohibited in Alvarez, lying about winning military honors, does not fall within these well-defined categories. For this reason, the government must demonstrate that the act passes strict-scrutiny, which is to say that it must demonstrate that it has a legitimate interest and that the legislation is narrowly tailored to achieve that interest by the least restrictive means possible. The aforementioned types of speech require an element of malice, which Alvarez's false statements lack. Thus, the lies that Alvarez told must not be compared to the type of false or fraudulent speech that is independently punishable.
Though the interest in protecting the honor of the military may be compelling, to withstand strict scrutiny, the interest must be achieved using the least restrictive means necessary. The government in Alvarez must uphold the free speech right protected under the First Amendment. If the government wants to protect the honor of the military, the Stolen Valor Act must be rewritten in a way that does not so broadly infringe on the right to free speech. Laws against fraud typically include an element of intentional deception for one's own personal gain. Rewriting the act to include a harm element, so that it more closely resembles laws against fraudulent speech, could be a solution. Additionally, if the government eliminates the act altogether, we could still protect military honor by reallocating the money currently spent on enforcement of the act to the creation of mechanisms that would more easily allow for the verification of the recipients of Congressional Medals of Honor. In light of the previous jurisprudence, it is clear that the act cannot pass strict scrutiny because there are means of protecting military honor that infringe to a far lesser extent on the constitutionally protected right of free speech.
In conclusion, unless it can be done by the least restrictive means necessary and/or there is an emergency situation that warrants it, government interests in protecting national security and patriotism must not chill the exercise or protection of our fundamental rights. The Supreme Court must strike down this type of wartime legislation, for it strikes at the values we have held most closely as a nation. The Framers of the Constitution did not intend for our fundamental rights to be eroded, whether our nation is in a time of conflict or peace. The judicial function of checking the constitutionality of legislative action must continue if we are to uphold the very values we have fought for and continue to fight for.
Kimberly Bennett is an Assistant Editor for JURIST's Social Media and Archives services. She holds a undergraduate degree in Spanish and Political Science, and a Certificate in Latin American Studies from the University of Pittsburgh. She is studying international human rights and civil rights law at the University of Pittsburgh School of Law.
Suggested citation: Kimberly Bennett, Overturning the Stolen Valor Act to Preserve Free Speech, JURIST - Dateline, Feb. 22, 2012, http://jurist.org/dateline/2012/02/kimberly-bennett-stolen-valor.php.
Tuesday, February 21, 2012
JURIST Senior Editor Edward SanFilippo, University of Pittsburgh School of Law Class of 2013, discusses how Pennsylvania House Resolution 535 reveals an underlying tension between the Establishment Clause and free speech... (His opinions are not intended to represent those of JURIST)
In 2005, the Supreme Court addressed a similar question in Van Orden v. Perry. In Van Orden, a Texas resident opposed the display of a monument, which was inscribed with the Ten Commandments, on the grounds of the Texas Capitol. Writing for the majority, Justice Rehnquist identified two faces of the Establishment Clause: "One face looks toward the strong role played by religion and religious traditions throughout our Nation's history ... The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom." He concluded that the monument was "passive" and merely part of a series of monuments on the grounds, "representing the several strands in the State's political and legal history."
Rehnquist reflected that, "recognition of the role of God in our Nation's heritage has also been reflected in [the Court's] decisions," pointing to a case permitting "a state legislature to open its daily sessions with a prayer by a chaplain paid by the State." In direct contradiction to this point, the Supreme Court recently declined to rule on Joyner v. Forsyth County, a case in which the US Court of Appeals for the Fourth Circuit held that a county board of commissioners violated the Establishment Clause by beginning its meetings with a prayer. Whether this reflects a shift in the Court's approach remains to be seen, but the contradiction highlights the inconsistency of holdings that have dealt with the question. For example, in 1992, the Court held in Lee v. Weisman that a prayer offered during a high school graduation ceremony violated the Establishment Clause, since no "school can persuade or compel a student to participate in a religious exercise." The decision rested, at least partially, on the notion of "compelled attendance and participation," but how this differs from a legislative setting is unclear. In short, "recognizing the role of God in our Nation's heritage" without violation may be an uncertain road to navigate.
In Van Orden, the Court identified a number of monuments with religious motifs on federal sites. The Ten Commandments, in particular, are well represented in Washington DC, appearing no less than three times in the Supreme Court alone, plus they appear in the Thomas Jefferson Building, the National Archives and the Department of Justice, among other sites. If passive monuments with religious themes are acceptable, some may wonder how Glassroth v. Moore would have been decided had the case reached the Supreme Court. In Glassroth, Chief Justice Moore of the Alabama Supreme Court installed an enormous Ten Commandments monument in the courthouse. The Eleventh Circuit noted that, "he did so in order to remind all Alabama citizens of, among other things, his belief in the sovereignty of the Judeo-Christian God over both the state and the church." Justice Moore was also known for posting the Ten Commandments in his courtroom, campaigning as the "Ten Commandments Judge" and encouraging prayer at jury organizing sessions. The judge was candid during the trial about his intentions with the monument, which might have ultimately "activated" an otherwise passive monument.
If intent is the test, short of the honesty of litigants, how will judges know whether a monument is designed to acknowledge the role of God in our nation's heritage or whether it is a blatant promotion of a particular religion? How does a prayer prior to a legislative session not promote the religion of the particular individual leading the prayer? Additionally, allowing monuments that acknowledge God's role in our nation's heritage creates another issue in that it inherently favors Christianity. This in itself seems to raise a constitutional issue, but, aside from that, which versions of Christianity can be acknowledged in this way, all versions or only preferred "mainstream" sects?
These questions bring us back to Pennsylvania. The resolution begins with a statement recognizing the role of the Bible in making "a unique contribution in shaping the United States as a distinctive and blessed nation and people." By Supreme Court standards, this statement should qualify as acknowledging the role of God in our nation's heritage and is therefore not a First Amendment violation. Subsequent sections go a step further, constructing a paradigm in which Biblical teachings inspired concepts of civil government, claiming that, "the history of our country clearly illustrates the value of voluntarily applying the teachings of the scriptures in the lives of individuals, families and societies." The resolution closes with an appeal to "our national need to study and apply the teachings of the Holy Scriptures," and herein lies the tension.
Does the resolution—without the force of law—violate the establishment clause? Certainly, one religion is given status above other religions through a series of faulty historical statements. Even so, does freedom of speech extend to legislators who wish to make such declarations? The resolution can hardly be described as "passive;" it does not mandate any particular action, but it strongly advocates Bible study as a means to cure our national ills. In a state facing a significant budget crisis, is the implication that cuts to social services, transportation and education can be overcome by religious fidelity?
Religion plays an integral role in the lives of millions of Americans—including our elected officials—and recognition of that is not a bad thing. That being said, the US is home to millions of Muslims, Jews, Hindus, Buddhists, Christians and many others of varying religious worldviews, in addition to those with no religious worldview whatsoever. A resolution recognizing the role of the Bible in our national history may be appropriate, albeit unsettling. However, a resolution declaring the primacy of Christian scriptures not only violates the Constitution, it ignores the reality of the pluralistic nature of our country and the contributions of non-Christians throughout our history. Ironically, it also ignores the wishes of William Penn, who intended that this commonwealth serve as a safe haven from all religious oppression. Ultimately, the resolution's fate may rest in the judiciary, where the First Amendment tensions must be sorted out.
Edward SanFilippo is the Head of JURIST's professional commentary services. He graduated from the San Diego State University, where he earned degrees in religious studies and political science. His interests focus on issues of development, social change and social movements, the intersection between law and religion, human rights and the environment.
The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.
Suggested citation: Edward SanFilippo, Pennsylvania Resolution Highlights First Amendment Tension, JURIST - Dateline, Feb. 21, 2012, http://jurist.org/dateline/2012/02/edward-sanfilippo-first-amendment.php.
Tuesday, February 21, 2012
JURIST Guest Columnist Jared Mullowney, Texas Tech University School of Law Class of 2013, is a member of the Intellectual Property Student Association. He argues in favor of eliminating clauses from Internet user agreements that allow websites to retain ownership of all user generated content...
An idea cannot be copyrighted. The expression of an idea, however, can be. Where is the line between idea and expression drawn? Does James Erwin own the copyright to this story because he originally expressed in detail The_Quiet_Earth's idea, and this is what ultimately led to the deal with Warner Bros.? Reddit's user agreement includes the following clause:
[Y]ou agree that by posting messages, uploading files ... or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so.
This language suggests that anyone who posts anything on Reddit will lose the ability to later exclusively license that material to someone else, such as Warner Bros. Even though commentators are divided as to whom owns the copyright to the story, the title of which is Rome, Sweet Rome, there is little discussion over the repercussions of having such a clause in the user agreement in the first place.
One of the greatest reasons that the Copyright Clause, Article 1, Section 8, Clause 8 of the US Constitution, recognizes copyright protection is to encourage creative thinking. A clause like the one found in Reddit's user agreement, however, inhibits creative thinking and expression. Unfortunately, these clauses exist on numerous websites, including photography websites and social media websites like Twitter.
So how does this chill creative thinking? With the creation of the Internet, the exchange of ideas is easier, more far-reaching and faster than ever. Such a flow of ideas and the access to such material, has the ability to lead to an abundance of new ideas and novel forms of creative expression. Reddit has a very active and large community that posts unique questions and answers nearly daily. While the Internet has been a wonderful platform for creativity, clauses like the one found in Reddit's user agreement only serve to stifle that creativity. Anyone who knows that such a clause exists in a user agreement will likely be more cautious about what they post. For example, think of how this impacts a photographer. Photographers, no doubt, would like to use the Internet to advertise their work, but if posting their photos on a popular photobook website would prevent them from granting an exclusive license to anyone else, then they are left with less desirable, less far-reaching and possibly more expensive means of advertising and publishing their work. Ultimately, such an environment is likely to deter photographers from sharing their photographs. The situation is similar on websites like Reddit. If people know that what they post will cease to be solely their intellectual property, or that their ownership rights will be significantly diluted, then they may not post at all. Therefore, the expression of a number of ideas may never come to fruition.
This chills creativity even more by leaving users unsure of whether a website will or will not claim ownership. Returning to the Reddit example, while such a scenario is not common, who knows when Condé Nast, the owner of Reddit, will step in again and try to claim part-ownership of posted material? The problem is that users do not know, and because of this, they might be more cautious about posting, or refrain from posting all together. This too leads to an environment in which creative ideas are less likely to be developed and explored.
Just how far do these clauses go? Popular online video games, such as World of Warcraft, owned by a company named Blizzard Entertainment, also do not give ownership of user generated intellectual property to its subscribers. While this makes sense because Blizzard Entertainment continues to own the copyrights to the World of Warcraft characters, items and monsters, what about a story that a player writes based on the character she has created in the game? What if that player has used the same character for years and, throughout her playing experience, she has come up with a unique history for her character and wants to write a book about it? Because she is writing about something based on intellectual property she does not own, does that mean that Blizzard Entertainment would have an interest in the copyright to her book? What if the story she writes is separate from World of Warcraft except for the character?
So, what should we do with these clauses in Internet user agreement? In truth, to preserve and encourage a climate of creativity, they should be eliminated entirely. First, websites that include these clauses rarely exercise the rights granted to them. Some might say that this is a reason to ignore the clauses and allow them to remain in user agreements, but what about the case of James Erwin? He is one of the few people who have been lucky enough to be approached by a company, hoping to make something more out of his expression rooted in another's idea. If companies exercise this right just one time out of a thousand, then the clause should not be there at all. Second, users who are posting content should not have to worry about whether the material they post will or will not be claimed as partly-owned by a website. This is true for social media websites, and especially true for photography websites, where users express ideas in a plethora of creative ways.
If these clauses are not to be eliminated completely, then perhaps some limitations should be added. Instead of being permanent, a solution could be for the clause to only be in place for a limited duration of time. If the rights granted in the clause are not enforced within a certain amount of time, then complete ownership could revert back to the creator, and the website would no longer retain ownership of or license to the work. Another alternative is that these clauses could be modified in a way that would allow the author to grant an exclusive license to a purchaser, if he or she wishes, thereby revoking the license to the website. Neither of these solutions are ideal, however, because the website would still temporarily have the right to commercially license posted material. Accordingly, to encourage the free flow of ideas, the best solution would be to eliminate these clauses altogether, leaving ownership, distribution and licensing rights to the creator. The Internet can be a truly wonderful place, where some of the most creative ideas find expression. This creative expression should not be stifled by a single paragraph buried deep in a user agreement.
Jared Mullowney is a second-year law student at Texas Tech University School of Law. He is the national champion of the 2011-2012 ABA Arbitration Competition, and a member of the Intellectual Property Student Association.
Suggested citation: Jared Mullowney, A Call for Greater User Protection in Internet User Agreements, JURIST - Dateline, Feb. 21, 2012, http://jurist.org/dateline/2012/02/jared-mullowney-copyright.php.
Wednesday, February 15, 2012
JURIST Guest Columnist Stephen Petrany, Yale Law School Class of 2014, is on the staff of the Yale Journal on Regulation. He argues that the Obama administration's new mandate on contraception coverage by employers violates religious freedom...
Bishop William Lori, for instance, said that "[w]e think there needs to be a legislative fix to protect our religious liberties." Though not mentioned very often, there is, in fact, already a legislative "fix" regarding religious liberty, and it makes it likely that neither the original nor the modified mandate would hold up to judicial scrutiny. That legislative fix is the Religious Freedom and Restoration Act (RFRA).
Congress passed the RFRA in the early 1990s, in response to the Supreme Court's decision in Employment Division v. Smith. In Smith, the Court ruled that "neutrally applicable" laws need not contain religious exemptions. So, if Native Americans were using peyote in their religious rituals, as they were, and peyote was banned by the state of Oregon, as it was, Native Americans were simply out of luck. In one blow, the Supreme Court had radically altered the common understanding of the Free Exercise Clause.
This result galvanized political groups on both sides. Organizations as diverse as the ACLU and the National Association of Evangelicals supported congressional attempts to overturn this holding. The RFRA was the result of their efforts. The House was unanimous in its support of the law and the Senate nearly so as well.
The RFRA mandates that governments cannot substantially burden someone's religious beliefs even with regard to neutrally applicable laws. The only exception to this rule is if such a law meets two stringent requirements, it must be directed toward a compelling government interest and the government must use the least restrictive means of achieving that interest.
The RFRA is not mentioned much anymore because the Supreme Court held that it exceeded the federal government's Fourteenth Amendment powers as applied to the states in City of Boerne v. Flores. Given that the main purpose of the law was to keep state governments in line, the Court largely rendered it toothless through its holding. The key point for this debate, though, is that the Court only mostly incapacitated the law. As applied to the federal government, the RFRA is still good law.
This is where the "legislative" solution comes into play. Because the RFRA is still binding on the federal government, the federal government must still avoid substantially burdening religious faith unless it can prove that the burden is justified by a compelling interest and that no less intrusive method can be used.
The original contraception mandate showed little promise of accomplishing that. Even if one is inclined to believe that providing access to contraception might be a compelling government interest, the number of exemptions that there have been disfavors this view. Employers with fewer than fifty employees have an exemption. Certain "grandfathered" plans will be exempt. The mandate also includes an exemption for churches as long as they primarily employ people of their own religious faith. One has to wonder how compelling the government's interest can be when it exempts multitudes of small businesses, the vast majority of churches and allows many employers to keep doing whatever it was that they were doing prior to the mandate.
The second problem is intrusiveness. Again, the original contraception mandate seems weak. There are almost certainly ways of providing these drugs and services without forcing religious institutions to break their moral precepts. At the very least, the government itself could provide the services, or the money for the services, directly to those specific groups it is trying to reach through this mandate.
Now, one can make the argument that even if this is not a compelling government interest and even if there are ways of accomplishing its purpose that do not involve burdens on religious rights, the RFRA still does not apply because this mandate is not a "substantial" burden on religious citizens. People of faith find this argument hard to understand. The government is actively requiring religious institutions to provide drugs and services even if they find them morally repugnant—what could be considered more of a substantial burden on a religious individual than requiring him to violate his religion?
Nevertheless, this argument is probably stronger now that President Obama has pushed the issue back one layer: if religious institutions only have to provide coverage where insurers are handing out the pills, how big of a burden can that be?
There is an underlying hint of cynicism to this argument, which obscures the reality. The idea seems to be that Catholic organizations and other religious institutions do not really care about contraception, rather they just do not want to pay for it, they do not want their power infringed upon or some other ulterior motive drives them.
This is where the critics are simply mistaken. Certain religious institutions, mainly Catholic, actually do believe that the use of contraception is morally wrong. Even more religious institutions believe that the use of abortifacient contraceptives (the mandate includes at least one contraceptive that can cause abortion) is morally wrong. No one is complaining about these regulations because they are afraid they might have to pay for a box of pills. The complaint is about the type of pills in the box. That complaint does not change just because religious institutions are providing these substances through an intermediate insurance company. If you were responsible for putting a gun into the hand of a suicidal friend, it would make little moral difference whether you did it directly or whether you employed the postal service to do it for you.
Legally, the federal courts should understand this, and should interpret the RFRA to hold this mandate inapplicable to religious institutions, as this was Congress' clear intent. Almost every time the Supreme Court has allowed a restriction of religious freedom, Congress has swiftly stepped in to right the wrong. In the 1980s, when the Supreme Court allowed the military to ban yarmulkes from uniforms, Congress intervened through adding a provision to the annual National Defense Authorization Act, which provided that, "a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member's armed force." In the late 1990s, when the Supreme Court allowed the city of Boerne to keep a church from expanding, Congress intervened with the Religious Land Use and Institutionalized Persons Act. And in the early 1990s, when the Supreme Court allowed governments to interfere with an individual's religious practices, Congress passed the RFRA. Congress' intent has been clear: to protect the religious practices of those in the minority. Certainly, those who believe contraception is immoral are in the minority. But the widespread acceptance of contraception should not obscure the fact that, even with the recent changes, the Obama administration is attempting to force individuals belonging to a minority to participate in acts that violate the fundamental tenets of their religion. This is certainly a "substantial" burden.
Unless the Obama administration can prove that this is a compelling interest that can be achieved in no other way, the mandate should be struck down as it applies to religious institutions. And in this respect, the president's recent alterations have not changed anything at all.
Stephen Petrany, is a first-year student at Yale Law School and a graduate of the University of Pittsburgh. He is also involved with the Capital Assistance Project, an organization that provides support for lawyers defending capital cases.
Suggested citation: Stephen Petrany, Universal Contraception Access and Religious Freedom, JURIST - Dateline, Feb. 15, 2012, http://jurist.org/dateline/2012/02/stephen-petrany-contraception.php.
Friday, February 10, 2012
JURIST Guest Columnist Caio Abramo, LL.M. candidate at the Graduate School of Law, Economics and Governance at the University of Utrecht, is currently doing preliminary studies in international public law. He discusses Brazil's obligation to prosecute political crimes committed during the rule of the military dictatorship...
In its autumn, the military regime passed a self-amnesty law, Lei N° 6683/79, which, while removing the criminal status of former "enemies of the state," allowing them to reintegrate into society, also gave a get out of jail free card to all government agents involved in the torture and murder of civilians. Chief among these individuals are, of course, high ranking military officers and civilian politicians, who not only condoned the acts or looked the other way, but effectively planned and put violent, repressive measures into practice.
Self-amnesty laws are widely regarded in international doctrine as an invalid legal recourse. Not only are they generally passed by authoritarian regimes themselves, thus without the necessary democratic participation to ensure legitimacy, they are often an attempt to shield persons who committed international and domestic crimes. Such crimes, being of exceptional gravity, are not eligible for pardon or amnesty.
In view of this, a Direct Action of Unconstitutionality, which is an instrument that allows the Supreme Federal Court of Brazil to judge the constitutionality of acts passed by the National Congress, was recently brought before the Court in an effort to invalidate the self-amnesty law as incompatible with the 1988 constitution. The invalidation of the law would, among other things, allow for the criminal prosecution of members of the former military government for their participation in extrajudicial killings, torture and rape. In a rather remarkable decision, the Court ruled 7-2 that the 1979 amnesty law was constitutional. With the law still intact, prosecution of individuals for political crimes committed during the military dictatorship is still out of reach. Related to this, the Court also determined that the crimes would fall under Brazil's extremely short statute of limitations. The justices of the Court, known as ministers in Brazil, widely commented that even if the amnesty law were to be considered invalid and incompatible with the new Constitution, domestic penal law and customary law would also prohibit prosecution.
Even though the decision itself may have surprised some, this sort of reasoning falls in line with mainstream criminal doctrine in Brazil. Positive law is also very strict, giving ample rights to suspects and imposing strict temporal obligations on the state. In trying to prevent abuses, statutory limitations are radically enforced, and have been pointed out by many as a source of impunity.
Therefore, the doors to any sort of domestic prosecution seem to be closed. Are these crimes then to fall into oblivion and their perpetrators allowed to walk free forever? A closer look at the nature of these crimes is necessary. Are they common crimes or are they violations of international and international customary law?
The answer is clear. Torture, extrajudicial killings, forced disappearances and other similar abuses are part of a special class of crime. Their gravity sets them apart from ordinary crimes, and their particularly grave nature warrants not only special treatment under national legislation, but also a place in international law. Such crimes are considered, in fact, international crimes, which are a part of jus cogens; unavoidable duties of states to the international community.
Given the international character of this situation, and the stagnation of domestic measures, what recourse is available to bring the perpetrators of these crimes to justice?
One such measure is recourse to the International Criminal Court (ICC). The establishment of an international permanent tribunal with special jurisdiction over penal offenses was long awaited by the international community of jurists. The main reason is that international crimes, as defined by modern doctrine, are of the most serious and abhorrent in nature, causing shock to the collective mentality of humankind, threatening an individual's most fundamental rights and securities, and even endangering the species as a whole, as is most obvious in the case of the crimes of aggression and genocide.
The history of international criminal trials is long, with cases dating back to the late Middle Ages. Special ad hoc tribunals have been set up since the mid-20th century, the most notorious of which was the Nuremberg Military Tribunal, set up by the Allies after World War II to bring Nazi criminals to justice, and its sister court the Tokyo Military Tribunal. After the creation of three courts under the auspices of the UN, with limited powers and duration in time, the need for a permanent court became part of the international agenda. The Rome Statute, which established the ICC, finally came into effect on July 1, 2002. It gave the ICC jurisdiction over the most serious offenses, including genocide, violations of fundamental human rights and war crimes.
A number of criteria must be met in order to bring a case before the ICC, some of which are common to the majority of the world's justice systems and others of which are unique. The next question is naturally whether Brazil's case fulfills them.
Matters of jurisdiction are clear enough, as the ICC has universal jurisdiction. Once a country becomes a party to the Rome Statute, it will fall under the jurisdiction conditions set forth in Article 12. Brazil signed this instrument on February 7, 2000, and ratified it on June 20, 2002. Further strengthening the case, the 1988 Brazilian Constitution, which is considered to mark the birth of the new Republic, expressly states in Article 5, paragraph 4, that "Brazil submits to the jurisdiction of any international penal tribunal to whose creation it has expressed adherence." As the crimes were committed by Brazilian nationals, in Brazilian territory, both criteria of Article 12 of the Rome Statute are satisfied.
Furthermore, the crimes themselves fall precisely within the scope that prompted the creation of the court in the first place. They include murder, torture, rape, sexual violence and the forced disappearance of persons, among others. All of these crimes are listed in the Rome Statute's Elements of Crimes [PDF], a an essential condition for prosecution, as per Articles 12 and 22.
Certain procedural requirements must also be fulfilled. The ICC must be complimentary to, and not a substitute for, domestic judicial systems. It is, therefore, a rule of the Office of the Prosecutor that only after the exhaustion of national remedies that a case can be referred to the ICC. Article 17, however, allows for two particularly interesting alternatives. It allows for cases to be referred to the ICC if the state in question is: 1) unable to prosecute due to failures in its own judicial system and 2) unwilling to genuinely prosecute.
The second criterion includes, according to doctrine, cases in which a state has purposefully shielded individuals from prosecution. It is widely acknowledged that self-amnesty laws fall under such a description. The presence of other certain domestic legislation that completely bars the taking of judicial measures could also apply; the enforcement of statutory limitations, for example, could be such a case.
It seems as though Brazil would be hard-pressed to escape this particular avenue. It has exhausted all judicial avenues; the Supreme Federal Court itself passed the burden of changing the necessary laws to the legislative body, if it is willing. Furthermore, the unyieldingly strict enforcement of statutory limitations and the application of the non-retroactive principle to these political crimes clearly show an unwillingness to prosecute. Could the ICC then be the last recourse for the victims and relatives of those who suffered under the repressive regime?
The answer must be no. Even though this was hotly disputed in the preparatory works preceding the final version of the Rome Statute, a strict non-retroactive rule was added. As per Article 22, nullum crimen sine lege, and Article 24, non-retroactivity ratione personae, the ICC may only exercise its jurisdiction over crimes committed after the Rome Statute's entry into force, which occurred in 2002, while the crimes in question occurred between 1964 and 1985, thus making the the statute inapplicable.
However, this impediment is not absolute. Although the direct intervention of the ICC is not possible, both doctrine and customary international law impose a duty on Brazil to take judicial measures to address these crimes. The well known principle, made famous by Hugo Grotius, of aut dedere aut judicare, that is, either extradite or prosecute, is almost unanimously acknowledged as a benchmark for the judicial behavior of states. From this principle it stems, following among others M. Cherif Bassiouni, that there is an obligation to investigate international crimes committed within a state's jurisdiction; it forms jus cogens, a duty that cannot be derogated, and is therefore not possible to waive. It is also clear that states may not attempt to circumvent this duty by recourse to national legislation, including amnesty laws. This would, among other things, conflict with Article 27 of the Vienna Convention on the Law of Treaties [PDF].
The nature of these crimes are very clear vis-à-vis the sources of international law. It has been a major point, ever since the failed attempt to try crimes from WWI, and more particularly so after the conclusion of the Nuremberg Military Tribunal, that these types of abuses would be considered crimes under international customary law, and no undue recourse to the nullum crimen sine lege principle would be admitted. In addition, they were expressly defined as crimes in a large number of treaties, agreements, statutes and the like, sufficing to mention the Geneva Conventions.
Persons suspected of having committed crimes against humanity and war crimes during Brazil's last military dictatorship may not be brought to justice through the ICC due to the non-retroactivity rule that binds the tribunal. Nevertheless, Brazil is still bound, under both positive and customary international law, to bring these persons to justice without undue recourse to the nullum crimen sine lege principle. Failure to do so may result in sanctions imposed by the international community of nations, through the UN or other bodies and organizations. The recent creation of a Truth Commission with ample powers, which must present a final report by 2014, but which is yet to start its activities, may be a step in the right direction. However, it is impossible, at this point, to guess what the result will be.
Caio Abramo will pursue an LL.M. in public international law at the Graduate School of Law at Utrecht University. He holds a B.Phil. in Philosophy from the Universidade de Brasília, and has worked as a Legal Project Assistant for Transparência Brasil, an NGO focused on fighting corruption through access to public information.
Suggested citation: Caio Abramo, Prosecuting the Political Crimes of Brazil's Military Dictatorship, JURIST - Dateline, Feb. 10, 2012, http://jurist.org/dateline/2012/02/caio-abramo-brazil-dictatorship.php.
Tuesday, February 07, 2012
JURIST Guest Columnist Corrie Thearle, University of Pittsburgh School of Law Class of 2012, is a Senior Editor for the Pittsburgh Journal of Environmental and Public Health Law. She discusses the Supreme Court's decision in United States v. Jones and its implications for Fourth Amendment search jurisprudence...
In US v. Jones, the Court considered whether the government violated Antoine Jones's Fourth Amendment rights by installing a GPS tracking device on his vehicle without a valid warrant and without his consent. In 2004, an FBI-Metropolitan Police Department Safe Streets Task Force began investigating two suspects, Antoine Jones and Lawrence Maynard, for narcotics violations. During the course of the investigation, law enforcement officials placed a GPS tracking device on Jones's vehicle, which tracked his movements twenty-four hours a day for twenty-eight days. The GPS device relayed more than 2,000 pages of data over the four-week period.
It should be noted that police initially obtained a warrant to install the device in Washington DC, for up to ninety days, and within ten days of the issuance of the warrant. However, the agents did not install the device until eleven days after the warrant was issued, and they installed it while the vehicle was parked in a public parking lot in Maryland. Agents also later replaced the device's battery while the vehicle was located in a different public parking lot in Maryland.
The government ultimately obtained a multiple count indictment charging Jones and several alleged co-conspirators with conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base. The district court granted a motion filed by Jones to suppress evidence obtained through the GPS device only in part. The court suppressed the data obtained while the vehicle was parked in the garage adjoining Jones's residence, holding that the remaining data was admissible. Jones was found guilty and sentenced to life imprisonment.
Using the reasonable expectation of privacy test, US Court of Appeals for the District of Columbia Circuit reversed the conviction after finding that society would recognize Jones's expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements without a valid warrant defeated that reasonable expectation. The case was granted certiorari in June 2011, to resolve the issue of whether the warrantless GPS tracking of Jones's vehicle violated his Fourth Amendment rights.
Delivering the majority opinion, Justice Scalia began by reaffirming that a vehicle is an "effect," which is guaranteed protection from unreasonable searches and seizures under the Fourth Amendment. Scalia held that the physical intrusion conducted by government officials in this case was firmly within the bounds of what would have been considered a "search" under early Fourth Amendment protection. When the government obtains information by physically intruding on a constitutionally protected area, Jones's vehicle in this instance, a search has undoubtedly occurred. By reaffirming this property-based approach, Scalia held that Jones's Fourth Amendment rights did not rise or fall within the Katz formulation, thus removing the tricky question of whether Jones had a reasonable expectation of privacy with regard to the movements his vehicle made in public. Four other justices joined Scalia's opinion, including Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor.
Scalia further distinguished this case from post-Katz methodology by taking it out of the purview of United States v. Knotts and United States v. Karo, also known as the "beeper cases," which involved the tracking of beepers placed in containers used for drug manufacturing. In both cases, at the time the beeper was installed, the container belonged to a third party, and did not come into possession of the defendants until later. These beepers were installed with the consent of the then-owner, and were delivered to a buyer having no knowledge of the presence of the beeper. Because the government came into physical contact with the container before it belonged to the defendants, the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade the defendants' privacy. Jones poses a different scenario, since the government trespassed when it placed the GPS tracking device on Jones's vehicle, while he had a possessory interest in it.
This approach drew criticism from Justice Alito, who in his concurrence joined by Justice Ginsburg, Justice Breyer and Justice Kagan, accused the majority of applying 18th-century tort law that strained the language of the Fourth Amendment. Alito would have used the Katz test to determine that Jones's reasonable expectations of privacy were violated by the long-term GPS tracking of his vehicle. Society has a reasonable expectation that law enforcement agents and others would not, and could not, secretly monitor and catalogue every single movement of a person's vehicle for an extended period of time. In Jones's case, Alito found that four weeks of tracking every movement Jones's car made clearly represented an infringement upon the Fourth Amendment.
However, Alito did not elucidate a clear test to determine whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment infringement. Additionally, under the Katz approach, Alito notes that short-term GPS tracking, even with a physical trespass, would not invoke any Fourth Amendment concern, as it accords with expectations of privacy that society has recognized as reasonable. Alito based this conclusion on the holding in Knotts, where the Court stated that a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.
By relying upon the law of trespass, Alito contends that the majority's approach will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. What would happen if, in the present case, the government had conducted the same type of surveillance, via electronic access to a factory, an owner-installed vehicle tracking device or a GPS enabled smartphone? Would the sending of a radio signal to activate the system constitute a physical trespass?
However, Scalia countered Alito's concurrence by stating that the common law trespass approach will not be the exclusive test when dealing with the propriety of Fourth Amendment searches. Situations involving merely the transmission of electronic signals, without trespass, would remain subject to a Katz analysis. Scalia went on to state that case law, specifically Knotts and Karo, would still allow long-term visual observation, conducted by a large team of agents, multiple vehicles and aerial assistance, since a person traveling in an automobile on public streets has no reasonable expectation of privacy in his movements from one place to another. Nevertheless, Scalia suggested that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy. Unfortunately, since this issue was not put into question by the facts in the present case, the majority declined to address it.
Although this may seem too narrow a decision considering the rapid evolution of GPS tracking technology, Alito's alternative approach stands to erode the longstanding protection of the expectation of privacy, which is particularly strong in instances where people possess or control property. In her concurrence, Justice Sotomayor puts into perspective the issues left unresolved by the majority's opinion, but also the inherent dangers in Alito's approach.
Sotomayor joins the majority's opinion because at a minimum, a Fourth Amendment search occurs when the Government obtains information by physically intruding on a constitutionally protected area. Sotomayor wisely warns that exclusive application of the Katz test would discount the constitutional relevance of the government's physical intrusion on Jones's vehicle.
However, Sotomayor also noted that the majority's trespassory test would provide little guidance in cases involving surveillance without a physical invasion on property. Using a Katz analysis, Sotomayor agreed with Alito that long-term GPS monitoring in investigations of most offenses impinges upon reasonable expectations of privacy. However, in cases involving short-term GPS tracking Sotomayor suggests a different approach when applying the reasonable expectations test. Short-term GPS monitoring generates a precise, comprehensive record of a person's public movements, which reflect a wealth of detail about their familial, political, religious and sexual associations. One trip to an AIDS clinic, psychiatrist, union meeting, mosque or strip club can convey information most people would consider private in nature. Most owners of GPS-equipped cars and smartphones would not contemplate that these devices would be used to enable covert short-term surveillance of their daily movements.
Additionally, Sotomayor goes a step further in suggesting that it would be necessary to reconsider the premise that individuals do not have a reasonable expectation of privacy in information voluntarily disclosed to third parties. In today's digital marketplace, people reveal a great deal of information about themselves to third parties, such as websites they visit, phone numbers they dial and even the products they purchase online. It is hard to believe that people would accept without complaint the warrantless disclosure to the government of every website they had visited, or the types of books and medications they purchased online. According to Sotomayor, unless Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy, these types of private electronic transmissions would not be entitled to Fourth Amendment protection.
Although the issue of GPS tracking without physical trespass remains unanswered by Jones, the adoption of the trespass test provides a clear victory for Fourth Amendment jurisprudence. It provides a minimum degree of specific protection involving any case in which the government physically invades personal property to gather information, without having to decipher whether an individual should have a reasonable expectation of privacy with respect to their personal property. Both Justice Alito's and Justice Sotomayor's concurrences show that the Court is ready to address GPS monitoring without physical trespass. However, the majority wisely reserves this issue for the (hopefully) near future. In the meantime, the Court has firmly re-established Fourth Amendment protections that fell to the wayside in the past half-century, after the advent of Katz.
Corrie Thearle currently works for the Pittsburgh City Legal Department, and after graduation she will be a clerk for the Court of Common Pleas of Somerset County.
Suggested citation: Corrie Thearle, Jones: A Victory for Fourth Amendment Jurisprudence, JURIST - Dateline, Feb. 7, 2012, http://jurist.org/dateline/2012/02/corrie-thearle-jones.php.
Monday, February 06, 2012
JURIST Guest Columnist Robert Borrelle, Syracuse University College of Law Class of 2013, works in the Disability Rights Clinic at Syracuse University. He argues that the current medical model of disability used in the US legal system should be rejected in order to further societal and legal recognition of Disability culture...
The Disability Rights Movement has at its core the idea that it is not the impairment itself that disables people; rather, it is society that disables people with impairments. This is a repudiation of the medical model of disability, which views disability as a deficit within the individual. The Disability Rights Movement is unique in that it strives to not only change society's perception of disability, but also to change the physical environment itself. To achieve these ends, the movement has adopted the philosophy of "Universal Design"—the concept that structural changes that ensure access for individuals with disabilities simultaneously ensure access for all. The most common explanation of this is the idea that a ramp, which allows people who use wheelchairs to access a building, can be used by everyone entering the building.
The rejection of disability as a medical deficit has empowered individuals with disabilities to celebrate their differences. The manifestation of this pride has been the creation of a collective identity referred to as Disability culture. In the broad sense, Disability culture is comprised of various groups whose identities center on their specific disability. For example, one such group is Deaf individuals. In Deaf culture, there is a distinction between little "d" deaf, the audiological impairment, and big "D" Deaf, the cultural identity. Members of the Deaf community celebrate Deafness as a cultural identity that has its own language, American Sign Language (ASL).
Despite the richness and complexity of this culture, the medical model dominates discussions of Deafness in the law. This is most evident in the 1982 Supreme Court case Board of Education of Hendrick Hudson Central School District v. Rowley. Amy Rowley was a Deaf first-grade student in Peekskill, New York. Amy's parents sought the services of a sign language interpreter for Amy in the general education classroom. Although Amy was an excellent lip-reader, it was estimated that she was missing more than half of what was being said in the classroom. Amy's parents were Deaf and believed Amy should be receiving instruction in her own language, ASL, as opposed to relying solely on lip-reading. When the school denied the request, the Rowleys filed a complaint pursuant to what is now known as the Individuals with Disabilities Education Act [IDEA].
After a series of lengthy court proceedings, the dispute between the Rowleys and the school district ended up in the Supreme Court. In the most important IDEA ruling to date, the Court ruled that Amy was not entitled to a sign language interpreter because her excellent grades made an interpreter unnecessary. "[I]f personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction," wrote Justice Rehnquist, "the child is receiving a 'free appropriate public education' as defined by the Act." Accordingly, as long as the child progressed from grade to grade, the school had done its job under the law.
The holding in Rowley is troublesome because it demonstrates that there is a complete lack of awareness, in the legal system, of Deafness as a cultural identity with its own language. This is evident in the Court's discussion of what constitutes "meaningful access" to education. The Court stated that Congress "did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." The fact that Amy could not access the curriculum in her own language is conspicuously absent from the Court's discussion of meaningful access to education. The Court viewed sign language interpreting as a service that would mitigate any deficits Amy's deafness created in her ability to learn. Because Amy performed "better than the average child in her class and [was] advancing easily from grade to grade," there was no need for the school district to provide her with an interpreter.
To this day, Rowley remains the most important case on the substantive provisions of the IDEA. Federal courts often cite Rowley in IDEA cases due to its precedential importance, but for disability rights activists, and members of the Deaf community, Rowley represents a missed opportunity to address society's general lack of awareness and misguided assumptions about disability. Unfortunately, the Supreme Court has continued to discuss disability through the lens of the medical model. In cases such as Sutton v. United Air Lines and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Court held that the plaintiffs' impairments did not limit them enough to qualify as disabilities under the Americans with Disabilities Act of 1991. This narrowing of the definition of disability made it nearly impossible for plaintiffs to qualify as individuals with disabilities under the Act. The Court's preoccupation with the medical aspect of disability was a needless distraction from the Act's purpose of providing legal recourse to a historically marginalized group of people that had no prior way to redress discrimination.
Congress enacted the ADA Amendments Act of 2008 in direct response to Sutton and Toyota. This Act broadened the definition of disability and restored the original purpose of the ADA. Although the 2008 Amendments nullified the damage of Sutton and Toyota, their enactment is another reminder of the lack of cultural competency in the courts. Individuals with disabilities have united around a shared cultural identity that has at its core the rejection of the medical model of disability. The Disability Rights Movement celebrates this culture and works to change society's attitude towards people with disabilities. Litigation is critical to the movement. However, the movement's goals cannot be achieved in a legal system that ignores this cultural identity and insists on viewing disability as a medical deficit. Until the courts recognize this cultural identity, it will remain counter-productive to the Disability Rights Movement for individuals with disabilities to seek justice in our legal system.
Robert Borrelle, in addition to studying law, is pursuing a Master's Degree in Cultural Foundations of Education at the Syracuse University School of Education.
Suggested citation: Robert Borrelle, Calling for Greater Awareness of Disability Culture in the Legal System, JURIST - Dateline, Feb. 6, 2012, http://jurist.org/dateline/2012/02/robert-borrelle-disability-awareness.php.
Thursday, February 02, 2012
JURIST Guest Columnist Crystal Whalen, Texas Tech University School of Law Class of 2012, is a student attorney at the Regional Public Defender's Office for Capital Cases in Lubbock, Texas. She argues in favor of moving away from the death penalty and makes a case for its unconstitutionality...
In Gregg v. Georgia, the Supreme Court concluded that the death penalty was, in fact, constitutional under the Eighth Amendment of the US Constitution. However, since 1976, it has become increasingly clear that a "constitutional death penalty" is a practically unattainable legal fiction, with no basis in the realities of the US justice system. There is no realistic way to administer capital punishment in a manner that is consistent, reliable and free from arbitrariness. The death penalty is cruel and unusual under the Eighth Amendment, and thus, unconstitutional.
A few select statistics will help the reader to better understand exactly why the capital punishment system is unconstitutional. First, the questionable culpability of people sentenced to death evidences the system's unreliability. Since 1973, there have been 140 exonerations based on innocence. This means that there have been 140 people arrested, accused, subjected to a full trial, convicted, sentenced and placed on death row to await their execution for crimes that a court later determined they did not commit. Even with all the procedural safeguards presumed to be in place, mistakes continue to be made. Of the 34 states that currently have the death penalty, only 11 of those have not had individuals on death row exonerated based on innocence.
However, these statistics must be viewed with an critical eye. The "zero statistic" could mean that those 11 states truly have not convicted an innocent person, or it could mean that mistakes have not been caught. Is this a statistic that Americans should be content to live with? Or does even one innocent person being put to death mean the system has failed? The American legal system is fraught with imperfections, as humans are responsible for its administration. The permanence of death and the inability to go back and rectify mistakes makes such fallibility unacceptable.
Second, it is difficult to predict what will be considered proper use of the death penalty in the future, the legal standards are constantly changing. For example, in the 2002 case, Atkins v. Virginia, the Supreme Court held that it was unconstitutional to execute people who have mental disabilities. People with IQ scores of less than 70 are considered mentally disabled for purposes of capital punishment. However, the use of IQ level as a standard in and of itself should be unconstitutional, as it is inherently arbitrary given its dubious accuracy in reflecting one's mental capacity. In the 2005 case, Roper v. Simmons, the Supreme Court held that it was unconstitutional to execute juveniles. Between 1976 and 2005, however, 22 people were executed for crimes they committed as juveniles. This means that 22 people died at the hands of a state in a manner that would be deemed unconstitutional today. In light of our ever-progressing mores, it is difficult to reconcile the continuing evolution of the death penalty with the fact that while we wait for the law to catch up, people are being executed.
Third, regional statistics illustrate the arbitrary nature of the death penalty. Since 1976, there have been a total of 1,278 executions and 1,049 of those executions have taken place in the southern region of the US. Texas leads with the most executions, having executed 477 people. The disconcerting aspect of this regional disparity is further highlighted by the murder rates of the various regions. The South had the highest murder rate in 2010, with 5.6 murders per 100,000 people. Perhaps, at first, it is reasonable to assume that the region with the highest murder rate would be the region in which the death penalty is the most frequently utilized. However, the West, Midwest and Northeast had rates not dissimilar from the South's, at just over 4 murders per 100,000 people. Despite the similarity in murder rates, the South has accounted for 82 percent of all executions in the US since 1976. Thus, a person who commits murder in the South, is exponentially more likely to receive the death penalty than a person who commits the same crime just over the region's border.
Given the unreliable, unpredictable and arbitrary nature of the administration of the death penalty, evidenced by the statistics, the death penalty is inherently unconstitutional and realistically incapable of being made so. Accordingly, the most reasonable solution would be to abolish it and elect to use the punishment of life without parole. The idea of alternative punishments for violent crimes is supported by public opinion regarding methods of deterrence. About 61 percent of Americans believe life without parole, or even life with the possibility of parole, is sufficient. All of the 34 states that have the death penalty also have life without the possibility of parole as an available option. If life without parole is used as an alternative, at the very least, when a mistake is discovered, the exonerated individual can leave prison and attempt to reconstruct his or her life.
For the most part, the current trend in US seems to be moving away from the use of the death penalty. Death as a punishment cannot be reconciled with the Eighth Amendment of the Constitution because it cannot be administered in a reliable, predictable and systematic manner throughout the nation and across cases. As such, we should examine more humane alternatives.
Crystal Whalen is a student at Texas Tech University School of Law, and is a student attorney at the Regional Public Defender's Office for Capital Cases in Lubbock, Texas.
Suggested citation: Crystal Whalen, A Case for Moving Away From the Death Penalty, JURIST - Dateline, Feb. 2, 2011, http://jurist.org/dateline/2012/02/crystal-whalen-death-penalty.php.
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