Agents, Applications, Activit Agents, Applications, Activities

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CEDA Wording Paper, Group 3, 2014-15

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Wording Paper Group 3, Decrim. (2014-15)

Agents, Applications, Activities

June 9 th , 2014

Submitted to the CEDA Topic Meeting Hosted by Justin Stanley and Johnson County Community College Overland Park, KS

Authors and Group Members in Alphabetical Order*

Sara Beth Brooks, University of Nevada, Las Vegas Rashid Campbell, Oklahoma University Christian Chessman, Lake Highland Preparatory School Rashad Evans, University of California, Irvine Kendra Doty, Whitman College Amanda Hua, New York University Kristine Itliong, New York University Kevin Kuswa, Whitman College Paul Mabrey, James Madison University Shanara Reid-Brinkley, University of Pittsburgh

* The arguments and views in this paper do not necessarily reflect all (or even most) of the members and authors listed above.

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Index

Wording Paper Group 3, Decrim. (2014-15) ...... 2 Index ...... 3 Task at Hand ...... 5 More Topic Wordings Being Advanced ...... 6 Agents ...... 8 Federal vs. State – Where to Focus ...... 9 Federal vs. State – Federal Focus Bad ...... 10 Central to the Debate: Feds or States? ...... 11 States Agent Wordings ...... 14 Preemption Doctrine ...... 18 Anticommandeering ...... 22 Recommendation—Don’t Use the Feds to Debate a “Legalize Marijuana” Topic ...... 24 Rejoinder—The Feds Would Still Matter...... 25 Local Agents ...... 27 Why Look at Local Agents ...... 28 Definitions ...... 29 Implementation ...... 31 Issues with Local Action ...... 35 Passive Voice ...... 37 General Passive Voice Comments ...... 38 “Anyone Can Cook” ...... 40 Courts ...... 41 Applications & Wordings...... 43 Legalize and Specifics...... 44 Comments, Consultation ...... 45 Legalize vs. Decriminalize ...... 48 PAS--Regulation vs. Legalization (does enforcement matter?) ...... 51 “Laws and Statutes” vs. Actual Punishment ...... 53 Specific Crimes are Key to the Mechanism – Prostitution Example ...... 54 Zero-Sum: Criminalizing Clients can effect prostitution...... 56

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Control vs. Contain vs. Legalize ...... 57 Examples of Resolutions (Stem / Mechanism) ...... 59 USFG ...... 60 Passive ...... 61 Other Res Wordings ...... 63 Activities/Actions/Crimes to Add ...... 65 Same-sex marriage ...... 66 Overview ...... 67 Aff Ground ...... 69 Neg Ground ...... 70 More Thoughts ...... 72 Polygamy ...... 74 Polygamy Overview ...... 75 Polygamy: Decrim or Legalize? The core of the debate ...... 76 Polygamy: The debate ...... 77 Polygamy and Same-Sex Parallels/Differences ...... 80 Polygamy Solvency ...... 81 Polygamy -- Summary...... 82 Consensual / Victimless Crimes ...... 84 Consensual Crimes--Definitions ...... 85 Victimless Crimes--Definitions ...... 86 Topicality Debates ...... 90 Homelessness ...... 91 More Cards on Homelessness ...... 94 Non-insuranace (Health Insurance) ...... 97 Abortion ...... 101 Topicality Terms ...... 103 Specific Affirmatives ...... 109 Legal Doctrines ...... 114 Restrictions on Providers...... 116 Abortion Methods ...... 117 Abortion Affirmative ...... 118 Inherency ...... 119 Advantages – ...... 122 Negative – ...... 128 Individual Author Appendix—Further Thoughts ...... 133

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Task at Hand

Goals:

Determine the efficacy and phrasing for passive voice wordings vs. other agents, look into areas in the paper that need more research as well as areas not in the paper.

(From the paper) Need Further Exploration and Justifications Abortion Offenses Drug Use in Sports

Other areas with some literature (may not research all of these, seeking others)

Many of these are non-starters, the idea is to have as broad a list as possible so people can think about the various options.

* Note—if something is of interest to you and you think it would make for a good affirmative area with solid negative ground, put together a paper on it.

Contemplate making legal/decriminalizing… Same-sex marriage, hate speech, other restricted speech, sex acts other than prostitution, sodomy pornography, (possession/other) sexting, polygamy defaulting on student loans Stand Your Ground Terrorist affiliation Treason Political organizing/agitation Unionizing Copyright infringement, Intellectual property (make it legal to “pirate”) Genetic ownership (close to IPR, from Bellon’s query) Seed patenting (stop Monsanto from suing small farmers for seed poaching) Public nudity/lewdness Insider trading, financial info sharing, other corporate crimes Racial profiling Refusing medical care, refusing medical care for children (religious exemption extension) Remain uninsured (Obama Care enforcement—make it legal to not have/provide health care) Incest Consensual sex with, between minors Good Samaritan requirements Hands free cellphone Gun ownership (beyond conceal) Corporate pollution, emissions

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More Topic Wordings Being Advanced

Dodge Decriminalization v. Legalization

R: “The Agent” should repeal punitive laws (targeted) against …. those who are vulnerable to or living with HIV or are perceived to be HIV positive.

http://dictionary.reference.com/browse/punitive pu·ni·tive adjective serving for, concerned with, or inflicting punishment: punitive laws; punitive action.

http://www.ask.com/question/what-does-punitive-mean

Punitive means disciplinary or penal. Penal is related to a punishment which is given for breaking a law. In other words, a term for legally punishable is punitive. A punitive charge is a monetary compensation in the form of civil judgement or damages paid for an illegal offence.

pu·ni·tive [pyoo-ni-tiv] ADJECTIVE 1.serving for, concerned with, or inflicting punishment: punitive laws; punitive action.

States as Agent

R: Nearly all of the U.S. States and potentially the District of Columbia and/or the U.S. Territories should...

http://www.thefreedictionary.com/potentially po·ten tial·ly adv. Adv. 1. potentially - with a possibility of becoming actual; "he is potentially dangerous"; "potentially useful"

Court as Agent

Please note—the paper on this did not get turned in…if this is a route the Committee would like to consider (straw poll?), we can look further into this direction.

R: The United States Supreme Court should fully legalize one or more of the following:

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New activities to be Included (potentially)

Homelessness: see group two on this, seeking a phrase to capture “crimes targeted against homelessness” or “using homelessness as the reason for enforcement and prosecution of public order laws.” Recommendation to include.

Noninsurance: Recommendation not to include. The crimes question is just the fine associated with the individual mandate.

Classifications: Could use “major” and then “Public Order Offenses,” “Victimless Crimes,” or “Consensual Crimes.” Recommendation to consider.

R: That one or more major victimless crimes should be legalized.

Polygamy: Recommendation to include in a large list. Probably use the phrase “plural marrriages.”

Same-Sex marriage: Depends on the Agent (works better with access to the States), but the recommendation is to include on a big list. Still needs some work.

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Agents

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Federal vs. State – Where to Focus

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Federal vs. State – Federal Focus Bad

Marijuana Example—a Focus on federal action misses the trends and avoids the main part of the debate.

Alex Kreit , Associate Professor and Director, Center for Law and Social Justice, Thomas Jefferson School of Law, 2010 Spring, 2010, Chapman Law Review, 13 Chap. L. Rev. 555 “Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms”

Nearly forty years after President Richard Nixon first declared a "war on drugs" - calling drugs the "modern curse of the youth, just like the plagues and epidemics of former years" n1 - it seems the war may finally be coming to an end. In his first interview after being confirmed as the Director of the Office of National Drug Control Policy, Gil Kerlikowske told the Wall Street Journal that he thought it was time to retire the war rhetoric when it comes to addressing drug abuse. n2 At the state level, the past year has seen proposals to legalize marijuana introduced in a handful of states with polls showing approximately forty-five percent of Americans nationwide in support of the idea. n3 Importantly, these recent developments follow nearly a decade and a half of successful drug reform measures at the state level on issues ranging from medical marijuana, treatment instead of incarceration, asset forfeiture, and marijuana decriminalization. In short, the argument that we should end the war on drugs in favor of a new approach no longer resides in the world of the politically unthinkable, and has quickly become a subject of serious policy and political discussion. This article considers how we might think about federal drug laws in a post-drug war context, particularly one in which states are increasingly passing laws that are at-odds with federal law. I argue that, when it comes to federal drug law, traditional debates about prohibition, legalization, or decriminalization turn out to be surprisingly unimportant . Instead, as states begin to enact new policies, the key question facing federal lawmakers and administration officials will be how to harmonize federal law with state reforms . My argument proceeds in four Parts. Part I provides a brief overview of the mounting evidence that the war on drugs strategy has proven to be an extremely costly and largely ineffective method for dealing with the problem of drug abuse. Further, this section also looks at how dissatisfaction with the current approach has led to increased interest in decriminalizing or legalizing marijuana, even at the federal level. In Part II, I argue that the focus on debates over legalization or decriminalization at the federal level is misplaced. This is because, even if it wanted to, the federal government would not have the ability to unilaterally "legalize" or "decriminalize" any controlled substances. Using the example of medical marijuana laws as a case study, Part III contends that, just as the federal government does not have the ability to unilaterally decriminalize a drug, it also does not have the power to stop states from reforming their own laws. In Part IV, I consider the implications of Parts II and III and conclude that they counsel in favor of reforming federal drug laws in a way that would respect states' decisions to innovate in the area of drug policy, while also providing important controls and incentives to prevent against negative externalities in the form of spillover effects in neighboring states .

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Central to the Debate: Feds or States?

Key Debate

Most of the literature about this topic is in the context of drug policy, particularly marijuana reform. Even though we are talking about 5 or more types of “crimes/behaviors,” the literature in the MJ area is dominant and should probably have a large influence on how we look at the wordings. There is even something to be said for “figure out the marijuana debate and the rest will follow.”

In that sense, the fact that the “Feds vs. the States” has been under-theorized in the literature, means we need to expand that debate when discussing policy and reform. In other words, the wording of the topic should allow for this debate and should certainly not tie the aff’s hands into the failed paradigm and focus of the past.

However, as proposals to alter our drug laws have entered the political spotlight, there has been relatively little attention paid to the different roles of the federal government and the states in the area of drug policy. This oversight is not new. Indeed, as Michael O'Hear observes in his authoritative article Federalism and Drug Control, the question of how drug enforcement and policy- making decisions should be distributed between state and federal authorities has been surprisingly under- examined for quite some time . n25 The changing political landscape in this area, however, reveals even more clearly why this question is such an important one. When state and federal efforts are closely aligned in the pursuit of the same strategy, as they were for some time during the war on drugs, policy discussions will naturally tend to revolve around the best tactics for implementing the strategy, or about the wisdom of the strategy as a general matter. Perhaps it is not surprising, then, that drug policy questions are typically viewed through the same lens, regardless of whether the context is state or federal law. While this tendency may make sense when state and federal strategies are closely aligned, it becomes problematic when the two diverge .

This Kreit evidence is pretty definitive and the reality of State jurisdiction is even more pronounced since 2010. There are three other Alex Kreit articles referenced in the topic paper, but this Chapman LR is on a list of citations and these cards are not in the paper.

States Only?

This evidence is outstanding and does three things:

1. It is strong enough to butt up against the sentiment in the controversy paper that we need to have a wording option that is just the USFG. The problem is, the controversy paper is more insistent on the inclusion of the 5 main areas. Although there is a good debate that one or more of those five areas do not Page 11 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 12 of 134 Group Three Paper really belong in all the wordings, having that debate with much success would require going against the most adamant position taken by the controversy paper itself.

2. Thus, if we start with the assumption that the 5 areas have to be in all the wordings, I think we begin to question the wisdom of a wording that is ONLY about federal action. We may be comfortable and secure with that kind of a wording (USFG only) and we may feel better about our “apparent good-faith move to adhere to the controversy paper” by having a wording that is just about the USFG, but we would be deluding ourselves if we concluded that an “Exclusive Federal Agent” allows for a good debate about the 5 areas in question. The 5 areas are about State action—what are the States doing in these areas and how can penalties be diminished? Looking at these 5 areas objectively—including the drug area—there is no way in any world that these 5 areas point to a Federal actor. Maybe they could point to the Supreme Court, but even then there is a disconnect.

3. The most directly pertinent authority and policy pertaining to these activities is that coming from the States. Thus, the aff should be able to act through all or nearly all State governments. There are a lot of ways to do that and certainly some of them should include Federal options, but if we had to have a wording with one stable focus on a source of authority, it would be “R: The States and Territories should…”

In an important sense, however, the debate about legalizing or decriminalizing marijuana truly is misplaced in the context of federal drug laws. Indeed, to ask if the federal government should legalize marijuana is to ask an essentially irrelevant question - irrelevant not because it is unimportant or on the political fringe (certainly, if the polling is to be believed, it is not), but because it misunderstands the role of the federal law in shaping drug policy. Whether or not legalizing or decriminal-izing marijuana is a good idea, the federal government simply does not have the power to effect such a change . Imagine, for example, that every federal elected official decided tomorrow that marijuana should be taxed and regulated like alcohol. Even if they were to pass legislation that removed all federal criminal penalties for possessing, manufacturing, or [*562] selling marijuana, the drug would still be illegal everywhere in the country because all fifty states have their own laws criminalizing the sale of marijuana . n30 To be sure, if the federal government were to remove criminal penalties for the cultivation and distribution of marijuana, it would have a substantial impact on the enforcement of marijuana laws in the United States. That impact, however, would not be "legalization" of the drug inasmuch as marijuana would not be legal to buy and sell in any state unless and until that state also changed its laws. In short, unless the federal government decided to preempt state law, n31 it could not unilaterally "legalize" a controlled substance even if it wanted to . To see why this point has important implications for thinking about federal drug laws, consider Congressman Frank's proposed legislation. Congressman Frank and the media framed the bill, dubbed the "Act to Remove Federal Penalties for Personal Use of Marijuana by Responsible Adults ," as a proposal to decriminalize marijuana nationwide. n32 But, if we think a bit more about what the bill would actually do, we find that the question of whether or not our country should decriminalize marijuana is not particularly relevant to assessing the merits of Congressman Frank's proposal. The Personal Use of Marijuana by Responsible Adults Act would enact a simple change in federal law by eliminating federal penalties for "the possession of marijuana for personal use," defined as 100 grams or less of marijuana, "or for the not-for-profit transfer between adults of marijuana for personal use." n33 How would this change in the law impact marijuana enforcement in the United States? A quick look at the data for [*563] federal prosecutions reveals that the actual effect of the legislation would be quite minimal. In 2008 there were a total of only 626 simple marijuana possession cases disposed of in federal court. n34 To put this number in perspective, there were approximately 754,223 arrests for marijuana possession nationwide in 2008. n35 In other words, the bill would impact about 0.0008 percent of all individuals arrested for marijuana possession. It is also worth noting that the 626 figure is almost certainly larger than the number of individuals who would have been charged with a federal crime based on simple

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CEDA Wording Papers 2014-15 Decriminalization Topic Page 13 of 134 Group Three Paper possession of a personal use amount of marijuana alone. This is because, in all likelihood, a number of the 626 defendants were initially charged with a more severe offense but were convicted of marijuana possession as part of a plea deal. n36 Indeed, of the 370 defendants convicted of federal marijuana possession in 2008, 367 were based on guilty pleas. n37 And, though data is not available on the number of individuals who were federally charged based on the not-for-profit transfer of personal use amounts of marijuana, there is no reason to believe that it is significantly larger than the number of individuals charged with simple possession. With this in mind, to say that the Personal Use of Marijuana by Responsible Adults Act would have a negligible impact on marijuana arrests and prosecutions would be an understatement, particularly when one considers that individuals who might avoid federal prosecution under the legislation would not necessarily escape punishment, as they could still be prosecuted at the state level. Far from "decriminalizing" marijuana, then, the direct impact of Congressman Frank's proposal would be to remove a few hundred defendants from the federal system and leave their cases to local prosecutors. Indeed, even if the proposal were expanded beyond marijuana to take the federal government out of the business of prosecuting simple possession [*564] for all drugs, the real- world effect would still be surprisingly trivial, as there were only 394 prosecutions for simple possession for all drugs other than marijuana in 2008 . n38 When viewed in this light, it becomes clear that to discuss a proposal like the Personal Use of Marijuana by Responsible Adults Act primarily by reference to terms like decriminalization and prohibition is really to misstate the relevant issue. A debate over whether to remove federal penalties for small amounts of marijuana or other drugs is not a debate about decriminalization, but about the best use of federal resources and the most sensible role for federal law in addressing the problem of drug abuse. In other words, the policy question posed by Congressman Frank's bill is not whether to criminalize possession of small amounts of marijuana, but rather who is best able to enforce criminal laws against possession of small amounts of marijuana, and whether the activity is one that the federal government can or should concern itself with. Not only would reframing the debate over federal drug laws on these terms be more accurate, it may also make it easier to bridge the divide between different sides of the debate on drug policy issues and find common ground. For example, even those who are opposed to the idea of decriminalizing drugs as a general matter may nevertheless believe that it is unwise to have a federal law that is so infrequently enforced. As has been observed in other contexts, rarely enforced laws can become problematic on that basis alone because they are especially susceptible to being applied in a discriminatory or arbitrary fashion. n39 The potential for arbitrary or discriminatory enforcement may be all the stronger in an area like drug possession, where the overwhelming majority of defendants will find themselves in state court while an unlucky few may face more severe penalties for the same conduct in federal court. n40 Meanwhile, others who oppose decriminalization may nonetheless believe that the federal government should not criminalize activity that can be (and already is) much more [*565] efficiently dealt with by the states because doing so detracts from federal efforts to police more complex interstate crimes. n41 State governments are much better equipped than the federal government to investigate and prosecute local, street-level crimes such as drug possession. Perhaps, then, federal law enforcement resources should be reserved for crimes that are more difficult for state officials to detect. n42 Whatever one's view about the appropriate role of federal law in drug enforcement, recognizing that a proposal to remove simple drug possession from federal authority is only tangentially related to the idea of "drug decriminalization" is critical if we want to achieve a more rational and constructive dialogue about federal drug laws. So long as every structural change in federal drug laws is viewed within the framework of the debate about prohibition or legalization, there will be little room for agreement and compromise. Likewise, questions that are much more relevant in the context of today's drug policy landscape - in which states are enacting and considering a diverse range of different reforms - like how to most effectively use state and federal law enforcement resources, or which policy decisions should be left to state discretion and which require uniformity across the country, will continue to be pushed to the background .

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States Agent Wordings

If you can’t beat ‘em, join ‘em.

Given the evidence above is in the context of marijuana and at least a few of the other crimes from the “must include” list in the controversy paper are more dependent on State jurisdiction than illegal drugs, it makes more sense to have a States agent as an exclusively specified agent than it does to have the federal government as the only agent.

Federal action cannot really solve directly, and if it is to overcome the States, it must act through an explicit delineation of “Preemption” and stipulate the focus and cause for the preemption. The Supreme Court might be an exception, but would probably need to rule on Constitutional grounds or make a decision implicating the doctrine of federalism as a whole.

We’ve been worried about domestic topics and the States CP for some time—that may be the reason we refuse to debate education. Ironically, we have selected a legal (also domestic, but primarily legal) controversy that is all about federalism. There is no way—whether it’s passive, federal, States, or otherwise—that we will avoid the debate over jurisdiction and the Federal-States-Local triad. In that world, there is argument that we should give the aff the best agent in terms of solvency. That would be the States. In that case, here are some thoughts on that trajectory… The States / the Fifty States / The States of the U.S. / U.S. States + What?

U.S. Territories, and District of Columbia covers most of the Federal Jurisdiction not covered by the fifty States. We could add in military and diplomatic installations as well.

R: All or nearly all of the U.S. States, the District of Columbia, and the U.S. Territories should...

R: All or nearly all the non-federal / sub-federal governments of the States and Territories of the U.S. should...

R: The governments of the States and territories should...

From Stefan:

Doesn't "all or nearly all" just modify States in this resolution stem? Neg still PIC a territory and/or DC. Maybe that isn't the end of the world, but it is probably ideal to avoid.

All or nearly all the US States and Territories, as well as the District of Columbia, should....

The DC PIC will turn into a common generic neg strategy if it is left in. It MAY be best to just leave it out.

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All or nearly all the US States and other Territories should...

It's probably better that the Aff can't solve in DC than that the Neg gets to PIC it every debate

Here’s the cumbersome wordings that gets at our goal:

R: Most or all of the U.S. States, as well as potentially the District of Columbia and/or the U.S. Territories should...

Yes, it’s a bit of a mess and we haven’t even added the mechanism and the crimes yet, but this topic is very much about who does the legalizing and what jurisdictions we want to debate. In that case, we should be explicit about the agents in question. The generic neg argument is now a PMN about military bases and embassies instead of a contrived PIC of Guam.

Territories

Some background on the “Territories” question if we decide to go this route…

“U.S. Territories” would be fine and would include the five most important areas in terms of governance and populations: Guam, Northern Mariana Islands, Puerto Rico, United States Virgin Islands, American Samoa.

The first four are considered “organized” and have limited representation in Congress, while American Samoa is “unorganized’ in terms of its political structure. All five of these territories are “unincorporated,” a term that contrasts to current states like Hawaii and Alaska that were “incorporated” into the 50 States. Unincorporated unorganized territories, other than Samoa are usually uninhabited islands.

In addition to the District of Columbia, the other U.S. sovereignty extends to embassies and consulates and well as military bases and military prisons.

Adding the territories makes sense because the crimes in question are enforced/determined there and the governments of the territories make decisions about such activities. The inhabited United States territories have democratic self-government.

More Territories Information

Gary Arndt, ’13 “Everything You Need to Know About the Territories of the United States Published on 06/27/2013, http://everything-everywhere.com/2013/06/27/everything-you-need-to-know-about-the- territories-of-the-united-states/

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Legal Status of Territories Territories are not new to the United States. Ever since independence the United States has had areas which were not states but were fully part of the country. Most states, outside of the original 13, were territories before they became states. The states of Wisconsin, Minnesota and Illinois were created from Northwestern Territory. North and South Dakota used to form the Dakota Territory. In the 20th Century Oklahoma, New Mexico, Arizona, Hawaii and Alaska all made the jump from territory. The creation of territories is addressed in the constitution and is a power given to congress. (It should be noted that Washington DC is NOT a territory. It is the Federal district that is distinct from a territory.) Today there are two criteria that categorize American territories. A territory can be incorporated or unincorporated. A territory can be organized or unorganized. Incorporation Incorporated territories are considered to be integral parts of the United States. Prior to statehood, both Alaska and Hawaii were incorporated territories. In incorporated territories the constitution is in full effect. Incorporated territories would be similar to territories found in Canada (Northwest Territories, Yukon and Nunavut). They are not large enough for statehood, but still considered part of the country. Today the US has only one incorporated territory: Palmyra Atoll. Most people have never heard of Palmyra Atoll, but it is legally the only incorporated territory of the US. It has this status because of a quirk of history. When Hawaii gained statehood in 1959, Palmyra was part of the territory of Hawaii. The act of statehood, which admitted Hawaii to the union, explicitly excluded Palmyra from joining the rest of the Hawaiian Islands from becoming a state. I have searched high and low for an explanation as to why Palmyra was not included with Hawaii as a state, but I could never find a reason. Today Palmyra is owned by The Nature Conservancy and has no permanent human settlement. All other US territories today are unincorporated territories. They are not considered integral parts of the United States that the US has permanent sovereignty over. Organization The other criterion which defines US territories are their organizational status. Organized territories are territories subject to an Organic Act, passed by congress, which establishes a government in the territory. Of the five populated territories in the United States, four of them have passed an Organic Act and are organized territories. They are (with date of organization): Puerto Rico, 1900 Virgin Islands, 1936 Guam, 1950 Northern Marinas Islands, 1978 Citizens of all of the above territories are US Citizens, however they cannot vote in federal elections. They each have a representative in congress, which cannot vote on the floor but may vote in committee. The remaining US territories are all unorganized:

Although American Samoa is non-organized, it is self-governing American Samoa (Pacific) Palmyra Atoll (Pacific) Baker Island (Pacific) Howland Island (Pacific) Jarvis Island (Pacific) Johnston Atoll (Pacific) Kingman Reef (Pacific) Midway Islands (Pacific) Wake Island (Pacific) Bajo Nuevo Bank (Caribbean) Navassa Island (Caribbean) Serranilla Bank (Caribbean) All of the unorganized territories except for American Samoa are uninhabited and have never had any permanent human population. While American Samoa is officially unorganized, it is still self-governed and has a government. Citizens of American Samoa are not US citizens, but rather are US Nationals. They may live and work anywhere in the US, but cannot vote should they move to the United States. US Nationals may apply for citizenship as if they were resident aliens but do not have the same restriction for traveling and living in the US. If you have ever filled out an online form, you might have seen “US Minor Outlying Islands” as a country option in a drop down list. While that is an official designation for the uninhabited islands, no one actually lives there, so I’ve never understood why it is included in country lists. Populated Territories For all practical purposes, the United States has five territories, those being the ones that are inhabited.

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Also, Insular Areas

Wikipedia’s “Insular Areas” The insular areas include a number of territories under the sovereignty of the United States and three sovereign nations in free association with the United States. Territories incorporated within the provisions of the U.S. Constitution are designated incorporated territories. Territories not so incorporated are designated "unincorporated". Territories may also be organized, if granted by an Organic Act of Congress or unorganized (without direct authorization of self-government by such an act).

The United States also holds several other territories, districts, and possessions, notably the federal district of the District of Columbia, and several overseas insular areas, the most significant of which are American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the United States Virgin Islands. Islands gained by the United States in the war against Spain at the turn of the 20th century under the control of the federal government is considered part of the "United States" for purposes of law.;[7] on the other hand, the United States Supreme Court declared in a series of opinions known as the Insular Cases that the Constitution extended ex proprio vigore to the territories. However, the Court in these cases also established the doctrine of territorial incorporation. Under the same, the Constitution only applied fully in incorporated territories such as Alaska and Hawaii, whereas it only applied partially in the new unincorporated territories of Puerto Rico, Guam and the Philippines

50 States and the District of Columbia http://www.usa.gov/Agencies/State-and-Territories.shtml …….Links to State Governments

U.S. Territories and Associated States

• American Samoa • Federated States of Micronesia • Guam • Midway Islands • Northern Mariana Islands

• Puerto Rico • Republic of Palau • Republic of the Marshall Islands • U.S. Virgin Islands

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Preemption Doctrine

Preemption--general

There is a lengthy discussion about preemption in the CEDA forums that is both helpful and tough to pin down to something useful for the wordings. The spectrum of opinions on whether the Federal government can simply mandate State decriminalization is quite wide and all the positions are backed up with strong rhetoric and often evidence. One extreme says the Feds cannot do anything—the States can control these crimes and will continue to do so regardless of federal policy. The other extreme says (either through fiat or the natural progression of the law or both) that federal action will require all the States to abide in a fast, efficient, and uniform way. Much of this debate depends on the specific example, the way the mechanism is used, and how far/durable is fiat’s reach?

The positions in the middle of this question make the most sense—the Federal government can act in the areas of decriminalization and legalization, but not without encountering some resistance and not in a routine or completely predictable way. The debate is rigorous enough that the Federal action—in order to have any real effect and any chance of being enforced—has to be a unique exercise of authority and spelled out as such.

In other words, this is not normal means. The Federal government has to include different actions in order to establish that the policy is an usurpation of State authority and existing legislation in that area. These actions include things like writing a “preemption provision” into the legislation, announcing the explicit justifications for the federal priority in the matter, or citing Supreme Court precedent when acting as the judicial branch for what doctrine (10 th Amendment, Commerce Clause, National Security, etc.) warrants the specific action. This kind of federal intrusion cannot be “hidden” and cannot be taken lightly or as commonplace. Most likely, the action would relate in some way to the preemption literature.

Preemption Definition

The Preemption doctrine is ultimately the authority given to the Federal government (Congress) in the Constitution under the Supremacy Clause to trump State laws when federal and state laws come into conflict.

Neil S. Siegel Assistant Professor of Law and Political Science, Duke University School of Law, ‘ 06 . “Commandeering and Its Alternatives: A Federalism Perspective” VANDERBILT LAW REVIEW [Vol. 59:5:1629, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2299&context=faculty_scholarship

Preemption is the constitutional principle derived from the Supremacy Clause, U.S. C ONST . art. VI, providing that if a conflict exists between valid federal law and state or local laws, federal law controls and the state or local laws are invalidated on the ground that federal law is supreme. See, e.g. , Gade v. Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88, 108 (1992) (“[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, any state law, however clearly within a State’s acknowledged powe r, which interferes with or is contrary to federal law, must yield.” (internal

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CEDA Wording Papers 2014-15 Decriminalization Topic Page 19 of 134 Group Three Paper quotation marks omitted)); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824) (concluding that federal law trumps state laws that “interfere with, or are contrary to the laws of Congress” because “[i]n every such case, the act of Congress . . . is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it ”). In New York , Justice O’Connor stated that preemption, unlike commandeering, does not trigger Tenth Amendment concerns . See supra text accompanying note 7.

Preemption is distinct from debates over “enumerable powers” and the 10 th Amendment, and it is also separate from other ways the Federal Government has asserted its influence such as through the use of sending authority (telling the States to change the drinking laws in order to receive highway funding), through the use of the Commerce Clause (regulating goods and services that cross State lines), through a gesture to national security and treaty-making authority, through the need to protect Constitutional rights, through Executive agency implementation. There are always gray areas and the Federal-State nexus is a complicated and shifting balance of power and sovereignty. Interestingly, the crimes selected in the controversy paper (prostitution, gambling, organ sales, assisted suicide, and marijuana) are typically in the realm of the States, unlike other crimes that are predominantly dealt with on a federal level such as financial trading, political protest and treason/terrorism, portions of immigration, and professional sports (performance enhancing drugs).

Here is evidence going through some of the preemption debate that Rashad Evans posted in the Forums. There is a discussion about this card, with a lively debate between coaches, former coaches, debaters, and alumni. As people weighed in, it became clear that “fiat” alone is not sufficient to explain the ways in which the Federal government can (or might) trump State laws. The bottom line is that when the Supreme Court determines these kinds of conflicts, the threshold for invalidating State action in terms of a criminal code is very high—it would be incredibly difficult for the Federal policy to withstand Supreme Court scrutiny if the Feds did not clearly and convincingly demonstrate their justifications for taking State authority.

Alan Kaugman , of Counsel Cannabis Counsel, P.L.C. B.A., Mathematics , 19 69 , University of Michigan; J.D., 1974, University of Michigan, and Matthew Abel, Founder & Partner, Cannabis Counsel, P.L.C. B.A., 1978, Central Michigan University; M.P.A., 1980, Central Michigan University; J.D., 1985, “THE FEDERAL CONTROLLED SUBSTANCES ACT DOES NOT PREEMPT THE MICHIGAN MEDICAL MARIHUANA ACT” 58 Wayne L. Rev. 1, 19-20 (2012)

The potential for interpretational conflict or tension between the constitutionally based doctrines of "supremacy" and "dual sovereignty" is apparent. Over the years, the Supreme Court has addressed this by creating a structure within which such matters are addressed, reconciled and resolved. Basically, the analytical framework is as follows: when a state statute is to be evaluated to determine if it is preempted by a federal statute, first (although most cases do not address this because it is obvious), the statute is checked to see if it conflicts with a constitutional power reserved exclusively to the United States. 137 Assuming that this does not obtain, the next step is to determine if the state statute involves a "police power" normally reserved to the states. 138 If this is the case, further analysis is necessary. 139 If the "police power" involved is civil- -that is, does not involve the state's criminal code--then preemption will not be found, unless it was "the clear and manifest purpose of Congress" to do so. 140 If the "police power" involves the state's criminal code, then the Supreme Court erects an even higher barrier to a finding of pre-emption. 141 Because the enactment and enforcement of a criminal code is the "foremost" expression of sovereignty, and the principal "locus" for the enactment and enforcement of criminal statutes historically resides with the states, not the federal government, the Supreme Court has rarely found a federal statute to preempt a state criminal statute . 142 In practical terms, the Supreme Court evaluates such cases with close attention to the scope and purpose of the federal statute, the interest(s) being protected by the statute, the importance of the federal interest, and, particularly, the "facts on the ground" which tend to show (or not show) that the asserted [*20] federal preemption is demonstrated by sufficient federal enforcement activity (investigation and prosecution at a minimum) so as to justify the exceptional step of finding that a federal statute preempts a state criminal statute. 143 Most typically, the Supreme Court has analyzed state statutes involving civil law. If the threshold suggested in the foregoing summary has been met, then the Court teaches that Page 19 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 20 of 134 Group Three Paper even further inquiry and analysis is required before a finding of preemption is justified. 144 Although detailed review of the many decisions and extensive learned academic writings concerning these "downstream" requirements needed to justify a finding of federal preemption is beyond the scope of this Article the existence of these further requirements amply demonstrates that the barriers erected by the Supreme Court cases to a finding of preemption are genuine. 145

Preemption and Compelled State Regulation

Preemption is purposeful regulation by the Federal Government—most likely would be the Feds trying to say that something should be a crime instead of the Feds telling the States that something should not be a crime. Although, interestingly, Preemption can be used to compel more OR less regulation (increase or decrease regulations) by setting a floor and a ceiling.

Neil S. Siegel Assistant Professor of Law and Political Science, Duke University School of Law, 20 06 . “Commandeering and Its Alternatives: A Federalism Perspective” VANDERBILT LAW REVIEW [Vol. 59:5:1629, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2299&context=faculty_scholarship

This Article uses the term “preemption” in the sense of direct federal regulation, not necessarily in the sense of a complete federal ouster of state regulatory authority. Preemption does not always remove states from the regulatory scene, at least not entirely, because federal law may set a regulatory floor or ceiling instead of a specific requirement, and states may exercise their authority consistently with the federal mandate.

Preemption Example—Marijuana Laws on the Federal Level Fail without preemption and probably even with preemption.

If the Feds resorted to preemption in this area, it might help solve, but there is no guarantee, and it would have to be explicit. Even then, a debate is necessary about anti-commandeering.

Perhaps because it is one of the few medical marijuana states that has allowed a distribution system to develop, n72 California has drawn more attention from the federal government than most of the others. n73 But, despite a dedicated and sustained effort, the federal government has been unable to impede California's medical marijuana law. Federal officials have been no more successful in stopping other states from implementing their own medical marijuana laws . n74 Perhaps as a result, after a nearly fifteen year effort to stop state medical marijuana laws, the Obama Administration recently signaled a new course by issuing prosecutorial guidelines advising federal prosecutors that they "should not focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," in part because doing so "is unlikely to be an efficient use of limited federal resources ." n75 As Robert Mikos explains, the federal government's inability to block state medical marijuana laws results from a few different factors. First, the federal government's limited law enforcement resources mean that it cannot arrest and prosecute more than a small fraction of collective operators and growers, let alone patients . n76 Thus, although federal law may make marijuana possession, cultivation, and distribution illegal for any and al l purposes, that fact has little deterrent power in states with medical marijuana laws. Unless the federal government was to radically increase both the federal drug control budget as well as the percentage of the budget devoted specifically to the prosecution of Page 20 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 21 of 134 Group Three Paper medical marijuana cases in states where the drug is legal, it can do little to change this dynamic. n77 Similarly, Mikos argues that state laws hold greater sway over social norms and personal preferences than federal laws, at least in the area of drug policy. n78 As a result, the existence of a federal ban does little to alter people's personal beliefs about medical marijuana. Finally, the federal government is unable to resort to preemption to try to block state medical marijuana laws. This is because [*572] Congress does not have the authority to tell a state what activity to make criminal - indeed, doing so would violate the anti-commandeering principle. n79 As a result, a state's decision to remove its own sanctions for medical marijuana-related activity cannot be preempted by the federal government . n80

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Anticommandeering

Anticommandeering Doctrine

The Supreme Court has isolated an “anticommandeering principle” closely related to “Preemption” that essentially says the Federal Government should avoid Commandeering State policy where at all feasible. In other words, a presumption against preempting the States exists because such “commandeering” of the States would violate this doctrine.

The anti-commandeering doctrine , recently announced by the Supreme Court in New York v. United States and Printz v. United States, prohibits the federal government from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials. This doctrine is best understood as an external constraint upon congressional power —analogous to the constraints set forth in the Bill of Rights—but one that lacks an explicit textual basis. Should the Constitution indeed be interpreted to include a judicially enforceable constraint upon national power—and, if so, should that constraint take the form of an anti-commandeering rule?

From this evidence commandeering would usually mean forcing the States to outlaw a particular behavior, not make it more permissible. So, in the context of Federal law legalizing a crime and then applying that to the same crimes in each of the States, the anticommandeering doctrine might not apply. It is a debate, however, because there is a sense that the Feds should not be able to commandeer a State’s criminal code in order to remove a criminal behavior. It is broad.

Anticommandeering doctrine thus prohibits the federal government from requiring the states to enact, to administer, or to enforce a federal regulatory program under any circumstances.

Anticommandeering Impact?

What is the impact to violating the anticommandeering doctrine? That begs the question of what the impact to violating federalism is in the first place. There is a sense of tyranny and governmental control as well as a linear relationship to protecting this balance within a functioning democracy (in addition to some modelling arguments that are generally weak and often racist in the way they project Western political structures onto “less civilized others) that would make up an impact. Not a huge impact without some embellishment, but an impact.

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Even if one believes that commandeering triggers political accountability concerns appropriate for judicial vindication, the question arises whether accountability exhausts the relevant constitutional considerations, or whether other federalism values are pertinent to the proper scope of anticommandeering doctrine. This inquiry argues that the constitutional calculus is considerably more complicated than the Court’s opinions suggest. The following analysis captures the factors in play by articulating a simple expected-value equation and unpacking its components. The analysis uses this equation to trace out the consequences of anticommandeering doctrine—both widely recognized and potentially counterintuitive—for the Constitution’s commitment to federalism.

Anticommandeering + Preemption

Some authors (such as the Adler footnotes below) contend that anticommandeering and preemption are really the same thing and it makes no sense to try to distinguish them from each other. On the other, hand, the way anticommandeering can be deployed by the Court to frustrate Federal control over the States in a different way is another factor to consider—either a reason to move toward the passive voice/States or a link debate into Federalism.

Matthew D. Adler , University of Pennsylvania Law School, ’01 “State Sovereignty and the Anti-Commandeering Cases” The ANNALS of the American Academy of Political and Social Science March 2001 vol. 574 no. 1 158-172 e, e.g. , Daniel Halberstam, Comparative Federalism and the Issue of Commandeering , in T HE F EDERAL V ISION : L EGITIMACY AND L EVELS OF G OVERNANCE IN THE U NITED S TATES AND THE E UROPEAN U NION 213, 231 (Kalypso Nicolaidis & Robert Howse eds., 2001) (“ [T]he danger of blurring lines of accountability in the case of commandeering is not catego rically different from what happens in the case of federal pre-emption, which the Court accepts . In both cases, the component State’s actions or inactions are only partially determined by State politicians, yet citizens are likely to view the component State officials as fully responsible whenever the latter are the most salient agents involved. In both cases proper lines of accountability can be preserved when component States are vigilant in publicizing the respective roles of the federal and State policy-makers on any given issue. Given proper information, citizens should find the lines of accountability reasonabl y clear.”); Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law? , 95 C OLUM . L. R EV . 1001, 1054-55 (1995) (“ Commandeering precludes state officials from being directly and exclusively responsive to their constituency’s desires, but so does conventional preemption. Although one can use verbal wordplay to make it sound as though commandeering and preemption frustrate accountability in different ways , this is merely definitional manipulation without substance. Prohibiting commandeering but not preemption in the name of securing the accountability of state government is simply arbitrary.” ) (footnote omitted); Jackson, supra note 12, at 2202 (“ Standard preemption—the effect of fe deral law in negating the area in which state law can operate—can obscure the causes of inacti on by state officials. Conditional spending regulatory requirements, though nominally involvin g a state’s choice to accept federal funds, can result in a very confusing pict ure of responsibility to voters. Why, then, would commandeering be different? ” (footnote omitted)). See also infra Parts II.D, IV.E (discussing accountability concerns in various regulatory contexts).

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Recommendation—Don’t Use the Feds to Debate a “Legalize Marijuana” Topic

A Federal plan might be on OK idea and a creative affirmative could find ways for the Federal Government to target the problem. Unfortunately, though, it would take quite creative ways to really result in legalizing an activity that is typically under the purview of the States. Federal action could deal with the small percentage of crimes in the 5 areas that are federal and that are enforced on a federal level, but that would be tiny silver of the scope of action contemplated in the controversy paper. From talking to a colleague in the U.S. Department of Justice about this, the DOJ does not have the resources or will to prosecute these particular crimes in the first place. They are trying to minimize the percentage of their budget that goes to prisons and incarceration, particularly in the victimless drug crimes area. This topic is just not a federal topic—it dodges the debate and it probably not inherent given the things that the feds actually go after and prosecute.

This essay considers the question of how to think about federal drug laws in a post-drug war era - one in which states are enacting reforms that are at odds with stated federal policy . My approach here has been, by design, limited and focused. I have, for example, omitted some of the most important proposals for reforming federal drug laws, such as reforms that would reduce the severity of federal sentences for low-level drug offenders. Instead, this essay seeks to examine possible reforms that relate to the role of federal law in shaping and enforcing our drug policies . The discussion reveals the importance of cutting through the debate about prohibition and legalization when thinking about federal drug laws. By looking at a proposal in Congress to "decriminalize" marijuana, we find that the federal government could not unilaterally legalize or decriminalize a drug even if it wanted to. As a practical matter, if the federal government were to remove federal penalties for possession of small amounts of marijuana, the result would not be nationwide decriminalization but a shift in at most 600-odd defendants from federal to state courts. This is in large part because, even in an age of unprecedented federal involvement in criminal law enforcement, states still arrest and prosecute far more offenders than the federal government . For this same reason, the federal government may be unable to stop states from enacting reforms like the legalization of medical marijuana, even though they are inconsistent with federal policy. [*581] The federal government cannot legalize marijuana on its own, but it also cannot stop a state from doing so . n103 As a result, if we approach proposals to reform federal drug laws from the prohibition/legalization framework, we will be asking the wrong questions. Instead, we would be much better served by thinking about these issues in terms of the role of federal government in light of state laws. This is not only a more accurate way to look at issues like how the federal government should respond to state medical marijuana laws, but it also has the potential to help begin to bridge the divide in what is often a polarizing debate .

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Rejoinder—The Feds Would Still Matter

Using the States and Territories still gives the Federal government a huge role. There are ways the Feds could then tailor their policies to encourage and support State action. This means the negative has a viable counterplan when the Aff selects the States and territories—a Counterplan that may or may not solve better, may or may not be susceptible to the permutation, and a counterplan that is all over the literature. This evidence may not appease the “Feds Forever” people, but it comes damn close to answering all of their arguments.

Even for those who would prefer not to allow states to enact reforms such as legalizing medical marijuana, however, there is much to be said in favor of a decentralized approach. This is because the experience of state medical marijuana laws reveals that the federal government simply may not be able to prevent states from implementing drug laws that are at-odds with federal policy. By coming to terms with the limits of its authority, the federal government could actually achieve greater influence over state reforms than it has now. n96 For example, instead of preventing states from directly cultivating and distributing medical marijuana as federal law does now, n97 federal elected officials might consider providing an incentive for states that implement medical marijuana laws to make them state-run. This change could be easily achieved by expanding a provision of the Controlled Substances Act that grants immunity to state and local officials who are "lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances." n98 Courts have interpreted the provision to grant immunity from federal prosecution to officers who violate the drug laws while working undercover, but not to officials who are engaged in the implementation of state and local medical marijuana laws. n99 If the provision were extended, however, to explicitly include state and local government officials implementing their own laws, even where they otherwise conflict with federal law, then states and localities that enact reforms would have a strong incentive to adopt a government-run model. This would likely result in reforms that are more limited and strictly controlled than those arising in a private system. As a result, state reforms would be better controlled and less likely to [*578] result in spillover effects in neighboring states. Similarly, the federal government might consider adopting a policy permitting state and local governments to implement laws that are at odds with the federal prohibitionist preference if they pay a fee from their revenues to a fund that would help defray such spillover costs. One can easily imagine a range of other possible changes to federal law along these lines, and my aim here is not to advocate for any one proposal specifically. Instead, my claim is that by abandoning a futile effort to stop states from implementing their own reforms entirely, the federal government could enact policies that might result in more constrained and limited state reforms. To be sure, this approach would not fully satisfy those who think that the federal government should dictate state policy or who believe the federal government has a moral imperative to maintain a strict prohibitionist approach regardless of its actual impact. But I would urge those who find these ideas hard to stomach to give serious consideration to whether it would be wise, or even feasible, for the federal government to devote the amount of resources that would be necessary to have even a realistic chance of actually blocking state reforms. The experience to date with state medical marijuana laws indicates that the federal government would need to expend significant amounts of money and law enforcement energy to have even a remote chance of preventing the implementation of state reforms. If a state sought to legalize, say, methamphetamine, then perhaps the argument for marshalling the necessary resources would be compelling. But, when it comes to medical marijuana, or even state proposals to legalize marijuana outright, it seems much more difficult to justify the costs that would be required for the federal government to have even a remote chance of blocking the state reform. To state the issue somewhat differently, once a state has enacted a law legalizing medical marijuana, the law's opponents have nothing but second-best options. Short of repealing the state's law, the only recourse for the law's opponents is federal law. But at this stage, the calculus is much more complex than whether or not one agrees with the state's law on its own terms. If the federal government is capable of blocking implementation of the state's law, then opponents of the law should naturally and logically see that as the best strategy. But what if the federal government is simply unable to block or even to significantly interfere with the state's law? Would opponents of the law be better served by a haphazard series of federal prosecutions, or by [*579] changing federal law to explicitly permit

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CEDA Wording Papers 2014-15 Decriminalization Topic Page 26 of 134 Group Three Paper the state reform but strictly control it? These are the sorts of questions that federal drug policy will need to address in era of state reform. To date, however, this nuanced view of federal drug law has been almost completely overlooked in favor of a stale and increasingly irrelevant debate. On a related note, the dynamics of state reform also weigh in favor of a broader re- examination of the federal role in drug enforcement, with an eye toward targeting specialized federal resources in areas where they can have the greatest impact. Arguably, many federal trafficking prosecutions today do not fall into the category of offenses that truly require federal attention. A 2007 U.S. Sentencing Commission report, for example, found that 61.5 percent of crack offenders and 53.1 percent of powder cocaine offenders could be classified as low or mid-level offenders - such as couriers, street dealers, or lookouts. n100 These numbers raise serious questions about the current allocation of federal resources in drug enforcement. Even assuming that going after lookouts and other street level offenders is an efficient use of federal dollars, however, it is very difficult to formulate a good justification for the federal government to concern itself with the simple possession of personal-use amounts of a controlled substance. Indeed, the Office of National Drug Control Policy has made it a point to emphasize that the federal government rarely targets drug users, especially marijuana users. n101 Statistics that indicate only about 1,000 drug possession cases were disposed of at the federal level in 2008 confirm that the federal government is simply not well positioned to directly respond to such a localized problem. Since that is the case, there is a strong argument for doing away with federal laws against simple possession of small quantities for all drugs, not because drug decriminalization is necessarily a better policy than prohibition, but because there is little upside and much potential downside to having a federal law that is so rarely enforced and duplicative of state and local efforts. Doing so would have the added benefit of allowing states to implement reforms in areas that might involve simple possession - such as state medical marijuana laws - outside of the shadow of conflicting federal law. [*580] This brief discussion is intended only as an overview of the types of reforms that the federal government might examine in an environment where states are adopting laws that are at-odds with federal preferences. These are, of course, only a few of the many possible options that the federal government might consider implementing. n102 My purpose here is not to endorse one specific proposal or another, but to argue that, as states adopt new drug policies, and as support for alternatives to the drug war strategy increases at the federal level, the federal government should carefully consider the merits of policies that respect state policy choices but also provide incentives for states to closely regulate and control any reforms they might enact.

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Local Agents

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Why Look at Local Agents

Local action, whether on the state or municipality level, has the potential to have national impact NORML, no date NORML Research Library, National Organization for the Reform of Marijuana Laws http://norml.org/library/local

'The law is where you live.' ¶ With that simple concept in mind, the reality is you, your friends and family spend the vast amount of your time in and around your home and workplace. ¶ If you change the marijuana laws where you , and those you care about live, you've taken a huge step in breaking down the national prohibition of marijuana. ¶ There are numerous examples of state and local decriminalization policy models in place that depart from the stricter federal prohibition. Want to know if you live in a state or municipality with decriminalized laws? Check out NORML's list of all 50 states' marijuana laws. ¶ Even in states that still have harsh marijuana penalties and rigorous law enforcement, major municipalities can decriminalize marijuana possession at the local level. ¶ What does all this mean? It means that having local legislation introduced and testifying at the local public meeting is crucial in stopping bad marijuana legislation or, more importantly, passing good marijuana law reform measures. ¶ If you and all your like-minded friends and family can get local legislation introduced, get public hearing and pass decriminalization legislation. ¶ When advocating for marijuana law reform, make sure that representatives of NORML are invited to participate and testify. ¶ Guess what? The law where you live, and spend most of your time, will then be another city or state that makes up an increasing patchwork of common-sense marijuana laws that the federal government can no longer ignore. Then, the political pressure shifts from the states to the federal government, where, ultimately, the laws need to change. ¶ To a degree, this occurred with alcohol prohibition and it is happening again to end marijuana prohibition.

More evidence below about where local approaches have led to state legislation or at least citywide decriminalization proves this to be reasonably feasible. So for this year’s topic, local agents might be worth including within the res, or at least considering what that might look like.

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Definitions

Local--Broadly

It is important to look at what local might include/exclude from the topic… Local, defined broadly with relation to “place” Black’s Law Dictionary, no date 2nd Edition What is LOCAL? Relating to place; expressive of place; belonging or confined to a particular place. Distinguished from “general,” “personal,” and “transitory.” Local, defined excluding state action Random House Dictionary 2014 Published by Dictionary.com 3. pertaining to a city, town, or small district rather than an entire state or country Local government, defined excluding state action Random House Dictionary 2014 Published by Dictionary.com local government ¶ noun ¶ 1. ¶ the administration of the civic affairs of a city, town, or district by its inhabitants rather than by the state or country at large.¶ 2. ¶ the governing body of a town or district. Local government, defined broadly and including people within Merriam-Webster, no date http://www.merriam-webster.com/dictionary/local%20government : the government of a specific local area constituting a subdivision of a major political unit (as a nation or state); also : the body of persons constituting such a government Local government, defined including state Black’s Law Dictionary, no date 2nd Edition What is LOCAL GOVERNMENT? City, town, county, or state level government . The administrative body for this small geographic jurisdiction . Electing officials, enacting taxes, and doing many things a national government can do is within its jurisdiction. The local government typically only controls its specific geographical region, unable to legally pass or enforce laws beyond its legal jurisdiction.

Local government, defined including state Business Dictionary, no date http://www.businessdictionary.com/definition/local-government.html An administrative body for a small geographic area, such as a city, town, county, or state . A local government will typically only have control over their specific geographical region, and can not pass or enforce laws that will affect a wider area. Local governments can elect officials, enact taxes, and do many other things that a national government would do, just on a smaller scale.

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Local government, defined specifying county but not state Merriam-Webster, no date http://www.merriam-webster.com/dictionary/local%20government : the government that controls and makes decisions for a local area (such as a town, city, or county)

Local law, defined Black’s Law Dictionary, no date 2nd Edition What is LOCAL LAW? the term given to a law whose application is limited to restricted areas.

Local law, defined with relation to jurisdiction Merriam-Webster, no date http://www.merriam-webster.com/dictionary/local%20law a law passed by a legislative body and intended to apply only to one part of the area under its jurisdiction — distinguished from general law

Local law, defined with relation to district Lawyers.com, no date Based on Merriam-Webster’s Dictionary of Law 2001 http://research.lawyers.com/glossary/local-law.html 1 a : a law limited in application to a particular district within a territory

Given the variety in these definitions, I have included examples of local action including and excluding state actors.

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Implementation

Possible Local Actors State legislatures – e.g. Maryland’s marijuana decriminalization this year Tabor 3/7 Nick, Associated Press writer, “Committee approves marijuana decriminalization,” Associated Press republished by The Denver Post, 03/07/14 http://www.denverpost.com/marijuana/ci_25296705/committee-approves-marijuana-decriminalization

ANNAPOLIS, Md.—The Senate Judicial Proceedings Committee on Friday approved a measure relegating marijuana possession to a civil offense. ¶ Three of the 11 Senators voted against the measure. Sen. Christopher Shank, D-Washington, who voted against it last year, said he was uncertain at the start of a meeting Friday. At the end of a 30-minute discussion, he held his nose and voted "yes." ¶ The committee has not voted on Sen. Jamie Raskin's proposal to eliminate all penalties for possessing marijuana in small amounts, as Colorado and Washington have done. ¶ During Friday's discussion, the bill's advocates shot down every argument raised by Senators who felt ambivalent. ¶ The bill would likely save money on litigation costs, and Shank wants to amend the bill to divert some of this money toward public health programs. ¶ "I'm sorry, folks, it still is a public health issue," Shank said. ¶ The Maryland Addiction Directors Counsel has requested an amendment that would let judges order defendants to enroll in treatment programs, Shank said. ¶ "I think there are some things that this bill still needs," Shank said. "I hope we're not going to declare victory and walk away." ¶ Raskin, D-Montgomery, said decriminalization is a necessary first step. The U.S. couldn't treat alcohol consumption as a public health matter until it decriminalized drinking in 1933, he said.¶ Sen. Norman Stone, D-Baltimore County, said he's represented heroin addicts as a lawyer. All of them started with marijuana, he said. ¶ Sen. Brian Frosh, D-Montgomery, replied that the "gateway drug" argument isn't persuasive. Those people almost certainly drank alcohol before using heroin, and most were probably inclined by personality to experiment with drugs, he said. ¶ Police sometimes use the smell of marijuana as a pretext for stopping drivers and searching their vehicles, and sometimes they find weapons and huge amounts of drugs. Police chiefs have objected that this bill would deprive them of that tool. They can't stop people for possessing legal substances. ¶ Sen. Robert Zirkin, D-Baltimore County, who introduced the bill, noted that possessing more than 10 ounces would remain a crime — meaning it would remain a valid pretext for traffic stops. He said the other states that treat marijuana possession as a civil offense haven't encountered this problem. ¶ Raskin said that concern shouldn't stand in the committee's way. ¶ "That's a terrible reason to favor the continued criminalization of marijuana—because it gives us a way to get into people's private spaces," he said. ¶ Raskin said that Zirkin's bill doesn't go far enough; he wants the state government to regulate marijuana sales instead of leaving them to the black market. ¶ Since Colorado and Washington have legalized the drug, officials in both states have said they anticipate more than $100 million annually in extra tax revenue. ¶ Zirkin said he agrees but doubts Raskin's bill could succeed. ¶ Parallel bills are pending in the House Judiciary Committee.

Maryland finalizes the decriminalization bill Huffington Post 4/14 Mollie Reilly, Huffington Post writer, “Maryland Decriminalizes Marijuana Possession,” The Huffington Post 04/15/14 http://www.huffingtonpost.com/2014/04/14/maryland-marijuana-decriminalization_n_5107412.html

Maryland Gov. Martin O'Malley (D) has signed a bill decriminalizing marijuana possession in the state, following the passage of the measure in Maryland's General Assembly. ¶ Senate Bill 364 reduces the penalty for possessing less than 10 grams of marijuana from a criminal to a civil offense. First-time offenders will face fines up to $100, while a second offense will be punishable with a fine up to $250 and subsequent offenses up to $500. Additionally, the bill requires third-time offenders or offenders under the age of 21 to be evaluated for substance abuse problems, and to attend drug education classes. ¶ The state Senate gave final approval to the bill April 7 in a 34-8 vote, following a 78-55 vote in the House of Delegates last Saturday. ¶ O'Malley has previously expressed his opposition to legalizing marijuana.¶ "I'm not much in favor of it," he said in January. "We've seen what drug addiction has done to the people of our state, to the people of our city." ¶ Earlier this month, however, O'Malley indicated his support for the decriminalization bill, noting the "low priority" state officials already place on marijuana arrests: ¶ In a statement, the Marijuana Policy Coalition of Maryland praised lawmakers for the decriminalization bill's success, but called on legislators to take further steps toward marijuana prohibition. ¶ "This measure will prevent tens of thousands of Marylanders from facing life-altering criminal penalties simply for possessing a less harmful substance than alcohol. But there is still more work to be done. Although it is a step in the right direction, this legislation will not do anything to eliminate the problems associated with relegating the sales of marijuana to the underground market," the statement read. Also city councils – for example marijuana decriminalization in Denver Denver Post 2013

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Kurtis Lee, Denver Post writer, “Denver council gives initial OK to decriminalizing pot for ages 18-21,” The Denver Post 12/16/2013 http://www.denverpost.com/news/ci_24737489/denver-council-gives-initial-ok-decriminalizing-pot-ages

As the sale of recreational marijuana becomes legal in Colorado on Jan. 1, the Denver City Council on Monday night voted on measures surrounding its criminalization and public display. ¶ Council members gave initial approval to a measure decriminalizing the possession of an ounce of marijuana or less for people between the ages of 18 and 21. Penalties would include only fines and no jail time. ¶ Currently those between 18 and 21 caught with an ounce of marijuana or less can face hefty fines or up to a year in jail. ¶ For those under 18 in possession of less than an ounce of weed, jail is not an option; instead they're sent to the city's juvenile assessment center. ¶ "This in no way is making it legal for these young people to possess or consume marijuana," said

Councilman Albus Brooks , who championed the measure . "What it does do is make it so that these kids don't have to live into adulthood with mistakes they might have made when they were

19." ¶ The measure imposes fines that increase from $150 for the first offense to $500 for the second offense and $999 for the third and any subsequent offense. The fine structure is similar to what people over the age of 21 face when caught smoking or displaying marijuana in public. ¶ "This evens the playing field," Brooks said. ¶ Also Monday, council members gave initial approval to a measure that keeps marijuana away from public and private schools in the city. At its core, the bill prohibits the display, consumption and growing of marijuana on city-owned property within 1,000 feet of a school. ¶ Both measures are slated for final votes next week. ¶ This month, the City Council passed measures that allow people in Denver to grow 12 marijuana plants per household for recreational use and that allow weed to be smoked on private property , even if it's visible from a public street.

Another example – the city council in Berkeley attempting to decriminalize prostitution New York Times 2004 Carolyn Marshall, NY Times writer, “Bid to Decriminalize Prostitution in Berkeley,” The New York Times 09/14/04 http://www.nytimes.com/2004/09/14/national/14porn.html

BERKELEY, Calif., Sept. 13 - San Pablo Avenue was once the thriving, racy final stretch of the nation's first highway between New York and San Francisco, a center for jazz halls, gambling houses and brothels. ¶ Today it is an unremarkable thoroughfare, littered along isolated stretches here with used drug needles and liquor bottles, a place where prostitutes entice customers from gritty curbsides. San Pablo is also at the heart of a bid to decriminalize sex for sale in California. ¶ That campaign, the brainchild of a former prostitute, Robyn Few, seeks to gain ground through an initiative on the November ballot in Berkeley to direct the city police to treat prostitution as their lowest priority. Known as the Angel Initiative , for Angel Lopez, a San Francisco prostitute murdered in 1993, it also instructs city officials to lobby the State Legislature to decriminalize prostitution. ¶ Ms. Few first pitched the idea to state lawmakers and officials in San Francisco and Oakland last year but was turned away. The City Council here also rejected it, but Ms. Few led a petition drive, collecting more than the 2,000 signatures required in Berkeley to qualify for the ballot. ¶ Even in ever-open-minded Berkeley, though, the measure has prompted anger and opposition, including among residents worried about crime and city officials frustrated by Berkeley's reputation for embracing any and all politically novel ideas. ¶ "We're a progressive city," Mayor Tom Bates said. "We just think it's a bad strategy. It's the wrong message to say, 'Come to Berkeley, we're wide open.' " ¶ Ms. Few concedes that the initiative, even if approved, would not be likely to lead to changing state law anytime soon. But she and supporters identified on the ballot - including prominent Bay Area politicians like State Senator John Burton and Terence Hallinan, a former San Francisco district attorney - see it as important in the battle to shield prostitutes from violence while securing workplace protections. ¶ Backers of the measure insist that prostitution is a societal mainstay, a commodity in perennial demand. Therefore, it should be treated like any other job and have unions, government workplace protections, fair wages, insurance and legal recourse for workers who face abuse or civil rights violations. ¶ Supporters seek decriminalization of prostitution, as opposed to legalization, the route taken in Nevada, the only state that permits prostitution, though only in regulated brothels in certain counties. ¶ "This needs to be seen as a women's rights issue and a public health and safety issue," said Ms. Few, adding that prostitutes are often threatened with violence but cannot go to the police without risking arrest. ¶ But residents of Potter Creek, a modest neighborhood adjacent to a stretch of San Pablo Avenue that serves as Berkeley's red-light district, believe the measure would encourage crime, with pimps and prostitutes taking over the neighborhood.¶ Carol Whitman, a 54-year-old Web planner, said Potter Creek streets were already littered with condoms and needles. Ms. Whitman said she had seen cars parked near her home rocking, as people had sex inside. She said she worried for the children who attend two nearby schools and had even tried asking the prostitutes to leave. ¶ "Then they go and tell their pimps and they come around the block and circle and circle, just to intimidate," Ms. Whitman said. "I don't have anything against prostitution, per se, but it's a quality of life issue." ¶ The stigma placed on prostitutes by the police and the public is a sensitive subject for Ms. Few. She was arrested in June 2002 by an F.B.I. SWAT team in a sweeping crackdown on sex workers and medical marijuana growers. Ms. Few, charged with conspiracy to promote prostitution, says she quit the business in 1999 and was scapegoated. She received six months' house arrest and three years' probation. ¶ Anger at the way prostitutes are treated moved Ms. Few, 45, to found an advocacy group, the Sex Workers Outreach Project. Joined by former and working prostitutes, Ms. Few hit the streets, this time to pass out leaflets, attend rallies and lobby legislators to support rights for prostitutes. ¶ Hoping for a city ordinance decriminalizing prostitution, she approached several supervisors in San Page 32 of 134

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Francisco, where a 1996 city report condemning California's prostitution laws led to an ordinance making the arrest of violators a low priority. ¶ One supervisor, Bevan Dufty, said that before legislators tried to rewrite laws, they should understand why sex work seemed to coincide with drug abuse and child prostitution. "Once we address those concerns, we can look at how to better manage prostitution," Mr. Dufty said, adding, "What happens in Berkeley will inform us." ¶ Melissa Farley, a San Francisco psychologist with Prostitution Research and Education, a group opposing the ballot initiative, known as Measure Q, said the measure had nothing to do with women's rights. ¶ "This is an ordinance that reflects the interests of johns and pimps, in spite of the fact that a woman is representing it," Dr. Farley said. ¶ She said of prostitutes: "They don't want to be in prostitution. They would rather be doing almost anything else." ¶ Dr. Barbara Brents, a sociology professor at the University of Nevada, Las Vegas, who studies the sex industry, disagreed. Prostitution, Dr. Brents said, is like any other business, driven by supply and demand. Dr. Brents said decriminalizing it was preferable to the legalization approach in Nevada. ¶ "If the laws are done right, decriminalization is a better alternative because women can be their own boss," she said. "In a perfect world, there is no reason women can't set up shop and run their own businesses the same way a therapist would." ¶ Ms. Few said she welcomed the debate. "The point is to start a groundswell and a dialogue," she said. "This thing didn't start in Berkeley and it won't end in Berkeley."

Local decriminalization can also be enacted by county boards Chicago Sun-Times 2011 Lisa Donovan, staff reporter, “Cook County fixes pot decriminalization bill, will now be enforced,” Chicago Sun-Times 09/07/11 http://www.suntimes.com/news/metro/7528913-418/cook-county-fixes-pot-decriminalization-bill-will-now-be-enforced.html#.U5Uz0ZSwLT0

This might sound familiar: If you’re busted carrying a small amount of marijuana in portions of Cook County patrolled by the sheriff, you may walk away with just a ticket. ¶ This time, though, the ticket writing option is going to be enforced. ¶ Back in 2009, the Cook County Board approved an ordinance that decriminalized possession of small amounts of marijuana in unincorporated areas , but the Sun-Times recently reported that zero tickets had been written. ¶ Sheriff’s officials argued the ordinance needed re-tooling. They wanted it to include areas where they are the primary law enforcement agency which, for now, is suburban Ford Heights. That suburb contracts with the sheriff to patrol. ¶ “There was a disparity” in how officers could handle someone caught with 10 grams of marijuana or less in Ford Heights compared to an unincorporated area, and the ordinance needed to be shored up to ensure equal enforcement, said Undersheriff Zelda Whittler. ¶ So Cook County Commissioners on Wednesday amended the ordinance to include any areas where the sheriff is the primary law enforcement agency. And the sheriff’s office is now ready to write the tickets. ¶ Board President Toni Preckwinkle praised the move. She has championed a push to halt arrests for low- level drug possession offenses and treat substance abuse as a public health issue. ¶ Halting low-level drug arrests could save the county thousands or more as low-level detainees can spend five to 21 days behind bars — at a cost of $143 daily — awaiting a preliminary hearing on drug possession case only to see it dropped.

Similarly, decriminalization can happen on a town/municipality level Daily Journal 04/15 Dimitrios Kalantzis, writer, “Bradley village considering decriminalization of pot,” The Daily Journal 04/15/14 http://www.daily-journal.com/news/local/bradley-village-considering-decriminalization-of-pot/article_0e7e6aba-a070-5633-a09b-29d3887f8c27.html

The Bradley village board is considering decriminalizing the possession of small amounts of marijuana, following the lead of other Illinois municipalities, including Chicago and Springfield, and locally, Kankakee and Manteno. ¶ On Monday, the board considered for the first time a draft of a new ordinance that would give police the OK to fine people caught with possession of less than 10 grams of pot, instead of arresting them. ¶ The proposed law will be voted on later this month. ¶ Fines would range between $200 and $750. A gram of high quality marijuana has a street value of no more than $20. ¶ "Marijuana is illegal in the village of Bradley, and it will continue to be illegal," said Jim Rowe, the village's attorney. "I have faith in our police officers to do the right thing and to exercise their discretion responsibly, and this ordinance is another tool in their belt to ensure that those who violate the law have to face consequences for their actions." ¶ The text of the ordinance cites an apparent lack of prosecution of low-level pot charges brought against defendants from the county's state's attorney. ¶ But police here have been issuing ordinance violations for years and formal charges have been sought against people accused of possessing larger amounts of weed. Getting caught with even a pipe containing marijuana residue can cost someone $750. ¶ Bradley would not be the first town to decriminalize pot. Two college towns, Urbana and Carbondale, have already given police the authority to release pot defendants with a ticket. ¶ Chicago and Cook County have as well in the last five years. ¶ The law would not leave defendants off the hook but it

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CEDA Wording Papers 2014-15 Decriminalization Topic Page 34 of 134 Group Three Paper would give them a chance to pay their way out of a formal conviction in court. ¶ Community service is also a possible sentence. ¶ The state last year legalized medical marijuana and is considering decriminalizing 30 grams or less of what is still considered by the feds an illicit narcotic.

A town-by-town strategy has succeeded in various cities (some like Chicago, mentioned above) Skubick 2013 Tim, politics columnist, “Marijuana decriminalization is creeping into Michigan towns,” MLive.com 07/30/13 http://www.mlive.com/politics/index.ssf/2013/07/tim_skubick_marijuana_decrimin.html

Like a vine on the side of your house that creeps up ever so slowly to finally engulf the whole side of the structure, the effort to decriminalize marijuana is creeping into three more Michigan cities. ¶ Today petitions are being filed in Jackson and Ferndale for a possible vote in November, making it OK to toke less than one-ounce of grass if you are 21 or older. In other words, possession, use and the transfer of Mary Jane will not land you in the slammer. ¶ Other cities, as part of the “creeping” strategy of one town at a time, have already done this including Detroit, Grand Rapids, Flint, and - assuming passage in Jackson and Ferndale - Lansing and Yspilanti could be next. ¶ It’s rather an amazing flip of public attitudes. If someone in the midst of the '70s counter-culture revolution had suggested removing fines or jail time for smoking marijuana, the law enforcement folks and all the parents in the world would have gone bonkers…and not from smoking weed. ¶ The organizers even say many who are on board wear a badge, ready to redirect the "War on Drugs" to fighting crime instead. ¶ Ah but, not all are on board. Look for continued opposition from the likes of Attorney General Bill Schuette, who led the unsuccessful effort to kill the medical marijuana statewide ballot proposal. Suffice it to say he will also fight legislative efforts to decriminalize grass statewide in one fell swoop thus eliminating the need for doing it town by town. ¶ A vote on that in the house and senate is itself creeping along as backers wait for lawmakers to catch up with public sentiment on all this. It would still be a shocker if all those conservative GOP lawmakers cuddled up with the Democrats to do this. ¶ But if you slapped a state tax on grass, some of the more fiscally conservative types, seeing a pot of gold, might actually approve limited adult usage of Acapulco Gold.

Summary In short, state legislatures would pass laws while government agencies in smaller municipalities would approve and enforce measures, ordinances or initiatives. Past examples show that when smaller municipalities do this, other local municipalities do the same, sometimes to the point that state legislatures are pressured to take action.

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Issues with Local Action

Local authorities might neglect to enforce such measures e.g. Denver’s pre-state-legalization decrim measure in Colorado Sullum 2008 Jacob, a senior editor at Reason magazine and Reason.com, a nationally syndicated columnist and author of two critically acclaimed books on drug policy reform, “The DEA’s Disorganized Thoughts on Organized Crime,” Reason.com’s Hit & Run Blog 04/16/08 http://reason.com/blog/2008/04/16/the-deas-disorganized-thoughts

The Drug Enforcement Administration's top man in Colorado says the state's lax drug laws have led to an increase in organized crime: ¶ "I think they believe it's a good market and I think the case could be made that it is a good market," said Jeffrey Sweetin, the DEA special agent in charge of Colorado. ¶ Sweetin said it's in part because of Denver's law making marijuana legal in small amounts and a state-wide initiative to legalize medical marijuana. ¶ It's not clear how a law that Denver police have been ignoring, and that it any case applies only to possession of small quantities for personal use, would attract drug traffickers to Colorado. The medical marijuana law, approved by voters in 2000, likewise does not allow distribution, only cultivation and possession of limited amounts by registered patients. Maybe Sweetin is suggesting that Colorado has been flooded by pot dealers because patients authorized by the state to grow and use medical marijuana nevertheless are relying on the black market. That would increase overall demand because without the law those patients would have had to...rely on the black market. Later in the article he suggests that Colorado is not the final destination for all the drugs allegedly entering the state: ¶ "People here think they're so far from the border, they're insulated from it," he said. "They're not insulated from it." ¶ Colorado has long been an ideal location for drug dealers. ¶ "We're really the hub of the western interstate system." Sweetin said. "If you couple that also with we're an airline hub, a major airline hub, we're a bus hub, we're a train hub; it's really the perfect location to trans-ship from." ¶ And the medical marijuana law, coupled with a local decriminalization measure that had no practical effect, somehow has made Colorado 's location... more perfect , I guess. Is it too much to expect reporters to challenge drug warriors when they spout nonsense like this? It's not even a matter of questioning current policy—just following up with a question or two that would elucidate what they're claiming. Something sharp and to the point, like "Huh?" ¶ Update: Going beyond "huh?," Colorado Confidential asked the DEA for evidence to support Sweetin's assertion that organized crime/drug trafficking is on the rise in Colorado: ¶ No hard data were cited in the Channel 4 story regarding the reported increase in organized crime, and there was a good reason, according to a drug agency spokesman. ¶ "I don't think there's any numbers I can give," said DEA media representative Mike Turner about the crime connection to legalization efforts. "It's just that the ongoing cases we're seeing I think reflect the fact that that's what's going on."

Even if local authorities adhere to steady enforcement, such enforcement would require heavily individualized assessment of each offender. Additionally, either (1) a local decrim measure might not survive federal overturn or (2) people will continue to be prosecuted for federal offenses.

This is an issue now in Washington D.C. Freed 05/12 Benjamin, Washingtonian blogger, “How Will Prosecutors Deal With DC’s Marijuana Decriminalization Law? A statement from US Attorney Ron Machen’s office clarifies some questions raised by Congress, but not all of them,” Capital Comment , Washingtonian http://www.washingtonian.com/blogs/capitalcomment/local-news/how-will-prosecutors-deal-with-dcs-marijuana-decriminalization-law.php

In an interview with Washingtonian about his hearing on DC’s marijuana decriminalization law last Friday, Representative John Mica, a Florida Republican skeptical of the District’s ability to reform its local drug laws, asked a poignant question. ¶ “If I’m standing on Pennsylvania Avenue and I’ve got 20 joints, what are the implications?” he said. ¶ Mica didn’t pose the exact same question to the government witnesses at his hearing, but on Monday, he got somewhat of an answer from Ron Machen, the US Attorney for the District of Columbia , who clarified his office’s role in enforcing DC’s new law if it survives its congressional review period. ¶ In a statement first supplied to the Washington Post, Machen's office , which is responsible for

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CEDA Wording Papers 2014-15 Decriminalization Topic Page 36 of 134 Group Three Paper prosecuting violations of the District’s criminal code, says it “will assess each case on an individualized basis.” ¶ At the House Oversight Committee’s hearing last week on the decriminalization law, which Mica convened as part of his series of hearings on the Obama administration’s drug policies, officials from multiple federal agencies reminded Mica that as the legislation does not affect federal property, they will continue to enforce federal law where it applies—federal government buildings and parks, for example. But assuming the law is not struck down by an act of Congress and goes into effect on July 18, Machen says he will enforce it as written. ¶ The law changes the penalty for possession of one ounce or less from a criminal sentence of up to six months in jail or a $1,000 fine to a $25 ticket similar to a parking violation. Growing, selling, and smoking pot would still be crimes, with consumption in public punishable by a $500 fine or up to 60 days in jail. ¶ The full statement makes it fairly clear: ¶ “Under the new bill, smoking marijuana in public would remain a criminal offense, and so anyone who smokes marijuana on federal property could still be prosecuted under D.C. law. Individuals arrested for merely possessing, but not using, less than one ounce of marijuana on federal property would be presented to our office for potential prosecution under federal law. We will assess each case on an individualized basis, weighing all available information and evidence, consistent with Justice Department enforcement priorities and the need to use our limited investigative and prosecutorial resources to address the most significant threats to public safety. We rely heavily on diversion programs in our local marijuana prosecutions, and would likely do the same with respect to federal offenses.” ¶ The decriminalization law is likely to survive Mica’s probing and an overt attempt by Representative John Fleming, Louisiana Republican, to strike it down. (Fleming’s override bill would need to be approved by the Democratic-controlled Senate and signed by President Obama, both unlikely events.) ¶ Machen's office doesn't simplify things entirely. While most marijuana arrests in DC are made by the Metropolitan Police Department, there are still several hundred by federal law enforcement agencies, including the US Park Police, Capitol Police, and Secret Service. The statement suggests that people arrested for marijuana on federal property —say, Rock Creek Park—could still face criminal penalties, giving Machen's prosecutors an added responsibility of determining to bring federal charges down on people who have not committed a crime in the eyes of local laws. ¶ But if Mica really wants to know what would happen to someone carrying 20 joints on Pennsylvania Avenue, he should look to the statement from Machen's office. At half a gram of marijuana per joint, according to the RAND Corporation, and 28 grams to an ounce, Mica’s hypothetical bag of pot would weigh in at 10 grams. Considering the National Park Service has said Pennsylvania Avenue is under the jurisdiction of the DC government, the implications raised by Mica’s question are fairly obvious, assuming he is not standing on the part of Pennsylvania Avenue in front of the White House, where the Secret Service patrols: He would owe the District $25.

Summary Ultimately, these issues bring questions of aff solvency/fiat to the table, despite history of local approaches being somewhat effective statewide. The interaction between local/state/federal actions is complex. Phrasing for the res could become problematic, especially from area to area and considering the different conditions each decriminalization or legalization measure might have.

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Passive Voice

This is not the space to go into too much detail about the passive voice, but it will help to have some of the arguments in a wording paper before the meeting takes place. The Controversy paper has a short section basically saying, “this paper is not about the passive voice, but the topic area would lend itself to a passive agent.” The expressed preference for an agent in the paper is the USFG, but not as the only possible option and not as a extremely adamant preference. The bottom line is that the passive voice would be the best way to open up the debate about what agent should be involved in legalizing these various activities. With that in mind, it is worth posting some previous work on the passive voice and how it might play out.

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General Passive Voice Comments

KDK, updated 5/2011, 5/2013, 6,2014

Allowing different actors to make change will open up the affirmative to more innovation and more solutions. We have relied on exclusive USFG action for far too long and this is a topic area that calls for a wide approach, including in the actors that are responsible for change. Our community is capable of taking on significant research areas and we should not shy away from our potential. Two quick points must be made at the outset before getting into some of the specifics of the theory and demonstrating that this controversy area is well-suited for a diverse array of actors. 1. Return to the topic.

Opening up the agent of action will encourage all affirmatives, particularly critical and performative cases, to relate directly to the object of the resolution. Currently, in our calcified regime of USFG agency, K affs know that they are always already outside of the topic so they make the calculation to move away from the entire resolution. Indeed many of these affs are counting on the bad “must-be-the-USFG topicality/framework” argument to get offense on our activism and censorship claims that bolster the underlying thesis of the overall affirmative. The passive voice will re-energize the meaning of the topic itself. If the aff cannot defend some type of topical action when the agent is wide open, it will make it much harder to find offensive arguments against well-developed topicality positions. In addition, it makes the negative arguments calling for ground and some modicum of predictability much more compelling. K affs are common and powerful—opening up the agent on the affirmative will coax these affs closer to the topic as a whole and give the negative a bit more leeway in topicality debates even though those arguments will not be based on the agent of action.

2. Re-charge counterplan debates.

In addition to encouraging a more direct relationship to the topic, opening up the agent will help the affirmative find solvency arguments that matter and connect to the various types of impacts being run on the aff. Of course there is reciprocity for every theoretical innovation and the passive voice is no exception. Just as the aff can obtain topical solvency by advocating change through agents other than the USFG, the negative has more space to counterplan with another competing agent. Instead of agent specification—which would not really make sense—we will be able to engage in complex counterplan debates about how to start the call for change, what type of sequencing works best, and how these actions are connected to the object of the topic and the solvency claims raised by the affirmative. The debates over fiat, counterplans, permutations, and kritik alternatives will separate from the ossified framework debates concerning false constructions of the political in the supposed “ceding of the political” and instead rely on more specific solvency arguments that are actually connected to the diversity of impact claims currently being made on the aff.

Also, if we do select the passive voice, the USFG is still a topical action on the aff and often a viable counterplan on the neg. We have debated a non-specific agent a dozen times since World War II with great success and the community has not fallen apart.

3. Additional passive voice theory musings

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Leaving the question of “By Whom?” open to debate, passive voice may well offer the best place to diversify the construction of the resolution. Putting the resolution in the passive is a way to include the USFG as one agent among many possibilities. There is room within the passive voice to debate the question of the agent as it relates to the controversy area. For the questions surrounding the existence of particular crimes, there are a number of important agents to consider and we should give the affirmative that opportunity. We are not sure exactly how fiat will work itself out, but we should give that space for debate to the students. Let questions of enacting change and implementing reform evolve throughout the season.

Moreover, normal means are really under-theorized and deserve further inspection. Any opening the affirmative receives through the passive voice will simultaneously increase counterplan ground for the negative and supercharge the importance of topicality governing the verb and the object of the resolution. As argued above, the community might decide that providing some ground for the affirmative to advocate action (topically) outside the constraints of the USFG could actually bring portions of critical debate closer to the specifics while allowing topicality to matter. And, if so desired, the staunch defenders of the USFG could use counterplans or other forms of agent arguments to try to bring their favorite actor back into the round.

Pre-empt: Given that we have had passive voice topics in the past, even as recently as the early 1990s, it is noteworthy that these topics were not over-run by counterplanning in the active voice. On the Africa topic (that US foreign policy should be changed), one of the more recent passive resolutions, there were excellent debates about other avenues for changing US foreign policy in the region (France, OAU, UN, NGOs) that emerged from the passive construction but augmented everyone's understanding of the factors in the region. It actually helped to concentrate debates on Africa and policy in Africa instead of generic internal arguments about US politics (these arguments were still available, but they were not dominating of the argument field).

The theoretical "problems" associated with the passive voice are not reasons to avoid this type of construction; on the contrary, healthy theory debates involving what counterplans might look like, for example, are demonstrations that we should try a topic in this form—a form that is capable of helping us revisit the meaning of fiat. Keep in mind that current theory debates are not so wonderful that we should avoid a shift. The burden should be on the defenders of current wording hegemony, not those willing to experiment with the passive.

Some also argue against the passive voice from Korzybski’s theory of English-Prime, or E Prime, which would eliminate most passive voice by expunging the verb “to be.” Passive is still possible within E-prime, however, and the “should” verb is also acceptable. Compounding the misapplication of this theory to the wording of the resolution, there are problems with the E Prime semantic paradigm in the first place because it conflates certain uses of the “to be” verb (identifying something and expressing a condition) with all uses. This is a fruitful place for discussion, but not one that would void the possibilities of a passive resolution altogether.

The bottom line is that there are some huge benefits to this type of construction and leaving the agent open. This is a topic that works with a passive construction and we should at least have a few wordings without a specified agent on the ballot to give the community the choice.

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“Anyone Can Cook”

Yes, but only a few cooks can become Chefs.

Simply because it would be topical for any agent to legalize a particular crime, does not mean it makes sense for every King Friday or Captain Kangaroo to do so. Finding solvency and reasons why a particular agent should act over (or with) others is a big burden and one that resolves most of the fears about proliferating agents.

Some of the literature that addresses the very question of legalizing marijuana—arguably the most important example in the controversy paper—encourages us to adopt a decentralized approach, regardless of the uncertainties.

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Courts

Supreme Court action to legalize marijuana for example, might require overturning or rather reinterpreting the case precedent Wickard v. Filburn (referenced vaguely in the evidence below as a 1942 SCOTUS decision), which recognizes what constitutes interstate commerce i.e. what activity Congress can and cannot regulate Upholding Wickard prevented the federal legalization of medical marijuana in Gonzales v. Raich Washington Post 2005 Charles Lane, Washington Post Staff Writer, “A Defeat for Users of Medical Marijuana,” The Washington Post 06/07/05 http://www.washingtonpost.com/wp-dyn/content/article/2005/06/06/AR2005060600564.html

The Supreme Court dealt a blow to the medical marijuana movement yesterday, ruling that the federal government can still ban possession of the drug in states that have eliminated sanctions for its use in treating symptoms of illness. ¶ By a vote of 6 to 3, the court ruled that Congress's constitutional authority to regulate the interstate market in drugs, licit or illicit, extends to small, homegrown quantities of doctor-recommended marijuana consumed under California's Compassionate Use Act, which was adopted by an overwhelming majority of voters in 1996. ¶ The ruling does not overturn laws in California and 10 other states, mostly in the West, that permit medical use of marijuana . In 2003, Maryland reduced the maximum fine for medical users of less than an ounce of the drug to $100. ¶ But the ruling does mean that those who try to use marijuana as a medical treatment risk legal action by the U.S. Drug Enforcement

Administration or other federal agencies and that the state laws provide no defense. ¶ Writing for the court majority, Justice John Paul Stevens said the case was "troubling" because of users' claims that they needed marijuana to alleviate physical pain and suffering. But he concluded that the court had no choice but to uphold Congress's "firmly established" power to regulate "purely local activities . . . that have a substantial effect on interstate commerce." ¶ Echoing an argument advanced by the Bush administration, Stevens expressed concern that "unscrupulous physicians" might exploit the broadly worded California law to divert marijuana into the market for recreational drugs. ¶ The Bush administration, which has been emphasizing marijuana enforcement in its anti-drug strategy, hailed the ruling. ¶ "Today's decision marks the end of medical marijuana as a political issue," said John P. Walters, President Bush's director of national drug control policy. "Our nation has the highest standards and most sophisticated institutions in the world for determining the safety and effectiveness of medication. Our national medical system relies on proven scientific research, not popular opinion." ¶ But California Attorney General Bill Lockyer said that "seriously ill Californians will continue to run the risk of arrest and prosecution under federal law when they grow and or they use marijuana as medicine." ¶ The ruling, he said, "shows the vast philosophical difference between the federal government and Californians on the rights of patients to have access to the medicine they need to survive and lead healthier lives." ¶ Supporters of medical marijuana, noting that Stevens wrote that "the voices of voters allied with these respondents may one day be heard in the halls of Congress," said the fight over federal drug policy will shift to a new battleground. ¶ "The decision highlights the opportunity we have to go to Congress and change these laws," said Robert Raich, a lawyer whose wife, Angel Raich, was one of two women who had sued to block enforcement of federal marijuana laws against them. ¶ A House bill that would forbid the use of federal funds to prosecute medical marijuana use in states that permit it was defeated overwhelmingly last year but will be voted on again soon, advocates of medical marijuana said. ¶ Yesterday's Supreme Court decision represented a victory for the court's supporters of federal power over its proponents of states' rights. ¶ In two cases in the past decade, the court limited Congress's power to make laws in the name of regulating interstate commerce, saying that it had begun to intrude upon local affairs. Backers of medical marijuana had hoped to apply those precedents in this case, Gonzales v. Raich, No. 03-1454. ¶ But Stevens concluded that the court was still bound by a 1942 Supreme Court decision that defined interstate commerce broadly to include, under Page 41 of 134

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certain circumstances, even subsistence wheat farming. ¶ Much modern government regulation exists because of this broad definition of interstate commerce, which permitted the court to uphold, as exercises of Congress's commerce clause power, laws including New Deal farm controls and the ban on racial segregation in hotels and restaurants. ¶ Stevens was joined by the court's three other consistent supporters of federal power, Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. He also picked up the votes of two justices, Antonin Scalia and Anthony M. Kennedy, who usually support states' rights. ¶ Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas dissented. ¶ Writing for the three, O'Connor noted that she "would not have voted for the medical marijuana initiative" in California, but she chided the majority for stifling "an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently." ¶ In a separate dissent, Thomas added that if "the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives and potluck suppers throughout the 50 states." ¶ The two California women who sued to block federal marijuana enforcement in California are Diane Monson, who was prescribed marijuana for lower-back pain, and Raich, who said that she must take the drug at least every two hours or else she will lose her appetite and die from a "wasting syndrome" whose medical cause is unknown. ¶ "I don't know how to explain it," she said yesterday. "I just can't swallow without cannabis." ¶ Monson's home was raided and her marijuana plants seized by federal agents in 2002; Raich says she receives the drug free from caregivers and joined Monson's lawsuit because she fears that her marijuana could be seized. Neither woman has been criminally charged. Raich's suppliers are also in the case, as John Does One and Two.

However, overturning or reinterpreting such a long-established precedent would have significant effect on past decisions based upon its legal principles – something to consider when debating judiciary restrictions. Doing so might also have an impact on how later enforcement will proceed. This goes for other areas as well. Other case precedents relevant to the topic areas: The case precedent Marvin v. Marvin , 18 Cal. 3d 660 (1976) deems contracts between non-marital partners “founded on the consideration of meretricious sexual services” – i.e. prostitution – illegal.

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Applications & Wordings

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Legalize and Specifics

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Comments, Consultation

The question is this:

If we want the aff to be able to "legalize" one or more of 5-6 different things (marijuana, prostitution, gambling, organ sales, etc.), what do you think is the best way to word the topic in order to allow the aff to solve? Should we make it passive voice to allow the aff to include states and localities? Should we use decriminalize or legalize or both? I can certainly send you the controversy paper if you are interested (http://www.cedadebate.org/forum/index.php/topic,5879.0.html ), but I thought I might ask for a bit of short-term insight. Any thoughts would be appreciated--thanks!!

Decriminalize best term, passive voice thoughts

Answer from Legal Friend: I think "decriminalize" is the better legal term of art, legalize is not really a thing the government does. I think it's silly to force the AFF to use the USFG -- because Federal Drug law on this question is substantially different from each of the 50 states law, and then several municipalities do different things. I think the Aff should get to pick its agent. The interesting question with passive voice, will it define where the decriminalization is to take place? perhaps "within"? The fascinating part of this topic will be the discussions of how discordinate federal/state and local law are. I think using the passive voice to avoid the discussion of "agent" in a topic like this would be a mistake, because that is the heart of the discussion. For instance, In the city of YYY, State HHH, YYY considers possession 100% legal, HHH considers simple possession a civil violation but not a crime, and the Federal Government considers it a crime.

Legalize Best, should use USFG

Ans. from Legal Friend #2: I would do legalize - better balance of ground. The Aff. is going to have a strong bias here, so it would probably also be wise to limit them to federal action. As a practical matter, the states can't legalize marijuana or gambling, not sure about organ sales, due to existing federal statutes.

The federal government may be able to preempt state and local laws on prostitution to regulate interstate traffic. Would present an interesting commerce clause issue on bundling of inter- and intrastate regulation, particularly in light of the affordable care act cases.

Re: organs, it looks like federal law prohibits, so states could not legalize

42 U.S.C. § 274e (a) Prohibition It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce. The preceding sentence does not apply with respect to human organ paired donation.

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CEDA Wording Papers 2014-15 Decriminalization Topic Page 46 of 134 Group Three Paper also, re: terminology, legalization i think means the absence of criminal penalty. virtually everything is regulated by statute, regulation, or common law, so i think "legal" means not defined as a crime. decriminalization is an odd term because i think it means nonenforcement or a reduction in criminal penalties? so it would be helpful to define these terms or give more specific instructions about what it means to legalize.

Each Area Distinct—hints at different Stems

Legal Friend #3: Cool topic! I agree re "legalize" because decriminalize might make for very good negative CP ground, and if you take that away then the negative is going to be in a tough spot for some of these cases (although I gather there are tons of topical counterplans now, so I guess it's not as big a problem as it would have been in our era, right?). I think there are a lot of harms that affs can solve on most of those even if limited to federal government - certainly federal marijuana prosecution is still a massive resource suck, and the same is true for other drugs. And same for gambling, although I'm not sure how much money the federal govt spends on enforcing those laws. Prostitution might be trickier though - I'm guessing there are laws for D.C. and for military bases, but not sure if there are other federal anti-prostitution laws. There are anti-trafficking laws that often are used to prosecute people who traffic women for prostitution, but not sure if there's anything else. And I have no idea about organ sales.

Legalization = Regulation, Decrim does not

Brian Shah-DeLong evidence:

Legalization includes a regulatory regime defining what is legal, decriminalization removes penalties and regulations (no restrictions), unregulated is no-laws or legal framework

Dr Elaine Mossman, Honorary Research Fellow Victoria University of Wellington, 2007 , International Approaches to Decriminalising or Legalising Prostitution, Prepared for the Ministry of Justice by Crime and Justice Research Centre Victoria University of Wellington, http://prostitution.procon.org/sourcefiles/newzealandreport.pdf

The Ministry of Justice commissioned the Crime and Justice Research Centre to examine overseas legalised and decriminalised models of prostitution law reform. The work is to inform the statutory review of the Prostitution Reform Act 2003 (PRA) to be completed in 2008. There have been developments in the legal approach to prostitution adopted by different countries, with a significant shift away from prohibition, towards legalisation and decriminalisation. But it became evident in preparing this review that there is much confusion over the main legislative approaches to prostitution in different jurisdictions. There was often misinterpretation – or at least it could appear so. One difficulty was the variation in the terms used to describe the legislative position, and how they were defined. We clarify the main three approaches used to classify the jurisdictions covered by this review. These are (i) criminalisation; (ii) legalisation; and (iii) decriminalisation. Criminalisation For the purposes of this review, we classified countries as criminalised regimes where it is not legally possible to engage in prostitution, because prostitution or its associated activities would be contravening some law, regardless of the level of tolerance existing. (In some criminalised regimes, there can be a tolerant climate. Prostitution is known by enforcement agencies to exist, but prosecutions are rarely made.) Criminalisation makes prostitution illegal with related offences appearing in the criminal code. It seeks to reduce or eliminate the sex industry and is supported by those who are opposed to prostitution on moral, religious or feminist grounds. Jurisdictions that have criminalised prostitution subdivide into two groups: i. Prohibitionist – where all forms of prostitution are unacceptable and therefore illegal. This is the approach taken in most states of the USA and countries in the Middle East. Page 46 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 47 of 134 Group Three Paper ii. Abolitionist – a modified form of prohibition which allows the sale of sex, but bans all related activities (e.g. soliciting, brothel keeping, and procurement). Making these related activities illegal effectively criminalises prostitution as it is virtually impossible to carry out prostitution without contravening one law or another. The abolitionist approach often focuses on eliminating or reducing the negative impacts of prostitution. It is one currently operating in countries such as England and Canada. Sweden is the only country so far to criminalise the buyers of sex rather than sex workers. The aim was to end prostitution, rather than regulate it – since it was viewed as violence against women and a barrier to gender equality. Norway and Finland are now considering this approach. Legalisation This is where prostitution is controlled by government and is legal only under certain state- specified conditions. The underlying premise is that prostitution is necessary for stable social order, but should nonetheless be subject to controls to protect public order and health. Some jurisdictions opt for legalisation as a means to reduce crimes associated with prostitution. Key indicators of legalised regimes are prostitution-specific controls and conditions specified by the state. These can include licensing, registration, and mandatory health checks. Prostitution has been legalised in countries such as the Netherlands, Germany, Iceland, Switzerland, Austria, Denmark, Greece, Turkey, Senegal, the USA state of Nevada, and many Australian states (Victoria, Queensland, ACT and Northern Territory). Decriminalisation Decriminalisation involved repeal of all laws against prostitution, or the removal of provisions that criminalised all aspects of prostitution. In decriminalised regimes, however, a distinction is made between (i) voluntary prostitution and (ii) that involving either force and coercion or child prostitution – the latter remaining criminal. The difference between legalised and criminalised regimes has been described as often largely a matter of degree – a function of the number of legal prostitution-related activities, and the extent of controls and restrictions that are imposed. The key difference between legalisation and decriminalisation is that with the latter there are no prostitution-specific regulations imposed by the state. Rather, regulation of the industry is predominantly through existing ‘ordinary’ statutes and regulations covering employment and health for instance. The aims of decriminalisation differ from legalisation in their emphasis. While the protection of social order is also relevant to decriminalisation, the main emphasis here is on the sex worker – respecting their human rights, and improving their health, safety and working conditions. Decriminalisation is also recognised as a way of avoiding the two-tier reality of legal and illegal operations, with the latter operating underground. Currently, only New South Wales (Australia) and New Zealand have adopted decriminalisation. But there are elements of legalisation in both jurisdictions – for instance, brothel operators in New Zealand require certification; and street-based work in New South Wales is still prohibited. Unregulated regimes There are some jurisdictions where prostitution is entirely unregulated. A review of 27 countries in Central and Eastern Europe and Central Asia found this was the case in eleven of them. These countries are not included in this review, as there are no reforms intended or legislative recognition of prostitution as either legal or illegal. Categories of prostitution offences The legality of different aspects of prostitution varies across different jurisdictions, with some being legal (e.g. prostitution in a state-regulated brothel), and others not (e.g. soliciting on a street). Prostitution involving a seller and buyer may be legal, but the involvement of third parties such as brothel managers or pimps illegal – as in Denmark and Iceland for instance. Prostitution-related laws vary greatly, but can generally be grouped into three categories: (i) laws aimed at the sex worker; (ii) laws aimed at third parties involved in the management and organisation of prostitution; and (iii) laws aimed at those who purchase commercial sex. The two most significant criminal prohibitions relate to either soliciting in a public place and brothel keeping. The acts of advertising prostitution services or the premises used for prostitution have also been made an offence in many jurisdictions.

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Legalize vs. Decriminalize

From the polygamy example—clear evidence on the distinction…

Decriminalization = remove prohibition. Legalization = remove prohibition and regulate.

Adrienne D. Davis , Professor of Law, Washington University School of Law, ’10 “REGULATING POLYGAMY: INTIMACY, DEFAULT RULES, AND BARGAINING FOR EQUALITY” December, 2010 Columbia Law Review, 110 Colum. L. Rev. 1955

Gary S. Becker, A Treatise on the Family 80-107 (enl. ed. 1991) [hereinafter Becker, Treatise] (analyzing polygamy and other marriage arrangements in "efficient 'marriage markets'"); Richard A. Posner, Sex and Reason 253-60 (1992) (describing how polygamy affects bargaining power in courtship markets). Shayna Sigman and Emily Duncan draw similar conclusions, but limit their analyses to demonstrating the costs of criminally prohibiting polygamy and urging decriminalization . Sigman, supra note 7, at 106-07 & n.27 (" This discussion is also a necessary precursor to exploring whether polygamous relationships should be recognized by the state, which would be a significant step beyond merely decriminalizing the practice. "); Emily J. Duncan, The Positive Effects of Legalizing Polygamy: "Love Is a Many Splendored Thing," 15 Duke J. Gender L. & Pol'y 315, 316 (2008) (" Thus, if there is to be a rational policy in this area, it should consider the legalization of polygamy, thereby allowing greater regulation of the practice, compelling polygynous communities to emerge from the shadows, and openly assisting the women and children who live in them ."). These studies highlight the difference between decriminalization and legalization , a distinction elaborated upon at infra notes 97-100 and accompanying text. Michele Alexandre has urged limited inheritance rights for de facto polygamy based on common law marriage, but has not called for recognition of polygamy itself. Michele Alexandre, Lessons from Islamic Polygamy: A Case for Expanding the American Concept of Surviving Spouse So As to Include De Facto Polygamous Spouses, 64 Wash. & Lee L. Rev. 1461, 1464 (2007) [hereinafter Alexandre, Lessons] (advocating "that a redefinition of the concept of the surviving spouse in American estate distribution will help to legally protect de facto spouses in the inheritance context").

Complete Decriminalization = “Eliminating all Criminal Legislation”

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Legalization = Decriminalization plus Regulation. CP is Decrim, Aff gets to say You have no means to regulate.

Several legal theorists recently re-clarified the crucial distinction between decriminalization and legalization. Discussing sex work, they say, "Legalization involves complete decriminalization coupled with positive legal provisions regulating one or more aspect of sex work businesses. " Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335, 339 (2006). Decriminalization may be partial, i.e., decriminalizing the activities of sex workers alone, or complete, eliminating all criminal legislation.

Legalization is a bigger and more broad-based move making something completely free of condition, whereas decriminalization is reduced enforcement and applied stipulations (medicalization). The MJ issues prove.

Mitch Earleywine* and Mallory Loflin, Psych Prof at Albany and Albany MA student, ‘13 “Overdose: The Failure of the U.S. Drug War and Attempts at Legalization: ARTICLE: CURIOUS CONSEQUENCES OF CANNABIS PROHIBITION” Albany Government Law Review, 6 Alb. Gov't L. Rev. 438 BIO: * Ph.D., Indiana University. Professor of Psychology, University at Albany, State University of New York., B.A., University of Washington. Master's Candidate, University at Albany, State University of New York.

Over seventy-five years of cannabis prohibition have led to numerous arrests at considerable expense, but the impact on the number of users appears minimal. The total size of the [*462] underground cannabis market is likely smaller than it would be under other policies, but remains tremendously large, with estimates of production exceeding thirty-five million pounds. n198 Prohibition appears to have increased police presence in the lives of people of color and teens, n199 which some might view as a success while others see as a mask for racism and ageism. Prohibition has co-varied with increases in cannabis potency, much as alcohol prohibition led to a switch from lower to higher proof beverages. n200 Prohibition has also created odd situations related to asset forfeiture, many of which involve cannabis. The way that data are gathered prevents ideal estimates of the impact of cannabis prohibition on civil asset forfeiture or potential biases related to the practice. Recommendations based on these findings include altering approaches to gathering data on civil asset forfeiture and returning decisions about cannabis policy to local jurisdictions rather than resting them in Federal laws. Strategies for recording potential owners of property that is subject to civil forfeiture all have pros and cons. A straightforward approach might require the recording of likely owners of all such assets. Including names, gender, ethnicity and age in these records might require little time. Biases could potentially creep into this process, but it might be a reasonable start. Several models for other laws that vary across states or local municipalities already exist. Issues as diverse as open-container laws, state monopolies for alcohol distribution, varied penalties for drunk driving, and even turning right at a red light have all varied across municipalities. Some states have sacrificed federal highway money in an effort to maintain their own policies on some of these issues. n201 The enforcement of cannabis prohibition also varies by area. Some states have essentially decriminalized possession of less than an ounce or so. n202 At least eighteen states and the District of Columbia have medical marijuana laws on the books, with varied availability and distribution. n203 Few of these [*463] states have seen dramatic changes in negative consequences related to cannabis. n204 Many cities and at least two counties have made possession of small amounts of marijuana a lowest law enforcement priority. n205 Two states (Washington and Colorado) have passed laws legalizing possession for adults. n206 These areas appear to view these laws as most appropriate for their local conditions and values . They have the potential to serve as laboratories that could generate data for other municipalities to consider as they reassess their own cannabis policies. From a combination of economic incentives and a sense of justice, the world has slouched toward progress in appreciating diversity. People are starting to respect each other a little more, regardless of age, ethnicity, gender, occupation, sexual orientation, religion, political affiliation, or education. Many argue that this greater respect benefits everyone. We approach a point where people might tolerate others who think differently. Perhaps we could tolerate people who want to use marijuana without causing harm Page 49 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 50 of 134 Group Three Paper to themselves or others. Only time will tell. The chance to let local communities make this decision themselves has meaningful advantages worthy of serious consideration.

The proposals (decrim and legalize) are distinct, especially in policy discussion for drug policy reform.

Similarly, voters have generally embraced proposals to move state and local drug policies away from the drug war strategy. n20 Since California voters passed the first modern state medical marijuana law in 1996, thirteen other states have followed suit. n21 Most recently, proposals to decriminalize or legalize marijuana have begun to attract an especially great deal of attention. In 2008, Massachusetts voters approved a ballot initiative to decriminalize the drug with sixty-five percent in favor. n22 And, within the past year, legislation and ballot initiatives to legalize marijuana have been proposed in California, Nevada, New Hampshire, Oregon, and Washington, with legislators in Rhode Island establishing a panel to study the issue. n23 In California, where the issue will come before voters in a ballot initiative this fall, recent polling has shown that fifty-six percent of residents are in support of taxing and regulating marijuana like alcohol. n24

Full legalization distinct from criminalization

Whether conducted in constitutional or public policy terms, scholarly debates over polygamy overwhelmingly have focused on decriminalization. Of course, ending the prohibition on plural marriage is a preliminary and crucial question. Yet, as described above, decriminalization is a precursor to legalization, but the latter is distinct, entailing formal recognition and positive regulation . As Part II just illustrated, plural marriage can yield heightened opportunities for opportunism and exploitation. Decriminalization would not necessarily change that. Full legalization [*1999] might . The rest of this Section explores the possibility of recognition and regulatory amelioration.

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PAS--Regulation vs. Legalization (does enforcement matter?)

PAS is not prosecuted, it’s a question of “Aid-in-Dying”

Maria T. CeloCruz, Harvard, ’92 “Aid-in-Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia? 18 Am. J. L. and Med. 369, American Journal of Law & Medicine , plexis

Janet Adkins and Jack Kevorkian, Patricia Diane Trumbull and Timothy Quill -- during the last two years, these names have become inextricably linked both with each other and with the ethical and legal ramifications of physician-assisted suicide. At Adkins's request, Dr. Kevorkian connected her to his "suicide machine"; Adkins, who was suffering from Alzheimer's disease, thereafter pushed a button, starting the flow of lethal drugs through her veins. n1 Likewise, Dr. Quill prescribed a lethal dose of barbiturates for the terminally ill Trumbull, who decided that she did not want to suffer the indignities and pain of endstage leukemia. n2 In neither case was the physician subject to criminal penalties . Indeed, a Michigan district court dismissed murder charges against Kevorkian, n3 while a Rochester, New York grand jury refused to return a criminal indictment against Quill. n4 In fact, in a subsequent civil action involving Quill's license to practice medicine, the New York Board for Professional Medical Conduct ruled that " no charge of misconduct was warranted. " n5 This apparent reluctance of the citizenry and their legal representatives to punish doctors for rendering suicide assistance to terminally or incurably ill patients likely signals a shift toward viewing such conduct sympathetically. In addition, polls evidence a similar attitudinal change toward physician- committed euthanasia. n6 A 1991 nationwide public opinion poll sponsored by the Boston Globe and the Harvard School of Public Health revealed that almost two-thirds of Americans currently favor both physician-assisted suicide and physician-committed euthanasia for terminally ill patients requesting either. n7 In response to this public attitudinal shift, several groups have presented American voters with a series of actions concerning the issue of physicians' providing patients with "aid-in-dying." n8 Typically, such aid-in-dying initiatives encompass both physicians' assisting patients' suicides and doctors' actively engaging in euthanasia at the patient's request. n9 While no state has yet adopted an aid-in-dying measure, Washington state's proposed Initiative 119 ("I-119") garnered 46% of the popular vote in a November 1991 referendum. n10 Because future aid-in- dying referenda are likely to be modelled on I-119, this Note focuses on I-119's aid-in-dying provisions and takes them to be paradigmatic. n11In brief, I-119 countenances three decidedly different forms of physician action. First, under its refusal of treatment provision, a physician may discontinue treatment (e.g., remove a nasogastric feeding tube) in accordance with a patient's desire. n12 Second, under aid-in-dying, the doctor may leave the patient with the requisite drug dose and/or information for the patient to commit suicide. n13 Third, again under aid-in-dying, the physician may commit voluntary active euthanasia, n14 bringing about the patient's death via lethal injection, for example, at the patient's request. n15 All three alternatives involve physician action of one sort or another as opposed to mere omission. Yet both I-119 and the courts draw sharp distinctions among the three forms of conduct. Within I-119, the first example illustrates refusal of treatment, whereas the second and third are examples of aid-in-dying. Moreover, each alternative receives decidedly different legal treatment in the courts. For example, when a patient declines (or refuses to continue) life-sustaining medical measures, the courts have decreed that the patient's wish "may not properly be viewed as an attempt to commit suicide." n16 As one commentator has noted, the patient's right to refuse treatment, thus, constitutes the current legally acceptable dimensions of the right to die. n17 Hence, doctors' actions in compliance with a patient's expressed desire to refuse life-sustaining medical intervention, whether those actions constitute withholding or withdrawal of treatment, are not viewed as suicide assistance. In contrast, a doctor's prescribing or leaving a lethal drug dosage for a patient to take later has traditionally fallen under the rubric of physician-assisted suicide. n18 Because the patient intentionally brings about her own death by her own hand, the patient commits suicide, or self-murder. The physician simply provides the means for the patient to do so. Such suicide assistance, even from beneficent motives, has generally been sharply distinguished from the physician's directly bringing about the patient's death. In suicide, the patient kills herself; in euthanasia, the physician performs the killing (e.g., by injecting a drug overdose). Consequently, euthanasia is usually punished under criminal homicide statutes rather than suicide-assistance prohibitions (in states that have both types of laws) . n19 Thus, I-119's aid-in-dying rubric elides physician-assisted suicide ("PAS") and physician-committed voluntary active euthanasia ("PCVAE"). Indeed, some authors have averred that, given modern medical realities, no distinction can be maintained between the two. n20 Such authors ask: is there any real difference between putting a lethal drug dose into a patient's hand (so she can take it herself) as opposed to putting it into her arm (via injection)? Moreover, when the suicide victim is disabled, comatose, or paraplegic, it is said that "the distinction between these two forms of behavior is so negligible as to be almost illusory." n21 Certain obvious questions, therefore, present themselves. Is there a fundamental difference, legal or moral, between PAS and PCVAE? Should criminal penalties attach to one type of action but not the other? Should physicians be exempt from legal strictures that others must obey? If states legally permit such physician actions, what safeguards are adequate to prevent abuse? Do/should physicians' professional ethics preclude their taking certain actions, even when patients request them? What are the economic and social costs of legally countenancing such practices? n22 To answer these questions, this Note surveys the historical, legal, and socio-economic dimensions of suicide assistance and voluntary active euthanasia. [*373] Part II discusses historical treatment of assisted suicide and euthanasia. Part III considers the current legal status of both actions and their justifications. Part IV critically analyzes traditional arguments offered for and against legalizing PAS and PCVAE. Part V examines Washington's I- 119 initiative and offers some factors to be considered by those who favor aid-in-dying legislation. n23 Finally, Part VI concludes that aid-in-dying legislation should be modified so that only physician-assisted suicide is legalized.

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Applying conditions does not “legalize” and should be negative ground.

The common law also deemed suicide assistance to be a felony. At common law, the state considered a person who advised a perpetrator to commit a crime and who was present when the crime occurred a principal in the second degree. n36 Consequently, since suicide at common law was equivalent to the crime of homicidal murder, a person who provided suicide assistance (who qualified as principal in the second degree) was also guilty of murder. The early American colonies also generally condemned suicide (and, inter alia, suicide assistance), imposing by statute or by common law the traditional English common law penalties against suicide, namely ignominious burial and forfeiture of goods. n37 Some retained those practices even after independence. Massachusetts, for example, passed a statute in 1660 outlawing suicide n38 and requiring contemptuous burial of a suicide's corpse on a public highway with "a Cart-load of Stones laid upon the Grave as a Brand of Infamy, and as a warning to others to beware of the like Damnable practices." n39 This statute was not repealed until 1823, n40 long after the United [*375] States declared independence from Britain. When states decriminalized suicide -- by repealing suicide statutes, by legislating the abolition of the common law offense of suicide, or by judicial decision -- a threefold rationale was offered. First, given the impossibility of punishing the perpetrator, suicide was an unpunishable crime. n41 Logic, if nothing else, dictated its abolition. Second, imposing ignominious burial or forfeiture of goods was deemed to visit unwarranted punishment on the suicide's family, who were innocent of all wrongdoing. n42 Third, suicide came to be regarded as the act of a mentally ill, sick, and depressed individual, who required medical treatment not punishment, compassion not culpability. n43 The historical origins of American punishment and subsequent decriminalization of suicide provide a background for briefly assessing a contemporary legal position against legalizing PAS. This argument is based on an asserted state interest in the prevention of suicide, n44 which courts aver is one of four state interests that must be weighed against a patient's right to refuse medical treatment. n45 Yet, judicial discussions of this state interest, in general, neither argue for it nor trace its origin. n46 In contrast, our historical survey of the Anglo-American common law of suicide reveals that the state's alleged interest in suicide prevention has three sources: religious belief -- the origin of the ignominious burial penalty; n47 sovereign cupidity -- the rationale for declaring suicide a felony at common law; n48 and protection of a vulnerable minority -- the movement to abolish penalties for suicide and substitute treatment for those unsuccessfully attempting it, who were now perceived as mentally ill, depressed, or melancholic. n49 Of these three grounds, only the last will serve as a modern-day foundation for an argument against a right to suicide or suicide assistance. Religious belief may be eliminated as a valid ground on the basis of the constitutional principle of neutrality toward religion. n50 Similarly, sovereign cupidity (or filling the king's coffers) fails since there are less intrusive, not to say less vulgar, methods of raising state money than by taxing a suicide's possessions. Only protecting the psychologically unsound from harming themselves [*376] remains as a ground for the state interest in suicide prevention. If we accept this ground as valid, it follows that the state may justifiably take steps to prevent irrational individuals' suicides and may prohibit others from helping them. What does not follow, however, is that the state may legitimately prevent rational persons' suicides. Logically, the state's paternalistic concern evaporates if the suicidal individual is demonstrably rational. Thus, if states can legislate adequate safeguards to ensure the rationality of those who wish to commit suicide, a limited right to suicide and suicide assistance can be granted consistent with the state's historical interest in suicide prevention.

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“Laws and Statutes” vs. Actual Punishment

Existence of Laws prohibiting Action does not always mean prosecution, especially on the State level.

States have very different laws governing suicide and the assistance of suicide. Very little prosecution of assisted suicide takes place.

In England, as a result of the Suicide Act of 1961, neither suicide nor attempted suicide is a crime. n58 However, the same statute makes it a crime to aid, abet, counsel, or procure the suicide or attempted suicide of another. n59 Thus, in England, assisting another to perform an act that is not itself criminal is a crime. Following the English model, many American states not only decriminalized suicide, but also legislated prohibitions against suicide assistance. Presently, no state or federal statute punishes an individual who commits or attempts suicide. n60 However, thirty states and two territories currently have laws imposing criminal sanctions for aiding, assisting, causing, or promoting suicide. n61 An additional five states impose such criminal penalties under case law. n62 Moreover, Section 210.5 of the Model Penal Code proposes criminal penalties for causing or aiding suicide. Under the Code, purposely causing another to commit suicide is punishable as criminal homicide. n63 In contrast, purposely aiding or soliciting another to commit suicide is a second-degree felony if this conduct causes a suicide or an attempted suicide; otherwise, it is a misdemeanor. n64 Notwithstanding these laws, several noted physician-authors collaborating on an article have stated: "The frequency with which [physician-assisted suicides] are undertaken is unknown, but they are certainly not rare." n65 Moreover, those same physicians wrote, "all but two of us . . . believe that it is not immoral for a physician to assist in the rational suicide of a terminally ill person." n66 Yet, despite the purported frequency of physicians' aiding in terminally ill patients' suicides and the statutory majority rule criminalizing assisted suicide, there are no recorded cases of physicians' being criminally punished for providing suicide assistance. n67 However, at least in the cases of Drs. Kevorkian and Quill, detailed above, n68 physicians assisting in suicide have come under prosecutorial scrutiny.

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Specific Crimes are Key to the Mechanism – Prostitution Example

“Prostitution” means different things and can emphasize sex workers or oppressive conditions. This means the mechanism (legalize, decriminalize, etc.) is not stable and perhaps not the best focus for precision.

Barbara Havelkova, CSET Teaching Fellow in EU Law, Faculty of Law, University of Oxford, ’11 “USING GENDER EQUALITY ANALYSIS TO IMPROVE THE WELLBEING OF PROSTITUTES” Cardozo Journal of Law & Gender , 18 Cardozo J.L. & Gender 55, 2011

The term prostitution is in everyday parlance understood as commercial sex n7 or "the exchange of sex or sexual services for money or other material benefits." n8 Rarely is prostitution defined in law, n9 and states respond to it in different ways. The literature denominates the various approaches as prohibition, criminalization, abolition, decriminalization, regulation, legalization, and deregulation, n10 but the actual understanding of these terms varies. Upon closer examination, these terms are not helpful, especially since they do not use a single reference framework; their categorizing criteria vary. In order to classify regulatory regimes, or to create a map or spectrum, it is imperative to consider at least the three interconnected issues: (i) the regime's overall attitude to prostitution: whether prostitution is seen as a negative phenomenon to be eliminated, whether the state is resigned to it and controls or contains it, or whether it accepts prostitution and facilitates it; (ii) the treatment of the actors involved in prostitution: the prostitute, the client, and the procurer; and (iii) what legislative goals the regime primarily pursues and whether it is concerned with the wellbeing of the prostitute .

Policy distinctions emerge from the farming of the crime (is prostitution sex-work, sex- domination, or between the two?)

Part I presents a typology of regulatory regimes, based mainly on secondary literature about European Union member states and common law jurisdictions. Then, Part II offers a synthesis of the two feminist positions on prostitution. It observes that the two positions, sex-work and sexual- domination, conceptualize prostitution in vastly different manners and disagree strongly on the best policy solution: decriminalization with legalization and abolition, respectively. Most feminist writing adheres to one of these two seemingly irreconcilable positions. As a result, a legal gender equality argument that transcends this divide has yet to be fully developed. Part III provides a framework for a gender equality analysis based on a comparison of the treatment of the client and the prostitute. The Article discusses the steps of a gender equality test, extrapolated from constitutional review in European and common law jurisdictions, which often ask similar questions: (i) Is there a difference in treatment or impact (ii) between persons that are comparable? (iii) Is the ground for the distinction suspicious? (iv) Is the distinction fair? (v) Is it pursuing a legitimate aim? (vi) Is the measure proportionate to that aim?

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There are three possible scenarios in terms of comparative treatment of the prostitute and the client. First, there can be asymmetric treatment benefiting the client, a still-existing practice - whether in statutory regulation or in enforcement - that violates the principle of gender equality. Second, the treatment can be symmetric, subjecting both parties to equal treatment. The principle of equality requires at least this standard. Third, an asymmetric treatment for the benefit of the prostitute can be adopted. This Article addresses these three types of regimes. In particular, it challenges existing justifications for asymmetric treatment benefiting the client, the arguments that the prostitute is a repeat offender and that she is the merchant or dealer - both which were prominently discussed in the decision of the South African Constitutional Court in State v. Jordan - , n6 and the argument of enforcement practicality. It further points out that even when the aim is legitimate, such as public health or public order, an asymmetric practice benefiting the client will often fail the test of proportionality, as it often is not suitable, necessary or properly tailored. The Article then suggests that areas in which the prostitute is particularly disadvantaged and vulnerable are aspects of prostitution which support symmetric measures and even asymmetric treatment benefiting the prostitute: (i) the negative social meaning of prostitution; (ii) the risk of harm to the prostitute; and (iii) the existing inequality between the prostitute and the client in terms of class, age, race, gender, nationality, immigration status and socio-economic status.

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Zero-Sum: Criminalizing Clients can effect prostitution.

Other schemes view prostitution as an area for social support and punish the “procurer.” Swedish model proves.

A third approach to the elimination of prostitution does not target the prostitute's behavior but instead focuses on stifling demand by criminalizing the clients as well as the procurers. Often referred to as abolitionist or neo- abolitionist, n14 it is exemplified today by the "Swedish model." n15 In Sweden, [*59] prostitution itself is neither legal nor illegal; however, the use of the prostitute is punishable. Since 1999, "A person who [...] obtains a casual sexual relation in return for payment, shall be sentenced for purchase of sexual services to a fine or imprisonment for at most six months." n16 In addition, procurement - "promoting or improperly financially exploiting a person's engagement in casual sexual relations" - is punishable by up to four years in prison. n17 This policy is accompanied by programs for reintegration into society or a range of social provisions for prostitutes, including shelter and training. n18 The wellbeing of the prostitute is a primary concern. Estimates of numbers of prostitutes in Sweden are considerably low with about 0.29 prostitutes per 1,000 inhabitants. n19 The Swedish model has now been adopted in Iceland and Norway. n20

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Control vs. Contain vs. Legalize

Most of the other regulatory regimes are based on the decriminalization of prostitution ; neither the prostitute nor the client is criminally liable. The regimes range greatly in their further responses to prostitution; however, they may be broadly categorized into three main types: control, containment and legalization. The control approach, referred to here as "decriminalization with state control," is resigned to the existence of prostitution but does not accept it as a normal, morally neutral activity. It decriminalizes the buying, selling and procuring of prostitution, but regulates and controls it. A highly controlling regulation approach was common in the nineteenth century, n21 when prostitutes were policed through registers, n22 obligatory regular health checks, strict zoning of street prostitution, and [*60] regulation of brothels. n23 The Czech 2005 proposal n24 falls under this category. I distinguish it from the "decriminalization with legalization" approach, the example of which is the "Dutch model," n25 which views prostitution as morally neutral, treats it as work and is explicitly concerned with the wellbeing of prostitutes.

The "decriminalization with containment" regime, which is prevalent in Europe, n26 differs from the "decriminalization with control" regime in that procurement usually remains illegal, and thus brothels are prohibited. The state addresses only some aspects of prostitution, such as health or prostitution-related activities, such as soliciting in public places or curb-crawling. n27 Prostitution itself operates in a grey zone and is sometimes not even mentioned in statutes. n28 Its policing can occur under general public order or public health provisions. Fewer regulations surrounding prostitution indicates a more permissive regime. A regime which did not address prostitution specifically at all could theoretically be considered a "pure decriminalization" regime . n29

Legalization = Prostitution as Work

Legalization of prostitution is usually the aim of regimes that openly accept prostitution as work or service. This approach has been adopted in the Netherlands and is thus often referred to as the "Dutch model." n30 The state of the Netherlands lifted a ban on brothels in 2000 in a move from "passive tolerance" n31 to "active tolerance" of prostitution. n32 The state entitled municipalities to license brothels and regulate other aspects of the sex industry, such as setting time and place restrictions and regulating advertisements. n33 While maintaining criminal sanctions [*61] for trafficking and emphasizing the prosecution of exploitation of involuntary prostitution, n34 the state aims to normalize the status of voluntary prostitutes. The wellbeing of the prostitute is an important concern of this Page 57 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 58 of 134 Group Three Paper approach. Prostitutes can either be employed by brothel-keepers or be self-employed, and they are liable for tax and social security contributions. n35 While health checks are recommended, there is no obligation that they be undergone. n36 A failure to legalize their activities does not lead to criminal liability; however, "the sale and purchase of sexual services on the street outside the [tolerance] zone is a criminal offence [...] punishable by fines." n37 The numbers of prostitutes are high under such a regime; it is estimated that about 3.13 out of 1,000 inhabitants in the Netherlands are prostitutes. n38

There is much feminist writing on the issue of prostitution. The literature, however, has been divided between those who see prostitution as sex work that should be normalized, and those who see it as an inherently violent and exploitative practice that should be abolished. This Article transcends the binary. First, it is primarily concerned with what should not be the legal response to prostitution - an asymmetric treatment harsher on the prostitute - rather than with proposing an ultimate best legal regime. This critique of regimes repressive toward the prostitute resonates with both feminist positions. A legal gender equality analysis based on the comparison with the client has rarely been used, however. Second, when the Article explores the proposed scenarios - symmetric treatment of prostitutes and clients and asymmetric treatment benefiting the prostitute - , it discusses the perspectives of the two feminist positions and incorporates both of their insights: agency, as argued by the sex-work proponents, as well as vulnerabilities and violence, as argued by radical feminists. The analysis presented, it is hoped, could improve gender equality and the wellbeing of prostitutes in applying existing legal frameworks, in adopting their changes and amendments, and in their judicial review.

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Examples of Resolutions (Stem / Mechanism)

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USFG

USFG—Standard

The United States should legalize one or more of the following: The United States should fully legalize one or more of the following: USFG—Legalize nearly All

The United States federal government should legalize nearly all activities in one or more of the following:

USFG—Decriminalize Nearly All

The United States federal government should decriminalize nearly all activities in one or more of the following areas:

USFG—Remove penalties

R: The USFG should remove all or nearly all of its criminal penalties associated with the production, use or sale of marijuana, online gambling, physician assisted suicide and/or prostitution.

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Passive

Passive--Basic

- One or more of the following should be made legal / legalized:

Passive—basic—Penalties Should Be Reduced

Suggestion: Resolved: Government (criminal/civil) penalties associated with marijuana, prostitution etc. should be reduced

Passive—(Value) Federal Laws

- One or more of the following ought not be federal crimes: Passive—(Value) Including more than the Federal Laws:

One or more of the following ought not be a federal, state, or local crime in the United States:

Passive (general) from the paper, “laws should”

Laws prohibiting one or more of the following ought be decriminalized:

Laws in the U.S. providing criminal penalties for one or more of the following activities should be abolished/repealed:

- Laws in the U.S. providing criminal penalties for one or more of the following activities should be abolished:

- Laws in the U.S. providing criminal penalties for one or more of the following activities should be abolished/repealed:

Laws prohibiting one or more of the following ought be decriminalized on at least a Federal level: X / Y / Z

Laws prohibiting X / Y / Z and/or Q ought be decriminalized on at least a Federal level:

Passive—penalties reduced

Resolved: Penalties associated with marijuana, prostitution etc. should be reduced on at least a federal level.

Passive – “should not be criminalized”

Acts of prostitution, organ selling, physician assisted suicide, gambling, or the production, possession, and use of marijuana should no longer be criminalized (or considered crimes) in (all or nearly all of) the United States. Page 61 of 134

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R: X,Y, Z, or Q should be fully legalized or H, I, J, or K should be substantially decriminalized.

Passive—“should be legalized”

R: Prostitution, Marijuana, ______should be (essentially, comprehensively, ?) legalized in (maybe within) the United States.

Passive – Federal law criminalizing conduct should be reduced

Resolved, that federal law criminalizing conduct in one or more of the following categories should be substantially reduced: Marijuana, Online Gambling, Organ & Tissue Sales, Physician Assisted Suicide, Prostitution. maybe "federal, state, or local laws" and then something other than "substantially reduced," (maybe essentially removed).

Passive—Govt penalties should be reduced

Resolved: Government (criminal/civil) penalties associated with marijuana, prostitution etc. should be reduced

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Other Res Wordings

“Nearly all” thoughts (Stefan)

"nearly all states" (in the res or in the plan (if that's allowed to be T)) solves the X state PIC. not taking a position on whether or not state action should be T, but the X state PIC can be solved through wording also worth considering --

"nearly all state and federal actors"

"nearly all (relevant) governing bodies in the United States" -- this would likely include USFG (could be an evidence debate in the round), allowing Neg to get DA links without being able to PIC out of single states/actors

Four-part scheme (USFG, Nearly all States, Passive, Combo)

Rez 1 -- USFG should decrim/legalize in one of the following areas: areas needed to maintain fidelity to the topic paper + as many areas that could generate strong advantages from federal action alone. The latter list could be pretty big because the former list may not contain a lot of strategic cases that people will run if those are really state issues.

Rez 2 -- (Nearly all US States) or (Nearly all relevant state and local governments in the United States) should decrim/legalize in one of the following areas: areas would be about issues primarily under state jurisdiction

Rez 3 -- Passive voice. I'm not a fan, but this seems inevitable, and it could include a mix of areas in 1 or 2.

Rez 4+ -- permutations of the above

Territory Decriminalize

Resolved: All the territory known as the United States will legalize or decriminalize, one or more of the following:...... You may want to consider "public order crime" instead for the bigger end of the spectrum:

BIG—Consensual crimes / public order crimes / victimless crimes

R: Many (more than one major/all/nearly all) consensual criminal activities should be legalized.

http://definitions.uslegal.com/p/public-order-crime/ Public order crime means criminal acts that deviate from society's general ideas of normal social behavior and moral values. Public order crimes are considered as harmful to the public good and disruptive to a community's daily life. For example, prostitution, paraphilia, pornography, alcohol and drug offenses are public order crimes. Further, public order crime includes consensual crime, victimless vice, and victimless crime. Page 63 of 134

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Consensual crime might not be big enough for the drugs cases because drug dealing is a consensual crime, but drug use is a victimless crime, and I'm not sure if drug production would fall into either category http://en.wikipedia.org/wiki/Consensual_crime

A consensual crime is a public-order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful. Legislative bodies and interest groups sometimes rationalize the criminalization of consensual activity because they feel it offends cultural norms, or because one of the parties to the activity is considered a "victim" despite their informed consent.[1] Consensual crimes are sometimes described as crimes in which the victim is the state, the judicial system, or society at large and so affect the general (sometimes ideological or cultural) interests of the system, such as common sexual morality.[who?] Victimless crimes, while similar, typically involve acts that do not involve multiple persons. Drug use is typically considered a victimless crime whereas the sale of drugs between two or more persons would be a consensual crime. The fact that no persons come forward to claim injury has essentially made the two terms interchangeable in common use.

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Activities/Actions/Crimes to Add

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Same-sex marriage

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Overview 31 states ban same-sex marriage 1. 26 by constitutional amendment + state law 2. 2 by constitutional amendment only 3. 3 by state law only

19 states have legal same-sex marriage 1. 8 by court decision 2. 8 by state legislature 3. 3 by popular vote

1. Defense of Marriage Act (DOMA)

A. Two tiered system for marriage ruled unconstitutional in 2013 yet still remains law of land

Human Rights Campaign, March 24, 20 14 (http://www.hrc.org/laws-and-legislation/federal-legislation/respect-for- marriage-act?gclid=CjkKEQjwqsCcBRDt7_Gts5a91YYBEiQAm-wYEbjcJ7ssseFMO- yFQ3IQgb703_cInRwYHHX55u9ac47w_wcB )

Prior to a June 2013 ruling by the U.S. Supreme Court, the Defense of Marriage Act (DOMA) singled out lawfully married same- sex couples for unequal treatment under federal law. This law discriminated in two important ways. First, Section 2 of DOMA purports to allow states to refuse to recognize valid civil marriages of same-sex couples. Second, Section 3 of the law carves all same-sex couples, regardless of their marital status, out of all federal statutes, regulations and rulings applicable to all other married people—thereby denying them over 1,100 federal benefits and protections. Fortunately, the Court held Section 3 of DOMA unconstitutional in Windsor v. United States . However, steps must still be taken to fully repeal this discriminatory law. First, Section 2 of DOMA was not part of the Windsor case and remains the law of the land. Second, there is no uniform standard across the federal government for determining whether a couple’s marriage is valid for federal purposes. To the extent that it is able, the administration has advanced a broad implementation of the Windsor decision, ensuring that lawfully-married same-sex couples are fully recognized wherever they may live in areas like immigration, federal employee and service member spousal benefits and federal taxation. However, there are a few areas, such as Social Security and veterans benefits, in which this issue remains unsettled and a resolution may require action by Congress.

B. Federal law must recognize same-sex couples, states may choose otherwise

Robert Barnes , June 26, 20 13 (Washington Post reporter and editor since 1987. He joined the paper to cover Maryland politics, and has served in various editing positions including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006. He gave up law school plans for a life in newspapers after taking a journalism class in college. It did not occur to him, as it apparently did to others, that he could do both. http://www.washingtonpost.com/politics/supreme-court/2013/06/26/f0039814-d9ab-11e2-a016- 92547bf094cc_story.html )

“The state’s power in defining the marital relation is of central relevance in this case,” not just because of federalism, Kennedy said, but because giving homosexuals the right to marry “conferred upon them a dignity and status of immense import.” He said the history of the act showed that it was written to convey moral disapproval of homosexuality and “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.” In the end, Kennedy said, “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment.” Kennedy wrote that the opinion was applicable only in those states where same-sex marriage is legal. In a withering dissent, Scalia said it took “real cheek” for the majority opinion to suggest such a limitation — because the rest of the ruling, he said, laid out a road map for how to challenge state bans on gay marriage. “What has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it,” Scalia wrote. “I promise you this: The only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.” He said that decisions about same-sex marriage should be decided in the political arena but that the majority took that away “to buy its stolen Page 67 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 68 of 134 Group Three Paper moment in the spotlight.” Scalia also said the court’s ruling will raise practical problems: “Imagine a pair of women who marry in Albany and then move to Alabama, which does not ‘recognize as valid any marriage of parties of the same sex.’ . . . When the couple files their next federal tax return, may it be a joint one?” Such a case does cause a problem for the Obama administration, which is now grappling with difficult questions about how to deliver federal benefits for same-sex couples living in states that do not have legal gay marriage.

2. Definition of Marriage

A. Religious/traditional vs. Civil marriage

B. Merriam Webster: “state of being united” or an “institution” a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage b : the mutual relation of married persons: WEDLOCK c : the institution whereby individuals are joined in a marriage

C. Webster: “of a man and a woman… as husband and wife” The act of marrying, or the state of being married; legal union of a man and a woman for life, as husband and wife; wedlock; matrimony.

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Aff Ground

A. Constitutionality 1. Equal Protection Clause (14 th amendment): Article 3, Section 2 a. same sex marriage harms neither party in question 2. Due Process Clause: right to privacy

B. Sexual orientation classification suspect, needs scrutiny David Boies , JD, partner at Boies, Schiller & Flexner LLP and counsel for Kristin Perry in Hollingsworth v. Perry , wrote in his Aug. 24, 20 12 amicus curiae brief to Hollingsworth v. Perry (http://gaymarriage.procon.org/view.resource.php?resourceID=005260)

"[T]he evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect. That finding follows inexorably from this Court’s equal protection jurisprudence, the extensive trial record, and Proponents’ repeated concessions that gay men and lesbians have faced a history of discrimination based on a trait that has no bearing on their ability to contribute to society... [T]here is no group in American society who has been targeted by ballot initiatives more than gays and lesbians, and they have essentially lost a hundred percent of the contests over same-sex marriage. Indeed, the undisputed fact that gay men and lesbians have been subjected to a history of discrimination based on a trait that bears no relationship to their ability to contribute to society is sufficient, in and of itself, to render classifications based on sexual orientation 'suspect' and to give rise to heightened scrutiny."

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Neg Ground

1. Defense of Marriage Act (DOMA)

A. DOMA does not discriminate against homosexuals thus impacts not constitutionally relevant

The Family Research Council , a non-profit organization "dedicated to the promotion of marriage and family and the sanctity of human life in national policy," wrote in its Jan. 24, 20 13 amicus curiae brief to United States v. Windsor (http://gaymarriage.procon.org/view.resource.php?resourceID=005260)

"The Defense of Marriage Act does not discriminate between heterosexuals and homosexuals, but between opposite-sex married couples and same-sex married couples. Although DOMA admittedly has a greater impact on homosexuals than heterosexuals, that impact, under this Court's precedents, is not constitutionally relevant unless it can be traced back to an intent or purpose on behalf of Congress to discriminate against homosexuals, as opposed to the mere knowledge that it would have a disparate impact on them. Neither the plaintiff nor the Government, however, has presented any relevant evidence of discriminatory intent or purpose on the part of the Congress that enacted DOMA or President Clinton, who signed the bill into law." 2. Definition of Marriage

A. Sanction of genderless unions in Hollingsworth v. Perry endangers marriage institution and its traditions The National Association of Evangelicals , Aug. 31 st , 20 12 (http://gaymarriage.procon.org/view.resource.php?resourceID=005260)

"Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. The Ninth Circuit in substance declared that the religious vision of marriage is unconstitutional and thus, henceforth, only the personal autonomy vision – with its inevitable embrace of same-sex marriage – shall have legal effect. The court, in the name of the Constitution, thereby inserts a wedge between legal and religious visions of marriage at the definitional level. Where the state and religion once cooperated to support marriage under a common understanding of its essential definition, the decision below ensures profound disagreements over the very nature and purpose of this vital institution. And with the court below pronouncing that long recognized rationales for the traditional institution of marriage are irrational, many people of faith and many religious organizations justifiably fear that legally sanctioned genderless marriage, rather than peacefully coexisting with the contemporary man-woman marriage institution, will actually displace and replace it."

B. Marriage entails ability to propagate descendants

3. Federal Jurisdiction

A. Federal law has no jurisdiction over state matters Anthony Kennedy , March 27 th , 20 13 (Supreme Court Justice, United States v. Edith Schlain Windsor )

"You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, etc... Well, I think it is a DOMA problem. The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage. Well, it applies to over what, 1,100 Federal laws, I think we are saying. So I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that. But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens' day-to-day life, you are at real risk of running in

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B. Inherency - Federal law already sanctions same-sex marriage, merely lacks ability to persuade dissenting states to follow

Robert Barnes, June 26, 2013 (Washington Post reporter and editor since 1987. He joined the paper to cover Maryland politics, and has served in various editing positions including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006. He gave up law school plans for a life in newspapers after taking a journalism class in college. It did not occur to him, as it apparently did to others, that he could do both. http://www.washingtonpost.com/politics/supreme-court/2013/06/26/f0039814-d9ab-11e2-a016-92547bf094cc_story.html )

Roberts also wanted to emphasize that neither of the court’s opinions Wednesday addressed the question of whether there is a broader right to marriage. “We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples,” Roberts wrote. “That issue, however, is not before us.” In the Proposition 8 case, the court ruled 5 to 4 that those who appealed a decision throwing out California’s constitutional amendment banning same-sex marriage did not have legal standing to proceed. Thus, the Supreme Court did not rule on the merits of the case. Only California officials may challenge a federal judge’s decision that Prop. 8 was unconstitutional, Roberts wrote for the majority, and they decided against it. The challenge at the Supreme Court was brought by those who favored Prop. 8, an initiative approved by the state’s voters. “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” Roberts wrote. “We decline to do so here.”

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More Thoughts

Some Great Consultation :

From a friend in the field:

“Great to hear from you. Not knowing the background on the topic paper, I would have to say that I don’t know if it’s appropriate for a legalization/decrim topic because I am not aware of any states that currently criminalize marriages between two people of the same sex. Simple decriminalization would not force states to perform or recognize marriages between two people of the same sex… Generally marriages are valid, voidable (meaning presumed valid until proven to be void), or void ab initio (the marriage cannot confer legal rights or obligations because it is a legal nullity). Marriages between two people of the same sex are generally void ab initio in the states that disallow those unions.

So all of that being said, I would consider the following:

That the Supreme Court of the United States should rule that federal and state judicial rulings, legislative and/or constitutional enactments purporting to criminalize or otherwise treat marriages between two consenting adults of the same sex differently than marriages between two consenting adults of different sexes are repugnant to the Due Process or Equal Protection clause(s) of the United States Constitution.

Since the federal government has no real family law (save the ICWA-type enactments in the context of Native American Indians), state law generally governs. So short of enacting a codified federal family law to preempt state laws (which would be generally unconstitutional and spur f’ism debates and Courts debates about backlash and all of that typical agent cp schnarr), I’m not sure that a single legislative enactment would properly address the issue… If you repeal section 3 of DOMA, that doesn’t do it — court decisions would still be required to make the states affirmatively recognize same sex marriages — DOMA just confirms that they don’t have to recognize the unions.

The Respect for Marriage Act clears up the non-recognition of same sex marriages by the federal government in the context of federal benefits, but it does not require states like XY to recognize or perform marriages between to persons of the same sex. So a "half legalization” option may be...

That the United States Congress should enact legislation repealing Section 3 of the Defense of Marriage Act (110 Stat. 2419) and requiring that all states, territories, possessions and Indian tribes are required to recognize all marriages between two consenting adults of the same sex that were validly celebrated in a jurisdiction where such unions are legal, regardless of whether the jurisdiction that would otherwise not recognize the marriage would itself celebrate such a marriage within that jurisdiction.”

Reply: So, if we really wanted to solve, it would be something like this:

R: The 50 States, DC, and Territories of the U.S. should fully legalize same-sex marriages.

Response:

That might do it - of course there are the 17 states + DC that have already done the right thing. Also “legalize same sex marriage” may be commonly understood, but technically it's over-broad terminology. You may not want to make all states “fully legalize" same sex marriages… the way it’s framed does matter — there’s a long list of marriages that are otherwise illegal that could be made legal under an over-broad resolution - such as marriages entered into under duress, incestuous relationships, among non- adults or where only one partner is of legal age, etc. In those situations, even the states and DC where marriages between two people of the same sex are generally now legal, same sex marriage is not fully legal.

For passive, you might consider:

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R: That marriages between two persons of the same sex [ought/should] be recognized as having the same legal dignity as unions between two persons of the opposite sex.

Terms

I think "Same-sex marriage should be fully legalized" works best, as I think it would be considered "decriminalized" (or at least loosely recognized) by US v. Windsor in 2013, but not "legalized" as there is no law in place that fully sanctions it.

"Same-sex marriage" appears to be the most common term; "gay marriage" is used as well but is arguably less (politically) correct:

"Gay marriage" is an incorrect term Gwynn 12 http://kansan.com/opinion/2012/09/09/gwynn-gay-marriage-is-an-incorrect-term/

“The term ‘gay Marriage’ makes identities beyond ‘gay’ invisible. ‘Marriage Equality’ acknowledges those various identities, but also would expand the political efficacy of the movement and include, for example, people who don’t have citizenship, trans individuals, bisexuals, polyamorous people, asexuals, and more,” Liam Lair said, a graduate student in the Women, Gender, and Sexuality Studies Department.

There are plenty of people who are not legally able to access marriage in the United States who do not identify as gay. After all, there’s more to LGBTQ than the L and the G. The B and the T and the Q, and all those identities that aren’t even encompassed by a catchy little umbrella acronym? They still exist, and they’re still valid, and some of those people want to get married too.

Using "same-sex marriage" instead would encompass bisexual couples, and still leave us with room to debate queer affs.

The next option would be to somehow include "marriage equality," which would be able to encompass all the couples that identify as LGBTQ, but would be awkward to word with legalize/decriminalize:

Marriage quality is not the same as gay marriage Lipp 13 http://www.huffingtonpost.com/murray-lipp/gay-marriage_b_3249733.html

The attainment of "marriage equality" is impossible without "gay marriage" first being legalized. When a given state or country legalizes same-sex marriage and additionally provides equal rights and benefits to all married couples irrespective of whether a couple is same-sex or opposite-sex, then it can be said that

"marriage equality" has been achieved in that region. While "gay marriage" is now legal in various states of the USA, "marriage equality" has not yet been achieved in the USA nationally as the federal government does not recognize same-sex marriages.

In this regard it is crucial to acknowledge the differences between "gay marriage" and "marriage equality." Architects of "marriage equality" campaigns now typically make limited reference to "gay marriage." While this overall focus on equality is constructive it still remains important, however, to recognize "gay marriage" as a real phenomenon (one which deserves a unique identity and place in society) and to understand that its legalization doesn't automatically lead to the achievement of "marriage equality."

Marriage equality should be legalized doesn't sound right or make sense; Marriage equality should be recognized would be vague and lack the key terminology. This could be a term/concept to keep in mind though should this area be debated. Page 73 of 134

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Polygamy

U.S. legal feminism is coming late to debates about polygamy. The current president of South Africa, a polygamist, urges it as a weapon in the country's battle against AIDS, and the First Lady of France, Carla Bruni-Sarkozy, has declared it preferable to monogamy . n293 South Africa's recent recognition of customary marriages included polygamy. The Canadian government has commissioned studies on whether it should be legalized. Even in places as unexpected as rural Russia, people have also begun to lobby for recognition of the practice . n294 My intention here is not to advocate for polygamy, but to show it as a serious topic of legal and policy debates , not just fun television. As one practitioner of plural marriage stressed to me, polygamy is not for everyone, and probably not for most. But then, marriage is not for some at all. The question is not whether any of us would enter plural marriage, but whether we should prohibit others from doing so . n295 And, I argue, this boils down to a question of whether we can effectively regulate it consistent with social goals of egalitarianism and fairness in intimate relationships. Can we even consider it? The answers lie in our response to the question, how big is our love?

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Polygamy Overview

Well, how big is our love? The recommendation is to include this on the larger lists (or just the largest list) and that there are some good debates to be had in this area. It is admittedly small and the literature base seems limited, but it has become more significant lately (Yearning for Zion) and the larger questions about regulating intimacy and the freedom of religion are certainly in play here.

The benefits are that it is State and Federal, but definitely Federal. It matters for a number of families, there are advocates of both sides that make arguments against each other, and the religious freedom questions are unique to this area.

The downside is that it is fairly small in terms of some of the other crimes and there is not a mountain of research on the practice.

Plural marriage practiced by 30,000 to 100,000 familes.

In the United States, estimates are that somewhere between thirty thousand and a hundred thousand families currently practice plural marriage . n33 Those who do risk criminal prosecution, with authorities relying on substantial religious, regional, and "ethnic" profiling to do so . n34 Although marriage had historically been left to state regulation, polygamy became a matter of federal policy in the mid-nineteenth century. Following decades of anti-Mormon activism and the struggle over the Utah Territory, between 1862 and 1887, Congress enacted a series of laws designed to criminalize plural marriage. In the process, Congress altered the shape of constitutional federalism, as well as the Mormon faith .

Proposed wordings:

R1… should decriminalize/legalize laws against polygamous relations.

R2… should decriminalize/legalize laws prohibiting polygamy.

R3… should remove all or nearly all laws criminalizing plural marriages / marital multiplicity.

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Polygamy: Decrim or Legalize? The core of the debate

Decriminalization = remove prohibition. Legalization = remove prohibition and regulate.

This evidence also appears in the mechanism section.

Of course others have urged the decriminalization of polygamy, but they have not taken the additional step to contemplate what full regulation might look like. There are three main possibilities on the intimacy spectrum. The first is our current regime, which prohibits and criminalizes [*1960] plural marriage, denying plural unions recognition , although, ironically, courts often impose recognition in order to prosecute "polygamy." n11 A second possibility, decriminalization, entails lifting prohibitory bans. Finally, legalization incorporates decriminalization, but also entails some sort of official recognition, i.e., licensing and positive legal regulation. Unsurprisingly, those practicing plural intimacy are as diverse in their regulatory end goals as is the dyadic community. Some want merely to be left alone, for the state to stay out of their intimate lives. Others, perhaps the majority of adults, want state recognition and its accompanying regulation. n12 We see this split most visibly right now in the gay rights movement. Following these intimacy politics, within the "poly" community some seek only decriminalization and nonintervention by the state. Others call for full recognition and licensure , frequently invoking Lawrence as a strategic step that sets the stage for recognition of plural marriage alongside gay marriage. n13 Hence, while a more radical polygamy may exist outside of movements or desires for legal recognition, this Article limits its focus to polygamists seeking formal recognition and licensure, as it is here that the analogy to gay marriage falls apart . In addition, other legal scholars have recently analogized marriage and intimacy commitments to business associational models. Most notably, Cynthia Starnes and , more recently, Jennifer Drobac and Antony Page, have contended that conventional state-licensed dyadic marriage should be supplemented with a private ordering system derived from commercial partnership norms. n14 Martha Ertman's typology of intimacy and business associations [*1961] includes polyamorous relationships. n15 Larry Ribstein rejects the specific analogy between marriage and business partnerships, yet still urges a standard form approach to marriage grounded in commercial law's development of different forms for different types of relationships. n16 All of these insights have moved forward the debate over regulation and recognition of intimate relationships. Yet, none of them has contemplated the particular analogy this Article draws - between the open-ended multiplicity of polygamy and commercial partnerships and how law can ameliorate the opportunism and vulnerability that can result.

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Polygamy: The debate

Religious freedom debate

Primarily a religious freedom issues, although not exclusively. If a small part of this impact is even close to accurate, it could outweigh everything.

While polygamy continues to be associated with Mormonism, particularly in light of such high-profile incidents as Elizabeth Smart's 2002 kidnapping and the FLDS controversies of 2008, those who practice, endorse, and lobby for polygamy comprise a diverse cross-section of America. The dominant domestic voices urging not only decriminalization but full legal recognition of polygamy remain religious ones . As noted, plural marriage became the battleground on which the federal government and the Church of Jesus Christ of Latter Day Saints fought for control of Utah Territory during the second half of the nineteenth century . n36 The Mormon Church (LDS) finally conceded, formally banning plural marriage in 1890 and eventually backing the ban with the threat of excommunication for those who continued its practice or advocacy. Some Mormon leaders, however, rejected the ban as breaking with Church founder Joseph Smith and his 1848 Declarations and Covenants; they created fundamentalist offshoots of Mormonism that continued to embrace polygamy and to practice it underground. These non-LDS sects of Mormonism organized their faith around plural "celestial marriage," or "the Principle," arguing it was at the core of their religious faith, structure of government, and constitutional freedom. n37 Their nineteenth-century counterparts had contended, "Polygamy is included in the ordinance of marriage, and in the everlasting covenant and laws of God ... under proper regulations, it is an institution holy, just, virtuous, pure, and, in the estimation of God, abundantly calculated to bless, preserve, and multiply [*1970] a nation." n38 Successor fundamentalists in the twentieth century concurred they were "the true keepers of the faith." n39 While less vocal and visible than Mormon polygamists, other religious groups also endorse polygamy as mandated, or permitted, by their faith. These include evangelical Christians, African Hebrew Israelites of Jerusalem, and Muslims, affiliated both with the Nation of Islam and also Sunni sects. n40 The religious fundamentalist embrace of polygamy, rooted in strict interpretation of and uncompromising adherence to sacred texts and traditions, does dominate the political and cultural discourse favoring polygamy. But it is also important to look beyond religious defenses, which can obscure the diversity of current interests and stakeholders in plural marriage. Not just religious freedoms

Beyond religious rights—radical feminists exposing marriage, groups wanting more choices to preserve the family, libertarians concerns about government over-reach. There are some bad stereotypes in this evidence—just the tip of the iceberg of negative ground.

Less familiar than the Mormon and other religious endorsements are secular defenses of polygamy, including two from unlikely bedfellows: radical feminists and black nationalists. Some groups in the United States have urged polygamy as a way of preserving the black family, viewed by many as the bedrock of the black community. Made in its weaker form, the argument is a pragmatic one: Distorted gender ratios, lack of economic options, and sexual norms have reduced black marriage to a statistical oddity. n41 The result: 67.1% of black children are born outside of marriage and 34.5% grow up in poverty. n42 In this view, what might be thought of as "crisis" polygamy, or "pragmatic" or "charitable" polygamy, n43 represents a practical way of providing black women with (black) husbands, and black children with more present and committed fathers. n44 In its stronger form, the black nationalist argument embraces polygamy as a way to rescue black masculinity and restore patriarchy to the black community, a sort of identitarian idealism. n45 In this view, polygamy offers not only pragmatic multiplicity, but also reinforces conventional [*1972] gender roles as well. This pro-polygamy stance differs in a crucial respect from the mainstream conservative urging of black "monogamous marriage" (I use that term intentionally here). Black nationalists and conventional Page 77 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 78 of 134 Group Three Paper conservatives may both view marriage as the best antidote to poverty and sexual immorality, far preferable to government entitlements or restructuring the family. n46 Yet, while mainstream conservatives additionally support black marriage as an assimilationist strategy, black nationalists advocate plural marriage as a way to further separate the black community culturally, morally, and, ultimately, politically and economically from mainstream American culture.

Meanwhile, some radical feminists urge polygamy as a potential weapon in dyadic marriage's ongoing battle of the sexes. Decades after Betty Friedan's The Feminine Mystique, even after substantial shifts in gender roles, many women continue to complain that conventional marriage leaves them craving deeper emotional intimacy and more equitable divisions of household labor. n47 Thus far, frustrated wives have had three options: surrender and consign themselves to gender inequity and personal exhaustion; remain locked in battle with their husbands; or divorce. n48 Polygamy presents another option. For some women, increasing the ratio of women to men in a household might be more effective than pressuring husbands to "change" and conform to women's expectations. Done properly - that is, among women committed to feminist principles - polygamy can provide a "sisterhood" within marriage, generate more adults committed to balancing work/family obligations, and allow more leisure time for each wife. n49 As Luci Malin, vice chairman of Utah's National [*1973] Organization for Women, once remarked, "[Polygamy] seems like a pretty good idea for professional women, who can proceed with their careers and have someone at home they can trust to watch their children." n50 In fact, lawyer and polygamist Elizabeth Joseph has called plural marriage "the ultimate feminist lifestyle." n51 Contra polygyny as identitarian bonding among women, others laud polygamy as destabilizing the conventional gender roles assigned by dyadic marriage's "yin and yang." n52 In this view, polygamy arguably has the potential to "queer" marriage. Could debate marital multiplicity

Most legal scholarship has approached polygamy in one of two ways. Some have framed it as a constitutional question of religious or privacy rights; others have debated decriminalization based on the contested effects of polygamy on matters ranging from women's subordination to democracy. This Article shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social norms. The Article begins by describing the diverse stakeholders and critics in the polygamy debate, including not only religious fundamentalists but also black nationalists and radical feminists. Next, the Article refutes the analogy between gay marriage and polygamy, disputing it as a miscue from what is legally distinctive about polygamy, its multiplicity. Unlike gay marriage, which is typically envisioned to adhere to a two-person marital model, marital multiplicity both increases the costs of intimate negotiation and complicates it in several ways, including raising questions about how power is bargained for and distributed in marriage. The Article next contends that other legal regimes have addressed polygamy's central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, ongoing entrances and exits, and life-defining economic and personal stakes. It turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The Article concludes by showing how theorizing love and commitment beyond heterodyadic marriage sheds light on the debates over recognition, abolition, and privatization of intimate relationships.

Lots of Negative Ground

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Polygamy's Critics Polygamy offends a diverse array of interests: traditionalists who believe in "family values" (they suspect it to be promiscuity in disguise), mainstream Christians who resent religious fundamentalism, children's rights advocates, liberals who suspect that polygamy is a combination of parental exploitation of children and religious brainwashing, hindering realization of individual desires and will (one might view earlier conflicts over the Amish as a more diluted version of this tension), romantics invested in the companionate bond that conventional marriage is imagined to engender, and even those who argue polygamy provides a cover for a range of fraudulent behavior from welfare abuse to tax fraud. And, of course, there are those who believe polygamy is an inherently patriarchal institution that subordinates women.

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Polygamy and Same-Sex Parallels/Differences

Parallels to Same-sex marriage in terms of criminalization, but not decrim or legalization

Recall that this Article relies on the crucial distinction between decriminalization and legalization, i.e., between repealing the prohibitions on plural marriage and enacting positive regulations to license and govern it . n97 There are important differences in the legal histories of same-sex and plural intimacy, including the fact that sodomy was criminalized but same-sex marriage was not. Such unions were denied recognition and licensure, but there were no prosecutions for attempting same-sex marriage. n98 The regulation of plural intimacy has been the converse. Plural intimacy has only been criminalized in conjunction with monogamous marriage, that is, as adultery . n99 On the other hand, plural marriages are a crime, with prosecutions often based on courts finding "constructive marriages," an ironic and bizarre form of recognition. n100 [*1988] While the decriminalization projects of same-sex and plural intimacy are by and large the same, i.e., repealing prohibitory legislation, their legal recognition - their licensing and regulation - are not . Much has been written about game theory and bargaining in dyadic marriage, most of it focusing on disparities in bargaining power between men and women, i.e., husbands and wives. Early scholars of the household, such as Gary Becker, downplayed conflicts within households, contending that husbands had incentives to be "altruistic" in managing resources to the benefit of the household. n101 Subsequent empirical studies, though, have challenged Becker's hypothesis. The now vast literature on household bargaining has identified two primary points of conflict between husbands and wives: the struggle to control resources during the marriage and the distribution of resources at the end of the marriage. For instance, Robert Pollak and Shelly Lundberg have shown that husbands and wives allocate resources differently in marriages. n102 In addition, economists have documented a variety of factors that make women vulnerable as marriages proceed, thereby diminishing their bargaining power. n103 Women as a group do the majority of child-rearing, thereby losing market capital, while at the same time aging and also losing "beauty capital." Men, on the other hand, enjoy enhanced market capital, due in part to the "flow of domestic labor" they enjoy from their wives, and while men may lose their looks as they age, they gain social and economic capital, which may be more attractive to other women. n104 The upshot is the much-studied divorce threat, in which husbands' ability to leave their marriages and start afresh diminishes wives' bargaining power. For all of its insight and richness, this vast literature has largely limited [*1989] itself to assumptions and studies of dyadic marriages involving only two spouses. n105 Marital multiplicity however engenders distinct interactions and dynamics .

Gay marriage analogy a red herring

The Article argues that the gay marriage analogy, invoked on both the "left" and the "right," is a red herring, a distraction from the real challenge polygamy raises for law - how plural marriage transforms the conventional marital dyad and whether law is up to regulating marital multiplicity . n8 Both of the gay analogies, the slippery slope invocation and the alternative lifestyles defense, distract us from the fact that polygamy's distinctiveness lies not in the spouses' gender (as is the case for same-sex marriage) but rather in its departure from the two-person marital model. Polygamy's defining feature - marital multiplicity - generates specific costs and vulnerabilities, as well as opportunities for exploitative and opportunistic behavior, some of which we have seen play out in distressing fashion in recent high-profile conflicts (from Tom Green to Elizabeth Smart to Warren Jeffs and the raids on his Yearning for Zion compound in Texas in the spring of 2008). n9 (Of course, for some, multiplicity also generates upsides, which this Article also considers.) Hence, this Article [*1959] approaches polygamy as a problem of bargaining, cooperation, strategic behavior, and the issues they engender. While analyses of marriage's future have incorporated some attention to polygamy, few legal scholars have considered polygamy on its own and engaged in detail the regulatory challenges it might pose to our current family law system. Even those who have considered polygamy explicitly from a bargaining perspective, such as Gary Becker and Richard Posner, seem to assume it is merely dyadic marriage multiplied. n10

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Polygamy Solvency

Regulating polygamy can operate through other models such as contract law for corporate partnerships.

But, is the law up to regulating marital multiplicity? This Article contends that, in contemplating the design of a plural marriage regime, we are not starting from scratch. While conventional family law, with its assumptions of the marital dyad, may not be up to the task, other legal regimes have addressed polygamy's central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, ongoing entrances and exits, and life-defining economic and personal stakes. In particular, commercial partnership law has addressed precisely these concerns through a robust set of off-the-rack rules. This Article contrasts polygamy with aspects of partnership law to derive a set of default rules that might accommodate polygamy's marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The point is not to use partnership law as a "map," but rather to make the point that there are already conceptual models for what might be thought of as plural marital associations.

Aff loses a bit of solvency with decriminalizing. You really need legalization to effectively regulate.

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Polygamy -- Summary

The debate about polygamy centers on its nature as “plural marriage,” an issue that makes legalization and regulation the crucial question that has yet to be addressed. There is certainly a debate here and the negative ground of either defending criminalization or running a CP to decriminalize but come short of recognition and regulation is a solid debate.

The current structure of family law assumes a two-person marital model and is designed to regulate and address the concerns that arise in that context. The only meaningful difference between same-sex and heterosexual marriage, is, of course, the gender of the spouses. I do not mean to minimize the cultural or political significance of this distinction - some find it immoral and intolerable; others a real but tolerable difference, even helpful in exploding gender stereotypes; and still others find it irrelevant and meaningless. But, from the perspective of legal logistics, the gender of the spouses matters little. Incorporating same-sex couples into conventional dyadic marriage would portend some changes for our current marital regime, but these are largely a matter of changing linguistic gender assumptions. "Gay marriage" does not challenge the logistical administration or change the underlying legal assumptions of the prevailing marital model (and, definitionally, same-sex marriages, whether dyadic or plural, would not entail the same gender dynamics). Indeed, same-sex marriage advocates primarily seek to be admitted into the current heterodyadic regime, not to undermine it. In contrast to the gay marriage analogy, plural marriage is fundamentally different from dyadic marriage, whatever the gender of the spouses . In asserting gay marriage's analogical force, we miss that polygamy's differences, and hence its regulatory challenges, stem not from gender difference but from marital multiplicity . For people who care about distributive justice within the household, polygamy may fairly be cause for concern. Same-sex marriage, as long as it adheres to the current dyadic regime, will not engender the heightened transaction costs, vulnerabilities, and opportunism that polygamy does. None of the domestic discourses of polygamy - fundamentalist, black nationalist, or radical feminist - have addressed the regulatory questions, which I argue are a central challenge for polygamy . Similarly, neither the slippery slope proponents nor advocates of expanded recognition for alternative families have grappled with the regulatory implications [*1998] of multiplicity, largely limiting their arguments to assuming polygamy's ongoing criminalization as a fringe practice or to urging its decriminalization in the name of "big love." Nor have other legal scholars involved in the polygamy debate confronted regulation. Liberal pluralists who defend polygamy based on constitutional principles of religious freedom and intimacy liberty and those who urge toleration of polygamy as a matter of protecting vulnerable populations have largely limited their arguments to urging decriminalization of polygamy, avoiding the prickly questions of regulating marital multiplicity . n137 And finally, those economists who have endorsed polygamy as "good for women" also have limited their analysis to demand and supply ex ante, avoiding the polygamy paradox and the distinct question of ex post negotiations. In sum, neither polygamy's stakeholders nor the legal literature have confronted polygamy's distinctive features, instead assuming it is merely dyadic marriage multiplied. n13

Full legalization distinct from criminalization

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There is a debate about children, inheritance, a State’s compelling interest, etc.

In fact, children raise two distinct questions for polygamy. The first is that polygamy is intrinsically "bad" for children. In a sense, this allegation is not materially different from accusations about gays and lesbians [*2026] as parents. For both, the claim is that the nature of the adult intimacy disadvantages, or in the stronger form, injures, children in some meaningful way. n232 Charges of child abuse and neglect are what prompted Texas officials to raid the Fundamentalist Church of Jesus Christ of Latter Day Saints and seize hundreds of children from its members. n233 Concerns over child welfare also sparked other large-scale polygamy prosecutions in the twentieth century. However, as Martin Guggenheim, a scholar of children's welfare, contends, the state should not be permitted to use child abuse prosecutions to "regulat[e] the behavior of adults who are not directly harming their children." n234 In addition, the abuse concern may well confuse polygamy as a form of intimate association with the unregulated communities and "compound effect" that Strassberg and Sigman attribute to fundamentalist polygamous communities in the United States. n235 If this is the case, then Sigman is almost certainly correct that decriminalization, or the additional step of recognition and regulation called for by this Article, is the key to assimilating these families and bringing them within our moral scrutiny. n236 Finally, some worry that [*2027] growing up in polygamous families will reinforce conventional gender roles in children, inhibiting their development in a liberal society nominally committed to gender equality. n237 For instance, the report from the Texas Department of Family and Protective Services concluded the following after the FLDS raid: "DFPS also presented evidence that ... the community functioned as a single household with a pervasive belief system that groomed girls to become future victims of sexual abuse and boys to become future sexual abuse perpetrators." n238 Social reproduction and the socialization of children into gender roles is something that concerns me greatly. And yet, I suspect there are deeper threats to gender socialization than plural marriage: television; the Internet; video games; movies; advertising; toys (from Barbie to Bratz); and even the organization of sports and Scouting. Nor is illiberal socialization limited to polygamists. Orthodox religions, traditionalist families, conservative states, and some ethnic enclaves oppose liberalism in various ways. Yet, there are longstanding constitutional norms protecting parents' rights to raise their children as they see fit, short of abuse or neglect. We should be attentive to how children learn to gender identify, but it is unclear that plural marriage threatens social reproduction more than a variety of other social things, which are tolerated and even subsidized. n239

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Consensual / Victimless Crimes

We would get a term of art with this option and a number of crimes that would be great to debate. The downside is that we might not include organ selling and we might not include all of the other four crimes from the “must include” category (we would definitely include some instances of all of those crimes at a minimum). It might be worthwhile to let the community vote on this phrase. We would also add a really good topicality debate about consent and classifications of crimes, including the ability to differentiate between types of crimes (consensual and non-consensual) within each of the areas.

Despite the suggestion to look into “public order offenses,” “public order crimes,” or “victimless crimes,” the phrase “consensual crime” seems to be the better option. A big debate about what constitutes a victim and that all crimes have victims of some sort or another has made the term “victimless crime” less useful and too hard to defend (which might be good for negative ground, etc.). Public order crimes could work, but that would be much broader—perhaps inclusive of a lot more than consensual crimes. This is a question worthy of discussion.

R: One or more major consensual crimes should be fully legalized.

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Consensual Crimes--Definitions

Two or more people, consenting—also called “victimless”

= prostitution, adultery, homosexual conduct, sodomy, gambling, some drug use (marijuana), and assisted suicide

Dax Garvin , Attorney, September 12, ‘08 , http://ezinearticles.com/?Consensual-Crimes---Not-Actual- Crimes&id=1490387, acsde 6-1-14)

I am consider ing a "consensual crime" to be defined as a criminal act committed by two or more people, who consent to involvement, and does not involve any non-consenting individuals. The following is a non-exclusive list of criminal acts that could be considered consensual between the parties: prostitution, adultery, homosexual conduct, sodomy, gambling, some drug use (marijuana), and assisted suicide. Another name for these sort of "crimes" may be victimless crimes, because they do not harm anyone as they have no impact on a person other than those who chose to engage in the activity. Thus, there is no victim.

‘Consensual Crime” entry on Wikipedia. http://en.wikipedia.org/wiki/Consensual_crime, acsd 6-2-14

A consensual crime is a public-order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful . Legislative bodies and interest groups sometimes rationalize the criminalization of consensual activity because they feel it offends cultural norms, or because one of the parties to the activity is considered a "victim" despite their informed consent.[1] Consensual crimes are sometimes described as crimes in which the victim is the state, the judicial system, or society at large and so affect the general (sometimes ideological or cultural) interests of the system, such as common sexual morality.[who?] Victimless crimes, while similar, typically involve acts that do not involve multiple persons. Drug use is typically considered a victimless crime whereas the sale of drugs between two or more persons would be a consensual crime. The fact that no persons come forward to claim injury has essentially made the two terms interchangeable in common use.

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Victimless Crimes--Definitions

All parties consent, no injury

Oxford Dictionary N: A legal offense to which all parties consent and no party is injured

Involves consent, lacks harm

Carol A. Veneziano, Ph.D., 2012 (?) (Professor, Southeast Missouri State University http://cstl- hhs.semo.edu/cveneziano/victimless%20crimes.htm)

A victimless crime is an illegal act that involves consenting adults and lacks a complaining participant (Schur, 1965). Such acts have been defined as illegal, but there is no victim that claims to have been harmed; either no harm has occurred, or if harm has occurred to those involved, it is negated because its willing participants have given informed consent to the activity (Stitt, 1988).

Victimless crimes = “Public Order Offenses.”

5 most common = gambling, drug use, pornography, prostitution, and homosexuality.

Carol A. Veneziano, Ph.D., 2012 (?) (Professor, Southeast Missouri State University http://cstl- hhs.semo.edu/cveneziano/victimless%20crimes.htm)

Victimless crimes are also sometimes referred to as public order offenses. Although there has been some disagreement over which crimes are victimless, five of the most commonly identified victimless crimes are gambling, drug use, pornography, prostitution, and homosexuality. Additionally, abortion is sometimes referred to as a victimless crime, although this classification has been highly controversial (Brown, Esbensen and Geis, 2010). Adultery and fornication might formerly be referred to as victimless crimes, but in most states these acts are no longer crimes (Harcourt, 1999).

There is a cohesive position against “victimless crimes”

Carol A. Veneziano, Ph.D., 2012 (?) (Professor, Southeast Missouri State University http://cstl- hhs.semo.edu/cveneziano/victimless%20crimes.htm)

The oldest argument concerning victimless crimes concerns personal freedom. If the individuals involved are consenting adults, they should be free in a democratic society to engage in these behaviors, even if that conduct should be unwise for the individual (Feinberg, 1984). According to this perspective, the government should not be involved in enforcing morality and coercing its citizens to follow particular standards of behavior, thus interfering with their liberty. On the other hand, some scholars have argued that it is important to uphold moral standards in society. Such Page 86 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 87 of 134 Group Three Paper acts should be against the law because they are wrong (sometimes referred to as legalmoralism). If a society does not have standards, there will be chaos. There are acts that are generally regarded as immoral in a culture; a policy that allows such acts would weaken the social cohesion and consensus about appropriate behavior and ultimately lead to the collapse of society (Devlin, 1965).

Are there really “victimless” crimes of any type?

Carol A. Veneziano, Ph.D., 2012 (?) (Professor, Southeast Missouri State University http://cstl- hhs.semo.edu/cveneziano/victimless%20crimes.htm)

The second argument against victimless crimes is that they harm no one else, except possibly the individuals involved, who are free to do as they please. Some scholars, however, have argued that participants in these crimes do not hurt only themselves. The offenders’ families may be hurt, and victimless crimes could even lead to other problems where there are unwilling victims (Meier and Geis, 1997). For example, prostitution and homosexuality might lead to the spread of AIDS. Drug abusers might commit crimes to obtain drugs; pornography, it is argued, leads to the degradation not only of the participants but of women in general. In response, critics of victimless crime laws point out that families are often hurt by many acts a family member could commit, and people generally may engage in acts that are indirectly harmful to others, such as investing unwisely in the stock market, eating fast food that results in medical bills which increase insurance costs, and other practices that are not illegal. The law cannot begin to prohibit so many potentially harmful practices, so it should not forbid other practices that are less socially acceptable.

Half self-fulfilling, half the ways crimes compound on themselves.

Carol A. Veneziano, Ph.D., 2012 (?) (Professor, Southeast Missouri State University http://cstl- hhs.semo.edu/cveneziano/victimless%20crimes.htm)

However, some researchers have indicated that victimless crimes are harmful in ways that do argue for their control and criminalization. The broken windows argument of crime prevention (Wilson and Kelling, 1982) has altered the harm argument significantly. This theory states that if such phenomena as minor disorderly conduct, prostitution, liquor shops, illicit drugs and the sale of pornography go unattended, serious crime will increase in a neighborhood. An area that appears disorderly, (broken windows), is vulnerable to invasion by criminals, thus affecting the quality of lives of its residents and with potentially devastating economic effects. Neighborhoods whose residents believe that they can regulate public behavior by informal controls tend to be areas which discourage potential offenders. On the other hand, areas which appear to tolerate disorder, where no one seems to care or to control the physical environment, tend to encourage other more serious types of crime. Thus disorder and victimless acts should be discouraged so as to protect neighborhoods and residents. In the 1960s and 1970s, victimless crimes were being decriminalized in many states. As a consequence of the broken windows concept, some places, particularly large cities such as Chicago and New York, have made more aggressive efforts to apprehend those involved in victimless crimes. The rationale for this change in policy has been on the basis that victimless crimes lead to more crime which tends to discourage economic enterprises such as business and tourism, and to interfere with the quality of life of its residents (Harcourt, 1999). It’s a good debate, including the debate over which crimes are victimless.

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The impact of victimless offenses on other crimes and on community economy has not been well researched. One empirical study was conducted concerning gambling, which has been made legal in many communities as a result of casinos. Analysis found few consistent findings. Crime rates increased significantly in some casino communities, remained relatively stable in others, and decreased in some communities. It was concluded that crime does not inevitably increase when legalized gambling is available, but that the effects of casinos on crime appear to be related to a variety of variables that are not yet well understood (Stitt, Nichols and Giacopassi, 2003). In order to examine the effects of legalization of gambling, as well as other victimless crimes, more empirical studies are clearly needed. A further issue that has been the focus of considerable debate concerns the impact of victimless crime laws on the criminal justice system. The enforcement of victimless crime laws has been associated with police discretion and increased police corruption, and may also be associated with the violation of civil liberties against citizens (Acuri, Gunn and Lester, 1987). The enforcement of victimless crime laws might also lead its perpetrators to commit other crimes that they would not commit if these victimless acts were legal (for example, if drug use was legal, some perpetrators would not commit property or other crimes to obtain money for their drugs). Additionally the enforcement of victimless crime leads to increased jail populations at considerable cost (Taylor, 2001). Furthermore, there is concern that enforcement of victimless crime laws may divert time and funds for the criminal justice system from other more serious crime and more important issues. Since it is not even the case that police can be particularly effective at enforcing these law, some scholars argue that it is not worthwhile, since there are so many other pressing crime issues (Skolnick, 1978; Barkan, 1997). Yet another problem is that victimless crime provides revenue for organized crime. Victimless crimes often provide goods and services (such gambling, prostitution, and drugs) for which there is considerable demand. Organized crime has been able to provide these desired commodities, and victimless crimes serve to fund these groups, creating a lucrative market and keeping such groups in business. The argument has been made that organized crime contributes to corruption of criminal justice officials; however, the counterargument has been that there would still be opportunities for corruption even if victimless crimes were legal. Yet, although the goods and services provided might not involve a complaining victim, it is the case that members of organized crime engage in other corrupt and dangerous criminal practices such as loansharking and extortion, thus contributing to the serious and violent crime rates. There are thus arguments both for and against legalization of victimless crimes with respect to the role of organized crime (Kenney and Finckenauer, 1995). More subtly, the enforcement of victimless crime laws might lead to public disrespect for the law. If citizens believe that such laws are overreaching and interfere with their liberties, this perception might affect their general views of the criminal justice system. These laws are difficult to enforce, since they are usually not even reported, and provide goods and services that are in demand. As such, the laws are likely to be violated, weakening law abiding behaviors. If they are associated with police corruption and organized crime enterprises, negative views of the police and the law again seem likely to result (Skolnick, 1978; Kenney and Finckenauer, 1995). Furthermore, it has been pointed out that victimless crimes tend to reflect the moral beliefs of the powerful, and as such reflect social inequality. Those citizens who influence lawmaking have tended to be white middle and upper class Protestants, and the laws tend to affect the poor and minorities. There are numerous examples. The temperance movement of the late 1800s and early 1900s was led by white Protestants who considered alcohol a sin and disliked Catholics, immigrants and the poor who used alcohol (Kenney and Finkenauer, 1995). When prostitution laws are enforced, poor streetwalkers are much more likely to be arrested than call girls who cater to richer clients, and prostitutes in general are legally more at risk than their male customers. Gambling by the poor, such as “running the numbers” has been illegal, but gambling on the stock market or in the casinos is legal (Barkan, 1997). Some drugs, such as tobacco and alcohol, are legal even though they cause harm. Recently drug laws have been criticized as racist, because the penalties have disproportionately affected African Americans, as their incarceration rates have risen dramatically relative to white drug users (Bobo and Thompson, 2006). The homeless tend to be arrested for victimless crimes for acts which actually involve maintaining survival without housing (Fischer, 1988). Given the inconsistencies, the perception can be created that the laws apply only to the powerless, and that victimless crimes are used as surrogates for other political issues concerning class and race (Dombrink, 1993). A small number of studies of public perceptions of victimless crimes have indicated that the public finds these acts less serious than other types of crimes, ranking them relatively low in terms of crime seriousness (Miethe, 1982; Veneziano and Veneziano, 1993). A religious affiliation and a higher level of religiosity are associated with a stronger condemnation of victimless crime (Koster and Heike, 2009). However, victimless crimes are perceived to be harmful in a number of studies, to self, family and society (Veneziano and Veneziano, 1993; Harcourt, 1999). Other perceptual research has focused on the police. A survey found that police officers differ greatly in their use of discretion and that discretion is most often used for traffic violations and victimless crimes. Another study indicated that police did not view such crimes as a serious problem, and tended to believe that it is futile to attempt to control such acts (Wilson, Cullen, Latessa and Wills, 1985). Research with sheriffs found that they tended to believe that attempts to police public order offenses had a detrimental effect on their departments, but that they were unwilling to decriminalize such these acts (Kincade and Leone, 1993). More research in the area of perceptions would appear to be indicated. Policies and prosecution of victimless crimes have changed significantly. Despite the debates that have conducted for decades, the trend has been that most victimless crimes have gradually been decriminalized, sometimes referred to as “decriminalization drift” (Brown, Esbensen and Geis,

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2010). Adultery and fornication have been removed from state statutes. Abortion, although still a matter of great controversy, is legal under certain conditions. Gambling, once permitted only in Nevada, is legal today in almost all jurisdictions through lotteries and casinos. Homosexuality, while illegal in some states, is seldom prosecuted; the major issues in recent years have concerned gay marriage and policies concerning military service. Only streetwalker prostitutes, largely powerless and catering to the marginal client, continue to be prosecuted (sporadically) by the criminal justice system (Harcourt, 1999; Brown, Esbensen, and Geis, 2010). On the other hand, drug use, once allowed and even socially acceptable, is now punished much more severely, and increases in prison populations reflect this change in policy. Therefore, the prosecution of victimless crimes also reflects changes in attitudes and moral standards, as well as political factors and social forces, complicating the debate even further. Victimless crimes highlight a significant number of issues concerning crime, morality and the criminal justice system. More research needs to be conducted in a number of areas, including: (1) perceptions of the public and police concerning various victimless crimes, including perceived seriousness and harm; (2) the impact of victimless crimes on other members of society, including quality of life issues; (3) the potential economic impact of the various victimless acts (both positive and negative), and the community factors that affect economic impact; and (4) further study of the effect of specific acts on police, other members of the criminal justice system, and on organized crime. It seems unlikely that the debates concerning such acts as homosexuality, prostitution, drug use, gambling and pornography will be resolved. There are not clearly accepted definitions of “consensus” or “harm” or “offender” or” victim” concerning such acts (de Haan. 1990). The issue of harm is a major point of contention in the debate. It is not clear whether the concept of harm should be confined to the actions of the individuals involved, or whether potential harm to others or society should be a factor, and to what degree. Even then, the question is whether ignoring victimless crime does more harm than good versus prosecuting such acts, as either policy potentially appears to have both positive and negative consequences, for both citizens and the criminal justice system.

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Topicality Debates

What crimes are considered “victimless” ?

All that is consensual and harmless

Carol A. Veneziano, Ph.D., 2012 (?) (Professor, Southeast Missouri State University http://cstl- hhs.semo.edu/cveneziano/victimless%20crimes.htm)

It seems unlikely that the debates concerning such acts as homosexuality, prostitution, drug use, gambling and pornography will be resolved. There are not clearly accepted definitions of “consensus” or “harm” or “offender” or” victim” concerning such acts (de Haan. 1990). The issue of harm is a major point of contention in the debate. It is not clear whether the concept of harm should be confined to the actions of the individuals involved, or whether potential harm to others or society should be a factor, and to what degree. Even then, the question is whether ignoring victimless crime does more harm than good versus prosecuting such acts, as either policy potentially appears to have both positive and negative consequences, for both citizens and the criminal justice system.

That which is justified by Mill’s utilitarianism and a priori argument

Alan Wertheimer , Jul., 19 77 “Victimless Crimes,” Ethics , Vol. 87, No. 4, pp. 302-318, published by the University of Chicago Press. http://www.jstor.org/stable/2379900 [Professor Wertheimer was a Fellow in the Program in Ethics and the Professions at Harvard University (1989-90) and a Fellow of the School of Social Sciences at the Institute for Advanced Study, Princeton (1984-85). His teaching and research areas are political philosophy of Law. He is the author of Coercion (Princeton University Press, 1987) and Exploitation (Princeton University Press, 1996) and numerous articles. Professor Wertheimer recently served as Visiting Professor at the John F. Kennedy School of Government at Harvard. He was selected as "University Scholar" for 1995-96, one of the highest honors in the University.]

With some minor variations, the advocates of decriminalization would generally recommend that the following activities be removed from the province of the criminal law: homosexual relations between consenting adults, adultery, public drunkenness, vagrancy, loitering, gambling, prostitution, abortion, and possession and use of narcotics. Nevertheless, these recommendations are supported by a philosophical argument, and it is one with a substantial pedigree. At least since Mill it has been thought possible and desirable to find a (set of) principle(s) by which to fix the proper scope of the criminal law. I shall argue that this has always been a mistake. In offering a brief summary of the argument, I shall do so without defining "victimless crimes." I do this because the concept is not used univocally in the literature and because the adequacy of any account of that concept is problematic. In any case, most readers will certainly have a rough notion of what a victimless crime is meant to be. Now the argument is generally advanced in terms of two claims: (1) an a priori claim about the proper scope of the criminal law and (2) a set of utilitarian claims about the undesirable consequences of enforcing statutes which lie beyond the proper scope (as set in a priori terms) of the criminal law.

Why a Category of Crimes?

Allows for bigger affs that make sense, prevents listing 100s of crimes that are all somewhat related, is in the literature, gets at the core of the controversy even if it’s not all 5 crimes, brings back topicality, adds the debate over ‘victim” or “consent.”

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Homelessness

Yes, this is part of Group 2 and there will be more there, but Sara Beth responded to some questions that will be helpful to have in a wording paper.

Homelessness Paper #1: http://www.cedadebate.org/forum/index.php/topic,5928.msg13140.html#msg13140

From Sara Beth:

Hi all,

I have prepared a paper advocating for the addition of homelessness to the topic areas. I've attached the paper below. I have also uploaded all of the academic journals to a zip folder which can be downloaded here: http://ge.tt/5ulEhTj1/v/0. I don't want lack of access to materials to prevent anyone from participating in this discussion.

I know there were other groups who talked about doing this, so if that work was done I'm sure it can be merged together. But I didn't want the opportunity to pass us by, this area is so crucial to the decriminalize topic. Questions

A few questions for you:

1. It looks like legalize would work, but might not be as good as decriminalize for this area. What solvency would we lose if we went with "legalize homelessness" instead of "decriminalize homelessness."

2. For the term--would it just be as simple as "legalize homelessness" to access the vagrancy and loitering acts without getting into the idea that "homelessness" itself is not often the crime--it's activities associated with it? It seems like we need some other modifier in addition to homelessness. In other words, yes, the narrow use of homelessness seems to matter (as the card below indicates), but it is just a small part of the larger set of crimes that are used to target the homeless. Maybe we say something like "laws against homeless-related activities"? Maybe "activities targeted against homelessness." Not sure--definitely something to figure out because this is a crucial area.

3. For an unrelated question--what do you think the viability of using "public order crimes" as a way to capture a set of crimes including the major ones? I assume that would include homelessness. This card caught my eye from your paper:

O’Connor 10 (Dr. Tom O’Connor, professor of Criminal Justice at Austin Peay State University. “CRIMES AGAINST PUBLIC ORDER & MORALITY” http://www.drtomoconnor.com/3010/3010lect07.htm) sbb Public order crimes are known by a variety of names -- consensual crime, victimless vice, crimes without victims, or victimless crime. In fact, Siegel (2004) defines both public order crime AND victimless crime as "crime which involves acts that interfere with the operations of society and the ability of people to function efficiently." This definition aside, the term public order, meaning public (moral) order has become favored in recent years, and the term victimless is mostly out of favor because the discovery of secondary victims (family, friends, and acquaintances) has led to recognition of victimlessness as a myth. The field of criminology has gone through at least three stages of controversy: (1) a period Page 91 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 92 of 134 Group Three Paper around 1930-1960 when the debate was over the functions of deviance (Davis 1937; Coser 1962); (2) a period around 1960-1980 when the debate was over harm to self versus harm to society (Becker 1963; MacNamara & Karmen 1983); and (3) the period from about 1990 on, which has involved trying to sort out the many links between sex, drugs, alcohol, and crime (Krohn et. al. 1997). The major crimes that are usually analyzed in the public order category include (in no particular order): prostitution, deviant sex (paraphilias), precocious sex (underage sex), homosexuality, pornography, alcoholism, liquor law violations (underage drinking), driving while intoxicated, disorderly conduct, public drunkenness, drug offenses (opiates, heroin, cocaine, crack, meth, marijuana), and cigarette smoking. There are a number of other crimes and deviant acts, such as vagrancy, panhandling, homelessness, helmet and seat belt violations, gambling, abortion, suicide, and witchcraft that are not fully discussed here for sake of brevity. Answers from Sara Beth…

1. Decriminalize is significantly better in my opinion. Under this topic area a decriminalize aff could remove some/all of the vagrancy/loitering statutes. The research I found about the criminalization of homelessness pretty much all revolves around the crimes of actions in public that most people do in their homes (sleeping, eating, sitting down, washing up). If "legalize" were chosen instead, we wouldn't have any access to any of that solvency; the debate would pivot to the legality of public encampments (also known as tent cities) which provide a place for sleeping, eating, sitting down, washing up. Under "legalize" we would be talking about how to make those encampments and other similar forms (car camping, for example) legal instead of removing the restrictions on these activities in public places. There is less literature about tent cities in general because they are a relatively new phenomenon in the last decade or so that arose out of groups of homeless people organizing together in small communities. The lit is still there but it seems like a less developed debate.

2. This is the part of that I struggled the most with, and I honestly don't know what the right nuanced phrase is. Some of the critical lit I read talked about the "crimes of homelessness." I suppose the wording could also read vagrancy and loitering laws, though someone would have to go back and look at the terms "vagrancy" and "loitering" and that would probably lead us down a different rabbit hole since those words aren't exclusively associated with homelessness. "Decriminalize homelessness" is a phrase that is true to the lit base, even if it doesn't seem so on face value. A legalize option is more tricky in wording, because there is no literature that I could find that says "legalize homelessness." Generally homelessness is considered to be a negative thing -- not always but generally -- and so it's hard to find people who say that we should legalize it. I think if the choice is legalize, it might be better to collapse to specific laws, such as public camping or public encampments (two different laws there). Or, sadly, just not include it at all. It's really much better for decriminalization, tbh.

3. So I thought about this too, especially after coming across O'Connor's article. It would be easy to write the resolution to decriminalize or legalize "public order crimes" and avoid a lengthy list of topic areas. However I had trouble finding stable ground for what "public order offenses" or "public order crimes" means. This doesn't mean the ground isn't there, but there was definitely a lot less certainty over what those terms mean. I was grateful to find the O'Connor card because it painted the clearest picture for me. If you google "public order offenses" in quotations you will find that there are several terms of art that seem to describe similar sets of crimes but no one unifying term. Maybe this is better for T debate? I don't think it's a bad idea, but I'm not sure you're going to find as much solvency as you do when you list out individual crimes that should be decriminalized (or individual actions that should be legalized).

A couple of comments in reply—really dealing with the phrasing if all of the laws are not exclusively used against a certain status: thanks again, sara beth. if you come across some good definitions of "crimes of homelessness" or of "homelessness- related crimes," that would be great. I think one of those terms could do the trick--we should not be afraid to use Page 92 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 93 of 134 Group Three Paper the term "crimes" in the resolution about embracing the "de-crime." I also think something like "R: Agents of choice should fully legalize crimes of homelessness" would get at the tent city component and the vagrancy/municipal order stuff. There is a balance between looking at larger crimes that are used to target the homeless and the inability to actually address the way the country is going after homelessness on a local level. I also think we may try to use legalize across the board (at least in some wordings) and it would be good to have a phrase that works either way.

---To Gabe regarding HIV-Status

Great conversation and research. This is a wording question that is coming up in some other areas as well. The problem is that a certain condition or reality is being targeted through the use of other laws that can be applied against "behavior linked to that condition." In the same way that "homelessness" is not criminal, there are lots of laws that are deployed to essentially criminalize homelessness. We do not want to debate vagrancy laws in general (necessarily) and we do not want to debate all aspects of "exposure to risk as assault" etc. We want to explore the ways those laws are purposely used against certain groups. The other element, though, is that we do not really want to allow the aff to repeal one small law out of potentially dozens that can be used against the group. The idea is not to have an aff that only makes it legal for the homeless to trespass, but still targets them through all the other laws. We wouldn't want an aff to only protect those with HIV from prosecution related to non-disclosure but keep all the criminal focus on transmission and exposure. As a result, I think we need to come up with a wording that pluralizes the crimes against a certain group and repeals those applications of the crimes in question. Something like "Should repeal laws/crimes used to criminalize HIV-status, homelessness, sex workers, marijuana, etc." That one is still slightly off, but you get the idea.

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More Cards on Homelessness

National Law Center Report, ’11 http://www.nlchp.org/Criminalizing_Crisis, “Criminalizing Crisis: The Criminalization of Homelessness in U.S. Cities”A Report by the National Law Center on Homelessness & Poverty November 2011

The criminalization of homelessness takes many forms , including : • Enactment and enforcement of laws that make it illegal to sleep, sit, or store personal belongings in the public spaces of cities without sufficient shelter or affordable housing. • Selective enforcement against homeless persons of seemingly neutral laws, such as loitering, jaywalking, or open container ordinances. • Sweeps of city areas in which homeless persons live in order to drive them out of those areas, frequently resulting in the destruction of individual s’ personal property, including important personal documents and medication. • Enactment and enforcement of laws that punish people for begging or panhandling in order to move poor or homeless persons out of a city or downtown area. • Enactment and enforcement of laws that restrict groups sharing food with homeless persons in public spaces. • Enforcement of “quality of life” ordinances related to public activities and hygiene (e.g. public urination) when no public facilities are available to people without housing.

Respondents reported arrests, citations, or both for the following activities in their cities: • Public urination/defecation: 73 percent of respondents; • Camping/sleeping in public: 55 percent of respondents; • Loitering: 55 percent of respondents; • Panhandling: 53 percent of respondents; • Public storage of belongings: 20 percent of respondents; and • Sidewalk-sitting: 19 percent of respondents. At the same time, more than 80 percent of respondents who reported restrictions on public camping/sleeping, urination/defecation, and/or storage of belongings, indicated that their cities lack sufficient shelter beds, public bathrooms, and/or free-to-low cost storage options for the personal belongings of homeless persons. City ordinance are frequently tools for criminalizing homelessness. Of the 234 cities surveyed for our Prohibited Conduct Chart (in the Advocacy Manual Appendix): • 40 percent prohibit “camping” in particular public places, while 16 percent prohibit “camping” citywide; • 33 percent prohibit sitting/lying in particular public places 8 • 56 percent prohibit loitering in particular public places, while 22 percent prohibit loitering citywide; and • 53 percent prohibit begging in particular public places, while 53 percent prohibit “aggressive” panhandling and 24 percent prohibit begging citywide.

The trend of criminalizing homelessness continues to grow. Among the 188 cities reviewed for the prohibited conduct chart in both the 2009 report and this report, we identified the following increases in criminalization measures: • 7 percent increase in prohibitions on begging or panhandlin g; • 7 percent increase in prohibitions on camping in particula r public places; and • 10 percent increase in prohibitions on loitering in particular public places

Criminalization measures raise constitutional questions , and many of them violate the civil rights of homeless persons. Courts have found certain criminalization measures to be unconstitutional. For example: • Laws that restrict or penalize begging may raise free speech concerns, as courts have found begging to be protected speech under the First Amendment . • When a city destroys a homeless person’s belongings, such actions may violate the Fourth Amendment right to be free from Page 94 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 95 of 134 Group Three Paper unreasonable searches and seizures. • When a city enforces a law that imposes criminal penalties on a homeless person for engaging in necessary life activities such as sleeping in public, such a law could violate that person’s Eighth Amendment right to be free from cruel and unusual punishment if the person has nowhere else to perform the activity. • When a city passes a loitering or vagrancy law that pro vides insufficient notice of what types of conduct it prohibits, or allows for arbitrary enforcement by law enforcement officials, such a law may be overly vague, in violation of the Constitution. • In addition to violating domestic law, criminalization measures can also violate international human rights law.

Policy Recommendations In addition to reviewing models from around the country an d globe, cities can take concrete steps to ensure homeless persons’ rights are protected and that more helpful approaches to homelessness are pursued. Such steps should include: • Establishing a council that includes homeless persons, providers, and advocates to provide oversight of ordinances and practices that negatively impact homeless persons; • Stopping the enactment of laws that criminalize homelessness; • Establishing police and other protocols that ensure home less persons’ civil rights are protected; • Conducting police trainings and establishing homeless liaisons within the police department to foster improved relationships between police and people experiencing homelessness; and • Providing more affordable housing, supportive housing, and other resources so that people have less need to perform necessary and life-sustaining activities in public places.

Despite the fact that communities all over the country do not have adequate affordable housing or shelter space, cities are continuing to penalize people forced to live on our streets and in our public spaces. Such measures often prohibit activities such as sleeping/camping, eating, sitting, and/or begging in public spaces, and include c riminal penalties for violations of these laws. Some cities have even enacted restrictions that punish groups and individuals for serving food to homeless people. Many of these measures appear to have the purpose of moving homeless people out of sight, or even out of a give n city.

In March and April 2011, the National Law Center on Homelessness & Poverty conducted a nation-wide survey of homeless service providers, advocates, and homeless individuals about criminalization practices within their cities. Overall, the survey results show that laws targeting homeless individuals are widespread throughout the United States, though some respondents included information about more positive approaches to homelessness as well.

Over 50 percent of respondents indicated that their cities enforce laws targeting homeless people in each of the following categories: camping/sleeping in public, panhandling, and loitering. Though not criminalized as frequently, 33 percent of individuals indicated that their city maintains restrictions on sidewalk-sitting, and another 34 percent cited restrictions on public storage of belongings. The survey also asked participants to report on arrests and citations for criminalized activities. The percentages of respondents who reported arrests, citations, or both for certain activities in their cities are as follows: • Public urination/defecation: 73 percent; • Camping/sleeping in public: 55 percent; • Loitering: 55 percent; • Panhandling: 53 percent; • Public storage of belongings: 20 percent; and • Sidewalk-sitting: 19 percent.

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The results show that most cities surveyed are engaging i n some form of criminalization practice and that many cities do not meet the needs of homeless individuals in their communities. Additional efforts to develop and implement constructive alternatives to criminalization will allow those cities to better serve their homeless populations.

While many cities have laws and practices that target homeless people living in public spaces, some cities have programs and initiatives that work to serve the needs of homeless people in a more positive manner. Below are examples of constructive alternatives to the criminalization of homelessness from a variety of cities across the United States.

In addition to municipal level action to promote positive approaches to homelessness, the federal government has a responsibility to discourage the criminalization of homelessness. This responsibility stems from the government’s obligation to protect the constitutional, civil and human rights of all people – including those who are homeless. The federal government also has a very specific statutory responsibility to eliminate criminalization: The HEARTH Act of 2009 identified the counterproductive nature of criminalization measures and required the U.S. Interagency Council on Homelessness (U.S. ICH) to “develop constructive alternatives to criminalizing homelessness and laws and policies that prohibit sleeping, feeding, sitting, resting or lying in public spaces when there are no suitable alternatives, result in the destruction of a homeless person's property without due process, or are selectively enforced against homeless persons.” On December 1, 2010, the U.S. ICH and the Department of Justice's Access to Justice initiative hosted a summit on constructive alternatives to criminalization. The stated goal of the summit was to encourage cities attending to pursue approaches to homelessness that do not involve penalizing homeless individuals for performing life-sustaining activities in public. The summit featured models in policing, court systems, systems of ca re, and volunteerism. Attendees included city officials, providers, advocates, and law enforcement officials from across the country, as well as representatives from various federal agencies, including the Departments of Justice, Housing and Urban Development, Health and Human Services, and Veterans Affairs. While hosting the summit was helpful, the U.S. ICH and t he federal government should do more on a regular basis to discourage criminalization and encourage cities to pursue more productive approaches to street homelessness.

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Non-insuranace (Health Insurance)

Recommendation

From an admittedly brief assessment of this material, the recommendation is not to include the insurance mandate in the potential wordings. The “criminal” aspect is the fact that the “individual mandate” assesses a fine for those who do not comply. That fine is a way of “criminalizing” noninsurance, but only in a loose sense. So an aff could make it legal to not comply with the new health care mandate and therefore gut the overall legislation, but it’s not that simple. The Health Care legislation would still be in effect and the Administration has already started to waive the fine in question. In fact, you can get the fine waived even without documentation at this point.

There is enough here to consider, however, which is why we included it. It’s also one of the only ways we would be able to debate health care and the way it’s enforced (and this is a big issue that the Supreme Court focused on as well).

Overview

Individual shared responsibility provision mandates insurance coverage

Internal Revenue Service, May 13 th , 20 14 (http://www.irs.gov/uac/Questions-and-Answers-on-the-Individual-Shared-Responsibility- Provision)

Under the Affordable Care Act, the federal government, state governments, insurers, employers and individuals are given shared responsibility to reform and improve the availability, quality and affordability of health insurance coverage in the United States. Starting in 2014, the individual shared responsibility provision calls for each individual to have minimum essential health coverage (known as minimum essential coverage) for each month, qualify for an exemption, or make a payment when filing his or her federal income tax return. The provision applies to individuals of all ages, including children. The adult or married couple who can claim a child or another individual as a dependent for federal income tax purposes is responsible for making the payment if the dependent does not have coverage or an exemption.

Aff Ground

Individual mandate unconstitutional, upholding it is a threat to individual liberty

Somin , Ilya. March 26 th , 20 12 . Ilya Somin is an associate professor of law at George Mason University School of Law and co-editor of the Supreme Court Economic Review. He has written an amicus brief in the individual mandate case on behalf of the Washington Legal Foundation and a group of constitutional law scholars urging the court to strike down the law. He blogs regularly at the Volokh Conspiracy law and politics blog.

This week, the U.S. Supreme Court considers the case challenging the Obama administration health care plan's requirement that most Americans purchase a government-approved health insurance plan by 2014. The court should rule that this individual mandate is unconstitutional. To do otherwise would give Congress almost unlimited power. The federal government argues that three provisions of the Constitution -- the commerce clause, the tax clause and the "necessary and proper" clause -- authorize the health care mandate. The commerce clause gives Congress authority to regulate interstate commerce. Since the 1930s, Supreme Court decisions have interpreted the commerce clause broadly . But every previous case expanding the commerce power involved some sort of "economic activity," such as operating a business or consuming a product. Failure to purchase health insurance is neither commerce nor an interstate activity. Indeed, it is the absence of commerce. If Congress could use that clause to regulate mere failure to buy a Page 97 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 98 of 134 Group Three Paper product on the grounds that such inaction has an economic effect, there would be no structural limits to its power. Any decision to do anything is necessarily a decision not to do something else that might have an economic effect. If I spend an hour sleeping, I thereby choose not to spend it working or shopping. As the lower court decision in this case explained, the government's position "amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life." Defenders of the insurance mandate claim that health care is a special case because everyone eventually uses it. But this argument relies on shifting the focus from health insurance to health care. A similar rhetorical ploy can justify any other mandate, including even the "broccoli purchase mandate." Not everyone eats broccoli. But everyone participates in the market for food. Similarly, a mandate requiring all Americans to purchase a car can be justified because virtually everyone participates in the transportation market. The government also claims that health care is different because producers are sometimes required to give free emergency services to the uninsured. But why is this fact constitutionally relevant? The answer seems to be that failure to buy insurance thereby has adverse economic effects on producers. Put that way, failure to buy health insurance turns out to be no different from failure to buy any other product. Any time someone fails to purchase any product, producer profits are lower than they would be otherwise. The government's tax-clause argument is similarly flawed. It asserts that the individual mandate isn't really a restriction on freedom, it's just a tax; violators are forced to pay a fine. If this logic is correct, it would justify any mandate enforced by a monetary fine, whether it be for broccoli, a car or anything else. Every lower court to have considered this constitutional issue has ruled that the mandate is not a tax but a penalty. As President Barack Obama acknowledged in 2009, "for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase." Finally, the government relies on the clause that gives Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution" other powers the Constitution grants it. The federal government argues that the insurance mandate is a "necessary" element of its regulation of the health care market under the commerce clause. The court has previously defined "necessary" broadly as anything that might be "useful" or "convenient." But even if the mandate is necessary, it is not "proper." The court has previously ruled that these are two separate requirements and both must be met. What makes a federal law "proper"? At the very least, a proper law cannot depend on a rationale that gives Congress virtually unlimited power. As James Madison said: "Whatever meaning this clause may have, none can be admitted that would give an unlimited discretion to Congress." If the "necessary and proper" clause allows Congress to adopt the individual mandate, the same logic would justify almost any other mandate. Virtually every mandate has some economic effect and could be portrayed as a "useful or convenient" way to regulate some market. A broccoli mandate could be defended as an effort to regulate the market in food. The threat to liberty raised by this case isn't just theoretical. Many industries would be happy to lobby for laws requiring people to buy their products, and Congress has a long history of enacting special-interest legislation.

Individual mandate a fiasco; recent policy changes make law unrecognizable and prove ObamaCare unfeasible

WSJ March 12, 20 14 (http://online.wsj.com/news/articles/SB10001424052702304250204579433312607325596 )

ObamaCare's implementers continue to roam the battlefield and shoot their own wounded, and the latest casualty is the core of the Affordable Care Act—the individual mandate. To wit, last week the Administration quietly excused millions of people from the requirement to purchase health insurance or else pay a tax penalty. This latest political reconstruction has received zero media notice, and the Health and Human Services Department didn't think the details were worth discussing in a conference call, press materials or fact sheet. Instead, the mandate suspension was buried in an unrelated rule that was meant to preserve some health plans that don't comply with ObamaCare benefit and redistribution mandates. Our sources only noticed the change this week. That seven-page technical bulletin includes a paragraph and footnote that casually mention that a rule in a separate December 2013 bulletin would be extended for two more years, until 2016. Lo and behold, it turns out this second rule, which was supposed to last for only a year, allows Americans whose coverage was cancelled to opt out of the mandate altogether. In 2013, HHS decided that ObamaCare's wave of policy terminations qualified as a "hardship" that entitled people to a special type of coverage designed for people under age 30 or a mandate exemption. HHS originally defined and reserved hardship exemptions for the truly down and out such as battered women, the evicted and bankrupts. But amid the post-rollout political backlash , last week the agency created a new category : Now all you need to do is fill out a form attesting that your plan was cancelled and that you "believe that the plan options available in the [ObamaCare] Marketplace in your area are more expensive than your cancelled health insurance policy" or "you consider other available policies unaffordable." This lax standard—no formula or hard test beyond a person's belief—at least ostensibly requires proof such as an insurer termination notice. But people can also qualify for hardships for the unspecified nonreason that "you experienced another hardship in obtaining health insurance ," which only requires "documentation if possible. " And yet another waiver is available to those who say they are merely unable to afford coverage, regardless of their prior insurance. In a word, these shifting legal benchmarks offer an exemption to everyone who conceivably wants one. Keep in mind that the White House argued at the Supreme Court that the individual mandate to buy insurance was indispensable to the law's success, and President Obama continues to say he'd veto the bipartisan bills that would delay or repeal it. So why are ObamaCare liberals silently gutting their own creation now? The answers are the implementation fiasco and politics. HHS revealed Tuesday that only 940,000 people signed up for an ObamaCare plan in February, bringing the total to about 4.2 million, well below the original 5.7 million projection. The predicted "surge" of young beneficiaries isn't materializing even as the end-of-March deadline approaches, and enrollment decelerated in February. Meanwhile, a McKinsey & Company survey reports that a mere 27% of people joining the exchanges were previously uninsured through February. The survey also found that about half of people who shopped for a plan but did not enroll said premiums were too expensive, even though 80% of this group qualify for subsidies. Some substantial share of the people ObamaCare is supposed to help say it is a bad financial value. You might even call it a hardship. HHS is also trying to pre-empt the inevitable political blowback from the nasty 2015 tax surprise of fining the uninsured for being uninsured, which could help reopen ObamaCare if voters elect a Republican Senate this November. Keeping its mandate waiver secret for now is an attempt get past November and in the meantime sign up as many people as possible for government-subsidized health care . Our sources in the insurance industry are worried the regulatory loophole sets a mandate non-enforcement precedent, and they're probably right. The longer it is not enforced, the less likely any President will enforce it. The larger point is that there have been so many unilateral executive waivers and delays that ObamaCare must be unrecognizable to its drafters, to the extent they ever knew what the law contained.

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Neg Ground

ObamaCare mandate: most sensible, cost-effective, and just approach to health care

th Gruber, Jonathan . March 26 , 20 12 (MIT Economist, http://www.thedailybeast.com/articles/2012/03/26/why-the-individual- mandate-is-effective-and-efficient.html)

Last week marked the second anniversary of the most important piece of social policy legislation of the past 50 years: the Affordable Care Act (ACA). Yet even as the second anniversary passes, the fight over this legislation continues, whether in Congress, in public opinion, or in the Supreme Court, which will decide this week on the constitutionality of one of the centerpieces of the ACA: the individual requirement to purchase insurance or “ mandate .” Much of this debate has been driven by both the complicated nature of the ACA and the deliberate misinformation from opponents of the legislation . To make this issue clearer to the general public, I have written a graphic novel that describes what is wrong with our U.S. health-care system and how the ACA will address those problems. I hope that this format “illustrates” these important issues in a way that makes them compelling to those interested in understanding the ACA—in particular in terms of critical issues like the individual mandate. Most Americans get their health insurance from their employer or the government, through its Medicare and Medicaid plans. For those Americans, insurance works reasonably well: premiums are rising faster than we would like, but otherwise individuals are generally well insured against any medical catastrophe that might befall them. Not so for those individuals who have to rely on insurance purchased on their own in the “non-group” market. These individuals face a market where coverage is expensive and unreliable–which can lead to medical bankruptcy if individuals get an expensive illness. While it is fortunate that most Americans don’t have to face this market, it also results in a lack of appreciation for the important law that will fix these problems: the Affordable Care Act (ACA). In my book I introduce the fictional character, Carlos, who has non-group insurance— and has a heart attack. Carlos is in real trouble. He will typically pay a very large share of his medical bill—or the whole thing if this heart attack reflects a pre- existing condition. His insurer may pay these bills, but it is likely to simply drop Carlos before he gets sick again. It turns out that individuals like Carlos don’t have insurance in any meaningful sense. And it is not just individuals like Carlos who face this ugly market: anyone who might lose their job, or have an employer that stops offering insurance, can find themselves facing this nightmare. I show this happening to Anthony, who has good employer-provided insurance but loses that coverage and has to face the awful non-group insurance market as a result. This is a real threat to many with employer-provided insurance: the share of employees covered by employer-sponsored insurance has declined by more than 10% over the past decade. How can we fix this problem? A number of well-meaning states tried to do so in the mid-1990s. They passed regulations that outlawed discriminatory practices by insurers, like pre-existing conditions exclusions and charging sicker individuals higher prices. The result was a disaster. Insurers were afraid that if they had to charge everyone the same price, but that individuals could wait until they were sick to buy insurance, that this would become a money-losing business. So some insurers exited the markets, while the ones that stayed charged very high prices to offset this “adverse selection.” Non-group insurance markets in these states were not saved, but rather largely destroyed. For example, in my home state of Massachusetts, by 2006 a non-group policy for a single individual cost $8,000 per year, twice the cost of an employer policy for an individual. Into this chasm stepped the hero of our story, Governor Mitt Romney , and his plan for health-care reform in Massachusetts. He realized that the solution to this problem was to ensure broad participation insurance markets by both the healthy and the sick. So he imposed an individual mandate, a requirement on Massachusetts residents to purchase insurance coverage. But he also realized that it would be both inhumane and impolitic to mandate that individuals purchase insurance they could not afford. For this reason he also provided for subsidies for individuals living below three times the federal poverty line to make insurance affordable. This “three-legged stool”—banning discrimination in insurance markets, mandating that individuals purchase insurance, and providing low-income subsidies for insurance purchase—became the basis for both our reform in Massachusetts and for the Affordable Care Act (ACA). The enormous success of health-care reform in the almost six years since its passage in Massachusetts can make us more confident that this three-legged stool will work for the nation as a whole. We have covered about two-thirds of uninsured Massachusetts residents, and have lowered the premiums in the non-group market by half relative to national premium trends. And we have done so with broad public support. Moreover, this reform succeeded without interfering with the employer-sponsored insurance market that works for most of our residents: employer-sponsored insurance coverage has actually risen in Massachusetts, while falling sharply nationally, and the premiums for employer-sponsored insurance rose no faster in Massachusetts than they did nationally. This was all possible because the individual mandate ended the “death spiral” of trying to obtain fairly priced insurance by just forcing insurers to charge everyone the same price. The bottom line is that we can’t have fairly priced insurance for the healthy and sick alike without the broad participation that is guaranteed by the mandate. The mandate is the spinach we have to eat to get the dessert that is fairly priced insurance coverage. There have been a variety of complaints about the individual mandate , but they are unfounded. It is important to remember that the vast majority of Americans will be unaffected by the mandate because they are already covered ; indeed, when individuals are informed of this fact, public support for the mandate almost doubles. Moreover, no one will be forced to buy insurance that they cannot afford; the mandate includes an “affordability exemption” that excludes any individual who cannot find insurance for less than 8% of their income. In Massachusetts we have a similar exemption and we have had no public outcry about the mandate and only a very small number of appeals of mandate penalties. Finally, some claim that the mandate is unconstitutional. While this will ultimately be decided by the Supreme Court, the vast majority of legal scholars who have weighed in on this topic, both liberal and conservative, have said that this is a laughable argument. Former Reagan Solicitor General Charles Fried went so far as to state that he would “eat his [kangaroo skin] hat” if the mandate is found unconstitutional. All individuals will require health care at some point in their lives, and that health care will most often be unaffordable for the typical family . Even if families can’t pay for their health care, however, hospitals are required by law to deliver it, and those costs (amounting to more than $40 billion per year) are passed on in the form of higher insurance premiums. Moreover, by choosing to be uninsured until they are sick, healthy uninsured individuals impose higher costs on all those who buy insurance. Therefore, the decision to remain uninsured clearly impacts interstate commerce and can be regulated under the Constitution’s commerce clause. If the individual mandate is struck down by the Supreme Court or otherwise undermined by politicians, then the ACA becomes a much less effective law, covering only half as many uninsured, according to the Congressional Budget Office (CBO), and leading to premiums that are 20% higher. But it doesn’t become a much cheaper law; the CBO estimates that it will still cost three quarters as much even though it only does half the lifting. Moreover, alternatives to the individual mandate aren’t effective, nor are they any more politically feasible. The bottom line is that the individual mandate is necessary for ending discrimination in health-insurance markets, the key accomplishment of health-care reform . It won’t apply to the vast majority of Americans, who already have health insurance, and it will not force anyone to buy insurance that they cannot afford. And with no realistic alternative, removing the mandate will result in a health-care reform that is less effective but without much government savings. Page 99 of 134

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No precedence to deem Congress expansive, creation of new doctrine

nd Crawford , Jan. July 2 , 20 12 . CBS News Chief Political and Legal Correspondent.

Some informed observers outside the court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the president. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law. There was no doctrinal background for the Court to fall back on - nothing in prior Supreme Court cases - to say the individual mandate crossed a constitutional line. The case raised entirely new issues of power. Never before had Congress tried to force Americans to buy a private product; as a result, never before had the court ruled Congress lacked that power. It was completely uncharted waters. To strike down the mandate as exceeding the Commerce Clause, the court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the president' health care law unconstitutional. "Accepting the government's theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the federal government."

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Abortion

The debate community has experienced rigid polarization in the last two years. A cursory glance at the College Policy Debate group shows that debate is harshly divided between proponents of “traditional policy debate” and “non- traditional debate” 1. Directors of Forensics from all sides of the discussion have recognized that our community’s divide can may threaten the integrity of programs – it ended Ft. Hays in 2008, brought violent media coverage and criticism to the 2014 CEDA Champions, and threatens funding for programs who become publicly caught in the crosshairs.

The authors of this topic area paper believe that debate functions best as a united community, rather than a divided house. At the same time, we recognize the risks inherent in forming social alliances which come at a cost for traditionally marginalized groups. If a bridge across the debate community can work, it balances the drive for unity with respect for diversity.

We see abortion as that bridge. Because abortion is an intensely personal issue, it invites arguments and argument styles relating to embodiment, identity, and personal agency. Control over basic bodily integrity – safety, danger, and involuntary regulation by others – is the fundamental question for debaters interested in identity debates. At the same time, abortion has a rich debate at the policy and legal levels. It’s ambiguous status following the controlling Supreme Court decision in Planned Parenthood v Casey has led to rich debate among policymakers and legal scholars over the scope, legitimacy, and effectiveness of regulating pregnancy.

Whether the topic is passive voice or active voice, abortion is optimally suited to providing common ground for traditional and nontraditional debaters to engage a common literature because the personal question is the political question, and vice versa.

Though we believe the foundational unity of the debate community to be the single biggest reason to include abortion in the topic, we recognize a plurality of advantages from abortion’s presence in the topic. We isolate four more besides argument diversity for quick review.

Recruitment

A selling point of the topic paper was that it engaged debates that are typically familiar to novice debaters. Every debate veteran knows that when people first hear about debate, they ask if you debate one of three issues: pot, the death penalty, and abortion.

Marijuana offers an accessible policy opportunity for novice debaters to engage in traditional policy debate, but lacks the rich and intrinsic access to literature outside of that limited scope. The wealth of critical literature discussing abortion – both at the policy level and the personal level – means that abortion has a normative draw for young debaters and provides an accessible introduction to philosophical debate arguments.

1 We use the term “non-traditional debate” for its brevity as shorthand. We recognize the limits of the term “non-traditional debate” and do not use it in an attempt to mask difference or homogenize the variety of approaches to debate that fall outside the scope of “traditional” debate. Page 101 of 134

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Mechanism Debate

Because the most recent United States Supreme Court decision about abortion left many questions unanswered, abortion policy has become a game of “how far can a state go in erecting hurdles to abortion access before the hurdles become unconstitutional?” 2

As a result, the mechanism debate is excellent. The abortion debate is a legal game of inches, and every inch is intricately analyzed and vetted in the academic literature. Abortion is unique in the depth of mechanism debate discussing the exact degree to which abortion should be regulated. To the best of our knowledge, this analytical precision is absent from other topic areas. Even the justifications for particular topic mechanisms are highly contested – for example, Justice Ginsburg was a sharp critic of Roe v Wade despite its protection of abortion, because it found a right to abortion based in the legal doctrine of “privacy” rather than “sex equality” or “due process”.

As a result, affirmatives have robust literature defending every detail and portion of their plans – from defenses of justifications (kritiks generally and reps kritiks specifically) to defenses of implementation details (narrow PICs and process CPs) - while negatives have the same degree of research criticizing affirmative plans (and justifying various reps kritiks and PICs). The abortion mechanism literature provides an opportunity for some of the best debates college policy has ever seen.

Timely – but not too timely

A major issue with recent past topics is that they have been “too timely” – changes during the year complicated uniqueness questions, eliminated core affirmatives, or were generally unstable to such a degree that neither side had solid argumentative ground. There is zero risk the affirmative happens during the season. State and national legislatures and courts are aggressively moving to impose criminal restrictions and regulations on abortion providers and women seeking abortions. The political tide is against pro-choice advocates.

The same cannot be said of the other core “novice recruitment” area (marijuana) where the federal government has enjoined enforcement of drug policy while state governments already taking steps towards decriminalization.

2 http://www.newsweek.com/abortion-case-supreme-court-may-find-hard-refuse- 226310?piano_t=1 Page 102 of 134

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Topicality Terms

Terminology Use

The literature is remarkably consistent in the legal terminology regarding abortion. Both pro-choice and anti-choice advocates discuss abortion’s legal component using the nouns “restriction” and “regulation”. The most common three phrasings (which we suggest for the topic as object wordings) are:

• “restrictions on access to abortion services” • “restrictions on abortion providers” • “restrictions limiting abortion”

A fourth, comparably common term used is “regulation”. That phrase could easily substitute in:

• “regulations on access to abortion services” • “regulations on abortion providers” • “abortion regulations”

A thorough survey of the various literatures on this topic shows these terms are consistently used. Specifically, these terms are used in legal authority 1, legal literature 2, policy wonk discussion 3, medical literature 4, solvency advocates 5 and case neg authors 6.

1 The controlling abortion caselaw – Planned Parenthood v Casey defines the constitutional standard for abortion law in terms of “undue burdens” on “women’s access” [caselaw cite]. It also uses the term “regulation” to refer to the legislation that was the subject of the appeal. 2 See https://www.guttmacher.org/statecenter/updates/2013/statetrends42013.html (noting the legal term of art “TRAP” laws, referring to “targeted regulations of abortion providers”) 3 See, for example, http://www.nytimes.com/2014/01/04/us/women-losing-access-to-abortion-as-opponents-gain- ground-in-state-legislatures.html (surveying policy experts regarding diminished “access” to abortion. 4 See this large-N study in the American Journal of Nursing of abortion laws, characterizing them as laws which “restricting women’s access to safe abortion services” http://journals.lww.com/ajnonline/Fulltext/2014/04000/More_States_Limit_Access_to_Abortions.16.aspx ) 5 See http://www.prochoiceamerica.org/what-is-choice/fast-facts/young-women.html (critiquing “restrictions on young women’s access to abortion”). 6 http://www.freerepublic.com/focus/news/2902473/posts (lauding development of “restrictions” on access to abortion) Terminology/Stem Interactions

There is substantial debate in the CEDA Forums and College Policy Debate Facebook group over the scope of the actor (exclusively federal vs state vs state and local vs all three). This paper chooses not to wade into that debate, and phrases resolutional suggestions accordingly.

The legal terminology involved in the abortion debate is adaptive to every resolutional stem which I can find suggested. Each variant of the topic mechanism is bolded. Page 103 of 134

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• [Government Actor] should decriminalize one or more of the following: marijuana, abortion, prostitution, etc. • [Government Actor] should eliminate criminal restrictions on one or more of the following: marijuana, abortion, prostitution, etc. • [Government Actor] should eliminate criminal restrictions on access to one or more of the following: marijuana, abortion, prostitution, etc. • [Government Actor] should eliminate criminal regulations of one or more of the following: marijuana, abortion, prostitution, etc • [Government Actor] should eliminate laws criminalizing one or more of the following: marijuana, abortion, prostitution, etc • [Government Actor] should decriminalize nearly all activities in one or more of the following: marijuana, abortion, prostitution, etc

A final terminology consideration the topic committee should consider is whether or not it wants to use the term “abortion services” (which more clearly includes regulations on physicians which provide abortions, but arguably de- emphasizes women receiving abortions) or “abortion” (which clearly emphasizes women receiving abortions, but is less clear doctor regulations).

This paper suggests the latter: using the term abortion. The community has strongly debated micromanaging resolutional terminology and appears at a consensus that we should trust debaters and the community to establish the topical parameters of what should and should not be included in the resolution. That rings true of this topical area as well - both for simplicity, and to allow robust topicality debates we urge the sub-area be termed “abortion”. Actor Considerations

Criminal penalties for women seeking abortion 7 and abortion service providers are codified at the state and local level – federal legislation restricting or conditioning access to abortion does not exist. Federal engagement with criminal abortion law occurs almost exclusively in the judiciary, which is the case with several other areas in the “must include” and “must consider” sections (for example, physician assisted suicide and online gambling, respectively).

Insofar as the Court is drastically under-debated, a topic area such as abortion which requires debaters to become familiar with the workings of this branch is valuable because it exposes debaters to previously untapped literature. A topic area which included several primarily-legislative areas (organ sales, marijuana) and several primarily-judicial areas (abortion, physician assisted suicide) provides an effective educational balance for debaters. If the topic mechanism includes government actors beyond the federal government (such as states and municipal governments), then debaters also have the option to read legislative affirmatives.

7 The term for exclusively criminal regulations is “criminal abortion”. Here is an example of a state legislature codifying criminal penalties for abortion using that term; http://www.state.tn.us/tccy/tnchild/39/39-15-201.htm Passive Voice

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Abortion as a topic area is especially well suited to passive voice versions of the topic. Abortion involves an intensely personal choice, determining control over one’s own bodily integrity. Because almost every abortion restriction occurs at an individual level, plans on this topic area can smoothly make the switch from federal to personal. Suitable passive voice examples in which abortion is present include:

• Laws imposing criminal penalties for one or more of the following should be eliminated: marijuana, abortion, prostitution, etc • Laws criminalizing one or more of the following should be eliminated: marijuana, abortion, prostitution, etc • Criminal restrictions on one or more of the following should be eliminated: marijuana, abortion, prostitution, etc

The nature of abortion means many affirmative cases and case areas can able function as either policy cases or personal cases. For example, an affirmative whose plan was “The SCOTUS should find a fundamental right to abortion at any stage of pregnancy” could easily translate to “I have a right to abortion at any stage of pregnancy”.

Similar abortion affirmative areas also work comfortably within passive voice resolution (broad examples include: “We/I should not have to get parental permission to get an abortion”; “We/I should not be subject to trans-vaginal ultrasounds before abortion”; “We/I should not be forced into a waiting period before getting an abortion”; “We/I should not have to be ‘counseled’ about fetal pain before getting an abortion”).

Because abortion is essentially a question about personal agency, it has an established literature base that speaks specifically to passive voice versions of the topic. Criticisms and advocates from embodiment literature play an important role in the abortion debate (see specifically the race and gender sections of the kritik literature analysis), and guarantee affirmative and negative literature for both passive voice and policy versions of the topic.

Rich Literature with Intent to Define

Abortion is a particularly rich topic area in terms of topicality literature. Both pro-choice and anti-abortion advocates have a healthy discussion of the scope, type, and extent of abortion regulations in the United States. Pro-choice authors keep accessible lists of regulation type and frequency in order to track and criticize increasingly draconian regulations s3. Anti-abortion authors have similarly thorough documentation of regulations in order to laud successes and attempt to build on them in other states4.

The literature defining the scope of abortion regulations sounds like it was written for debate. One major analysis of abortion restrictions is an optimal, numerically limited topicality card with intent to define: “A major abortion restriction falls into one of the following 10 categories”, and then provides the equivalent of a topical caselist”5. This

3 See for example, https://www.guttmacher.org/statecenter/updates/2013/statetrends42013.html 4 See, for example, http://www.freerepublic.com/focus/news/2902473/posts which lists types of regulation, and then notes the number of states with such a regulation. Quantitative documentations of regulations offers literature supporting size topicality (T- Substantial or this year’s equivalent). For example, negatives could read evidence that a regulation only exists in 10 of 50 states, and argue that is not substantial enough to meet the topic. 5 Guttenmach (For example, “ Four types of restrictions dominated the legislative scene during 2013 […]legislation in these four categories accounted for 56% of all restrictions enacted over the year.”) Page 105 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 106 of 134 Group Three Paper literature also compares regulations by absolute frequency, relative growth rates, and year-by-year breakdown6, enabling diverse debates about topicality to develop over the course of the year.

The sheer zeal of all sides to document successes and demand help for potential failures results in regular, freshly- produced topicality literature discussing the evolving regime of regulations in the states and potentially the federal government7. This literature outlines clear, predictable, and evidence driven brightlines for the limits of the topic. In that sense, abortion is unique in both the quantity and quality of documentation surrounding legal regulations.

The literature is also evenly balanced because abortion jurisprudence is far from settled. An article in the Spring 2014 Indiana Law Journal sums up the state of abortion jurisprudence in the United States8:

In Planned Parenthood of Southeastern Pennsylvania v. Casey , the Court reaffirmed Roe v. Wade 's “recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” But Casey also reaffirmed and even strengthened the “principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child .” Unfortunately, the U.S. Supreme Court's current abortion jurisprudence is not entirely clear with regard to whether and to what extent it is constitutionally permissible for a state to criminally prosecute a pregnant woman for causing injury to her own fetus. Casey stands for the proposition that states may not impose an undue burden on a woman's right to obtain a previability abortion from a healthcare professional, but the Court's abortion cases do not directly address the question of whether a woman has any sort of fundamental right to take actions to abort a pregnancy on her own or to take other actions during pregnancy that risk harm to the development of the embryo or fetus she carries.

This ambiguous legal status incentivizes states to enact increasingly aggressive restrictions of abortion – briefly wait to see if the laws lose to a Court challenge – and then build on them to enact further restrictions. A graphic overview of state criminal restrictions on abortion illustrates the growth of restriction and regulation, making this topic area a timely subject for debate.

6 Ibid. 7 http://www.huffingtonpost.com/2014/01/28/no-taxpayer-funding-for-abortion-act_n_4681743.html 8 Murphy, Andrew. “A Survey of State Fetal Homicide Laws and Their Potential Applicability to Pregnant Women Who Harm Their Own Fetuses”. Indiana Law Journal. Spring 2014. 89 Ind. L.J. 847. Westlaw. Page 106 of 134

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Specific Affirmatives

The scope of this section is limited to outlining affirmative case areas for expediency. Discussions of potential affirmative advantages and predictable negative literature are occur later in the document under those respective headers. Abortion Bans

The heart of this topic area is eliminating abortion bans. These criminal regulations infringe most directly and most substantially on the rights of women to access abortion. Criminal abortion bans are neither rare nor minor – “fourteen states have laws providing near total criminal bans on abortion” while many more have less draconian though considerable criminal bans on abortion.9

These laws often ban abortion based on a particular quality, such as fetus viability, fetus age (X number of weeks since pregnancy), first fetal movement (called “quickness” in the literature), and various fetal developments (pain, heartbeat, and brainwaves). Both the physicians who perform abortions in violations of these bans and these women who receive those abortions are subject to criminal prosecution for anything from misdemeanor assault to manslaughter to homicide, depending on the state10.

Other states create de facto abortion bans using “fetal homicide laws” – laws which criminalize killing the fetus inside a pregnant mother by a third party. For example, if a drunk driver crashed into a pregnant mother and killed both her and the fetus, fetal homicide laws enable the state to bring homicide charges on behalf of the fetus as well as the mother. While some state fetal homicide laws do carve out “maternal exceptions” which prevent prosecution of the pregnant mother herself under these laws, “many states with fetal homicide statutes have not explicitly exempted pregnant women from prosecution under the statutes”11. This creates a backdoor ban on abortion because “[a]s a result, women in some of these states may now be at risk for criminal prosecution because some prosecutors have proved willing to advocate for a broad interpretation of the statutes”12.

Affirmative plans include:

o Eliminating Fetal Homicide Laws o Eliminating all explicit abortion bans o Limiting abortion bans to third trimester (“partial birth abortions”) o Limiting abortion bans to particular sexes (retaining female infanticide laws) o Limiting abortion bans on other grounds (fetal pain, fetal movement, fetal heartbeat)

9 Id. See 14, supra. 10 Murphy, Andrew. “A Survey of State Fetal Homicide Laws and Their Potential Applicability to Pregnant Women Who Harm Their Own Fetuses”. Indiana Law Journal. Spring 2014. 89 Ind. L.J. 847. Westlaw. (quoting specific state statutes identifying criminal penalties for the above). 11 Ibid. 12 Ibid. Page 109 of 134

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o Changing the starting point for the “abortion clock” from “last period” 13 .

Maternal Restrictions

States have also moved to codify criminal penalties for various maternal conduct during pregnancy that could lead to abortion. Affirmative plans in this area

---Suicide In a turn that intersects with another topic area (physician assisted suicide), women can be subject to criminal prosecution for unsuccessfully committing suicide if it results in the death of the fetus 14 . Appellate courts affirmed the constitutionality of a murder prosecution against Bei Bei Shuai, an Indiana woman who attempted chemical suicide unsuccessfully, though she lost the fetus as a result. The decision in Shuai v State remains controlling law to this day, with an undisturbed precedential value. The dissenting appellate judge notes accurately a fact conceded by the majority opinion: that their interpretation “might lead to a slippery slope whereby the feticide statute could be construed as covering a full range of a pregnant woman's behavior” 15 .

---Self-abortion Criminal abortion regulations further remove female control over pregnancy by prescribing restrictions against self- performed abortions. Women can be subject to criminal penalties for personally ending their pregnancies. Andrew Murphy gives a famous example from the Florida Supreme Court who affirmed the principle of law underlying Florida’s currently existing Criminal Abortion Act.

In Ashley v State, where teenager Kawana Ashley was prosecuted for murder and manslaughter after shot herself in the stomach with a .22 because she “believed she would be unable to obtain a legal abortion”, the Florida Supreme Court ruling seemed to acknowledge that the legislature could have criminalized Ashley's conduct if the legislature had enacted a criminal abortion or fetal homicide statute that unambiguously targeted pregnant women who harm their own fetuses” 16

---Drug Use Women – “particularly poor women of color” have been “criminally prosecuted for using drugs during their pregnancies”. Though legal substances cause significantly more harm to fetuses than criminalized substances, standing law prescribes that women can face charges from child neglect to child abuse to homicide for drug use

13 Fetal age determinations can vary, and an increasingly popular conservative metric is the date of the last menstrual period of the mother. These “life begins at menstruation” laws create a medical chilling effect by threatening physicians with criminal penalties for performing abortions on ambiguously aged fetuses. See http://www.dailykos.com/story/2012/04/13/1083067/- Jan-Brewer-signs-life-begins-at-menstruation-bill-the-most-draconian-anti-abortion-law-so-far# 14 Ibid at 15. See generally the discussion of Bei Bei Shuai. 15 Ibid. 16 For those interested, the legal discussion around Ashley v State requires a moderate familiarity with legal concepts. The decision turned on the existence of a Common Law prohibition against prosecuting mothers under fetal homicide statutes. The Court had to decide if such a prohibition existed and if so, whether the Florida legislature intended to eliminate that Common Law prohibition. The Court found that the law as phrased did not eliminate the Common Law prohibition, but acknowledged that the legislature was capable of doing so in an amended statute. In that sense, the decision is standing jurisprudence supporting criminal laws prohibiting self-abortion. Page 110 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 111 of 134 Group Three Paper during their pregnancies. For example, the Supreme Court of California affirmed the conviction in Whitner v State, where a mother “pled guilty to criminal child neglect after she gave birth to a baby with cocaine metabolites in its system”, holding that “the plain meaning of ‘child’ as used in [the child endangerment] statute includes a viable fetus” 17 . The decision in Whitner was the basis of a similar decision six years later in McKnight v State, where the same Court affirmed a “twenty year prison sentence” of “homicide by child abuse in connection with a stillbirth” caused by “McKnight’s use of crack cocaine during her pregnancy”. South Carolina is not unique in its criminal prosecution of mothers who use illegal substances that result in the termination of pregnancy. Other “states prosecute new mothers for in utero drug exposure on criminal charges ranging from ‘chemical endangerment’ to ‘assault with a deadly weapon’.” 18

Sale and Research Abortion intersects with a second topic area on the “must include” list – organ and tissue sales. In an attempt to further criminally restrict abortion, states have criminalized the sale of fetal tissue and stem cells resulting from abortions. Both sale and purchase of these tissue is illegal in these states 19 and is punishable – under the newest statute (2014 in Arizona) as a “class five felony” 20 with up to 25 years in jail. In the interest of brevity, this section will not reiterate the details of an inevitable portion of the discussion in the organ and tissue sales paper.

“Informed Consent” Laws

Perhaps better termed “state-mandated rape” 21 , these criminal laws require mothers to submit physically to ultrasounds of the fetus prior to abortion. The function of these laws is to intimidate, shame, or guilt women into calling their abortion off by evoking emotional reactions to the sight of their fetus 22 . The procedure itself might also function as a deterrent, as the idea of an involuntary trans-vaginal ultrasound performed by a stranger can be sufficient to intimidate already-pressured women.

States vary on the egregiousness of these laws (some states only require women to have the ultrasound; other states require women to have the ultrasound and look at the baby; still other states require women to have the ultrasound,

17 Ibid at 15. 18 Fox, Dov. “Interest Creep”. George Washington Law Review. April 2014. 82 Geo. Wash. L. Rev. 273. Westlaw. 19 List compiled by ibid. See Ariz. Rev. Stat. Ann. § 36-2302 (2014); 2011 Fla. Laws 3406; La. Rev. Stat. Ann. § 9:129 (2011); Me. Rev. Stat Ann. tit. 22, § 1593 (2012) ; Mich. Comp. Laws § 333.2685 (2013) ; Minn. Stat. § 145.422 (2012) ; N.M. Stat. Ann. § 24-9A-3 (West 2013) ; Okla. Stat. Ann. tit. 63, § 1-270.2 (West 2012) ; 18 Pa. Cons. Stat. Ann. § 3216 (West 2012) ; S.D. Codified Laws § 34-14-17 (2012) . 20 Ibid. 21 http://sfonline.barnard.edu/life-un-ltd-feminism-bioscience-race/transvaginal-sound-politics-and- performance/

22 Prior, Kimberly. “The Ultra Sound-Off: The Ultrasound Mandate Debate and A Litigator’s Guide to Overcoming Obstacles to a Woman’s Right to Abortion”. Suffolk Journal of Trial and Appellate Advocacy. 2013-2014 Issue. 19 Suffolk J. Trial & App. Advoc. 155.

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CEDA Wording Papers 2014-15 Decriminalization Topic Page 112 of 134 Group Three Paper look at the baby, and listen while the doctor describes its physical features in detail). All forms of the “informed consent” regulation have critics in the literature.

Violation of these statutes is punishable in some states by up to two years in jail and up to ten thousand dollars in fines per instance, and can be prima facie evidence of negligence in a civil suit 23 . While the latter is usually not considered part of the criminal law cannon, this particular type of legislation can be because it is codified in criminal statutes. These provisions are not civil law, but rather criminal law instructing civil courts how to interpret criminal convictions 24 .

Twenty seven states have enacted another type of informed consent law which govern physician conduct. These laws 25 make it a felony for a physician to perform an abortion if the physician does not defer the woman into a one- to-three day waiting period after her request 26 . These laws typically also require physicians to dispense state- prescribed medical information which negatively or inaccurately characterizes the nature and effects of abortion prior to actually performing the procedure.

Sex-race-ability prohibitions.

An increasingly popular trend among conservative states is to prevent abortions whose purpose can be “reasonably inferred” to be “based on the sex or race” or ability-status of the child 27 . Though these types of prohibition seem intuitively appealing to the social left, they are often deployed as pretext for otherwise criminally limiting women’s access to abortion with little interest in the actual welfare of the woman, child, or broader group in question. Because of their intuitive leftist feel, there are defenses and criticisms of sex-race-ability specific prohibitions from across the political spectrum 28 Parental Involvement

23 Other penalties are listed in state criminal codes here: Id.; see also La. Rev. Stat. Ann. § 40:1299.35.2 (2008) (requiring physician to perform ultrasound prior to abortion and show and describe image to woman); Tex. Health & Safety Code Ann. § 171.012 (West 2010) (requiring physician to perform ultrasound prior to abortion and show and describe image to woman); Wis. Stat. § 253.10 (2013) (same). Seven states require a physician to perform an abortion and offer the woman an opportunity to view the image, though viewing it is not mandatory. See Ala. Code § 26-23A-4 (2009) (requiring performance of ultrasound but not requiring woman to view); Ariz. Rev. Stat. Ann. § 36-2301.02 (2009) (same); Fla. Stat. Ann. § 390.0111 (West 2007) (same) ; Ind. Code Ann. § 16-34-2-1.1 (West 2007) (same) ; Kan. Stat. Ann. § 65-6709 (West 2002) (same) ; Miss. Code Ann. § 41-41-34 (West 2007) (same) ; Va. Code Ann. § 18.2-76 (2009) (same) . 24 A nuanced discussion of this distinction is available in the above-cited article. 25 Twenty six states have waiting period laws according to https://www.guttmacher.org/statecenter/updates/2013/statetrends42013.html 26 Ibid. 27 Fox, Dov. “Interest Creep”. George Washington Law Review. April 2014. 82 Geo. Wash. L. Rev. 273. Westlaw (indicating that these statutes are punishable as felonies in six different states).

28 See e.g. http://www.guttmacher.org/pubs/gpr/15/2/gpr150218.pdf for a leftist criticism of sex-selective abortion bans. Page 112 of 134

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Thirty nine states have criminal “ provisions designed to make it more difficult for minors to obtain abortions” without parental consent and involvement. These laws provide criminal penalties for both the minor mother and the physician who performs an abortion on a minor without documentation proving parental consent. The process to prove compliance, authenticate documentation, and maintain records of parental consent can also be complicated, occasionally deliberately. States such as Oklahoma have “ made the process for complying with the law more cumbersome by adding requirements such as documentation from parents proving parenthood” 29

29 Nash et al. "Laws Affecting Reproductive Health and Rights: 2013 State Policy Review". Guttmacher Institute. http://www.guttmacher.org/statecenter/updates/2013/statetrends42013.html Page 113 of 134

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Legal Doctrines

Though affirmative debaters are free to criticize particular regulations and restrictions on abortion, they may also choose to isolate and eliminate particular criminal law doctrines as well. Abortion jurisprudence and the criminal laws sanctioned by that jurisprudence rely on a variety of constitutional interpretations of criminal law. These doctrines include the existence of levels of fetal personhood 30 , the holding that states have an interested in protecting fetuses 31 , the holding that abortion rights are grounded in the personal right to privacy 32 , and the medical basis for determining the Constitutionality of particular restrictions 33 .

Topical affirmatives could declare contrary rules of law (for example, they could have the Supreme Court hold no compelling state interest in fetal welfare) and then invalidate all laws based on that justification. These affirmatives would derive advantages from the precedent set by the legal doctrine established by the affirmative. These affirmatives would follow the decriminalization model established by Roe v Wade which found that the right to privacy protects abortion procurement, and then invalidated all criminal statutes in violation of the newly established doctrine established by the Court.

These affirmatives are particularly well suited to guard against shifty PICs and kritiks because this literature defends the specific methodology of the affirmative – a defense of the doctrine as well as the policy action it produces. Here are several doctrines which have a literature base for advantages predicated on precedential value.

Involuntary Servitude (13th Amendment)

This literature argues that abortion constitutes a form of involuntary servitude within the meaning of the 13 th amendment. It notes the physically strenuous medical elements of abortion, and argues that those ought to be construed as “labor” 34 . In that sense, prohibiting women from accessing abortion forces them to do “labor” until they literally go into labor and have the child.

30 Fox, Dov. “Interest Creep”. George Washington Law Review. April 2014. 82 Geo. Wash. L. Rev. 273. Westlaw. 31 Ibid. See also the holdings in Planned Parenthood v Casey and Gonzales v Carhart 32 See the introduction to the holding in Roe v Wade 33 Forsythe, Clark. “The Medical Assumption at the Foundation of Roe v Wade and its Implications for Women’s Health”. Washington and Lee Law Review. Spring 2014. 71 Wash. & Lee L. Rev. 827

34 Sjoberg, Laura. “What are the grounds for the legality of abortion? The 13th amendment argument”. Cardozo Journal of Law and Gender 17(3) (2011): 527-550.

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This literature offers an insightful academic analysis of the intersection of race and gender, and examines the debate over state regulation of body integrity 35 . Debaters invoking the 13 th amendment engage a rich discussion of anti- Blackness and gender, and can find evidence supporting the same 36 .

Undue Burden Precedent Affirmatives who wish to avoid broad sweeping doctrinal changes could expand the scope of existing doctrines. The existing standard of review for criminal abortion laws is whether or not they constitute an “undue burden” on women seeking abortions, pursuant to Planned Parenthood v Casey, 505 US 833. Affirmatives could extend undue burden analysis to include the restrictions that they seek to invalidate.

st Free Speech (1 Amendment) As noted above, states have restrictions which compel physicians to provide particular information (such as pre- abortion ‘counseling’), to obscure particular information (such as criminal laws requiring physicians to emphasize negative medical information), and force women to encounter particular information (such as ultrasounds of fetuses). These restrictions arguably violate various portions of the 1 st Amendment which protect free speech and free assembly 37 .

Right to Contract (Article I, Constitution) Debaters who wish to take an economic approach to abortion jurisprudence can find literature which recasts sex as a form of contract between the two participants in which the government is prohibited from interfering 38 . This literature comprehensively analyzes the status of individuals having sex and seeking abortions, as well as suggesting benefits from considering sex as a form of mutual, inviolable agreement between legal equals 39 .

th Substantive Equality (14 Amendment) Finally, debaters can find an immense literature discussing abortion as a right prescribed by sex equality protections in the Constitution. This review is nowhere near thorough enough to fully outline the variety of legal approaches to sex equality and abortion, though we hope that the connection is intuitive enough to establish that such a literature base indeed exists. An example of a literature review on the subject can be found here 40 .

35 "GENDER DISCRIMINATION AND THE THIRTEENTH AMENDMENT" Alexander Tsesis. Columbia Law Review Vol. 112, No. 7.

36 See, for example, "Our Bodies, Ourselves" Touchstone/Simon & Schuster. 1992. http://www.amazon.com/The-New-Our-Bodies-Ourselves/dp/0671791761 (a black feminist analysis of the embodiment parallels between Jim Crow laws and abortion restrictions)

37 http://digitalcommons.law.yale.edu/fss_papers/170/ 38 Sex as Contract: Abortion and Expanded Choice; Feaver, Peter D.; Kling, Robert; Plofchan, Thomas K. Jr. 4 Stan. L. & Pol'y Rev. 211 (1992-1993) 39 http://books.google.com/books/about/Sex_and_the_Contract.html?id=TLeNDSujgtoC 40 http://www.uclalawreview.org/?p=4186 Page 115 of 134

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Restrictions on Providers Many major abortion regulations focus on imposing criminal penalties directly on the providers of abortion services rather than on the women seeking abortions. These restrictions are typically labeled with the term of art “TRAP Laws”, or “Targeted Regulations of Abortion Providers”. These laws are regularly criminal in nature 41 , increasingly popular among states 42 , and pose substantial access barriers to women seeking reproductive health services 43 . Affirmatives decriminalizing restrictions on abortion providers have literally dozens of “onerous and irrelevant licensing requirements targeting abortion clinics and providers” which could be eliminated 44 and 45 .

41 http://www.guttmacher.org/pubs/gpr/16/2/gpr160207.pdf 42 Ibid. 43 Ibid. 44 http://www.freerepublic.com/focus/news/2902473/posts

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Abortion Methods States are also criminalizing evolving medical technologies which could increase access to abortion and abortants. “Despite the fact that telemedicine is rapidly gaining acceptance as a way to expand access to health care”, in the last year alone “eight states moved to ban the use of telemedicine” for abortions. Since abortion can be performed by a physician, or it can be performed by taking a combination of clinically approved drugs (called “medication abortion”), a doctor need not be present for the actual procedure. Since medication abortions would rapidly expand inexpensive access to abortion, it has become “one of the most frequent targets of abortion opponents” 46 . Seventeen states in the last three years have implemented criminal restrictions on the provision of medication abortions. These restrictions include outlawing certain types of abortant medication, adding compliance hurdles for physicians and women, and outright banning medical abortion.

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Abortion Affirmative

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Inherency Though we recognize few teams read “inherency” as inherency anymore, establishing that the affirmative requires a substantial change from the status quo guarantees uniqueness 47 and a literature base for negative teams. This section will briefly establish that the United States is (unfortunately) moving towards increasing amounts of criminal abortion regulations at all levels of society. The three major sources of change with respect to abortion Public Opinion Public opinion increasingly favors restricting access to abortion or criminalizing it wholly. Berry 2014 (Susan, “CNN Poll: Most Americans Support Abortion Restrictions, Majority Oppose Taxpayer Funding of Abortions,” Brietbart, 7 March 2014, http://www.breitbart.com/Big-Government/2014/03/07/CNN-Poll-Most- Americans-Support-Abortion-Restrictions-Majority-Oppose-Taxpayer-Funding-of-Abortions) According to CNN, 27 percent of those surveyed said abortion should be legal in all circumstances, while 13 percent said the practice should be legal in most circumstances . However, 38 percent of those polled said abortion should be legal in few circumstances and 20 percent said it should always be illegal, leaving a total of 58 percent who said abortion should be restricted to few situations or always illegal. ¶ Most Americans have never supported taxpayer funding of abortion and, according to this survey, 56 percent remain oppose d and only 39 percent favor taxpayer funding of the practice of abortion .¶ However, the poll also found that 49 percent of Americans say women who receive government subsidies for health insurance should be able to obtain a health insurance plan that covers the practice of abortion, while 49 percent disagreed. State Governments The United States Supreme Court has created a legal vacuum giving states discretion in establishing abortion regulations – which they have overwhelmingly used to increase access barriers. Novack and Baker 2014 (Sophie Novack and Sam Baker, “Why Abortion-Rights Activists Should Fear the Supreme Court,” National Journal, 18 May 2014, http://www.nationaljournal.com/health-care/why-abortion-rights-activists- should-fear-the-supreme-court-20140518) Both sides agree the case would not present a clear opening for the Supreme Court to revisit Roe v. Wade—the landmark case that established a woman's right to have an abortion. Instead, the relevant case would be Planned Parenthood v. Casey, in which the Court said states can impose limitations on abortion as long as they don't create an "undue burden" to abortion access .¶ Casey was decided in 1992, and for two decades the Court has been largely mute on what constitutes an "undue burden ." The risk for abortion-rights advocates, then, is that the high court could say Texas's restrictions don't rise to that level— clearing the way for other states to erect hurdles as high or higher than the ones in Texas .¶ Those restrictions have already succeeded in dramatically limiting access to abortion in Texas.¶ When fully implemented in September, the law will ban abortions after the 20th week of pregnancy, limit drug-induced abortions, require doctors providing abortions to have admitting privileges at a hospital within a 30-mile radius, and require all abortions be performed in ambulatory surgical centers .¶ There were 44 abortion clinics in Texas in 2011. About 20 are open now, and before the law's final restrictions take effect in September, that number is set to drop to six .¶ Abortion-rights groups say the law obviously places an "undue burden" on women seeking abortions, but legal scholars aren't sure the court will see it their way. Congress Congress has taken action to restrict funding for abortion – zero chance they reverse course and decriminalize it.

47 Any politics links. Good heavens are there politics links. Page 119 of 134

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Culp-Ressler 2014 (Tara, “House Republicans Pass National Anti-Abortion Bill That Obama Has Already Promised to Veto,” Think Progress, 28 Jan 2014, http://thinkprogress.org/health/2014/01/28/3216351/house-passes-national- abortion/) On Tuesday, the House of Representatives officially approved HR 7, or the “No Taxpayer Funding for Abortion Act.” The measure, which would dramatically restrict insurance coverage for abortion services , is essentially dead-on-arrival in the Democratic-controlled Senate. President Obama has already announced his intention to veto the bill if it ever makes it to his desk. ¶ Nonetheless, abortion opponents in the House were committed to fast-tracking the legislation in the very first weeks of the 2014 session . At last week’s March for Life, the annual anti-abortion protest on the anniversary of Roe v. Wade, House Majority Leader Eric Cantor (R-VA) told the crowd that he is committed to HR 7 even though it faces an uphill battle in the Senate. “ The people’s House will stand for life. We will do everything in our power to make sure that our values and the sanctity of life are reflected in the law of the land,” Cantor said. ¶ Cantor’s Democratic colleagues, meanwhile, have been critical of the House leadership’s dogged pursuit of abortion restrictions at the expense of other legislative priorities. ¶ “Poll after poll shows that Americans want Congress to work on creating jobs, yet Republicans in Washington insist on wasting more time, energy, and taxpayer dollars on attacking women’s health,” Rep. Louise Slaughter (D- NY), the co-chair of the House’s Pro-Choice Caucus, said in a statement released before Tuesday’s vote. ¶ “Those who are promoting this…know it will not become law. It’s a messaging bill,” Rep. Dan Kildee (D-MI) said on the House floor on Tuesday afternoon. “ While we’re debating that, the House is not taking up unemployment insurance extension , which is not a messaging bill — it’s heat in the home, it’s keeping the lights on, it’s paying the mortgage, it’s putting food on the table for the children of the people in those homes.” ¶ Kildee proposed an amendment to HR 7 to address that issue, offering to replace the bill’s anti-choice provisions with an unemployment insurance extension for the 1.6 million Americans whose benefits have lapsed due to congressional inaction. Although 41 of his fellow Democratic representatives signed onto the measure, Republicans were unreceptive .

SCOTUS The Supreme Court is progressively less friendly to abortion over time. It recently affirmed a 20 week ban on abortion in Gonzales v Carhart 48 and is likely to only grow colder towards pro-choice advocates. Novack and Baker 2014 (Sophie Novack and Sam Baker, “Why Abortion-Rights Activists Should Fear the Supreme Court,” National Journal, 18 May 2014, http://www.nationaljournal.com/health-care/why-abortion-rights-activists- should-fear-the-supreme-court-20140518) "There is a sense that the current Supreme Court is less sympathetic to abortion rights than the Court that decided Planned Parenthood v. Casey, which was clearly less sympathetic than the Court that decided Roe v. Wade ," said

Jonathan Entin, an associate dean at the Case Western Reserve University law school. ¶ Justice Anthony Kennedy is the only member of the Casey majority who's still on the Court, and a ruling on Texas's restrictions would probably also come down to him. Legal experts feel confident that the other eight justices would split evenly along partisan lines .¶ Casey upheld several abortion restrictions, including a 24-hour waiting period and informed-consent requirements. Of the restrictions challenged in that case, only a spousal notification requirement was deemed an "undue burden." ¶ "Whether Texas will ultimately win is hard to say, but the restrictions Texas has adopted are ones that might have a chance of being upheld on the basis that they don't explicitly prohibit abortion . They impose a lot of restrictions and regulations that a fair number of abortion clinics can't satisfy," Entin said. ¶ And the law's supporters believe the Court will land on their side .¶ "For those in the public square who say we shouldn't regulate abortion—they're dead wrong," said Ovid Lamontague, general counsel of Americans United for Life, a law and policy organization that worked on parts of the Texas legislation. "As current law exists, states have the ability—and I would say the duty—to regulate abortion." ¶ Presently, states have taken varying approaches to restricting abortion, with varying results in the courts. The result is a patchwork of inconsistent rules across the country : If a lower court strikes down or upholds a particular state's restrictions, the result is only binding within that court's jurisdiction. ¶ But if the Supreme Court puts its stamp of approval on Texas' regulations—or any others—it would offer a road map of legally sound abortion restrictions that governors and state legislatures could adopt with little fear of seeing their

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laws overturned by the legal system .¶ Proposals similar to Texas's legislation have passed or are being considered in other states, including Alabama, Wisconsin, Mississippi, Louisiana, and Missouri. And even more states—Arizona, Indiana, and North Dakota, among them—have passed measures cracking down on abortion in other ways. Some of those efforts are tied up in legal battles, but the states' decision to pursue them signals that they might be among the first to take up their own versions of Texas' restrictions.

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Advantages –

Please note that the advantages listed here are not dispositive of the literature discussing the potential benefits of decriminalizing abortion. We merely represent a limited cross-section of potential affirmative advantage areas in order to demonstrate that this topic area can comfortably sustain a season of debate. Precedential Advantages This section has heavy overlap with the ‘legal doctrines’ section outlined above, which outlines the effects of adopting various interpretations of law. In an effort not to duplicate that section’s work, this section will limit its scope to citing literature demonstrating the internal link between establishing legal precedent and the spillover effect which can affect policy decisions.

These advantages afford debaters the opportunity to learn about the lasting effect of precedent as they debate the way in which precedent controls future decisionmaking49. Privacy justifications dominate the legal precedent justifying the right to abortion in the United States, and are heavily criticized across the literature50. The equal protection literature is51 especially52 rich53.

State legislatures have consistently responded to the precedent set by the federal government with aggressive modeling. For example, after the most recent SCOTUS decision on abortion – Gonzales v Carhart – dozens of states implemented laws comparable to the one affirmed in the decision54.

International Law Debaters are not limited to domestic advantages, as customary and codified international law increasingly reject criminalizing abortions. There is a “growing recognition by international human rights bodies that criminalisation of abortion leads women to obtain unsafe abortions, threatening their lives and health” 55 , which .has led to “the striking expansion of international and regional human rights standards and jurisprudence that support women's human right to abortion” 56 . These laws are readily documented online and available for debaters as internal links to broader discussions of international law 57 .

49 James Spriggs and Thomas Hansford , Professors of Political Science, at the University of California at Davis, “Explaining the Overruling of U.S. Supreme Court Precedent,” Journal of Politics, November, 2001 , http://www.law.berkeley.edu/institutes/csls/precjopfinal.pdf 50 See e.g. Gilreath, Shannon. Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory. Women’s Rights Law Reporter. 2008 51 West, Robin. What Roe v. Wade Should Have Said, edited by Jack M. Balkin. 2005. pg. 256-258

52 Kay , Julie. “IF MEN COULD GET PREGNANT: AN EQUAL PROTECTION MODEL FOR FEDERAL FUNDING OF ABORTION UNDER A NATIONAL HEALTH CARE PLAN” Brooklyn Law Review. Spring 1994 . 60 Brooklyn L. Rev. 349 53 Equal protection is not without its critics as a doctrine, even among feminists. See for example, Mentone, Kristina, “When Equal Protection Fails: How the Equal Protection Justification for Abortion Undercuts the Struggle for Equality in the Workplace” Fordham Law Review . May 2002.

54 http://www.pewforum.org/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/#regulations 55 http://hrlr.oxfordjournals.org/content/8/2/249.abstract 56 Ibid. 57 http://www.hrw.org/news/2005/06/15/qa-human-rights-law-and-access-abortion Page 122 of 134

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Poverty Having a child is expensive. It’s no surprise then that a University of California, San Francisco study found that women who were unable to access abortion services were three times more likely to fall below the poverty line within two years than women who were able to obtain abortions 58 . Forced childbearing produces gendered poverty – opens the door for performance affirmatives analyzing the intersection of gender and class. Culp-Ressler 2012 (Tara, “Denying Women Abortion Access Increases Their Risk Of Falling Into Poverty,” Think Progress, 13 November 2012, http://thinkprogress.org/health/2012/11/13/1183231/denying-abortion-poverty/) The Gawker affiliate io9 summarizes some of the researchers’ preliminary findings, and notes that denying women access to abortion puts a strain on struggling women as well as federal assistance programs . Although the women who participated in the Turnaway Study were in comparable economic positions when they sought abortions, the woman who were unable to terminate their unwanted pregnancies were more likely to have slipped into poverty just a year later: ¶ A year later, [the women who were denied an abortion] were far more likely to be on public assistance — 76 percent of the turnaways were on the dole, as opposed to 44 percent of those who got abortions. 67 percent of the turnaways were below the poverty line (vs. 56 percent of the women who got abortions), and only 48 percent had a full time job (vs. 58 percent of the women who got abortions). ¶ When a woman is denied the abortion she wants, she is statistically more likely to wind up unemployed, on public assistance, and below the poverty line. Another conclusion we could draw is that denying women abortions places more burden on the state because of these new mothers’ increased reliance on public assistance programs . The tie between poverty and abortion goes both ways. Women regularly explains that they obtain abortions because they do not have the financial means to support a child 59 - a claim supported by the fact that “[t]he abortion rate among women living below the federal poverty level ($9,570 for a single woman with no children) is more than four times that of women above 300% of the poverty level (44 vs. 10 abortions per 1,000 women)” 60 . For debaters interested in nuanced economic theory discussions of abortion, literature exists that analyses pregnancy as a “means of production” in the Marxist sense of the term 61 . This opens up the debate to a discussion of the effect of poverty on pregnant women and what poverty can do to women and children. The connection between women and poverty is a very well researched area which includes discussions of federal assistance programs, domestic violence, and economic inequality. All are important and timely issues that students will benefit from discussing. Crime Access to abortion has a strongly established relationship with levels of organized crime in the United States. An analysis conducted by Donohue and Levitt (2001) 62 , demonstrated that the dramatic reduction in crime in the late

58 Culp-Ressler 2012 (Tara, “Denying Women Abortion Access Increases Their Risk Of Falling Into Poverty,” Think Progress, 13 November 2012, http://thinkprogress.org/health/2012/11/13/1183231/denying-abortion-poverty/) 59 Missionaries of the Sacred Heart, “Abortion Statistics and Related Issues,” http://www.misacor- usa.org/index.php/abortion-statistics-and-related-issues. See also http://www.misacor- usa.org/index.php/abortion-statistics-and-related-issues and http://www.thewire.com/politics/2014/02/abortion-outcomes-tktk/358122/

60 Ibid. 61 http://books.google.com/books/about/Sex_and_the_Contract.html?id=TLeNDSujgtoC

62 Donohue and Levitt 2001 (John J. Donohue III and Steven D. Levitt, “The Impact of Legalized Abortion on Crime,” The Quarterly Journal of Economics, CXVI (2), May 2001, http://pricetheory.uchicago.edu/levitt/Papers/DonohueLevittTheImpactOfLegalized2001.pdf)

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1990s occurred as a result of the legalization of abortion in the United States with Roe v Wade. These analyses are robust – they controlled for rise in police force, level of incarceration and the economic state of the country, finding that the legalization of abortion can account for “about half” of the observed decline in crime that occurred between 1991 and 1997.

Legalized abortion can account for the reduction in crime due to lower cohort size or a woman’s ability to decide when she wants to raise children—presumably leading to better childrearing environments

Donohue and Levitt 2001 (John J. Donohue III and Steven D. Levitt, “The Impact of Legalized Abortion on Crime,” The Quarterly Journal of Economics, CXVI (2), May 2001, http://pricetheory.uchicago.edu/levitt/Papers/DonohueLevittTheImpactOfLegalized2001.pdf) Legalized abortion may lead to reduced crime either through ¶ reductions in cohort sizes or through lower per capita offending ¶ rates for affected cohorts . The smaller cohort that results from ¶ abortion legalization means that when that cohort reaches the ¶ late teens and twenties, there will be fewer young males in their ¶ highest-crime years, and thus less crime . More interesting and¶ important is the possibility that children born after abortion ¶ legalization may on average have lower subsequent rates of criminality ¶ for either of two reasons . First, women who have abortions ¶ are those most at risk to give birth to children who would engage ¶ in criminal activity . Teenagers, unmarried women, and the economically ¶ disadvantaged are all substantially more likely to seek ¶ abortions [Levine et al. 1996]. Recent studies have found children ¶ born to these mothers to be at higher risk for committing crime in ¶ adolescence [Comanor and Phillips 1999]. Gruber, Levine, and ¶ Staiger [1999], in the paper most similar to ours, document that ¶ the early life circumstances of those children on the margin of ¶ abortion are difficult along many dimensions: infant mortality, ¶ growing up in a single-parent family, and experiencing poverty .¶ Second, women may use abortion to optimize the timing of childbearing. ¶ A given woman’s ability to provide a nurturing environment ¶ to a child can fluctuate over time depending on the woman’s ¶ age, education, and income, as well as the presence of a father in ¶ the child’s life, whether the pregnancy is wanted, and any drug or ¶ alcohol abuse both in utero and after the birth. Consequently, ¶ legalized abortion provides a woman the opportunity to delay ¶ childbearing if the current conditions are suboptimal . Even if ¶ lifetime fertility remains constant for all women, children are ¶ born into better environments, and future criminality is likely to ¶ be reduced. Negative ground to this advantage exists – the relationship between abortion access and crime rates is not accepted without scrutiny. Academic critics of the assumption that “poverty is a fast track to crime” write articulately in opposition to the literature justifying this advantage. For example, The Economist published an article summarizing concerns about the methodology Donohue and Levitt used to reach their causal conclusion about abortion and crime rates. 63 Foote and Goetz found there were many flaws with the study including a lack of a control group, inaccurately controlling for extraneous factors (such as the number of police officers and prevalence of incarceration). This advantage area offers debaters the opportunity to include statistical analyses in their discussions of the topic, expanding the scope of analysis offered by abortion as a topic area. See further literature on both sides here 64 .

63 The Economist 2005 (“Oops-onomics: Did Steven Levitt, author of “Freakonomics”, get his most notorious paper wrong?” 1 December 2005, http://www.economist.com/node/5246700) 64 Joyce, Ted. 2004. “Did Legalized Abortion Lower Crime?” Journal of Human Resources 39(1):1-28. Sailer, Steve. (2005). “Did legalizing abortion cut crime?” http://www.isteve.com/abortion.htm Clowes 2012 (Brian, “Does Abortion Really Reduce Crime? Another Look at Freakonomics,” Lifenew.com, 26 October 2012, http://www.lifenews.com/2012/10/26/does-abortion-really-reduce-crime-another-look-at-freakonomics/) Fox News 2008 (FoxNews.com, “The Myth About Abortion and Crime,” 7 July 2008, http://www.foxnews.com/story/2008/07/07/myth-about-abortion-and-crime/)Anti-Blackness

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Anti-Blackness The essence of the question of slavery is “Is my body mine?” Abortion offers debaters the opportunity to examine the intersection of Blackness and gender by looking at the ways in which both racism and gender subordination attempt to control the materiality of raced and gendered bodies. Debaters can criticize the anti-Blackness reproduced by ceding physical control of Black female to state regulations.

Because neither Kendra nor I have a strong background in this literature, we do not attempt to wholly represent the literature discussing the intersection of abortion and blackness. The literature which we have found is the result of time-limited research into potential avenues for affirmative and negative debaters.

Perhaps the best literature on this topic is Roberts, Dorothy (professor of law at Rutgers). “KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING OF LIBERTY”. Vintage Publishing. December 29, 1998. In it, Dr. Roberts argues that abortion regulations are a form of disciplining for Black bodies. 65 The state’s control of women’s pregnant bodies has a strong racial component—black women’s bodies are, and have always been, used in the United States as a mechanism to reconstitute the state as white. In Killing the Black Body, Dorothy Roberts offers a meticulous history of the control of black childbearing imposed by various forms of white power throughout the history of the United States (slavery, Jim Crow, sterilization campaigns, the war on drugs, and so on). –

It specifically attempts to demonstrate connection between colonial systems of white control over Black women’s bodies and reproductive racism in the modern era 66 . It does so by attacking laws criminalizing abortion on the ground that they establish a presumptive right of access to Black women’s bodies on the part of the white state 67 .

Though Dr. Roberts is an excellent author, she is not the only author that anti-Blackness debaters can find on the topic. Scholars have analyzed the ways in which the representational frames of pro-life advocacy are fundamentally white, and invoke the image of the “White Child” and the “White Mother” as justifications 68 . They also critique the appropriation of Black bodies for white purposes when conservatives commodify Black suffering to critize abortion 69 .

65 Abortion restrictions are a form of disciplining for Black bodies http://www.ocf.berkeley.edu/~marto/mother.htm

66 https://www.kirkusreviews.com/book-reviews/dorothy-roberts/killing-the-black-body/

67 http://rhhr.org/2009/11/30/book-review-killing-the-black-body/

68 http://books.google.com/books?id=UZDxyVcLKh4C&pg=PA116&lpg=PA116&dq=whiteness+pro+life&so urce=bl&ots=_1ZXGK8S_n&sig=2t34a-09Txw7XyyIyGS8RjsYTdI&hl=en&sa=X&ei=OJ99U-- _H4KlsASokYGoCg&ved=0CEsQ6AEwBA#v=onepage&q=whiteness%20pro%20life&f=false

69 http://www.cbn.com/cbnnews/us/2011/June/Groups-Say-Black--Beautiful-Pro-life-Ads-Racist/ Page 125 of 134

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These scholars also note that many defenses of abortion rely on racist vocabularies that de-emphasize the ability of Black women to make decisions for themselves 70 . Some scholars have even gone as far as framing abortion rights as a form of Black liberation 71 .

There are strong defenses of a political alliance between race and gender specific to abortion 72 , and policy advocates for the intersectional precedent potentially created by an equal protection ruling on abortion in the SCOTUS 73 .

Reproductive Rights and Gendered Agency

Obviously there is a diverse and thorough debate on the question of reproductive freedom and gender with respect to abortion. Debaters can find political analysts 74 , law reviews 75 , social scientists 76 , and social theorists 77 across the board who support and criticize particular criminal regulations from feminist perspectives. In the interest of expedience based on limited preparation time for this paper, we have limited our reproduction of this literature.

Queer Theory The debate community is long familiar with Lee Edelman’s criticism of reproductive futurism, which argues that social policy is overwhelmingly controlled by an interested in providing for future generations, which ontologically excludes queer sexualities which per se do not center around reproduction 78 . The secondary literature applying Edelman’s queer conceptual framework to abortion is excellent 79 . This literature discusses the way in which abortion can function to break society’s attachment to the perpetual image of “the Child” for whom sacrifice is endlessly made, and the way in which criminal regulations of abortion function to entrench that image. Edelman himself has applied the framework of queer theory to the abortion debate in literature that supplements the traditionally cited 2004 book 80 .

70 http://bluestockingsmag.com/2013/01/23/abort-racism-the-racial-implications-of-reproductive-justice/ 71 http://trustblackwomen.org/2011-05-10-03-28-12/publications-a-articles/african-americans-and-abortion-articles/31-african-american-women- and-abortion 72 http://www.ontheissuesmagazine.com/2011winter/2011_winter_Ross.php

73 Odum, Tamika. Professor and the University of Cincinnati "Examining Intersectionality: Race, Class, Gender and Reproductive Health" Paper presented at the annual meeting of the American Sociological Association, Hilton San Francisco & Renaissance Parc 55 Hotel, San Francisco, CA, , August 14, 2004http://www.allacademic.com/meta/p110549_index.html

74 The Lectric Library, American Civil Liberties Union, 7/09, http://www.lectlaw.com/files/con17.htm 75 Graber, 96 (Mark, Professor of Law and Government @ U Maryland, Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics, pg. 33) 76 (Rosemary, Mar 2007, New Political Science Volume 29 Nm. 1, (, Professor at MarymountCollege)(http://web.ebscohost.com/ehost/pdf?vid=2&hid=105&sid=59eeae88-f623-4e27-bc32-912b8c720823%40sessionmgr110)

77 Petchesky, Rosalind P. Abortion and woman's choice: The state, sexuality, and reproductive freedom . Vol. 43. Boston: Northeastern University Press, 1990. 78 Edelman 04 (Lee Edelman, Professor of English, Tufts University, NO FUTURE: QUEER THEORY AND THE DEATH DRIVE, 2004, 11) 79 http://muse.jhu.edu/journals/qui_parle/v018/18.1.doyle.html 80 http://www.jstor.org/discover/10.2307/20107133?uid=2&uid=4&sid=21104132949037 Page 126 of 134

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Indigenous Rights Access to abortion for Native American 81 communities (particularly those who live on reservations) is hard to come by. Even though Roe v. Wade passed in 1973, access has not changed for women living in rural communities or on reservations. Criminal regulations of abortion providers create access barriers that disproportionately disadvantage Native American women 82 . In addition, Indian Health Services historically has refused to allow abortions to be obtained by Native American women, even after President Obama’s Tribal Law and Order Codes. Abortions are severely restricted on reservations, regardless of the Trial Law and Order codes Rose 14 (Christina, “Native History: Roe v. Wade Passes, But Indigenous Women Lack Access,” Indian Country, 22 January 2014, http://indiancountrytodaymedianetwork.com/2014/01/22/native-history-roe-v-wade-passes- indigenous-women-lack-access-153192) “Colonization removed access to terminating our pregnancies,” Clifford said. “ Colonization interfered with our coming of age ceremonies where you learned to celebrate life in your body, and you also learned about birth control .¶ “When I was growing up, my mom never talked about reproductive health, and no one ever talked to her about it,” she said. “I think on the reservations, we are still trying to catch up by having access to abortions.” ¶ “This is a human rights issue ,” Asetoyer said. “ It is about access to health care service, and whether you believe in it or not, this is a decision a woman makes .” ¶ Asetoyer said the Indian Health Service has the right to dispense emergency birth control and provide emergency abortions but all too often does not . “ They can but they do not provide it, and they have made it extremely difficult to access termination. This is an area where they fall short.” ¶ Obama’s Tribal Law and Order codes include standardized sexual assault policies and protocols in IHS emergency rooms , which Asetoyer said has been a huge step forward, but she added, “ It doesn’t guarantee we will get them. As community activists and consumers, we have to press them to follow the letter of the law, and they need to fulfill those rights through the services they provide.” ¶ “Unless we shout from the highest rooftops, unless we are fighting for our rights, nobody knows we don’t have them. It is assumed we do when in fact we don’t,” Asetoyer said. Including abortion in the topic affords debaters the opportunity to fruitfully examine the geneology of abortion and Native American communities, and discuss the intersection of historical colonization with modern gender politics.

81 We are not unaware of the linguistic baggage associated with the term “Native American”. We explicitly recognize the terminological limits here, and use this term for brevity and its familiarity in the community . 82 http://rhrealitycheck.org/article/2009/06/22/reclaiming-choice-native-women/ Page 127 of 134

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Negative –

As with the affirmative literature examination, this section is by no means dispositive of the literature surrounding criminal regulation of abortion. In our research, we encountered literally thousands of law review articles attacking and justifying particular policy stances on abortion. We documented the best few for review, and have them available at request 83 . As a preliminary overview, we point the topic committee to the vast variety of negative ground against Casey affirmatives on the Courts topic. In the age of multiple conditional advocacies, process counterplans and politics disadvantages the negative will only continue to flourish. It’s also worth noting that the majority of the work in the Advantages section has literature that goes both ways and can serve as disadvantages or criticisms of potential affirmatives. Case Debate As documented in the literature review of example cases, there is a healthy solvency debate over particular policy approaches to abortion. We need not reproduce that literature review here, though we note that various affirmative approaches also function as criticisms of each other. For example, literature which establishes a value for “equal protection” justifications often discusses disadvantages to “privacy” or “free assembly” legal doctrines, and can be independently disadvantageous as a precedent tradeoff.

Aside from thorough quantitative and qualitative reviews of the effectiveness of particular criminal legislation, the solvency literature around abortion documents extensive non-legal barriers to access for women including harassment and social pressure not to get abortions 84 . These escalating social barriers exist outside the realm of the law, and ensure solid negative ground.

Negative case debaters can also choose to defend abortion as a practice. Brian Rubaie reviews the variety of negative approaches in an email discussing the courts topic: Kansas went for "abortion bad" with some frequency. Although everyone at UTD was pro-choice, we all remarked that one of the biggest surprises as we researched was how well-written the 'life begins at conception' cards were. The abortion debate has been occurring for so long with such intensity that proponents and opponents of access to abortion services have had to do a damn good job coming up with arguments normatively (as Brian notes above) and legally 85 . Disadvantages The politics links are on fire. We understand that “you have politics links” is traditionally the last vestige of authors scrambling for predictable negative ground and we outline other disadvantage areas to demonstrate that is not the case here. Instead we take special note of the politics links with respect to abortion because the literature has an unusually high quality – it’s excellent. Abortion is the lightning rod for criticism in Congress, and enjoys consistent and widespread opposition across the board in state legislatures. Because Congress (specifically the House) has been

83 Please send an email to [email protected] or [email protected] 84 http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1328&context=plr

85 See a justification for fetal personhood here: http://liveaction.org/blog/the-case-against-roe-v-wade-and-planned- parenthood-v-casey/ Page 128 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 129 of 134 Group Three Paper engaged in a series of symbolic anti-abortion exercises, political analysts and pundits are regularly discussing the relationship between abortion and the political scene in Washington. Debaters who face affirmatives that use the Court will have the opportunity to read Court Capital disadvantages 86 and Stare Decisis 87 Disadvantages focusing on the effect of drastically changing abortion jurisprudence in the United States. Other promising disadvantages from the Courts topic included Court Legitimacy 88 , Judicial Activism and Court Stripping disadvantages. The traditional Hollow Hope disadvantage – as well as its literature updates – provides a tried-and-true example of negative disad ground. As mentioned before, debaters have thoroughly established negative literature on abortion – we recommend the topic committee conduct a search of the 07-08 caselist to help answer any further questions 89 . Counterplans The counterplan ground is also thoroughly established by the 07-08 courts topic. In the interest of brevity, we will outline several areas of counterplan ground for review • Grounds Counterplan – counterplan which challenges the legal basis for the affirmative without challenging its ultimate policy action. Literature strongly establishes competition for these types of counterplan 90 specific to abortion 91 . These force affirmatives to thoroughly research their affirmative to wholly justify its mandates. • Actor Counterplans – the question of proper action dominates the literature on abortion. Whether the federal government, state governments, federal courts or Supreme Court should act is a hotly debated question that provides effective counterplan ground. • Advantage Counterplans – negative debaters could end the Global Gag Rule preventing female access to family planning 92 or national sex education counterplans to solve the deleterious effects of unwanted pregnancy 93

86 Novack and Baker 2014 (Sophie Novack and Sam Baker, “Why Abortion-Rights Activists Should Fear the Supreme Court,” National Journal, 18 May 2014, http://www.nationaljournal.com/health-care/why-abortion-rights- activists-should-fear-the-supreme-court-20140518) 87 Mariner, “The Supreme Court, the constitution, and precedent: Some Comments on the Amars' Analysis” Monday, January 6, 2003 88 Mortimer N. S. Sellers, “Legal History and Legal Theory: The Doctrine of Precedent in the United States of America,” 54 Am. J. Comp. L. 67, 2006 lexis 89 Caselist available for cite mining here: http://opencaselist08.wikispaces.com/ 90 http://books.google.com/books?id=edtzAgAAQBAJ&pg=PA71&lpg=PA71&dq=taboo+maintaining+abortion+sjoberg&s ource=bl&ots=p4Ftdvwr7t&sig=X2TpOVtOEsh8Uz3FqoJV4LuEdec&hl=en&sa=X&ei=0ZN9U7P6BdDIsASrroHoDA&ve d=0CCkQ6AEwAA#v=onepage&q=taboo%20maintaining%20abortion%20sjoberg&f=false

91 http://talkingpointsmemo.com/dc/ruth-bader-ginsburg-roe-wade

92 Aguilar, St. Mary's University School of Law, Candidate for J.D., 02 [“COMMENTS GAGGING ON A BAD RULE: THE MEXICO CITY POLICY AND ITS EFFECT ON WOMEN IN DEVELOPING COUNTRIES,” The Scholar: St. Mary's Law Review on Minority Issues, Fall, 5 SCHOLAR 37, p. Lexis] 93 see: http://www.advocatesforyouth.org/component/content/article/450-effective-sex-education and http://www.siecus.org/index.cfm?fuseaction=Feature.showFeature&featureID=1041

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• Mechanism Counterplans – Constitutional Amendment counterplans, Distinguish Counterplans, difference decision counterplans were common counterplans on the Courts topic and kept the affirmative/negative balance fair.

Kritiks Perhaps the best negative literature on the topic is critical in nature. We will outline the intersection of major critical strands of thought with this topic in the following sections.

---Capitalism Though no debater or coach seriously doubts the presence of links to the capitalism critique, we write here to specifically address the substantial literature discussing the commodification of sex and pregnancy as forms of production. These articles also criticize abortion as a commercial practice, including and especially with focus on the sale of post-abortion tissues for exploitation by research companies. These authors also criticize the economic decision to abort fetuses as a method of preserving wages (e.g. when women abortion because they cannot afford raising children). ---Anti-Blackness

The literature examining the intersection of anti-Blackness and abortion is remarkably thorough for the negative as well as the affirmative.

As can be expected from a complete treatment of the topic, the work from Dr. Roberts also has evidence negative for the negative as well 94 . Dr. Roberts criticizes the “dominant idea of reproductive liberty” as “primarily concerned with the interests of white, middle-class women” because of its focus “on the right to abortion” 95 . She also “ points out that reproductive freedom is not only a matter of an individual woman’s right to choose, but it also is woven into a larger social context, so that economic exigencies (including access to health care, jobs, child care, medical information, and medical technology) as well as systemic racism (e.g., residential segregation which restricts access to better jobs) play a deterministic role 96 .Other scholars have established similar work, offering representational criticism of the deployment of the image of the “White mother” as the subject referent of white pro-choice movements 97 . They note that historical and present abortion movements are striated by white interests who focus activist change and energy on establishing benefits for white women 98

Other scholars see abortion programs as functional eugenics, noting that “pro-choice” activists have actively targeted women in Black neighborhoods for the purpose of persuading them to get abortions 99 . Scholars note that abortion has the effect of

94 Roberts, Dorothy (professor of law at Rutgers). “KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING OF LIBERTY”. Vintage Publishing. December 29, 1998. 95 http://rhapsodyinbooks.wordpress.com/2008/11/20/book-review-killing-the-black-body-by-dorothy-roberts/ 96 Ibid. 97 http://books.google.com/books?hl=en&lr=&id=9rIqkIqCeAAC&oi=fnd&pg=PR5&ots=Hf49fD6GjL&sig=Xl6Et3G9tvx9n 9pnNjQmgj-fDTM#v=onepage&q=abortion&f=false 98 http://books.google.com/books?id=meCq4nEbmggC&pg=PA287&lpg=PA287&dq=whiteness+pro+choice&source=bl &ots=ENpnkNoJp4&sig=YPHtNKb1xomBtzXB3rGprCLCFes&hl=en&sa=X&ei=K599U52_JKbEsASfxYDwCA&ved=0C DkQ6AEwAg#v=onepage&q=whiteness&f=false see pp126 99 http://theblacksphere.net/2014/02/margaret-sangers-dream-come-true-eugenics-abortion/ (criticizing Planned Parenthood’s now defunct “Negro Project”) Page 130 of 134

CEDA Wording Papers 2014-15 Decriminalization Topic Page 131 of 134 Group Three Paper overwhelmingly exterminating Black life, if not the explicit intent 100 . In a similar vein, scholars criticize the reproductive science around abortion as an extension of scientific racism that has historically targeted Black bodies 101 . Feminist justifications for abortion on the grounds of “self-ownership” also arguably commodify Black fetal life, an act which itself reproduces anti-Blackness 102 .

The literature also offers solid Black alternative evidence specific to abortion – the description of a “Black bioethics” alternative caught the eye of this paper’s authors 103 . Literature also answers the perm, noting that abortion is a nexus of conflict between race activists and sex activists 104 ---Disability studies Dis/ability scholars note that abortion has a long history of targeting those traditionally categorized as disabled. Even conservative legal infrastructures often permit abortion when the fetus can be medically demonstrated to be physically or mentally subject to a disability 105 . Scholars have extensively criticized the way in which abortion becomes a method for selectively targeting persons with disabilities 106 , with broad social effects that result 107 .

We found solid permutation answers in the literature as well 108 . Scholars argue that the feminism and disability studies have “irreconcilable differences”, because the choice to give mothers absolute agency necessarily guarantees the opportunity to target and extinguish disabled bodies.

---Gender Post-structuralism feminists strongly criticize turns to the state as a grantor of permission to exercise female agency. We need not reproduce the vast array of “lefter-than-thou” gender criticism to demonstrate its existence – the first page of google scholar for “abortion post-structural feminism” is itself sufficient to support a year’s worth of negative gender kritiks.

100 http://www.blackgenocide.org/negro.html 101 https://repository.library.georgetown.edu/handle/10822/545991 102 http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1337&context=yjlh

103 http://books.google.com/books?hl=en&lr=&id=FbP64QJOqU4C&oi=fnd&pg=PR15&ots=PJDYeYAb4M&sig=S4ZcnD CFKexeJNjU96HVi7YN4Bw#v=onepage&q=abortion&f=false 104 http://www.lifenews.com/2013/06/28/margaret-sangers-eugenic-legacy-abortion-and-planned-parenthood/

105 We recognize that the term “disability” remains highly contested in the literature. We use the term as a reflection of the literature’s discussion of those traditionally categorized as “disabled” rather than a normative endorsement of the implications of the term. 106 http://books.google.com/books?hl=en&lr=&id=Oor7avo2iDkC&oi=fnd&pg=PA87&dq=abortion+and+disability&ots=o03 AW8bDsR&sig=S4dOpvHptpgJVOH23jnBxpFEpC4#v=onepage&q=abortion%20and%20disability&f=false

107 http://books.google.com/books?hl=en&lr=&id=Im1IdyxmH_4C&oi=fnd&pg=PA74&dq=abortion+eugenics+race&ots=ro VkLj7Dja&sig=VsZPGfo0A6DxQavez16QzwhapZ0#v=onepage&q=abortion%20eugenics%20race&f=false

108 http://oro.open.ac.uk/12756/1/Feminism,_Disability_and_abortion.pdf

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---Critical Legal Studies Non-feminist scholars have also criticized the relationship between law and activism. Debaters are long familiar with the rights kritik advanced by Peter Gabel, and similar work focused on gender and normativity. A rich literature applies these critical frameworks to the abortion debate (both Gabel’s argument speficially 109 and normative critical legal studies generally 110 )

Conclusion

We thank the topic committee for its time in reading.

109 http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1736&context=facpub 110 http://dejiridoo.com/blog/wp-content/uploads/2008/03/critical-legal-studies-web-paper.pdf Page 132 of 134

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Individual Author Appendix—Further Thoughts

Views from Christian Chessman on the need to have these debates:

The presence of gender subordination in the lives of debaters, coaches, and alumni cannot be understated. Female debaters are subject to unwanted, uncomfortable sexual advances and even sexual assault. Debaters throw around the term “rape” as slang for beating another team (“we raped them”) when one in three college females have suffered sexual assault. We lack the vocabulary grown from a thorough, consistent engagement with gender literature to fully identify and criticize these phenomena.

Instead, many debaters still read the same “Tickner 2001” cards (from a book Dr. Tickner has since repudiated) with the same “Warren and Cady 96” cards which are several paradigms dated. Impact turning patriarchy is an acceptable if unconventional approach to gender affirmatives. In the last three years, this paper’s authors have seen debaters defend rape because it is “key to hegemony”.

These dynamics are unacceptable.

We look to the development of policy debate’s racial consciousness with hope. Our community was enriched as it developed a vocabulary to identify and criticize racist dynamics in policy debate. As debaters engaged deeply with race literature, they grew analytical tools to articulate issues that they had felt before, but lacked the terms to articulate. “Impact turning racism” not only became unacceptable, but the quintessential example for critiquing switch side debate. Policy debate has come a long way from when Ede Warner first began to attack the racist dynamics that pervaded our activity, and it is because members of the debate community worked tirelessly to make discussions of racism salient and engagement with their literature a requirement of success.

We identify these positive changes not to lament the growth of racial consciousness in debate, but to demand its parallel with respect to gender violence. We celebrate the way college policy debate has begun to create space for Black debaters as Black debaters, and aspire to similar spaces for those who suffer the brunt of gender subordination. Gender is underread, underdiscussed, and underimportant to the debate community. It’s time to change that.

Prostitution’s Engagement

We recognize that this topic accesses a discussion of gender through its likely inclusion of prostitution. We do not find that a compelling reason to reject the gender engagement provided by abortion – first, because prostitution alone is insufficient to wholly represent gender subordination and second, because prostitution engages gender on men’s terms. We do not dismiss the agency for women that may accompany legal prostitution, but we recognize that that agency is fundamentally expressed through sexualized performances and the process of (overwhelmingly) male sexual consumption.

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Abortion discusses gender on women’s terms. Unlike prostitution, abortion’s engagement with gender is not centered around male interest. To borrow a phrase from Jared Sexton 111 , it discusses women as women on women’s terms, a discussion the community sorely lacks.

Effective Negative Ground

Given the strength of the position above, readers may wonder if the literature substantiates effective negative positions that are not morally repugnant – in other words, if there is a case negative beyond impact turning patriarchy. The negative literature review speaks for itself. The debate over abortion policy and gender subordination does not reduce to “patriarchy good/bad”, any more than answering Wilderson amounts to “racism good/bad”. There is an abundant literature establishing morally acceptable negative ground that also engages the affirmative. The debate community got a small preview of this topic area several years ago on the Courts topic, when negative teams against Casey affirmatives had rigorous debates with diverse negative strategies. These teams effectively engaged questions of family planning, female agency, and how best to legally obtain access to abortion services without resorting to repugnant strategies. The growing acceptance of critical literature means that teams have even more legitimate options for engagement that extend beyond “abortion good/bad”.

111 Dr. Sexton discussed the agency of Black bodies as Black bodies, rather than as Black bodies cognizable only through another identity category. Page 134 of 134