STETSON LAW REVIEW
VOLUME 47 FALL 2017 NUMBER 1
ARTICLES
Executive Order 13769 and America’s Longstanding Practice of Institutionalized Racial Discrimination Towards Refugees and Asylum Seekers Kaila C. Randolph 1
One of the paradoxes of international human rights law is the international community’s inability to curb xenophobic attitudes resulting in discriminatory regulations that exclude refugees. The United States has an established history of excluding immigrants, particularly refugees, based on national or ethnic origin, masked under national security. After the Civil War and the abolition of slavery, lawmakers sought to control the ethnic composition of the country, by prohibiting the entry of certain ethnic groups. The practice was implemented through racially discriminatory legislation until the Immigration and Nationality Act of 1965. Nonetheless, the federal government continued to exercise racial discrimination through the adjudication of asylum claims. The United States exemplified its present‐day practice of racial exclusion with Executive Order 13769 “Protecting the Nation from Foreign Terrorist Entry into the United States,” which prohibits the admission of Syrian nationals indefinitely and suspends the U.S. Refugee Admissions Program for a minimum of 120 days. Such immigration policies and regulations are a form of institutionalized racial discrimination that violate a refugee’s equal protection and due process rights under the Fifth Amendment and international human rights norms and customs. Although the Ninth Circuit Court of Appeal unanimously stayed the injunction, the appellate court did not review the merits of the case. This Article traces the enduring practice of institutionalized racial discrimination towards refugees in the United States and the illegality of Executive Order 13769 under federal and international law. Finally, the United States has both constitutional and international obligations to denounce xenophobia and racially discriminatory laws.
Post‐Conviction Review: Questions of Innocence, Independence, and Necessity Fiona Leverick, Kathryn Campbell & Isla Callander 45
Alongside a growing recognition of the existence of miscarriages of justice, there has been a parallel development of schemes to address wrongful convictions after the normal appeals process has been exhausted. This Article addresses the question of what constitutes the proper role for such schemes, drawing on a comparative examination of the respective schemes in Canada, Scotland, and North Carolina. It puts forward four arguments. First, it argues that there is a clear need for post‐ conviction review schemes to operate outside of the courts, supported by investigative resources and the power to compel the production of evidence, and for them to be independent from government. Second, it argues that such schemes should not restrict their remit to cases in which fresh evidence emerges, but should be empowered to refer cases back to the court of appeal where there has been a procedural impropriety that casts doubt on guilt. They should not, however, be permitted to refer cases back to the court where there is overwhelming evidence of guilt, despite the seriousness of the procedural breach concerned. While there is a good argument that a court should overturn a conviction where a serious breach of procedure calls into question its moral authority to adjudicate, this argument does not extend to a post‐conviction review body, which sits one step removed from the conviction process and is likely to lose public confidence if it refers cases where there is overwhelming evidence that the convicted person is factually guilty. Third, it argues that while there is no reason in principle to restrict review to serious cases or to cases where the convicted person is living, these are not unreasonable restrictions to place on a scheme if limited resources exist. Finally, it argues that post‐conviction review bodies concerned primarily with the review of individual applications are not ideal for playing a wider role in systemic reform, which would be a more effective undertaking by an affiliated body with a broader based membership.
Lessons of Law & Legal Studies Through Literature: The Psychology of a Criminal Versus the Psychology of a Police Investigator as Seen Through the Lenses of Crime and Punishment: Porfiry v. Raskolnikov James Beckman 85
This Article will explore several themes. Primarily, this Article analyzes the psychologies of both an accused and the police as both interact with and battle each other psychologically over the possibility of a confession. The above analysis occurs through the prism of Fyodor Dostoevsky’s famous 1866 work Crime and Punishment. Specifically, a literary analysis of two key characters appearing in Dostoevsky’s book will be utilized in this Article. The actions of the two key characters analyzed involve “Raskolnikov,” an individual suspected of committing a double‐homicide, and “Porfiry,” the chief police detective charged with investigating the crime. Through an analysis of the actions of Raskolnikov and Porfiry, and how the two interact with each other, this Article raises and attempts to address important points regarding a defendant’s impulse to confess to his or her actions. This Article also analyzes the actions of a trained detective, Porfiry, and the strategies the detective employs to elicit a confession from the suspect, Raskolnikov. As a secondary theme, again through the prism of analyzing these two characters in Crime and Punishment, the author draws several conclusions about the importance of legal representation in order to protect defendants and help avoid damaging confessions elicited by savvy police tactics. As described by Dostoevsky in the book itself, there is a particular "psychology of a criminal before and after the crime" and the police "have a psychology of their own" in dealing with those suspected of crimes. These psychologies are analyzed in this article. This Article falls within the Law & Literature genre—that is articles which utilize classical works of literature to illustrate various principles of law and the legal profession.
Striking Down the Impervious Shields: Why Caveat Emptor Must Be Abandoned In Commercial Real Property Sales and Leases Gregory L. Pierson 111
The Florida Supreme Court’s failure to abandon the caveat emptor doctrine and impose a duty to disclose on the sellers and lessors in commercial real property sales and leases is harmful to prospective purchasers and lessees. Holding property purchasers and lessees to a different standard depending on the land use categorization of the property harms these parties by affording them less protection, and doing so is not grounded in any legitimate justification. First, this Article examines two principal cases that established the status quo for caveat emptor and the disclosure duty in real property transactions: Johnson v. Davis and Futura Realty v. Lone Star Building Centers, Inc. Second, this Article discusses Haskell Co. v. Lane Co.—highlighting the problems that the inconsistent standard poses—and analyzes Agrobin, Inc. v. Botanica Development Associates, Inc.—a case which further muddied the waters because the court’s holding was divorced from Johnson and Futura precedents. Finally, this Article proposes a solution by examining the Johnson nondisclosure action and arguing that the Florida Legislature should provide a broad definition for nondisclosure, and apply this standard to both residential and commercial real estate leases and sales. Alternatively, it argues that if the Florida
ii Legislature does not eradicate the caveat emptor doctrine in commercial property sales and leases, lawmakers should at least establish a bright line rule for distinguishing between residential real property and commercial property.
In Harm’s Way: The Desperate Need to Update America’s Free Speech Model Qasim Rashid 143
America’s current free speech model is archaic. This Article argues that unprecedented advances in communications technology, while beneficial for countless purposes, have created an imbalance in America’s free speech model. This imbalance leaves innocent third parties dangerously exposed to harm. Despite its countless benefits, the Internet is an excellent example, as it affords its users the ability to make incendiary mass public statements that may incite violence. Under the current model, an instigator has zero accountability for remotely inducing harms that are a physically proximate result of his actions. This Article proposes a practical model to remedy the current imbalance that technological advances have caused. This revised model would protect innocent third parties from harm while ensuring free speech is not unjustly chilled.
STUDENT WORK
Dazed and Confused:* The Need for Clarity in Dodd‐Frank’s Abusive Standard Albert Evan Dix 185
Since the inception of the Dodd‐Frank Act and the Consumer Finance Protection Bureau (hereinafter “CFPB”), there has been much debate on what constitutes an abusive act or practice. One of the most paramount abusive debt collection practices is using an intimidating means of communication with customers. Such abusive language is determined by the natural consequence of the debt collector’s actions. The repetition of phone calls is also another factor taken into consideration when determining abusive conduct. The creation of the Dodd‐Frank Act was responsible for adding abusiveness, which works in conjunction with the unfairness and deception established in the Fair Debt Collection Practice Act (hereinafter “FDCPA”). This interplay creates an issue as to whether debt collection that was not enforced under the FDCPA could now be enforced under the Dodd‐Frank Act. This Article suggests that the CFPB adopt the standard of abusive debt collection practices used by the FDCPA and integrate it within the meaning of abusive practices in the Dodd‐ Frank Act.
iii
STETSON LAW REVIEW
VOLUME 47 FALL 2017 NUMBER 1
EXECUTIVE BOARD
Editor in Chief VIVIANA VASIU
Executive Editor Managing Editor LEAH JOHNSON BRITTNIE BURNS
Notes & Comments Editors Articles & Symposia Editors DIANA BERLIN ROBERT BARTON JASON DEIRMENJIAN TARA CANEY EMILY JOHNSON JU YOUNG JANG LOGAN MANDERSCHEID AGATA T. KUZNIAR EVELYNN PASSINO Research Editor ALI PRESTON TAYLOR KOUFOS Recent Developments Editor Marketing Editor AHMED MOHAMED KALEY WITECK Assistant Editors Online Editor BRITTANY ATWELL KATE LOPEZ MATTHEW CERIALE NOELLE CUMMINS Faculty Advisors MICHAELA KIRN JASON R. BENT MICHELLE MORETZ JOSEPHINE W. THOMAS KAI SU
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v FACULTY AND DEANS
CHRISTOPHER M. PIETRUSZKIEWICZ, B.A., J.D., LL.M., Dean; Professor of Law KRISTEN DAVID ADAMS, B.A., J.D., LL.M., Professor of Law MICHAEL P. ALLEN, B.A., J.D., Professor of Law; Director, Veterans Law Institute THOMAS E. ALLISON, B.S., M.B.A., J.D., LL.M., Professor of Law Emeritus LINDA ANDERSON, A.B., J.D., Professor of Law ROBERT BATEY, B.A., J.D., LL.M., Professor of Law Emeritus CYNTHIA BATT, B.S., M.ED., J.D., Associate Professor of Law MARK D. BAUER, B.A., J.D., Professor of Law DOROTHEA A. BEANE, B.A., J.D., Professor of Law; Co-Director, Institute for Caribbean Law and Policy JASON R. BENT, B.A., J.D., Associate Professor of Law ROBERT D. BICKEL, B.A., J.D., Professor of Law Emeritus PAUL J. BOUDREAUX, B.A., J.D., LL.M., Professor of Law BROOKE J. BOWMAN, B.S., M.S., J.D., M.L.I.S., Professor of Legal Skills; Director, Moot Court Board TAMMY L. BRIANT, B.S., B.A., J.D., Assistant Dean for Student Affairs CATHERINE JUNE CAMERON, B.A., M.A., J.D., Professor of Law JOHN F. COOPER, B.A., J.D., LL.M., Professor of Law Emeritus LEE A. COPPOCK, B.A., J.D., Visiting Professor of Law KIRSTEN K. DAVIS, B.A., J.D., PH.D., Professor of Law; Director, Institute for the Advancement of Legal Communication CYNTHIA H. DEBOSE, B.A., J.D., Professor of Law WILLIAM R. ELEAZER, B.A., J.D., LL.M., Distinguished Professor of Law Emeritus KELLY M. FEELEY, B.S., J.D., Professor of Law; Coordinator of Legal Research and Writing MICHAEL S. FINCH, B.A., J.D., S.J.D., Professor of Law PETER L. FITZGERALD, B.A., J.D., LL.M., Professor of Law Emeritus ROBERTA KEMP FLOWERS, B.A., J.D., Professor of Law; Co-Director, Center for Excellence in Elder Law JAMES W. FOX, JR., B.A., J.D., Professor of Law ROYAL C. GARDNER, A.B., J.D., Professor of Law; Director, Institute for Biodiversity Law and Policy NINA L. HAYDEN, B.A., J.D., LL.M., Professor of Practice; Director of Academic Success and Bar Preparation Services CAROL E. HENDERSON, B.A., J.D., Professor of Law KEVIN HUGHES, B.S., Assistant Dean for Development and Alumni Engagement BRUCE R. JACOB, B.A., J.D., LL.M., S.J.D., LL.M., Dean Emeritus; Professor of Law MARCO J. JIMENEZ, B.A., B.S., J.D., Professor of Law TIMOTHY S. KAYE, LL.B., PH.D., Professor of Law; Faculty Advisor, Journal of Advocacy JOHN KEYSER, B.S., M.S., Assistant Dean for Administration and Decision Support PETER F. LAKE, B.A., J.D., Charles A. Dana Chair; Director, Center for Excellence in Higher Education Law and Policy JEROME C. LATIMER, B.A., J.D., Professor of Law Emeritus LANCE N. LONG, B.A., J.D., Professor of Law THOMAS C. MARKS, JR., B.S., LL.B., PH.D., Professor of Law Emeritus CATHERINE MARTIN, B.S., M.B.A., Assistant Dean for Career Development FELISHA MCCASTER, A.S., Registrar JANICE K. MCCLENDON, B.A., J.D., LL.M., Professor of Law Emeritus JULIA A. METTS, B.A., J.D., Professor of Law; Director of Trial Teams LIZABETH A. MOODY, A.B., J.D., Distinguished University Professor Emeritus; Dean Emeritus REBECCA C. MORGAN, B.S.B.A., J.D., Boston Asset Management Chair in Elder Law; Co-Director, Center for Excellence in Elder Law JOSEPH F. MORRISSEY, B.A., J.D., Professor of Law LUZ ESTELLA NAGLE, LL.D., LL.M., M.A., J.D., Professor of Law JASON PALMER, B.A., J.D., Professor of Law GEORGE A. B. PIERCE, B.S., J.D., M.S., Culverhouse Distinguished Practitioner in Residence ANN M. PICCARD, B.A., J.D., LL.M., Wm. Reece Smith Jr. Distinguished Professor of Law ELLEN S. PODGOR, B.S., J.D., M.B.A., LL.M., Gary R. Trombley Family White-Collar Crime Research Professor; Professor of Law THERESA J. PULLEY RADWAN, B.A., J.D., Professor of Law CARLA L. REYES, J.D., LL.M., M.P.P., Visiting Assistant Professor of Law GAIL L. RICHMOND, A.B., M.B.A., J.D., Visiting Professor of Law CHARLES H. ROSE III, B.A., J.D., LL.M., Professor of Excellence in Trial Advocacy; Director, Center for Excellence in Advocacy SUSAN D. ROZELLE, B.A., J.D., Associate Dean for Academic Affairs; Professor of Law JUDITH A.M. SCULLY, B.A., J.D., Professor of Law JAMES A. SHEEHAN, B.A., J.D., Distinguished Practitioner-in- Residence
vi STACEY-RAE SIMCOX, B.S.C./B.A., J.D., Associate Professor of Legal Skills; Director of Veterans Law Institute; Director, Veterans Advocacy Clinic BRADFORD STONE, B.A., J.D., Charles A. Dana Professor of Law Emeritus JR SWANEGAN, B.A., J.D., Assistant Dean for International Programs RUTH FLEET THURMAN, B.A., J.D., LL.M., Professor of Law Emeritus CIARA TORRES-SPELLISCY, A.B., J.D., Leroy Highbaugh Sr.Research Chair; Associate Professor of Law REBECCA S. TRAMMELL, B.A., M.L.I.S., J.D., PH.D., Professor of Law; Director, Dolly & Homer Hand Law Library; Co-Director, Electronic Education STEPHANIE A. VAUGHAN, B.A., J.D., Associate Dean for Student Engagement; Professor of Legal Skills LOUIS J. VIRELLI III, B.S.E., M.S.E., J.D., Professor of Law DARRYL C. WILSON, B.B.A., B.F.A., J.D., LL.M., Associate Dean for Faculty and Strategic Initiatives; Attorneys’ Title Insurance Fund Professor of Law; Co-Director, Institute for Caribbean Law and Policy J. LAMAR WOODARD, B.A., J.D., M.S.L.S., Professor of Law Emeritus; Law Librarian Emeritus CANDACE ZIERDT, B.A., J.D., LL.M., Professor of Law LAURA ZUPPO, B.A., M.B.A., M.S., Assistant Dean for Strategic Enrollment Management
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vii STETSON UNIVERSITY COLLEGE OF LAW
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viii & 2017, Stetson University College of Law.
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ix
EXECUTIVE ORDER 13769 AND AMERICA’S LONGSTANDING PRACTICE OF INSTITUTIONALIZED RACIAL DISCRIMINATION TOWARDS REFUGEES AND ASYLUM SEEKERS
Kaila C. Randolph*
I. INTRODUCTION
For over three years, Hameed Khalid Darweesh, a married national of Iraq with three children, dreamed of the day he would enter the United States. Prior to the Iraq war, Mr. Darweesh was employed as an electrical engineer.1 He later was contracted by the U.S. government to serve as an interpreter for the U.S. Army beginning in 2003 until 2013.2 Like many Iraqi nationals who were contracted by U.S. Armed Forces, anti-America militias and insurgents repeatedly threatened Mr. Darweesh and his family.3 Iraqi government officials and Baghdad Police searched his home, targeting Mr. Darweesh and his family.4 As a result, Mr. Darweesh and his family relocated within Iraq numerous times before he finally applied for an Iraqi Special Immigrant Visa (“SIV”) on October 1, 2014.5
* © 2017, Kaila C. Randolph. All rights reserved. Ms. Randolph is a Humanitarian Affairs Adjudications Officer for U.S. Citizenship and Immigration Services. Ms. Randolph previously served as an Asylum Officer and Immigration Services Officer. Ms. Randolph acquired her Bachelor of Arts from the University of Central Florida, Juris Doctor from Florida Agricultural and Mechanical College of Law, and Master of Law in international human rights and humanitarian law from Viadrina European University in Frankfurt (Oder), Germany. This Article does not represent the opinions of U.S. Citizenship and Immigration Services or the U.S. government; it offers the personal thoughts of the Author. 1. Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief ¶¶ 18, 6, Darweesh v. Trump, https://www.aclu.org/legal-document/ darweesh-v-trump-petition-writ-habeas-corpus-and-complaint-declaratory-and-injunctive (E.D.N.Y Jan. 28, 2017) (No. 117CV00480) [hereinafter Petition for Writ and Complaint]. 2. Id. ¶¶ 4, 3. 3. Id. ¶¶ 18, 6. 4. Id. ¶¶ 20, 6. 5. Id. ¶¶ 20–22, 6–7. 2 Stetson Law Review [Vol. 47
According to the State Department, the SIV program was specifically developed to award visas to “Iraqi nationals who were employed by or on behalf of the U.S. government” during the Iraq war and was authorized by the National Defense Authorization Act of 2008.6 Thus, the SIV program for Iraqi nationals was intended to be used as a protective mechanism for individuals who worked with the U.S. government and who were specifically targeted as a result of their affiliation. The SIV program allows for a small proportion of Iraqis to circumvent the traditional U.S. Refugee Admissions Program (“RAP”) or asylum procedure due to their professional assistance to the U.S. Department of Defense during the Iraq War.7 After acquiring preliminary approvals from the Chief of Mission and U.S. Citizenship and Immigration Services (“USCIS”), Mr. Darweesh then filed a DS-260 visa application with the National Visa Center and awaited his interview with the U.S. embassy.8 In April 2016, Mr. Darweesh and his family appeared for their visa interview and on January 20, 2017, the family of five all received their special immigrant visas.9 Due to their fear of further persecution, Mr. Darweesh and his family fled Iraq and traveled to the United States on January 27, 2017.10 Unexpectedly, Mr. Darweesh and his family were immediately detained by U.S. Customs and Border Patrol (“CBP”); denied access to their attorney; prohibited from requesting asylum or withholding of removal; and placed into expedited removal proceedings without a hearing before an immigration judge.11 Mr. Darweesh and his family were some of the first victims of President Donald J. Trump’s Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Executive Order, inanely signed on Holocaust Remembrance Day, suspended the admission and issuance of immigration benefits, including refugee status, to foreign nationals of countries
6. U.S. Dep’t of State, Special Immigrant Visas for Iraqis, TRAVEL.STATE.GOV, https://travel.state.gov/content/visas/en/immigrate/iraqis-work-for-us.html (last visited Oct. 21, 2017). 7. See id. (limiting applications to Iraqis who were employed by the U.S. government); U.S. Dep’t of State, U.S. Refugee Admissions Program (USRAP) Direct Access Program for U.S. Affiliated Iraqis, STATE.GOV (Mar. 11, 2016), https://www.state.gov/ j/prm/releases/factsheets/2016/254650.htm (creating a separate path for Iraqis who were merely affiliated (including employment) with the U.S. Government)). 8. Petition for Writ and Complaint, supra note 1, ¶¶ 25, 7–8. 9. Id. ¶¶ 29–30, 8. 10. Id. ¶¶ 30, 8. 11. Id. ¶¶ 34, 9. 2017] Executive Order 13769 3 of particular concern.12 Specifically, the Executive Order prohibits the admission of refugees from Syria indefinitely and suspends all refugee admission for 120 days.13 The intent of this Article is to assess whether Executive Order 13,769 invites institutionalized racial discrimination against Syrian refugees on the basis of national origin and enforces differential treatment towards refugees in general, thereby violating federal law and international norms and customs. Institutional racism “is developed or is legitimised [sic] through the workings of institutions” (e.g., government, media, education, housing, police, etc.) and “refers to the manner in which [such] institutions generate or sustain racism . . . through the daily handling of people (everyday level) or through the mechanics of the society (structural level).”14 Similarly, direct institutionalized racism is defined as “organizationally-prescribed or community- prescribed actions, which have an intentionally differential and negative impact on members of [minority or] subordinate groups.”15 This form of discrimination is primarily performed continuously as a routine “by a large number of individuals guided by the rules [and regulations] of [their] organization.”16 Authors Clairece Booher Feagin and Joe R. Feagin explain, “Today this direct institutionalized discrimination can be shaped by informal unwritten rules as well as by more formal laws; both types of rules have often been [e]mbedded in a bureaucratic system.”17 Hence, institutionalized racial discrimination is the implementation of practices or regulations that are: [1] restrictive, distinctive, or preferential based on race, color, nationality, ethnicity, or descent; [2] have a negative effect on members of a minority group; and [3] are legitimized by a working institution. The federal government’s
12. Id. ¶¶ 15, 5. 13. Protecting the Nation from Foreign Terrorist Entry into the United States, Exec. Order No. 13,769, 82 Fed. Reg. 8977, 8979 § 5(c) (2017) [hereinafter Exec. Order]; see Helene Cooper & Michael D. Shear, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. TIMES (Jan. 27, 2017), https://www.nytimes.com/2017/01/27/us/politics/trump-syrian- refugees.html (noting the admission of Syrian refugees was “indefinitely blocked” by the Executive Order). 14. MARC VERLOT, Understanding Institutional Racism, in EUROPE’S NEW RACISM: CAUSES, MANIFESTATIONS, AND SOLUTIONS 27, 31 (Evens Foundation ed., Evens Found. 2002) (internal quotation marks omitted). 15. CLAIRECE BOOHER FEAGIN & JOE R. FEAGIN, DISCRIMINATION AMERICAN STYLE: INSTITUTIONAL RACISM AND SEXISM 30 (1978). 16. Id. 17. Id. at 31. 4 Stetson Law Review [Vol. 47
Executive Order—under the pretext of national security from “radical Islamic extremism”—is an example of institutionalized racial discrimination against foreign nationals based on their nationality. In Part I, this Article provides a brief explanation regarding the development of international refugee law, state responsibilities towards refugees under international and U.S. federal law, and the prohibition of discrimination towards such persons. Part II introduces the history of racial exclusion in U.S. immigration laws, particularly towards persons that meet the modern definition of a refugee. Part III examines the legislative purpose of Executive Order 13,769, the Ninth Circuit Court of Appeals’ judicial examination, and the order’s legitimacy under federal and international human rights law. Part IV concludes that a reversal of the Circuit Court’s injunction and similar discriminatory legislation would produce only negative effects on refugee populations and U.S. counterterrorism efforts.
A. Refugees and the Principle of Non-discrimination Under International Human Rights Law
After World War II and the Nuremberg Trials, the United States was instrumental in developing international human rights law with the Universal Declaration of Human Rights (“UDHR”)18: the first document proclaimed by the United Nations to establish fundamental human rights and universal protection.19 The UDHR emphasized that international human rights are inalienable rights on the very basis of being a human being and that State actors without legal consequence would not infringe upon inherent liberties, such as the right to equality.20 The purpose of the UDHR was to ensure that the mass genocide of six million Jews during the Holocaust would not reoccur.21
18. Jimmy Carter, A Cruel and Unusual Record, N.Y. TIMES (Jun. 24, 2012), http://www.nytimes.com/2012/06/25/opinion/americas-shameful-human-rights- record.html. 19. Universal Declaration of Human Rights pmbl., Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 [hereinafter UDHR]. 20. Id. 21. See U.S. Holocaust Mem’l Museum, Documenting Numbers of Victims of the Holocaust and Nazi Persecution, UHMM.ORG, https://www.ushmm.org/wlc/en/ article.php?ModuleId=10008193 (last visited Oct. 21, 2017) (explaining that up to six million Jewish people died in the Holocaust). 2017] Executive Order 13769 5
Under Article 2, all persons are entitled to the rights and liberties found in the declaration “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”22 Article 7 further states that all persons possess the individual human right to equality before the law “without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”23 Finally, Article 14 asserts that all persons have the right to seek asylum from persecution.24 Thus, pursuant to international human rights law, every individual—regardless of citizenship or immigration status—maintains the human right to equality without discrimination based on any classified distinction, such as race or national origin. Equally important, every individual maintains the human right to seek refuge in another country, free from discrimination. The enactment of the UDHR did not extend far enough to protect individuals fleeing persecution. Although the UDHR held that all persons have a human right to seek political asylum, international law lacked a clear definition of a refugee, eligibility terms, and State responsibilities towards such persons escaping persecution. The United Nations constructed the office of the United Nations High Commissioner for Refugees (“UNHCR”), authorizing the committee to institute an international legal instrument that defines and outlines the rights of displaced persons and State obligations to them.25 As a result, UNHCR developed the 1951 Convention Relating to the Status of Refugees26
22. UDHR, supra note 19, Art 2. 23. Id. Art 7. 24. “(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purpose and principles of the United Nations.” Id. Art 14. 25. See UN Refugee Agency, Advocacy, UNHCR.ORG, http://www.unhcr.org/en- us/advocacy.html (last visited Oct. 21, 2017) (noting the organization’s responsibility for making the law aligns with international standards). 26. See UN Refugee Agency, International Status of Refugees: Convention Relating to the Status of Refugees – Implementation, UNHCR.ORG, http://adlib-ras.unhcr.org/ ais5/Details/archive/110002044 (last visited Oct. 21, 2017) (indicating the UNHCR’s involvement in the implementation of the Convention and its existence in the organization’s archives). 6 Stetson Law Review [Vol. 47 and the 1967 Protocol.27 The legal term “refugee,” originally limited to events prior to January 1, 1951, was defined as an individual who,
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.28
The 1967 Protocol amended the Convention by removing the limitation to events prior to 1951, thereby giving universal coverage.29 The United States did not sign the Convention; however, the United States became a signatory party to the 1967 Protocol on November 1, 1968, binding it to the Convention.30 The Refugee Convention prohibits discrimination towards a refugee based on race, religion, or country of origin under Article 3.31 Article 7 holds that States shall provide refugees with the same treatment as other foreign nationals.32 Finally, Article 32 asserts that a refugee may not be expelled from a State on the grounds of national security or public order without the due process of law— a principle derived from the U.S. Constitution—allowing the
27. See UN Refugee Agency, International Status of Refugees: Protocol Relating to the Status of Refugees – Implementation, UNHCR.ORG, http://adlib-ras.unhcr.org/ais5/ Details/archive/110002048 (last visited Oct. 21, 2017) (indicating the UNHCR’s involvement in the implementation of the Protocol and its existence in the organization’s archives). 28. Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S 303, entered into force 22 Apr. 1954, Art 1 § (A)(2), available at https://treaties.un.org/ doc/Publication/MTDSG/Volume%20I/Chapter%20V/V-2.en.pdf [hereinafter Refugee Convention]. 29. See Protocol Relating to the Status of Refugees, 31 Jan. 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267, entered into force 4 Oct. 1967, available at https://treaties.un.org/doc/Publication/UNTS/ Volume%20606/v606.pdf [hereinafter Protocol] (defining a refugee as a person who would meet the definition established in the Convention if the 1951 limitation was removed). By ratifying the Protocol, the United States bound itself to respect Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees. Id. 30. UN Refugee Agency, States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol, UNCHR.ORG, http://www.unhcr.org/en-us/protection/basic/ 3b73b0d63/states-parties-1951-convention-its-1967-protocol.html (last visited Oct. 21, 2017). 31. Refugee Convention, supra note 28, Art 3. 32. Id. Art 7. 2017] Executive Order 13769 7 refugee to receive adequate and proper notice of the expulsion and an opportunity to be heard.33 Equally important, a State party may not repatriate a refugee to his or her country of origin where he or she may have a well-founded fear of future persecution on account of his or her race, religion, nationality, political opinion, or membership in a particular social group. This is also known as the principle of non-refoulement.34 Thus, the Refugee Convention obligates the United States to prohibit state actors from discriminating against refugees on the basis of the previously mentioned protected classifications and excludes repatriation to his or her country of origin where he or she maintains a well- founded fear of persecution. In 1992, the United States also ratified the International Covenant on Civil and Political Rights (“ICCPR”), a human rights treaty guaranteeing that State parties protect basic human rights, including all enumerated rights, without distinction on the basis of race, color, religion, or nationality (Article 2) and that all persons have equal protection before the law without discrimination based on race, color, religion, or nationality (Article 26).35 Subsequently, the United States also signed and ratified the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”), an international treaty specifically recognizing that all persons maintain the protection of fundamental liberties free from distinction based on race, color, or national origin.36 Article 1, Section 1 defines racial discrimination as
any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the
33. Id. Art 32 §§ 1–2; see also U.S. CONST. amend. V (establishing the need for due process). 34. Refugee Convention, supra note 28, Art 33. Although not discussed in this Article, Article 3, Section 1 of the Convention Against Torture also prohibits refoulement stating, “No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 85, entered into force 26 June 1987, Art 3 § 1. 35. International Covenant on Civil and Political Rights, 19 Dec. 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967), entered into force 23 Mar. 1976, available at http://www.refworld.org/docid/3ae6b3aa0.html, Art 2, 26 [hereinafter ICCPR]. 36. International Convention on the Elimination of All Forms of Racial Discrimination, 21 Dec. 1965, 660 U.N.T.S. 195, 5 I.L.M 352 (1966), entered into force 4 Jan. 1969, available at http://www.refworld.org/docid/3ae6b3940.html [hereinafter ICERD] (noting the participation of the United States, as well as the purpose of the treaty). 8 Stetson Law Review [Vol. 47
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.37
Under Article 2, contracting States are obligated to condemn racism and discrimination by instituting laws and policies in compliance with the ICERD.38 Furthermore, the ICERD requires State parties to nullify any existing racially discriminatory laws and prohibits the enactment of legislation that “strengthen[s] racial division.”39 Article 5 reasserts human rights previously outlined in the ICCPR, such as the right to nationality, and maintains that such international human rights are free from racial discrimination based on race, color, nationality, or ethnicity.40 Both the ICCPR and ICERD are exceedingly important to the United States’ obligations under international law. Both conventions require that the United States protect the human rights of its citizens and foreign nationals within its borders. Moreover, in compliance with the ICERD, the United States must protect individuals from racial discrimination and prohibit the enactment of racially discriminatory legislation and policies. These fundamental rights extend to refugees, who are also protected by the Refugee Convention and the Universal Declaration of Human Rights.
B. Refugees and the Principle of Non-Discrimination Under U.S. Federal Law
The United States government prides itself on the development of this nation after European Protestants sought refuge from religious persecution in Great Britain. In a letter to Tench Tilghman dated March 24, 1784, George Washington exhibited the country’s acceptance of immigrant workers and his desire to employ them, stating, “If they are good workmen, they may be of [Asia], Africa, or Europe. They may be Mahometans [Muslim], Jews, or Christian of any Sect—or they may be
37. Id. Art 1 § 1. 38. Id. Art 2 § 1(a). 39. Id. Art 2 § 1(c–e). 40. Id. Art 5. 2017] Executive Order 13769 9
Atheists.”41 Three years later, the Founding Fathers incorporated the principal of freedom from persecution without distinction with the ratification of the Federal Constitution and the Bill of Rights. Within the Bill of Rights, federalists passed the Fifth Amendment, which guarantees due process:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.42
The U.S. Supreme Court has interpreted the Fifth Amendment to guarantee individuals the right to procedural due process—where persons are guaranteed notice and a fair hearing to address the infringement or taking of liberty, life, or property.43 The Supreme Court has also inferred that the Fifth Amendment guarantees equal protection—applicable to the federal government—under the Due Process Clause.44 The rights enumerated in the Federal Constitution are not restricted to U.S. citizens or lawful permanent residents, but extend to all persons within the United States, including refugees seeking asylum.45
41. Nat’l Historical Publ’ns & Records Comm’n, From George Washington to Tench Tilghman, 24 March 1784, FOUNDERS.ARCHIVES.GOV, https://founders.archives.gov/ documents/Washington/04-01-02-0174 (last visited Nov. 6, 2017). 42. U.S. CONST. amend. V. 43. Gary Lawson et al., The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. REV. 415, 423 (2014); see Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (holding that racial discrimination in the public schools of Washington, D.C. violated Black Americans’ due process of law under the Fifth Amendment, whereas the guarantee of “liberty” establishes one’s right to equal protection and is thereby applicable to the federal government). 44. Lawson, supra note 43, at 419 n.17; see Bolling, 347 U.S. at 498–500 (holding that racial discrimination in the public schools of Washington, D.C. violated Black Americans’ due process of law under the Fifth Amendment, whereas the guarantee of “liberty” establishes one’s right to equal protection and is thereby applicable to the federal government). 45. Fundamental rights guaranteed by the Constitution are extended to all persons within the bounds of the United States and its territories, regardless of citizenship status. See Zadvydas v. Davis, 533 U.S. 678, 679 (2001) (stating that noncitizens in U.S. territories are protected under the Fifth Amendment’s Due Process Clause). 10 Stetson Law Review [Vol. 47
Under Article I, Congress maintains the constitutional authority to legislate immigration law.46 With that authority, Congress passed the Immigration and Nationality Act of 1952 (“INA”), which governs immigration law and delegates its implementation to the Attorney General and subsequently the Secretary of the Department of Homeland Security after the terrorist attacks on September 11th.47 Congress first amended the INA with the Immigration Act of 1965, which prohibits discrimination against immigrants and non-immigrants (persons visiting the United States on a temporary basis) based on national origin.48 The non-discrimination clause asserts, “[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”49 The purpose of the non-discrimination clause was to eliminate previous immigration policy through which the government exhibited preferential treatment in issuing immigration benefits based on nationality.50 Congress later enacted the Refugee Act of 1980 (“Refugee Act”), which established the federal legislative definition of a refugee.51 In addition, the Refugee Act authorizes the Department of State to determine the number of refugees for admission each year; allows the Department of Homeland Security to develop the adjudicative process permitting refugees to adjust their immigration status to lawful permanent residency; and warrants
46. “The Congress shall have Power . . . To establish a uniform Rule of Naturalization.” U.S. CONST. art. I, § 8, cl. 1, 4. 47. Implementation of immigration law was subsequently delegated to the Secretary of the Department of Homeland Security after the establishment of the agency following the terrorist attacks on September 11, 2001. Immigration and Nationality Act, Pub. L. No. 82- 414, § 103, 66 Stat. 163, 173–74 (1952); see Homeland Security Act, Pub. L. No. 107-296, § 101, 116 Stat. 2135, 2142 (2002) (noting that one purpose of establishing a Commission is to examine and relay facts pertaining to the terrorist attacks that occurred on September 11, 2001 and that one function is to conduct investigations possibly into immigration). 48. Immigration and Nationality Act, Pub. L. No. 89-236, § 202(a), 79 Stat. 911, 911 (1965). 49. Id. 50. See id. (omitting an explicit mention of the purpose behind the clause’s inclusion but the clause produces an obvious result); see also David Bier, Trump’s Exclusion of Immigrants from Specific Countries Is Not Legal, CATO.ORG (Jan. 31, 2017, 2:24 PM), https://www.cato.org/blog/trumps-exclusion-immigrants-specific-countries-not-legal (discussing the supposed purpose of the Amendment on which President Donald Trump relied to act in contrast to the plain meaning of the law). 51. Refugee Act of 1980, Pub. L. No. 96-212, § 201, 94 Stat. 102, 102–03 (1980) (codified as 8 U.S.C. § 1101(a)(42) (2014)). 2017] Executive Order 13769 11 the Department of Health and Human Services to implement the Refugee Resettlement Program, which provides integration services (e.g., health, employment assistance, child care services, etc.).52 The enactment of the Refugee Act was actualized to satisfy state obligations under the 1951 Refugee Convention and 1967 Protocol.53
II. BACKGROUND AND HISTORY
As previously mentioned, racial discrimination under the ICERD includes laws or policies that exclude, restrict, give preference, or create distinction on account of an individual’s “race, [color], descent, or national or ethnic origin.”54 The ICERD makes government policies that infringe upon human rights due to a racially discriminatory legislative purpose or effect a violation of international law.55 Notwithstanding, the United States did not become a signatory party to the ICERD until its ratification in 1994.56 Prior to the establishment of the United Nations and the implementation of legal frameworks protecting human rights, the primary safeguard from institutionalized racial discrimination was the U.S. Constitution. Nonetheless, historically the United States has not been immune to administering racially discriminatory policies towards foreign nationals, as exemplified by the forced migration of Africans for indentured servitude.57 The United States first excluded immigration based on national or ethnic origin with the Chinese Exclusion Act of 1882.58 Congress continued to exercise its constitutional authority to
52. Id. § 207–08 (codified as 8 U.S.C. 1158 (1982) (granting various departments with the authority to conduct certain actions). 53. Sarah R. Goodman, Note, Asking for Too Much? The Role of Corroborating Evidence in Asylum Proceedings in the United States and United Kingdom, 36 FORDHAM INT’L L.J. 1733, 1747 (2013) (noting that the U.S. incorporated the 1951 Convention and Handbook provisions into the Refugee Act to meet international requirements). 54. ICERD, supra note 36, Art 1 § 1. 55. Id. Art 2 § 1; see Stephen Menendian et al., Structural Racism,KIRWAN INST. 1, available at http://www.kirwaninstitute.osu.edu/reports/2009/12_2009_CERDReport_SRintheUS.pdf (last visited Nov. 6, 2017) (defining racial discrimination broadly to include laws that have the purpose or effect of generating unequal human rights and freedoms). 56. Menendian et al., supra note 55, at 1 n.1. 57. See KEVIN R. JOHNSON,THE “HUDDLED MASSES” MYTH: IMMIGRATION AND CIVIL RIGHTS 13 (2004) (noting that the United States has a lengthy history of harsh treatment towards minorities, specifically those of African descent). 58. See id. at 19 (discussing the timing of discriminatory immigration laws and the public sentiment towards Chinese persons). 12 Stetson Law Review [Vol. 47 racially exclude immigrants based on national origin through World War I.59 During World War II, based on national security concerns, the U.S. government initially refused the entry of European Jews fleeing Nazi persecution.60 Finally, modern U.S. immigration policies continue to exclude refugees based on ethnicity or national origin, particularly Haitians and Central Americans.61
A. Chinese Exclusion Acts
After the Gold Rush of 1849, Chinese nationals immigrated to the west coast in search of economic opportunities in the mining, garment, factory, and agricultural industries.62 By the late 1800s, unemployment reached the west coast, and citizens attributed the economic recession to Chinese immigrants who conducted work for less pay.63 At the same time, white Americans became increasingly xenophobic towards Chinese nationals, as a result of racial tension and cultural attitudes of superiority over people of color lingering after the Civil War.64 In response to the public’s fears that Chinese immigrants were taking jobs away from U.S. citizens, Congress passed legislation “limit[ing] the number of Chinese [immigrants] . . . to fifteen per ship or vessel”; however, President Rutherford B. Hayes vetoed the bill because it violated an international treaty with China, the Burlingame-Seward Treaty.65 In an effort to compromise with Democrats, President Hayes “appointed U.S. diplomat James B. Angell to negotiate” the revision of the treaty and limit Chinese immigration.66 The Angell Treaty of 1880 authorized the U.S. government to suspend,
59. See id. at 21 (implying, through talk of ending exclusion during World War II, that exclusion existed earlier than that during and before World War I). 60. Id. at 39–40. 61. Id. at 40. 62. Chinese Exclusion Act (1882),HARV. U. LIBR. OPEN COLLECTIONS PROGRAM, http://ocp.hul.harvard.edu/immigration/exclusion.html (last visited Oct. 23, 2017) [hereinafter Chinese Exclusion]; see Chinese Immigration and the Chinese Exclusion Acts, U.S. DEP’T OF STATE: OFFICE OF THE HISTORIAN, https://history.state.gov/milestones/ 1866-1898/chinese-immigration (last visited Nov. 6, 2017) [hereinafter Chinese Immigration] (noting that Chinese laborers immigrated to America to work in mines, factories, and the field of agriculture). 63. Chinese Exclusion, supra note 62. 64. Chinese Immigration, supra note 62. 65. Id. 66. Id. 2017] Executive Order 13769 13 regulate, or limit the immigration of Chinese laborers specifically immigrating for economic advancement.67 In 1882, Congress passed the Chinese Exclusion Act, which paralleled the Angell Treaty and suspended Chinese immigration for ten years.68 Chinese immigrants already in the United States were provided documents identifying their classifications (e.g., laborer, merchant, diplomat, etc.) and permitting temporary travel between the two countries.69 Under the Scott Act of 1988, Congress reversed the clause permitting freedom of travel to China for Chinese immigrants with lawful residence in the United States.70 Given that the Chinese Exclusion Act of 1882 only restricted Chinese immigration for ten years, Congress then passed the Geary Act of 1892 and extended the restrictions for an additional ten years.71 In 1902, the Geary Act was made permanent and expanded to the restriction of immigrants from the Philippines and Hawaii.72 The Chinese Exclusion Act and subsequent extensions were finally challenged in Chae Chan Ping v. United States.73 Appellant, a Chinese laborer with a lawful resident certificate permitting his re-entry, departed for China in June 1887.74 On October 8, 1888, appellant returned to the United States and was inspected at the San Francisco port of entry.75 The immigration official refused appellant’s entry, citing the immigration certificate’s invalidity given the passage of the Scott Act, which prohibited Chinese residents’ re-admission into the United States.76 Congress
67. Lucy Salyer, Chew Heong v. United States: Chinese Exclusion and the Federal Courts,FED. JUD. CENTER 3, 38–39 (2006), https://www.fjc.gov/history/famous-federal- trials/chew-heong-v.-u.s.-chinese-exclusion-and-federal-courts (last visited Nov. 6, 2017). 68. Chinese Exclusion Act of 1882, Pub. L. No. 47-126, § 1, 22 Stat. 58, 58 (1882) (repealed 1943). 69. Chinese Immigration, supra note 62. 70. Pub. L. No. 50-1064, § 1, 22 Stat. 504, 504 (1888) (repealed 1943); see Chinese Immigration, supra note 62 (explaining that Congress furthered Chinese exclusion with the implementation of the Scott Act, which made it impossible for Chinese residents to reenter the United States). 71. The Act also reaffirmed that Chinese immigrants lawfully present within the United States must retain immigration certificates attesting to their status. If a Chinese national did not obtain a residence certificate, he or she would be arrested, forced into hard labor, and subsequently deported. Geary Act of 1892, Pub. L. No. 52-60, § 6, 27 Stat. 25, 25–26 (1892) (repealed 1943). 72. Chinese Immigration, supra note 62. 73. 130 U.S. 581 (1889). 74. Id. at 582. 75. Id. 76. Id. 14 Stetson Law Review [Vol. 47 approved the Scott Act just seven days prior to appellant’s arrival.77 Appellant raised the question of whether the federal government retained the right to exclude Chinese immigrants pursuant to its sovereign power under the U.S. Constitution.78 Writing for the Court, Justice Stephen Johnson Field held:
The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determinations, so far as the subjects affected are concerned, are necessarily conclusive upon all its departments and officers. If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other.79
Hence, Justice Field contended that Congress and the executive branch have plenary or sole power to govern immigration legislation with limited judicial review, pursuant to Congress’ authorization to legislate “naturalization” under Article I and the federal government’s sovereignty. Consequently, because
[t]he power of exclusion of foreigners [is] an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the [C]onstitution, the right to its exercise at any time when, in the judgment of the government; the interests of the country require it, cannot be granted away or restrained on behalf of any one.80
77. See id. (calculating the spread in time based on the relevant dates); see also Scott Act, Pub. L. No. 50-1064, 22 Stat. 504, 504 (1888) (repealed 1943) (listing October 1, 1888 as the date the fiftieth Congress approved the supplement to the Act). 78. Chae Chan Ping, 130 U.S. at 589. 79. Id. at 606. 80. Id. at 609. 2017] Executive Order 13769 15
Professor Kevin Johnson expressed that modern federal courts continue to invoke the plenary power doctrine allowing the federal government to discriminate against foreign nationals who maintain a lawful right to permanently reside in the United States.81 Exercising plenary power, Congress continued to extend the exclusionary immigration regulations, expanding to the limitation of immigrants from Japan in 1907 and to such persons in the “Asiatic Barred Zone” in 1917.82 For over sixty years, Asians—particularly Chinese nationals—endured both individual racism from Americans and institutionalized racial discrimination as a result of immigration policies and judicial decisions. The Chinese Exclusion Acts were not repealed until 1943, during the height of World War II when China allied with the United States against Japan.83
B. Immigration Act of 1917 and 1924
When Congress extended the Chinese Exclusion Acts with the Immigration Act of 1917, the federal legislation developed a literacy test administered to all immigrants seeking admission, who were over the age of sixteen.84 At a time when the nation legitimized segregation with Plessy v. Ferguson,85 segregationists also supported the new legislation because it restricted non- English speaking immigrants from entering the United States.86 As a result, the law not only excluded the entry of immigrants from the “Asiatic Barred Zone” but also disproportionately refused entry to Greeks, Italians, Hungarians, and Poles.87 President Woodrow
81. JOHNSON, supra note 57, at 86. 82. See Kevin R. Johnson, Race, the Immigration Laws, and Domestic Race Relations: A “Magic Mirror” into the Heart of Darkness, 73 IND. L.J. 1112, 1121 (1998) (showing that Congress implemented laws to exclude immigration from Asian nations in 1917); Ray Sanchez, Immigration Ban? We Were There Exactly 100 Years Ago Today, CNN, http://www.cnn.com/2017/02/05/politics/trump-ban-1917-immigration-act-trnd/index.html (last updated Feb. 5, 2017, 12:01 AM EST) (explaining that the modern day “Asiatic Barred Zone” includes Russia, Afghanistan, India, Iran, Saudi Arabia, Southeast Asia, and the Asian-Pacific islands). 83. Sanchez, supra note 82. 84. The Immigration Act of 1924 (The Johnson-Reed Act), U.S. DEP’T OF STATE: OFFICE OF THE HISTORIAN, https://history.state.gov/milestones/1921-1936/immigration-act (last visited Nov. 6, 2017) [hereinafter Johnson-Reed Act]. 85. 163 U.S. 537, 550–51 (1896) (establishing the separate-but-equal doctrine, which allowed states to create separate facilities for blacks and whites so long as they were equal pursuant to the Equal Protection Clause of the Fourteenth Amendment). 86. Johnson, supra note 82, at 1128. 87. JOHNSON, supra note 57, at 23. 16 Stetson Law Review [Vol. 47
Wilson vetoed the law, which was subsequently overridden by Congress.88 In vetoing the bill, President Wilson asserted that the legislation “all but close[d] entirely the gates of asylum which have always been open to those who could find nowhere else the right and opportunity of constitutional agitation for what they conceived to be the natural and inalienable rights of men.”89 The literacy tests proved insufficient for restricting the number of immigrants entering the United States.90 Thus, Congress revised the naturalization laws again in the 1920s.91 In an effort to continue formulating the ethnic composition of the United States, Senator William P. Dillingham (R–Vermont) introduced a bill to establish a national origin quota system, limiting the entry of foreign nationals to three percent of their total population within the United States, as set forth in the 1910 U.S. census.92 Senator Dillingham’s quota system was renewed in 1922, and by 1924, the program was well established.93 Congress passed the Immigration Act of 1924, also known as the Johnson-Reed Act, which amended the quota system by lowering the existing program numbers to two percent of the foreign national population and revised the calculations based on the 1890 U.S. census rather than the 1910 census.94 The quota system, originally based on the number of foreign nationals born outside of the United States but living within the U.S. territorial bounds, was now based on the entire U.S. population, including natural-born citizens.95 Consequently, the percentage of available visas increased for Western Europe but decreased for other regions such as Southern and Eastern Europe.96 According to Kevin Johnson, the legislative purpose of the revised quota system was to create a visa program that favored
88. Sanchez, supra note 82. 89. Id. (linking to another page presenting the entirety of President Wilson’s veto message). 90. Johnson-Reed Act, supra note 84. 91. Id. 92. Id. 93. Id. 94. Id.; see Immigration Act of 1924, Pub. L. No. 68-139, § 11(a), 43 Stat. 153, 159 (repealed 1952) (stating that “[t]he annual quota of any nationality shall be 2 per centum of the number of foreign-born individuals of such nationality resident in continental United States as determined by the United States census of 1890, but the minimum quota of any nationality shall be 100”). 95. Johnson-Reed Act, supra note 84. 96. Id. 2017] Executive Order 13769 17
Northern Europeans, whose culture Americans viewed as superior to Southern and Eastern Europeans’.97 At the time of its passage, Southern and Eastern Europeans were considered non-white and perceived as unable to assimilate naturally into American society.98 The Immigration Act of 1924 also excluded other races and ethnic persons. The Act included a provision that refused entry to any foreign national who, by virtue of his or her race or nationality, was ineligible for citizenship.99 The law now extended to the exclusion of Asian descendants who were not previously prevented from immigrating, such as Japanese nationals.100 The provision also excluded persons of African descent as a result of Dred Scott v. Sandford, which held that persons of African descent were not considered citizens under Article III of the U.S. Constitution.101 Even with immigration reform in 1952 and the passage of the INA, Congress retained the racially discriminatory nationality quota system.102 The quota system was not changed until the Immigration and Nationality Act of 1965.103
C. Anti-Semitism and the Refusal of Jewish Refugees during World War II
After the national origin quota system was established, the allocation program also negatively affected Jewish refugees fleeing persecution in Nazi Germany. As previously mentioned, Europeans from South and Eastern Europe were considered non- white and inferior; thus, there were limitations to their available visas.104 Furthermore, in the 1930s, Americans were still recovering from the Great Depression and sustained xenophobic fears that immigrants would obtain remaining available employment.105 At the onset of World War II in 1939, the quota
97. JOHNSON, supra note 57, at 23. 98. Id. 99. Johnson-Reed Act, supra note 84. 100. Id. 101. Dred Scott v. Sandford, 60 U.S. 393, 421 (1857). 102. JOHNSON, supra note 57, at 24. 103. See id. (describing the timeline of the quota system’s evolution). 104. See id. at 23 (describing the common attitude toward southern and eastern Europeans). 105. Constitutional Rights Found., History Lesson 5: U.S. Immigration Policy and Hitler’s Holocaust,EDUCATING ABOUT IMMIGR., http://crfimmigrationed.org/ 18 Stetson Law Review [Vol. 47 system only allocated for 27,370 German citizens; however, over 300,000 German refugees—most of them Jews fleeing the Nazis— were pending applicants for U.S. visas.106 According to historians, only approximately 20,000 visa applications of Jewish refugees were approved that year.107 Additionally, the federal government denied visas to any individual who was “‘likely to [be] a public charge.’”108 Since many Jewish refugees lost their jobs and abandoned their property during the war, Congress anticipated that such immigrants would seek government assistance upon entry.109 Secretary of Labor, Frances Perkins, recommended to President Franklin D. Roosevelt that he initiate an Executive Order permitting an increase in the number of Jewish refugees from Germany.110 Secretary Perkins contended that the State Department should be authorized to give priority processing to refugees fleeing religious or racial persecution.111 Nonetheless, State Department officials objected, and an Executive Order concerning refugees was never produced.112 By 1938, public opinion regarding the intake of Jewish refugees was largely opposed to their admission, citing national security concerns.113 Encouraged by statements from President Roosevelt and officials from the Department of Justice, Americans believed Nazi and Communist spies were presenting themselves as Jewish refugees seeking admission into the United States.114 President Roosevelt even held a press conference, during which he alleged
index.php?option=com_content&view=article&id=144:hl5&catid=50:lessonsforteachers (last visited Nov. 6, 2017) [hereinafter Holocaust]. 106. Id. 107. Id. 108. Id. 109. Id. 110. Id. 111. Id. 112. Id. 113. See id. (revealing that an opinion poll showed eighty-two percent of Americans still opposed admitting large numbers of Jewish refugees into the United States); see also Daniel A. Gross, The U.S. Government Turned Away Thousands of Jewish Refugees Fearing That They Were Nazi Spies, SMITHSONIAN.COM (Nov. 18, 2015), http://www.smithsonianmag.com/ history/us-government-turned-away-thousands-jewish-refugees-fearing-they-were-nazi- spies-180957324/ (describing how “[g]overnment officials from the State Department to the FBI to President Franklin Roosevelt himself argued that refugees posed a serious threat to national security”). 114. See Gross, supra note 113 (describing the story of Herbert Karl Friedrich Bahr, a refugee from Germany, who sought asylum in the Unites States, but was later revealed to be a Nazi spy). 2017] Executive Order 13769 19 unsubstantiated reports that Jewish refugees were engaging in espionage on behalf of the Nazi regime.115 As a result, the U.S. government heightened security vetting of any individual who had relatives in Nazi territories or concentration camps.116 This method prompted “spy trials” by the State Department, of persons whom the government believed were agents for either Nazis or Communists, and the State Department used the prosecutions as reasoning for refusing admission to Jewish refugees.117 The U.S. government’s racially discriminatory immigration policies undoubtedly contributed to World War II’s refugee crisis. Discrimination towards refugees further played out when almost a thousand German refugees—again, mostly Jewish—fled Europe on the St. Louis vessel, en route to Havana, Cuba.118 Upon reaching Cuba, the refugees were denied admission by immigration officials, who cited a revision in Cuba’s visa regulations.119 The vessel then departed for the United States and remained off the coast of Florida under watch by the U.S. Coast Guard.120 While refugees waited, pro-immigration advocates called for State Department officials to admit the refugees; however, the agency refused to act without congressional legislation or an executive order.121 Both Congress and President Roosevelt refused to act on the refugees’ behalf, and all remaining passengers were returned to Europe.122 Many Jews were offered refugee status in neighboring European countries.123 Notwithstanding, after the invasion of Europe by the Nazi regime, Nazi soldiers detained most of the St. Louis passengers and transported them to concentration camps.124 Historians believe that at least 254 of the St. Louis passengers that returned to Europe were killed during the Holocaust.125 The United States’ refusal to admit Jewish refugees and their subsequent persecution, based on unsupported claims of endangerment to
115. Id. 116. Id. 117. Id. 118. Holocaust, supra note 105. 119. Id. 120. Id. 121. Id. 122. Id. 123. Id. 124. Id. 125. Candice Norwood, A Twitter Tribute to Holocaust Victims,THE ATLANTIC (Jan. 27, 2017), https://www.theatlantic.com/politics/archive/ 2017/01/jewish-refugees-in-the-us/514742/. 20 Stetson Law Review [Vol. 47 national security, is an example of how racially discriminatory immigration policies can have a detrimental effect on refugees’ human rights to life.
D. Modern Racial Exclusion of Asylum Seekers and Refugees Based on National Origin
The refugee crisis during World War II was unprecedented. The Pew Research Center contends that in 1939 there were approximately 9.5 million Jews in Europe.126 That number drastically dropped as a result of the Holocaust with an estimated 3.8 million in 1945.127 The international shame regarding the rejection of Jewish refugees led the formation of the United Nations and subsequent international legal frameworks protecting human rights.128 The Refugee Act of 1980 was constructed for the United States to uphold its State obligations to the 1951 Refugee Convention and 1967 Protocol.129 Both the Department of State and Department of Justice worked together in the processing of immigrants seeking status as a refugee or asylum seeker.130 Despite legislative success, the federal government continued to face challenges in protecting asylum seekers and refugees. Research indicates that the implementation of immigration policies towards asylum seekers and refugees are not consistently uniform in practice.131 To illustrate, in 1980, the same year the Refugee Act was passed, Central America faced wars and economic devastation causing a refugee crisis of its own; however, U.S. immigration officials disallowed these refugees to apply for
126. Michael Lipka, The Continuing Decline of Europe’s Jewish Population,PEW RES. CENTER (Feb. 9, 2015), http://www.pewresearch.org/fact-tank/2015/02/09/europes-jewish- population/. 127. Id. 128. Michael Schaeffer Omer-Man, The Origins and Politics of Israel’s Refugee Debate, +972 MAGAZINE (Jan. 28, 2014), https://972mag.com/the-origins-and-politics-of-israels- refugee-debate/86180/. 129. Eleanor E. Downes, Fulfilling the Promise?: When Humanitarian Obligations and Foreign Policy Goals Conflict in the United States, 27 B.C. THIRD WORLD L.J. 477, 486 (2007). 130. See U.S. Attorney’s Office S. Dist. of Fla., U.S. Department of Justice Encourages Reporting of Human Rights Violations, U.S. DEP’T OF JUST. (Nov. 23, 2016), https://www.justice.gov/usao-sdfl/pr/us-department-justice-encourages-reporting-human- rights-violations (mentioning the Department of Justice’s involvement specifically but then referring to other agencies without naming the Department of State). 131. U.S. Comm’n on Int’l Religious Freedom, Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, USCIRF.GOV 17, http://www.uscirf.gov/sites/ default/files/Barriers%20To%20Protection.pdf (last visited Nov. 6, 2017). 2017] Executive Order 13769 21 political asylum.132 Finally, beginning with the Bush Administration, thousands of Haitian nationals seeking refugee status have been unlawfully repatriated to Haiti and also have been prohibited from filing for asylum,133 in heavy contrast from the large intake of their Caribbean neighbors, Cuban refugees.
1. The De Facto “No Asylum” Policy for Central Americans
After the passage of the Refugee Act, U.S. Immigration and Naturalization Service (“INS”) reorganized the agency, where immigration officers adjudicated applications for asylum claims.134 On July 30, 1981, President Ronald Reagan addressed the nation regarding America’s commitment to supporting a country of immigrants and upholding international obligations relating to the intake of refugees:
Finally, we recognize that immigration and refugee problems require international solutions. We will seek greater international cooperation in the resettlement of refugees and, in the Caribbean Basin, international cooperation to assist accelerated economic development to reduce motivations for illegal immigration.135
Although the Reagan Administration assured the international community that refugees would be resettled in the United States and that the country would cooperate with the United Nations and other stakeholders, the Administration struggled with maintaining its international commitments, particularly towards refugees from Central America. During the early 1980s, civil war and economic despair caused thousands of Guatemalans, Nicaraguans, and Salvadorans to flee, causing a mass exodus to the United States and Canada.136 Pro-
132. Rachael L. Godlove, United States Asylum Policy: Safe Haven or Structured Exclusion? 72 (Nov. 21, 2008) (unpublished M.A. thesis, Georgetown University), available at https://repository.library.georgetown.edu/ bitstream/handle/10822/558205/umi-georgetown-1068.pdf?sequence=1. 133. Id. at 47. 134. See Edward M. Kennedy, Refugee Act of 1980, 15 INT’L MIGRATION REV. 141, 150 (1981) (explaining the impact of the new Refugee Act). 135. Presidential Library & Museum, Statement on United States Immigration and Refugee Policy, REAGANLIBRARY.GOV (July 30, 1981), https://reaganlibrary.gov/archives/ speeches/29-archives/speeches/1981/514-73081a. 136. Susan Gzesh, Central Americans and Asylum Policy in the Reagan Era,MIGRATION POL’Y INST. (Apr. 1, 2006), http://www.migrationpolicy.org/article/central-americans-and- 22 Stetson Law Review [Vol. 47 immigration and human rights activists called for the Reagan Administration to recognize the actions of these foreign governments as human rights violations; however, the Administration focused on national security and their political agenda to combat communism.137 For instance, Amnesty International reported human rights violations by state actors, including military officials responsible for murdering community activists, priests, nuns, and union leaders in El Salvador, as well as Guatemalan soldiers for targeting indigenous persons causing internal displacement, kidnappings, and mass murders.138 Nonetheless, the Reagan Administration intervened and supported both the Salvadoran and Guatemalan governments.139 In 1995, over 140,000 Central American refugees applied for asylum, and “[f]ewer than [ten] percent of Salvadorans, Guatemalans, and Hondurans were granted asylum in 1999.”140 The low percentage in asylum grants for Central Americans was the direct result of the Reagan Administration’s refusal to recognize the immigrants as refugees fleeing human rights violations. INS officials regarded the immigrants as “‘economic migrants’” escaping financial hardships; thus, Central Americans did not qualify for asylum under the Refugee Act.141 The Reagan Administration allowed its foreign policy relations and support of the Central American governments to significantly influence INS decisions regarding asylum applications.142 Human rights activists also contend that U.S. immigration officials discouraged Central Americans from applying for asylum.143 Guatemalans and Salvadorans were often apprehended at the U.S.-Mexico border, where they were “pressured . . . to ‘voluntarily return’ to their
asylum-policy-reagan-era; John Rosinbum, A Crisis Transformed: Refugees, Activists and Government Officials in the United States and Canada During the Central American Refugee Crisis 12 (Mar. 2014) (unpublished Ph.D. dissertation, Arizona State University), available at https://repository.asu.edu/attachments/135023/ content/Rosinbum_asu_0010E_13984.pdf. 137. Id. 138. Id. 139. Id. “[O]ver 75,000 Salvadorans had been murdered or ‘disappeared,’” and researchers calculate that the Salvadoran war “had taken the life of 1 out of every 80 Salvadorans.” Rosinbum, supra note 136. 140. Advameg, Inc., Refugee Policies—Refugees and the Cold War, AMERICANFOREIGNRELATIONS.COM, http://www.americanforeignrelations.com/ O-W/Refugee-Policies-Refugees-and-the-cold-war.html (last visited Nov. 6, 2017). 141. Gzesh, supra note 136. 142. Id. 143. Id. 2017] Executive Order 13769 23 countries of origin,” and never received legal counsel to seek asylum.144 Pro-immigration lawyers and human rights organizations condemned the Reagan Administration, contending that the increase in deportations of Central American refugees and low approval of asylum claims were violations of the 1951 Refugee Convention and the Refugee Act of 1980.145 The United States did not cease violating the principle of non- refoulement of Central American asylum seekers until a group of religious and human rights organizations brought forth a class action claim in American Baptist Churches v. Thornburgh.146 According to the plaintiffs, the U.S. government discriminated against Central American immigrants and denied asylum claims based on the individuals’ national and ethnic origin.147 In 1991, the federal court approved what is now known as the ABC Settlement Agreement, where the U.S. government ensures that “eligible class member[s] who register[] for . . . asylum by the agreed-upon dates . . . [are] entitled to an initial or de novo . . . adjudication [of their asylum claims] under the asylum regulations [of 1990].”148 An eligible class member—even if he or she received a previous denial on his or her asylum claim—may re-file under the settlement guidelines.149 The ABC settlement agreement was important to the overall processing of refugees and asylum seekers because it ensured that the adjudication of humanitarian applications would no longer be influenced by U.S. foreign policy agendas. Now, immigration officials adjudicate refugee and asylum claims on a case-by-case basis.150
144. Id. 145. See Gzesh, supra note 136 (indicating claims of human rights violations generally). 146. See generally id. (describing the circumstances surrounding and the implications of the case); Am. Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (detailing the noted case). 147. See Am. Baptist Churches, 760 F. Supp. at 799 (providing the plaintiffs’ claims). 148. U.S. Citizenship and Immigration Servs., American Baptist Churches v. Thornburgh (ABC) Settlement Agreement, USCIS.GOV, https://www.uscis.gov/laws/legal- settlement-notices/american-baptist-churches-v-thornburgh-abc-settlement-agreement (last updated Oct. 28, 2008). 149. Id. 150. U.S. Citizenship & Immigration Servs., The Affirmative Asylum Process, USCIS.GOV, https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-process (last updated Jan. 17, 2017). 24 Stetson Law Review [Vol. 47
2. Refugees from the Caribbean: The Differential Treatment Between Cuban and Haitian Nationals
During the Cold War, Congress passed the Cuban Adjustment Act, which permitted Cuban refugees to be paroled into the United States.151 After one year, a Cuban refugee could apply for an adjustment of immigration status to that of a legal permanent resident.152 The Cuban Adjustment Act essentially provided Cubans—fleeing communism—a pathway to citizenship. The special privileges established for Cuban refugees were an example of the U.S. government’s foreign policy stance against the Cuban regime and communism. During the 1980s, Cubans suffered a second refugee crisis where a mass exodus of Cubans immigrated to South Florida.153 On April 20, 1980, authoritarian Fidel Castro “announce[d] that all Cubans wishing to emmigrate to the U.S. [were] free to board boats at the port of Mariel.”154 Over the course of six months, approximately 125,000 Cuban refugees fled to the United States requesting political asylum.155 The Cuban refugee crisis was prompted by economic constraints due to housing and employment shortages plummeting the Cuban economy.156 At a time when Central American refugees fled politically driven civil wars but were refused asylum processing for being regarded as economic migrants, Cubans escaping financial hardships were automatically paroled into the United States as political refugees and guaranteed a pathway to U.S. citizenship.157 As previously mentioned, the favoritism towards Cuban refugees was initially influenced by the Johnson Administration’s position on communism in Cuba. The special immigration privileges towards Cubans did not cease until President Obama ended the exemption for Cuban parolees in
151. Cuban Adjustment Act of 1966, Pub. L. No. 89-732, § 1, 80 Stat. 1161, 1161 (1966). 152. Refugee Act of 1980, Pub. L. No. 96-212, § 201, 94 Stat. 102, 106 (1980). 153. A&E Television Networks, LLC, This Day in History: April 20, 1980 Castro Announces Mariel Boatlift, HISTORY.COM, http://www.history.com/this-day-in-history/ castro-announces-mariel-boatlift (last visited Nov. 6, 2017). 154. Id. 155. Id. 156. Id. 157. See generally Mary Turck, US Embrace of Cuban Refugees Underscores Hypocrisy on Immigration,AL JAZEERA AM. (Aug. 26, 2014, 6:00 AM EST), http://america.aljazeera.com/opinions/2014/8/cuban-refugees- centralamericanmigrantsimmigrationdeportation.html (discussing the United States’ seemingly hypocritical treatment of the different immigrants). 2017] Executive Order 13769 25
January 2017 following the restoration of U.S.-Cuba diplomatic relations.158 Nonetheless, a Cuban national may still arrive in the United States and apply for asylum or avail him- or herself of the UNHCR’s refugee processing.159 The termination of the Cuban parole program eradicated fifty years of preferential treatment towards Cuban nationals and placed them on an equal ground against non-Cuban refugees seeking international protection. Simultaneously, Haitian nationals fled Haiti to the same ports of entry in South Florida, seeking political asylum.160 In the late 1980s, Haiti faced political turmoil during which the longstanding dictatorship of the Duvalier family was overthrown.161 In 1990, a presidential election was held; however, the new government, led by Jean Bertrand Aristide, was “overthrown by [a second] military revolt[,]” leaving the Haitian government in pandemonium.162 Political supporters were “beaten, imprisoned, tortured, and murdered” by Haitian militants.163 As a result, almost 40,000 Haitian nationals fled the island seeking political asylum in the United States between 1991 and 1992.164 Of those near 40,000 Haitian refugees, only 10,747 were permitted to file asylum applications with INS.165 The U.S. Coast Guard began intercepting boats fleeing Haiti “and took [remaining survivors] to the U.S. naval base at Guantanamo Bay in Cuba.”166 In Guantanamo, Haitians received in-country refugee processing during which their eligibility for asylum was determined.167 Notwithstanding, once the naval base reached capacity at 12,000 refugees, President
158. Alan Gomez, Obama Ends ‘Wet Foot, Dry Foot’ Policy for Cubans, USA TODAY, https://www.usatoday.com/story/news/world/2017/01/12/obama-ends-wet-foot-dry-foot- policy-cubans/96505172/ (last updated Jan. 12, 2017, 9:03 PM EST). 159. U.S. Dep’t of State, Refugee Admissions Program for Latin America and the Caribbean, STATE.GOV (May 23, 2014), https://www.state.gov/j/prm/releases/ onepagers/228695.htm. 160. Constitutional Rights Found., History Lesson 9: Refugees from the Caribbean – Cuban and Haiti “Boat People,” EDUCATING ABOUT IMMIGR. (2016), http://www.crf- usa.org/images/pdf/ Ed%20on%20Immgr%20Lesson%209.pdf [hereinafter Caribbean]. 161. Id. 162. Id. 163. Id. 164. Id. 165. Patrick Gavigan, Migration Emergencies and Human Rights in Haiti,ORG. OF AM. STATES (Sept. 30–Oct. 1, 1997), http://www.oas.org/juridico/english/gavigane.html. 166. Caribbean, supra note 160. 167. Id. 26 Stetson Law Review [Vol. 47
George H.W. Bush signed Executive Order No. 12,807, authorizing the Coast Guard to repatriate all Haitians intercepted at sea.168 Immigration advocates argued that the executive order racially discriminated against Haitian refugees based on their national origin.169 Immigration lawyers noted that during the Cuban and Haitian refugee crises Cuban nationals were treated favorably and guaranteed resettlement, whereas Haitian nationals were forcefully repatriated to their country of origin, in violation of the non-refoulement principle under international law.170 At the time, the United States government was working with the United Nations on restoring the Haitian government and building a democracy.171 Thus, the U.S. government had a vested foreign policy interest in the success of a new Haitian democracy, unlike the Cuban government’s success because the federal government did not support its communist regime. As a consequence, a group of organizations, known as the Haitian Centers Council, Inc., representing Haitian refugees filed suit in the District Court for the Eastern District of New York, asserting the Executive Order violated the non-refoulement principle under Article 33 of the Refugee Convention of 1951 and of the 1967 Protocol and Section 243(h) of the INA prohibiting removal based on a protected classification.172 The Supreme Court held that the Executive Order did not violate international or federal law, permitting the repatriation of immigrants intercepted in international waters.173 Writing for the majority, Justice Stevens explained that Article 33 of the Convention was not intended to have an extraterritorial effect, meaning the international community intended to limit the
168. Gavigan, supra note 165; Interdiction of Illegal Aliens, Exec. Order No. 12,807, 57 Fed. Reg. 23, 133 (May 24, 1992). 169. Ron Harris, Immigration: Fleeing Haitians Failing to Find a U.S. Advocacy: Few Voices Among Groups Who Once Escaped Oppression Are Raised in Refugees’ Behalf, L.A. TIMES (Dec. 3, 1991), http://articles.latimes.com/1991-12-03/news/mn-591_1_haitian- refugee. 170. Id. 171. See U.S. State Dep’t, U.S. Relations with Haiti: Bureau of Western Hemisphere Affairs Fact Sheet, STATE.GOV (Mar. 23, 2017), https://www.state.gov/r/pa/ei/bgn/1982.htm [hereinafter Fact Sheet] (discussing the dynamics among the United States, Haiti, and the United Nations). 172. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 158 (1993). Note that Section 243(h)(1) of the INA prohibited the removal of an alien on account of race, religion, nationality, political opinion, or membership in a particular social group. INA, 8 U.S.C. § 243(h)(1) (repealed 1996). 173. Sale, 509 U.S. at 159. 2017] Executive Order 13769 27
Convention’s coverage to refugees already within the State’s territorial bounds.174 Thus, individuals who may classify as refugees may be repatriated to their countries of origin without violating international norms, if such refugees are intercepted and returned outside of the State’s territorial jurisdiction.175 Furthermore, the text of Section 243(h) applies to the Attorney General in the context of his or her domestic procedures of excluding or removing immigrants from the United States; therefore, Congress did not intend for the section to be implemented by the U.S. Coast Guard or the President.176 For these reasons, Congress did not intend for the Attorney General to guarantee deportation or exclusion hearings for persons excluded outside the United States.177 During the 1992 U.S. presidential election, then-democratic candidate Governor Bill Clinton called the repatriation of Haitian refugees “cruel” and “immoral,” advocating to end the blanket discriminatory practice.178 After winning the election, President Clinton reversed his decision and upheld former President Bush’s Executive Order, which led to the case of Haitian Centers Council, Inc.179 Despite the United States’ foreign policy agenda in Haiti, political violence and resulting poverty continued to impact the island.180 By 2003, John Ashcroft, Attorney General for President George W. Bush, declared that all Haitian refugees who safely arrived on U.S. soil and requested asylum would automatically be detained on the grounds of national security until their asylum applications were adjudicated by an immigration officer.181 The United States did not reverse its Haitian immigration policy until the 2010 earthquake, which killed approximately 160,000 Haitians
174. Id. at 177. 175. Id. at 171–74. 176. Id. at 173. 177. Id. at 174. 178. Elaine Sciolino, Clinton Says U.S. Will Continue Ban on Haitian Exodus, N.Y. TIMES (Jan. 15, 1993), http://www.nytimes.com/1993/01/15/world/clinton-says-us-will-continue- ban-on-haitian-exodus.html; Marc A. Thiessen, The Clinton Solution for Refugees: Guantanamo,WASH. POST (Nov. 23, 2015), https://www.washingtonpost.com/opinions/the- clinton-solution-for-refugees-guantanamo/2015/11/23/7bf338a4-91f4-11e5-8aa0- 5d0946560a97_story.html?utm_term=.4c146efea23b. 179. Sciolino, supra note 178. 180. Caribbean, supra note 160; Fact Sheet, supra note 171. 181. Caribbean, supra note 160. 28 Stetson Law Review [Vol. 47 and displaced almost 1.5 million.182 Under the direction of President Barack H. Obama, the “DHS [Department of Homeland Security] designated Haiti for TPS [Temporary Protected Status]” for persons “already living in the United States”.183 In May 2011, “Homeland Security Secretary Janet Napolitano extended and expanded TPS for Haitians . . . allowing those who had arrived in the United States up to one year after the earthquake to [apply],” and temporarily suspended deportations of Haitians.184 Although Haiti suffered from a devastating hurricane in 2016, the U.S. government only extended TPS by six months; it now ends on Jan. 22, 2018.185 All in all, the U.S. government has a long-standing history of excluding immigrants from entry into the country based on race and national or ethnic origin. Much like racist attitudes towards Africans, Asians, German Jews, and Southern and Eastern Europeans during the early 1900s, Haitians were still regarded as inferior because they were of African descent and immigrated from a poverty-stricken country.186 While Haitians were either being deported or intercepted at sea, racial tension in America was at an all-time high since the Civil Rights Movement in the 1960s. This was a result of the acquittal of four white Los Angeles police officers who beat a black motorist, Rodney King; the acquittal of O.J. Simpson, a black professional athlete accused of murdering his affluent Caucasian wife and her acquaintance; and a second beating by white New York police officers who tortured a Haitian immigrant, Abner Louima.187 Such attitudes and actions promoting the exclusion of Haitian refugees was in stark contrast to the government’s treatment of Cuban nationals—who self- identify as white and were automatically paroled into the United
182. Muzaffar Chishti & Sarah Pierce, United States Abandons Its Harder Line on Haitian Migrants in the Face of Latest Natural Disaster,MIGRATION POL’Y INST. (Oct. 26, 2016), http://www.migrationpolicy.org/article/ united-states-abandons-its-harder-line-haitian-migrants-face-latest-natural-disaster. 183. Id. 184. Id. 185. U.S. Citizenship and Immigration Services, Temporary Protected Status Designated Country: Haiti, USCIS.GOV, https://www.uscis.gov/humanitarian/temporary-protected- status/temporary-protected-status-designated-country-haiti (last updated Oct. 3, 2017). 186. Harris, supra note 169. 187. See LARRY K. GAINES & VICTOR E. KAPPELER, COMMUNITY POLICING: A CONTEMPORARY PERSPECTIVE 149, 466 (7th ed. 2015) (discussing these incidents’ effect on public perceptions and the incidents as “some of the most publicized incidents of racial tension”). 2017] Executive Order 13769 29
States on the basis of their national origin, providing them an opportunity to eventually seek U.S. citizenship.188
III. EXECUTIVE ORDER 13769
Throughout his presidential campaign, Donald J. Trump committed to the refusal of Muslims entering the United States.189 On December 7, 2015, then-candidate Trump released a statement on preventing Muslim immigration, asserting, “Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.”190 After one week as President, Trump signed Executive Order 13,769, which banned entry for 90 days by citizens of Iraq, Iran, Libya, Somalia, Sudan, and Yemen and ceased the processing of Syrian refugees indefinitely.191 The executive order also suspended RAP for 120 days.192 Outcry against the executive order, which opponents called a “Muslim ban,” was swift, prompting protests across the nation.193 On January 30, 2017, “Washington state Attorney General Bob
188. Amber R. Fox, Patterns of Identification: The Children of Latino/Non-Latino White Families 13 (Dec. 2010) (unpublished M.S. thesis, Texas A&M University), available at http://oaktrust.library.tamu.edu/bitstream/handle/1969.1/ETD-TAMU-2010-12-8150/FOX- THESIS.pdf (“The 2000 census reveals that Cubans are most likely to [identify as white].”); see Nate Cohn, More Hispanics Declaring Themselves White, N.Y. TIMES (May 21, 2014), https://www.nytimes.com/2014/05/22/upshot/more-hispanics-declaring-themselves- white.html?_r=0 (noting the change from a 2000 to 2010 census revealed that Cubans are most likely to identify as white as opposed to some other race). 189. Trump’s Promises Before and After the Election, BBC NEWS (Sept. 19, 2017), http://www.bbc.com/news/world-us-canada-37982000. 190. Jenna Johnson, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States,’ WASH. POST (Dec. 7, 2015, 7:43 PM), https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for- total-and-complete-shutdown-of-muslims-entering-the-united- states/?utm_term=.6cfa4b2d662c; see also Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration,DONALDJTRUMP.COM (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing- muslim-immigration (link intentionally to page not found because the press release seems to have been removed after Trump’s election as president as discussed in Fred Barbash, Muslim Ban Language Suddenly Disappears from Trump Campaign Website After Spicer Questioned,WASH. POST (May 9, 2017), https://www.washingtonpost.com/news/morning- mix/wp/2017/05/09/trumps-preventing-muslim-immigration-vow-disappears-from- campaign-website-after-spicer-questioned/?utm_term=.36cd83bcbb9c). 191. Exec. Order, supra note 13, §§ 3, 5(c), at 8977–79. 192. Id. § 5(a), at 8979. 193. Steve Almasy & Darran Simon, A Timeline of President Trump’s Travel Bans, CNN, http://www.cnn.com/2017/02/10/us/trump-travel-ban-timeline/ (last updated Mar. 30, 2017, 4:01 AM EST). 30 Stetson Law Review [Vol. 47
Ferguson filed a lawsuit in the [U.S.] District Court in Seattle,” alleging the executive order travel ban was causing irreparable harm to Washington residents.194 On February 3, 2017, U.S. District Court Judge James Robart halted the travel ban nationwide, thereby permitting travel by all affected foreign nationals.195 The U.S. Department of Justice immediately appealed to the Ninth Circuit Court of Appeals.196 According to the Department of Justice, both Congress and the executive branch retain plenary power over immigration and the exclusion of foreign nationals.197 Furthermore, Section 1182 of the INA authorizes the executive branch to suspend entry of any class of aliens that the President deems necessary.198 Hence, the appellants asserted that immigration and national security policies are not subject to federal review, as Congress and the executive branch are given great deference.199 Appellees acknowledged that Congress maintain constitutional authority to govern immigration and naturalization matters pursuant to Article I.200 Nonetheless, appellees argued that the executive branch may not act with impunity and remains subject to constitutional limitations that should be interpreted by the courts.201 The Court held that, although the President and Congress maintain constitutional authority to exercise plenary power in legislating immigration policy matters, such concerns are not “unreviewable,” and the courts may examine and interpret
194. Meredith McGraw et al., A Timeline of Trump’s Immigration Executive Order and Legal Challenges, ABC NEWS (Jun. 29 2017, 12:22 PM EST), http://abcnews.go.com/Politics/ timeline-president-trumps-immigration-executive-order-legal- challenges/story?id=45332741. 195. Id. 196. Id. 197. Emergency Motion Under Circuit Rule 27-3 For Administrative Stay and Motion for Stay Pending Appeal at 3–4, Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (No. 17- 35105) [hereinafter Emergency Motion]; see United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (holding “the exclusion of aliens is [also] a fundamental act of sovereignty. .. . inherent in the executive power to control the foreign affairs of the nation”). 198. 8 U.S.C. § 1182(f) (2012). 199. Emergency Motion, supra note 197, at 15–16. 200. States’ Response to Emergency Motion under Circuit Rule 27-3 for Administrative Stay and Motion for Stay Pending Appeal at 22–23, Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (No. 17-35105) [hereinafter Emergency Motion Response]. 201. Id. at 9, 22; see I.N.S. v. Chadha, 462 U.S. 919, 940–41 (1983) (finding that Congress must choose “a constitutionally permissible means of implementing” its power over immigration). 2017] Executive Order 13769 31 constitutional challenges.202 Citing Zadvydas v. Davis, the Court explained that the U.S. Supreme Court has continuously rejected the argument that the legislative and executive branches have unreviewable authority over national security and immigration matters.203 In fact, the Ninth Circuit sustained that courts may review foreign policy arguments presented to justify an executive action when constitutional rights are hindered.204 Therefore, although Congress and the President may exercise sovereign or plenary power to legislate immigration and national security policies, legislation or executive actions that allegedly threaten constitutional rights are subject to judicial review.
A. National Security and the Need for “Extreme” Vetting
Deputy Solicitor General Edwin Kneedler explained that the purpose of the executive order was to temporarily suspend the entry of foreign nationals from the designated countries while the new President and his appointed cabinet members reviewed and revised the security vetting procedures of RAP.205 Similar to previous administrations invoking national security concerns against immigrants based on national origin, the Trump Administration relied on 8 U.S.C. § 1182(f), under which Congress granted the President broad discretion to suspend any class of aliens and also broad discretion over RAP under 8 U.S.C. § 1157.206 Congress selected the previously mentioned countries listed in the travel ban under 8 U.S.C. § 1187(a)(12) as potentially high risks for harboring terrorists.207 Congress determined that individuals could not participate in the visa waiver program if they visited any of the designated territories, although Congress did not suspend RAP.208 Equally important, the “[Islamic State of Iraq and Levant
202. Washington v. Trump, 847 F.3d 1151, 1161–62 (9th Cir. 2017). 203. Id. at 1162; see Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (noting Congress’ “power is subject to important constitutional limitations”); Chadha, 462 U.S. at 940–41 (affirming that the courts have authority to review congressional action concerning aliens when it allegedly violates constitutional principles). 204. Trump, 847 F.3d at 1162. 205. Reply in Support of Emergency Motion for Stay Pending Appeal at 1, Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (No. 17-35105) [hereinafter Reply]. 206. Id. at 3–5. 207. Id. at 1; see 8 U.S.C. § 1187(a)(12) (establishing unique considerations for aliens who have certain connections to Iraq, Syria, and other designated “countries of concern”). 208. Uri Friedman, Where America’s Terrorists Actually Come From,THE ATLANTIC (Jan. 30, 2017), https://www.theatlantic.com/international/archive/2017/01/trump-immigration- ban-terrorism/514361/. 32 Stetson Law Review [Vol. 47
(ISIL)] does control territor[ies] in Syria, Iraq, and Libya,” while al-Qaeda continues control in Yemen and al-Shabab (a sect of al- Qaeda) holds presence in Somalia.209 Proponents of the executive order note two attacks by asylum seekers across Europe: stabbings carried out by a Somali refugee at Ohio State University and the Boston marathon bombings executed by brothers Tamerlan and Dzhokhar Tsarnaev—both political asylum recipients born in Kyrgystan.210 Supporters also contend that President Obama generated a similar executive order where he mandated a thorough review of the security-vetting procedures of Iraqi nationals for refugee and SIV applications in 2011.211 Section 4 of the Executive Order states:
The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.212
The Trump Administration intends to coordinate a uniform screening procedure; interviews; a computer database to compile identity documents to recognize duplication; additional fraud and security application questions; a mechanism to evaluate whether or not the applicant will make a positive contribution to the country; and an evaluation to examine the applicant’s potential intent to commit criminal or terroristic acts after admission.213
209. Id. 210. See Adam Goldman & Mitch Smith, From Somalia to U.S.: Ohio State Attacker’s Path to Violence, N.Y. TIMES (Dec. 1, 2016), https://www.nytimes.com/2016/12/01/us/from- somalia-to-us-ohio-state-attackers-path-to-violence.html (describing the Ohio State attacker’s background and possible connections to terrorist organizations); Friedman, supra note 208 (noting that the Ohio State attacker was a Somali refugee); Eric Levenson, How Many Fatal Terror Attacks Have Refugees Carried Out in the U.S.?, CNN (Jan. 29, 2017, 6:54 PM), http://www.cnn.com/2017/01/29/us/refugee-terrorism-trnd/ (describing the perpetrators of the Boston Marathon bombings, among other attacks). 211. Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban,FOREIGN POL’Y (Jan. 30, 2017, 8:30 AM), http://foreignpolicy.com/ 2017/01/30/sorry-mr-president-the-obama-administration-did-nothing-similar-to-your- immigration-ban/. 212. Exec. Order, supra note 13, § 4(a), at 8978. 213. Id. at 8978–79. 2017] Executive Order 13769 33
Appellees argued that the federal government’s invoking of national security concerns to broadly prohibit the entry of refugees, and Syrian refugees indefinitely, remains unsupported by any evidence.214 First, the State of Washington contended that the new Administration did not confer with legal experts or agency leadership at the Department of Homeland Security or the State Department, prior to the issuance and publication of the travel ban.215 Second, the executive order discriminates against Syrian refugees based on national origin by suspending their admission and goes further by provoking differential treatment towards Syrians.216 Hence, the travel ban is in stark contrast to the executive order issued by President Obama because, although the Department of Homeland Security and the State Department revised security measures for vetting Iraqi refugees and SIV recipients, immigration officers were still permitted to grant eligible Iraqi nationals immigration benefits.217 Equally important, President Obama’s executive order was neither issued nor published until after national security advisers and cabinet officials had been consulted in the drafting of the policy document, and RAP had not been suspended.218 Opponents of the travel ban assert that the Department of Homeland Security, in partnership with several other executive and law enforcement agencies, presently implement a strict security vetting process for refugees and asylum seekers.219 After the UNHCR selects a refugee for resettlement in the United States, the Department of State initiates a name check in the Consular Lookout and Support System.220 The system reviews the applicant’s primary name and any variations used by the applicant, providing information such as immigration violations, criminal history, previously denied visas, intelligence information, and terrorism concerns.221 The FBI, Interpol, the Terrorist
214. Motion for Temporary Restraining Order at 9, Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (No. 17-35105) [hereinafter Motion for Temporary Restraining Order]. 215. Id. at 6. 216. Id. at 6–7. 217. See Finer, supra note 211 (describing how refugees were continually—if more slowly than times past—admitted into the United States under the Obama administration). 218. Id. 219. Friedman, supra note 208. 220. U.S. Citizenship and Immigration Servs., Refugee Processing and Security Screening, USCIS.GOV, https://www.uscis.gov/refugeescreening (last updated Dec. 3, 2015) [hereinafter Refugee Processing]. 221. Id. 34 Stetson Law Review [Vol. 47
Screening Center, and other law enforcement agencies compile such information for the State Department.222 Applicants undergo an additional background check known as a Security Advisory Opinion when arriving from countries that Congress has designated as carrying a higher risk of terrorism.223 This added measure is conducted by the FBI and other intelligence organizations; thus, the information must be reviewed by a USCIS Refugee Officer prior to making a final decision on the applicant’s case.224 At the time of the resettlement interview, USCIS staff members collect biometric fingerprints and record that data to review potential criminal history and previous immigration benefit applications or violations that were not recovered in the previous name background check.225 Then, government officials send the biometric record to the Department of Defense to ensure that the applicant is not a threat to national security.226 A trained USCIS immigration officer then interviews the refugee.227 Officers interviewing Syrian refugees, for example, receive specialized country information training on specific populations to identify fraud- or terrorism-related activity.228 Finally, refugee applicants presenting a national security concern undergo review by the Controlled Application Review and Resolution Process, and Syrian applicants receive additional vetting by the USCIS Fraud Detection and National Security Directorate, which “monitors terrorist watch lists and disseminates intelligence information.”229 CBP receives a manifest approximately one week before the approved refugees are scheduled to travel.230 When a refugee arrives at a U.S. port of entry, the CBP officer begins additional vetting, such as an inspection and further internal background checks.231 Appellees asserted that appellants provided no evidence that refugees from any of the designated territories engaged in
222. Id. 223. Id. 224. Id. 225. Id. 226. Id. 227. Id. 228. Id. 229. Id. 230. Id. 231. Id. 2017] Executive Order 13769 35 terrorism after admission into the United States.232 The lack of evidence, proponents contend, is a direct result of the already-in- place rigorous security vetting.233 Moreover, the executive order alleges that the purpose of the ban is to prevent a threat like September 11, 2001; however, the travel ban does not include States represented by terrorists during the attack, including Egypt, Saudi Arabia, the United Arab Emirates, and Lebanon.234 The Circuit Court reemphasized that the federal government did not provide any evidence to support its claim that foreign nationals from any of the designated countries have committed or engaged in terrorism while in the United States.235 The Court further noted in the footnotes that the Department of Justice not only lacked evidence supporting the claim that aliens from the designated countries pose a terroristic threat, but also failed to provide an explanation of how national security concerns justified the urgency of the travel ban.236
B. The Executive Order Discriminates Based on National Origin and Is Therefore Unconstitutional
Appellees argued that the Executive Order violated an asylum seeker’s right to equal protection under the Fifth Amendment; thus, federal courts must determine whether the challenged classification burdens a suspect or quasi-suspect class.237 Appellees further argued that if the executive order addresses a suspect classification such as national origin, or hinders a protected constitutional right, then courts must utilize the strict scrutiny standard and determine whether the legislation is narrowly tailored to serve a compelling government interest.238 Federal courts have long held that classifications based on race,
232. Motion for Temporary Restraining Order, supra note 214, at 8–9. 233. Friedman, supra note 208. 234. Motion for Temporary Restraining Order, supra note 214, at 9. 235. Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017). 236. Id. at 1168, n.7. 237. Motion for Temporary Restraining Order, supra note 214, at 10; see Harris v. McRae, 448 U.S. 297, 322 (1980) (describing the constitutional analysis required for equal protection claims); Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001) (explaining the analysis applied when the classification at issue burdens a “suspect” or “quasi-suspect” class). 238. Motion for Temporary Restraining Order, supra note 214, at 5; Ball, 254 F.3d at 823 (stating the rule for strict scrutiny analysis). 36 Stetson Law Review [Vol. 47 nationality, or alienage are subject to strict scrutiny.239 Appellees asserted that the executive order discriminated against individuals from the seven countries referenced in Section 3, “Nationals of Countries of Particular Concern” on the basis of national origin.240 In regards to refugees, the document specifically targets Syrian refugees by permanently suspending their admission exclusively based on their status as Syrian nationals.241 Syrian refugees who have already entered the United States and are seeking refugee status as asylum seekers maintain a constitutional right to equal protection under the Fifth Amendment’s Due Process Clause. The Court did not address the merits of the claim, but only examined whether the federal government would likely succeed on appeal. The Court held that the government failed to illustrate that refugees seeking asylum in the United States lack constitutional protection under the Fifth Amendment’s Due Process Clause.242 The Court concurred with Appellees that non- citizens within the United States sustain constitutionally protected rights, regardless of immigration status.243 Although the appellate court did not address the issues on the merits, the executive order clearly focuses on Syrian refugees based on their national origin. On appeal, the federal government would likely be unsuccessful in illustrating that the Executive Order was narrowly tailored to serve a compelling government interest. Despite the government’s plenary power over national security matters, the Department of Justice failed to present sufficient evidence that any Syrian refugee has engaged in terroristic acts causing national security concerns. The government also offered no evidence that refugees, in general, pose a heightened threat to the national security of the United States. The Executive Order also violates the non-discrimination clause of the INA and its amendments under the Refugee Act of
239. Motion for Temporary Restraining Order, supra note 214, at 5; see Graham v. Richardson, 403 U.S. 365, 372 (1971) (stating that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny” (internal footnotes omitted)). 240. Motion for Temporary Restraining Order, supra note 214, at 1; Exec. Order, supra note 13, § 3, at 8977. 241. Motion for Temporary Restraining Order, supra note 214, at 7. 242. Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017). 243. Id. at 1165; see Zadvydas v. Davis, 533 U.S. 678, 693 (emphasizing that the Fifth Amendment applies to all “persons” within the United States, including lawful and unlawful aliens). 2017] Executive Order 13769 37
1980. The Department of Justice argued that the prohibition of discrimination based on nationality under the INA only applies to the issuance of immigrant visas and not to the President’s authority to limit the right of entry.244 In response, appellees contended that strictly construing the non-discrimination clause to apply only to the issuance of immigrant visas would render the INA futile for its inability to prohibit discrimination in all realms of issuing immigration benefits.245 Appellees cited Legal Assistance for Vietnamese Asylum Seekers v. Department of State, in which the Fifth Circuit Court held, “Section 1152 is a part of the Immigration and Nationality Act. . . . Congress has unambiguously directed that no nationality-based discrimination shall occur.”246 The Department of Justice failed to show that Congress intended for the non-discrimination clause to only apply to a minute portion of foreign aliens seeking immigration benefits—immigrant visas. Thus, the non-discrimination clause is also applicable to asylum seekers and refugees, prohibiting distinction based on nationality in determining eligibility for refugee status. Finally, pursuant to the Refugee Act, foreign nationals may file a petition to seek refugee status in the United States as asylum seekers.247 U.S. Citizenship and Immigration Services, under the direction of the Department of Homeland Security, is statutorily obligated to review the applications for asylum and regulate eligibility for refugee status, and refugees are protected from non- refoulement.248 Accordingly, appellees asserted Congress created a constitutionally protected right, allowing refugees to petition the United States government for political asylum.249 Appellees further argued that the constitutionally protected right to seek
244. Reply, supra note 205, at 5; see 8 U.S.C. § 1152(a)(1)(A) (2012) (providing that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”). 245. Motion for Temporary Restraining Order, supra note 214, at 19–20. 246. Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 473 (D.C. Cir. 1995). 247. 8 U.S.C. § 1158(a)(1) (2012). 248. Id. § 1158(b)(1)(A); see Official Website for the Dep’t of Homeland Security, The Affirmative Asylum Process, U.S. CITIZENSHIP AND IMMIGR. SERVICES, https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-process (last updated Jan. 17, 2017) (providing steps for affirmative asylum seekers). 249. Motion for Temporary Restraining Order, supra note 214, at 18; see Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. 1982) (concluding that both Congress and the Executive established a constitutionally protected right for the right to petition the United States government for political asylum). 38 Stetson Law Review [Vol. 47 asylum guarantees refugees the rights to due process, notice, and hearing.250 The Executive Order suspends refugee processing for 120 days and Syrian refugee processing indefinitely.251 The executive document does not clarify whether the suspension of refugee processing only applies to refugees processed overseas by the Refugee Affairs Division and International Operations, or if the executive order also suspends the processing of refugees already in the United States, adjudicated by the Asylum Division. The Executive Order also infringes on an asylum seeker’s constitutional right to apply for refugee status under the Refugee Act and denies his or her fundamental right to notice and hearing under the Due Process Clause of the Fifth Amendment. In summation, the Ninth Circuit Court denied appellant’s emergency motion to reverse the District Court’s injunction staying the Executive Order.252 Although the Court did not address the unconstitutionality of the document, the Court strongly worded its opinion that appellant’s failure to proffer evidence supporting discrimination based on alienage and nationality in the interest of national security was exceedingly unlikely to succeed on appeal.253 Based on the equal protection and due process requirements of the Federal Constitution, and the non-discrimination clause of the INA, the Trump Administration’s Executive Order unconstitutionally excludes Syrians and persons of Middle Eastern and African descent. The executive order is a modern example of institutionalized racial discrimination towards refugees from the named countries of particular concern. Although not discussed in this Article, the State of Washington also challenged the document’s unconstitutionality for violating the Establishment Clause under the First Amendment for discrimination against Muslims.254 Immediately preceding the issuance of the executive order, President Trump stated that the Department of Homeland Security and State Department would
250. Motion for Temporary Restraining Order, supra note 214, at 14–15. 251. Dan Merica, Trump Signs Executive Order to Keep Out ‘Radical Islamic Terrorists,’ CNN (Jan. 30, 2017, 2:02 PM EST), http://www.cnn.com/2017/01/27/politics/trump-plans- to-sign-executive-action-on-refugees-extreme-vetting/index.html. 252. Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017). 253. Id. at 1164, 1167. 254. Motion for Temporary Restraining Order, supra note 214, at 11–14. 2017] Executive Order 13769 39 now prioritize Christian refugees fleeing religious persecution.255 The Administration again ignores the necessary prohibition of preferential treatment of any protected classification over another and the negative effect a discriminatory immigration policy may cause. The execution of such policies would once again establish an immigration admissions system where politicians determine the entry of foreign nationals based on national origin, in an effort to maintain homogenous ethnic composition of the nation.
C. The Executive Order Violates International Law and Perpetuates the Ongoing Worldly Trend of Excluding Syrian Refugees
As previously noted in Part I, the 1951 Convention Relating to the Status of Refugees and Protocol forbids discrimination based on country of origin, race, or religion in Article 3 and prohibits differential treatment between refugees and all other aliens.256 The executive order consequentially violates the Refugee Convention, as it does the Refugee Act originally implemented to become compliant with the international agreement. The executive action, by excluding the processing of refugees, impels the federal government to abnegate its State obligations to refugees under the Convention. Equally important, ostracizing Syrian refugees indefinitely prompts government officials to exhibit distinctive treatment between Syrian refugees and other foreign nationals, on account of nationality. The mere discriminating treatment between refugees and others within the territorial bounds of the United States is a violation of the Refugee Convention. In addition, the immigration policy document violates the non- discrimination clause of Article 2 and the equal protection clause of Article 26 of the ICCPR.257 By guaranteeing lesser rights to refugees, the United States violates its treaty obligations. Finally, the executive order breaches international obligations under Article 1 of the ICERD by racially discriminating against ethnic Syrians, and failing to nullify racially discriminatory laws under
255. Katie Reilly, President Trump Says He Will Prioritize Persecuted Christians in Refugee Policy,TIME (Jan. 27, 2017), http://time.com/4652367/donald-trump-refugee-policy- christians/. 256. Refugee Convention, supra note 28, Art 3. 257. ICCPR, supra note 35, Art 2, 26. 40 Stetson Law Review [Vol. 47
Article 2.258 By excluding Syrian refugees based on national and ethnic origin and hindering their fundamental human rights, the executive action endorses institutionalized racial discrimination against Syrian nationals. The U.N. Committee on the Elimination of Racial Discrimination, a final tribunal utilized when complainants have exhausted State remedies, held that “the definition of racial discrimination in Article 1 expressly extends beyond measures which are explicitly discriminatory, to encompass measures which are not discriminatory at face value but are discriminatory in fact and effect, that is, if they amount to indirect discrimination.”259 Therefore, by directly discriminating against Syrian refugees on its face and failing to rescind Section 5(c) of the executive order, the federal government advocated and normalized racial discrimination against Syrian nationals. The progression of institutionalized discrimination towards refugees extends beyond the United States’ borders and permeates throughout Europe as well. While then-candidate Donald Trump campaigned for the highest political office in the United States, the European Union contracted a bilateral agreement between Turkey and Greece.260 The agreement, reached in March 2016, authorizes Greece to return “all new irregular migrants” to Turkey, arriving after March 20, 2016.261 In response, European Union member- states would increase the resettlement of Syrian refugees residing in Turkey, increase financial support for Turkey’s refugee population, and advance visas for Turkish nationals.262 By June, three asylum seekers filed suit against the European Union, claiming repatriation of asylum seekers from the Greek islands to the Turkish mainland is a violation of European and international laws protecting refugees from refoulement.263 Opponents of the treaty allege it breaches their right to asylum and protection from expulsion to a State where they are at risk of inhumane or degrading treatment.264 Germany is also under considerable
258. ICERD, supra note 36, Art 1–2. 259. L. R. v. Slovakia, Communication No. 31/2003, Para. 10.4, U.N. Doc. CERD/C/66/D/31/2003 (2005). 260. Elizabeth Collett, The Paradox of the EU-Turkey Refugee Deal,MIGRATION POL’Y INST. (Mar. 2016), http://www.migrationpolicy.org/news/paradox-eu-turkey-refugee-deal. 261. Id. 262. Id. 263. Matthew Holehouse, Refugees Sue EU over Turkey Deal,THE TELEGRAPH (June 13, 2016, 7:29 PM), http://www.telegraph.co.uk/news/2016/06/13/refugees-sue-eu-over-turkey- deal/. 264. Id. 2017] Executive Order 13769 41 scrutiny after backtracking on its “open door” policy for refugees and instead offering “subsidiary protection.”265 The subsidiary protection withholds immigrants from deportation; however, the individual does not receive status as a refugee.266 The differential treatment towards refugees in Europe preceded Executive Order 13,769; yet, it coincides with the persisting theme that refugees are faced with deterrents infringing on their human right to international protection, as a result of xenophobic attitudes and national calls for exclusion.
IV. CONCLUSION
The Ninth Circuit Court of Appeals acknowledged the President and Congress’ plenary power over legislating immigration and national security policies. Notwithstanding, the two political branches’ constitutional authority is not absolute and free from judicial review when the legislation violates constitutional protections. The executive order distinctly beseeches differential treatment towards refugees by suspending the Refugee Admissions Program and prohibiting their due process right to apply for asylum. The executive action also violates the State’s international obligations under several international authorities upholding a refugees’ right to seek asylum and obtain equal protection under the law. Finally, the document promotes institutionalized racial discrimination towards Syrian refugees by barring their admission into the United States. The exclusionary measure violates a Syrian national’s human right to seek international protection under the Universal Declaration of Human Rights, the Refugee Convention and Protocol, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of Racial Discrimination. The legislative purpose of the order is futile given the small probability that a refugee would effectuate a terrorist attack in the United States. According to a study by Alex Nowrasteh, an immigration expert for the CATO Institute, nationals of the seven
265. Caroline Mortimer, Thousands of Refugees Successfully Sue German Government over Partial Asylum Status,THE INDEP. (Oct. 18, 2016, 21:28 BST), http://www.independent.co.uk/news/world/europe/refugee-crisis-germany-government- bamf-angela-merkel-anti-immigration-a7368551.html. 266. Id. 42 Stetson Law Review [Vol. 47 countries of particular concern have killed zero people in terrorist attacks in the United States over the last forty years.267 Equally important, Nowrasteh reports only 20 out of the 3.25 million refugees, admitted into the United States during that time period, were convicted of attempting to engage in terroristic activities in the United States.268 Only three U.S. citizens have been killed in attacks committed by refugees—ironically by Cuban refugees in the 1970s.269 There have been zero terrorist attacks or deaths committed by Syrian refugees in the United States.270 Hence, Nowrasteh asserts the likelihood of an American being murdered by someone other than a terrorist is 252.9 times greater than dying in a terrorist attack.271 Finally, terrorists who attacked on September 11, 2001 were foreign nationals from Saudi Arabia, the United Arab Emirates, Lebanon, and Egypt,272 yet they are not designated in the Executive Order. Between 1975 to 2015, these four countries generated foreign nationals who committed terrorism on U.S. soil, killing a total of 3,004 U.S. citizens.273 Legislation establishing discriminatory immigration policies will only embolden actual terrorists to implement future attacks against the United States and consequentially recruit vulnerable individuals, such as refugees. The executive order isolates the United States from our Middle Eastern and African allies and undermines our intelligence agencies working with Muslim communities, when such relationships are vital to domestic counterterrrorism.274 Terrorist groups are known to target lone American citizens suffering from mental illness, social isolation, discrimination, or other factors forging vulnerability.275 Discriminatory immigration policies will only galvanize ISIL and
267. Friedman, supra note 208. 268. Id. 269. Id. 270. Id. 271. Id. 272. Id. 273. Id. 274. Daniel Benjamin, The Disastrous Consequences of Trump’s New Immigration Rules, POLITICO MAGAZINE (Jan. 27, 2017), http://www.politico.com/magazine/story/ 2017/01/trump-immigration-refugee-vetting-consequences-executive-order-214702. 275. Anne Speckhard, How Dragging Our Feet on Refugees Creates More Terrorists, N.Y. TIMES (Sept. 29, 2015), https://www.nytimes.com/2015/09/29/opinion/how-dragging-our- feet-on-refugees-creates-more-terrorists.html?module=ArrowsNav&contentCollection= Opinion&action=keypress®ion=FixedLeft&pgtype=article. 2017] Executive Order 13769 43 other foreign terrorist organizations to exploit refugees and become radicalized.276 The United States government has both a national and international responsibility to denounce xenophobic attitudes and racially discriminatory policies towards refugees. This Article demonstrates the federal government’s incessant pattern of blaming refugees and immigrants for social and economic distresses, resulting in prejudiced immigration laws. Institutionalized racial discrimination is not only bigoted and hypocritical of our country’s adage of being founded by immigrants, but it also fosters white nationalism and can even lead to violence and hate crimes.277 During an interview with CNN, Representative Sean Duffy (R – Wisconsin) exclaimed, “[T]here is a difference between terror acts by white people and those committed by Muslims.”278 CNN host Alisyn Camerota noted the growing trend of white supremacy and domestic terrorism, such as the attack against black Americans in South Carolina by Dylan Roof and a recent attack on a Muslim mosque by a white nationalist in Quebec, Canada.279 Nonetheless, Duffy asserted that attacks by white Americans are executed independently, whereas foreign terrorist organizations such as ISIL and al-Qaeda are a “movement.”280 Congressman Duffy’s inexcusable statement is an example of the federal government’s misguided disposition towards domestic terrorism and its intersection with race and policy in this country. It will take the pressure of informed voters to avert history from repeating and to encourage the nation to be at the forefront of supporting refugees with the international protection they require.
276. Id. 277. Eric Lichtblau, U.S. Hate Crimes Surge 6% Fueled by Attacks on Muslims, N.Y. TIMES (Nov. 14, 2016), https://www.nytimes.com/2016/11/15/us/politics/fbi-hate-crimes- muslims.html. 278. Eugene Scott, Duffy: ‘There’s a Difference’ on White Terror and Muslim Terror, CNN (Feb. 8, 2017, 1:51 AM EST), http://www.cnn.com/2017/02/07/politics/sean-duffy-white- terrorism-cnntv/. 279. Id. 280. Id.
POST-CONVICTION REVIEW: QUESTIONS OF INNOCENCE, INDEPENDENCE, AND NECESSITY
Fiona Leverick, Kathryn Campbell,† and Isla Callander‡§
I. INTRODUCTION
In recognition of the reality of wrongful conviction, a number of jurisdictions have developed post-conviction review1 schemes aimed at addressing such mistakes. Our aim in this Article is to address the question of how such schemes should ideally operate. Although a range of examples of post-conviction review will be discussed, we do so primarily by a comparative study of the post- conviction review schemes in Scotland, Canada, and North Carolina. Scotland and North Carolina are two of a very limited number of jurisdictions that have established independent criminal case review commissions, although the scope of the respective commissions are very different.2 Canada retains a system whereby claims of wrongful conviction are adjudicated by a government minister, assisted by an advisory body.3 To date, analysis tends to focus on particular post-conviction review schemes in isolation. By bringing together, for the first time, the accumulated experience of these three jurisdictions (and
© 2017, Fiona Leverick, All rights reserved. Professor of Criminal Law and Criminal Justice at the University of Glasgow, United Kingdom. † © 2017, Kathryn Campbell, All rights reserved. Professor of Criminology at the University of Ottawa, Canada. ‡ © 2017, Isla Callander, All rights reserved. Lecturer in Law at the University of Aberdeen, United Kingdom. § We would like to thank the members of the Legitimization of Modern Criminal Law Group, Hebrew University, Jerusalem, Israel for comments on an earlier draft of this Article. 1. By post-conviction review, we mean the system for conviction review that takes place outside the normal criminal appeals process—usually (but not always) after the appeals process has been exhausted. 2. See infra Part IV(B) (Scottish commission); Part IV(C) (North Carolina commission). 3. See infra Part IV(A) (Canada’s Criminal Conviction Review Commission). 46 Stetson Law Review [Vol. 47 other examples where appropriate), we argue that there is a clear case for the existence of an independent body to undertake post- conviction review. Such a body, we argue, should not restrict its remit to cases in which fresh evidence emerges, but should be empowered to refer cases where there has been a procedural impropriety that casts doubt on guilt. Such a body should not, however, be permitted to refer cases where there is overwhelming evidence of guilt, despite the seriousness of the procedural breach concerned. We then go on to argue that, in principle, there are no good reasons for restricting the ambit of post-conviction review to serious cases or to cases where the applicant is living (although political or resource constraints might serve as practical considerations here). Finally, we argue that a post-conviction review body charged with the review of individual cases is not in the best position to engage in law-reform work aimed at preventing wrongful conviction at a systemic level. Doing so might compromise its relationship with the courts and would require a membership different to that best suited to the review of individual cases.
II. THE NEED FOR POST-CONVICTION REVIEW
It has long been recognized that there is a need for some sort of procedure by which convictions can be reviewed outside of the normal criminal appeals process. A number of notorious examples where factually innocent individuals have initially failed to overturn their convictions on appeal demonstrate that the criminal courts do not always get it right the first—or even second—time.4 There is also ample evidence, stemming primarily from DNA exoneration projects in the U.S.,5 that conviction of the factually
4. To take an example from Canada, David Milgaard was wrongly convicted for the murder of Gail Miller in 1970. His initial appeal against conviction was unsuccessful and he served almost 23 years in prison until he was freed in 1992 and later fully exonerated through DNA forensic analysis in 1997. See Sarah Harland-Logan, David Milgaard, INNOCENCE CAN., https://www.aidwyc.org/ cases/historical/david-milgaard/ (last visited July 9, 2017) (detailing the case of David Milgaard). 5. See Innocence Project 25 Year Anniversary, INNOCENCE PROJECT, https://25years .innocenceproject.org/ (last visited July 9, 2017) (focusing on exonerations that used science); see also The National Registry of Exonerations, LAW.UMICH.EDU, http://www.law.umich.edu/special/exoneration/Pages/mission.aspx (last visited July 9, 2017) (providing detailed information on every known exoneration in the U.S. since 1989). The Innocence Project was founded in 1992 based at Cardozo Law School. At the time of writing (February 2017), the Innocence Project listed 348 exonerations. The NRE is part of 2017] Post-Conviction Review Questions 47 innocent is a real and pressing problem. As a result of this evidence, we can state with certainty that wrongful conviction does occur, and we can even confidently identify the main causes.6 Perhaps most importantly for the purposes of this Article, we also know that in many cases that have subsequently been shown to be instances of wrongful conviction, an initial appeal against conviction was unsuccessful.7 This recognition has led some jurisdictions to establish criminal case review commissions— independent bodies which can review convictions and in appropriate cases refer them back to the courts for reconsideration. The first and best known of these is the Criminal Cases Review Commission for England, Wales, and Northern Ireland,8
the University of Michigan Law School and has a slightly wider remit compared to the Innocence Project. At the time of writing, 1,976 exonerations were listed. For a detailed analysis of the Innocence Project’s first 250 DNA exonerations, see BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 5–6 (2011). For analysis of the NRE exonerations, see SAMUEL R. GROSS & MICHAEL SHAFFER, EXONERATIONS IN THE UNITED STATES, 1989–2012: REPORT BY THE NATIONAL REGISTRY OF EXONERATIONS 2–4 (2012), available at https://www.law.umich.edu/ special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf. 6. There is a remarkable consensus that the main evidential causes of wrongful conviction are mistaken eyewitness identification, false confessions, misleading forensic evidence and the evidence of accomplices or informers (or others who have a motivation to lie). GARRETT, supra note 5, at 165–67; Gross & Shaffer, supra note 5, at 40. Other environmental and psychological factors also play a role, such as a culture of incentivizing guilty pleas and the psychological phenomenon of tunnel vision that can affect those investigating and prosecuting cases. GARRETT, supra note 5, at 150–53, 165–70, 265–68; Bruce MacFarlane, Convicting the Innocent: A Triple Failure of the Justice System, 31 MAN. L.J. 403, 436–37 (2006). There is a vast amount of literature devoted to identifying safeguards that might be put in place to combat some of these factors. See, e.g., Keith A. Findley, Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence, 47 GA. L. REV. 723, 725 (2013) (looking into the rules of evidence and its connection to wrongful convictions); Lisa D. Dufraimont, Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?, 33 QUEEN’S L.J. 261, 263–64 (2008) (suggesting a new and improved evidentiary rule to prevent wrongful convictions); Saul M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A. Leo & Allison D. Redlich, Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 3 (2010) (using psychological science to prevent wrongful convictions); Fiona Leverick, Jury Instructions on Eyewitness Identification Evidence: A Re-Evaluation, 49 CREIGHTON L. REV. 555, 555–56 (2016) (safeguarding wrongful convictions through proper jury instructions); Richard A. Wise, Kirsten A. Dauphinaise & Martin A. Safer, A Tripartite Solution to Eyewitness Error, 97 J. CRIM. L. & CRIMINOLOGY 807, 808 (2007) (attempting to provide a solution to errors related to faulty eyewitness testimonies as they related to wrongful convictions). 7. See GARRETT, supra note 5, ch. 7 (discussing the long appeals and post-conviction processes). 8. The establishment of the Commission was recommended by the Royal Commission on Criminal Justice. ROYAL COMM’N ON CRIM. JUSTICE,REPORT 182 (1993). This Commission will subsequently be referred to as “the English CCRC” to distinguish it from its Scottish counterpart. Within the overall jurisdiction of the United Kingdom of Great 48 Stetson Law Review [Vol. 47 which was established in 1997 following a series of notorious miscarriages of justice, mostly relating to terrorist cases.9 Other jurisdictions followed, with independent criminal case review commissions also being set up in Scotland, Norway, and North Carolina.10 For the sake of completeness, the DNA Review Panel should also be mentioned—which operated in the Australian jurisdiction of New South Wales between 2007 and 2014—an independent body that had the power to refer cases to the appeals court but was disbanded after making no referrals.11 Other jurisdictions—such as Canada and Australia—retain a variation of the system that existed prior to the establishment of the English CCRC whereby post-conviction review is in the hands of a government minister.12 The existence of these different forms of post-conviction review raises a number of questions about the proper scope of such bodies. We address these questions by examining three schemes for post- conviction review in more detail—those of Scotland, Canada, and North Carolina. These jurisdictions were chosen because they offer a range of approaches to the issues concerned.13
Britain and Northern Ireland, there are three separate and distinct legal systems—those of Scotland; England and Wales; and Northern Ireland. 9. See John Weeden, The Criminal Cases Review Commission (CCRC) of England, Wales and Northern Ireland, 58 CRIM. L.Q. 191, 191–94 (2012) (providing a detailed account of the so-called “Birmingham 6” and “Guildford 4”). 10. The Scottish and North Carolina Commissions are discussed in detail later in this Article. For discussion of the Norwegian Commission, see Ulf Stridbeck & Svein Magnussen, Prevention of Wrongful Convictions: Norwegian Legal Safeguards and the Criminal Cases Review Commission, 80 U. CIN. L. REV. 1373 (2012); Ulf Stridbeck & Svein Magnussen, Opening Potentially Wrongful Convictions: Look to Norway, 58 CRIM. L.Q. 267 (2012). 11. David Hamer, Wrongful Convictions, Appeals, and the Finality Principle: The Need for a Criminal Cases Review Commission, 37 U. NEW S. WALES L.J. 270, 292–95 (2014); Lynne Weathered, Reviewing the New South Wales DNA Review Panel: Considerations for Australia, 24 CURRENT ISSUES IN CRIM. JUST. 449, 450–52 (2013). 12. Canada is discussed in detail later in this Article. For discussion of the Australian system, see Bibi Sangha & Robert Moles, Mercy or Right: Post-Appeal Petitions in Australia, 14 FLINDERS L.J. 293 (2012); Lynne Weathered, Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia, 17 CURRENT ISSUES IN CRIM. JUST. 203 (2005). 13. In this Article, the Scottish Criminal Cases Review Commission is selected for detailed analysis over its more well-known counterpart, the English CCRC, on the basis that it has not yet been the subject of academic discussion to the same extent as the English CCRC. This is despite the fact that the SCCRC has been favorably compared to the English CCRC in terms of the greater resources it has at its disposal and the wider powers it has to obtain evidence. See, e.g., Peter Duff, Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner, 72 MOD. L. REV. 693, 694 (2009) (comparing the English CCRC and the SCCRC in detail) [hereinafter Straddling Two Worlds]; Lissa Griffin, International Perspectives on Correcting Wrongful Convictions: The Scottish 2017] Post-Conviction Review Questions 49
Of course, the schemes have to be seen in the wider legal and political context of the jurisdiction in question. However, examination of their accumulated experience does generate a number of important insights about the appropriate role of a post- conviction review body in relation to claims of innocence and the implications this has for the contours of review schemes. Before proceeding to discuss the three schemes, however, it is necessary to consider the meaning of innocence and how this affects eligibility for exoneration.
III. THE MEANING OF INNOCENCE
The ultimate aim of a post-conviction review body is to offer a remedy to those who are innocent of the crime of which they have been convicted, but that raises the question of precisely what is meant by innocence. While there is considerable confusion over terminology,14 a useful distinction can be made between legal and factual innocence.15 Broadly speaking, factual innocence refers to the conviction of someone who did not commit the crime in question, either because it was perpetrated by someone else or because no crime was ever committed.16 Legal innocence refers to the conviction of someone who should not, under the rules of the legal system in question, have been convicted.17 While legal
Criminal Cases Review Commission, 21 WM. & MARY BILL RTS. J. 1153, 1212 (2013) (praising the works of the SCCRC). For detailed analysis of the English CCRC, see LAURIE ELKS, RIGHTING MISCARRIAGES OF JUSTICE? TEN YEARS OF THE CRIMINAL CASES REVIEW COMMISSION (2008); CLIVE WALKER & KATHRYN CAMPBELL, The CCRC As an Option for Canada: Forwards or Backwards?, in THE CRIMINAL CASES REVIEW COMMISSION: HOPE FOR THE INNOCENT? ch. 14 (Michael Naughton ed., 2012) (discussing the English CCRC as an optional model for Canada); Weeden, supra note 9, at 1419–23; David Kyle, Correcting Miscarriages of Justice: The Role of the Criminal Cases Review Commission, 52 DRAKE L. REV. 657 (2004). 14. For differing perspectives, see e.g., Cathleen Burnett, Constructions of Innocence, 70 UMKC L. REV. 971, 973–74 (2002); Keith A. Findley, Defining Innocence, 74 ALB. L. REV. 1157, 1159–60 (2010); Steven Greer, Miscarriages of Justice Reconsidered, 57 MOD. L. REV. 58, 66 (1994). 15. Although within these two broad categories there are many subtle distinctions, it lies beyond the scope of the Article to discuss these. But see MICHAEL NAUGHTON, THE INNOCENT AND THE CRIMINAL JUSTICE SYSTEM: A SOCIOLOGICAL ANALYSIS OF MISCARRIAGES OF JUSTICE, 16–17 (2013) (providing more detailed categorizations);CLIVE WALKER, Miscarriages of Justice in Principle and Practice, in MISCARRIAGES OF JUSTICE: A REVIEW OF JUSTICE IN ERROR 31–37 (Clive Walker & Keir Starmer eds., 1999) (showing different categorizations of miscarriages of justice). 16. Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 45 (1987). 17. Id. at 45. 50 Stetson Law Review [Vol. 47 innocence might incorporate cases of factual innocence, it would also encompass those who are (or may be) factually guilty but should not have been convicted because there was a procedural irregularity during the process that led to conviction.18 The term miscarriage of justice is sometimes used to describe the conviction of a factually-innocent person, but it is also the legal test for appeal against conviction in some jurisdictions.19 In other words, it has a legal meaning (which normally encompasses convictions where there has been a procedural irregularity as well as those where fresh evidence casts doubt on guilt), but that legal meaning does not necessarily correspond with the way it is understood outside the narrow confines of the law.20 It should also be said that factual innocence is something that is often very difficult to establish conclusively. The increased sophistication of DNA testing has meant that there now exists a growing number of cases—especially in the U.S.—in which it can be said with absolute certainty that a factually innocent person has been wrongly convicted.21 In cases where no physical evidence exists, however, the extent to which factually innocent people have been wrongly convicted is impossible to determine.22 The extent to which post-conviction review bodies should confine themselves to cases of factual innocence and the difficulties that arise in defining and identifying this are considered later in the Article,23 which now turns to a brief account of the post-conviction review schemes in Canada, Scotland, and North Carolina.
18. There are many types of procedural irregularities that might justify quashing a conviction, such as trial judge misdirection, jury misconduct, or evidence admitted that was obtained via an irregular procedure. A procedural irregularity may or may not cast doubt on the guilt of the accused. See infra notes 155–76 and accompanying text (discussing the factors that play into a wrongful conviction). 19. See infra p. 11 and accompanying text (specifying the different usage of the term miscarriage of justice—Scotland being an example of such jurisdiction). 20. See, e.g., Sion Jenkins, Miscarriages of Justice and the Discourse of Innocence: Perspectives from Appellants, Campaigners, Journalists, and Legal Practitioners, 40 J.L. & SOC’Y 329, 329–30 (2013) (explaining the different usage and meaning of “innocence”). 21. See supra note 5 (finding examples of such cases as uncovered by the Innocence Project and the NRE). 22. Zalman has established a generally accepted “[e]stimate” of wrongful convictions in the U.S. of between 0.5% and 1% for felony convictions, but the extent to which these figures translate to other contexts and jurisdictions is an open question. Marvin Zalman, Qualitatively Estimating the Incidence of Wrongful Convictions, 48 CRIM. L. BULL. 221, 230 (2012). 23. See infra notes 138–52 and accompanying text (discussing the consequences and drawbacks of different systems that confine themselves to factual innocence). 2017] Post-Conviction Review Questions 51
IV. THE POST-CONVICTION REVIEW SCHEMES
A. The Criminal Conviction Review Group (Canada)
In Canada, ministerial review is the primary remedy for those who believe their conviction is erroneous following an exhaustion of the appeals process.24 The provisions for ministerial review are found in Part XI.1 of the Criminal Code.25 The right to review a conviction was first introduced into law in 1923.26 After many years of ad hoc review, the Criminal Conviction Review Group (CCRG) was formed in 1993. The CCRG was comprised of a group of lawyers within the Department of Justice who reported directly to the Assistant Deputy Minister of Justice.27 In 2002, the conviction review process was again amended legislatively, in part due to dissatisfaction with procedural delays, secrecy, and lack of accountability.28 Changes included, inter alia, clearer criteria regarding remedies, increased investigative powers, movement to a physically separate building from the Department of Justice, and the appointment of a Special Advisor.29 While some of these changes were made in response to criticisms that the CCRG should more closely resemble the independent English CCRC,30 they did not result in any major shift in the way that the CCRG operates. As it stands today, ministerial review is available for convictions for both indictable and summary offenses.31 Applicants must have exhausted all avenues of appeal, at the provincial
24. It is also possible to appeal to the Royal Prerogative of Mercy, but such appeals have waned since the abolition of the death penalty in Canada in 1976. The Royal Prerogative is not discussed in detail here, but see Gary T. Trotter, Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review, 26 QUEEN’S L.J. 339 (2001). 25. Criminal Code, R.S.C. 1985, c. C-46, ss. 696.1–696.3. 26. Patricia Braiden & Joan Brockman, Remedying Wrongful Convictions Through Applications to the Minister of Justice Under Section 690 of the Criminal Code, 17 WINDSOR Y.B. ACCESS JUST. 3, 5 (1999). 27. See generally Regulations Respecting Applications for Ministerial Review— Miscarriages of Justice: Regulatory Impact Analysis Statement, 136:39 CAN. GAZETTE, PT. I, at 2977–79 (Sept. 28, 2002) (providing a list of the proposed new regulations). 28. MINISTER OF JUSTICE, APPLICATIONS FOR MINISTERIAL REVIEW: MISCARRIAGES OF JUSTICE, ANNUAL REPORT 3 (2015) [hereinafter MINISTERIAL REVIEW APPLICATION]; Braiden & Brockman, supra note 26, at 20–28. 29. MINISTERIAL REVIEW APPLICATION, supra note 28, at 3–4. 30. See generally Regulations Respecting Applications for Ministerial Review— Miscarriages of Justice: Regulatory Impact Analysis Statement, supra note 27, at 2977 (providing a breakdown of the amended regulations for application of ministerial review). 31. MINISTER OF JUSTICE, APPLYING FOR A CONVICTION REVIEW 3 [hereinafter CONVICTION REVIEW APPLICATION]. 52 Stetson Law Review [Vol. 47 appeals court and at the Supreme Court.32 The information presented in support of the application must represent new and significant information that was not previously considered by the courts and is reasonably capable of belief.33 Guidelines from the Department of Justice in 2003 listed a number of examples of new and significant information that would support a conviction-review application: information that would establish or confirm an alibi; another person’s confession; information that identifies another person at the scene of the crime; scientific evidence that points to innocence or another’s guilt; proof that important evidence was not disclosed; information that shows a witness gave false testimony; and information that substantially contradicts testimony at trial.34 When the CCRG assesses whether information is new and significant, the test applied is similar to that used by the courts in determining the admissibility of new or “fresh” evidence on appeal: it must be relevant; reasonably capable of belief; and such that, if taken with the other evidence presented at trial, it could reasonably be expected to have affected the verdict.35 However, the applicant must also satisfy the Minister that there is a reasonable basis to conclude that “a miscarriage of justice likely occurred,”36 given the new and significant information. This is not part of the normal test for an appeal against conviction and means that the standard applied to conviction review is higher than the test that would be applied at the subsequent court hearing, should the case be referred.37 Problematically, no further guidance or precedent is available as to what might constitute a miscarriage of justice—it is purely a matter of policy for the Minister, who does not publish reasons for his or her decisions. As a result, applicants have little or no idea what might suffice.38 The CCRG’s investigations can involve interviewing witnesses, forensic testing and analysis of evidence, and consultation with lawyers, police, and prosecutors.39 The CCRG
32. Criminal Code, R.S.C. 1985, c. C-46, s. 696.1, par. 1. 33.MINISTERIAL REVIEW APPLICATION, supra note 28, at 6. 34. These are re-produced in Applying for a Conviction Review. CONVICTION REVIEW APPLICATION, supra note 31, at 2. 35. MINISTERIAL REVIEW APPLICATION, supra note 28, at 6. 36. Criminal Code, R.S.C. 1985, c. C-46, s. 696.3, par. 3, subpar. a. 37.HERSH WOLCH & JOANNE MCLEAN, IN THE MATTER OF THE COMMISSION OF INQUIRY INTO THE WRONGFUL CONVICTION OF DAVID EDGAR MILGAARD: SUBMISSIONS 79 (2008). 38. See infra Table 1 (demonstrating a low number of applicants, which might be explained by applicants’ lack of guidance). 39. CONVICTION REVIEW APPLICATION, supra note 31, at 3. 2017] Post-Conviction Review Questions 53 has the authority to compel the production of documents as well as the appearance and testimony of witnesses.40 The CCRG completes an investigative report, which is viewed by the applicant and forwarded to the Minister of Justice.41 “[I]f the Minister is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred” he or she may either order a new trial or refer the matter to the Court of Appeal of a province or territory as if it were an appeal by the convicted person.42 At this stage, Crown Counsel of the originating province have a number of remedies available to them to move forward, including conducting a new trial, withdrawal of the charges, offering no evidence (resulting in a not guilty verdict), or entering a stay of proceedings.43 In the latter case, the charges are “on hold” for one year and the Crown retains the power to “recommence the proceedings on the same indictment.”44
B. The Scottish Criminal Cases Review Commission
In Scotland, post-conviction review is undertaken by the Scottish Criminal Cases Review Commission (SCCRC). The SCCRC was established in 1999,45 two years after the English CCRC, on the recommendation of the Sutherland Committee.46 Before the SCCRC existed, convicted persons who had exhausted the normal appeal process had to apply to the Secretary of State for Scotland (a Government Minister) to have their convictions reconsidered, a scheme similar to that presently operating in Canada.47 Since its establishment, anyone who has been convicted
40. MINISTERIAL REVIEW APPLICATION, supra note 28, at 3. 41. CONVICTION REVIEW APPLICATION, supra note 31, at 34. 42. Criminal Code, R.S.C. 1985, c. C-46, s. 696.3, par. 3, subpar. a. 43. KENT ROACH, REPORT RELATING TO PARAGRAPH 1(F) OF THE ORDER IN COUNCIL FOR THE COMMISSION OF INQUIRY INTO CERTAIN ASPECTS OF THE TRIAL AND CONVICTION OF JAMES DRISKELL 21–24, available at http://www.driskellinquiry.ca/pdf/roachreport.pdf. 44. KATHRYN CAMPBELL, MISCARRIAGES OF JUSTICE IN CANADA: CAUSES, RESPONSES, REMEDIES 343 (University of Toronto Press, forthcoming 2018); see also PATRICK J. LESAGE, REPORT OF THE COMMISSION OF INQUIRY INTO CERTAIN ASPECTS OF THE TRIAL AND CONVICTION OF JAMES DRISKELL 127, 129, 132–33 (2007) (describing this as “not a satisfactory final remedy”). 45. Legislative Framework, SCCRC, http://www.sccrc.org.uk/legislative-framework (last visited July 9, 2017). 46. STEWART R. SUTHERLAND,CRIMINAL APPEALS AND ALLEGED MISCARRIAGES OF JUSTICE: REPORT BY THE COMMITTEE APPOINTED BY THE SECRETARY OF STATE FOR SCOTLAND AND THE LORD ADVOCATE Cm.3245, ¶ 5.50 (1996). 47. Id. at ¶¶ 5.1, 5.60. 54 Stetson Law Review [Vol. 47 of a criminal offense in Scotland can apply to the SCCRC.48 It can review sentences and convictions49 and it is empowered to deal with both solemn and summary cases.50 A claim does not have to be made by the convicted person—it can be made in respect of a deceased person in order to posthumously clear their name.51 Still, the applicant does need to have a legitimate connection with the convicted person—victims of the crime or relatives of victims do not have standing to apply.52 The SCCRC has a number of legal officers,53 an annual budget of over £1 million54 to conduct investigations, and extensive legal powers to compel other parties (both public bodies and private individuals) to provide information it deems necessary.55 One third of the SCCRC Commissioners must be solicitors or advocates of at least ten years standing and a further third must have knowledge or experience of the criminal justice system.56 In practice there have been between six and eight Commissioners57 and, traditionally, two have always been lay members, such as academics and figures from the church. The SCCRC has no power to quash a conviction but can refer a case back to the court and it is then for the court to determine the appeal. The grounds upon which the SCCRC can refer a case are that it believes: (a) “a miscarriage of justice may have occurred”; and (b) “it is in the interests of justice that a reference
48. See Peter Duff, Criminal Cases Review Commissions and Deference to the Courts: The Evaluation of Evidence and Evidentiary Rules,CRIM. L. REV. 341, 352–55 (2001) (comparing that as in Canada, the option of applying to the Royal Prerogative of Mercy still exists alongside the SCCRC but applications are very rarely—if ever—now made). 49. See SCOTTISH CRIM. CASES REVIEW COMM’N,ANNUAL REPORT 2014–15, 14 (2016) (explaining that approximately one fifth of applications are for sentence review) [hereinafter SCOTTISH ANNUAL REPORT]; see also James Chalmers & Fiona Leverick, The Scottish Criminal Cases Review Commission and Its Referrals to the Appeal Court: The First Ten Years,CRIM. L. REV. 608, 615–20 (2010) (discussing the Commission’s sentence review function). 50. In Scotland, cases can be prosecuted under solemn or summary procedure. Solemn procedure is reserved for the most serious cases (known as “indictable” cases) and involves the use of a jury to determine guilt. Summary procedure (where cases are prosecuted on a “complaint”) is used for less serious cases. Around a fifth of applications relate to summary cases. SCOTTISH ANNUAL REPORT, supra note 49, at 17. 51. Criminal Procedure (Scotland) Act 1995, c.46, s.194(B)(4). 52. Scottish Crim. Cases Review Comm’n v. Swire [2015] S.L.T. 556 (HCA) at ¶ 23. 53. SCOTTISH ANNUAL REPORT, supra note 49, at 49. At the time of writing, the number of legal officers was seven. 54. Id. at 59. At the time of writing, this equates to approximately $1.25 million. 55. Criminal Procedure (Scotland) Act 1995, c.46, s.194(H)–(IA). 56. Id. s.194(A). 57. Straddling Two Worlds, supra note 13, at 694. 2017] Post-Conviction Review Questions 55 should be made.”58 The phrase miscarriage of justice is a reference to the legal test for determining appeals against conviction in Scotland,59 not to the factual innocence of the applicant. In order for a conviction to be quashed in Scotland, the court must be satisfied that there has been a miscarriage of justice based on a legally recognized factor. Two are specified in legislation: the existence of evidence that was not heard at the original proceedings60 and an unreasonable jury verdict.61 Others are set out in caselaw and all relate to some sort of procedural irregularity such as evidence wrongfully admitted or excluded, trial judge misdirection, or defective legal representation.62 This does mean that, unlike in Canada or North Carolina, the SCCRC is not restricted to looking at cases in which additional evidence has emerged—its references can span the whole range of grounds for appeal.
C. The North Carolina Innocence Inquiry Commission
The North Carolina Innocence Inquiry Commission (NCIIC) was established in 2006,63 on the advice of the North Carolina Actual Innocence Commission—a body set up in 2002 to make recommendations aimed at reducing the risk of wrongful conviction.64 The NCIIC has eight commissioners,65 and these must include a superior court judge, a prosecuting attorney, a victim
58. Criminal Procedure (Scotland) Act 1995, c.46, s.194(C). 59. Id. s.106. 60. Id. s.106(3)(a). 61. Id. s.106(3)(b). 62. See FIONA LEVERICK, JAMES CHALMERS, SARAH ARMSTRONG & FERGUS MCNEILL, SCOTTISH CRIMINAL CASES REVIEW COMMISSION 10TH ANNIVERSARY RESEARCH: FINAL REPORT 18–20 (2009) (providing a comprehensive list of the sort of procedural irregularity). 63. The NCIIC was established by Article 92 of the North Carolina General Statutes (subsequently “NCGS”). N.C. GEN. STAT. § 15A-1461; see Kent Roach, An Independent Commission to Review Claims of Wrongful Convictions: Lessons from North Carolina?, 58 CRIM. L.Q. 283, 284–85 (2012) (discussing the NCIIC in depth) [hereinafter Independent Commission]; Jerome M. Maiatico, All Eyes on Us: A Comparative Critique of the North Carolina Innocence Inquiry Commission, 56 DUKE L.J. 1345, 1345–47 (2007) (surveying the history of the NCIIC). 64. Christine C. Mumma, North Carolina Actual Innocence Commission: Uncommon Perspectives Joined by a Common Cause, 52 DRAKE L. REV. 647, 648 (2004). 65. N.C. INNOCENCE INQUIRY COMM’N, ANNUAL REPORT TO THE 2015–16 REGULAR SESSION OF THE GENERAL ASSEMBLY OF NORTH CAROLINA AND THE STATE JUDICIAL COUNCIL ii (2015) [hereinafter N.C. ANNUAL REPORT]. 56 Stetson Law Review [Vol. 47 advocate, a defense attorney, a sheriff, a person who is not an attorney or employed by the judicial department, and two others.66 The NCIIC will only consider applications from those who have been convicted of a felony in a North Carolina state court67 and—unlike the CCRG and SCCRC—where the applicant is alive.68 Most significantly, the statutory criteria require that the applicant be asserting “complete[] innocence of any criminal responsibility for the felony.”69 Claims of secondary involvement, or of a reduced level of culpability are not considered claims of complete factual innocence. Furthermore, credible and verifiable evidence of innocence must exist,70 and this must not have been previously heard at trial or in a post-conviction hearing.71 If, after a preliminary review, the Executive Director determines that the statutory criteria are met, the case moves into a formal inquiry phase. Priority is given to cases where the claimant is currently incarcerated.72 The investigation phase is a “detailed and lengthy process that involves interviewing witnesses, obtaining affidavits, seeking court orders for evidence, testing of physical evidence, and compiling of documentation.”73 The NCIIC has substantial powers of investigation—it can, for example, issue subpoenas and compel the attendance of witnesses.74 It also has the power to compel the testimony of witnesses who invoke their privilege against self-incrimination.75 If, during the formal inquiry, credible and verifiable new evidence of actual innocence is uncovered, the case progresses to a hearing before the eight commissioners.76 Like the SCCRC and CCRG, the NCIIC cannot itself quash convictions but can refer a case back to the courts. The test that must be met for it to do so is that there is “sufficient evidence of factual innocence to merit
66. N.C. GEN. STAT. § 15A-1463. 67. Id. § 15A-1460(1). 68. Id. 69. Id. 70. Id. 71. Id. 72. N.C. GEN.STAT. § 15A-1466(2). 73. N.C. INNOCENCE INQUIRY COMM’N, REPORT TO THE 2009–2010 LONG SESSION OF THE GENERAL ASSEMBLY OF NORTH CAROLINA 3 (2010). 74. N.C. GEN. STAT. § 15A-1467(d)–(f). 75. Id. § 15A-1468(a1). The Commission Chairperson (a Superior Court Judge) may provide limited immunity to the person against a prosecution for perjury. 76. Id. § 15A-1468. 2017] Post-Conviction Review Questions 57 judicial review.”77 The panel of eight commissioners do not have to agree; a majority decision is permissible.78 Nevertheless, a unanimous decision is required when the applicant pled guilty.79 Unlike the SCCRC or the CCRG, the NCIIC has the discretion to make its hearings public.80 Even when the NCIIC does not hold a public hearing, a transcript of proceedings is made which must be released if the case is referred to the courts.81 If the NCIIC refers a case, the Chief Justice of the North Carolina Supreme Court then appoints a special three-judge panel to hear it.82 A more stringent standard applies to referred cases than to appeals against conviction generally.83 All three judges must unanimously decide that there is “clear and convincing evidence that the convicted person is innocent of the charges”84 in order to exonerate the convicted person.
V. THE SCHEMES IN PRACTICE
As might be expected, given their different constitutions and remits, the three different post-conviction review bodies differ considerably in terms of key measures such as the number of applications they receive, the proportion of these that are referred back to the courts, and the “success rate” of the referred applications. Table 1 summarizes these differences:
77. Id. § 15A-1468(c). 78. Id. 79. Id. This is significant as 39% of applications have been from those who pled guilty. NC Innocence Inquiry Commission Case Statistics, INNOCENCECOMMISSION-NC.GOV (2017), http://www.innocencecommission-nc.gov/stats.html (last visited July 9, 2017). “For the first two years of its existence, the NCIIC [did] not allow any claims from defendants who [pled] guilty” at all. See Maiatico, supra note 63, at 1360. 80. N.C. GEN. STAT. § 15A-1468(a). The Norwegian Criminal Cases Review Commission also has discretion to make its hearings public. Ulf Stridbeck & Svein Magnussen, Opening Potentially Wrongful Convictions—Look to Norway, 58 CRIM. L.Q. 267, 271 (2012). 81. N.C. GEN. STAT. § 15A-1468(e). For transcripts of the cases that have been referred to date, see Cases, INNOCENCEOMMISSION-NC.GOV, http://www.innocencecommission- nc.gov/cases.html (last visited July 9, 2017). 82. N.C. GEN. STAT. § 15A-1469(a). 83. Independent Commission, supra note 63, at 286. 84. N.C. GEN. STAT. § 15A-1469(h). 58 Stetson Law Review [Vol. 47
Table 1: The Post-Conviction Review Bodies Compared
Statistics NCIIC SCCRC CCRG Applications 1724 1594 272 (2007–2015) (1999–2015) (2002–2015) Applications 205 (0.7% of 100 (0.1% of 21 (0.008% annually convicted convicted of convicted (approx.) persons) persons) persons) Referral rate 11 71 convictions 16 convictions (4.5%) convictions (0.64%) (5.8%) Success rate (of 9 convictions 33 convictions 13 determined quashed quashed convictions cases)85 (90%) (48%) overturned (93%)
A. Application Rates
Of the three bodies, the NCIIC has the highest application rate, which is perhaps not surprising given that a number of the factors known to contribute to wrongful conviction—such as ineffective defense representation and substantial incentives offered to induce guilty pleas—are particularly pervasive in the U.S.86 In its most recent annual report, the NCIIC reported that it received 1,837 applications since the Commission’s creation: 1,724 cases have been concluded,87 and the “Commission receives an average of 205 claims each year”88 (an annual application rate of approximately 0.7% of convicted persons).89 The SCCRC’s application rate is considerably lower. As of March 31, 2015, the
85. The percentage figures in this row do not take account of cases that are yet to be determined. 86. JAMES CHALMERS & FIONA LEVERICK, CAUSES OF WRONGFUL CONVICTION, in POST- CORROBORATION SAFEGUARDS REVIEW: REPORT OF THE ACADEMIC EXPERT GROUP 30, 39 (James Chalmers, Fiona Leverick & Alasdair Shaw eds., 2014), available at http://www.gov.scot/Resource/0046/00460650.pdf [hereinafter CAUSES OF WRONGFUL CONVICTION]. 87. N.C. INNOCENCE INQUIRY COMM’N, 2015 ANNUAL REPORT 7 (2016). 88. This figure was provided in the previous year’s annual report. N.C. ANNUAL REPORT, supra note 65, at 9. It was omitted from the latest report but remains broadly similar. 89. In 2013–14, the number of persons convicted of a felony in North Carolina was 28,130. N.C. SENTENCING AND POL’Y ADVISORY COMM’N, STRUCTURED SENTENCING STATISTICAL REPORT FOR FELONIES AND MISDEMEANORS, FISCAL YEAR 2013/14, at 3 (2015), available at http://www.nccourts.org/Courts/ CRS/Councils/spac/Documents/statisticalrpt_fy13-14.pdf. 2017] Post-Conviction Review Questions 59
SCCRC had received 1,594 applications for review of a conviction,90 which over the 16 years of the SCCRC’s operation is roughly 100 applications for conviction review per year (an annual application rate of 0.1% of convicted persons).91 The CCRG, however, has by far the lowest application rate of the three bodies. In the 13-year period between 2002 and 2015,92 the CCRG received 272 applications, which equates to around 21 applications per year (an annual application rate of approximately 0.008% of convicted persons).93 The reasons for the low rate of applications cannot be known for sure, but a lack of awareness or sufficient knowledge about the scheme, the opaqueness of the criteria for review, and a lack of confidence in the impartiality of the Minister are likely factors.
B. Referral Rates
While it has by far the lowest application rate, the CCRG has the highest rate of referral of the three bodies. Of the 272 applications, 16 resulted in the Minister concluding that a miscarriage of justice likely occurred, a referral rate of 5.8%.94 The referral rate for the SCCRC is similar to that of the CCRG, although it is based on a far greater number of applications. Of the SCCRC’s 1,580 conviction review applications that had concluded, the SCCRC has referred 71 of these to the court, a rate of 4.5%.95 It is the NCIIC that has by far the lowest referral rate, although,
90. SCOTTISH ANNUAL REPORT, supra note 49, at 14 (noting that 2,018 applications were received in total); id. at 17 Table 2 (noting that 79% of 2,018 applications, which calculates to 1,594 applications, were for conviction review—the remaining applications were only for review of sentence). 91. In fiscal years 2013–14, the number of persons convicted in the Scottish courts was 105,549. Criminal Proceedings in Scotland, 2013–14, GOV.SCOT Table 2a (2014), available at http://www.gov .scot/Resource/0048/00481722.pdf. 92. It is not possible to obtain application figures before 2002. 93. For 2013–14, approximately 360,000 cases were concluded in the Canadian adult criminal courts. Of that number, about two-thirds (63%) “resulted in a finding of guilt.” ASHLEY MAXWELL, ADULT CRIMINAL COURT STATISTICS, 2013/2014, at 4, 8 (Sept. 28, 2015) available at http://www.statcan.gc.ca/pub/85-002-x/2015001/article/14226-eng.pdf. 94. CAMPBELL (forthcoming 2018), supra note 44, at 345. 95. SCOTTISH ANNUAL REPORT, supra note 49, at 25. It should be noted that the Annual Report refers to 74 convictions having been referred, but personal correspondence with the SCCRC indicated that this figure was an error and that 71 was the correct figure and the SCCRC’s website now reflects this. See Conviction, SCCRC.ORG.UK (2017), http://www.sccrc.org.uk./conviction (last visited July 9, 2017) (listing 74 referred conviction cases). 60 Stetson Law Review [Vol. 47 given the far more stringent standard of review operated by the NCIIC, this is hardly surprising. At the time of writing, 11 convictions had been referred to the court by the NCIIC,96 a referral rate of 0.64%.
C. The Outcome of Referred Cases
The NCIIC might refer very few cases, but of the cases it does refer, the vast majority result in the conviction being quashed by the courts. Of the eleven NCIIC referrals, at the time of writing one was still awaiting a hearing. Of the remaining ten, nine convictions were quashed at the court stage.97 This equates to a 90% success rate,98 though the small numbers involved make the statistic of limited value. All of the exonerated individuals served at least ten years in prison prior to exoneration; four prisoners served over thirty years.99 While very few cases ever make it through the CCRG process, most cases that are referred back to the provincial/territorial courts of appeal are successful. Of the sixteen cases referred back to the courts “over a [thirteen]-year period (2002–2015),” four involved the applicant being acquitted at the Court of Appeal or Supreme Court.100 In the remaining twelve cases, the courts ordered a new trial, but only one applicant was reconvicted (and that was of a lesser charge). Of the remainder, in five cases the proceedings were stayed by the Crown, one had the charges withdrawn, and three cases resulted in an acquittal.101 Overall,
96. Nine cases were referred, but two of these involved two co-accused. Cases, supra note 81. In line with the Scottish analysis, the figures for individual convictions are used here rather than the case figures. 97. NC Innocence Inquiry Commission Case Statistics, supra note 79. Seven of the referred cases were dealt by the appeals court as appeals against conviction, and three were dealt by the original trial court as motions for appropriate relief. The distinction is unimportant here, as the outcome in all nine instances was that the applicant was exonerated. 98. The one unsuccessful case was the only one where the referral decision was not unanimous. N.C. Innocence Inquiry Comm’n, State v. Reeves, INNOCENCECOMMISSION- NC.GOV, http://www.innocencecommission-nc.gov/reeves.html (last visited July 9, 2017). 99. See Cases, supra note 81 (illustrating the cases of Willie Womble (38 years), Joseph Sledge (38 years), Leon Brown (30 years), and Henry McCollum (30 years)). 100. CAMPBELL (forthcoming 2018), supra note 44, at 345–46. Information on these sixteen cases also came with additional help from Nathalie Vautour of the CCRG. 101. In the two remaining cases, the outcome is unknown as they are still before the courts. 2017] Post-Conviction Review Questions 61 this translates into a 93% success rate,102 though, again, such small numbers make generalization difficult. The figures relating to North Carolina and Canada stand in contrast to those for the SCCRC. Of the 71 cases referred to the court by the SCCRC, two appeals were abandoned and must be discounted from the analysis. Of the remaining 69 cases, 33 resulted in the conviction being quashed—a “success rate” of only 48%.103 While this is considerably lower than the relevant figure for either North Carolina’s NCIIC or the Canadian CCRG, it does need to be understood in the context of the higher number of referred cases and the wider terms of reference of the SCCRC compared to the other two bodies.104 Unlike the NCIIC and the CCRG, the SCCRC is not limited in its referrals to cases where fresh evidence emerges post-conviction. New evidence is the most frequent ground for referral, but it accounts for only 35% of cases.105 Even after adding “failure to disclose” cases (a ground of referral that relates closely to the existence of new evidence), the figure only amounts to 50%.106 Half of the referred cases are referred on other grounds (most commonly errors of law or trial judge misdirection at the original trial)107 that would not meet the criteria for referral in the Canadian CCRG or in North Carolina’s NCIIC.
VI. THE APPROPRIATE ROLE OF A POST-CONVICTION REVIEW BODY
A. Is Post-Conviction Review Necessary?
An initial question is whether there is a need for post- conviction review at all. Finality is an important value in the legal system and the existence of post-conviction review clearly reduces this.108 Closure is delayed and increased demands are made on the
102. This does not include the case where the applicant was convicted of a lesser charge as a “success.” If this case was included, the “success rate” would be 100%. 103. This rate has fluctuated over time—over the first ten years, the proportion of conviction referrals where the court quashed the conviction was 60%. Chalmers & Leverick, supra note 49, at 616. 104. See infra text accompanying note 157 (comparing the referral rates). 105. SCOTTISH ANNUAL REPORT, supra note 49, at 21. 106. Id. 107. Id. at 20–21. 108. Kate Malleson, Appeals Against Conviction and the Principle of Finality, 21 J.L. & SOC’Y 151, 159 (1994). 62 Stetson Law Review [Vol. 47 public purse.109 But in the modern era, with the advent of DNA exonerations,110 to the best of our knowledge, no one has seriously argued against the need for some form of post-conviction review. It is sometimes suggested that the role of post-conviction reviews should be very limited,111 but the need for “closure” is a very weak argument when put against clear and convincing evidence that someone is suffering a deprivation of liberty for a crime they did not commit.112 Such evidence sometimes emerges many years later after the normal appeals process has been exhausted,113 and justice dictates that there needs to be some sort of right of redress for wrongly convicted persons when this happens. One such route might be through an executive system of pardons, like the Royal Prerogative of Mercy.114 But it is not appropriate to operate a system where this is the only way to deal with claims of wrongful conviction.115 It is a discretionary (and therefore potentially inequitable)116 remedy that lacks transparency117 and is exercised by a member of the executive.118
109. Peter H. Howden, Judging Errors of Judgment: Accountability, Independence and Vulnerability in a Post-Appellate Conviction Review Process, 21 WINDSOR Y.B. ACCESS JUST. 569, 583–86 (2002). 110. See supra note 5 and accompanying text (referring to the Innocence Project). 111. David Wolitz, Innocence Commissions and the Future of Post-Conviction Review, 52 ARIZ. L. REV. 1027, 1081 (2010); Maiatico, supra note 63, at 1373. 112. As noted earlier, in North Carolina, where clear and convincing evidence of innocence is a pre-requisite for exoneration after an application to the NCIIC, two of the exonerated applicants had served over 35 years in prison. See supra note 99 and accompanying text (showing the years that cases illustrated). 113. In Canada, for example, Steven Truscott was wrongly convicted for the rape and murder of Lynn Harper in 1959. He received the death penalty, which was later commuted to life imprisonment. Truscott’s conviction was finally overturned in 2007 following a conviction review of his case. The Ontario Court of Appeal heard new forensic entomological evidence that indicated a different time of death for Harper, effectively ruling out Truscott as her killer. Truscott (Re), 2007 ONCA 575, ¶¶ 13–40 (CanLII) (available at https://www.canlii.org/en/on/onca/doc/2007/ 2007onca575/2007onca575.html). 114. The Royal Prerogative of Mercy still exists in some form in most common law jurisdictions, including those that have established independent criminal cases review commissions. Jennifer Schweppe, Pardon Me: The Contemporary Application of the Prerogative of Mercy, 49 IRISH JURIST 211, 211 (2013). 115. Whether the Royal Prerogative of Mercy might still play a useful role alongside another method of dealing with wrongful conviction claims is a separate issue. See Schweppe, supra note 114, at 226 (providing an argument that it does). 116. Trotter, supra note 24, at 343. 117. Sue Milne, The Second or Subsequent Criminal Appeal, the Prerogative of Mercy and the Judicial Inquiry: The Continuing Advance of Post-Conviction Review, 36 ADEL. L. REV. 211, 212 (2015). 118. For the importance of independence, see infra notes 125–35 and accompanying text (providing further discussion on the importance of independence). 2017] Post-Conviction Review Questions 63
In addition, and perhaps most significantly, the effect of a pardon is not to remove the conviction; its effect is still to imply that the person concerned did something wrong.119 But, as Smith put it, “[w]here a person has been wrongly convicted, he seeks justice and not mercy.”120 If an error is made by the criminal courts, the legitimate and just response is to rectify the error by quashing the conviction in question. The question then arises of whether post-conviction review is something that can be effectively achieved by the courts alone. In South Australia, the introduction of an independent criminal cases review commission was considered, but ultimately the decision was made to establish a new process for out-of-time appeals where fresh evidence of innocence emerges.121 The convicted person, instead of applying to an independent body or to a Minister, simply applies to the court: the Statutes Amendment (Appeals) Act of 2013 amended the Criminal Law Consolidation Act of 1935 to give convicted persons a second or subsequent appeal in cases where there is “fresh and compelling evidence” of a wrongful conviction and it is in the interests of justice.122 But, as critics of the South Australian legislation have pointed out, this is to ignore the difficulties that convicted persons face in trying to obtain fresh evidence of innocence, especially when they are incarcerated.123 As we have seen, the CCRG, SCCRC, and NCIIC all have considerable powers of investigation and resources to investigate claims. This is an important strength of the system in all three jurisdictions and serves to counter—at least in part—the disadvantage the wrongly convicted person faces in terms of having the time, money, and legal powers needed to collect evidence.124 It might be countered that such assistance can be provided by volunteer innocence
119. Trotter, supra note 24, at 343–44. 120. A. T. H. Smith, The Prerogative of Mercy, the Power of Pardon and Criminal Justice, PUB. L. 398, 421 (1983). 121. Rachel Dioso-Villa, ‘Out of Grace’: Inequity in Post-Exoneration Remedies for Wrongful Conviction, 37 U. NEW S. WALES L.J. 349, 374 (2014). 122. See Statutes Amendment (Appeals) Act 2013 (SA) ! 7 (inserting section 353A into the Criminal Law Consolidation Act 1935). For discussion, see Milne, supra note 117, at 212. 123. Lynne Weathered, Wrongful Conviction in Australia, 80 U. CIN. L. REV. 1391, 1409– 10 (2012); Bibi Sangha, Robert Moles & Kim Economides, The New Statutory Right of Appeal in South Australian Criminal Law: Problems Facing an Applicant—Unanticipated Interpretive Difficulties, 16 FLINDERS L.J. 145, 185 (2014). 124. Barry C. Scheck & Peter J. Neufeld, Towards the Formation of “Innocence Commissions” in America, 86 JUDICATURE, Sept.–Oct. 2002, at 98, 104. 64 Stetson Law Review [Vol. 47 projects, but that ignores the superior legal powers that the CCRG, SCCRC, and NCIIC have to compel the production of evidence from individuals and organizations.125 Proving innocence is a daunting task, and if a post-conviction review body is to operate effectively, it needs to have the power and resources to investigate individual cases.126
B. Is Independence Required?
The next question, if it is accepted that there is a case for a post-conviction review body, is what form that body should take and, in particular, whether its effectiveness requires it to be independent of government. As we have seen, post-conviction review is carried out by an independent body in North Carolina and Scotland. In Canada, however, the ultimate decision on referral is made by the Minister of Justice, albeit advised by the CCRG and its special advisers. The need for independence is certainly the basis on which some have argued for the establishment of criminal cases review commissions in jurisdictions where they do not yet exist, such as Australia,127 most states in the U.S.,128 and Canada.129 Further, this lack of independence has been proffered as the reason for the
125. On the question of whether there is still a useful role to be played by Innocence Projects in a jurisdiction with an independent post-conviction review scheme, see Stephanie Roberts & Lynne Weathered, Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects and the Criminal Cases Review Commission, 29 OXFORD J. LEGAL STUD. 43, 45 (2009) (arguing that the Innocence Project and the Criminal Cases Review Commission can work together effectively to assist the factually innocent); Hannah Quirk, Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer, 70 MOD. L. REV. 759, 762 (2007) (arguing that the use of the Innocence Project “to do the work of Criminal Cases Review Commission” is dangerous and ill-advised). 126. The difficulty of proving innocence is illustrated by the case of Kenneth Kagonyera, who was exonerated after almost ten years imprisonment, following an application to the NCIIC. He worked with other agencies in an attempt to secure DNA testing prior to his application, but it was only following his application to the NCIIC that this testing (which was to prove his innocence) was carried out. N.C. INNOCENCE INQUIRY COMM’N, REPORT TO THE 2011–2012 SHORT SESSION OF THE GENERAL ASSEMBLY OF NORTH CAROLINA AND THE STATE JUDICIAL COUNCIL 5 (2012). 127. Hamer, supra note 11, at 311 (focusing on why New South Wales and Australia should adopt a similar model to the CCRC). 128. See Robert C. Schehr & Lynne Weathered, Should the United States Establish a Criminal Cases Review Commission?, 88 JUDICATURE Nov.–Dec. 2004, at 122, 145 (discussing potential approaches in the United States). 129. Four of the six independent commissions of inquiry into the wrongful conviction of individuals held in Canada to date have recommended the establishment of an independent entity such as a criminal case review board to replace the current system. See Walker & Campbell, supra note 13, at 197–98 (documenting other recommendations). 2017] Post-Conviction Review Questions 65 low numbers applying to the CCRG in Canada,130 as potential applicants with genuine claims may lack confidence that these will be impartially reviewed.131 Wrongful conviction can sometimes be the result of a State’s malpractice, and it is important that a post- conviction review body is free from political pressures in investigating such claims. That said, there is no obvious evidence of actual bias in Canada, where the CCRG has referred cases involving errors on the part of police officers and Crown Attorneys.132 Even if no actual bias exists, perception is still important. As the Sutherland Committee put it, a post-conviction review body needs to “command public confidence: justice should not only be done, but be seen to be done.”133 There is a danger that the Canadian system “does not command the same [level of] confidence [to] potential applicants” (or the wider public) as an independent commission would: the result being that some with genuine claims of innocence are put off from applying.134 The appearance of independence is especially important because post-conviction review bodies are almost certainly going to reject the vast majority of claims they receive, given their stringent application criteria (as is evidenced by referral rates in Canada, North Carolina, and Scotland of 5.8%, 0.64%, and 4.5% respectively). Independence helps to secure public confidence that the rejected claims were in fact lacking merit, whereas rejection by a government minister might leave a lingering suspicion that claims are being rejected to cover up state impropriety.135 It can also contribute to public confidence not just in the post-conviction review body itself, but also in the wider criminal justice system. If the vast majority of claims are rejected by a genuinely independent body, this is
130. As noted earlier, the CCRG has received only 272 applications over a sixteen-year period, far fewer in comparative terms than the SCCRC or NCIIC. See supra Table 1. 131. See Walker & Campbell, supra note 13, at 199 (arguing that “the failure to construct a less Ministerial-based system remains inconsistent with the federal government’s aim to increase ‘transparency and accountability’ around the process”). 132. E.g., Re Walsh, [2008] NBCA 33. 133. SUTHERLAND, supra note 46, at ¶ 5.30. 134. Independent Commission, supra note 63, at 288. 135. Mary Kelly Tate, Commissioning Innocence and Restoring Confidence: The North Carolina Innocence Inquiry Commission and the Missing Deliberative Citizen, 64 ME. L. REV. 531, 552 (2012); Scheck & Neufeld, supra note 124, at 100. 66 Stetson Law Review [Vol. 47 credible evidence that should reassure the public that the police, prosecutors, and courts do get it right most of the time.136
C. The Test for Referral and Conceptions of “Innocence”
As we have seen, the three post-conviction review bodies employ very different tests for referral of a case back to the court of appeal. At one end of the spectrum, the NCIIC refers cases only where there is sufficient evidence of factual innocence. What is more, it limits such claims to those who had no involvement in the crime—convicted persons cannot apply on the basis they performed the act but lacked mens rea, that they had a recognized defense (such as self-defense), or that they should have been convicted of a lesser offense. This narrow conception has resulted in a referral rate of only 0.64%, by far the lowest of the three jurisdictions, but a success rate of 90% when the cases reach court.137 In Canada, the test is wider. Cases are referred where there exists new and significant information that was not previously considered by the courts, creating a reasonable belief that a miscarriage of justice likely occurred. This would include cases of prosecutorial non-disclosure, but would not encompass claims of errors of law or procedure (such as trial judge misdirection or wrongful admission of evidence). The referral rate of the CCRG is 5.8%, and most referrals have resulted in the conviction being quashed, with a success rate of 93%, although all of this does have to be placed in context of the extremely low number of applications.138 In Scotland, the test is wider still. Cases can be referred by the SCCRC on the basis that any arguable ground of appeal exists, including but not limited to the existence of new evidence. The referral rate there is 4.5%,139 and half of these cases have been referred on the basis of procedural errors (something that would not be possible in either North Carolina or Canada). However, less than half of the cases referred resulted in the conviction being quashed when the case reached court, with a
136. Graham Zellick, The Criminal Cases Review Commission and the Court of Appeal: The Commission’s Perspective,CRIM. L. REV. 937, 950 (2005). 137. See supra Table 1 (comparing the post-conviction review bodies). 138. Id. (comparing the number of applicants, referral rates, and success rates between the CCRC, NCIIC, and the SCCRC). 139. Id. (failing to show the different standards each body follows). 2017] Post-Conviction Review Questions 67 success rate for referrals at 48%,140 a figure far lower than that of North Carolina or Canada. What then should the test for referral be? There is no “correct” answer to this question, and to a certain extent the answer must depend on the prevailing legal and political culture.141 The test used in North Carolina is about as narrow as it is possible to envisage, but, it does run the risk of considerable injustice. Those who acted without mens rea, or who had a recognized justification defense such as self-defense, cannot apply, but it is difficult to see how they are any less innocent in moral terms than those who can demonstrate that they were not involved in the incident at all.142 The NCIIC test would also rule out referral if the applicant had fresh evidence supporting a partial defense (such as diminished capacity), and excluding these cases is also an injustice (perhaps not to the same extent as excluding those cases where the applicant should not have been convicted at all).143 It is not just the fact of a conviction that is important but also what the conviction is for, both in terms of fair labelling144 and in terms of ensuring proportionality of punishment.145 The focus on demonstrable factual innocence is also problematic. As Roach has pointed out, on one level, it is appealing because of the “clear injustice”146 of convicting the factually innocent. Wolitz claims that it “serves an important signaling function to the wider public: it assures state citizens that only the most worthy petitioners, those with clear and positive evidence of innocence, will be exonerated.”147 It also acts to protect the public by minimizing the risk of factually guilty and possibly dangerous
140. Id. 141. Scheck & Neufeld, supra note 124, at 101. 142. Christopher Sherrin, Declarations of Innocence, 35 QUEENS L.J. 354, 469–70 (2010). 143. By contrast, the SCCRC has referred a number of cases on this basis. See, e.g., Lilburn v. H.M. Advocate [2015] HCJAC 50; Kalyanjee v. H.M. Advocate [2014] HJAC 44. This is also true of the Norwegian Commission and the English CCRC. See Ulf Stridbeck & Svein Magnussen, Prevention of Wrongful Convictions: Norwegian Legal Safeguards and the Criminal Cases Review Commission, 80 U. CIN. L. REV. 1373, 1385 (2012) (referring to the Norwegian Commission); ELKS, supra note 13, at 188 (referring to the English CCRC). 144. See James Chalmers & Fiona Leverick, Fair Labelling in Criminal Law, 71 MOD. L. REV. 217, 223 (2008) (discussing the history of criminal offense labelling and the effects of over-categorizing crimes). 145. ANDREW ASHWORTH & JEREMY HORDER, PRINCIPLES OF CRIMINAL LAW 19 (7th ed. 2013). 146. Independent Commission, supra note 63, at 299. 147. Wolitz, supra note 111, at 1081. 68 Stetson Law Review [Vol. 47 applicants being released into the community.148 But, as evidenced by the fact that only eleven convictions have been referred by the NCIIC since its inception,149 this does need to be balanced against considerations of justice to individual applicants. Even for those who are factually innocent, conclusive proof of factual innocence can be very hard to come by because it requires proving a negative.150 Innocence is, as a former English CCRC Commissioner stated, “damnably difficult to prove.”151 A test requiring proof of innocence benefits primarily those who have DNA evidence at their disposal,152 but this will not exist in the majority of cases.153 The NCIIC itself even recognizes this, stating that in 20% of the applications it rejects there would have been no possible way of demonstrating factual innocence.154 It may be, of course, that this test was the only one that was politically acceptable in North Carolina and that if a wider test had been contemplated there would have been no way to secure the political agreement needed for the NCIIC’s establishment.155 A Commission with a very narrow test is better than having no Commission at all, but in terms of securing justice in individual cases, it leaves a justice deficit that is difficult to defend in principled terms. A more inclusive test is that of the Canadian CCRG where the focus is on fresh evidence that indicates a miscarriage of justice likely occurred (which includes cases of prosecutorial non- disclosure). The formulation of the test can be criticized for its vagueness and the fact that it is a more difficult test to meet than that applied by the court.156 But it also gives rise to a broader question—should a post-conviction review body restrict its ambit
148. Maiatico, supra note 63, at 1373. 149. Cf. Zalman’s estimate of a 0.5–1% rate of wrongful conviction in the U.S. See Zalman, supra note 22 and accompanying text (estimating a general wrongful conviction rate, based on qualitative analysis). 150. Roberts & Weathered, supra note 125, at 58; Weeden, supra note 9, at 198. 151. David Jessel, Innocence or Safety: Why the Wrongly Convicted Are Better Served by Safety,THE GUARDIAN (Dec. 15, 2009, 5:35 AM), https://www.theguardian.com/ uk/2009/dec/15/prisons-and-probation. 152. Independent Commission, supra note 63, at 301. 153. Quirk, supra note 125, at 769. 154. NC Innocence Inquiry Commission Case Statistics, supra note 79. 155. For a discussion of the role of politics in wrongful conviction related law reform, see Marvin Zalman & Julia Carrano, Sustainability of Innocence Reform, 77 ALB. L. REV. 955, 964–74 (2014). 156. See WOLCH & MCLEAN, supra note 37 and accompanying text (criticizing the high standards that are applied to conviction review as compared to other subsequent court hearings). 2017] Post-Conviction Review Questions 69 to cases where there is fresh evidence, or should it also be possible to refer cases because there was a procedural error (such as a trial judge misdirection or other error of law) affecting the fairness of the applicant’s trial? This distinction is illustrated starkly by contrasting the Canadian CCRG with the Scottish SCCRC: 50% of the latter’s referrals were referred not because of new evidence emerging, but because of a procedural error.157 While there may be political considerations that play into restricting the ambit of a post-conviction review body to fresh evidence cases, there are two principled arguments for preferring the SCCRC’s approach. The first is that procedural errors, while they cannot provide the proof of factual innocence required by the NCIIC, can certainly cast doubt over the guilt of the person concerned.158 If, for example, the case against the applicant was based primarily on a confession obtained without the suspect being offered legal assistance and there exists little else by way of evidence, then the applicant’s guilt is no longer as clear as it was.159 Likewise, if the jury was not given a clear instruction about how to evaluate identification evidence against the accused in a case where the identification evidence was weak, this too casts some doubt on the issue of guilt.160 The second reason, however, is unrelated to guilt. Permitting a conviction to stand where there is convincing evidence of guilt but there has been a serious error of procedure would arguably harm the integrity of the criminal justice process.161 Integrity and legitimacy are both important if the criminal justice system is to
157. The English CCRC, where the test for referral is broadly similar to that of the SCCRC, also refers a considerable number of cases on “procedural” grounds. See ELKS, supra note 13, at 186–90 (reviewing homicide referrals). 158. Roberts & Weathered, supra note 125, at 55; Abbe Smith, In Praise of the Guilty Project: A Criminal Defense Lawyer’s Growing Anxiety About Innocence Projects, 13 U. PA. J.L. & SOC. CHANGE 315, 324 (2010). 159. See, e.g., M. v. H.M. Advocate [2012] HCJAC 157, at ¶¶ 10, 12 (exemplifying a case referred by the SCCRC where a case was solely based on an applicant’s confession obtained without legal assistance). 160. See, e.g., Docherty v. H.M. Advocate [2014] HCJAC 94, at ¶ 24 (exemplifying a case referred by the SCCRC where the jury instruction lacked instruction to aptly evaluate identification evidence). On the importance of jury instructions concerning eyewitness identification evidence, see Leverick, supra note 6, at 555–56. 161. See, e.g., Findley, supra note 14, at 1185 (arguing that convictions based on procedural errors are “tremendously significant and legitimate”); BRIAN FORST, ERRORS OF JUSTICE: NATURE, SOURCES AND REMEDIES 2–3 (2004). 70 Stetson Law Review [Vol. 47 retain its moral authority to punish and for the public to retain confidence in the system.162 As Spencer puts it:
the criminal appeal process exists not only to ensure that the factually innocent are not punished, but also to uphold the rule of law. . . . [A] criminal conviction is only acceptable if it carries moral authority, and a decision reached in defiance of the basic rules that society prescribes for criminal investigations and criminal trials does not.163
It is not our intention here to enter the debate about whether a conviction should ever be quashed on the basis of a procedural irregularity where there is overwhelming evidence of guilt.164 There is certainly a case to be made for the courts to be able to quash the conviction of a factually guilty person where the procedural irregularity that took place was so serious it calls the integrity of the criminal justice system into question.165 But it does not necessarily follow that it should be the role of a post-conviction review body to do so. On one hand, Weeden (a former English CCRC Commissioner) has argued that there is a role for the English CCRC in protecting “the general integrity of the criminal justice system.”166 According to Weeden, the English CCRC
works to overturn not only the wrongful convictions of those who others believe to be innocent, but also the wrongful convictions of those who only may be innocent (though others doubt it) and even, indeed, of those who, though they seem clearly guilty, have been convicted only after substantial systemic error or wrongdoing.167
By contrast, in Cochrane, the SCCRC took the stance that it is not appropriate for a post-conviction review body to refer a case
162. Quirk, supra note 125, at 761. See generally IAN H. DENNIS, THE LAW OF EVIDENCE 54 (5th ed. 2013) (emphasizing the importance of having strict rules of evidence and adherence to them). 163. John R. Spencer, Quashing Convictions for Procedural Irregularities,CRIM. L. REV. 835, 836 (2007). 164. For a collection of essays on this subject, see THE INTEGRITY OF CRIMINAL PROCESS: FROM THEORY INTO PRACTICE (Jill Hunter, Paul Roberts, Simon M.N. Young & David Dixon, eds., 2016). 165. See Spencer, supra note 163, at 842–46 (specifying the classes of cases identified). 166. Weeden, supra note 9, at 199. 167. Id. at 198–99 (emphasis added). 2017] Post-Conviction Review Questions 71 where a procedural error makes no difference to the strength of the evidence against the applicant.168 Cochrane had applied to the SCCRC claiming that the indictment on which he was convicted was invalid as the facts specified did not constitute a crime.169 The SCCRC agreed, but declined to refer the case. Relying on the second limb of its test for referral,170 the Commission argued that it was not in the interests of justice, given the overwhelming evidence that Cochrane had been involved in a criminal conspiracy. Cochrane responded by petitioning the nobile officium, an equitable remedy of last resort in Scotland where no other legal options are available. His case was unsuccessful on a technicality, although the court stated that it would also have refused the case on its merits.171 More significant is the explanation of Peter Duff, one of the commissioners involved in the case, who provided a more significant explanation as to why the decision was taken to reject it:
First, the Commission’s primary function is to prevent factually innocent people from being punished for offences they had not committed. This was not such a case. Second, an important task of the Commission is to foster confidence in the Scottish criminal justice system and this would not be accomplished by referring, on a pure technicality, the case of someone who was clearly guilty.172
168. Cochrane v. H.M. Advocate [2002] S.L.T. 1424, at ¶¶ 18–19 (original appeal against conviction); Cochrane (Petitioner) [2006] HCJAC 27, at ¶ 9 (petition to the nobile officium). 169. He was charged (along with two co-accused) with conspiring to break into a house while his two co-accused went on to break into the property and commit a robbery. Housebreaking on its own is not a crime in Scotland—it only becomes criminal if committed “with an intent to steal,” but this was not specified on the indictment. Guidance: Relevant Offenses List for Scotland,GOV.UK (Jan. 9, 2016), https://www.gov.uk/government/ publications/relevant-offences-list-for-scotland/relevant-offences-list-for-scotland. 170. See supra note 58 and accompanying text (identifying the grounds for SCCRC referrals). 171. The application was refused as incompetent because in applying to the SCCRC the applicant had already used his remedy of last resort. Cochrane (Petitioner) [2006] HCJAC 27, at ¶ 14. The court noted that it would also have refused the application on its merits. Id. at ¶ 15. The case is discussed in detail by Straddling Two Worlds, supra note 13, at 706– 09. 172. Straddling Two Worlds, supra note 13, at 707. Cf. Carberry v. H.M. Advocate [2013] HCJAC 101, at ¶¶ 7–8 (identifying where the SCCRC did refer on the basis of a procedural irregularity, the jury in the original trial had accessed potentially prejudicial information about the applicant online, despite noting the strength of evidence against the applicant). The case might be distinguished from Cochrane, though, in that the error was one that related to the evidence available at the original trial. It was not, in the words of Duff, a “pure technicality.” Straddling Two Worlds, supra note 13, at 707. 72 Stetson Law Review [Vol. 47
It is argued here that the approach taken in Cochrane is the correct one. While it is undoubtedly true that an important role of a post-conviction review body is to foster public confidence in the criminal justice system, this is not going to be achieved by the referral of cases where there is overwhelming evidence of the applicant’s guilt.173 A Commission, or other post-conviction review body, sits outside the court system and acts as a body of last resort. It plays a role in fostering public confidence and in upholding integrity in the narrow sense of minimizing the extent to which the system makes mistakes. It does not, however, bear the responsibility of securing the integrity of the criminal justice system where to do so would mean the release into society of a probably guilty (and possibly dangerous) person.174 It might be said in response that integrity, in the broad sense, can be upheld without necessarily releasing the person concerned. A referral could result in the conviction being quashed, but a retrial (untainted by the original breach) being ordered.175 But this will not always be possible or appropriate. The breach might have occurred prior to trial (in which case a fresh trial can hardly be said to “cure” it)176 or the passage of time or other factors may make retrial impossible.177 But all practical considerations aside, the principle argument playing in favor of a court quashing the conviction of a guilty person where there has been a serious procedural impropriety—that it has lost the moral authority to convict—simply does not apply to a post-conviction review body. A post-conviction review body sits outside the court system. It does not lose moral authority in the same way and by referring such cases runs the risk of serious damage to public support for and confidence in the institution.178
173. Hamer, supra note 11, at 309. 174. Duff, supra note 48, at 360. 175. Spencer, supra note 163, at 837. 176. Id. (giving the example of Mullen, a case where the British authorities brought the defendant back into the jurisdiction for trial unlawfully, bypassing the legal extradition procedure). 177. James Chalmers & Fiona Leverick, When Should a Retrial Be Permitted After a Conviction Is Quashed on Appeal?, 74 MOD. L. REV. 721, 726–28 (2011). 178. This is aside from any questions as to whether this is an acceptable use of scarce resources. 2017] Post-Conviction Review Questions 73
D. The Cases Eligible for Review
A further question is the scope of a post-conviction review body in terms of whether it considers cases regardless of their seriousness or whether restrictions are placed on its remit.179 There are no formal limits on the types of cases that can be reviewed by the SCCRC or the Canadian CCRG,180 although in practice the CCRG has referred only cases on indictment (mostly murder and sexual assault)181 whereas the SCCRC’s referrals have included summary cases and covered a broader range of offense categories.182 The NCIIC is formally restricted to considering applications from those who have been convicted of a felony. There is a strong argument in favor of permitting a post- conviction review body to consider all types of cases, regardless of their seriousness. Mistakes in summary cases are not necessarily of less impact—conviction for any criminal offense carries with it considerable stigma: it is the “the strongest formal censure that society can inflict.”183 As Hamer puts it:
For one defendant a first summary conviction may be extremely damaging to career, family and relationships, whereas for another, already in prison on other unchallenged convictions, an additional indictable conviction may make little difference.184
Having said that, while there is no principled reason for restricting the ambit of a post-conviction review body, where limited resources are available priorities have to be placed somewhere. Both the Scottish SCCRC and the English CCRC have been permitted to investigate summary and indictable cases from
179. There is also the question of whether a post-conviction review body should consider claims relating solely to sentence, but this lies outside the scope of our Article. 180. Initially the CCRG could only review cases originally prosecuted on indictment, but the 2002 amendments to the Criminal Code allow those convicted of summary offenses to request conviction review. 181. See CAMPBELL (forthcoming 2018), supra note 44, at 400, 400 n.32 (questioning the discretion of “the Attorney General to send a case directly to trial” by way of indictment). 182. See Conviction, supra note 95 (listing of referred conviction cases). 183. ASHWORTH & HORDER, supra note 145, at 1. On the effect of a criminal conviction on subsequent employment prospects, see Simone Ispa-Landa & Charles E. Loeffler, Indefinite Punishment and the Criminal Record: Stigma Reports Among Expungement- Seekers in Illinois, 54 CRIMINOLOGY 387 (2016). 184. Hamer, supra note 11, at 309. 74 Stetson Law Review [Vol. 47 the outset.185 However, it is notable that, in the face of “serious funding constraints,” the UK Parliament’s House of Commons Justice Committee recommended in 2015 that the English CCRC be given a statutory discretion to refuse to investigate cases dealt with summarily.186 Politics also come into play here. When a post- conviction review body is first being contemplated, there may be something to be said for giving it a narrow scope because this is more politically palatable.187 There is also the question of whether a post-conviction review body should be able to investigate cases where the convicted person is dead and the application is made by other interested parties such as his or her relatives. This would be ruled out in North Carolina, but it is possible in Scotland and Canada. While no Scottish referrals have been made in such cases to date,188 in Canada the CCRG has begun (but not completed) a conviction review on the case of Wilbert Coffin.189 There are two possible arguments in favor of permitting this. The first is that the impact of a wrongful conviction can be considerable for the family of a wrongly convicted person.190 Although not as directly stigmatizing as being physically incarcerated or directly impacting employment, the indirect stigma and lingering effects on family members of the wrongly convicted persists after the conviction and death of the person concerned.191 Extending the remit to cases
185. This was the case for the SCCRC despite the Sutherland Commission recommending that it be restricted initially to only dealing with solemn cases to ensure the new body was not “overwhelmed.”SUTHERLAND, supra note 46, at ¶ 5.59. 186. HOUSE OF COMMONS JUST. SELECT COMM., CRIMINAL CASES REVIEW COMMISSION, 12TH REPORT OF 2014–15 ¶ 39, at 20 (HC Paper No 850, 2015). For discussion, see Michael Zander, The Justice Select Committee’s Report on the CCRC—Where Do We Go from Here? CRIM. L. REV. 473, 486 (2015). 187. Hamer, supra note 11, at 310. 188. Cf. Zellick, supra note 136, at 942–44 (noting that the English CCRC has referred cases of deceased people on the application of surviving family members). 189. Wilbert Coffin was hanged in Montreal, Quebec in February 1956 following a conviction for a triple homicide. The conviction rested largely on circumstantial evidence, including the fact that Coffin was the last person to be seen with one of the victims and had many items belonging to them in his possession. CAMPBELL (forthcoming 2018), supra note 44, at 133. 190. See Richard Nobles & David Schiff, The Criminal Cases Review Commission: Establishing a Workable Relationship with the Court of Appeal,CRIM. L. REV. 173, 179, 179 n.38 (2005) (noting the unreported case of R. v. Matten, where the court apologized to the family of the wrongly convicted person). 191. Adrian T. Grounds, Psychological Consequences of Wrongful Conviction and Imprisonment, 46 CAN. J. OF CRIMINOLOGY AND CRIM. JUST. 165, 165 (2004); Kathryn Campbell & Myriam Denov, The Burden of Innocence: Coping with a Wrongful Imprisonment, 46 CAN. J. OF CRIMINOLOGY AND CRIM. JUST. 139, 139–40 (2004). 2017] Post-Conviction Review Questions 75 where the convicted person is dead can, however, raises difficult issues. As a former chair of the English CCRC noted,192 the investigation might reveal evidence against another family member193 or other information that is embarrassing to the family.194 It may also be the case that family members disagree about whether an application should be made. The second argument is that there may be a wider public interest in acknowledging and correcting mistakes made by the justice system, as the Court of Appeal accepted in the case of James Hanratty,195 referred by the English CCRC after his death. But Hanratty was a notorious case: the public interest is less clear if the case has long since faded from the public memory.196 The public interest argument is also weaker when the case is not one where the factual innocence of the defendant is clear, for example where the basis for the reference is that the defendant should have been convicted of a lesser charge, rather than not convicted at all.197 The existence of difficulties such as those referred to above are not in themselves sufficient reason as a matter of principle to exclude cases involving deceased applicants from a post-conviction review body’s remit.198 They do, however, add weight to the argument that if there are scarce resources, the resources may be better directed at exonerating those still imprisoned or living under the stigma of a wrongful conviction, rather than focusing on cases involving the deceased.
192. Zellick, supra note 136, at 942–44. 193. See R. v. Knighton (deceased) [2002] EWCA Crim 2227 (confirming that it did reveal evidence against other family members). 194. This might, of course, also happen if the convicted person is the applicant, but here the personal benefit to the applicant of his conviction being quashed would be likely to vastly outweigh any of these other consequences. 195. R. v. Hanratty (deceased) [2002] EWCA Crim 1141. 196. See, e.g., R. v. Knighton (deceased) [2002] EWCA Crim 2227 (criticizing the English CCRC for referring the case by the Court of Appeal, given that 75 years had passed since the conviction (and execution) of the defendant). 197. See, e.g., R. v. Ellis [2003] EWCA Crim 3556 (providing that where the CCRC referred the case of Ruth Ellis, the last woman to be hanged in England, on the basis she should have been convicted of manslaughter, not murder). The appeal was refused by the Court of Appeal, who questioned whether the referral was “a sensible use of the limited resources of the Court of Appeal.” Id. § 90. The English CCRC remains convinced it was right to make the reference. See Zellick, supra note 136, at 942 (discussing CCRC concerns). 198. A third possible argument for allowing the review of cases where the convicted person is dead surrounds the notion of human dignity. Given that legal rules can and do affect dead persons, which are in turn influenced by cultural norms and human dignity arguments, it stands to reason that permitting the exoneration of a dead convicted person should be a consideration. See Kirsten Rabe Smolensky, Rights of the Dead, 37 HOFSTRA L. REV. 763, 764 (2009). 76 Stetson Law Review [Vol. 47
E. A Role in Systemic Reform?
Thus far, the discussion has focused on the role of a post- conviction review body in relation to individual cases. However, it has been suggested that such a body should play a wider role in terms of lobbying for systemic reform.199 Neither the CCRG, SCCRC, nor NCIIC have played a substantial role in law reform to date. In North Carolina, there exists a separate body with a remit to make recommendations for systemic reform, the North Carolina Actual Innocence Commission,200 although the NCIIC does cite some examples where its search for missing evidence has led to the identification and rectification of systematic flaws.201 In Scotland, there is no standing body charged specifically with making recommendations about the prevention of wrongful conviction, although such recommendations have been made in the context of specific enquiries.202 The SCCRC has occasionally contributed to policy debates, but only to those that have a direct impact on its operations.203 In Canada, there is also no permanent body charged with making systemic reform recommendations, but there have been seven major ad hoc enquiries into the causes of wrongful
199. See, e.g., Maiatico, supra note 63, at 1375–76 (discussing the value of NCIIC’s reports). 200. See Mumma, supra note 64, at 647–48 (noting the existence of the North Carolina Actual Innocence Commission). 201. N.C. INNOCENCE INQUIRY COMM’N, supra note 126, at 5. In one case, “the Commission’s investigation uncovered a systemic problem with a North Carolina police department routinely destroying evidence in violation of statute.” Id. In another, the Commission’s search for evidence found that evidence collection and storage in a particular sheriff’s department was in disarray and items were not being properly stored. Id. 202. See, e.g., those made by the body tasked with identifying safeguards against wrongful conviction in the context of government proposals to remove the requirement for corroboration in criminal cases. CAUSES OF WRONGFUL CONVICTION, supra note 86, at 38– 39. 203. For example, the SCCRC intervened in a debate over whether the Court of Appeal should be given the power to refuse to hear a Commission reference. See James Chalmers & Fiona Leverick, Substantial and Radical Change: A New Dawn for Scottish Criminal Procedure, 75 MOD. L. REV. 837, 860–62 (2012). 2017] Post-Conviction Review Questions 77 conviction in specific cases,204 as well as two broad reviews,205 all of which have made recommendations for reform. It was never envisaged that any of the CCRG, SCCRC, or NCIIC would have a systemic reform role,206 but such a role was envisaged for the English CCRC by the Royal Commission report that led to its introduction. While the Royal Commission was clear that the “primary function” of the English CCRC should be to consider and investigate individual cases,207 it recommended that it “should also be able to draw attention in its report to general features of the criminal justice system which it had found unsatisfactory in the course of its work, and to make any recommendations for change it thinks fit.”208 In reality, the English CCRC has done very little in this respect,209 primarily due to limited resources.210 Nevertheless, a 2015 parliamentary enquiry recommended that resources be injected to rectify the situation.211
204. Six focused primarily on the lessons that could be learned from individual cases. See T. ALEXANDER HICKMAN, LAWRENCE A. POITRAS & GREGORY T. EVANS, THE ROYAL COMMISSION ON THE DONALD MARSHALL. JR., PROSECUTION: DIGEST OF FINDINGS AND RECOMMENDATIONS 1–2 (1989); FRED KAUFMAN,COMMISSION ON PROCEEDINGS INVOLVING GUY PAUL MORIN: REPORT (1998); MANITOBA JUSTICE, THE INQUIRY REGARDING THOMAS SOPHONOW: THE INVESTIGATION, PROSECUTION AND CONSIDERATION OF ENTITLEMENT TO COMPETITION (2001); THE LAMER COMMISSION OF INQUIRY PERTAINING TO THE CASES OF RONALD DALTON, GREGORY PARSONS AND RANDY DRUKEN, REPORT AND ANNEXES 1 (2006); LESAGE, supra note 44, at 1–5; EDWARD P. MACCALLUM, REPORT OF THE INQUIRY INTO THE WRONGFUL CONVICTION OF DAVID MILGAARD (2008). The seventh was an investigation of forensic pediatric pathology services in Ontario following a number of wrongful convictions caused by evidence given by a particular expert witness. See STEPHEN T. GOUDGE, REPORT OF THE INQUIRY INTO PEDIATRIC FORENSIC PATHOLOGY IN ONTARIO 3–5 (2008). 205. Both were undertaken by the Federal/Provincial/Territorial (FPT) Heads of Prosecutions Committee Working Group. See FPT HEADS OF PROSECUTIONS COMM. WORKING GROUP, REPORT ON THE PREVENTION OF MISCARRIAGES OF JUSTICE, Foreword (2005); FTP HEADS OF PROSECUTIONS SUBCOMMITTEE ON THE PREVENTION OF WRONGFUL CONVICTIONS, THE PATH TO JUSTICE: PREVENTING WRONGFUL CONVICTIONS ix–x (2011). 206. The issue was not addressed in the Sutherland Report, the report of the body that recommended the establishment of the SCCRC. See SUTHERLAND, supra note 46. There would have been no real need for this in North Carolina where a body devoted to systemic reform already existed. 207. ROYAL COMM’N ON CRIM. JUST., supra note 8, at 184. 208. Id. at 185. 209. Carole McCartney & Stephanie Roberts, Building Institutions to Address Miscarriages of Justice in England and Wales: “Mission Accomplished?”, 80 U. CIN. L. REV. 1333, 1359 (2012). 210. Zellick, supra note 136, at 939. 211. HOUSE OF COMMONS JUST. SELECT COMM., supra note 186, at ¶ 53. It may well be taking heed of this. Since this report was published, it has responded to a consultation on the appropriate sentence where a defendant has pled guilty. See SENTENCING COUNCIL (FOR ENGLAND AND WALES), REDUCTION IN SENTENCE FORA GUILTY PLEA GUIDELINE (2016), available at https://www.sentencingcouncil.org.uk/ 78 Stetson Law Review [Vol. 47
Resources aside, is it a good idea as a matter of principle for a post-conviction review body to play a role in systemic reform? Working to improve the safeguards against a wrongful conviction in a particular jurisdiction is certainly important, and a body charged with reviewing individual cases might be seen as well placed to develop an understanding of the factors contributing to this.212 But the insights likely to be generated should not be overstated. All of the cases seen by a post-conviction review body are historic and some of them will stem from a considerable time ago. As such, the legal issues they raise may already be well known or addressed.213 There are also other reasons why a post-conviction review body may not be the best to engage in systemic reform work. If such a body intervenes too readily in policy issues this might pose a threat to its impartiality that affects its relationship not only with the courts,214 but also with the police and prosecutors who might perceive the review body as biased towards the interests of the defense. It may also be the case, as Roach has argued,215 that the ideal membership of an error correction body is not the same as that of a body concerned with achieving systemic reform. Roach suggests that error correction requires at least some degree of legal expertise, as there is little or no point in referring cases that the appeals court will simply reject.216 Ensuring such groups have quasi-judicial membership may also be important to add legitimacy to the many rejected cases.217 Systemic reform, on the other hand, is easier to achieve if there is broad-based membership from the range of bodies involved in the criminal justice system: police, prosecutors, defense representatives, and victim groups.218 Politically, systemic reform
wp-content/uploads/Reduction-in-sentence-for-a-guilty-plea-consultation-paper-web.pdf; RESPONSE BY THE CRIMINAL CASES REVIEW COMMISSION (2016), available at https://s3-eu- west-2.amazonaws.com/ccrc-prod-storage-1jdn5d1f6iq1l/uploads/2016/06/CCRC- Sentencing-Council-consultation-April-2016.pdf. 212. HOUSE OF COMMONS JUST. SELECT COMM., supra note 186, at 24–25, § 53. 213. Weeden, supra note 9, at 203. 214. Kent Roach, The Role of Innocence Commissions: Error Discovery, Systemic Reform or Both?, 85 CHI.-KENT. L. REV. 89, 114 (2010) [hereinafter Role of Innocence Commissions]. 215. Id. at 121. 216. But cf. Straddling Two Worlds, supra note 13, at 719–20 (explaining how commission referral of cases can aid the appeals courts). 217. Role of Innocence Commissions, supra note 214, at 121. 218. Id. 2017] Post-Conviction Review Questions 79 helps build consensus to see the proposals through in practice.219 However, Roach states that such broad-based membership is inappropriate for error correction as it opens up the possibility of real or perceived conflicts of interest.220 For rejected applicants in particular it is important that the body is seen as genuinely independent and not partisan towards police, prosecutors, crime victims, or even the judiciary.221 This is, perhaps, a little overstated. Some reform exercises have certainly stalled due to a failure to build political consensus,222 but this does not necessarily mean that a reform group must itself always have broad-based membership. There are plenty of examples of reform projects undertaken by narrowly constituted groups that have successfully achieved change.223 Likewise, there are also examples of bodies charged with individual conviction review that have broad-based membership and are generally perceived as successful. The SCCRC, for example, has had an ex-police officer as a commissioner without this posing any obvious threat to its relationship with the courts or its perception as an independent institution.224 The present chair of the English CCRC is a former Chief Executive of the Crown Prosecution Service and while there
219. Id.; see also James Chalmers, Fiona Leverick & Shona Wilson Stark, The Process of Criminal Evidence Reform in Scotland: What Can We Learn?, in SCOTTISH CRIMINAL EVIDENCE LAW: CURRENT DEVELOPMENTS AND FUTURE TRENDS (Peter Duff & Pamela R. Ferguson eds., forthcoming Nov. 2017) (arguing that presenting governmental reports through the recommendations of a broadly-based review group carries greater weight). 220. Role of Innocence Commissions, supra note 214, at 121. 221. Id. at 122. 222. In the Scottish context, a good example is the attempt to abolish the requirement for corroboration of evidence in criminal cases. This recommendation stemmed from a review of the law of evidence in Scotland led by Lord Carloway, a senior Scottish judge. See THE CARLOWAY REVIEW: REPORT AND RECOMMENDATIONS 313 (2011). The recommendation was accepted by the Scottish Government six years ago, but still has not been implemented. For discussion of Lord Carloway’s failure to build political consensus and the impact this had on the progress of the reforms, see Chalmers et al., supra note 219, at 2. 223. One example is the work of the Law Commissions in the UK. See SHONA WILSON STARK, THE WORK OF THE BRITISH LAW COMMISSIONS: LAW REFORM ... NOW? (2017). 224. See Leverick et al., supra note 62, at ch. 5 (reporting the broad support for the SCCRC among legal practitioners including defence solicitors). 80 Stetson Law Review [Vol. 47 was some disquiet surrounding his initial appointment,225 there is no suggestion that this has caused any ongoing difficulties.226 On the other hand, a body concerned primarily with the review of individual applications is perhaps not ideally situated to keep the entire system under review. Roach is correct to suggest that this is better achieved at one step removed, by a body or advisory panel affiliated to a post-conviction review body.227 Such a body could advocate for change without undermining the error correction work undertaken by its sister organization.228 This approach is an attractive one, although given that a post- conviction review body may come across systemic problems in the course of its review of individual cases,229 it would make sense for the two bodies to work side by side and inform each other’s operations. In taking precisely this approach, despite its other flaws, there is much to be said for the system implemented in North Carolina. It is also important, though, that whatever approach is taken there is some mechanism for monitoring the extent to which any recommendations made are put into practice. Much is already known about the causes of wrongful conviction230 and none of the three jurisdictions examined here are immune from criticism in terms of practices in which they continue to engage in that have been shown to increase the risk of wrongful convictions occurring, despite recommendations having been made to the contrary.231
225. See, e.g., Michael Naughton, Justice Must Be Seen to Be Done,THE GUARDIAN (Nov. 20, 2008, 2:00 EST) https://www.theguardian.com/commentisfree/2008/nov/20/justice-law (appointing a former “chief executive of the Crown Prosecution Service, as well as his wealth of other senior positions” seemed “to be counterintuitive for a body that the public believes was established to overturn the wrongful convictions of innocent people”). 226. No mention of it was made. See, e.g.,HOUSE OF COMMONS JUST. SELECT COMM., supra note 186 (giving evidence to the 2015 House of Commons Justice Select Committee for review). 227. Independent Commission, supra note 63, at 296. 228. Role of Innocence Commissions, supra note 214, at 119. 229. See supra note 201 and accompanying text (citing examples from North Carolina). 230. See supra note 5 (discussing the works of the Innocence Project and the National Registry of Exonerations). 231. In Scotland, for the use of dock (in court) identification, see e.g.,PAMELA FERGUSON, Eyewitness Identification Evidence, in POST-CORROBORATION SAFEGUARDS REVIEW: REPORT OF THE ACADEMIC EXPERT GROUP 44, 50–53 (James Chalmers, Fiona Leverick & Alasdair Shaw eds., 2014). In Canada, for the use of coercive interrogation techniques when interviewing suspects, see generally e.g., Lesley King & Brent Snook, Peering Inside a Canadian Interrogation Room: An Examination of the Reid Model of Interrogation, Influence Tactics, and Coercive Strategies, 36 CRIM. JUST. & BEHAV. 674 (2009); Brent Snook, Joseph Eastwood, Michael Stinson, John Tedeschini & John C. House, Reforming Investigative 2017] Post-Conviction Review Questions 81
VII. CONCLUSION
Post-conviction review is a necessary part of the criminal justice system when it is faced with wrongful convictions. The DNA revolution of the previous three decades has clearly demonstrated that the police, prosecutors, juries, and judges sometimes get it wrong; the National Registry of Exonerations, for example, lists 1,729 known exonerations of convicted persons across the U.S., many of which have been exonerated years (or even decades) after the original proceedings concluded.232 These numbers alone underscore the importance of having some sort of process, operating outside of the regular court system, to address such miscarriages of justice. While one option might simply be to permit out-of-time appeals where fresh evidence of innocence emerges, as has been done in South Australia, this neglects the need for a body with the power and resources to uncover such evidence in the first place. Establishing that there is a need for some form of post- conviction review body is, however, only the starting point. The three post-conviction review schemes examined in this Article differ in a number of important respects and comparing these different approaches has allowed us to draw several conclusions about the proper role of such bodies. The first is that independence from government is fundamental—ideally outright independence, but if not, then certainly some form of externality. While actual bias has not been demonstrated at the CCRG (which is in effect a government body amongst the three schemes discussed), the perception of independence is particularly important. The absence of independence, as it is suggested here, is a real barrier to justice in the Canadian context, and may account for the very low numbers of applications for review compared to those at the independent SCCRC and NCIIC. To be effective, it is also important that a post-conviction review body is sufficiently resourced, so that it can undertake its own independent investigations, and has wide powers to compel evidence. All three of the post-conviction review schemes examined here have the resources to investigate claims and also have considerable powers
Interviewing in Canada, 52 CAN. J. OF CRIMINOLOGY AND CRIM. JUST. 215 (2010) (advocating for adoption of an inquisitorial interviewing method known as PEACE). 232. See supra note 5 and accompanying text (discussing the NRE’s findings). 82 Stetson Law Review [Vol. 47 to obtain evidence. This is an important strength of the system in all three jurisdictions and serves to counter—at least in part—the disadvantage the wrongly convicted person faces in terms of having the time, money, and legal powers needed to challenge a wrongful conviction. The second conclusion is that restricting the ambit of a post- conviction review body to cases in which fresh evidence of innocence emerges is to unjustly narrow its ambit. The three schemes examined here operate under different tests for referral, which in turn affect their respective referral rates (0.64% at the NCIIC; 4.5% at the SCCRC; 5.8% for the CCRG). The narrowest is that of the NCIIC, which requires proof of actual innocence and excludes cases in which the applicant lacked mens rea, had a justification defense, or should have been convicted of a lesser offense. Unsurprisingly it refers only 0.64% of the applications it receives. It is not difficult to see that such narrow criteria are a cause of injustice, although they may have been necessary to achieve the political consensus to establish the scheme at all. The CCRG’s test for referral is wider, but is still limited to cases in which fresh evidence emerges, a limitation we argue is also unjust, given that procedural irregularities can themselves cast doubt on the safety of a conviction. The SCCRC can refer cases where there has been a procedural irregularity—such as a trial judge misdirection about the definition of the crime or the manner in which the evidence should be evaluated—and it is right that it is able to do so. This should not, however, extend to the referral of cases where the procedural error casts no doubt on the safety of the conviction. It is not, we argue, the proper role of a post- conviction review body to uphold the integrity of the criminal courts. Such a body sits outside the court system and its concern should be with factual innocence—procedural errors are relevant only to the extent that they suggest an applicant might have been wrongly convicted. It also has to be said that the test for referral cannot be considered entirely in isolation. In referring cases, all three of the schemes are bound by what the courts will accept as evidence of innocence. While the referral rate for each of the schemes is relatively low, the “success rates” for the cases actually referred to the courts following review are much higher. The NCIIC and CCRG have a success rate of over 90%, which is perhaps not surprising given the stringent tests that cases must satisfy to be 2017] Post-Conviction Review Questions 83 referred by these two bodies (indeed the test applied by the CCRG is more difficult to satisfy than that for the subsequent appeal against conviction). The SCCRC’s success rate is lower, at 48%, but aside from one referral from the early days of its operation,233 there is no evidence that it is doing anything other than attempting to apply the same test as the court would in determining the appeal.234 It is just that the wider basis on which it can make referrals means that it is harder to predict the attitude the courts will take towards a case. All of this, however, raises much broader questions about whether the system of appeals against conviction is expansive enough to provide justice to all those who deserve it or whether some of the strict rules governing, for example, the admissibility of fresh evidence, ought to be relaxed.235 The third conclusion is that the harm of wrongful conviction is not limited to those who are currently incarcerated, those who have committed serious offenses, or even those who are no longer living. Wrongful conviction for even a minor offense can have a seriously stigmatizing effect on one’s life and on the integrity of the criminal justice system. It can continue to blight the lives of relatives of a wrongfully convicted person even after his or her death. There is a principled case to be made for these errors to be within the remit of a post-conviction review body too, although practical considerations of cost and the scarce use of limited resources may mean that this is not always achievable. Finally, the fourth conclusion drawn is that while these schemes have a specific mandate to investigate wrongful convictions, they may not be best placed to engage in systemic reform work. Post-conviction exoneration, while onerous and limited, serves an important function for addressing wrongful convictions. This is not to neglect the parallel need to identify and
233. See Harper v. H.M. Advocate [2005] SCCR 245; Straddling Two Worlds, supra note 13, at 714–18 (providing a discussion of the case). 234. See Chalmers & Leverick, supra note 49, at 621 (examining the Commission’s sentence review function). 235. See, e.g., the strict conditions governing admissibility of new evidence in Section 106(3A)–(3D) of the Criminal Procedure (Scotland) Act of 1995. This broader question lies beyond the scope of this Article, which is concerned with the operation of post-conviction review bodies rather than the system of appeals against conviction more generally, but see e.g., McCartney & Roberts, supra note 209, at 1352–53; Michael Naughton, The Criminal Cases Review Commission: Innocence Versus Safety and the Integrity of the Criminal Justice System, 58 CRIM. L.Q. 207 (2012) (presenting arguments, in general, that the requirement of presenting fresh evidence is contrary to the normal operation of the criminal justice system). 84 Stetson Law Review [Vol. 47 implement reforms within the criminal justice system to minimize the potential for wrongful convictions to occur in the first place.236 The causes of wrongful conviction are well known, but there is still work to be done in all three of the jurisdictions examined here to “bullet proof” the system to guard against these. This work, while it would benefit from being informed by the work of a post- conviction review body, may be better suited to a separate institution with a broader based membership.
236. See, e.g., McCartney & Roberts, supra note 209, at 1359 (providing the downfalls of the CCRC and its predecessors to warn against them). LESSONS OF LAW & LEGAL STUDIES THROUGH LITERATURE: THE PSYCHOLOGY OF A CRIMINAL VERSUS THE PSYCHOLOGY OF A POLICE INVESTIGATOR AS SEEN THROUGH THE LENSES OF CRIME AND PUNISHMENT: PORFIRY V. RASKOLNIKOV
James Beckman*
I. INTRODUCTION
Fyodor Dostoevsky’s landmark work Crime and Punishment1 addresses numerous timeless legal, moral, and criminal law issues. The relevancy of the work is amply illustrated by the fact that Dostoevsky’s main character, Rodion Romanovitch Raskolnikov (“Raskolnikov”),2 has been referenced in reported judicial opinions at both the state and federal level. References to the character of Raskolnikov have been made in the reported decisions of federal courts at the U.S. District Court level,3 the U.S.
* © 2017, James Beckman. All rights reserved. James Beckman was the inaugural Department Chair of the Department of Legal Studies at the University of Central Florida (UCF) from 2011–2016 and the first Legal Studies faculty member in the history of the program at UCF to hold the rank of Full Professor of Legal Studies. Before joining UCF in 2011, he was a tenured professor of political science and law & justice at the University of Tampa from 2000–2011. He holds degrees from the University of Tampa (B.A.), The Ohio State University College of Law (J.D.), and Georgetown University Law Center (LL.M. in International and Comparative Law). Professor Beckman’s writings include six books and a variety of articles, including a law review article analyzing legal themes contained in Victor Hugo’s Les Miserables. See The Jackal Javert: What Javert Really Tells Us About the Rule of Law, Law Enforcement and Whether We Need Him in Our Society, 11 U.S. A.F. ACAD. J. LEGAL STUD. 83 (2001). The author would also like to acknowledge the wonderful assistance and courtesies rendered to him by the members of the Stetson Law Review in bringing this Article to publication. 1. FYODOR DOSTOEVSKY, CRIME AND PUNISHMENT, Barnes and Noble Classics (Priscila Meyer trans., 2007). This is the edition that will be referenced throughout this Article and the book that the author of this Article relied upon in writing this Article. 2. The full given name of the culprit and main suspect in the novel is Rodion Romanovitch Raskolnikov, but will be referred to in the remainder of this Article by how he is most commonly referred to in the book, “Raskolnikov.” 3. Gov’t of Virgin Is. v. Downey, 396 F. Supp. 349, 359 n.6 (D.V.I. 1975); Delgadillo v. McEwen, No. ED CV 12-41-FMO (PJW), 2015 WL 10793478, at *6 (C.D. Cal., Aug. 24, 2015). 86 Stetson Law Review [Vol. 47
Court of Appeals level,4 and even by Supreme Court Justice Samuel Alito in his concurring opinion in a 2011 Supreme Court case.5 State courts in New York,6 California,7 and Massachusetts8 have also made reference to Raskolnikov in some way as part of a reported judicial decision by judges in each of these states. Further, as of September 2017, there have been fifty published scholarly law review and law journal articles that discuss or reference Dostoevsky’s character Raskolnikov.9 Indeed, six of these articles contain analyses dedicated solely to the issue of what Dostoevsky’s characters, such as Raskolnikov or Raskolnikov’s main antagonist, police detective Porfiry Petrovitch (“Porfiry”),10 can tell readers about modern American law. Those six full length articles deal with a range of different topics, as follows: [1] an article defending the behavior of the chief detective Porfiry in his interactions with Raskolnikov and arguing that Porfiry was acting
4. Morris v. United States, 728 A.2d 1210, 1220 (D.C. 1999). 5. Brown v. Entm’t Merch. Ass’n, 564 U.S. 786, 820 (2011) (Alito, J., concurring). 6. N.Y. v. Wright, 343 N.Y.S.2d 944, 950 (N.Y. Sup. Ct. 1973). 7. People v. Andersen, 101 Cal. App. 3d 563, 584 n.3 (Cal. Ct. App. 1980). 8. Commonwealth v. Mahnke, 368 Mass. 662, 713 n.8 (1975). 9. Of these fifty journal articles, forty-four make only passing references to Raskolnikov to illustrate a principle of law, but the reference to Raskolnikov is not the main topic or point of the discussion in the articles. That is, these forty-four articles deal with broader legal topics and do not deal primarily with an analysis of Dostoevsky’s character Raskolnikov. These articles run the gamut of a wide spectrum of contemporary legal issues, such as using economic analysis to analyze abandoned criminal attempts. Murat C. Mungan, Abandoned Criminal Attempts: An Economic Analysis, 67 ALA. L. REV. 1, 17–21 (2015) (using Raskolnikov as an example of the marginal deterrence effect); B. Douglas Robbins, Resurrection From a Death Sentence: Why Capital Sentences Should Be Commuted Upon the Occasion of an Authentic Ethical Transformation, 149 U. PA. L. REV. 1115, 1160– 62 (2001) (discussing the “remorseful wrongdoer”); Ricardo X. Ramos, Crime and (Cruel and Unusual) Punishment: A Policy Recommendation, 47 REV. DER. P.R. 205, 205–06 (2008) (using Raskolnikov as an example in the Introduction to illustrate what constitutes cruel and unusual punishment); Roscoe Porter Field, Constitutional Law—Payne v. Tennessee: The Admissibility of Victim Impact Statements—A Move Toward Less Rational Sentencing, 22 MEM. ST. U. L. REV. 135, 153 n.157 (Fall 1991) (illustrating the question of whether one is more deserving of punishment for killing a good person versus a bad person). Raskolnikov is even referenced in articles on the topic of terrorism and the law. See Christopher L. Blakesley, Terrorism, Law and Our Constitutional Order, 60 U. COLO. L. REV. 471, 497–92 (1989) (discussing whether Raskolnikov’s conduct was justified); A. John Radsan, A Better Model for Interrogating High-Level Terrorists, 79 TEMP. L. REV. 1227, 1258 n.139 (Winter 2006) (discussing the views of members of the absolutist camp). Another three articles written for the “law and literature” genre have sections on Raskolnikov, but also cite to other literary figures. See Gregg Mayer, Prosecutors in Books: Examining a Literary Disconnect from the Prosecution Function, 19 LAW & LIT. 77, 82 n.50 (Spring 2007) (discussing the prosecutor in Raskolnikov’s case). 10. The detective’s full given name in the novel is Porfiry Petrovitch, but he will be referred to in this Article by how he is most commonly referred to the book, namely “Porfiry.” 2017] Lessons of Law & Legal Studies 87 honestly and purely to Raskolnikov by the end of the novel;11 [2] an analysis of the various crimes (under modern criminal laws) committed by Raskolnikov and the various available criminal defenses that would have been available to him (e.g., insanity) should a case such as his be tried in a court of law today;12 [3] an article analyzing how Dostoevsky’s book is instructive in understanding the differences between true and false confessions—by comparing the true confessions and false confessions of two characters (Raskolnivkov and the painter Nikolay,13 respectively) in the book for the same set of crimes;14 [4] an article discussing the fictional case of “State v. Raskolnikov” and how it serves as an example for a defense plea for leniency at mitigation hearings;15 [5] an article summarizing the overall contributions and legal context of the book on American jurisprudence;16 and [6] an article that discusses the book in conjunction with the theme of crime, confessions, and the many ways a lawyer may approach his or her client in terms of possible confessions and representation.17 Thus, this century-and-a-half old work of Russian fiction has clearly found relevancy in American jurisprudence in the twenty-first century, and this relevancy has been identified by both legal scholars from various universities and judges on diverse courts at both the state and federal level. This makes the work and the character worthy of study for any burgeoning student of law, attorney, or any individual interested in the intersection of law and literature. As might be expected, this Article does not purport to cover all the characters and subplots contained in this voluminous novel or attempt to address the myriad of various legal themes and issues
11. Robert Batey, In Defense of Porfiry Petrovich, 26 CARDOZO L. REV. 2283, 2300 (May 2005). 12. Vera Bergelson, Crimes and Defenses of Rodion Raskolnikov, 85 KY. L.J. 919 (Summer 1996–1997). 13. Nikolay was one of two painters in the apartment complex on the day the old pawnbroker was killed; Nikolay was very religious and convinced himself that he should confess to the crime in order to atone for other sins.DOSTOEVSKY, supra note 1, at 131–38, 337. 14. Rinat Kitai-Sangero, Can Dostoyevsky’s Crime and Punishment Help Us Distinguish Between True and False Confessions?, 9 OHIO ST. J. CRIM. L. 231 (Fall 2011). 15. Michael A. Berch, A Defense Plea for Leniency at the Mitigation Hearing—State v. Raskolnikov, 38 ARIZ. ST. L.J. 469 (Summer 2006). 16. William Burnham, The Legal Context and Contributions of Dostoevsky’s Crime and Punishment, 100 MICH. L. REV. 1227 (May 2002). 17. Robert F. Cochran, Jr., Crime, Confession, and the Counselor-at-Law: Lessons from Dostoyevsky, 35 HOUS. L. REV. 327 (Summer 1998). 88 Stetson Law Review [Vol. 47 also contained therein. The author is operating under the assumption that those reading this Article are familiar with the novel and its characters and plots. For those who are not familiar with the book, the very brief synopsis of Raskolnikov and Porfiry should be sufficient for the purpose of this Article. Therefore, a discussion of many aspects of Crime and Punishment which are outside the narrow confines of the topic of this Article will be omitted, as will be an overall summary of the novel. For the purposes of this Article, the two main characters subject to analysis are Raskolnikov and Porfiry. Raskolnikov is an indigent university student18 who conceives of a theory that certain extraordinary individuals in the world have a right to commit crimes.19 He fancies himself as one of the extraordinary individuals. He acts upon this theory very early on in the novel20 by killing an old pawnbroker whom he thought preyed financially upon others and did no good for society. He also kills the pawnbroker’s innocent sister, who happens to walk into the pawnbroker’s flat just after Raskolnikov kills the first woman. He steals very little from the woman’s apartment after the homicide (despite earlier having half-formed plans to take the old woman’s horde of wealth). What little he does take from the old woman, such as a purse that is hanging around the woman’s neck, he buries along with other incriminating evidence almost immediately after the crime. Thus, he gains nothing economically from the crimes. The criminal case is eventually assigned to Porfiry, a police inspector, the second major (but equally important) character of emphasis in this Article. Porfiry displays his serious suspicion and mistrust of Raskolnikov during each of the three major meetings between the two in which Porfiry asks Raskolnikov about the crimes.21 By the last of the three meetings, Porfiry flat out
18. Indeed, throughout the novel, he is not active in his university studies and was, in essence, on a leave of absence from the University. DOSTOEVSKY, supra note 1, at passim. 19. Id. at 246–53. 20. Raskolnikov commits the crimes of double homicide and theft in Part I, Chapter Seven, of the novel. Id. at 75–86. It is interesting to note that the rest of the novel is composed of five additional parts and an Epilogue. Thus, the crimes themselves, and the planning leading up to the crimes, only take up a small portion of the overall novel. Of the six parts and Epilogue, only Part I deals with the planning and commission of the crimes. The vast majority of the book deals with the depiction of Raskolnikov and how he struggles with his crimes and battles with his compulsion to confess to the crimes. 21. At the end of the novel, Porfiry flat out states to Raskolnikov that “it was you [who murdered her].” Id. at 434. In their first meeting, Porfiry displays his serious suspicion and mistrust of Raskolnikov when he asks why it was that Raskolnikov was the very last person 2017] Lessons of Law & Legal Studies 89 confronts Raskolnikov with being the murderer and committing the crimes. After this meeting, Raskolnikov confides in Sonia, a woman who becomes his confidant and then eventually wife. After Sonia convinces Raskolnikov to give himself up, Raskolnikov renders a complete confession22 and is ultimately incarcerated in a Siberian prison for eight years and begins his rehabilitation and atonement, with Sonia at his side. This Article will therefore explore two major themes. Part I of this Article is an analysis of the police tactics employed by Porfiry against Raskolnikov in wearing Raskolnikov down, causing Raskolnikov to ultimately break down and confess towards the end of the novel. The book is often described as an analysis of the “psychology of a criminal before and after the crime,” a description that even appears in the book itself.23 That is—the book is often studied to get a glimpse (albeit fictional) of a criminal suspect before, during, and after the commission of a heinous crime—a theme that will certainly be touched upon in this Article, as it relates to the compulsion many suspects have to confess to crime or guilt. However, just as Dostoevsky stated, there is a certain “psychology of the criminal” before and after the crime; Dostoevsky also stated that the police “have a psychology of their own.”24 The almost timeless techniques of “good cop, bad cop,” befriending an accused to encourage incriminating statements, the art of police interrogation and questioning, et cetera, is quite accurately described by Dostoevsky in his representation of chief detective Porfiry and the detective’s effective questioning of Raskolnikov. More specifically, Part I will compare Porfiry’s investigative and interrogatory techniques with the modern guidance and standards taught to law enforcement as to how to effectively interview and interrogate a suspect. The reader will hopefully agree that the techniques that Dostoevsky has Porfiry use against Raskolnikov in the book are largely the recommended tactics for modern law enforcement in trying to elicit confessions. to come forward and retrieve his pawned items. Id. at 241. In this interchange, Raskolnikov already believes that Porfiry knows Raskolnikov’s crimes and then worries about evidence of which Porfiry might be aware. Id. at 241–43. 22. When Raskolnikov finally decides to fully confess to the police, he specifically refuses to confess to Porfiry, instead offering his confession to another police officer, showing no love lost between these two “legal” adversaries. Id. at 499–503. 23. Id. at 246. 24. Id. at 255. 90 Stetson Law Review [Vol. 47
After discussing Porfiry’s conduct and interactions with Raskolnikov, Part II of this Article will turn to an analysis of Raskolnikov’s ever-evolving progression of thoughts regarding confession—before, during, and after he commits his crimes. The myriad of thoughts racing through Raskolnikov’s mind after the commission of a crime—ranging from remorse and guilt, to worrying about being caught and covering one’s tracks, to justifying one’s conduct as not being immoral—are arguably timeless inner thoughts that plague all of humanity when faced with the specter of being responsible or the culprit of unsavory deeds. At different points in the novel, all of these concerns weigh heavily on Raskolnikov as he contemplates confession, and his interactions with Porfiry certainly help lead to Raskolnikov’s ultimate confession.
II. EFFECTIVE POLICE TECHNIQUES ILLUSTRATED BY PORFIRY IN HIS INTERVIEWS WITH RASKOLNIKOV
Many of the techniques Dostoevsky has his lead detective character employ in the book published over 150 years ago can be taken verbatim from police interrogation and questioning training manuals from the twenty-first century. In fact, the lead detective in the book, Porfiry, is so confident in his techniques and knowledge of a defendant’s behavior that he posits that it is impossible for a criminal to abscond and flee from him, saying that a defendant is “psychologically unable to escape me.”25 Porfiry even compares a criminal defendant to a butterfly or insect that cannot avoid gravitating towards a bright light or flame, stating, “have you ever seen a butterfly [a]round a candle?”26 Porfiry continues to assert that the defendant “will keep circling and circling round me. Freedom will lose its attractions. He’ll begin to brood, he’ll weave a tangle round himself, he’ll worry himself to death.”27 Interestingly, much earlier in the book, Raskolnikov contemplates the same thing, commenting to himself that “the butterfly flies to the light.”28 Before turning to Raskolnikov’s propensity to talk to police or people in positions of authority, an examination of police tactics as
25. Id. at 324. 26. Id. 27. Id. 28. Id. at 235. 2017] Lessons of Law & Legal Studies 91 illustrated in Crime and Punishment and compared to modern standards is appropriate. In comparing the behavior of Porfiry and his tactics in Crime and Punishment to modern standards, there are a bevy of modern books on law enforcement interrogation techniques one might reference. Many of the texts repeat the same points—as the practices are time proven. As such, one text in particular is utilized for a delineation of the modern standards set forth in numerous texts and handbooks. This text is entitled Interviewing Interrogation for Law Enforcement by John E. Hess.29 This text was selected for several reasons. First, the standards contained therein are sound recommendations and delineations of the best practices that appear in many other books. Second, the author (who reports having a career in law enforcement himself) draws on many case examples, as well as guidance from a variety of law enforcement experts, including experts from the Federal Bureau of Investigation (“FBI”). Just as in Dostoevsky’s time, many investigations today hinge on a successful interrogation and confession. In cases involving crimes30 like those committed by Raskolnikov, the police lack strong physical evidence or independent witnesses who are able to corroborate the events. Raskolnikov had successfully hidden the stolen items from the pawnbroker’s flat and no witnesses saw him entering or exiting the crime scene. Further, Raskolnikov successfully hid or destroyed any lingering evidence connecting him to the crimes. Thus, only circumstantial evidence existed to connect Raskolnikov with the crimes.31 As Hess stated in his book on interrogations, “[c]onvincing criminals to provide information that will put themselves in jail represents the ultimate investigative coup, and few investigators come to the profession possessing the ability to
29. JOHN E. HESS,INTERVIEWING INTERROGATION FOR LAW ENFORCEMENT (2d ed. 2010). 30. A variety of crimes were committed by Raskolnikov, such as double homicide (first degree murder), larceny, and trespass. For a full analysis of various crimes committed by Raskolnikov, as well as possible criminal defenses available to him if he were not to confess, see Vera Bergelson, Crimes and Defenses of Rodion Raskolnikov, 85 KY. L.J. 919 (Summer 1996–1997). 31. For example, Raskolnikov was the last person to claim the items he had pawned with the pawnbroker, which seemed odd to Porfiry. Porfiry had commented to Raskolnikov that he had “been expecting [Raskolnikov] for some time” and that Porfiry knew “all who had pledges, and you are the only one who hasn’t come forward.”DOSTOEVSKY, supra note 1, at 240–41. 92 Stetson Law Review [Vol. 47 do this consistently—true artists have always been scarce.”32 Porfiry represents the perfect fictional example of such a true artist, as illustrated below.
A. Porfiry’s Establishment of Rapport with the Suspect
The first step recommended to any effective law enforcement detective/investigator is to develop rapport with the person to be questioned. Hess states that “[r]apport is a state of mind, and although most people recognize it, few can define it. Words such as empathy, liking, and comfort come close.”33 Establishing this frame of mind in the suspect that he or she is liked and understood may come from both verbal cues and body language. A perfect illustration of this may be seen in Porfiry’s interactions with Raskolnikov. At one point, Porfiry states to Raskolnikov that, “I don’t want you to look at me as a monster, as I have a genuine liking for you, you may believe me or not.”34 Further, during an intense interchange between the two wherein Raskolnikov begins the conversation in a very paranoid and agitated state, Porfiry tries to defuse things a bit by saying again that “I have a sincere liking for you and genuinely wish you good.”35 Porfiry also tries to be as intimate in conversation and body language as possible, even warmly touching Raskolnikov at several points. For example, during one interaction, Porfiry states to Raskolnikov that he owes Raskolnikov “an explanation and I must give it to you” and then immediately “continued with a slight smile, just patting Raskolnikov’s knee.”36 Porfiry then either genuinely displayed or feigned “a serious and careworn look [which] came into his [face],”37surprising Raskolnikov. Raskolnikov “saw a touch of sadness in it. He had never seen and never suspected such an expression on his face.”38 On yet another occasion, Porfiry attempts to reaffirm his statement that he had a “sincere liking”39 for Raskolnikov and that he “genuinely wish[ed]
32. HESS, supra note 29, at 107. 33. Id. at 11. 34. DOSTOEVSKY, supra note 1, at 435 (emphasis added). 35. Id. at 330 (emphasis added). 36. Id. at 427. 37. Id. 38. Id. 39. Id. at 330. 2017] Lessons of Law & Legal Studies 93
[him] good,”40 by saying as follows: “‘Yes, I do [genuinely like you],’ went on Porfiry, touching Raskolnikov’s arm genially, ‘you must take care of your illness. Besides, your mother and sister are here now; you must think of them.’”41 Porfiry also refers to Raskolnikov at various points as “dear friend,”42 “friend,”43 “my friend,”44 “my dear fellow,”45 and “my dear friend”46 at multiple points and greets an unannounced visit of Raskolnikov to Porfiry’s study “with an apparently genial and good-tempered air.”47 On Porfiry and Raskolnikov’s second interaction, despite Porfiry’s suspicions about Raskolnikov from the onset, Porfiry expresses surprise at Raskolnikov’s suspicion that he would be questioned, saying: “Good heavens! What do you mean? What shall I question you about?”48 Porfiry then goes on to comment as follows: “Please don’t disturb yourself. . . . There’s no hurry, there’s no hurry, it’s all nonsense. . . . And as for my accursed laughter, please excuse it, Rodion Romanovich. Rodion Romanovich? That is your name? . . . It’s my nerves, you tickled me so much with your witty observation.”49 Much like showing hospitality to a house guest, Porfiry proceeds as follows:
“I can’t offer you coffee here; but why not spend five minutes with a friend,” Porfiry pattered on, “and you know all these official duties . . . please don’t mind my running up and down, forgive me, my dear fellow, I am very much afraid of offending you. . . . But as for my duties here, inquiries and all such formalities . . . you mentioned inquiries yourself just now . . . I assure you these interrogations are sometimes more embarrassing for the interrogator than for the interrogated . . . You made the observation yourself just now very aptly and wittily.” (Raskolnikov had made no observation of the kind).50
40. Id. 41. Id. 42. Id. at 427. 43. Id. at 318. 44. Id. at 331. 45. Id. at 327. 46. Id. 47. Id. at 318. 48. Id. at 320. 49. Id. at 320–21. 50. Id. at 321–22. 94 Stetson Law Review [Vol. 47
Richard H. Weisberg, a famous scholar in the law and literature movement, wrote a book analyzing characters in novels of classic literature and focusing on what the characters could tell us about the role of modern lawyers and the legal system.51 In this book, in his remarks on Porfiry, Weisberg postulates that “his sincerity, while not entirely feigned, also serves his strategic purposes.”52 Weisberg concludes his analysis of Porfiry by stating that Porfiry utilized his position and knowledge of human nature to “totally dominate Raskonikov in the pretrial [interviews].”53
B. PORFIRY’S UTILIZATION OF FLATTERY AS A WAY TO BUILD RAPPORT WITH THE SUSPECT
Flattering the suspect on some detail will bolster the person’s self-esteem and create good will with the interrogator. As Hess states, “[m]ake people feel better about themselves and they will attribute this feeling to you.” 54 Although flattery itself does not create rapport, it does “aid in its development by providing a ‘foot in the door.’”55 It also creates in the interviewee the impression that the questioner “will proceed fairly and competently.”56 Porfiry makes many flattering remarks about Raskolnikov during the course of their dialogues. Without sarcasm and seemingly meant as a compliment, Porfiry refers to Raskolnikov as “clever”57 and one who makes “very apt[]”58 and “witty” observations.59 Early on, Porfiry flatters Raskolnikov about an article that Raskolnikov wrote, saying at a meeting when they first discussed the article that Porfiry “read it with pleasure two months
51. RICHARD H. WEISBERG,THE FAILURE OF THE WORD: THE PROTAGONIST AS LAWYER IN MODERN FICTION (2d ed. 1989). 52. Id. at 53. 53. Id. at 54. It should be noted that not every scholar agrees with Weisberg’s assessment. For example, Professor of Law Robert Batey expressly disagrees with Weisberg and asserts that Porfiry is actually transformed throughout the novel, starting as a “wily inquisitor,” but by the end of the novel “has all but abandoned verbal cleverness, has overcome whatever resentment he might have felt for his suspect, and has done his best to secure a just sentence for Raskolnikov.” See Batey, supra note 11, at 2300. 54. See HESS, supra note 29, at 12. 55. Id. 56. Id. 57. DOSTOEVSKY, supra note 1, at 321. 58. Id. at 322. 59. Id. at 321–22. Porfiry calls Raskolnikov’s comments witty on at least two occasions, once saying that Raskolnikov “made the observation [him]self just now very aptly and wittily” id. at 322, and elsewhere in the conversation saying that “you tickled me so much with your witty observation.” Id. at 321. 2017] Lessons of Law & Legal Studies 95 ago.”60 While Porfiry expresses disagreement about Raskolnikov’s ultimate conclusions in the article and gently mocks the theory set forth in the article that certain super elite people in society were immune from being liable for the consequences of committing criminal offenses, Porfiry nevertheless employs superficially polite language during the interchange and compliments Raskolnikov at several points. For instance, at the onset of their dialogue about the article, Porfiry compliments Raskolnikov’s ideas and writing style, calling them “very, very original.”61 It is also apparent to Raskolnikov that Porfiry is quite familiar with the ideas and details of his article. Raskolnikov confirms this by stating, “I admit that you have stated it almost correctly; perhaps even perfectly.”62 However, Porfiry goes on to disagree with Raskolnikov’s conclusion that certain “extraordinary people” can commit breaches of the law and morality “(sometimes, perhaps, of benefit to the whole of humanity).”63 Much later, in the last of their three interviews and when Raskolnikov was close to confessing, Porfiry returns to the technique of flattery:
I thought, too, of your article in that journal, do you remember, during your first visit we talked about it? I jeered at you at the time, but that was only to lead you on. ... I jeered at you then, but let me tell you that, as a literary amateur, I am awfully fond of such first essays, full of the heat of youth. There is mistiness and a chord vibrating in the mist. Your article is absurd and fantastic, but there’s a transparent sincerity, a youthful incorruptible pride and the daring of despair in it. It’s a gloomy article, but that’s what’s good about it.64
Porfiry also implies that Raskolnikov is an exceptional person with much to offer society even if he committed a crime for some noble (but ill-conceived) reason, admonishing Raskolnikov not to “disdain life” and that he has “a great deal of it in front of [him].”65 Porfiry continues, “[y]ou’ve lost faith and you think that I am grossly flattering you; but how long has your life been?”66 Porfiry
60. Id. at 246. 61. Id. 62. Id. at 247. 63. Id. 64. Id. at 429. 65. Id. at 436. 66. Id. 96 Stetson Law Review [Vol. 47 then reinforces the point by stating that it was his opinion that he “only believe[d] that you have a long life before you.”67 Porfiry also tries to convince Raskolnikov that he is not a bad person, despite the heinous nature of the crimes, implying that Raskolnikov was not a bad person, but one who just acted under a faulty theory and philosophy that led him to commit the crime. Porfiry states “[y]ou made up a theory and then you were ashamed that it broke down and turned out to be not at all original! It turned out to be something base, that’s true, but you are not hopelessly base. By no means so base!”68 Porfiry then again flatters Raskolnikov by stating that he was quick to identify the errors of his ways, saying “[a]t least you didn’t deceive yourself for long, you went straight to the furthest point in one leap.”69 Finally, Porfiry tries to get Raskolnikov to confess by stating that as an extraordinary individual, he should act as one, and show the world that Raskolnikov could admit mistake and, in essence, the folly of his crimes. Porfiry states: “Be the sun and everyone will see you. The sun, above all, has to be the sun. . . . I bet you’re thinking that I’m trying to get round you by flattery. Well, perhaps I am, he-he-he!”70 Finally, honesty and openness clearly has an important role in building rapport with the suspect. At one point, Raskolnikov becomes suspicious at Porfiry’s rambling remarks, thinking that “[h]e’s playing his professional tricks again”71 and then wonders “what is he up to, what does he take me for?”72 But Porfiry disarms Raskolnikov with his apparent honesty, stating:
“I’ve decided openness is better between us,” Porfiry Petrovich went on, turning his head away and dropping his eyes, as though unwilling to disconcert his former victim and as though he were setting aside his former cunning. “Yes, such suspicions and such scenes cannot continue for long.”73
It is unclear whether Porfiry sincerely meant the various complimentary things he said to Raskolnikov on numerous occasions or whether he was engaging in flattery to build up
67. Id. at 437. 68. Id. at 436. 69. Id. 70. Id. at 437 (emphasis added). 71. Id. at 426. 72. Id. at 427. 73. Id. 2017] Lessons of Law & Legal Studies 97 rapport with Raskolnikov in order to get him to confess. Regardless, the tactic works to keep Raskolnikov coming back to Porfiry (or receiving Porfiry) and engaging in conversation and Porfiry’s continued subtle interviewing and probing.
C. PORFIRY’S UTILIZATION OF DISARMING DEMEANOR TO ELICIT INFORMATION
In discussing the best example a law enforcement official should adopt in conducting interrogations, Hess walks the reader through many fictional examples who employ unsuccessful techniques74 before arriving at a fictional character Hess believes that detectives should emulate and who represents, for Hess, the “truly dominant [and successful] investigator.”75 While perhaps surprising to many readers, Hess’ example of the “truly dominant investigator” is illustrated best by the character Columbo.76 The characters and opponents Columbo interviewed and sparred with on the long running television show generally viewed him as “inept,” a “bumbling detective,” and a “buffoon.”77 However, these opinions were erroneous,78 as Columbo assumed such an air and demeanor to disarm and disorient his intended target of investigation.79 As discussed below, Porfiry employs the same techniques as Columbo. Indeed, Porfiry’s techniques are consistent with the television detective Columbo80 and even the creators of Columbo,
74. Hess looked at fictional detectives ranging from those detectives played by “tough guy” characters like Humphrey Bogart, to the “glib, abrasive, television detective” Kojak, to detectives that try to intimidate suspects by “dominating the situation” like the 1990s television detective Sipowicz. HESS, supra note 29, at 25–28. 75. Id. at 26. 76. Id.; Columbo (NBC television series 1968–1978) (ABC television series 1989–2003). Columbo was a television show (named for its lead character and detective, Columbo) that was very popular for its unique style. Unlike many detective shows today (e.g., Law and Order: Criminal Intent) wherein the viewer does not know who committed the crime until the detectives solve the mystery at the end of the episode, viewers of Columbo knew the perpetrator at the start of the episode, and the episodes entailed watching how Columbo would catch the culprit through his various detective tricks to ultimately get confessions. The show had a long successful history on television (on both NBC and ABC), with its first episode date on February 20, 1968, and running until January 30, 2003. The chief detective Columbo was played by famous actor Peter Falk. See Columbo,WIKIPEDIA, https://en.wikipedia.org/wiki/Columbo (last visited Sept. 2, 2017). 77. HESS, supra note 29, at 26. 78. Id. at 26–27. 79. Id. at 27. 80. Burnham, supra note 16, at 1244-45. 98 Stetson Law Review [Vol. 47
Richard Levinson and William Link, often acknowledged that part of the inspiration for Columbo was based on “the policeman Petrovitch in [Dostoevsky’s] Crime and Punishment.”81 In a typical episode, Columbo had a habit and intentional practice of going back to the suspect to collect additional information and clues.82 “After asking a few mundane questions, he would turn to leave. However, just as he got to the door, he would pause, turn, and ask ‘just one more question’”83 in a seemingly clueless fashion. He also put on a self-deprecating air, as illustrated in his comments to one such suspect:
I know you are a busy man, and I can always come back another time. I’ve just got a couple of loose ends to clear up for my report, and they can wait if you wish. I wouldn’t bother you at all except that I got this new captain, and he’s a nice kid and all, but he’s a real stickler for details. You know what I mean?84
In addition to the above techniques, Columbo would also make seemingly irrelevant comments that had nothing to do with the true purpose of the visit. Hess gives two examples from a Columbo episode in his book. In this cited example, Columbo enters a suspect’s office and carelessly picks up a priceless piece of art, saying:
This is really lovely. You know, my wife would like something like this. She knows a lot more about sculpture than I do, but even I can see that this is a fine piece. There’s a shopping center just down the road that I passed on the way up here. It has a big department store that handles all kinds of stuff. You didn’t by any chance pick this up over there, did you?85
This technique disarms the suspect in several respects. First, Columbo rambles about a topic unrelated to the investigation. Second, Columbo suggests that he is not sophisticated by suggesting that a priceless art object might be easily purchased at a department store just down the street. Further, while the suspect scrambles to get the priceless object out of the bumbling Columbo’s
81. William Link & Richard Levinson, Link and Levinson,THE ULTIMATE COLUMBO SITE, http://www.columbo-site.freeuk.com (last visited Sept. 25, 2017). 82. HESS, supra note 29, at 26. 83. Id. 84. Id. at 27. 85. Id. 2017] Lessons of Law & Legal Studies 99 hands to put the object back in its proper place, Columbo takes this opportunity to move to another part of the room and turn his attention to something completely different, like the view from a window, then saying:
Would you look at that! That is magnificent. You know, my wife paints. Did I mention to you that she paints? If she could only see this view. You don’t think it might be possible sometime for her, particularly when the sun is shining just like it is now.86
According to Hess, “Columbo will then ramble on interminably about the view, much to the irritation of the suspect, who finally will interrupt him.”87 At this point, the suspect is more aggravated and irritated due to the perception that Columbo is just wasting the suspect’s time and is clueless about the case. At this point, unbeknownst to the suspect, Columbo had successfully disarmed and disoriented him, making him susceptible to making an excited utterance or comment he would not have made if Columbo came in acting seriously from the onset. Just like the “modern” fictional character Columbo, Dostoevsky’s fictional detective over a century earlier88 utilized the same techniques. A close reading of the novel makes clear that Porfiry begins all of his interactions with Raskolnikov by discussing seemingly inconsequential things which had no bearing on the case or the suspect. Thus, during the second conversation/interview between Porfiry and Raskolnikov, Porfiry starts out the conversation complaining about his habit of smoking and its deleterious effects on his health. Porfiry states, in part:
Ah, these cigarettes! . . . They are pernicious, absolutely pernicious, and yet I can’t give them up! I cough, I begin to have a tickle in my throat and difficulty breathing. You know I am a coward. I went recently to Dr. Botkin . . . “[t]obacco’s bad for you,” he said, “your lungs are affected.” But how am I going to
86. Id. at 28. 87. Id. 88. As Crime and Punishment was first published in 1866 and Columbo first aired in 1968, Dostoevsky had his fictional detective Porfiry using the tactics of Columbo a century before Columbo “arrived on the scene.” See DOSTOEVSKY, supra note 1, at xi; see also Columbo, supra note 76 and accompanying text (referencing the respective dates of publication). 100 Stetson Law Review [Vol. 47
give it up? What is there to take its place?I don’t drink, that’s the problem, he-he-he, that I don’t.89
This conversation prompted Raskolnikov to think “[h]e’s playing his professional tricks again”90 and wonder “[w]hat is he up to, what does he take me for?”91 At another point, in a conversation between the two, Porfiry explained how he was a bachelor, socially awkward with the upper classes, “a man of no consequence and not used to company.”92 Porfiry went on to explain his theory why “people of the middle sort like us . . . are always tongue-tied and awkward.”93 Such seemingly unrelated conversation made Raskolnikov actually wonder “[d]oes he really want to distract my attention with his silly babble?”94 At yet another point during their second major interaction, Porfiry was rambling on about topics ranging from his personal exercise habits to the irritating formalities of lawyer questioning in legal proceedings. During this rambling, Porfiry’s behavior had struck Raskolnikov as follows:
He had simply babbled on uttering empty phrases, letting slip a few enigmatic words and again reverting to incoherence. He was almost running around the room, moving his fat little legs quicker and quicker, looking at the ground, with his right hand behind his back, while with his left making gestures that bore extraordinary little relation to his words. Raskolnikov suddenly noticed that as he ran about the room he seemed twice to stop for a moment near the door, as though he were listening. “Is he expecting anything?”95
These techniques by Porfiry did much to disorient Raskolnikov as to what Porfiry actually knew about the case and Raskolnikov’s involvement, and opened the door to Porfiry asking, in a Columbo style, just “one more question” after a number of seemingly inconsequential remarks.
89. DOSTOEVSKY, supra note 1, at 426. 90. Id. 91. Id. at 427. 92. Id. at 321. 93. Id. 94. Id. 95. Id. at 322. 2017] Lessons of Law & Legal Studies 101
D. PORFIRY’S ADVOCACY IN CONVINCING THE SUSPECT THAT IT IS IN HIS BEST INTERESTS TO CONFESS
Hess has stated that “nobody confesses without having a reason to do so.”96 Phrased another way, “[i]nvestigators can achieve this [i.e., a confession] only if they provide the suspect with an acceptable reason to confess. This sales pitch, argument, or theme must in some fashion answer the suspect’s question, ‘What’s in it for me?’”97 Porfiry decides to employ Raskolnikov’s original theory of “extraordinary” individuals in society to convince him to confess.98 Porfiry, in essence, argues that Raskolnikov should be above it all and seek atonement to pay for his sins. Porfiry states that he believes that Raskolnikov has the unusual ability to withstand the punishment that comes with a murder conviction. “I see you as one of those men who would stand and smile at their torturer while he cuts their entrails out, if only they have found faith or God. Find it and you will live. You have long needed a change of air. Suffering, too, is a good thing. Suffer!”99 Also, as referenced previously, Porfiry states: “Be the sun and everyone will see you. The sun, above all, has to be the sun.”100 Porfiry also flat out states to Raskolnikov that “surrender[ing] and confess[ing] . . . will be infinitely more to your advantage and to my advantage too, for my task will be done.”101 Here, Porfiry displays his honesty to Raskolnikov that Porfiry too has something to gain from the confession. This increases Raskolnikov’s trust in Porfiry, making Porfiry’s “sales pitch” to Raskolnikov that he should confess much more palatable and believable. Porfiry’s highly effective tactics, in conjunction with Raskolnikov’s internal struggles of guilt and remorse, slowly wore down Raskolnikov. Initially, Raskolnikov felt superior to and even mocked the police and its early efforts to catch him, the murderer. However, each time he interacted with Porfiry, his nerves would
96. HESS, supra note 29, at 69. 97. Id. 98. DOSTOEVSKY, supra note 1, at 247. 99. Id. at 436–37. 100. Id. at 437 (emphasis added). 101. Id. at 435. Note also that in stating that a confession would be “infinitely more to [Raskolnikov’s] advantage,” Porfiry displays honesty in his conversation with Raskolnikov by immediately also saying that it would be in Porfiry’s best interests as well, as he could close the case and that his “task will be done.” 102 Stetson Law Review [Vol. 47 take over. 102 For instance, Raskolnikov went to Porfiry and said, “I believe you said yesterday you would like to question me . . . formally . . . about my acquaintance with the murdered woman?”103 Almost immediately thereafter, Raskolnikov felt extreme anxiety and distress:
And he suddenly felt that his uneasiness at the mere contact with Porfiry, at the first words, at the first looks, had grown in an instant to monstrous proportions, and that this was fearfully dangerous. His nerves were quivering, his emotion was increasing. “It’s bad, it’s bad! I shall say too much again.”104
Even arriving at the police station early that day and before even meeting Porfiry, Raskolnikov is described as having a “sick and overstrained imagination”105 and suffering from “overstrained nerves”106 as he awaited the summons to meet with Porfiry. During his second interview, Raskolnikov demanded to know if he was under “suspicion” or not.107 When Porfiry refused to answer, Raskolnikov became more furious and outraged and began to show signs of agitation.
III. COMPULSION TO JUSTIFY ONE’S BEHAVIOR AND EVEN CONFESS TO A CRIME
While dealing with a “true artist” interrogator like Porfiry would be daunting enough without legal representation and assistance, these interactions become incredibly fraught with peril when coupled with the fact that many people try to justify their behavior to others as a means of resolving the person’s inner turmoil.108 For instance, after Raskolnikov first discloses to Sonia that he is the one responsible for the crimes, he explains his reason for confessing to her as follows:
“And why, why did I tell her? Why did I let her know?” he cried a minute later in despair, looking with infinite anguish at her.
102. E.g., id. at 159–60. 103. Id. at 318. 104. Id. at 318–19. 105. Id. at 317. 106. Id. 107. Id. at 331. 108. See infra notes 109–10 (examining the psychology of confessions). 2017] Lessons of Law & Legal Studies 103
“Here you expect an explanation from me, Sonia . . . [b]ut what can I tell you? . . . Because I couldn’t bear my burden and have come to throw it on another; you suffer too, and I shall feel better!”109
Raskolnikov’s statement to Sonia (and his compulsion to confess) reflects two basic characteristics of human nature. First, people wish to justify their behaviors and explain why they acted the way they did to others. Second, the weight certain actions have on people can be debilitating and eat away at a person. To the extent the burden (or secret) can be shared, it alleviates, at least in part, the burden. As United States Supreme Court Justice Byron White wrote in his dissenting opinion in Miranda v. Arizona (a seminal case involving the legitimacy of confessions by defendants), “it is by no means certain that the process of confessing is injurious to the accused. To the contrary it may provide psychological relief and enhance the prospects for rehabilitation.”110 A second major theme to be analyzed is a suspect’s strong compulsion to confess or at least explain one’s self. As one scholar has written, “[i]t is natural that we wish to confess our vulnerabilities and bad deeds to someone close. It is hard to bear secrets.”111 This same scholar, quoting Carl Jung, argues that an individual “does not feel himself accepted unless the very worst in him is accepted too.”112 This scholar amplifies the point by again quoting Jung and asserting “[i]t is only with the help of confession that I am able to throw myself into the arms of humanity at last from the burden of moral exile.”113 This is the concept that Raskolnikov tries to explain to Sonia in the above passage. These two human tendencies also amplify the need to have attorneys involved with suspects at the very earliest stages, as the attorney can serve as an outlet for a suspect in satisfying these basic urges, and also help the suspect avoid the compulsion of trying to justify their actions or confess their behavior to a person who may not have the suspect’s best interests in mind.
109. DOSTOEVSKY, supra note 1, at 393. 110. Miranda v. Arizona, 384 U.S. 436, 538 (1966) (White J., dissenting). 111. Kitai-Sangero, supra note 14, at 236. 112. Id. at 236 (quoting CARL GUSTAV JUNG,MODERN MAN IN SEARCH OF A SOUL 270 (W.S. Dell & Cary F. Baynes trans., 1933)). 113. Id. at 237 (quoting JUNG, supra note 112, at 35–36). 104 Stetson Law Review [Vol. 47
Thus, it should be no surprise that one of the most recurrent themes of the novel is Raskolnikov’s overwhelming desire to confess to his offenses. This explains why it is he who seeks out the police for visits on multiple occasions—hardly the behavior of an individual wishing to keep a “low profile” from the police after committing the crime. Admittedly, some of Raskolnikov’s visits to the police were in attempt to see what the police knew about the crime114 and see if he was suspected of some complicity in the event and he worried incessantly about being caught.115 Yet, it will be obvious to even the most casual reader of the novel that the theme of confessions comes up repeatedly throughout the novel.116 Raskolnikov is constantly toying with the idea of confessing—in fact, he contemplates confessing even before he commits the crime at the very start of the novel.117 Then, as soon as the murders are committed, Raskolnikov’s thoughts turn to confession:
He longed to run away from the place as fast as possible. And if at that moment he had been capable of seeing and reasoning more correctly . . . it is very possible that he would have abandoned everything, and would have gone to give himself up, and not from fear for himself, but from simple horror and loathing of what he had done. The feeling of loathing especially surged up within him and grew stronger every minute.118
Upon returning home and falling into a deep sleep, a summons is delivered by a police officer to appear at the police station.
114. DOSTOEVSKY, supra note 1, at 94–95. For instance, in Raskolnikov’s very first visit to the police station in response to a summons about a debt he owed his landlord, he lingers voluntarily afterwards to see if he can glean information about the investigation based upon the comments of the police in the room at the same time. 115. Indeed, this author counted over thirty instances wherein Raskolnikov worried about being caught or identified as the culprit, ranging from the worrying that the police might find incriminating evidence of his crime, see, e.g., id. at 125 (Raskolnikov searches the room to ensure all incriminating evidence has been destroyed), to blurting out something damaging to the police. See, e.g., id. at 94 (he worries he “may blurt out something stupid to the police”). 116. Dostoevsky’s Crime and Punishment is often referred to as in the genre of “confessional” literature for this reason. See, e.g.,PETER BROOKS, Storytelling Without Fear? Confession in Law and Literature, in LAW’S STORIES: NARRATIVE AND RHETORIC IN THE LAW 129, 131–32 (Peter Brooks & Paul Gewirtz, eds., 1996). 117. DOSTOEVSKY, supra note 1, at 6. On only the second page of the novel, Raskolnikov first thinks about having the feeling of compulsion to confess and say things about his intentions, even though he has yet to commit the actual offenses. 118. Id. at 80. 2017] Lessons of Law & Legal Studies 105
Unbeknownst to Raskolnikov, the summons is for an alleged debt with his landlady. Raskolnikov, heavy with a guilty mind, immediately assumes the police are on to him already. On the way to the police station, his mind again turns to confession, thinking that “[i]f they question me, perhaps I’ll just tell them everything . . . I’ll go in, fall on my knees, and confess everything.”119 Then, once at the police station, Raskolnikov feels the need to bare his soul about something and humanize himself, so he goes into a long story about his failed engagement—even when the police officer present admonishes Raskolnikov saying “[n]obody ask[ed] you for these personal details, sir, we can’t waste our time on this.”120 But based upon an overwhelming urge to explain himself, Raskolnikov still goes into all the details, while admitting that “I agree with you . . . it is unnecessary.”121 Then, shortly thereafter, while still in the police station writing out a statement about the complaint concerning his debt, Raskolnikov, yet again, feels overwhelmed to confess—but this time to all the crimes. This is at least the fourth time in the novel that he contemplated confession, and several times in short succession immediately after committing the murders. On this occasion, while writing out his statement,
A strange idea suddenly occurred to him—to get up at once, to go up to Nikodim Fomich, and tell him everything that had happened yesterday, and then to go with him to his lodgings and to show him the things in the hole in the corner. The impulse was so strong that he got up from his seat to carry it out.122
The “confession” theme remains a constant theme as the story progresses. Raskolnikov is constantly fighting the urge to confess. When Raskolnikov returns to his flat, “[h]e had decided to go to the police station; [and] soon it would be over.”123 Shortly before that point, but after his first police station visit, Raskolnikov observes to himself that he would go to the police station and “put an end to it.”124
119. Id. at 94. 120. Id. at 102. 121. Id. 122. Id. at 103–04. 123. Id. at 169. 124. Id. at 165. 106 Stetson Law Review [Vol. 47
In addition to the urge to confess because of self-loathing (as he felt right after the murders) or because he was rattled and confused by the police (as he felt at the police station when responding to the summons over a debt), Raskolnikov also considers confessing because of distain for the police and their investigation. For instance, at one point in the latter half of the novel, Raskolnikov expresses the desire to tangle and to struggle with Porfiry again, saying that he (Raskolnikov) was desirous of “some challenge . . . some attack.”125 Indeed, many of Raskolnikov’s early impulses to confess are based on his desire to show the police up or out of anger at what he perceives as police ineptness.126 Thus, one of the many reasons why Raskolnikov contemplates confessing is in anger in order to show how much he hates the police and their inept investigation (as Raskolnikov sees it).127 Indeed, the number of times Raskolnikov vacillates between justifying his behavior128 or contemplates confessing to the police throughout the novel (for one reason or another) is staggering and illustrates the complexity and duality contained in virtually every individual. Raskolnikov represents the battle between good and evil waging within many individuals and seeks to tell someone about this internal struggle and what was done—even if the person is still wrestling with the morality or the legality of the action internally. Thus, sporadically throughout the novel, Raskolnikov has the seemingly contradictory ability to rationalize the most brutal and heinous of crimes, namely a double homicide of two innocent individuals. In fact, in some of his moments wherein he rationalized and justified the homicides, the justifications (and how Raskolnikov’s characterizes them) are abhorrent. For instance, in one of the first instances in the novel wherein
125. Id. at 419. 126. At one point, Raskolnikov mocks the police for not catching the culprit. Id. at 159. He even goes so far as to tell them how he would have escaped the crime scene if he were the culprit. Id. at 159–60. At another point, as he was exiting the police station, Raskolnikov cannot help but to throw out an insult on the way out the door, telling the police officer he was a “comical one.” Id. at 327. 127. Id. at 242. 128. While the number may differ slightly with each reader of this novel (and what certain ambiguous statements might mean), this author noted over fifteen major instances throughout the novel wherein it was clear to the reader that Raskolnikov was expressly trying to justify his crimes to himself or others. Many of these instances of justification take place in a few words, such as what he did “was not a crime,” id. at 71, or that the person he killed was not “a human being, but a principle! [He] killed a principle.” Id. at 261. He even claimed his victim was most deserving of being killed in his mind, thinking that “[o]f all the lice I picked out the most useless one.” Id. at 261. 2017] Lessons of Law & Legal Studies 107
Raskolnikov expressly indicates that it is acceptable to kill an old pawnbroker for the betterment of society, he states to himself that such a course of conduct is “not a crime.”129 However, as the novel progresses, his explanations for why it is not a crime become more repugnant. In the third chapter of Part Three of the novel, Raskolnikov believes that the act was a “grand and noble object”130 and that “the old woman doesn’t matter . . . I didn’t kill a human being, but a principle!”131 He also believes the old female pawnbroker, a fellow human being, was most deserving of being killed, thinking, “of all the lice I picked out the most useless one.”132 Then, when Raskolnikov finally confides in Sonia about his crimes, Raskolnikov proclaims, “I’ve only killed a louse, Sonia, a useless, loathsome, harmful creature.”133 And while Raskolnikov admits to Sonia a sentence later that “I know too that it wasn’t a louse,”134 he clearly had not definitively changed his views about the value of the pawnbroker’s life. This becomes clear towards the end of the novel, and right before his confession, when Raskolnikov again denies any criminality, he says, “Crime? What crime? That I killed a vile noxious insect, an old pawnbroker woman, of no use to anyone! . . . Killing her was an atonement for forty sins.”135 He further suggests that he was ultimately turning himself in not for the crime itself. Instead, he contemplates turning himself in for the shame he feels of not going through with the original plan: to plunder the pawnbroker’s hoarded wealth and return it to the poor in society.136 Very late in the novel, Raskolnikov comments, “I am going at once to give myself up. But I don’t know why I am going to give myself up.”137 He also indicates late in the novel that he made a mistake in confessing138 and wonders whether he could “stop and retract it all . . . and not go?”139 In fact, given that Raskolnikov expresses so many different reasons for confessing throughout the book, no one can definitively say what the conclusive factor was, beyond Sonia’s pleadings to him to do so.
129. Id. at 71. 130. Id. at 261. 131. Id. 132. Id. 133. Id. at 395. 134. Id. 135. Id. at 491 (emphasis added). 136. Id. at 491–92. 137. Id. at 491. 138. See id. at 515 (doubting his conviction to confess). 139. Id. at 496. 108 Stetson Law Review [Vol. 47
However, throughout the novel, there is the recurring theme of Raskolnikov’s struggling with the duality of his character and soul. He is struggling with the fact that he was capable of committing acts of compassion and empathy, but at the same time he is capable of acts of great depravity, like killing two innocent women based upon a flawed theory that certain “extraordinary” people in society can kill for the greater good.140 Raskolnikov’s internal struggle can be seen throughout the entire book. For instance, at one point, Raskolnikov laments that “I murdered myself, not her.”141 He also tells Sonia that he did not have the right to kill and that his philosophy that prompted him to action was flawed.142 He also indicates that he was internally tortured with what had occurred, and that he constantly struggles with remorse and guilt.143 Yet, at the same time, as explained above, in between these bouts of regret and remorse, he continues to lapse into defending his actions.144
IV. CONCLUSION
A good lawyer being involved with a suspect like Raskolnikov can ensure: [1] that the suspect is resisting the urge to confess to multiple individuals (for different reasons—when the suspect him or herself might not be entirely certain); [2] that he does not seek out the police to vaguely talk about the case as he does on multiple occasions; and [3] that if the suspect truly feels the need to alleviate the weight of the burden he or she alone is carrying, his or her lawyer can serve in that role as well. This is not to say that certain individuals should not confess to their crimes. However, the individuals should only do so after they have been properly educated as to the various legal options and consequences. That is why lawyers have been called counselors of law for centuries. Thus, the lessons that can be learned by modern criminal defense attorneys—in light of both solid police tactics displayed by Porfiry and a suspect’s strong desire and compulsion to confess—are
140. Raskolnikov’s delineation of this philosophy is best laid out in the discussion of an academic article with Porfiry that Raskolnikov had written some months before the murders. See id. at 246–53. 141. Id. at 398. 142. Id. at 398–99 (discussing with Sonia the error of his flawed theory and attempting to repent for his transgression). 143. Id. at 261–62 (showing how the guilt has tortured him and driven him to madness). 144. Id. at 262 (hating and blaming the pawnbroker for his actions). 2017] Lessons of Law & Legal Studies 109 many. It is a cautionary tale that the need for such legal assistance and counseling is obvious, and the book provides a list of pitfalls for the unsuspecting criminal defense client. For example, for the modern criminal defense attorney, it may be helpful to read the work to understand the strong compulsion of a defendant to justify their behavior to the police and other individuals, and to caution his or her clients to resist this urge until properly advised and legal counsel has had the opportunity to advise the client of legal options and allow the client to explain his or her versions of events. This is not to say that lawyers should never encourage clients to make confessions in any circumstance, which Pedderdine University Professor of Law Robert F. Cochran, Jr., has argued is an unfortunate default position and practice by many defense attorneys.145 Rather, before the suspect makes a statement, “the lawyer should explain the evidence against the defendant, available defenses, options for pleading guilty or not guilty, and the consequences of those options.”146 Of course, this knowledge should reinforce the practice of any good defense counsel, namely to ensure his client does not engage in self-incrimination (or even a false confession for attention).147 As is evident in reading Crime and Punishment, it appears extremely important to people to justify their behavior to others, and this impulse was certainly the case with Raskolnikov in Crime and Punishment, and it is a central theme of the book. Indeed, “Dostoevsky’s Crime and Punishment is a story about confessions”148 and illustrates the central “urge of the offender to confess and curative effect of the confession.”149 The goal of a good criminal defense attorney is to ensure that his or her client is not trying to please too many people by trying to justify his or her behavior to everyone who crosses the person’s path before his or her lawyer. Individuals suspected of committing a crime face great legal risk to confess, whether they are guilty or innocent, based on a combination of actors that are working against them. Some of these factors are: sophisticated police interrogation tactics, human
145. Cochran, supra note 17, at 348–50. 146. Id. at 339 n.65 (citing State v. Holland, 876 P.2d 357, 362 (Utah 1994) (Stewart, J., concurring)). 147. Kitai-Sangero, supra note 14, at 243–44 (stating that Nikolay, an innocent character in Crime and Punishment, made a false confession). 148. Id. at 231. 149. Id. 110 Stetson Law Review [Vol. 47 tendency—whether guilty or innocent—to justify one’s behavior, and the exhaustion and fatigue an individual endures due to stress and anxiety—and just to end the process, suspects are more likely to confess. These three factors create the perfect witch’s brew for the unsuspecting and unrepresented criminal defendant in today’s system, just as it was for Dostoevsky and his fictional character Raskolnikov in Crime and Punishment written so many years ago. It is for this reason, among many others, that the book is still relevant and resonates with legal scholars and courts over 150 years after its original publication half-way across the world in Russia. STRIKING DOWN THE IMPERVIOUS SHIELDS: WHY CAVEAT EMPTOR MUST BE ABANDONED IN COMMERCIAL REAL PROPERTY SALES AND LEASES
Gregory L. Pierson*
In Florida, caveat emptor no longer applies to residential real property leases or to new or used residential real property sales, yet the doctrine persists in commercial real property leases and sales.1 The Florida Supreme Court’s failure to abandon the caveat emptor doctrine and impose a duty to disclose on lessors and sellers in commercial real property leases and sales transactions is harmful to prospective purchasers and lessees. Holding property purchasers and lessees to a different standard depending on the land use categorization of the property harms these parties by affording them less protection, and doing so is not grounded in any legitimate justification. Accordingly, this Article both sets forth reasons for why the ancient caveat emptor doctrine must be eradicated from commercial real property transactions and provides an alternative solution that will afford more protection to purchasers in certain real property transactions.
I. INTRODUCTION
In an episode from the famous sitcom Seinfeld,2 Jerry Seinfeld observes an agreement in his apartment between Kramer and Newman, both of whom have agreed that Kramer will trade his
* © 2017, Gregory L. Pierson. All rights reserved. J.D., cum laude, Stetson University College of Law, 2016; A.B., cum laude, Rollins College, 2012. The Author would like to express his gratitude to his family for their loving encouragement and support. The Author would also like to thank the members of Stetson Law Review for their dedication to the publication of this Article. 1. Haskell Co. v. Lane Co., 612 So. 2d 669, 674 (Fla. 1st Dist. Ct. App. 1993). 2. The successful 1990s series received roughly 76 million viewers during its peak and is credited with revolutionizing networks’ approach to sitcoms. Daniel Bettridge, Why Seinfeld Is Still Master of Its Domain,THE WEEK (July 2, 2014), http://theweek.com/ articles/445703/why-seinfeld-still-master-domain. 112 Stetson Law Review [Vol. 47 radar detector for Newman’s helmet.3 As soon as Newman leaves Jerry’s apartment, Kramer admits to Jerry that the radar detector is defective.4 Scenes later, Newman comes scurrying back to Jerry’s apartment, informing Jerry and Kramer with his all-too- familiar excitement and agitation that the police had pulled him over on the Palisades Parkway because the radar detector had failed to operate.5 Newman demands that Kramer return his helmet, but Kramer refuses to do so since they had a deal.6 Newman, knowing that Jerry observed the deal, appeals to him to invalidate the agreement, but Jerry throws up his hands and proclaims, “buyer beware!”7 Whether our neurotic New York friends realized it or not, Jerry’s “buyer beware” statement references one of the most well- known legal doctrines: caveat emptor. This simple phrase, which is loosely translated to “let the buyer beware,”8 persists throughout American legal jurisprudence. The full Latin maxim reads: “Caveat emptor, qui ignorare non debuit quod jus alienum emit.”9 Under the caveat emptor doctrine, buyers in arm’s length transactions must “fend for themselves,” as their only protection is “their own skepticism as to the value and condition of the subject of the transaction.”10 With respect to real property, buyers and lessees carry the burden of making diligent inspections and inquiries for defects in arm’s length transactions.11 Sellers and lessors are not liable for any harm that an existing defect causes to buyers and lessees respectively, unless there is active concealment of the defect, a material misrepresentation, or the parties agree otherwise.12 Consequently, property purchasers can stand in unequal bargaining positions in such arm’s length transactions.
3. Seinfeld: The Pitch (NBC television broadcast Sept. 16, 1992). 4. Id. 5. Id. 6. Id. 7. Id. 8. 67A AM. JUR. 2D Sales § 610 (2014). 9. Alan M. Weinberger, Let the Buyer Be Well Informed?—Doubting the Demise of Caveat Emptor, 55 MD. L. REV. 387, 388 n.5 (1996). This phrase translates to: “Let a purchaser, who ought not be ignorant of the amount and nature of the interest which he is about to buy, exercise proper caution.” Id. (quoting HERBERT BROOME,A SELECTION OF LEGAL MAXIMS 528 (10th ed. 1939)). 10. Biff Craine, Real Property—Sellers’ Liability for Nondisclosure of Real Property Defects—Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), 14 FLA. ST. U. L. REV. 359, 361 (1985). 11. Id. at 359. 12. Haskell Co. v. Lane Co., 612 So. 2d 669, 671 (Fla. 1st Dist. Ct. App. 1993). 2017] Striking Down the Impervious Shields 113
Today, more than three centuries after the doctrine first made its appearance in England,13 caveat emptor remains strong in American real estate law with respect to both commercial and undeveloped properties.14 Many jurisdictions have limited the doctrine, however, such as by recognizing implied warranties of habitability in certain residential property sales,15 or instituting mandatory seller disclosure laws.16 As Justice Blackmun explained in 1980, caveat emptor is a “harsh maxim,” and the law has trended away from strict compliance with the doctrine “towards a more flexible, less formalistic understanding of the duty to disclose.”17 In Florida, caveat emptor has been eliminated from residential real property sales and leases, yet the doctrine persists in sales and leases of commercial real property.18 Despite having the opportunity to correct this problem, the Florida Supreme Court has failed to invalidate the doctrine’s application to commercial property transactions.19 A duty to disclose should be imposed on the seller in commercial real estate leases and sales transactions because the current failure to provide such a duty is harmful to prospective purchasers and lessees. Commercial property purchasers and lessees do not receive the same protections as residential real property buyers and lessees since the law presumes these parties to have a level of sophistication that they often do not have. This violates the principles of fair dealing, equity, and justice that the Florida Supreme Court stressed in
13. See Walton H. Hamilton, The Ancient Maxim Caveat Emptor, 40 YALE L.J. 1133, 1164 (1931) (explaining that the roots of the doctrine can be traced back to England in the sixteenth century). Hamilton notes that the phrase “caveat emptor” did not appear in print until the sixteenth century, and it was well-known throughout England by the beginning of the seventeenth century. Id. 14. RICHARD A. LORD, 17 WILLISTON ON CONTRACTS § 50:26, 349 (4th ed. 2017). 15. E.g., Cochran v. Keeton, 252 So. 2d 313, 314–15 (Ala. 1971) (eradicating the caveat emptor doctrine in builder-vendors’ new home sales by recognizing an implied warranty of fitness and habitability); Petersen v. Hubschman Constr. Co., 389 N.E.2d 1154, 1157–58 (Ill. 1979) (finding an implied warranty of habitability in the sale of new homes by builder- vendors, thereby avoiding the “unjust results of caveat emptor and the doctrine of merger”). The Ohio Supreme Court was the first American court to identify an implied warranty of habitability or fitness in the construction and sale of new homes. 50 AM. JUR. 3D Proof of Facts 543, 558 (1999) (citing Vanderschrier v. Aaron, 140 N.E.2d 819 (Ohio 8th Dist. Ct. App. 1957)). 16. See Elizabeth Murphy, Note, The Current State of Caveat Emptor in Alabama Real Estate Sales, 60 ALA. L. REV. 499, 516 (2009) (noting that, as of 2008, the District of Columbia and forty-five states had enacted such mandatory disclosure laws). 17. Chiarella v. United States, 445 U.S. 222, 247–48 (1980) (Blackmun, J., dissenting). 18. Haskell Co. v. Lane Co., 612 So. 2d 669, 674 (Fla. 1st Dist. Ct. App. 1993). 19. See Serv. Merch. Co. v. Lane Co., 620 So. 2d 762, 762 (Fla. 1993) (dismissing the Petition for Review on the First District Court of Appeal’s certified question to the Court). 114 Stetson Law Review [Vol. 47
Johnson v. Davis.20 Furthermore, the justifications for eradicating the doctrine from commercial property transactions outweigh the arguments for maintaining it.21 This Article first traces the history of the caveat emptor doctrine in Florida and discusses the evolution and application of the doctrine up until Johnson.22 Next, the Article examines Johnson23 and Futura Realty v. Lone Star Building Centers (Eastern), Inc.,24 along with the accompanying split in treatment of residential properties and commercial properties. The Article subsequently views the unfortunate consequences of Futura Realty and how courts’ refusal to establish a bright line between residential property and commercial property has further muddied the waters. In conclusion, the Article argues that the Johnson nondisclosure duty should be extended to commercial real property transactions, thereby eradicating caveat emptor from all real property transactions. The Article also posits an alternative solution, explaining that if caveat emptor is not eliminated from commercial property sales and leases, the Florida Legislature should at least establish a bright line for distinguishing between residential property and commercial property.
II. THE HISTORY OF CAVEAT EMPTOR IN FLORIDA
The original principle behind the caveat emptor doctrine was that a land’s seller could not be liable to the purchaser or any other person for the land’s condition at the time of the transfer, unless otherwise provided in an express agreement.25 Professor Walton Hamilton, a Yale University professor who analyzed the history of caveat emptor, traced the doctrine back to the mid-1500s.26 Although the doctrine originally emerged in connection with
20. 480 So. 2d 625, 627–28 (Fla. 1985). Johnson and its impact are discussed extensively in this Article. Infra Part III. 21. Infra Part V. 22. 480 So. 2d 625. 23. Id. 24. 578 So. 2d 363 (Fla. 3d Dist. Ct. App. 1991). 25. RESTATEMENT (SECOND) OF TORTS § 352 cmt. a (1965). 26. Hamilton, supra note 13, at 1164. 2017] Striking Down the Impervious Shields 115 certain chattel purchases, such as horses,27 it subsequently developed in real property purchases and sales.28 Once the doctrine made its way over to the United States through the common law, an emerging industrial society and the lack of traditional monarchical authority contributed to the doctrine’s “real triumph.”29 This is hardly surprising because individualism, rather than paternalism, served as a pillar of the American Frontier.30 Indeed, caveat emptor was widely used throughout the young republic, and the doctrine was utilized to define duties of both sellers and buyers in transactions, including the seller’s duty to disclose material facts pertaining to the property’s condition.31 As United States Supreme Court Justice David Davis explained in 1870, “[o]f such universal acceptance is the doctrine of caveat emptor in this country, that the courts of all the States in the Union where the common law prevails [except South Carolina], sanction it.”32 Florida courts were thus among the courts in the nation that utilized the doctrine. Caveat emptor has an extensive history in Florida. It is for this exact reason that the Florida Supreme Court’s ruling in Johnson v. Davis sent shockwaves through the Florida legal community33 when the Court drastically altered the application of caveat emptor in Florida in 1985.34 An analysis of the development and application of the doctrine prior to Johnson is necessary to understand the significance of the Florida Supreme Court’s decision.
27. Id. The first appearance of the doctrine in print specifically referenced horse- trading: “[I]f he be tame and have ben rydden upon, then caveat emptor.” Id. (quoting ANDREW FITZHERBERT,BOKE OF HUSBANDRIE § 118 (1534); Nicola W. Palmieri, Good Faith Disclosures Required During Precontractual Negotiations, 24 SETON HALL L. REV. 70, 110 n.134 (1993). Prior to the doctrine’s introduction, purchasers typically received broad deference in trading since few opportunities for trade existed and sellers were hesitant to offend those customers whom they were connected to in the societal hierarchy. Id. at 110. 28. Haskell Co. v. Lane Co., 612 So. 2d 669, 671 (Fla. 1st Dist. Ct. App. 1993); Alex M. Johnson, Jr., An Economic Analysis of the Duty to Disclose Information: Lessons Learned from the Caveat Emptor Doctrine, 45 SAN DIEGO L. REV. 79, 101 (2008). 29. Hamilton, supra note 13, at 1178. Hamilton also explains that courts in the young country were reluctant to accept cases that dealt with business conflicts. Id. 30. See id. (remarking that the frontier reinforced intellectual individualism);WILL WRIGHT, THE WILD WEST: THE MYTHICAL COWBOY AND SOCIAL THEORY 191 (2001) (citing individualism as responsible for the “market idea of an open frontier”). 31. Craine, supra note 10, at 360–61. 32. Barnard v. Kellogg, 77 U.S. 383, 388–89 (1870). 33. Parker, infra note 76, at 29. 34. 480 So. 2d 625 (Fla. 1985). 116 Stetson Law Review [Vol. 47
One of the first occasions when the Florida Supreme Court addressed caveat emptor was Stephens v. Orman.35 The Court decided the case in 186236—a short seventeen years after Congress admitted Florida to the Union.37 Stephens addressed the division of a firm’s assets between three partners: Orman, Young, and Sewall.38 In reviewing Sewall’s argument for rescission of an agreement between the parties due to alleged misstatements of Orman and Young, the Court explained that a contracting party’s concealment of a material fact is grounds for relief if that party had a “better opportunity to know” than the other contracting party.39 The Court held, however, that evidence of fraud does not exist even if the vendor knows facts and does not disclose these facts to the vendee if both parties have equal access and opportunity to examine the facts and the vendee examines the facts without relying on the vendor’s statements.40 Although the Court did not explicitly cite caveat emptor, its holding nonetheless reflects the doctrine’s core principle—that the buyer has the burden of determining whether defects exist. The Court’s establishment of a cause of action against a party with a “better opportunity to know” reflects the Court’s attempt to ensure that the buyer is provided with a proper opportunity to make his investigation.41 Notably, this duty to investigate in the context of fraudulent misrepresentations persisted in Florida jurisprudence for decades42 before the Florida Supreme Court limited the duty in the fraud context.43
35. 10 Fla. 9 (1862). 36. Id. 37. JAMES C. CLARK, A CONCISE HISTORY OF FLORIDA 46 (2014). Although the convention approved the constitution on January 11, 1839, Florida did not actually become a state until 1845. Id. 38. Stephens, 10 Fla. at 18. Sewall, as a silent partner in Alabama, argued that Orman and Young induced him into an offer that included inaccurate accounting information and misstatements. Id. at 85–86. 39. Id. at 86–87. 40. Id. at 87 (citing Hall v. Thompson, 9 Miss. 443 (1843)). 41. See id. at 86–87. This same rationale no doubt serves as the basis for some of the exceptions to caveat emptor. See Besett v. Basnett, 389 So. 2d 995, 997 (Fla. 1980) (discussing the seller’s misrepresentation of a property’s condition as an exception to caveat emptor); Hayim Real Estate Holdings, LLC v. Action Watercraft Int’l, Inc., 15 So. 3d 724, 726 (Fla. 3d Dist. Ct. App. 2009) (discussing active concealment of a known defect in commercial real property transactions as an exception to caveat emptor). 42. Potakar v. Hurtak, 82 So. 2d 502 (Fla. 1955) (receded from by Besett, 389 So. 2d at 998). 43. Besett, 389 So. 2d at 998 (“We hold that a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had he made an 2017] Striking Down the Impervious Shields 117
By the twentieth century, caveat emptor influenced leases and sales of Florida real property. For example, in Brooks v. Peters,44 the Florida Supreme Court established that caveat emptor applied to residential real property leases between landlord and tenant where the landlord surrendered the control of premises to the tenants, as long as no fraud or concealment existed.45 The Court accordingly barred the tenants’ recovery against the landlord, explaining that “caveat emptor applies, hence the landlord is not liable for any personal injuries or sickness of tenants, although attributable to the defects in the fixtures.”46 Similarly, the Second District Court of Appeal reaffirmed caveat emptor in real property sales, explaining that simple nondisclosure of material facts is not actionable unless acts or words constituting the active concealment of such material facts accompany the nondisclosure.47 The Second District’s holding served as the Florida courts’ approach to fraudulent nondisclosure until the Johnson decision.48 In the years leading up to Johnson, Florida courts approached caveat emptor with more skepticism and began to limit the doctrine and emphasize exceptions. In Gable v. Silver,49 the Fourth District Court of Appeal extended the implied warranties of merchantability and fitness to new condominium and home
investigation, unless he knows the representation to be false or its falsity is obvious to him.”). The Besett court adopted Sections 540 and 541 of the Restatement (Second) of Torts in reaching its conclusion. Id. at 997. Besett is not limited to real estate transactions and also extends to sales of businesses. Gold v. Perry, 456 So. 2d 1197, 1201 (Fla. 4th Dist. Ct. App. 1984). 44. 25 So. 2d 205 (Fla. 1946), overruled by Mansur v. Eubanks, 401 So. 2d 1328 (Fla. 1981). 45. Id. at 207. After the defendant-landlord stopped providing hot water to plaintiff- tenants in May 1944, the plaintiff-tenants took it upon themselves, with the defendant- landlord’s consent, to provide themselves with hot water. Id. at 205. After the gas from the apartment’s heater exploded and injured one of the plaintiff-tenants, plaintiff-tenants brought suit arguing, inter alia, that the defendant-landlord owed the plaintiff-tenants a duty to warn of the apartment’s defects and that he neglected to issue warnings regarding the heater’s defective condition. Id. at 205–06. 46. Id. at 207. In support, the Court first cited the Supreme Court of Massachusetts’ decision in Mansell v. Hands, 235 Mass. 253 (1920). Id. The Court also cited the Supreme Court of New Hampshire’s decision in Gobrecht v. Beckwith, 82 N.H. 415 (1926). Id. 47. Ramel v. Chasebrook Constr. Co., 135 So. 2d 876, 882 (Fla. 2d Dist. Ct. App. 1961). The First and Fourth District Courts of Appeal subsequently followed this rule. Beagle v. Bagwell, 169 So. 2d 43, 46–47 (Fla. 1st Dist. Ct. App. 1964); Banks v. Salina, 413 So. 2d 851, 852 (Fla. 4th Dist. Ct. App. 1982). 48. Craine, supra note 10, at 362. 49. 258 So. 2d 11 (Fla. 4th Dist. Ct. App. 1972), cert. dismissed, 264 So. 2d 418 (Fla. 1972). Several years later, the Florida Legislature codified the implied warranties for all new condominiums. FLA. STAT. § 718.203 (1976). 118 Stetson Law Review [Vol. 47 purchases, thereby eradicating caveat emptor from such purchases.50 The Court emphasized that its holding was grounded in “present day trends, logic, and practical justice in realty dealings.”51 Despite its decision to deny the petition for rehearing, the Court certified its holding as a question for the Florida Supreme Court.52 The Florida Supreme Court subsequently adopted the Fourth District’s holding, solidifying the departure of caveat emptor from purchases of new condominiums and homes.53 Two years before Johnson, the Florida Supreme Court had the opportunity to extend the implied warranties of habitability and fitness in Gable to property parcel purchases.54 Surprisingly, the Court declined to extend Gable, explaining that the protection afforded to new home purchasers stemmed from the incapability of the prudent purchasers to detect construction defects in homes, and that policy would not be furthered by application to the defective seawall at issue in Conklin.55 Justice Adkins, who notably would author the majority opinion in Johnson56 two years later, dissented from the majority in Conklin, explaining that the “present day trends, logic, and practical justice in realty dealings”57 language in Gable justified extending implied warranties to home improvements.58 Justice Adkins characterized extending Gable as “both logical and just,”59 which foreshadowed his emphasis on fair dealing and equity in the Johnson opinion.60
50. 258 So. 2d at 18. 51. Id. The Johnson court likewise cited principles of modernism and justice in its holding. 480 So. 2d 625, 628 (Fla. 1985). 52. Gable, 258 So. 2d at 18. 53. Gable v. Silver, 264 So. 2d 418, 419 (Fla. 1972) (“[W]e hold that the District Court of Appeal has correctly decided the cause and its decision is adopted as the ruling of this Court.”). With the Court’s adoption of the implied warranties of habitability and fitness in this context, Florida joined fourteen other states that had recognized implied warranties, to one degree or another, for new homes. Gable, 258 So. 2d at 14. By 1983, thirty-three states had recognized such a warranty. Conklin v. Hurley, 428 So. 2d 654, 657 n.2 (Fla. 1983). The scope of the implied warranty of habitability in Florida has recently been debated, however. See FLA. STAT. § 553.835 (2012) (prohibiting homeowners and homeowners’ associations from pursuing causes of action founded in the implied warranties of either fitness and merchantability or habitability for offsite improvements); Mardona Homes, Inc. v. Lakeview Reserve Homeowners Ass’n, 127 So. 3d 1258, 1274 (Fla. 2013) (holding the retroactive application of Section 553.835 as unconstitutional). 54. Conklin, 428 So. 2d at 655. 55. Id. at 658. 56. 480 So. 2d 625. 57. Gable, 258 So. 2d at 18. 58. Conklin, 428 So. 2d at 660–61 (Adkins, J., dissenting). 59. Id. at 661. 60. Johnson, 480 So. 2d at 628. 2017] Striking Down the Impervious Shields 119
The Florida Supreme Court also eradicated caveat emptor from leases of residential real property in 1981 by holding that a residential property owner who leases the property to a tenant bears a duty to “reasonably inspect” the property before leasing it and also to make necessary repairs to ensure that the tenant receives a “reasonably safe dwelling.”61 The Court accordingly overturned its previous decision in Brooks v. Peters, this time acknowledging that landlords frequently stood in better bargaining positions than tenants.62 These limitations joined the already-extant exceptions to caveat emptor, some of which merit attention. The first specific exception is active concealment of a defect. As aforementioned, the Ramel court held that active concealment was an exception to caveat emptor, explaining that mere nondisclosure of material facts was not by itself actionable, although tricks that are used to prevent the purchaser-representee from conducting further inquiry were actionable.63 In other words, a party that fraudulently takes active steps to conceal material facts from another party in a transaction does not receive the protection of caveat emptor. For this reason, part of the Ramel court’s holding highlighted that the buyers could not have observed the lack of necessary pilings, thus implicating a duty to disclose the improper construction because it
61. Mansur v. Eubanks, 401 So. 2d 1328, 1329–30 (Fla. 1981). “It is clear that the doctrine of caveat emptor no longer has any application to leases of residential real property [as demonstrated by] Mansur v. Eubanks . .. .” Haskell Co. v. Lane Co., 612 So. 2d 669, 674 (Fla. 1st Dist. Ct. App. 1993). The New Jersey Supreme Court, on the other hand, eradicated caveat emptor from leasehold interests in property in 1958. Robert H. Shisler, Note, Caveat Emptor Is Alive and Well and Living in New Jersey: A New Disclosure Statute Inadequately Protects Residential Buyers, 8 FORDHAM ENVTL. L.J. 181, 188 (1996) (citing Michaels v. Brookchester, Inc., 140 A.2d 199 (N.J. 1958)). 62. Mansur, 401 So. 2d at 1329–30. As the Florida Supreme Court discussed in Mansur:
We resolve the conflict by overruling Brooks v. Peters ... .
.. .
We do not believe there are sufficient reasons to continue to completely insulate the landlord from liability. We live in an age when the complexities of housing construction place the landlord in much better position than the tenant to guard against dangerous conditions.
Id. (internal citations omitted). 63. Ramel v. Chasebrook Constr. Co., 135 So. 2d 876, 882 (Fla. 2d Dist. Ct. App. 1961). Ramel has been referred to as “[t]he most concise recitation of the Florida rule regarding fraudulent nondisclosure prior to Johnson.” Craine, supra note 10, at 362. 120 Stetson Law Review [Vol. 47 was a non-observable defect.64 The Johnson court would overturn this ruling with respect to residential property sales and leases, equating misfeasance with nonfeasance.65 Still, the exception remains alive and well in commercial real property transactions today.66 The Ramel court’s holding also touched upon another exception to caveat emptor—affirmative material misrepresentations.67 The Florida Supreme Court solidified affirmative material misrepresentations as an exception to caveat emptor in Besett v. Basnett,68 stating that a recipient of a representation may rely on that representation’s truth, even if he could have determined its false nature from an investigation, unless he knows it is false or realizes it is obviously false.69 The Court emphasized that although the law should not encourage a purchaser-representee’s negligence; “negligence is less objectionable than fraud.”70 The Court explicitly disapproved of allowing a party guilty of fraudulent misrepresentation to use caveat emptor as a “shield” to liability.71 Finally, other exceptions to caveat emptor include the existence of a fiduciary or confidential relationship between the buyer and seller,72 and when the parties contract for a higher
64. 135 So. 2d at 879–82. 65. 480 So. 2d at 628. 66. Thibault v. Transact Realty & Inv., 709 So. 2d 593, 595 (Fla. 5th Dist. Ct. App. 1998) (“In the [commercial real property] arena . .. caveat emptor bars only claims for intentional nondisclosure of material facts; the doctrine does not bar claims alleging fraudulent misrepresentations or active concealment.”); Hayim Real Estate Holdings, LLC v. Action Watercraft Int’l, Inc., 15 So. 3d 724, 727 (Fla. 3d Dist. Ct. App. 2009) (“Absent an express agreement, a material misrepresentation or active concealment of a material fact, the seller cannot be held liable for any harm sustained by the buyer or others as the result of a defect existing at the time of the sale.”) (quoting Haskell Co., 612 So. 2d at 671). 67. Ramel, 135 So. 2d at 881–82. The Court held that the defendant-builders’ representation to the plaintiff-buyers that the house was “well constructed and well built” was fraudulent misrepresentation because the defendant-builders knew that the house was poorly constructed and their statement induced the plaintiff-sellers to purchase the home. Id. at 878. 68. 389 So. 2d 995 (Fla. 1980). 69. Id. at 998. In Besett, the sellers of a fishing lodge told the plaintiff-buyers that the property was five and one-half acres large, the roof was brand new, and the lodge’s income was $88,000. Id. at 996. In fact, the property was only one and one-half acres large, the roof was older and leaked, and the lodge’s income was substantially less than $88,000. Id. 70. Id. at 998. 71. Id. For another discussion of material misrepresentations, see Wasser v. Sasoni, 652 So. 2d 411 (Fla. 3d Dist. Ct. App. 1995) (reaffirming Besett and explaining that caveat emptor applies in commercial property transactions). 72. Ramel, 135 So. 2d at 882 (“In the absence of a fiduciary relationship, mere nondisclosure of all material facts . . . is ordinarily not actionable misrepresentation unless 2017] Striking Down the Impervious Shields 121 disclosure obligation.73 Moreover, a party who undertakes to disclose facts to another party must disclose the entire truth, even if that former party did not maintain a duty to disclose the facts.74 Lastly, the Fifth District Court of Appeal has also held that a private cause of action for monetary damages associated with cleaning up an illegal discharge of pollutants exists under Chapter 376 of the Florida Statutes, otherwise known as the Pollutant Discharge Prevention and Control Act, thereby allowing a party to bypass caveat emptor.75
III. JOHNSON AND FUTURA REALTY
This Part examines two principal cases that established the status quo for caveat emptor and the disclosure duty in real property transactions: (A) Johnson v. Davis and (B) Futura Realty v. Lone Star Building Centers (Eastern), Inc.
A. Johnson v. Davis
In 1985, the Florida Supreme Court issued a landmark ruling in Johnson v. Davis, which significantly altered the application of
some artifice or trick has been employed to prevent the representee from making further independent inquiry.”). 73. See RNK Fam. Ltd. P’ship v. Alexander-Mitchell Assocs., 788 So. 2d 1035 (Fla. 2d Dist. Ct. App. 2001) (holding that the trial court erred in dismissing the complaint since, under the parties’ contract, the disclosure obligation pertained only to value). 74. Stackpole v. Hancock, 24 So. 914, 918 (Fla. 1898) As the Florida Supreme Court discussed in Stackpole:
The authorities sustain the view that while a purchaser, situated as Hancock was, is not bound to disclose facts in his knowledge, or to answer inquires as to such facts, yet, if he undertakes to do so, he must disclose the whole truth, without concealment of material facts, and without doing anything calculated to prevent an investigation on the part of the seller . . . .
Id. 75. Kaplan v. Peterson, 674 So. 2d 201, 205 (Fla. 5th Dist. Ct. App. 1996). The Court nonetheless certified this question to the Florida Supreme Court, which subsequently dismissed review of the case. Phelps v. Kaplan, 687 So. 2d 1305 (Fla. 1997). Notably, the Second District Court of Appeal is at odds with Kaplan, holding that no private cause of action exists under Chapter 376. Mostoufi v. Presto Food Stores, Inc., 618 So. 2d 1372, 1377 (Fla. 2d Dist. Ct. App. 1993) (reaffirming that caveat emptor still applies in commercial real property transactions and thus shields commercial real property sellers from liability). 122 Stetson Law Review [Vol. 47 the caveat emptor doctrine in Florida.76 In Johnson, the Davises entered into a contract with the Johnsons to purchase the Johnsons’ three year-old home for $310,000.77 Pursuant to the contract, the Davises were required to make a $5,000 down payment and then subsequently pay the Johnsons a $26,000 deposit within the next five days.78 After the Davises paid the $5,000 down payment, but before they made the $26,000 deposit, Mrs. Davis noticed peeling plaster and buckling near a window frame in the house’s family room, as well as stains on the ceilings in both the kitchen and the family room.79 When Mrs. Davis inquired about these conditions, Mr. Johnson informed her of a prior problem with the window that had been corrected.80 He also stated that the wallpaper glue and the moving of ceiling beams had caused the stains on the ceilings, and evidence at trial showed that the Johnsons “affirmatively repeated to the Davises that there were no problems with the roof.”81 Days later, after the Davises paid the $26,000 deposit, Mrs. Davis came home to water pouring into the house from the family room ceiling, the glass doors, the light fixtures, the stove, and around the window frame.82 The Davises subsequently hired three roofers, who deduced that the roof was inherently defective and “slipping.”83 The Davises filed a complaint against the Johnsons, alleging fraud and misrepresentation among other counts.84
76. See Whilden S. Parker, The Return of the Pink Panther or Johnson v. Davis, Redux, 78 FLA. B.J. 29, 29 (June 2004) (describing the decision as “one of those decisions unarguably entitled to be included in the list of those anointed as ‘landmark’”). 77. Johnson v. Davis, 480 So. 2d 625, 626 (Fla. 1985). Adjusted for inflation, $310,000 in 1982 is equivalent to roughly $760,000 in 2015. U.S. Bureau of Labor Statistics, CPI Inflation Calculator, U.S. DEP’T OF LABOR, http://www.bls.gov/data/inflation_calculator.htm (last visited June 20, 2017). 78. Johnson, 480 So. 2d at 626. The contract also provided that the Davises had the right to obtain a licensed roofer’s written report providing that the roof was “in a watertight condition,” and that the Johnsons were to pay for any roofing repairs that were made by a licensed roofer. Id. The contract also stated that the “prevailing party” would receive payment of all reasonable fees and costs arising from any contract litigation. Id. 79. Id. at 626. 80. Id. 81. Id. at 627. At trial, the parties disagreed on whether Mr. Johnson had ever represented to Mrs. Davis that there had “never been any problems” with the ceilings or roof. Id. at 626 (emphasis added). 82. Id. 83. Id. The roofers also explained that the only way that the Davises would receive a “watertight” roof would be to purchase a new $15,000 roof. Id. The Johnsons’ roofers, on the other hand, believed that they could mend the leaks in the roof, and thus make the roof “watertight” for less than $1,000. Id. 84. Id. 2017] Striking Down the Impervious Shields 123
In its ruling, the Florida Supreme Court departed from the caveat emptor doctrine.85 The Court first examined the distinction in tort law between misfeasance and nonfeasance, acknowledging that the difference is simple in theory, yet often difficult in practice.86 To highlight this, the Court correctly pointed out that little distinction can be made between active concealment and affirmative misrepresentations, as both violate good faith and fair dealing principles and both have the same consequences.87 The Court used this lack of distinction to criticize the decisions of lower Florida courts, including the Ramel court and the Banks court, which had held that nonfeasance cannot result in liability.88 Justice Adkins, writing for the majority, emphasized the importance of equity, justice, and fair dealing, describing such cases as “unappetizing . . . not in tune with the times and . . . not [in] conform[ance] with current notions of justice, equity and fair dealing.”89 The conclusion to draw from this language is that the Court sought to modernize the approach to caveat emptor, just as Justice Adkins had advocated for in Gable. In addition, the Court desired to follow the lead of other states that had restricted the doctrine’s application. In what is now a well-recognized quote from the opinion, Justice Adkins proclaimed: “One should not be able to stand behind the impervious shield of caveat emptor and take advantage of another’s ignorance.”90 The Court looked to Lingsch v. Savage,91 a case from the California First District Court of Appeal that summarized the relevant California law as imposing a duty on the seller to disclose facts materially affecting a property’s value or desirability, if the facts are known or are only accessible to the seller and the seller additionally knows that the buyer does not know the facts or the
85. Id. at 629. By comparison, the Colorado Supreme Court had eradicated caveat emptor from new home sales more than twenty years before the Florida Supreme Court decided Johnson. Carpenter v. Donohoe, 388 P.2d 399, 402 (Colo. 1964) (codifying the dicta from a previous case that eradicated caveat emptor). 86. Johnson, 480 So. 2d at 628. 87. Id. 88. Id. (citing Ramel v. Chasebrook Constr. Co., Inc., 135 So. 2d 876 (Fla. 2d Dist. Ct. App. 1961); Banks v. Salina, 413 So. 2d 851 (Fla. 4th Dist. Ct. App. 1982)). 89. Johnson, 480 So. 2d at 628. The New Jersey Supreme Court used similar language when it established a duty for used home sellers to disclose known, unobservable defects to buyers, citing “modern concepts of justice and fair dealing.” Weintraub v. Krobatsch, 317 A.2d 68, 75 (N.J. 1974). 90. Johnson, 480 So. 2d at 628. 91. 29 Cal. Rptr. 201 (Cal. 1st Dist. Ct. App. 1963). 124 Stetson Law Review [Vol. 47 facts are not “within the reach of [his] diligent attention and observation.”92 The Court also highlighted that other jurisdictions had adopted the same approach.93 The Court accordingly fashioned its rule: “[W]here the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.”94 The Second District Court of Appeal recently provided a helpful breakdown of this rule’s elements: (1) the residential property’s seller has knowledge of the property’s defect; (2) this defect materially affects the residential property’s value; (3) the purchaser of the property does not know of the defect, and the defect is not readily observable to him; and (4) the residential property’s purchaser demonstrates that the property’s seller failed to disclose this defect to the property’s purchaser.95 The materiality of a fact affecting the property’s value is an objective analysis—not a subjective analysis—that centers on the relationship between the property’s value and the undisclosed fact.96 Furthermore, the undisclosed fact in a Johnson nondisclosure action focuses on a fact that “materially affect[s] the actual value of property,”97 rather than “material facts affecting the value of the property.”98 Notably, Johnson simply requires the seller to have knowledge of the facts that allegedly materially affect the property’s value, not an intention to fail to disclose the
92. Johnson, 480 So. 2d at 628 (quoting Lingsch, 29 Cal. Rptr. at 204). 93. The Court examined a case from the First District of the Illinois Appellate Court, in which that court adopted the Lingsch rule. Id. at 628–29 (citing Posner v. Davis, 395 N.E.2d 133 (Ill. App. Ct. 1979)). The Court also examined cases from numerous other jurisdictions, including Nebraska, West Virginia, New Jersey, and Colorado. Id. 94. Id. at 629. Under this rule, the Court held that the Johnsons had fraudulently concealed facts materially related to the property’s value from the Davises, as the Johnsons knew that there had been problems with the roof, as Mr. Johnson’s testimony demonstrated, and they had failed to disclose the defects to the Davises. Id. Practitioners now refer to this cause of action as a “Johnson non-disclosure” action. Parker, supra note 76, at 30. 95. Jensen v. Bailey, 76 So. 3d 980, 983 (Fla. 2d Dist. Ct. App. 2011). 96. Billian v. Mobil Corp., 710 So. 2d 984, 987 (Fla. 4th Dist. Ct. App. 1998) (citing Johnson, 480 So. 2d at 629) (noting that a subjective standard would depart from the Johnson holding). 97. Id. (citing Johnson, 480 So. 2d at 629) (emphasis added). 98. Id. (citing Dorton v. Jensen, 676 So. 2d 437 (Fla. 2d Dist. Ct. App. 1996)) (drawing the distinction between the two, but acknowledging that the Dorton court was not widening the scope of the Johnson rule). For a recent case discussing facts that allegedly affected a value’s property, see Eiman v. Sullivan, 173 So. 3d 994 (2015) (holding that the purchaser- appellees had failed to establish the existence of a fact materially affecting the property’s value). 2017] Striking Down the Impervious Shields 125 facts,99 but the buyer must prove that the seller had actual knowledge.100 Recent holdings also establish that the inclusion of an “as is” clause in a contract between the parties in a residential property sales transaction does not waive this Johnson nondisclosure duty.101 Whether a buyer can waive the Johnson nondisclosure duty, however, appears to remain undecided.102 Despite extensively criticizing caveat emptor and advocating for a more modern and fair approach, the Johnson court’s rule specifically mentioned residential property sellers, rather than sellers generally. However, the next sentence of the opinion reads: “This duty is equally applicable to all forms of real property, new and used.”103 There are two ways to read these sentences and interpret the Court’s ruling. The first way is to interpret the Johnson nondisclosure duty as applying to both residential and commercial property, as evidenced by the Court’s underlying disgust for caveat emptor and its emphasis that the duty applies to all forms of real property, not all forms of residential real property.104 The second interpretation—the interpretation adopted by lower courts after Johnson—is that the Johnson nondisclosure
99. Billian, 710 So. 2d at 988–89. 100. Jensen, 76 So. 3d at 983 (holding that the buyer must establish the seller’s actual— not constructive—knowledge, in order to prove liability under Johnson). 101. Bowman v. Barker, 172 So. 3d 1013, 1016 (Fla. 1st Dist. Ct. App. 2015); Solorzano v. First Union Mortg. Corp., 896 So. 2d 847, 849–50 (Fla. 4th Dist. Ct. App. 2005); Syvrud v. Today Real Estate, Inc., 858 So. 2d 1125, 1130 (Fla. 2d Dist. Ct. App. 2003). An “as is” clause provides that the buyer understands that the seller has not made any representations regarding the property’s environmental condition, and that the buyer relies on his own investigation in determining whether to buy the property. FLA. BAR CONTINUING LEGAL EDUC., FLORIDA REAL PROPERTY COMPLEX TRANSACTIONS § 12.33 (7th ed. 2013). 102. Syvrud, 858 So. 2d at 1131 n.2. In Syvrud, the buyers of a townhouse condominium brought a Johnson claim against the sellers of the unit and the listing broker. Id. at 1126. The listing broker argued that buyers had waived their right to pursue a Johnson claim against the sellers and the listing broker by signing an addendum to the sales contract, which relinquished the sellers and the listing broker from any duty to disclose defects materially affecting the property’s value. Id. The Court held that the contract did not allow the seller and listing broker to waive any disclosure duty and, therefore, the Court declined to decide whether a property purchaser can waive the Johnson nondisclosure duty. Id. at 1131. The Court noted, however, that its own “independent research has not disclosed[] a Florida case squarely deciding this issue.” Id. at 1131 n.2. It is also worth noting, by comparison, that if a person accepts a quitclaim deed, that person is presumed to have assented to the acceptance of that property’s title, “subject to all risks as to defects and encumbrances.” 19 FLA. JUR. 2D Deeds § 8 (WestLaw Next through May 2017) (citing Morris v. Osteen, 948 So. 2d 821 (Fla. 5th Dist. Ct. App. 2007)). 103. Johnson v. Davis, 480 So. 2d 625, 629 (Fla. 1985) (emphasis added). 104. Id. This is the approach that Futura Realty took six years later in Futura Realty v. Lone Star Building Ctrs. (E.), Inc., 578 So. 2d 363, 364 (Fla. 3d Dist. Ct. App. 1991). The purchasers in Green Acres, Inc. v. First Union Nat’l Bank of Fla. made this argument, too. 637 So. 2d 363, 365 (Fla. 4th Dist. Ct. App. 1994). 126 Stetson Law Review [Vol. 47 duty applies only to residential real property, as the Court’s express language demonstrated. This interpretation demands that “all forms of real property” be read as referring to “new and used” forms of real property, not to different land use categorizations.105
B. Futura Realty v. Lone Star Building Centers (Eastern), Inc.
It was initially unclear how far the Johnson nondisclosure rule extended and whether Johnson applied to commercial real property transactions.106 Six years after Johnson, though, the Third District Court of Appeal drew a line between residential property and commercial property transactions. In Futura Realty v. Lone Star Building Centers(Eastern), Inc.,107 the Third District Court of Appeal addressed a party’s assertion that Johnson applied to commercial real property transactions. Futura Realty was a corporate owner of a plot of property in Dade County that alleged that the previous owner, Stanley Davidson, defrauded Futura by failing to disclose that the property contained pollution until after the purchase.108 Futura based its fraudulent concealment claim on the Florida Supreme Court’s then-recent holding in Johnson, claiming that Davidson was liable because “[he] knew of the site’s pollution prior to the site’s sale to Futura and that because Davidson did not inform Futura as to the pollution and because the pollution was not readily observable.”109 The Third District Court of Appeal took a different view, however, disagreeing that Johnson controlled.110 The Court first distinguished Johnson by emphasizing that Johnson addressed residential property and dealt with false statements of home vendors.111 The Court’s synopsis of Johnson also implied that the case could be distinguished because the Johnsons’ statements were
105. Johnson, 480 So. 2d at 629. 106. See Craine, supra note 10, at 367–68 (explaining that, in 1986, Johnson appeared to apply to commercial and residential real estate transactions, yet questioning the liability of real estate brokers and the requisite type of undisclosed defect). 107. 578 So. 2d 363 (Fla. 3d Dist. Ct. App. 1991). 108. Id. at 364. Futura also alleged that Davidson, CSX Transportation, and Lone Star Building Centers were all strictly liable for the pollution. Id. 109. Id. 110. Id. 111. Id. (“[T]he purchasers of a home brought an action against the home’s vendors relying on the vendor’s false statement that there was no problem with the home’s roof.”) (emphasis added). 2017] Striking Down the Impervious Shields 127 made to induce the Davises to purchase the home.112 The Court then recognized the Florida Supreme Court’s holding that the Johnson nondisclosure duty applied to all forms of real property, believing it to be the basis of Futura’s claim, but held that “the statement[,] when read in context . . . clearly applies solely to the sale of homes.”113 To support this apparent proclamation, the Court explained that the Johnson court never expressly ruled that the duty to disclose existed in commercial property sales and that the cases the Johnson court relied upon did not pertain to commercial real property.114 Therefore, according to the Court, Johnson did not “address or change the long line of case law establishing caveat emptor as the rule in the sale of commercial property”115 and thus, “Johnson simply does not impose a duty of disclosure in a commercial setting.”116 The most glaring error in the Court’s rationale was overlooking Justice Adkins’s emphasis on fair dealing and equity. The consequences of caveat emptor had repulsed the Florida Supreme Court to the point of limiting the doctrine and adopting the approach of many other jurisdictions, so as to prevent sellers from using the “impervious shield of caveat emptor.”117 Faced with the opportunity to underscore the Johnson court’s call for fair dealing, equity, and justice, the Third District Court of Appeal instead maintained the very injustice that the Johnson court had criticized, by holding that purchasers of commercial real property did not receive the same protections as residential real property purchasers. Further, by focusing on the fact that the Johnson court never expressly stated that the disclosure duty was present in commercial real property sales, the Third District Court ignored the Johnson court’s rationale entirely. The Court prevented the extension of equity and fair dealing to commercial property
112. The Court first stated its belief that Johnson did not control and then offered a summary of Johnson as a premise for this belief. Id. The Court then added “further” to introduce its next premise. Id. This use of “further” proves that the Court was adding a premise, thereby implying that at least one premise preceded it. 113. Id. (emphasis added). 114. Id. 115. Id. (citing Conklin v. Hurley, 428 So. 2d 654 (Fla. 1983)). The Court essentially relied on precedent, rather than justifying the precedent, in citing Conklin because, as discussed infra, the Conklin explanatory parenthetical failed to specifically mention how Conklin “establish[ed] caveat emptor as the rule in the sale of commercial property.” Id. 116. Id. at 364–65. 117. Johnson v. Davis, 480 So. 2d 625, 628 (Fla. 1985). 128 Stetson Law Review [Vol. 47 transactions, thereby reinforcing the inferior bargaining position of commercial property purchasers and lessees. Lastly, the Court noted the “long line of cases” supporting caveat emptor in commercial property sales, yet it only cited Conklin for support.118 This approach is problematic because Conklin did not establish caveat emptor in commercial property sales—rather, as aforementioned, the Conklin court merely rejected the extension of implied warranties to property parcel purchases.119 Unfortunately, both the Second and Fourth District Courts of Appeal have since declined to extend the Johnson duty to commercial real property transactions.120 These cases have thus effectively allowed sellers of commercial real property to hold onto their impervious shields.
IV. THE RESULTING INCONSISTENT STANDARDS
Unsurprisingly, the Third District Court’s decision to depart from the Johnson court’s underlying policy, as well as its language rejecting the applicability of a duty to disclose to all forms of real property, demanded the courts to analyze whether the property is residential or commercial when evaluating whether caveat emptor applies. The Florida Supreme Court also shoulders some of the blame for failing to qualify the limits of its holding. Regardless, this results in an inconsistent standard, in which commercial property buyers and lessees now receive less protection than residential property purchasers and lessees. Consequently, the law is restrained in providing fair dealing to buyers and lessees of commercial real property. This Part (A) first examines a case from the First District Court of Appeal, which highlights the problems that the inconsistent standard poses. The next Part (B) analyzes a case that has further muddied the waters.
118. Futura Realty, 578 So. 2d at 364 (citing Conklin, 428 So. 2d at 654). 119. Conklin, 428 So. 2d at 658. In fact, since the Conklin court emphasized consumer protection as one of its reasons for declining to extend the implied warranty of Gable, the Futura Realty court’s citation to Conklin seems even more misguided. Id. at 659. 120. Mostoufi v. Presto Food Stores, Inc., 618 So. 2d 1372, 1377 (Fla. 2d Dist. Ct. App. 1993) (acknowledging the criticism that caveat emptor has received, but stating that the “application has not yet been abrogated” and that there was not a duty to disclose “even if caveat emptor did not apply to commercial real estate transactions”), overruled in part by Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 28 (Fla. 2004); Green Acres, Inc. v. First Union Nat’l Bank of Fla., 637 So. 2d 363, 365 (Fla. 4th Dist. Ct. App. 1994) (declining to consider whether Johnson ought to extend to commercial real property transactions with added limitations). 2017] Striking Down the Impervious Shields 129
A. The Problems with the Inconsistency
In 1993, eight years after Johnson was handed down and only two years after the Third District Court’s holding in Futura Realty, the First District Court of Appeal recognized that there is little justification for affording different protections to property purchasers based on land use categorizations.121 In Haskell Co. v. Lane Co.,122 Haskell entered into a contract to construct a commercial building for Lane, the owner of the property.123 In 1981, after the building was constructed, Lane entered into a lease with Wilson, a third party that would later become a wholly-owned subsidiary of Service Merchandise, and also sold the structure to First Capital Income Properties, Ltd.124 Unfortunately, part of the building’s roof collapsed during a rainstorm in 1986, which injured customers shopping in the building, and damaged Service Merchandise’s property.125 Service Merchandise and Wilson filed suit against Lane and Haskell, arguing that Haskell had constructed the roof negligently and that Lane was also negligent in failing to disclose the allegedly inadequate drainage system or at least ensure that the problems with the roof were fixed.126 Haskell brought a cross-claim against Lane, asserting that Lane was contributorily liable because Lane failed to fix the roof when it “knew or should have known” that the drainage system was faulty.127 The trial court had granted summary judgment for Lane, finding that the building constituted commercial property and thus caveat emptor barred any negligence claim against Lane.128 After reviewing the doctrine’s history and decisions from its sister circuits, including the Third District Court’s holding in Futura Realty, the First District Court concluded that caveat
121. Haskell Co. v. Lane Co., 612 So. 2d 669, 675 (Fla. 1st Dist. Ct. App. 1993) (“Is it reasonable to assume that a prospective buyer (or lessee) of commercial property is significantly more likely to be capable of examining the property to determine whether hidden defects exist than is a prospective buyer (or lessee) of residential property?”). 122. Id. at 669. 123. Id. at 670. 124. Id. 125. Id. 126. Id. 127. Id. 128. Id. at 671. 130 Stetson Law Review [Vol. 47 emptor still applies to commercial real property leases and sales.129 On this basis, the Court ruled—with clear reluctance—that caveat emptor precluded recovery against Lane since the property at issue was commercial property.130 With intent to make its reluctance known, the Court used its decision as an opportunity to criticize caveat emptor and its continued application: “It seems to us that there is little justification for continuing to draw a distinction between transactions involving residential real property and transactions involving commercial real property.”131 While acknowledging that the Florida Supreme Court was the appropriate court to eradicate the doctrine entirely from real property transactions, the First District Court stated that “the time ha[d] come to add caveat emptor to the trash heap of discarded legal doctrines.”132 The Court instead required full disclosure of all facts materially affecting the property’s condition or value to buyers and lessees in real property transactions.133 Likewise, other District Courts of Appeal have acknowledged the chorus of criticism that caveat emptor has received.134 In closing, the Haskell court certified the following question to the Florida Supreme Court: “Should the common law doctrine of caveat emptor continue to apply to commercial real property
129. Id. at 674. To support its conclusion that caveat emptor still applied to commercial real property sales, the First District Court cited only Futura Realty. Id. (citing Futura Realty v. Lone Star Bldg. Ctrs. (E.), Inc., 578 So. 2d 363 (Fla. 3d Dist. Ct. App. 1991), review denied, 591 So. 2d 181 (Fla. 1991)). The Court cited Veterans Gas Co. v. Gibbs, 538 So. 2d 1325 (Fla. 1st Dist. Ct. App. 1989) for support that caveat emptor still applied to commercial property leases. Id. In Veterans Gas Co., a landlord leased an office building to Way and Associates, Inc., which employed people on the leased premises. 538 So. 2d at 1326. Two employees were injured in a gas explosion at the office because a Way subcontractor had previously bent a copper gas line. Id. at 1326–27. The Court reiterated that caveat emptor was alive and well with respect to commercial property leases since Mansur was limited to residential dwellings. Id. at 1327. 130. Haskell Co., 612 So. 2d at 674. 131. Id. at 675. 132. Id. at 675–76. 133. Id. at 675 (“[T]he time has come to add caveat emptor to the trash heap of discarded legal doctrines . .. . In its place, we would require in all real property transactions (sales or leases) full disclosure to the buyer or lessee of all facts material to either the value or the condition of the property.”). The Court also noted that such a duty to disclose would “extend only to the buyer.” Id. 134. See Green Acres, Inc. v. First Union Nat’l Bank of Fla., 637 So. 2d 363, 365 (Fla. 4th Dist. Ct. App. 1994) (reviewing the Haskell court’s criticism of caveat emptor before explicitly declining to consider whether Johnson should be extended to commercial real property transactions with added limitations); Kaplan v. Peterson, 674 So. 2d 201, 203 (Fla. 5th Dist. Ct. App. 1996) (“However, although questioned and criticized, the doctrine still prevails in Florida with regard to sales of commercial real property.”) (footnote omitted). 2017] Striking Down the Impervious Shields 131 transactions; and, if not, with what legal principles should it be replaced?”135 Twenty-three years later, the Florida Supreme Court has yet to answer this question.136 The issues raised by the Haskell court highlight the faults with continuous application of caveat emptor to commercial real estate transactions. These faults persist today. Can a true distinction be made between allegedly sophisticated commercial property investors and simpler, ordinary purchasers? Should such alleged sophistication bar the law’s protection?
B. Further Muddying the Waters
Unfortunately, the failure to eradicate caveat emptor from commercial property sales and leases—and to provide equal protection for commercial property purchasers and lessees—is further complicated by the courts’ failure to establish a bright line between residential property and commercial property. Consequently, this failure creates further harm to purchasers in the real estate market since a court may classify a commercial property as a residential property or a residential property as a commercial property. In Agrobin, Inc. v. Botanica Development Associates, Inc.,137 Robinson formed a corporation called Agrobin for the purpose of purchasing a condominium unit.138 He subsequently bought a condominium unit on Key Biscayne from Botanica Development Associates, which was to be used as a vacation home.139 Agrobin additionally rented out the apartment, however.140 Two years after the purchase, the owners of the apartment unit beneath Agrobin’s roof terrace filed suit against both Agrobin and Botanica for damages caused by leaks.141 Agrobin brought a cross-claim against Botanica for contribution, asserting that Botanica failed to disclose the problem under Johnson.142
135. Haskell Co., 612 So. 2d at 676. 136. See Serv. Merch. Co. v. Lane Co., 620 So. 2d 762 (Fla. 1993) (acknowledging the Petitioner’s Voluntary Notice of Dismissal and subsequently dismissing the Petition for Review). 137. 861 So. 2d 445 (Fla. 3d Dist. Ct. App. 2003). 138. Id. at 446. 139. Id. 140. Id. 141. Id. 142. Id. 132 Stetson Law Review [Vol. 47
In a one-page per curiam opinion, the Court reasoned that the condominium was a commercial property simply because the plaintiff had used a corporation to purchase the apartment for the purpose of a commercial venture.143 The Court accordingly concluded that Botanica, as the seller, had not been under “a duty to disclose.”144 The noticeable problem with the Court’s holding is it is divorced from precedent, like Johnson145 and Futura Realty,146 in which the nature of the property itself was used to determine whether the property was residential or commercial. Agrobin sets a dangerous precedent, though, by shifting the focus from an analysis of the nature of the property itself to the buyer’s intended use.147 Agrobin thus serves as an additional hurdle in real estate transactions, at least for purchasers. Under Agrobin, purchasers of mixed-use properties face inconsistent treatment since courts have failed to fashion a test for separating uses or distinguishing residential property from commercial property. For example, imagine that Abe wants to purchase a building from Bob, intending to use that building as his real estate office. In order to afford the building, however, Abe must sell his or her home. After doing so, Abe uses the profits from the home sale to purchase the building from Bob. While looking for a new home, Abe temporarily moves into the vacant building, sleeping there every night for a few weeks. One night during a rainstorm, the building’s roof collapses while Abe is asleep, causing serious injury to Abe. Subsequently, Abe comes to learn that the roof had been fixed many times in the past for similar problems and that Bob knew of these previous problems, but did not disclose these problems to Abe. In light of Agrobin, Abe likely is unfortunately barred from bringing a claim against Bob because Abe intended to use the building as a real estate office, not a home. Therefore, Agrobin adds another level of analysis to real estate transactions and has the ability to further deprive purchasers of the protection of Johnson.
143. Id. 144. Id. 145. Johnson v. Davis, 480 So. 2d 625 (Fla. 1985). 146. Futura Realty v. Lone Star Bldg. Ctrs. (E.), Inc., 578 So. 2d 363 (Fla. 3d Dist. Ct. App. 1991). 147. Whilden S. Parker, Commercial vs. Residential Issue—Agrobin Decision, 78 FLA. B.J. 7 (2004) (“It seems that the Third DCA has fashioned a rule that the buyer’s intended use determines whether a transaction is commercial or residential.”). 2017] Striking Down the Impervious Shields 133
V. THE SOLUTION
The failure to abandon the caveat emptor doctrine and impose a duty to disclose on the seller in commercial real estate leases and sales transactions is harmful to prospective purchasers and lessees. This Part begins by (A) examining the Johnson nondisclosure action and arguing that the Florida Legislature should provide a broad definition for nondisclosure, and apply this standard to both residential and commercial real estate leases and sales. Included in this discussion is an examination of how other states have limited caveat emptor, as well as policy considerations. This Part next argues that (B) alternatively, if the Florida Legislature does not eradicate the caveat emptor doctrine from commercial property sales and leases, it should at least establish a bright line for distinguishing between residential real property and commercial property.
A. Extending the Johnson Nondisclosure Duty to Commercial Real Property Transactions
As extensively discussed above, one of the gravest problems with the failure to extend the Johnson nondisclosure duty to commercial real estate transactions is that purchasers and lessees of commercial real property do not receive the same protection as the purchasers and lessees of residential real property. This violates the principles of fair dealing, equity, and justice that the Johnson court stressed. Due to the courts’ reluctance to extend Johnson to commercial real property transactions, commercial property sellers and lessors still maintain their impervious shields of caveat emptor—they are liable only for active concealments of known defects and material misrepresentations of the property’s condition, but nondisclosure of a known defect is not actionable. The time has come to extend the Johnson nondisclosure duty. Overall, the Johnson rule is a good standard. First, the standard is properly centered on the economics of the transaction by focusing on facts that materially affect the property’s value. Naturally, any buyer or lessee is going to be concerned with the facts that materially affect the property’s value. Hence, the Johnson standard seeks to safeguard buyers and lessees from severe economic loss. On the flip side of the coin, buyers and lessees may learn that the property is actually of a higher value than 134 Stetson Law Review [Vol. 47 advertised if the seller discloses a condition that materially affects the property’s value in a positive way. Additionally, the standard utilized to determine materiality, as expressed in Billian v. Mobil Corp, properly requires an objective determination rather than a subjective determination.148 Like all objective standards, this objective standard is a uniform standard of relevant law rather than a varying standard. In other words, an objective standard ensures that each purchaser’s conduct is measured against the same standard.149 Still, the Johnson standard is not blemish-free. The Johnson standard has received criticism before for neglecting to explain what constitutes a nondisclosure.150 Attorney Whilden S. Parker posited a solution to this problem by pointing to the partial disclosure exception to caveat emptor, which, as aforementioned,151 states that a partial disclosure of facts mandates full disclosure of those facts.152 Mr. Parker explained that the partial disclosure exception provided the solution to the Florida Supreme Court’s failure to supply a definition for nondisclosure because, by definition, a seller who discloses only some facts has inherently failed to disclose other facts, and thus, the partial disclosure exception to the doctrine kicks in.153 Mr. Parker accordingly advocated that juries should be instructed that a defendant’s partial disclosure does not satisfy his legal duty to disclose.154 Mr. Parker’s conclusion not only utilizes one of the well- established exceptions to caveat emptor, but it is also consistent with the Johnson court’s notions of justice, equity, and fair dealing. An example is illustrative here: imagine the seller of a home discloses to the buyer that the home has had a problem in the past month with its support beams bending, but the necessary repairs
148. 710 So. 2d 984, 987 (Fla. 4th Dist. Ct. App. 1998) (citing Johnson, 480 So. 2d at 629). The Johnson standard was criticized in the 1980s for lacking guidance on how to define the material effect of a nondisclosed fact, but Billian corrects this problem. See Craine, supra note 10, at 368–69 (advocating for an objective standard). 149. See Kevin Jon Heller, Beyond the Reasonable Man? ASympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases, 26 AM. J. CRIM. L. 19 (1998) (examining the objective standard of reasonableness in criminal law). 150. See, e.g. Parker, supra note 76, at 32 (questioning whether “any suggestion of a specific problem get[s] the seller off the hook.”). 151. Supra Part II. 152. Parker, supra note 76, at 32. 153. Id. Mr. Parker noted that the “only qualifier” is that such undisclosed facts are concealed and materially affect the property’s value. Id. 154. Id. 2017] Striking Down the Impervious Shields 135 were made. The seller further somehow relays to the buyer that he does not know of any material facts affecting the home’s value or condition. In reality, however, the support beams were repaired five times within the preceding three months to prevent the home from caving in and the beams will almost certainly have to be repaired again. This seller certainly does not engage in fair dealing. Such examples of fraud are one of the reasons why the Johnson court sought to protect homebuyers. Yet, while the solution serves as a laudable first step, it falls into the same trap that all disclosures in Florida fall into: failure to mandate written disclosures. In Florida, sellers may make disclosures either in writing or orally.155 Florida law requires certain disclosures in real property sales.156 Parties frequently utilize form contracts, such as the FR/FB Contract157 and the CRSP-13,158 in residential property sales.159 However, both the FR/FB Contract and the CRSP-13 merely restate the Johnson nondisclosure duty and do not provide any space in their respective disclosure sections for the seller to make specific, written disclosures.160 While the form contracts mandate the seller’s disclosure for certain conditions, these conditions are extremely specific, such as radon gas levels and mold.161 For commercial property sales, the Florida Bar acknowledges that “written representations and warranties by the seller” may afford “some measure of protection” to the buyer “in view of the seller’s superior knowledge,” but admits that negotiations between the parties on such provisions are often quarrelsome and controversial.162 Oddly enough, the failure to mandate written disclosures ends up providing buyers and lessees with too much protection. The failure of Florida law to mandate written disclosures is that buyers
155. See Rebecca Taylor, Selling a Florida Home: What Are My Disclosure Obligations?, NOLO, http://www.nolo.com/legal-encyclopedia/florida-home-sellers-disclosures-required- under-state-law.html (last visited July. 7, 2017) (referencing Johnson, discussed supra Part III(A)). It is worth noting that disclosures of certain real estate broker or agent’s duties to a residential property buyer or seller must be written or somehow documented. See FLA. STAT. § 475.278 (2017) (specifying required disclosures in authorized brokerage relationships). 156. FLORIDA REAL PROPERTY SALES TRANSACTIONS § 3.46 (8th ed. 2015). 157. Members of the Florida Bar and the Florida Association of Realtors developed the FR/FB form. Id. § 3.12. 158. Unlike the FR/FB Contract, the development of the CRSP-13 did not involve members of the Florida Bar, but merely the Florida Association of Realtors’ legal staff. Id. 159. Id. 160. Id. §§ 3.64, 3.66. 161. Id. 162. FLORIDA REAL PROPERTY COMPLEX TRANSACTIONS § 1.48 (7th ed. 2013). 136 Stetson Law Review [Vol. 47 and lessees can end up relying on oral disclosures, which are later difficult for a seller to prove in a lawsuit from the buyer or lessee.163 In other words, the combination of the Johnson ruling and the failure to mandate written disclosures in residential real estate transactions affords so much protection to buyers and lessees that it comes at the expense of the seller. It is still possible to maintain the protections of Johnson and institute mandatory written disclosures in all real estate transactions. In fact, many jurisdictions have similarly limited caveat emptor and required mandatory written disclosures in real estate transactions.164 For example, the Alaska Legislature passed the Disclosures in Residential Real Property Transfers law in 1992 that required such mandatory disclosures, due to similar concerns that the buyers were afforded too much protection.165 Similarly, Iowa has retreated from imposing caveat emptor in real property transactions by requiring all real property sellers to complete disclosure forms relating to property’s condition, characteristics, and structures.166 Therefore, for all the aforementioned reasons, the Johnson nondisclosure rule should be maintained in residential property transactions, extended to commercial real property transactions, and the Florida Legislature should require written disclosures in all real property transactions. Proponents of caveat emptor argue that there is some justification for retaining caveat emptor in the context of commercial real property transactions. First, they point out that the doctrine is premised on the idea that sophisticated parties do not deserve the law’s protection because they can fend for themselves.167 In this respect, caveat emptor embraces basic freedom to contract principles and dispenses with any assumption
163. See Taylor, supra note 155. Significantly, however, the Florida Legislature has required residential property sellers to present prospective purchasers with a disclosure summary of the residential property’s ad valorem taxes.FLA. STAT. § 689.261 (2017). 164. E.g., ALASKA STAT. § 34.70.010 (2015); CAL. CIV. CODE § 1102.1 (2000); HAW. REV. STAT. § 508D-3.5 (2013); IOWA CODE § 558A.2 (2010). 165. James R. Pomeranz, The State of Caveat Emptor in Alaska As It Applies to Real Property, 13 ALASKA L. REV. 237, 242 (1996). The Alaska Supreme Court even went as far as to hold a real estate broker liable under the same rationale for an “innocent misrepresentation.” Id. at 245; Unlike Florida, Alaska had already limited caveat emptor in all real property sales by that point. See Cousineau v. Walker, 613 P.2d 608, 616 (Alaska 1980) (holding “that a purchaser of land may rely on material representations made by the seller and is not obligated to ascertain whether such representations are truthful”). 166. IOWA CODE § 558A.4(1) (2010); Arthur v. Brick, 565 N.W.2d 623, 625–26 (Iowa Ct. App. 1997). 167. Supra Part III(B). 2017] Striking Down the Impervious Shields 137 that the parties have equal bargaining positions.168 Departure from freedom to contract in commercial property transactions, in which the parties are expected to bear a higher level of sophistication, can thus be viewed as unnecessary and having the possibility to paralyze business transactions.169 Eliminating caveat emptor in commercial property transactions could also effectively diminish the seller’s bargaining position.170 Proponents have also distinguished commercial property purchasers from residential property purchasers, recognizing a commercial property purchaser as an “income-seeker.”171 Perhaps the Florida Supreme Court summed up this position best in Conklin, noting that “the investor may always choose to invest his excess capital elsewhere. [Whereas][t]he typical family looking for a residence not only is seeking the basic necessity of shelter, but often must do so within the time constraints imposed by career demands.”172 Thus, under this argument, elimination of the doctrine from commercial property transactions is not justified because commercial purchasers are not as vulnerable as residential purchasers. Finally, eliminating caveat emptor from commercial property transactions in place of broad, mandatory disclosure laws may invite more litigation173 since every case will have to be evaluated on a case-by-case basis.174 Maintaining caveat emptor, on the other hand, would prevent this by imposing a bright line rule that discourages such case-by-case examinations. The justifications for eliminating caveat emptor from commercial property transactions trump these arguments against eliminating caveat emptor from such transactions. First, a prospective commercial property purchaser or lessee is no more
168. Frona M. Powell & Jane P. Mallor, The Case for an Implied Warranty of Quality in Sales of Commercial Real Estate, 68 WASH. U. L.Q. 305, 335 (1990). 169. See Friedrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of Contract, 43 COLUM. L. REV. 629, 629 (1943) (explaining that “[s]ociety, therefore, has to give the parties freedom of contract; to accommodate the business community the ceremony necessary to vouch for the deliberate nature of a transaction has to be reduced to the absolute minimum”). 170. See Kathleen McNamara Tomcho, Note, Commercial Real Estate Buyer Beware: Sellers May Have the Right to Remain Silent, 70 S. CAL. L. REV. 1571, 1592 (1997) (explaining that a commercial investor enjoys a better bargaining position than a typical residential property purchaser). 171. Powell & Mallor, supra note 168, at 320. 172. Conklin v. Hurley, 428 So. 2d 654, 659 (Fla. 1983). 173. See Tomcho, supra note 170, at 1602 (remarking that disappointed buyers would bring suit in nearly every real estate transaction). 174. Id. at 1601. 138 Stetson Law Review [Vol. 47 likely to notice defects in a property than a prospective residential property purchaser or lessee. Notwithstanding, the law does not afford prospective purchasers and lessees any protection in commercial property transactions. Although this justification may have been reasonable when commercial buildings were smaller and simpler, the characteristics of modern commercial properties make the task of detecting defects more difficult.175 Thus, even if there is some difference in sophistication between purchasers or lessees in residential property and commercial property transactions, such a difference does not matter since it is unlikely that any purchaser or lessee would detect defects. Similarly, there will always be a “first time” for lessees and purchasers of commercial property, but the law disregards this and assumes that these parties have superior and advanced knowledge before the first purchase. Commercial property purchasers and lessees do not always have the level of sophistication that the law presumes them to have, though, especially when gentrification is resulting in smaller, less sophisticated companies purchasing buildings in run-down areas.176 Our society acknowledges the problems of maintaining a caveat emptor policy in automobile and electronics purchases,177 so why must the doctrine prevail for commercial property purchases and leases, most of which are certainly going to be much more expensive than the purchase of a car or a new stereo system? Furthermore, instructing buyers and lessees to fend for themselves in commercial property transactions in a state that is constantly faced with Mother Nature’s wrath is nothing short of preposterous. Florida faces a severe threat from hurricanes for six months each year,178 while properties across the
175. See Powell &Mallor, supra note 168, at 310, 331–32 (discussing the effect of complex home construction on detecting hidden defects and discussing how certain structural defects may be undetected). 176. See Alexandra Fitos, Graduate Thesis, Where the Palm Grows: The Ybor City Revitalization Project, U. S. FLA. SCHOLAR COMMONS 14, 14–17 (Apr. 1, 2004), available at http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=2035&context=etd (discussing gentrification processes and effects). 177. See Howard Kleinberg, Bloated Sticker Prices? Caveat Emptor, ORLANDO SENTINEL (Dec. 28, 1992), http://articles.orlandosentinel.com/1992-12-28/news/9212280479_1_caveat- emptor-price-list-electronics-shop (discussing certain advertisements). 178. Fla. Climate Ctr., Fla. State Univ., Ctr for Ocean-Atmospheric Prediction Studies, Hurricanes, CLIMATECENTER.FSU.EDU, http://climatecenter.fsu.edu/topics/hurricanes (last visited July 8, 2017). 2017] Striking Down the Impervious Shields 139 state meanwhile fall into sinkholes179 or drown in flash floods.180 Consequently, commercial properties can be damaged prior to sale or lease and yet buyers and lessees are expected to fend for themselves. Therefore, holding property purchasers and lessees to a different standard depending on the land use categorization of the property harms prospective purchasers and lessees, and does not have any legitimate justification. Finally, eradicating caveat emptor from commercial property transactions also has some economic justification. For example, some have pointed out that the seller who discloses information is the “cheapest cost avoider” given his access to information relating to the property’s value and condition.181 In other words, in the long run, the preferable economic choice is to disclose the defects because doing so protects against the costs of a lawsuit. Commentators have also remarked that legislative efforts to eliminate fraudulent trade practices from the marketplace typically result in an effect “of restoration rather than destruction” on free markets.182 Richard Cordray, the head of the Consumer Financial Protection Bureau, has also criticized caveat emptor as being “obsolete.”183 Thus, for all the aforementioned reasons, the Johnson nondisclosure duty should be extended to commercial property transactions, thereby eliminating caveat emptor from such business deals.
B. Correcting Agrobin
Alternatively, if the Florida Legislature does not eradicate the caveat emptor doctrine from commercial property sales and leases, it should at least establish a bright line for distinguishing between
179. Michael Snyder, Why Are Giant Sinkholes Appearing All Over America? Is Something Happening to the Earth’s Crust?,INFOWARS.COM (Mar. 4, 2013), http://www.infowars.com/why-are-giant-sinkholes-appearing-all-over-america-is- something-happening-to-the-earths-crust/. 180. See Ada Carr, Miami Area Experiencing Chronic Nuisance Flooding Due to Annual King Tides,WEATHER CHANNEL (Oct. 21, 2015, 12:00 AM EDT), http://www.weather.com/ news/news/miami-beach-flooding-high-king-tide (describing flash floods in Miami). 181. Johnson, supra note 28, at 89. 182. James T. Hodge & Sheryl Glenn Snyder, Can the Kentucky Consumer Ever Forget Caveat Emptor and Find True Happiness?, 58 KY. L.J. 325, 325 (1969). 183. Satoshi Kambayashi, Caveat Vendor: A New Regulator Takes an Expansive View of Its Remit,ECONOMIST (Feb. 7, 2014), http://www.economist.com/news/finance-and- economics/21595488-new-regulator-takes-expansive-view-its-remit-caveat-vendor. 140 Stetson Law Review [Vol. 47 residential and commercial property. As previously discussed, Agrobin set a dangerous precedent by shifting the focus in determining a property’s land use categorization from the nature of the property itself to a buyer’s intended use.184 Consequently, a purchaser who believes he will receive the Johnson protections for residential property transactions may be exposed to a seller’s impervious shield of caveat emptor in a commercial real property transaction, and he thus will lose any right to recover from the seller. The Florida Legislature should establish a well-defined and more favorable standard than the current Agrobin rule fashioned by the Third District Court of Appeal. The solution to this problem is quite simple: a property’s land use categorization should be determined by focusing on the buyer’s actual and primary use of the property immediately following the time of the purchase, rather than the buyer’s intended use at the time of the purchase.185 This standard accomplishes two main goals. First, it corrects the problem of Agrobin by establishing a consistent standard for all properties and eliminating the current subjective component. This more reliable standard is also consistent with the objective materiality standard. Furthermore, this standard provides all buyers with notice of how the property will be viewed, which provides a remedy for the instances in which a buyer has difficulty proving his or her intended use. Thus, although this protection would not solve the problem that real property purchasers receive different protections based on the type of property, it would at least limit the harm that such purchasers face.
VI. CONCLUSION
Unless caveat emptor is eradicated from all real property transactions and the Johnson nondisclosure duty is extended to
184. Supra Part IV(B). 185. Florida already utilizes a similar analysis for ad valorem taxes, holding that a property’s actual use on the first day of the new calendar year is dispositive of the property’s tax treatment. Dade Cnty. Taxing Auths. v. Cedars of Lebanon Hosp. Corp., 355 So. 2d 1202, 1204 (Fla. 1978); Lake Worth Towers, Inc. v. Gerstung, 262 So. 2d 1, 3 (Fla. 1972). The Illinois Supreme Court has utilized a similar standard for determining the tax-exempt status of property, holding that a property’s primary use, rather than its incidental uses, demonstrates its status for tax exemption. People ex rel. Kelly v. Avery Coonley Sch., 145 N.E.2d 80, 82 (Ill. 1957). Not surprisingly, other jurisdictions have used taxes as a land use control device. See 5-33 ZONING AND LAND USE CONTROLS §33.03(3)(c)(vi) (2017) (detailing the Vermont Legislature’s tax measures to control land use value). 2017] Striking Down the Impervious Shields 141 commercial real property transactions, prospective commercial property purchasers and lessees will continue to face harm. Furthermore, the Florida Legislature should follow the lead taken by other states and adopt a law that mandates written disclosures in all real property sales. Alternatively, if the Legislature does not eradicate the caveat emptor doctrine from commercial property transactions, it should at least establish a bright line standard for distinguishing between residential and commercial property in real estate sales transactions. This standard should focus on the property’s actual and primary use immediately following the time of the purchase, rather than the buyer’s intended use at the time of the purchase. This standard would not fix the overall problem, but it would certainly limit the harm that purchasers of commercial real property face. Until the overall problem is corrected, however, sellers and lessors will continue to hold onto those impervious shields.
IN HARM’S WAY: THE DESPERATE NEED TO UPDATE AMERICA’S FREE SPEECH MODEL
By: Qasim Rashid*
I. INTRODUCTION
Throughout American history, technological advancements have forced multiple revisions to be made to America’s free speech and free expression model. When that model became overly restrictive, those oppressed pushed back to regain their freedoms.1 Likewise, when it became overly liberal, those harmed pushed back to maintain their safety.2 For this reason, America’s free speech legislation, like numerous forms of legislation, must be updated continuously to accurately reflect the needs of society and the demands of technology. In the previous two decades, the Internet introduced a major technological advancement—the ability to remotely, yet directly, influence worldwide activities
* © 2017, Qasim Rashid, Esquire. All rights reserved. Qasim Rashid is an attorney, author, and the Executive Director of AMIAPS, an international human rights organization dedicated to the advancement of peace and security. He’s available at [email protected] and @MuslimIQ on Twitter. He is also a former fellow at Harvard University’s Prince Al Waleed bin Talal Islamic Studies Program. 1. Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 165– 66 (2002) (holding that the government may not require evangelists to obtain a permit before preaching door to door because such a requirement violates the First Amendment). 2. Janice Wolak, David Finkelhor & Kimberly Mitchell, 1 in 7 Youth: The Statistics About Online Sexual Solicitations,CRIMES AGAINST CHILD. RES. CENTER (Dec. 2007), http://www.unh.edu/ccrc/internet-crimes/factsheet_1in7.html. For example, according to the Crimes Against Children Research Center, online predators threaten one in seven youth and one in twenty-five receive aggressive sexual solicitations, including attempts to meet them in person. Id. In other words, at least one child in every classroom in America has been aggressively solicited online for sex. This has led to the passing of severe legal restrictions of Internet use to solicit minors for sex. Id. 144 Stetson Law Review [Vol. 47 from anywhere, anonymously or otherwise.3 This development has upset the delicate balance between the freedom of speech and freedom from harm distinguished by Supreme Court decisions.4 This Article focuses on remote, malicious, or incendiary speech and how its reasonably foreseeable consequences demonstrate a high likelihood of physical proximate harm to innocent third parties.5 It argues that, currently, the First Amendment protects such speech despite the resulting material physical harm to innocent third parties. This situation creates a constitutional imbalance that we propose to remedy. To be sure, this Article does not suggest, endorse, or allude to any form of “antiblasphemy” legislation, commonly found in Pakistan.6 Instead, this Article suggests that America’s free speech legislation, like other forms of legislation,7 must be updated to accurately reflect the needs of contemporary society and technology. Part II of this Article briefly analyzes the dangers of free speech models that are either too restrictive or not sufficiently restrictive. Part III provides historical and modern context to America’s free speech models and includes an analysis of hate
3. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 850 (1997) (explaining that “[t]he Internet is a ‘unique and wholly new medium of worldwide human communication.’”) (quoting Am. Civil Liberties Union v. Reno, 929 F. Supp. 824, 844 (E.D. Pa. 1996). 4. See generally Ira Glasser, The Struggle for a New Paradigm: Protecting Free Speech and Privacy in the Virtual World of Cyberspace, 23 NOVA L. REV. 627 (1999) (examining the constitutional implications of technology’s impact on free speech). 5. See, e.g., Ben Brantley, Theater Review; Nice Young Man and Disciples Appeal for Tolerance, N.Y. TIMES (Oct. 14, 1998), http://www.nytimes.com/1998/10/14/arts/theater- review-nice-young-man-and-disciples-appeal-for-tolerance.html (describing how Corpus Christi, a play that depicts Jesus Christ and his disciples as homosexuals, has resulted in numerous death threats to third parties unaffiliated with its production, merely because the third parties were incidentally involved in hosting the play); Enayat Nazajafizada & Rod Nordland, Afghans Avenge Florida Koran Burning, Killing 12, N.Y. TIMES (Apr. 1, 2011), http://www.nytimes.com/2011/04/02/world/asia/02afghanistan.html?pagewanted=all (describing violence in Afghanistan that left twelve dead, including seven UN workers, as Afghans protested Pastor Terry Jones, who burned a Qur’an on March 20, 2011). 6. See Pakistan Penal Code (XLV of 1860), SS. 298B, 298C. http://www.pakistani.org/ pakistan/legislation/1860/actXLVof1860.html (last visited Aug. 30, 2017) (explaining that Pakistan’s anti-blasphemy legislation serves to chill genuine differences of opinion and belief, even the private practice thereof). 7. Privacy laws are updated and changed to keep up with new arenas requiring advanced privacy due to advanced technology, such as healthcare, online banking, and social networking accounts. See, e.g., U.S. Dep’t of Health & Human Servs., Understanding Patient Confidentiality, HHS.GOV, https://www.hhs.gov/hipaa/for-professionals/patient- safety/index.html (last visited Oct. 25, 2017) (explaining that the Patient Safety and Quality Improvement Act of 2005 (“PSQIA”) was introduced “to enhance the data available to assess and resolve patient safety and health care quality [issues, to] encourage the reporting and analysis of medical errors . . . and to provide[] Federal privilege and confidentiality protections for patient safety information called patient safety work product”). 2017] Update America's Free Speech Model 145 speech and obscenity speech legislation. Parts IV and V detail the proposed revised free speech model, dubbed reasonable proximate impact. These Parts provide historical precedent, contemporary legislative trends, and caselaw to demonstrate the demand and legal justification for remedying the technologically-induced imbalance. Parts IV and V use international precedent to thoughtfully modify our approach to free speech while not unjustly chilling our freedom of expression. Additionally, Parts IV and V respond to the Heckler’s Veto argument and how it supports the reasonable proximate impact revision to American free speech. Finally, Part VI provides the conclusion of this Article.
II. UNDERRESTRICTION, OVERRESTRICTION, AND THE FREE SPEECH BALANCE
Though they ratified and still champion the First Amendment as a fundamental right, Americans agree that unrestricted free speech has the potential to cause our nation irreparable harm. But, Americans also agree that unrestricted free speech has the potential to prevent irreparable harm.8 Though the Constitution affords a generous and liberal application of free speech, it does not recognize absolute freedom of speech.9 A simple illustration of this is the restriction of yelling “fire” in a crowded theater.10 Any adjustments to our understanding of free speech, however, must be done with the strictest care. Some nations, like Pakistan, have gravitated toward extremism in their free speech restrictions by instituting “antiblasphemy” legislation.11 These laws have not only chilled free speech protected under Article 18 of the Universal Declaration of Human Rights12 (“UDHR”) and
8. See Brantley, supra note 5 (providing examples of irreparable harm related to unrestricted free speech). 9. See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) (exemplifying that pornography, child pornography, hate speech, and speech or expression inciting violence were forbidden under the “clear and present danger” theory). 10. Id. 11. See Pakistan Penal Code (XLV of 1860) SS. 298B, 298C, 295C (collectively prescribing fine, imprisonment, and death for any member of the “Quadiani group or the Lahori group (who call themselves ‘Ahmadis’)”). 12. See Universal Declaration of Human Rights, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at 74-5. Article 18 states, “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Article 19 of the UDHR adds, “[e]veryone has the right to freedom of opinion and expression; this right includes 146 Stetson Law Review [Vol. 47
Article 19 of the International Covenant on Civil and Political Rights13 (“ICCPR”), but have made it criminal for religious minorities to hold particular religious views that are arbitrarily deemed offensive to religious sentiments of clerics.14 These discriminatory laws further violate Pakistan’s own Constitution15 and have become so entrenched in legal precedent that in 1993 Pakistan’s Supreme Court reached a near-unanimous verdict to ensure these laws were upheld.16 Such laws perpetuate
freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” See also Charter of the United Nations, 26 June 1945, 59 Stat. 1031 (1945), entered into force 24 Oct. 1945, Art. 55(c), which declares, “the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” 13. See International Covenant on Civil and Political Rights, Dec. 23, 1975, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967), entered into force 23 Mar. 1976, Art. 19. Article 19 states:
(1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. (3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (odre public), or of public health or morals.
14. See Asia Bibi: Pakistan Supreme Court Adjourns Death Row Appeal, BBC NEWS (Oct. 13, 2016), http://www.bbc.com/news/world-asia-37641354. For example, in 2010 Asia Bibi, a Pakistani Christian woman was accused and convicted of violating Section 295C. Without any tangible evidence, due process of law, or legal representation, she is currently on death row in Pakistan, simply for allegedly insulting the Prophet Muhammad. See Katie Mansfield, Christian Boy, 16, Facing Death Penalty for Offending Muslims in Facebook Post (Sept. 30, 2016), http://www.express.co.uk/news/world/715776/Christian-boy-16-facing- death-penalty-offending-Muslims-Facebook-post-Pakistan (detailing the stories of a young boy from Pakistan and a young boy from Singapore); Pakistan Penal Code (XLV of 1860) supra note 6, at S. 295-8C. Use of derogatory remarks, etc., in respect of the Holy Prophet:
Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.
15. See CONST. art. XIX (stating that “[e]very citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press.”). 16. See Zaheeruddin v. State, 1993 SCMR 26 (holding that Ahmadi Muslims do not qualify for religious freedom protection because they are outside the fold of Islam, and as apostates, do not have the right to engage in Islamic behavior). Just as Coca-Cola has the 2017] Update America's Free Speech Model 147 antagonism toward religious minorities, empower extremists to engage in vigilante justice,17 with over 62,000 lives lost since 2003.18 This violence has become so severe, that to protect antiblasphemy laws in 2011, extremists assassinated two prominent Pakistani politicians for advocating a repeal of those laws.19 This underscores the dangers of carelessly crafted speech and expression legislation. As this Article demonstrates, the danger is a two-way street— overly liberal free speech legislation can cause similar violence. Both wholly restrictive and wholly unrestrictive free speech models compromise freedom. In the appropriate balance, protected free speech is not restricted, nor is unrestricted free speech protected.
III. FREE SPEECH, HATE SPEECH, AND OBSCENITY DEVELOPMENT IN AMERICAN HISTORY
A. Free Speech Development in American History
Technological advancements in the modern era illustrate the gaps in America’s current free speech model. According to Mark Twain: “The American people enjoy three great blessings . . . [f]ree
right to protect their product trademark, Pakistan has the right to protect the usage of Islamic terms and behaviors and to reserve them exclusively for Muslims. Id. Therefore, Ordinance XX anti-blasphemy laws were not only constitutional, but necessary to protect Islam and preserve the peace by not offending Pakistan’s Sunni Muslim majority population. Id. For a detailed scholarly analysis of Zaheeruddin v. State, see Tayyab Mahmud, Freedom of Religion & Religious Minorities in Pakistan: A Study of Judicial Practice, 19 FORDHAM INT’L L.J. 40 (1995). The case was rejected again on appeal in 1999. 17. See Fatalities in Terrorist Violence in Pakistan 2003-2017,SOUTH ASIA TERRORISM PORTAL, http://www.satp.org/satporgtp/countries/pakistan/database/casualties.htm (last visited Oct. 25, 2017). The South Asia Terrorism Portal records the number of violent attacks and fatalities, and demonstrates that the number of deaths and attacks have generally increased in Pakistan year after year. Id. 18. Id. 19. In January 2011, Governor of the Punjab Province, Salman Taseer was assassinated by his own bodyguard, Mumtaz Qadri. In March 2011, Pakistan’s Minorities Minister Shabazz Bhatti, a Christian, was assassinated by extremists. Both were murdered due to their opposition of Pakistan’s discriminatory anti-blasphemy laws. Karin Brulliard & Shaiq Hussain, Shahbaz Bhatti, Pakistan’s Sole Christian Minister, Is Assassinated in Islamabad, WASH. POST FOREIGN SERV. (Mar. 2, 2011, 10:26 PM), http://www.washingtonpost.com/wp- dyn/content/article/2011/03/01/AR2011030101394.html. See generally Asif Shahzad, Pakistani Governor Killed Opposing Blasphemy Law, SALON (Jan. 4, 2011, 12:04 PM), http://www.salon.com/2011/01/04/as_pakistan_violence (discussing the assassinations). 148 Stetson Law Review [Vol. 47 speech, a free press, and the good sense not to use either.”20 Prior to World War I, Twain’s comment was an accurate analysis of American society. In fact, the “Free Speech Re-definition Movement” of the 1920s and 1930s represented the first time in U.S. history where Americans demanded their First Amendment rights actively.21 Professor Paul L. Murphy elaborates that after massive arrests during WWI, those who opposed the war went on labor strikes or took measures against the national interest, and many appealed the current state of affairs.22 However, without much precedent, appellate lawyers had difficulty writing substantive briefs for the then prisoners of conscience. Professor Murphy writes:
If an attorney was seeking precise meaning of the [free speech] concept, he went to works on the common law, or to various commentaries and treatises commonly used at the time. . . . [But no] precise legal opinions drew the line in the areas in which the free-speech issue was relevant.23
The U.S. government passed no material legislation addressing free speech prior to WWI, except for the 1798 Sedition
20. Thomas M. Rickers, High on the Hog,THE AM. INTEREST (Nov. 1, 2008), https://www.the-american-interest.com/2008/11/01/high-on-the-hog/; AVIAM SOIFER, LAW AND THE COMPANY WE KEEP 71 (1995). 21. PAUL L. MURPHY,THE MEANING OF FREEDOM OF SPEECH: FIRST AMENDMENT FREEDOMS FROM WILSON TO FDR 248–49 (1972). 22. Id. 23. Id. at 249. 2017] Update America's Free Speech Model 149
Act.24 Although this Act has since been ruled unconstitutional,25 the Sedition Act was a step forward from the colonial days when little freedom of expression existed at all. For example, legislation from as early as 1618 punished Christians with a week of slavery if they missed church.26 Prior to WWI, most state constitutions followed provisions similar to what was elucidated in the First Amendment.27 Because of this, state constitutions offered little insight into the actual meaning of free speech and how it applied to practical situations.28 No clear line existed as to which types of speech were legally permissible and which would be considered illegal: “[T]he operational rule of thumb of the permissible limits of free speech turned on an imprecise delineation between the proper use of utterance and its abuse. A line existed between ‘liberty’ and ‘license.’ The former was permissible, the latter was punishable.”29 Instead, as Professor Chafee explains, “[b]ut when we asked where the line actually ran and how they knew on which side of it a given utterance belonged, we found little answer in [the courts’] opinions.”30 The generally understood and—admittedly subjective—consensus was that “[w]hen free discussion led to the
24. Sedition Act, ch. 74, 1 Stat. 596 (1798).
SECTION I. Punishes combinations against United States government. (1) Offense: Unlawful [to] combine or conspire to oppose any measure of the United States government (2) Grade of offense: a high misdemeanor. (3) Punishment: Fine not exceeding $5000, and imprisonment six months to five years. SECTION II. Punishes seditious writings. (1) Offense: To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States, or to stir up sedition, or to excite unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of foreign nations. (2) Grade of offense: misdemeanor (not explicitly stated). (3) Punishment: Fine not exceeding $2000, and imprisonment not exceeding two years. SECTION III. Allows accused to give in evidence the truth of the matter charged as libelous.
25. Id.; see MURPHY, supra note 21, at 248. 26. DAVID SEHAT, THE MYTH OF AMERICAN RELIGIOUS FREEDOM 73 (2011). 27. MURPHY, supra note 21, at 248. 28. Id. 29. Id. 30. ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 14–15 (1941). 150 Stetson Law Review [Vol. 47 advocacy of improper social, economic, and political ends, reasonable repression of its advocates was not an unwarranted restriction on free expression.”31 Perhaps this was a result of President Washington’s lasting influence. As a Founding Father, his understanding of speech was defined in his infamous “Rules of Civility,” namely Rule 49 and Rule 65.32 Rule 49 implored, “[u]se no Reproachfull Language against any one neither Curse nor Revile.”33 Likewise, Rule 65 added, “[s]peak not injurious Words neither in Jest nor Earnest Scoff at none although they give Occasion.”34 Thus, working off the theory of originalism,35 we may construe that President Washington believed reasonable repression of improper social, economic, and political ends was not an unwarranted restriction on free expression. This perception also stemmed from the 1904 case of United States ex rel. Turner v. Williams,36 which developed from the famous British case, R. v. Hicklin.37 In Hicklin, the British court held that, at common law, the legislature can outlaw any form of speech that “deprave[s] and corrupt[s] those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”38 In contrast, in 1919 Supreme Court Justice Oliver Wendell Holmes, Jr. realized that, while free speech required certain objective limitations demonstrated by his “clear and present danger” test, free speech still needed to be free.39 Justice Holmes explained his rationale in Schenck:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as
31. MURPHY, supra note 21, at 27. 32. George Washington, Rules of Civility & Decent Behaviour in Company and Conversation: A Book of Etiquette,COLONIAL WILLIAMSBURG–HISTORY.ORG, http://www.history.org/almanack/life/manners/rules2.cfm (last visited Aug. 31, 2017). 33. Id. 34. Id. 35. Id. 36. 194 U.S. 279, 279 (1904). 37. R. v. Hicklin [1868] L.R. 3 (QB) at p. 360. 38. Id. at 371. 39. Schenck v. United States, 249 U.S. 47, 52 (1919). 2017] Update America's Free Speech Model 151
men fight and that no Court could regard them as protected by any constitutional right.40
In this unanimous Supreme Court decision, Justice Holmes famously wrote, “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”41 Likewise, the author of a Tulsa, Oklahoma editorial published in The Daily World on February 16, 1919 implored:
If we as a free people are to retain unhampered our prized privilege of free speech, we must heartily encourage every reasonable effort to close the mouths of those who habitually abuse the privilege. There have been a number of people in our midst whose rantings have about convinced the people that free speech is a dangerous liberty. If the privilege is to be saved from destruction we must see to it that its sanctity is preserved.42
The editorial described only one purpose and benefit of free speech legislation—to prevent unwarranted abuse. The majority American consensus at that time embraced this approach, as Professor Murphy notes:
Every American has the privilege of free speech, but “liberty is not license,” became an almost ritualistically parroted statement. James A. Emery told the Annual Convention of the NAM in 1920 that there was “danger in restricting liberty, but not in controlling license. . . . Every form of restriction exercised by government,” he contended, “rests upon the necessity of protecting the public welfare and securing the equal freedom of all. Liberty without order is fire on the floor; liberty with order is fire in the hearth.”43
Under this premise, Justice Holmes’ unanimous court ruling in Schenck44 withstood half a century of scrutiny. Even when Schenck was overruled in favor of Brandenburg v. Ohio in 1969,45 Justice Holmes’ holding that the First Amendment does not offer
40. Id. 41. Id. 42. MURPHY, supra note 21, at 23 (emphasis added). 43. Id. at 27. 44. 249 U.S. at 48–53. 45. 395 U.S. 444, 444 (1969). 152 Stetson Law Review [Vol. 47 protection for falsely yelling fire in a theatre remained intact, as it does to this day.46 As early as 1931, however, it became clear that courts would need to define and redefine free speech consistently to accommodate the ever-changing world:
In establishing the tenuous beachhead of 1931, the courts, the most logical agency to give a practical working meaning to freedom of speech, looked both backward and forward. . . . Present reality was confronted for a functional meaning which would lead to the successful and proper operation of that concept within modern society. The question remained whether such a beachhead could be held and what steps should be taken to secure and extend it. . . . In assuming a new responsibility for translating immediate human and national needs into workable law in the free-speech area, [the courts] would be under constant pressure to keep such law relevant to the fast changing challenges of burgeoning national government, war, cold war, and the inevitable complexities created by such developments.47
In 1969, Brandenburg was the next major case to recognize this need for ongoing free speech modification.48 When overruling Schenck, Brandenburg proposed the “imminent lawless action” test.49 This advanced the clear and present danger test and declared that the First Amendment cannot be used to protect speech calling for imminent actions that are likely to occur, and are in violation of the law.50 Brandenburg was tempered by New York Times Co. v. Sullivan in 1964,51 which established that actual malice is needed before a press report can be considered defamatory or libel.52 Brandenburg was also tempered by Hess v. Indiana in 1973,53 which clarified that “imminent” must actually be imminent, and not some arbitrary, vague future possibility.54 By the 1970s, free speech had become more liberal. However, public opinion still focused on monitoring speech as a greater national interest, reflecting The Daily World editorial from fifty years
46. Id. at 456. 47. MURPHY, supra note 21, at 272 (emphasis added). 48. 395 U.S. at 451. 49. Id. at 449. 50. Id. at 447. 51. 376 U.S. 254 (1964). 52. Id. at 279. 53. 414 U.S. 105 (1973). 54. Id. at 109. 2017] Update America's Free Speech Model 153 prior.55 The New York Times reported these findings on April 19, 1970:
About three fourths of the people interviewed [in a C.B.S. poll] said extremist groups should not be permitted to organize demonstrations against the Government, even if there appeared to be no clear danger of violence. Over half of those questioned would not give everyone the right to criticize the Government if the criticism were thought to be damaging to the national interest, and 55 percent added that newspapers, radio and television should not be permitted to report some stories considered by the Government to be harmful to the national interest.56
Through the 1960s, however, no case substantively addressed the issue of technology as it related to free speech. Post-Hess, the most notable cases involving free speech are Hustler Magazine v. Falwell57 (1988) and Snyder v. Phelps58 (2011). Both cases affirmed the holding in Hess and applied a more liberal understanding of the First Amendment.59 In Hustler Magazine, Jerry Falwell won a suit against the magazine for publishing a cartoon alleging he engaged in an incestuous relationship with his mother.60 The Supreme Court reversed this decision and unanimously held that the First Amendment forbids awarding damages to public figures for emotional distress intentionally inflicted upon them.61 In Snyder, the Supreme Court granted Snyder certiorari after the Fourth Circuit overturned the court below.62 The Supreme Court overturned Snyder’s $5 million settlement for Phelps’ intentional infliction of emotional distress.63 However, in affirming the Fourth Circuit, the Supreme Court held, in an 8-1 decision, that the First Amendment protects speech related to a public issue even when it is disseminated on a public sidewalk.64 Phelps’ protest of Snyder’s son’s funeral happened to be
55. See MURPHY, supra note 21, at 23 (stating that every reasonable effort to “close the mouths” of those who habitually abuse the privilege of free speech must be encouraged). 56. Id. at 273. 57. 485 U.S. 46 (1988). 58. 562 U.S. 443 (2011). 59. 414 U.S. 105, 105-09 (1973). 60. 485 U.S. at 47–57. 61. Id. at 56–57. 62. Id. 63. 562 U.S. at 447–51 (referencing Snyder v. Phelps, 580 F.3d 206, 221 (4th Cir. 2009)). 64. Id. 154 Stetson Law Review [Vol. 47 just that, and therefore, constitutional.65 The problem with these relatively recent holdings, however, is that both are based on an understanding of free speech solidified nearly forty years ago—pre- technological advancement. For example, the CBS poll from 1970 demonstrates that our current twenty-first century understanding of the First Amendment is unique in American history, and in some ways, unprecedented. In twenty-first century America, free speech liberties have developed to include virtually every form of speech and expression except hate speech, obscenity, and pornography. Within the category of what can be considered pornographic material, adult pornography is still allowed for adult viewing, but child pornography is absolutely forbidden under any circumstance.66 Throughout the twentieth century, courts recognized that numerous new social issues mandated the need for an ongoing revision of America’s free speech standards.67 It stands to reason that such revisions must continue to ensure the law is kept up with the ever-changing future. Going forward, the current agreed upon restrictions indicate how to effectively modify our free speech model.
B. Hate Speech Restrictions
Hate speech is legally defined as “[s]peech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”68 Historically, hate speech was considered in the context of physical proximity. For example, if a Ku Klux Klan69 (“KKK”) member burns a cross in the privacy of his home and
65. Id. at 456–61. 66. New York v. Ferber, 458 U.S. 747, 765–74 (1982). 67. E.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997); Hustler Magazine v. Falwell, 485 U.S. 46 (1988); 458 U.S. 747; Hess v. Indiana, 414 U.S. 105 (1973); Brandenburg v. Ohio, 395 U.S. 444 (1969); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Schenck v. United States, 249 U.S. 47 (1919). 68. Hate Speech, LAW.YOURDICTIONARY.COM, http://law.yourdictionary.com/hate-speech (last visited Aug. 6, 2017). 69. S. Poverty Law Ctr., Ku Klux Klan, WWW.SPLCENTER.ORG, https://www.splcenter.org/fighting-hate/extremist-files/ideology/ku-klux-klan (last visited Aug. 6, 2017) (defining the Ku Klux Klan as a white supremacist hate group that flourished for some time after the Civil War, known for terrorism of Blacks and non-Protestant Christians). The KKK has been officially designated a hate group by the Anti-Defamation League and by the Southern Poverty Law Center. Id. 2017] Update America's Free Speech Model 155 without the intent to intimidate, he is protected under the First Amendment.70 However, if the cross is burned in public in front of the home of an African American, it may be classified as hate speech because it is intimidating.71 Therefore, it is not protected by the First Amendment.72 In such a scenario, the cross burning itself is not the issue. Instead, it is physical proximity that determines the legality of cross burning.
C. Obscenity Restrictions
Another important restriction on free speech is the use of obscenity. Obscenity is legally defined as “prurient in nature; completely devoid of scientific, political, educational, or social value; and in violation of local community standards.”73 This ever- changing community standard further solidifies the need for a consistent reevaluation of free speech definitions. For example, in 1999, a Michigan man was convicted for cursing in public, violating an 1897 state law where public verbal obscenities were illegal.74 The defendant won, as the Court of Appeals held that the law “unquestionabl[y] . . . operates to inhibit the exercise of First Amendment Rights” and is therefore unconstitutional.75 Besides verbal obscenities, the current free speech platform allows pornography under some basic restrictions. The First Amendment affords no protection for child pornography under the 1982 Supreme Court case of New York v. Ferber.76 In Ferber, the Court held that child pornography is not a protected expression under the First Amendment because the state of New York has a
70. Virginia v. Black, 538 U.S. 343, 347–48 (2003). 71. Id. (stating that “The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment.”). 72. Id. at 365–68. 73. Austl. Law Reform Comm’n, Appendix 3. International Comparison of Classification and Content Regulation: The United States, WWW.ALRC.GOV.AU, http://www.alrc.gov.au/ publications/appendix-3-international-comparison-classification-and-content- regulation/united-states (last visited Aug. 6, 2017). 74. Michigan v. Boomer, 655 N.W.2d 255 (2002). 75. Id. 76. 458 U.S. 747 (1982). 156 Stetson Law Review [Vol. 47 compelling interest to protect children from sexual abuse.77 Likewise, the state of New York demonstrated a close connection between such child abuse (i.e. child pornography), and the use of more children in the production of pornographic materials.78 That is, child pornography availability leads to the production of more child pornography in general, which further increases child abuse and creates a vicious cycle.79 The Supreme Court’s analysis demonstrates a simple principle: vitriolic communication can influence and perpetuate that same vitriol throughout a community, continuing to cause harm. The New York ruling left a gap: it allowed those in current possession of child pornography to maintain legal possession. Finally, eight years later, the Supreme Court closed that gap in Osborne v. Ohio in 1990.80 The Court outlawed possession and viewing of child pornography.81 What motivated this stricter regulation? Technology. In the intervening years, advanced video technology created an increase in the home production of child pornography. This development had not been adequately addressed in the Ferber ruling. Therefore, the Supreme Court had to modify free speech standards to ensure that gaps created by advancing technology were filled and children’s rights remained protected. The proposed, revised free speech model is built on this platform.
IV. THE REVISED FREE SPEECH MODEL—REASONABLE PROXIMATE IMPACT
Terry Jones, a Florida pastor who burned the Qur’an on March 20, 2011,82 provides a prime example of the technological gap that has caused a much-needed revision to America’s current free speech model. In addition to placing a sign on his church’s lawn that stated: “Islam is of the Devil,” Jones burned the Qur’an and streamed it live on the Internet, including Arabic subtitles to
77. Id. at 757. 78. Id. at 758. 79. Id. 80. 495 U.S. 103 (1990). 81. Id. 82. Kevin Sieff, Florida Pastor Terry Jones’ Koran Burning Has Far-Reaching Effect, WASH. POST. (Apr. 2, 2011), https://www.washingtonpost.com/local/education/florida- pastor-terry-joness-koran-burning-has-far-reaching- effect/2011/04/02/AFpiFoQC_story.html?utm_term=.93f53ab36fed. 2017] Update America's Free Speech Model 157 ensure Muslims—particularly in war-torn Afghanistan—could see exactly what was happening.83 Like the cross-burning KKK member who might burn a cross in front of his African-American neighbor to specifically target him, Qur’an-burning Jones specifically targeted Muslims in a war-torn nation. Government officials and military experts warned Jones beforehand that a high likelihood of violence would erupt in response to his actions.84 Jones acknowledged that he was aware of such consequences and burned the Qur’an anyway.85 In the subsequent rioting that occurred in Afghanistan, sixteen innocent third party members were killed (including seven UN workers) and ninety more civilians were injured.86 Violence and deaths notwithstanding, the KKK member, not Terry Jones, would be guilty of wrongdoing under the current model—even if the KKK member’s actions did not lead to violence. Though both parties engaged in equally incendiary behavior, a lack of physical proximity from Jones’ behavior to the subsequent harm done protects his behavior under the current model. Historically, proximity has played an important role in free speech, particularly during wartime noted by Justice Holmes.87 America’s war against Afghanistan has been the longest war in U.S. history.88 In July 2011, around the time Jones burned the Qur’an, ninety thousand American soldiers were deployed in Afghanistan.89 The distinction between Jones and the KKK member is proximity and degree. The cross-burning KKK member intimidated his fellow Americans in their hometown. Terry Jones’ actions, however, were not felt in America. Rather, Jones’ actions were felt halfway around the world—putting U.S. soldiers and innocent Afghan civilians at grave, unnecessary risk. Therefore, the gap due to technology in America’s current free speech model becomes clear. That is, if the victim of a person’s
83. Id. 84. Id. 85. Id. 86. Id. 87. MURPHY, supra note 21, at 250 (emphasis added) (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)). 88. Thomas Nagorski, Editor’s Notebook: Afghan War Now Country’s Longest, ABC NEWS (June 7, 2010), http://abcnews.go.com/Politics/afghan-war-now-longest-war-us- history/story?id=10849303. 89. Afghanistan Troop Numbers Data: How Many Does Each Country Send to the Nato Mission There?,THE GUARDIAN (Jan. 20, 2012), http://www.guardian.co.uk/ news/datablog/2009/sep/21/afghanistan-troop-numbers-nato-data. 158 Stetson Law Review [Vol. 47 incendiary expression is not physically proximate to the action, then the incendiary expression is protected. It is protected even if violence occurs, and even while the person making the expression is aware of the likely violent consequences beforehand. Likewise, the victims of the resulting violence have no cause of action against the party who knowingly made the incendiary expression. Let’s apply this to Terry Jones’ case. Afghanistan is not physically next door to the church where Terry Jones burned the Qur’an. Because of this, his actions do not count as hate speech, despite the lives lost, despite the prior knowledge that lives would likely be lost, and despite the higher risk of harm placed upon America’s deployed soldiers. Per the current model—though lives were lost as a direct result of Terry Jones’ actions, he did nothing illegal. And yet, Justice Holmes held that “no Court could regard [such actions] as protected by any constitutional right.”90 To close this technology gap, physical proximity can no longer be the deciding factor. This Article proposes a revised free speech model which includes reasonably foreseeable proximate harm as an element of negligence. This new standard—which I’ve named reasonable proximate impact—would need to be determined on a case-by-case basis. The burden would be on the plaintiff to demonstrate that the offender could reasonably foresee that his actions would have violent proximate impact on another party, even if that impact was not physically proximate. In the Terry Jones’ case, government experts and military personnel informed him that his actions would result in violent proximate damage. This was because America was at war with Afghanistan. Jones proceeded anyway.91 He chose to burn the Qur’an and knowingly become the catalyst for the death of dozens elsewhere. This behavior should not be protected more than the right of a KKK member who has burned the cross in front of the home of an African American. Both demonstrate the same potential to cause intimidation and violence. Both should be held to the same standard, and neither should be protected under the First Amendment. Critics may justifiably ask why Terry Jones should be responsible for the independent violent acts of the terrorists who murdered innocent persons. Part V addresses this argument, and also demonstrates that current and pending
90. MURPHY, supra note 21, at 250 (quoting Schenck, 249 U.S. at 52). 91. Sieff, supra note 82. 2017] Update America's Free Speech Model 159 legislation as well as historical precedent each support the proposed free speech revisions described above.
V. ARGUMENTS FOR THE REVISED FREE SPEECH MODEL
A. Wartime Restrictions
Established precedent supports that the revision of “reasonable proximate impact” is needed for our free speech model. Historical wartime restrictions are no exception. For example, Senator Lindsey Graham, a Republican Congressman from South Carolina and a military lawyer,92 echoed the above analysis in response to Terry Jones’ actions. Senator Graham’s argument suggests for the overall safety of American citizens, the U.S. Congress must explore the possibility of modifying the current free speech model due to technological advancements.93 Senator Graham sought a free speech model that restricts actions—like the Jones’ Qur’an burning—because such actions directly assist those with whom America is at war.94 He states:
I wish we could find some way to hold people accountable. Free speech is a great idea, but we’re in a war. During World War II, you had limits on what you could say if it would inspire the enemy. . . . Any time we can push back here in America against actions like this that put our troops at risk, we ought to do it.95
He adds, “General Petraeus understands better than anybody else in America what happens when something like this is done in our country and he was right to condemn it, and I think Congress would be right to reinforce what General Petraeus said.”96 Senator Graham’s point is grounded in historical precedent from WWII wartime speech restrictions. Six months before the attack on Pearl Harbor, President Roosevelt declared,
92. Glenn Thrush, Graham: Explore Limits on Quran Burnings, POLITICO (Apr. 3, 2011, 11:22 AM), http://www.politico.com/blogs/politico-now/2011/04/graham-explore- limits-on-quran-burnings-034689. 93. George Donnelly, Lindsey Graham: “Free Speech Is a Great Idea, But We’re in a War,” (CBS video Apr. 4, 2011), https://www.youtube.com/watch?v=HSV6iqxL2s0. 94. Id. 95. Id. at 0:15–0:41. 96. Id. at 0:48–1:01. 160 Stetson Law Review [Vol. 47
Free speech and a free press are still in the possession of the people of the United States and it is important that it should remain there. For suppression of opinion and censorship of news are among the mortal weapons that dictatorships direct against their own peoples and direct against the world. . . . It would be a shameful use of patriotism to suggest that opinion should be stifled in its service.97
The attack on Pearl Harbor tested this notion. In 1942, under the guise of free speech, a leaked war secret that was published in the Chicago Tribune infuriated President Roosevelt (“FDR”) to the point that he considered sending United States Marines to lock down the Tribune’s McCormick Tower.98 Had Japanese intelligence read the Tribune’s report, the results could have been devastating for American forces.99 While FDR did not seek official sanctions against the Tribune, possibly because no noticeable harm took place, journalists agreed that such reporting is uncharted terrain.100 Justice Holmes’ advice on proximity and degree rings clear.101 Historical precedent demonstrates that free speech, as valuable as it is, cannot be taken to supersede the lives and safety of our military personnel, and therefore our own lives. Yet, America’s current model protects Terry Jones to do exactly that. If, in a hypothetical war, our military is defeated due to leaked information under the guise of free speech, it only exposes the United States to an attack from an enemy. The government and
97. MURPHY, supra note 21, at 279. 98. Editorial Board, Editorial: Breaking the Code on a Chicago Mystery from World War II,CHI. TRIB. (Sept. 23, 2016), http://www.chicagotribune.com/news/opinion/editorials/ct- battle-midway-japan-war-code-tribune-roosevelt-edit-0924-md-20160922-story.html. 99. Id. 100. Id. 101. MURPHY, supra note 21, at 250 (stating ‘“[i]t is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’”); see Bob Zelnick, Tenuous Free-Speech Claims, THE WASH. TIMES (May 10, 2006), http://www.washingtontimes.com/news/2006/may/10/20060510-093239-5715r/#pagebreak (stating that, “As journalists we are on unmapped terrain. The Supreme Court may eventually hold that the press has a constitutional right to report on government surveillance of domestic citizens even if the al Qaeda terrorist on the foreign end of the line is thereby put on alert and takes added future precaution. And it may hold that the press had the right to report on the rendition of terrorist suspects to scary places, even if that terminates such practices, removing a threat that perhaps made many a frightened prisoner talk. But to repeat, the legal bridge supporting the press claim of a special First Amendment license is shaky. If asked to bear too much traffic, it may crumble.”). 2017] Update America's Free Speech Model 161 the public recognized this reality during WWII. The government advised free speech restrictions with well-distributed propaganda posters.102 The posters varied in style, but all carried a clear message:
“Loose Lips Might Sink Ships” . . . “WANTED! FOR MURDER: Her careless talk costs lives”. . .“ENEMY EARS are listening [picture of Hitler with hand to ear]” . . . “if you talk too much, THIS MAN [picture of sailor] MAY DIE” “Loose Talk can cost Lives! Keep it under your STETSON” . .. “Careless Words Can Liquidate Ships—Better Button up Those Blabber-Lips” ... “FREE SPEECH doesn’t mean Careless TALK! [parrot squawking].”103
These propaganda posters cannot be dismissed as a pre-Hess era policy because their principle of censorship to ensure the safety of innocent third parties is still applied today. For example, during America’s recent war with Afghanistan, President Obama decided not to release postmortem pictures of Osama bin Laden. Despite obligations under the Freedom of Information Act,104 he made this decision because of the potential harm our military personnel and innocent civilians could face if extremists chose to riot and violently protest bin Laden’s gruesome picture.105 Specifically, President Obama explained: “It is important for us to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence [or] as a propaganda tool. That’s not who we are. We don’t trot out this stuff as trophies.”106 Neither the WWII propaganda posters nor President Obama’s decision to protect Osama bin Laden’s postmortem photo were an unconstitutional restriction on free speech. Rather, both recognized that life, liberty, and the pursuit of happiness are more valuable than the right to view a picture or
102. World War II Posters: Don’t Talk About Ship Movement or Cargo (Part 2),AM. MERCHANT MARINE AT WAR (Dec. 15, 2004), http://www.usmm.org/postertalk2b.html. 103. Id. 104. See 5 U.S.C. § 552 (West 2017). The U.S. Freedom of Information Act (FOIA) is a law ensuring public access to U.S. government records. FOIA carries a presumption of disclosure; the burden is on the government—not the public—to substantiate why information may not be released. Id. 105. See 60 Minutes (CBS television broadcast May 4, 2011), transcript available at http://www.cbsnews.com/news/obama-on-bin-laden-the-full-60-minutes-interview/. President Obama explained “that given the graphic nature of these photos, [their release] would create some national security risk.” 106. Id. 162 Stetson Law Review [Vol. 47 publish material that may inspire the enemy to kill, become more violent, or to provide a military advantage to an enemy. Therefore, to answer the hypothetical critics’ question from earlier, Terry Jones would not be responsible for the actions of terrorists under the reasonable proximate impact revision. Rather, he would be responsible for knowingly and deliberately putting American soldiers in harm’s way, particularly during wartime. Jones’ freedom of speech cannot be more important than our soldiers’ or anyone’s right to not be killed or harmed. Removing this speech protection cannot violate the First Amendment. In fact, recent developments in American legislation employ speech restrictions beyond just wartime. Proposed and enacted legislation—passed to account for changes in speech channels and influence in light of technological advances—continue to promote the reasonable proximate impact free speech model revision.
B. Cyber-bullying Legislation
Since 2006, forty-nine states have enacted bullying and cyber- bullying legislation to prohibit electronic harassment.107 A relatively recent phenomenon, cyber-bullying further demonstrates the need to modify America’s free speech model to account for technological advances that have left third parties unnecessarily exposed to potential harm. Because of this recent phenomenon, Congress has responded quickly. As of January 2016, forty-eight out of fifty states have enacted cyber-bullying legislation against electronic harassment. Wisconsin and Alaska are the remaining two states who use less specific language.108 While cyber-bullying has traditionally focused on school or school- related activities, at least fourteen states have enacted or are enacting statutes to address cyber-bullying that originates off- campus. These states hold that off-campus bullying can negatively impact a child’s on-campus learning ability.109 In addition to serving as another example of successful and necessary free speech modification in light of the technology boom, cyber-bullying
107. State Bullying Legislation Since 2008,NAT’L CONFERENCE OF STATE LEGISLATURES (Jan. 18, 2013), http://www.ncsl.org/research/education/ bullying-legislation-since-2008.aspx. 108. Sameer Hinduja & Justin W. Patchin, State Cyberbullying Laws: A Brief Review of State Cyberbullying Laws and Policies,CYBERBULLYING RES. CENTER, http://cyberbullying.org/Bullying-and-Cyberbullying-Laws.pdf (last updated Jan. 2016). 109. Id. 2017] Update America's Free Speech Model 163 legislation demonstrates four important points relevant to this discussion. First, cyber-bullying legislation punishes the offender for their infliction of emotional distress, even if no threats or physical harm occurred.110 Thus, cyber-bullying legislation functions to prevent violence from emerging in the first place and is arguably even more restrictive than the reasonable proximate impact revision. Second, cyber-bullying legislation requires an element of intent behind the act, demonstrating that it is in fact possible to determine intent in vitriolic speech even if it does not incite violence.111 This separates cyber-bullying legislation from chilling legislation like “anti-blasphemy” laws, which can criminalize even innocent, innocuous, and genuine difference of opinion.112 Third, cyber-bullying legislation recognizes that intimidation need not be physically proximate to be considered illegal. States are passing legislation that forbids cyber-bullying outside the school context.113 This is an even tighter restriction than current hate crime legislation, which does not hold an instigator accountable for violence or harm realized in a non-proximate location. Fourth, cyber-bullying legislation demonstrates that alleged infractions can indeed be monitored on a case-by-case basis. This ensures a flexible model that strikes the appropriate balance in
110. See generally MD. CODE ANN., Educ. § 7-424 (West 2017); H.R. 396, 443d Gen. Assemb. (Md. 2017). “Misuse of Interactive Computer Service (Grace’s Law) .. . [n]amed after Grace McComas, a high school student who committed suicide in 2012 on Easter after being cyberbullied by a neighbor,” provided the following:
This bill prohibits a person from using an “interactive computer service” to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury with the intent (1) to kill, injure, harass, or cause serious emotional distress to the minor or (2) to place the minor in reasonable fear of death or serious bodily injury. Violators are guilty of a misdemeanor, punishable by imprisonment for up to one year and/or a $500 maximum fine.
Bullying Laws in Maryland,CYBERBULLYING RES. CENTER, https://cyberbullying.org/ bullying-laws/maryland (last visited July 16, 2017). 111. For example, see H.B. 15-1072, 70th Leg., 1st Reg. Sess. 18-9-111 (Colo. 2015). 112. See Bibi supra note 14 (detailing the experiences of two teenagers charged with violating the blasphemy laws of their respective countries). 113. FLA. STAT. ANN. § 1006.147(1)(d)(West 2017), which includes explicit language allowing schools to discipline students for their off-campus harassment that “substantially interferes with or limits the victim’s ability to participate in or benefit from the services, activities, or opportunities offered by a school or substantially disrupts the education process or orderly operation of a school.” 164 Stetson Law Review [Vol. 47 which protected free speech is not restricted, nor would unrestricted free speech be protected. For example, in Layshock ex. rel. Layshock v. Hermitage School District in 2006,114 a high school senior was suspended ten days for creating a “non-threatening, non-obscene parody profile making fun of the school principal” from his grandmother’s home computer.115 The Third Circuit Court of Appeals overturned the suspension, citing that the school failed to effectively argue that Layshock’s actions caused a substantial disruption in the school.116 The same was true for a fourteen-year-old eighth-grader from Blue Mountain Middle School, despite his significantly more offensive act. This student created a MySpace profile of the school principal depicting him as a sex-obsessed pedophile.117 Courts overturned the decision to punish the minor student for the off- campus action, holding the student’s behavior did not substantially disrupt school matters.118 It is important to note that in both situations private speech was protected even though it was critical and offensive to the targeted party. These holdings align well with the reasonable proximate impact argument this Article proposes. Both cases were built upon to the 1969 Supreme Court holding in Tinker.119 Tinker held that schools may punish students for off- campus speech that results in substantial disruption.120 The court in Doninger v Niehoff quoted Tinker to further assert that Tinker does not require “actual disruption to justify a restraint on student speech.”121 Likewise, the court in Lowery v. Euverard added, “Tinker does not require school officials to wait until the horse has left the barn before closing the door . . .. [It] does not require certainty, only that the forecast of substantial disruption be reasonable.”122 This suggests actions that result in non-physically proximate but violent consequences—like the consequences of Terry Jones’ actions—should logically be subjected to even stricter standards.
114. 412 F. Supp. 2d 502 (W.D. Pa. 2006). 115. Id. at 507. 116. Layshock ex. rel. Layshock v. Hermitage Sch. Dist. 650 F.3d 205, 219 (3d Cir. 2011). 117. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 920–21 (3d Cir. 2011). 118. Id. at 923. 119. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). 120. Id. 121. 527 F.3d 41, 51 (2d Cir. 2008). 122. 497 F.3d 584, 592 (6th Cir. 2007). 2017] Update America's Free Speech Model 165
In the current model, Terry Jones is exercising his freedom of speech rights, despite lost lives. Meanwhile, the Supreme Court holding in Tinker and subsequent circuit court holdings establish that children are accountable for the substantially or potentially substantially disruptive consequences for grotesque speech despite causing no physical harm or death. However, the Layshock and Blue Mountain cases demonstrate the impact and genuine practicality of looking at intent on a case- by-case basis, and refutes the assertion that merely offensive speech will be banned. The Layshock case was deemed offensive but not disruptive; and thus the court was clear that the child’s speech was protected. The court found no intent of malice and nothing obscene,123 and the student maintained her First Amendment protection.124 Likewise, the Blue Mountain case was in fact determined to be offensive, obscene, and intentional, but private.125 However, because it was not violent, substantially disruptive, or potentially disruptive, the court decided to overrule the punishment meted out to the student.126 Taken together, these two cases—among many others like them—demonstrate that legal precedent redefines free speech in light of advanced technology. These cases demonstrate that a difference exists between hurting someone’s feelings unintentionally (Layshock) and even using offensive language (Blue Mountain), versus off-campus speech that causes potential or substantial violent or non-violent disruption (Tinker)—while showing a court can intelligently make that determination between the two on a case-by-case basis. Critics may argue that cyber-bullying laws are only viable and applicable to children in the public-school system, but not to adults in private, corporate employment. Even assuming that such an argument has merit, the growing demand for corporate bullying legislation supports that assertion is wholly false.
123. As mentioned earlier, who decides what is obscene is a societal standard and constantly under judicial review. This flexibility allows for continued technological advancements and changes in social construct, while maintaining free speech standards and protection for innocent third parties. See generally Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 590–606 (W.D. Pa. 2007). 124. Id. at 595–604. 125. 650 F.3d 915, 931-32. 126. Id. 166 Stetson Law Review [Vol. 47
C. The Development of Corporate Bullying Legislation
Cyber-bullying laws address and restrict offensive speech and therefore, mitigating potential violence at the juvenile level. Similarly, corporate bullying laws seek to address and restrict offensive speech to prevent an escalation of harassment and violence at the adult and professional level. Corporate bullying is the “repeated, health harming abusive conduct committed by bosses and co-workers.”127 According to the 2014 WBI Survey: “27% of Americans have suffered abuse, another 21% have witnessed it; 72% are aware that workplace bullying happens.”128 These statistics are significant because they have provided the government justification to restrict speech in a private setting that has historically been out of government reach. Some scholars, like Professor Deana Pollard Sacks of Texas Southern University, argue that this is in fact due to the private nature of the incendiary remarking:
Established speech-tort precedent holds that the greatest speech protection is imposed where the plaintiff is a public figure, the speech is of public concern, and the injury is purely emotional or dignitary in nature. To the contrary, where the plaintiff is a private individual, the speech is private in nature, or the injury involves more than mere “feelings or reputation,” the First Amendment presents less of an obstacle to tort liability.129
Twenty-six states have attempted to pass legislation to make corporate bullying illegal under the premise that such laws are necessary to protect public health.130 Moreover, the same 2014 WBI survey revealed that ninety-three percent of Americans aware of this issue are in favor of a public health bill to address corporate bullying.131 These same Americans want Congress to address this
127. Results of the 2010 WBI U.S. Workplace Bullying Survey, WORKPLACE BULLYING INST. (2010), http://www.workplacebullying.org/wbiresearch/2010-wbi-national-survey/. 128. Gary Namie, 2014 WBI U.S. Workplace Bullying Survey,WORKPLACE BULLYING INST. 3 (2014), http://workplacebullying.org/multi/pdf/WBI-2014-US-Survey.pdf. 129. Deana Pollard Sacks, Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations, 120 YALE L.J. ONLINE 193, 215 (2010) (emphasis added). 130. Namie, supra note 128, at 16. 131. Id. 2017] Update America's Free Speech Model 167 issue with legislation.132 Courts have already begun to find in favor of victims of corporate bullying. In 2014, Tennessee became the first state to pass anti-corporate bullying legislation.133 In Raess v. Doescher134 in 2008, the Indiana Supreme Court upheld a $325,000 verdict against a cardiovascular surgeon accused of being a “workplace bully.”135 The court held that, “[a]s evidenced by the trial court’s questions to counsel during pre-trial proceedings, workplace bullying could ‘be considered a form of intentional infliction of emotional distress.’”136 Perhaps most surprising, even though the trial court refused to instruct the jury that workplace bullying is not illegal, the Indiana Supreme Court found no flaw in this instruction. Meanwhile, in 2015, California passed the following legislation as anti-bullying training for supervisors, defining workplace bullying:
“[A]busive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.137
The demand for corporate bullying laws has grown over the past decade, and will continue to grow to address the technology gap in America’s current free speech model. The need to further develop our free speech model is merely a continuance of America’s historical understanding of free speech, and therefore should not come as a surprise. In fact, in doing so, the United States will better align itself with several speech cases already decided in numerous federal circuits.
132. Id. 133. David Shadovitz, Taking Aim at Workplace Bullies,HUM. RESOURCE EXECUTIVE ONLINE (July 10, 2014), http://hreonline.com/HRE/view/story.jhtml?id=534357295. 134. 883 N.E.2d 790 (Ind. 2008). 135. Id. at 794–99. 136. Id. at 799. 137. CAL. GOV’T CODE ANN. § 12950.1(g)(2) (West 2017). 168 Stetson Law Review [Vol. 47
D. Post-Virginia v. Black Courts Support Reasonable Proximate Impact Revision
Several post-Virginia v. Black decisions recognize how technological advancements have changed the way we communicate, and have accordingly applied a standard materially supportive of the reasonable proximate impact concept this Article proposes. For example, in United States v. Mabie138 “a jury found William Mabie guilty of three counts of mailing threatening communications, in violation of 18 U.S.C. § 876(c), and one count of interstate communication of a threat, in violation of 18 U.S.C. § 875(c).”139 The Eighth Circuit held that a “true threat” is defined as a “‘statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another.’”140 Thus, the Eighth Circuit re-emphasized an objective test to determine if speech is a true threat or not. “The government need not prove that Mabie had a subjective intent to intimidate or threaten in order to establish that his communications constituted true threats. Rather, the government need only prove that a reasonable person would have found that Mabie’s communications conveyed an intent to cause harm or injury.”141 Likewise, in United States v. Williams,142 “Williams was indicted for conveying false information about bombing a
138. 663 F.3d 322 (8th Cir. 2011). 139. Id. at 325. 140. Id. at 330 (quoting Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002) (en banc)); see United States v. Spruill, 118 F.3d 221, 228 (4th Cir. 1997) (defining the “true threat” contemplated by 18 U.S.C. § 844(e) as a “‘serious threat as distinguished from words as mere political argument, idle talk or jest.’” (quoting United States v. Leaverton, 835 F.2d 254, 256 (10th Cir. 1987)). 141. Id. at 333 (citing United States v. White, No. 7:08-CR-00054, 2010 WL 438088, at *8 (W.D. Va. Feb. 4, 2010) (emphasis added) (stating that the public policy rationale outlined in Black for prohibiting true threats supports this objective test because, “[i]f the prohibition on true threats is meant to protect listeners from the ‘fear of violence’ and the corresponding ‘disruption that fear engenders,’ then the subjective intent of the speaker cannot [sic] be of paramount importance” (quoting Virginia v. Black, 538 U.S. 343, 360 (2003)); see New York ex rel. Spitzer v. Cain, 418 F. Supp. 2d 457, 479 (S.D.N.Y. 2006) (“A standard for threats that focused on the speaker’s subjective intent to the exclusion of the effect of the statement on the listener would be dangerously under inclusive with respect to the first two rationales [in Black] for the exemption of threats from protected speech.”). Thus, 18 U.S.C. § 876(c), which does not require a finding that the defendant actually intended to threaten the recipient, is not unconstitutionally overbroad. 142. 690 F.3d 1056 (8th Cir. 2012). 2017] Update America's Free Speech Model 169 commercial aircraft, a violation of 18 U.S.C. § 35(b), and conveying a threat and false information in interstate commerce about the destruction of life and property by explosives, a violation of 18 U.S.C. § 844(e).”143 In United States v. Jeffries,144 the court defined what constitutes a “threat”:
All that the First Amendment requires in the context of a § 875(c) prosecution is that the threat be real—a “true threat.” Once that has been shown, once the government shows that a reasonable person would perceive the threat as real, any concern about the risk of unduly chilling protected speech has been answered. For if an individual makes a true threat to another, the government has the right, if not the duty, to “protect[ ] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur,” all of which places the menacing words and symbols “outside the First Amendment.”145
Further, the court expounded upon the “reasonable person standard”:
The reasonable-person standard winnows out protected speech because, instead of ignoring context, it forces jurors to examine the circumstances in which a statement is made: A juror cannot permissibly ignore contextual cues in deciding whether a “reasonable person” would perceive the charged conduct “as a serious expression of an intention to inflict bodily harm.” Unlike Virginia’s cross-burning statute, which did “not distinguish between a cross burning at a public rally or a cross burning on a neighbor’s lawn,” the reasonable-person standard accounts for such distinctions. A reasonable listener understands that a gangster growling “I’d like to sew your mouth shut” to a recalcitrant debtor carries a different connotation from the impression left when a candidate uses those same words during a political debate.146
143. Id. at 1060. 144. 692 F.3d 473 (6th Cir. 2012). 145. Id. at 478 (internal citation omitted) (emphasis added) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)). Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942); United States v. White, 670 F.3d 498, 507 (4th Cir. 2012). 146. Id. at 480 (internal citations omitted). 170 Stetson Law Review [Vol. 47
The court further elaborated, “[t]he objective standard also complements the explanation for excluding threats of violence from First Amendment protection in the first place. Much like their cousins libel, obscenity, and fighting words, true threats ‘by their very utterance inflict injury’ on the recipient.”147 That is, actual harm need not even occur. The “very utterance” may be enough to deem injury inflicted. But perhaps the most significant point to this discussion is how the Jeffries court closely compares the government’s responsibilities to protect citizens from fear of harm to how this Article’s proposed reasonable proximate impact revision protects innocent third parties from fear of and actual harm:
While the First Amendment generally permits individuals to say what they wish, it allows government to “protect[ ] individuals” from the effects of some words—“from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.” What is excluded from First Amendment protection—threats rooted in their effect on the listener—works well with a test that focuses not on the intent of the speaker but on the effect on a reasonable listener of the speech.148
Post-Virginia v. Black holdings demonstrate that a true threat can be determined by the person who would ostensibly be threatened without unjustly chilling free speech. Notice, however, that the victim would not be able to prevent speech simply because he disagreed with it, but because a “true threat” existed.149 Several of the aforementioned defendants each communicated their threats via the Internet. Thus, courts have begun to recognize the impact that YouTube, Facebook, Twitter, email, and other Internet mediums of communication have on society. Courts have already acted to modify the First Amendment application to protect people from even the fear of violence.150 Social media companies are also recognizing the need to combat such abuse. For example, Milo Yiannopoulos, a right-wing extremist, incited his then-significant number of Twitter followers to threaten Leslie Jones in the days after the release of her film
147. Id. (quoting Chaplinsky, 315 U.S. 572). 148. Id. (quoting R.A.V., 505 U.S. at 377, 388) (emphasis added). 149. Texas v. Johnson, 491 U.S. 397, 408–10 (1989). 150. Id. 2017] Update America's Free Speech Model 171
Ghostbusters. Jones was so heavily targeted that she quit Twitter after days of abuse that included misogynoir comments.151 In response to the abuse, Twitter decided to ban Yiannopoulos permanently and adjust its speech policies to crack down on incendiary language.152 Moreover, in just a six-month span, Twitter actively suspended 125,000 accounts thought to be affiliated with the Daesh terrorist organization—refusing to afford them the opportunity to use the Twitter platform to engage in bullying or eventual violence.153 Likewise, the reasonable proximate impact standard proposed in this Article recognizes that hate-filled acts, like those of Terry Jones and Milo Yiannopoulos, have a high likelihood of causing violence because of the context in which they are communicated. This revised free speech model preempts violence from occurring by informing the actor beforehand that he will be held accountable should violence occur, like in the case of Terry Jones. As courts have already mentioned, the reasonable person standard, which determines if an act is a “true threat,” can be applied in the previously-described objective manner. Technological advances in communication also expanded the impact of violent statements during the 2016 presidential election—ultimately proving to have influenced the election and causing proximate violence. This election saw the rise of what is colloquially referred to as “fake news” and “alternative facts,” forcing major social media companies to finally change their policies and actively flag them.154 The incessant barrage of misinformation across the Internet became so severe that fake news outpaced real news in influencing Americans.155 Likewise, a significant part of candidate Donald Trump’s platform included
151. Katie Rodgers, Leslie Jones, Star of ‘Ghostbusters,’ Becomes a Target of Online Trolls, N.Y. TIMES (July 19, 2016), https://www.nytimes.com/2016/07/20/movies/leslie-jones- star-of-ghostbusters-becomes-a-target-of-trolls.html. 152. Mike Isaac, Twitter Bars Milo Yiannopoulos in Wake of Leslie Jones’s Reports of Abuse, N.Y. TIMES (July 20, 2016), https://www.nytimes.com/2016/07/20/technology/twitter- bars-milo-yiannopoulos-in-crackdown-on-abusive-comments.html. 153. Mark Broomfield, Twitter Shuts Down 125,000 Isis-Linked Accounts, INDEPENDENT (Feb. 16, 2016), http://www.independent.co.uk/life-style/gadgets-and-tech/news/125000- isis-linked-accounts-suspended-by-twitter-a6857371.html. 154. Andrew Tarantola, Facebook Now Flags Fake News, ENGADGET (Mar. 6, 2017), https://www.engadget.com/2017/03/06/facebook-now-flags-fake-news/. 155. Rob Price, A Report That Fake News ‘Outperformed’ Real News on Facebook Suggests the Problem Is Wildly Out of Control,BUS. INSIDER (Nov. 16, 2016, 6:42 AM), http://www.businessinsider.com/fake-news-outperformed-real-news-on-facebook-before-us- election-report-2016-11. 172 Stetson Law Review [Vol. 47 statements to ban Muslims, activate a deportation force, covertly signal white supremacy, and subtly endorse anti-Semitism— emboldening hate groups nationally.156 Donald Trump bypassed mainstream media and took to social media—namely Twitter and Facebook—to reach his audience. Within the first week after Donald Trump’s election to the presidency, the Southern Poverty Law Center reported over 400 hate crimes against minorities and people of color.157 In one particularly egregious example, Donald Trump’s harassment of a teenage girl over the Internet resulted in her receiving hundreds of death and rape threats.158 Despite the substantive and material harm to an innocent third party bystander, America’s current free speech laws hold that Donald Trump’s Internet assault on a teenage girl is protected speech. Likewise, white supremacist Dylann Roof was radicalized through online-based fake news about race, ongoing demonization of people of color from older white supremacists, and the myth that a race war was necessary and emerging.159 This radicalization inspired him to instigate a mythical race war by mass-murdering nine African Americans at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina on June 17, 2015. 160 The infamous “pizza gate”161 attack and the Planned Parenthood “no
156. Adam Edelman, Donald Trump’s Racist Rhetoric Emboldens White Supremacist Groups, Neo-Nazis Spouting Hate on the Internet, N.Y. DAILY NEWS (Dec. 10, 2015), http://www.nydailynews.com/news/politics/donald-trump-emboldens-white-supremacist- groups-racism-article-1.2461471. 157. Melissa Chan, There Have Now Been More Than 400 Racist Incidents in the U.S. Since Election Day,TIME (Nov. 16, 2016), http://time.com/4573130/racist-incidents-hate- crimes-us/. 158. Jenna Johnson, This Is What Happens When Donald Trump Attacks a Private Citizen on Twitter,WASH. POST (Dec. 8, 2016), https://www.washingtonpost.com/ politics/this-is-what-happens-when-donald-trump-attacks-a-private-citizen-on- twitter/2016/12/08/a1380ece-bd62-11e6-91ee- 1adddfe36cbe_story.html?utm_term=.11cdd5a034b8. 159. Joel A Brown, Dylann Roof, the Radicalization of the Alt-Right, and Ritualized Racial Violence, THE UNIV. OF CHICAGO: DIVINITY SCH. (Jan. 12, 2017), https://divinity.uchicago.edu/sightings/dylann-roof-radicalization-alt-right-and-ritualized- racial-violence. 160. Id. 161. See Cecilia Kang, Fake News Onslaught Targets Pizzeria As Nest of Child- Trafficking, N.Y. TIMES (Nov. 21, 2016), https://www.nytimes.com/ 2016/11/21/technology/fact-check-this-pizzeria-is-not-a-child-trafficking-site.html?_r=0. (explaining that after fake news and false claims of child trafficking were attributed to presidential candidate Hillary Clinton and authorities refused to act to remove the fake news from social media, a Washington D.C. pizzeria began receiving ongoing threats of violence and death, eventually culminating in an attack on the pizzeria). 2017] Update America's Free Speech Model 173 more baby parts”162 terrorist attack are two more examples of people who committed violent acts due to hateful and false incendiary statements broadcasted over the Internet—harming innocent third parties and leaving the inciter unaccountable. New reports demonstrate Russian propaganda weaponized America’s hate speech permissions, using the Internet and Facebook to publicize simultaneous pro-Islam and anti-Islam rallies while inciting and encouraging both sides to resort to violence.163 Such a disruptive and dangerous act of aggression from a hostile foreign government would have been virtually and practically impossible pre-Internet, again demonstrating the desperate need to update our free speech model to catch up with technological advancements. Likewise, using the same playbook as Nazis in pre- Holocaust Germany, Nazis in America have admitted that their current campaigns—which are protected by the First Amendment—seek to ultimately revive Nazi ideology even if it means killing countless people.164 In adopting the reasonable proximate impact standard proposed by this Article, the United States will better align itself with numerous European allies. Long ago, these nations recognized the inevitable harm of America’s archaic speech model and mitigated the technology gap within their own countries. This is important to consider because these nations, as described below, not only demonstrate higher levels of peace than the United States, but comparable, if not better, levels of individual freedom. International precedent demonstrates that this Article’s proposed reasonable proximate impact model is functional—it strikes the appropriate balance in which protected free speech is not restricted, nor would unrestricted free speech be protected.
162. See Planned Parenthood Shooting: Suspect Said ‘No More Baby Parts,’ BBC NEWS (Nov. 29, 2015), http://www.bbc.com/news/world-us-canada-34954474. (explaining that after fake news and false claims from multiple Republican presidential candidates and a guerilla video emerged claiming Planned Parenthood was “selling baby parts,” Robert Lewis Dear attacked a local Planned Parenthood facility in Colorado, killing one and injuring several others). The false claims attributed to Planned Parenthood continued, despite numerous clarifications from the organization that the claims were false, and they were receiving threats as a result. Id. 163. Natasha Bertrand, Russia Organized 2 Sides of a Texas Protest and Encouraged ‘Both Sides to Battle in the Streets’,BUS. INSIDER (Nov. 1, 2017), http://www.businessinsider.com/ russia-trolls-senate-intelligence-committee-hearing-2017-11. 164. Noor Al-Sibai, Alt-Right Leader Promises a Future Europe with Hitler on Its Currency,ALTERNET (Sept. 20, 2017), https://www.alternet.org/news-amp-politics/alt-right- leader-promises-future-europe-hitler-its-currency. 174 Stetson Law Review [Vol. 47
E. International Precedent
America’s current free speech model is not only unique in its own history, but unique when compared to the contemporary- developed world. In looking to the future of free speech in America, our international allies provide material evidence of successful directions to consider. Supreme Court precedent demonstrates an established history of referring to international law as persuasive authority in domestic jurisprudence. For example, in Atkins v. Virginia165 in 2002, the Supreme Court referred to international precedent in ruling that the execution of mentally handicapped offenders was unconstitutional.166 Likewise, in the landmark 2003 case, Lawrence v. Texas,167 Justice Kennedy cited a decision from the European Court of Human Rights to hold that a Texas state statute banning sodomy was unconstitutional.168 Again, in 2009, Justice Kennedy cited to foreign law in Graham v. Florida, holding that it was unconstitutional to sentence juveniles, convicted of non- violent homicides to life without parole.169 But this phenomenon is not new. The U.S. Supreme Court has a rich history of citing to foreign law as persuasive authority on complex matters like the death penalty and various human rights issues.170 Therefore, it stands to reason that referring to foreign law in the free speech debate has value. Foreign precedent demonstrates laws that are far stricter than the reasonable proximate impact model. Yet, such laws exist in nations known today for their democratic ideals, tolerance, and progressiveness. They demonstrate that stronger hate speech restrictions enhance free speech because these restrictions promote a freer exchange of ideas without intimidation or fear of harm. For the purposes of this Article, we take a sample of
165. 536 U.S. 304 (2002). 166. Id. at 316. 167. 539 U.S. 558 (2003). 168. Id. at 573. 169. 560 U.S. 48, 79–81 (2010). 170. Rebecca R. Zubaty, Foreign Law and the U.S. Constitution: Delimiting the Range of Persuasive Authority, 54 UCLA L. REV. 1413, 1414 (2007) (citing Jeffrey Toobin, Swing Shift: How Anthony Kennedy’s Passion for Foreign Law Could Change the Supreme Court, THE NEW YORKER (Sept. 12, 2005), http://www.newyorker.com/magazine/2005/09/12/swing- shift (quoting New York University School of Law professor Norman Dorsen: “When it comes to interpreting treaties or settling international business disputes, the Court has always looked to the laws of other countries, and the practice has not been particularly controversial.”)). 2017] Update America's Free Speech Model 175 prosperous allied nations that enforce hate speech restrictions. All of these nations are democracies with strong economies and they all rank ahead of the United States on the Global Peace Index and the Human Freedom Index. This sample demonstrates that other nations have recognized the need to re-evaluate free speech laws in light of twentieth- and twenty-first century technological advancements and have re-evaluated without unjustly chilling free thought and expression. The empirical data presented below supports this assertion. While some of the laws mentioned below are pre-technology boom, several are post-technology boom. All of the following laws are enforced today. If the Global Peace Index, for example, is any indicator of a nation’s prosperity, then each of these nations are well ahead of the United States, despite enforcing free speech laws that the First Amendment would ostensibly strike down: Denmark (2nd), Austria (3rd), Switzerland (7th), Canada (8th), Finland (11th), Sweden (14th), Germany (16th), Poland (22nd), Spain (25th), Italy (39th), France (46th), and the United Kingdom (47th), are all significantly ahead of the United States (103rd).171 For example, German Penal Code Section 130 states:
Whosoever, in a manner that is capable of disturbing the public peace[:] incites hatred against segments of the population or calls for violent or arbitrary measures against them; or assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population, shall be liable to imprisonment from three months to five years.172
Germany has suffered the consequences of the Holocaust— which, in fact, began with Hitler demonizing and spreading hatred about Jews. Germany’s laws are designed to ensure such destructive ideologies are nipped in the bud. Accordingly, Germany has also criminalized any Holocaust denial. Likewise, since as early as 1972, France has combated provocation with Article 24 of the July 29, 1881 French Freedom of the Press Law. This law forbids “hatred or violence against a person or group of persons because of their gender, sexual orientation, gender identity, or
171. GLOBAL PEACE INDEX 2016: TEN YEARS OF MEASURING PEACE 13, INST. FOR ECON. & PEACE (2016), available at http://economicsandpeace.org/ wp-content/uploads/2016/06/GPI-2016-Report_2.pdf. 172. GER. PENAL CODE § 130 StGB. 176 Stetson Law Review [Vol. 47 disability.”173 In fact, a French judge recently ordered Twitter to hand over identifying information of certain users tweeting anti- Jewish remarks that promoted hatred and Nazi ideology.174 Article 261 of the Swiss Penal Code states:
Racial discrimination: Any person who publicly incites hatred or discrimination against a person or a group of persons on the grounds of their race, ethnic origin or religion, any person who publicly disseminates ideologies that have as their object the systematic denigration or defamation of the members of a race, ethnic group or religion, any person who with the same objective organizes [sic], encourages or participates in propaganda campaigns, any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivializes [sic] or seeks justification for genocide or other crimes against humanity, any person who refuses to provide a service to another on the grounds of that person’s race, ethnic origin or religion when that service is intended to be provided to the general public, is liable to a custodial sentence not exceeding three years or to a monetary penalty.175
A similar law exists in Poland. The Polish Penal Code addresses provocation in free speech with Articles 212, 256, and 257. Article 256 declares:
Whoever publicly promotes a fascist or other totalitarian system of state or incites hatred based on national, ethnic, race, or religious differences or for reason of lack of any religious denomination shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.176
173. Marie-Andree Weiss, RT the Hate: France and Twitter Censorship, Part Two, DIGITAL MEDIA L. PROJECT (2013), http://www.dmlp.org/blog/2013/rt-hate-france-and- twitter-censorship-part-two. 174. France Orders Twitter to Identify Racist Users, FRANCE 24, http://www.france24.com/en/20130124-french-court-twitter-identify-authors-racist-anti- semitic (last updated Jan. 24, 2013). 175. BROTTSBALKEN [BrB] [CRIMINAL CODE] 261 (Swed.) 176. Art. 256 k.k. Promotion of fascism or other totalitarian system. 2017] Update America's Free Speech Model 177
Arguably stricter than Article 256, Polish Penal Code Article 257 adds:
Whoever publicly insults a group within the population or a particular person because of his national, ethnic, race, or religious affiliation or because of his lack of any religious denomination or for these reasons breached the personal inviolability of another individual shall be subject to the penalty of deprivation of liberty for up to 3 years.177
In addition, Article 212 of the Polish Penal Code criminalizes publicly defaming or humiliating another with a year in prison— two if done in the media.178 While this law has come under strict scrutiny in Europe because it violates Article 10 of the European Convention on Human Rights,179 Polish courts hold that while free expression is “‘one of the most important values of a democratic state’ . . . personal dignity and honour come first.”180 Likewise, Articles 29B–29G of the English Public Order Act of 1986 criminalize each of the following acts with up to seven years imprisonment from the Crown Court and six months from
177. Art. 257 k.k (stating that publicly insulting groups of people or an individual person by reason of their national, ethnic, or racial affiliation violates their constitutional rights). 178. Art. 12 k.k. 179. Article 10 of the European Convention on Human Rights states:
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
See Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11, art. 10, Nov. 4, 1950, 213 U.N.T.S. 221. 180. Bad Pupil Poland Refuses to Abolish Prison Sentences for Defamation,REPORTERS WITHOUT BORDERS (Nov. 2, 2016), https://rsf.org/en/news/bad-pupil-poland-refuses-abolish- prison-sentences-defamation. 178 Stetson Law Review [Vol. 47 the Magistrates’ court.181 Article 29B forbids the “use of words or behaviour/display of written material intended to stir up religious hatred.”182 Article 29C forbids publishing or distributing written material intended to stir up religious hatred.183 Article 29D forbids the “public performance of a play intended to stir up religious hatred.”184 Article 29E forbids “distributing/showing/playing a recording intended to stir up religious hatred.”185 Article 29F forbids broadcasting or including a programme in a programme service intended to stir up religious hatred.186 Finally, Article 29G forbids possession of inflammatory material intended to stir up religious hatred.187 Section 266(b) of the Danish Penal Code states:
(1) Any person who publicly or with the intention of dissemination to a wide circle of people makes a statement or imparts other information threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin, belief or sexual orientation, shall be liable to a fine, simple detention or imprisonment for a term not exceeding two years.
(2) When handing down the punishment, it is to be considered as an aggravating circumstance that the statement is in the nature of propaganda.188
European anti-defamation laws generally require the element of intent behind each act. These laws, while far harsher than America’s cyber-bullying laws, share the characteristic of intent. Thus, both European and American cyber-bullying laws demonstrate that it is feasible to determine intent on a case-by- case basis—as opposed to broad sweeping generalizations that carte blanche condemn all critical or “unseemly” speech.
181. Racist and Religious Crime—Prosecution Guidance,THE CROWN PROSECUTION SERV., http://www.cps.gov.uk/legal/p_to_r/racist_and_religious_crime/ (last revised Aug. 21, 2017). 182. Id. 183. Id. 184. Id. 185. Id. 186. Id. 187. Id. 188. Straffeloven [Strfl] § 266(b). 2017] Update America's Free Speech Model 179
The Swedish Penal Code dedicates Chapter 5 to Defamation, stating:
Section 1: A person who points out someone as being a criminal or as having a reprehensible way of living or otherwise furnishes information intended to cause exposure to the disrespect of others, shall be sentenced for defamation to a fine. If he was duty-bound to express himself or if, considering the circumstances, the furnishing of information on the matter was defensible, or if he can show that the information was true or that he had reasonable grounds for it, no punishment shall be imposed.
Section 2: If the crime defined in Section 1 is regarded as gross, a fine or imprisonment for at most two years shall be imposed for gross defamation. In assessing whether the crime is gross, special consideration shall be given to whether the information, because of its content or the scope of its dissemination or otherwise, was calculated to bring about serious damage.
Section 3: A person who vilifies another by an insulting epithet or accusation or by other infamous conduct towards him, shall be sentenced, if the act is not punishable under Section 1 or 2, for insulting behaviour to a fine.
If the crime is gross, a fine or imprisonment for at most six months shall be imposed.189
Likewise, Chapter 11, Section 10 of the Finnish Penal Code states:
A person who spreads statements or other information among the public where a certain national, ethnic, racial or religious group or a comparable population group is threatened, defamed or insulted shall be sentenced for ethnic agitation to a fine or to imprisonment for at most two years.190
Austria191 and Spain192 have similar laws in their respective penal codes. Even America’s neighbor to the north—Canada— includes the following in its Criminal Code, Section 319:
189. Brottsbalken (BRB) (5:1-3) title. 190. Finland: Penal Code (General Part) [11, 8]. 191. Strafgesetzbuch §188, 282, and 283. 192. Espana Codigo Penal Art. 510–21. 180 Stetson Law Review [Vol. 47
(1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Everyone who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.193
Virtually all of the aforementioned examples enforce free speech legislation far more restrictively than the surgical reasonable proximate impact revision this Article proposes. Yet, virtually all of the aforementioned nations are known for their progressiveness, openness, and democratic ideals. Empirical data supports this position. In a recent study by the Cato Institute that determined how free nations actually are, Switzerland (2nd), Denmark (5th), Canada (6th), Austria (6th), the United Kingdom (6th), Germany (13th), Sweden (15th), and Poland (21st) ranked ahead of the United States (23rd). Likewise, Italy (28th), France (31st), and Spain (36th) all were among the world’s leading nations in terms of free speech, free expression, and free conscience.194 Therefore, it stands to reason that the revisions proposed here will not unjustly chill free speech. The United States would benefit by looking towards the example that much of the developed world is successfully applying. The strategies employed by nations, like Canada and many of our European allies, have helped maintain freedom of expression and conscience while also maintaining high
193. Can. Criminal Code, R.S.C. 1985, c. C-46, s. 319. 194. Ian Vásquez & Tanja Porčnik, The Human Freedom Index 2016: A Global Measurement of Personal, Civil, and Economic Freedom, CATO INST. 14–18, https://object.cato.org/sites/cato.org/files/human-freedom-index-files/human-freedom- index-2016.pdf. 2017] Update America's Free Speech Model 181 levels of peace and prosperity. America need not even endorse legislation as strict as these nations. Rather, this Article holds to the contrary. Instead, America should recognize the success other nations have demonstrated in managing the technology boom with revised free speech standards. This can be done by employing the reasonable proximate impact revision to achieve similar success. If done properly, America can strike the balance necessary to ensure free speech remains free, while innocent third parties remain unharmed from proximate violence caused by non-proximate incendiary speech. In essence, this Article’s proposed revision will ensure the current technology gap in free speech is filled.
F. The Heckler’s Veto
The free speech laws established in the aforementioned nations answer the “Heckler’s Veto” objection. The Heckler’s Veto occurs when “an acting party’s right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party’s behavior. [T]he common example is that of demonstrators (reacting party) causing a speech (given by the acting party) to be terminated in order to preserve the peace.”195 Free speech absolutists argue that such restrictions will encourage intolerance to different ideas and place the government at the mercy of violent groups. But the contemporary world stage already demonstrates this argument does not hold water. Also, when applied properly, the reasonable proximate impact model this Article proposes actually pre-empts and prevents violence while maintaining high free speech standards. To be sure, the Heckler’s Veto argument is correct that such laws can result in the growth of intolerance and the unjust restriction of free speech and free expression. The Veto most accurately describes, for example, the phenomenon in Pakistan where anti-blasphemy legislation has debilitated the government from preventing violent attacks. For example, on May 28, 2010 in Lahore, Pakistan a vicious Taliban attack left dead eighty-six members of the minority and persecuted the Ahmadiyya Muslim Community. Zaeem Qadri, an advisor to Punjab Chief Minister
195. Heckler’s Veto,POL. L. REV. BLOG (Oct. 12, 2011), http://politicallawreviewblog.blogspot.com/2011/10/hecklers-veto.html; see Duhaime’s Law Dictionary: Heckler’s Veto Definition, WWW.DUHAIME,ORG, http://www.duhaime.org/ LegalDictionary/H/HecklersVeto.aspx (defining the term “heckler’s veto”). 182 Stetson Law Review [Vol. 47
Shahbaz Sharif, admitted afterwards, “the provincial Government had failed to remove the threatening banners from the city’s thoroughfares in order to prevent ‘adverse reaction against the government’ by the groups responsible.”196 As already mentioned, this Article neither endorses, approves, nor advocates for anti- blasphemy legislation of any sort. But, the Heckler’s Veto argument does not prove that such laws shall result in the growth of intolerance and the unjust restriction of free speech and free expression. Each of the aforementioned European nations and Canada apply far stricter speech restrictions than the United States. In fact, they apply far stricter regulations than what this Article proposes. Yet, each country is significantly higher than the United States on the Global Peace Index and all are comparable, equal, or significantly higher than America on the Freedom Index. By the “Hecker’s Veto” supporters’ logic, each of the aforementioned nations should be far more intolerant, unjustly restrictive, and violent than the United States. Again, empirical data presented above demonstrates that the exact opposite is true. Moreover, European nations and Canada demonstrate that the purpose of free speech is not to promote hate speech by a majority against a marginalized minority—but to protect the right of a marginalized minority to express their peaceful difference of opinion against a majority that believes otherwise. This nuanced difference is critical but significant, as this is where hate speech laws prevent demonization of a minority, while protecting a minority to express speech that is peaceful but the majority may find offensive. By introducing the reasonable proximate impact element in our free speech definition to account for the current technology gap, America will not subject itself to the Heckler’s Veto. Rather, it will present on a national scale what almost all fifty states have already begun to pursue in their classrooms via cyber-bullying legislation—recognition that systemic and deliberate incivility and provocation caters to violence because the Internet affords hate mongers the ability to influence and incite in manners never before possible. The proximity element does not stifle legitimate difference of opinion, critical analysis, or outright objection to
196. Pakistan: Massacre of Minority Ahmadis,HUM. RIGHTS WATCH (2011), https://www.hrw.org/news/2010/06/01/pakistan-massacre-minority-ahmadis (last visited Mar. 8, 2017). 2017] Update America's Free Speech Model 183 opposing ideologies. It simply ensures that innocent third parties are not harmed because of matters beyond their control.
V. CONCLUSION
Free speech legislation has historically advanced to account for advanced technology. In the twenty-first century, the advancement of the Internet demands we revisit America’s free speech model once again. The revision this Article proposes merely removes the current model’s physical proximity requirement before speech is recognized as violent, hate, and obscene. In our interconnected world of advanced technology, the excuse of physical distance cannot protect incendiary behavior that would otherwise be recognized as violent, hate, and obscene speech. Accountability for violence cannot disappear just because the harmed victim is not physically proximate. Professor Murphy argues: “So long as a man was confident that the truth of his own doctrines could not fail of acceptance, as soon as they won sufficient circulation, he would not fear diversity of opinion or even the freedom of others to propagate patent falsehoods.”197 The concern here, however, is not fear of a mere difference in belief, but that lives are lost and innocent parties suffer real harm due to intentional and malicious speech under the guise of First Amendment protection. Focusing on America specifically, critics argue that it is not difficult for the offended person to simply “turn away” from incendiary remarks. This belief incorrectly assumes that the only issue is mere offense and not incitement to violence, unconstitutional discrimination, violent radicalization of youth, or intentional malice to cause real mental or physical harm. This belief also incorrectly assumes that the only impact of an incendiary statement is domestic, and never abroad, or against a country against whom we are at war—all abilities the Internet now affords. Consider the sixteen who died after Terry Jones burned the Qur’an to recognize this argument’s fallacy. This does not mean that America must force or require foreign nations to work to or above our standard. On the contrary, it requires that Americans hold ourselves to a standard befitting of a world leader—one in which we maintain conscious accountability for our actions.
197. MURPHY, supra note 21, at 14. 184 Stetson Law Review [Vol. 47
Furthermore, it hits at the essence of why a revised free speech model is necessary. Technology has changed the manner and impact of our communication. Free speech cannot remain free if it comes at the price of innocent third parties. And to be sure, this Article’s proposed free speech revision is starkly different than anti-blasphemy legislation. Anti-blasphemy legislation criminalizes the statement, whether intentional or not and whether violent or not, as determined by a subjective religious standard. The proposed modifications instead criminalize those intentional statements that result in foreseeable proximate harm to third parties; the harm is practical, reasonably foreseeable, and measurable. The harm is not merely emotional and subjective, but is determined based on a case-by-case, secular, and reasonable person standard, and the burden remains on the plaintiff to prove this standard has been met. This philosophy is not at odds with our legislative system. Indeed, post-Virginia v. Black holdings demonstrate that it is constitutional to uphold an objective standard, wherein the defendant can be held accountable for how the victim reasonably perceives the true threat. Likewise, forty-eight states have enacted cyber-bullying legislation and twenty-six states have proposed corporate bullying legislation. Historical wartime restrictions advocate for this free speech modification. Numerous democratic allies have employed even stricter free speech regulations, but are universally recognized as peaceful, progressive, democratic, and free nations—beyond that of America in every case presented. America’s free speech model must change to match advanced technology, close the gap that exposes innocent third parties, and stop doing Americans the disservice of relying on a dangerously archaic model. DAZED AND CONFUSED:* THE NEED FOR CLARITY IN DODD-FRANK’S ABUSIVE STANDARD
Evan Dix**
Danieshia had just lost her job.1 She received some income from unemployment, but soon had trouble making payments on her car loan.2 After a while, her car loan became delinquent and was sold to a debt collector.3 Several debt collectors began calling Danieshia to try to have the car loan paid.4 But these were not typical phone calls. Some debt collectors began threatening Danieshia.5 They threatened her with jail time, and one debt collector even represented herself as a detective and threatened to come to Danieshia’s house and arrest her for stealing the car.6 Unfortunately, stories like Danieshia’s are not uncommon.7 Indeed, these stores are disturbingly common nowadays. While the twenty-first century has brought an increased prevalence of financial products and services that enhance modern life, it has also brought increasing concerns with debt collection as it pertains
* LED ZEPPELIN, Dazed and Confused, on LED ZEPPELIN (Atlantic Records 1969). ** © 2017, A. Evan Dix. All rights reserved. Editor in Chief, Stetson Law Review, 2016–2017. J.D., magna cum laude, Stetson University College of Law, 2017. B.S., cum laude, University of Tampa, 2014. I would like to thank Professor Mark Bauer for his assistance throughout the development of this Article. 1. Danieshia: Threatened with Jail,CONSUMER FIN. PROTECTION BUREAU, https://www.consumerfinance.gov/consumer-tools/everyone-has-a-story/danieshia- threatened-with-jail/ (last visited Nov. 4, 2017). 2. Id. 3. Id. 4. Id. 5. Id. 6. Id. 7. The Consumer Financial Protection Bureau (CFPB) has detailed several other consumer stories related to debt collection. Some consumers were contacted by debt collectors up to thirty or forty times per day; some consumers had family members contacted about debts; and some consumers were also threatened to have lawsuits filed against them. See generally Debt Collection Stories,CONSUMER FIN. PROTECTION BUREAU, https://www.consumerfinance.gov/consumer-tools/everyone-has-a-story/debt-collection/ (last visited Nov. 4, 2017) (giving examples of the threats debt collectors make in attempt to collect payment). 186 Stetson Law Review [Vol. 47 to those financial products and services.8 To better address these debt collection concerns, among many other issues, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (hereinafter “Dodd-Frank Act”) in 2010.9 Among other things, the Dodd-Frank Act established the Consumer Financial Protection Bureau (hereinafter “CFPB”),10 which in part
8. The CFPB’s Monthly Complaint Reports routinely indicate that debt collection is one of the most, if not the most, problematic industries for which it regulates. For example, the most recent report demonstrated that the CFPB has received the most complaints regarding debt collection for the past several years. Monthly Complaint Report Vol. 25, CONSUMER FIN. PROTECTION BUREAU 6 (July 2017), https://s3.amazonaws.com/ files.consumerfinance.gov/f/documents/201707_cfpb_monthly-complaint-report-vol-25.pdf. In addition, debt collection represents the industry with the highest number of complaints since the CFPB’s inception with 316,810 complaints, which represents approximately twenty-seven percent of the 1,163,156 total complaints the CFPB has received. Id. at 16. And these figures do not take into the account the number of debt collection complaints submitted to the Federal Trade Commission. See id. at 3 (describing the data as outlining complaints received by the CFPB). The large number of debt collection complaints is significant in the context of this Article. The CFPB has explained on at least one occasion that “complaints may be one indication of UDAAPs [unfair, deceptive, and/or abusive acts or practices].” Unfair, Deceptive, or Abusive Acts or Practices,CONSUMER FIN. PROTECTION BUREAU 9 (Oct. 2012), https://www.cfpaguide.com/ portalresource/Exam%20Manual%20v%202%20-%20UDAAP.pdf. The high number of debt collection complaints demonstrates a high probability of ongoing UDAAPs in the industry, which is likely what has led to the CFPB’s efforts to propose new debt collection rules. Just as the CFPB is seeking an overhaul of the debt collection industry, this is the proper time in which the differing “abusive” standards in the Fair Debt Collection Practices Act (FDCPA) and Dodd-Frank Act, which are the focus of this Article, can be harmonized. 9. Pub. L. No. 111-203, 124 Stat. 1376 (2010). 10. See infra Part III (detailing the CFPB). 2017] Dazed and Confused 187 protects consumers of financial products and services from unfair,11 deceptive,12 and abusive acts or practices.13 While the Federal Trade Commission (hereinafter “FTC”) has long prohibited and enforced unfair and deceptive acts or practices in or affecting commerce,14 there has not been an agency in charge of generally prohibiting “abusive acts or practices” until the CFPB.15 As a result, there has been much debate since the inception of the Dodd-Frank Act as to what generally constitutes an abusive act or practice.16 Some argue it deserves a broad
11. 12 U.S.C. § 5531 (2016). The FTC has traditionally prohibited and enforced unfair acts or practices “in or affecting commerce.” 15 U.S.C. § 45 (2012). The CFPB incorporated the FTC’s definition of an unfair act or practice in the Dodd-Frank Act. See 12 U.S.C. § 5531 (c)(1)(A)–(B) (“[T]he act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers; and . . . such substantial injury is not outweighed by countervailing benefits to consumers or to competition.”); Unfair, Deceptive, or Abusive Acts or Practices, supra note 8, at 2 n.4 (“The standard for unfairness in the Dodd-Frank Act has the same three-part test as the FTC Act.”). 12. 12 U.S.C. § 5531. Similar to unfair acts or practices, deceptive acts or practices have long been prohibited and enforced by the FTC. See 15 U.S.C. § 45(a)(1) (declaring “deceptive acts or practices in or affecting commerce” as unlawful). The CFPB also adopted a similar definition of deceptive acts or practices as the FTC has provided. See Unfair, Deceptive, or Abusive Acts or Practices, supra note 8, at 5, n.10 and accompanying text: A representation, omission, [act, or] practice is deceptive when[:] (1) [t]he representation, omission, act, or practice misleads or is likely to mislead the consumer; (2) [t]he consumer’s interpretation of the representation, omission, act, or practice is reasonable under the circumstances; and (3) [t]he misleading representation, omission, act, or practice is material.
13. 12 U.S.C. § 5531. The prohibition of abusive acts or practices is specifically located in the Consumer Financial Protection Act, which is one part of the Dodd-Frank Act. CONSUMER FIN. PROT. ACT OF 2010, 12 U.S.C. §§ 5481–5603 (2016). Throughout this Article, I will reference the legislation generally as the Dodd-Frank Act for simplicity. 14. Supra notes 11–12. Because of the overlap between the FTC and CFPB’s authority to enforce unfair and deceptive acts or practices, the agencies published a Memorandum of Understanding for effective cooperation. Infra note 80 and accompanying text. 15. Even state consumer protection statutes have never addressed “abusive” acts or practices. Every state has a consumer protection statute that addresses deceptive acts or practices, and many state consumer protection statutes also address unfair and/or unconscionable acts or practices. See, e.g.,GA. CODE § 10-1-372 (2016) (deceptive trade practices);FLA. STAT. § 501.204 (2016) (deceptive, unfair, and unconscionable acts or practices). Of note, however, is that the effectiveness of some state statutes has been questionable at best. See Carolyn L. Carter, A 50-State Report on Unfair and Deceptive Acts and Practices Statutes,NAT’L CONSUMER L. CTR. 5 (Feb. 2009), http://www.nclc.org/ images/pdf/udap/report_50_states.pdf (detailing weaknesses in various state consumer protection statutes). 16. One court noted, “[t]he legislative history of the CFPA [Consumer Financial Protection Act] suggests that the term was added, in part, to enable the Bureau to reach forms of misconduct not embraced by the more rigid, cost-benefit standard that had grown up around the terms ‘unfair’ and ‘deceptive.’” Consumer Fin. Prot. Bureau v. ITT Educ. Servs., Inc., 219 F. Supp. 3d 878, 904 (S.D. Ind. 2015). 188 Stetson Law Review [Vol. 47 interpretation, but others criticize its seemingly limitless jurisdiction.17 Notably, however, there is a preexisting federal statute that addresses abusive conduct in one specific area that is also covered by the Dodd-Frank Act—the Fair Debt Collection Practices Act (hereinafter “FDCPA”).18 Except the problem is that the Dodd-Frank Act seems to impose a new and different standard for abusive conduct committed by debt collectors. This Article analyzes the Dodd-Frank Act’s prohibition of “abusive acts or practices” in the context of debt collection and the CFPB’s ongoing debt collection rulemaking procedures pursuant to its authority under the FDCPA. In 2013, the CFPB issued an Advanced Notice of Proposed Rulemaking (“ANPR”) for debt collection,19 which sought to collect information regarding debt collection practices in order to promulgate various rules to better protect consumers under the FDCPA.20 In part, the ANPR sought to clarify the meaning of abusive debt collection practices given the differing standards in the FDCPA and the Dodd-Frank Act, and also to clarify if first-party creditors should be subject to debt collection rules, whether under the FDCPA or the Dodd-Frank Act.21 Thereafter in July 2016, the CFPB released an outline of proposed debt collection rules.22 Although the CFPB had indicated that the debt collection rulemaking process is, in part, aimed to help clarify what constitutes an abusive act or practice under the Dodd-Frank Act,23 it seems as though thus far the proposal fails to
17. Compare John D. Wright, Dodd-Frank’s “Abusive” Standard: A Call for Certainty, 8 BERKELEY BUS. L.J. 164, 172 (2011) (arguing the CFPB should provide more certainty in its abusive standard enforcement) with Carey Alexander, Abusive: Dodd-Frank Section 1031 and the Continuing Struggle to Protect Consumers, 85 ST. JOHN’S L. REV. 1105, 1108 (2011) (arguing the CFPB should adopt a broad interpretation of its abusive prohibition to better protect consumers). While some might disagree as to the standard’s meaning, it has at least survived a claim alleging it is vague and therefore in violation of the Due Process Clause of the Fifth Amendment. ITT Educ. Servs., 219 F. Supp. 3d at 902–03. 18. Codified at 15 U.S.C. §§ 1692–1692p (2012). 19. Debt Collection (Regulation F); Advanced Notice of Proposed Rulemaking, 78 Fed. Reg. 67848 (Nov. 12, 2013) [hereinafter ANPR]. 20. Id. at 67848. 21. Id. at 67870. As discussed infra, the Dodd-Frank Act’s coverage of first-party creditors caused much debate given that the FDCPA only applies to third-party creditors. 22. Small Business Review Panel for Debt Collector and Debt Buyer Rulemaking, Outline of Proposals Under Consideration and Alternatives Considered, CONSUMER FIN. PROTECTION BUREAU (July 28, 2016), available at http://files.consumerfinance.gov/ f/documents/20160727_cfpb_Outline_of_proposals.pdf [hereinafter Debt Collection Rules Proposal]. 23. ANPR, supra note 19, at 67870. 2017] Dazed and Confused 189 add any clarification as to the “abusive” standard under the Dodd- Frank Act24. This Article seeks to provide suggestions as to the Dodd-Frank Act’s definition of abusive acts or practices in light of the ongoing rulemaking procedures for debt collection.25 Part I of this Article will briefly explain the debt collection industry, how it operates, and how it has become so controversial. Part II will examine the passage of the FDCPA and its various provisions. Part III will explain the creation of the CFPB, its “abusive” standard under the Dodd-Frank Act, and how its debt collection rulemaking process has sought to clarify that standard. Finally, Part IV will analyze what should be done going forward with the CFPB’s “abusive” standard under the Dodd-Frank Act. It will propose a simple and logical position—the standard for abusive debt collection practices should carry the same meaning under both the FDCPA and the Dodd-Frank Act. Part IV will also briefly discuss the CFPB’s indication of regulating first-party debt collectors before concluding in Part V.
I. DEBT COLLECTION
At its core, a debt collector attempts to collect some kind of outstanding balance.26 For example, assume Person A took out a loan with Bank B. Person A subsequently experienced financial troubles and stopped paying the loan back. The loan went delinquent, and Bank B is now considering how it wants to proceed in attempting to collect the outstanding balance from Person A. The relationships involved in that process can vary. One option is that Bank B could attempt to collect the balance of the loan itself. Bank B might have a preexisting relationship with Person A and believe it can work out the situation. In these
24. The proposal primarily outlines specific rules the CFPB seeks to enforce. See Christopher K. Odinet & Roederick C. White, Sr., Regulating Debt Collection, 36 REV. BANKING & FIN. L. 869, 881–910 (2017) (summarizing and critiquing the CFPB’s debt collection proposal). 25. Some commentators have already attempted to analyze the Dodd-Frank Act and provide recommendations clarifying the “abusive” standard. E.g., Tiffany S. Lee, No More Abuse: The Dodd-Frank and Consumer Financial Protection Act’s “Abusive” Standard, 14 J. CONSUMER & COM. L. 118 (2011). This Article only seeks to analyze the Dodd-Frank Act’s prohibition of abusive acts or practices as it relates to debt collection given the CFPB’s ongoing debt collection rulemaking process. Of course, it is important to remember that the Dodd-Frank Act applies more broadly to federal consumer financial law, and not just debt collection. 26. How Do Collection Agencies Work?,CONVERGENT, http://www.convergentusa.com/ outsourcing/page/how-do-collection-agencies-work (last visited Nov. 4, 2017). 190 Stetson Law Review [Vol. 47 circumstances, Bank B is considered the original, or first-party, creditor because it is the entity that originally extended credit to Person A.27 But commonly, however, creditors use one of two other options. One of those options is that Bank B could contract with a collection agency. This involves Bank B hiring a third-party collection agency,28 or debt collector, to work on behalf of Bank B to collect payment from Person A.29 The collection agency is typically compensated based on the percentage of the debt it collects,30 although many collection agencies are paid on a contingency basis.31 Bank B might hire a third-party debt collector for a number of reasons. A third-party debt collector often has a heightened level of expertise with respect to collecting debts and often has the infrastructure to collect debts more efficiently.32 It might be impractical for Bank B to acquire the knowledge or resources that a debt collector might already have.33 Another option is that Bank B could outright sell Person A’s debt to another company, and that company could attempt to collect the debt. These companies that buy debts are intuitively
27. See Baran Bulkat, What Is the Difference Between a Debt Collector and a Creditor?, NOLO, http://www.nolo.com/legal-encyclopedia/ what-is-the-diffrence-between-debt-collector-creditor.html# (last visited Nov. 4, 2017) (explaining the meaning of an original creditor). In this scenario, with minor exceptions, Bank B would be exempt from the FDCPA in trying to collect Person A’s debt. See 15 U.S.C. § 1692a(6) (2016) (excluding creditors collecting debts in their own name from the FDCPA’s provisions). Where controversy has emerged, however, is that the Dodd-Frank Act applies to both first- and third-party creditors. Infra notes 95–100 and accompanying text. 28. In addition to a collection agency, Bank B could hire certain bill collectors or collection attorneys. When Creditors Are Subject to Federal Fair Debt Collection Rules, NOLO, http://www.nolo.com/legal-encyclopedia/ when-creditors-are-subject-federal-fair-debt-collection-rules.html# (last visited Nov. 4, 2017). 29. How Do Collection Agencies Work?, supra note 26. 30. Amy Fontinelle, How the Debt Collection Agency Business Works,INVESTOPEDIA (June 1, 2017, 6:00 AM), http://www.investopedia.com/articles/ personal-finance/121514/how-debt-collection-agency-business-works.asp. 31. Patrick Lunsford, Do You Know What a Collection Agency Does?,FORBES (June 8, 2011, 10:01 AM), https://www.forbes.com/sites/insidearm/2011/06/08/do-you-know-what-a- collection-agency-does/#61fe4e1c6ceb. 32. See Jon Leibowitz et al., Structure and Practices of the Debt Buying Industry,FED. TRADE COMMISSION 11 (Jan. 2013), https://www.ftc.gov/sites/default/ files/documents/reports/structure-and-practices-debt-buying- industry/debtbuyingreport.pdf (detailing reasons why a creditor might hire a third-party debt collector). 33. Id. 2017] Dazed and Confused 191 called “debt buyers.”34 Because the debt buyers technically own the debt, they are able to earn as much money as they can collect, and do not owe any obligations to the original creditor.35 A debt buyer might attempt to collect the debt itself, hire its own third-party debt collector, or resell the debt to another debt buyer.36 The important implication from either model of debt collection discussed above37 is that a collector is naturally incentivized to collect as much money as it can as quickly as it can. If contracting with the creditor, the third-party collection agency wants to maximize the amount of money earned based on the percentage it will receive, or alternatively wants to ensure it earns any money at all if operating on a contingency basis. Similarly, given that debt buyers often purchase debts for pennies on the dollar, they are also incentivized to collect more than they paid for the debt. Given these incentives, debt collectors’ conduct has become increasingly controversial over the years, with illegal tactics becoming common practice.38 Debt collectors have become notorious for using profane language, making threats against the debtor, and calling debtors or their family members repeatedly, among other things.39 But to understand why these implications in the debt collection industry are significant, it is important to understand how large of a role debt collection plays in today’s society. Over the years, debt collection effectively grew into its own industry. Companies often solely operate in debt collection and even
34. How Do Collection Agencies Work?, supra note 26; see also Lunsford, supra note 31 (detailing key differences between collection agencies and debt buyers). For a detailed explanation of the debt buying industry specifically, see Leibowitz et al., supra note 32. 35. How Do Collection Agencies Work?, supra note 26. Given that a debt buyer would “own” the debt upon purchase, it technically becomes the creditor of that debt. 36. Leibowitz et al., supra note 32, at 11. For a brief discussion on why creditors might prefer using third-party debt collectors as opposed to selling debts, and vice versa, see id. at 12. 37. For an additional, helpful discussion of the various debt collection business models, see Odinet & White, supra note 24, at 874–81. 38. Of course, not every collection agency structures its business model on breaking the law. But the occurrence of illegal collection tactics has become much more common in today’s society. 39. See, e.g., Mitch Lipka, 5 Illegal Tactics Shady Debt Collectors Love, CBS NEWS (Feb. 27, 2015, 5:30 AM), http://www.cbsnews.com/news/5-illegal-tactics-used-by-shady-debt- collectors/ (detailing common illegal tactics among debt collectors). Given the prevalence of these illegal tactics, the FTC has developed a list of individuals and entities banned per court order from engaging in the business of debt collection. Banned Debt Collectors,FED. TRADE COMMISSION, https://www.ftc.gov/enforcement/ cases-proceedings/banned-debt-collectors (last visited Nov. 4, 2017). 192 Stetson Law Review [Vol. 47 specialize in collecting certain debts.40 In some circumstances, debt collection has even become a lucrative industry for investors.41 But it has certainly come with its own unique set of challenges. Given that debts can be purchased at low costs, collectors often do everything they can to make a profit—even break the law.42 In March, the CFPB published its annual FDCPA report on debt collection that provided astronomical numbers. Debt collection is approximately an 11.4 billion dollar industry in the United States including over 130,000 employees and 8,500 collection agencies.43 Moreover, in a recent national debt collection consumer survey, the CFPB reported that creditors and debt collectors contacted about seventy million Americans in connection with a debt during 2016.44 Debt collectors generated the majority of their revenue through collections of “medical debt, student loans, and financial services obligations such as credit cards, auto loans, and mortgages.”45 But more significantly and unfortunately,
40. Fontinelle, supra note 30. 41. See, e.g., Jake Halpern, Paper Boys: Inside the Dark, Labyrinthine, and Extremely Lucrative World of Consumer Debt Collection, N.Y. TIMES (Aug. 15, 2014), https://www.nytimes.com/interactive/2014/08/15/magazine/bad-paper-debt- collector.html?_r=0 (detailing the story of one Wall Street investor who made “astronomical” profits from buying and collecting consumer debts). 42. An interesting comment in response to the CFPB’s debt collection ANPR came from a person who claimed to have worked as a debt collector for over two years. When he asked his employer if they wanted him “to blatantly break the law,” his employer “advised [him] simply not to get caught.” Devon Cooper, Comment on CFPB-2013-0033-0001, REGULATIONS.GOV (Feb. 18, 2014), https://www.regulations.gov/document?D=CFPB-2013- 0033-0113. 43. Fair Debt Collection Practices Act: CFPB Annual Report 2017,CONSUMER FIN. PROTECTION BUREAU 9 (Mar. 2017), https://s3.amazonaws.com/files.consumerfinance.gov/ f/documents/201703_cfpb_Fair-Debt-Collection-Practices-Act-Annual-Report.pdf. 44. See Consumer Experiences with Debt Collection,CONSUMER FIN. PROTECTION BUREAU 13 (Jan. 2017), https://s3.amazonaws.com/files.consumerfinance.gov/ f/documents/201701_cfpb_Debt-Collection-Survey-Report.pdf (reporting that one-third of Americans were contacted throughout 2016 “by a creditor or debt collector about a debt”). These statistics are often contested, however. For example, ACA International, which is the Association of Credit and Collection Professionals, published a white paper arguing the implications from the CFPB’s consumer survey are flawed. Josh Adams, An Overview of the Analytical Flaws and Methodological Shortcomings of the CFPB’s Survey of Consumer Experiences with Debt Collection, ACA INT’L (Feb. 2017), http://www.acainternational.org/ assets/research-statistics/wp-cfpbsurvey.pdf. ACA’s main criticism is that the CFPB’s survey cannot be used to support its rulemaking process because it “potentially manipulat[ed] inconclusive results to promote the incorrect perception of debt collectors as predatory.” Id. at 10; see also John L. Culhane, Jr., ACA International Flags Shortcomings in CFPB National Debt Collection Consumer Survey,BALLARD SPAHR L.L.P. (Mar. 6, 2017), https://www.cfpbmonitor.com/2017/03/06/aca-international-flags-shortcomings-in-cfpb- national-debt-collection-consumer-survey/ (summarizing ACA International’s white paper). 45. Fair Debt Collection Practices Act: CFPB Annual Report 2017, supra note 43, at 10. For a detailed account of statistics in the debt collection industry, see id. at 9–13. 2017] Dazed and Confused 193 debt collection remains the most complained-of industry to the CFPB.46
II. FAIR DEBT COLLECTION PRACTICE ACT
Given the need for regulation, Congress enacted the FDCPA in 1977, which is a federal consumer protection statute designed to prevent unfair, deceptive, and harassing or abusive47 acts or practices as they relate to debt collectors.48 With regard to its prohibition of abusive debt collection conduct, the FDCPA provides that “[a] debt collector49 may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in
46. Id. at 15. During 2016, the CFPB received about 88,000 debt collection complaints. Id. An interesting note is that consumers reported collectors contacting them through text messages, emails, and forms of social media. Id. at 18. Reports of these instances involving technology are likely what have contributed, in part, to the CFPB’s desire to promulgate new rules under the FDCPA. 47. The FDCPA does not outright prohibit “abusive acts or practices” such as in the Dodd-Frank Act. Rather, as discussed in this Part, the FDCPA prohibits conduct in which the natural consequence is to abuse a person in connection with a debt. 15 U.S.C. § 1692d (2016). Given the similarity between the FDCPA and the Dodd-Frank Act in generally prohibiting abusive debt collection conduct, my position is that they should be treated as the same standard. 48. Id. § 1692. Congress specifically noted, “[t]here is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” Id. § 1692(a). 49. The FDCPA defines a debt collector as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Id. § 1692a(1)(6). However, it is noteworthy what the definition of a “debt collector” does not include. “The term does not include . . . any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor.” Id. § 1692a(6)(A) (emphasis added). Thus, the FDCPA does not apply to first-party creditors, unless they are collecting or attempting to collect a debt under a different name. The reasoning is that “[u]nlike creditors, who generally are restrained by the desire to protect their good will when collecting past due accounts, independent collectors are likely to have no future contact with the consumer and often are unconcerned with the consumer’s opinion of them.” S. Rep. No. 95-382, at 2 (1977). However, controversy arose among the circuit courts of appeal as to whether debt buyers constituted debt collectors for purposes of the FDCPA. This led to the U.S. Supreme Court’s recent decision in Henson v. Santander Consumer USA, Inc. that held debt buyers are not debt collectors within the meaning of the FDCPA. 137 S. Ct. 1718, 1724–26 (2017). Legislation has already been enacted to amend the FDCPA, which would classify debt buyers as debt collectors. Barbara S. Mishkin, House Financial Services Subcommittee to Hold July 12 Hearing on Community Financial Institution Relief; Bills to be Examined Include FDCPA Amendments, CFPB Changes,BALLARD SPAHR L.L.P. (July 10, 2017), https://www.consumerfinancemonitor.com/2017/07/10/house-financial-services- subcommittee-to-hold-july-12-hearing-on-community-financial-institution-relief-bills-to- be-examined-include-fdcpa-amendments-cfpb-changes/. 194 Stetson Law Review [Vol. 47 connection with the collection of a debt.”50 The FDCPA proceeds to list specific examples, though not dispositive,51 of what constitutes abusive debt collection conduct.52 While Congress did not want to completely limit the scope of the rule, it included various examples of abusive conduct that violate Section 1692d.53 These examples generally include repeated and continuous phone calls, use of obscene language, coercing payment of a debt, or any use or threat of physical violence.54 One of the most fundamental abusive debt collection practices is the use of intimidating means of communication with consumers. For example, the FDCPA prohibits the use or threat of violence or other criminal means against a consumer.55 It also prohibits the use of obscene or profane language.56 Courts analyzing abusive language, as it relates to debt collection, focus not on the debt collectors’ intent, but on the “natural consequence[s] of [their actions].”57 This standard allows for broader protections to consumers.58 In addition, the rule is aimed
50. 15 U.S.C. § 1692d (emphasis added). 51. The FDCPA provides, “Without limiting the general application of the foregoing, the following conduct is a violation of this section . . . .” Id. This provision allows courts to still find certain debt collection conduct is abusive even if not one of the specifically listed examples in the FDCPA. E.g., Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1178 (11th Cir. 1985). 52. In addition to providing examples about what constitutes an abusive debt collection practice, which will be explained in greater detail, it is interesting to note that the FDCPA also provides specific examples of what constitutes a deceptive or unfair debt collection practice. See 15 U.S.C. § 1692e (providing a non-dispositive list of what constitutes a deceptive debt collection practice); see also id. § 1692f (providing a non-dispositive list of what constitutes an unfair debt collection practice). 53. See Diaz v. D.L. Recovery Corp., 486 F. Supp. 2d 474, 477 (E.D. Pa. 2007) (explaining that Section 1692d “merely provides an illustration of the sort of conduct that is prohibited”) (emphasis in original); see also Jeter, 760 F.2d at 1178 (reasoning that section 1692d is “explicitly not limited to the conduct proscribed” in the six listed examples). 54. 15 U.S.C. § 1692d. 55. Id. § 1692d(1). For an example of a violation of this type of conduct, see supra notes 1–6 and accompanying text. 56. It is a violation of Section 1692d(2) to use “obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.” Id. § 1692d(2). For an example of this type of violation, see Outrageous Calls from Debt Collectors ABC News 0:00– 0:35 (ABC News video June 19, 2009), https://www.youtube.com/watch?v=KJS9c0jgosQ. This example likely also illustrates violations of 15 U.S.C. § 1692d(1) (threat of criminal means to harm reputation) and 15 U.S.C. § 1692d(5) (engaging in telephone conversation with intent to harass). 57. E.g., Horkey v. J.V.D.B. & Assoc. Inc., 333 F.3d 769, 774 (7th Cir. 2003); Taylor v. Heath W. Williams LLC, 510 F. Supp. 2d 1206, 1216 (N.D. Ga. 2007). 58. The main reason courts look to the natural consequences of actions rather than the debtor’s intent is to protect the public at-large. The FTC Act, for example, aims to protect “unsophisticated consumers, not only ‘reasonable consumers’ who could otherwise protect 2017] Dazed and Confused 195 at preventing offensive language “which is at least akin to profanity or obscenity.”59 The FDCPA also prohibits certain telephone call practices in and of themselves.60 Generally, courts look to the continuity or repetition of phone calls when determining whether a debt collector’s actions constitute abusive conduct.61 Alternatively, a debt collector’s lack of disclosure of his or her identity could also constitute an abusive practice.62 However, when analyzing whether telephone calls to collect debts are abusive, courts may infer from the circumstances, which helps provide broader protection to consumers.63 Consumers have added protection under the FDCPA through a private right of action. The FDCPA provides that debt collectors may be civilly liable to consumers in any appropriate U.S. District Court64 if they violate any of the FDCPA’s provisions.65 The FDCPA provides consumers66 with the ability to seek actual damages,
themselves in the market place.” Jeter, 760 F.2d at 1172. As a result, courts apply a “least sophisticated consumer” standard as it applies to debt collection cases. Id. at 1175; Flores v. Shapiro & Kreisman, 246 F. Supp. 2d 427, 433 (E.D. Pa. 2002). However, courts have also noted, specifically regarding debt collection practices likely to harass, oppress, or abuse, that the more appropriate standard is viewing the conduct “from the perspective of a consumer whose circumstances make him relatively more susceptible to harassment, oppression, or abuse.” E.g., Jeter, 760 F.2d at 1179; Bryant v. Bonded Account Serv./Check Recovery Inc., 208 F.R.D. 251, 256 (D. Minn. 2000). This type of standard also accords with the CFPB’s abusive standard in that it prohibits a business from taking unreasonable advantage of the consumer’s lack of understanding, ability to protect their interests, or reasonable reliance. 12 U.S.C. § 5531(d)(2) (2016) (emphasis added). 59. Jeter, 760 F.2d at 1178; see also Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097, 50105 (1988) (explaining that “[a]busive language includes religious slurs, profanity, obscenity, calling the consumer a liar or a deadbeat, and the use of racial or sexual epithets”). 60. It is a violation of Section 1692d(5) to “[cause] a telephone to ring or [engage] any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). 61. See Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, supra note 59, at 50105 (defining “continuously” as “making a series of telephone calls, one right after the other,” and defining “repeatedly” as “calling with excessive frequency under the circumstances”). 62. 15 U.S.C. § 1692d(6). 63. See, e.g., Crockett v. Rash Curtis & Assocs., 929 F. Supp. 2d 1030, 1032 (N.D. Cal. 2013) (reasoning that intent to annoy, abuse, or harass “may be inferred from circumstantial evidence such as the nature, pattern, and frequency of debt collection calls”). 64. 15 U.S.C. § 1692k(d). The statute of limitations on these FDCPA actions is limited to “one year from the date on which the violation occur[red].” Id. 65. Id. § 1692k(a). The FTC also has authority to enforce the provisions of the FDCPA. Id. § 1692l(a). 66. Consumers may bring an action as an individual or in a class action proceeding. Id. § 1692k(a). 196 Stetson Law Review [Vol. 47 costs, and attorneys’ fees.67 Consumers can also seek additional damages not to exceed $1,000, in which the court will consider various factors to determine whether to award these additional damages.68 Debt collectors are provided a safe-harbor provision, however. To the extent a debt collector can show by a preponderance of the evidence that its alleged violation “was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error,” it will not be held liable.69 Despite all of the protections70 afforded to consumers in the FDCPA, Congress saw a need to increase those protections in 2010 through the Dodd-Frank Act.
III. THE CONSUMER FINANCIAL PROTECTION BUREAU
Congress created the Dodd-Frank Act and the CFPB largely in response to the 2008 financial crisis.71 The increasing use and access of consumer financial products and services led to a whole new wealth of problems. Because of the heightened need for these products and services, combined with increased expenses, credit became easier to access and many consumers started incurring more debt.72 In addition, lenders started taking advantage of consumers’ desperate circumstances by selling a vast amount of loans and other financial products, such as mortgages.73 Because
67. Id. §§ 1692k(a)(1), (3). 68. Id. § 1692k(a)(2)(A). The primary factors for a court to consider are the frequency and persistence of the debt collector in violating the FDCPA. Id. § 1692k(b)(1). The court considers the same factors in a class action proceeding, except it will also consider the number of consumers adversely affected. Id. § 1692k(b)(2). 69. Id. § 1692k(c). 70. It is also important to remember that the FDCPA prohibits a number of other types of misconduct from debt collectors than those specifically discussed in this Part. See generally id. § 1692c (communications in connection with debt collection); id. § 1692e (false or misleading representations); id. § 1692f (unfair practices); id. § 1692g (validation of debts). Many of the CFPB’s proposed debt collection rules will also fall within these areas. However, the scope of this Article is limited to the definition and application of abusive debt collection conduct. 71. See Creating Consumer the Bureau,CONSUMER FIN. PROTECTION BUREAU, www.consumerfinance.gov/the-bureau/creatingthebureau/ (last visited Nov. 4, 2017) (explaining the events leading up to the passage of the Dodd-Frank Act and the creation of the CFPB). 72. Id. 73. Id. See also Alec C. Covington, Fighting Yesterday’s Battles: Proposed Changes to the Consumer Financial Protection Bureau, 16 N.C. BANKING INST. 299, 301–02 (2012) (indicating that some of the primary causes of the financial crisis included “unscrupulous business practices in investment banking and structured finance, inflated credit ratings, 2017] Dazed and Confused 197 many consumers could not repay their loans, what eventually resulted was catastrophic—home values dropped, savings depleted, jobs were eliminated, and businesses lost financing.74 To combat these adverse effects, Congress took action to give consumers more protection.
A. The Agency
In 2010, Congress passed the Dodd-Frank Act, which in part established the CFPB.75 In an effort to help sustain a fair, competitive, and transparent marketplace,76 the CFPB regulates consumer financial products and services as defined under federal consumer financial laws.77 While federal consumer financial law includes a broad spectrum, the CFPB has specific departments for the regulation of mortgages, lending, and collections, among
high risk lending in the mortgage market, and regulatory inaction”). Subprime mortgages, specifically, played a large role in the financial crisis, as private lenders made approximately 12 million subprime mortgages in 2006, totaling a value of about two trillion dollars. Jonathan Swift, Lest We Forget: Why We Had a Financial Crisis,FORBES (Nov. 22, 2011, 11:28 AM ET), http://www.forbes.com/sites/stevedenning/ 2011/11/22/5086/#145fcabb5b56. 74. Creating the Consumer Bureau, supra note 71. For a brief snapshot of some of the events leading to the 2008 financial crisis, see The Origins of the Financial Crisis, ECONOMIST (Sept. 7, 2013), www.economist.com/news/schoolsbrief/21584534-effects- financial-crisis-are-still-being-felt-five-years-article. For a more detailed discussion, see Christopher K. Seide, Consumer Financial Protection Post Dodd-Frank: Solutions to Protect Consumers Against Wrongful Foreclosure Practices and Predatory Subprime Auto Lending, 3 U. PUERTO RICO BUS. L.J. 219 (2012). 75. 12 U.S.C. § 5491 (2016). For a brief summary of everything in the Dodd-Frank Act, see Jill Jackson, Wall Street Reform: A Summary of What’s in the Bill, CBS NEWS (June 25, 2010, 4:54 PM), http://www.cbsnews.com/news/wall-street-reform-a-summary-of-whats-in- the-bill/. An interesting and ongoing dispute concerns the constitutionality of the CFPB’s structure. The D.C. Circuit held that the CFPB’s structure was unconstitutional given that it was established as an independent agency, yet headed by only one director who could only be removed for-cause. See generally PHH Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1 (D.C. Cir. 2016) (discussing that the multi-member structure of independent agencies is a measure, required by Article II, to protect against arbitrary decision making in the executive branch). However, the court later granted a petition for rehearing en banc, and the case will be reheard in May 2017. Order Granting Rehearing En Banc, PHH Corp. v. Consumer Fin. Prot. Bureau, https://www.cadc.uscourts.gov/internet/opinions.nsf/ 5D0253C4E25B93FB852580C9005F3AE1/$file/15-1177-1661681.pdf (D.C. Cir. Feb. 16, 2017) (No. 15-1177). 76. See 12 U.S.C. § 5511(a) (2010) (“The [CFPB] shall seek to implement and . . . enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets . . . and that markets . . . are fair, transparent, and competitive.”) (emphasis added). 77. Id. § 5491. The definition of consumer financial products or services includes credit, loans, leases, debt management or settlement services, check cashing, deposit-taking activities, and financial advisory services, among others. Id. § 5481. 198 Stetson Law Review [Vol. 47 others.78 In addition to the enforcement of federal consumer financial law, the CFPB encourages financial education for consumers as a result of the 2008 financial crisis and frequently provides advice to help certain groups improve their financial literacy.79 While the CFPB’s regulation and enforcement of consumer financial products and services largely overlaps with the FTC, the two agencies share jurisdiction. Specifically, the FTC recognized a substantial need for the CFPB and published a Memorandum of Understanding.80 The CFPB also provides additional enforcement authority to state attorneys general.81
B. Authority Under the Dodd-Frank Act
Generally, the CFPB is given a wide range of discretion to “administer, enforce, and otherwise implement the provisions of Federal consumer financial law.”82 The CFPB is also given exclusive authority to prescribe rules and issue orders as necessary to carry out its general goal relating to federal consumer financial law.83 With respect to federal consumer financial law, the CFPB can enforce unfair, deceptive, and abusive acts or practices.84 These specific prohibitions mirror the majority of other consumer
78. For a snapshot of the CFPB’s structure and hierarchy, see About Us, CONSUMER FIN. PROTECTION BUREAU, www.consumerfinance.gov/the-bureau/ (last visited Nov. 2, 2017). 79. See generally Educational Resources,CONSUMER FIN. PROTECTION BUREAU, www.consumerfinance.gov (last visited Nov. 2, 2017) (providing information for students, elderly, veterans, community banks and credit unions, and generally the economically vulnerable population). The CFPB provides general information and detailed guides for certain complex financial products or services, such as student loans, mortgages, and veterans benefits. Id. 80. Jon Leibowitz & Richard Cordray, Memorandum of Understanding Between the Consumer Financial Protection Bureau and the Federal Trade Commission, FED. TRADE COMMISSION (Jan. 20, 2012), https://www.ftc.gov/system/files/120123ftc-cfpb-mou.pdf.The agencies specifically noted, “effective cooperation is critical to protect consumers, prevent duplication of efforts, provide consistency and ensure a vibrant marketplace for Consumer Financial Products or Services.” Id. As part of the ongoing relationship, the agencies often report their activities over a given period of time to the other in areas in which they share jurisdiction. See, e.g., Barbara S. Mishkin, FTC Sends Letter to CFPB on 2016 Debt Collection Activities, CFPB MONITOR (Feb. 15, 2017), https://www.cfpbmonitor.com/2017/02/ 15/ftc-sends-letter-to-cfpb-on-2016-debt-collection-activities/ (summarizing the FTC’s 2016 letter to the CFPB regarding the FTC’s debt collection activities for that year). 81. See 12 U.S.C. § 5552 (2012) (allowing state attorneys general to bring a civil suit to enforce the provisions in Dodd-Frank Act). 82. Id. § 5512(a). 83. Id. § 5512(b)(1). 84. Id. § 5531. 2017] Dazed and Confused 199 protection statutes throughout the country, including the FTC Act and state laws.85 However, as previously discussed, the CFPB’s authority differs from the FTC and state attorneys general in one significant way—the ability to prohibit abusive acts or practices.86 The CFPB’s abusive standard provides the following:
The Bureau shall have no authority under this section to declare an act or practice abusive in connection with the provision of a consumer financial product or service, unless the act or practice—
1) materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service; or
2) takes unreasonable advantage of—
A) a lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service;
B) the inability of the consumer to protect the interests of the consumer in selecting or using a consumer financial product or service; or
C) the reasonable reliance by the consumer on a covered person to act in the interests of the consumer.87
While the idea behind the abusive standard is noble, there are many deficiencies. The CFPB has not narrowly defined what constitutes an abusive act or practice.88 Rather, the CFPB wanted
85. Compare Federal Trade Commission Act, 15 U.S.C. § 45 (2016) (prohibiting “unfair or deceptive acts or practices in or affecting commerce”), and FLA. STAT. § 501.204(1) (2016) (prohibiting “unfair or deceptive acts or practices in the conduct of any trade or commerce”), with 12 U.S.C. § 5531 (prohibiting “unfair, deceptive, or abusive act[s] or practice[s] . . . in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service”). These types of consumer protection statutes are commonly referred to as UDAP statutes, or in the case of the CFPB a UDAAP statute. 86. See Tiffany S. Lee, Note, No More Abuse: The Dodd-Frank and Consumer Financial Protection Act’s “Abusive” Standard, 14 J. CONSUMER & COM. L. 118, 119 (2011) (explaining how other federal consumer protection agencies already had authority prior to the passing of the Dodd-Frank Act to prohibit unfair or deceptive acts or practices, but the CFPB’s authority to prohibit abusive acts or practices “expands the standard of misconduct.”). 87. 12 U.S.C. § 5531(d). 88. Traditionally, government agencies pass regulations that further interpret the law, but the CFPB has declined to do so for abusive acts or practices. Jenna Greene, Beyond 200 Stetson Law Review [Vol. 47 to define abusive acts or practices “one enforcement action at a time.”89 However, the absence of a clear definition regarding this new standard has left many troubling, unanswered questions for businesses that have to comply with the law:
What is “material interference?” What is “unreasonable advantage?” When is it reasonable for a consumer to rely on the covered person to act in their interest? How does one determine whether a consumer is able to protect its own interests? And how does one determine “the interests of the consumer?”90
Businesses have not had a clear understanding of what the law is or how to comply with the law.91 This is because unfair and
Deceptive; Regulators May Not Be Able to Define ‘Abusive,’ But They Know It When They See It, 15 CORP. COUNS. 55, 55–56 (Aug. 1, 2015). 89. Id; see also Evan Weinberger, CFPB’s Definition of Abusive Practices Remains Elusive,LAW360 (July 5, 2012, 8:52 PM ET), www.law360.com/articles/357036/cfpb-s- definition-of-abusive-practices-remains-elusive (speculating that the CFPB likely chose such an enforcement approach because it gives the agency flexibility in determining how to enforce and define an abusive act or practice); How Will the CFPB Function Under Richard Cordray: Hearing Before the Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs of the Committee on Oversight and Government. Reform, OVERSIGHT.HOUSE.GOV 70 (Jan. 24 2012), available at http://oversight.house.gov/wp- content/uploads/2012/06/01-24-12-Subcommittee-on-TARP-Financial-Services-and- Bailouts-of-Public-and-Private-Programs-Hearing-Transcript.pdf (acknowledging the lack of definition in that “[i]t is obviously going to depend on judging facts and circumstances. As we have more guidance to provide, we will try to be transparent in providing the guidance”). 90. Reginald R. Goeke, Is the CFPB Torturing Language with Its Abusive Standard?, LAW360 (Feb. 12, 2015, 5:41 PM ET), www.law360.com/articles/621386/is-the-cfpb- torturing-language-with-its-abusive-standard. See Rebecca Schonberg, Note, Introducing ‘Abusive’: A New and Improved Standard for Consumer Protection, 100 CAL. L. REV. 1401, 1405 (2012): [W]hat level of harm will be sufficient to merit enforcement action? Must lenders assess “lack of understanding” on an individualized basis prior to entering into each contract, or is it to be measured on a group level, perhaps by regulators conducting surveys at regular intervals? Can sophisticated consumers waive the protections of this statute? Will this standard be more effective as an ex ante tool for regulation or an ex post tool for litigation? See also Diane Katz, The CFPB in Action: Consumer Bureau Harms Those It Claims to Protect,HERITAGE FOUND. (Jan. 22, 2013), http://www.heritage.org/housing/report/the-cfpb- action-consumer-bureau-harms-those-it-claims-protect (“One must ask just how the CFPB is to determine consumer ‘ability’ or the requisite degree of consumer ‘understanding’ for a population of more than 300 million Americans using thousands of different financial products and services.”). 91. Because of the lack of understanding of abusive acts or practices, applying the standard has been labeled as essentially a subjective effort. Weinberger, supra note 89. This gives the CFPB flexibility in determining how to enforce the provision, but does nothing in terms of helping the overall marketplace. Id. See also Cheyenne Hopkins, New ‘Abusive’ 2017] Dazed and Confused 201 deceptive acts or practices have been defined through caselaw dating back to the FTC’s inception in 1914. But because “abusive” has been added in conjunction with “unfair” and “deceptive,” it must mean something distinct.92 As a result, many are left to wonder just how much value, if any, the “abusive” standard, and the Dodd-Frank Act in general, really add to consumer protection.93 In the context of this Article, the troubling question
Standard in Dodd-Frank Has Bankers Nervous,FIN. PLAN. (Nov. 23, 2010), https://www.financial-planning.com/news/ new-abusive-standard-in-dodd-frank-has-bankers-nervous (describing a lawyer’s comments that abusive is defined “‘in a way . . . that seems very subjective, because it’s driven off consumer perception and that’s a very difficult thing to regulate. . . . It’s going to open up a lot of subjective analysis by examiners and the courts of what is abusive’”). 92. See Prohibition of Unfair, Deceptive, or Abusive Acts or Practices in the Collection of Consumer Debts,CONSUMER FIN. PROTECTION BUREAU at 4 (July 10, 2013), http://files.consumerfinance.gov/f/201307_cfpb_bulletin_unfair-deceptive-abusive- practices.pdf (“It is important to note that, although abusive acts or practices may also be unfair or deceptive, each of these prohibitions are separate and distinct, and are governed by separate legal standards.”). While the CFPB issued a bulletin providing examples of unfair, deceptive, and/or abusive acts or practices, it did not specify which of the examples provided would constitute unfair, deceptive, or abusive acts or practices. Id. at 5–6. See also Consumer Fin. Prot. Bureau v. ITT Educ. Servs., Inc., 219 F. Supp. 3d 878, 904 (S.D. Ind. 2015) (“The legislative history of the CFPA suggests that the term was added, in part, to enable the Bureau to reach forms of misconduct not embraced by the more rigid, cost-benefit standard that had grown up around the terms ‘unfair’ and ‘deceptive.’”). 93. Compare Hopkins, supra note 91 (labeling the abusive standard “the most egregious” part of the CFPB’s enforcement authority), with Kevin L. Petrasic, The Dodd- Frank Wall Street Reform and Consumer Protection Act: Overview and Implementation, PAUL HASTINGS LLP (July 15, 2010), www.paulhastings.com/publications- items/details/?id=1b47de69-2334-6428-811c-ff00004cbded (touting the Dodd-Frank Act as “the single most important and comprehensive piece of financial system reform legislation since the myriad of reforms following the Great Depression.”); see also Christopher Maag, Post Warren, the Battle Over the CFPB Is Far From Over,CREDIT.COM (July 18, 2011), http://blog.credit.com/2011/07/remember-the-financial-reform-fight-its-far-from-over/ (suggesting that the CFPB’s wide range of power to make products easier to understand will actually prevent businesses from developing new innovative products). As problematic as the current abusive standard might be, the House’s originally proposed version was even broader: (3) Abusive acts or practices.—The Director and the Agency may determine that an act or practice is abusive only if the Director finds that— (A) the act or practice is reasonably likely to result in a consumer’s inability to understand the terms and conditions of a financial product or service or to protect their own interests in selecting or using a financial product or service; and (B) the widespread use of the act or practice is reasonably likely to contribute to instability and greater risk in the financial system.
H.R. REP. No. 111-370, at 41 (2009). When considering the disconnect between the Dodd- Frank Act’s abusive standard compared with other abusive standards, it is also important to remember the political tension regarding the CFPB. See Lydia DePillis, A Watchdog Grows Up: The Inside Story of the Consumer Financial Protection Bureau,WASH. POST (Jan. 11, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/01/11/a-watchdog-grows- 202 Stetson Law Review [Vol. 47 posed by the Dodd-Frank Act’s abusive standard is as follows: could debt collection conduct that has not traditionally been enforced as an abusive act or practice under the FDCPA nevertheless be considered an abusive act or practice under the Dodd-Frank Act’s expanded and unclear definition? 94 The answer is not entirely clear. The CFPB’s authority under the Dodd-Frank Act, in the context of debt collection, also differs from the FDCPA with respect to whom the law applies. The Dodd-Frank Act applies to a “covered person”95 or “service provider,”96 whereas the FDCPA applies to a “debt collector.”97 Although a “debt collector” within the meaning of the FDCPA excludes first-party creditors,98 the scope of the Dodd-Frank Act includes both first- and third-party creditors alike.99 Because a “covered person” and “service provider” apply to “any person” that deals in consumer financial products and services,100 the Dodd-Frank Act makes no distinction between first- and third-party creditors. This brings up another important question that remains unanswered: whether a first-party creditor
up-the-inside-story-of-the-consumer-financial-protection-bureau/ (discussing various issues between Republicans and Democrats in creating the CFPB). Many of the considerations the CFPB took into account in its formation were aimed at compromising with both political parties. See id. (“[T]he agency couldn’t just work to assuage Republicans and the financial industry ... they couldn’t disappoint their left flank either.”). Even in the early days of the Trump Administration, there has already been rhetoric about whether it will restructure or make changes to the CFPB. E.g., Yuka Hayashi, Trump Administration Looks to Restructure CFPB,WALL ST. J. (Feb. 3, 2017, 5:03 AM EST), https://www.wsj.com/articles/ trump-administration-looks-to-restructure-cfpb-1486116000. 94. See Richard E. Bostrom, et al., CFPB’s Examination Manual and First Annual Report Regarding the FDCPA and Federal Enforcement, 66 CONSUMER FIN. L.Q. REP. 31, 32 (2012) (arguing that the lack of precedent for the Dodd-Frank Act’s abusive standard indicates debt collection activity that has not been considered unlawful under the FDCPA may now be considered unlawful under the Dodd-Frank Act). 95. A covered person is defined as “any person that engages in offering or providing a consumer financial product or service.” 12 U.S.C. § 5481(6) (2016) (emphasis added). 96. A service provider is defined as “any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service.” Id. § 5481(26) (emphasis added). 97. Supra note 49. 98. The main exception to this exemption is that the FDCPA will apply to a first-party creditor if that creditor is attempting to collect a debt while using a different name. 15 U.S.C. § 1692a(6) (2016). 99. Compare In re Koresko, 91 B.R. 689, 694 n.2 (Bankr. E.D. Penn. 1988) (noting that “a first party creditor . . . is not subject to the FDCPA.”), with John L. Culhane, Jr. & Christopher J. Willis, CFPB Second Annual Report on FDCPA Activities, 68 CONSUMER FIN. L.Q. REP. 54 (2014) (explaining that while first-party creditors are generally not subject to the FDCPA, the CFPB can subject them to deceptive, unfair, or abusive acts or practices under the Dodd-Frank Act). 100. Supra notes 95–96. 2017] Dazed and Confused 203 could be held liable for an abusive act or practice under the Dodd- Frank Act for conduct that has traditionally only applied to third- party creditors under the FDCPA?101
C. The CFPB’s Debt Collection Rulemaking Process
In 2013, the CFPB issued an Advanced Notice of Proposed Rulemaking (“ANPR”), which sought to collect information regarding debt collection practices in order to promulgate various rules to better protect consumers.102 Although the ANPR was published pursuant to the CFPB’s authority to issue rules for debt collection under the FDCPA,103 the CFPB also referenced its authority under the Dodd-Frank Act to issue regulations regarding unfair, deceptive, and abusive acts or practices.104 The ANPR contained over 160 questions in which the CFPB sought comments relating to areas such as the quality and quantity of information that debt collectors need, the transfer of that information, validation notices, disputes, the conduct of collectors, and many others.105 Notably, the CFPB also devoted a minimal part of its ANPR to unfair, deceptive, and abusive acts or practices. The CFPB briefly explained the relevant authorities on these acts or practices—which include the FDCPA and the Dodd-Frank Act— before posing two important questions with respect to abusive conduct:106
Q92: Should the Bureau incorporate all of the examples in FDCPA section 806 into proposed rules prohibiting acts and practices by third-party debt collectors where the natural
101. An answer may be imminent, however, as amendments to the FDCPA have already been proposed in light of the Henson decision that would bring debt-buyers, who are typically first-party creditors, within the scope of the FDCPA. Supra note 49. 102. ANPR, supra note 19, at 1. 103. The CFPB is the first federal agency with the authority to promulgate new debt collection rules under the FDCPA. Id. Although the FDCPA has been in existence since 1977, the FTC—the agency that traditionally enforced the statute—did not have the authority to issue new debt collection rules. Kevin Petrasic et al., What Should Banks Expect from the CFPB’s Debt Collection Rulemaking?, 35 BANKING & FIN. SERVICES POL’Y REP. 10 (2016). 104. Id. at 9; see also 12 U.S.C. § 5531(b) (2012) (providing the CFPB with authority to “prescribe rules” regarding unfair, deceptive, and abusive acts or practices). 105. ANPR, supra note 19, at 3–4; see also Odinet & White, supra note 24, at 881–910 (summarizing and critiquing the CFPB’s debt collection proposal). 106. ANPR, supra note 19, at 78–80. 204 Stetson Law Review [Vol. 47
consequence is to harass, oppress, or abuse any person? Should any other conduct by third-party debt collectors be incorporated into proposed rules under section 806 on the grounds that such conduct has such consequences? If so, what are those practices; what information or data support or do not support the conclusion that they are harassing, oppressive, or abusive; and how prevalent are they?
Q93: Should the Bureau include in proposed rules prohibitions on first-party debt collectors engaging in the same conduct that such rules would bar as abusive conduct by third-party debt collectors? What considerations, information, or data support or do not support the conclusion that this conduct is “abusive” under the Dodd-Frank Act? Does information or data support or not support the conclusion that this conduct is “unfair” or “deceptive” conduct under the Dodd-Frank Act?107
Based on these questions, it seems the CFPB was seeking to clarify two concerns with the Dodd-Frank Act. First, it seems the CFPB was seeking input on the conflicting standards for abusive conduct under the Dodd-Frank Act and the FDCPA.108 Second, it seems the CFPB was seeking to clarify the conflict between the FDCPA and the Dodd-Frank Act, in determining who is subject to each law.109 At least with respect to the first proposal of debt collection rules, the CFPB did not seem to provide any insight as to the answers to these specific questions.110 The CFPB issued its initial proposal of debt collection rules on July 28, 2016.111 In its proposal, the CFPB outlined many debt collection rules pertaining to the integrity of information, providing certain information to consumers in collection, and communications with consumers generally.112 However, the CFPB did not indicate whether these
107. Id. at 81. 108. I do not use the term “conflicting” to imply the two standards are incapable of coexisting. Rather, I use the term to highlight the unusual nature of prohibiting the exact same type of debt collection misconduct under two statutes with two different standards. 109. By contrast here, the two statutes are conflicting in the traditional sense. The FDCPA only applies to third-party creditors, whereas the Dodd-Frank Act applies to third- and first-party creditors. Supra notes 95–100 and accompanying text. 110. Of course, the rulemaking process is still ongoing, and the possibility is not foreclosed that the CFPB will ultimately answer these questions. 111. Debt Collection Rules Proposal, supra note 22, at 1. 112. Id. at 4–5. For an additional, detailed summary of the CFPB’s initial debt collection proposal, see Eric P. Rosenkoetter & Keith Wier, The CFPB’s Outline of Debt Collection 2017] Dazed and Confused 205 rules add to the understanding of what constitutes an abusive act or practice, whether under the FDCPA or the Dodd-Frank Act. Moreover, although the CFPB declined to issue proposed rules regarding first-party creditors, it indicated it would do so “soon.”113
IV. REMOVING THE DAZE AND CONFUSION
This Part proposes that the CFPB should adopt and integrate the FDCPA’s standard of abusive debt collection practices within the meaning of the Dodd-Frank Act’s abusive standard when applied to debt collection. It also briefly discusses the CFPB’s proposed question about whether to regulate first-party creditors in addition to third-party creditors.
A. The “Abusive” Standard
As the law currently stands, there exist two federal statutes that apply to debt collectors and prohibit abusive conduct, but each do so differently. It is odd that the CFPB would utilize this new abusive standard, but start from a blank slate when similar language for similar conduct is used in the FDCPA.114 The question is why? This is especially questionable given that the CFPB has put forth extensive efforts to regulate the debt collection industry.115 It is likely because the Dodd-Frank Act is intended to encompass a much wider range of conduct than the FDCPA. But given the overlap of the two statutes and the CFPB’s heavy
Proposal: A Look into the Past and Future,BUS. L. TODAY (2016), http://www.americanbar.org/publications/blt/2016/10/03_wier.html. 113. CFPB Director Richard Cordray stated, “we also plan to address first-party debt collectors soon, but on a separate track.” Richard Cordray, Prepared Remarks of CFPB Director Richard Cordray on Field Hearing on Debt Collection,CONSUMER FIN. PROTECTION BUREAU (July 28, 2016), https://www.consumerfinance.gov/about-us/newsroom/prepared- remarks-cfpb-director-richard-cordray-field-hearing-debt-collection/. 114. For an argument on why “abuse” under the FDCPA and “abusive” under the Dodd- Frank Act are different standards and address entirely different misconduct, see Letter from Bill Himpler, Executive Vice President, American Financial Services Association, to Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, Re: Debt Collection 24–26 (Feb. 28, 2014), available at https://www.regulations.gov/ document?D=CFPB-2013-0033-0298. 115. See Brent Ylvisaker, CFPB Targets UDAAPs and Consumer Debt,DORSEY (July 18, 2013), https://www.dorsey.com/newsresources/publications/2013/07/cfpb-targets-udaaps- and-consumer-debt (arguing that the CFPB’s issuance of a bulletin relating to consumer debt collection practices “appears to represent an increasing focus of the CFPB upon UDAAPs in relation to consumer debt practices.”). The current goal of the CFPB to overhaul the debt collection industry by promulgating new rules illustrates this point. 206 Stetson Law Review [Vol. 47 involvement in regulating the debt collection industry, it makes sense to enforce the same standard. As a result, this Article proposes that the FDCPA’s interpretation of abusive debt collection conduct be applied to the Dodd-Frank Act’s application of abusive acts or practices in the context of debt collection.116 As previously discussed, the FDCPA’s standard prohibits “conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection a debt.”117 It goes on to list specific examples, such as using or threating to use violence, or using profanity.118 This standard focuses on the effects of debt collectors’ conduct. It can be harmonized with at least two provisions of the Dodd-Frank Act’s “abusive” standard. The Dodd- Frank Act labels conduct as abusive when it “materially interferes with the ability of a consumer to understand a term or condition of a consumer financial product or service,”119 and when it “takes unreasonable advantage of . . . a lack of understanding on the part of the consumer of the material risks, costs, or conditions of the product or service.”120 For example, if a debt collector threatens to use violence or uses profanity in connection with the collection of a debt, that conduct could certainly materially interfere with or take unreasonable advantage of a consumer’s lack of understanding regarding terms or conditions of a financial product or service.121 The only difference here is that the Dodd-Frank Act would solely apply to debt collection in the context of consumer financial products or services,122 whereas the FDCPA would apply to any
116. An alternative proposal that would achieve a similar objective would be to exempt debt collectors from the application of the Dodd-Frank Act. The CFPB would still have enforcement authority over debt collectors through the FDCPA, which in addition to abusive conduct also prohibits unfair and deceptive acts or practices. 15 U.S.C. §§ 1692d, 1692e, 1692f (2016). However, this proposal is likely less feasible given the highly litigated issue of who does and does not constitute a debt collector. See, e.g., supra note 49 (detailing some of the controversy over the FDCPA’s application to “debt collectors”). 117. 15 U.S.C. § 1692d. 118. Id. §§ 1692d(1)–(2). 119. 12 U.S.C. § 5531(d)(1) (2016). 120. Id. § 5531d(2)(A). 121. At least one commentator would disagree with this proposition. See Letter from Bill Himpler, supra note 114, at 24–26 (arguing the FDCPA’s “abuse” standard and the Dodd- Frank Act’s “abusive” standard address different forms of conduct). 122. See 12 U.S.C. § 5491a (providing the CFPB “shall regulate the offering and provision of consumer financial products or services under the Federal consumer financial laws”); id. §§ 5481(5), (15) (defining consumer financial products or services). 2017] Dazed and Confused 207 instance of debt collection.123 As a result, harmonizing these standards, at least as applied to third-party debt collectors, would provide more clarity in the law. Other federal rules have also drawn from the FDCPA’s “abuse” standard. For example, the Telemarketing Sales Rule124 (“TSR”) is another instance of consumer protection legislation that prohibits abusive conduct, but in the context of telemarketing.125 The TSR adopted a majority of the underlying prohibitions for abusive conduct that are listed in the FDCPA.126 Given that telemarketing is a distinct practice from debt collection, this history provides support that adopting similar standards under the Dodd-Frank Act would likely be an even easier transition. Similarly, the CFPB adopted the FTC’s definition of deceptive and unfair acts or practices into the Dodd-Frank Act.127 Given that adopting a definition or body of law with respect to these consumer protection provisions has been done before, it supports the idea that there should be a certain level of uniformity in the consumer protection standards. This seems like the next logical situation in which to do the same. Such an act would accomplish many important objectives. First, adopting the FDCPA’s body of law with respect to abusive debt collection practices within the Dodd-Frank Act generally provides clarity in the law. The CFPB itself has indicated in its debt collection rulemaking process that it is seeking clarity in the law. Specifically, the CFPB noted in its ANPR that:
Although [unfair, deceptive, and abusive acts or practices are] unlawful under [the FDCPA and Dodd-Frank Act],
123. The “abuse” standard of the FDCPA broadly applies to “any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. There is no language limiting the FDCPA’s application to certain industries, such as the Dodd-Frank Act. 124. 16 C.F.R. § 310 (2016). The TSR is a federal regulation that is part of the Telemarketing and Consumer Fraud Abuse Prevention Act. 15 U.S.C. § 6102 (2016). 125. It has also been argued by others that the TSR should be a resource to define the Dodd-Frank Act’s abusive standard generally, and not necessarily just with respect to debt collection. Lee, supra note 25, at 125. 126. See Rules and Regulations, Telemarketing Sales Rule, 60 Fed. Reg. 43842, 43853 (Aug. 23, 1995) (explaining that the legislative history to the TSR encouraged the FTC to “draw upon its experience in enforcing standards established under the Fair Debt Collection Practices Act”). The TSR defines abusive telemarketing acts or practices in much more detail than the FDCPA, which makes sense given that the TSR addresses an area entirely distinct from debt collection. 127. See Unfair, Deceptive, or Abusive Acts or Practices, supra note 8, at 2 n.4, 5 n.10 (indicating that the Dodd-Frank Act utilizes the same definitions of “unfair” and “deceptive” as the FTC). 208 Stetson Law Review [Vol. 47
incorporating debt collection provisions into rules relating to unfair, deceptive, or abusive conduct could provide greater clarity and specificity. Greater clarity and specificity as to prohibited conduct could make it easier for collectors and others to know what they must do to comply with the law. Rules that provide greater clarity and specificity as to prohibited conduct also could simplify law enforcement actions against those who do not comply.128
Having similar standards for what constitutes an abusive act or practice with respect to debt collection helps achieve that goal.129 It seems counterintuitive to have two federal statutes addressing the exact same type of debt collection misconduct but in two different ways. Moreover, adopting the FDCPA’s body of law regarding abusive debt collection conduct avoids having conflicting standards for private causes of action and enforcement actions. Although the FTC and CFPB can enforce both statutes, only the FDCPA grants consumers with a private right of action.130 By having similar standards of what constitutes an abusive act or practice in the statutes, it provides a certain level of clarity and notice to those who must comply with the law.131 But currently, a company could otherwise be operating in compliance with the abusive conduct provisions of the FDCPA, yet still find itself dealing with an enforcement action by the CFPB and/or FTC for allegedly engaging in abusive acts or practices, but under the guise of a different abusive standard with the Dodd-Frank Act.132
128. ANPR, supra note 19, at 80. While the CFPB wants to provide clarity by issuing specific debt collection rules under the FDCPA, it does not fix the problem that the Dodd- Frank Act still contains an “abusive” standard for the same type of debt collection misconduct. This Article simply advances the argument that the meaning of “abusive” under the FDCPA following the CFPB’s new debt collection rules should be extended to the “abusive” standard under the Dodd-Frank Act when applied to debt collection. 129. Again, even if the CFPB ultimately decides to promulgate new debt collection rules in its FDCPA rulemaking process, those new rules should also be incorporated within the meaning of an abusive act or practice under the Dodd-Frank Act. 130. Supra notes 64–68 and accompanying text. 131. “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). 132. Admittedly, there are circumstances where the standard in a private cause of action differs from that in an administrative enforcement action. For example, in the context of Title IX, a federally-funded educational institution may be held liable in a private cause of action for student-on-student harassment if it had actual knowledge of, and was deliberately indifferent to, harassment that was so severe, pervasive, and objectively offensive as to deprive access to educational benefits or opportunities. Davis v. Monroe Cnty. 2017] Dazed and Confused 209
Finally, having similar standards for abusive debt collection conduct between the FDCPA and Dodd-Frank Act will still allow the law to develop over time, whether through private causes of action or enforcement actions. Courts will still be in a position to interpret the abusive conduct rules in private causes of action, and the federal agencies will still be able to provide clarification through enforcement actions. The development of the abusive standard has been a primary motivation for the CFPB’s debt collection rulemaking, as it has specifically noted challenges in determining what is abusive conduct given the advances in technology.133 As technology continues to advance, so can the standard for abusive debt collection practices. But the developing standard should be the same, whether under the FDCPA or the Dodd-Frank Act.134
B. Regulation of First-Party Creditors
Part two of the CFPB’s debt collection rulemaking process will focus on first-party creditors.135 During the CFPB’s comment period for its debt collection proposal, responses were mixed
Bd. of Edu., 526 U.S. 629, 643–45 (1999). However, the Office for Civil Rights (“OCR”) can bring an administrative enforcement action against an educational institution if “the harassing conduct is sufficiently serious to deny or limit the student’s ability to participate in or benefit from the program, and if the school knows or reasonably should know about the harassment.” Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, U.S. DEP’T EDUC. 12 (Jan. 2001), available at https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf. However, the concerns present in Title IX justify the different standards. The U.S. Supreme Court did not want schools to be liable for money damages for harassment in which it lacked actual knowledge. Id. at iii. In OCR enforcement actions, by contrast, the agency is merely seeking corrective action as opposed to money damages. Id. at iii–iv. With respect to abusive debt collection practices, having a similar standard under the FDCPA and Dodd-Frank Act makes sense given that individuals seek monetary damages in a private cause of action and the FTC or CFPB often seek large monetary settlements in the administrative enforcement context. 133. See ANPR, supra note 19, at 56 (explaining that “challenges often arise when attempting to apply the FDCPA’s prohibitions to a technology that was not envisioned at the time of its enactment and may not easily fit its statutory framework”); Debt Collection Rules Proposal, supra note 22, at 3 (“[T]he ANPR also sought comment about interpreting the nearly forty-year old statute to address contemporary debt collection challenges, including . . . technology such as cell phones, text messages, and email.”). 134. It is important to remember that even with similar abusive conduct standards, the Dodd-Frank Act’s definition of “abusive” as currently written still serves an important purpose. This is because that abusive standard applies in many other industries in addition to debt collection. Thus, to the extent that the CFPB wants to use that standard to cover new types of misconduct that unfair or deceptive might not cover, this Article’s proposal still affords the CFPB with sufficient flexibility to do so. 135. Supra notes 107, 113 and accompanying text. 210 Stetson Law Review [Vol. 47 regarding whether additional rules should be imposed on first- party creditors.136 Opponents to regulation of first-party creditors argue that first-party creditors are already subject to many existing regulations, and that they have an inherent incentive to develop good customer relationships.137 They note that third-party creditors, by contrast, typically only communicate with consumers in order to collect an outstanding debt.138 Supporters of first-party creditor regulation, on the other hand, argue that history has shown both first-and third-party creditors engage in abusive conduct, and the “risk of reputational harm” to first-party creditors has not proven to be a sufficient deterrence from such misconduct.139 It seems now that the issue is more appropriately classified as how will the CFPB regulate first-party creditors, as opposed to if they will regulate first-party creditors. In May 2017, CFPB Director Richard Cordray remarked in a Consumer Advisory
136. See, e.g., Letter from Tony Marcus, Senior Vice President, Cathay Bank, to Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, Re: Advanced Notice of Proposed Rulemaking, Debt Collection (Regulation F) 1–2 (Feb. 27, 2014), available at https://www.regulations.gov/document?D=CFPB-2013-0033-0256 (suggesting that additional debt collection rules for first-party creditors would not provide any benefits); Letter from Patrick Morris, Chief Executive Officer, ACA International, to Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, Comments on the Advance Notice of Proposed Rulemaking on Debt Collection, Regulation F 38–39 (Feb. 27, 2014), available at https://www.regulations.gov/document?D=CFPB-2013- 0033-0257 (suggesting that while it might be logical to apply similar rules to first and third- party creditors, the CFPB should consider whether any particular exceptions should apply to first-party creditors); Letter from Notre Dame Law School Economic Justice Project, to Consumer Financial Protection Bureau, Comments to Proposed Rulemaking, Fair Debt Collection Practices Act 14–16 (Feb. 27, 2014), available at https://www.regulations.gov/ document?D=CFPB-2013-0033-0255 (suggesting that first and third party creditors should be regulated similarly, noting concerns with payday lenders engaging in abusive conduct specifically). 137. See, e.g., Rebecca Plett, Who’s Your Debt Collector Now? Extending Debt Collection Regulation to First-Party Lenders, 19 N.C. BANKING INST. 319, 338–39 (2015) (arguing first- party creditors should not be regulated in the same manner as third-party creditors in part given the many existing regulations for first-party creditors, and their inherent incentive to develop strong customer relationships). 138. See id. at 323 (noting a key difference between first- and third-party creditors in that first-party creditors “depend on consumers choosing their services”). 139. E.g., Letter from Thirty-One State Attorneys General to Richard Cordray, Director, Consumer Financial Protection Bureau, Re: Bureau of Consumer Financial Protection Rules Implementing the Fair Debt Collection Practices Act and/or Pursuant to Authority Under the Dodd-Frank Act 3 (Feb. 28, 2014), available at https://www.regulations.gov/ document?D=CFPB-2013-0033-0342. 2017] Dazed and Confused 211
Board Meeting that debt collection rulemaking for first- and third- party creditors would be consolidated.140
V. CONCLUSION
The CFPB is, and will continue to be, a vital player in the consumer protection field. An agency dedicated to enforcement in the consumer financial market will give consumers the protection they deserve. And in the context of debt collection, the CFPB has assumed a demanding role in taking over primary responsibility for enforcement. But the existence of two federal statutes, both of which cover abusive debt collection practices with two different standards is puzzling. The fusion of abusive debt collection practices under the FDCPA and the Dodd-Frank Act is a logical result. It will be interesting to see how the CFPB’s rulemaking process continues. The Small Business Regulatory Enforcement Fairness Act (“SBREFA”) panel for the CFPB’s proposed debt collection rules was expected to submit a report within sixty days from the time the panel “convened,” which was likely late August 2016.141 The report was not to become public until the CFPB issued its new debt collection rules, which was projected to occur in 2017.142 However, given the restructuring of the CFPB’s debt collection rulemaking agenda,143 it could be much later until the agency issues its final rules.
140. Barbara S. Mishkin, Director Cordray Announces Extension of Comment Period for Small Business Lending RFI, Restructuring of Debt Collection Rulemaking,CONSUMER FIN. MONITOR (June 8, 2017), https://www.consumerfinancemonitor.com/2017/06/08/director- corday-announces-extension-of-comment-period-for-small-business-lending-rfi- restructuring-of-debt-collection-rulemaking/. 141. Barbara S. Mishkin, CFPB Fall 2016 Rulemaking Agenda Published,CONSUMER FIN. MONITOR (Dec. 1, 2016), https://www.cfpbmonitor.com/2016/12/01/cfpb-fall-2016- rulemaking-agenda-published/ [hereinafter Mishkin, CFPB Rulemaking Agenda]. 142. See Barbara Mishkin, Debt Collection SBREFA Panel Meets with SERs, CFPB MONITOR (Aug. 29, 2016), https://www.cfpbmonitor.com/2016/08/29/debt-collection-sbrefa- panel-meets-with-sers/ (projecting the CFPB to issue the debt collection rules “during the first six months of [2017]”). It will be interesting to see if the timeline gets delayed. It is unclear if, or to what extent, the new presidential administration has become an obstacle to the CFPB in its rulemaking process. Further, in addition to debt collection, the CFPB is also in the rulemaking process with respect to arbitration, payday loans, overdrafts, mortgage rules, student loan servicing and consumer reporting, among others. Mishkin, CFPB Rulemaking Agenda, supra note 141. 143. Mishkin, supra note 140.