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Scholarship for Social Justice

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Scholarship for Social Justice

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Volume Fifteen Winter 2011 Number One CUNY LAW REVIEW Edited by the Students of the City University of New York School of Law

Scholarship for Social Justice

2011-2012 . EDITORIAL BOARD

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0LUWATOSIN AnEMUWAGUN PHILIP GROMMET MADELINE PORTA ALFIA AGISH JENNIFER HOGG AMANDA PRESCOTT ROBIN BLUMENKRANZ MICHAL JALOWSKI MELISSA RISSER MOLLY CATCHEN SABINA KHAN AMY RoBINSON-OoST BRENDAN CONNER ROBERT KIM KRYSTLE RODRIGUEZ VIVIAN COSTANDY BROOKE KLUEPFEL VICTORIA RovrENBERG PRATHIBA DESAI MICHAEL MASCETTI JULIA SANDS DANIEL DIETZ JEANNINE MELLY ADAM SHOOP MEAGAN DOLCE KATIE MUSICH JEAN STEVENS KELLY FAY-RODRIGUEZ COLLEEN NORMILE HELEN SUH RAYMOND FERNANDEZ CHRISTINE ORTIZ REBECCA WALLACH IZEL FORTUNATO MARGARET PALMER ALEx VAN ScHAICK LIZ Fusco LAUREN PAULK ELENA ZONIADIS

Volume Fifteen Winter 2011 Number One CUNY LAW REVIEW Edited by the Students of the City University of New York School of Law

Scholarship for Social Justice

CONTENTS

Essay Justice and Law: The One Hundred Year Rule William Quigley 1 Commentary Pepsico and Public Health: Is the Nation's Largest Food Michele Simon 9 Company a Model of Corporate Responsibility or Master of Public Relations? Articles Barriers to Women's Access to Justice in Haiti Meena Jagannath 27 An Irrational Oversight: Applying the PLRA's Fee Walker Newell 53 Restrictions to Collateral Prisoner Litigation Notes Earning the Right to Remain Silent after Berghuis v. Isa Chakarian 81 Thompkins Sex Offender Registration and Notification Laws at Christopher King 117 Home and Abroad: Is an International Megan's Law Good Policy?

Graham, Miller, & The Right to Hope J.M. Kirby 149 Public Interest Practice Section All Children are Created Equal Too: The Disparate Travis Johnson 173 Treatment of Youth Rights in America

Zealous Advocacy for the Right to Be Heard for M. Aryah Somers 189 Children and Youth in Deportation Proceedings

Direct communication about advertising, sponsorships, reprints, or back orders can be sent via email. Manuscripts should be double-spaced and use footnotes, not endnotes. We prefer electronic submissions, which can be sent to us either through the Berkeley Electronic Press's ExpressO service or our email address, [email protected]. cuny.edu.

Volume Fifteen Winter 2011 Number One JUSTICE AND LAW: THE ONE HUNDRED YEAR RULE

William Quigleyt

What is the difference between Law and Justice? How do we evaluate and critique current law in light of the principles of jus­ tice? One way I have found helpful to discuss the difference be­ tween law and justice is to use a tool I call "The One Hundred Year Rule." The difference between justice and law should be a fundamen­ tal part of every law school course. But law students around the country tell me justice is too rarely discussed in law school. Justice is talked about at Orientation and at Graduation, but in between? Not so much. Some suggest the pursuit of justice is not what law is even about. For example, many judges reject any suggestion that the pursuit of justice is even part of their job description. Recall the story of Judge Learned Hand, who called on Supreme Court Jus­ tice Oliver Wendell Holmes to "Do justice!" Holmes replied, "That is not my job. My job is to play the game according to the rules."1 There is a huge difference between law and justice. What is legal is often not the same as what is just. But how do we distin­ guish? We may disagree about what justice is, but we can often agree about what is unjust. 2 The one hundred year rule can help provoke discussion about the difference between law and justice. It might also help challenge us to labor for justice even when injustice seems to rule the day and the foreseeable future.

t Bill Quigley is the Janet Mary Riley Professor of Law at Loyola University New Orleans College of Law. He previously served as the Legal Director for the Center for Constitutional Rights from 2009-2011. 1 Many in the judiciary do not even aim to provide justice. See e.g. Learned Hand, A Personal Confession, in THE SPIRIT OF LIBERTY: PAPERS AND AooRESSES OF LEARNED HANo 302, 306-07 (Irving Dilliard ed., 3d ed. 1960). 2 I prefer the John Rawls definition of justice: "First: e

1 2 CUNY LAW REVIEW [Vol. 15:1

STEP ONE: LOOK BACK ONE HUNDRED YEARS The first step in applying the one hundred year rule is to look backwards a century. What, a hundred years ago, was perfectly legal but is now clearly unjust? I am writing in 2011, so let's take just ten examples from 1911 of things that were perfectly legal but in hind­ sight absolutely unjust. In 1911, women were not allowed to vote in federal elections. Though campaigning for the right since the early 1800s, it was not until the passage of the Nineteenth Amendment in 1920 that wo­ men were allowed to vote.3 In 1911, racial segregation was the law of the land in many states and was practiced in most of the other states. Not until the 1960s did civil rights movements prompt substantial federal legisla­ tion challenging widespread segregation by laws. 4 In 1911, it was legal to employ children in factories, mines, textiles and many other industries. While hundreds of thousands of children still work in the United States, widespread child labor was outlawed nationally with the 1938 Fair Labor Standards Act.5 In 1911, a man could legally rape his wife. 6 Domestic violence protections were largely unknown. 7 What we now condemn as do­ mestic violence was then called a bad marriage. In the 1950s and 1960s, domestic violence was so commonplace and accepted that it was a comic trademark of the 1950s classic sitcom The Honey­ mooners. Ralph Kramden (Jackie Gleason) repeatedly threatened to slug his wife Alice (Audrey Meadows) in the face. Cocking his arm, he bellowed "one of these days ... POW! Right in the kisser! One of these days Alice, straight to the Moon!" as the audience

3 See THE CONCISE HISTORY OF WoMAN SUFFRAGE: SELECTIONS FROM HISTORY OF WoMAN SUFFRAGE (Marijo Buhle & Paul Buhle eds., Univ. of Ill. Press 2005). 4 The post-Civil War history of racial discrimination in voting alone is outlined by Judge John Minor Wisdom in United States v. Louisiana, 225 F. Supp. 353, 366-81 (D.C. La. 1963). For example, in but one of many purges, the number of African American voters in Louisiana dropped from 130,344 in 1897 to 5,320 in 1900. Id. at 374. 5 Though many states had laws limiting child labor before the federal govern­ ment outlawed it, those statutes were not very strong. A 1916 federal law outlawing the interstate transportation of products of child labor, the Keating-Owen Act of 1916, was struck down by the Supreme Court in 1918. Hammer v. Dagenhart, 241 U.S. 251 (1918). Even today child labor continues in the U.S. with an estimated 126,000 to 400,000 children working on farms. See Megan McGinnis, Child Labor Under the Fair Labor Standards Act, 20 KAN. J.L. & PuB. PoL'v 155, 156 (2010). 6 See Lalenya Weintraub Siegel, The Marital Rape Exemption: Evolution to Extinction, 43 CLEv. ST. L. REv. 351, 352 (1995). 7 See Reva B. Siegel, "The Rul,e of Love": Wife Beating as Prerogative and Privacy, 105 YALE L:J. 2117, 2130 (1996). 2011] JUSTICE AND LAW· THE ONE HUNDRED YEAR RULE 3

roared with laughter.8 In 1911, organizing for labor unions was not protected by law. It was the 1935 National Labor Relations Act that first promised protection to employees who chose to organize, join labor unions and bargain collectively.9 In 1911, lynching of African Americans and Latinos was still prevalent in the United States.10 Numerous attempts to pass a fed­ eral law to make lynching a crime were blocked in the United States Congress.11 In 1911, there was no provision for medical care for the eld­ erly or for poor children. Not until the 1960s were Medicare and Medicaid instituted.12 In 1911, companies were allowed to dump waste in waterways and cloud the airways with soot and toxic dust with no regulation at all. Not until the Clean Air Act of 1970 and the Clean Water Act of 1972 did the federal government start down the road towards cut­ ting back on pollution.13 In 1911, it was perfectly legal to discriminate against people with disabilities. It was legal to prohibit people from public schools with disabilities, to refuse to hire people with disabilities, and to terminate people who developed disabilities. Not until the 1990 Americans with Disabilities Act was disability discrimination more

8 See The Honeymooners (CBS 1952). The Family Violence Prevention and Services Act passed in 1984. 42 U.S.C. § llO (1984). The law was considerably broadened in 1994 with the passage of the Violence Against Women Act. Pub. L. No. 103-322, § 40302, 108 Stat. 1941 (1994) (codified as amended at 42 U.S.C. § 13981). 9 29 U.S.C. §§ 151-69 (2006). For examples of the hostility towards labor during this period, see generally WILLIAM FORBATH, LAw AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991). See al,so l NLRB, LEGISIATIVE HISTORY OF THE NATIONAL LABoR MANAGEMENT REIATIONS Acr OF 1947 (1948). 10 See generally STEWART E. ToLNAY & E.M. BECK, A FESTNAL OF VIOLENCE: AN ANAL­ YSIS OF SOUTHERN LYNCHINGS, 1882-1930 (1995); Richard Delgado, The Law of the Noose: A History of Latino Lynching, 44 HARv. C.R.-C.L. L. REv. 297 (2009). 11 See Associated Press, Senate Apologizes for Not Passing Anti-Lynching Laws, Fox NEws, June 13, 2005, http://www.foxnews.com/story/0,2933,159348,00.html (stating that Congress blocked more than 200 attempts to pass anti-lynching laws). 12 Medicaid Program Description and Legislative History: Annual Statistical Sup­ plement, 2010, U.S. Soc. SEc. AoMIN. OFFICE OF RET. & DISABILITY PouCY, http:/I www.ssa.gov I policyI docs/statcomps/ supplement/2010/ medicaid.html (last visited May 14, 2012); Peter A. Corning, THE HISTORY OF MEDICARE (1969), avail,abl,e at http:/ /www.ssa.gov/historyI corning.html. I3 Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat. 1676, codified at 42 U.S.C. §§ 7401-31; Federal Water Pollution Prevention and Control Act, Pub. L. No. 92-500, 86 Stat. 816 (1972). See Arnold W. Reitze,Jr., A Century of Air Pollution Control Law: l-Wzat 's Worked; l-Wzat '.s Failed; l-Wzat Might Work, 21 ENVTL. L. 1549 ( 1991); Jeffrey M. Gaba, Federal Supervision of State Water Quality Standards Under the Cl£an Water Act, 36 VAND. L. REV. 1167 (1983). 4 CUNY LAW REVIEW [Vol. 15:1 comprehensively prohibited. 14 In 1911, a person could be arrested for a crime, put in jail, go to trial, be convicted, even be sentenced to death and executed without ever consulting with, much less being represented by, a l~wyer. Not until the 1963 Supreme Court decision of Gideon v. Wainwright were people actually entitled to a lawyer if they were facing jail.15 In Powell v. Alabama of 1932, the court ruled that a lawyer was probably necessary in many but not all death penalty cases.16 In each of these instances, the law was clear. And in each of these ten instances we now know, with the benefit of hindsight, that the laws were wrong and were actually unjust. There is an unlimited number of other examples that could be used, from the firing of workers injured on the job, to monop­ oly powers of titans of capitalism, barring nonwhite immigrants from becoming naturalized citizens, banks looting the savings of main street people, the savagery of wars that used chemical weap­ ons, to the internment of thousands of people of Japanese or South Asian ancestry. In 1911, churches, synagogues, mosques and other good gov­ ernment institutions were preaching that good people must follow the law. People must not take the law into their own hands. Uni­ versities and colleges followed the laws and made their students follow them. When we look back at 1911, we wonder why people did not see that so many of their laws were unjust. What could they have been thinking? How could they not see?

STEP Two: LooK FORWARD ONE HUNDRED YEARS Today, there is frequently an implied political and legal sense that our laws are the best of all possible laws. We are taught they

14 The Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101; Corning, supra note 12. See BERNARD D. REAMs, JR., PETERJ. McGOVERN & JoN S. SCHULTZ, D1sABILITY LAW IN THE UNITED STATES: A LEGISLATIVE HISTORY OF THE AMERICANS WITH DISABILI­ TIES ACT OF 1990 (1992). 15 Gideon v. Wainwright, 372 U.S. 335 (1963). 16 Powell v. Alabama, 287 U.S. 45 (1932). In this case, the famous Scottsboro Boys trial, the Supreme Court ruled that the failure of the trial court to make an effective order of counsel was a violation of the Constitution. This was explicitly limited. "All that it is necessary now to decide ... is t!Iat in a capital case, where defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him a necessary requisite of due process of law ... . "Powel~ 287 U.S. at 71. 2011] JUSTICE AND LAW· THE ONE HUNDRED YEAR RULE 5 have evolved over time by advocacy and legislative and judicial re­ finement. Again, the implication is that current law has become pretty likely the closest possible approximation to justice that we can imagine. Are there laws that are unjust? Well probably so. But if there are patently unjust laws, they are few and far between. The second part, however, of the one hundred year rule is to imagine the people in the year 2111 looking back on us today. What will those looking back from 2111 think of our laws and our commitment to justice? What will they say about us when they list ten or twenty or a hundred laws that are widely accepted now but will have been by then determined to be clearly unjust? Which of our current laws will look as foolish and as unjust to people one hundred years from now as these examples from 1911 look to us? There are some themes that emerge from the laws of 1911 which might prove helpful in our critique of current law. These themes might be useful in figuring out what current laws will be determined to be flatly unjust one hundred years from now. One theme that runs through several of the since determined to be unjust laws is that there were large groups of people whom the law essentially considered or treated as outside the protection of justice, who had limited rights, and were essentially legally non­ persons. Another theme displayed in those laws is that people and insti­ tutions which accumulated massive and disproportionate amounts of property and power were able to bend and distort the laws to protect their unjust shares of property and power. Who are those still essentially considered non-persons by our current laws? Whose rights do current laws regularly disregard or minimize? I suggest consideration of: the two million plus prison­ ers in our country; our millions of sisters and brothers called un­ documented immigrants, especially people from Mexico, Latin America and the Caribbean; many in the LGBTQ community; Guantanamo prisoners; people whom the United States keeps in other open and secret prisons around the world; the tens of thousands we keep in solitary confinement in the United States; anyone we label as a terrorist; drug dealers; sex offenders; narco­ terrorists; most of the people released from prison after convic­ tions for felonies; people in other countries who are inconve­ niently in the way of our perceived security needs (collateral damage); and the billions of people who are living economically marginal lives in a world where so many live well. Which people and institutions today have successfully accumu- 6 CUNY LAW REVIEW [Vol. 15:1 lated disproportionate amounts of property and power and have bent the laws to protect their unjust gain? I suggest consideration of: multinational corporations of such size and influence that it is a challenge for any of the big and powerful countries to really hold them accountable and which run roughshod over less powerful governments; the hugely distorting role of money in electoral cam­ paigns; corporations which are so unaccountable that they have only to pay slap on the wrist fines for manipulating financial mar­ kets or which soil the air and water while plundering natural re­ sources or making disposable consumer products while small time drug users endure life sentences for three strikes laws; the financial titans who cling to fortunes made on bets that helped millions lose their homes; the hundreds of thousands of others across the globe who prosper by manipulating the stock, bond, commodities, cur­ rency and futures markets; and legislators and bureaucrats world­ wide who do not enforce laws against the rich and powerful but instead seek only their own personal priorities while allowing the resources of the people to be diverted or wasted. In addition, what do we expect people a century from now will say about: the continued use of the death penalty; our toleration of millions of homeless roaming our streets; the accelerated growth of economic inequality; the sharp global inequities between the United States and the industrialized world and the billions of poor people in the rest of the world; the use of drones to assassinate people in other countries; the use of the economic system as a weapon of domination; the continued assault on our shared envi­ ronment; the continued threat from nuclear weapons; allowing corporations personhood protections but not the environment; and so many other questions. How will our defenders answer people one hundred years from now? Will they say we did not know better? Will they say that our churches and colleges and universities helped us go along with current laws? Will they say we were too busy to notice? Will they say that we thought we had the best of all possible laws and that justice was close? Or will they apologize for our blindness and arrogance and our ignorance?

CONCLUSION Law cannot long stand in the way of justice. History shows us that justice remains possible no matter what the law says. Justice continues to march on. People have been laboring for justice over law long before 2011] JUSTICE AND LAW· THE ONE HUNDRED YEAR RULE 7

1911. When women fought for the right to vote they were dis­ counted and jailed. When African Americans and Latinos chal­ lenged segregation and lynching they were reviled and laughed at and threatened. When people struggled for human rights for peo­ ple with disabilities they were dismissed as unrealistic idealists. When people tried to form a union and advocate for safer work­ places they were considered agitators and fired. Despite how it looked back then, they were right and they made progress for us all. Looking back and looking forward a hundred years or more can help place current laws in a more accurate context and give hope and energy to those courageous enough to fight for justice. It is those who struggle for justice despite the limitations of current laws who will make us most proud one hundred years from now. PEPSICO AND PUBLIC HEALTH: IS THE NATION'S LARGEST FOOD COMPANY A MODEL OF CORPORATE RESPONSIBILITY OR MASTER OF PUBLIC RELATIONS?

By Michele Simont

INTRODUCTION While most people just think of soda when they hear the name Pepsi, the multinational conglomerate called PepsiCo is actually the largest food company in the United States and second largest in the world (Nestle is number one).1 PepsiCo's dizzying reach ex­ tends far beyond just fizzy sodas. Formed in 1965 through a merger of Pepsi-Cola with Frito-Lay, the company's marriage of salty snacks with soft drinks has been key to the company's success, and sets it apart from industry competitor Coca-Cola, which still only owns beverages. 2 Over the past decade, many questions have been raised about the role of the food industry in contributing to a marketing envi­ ronment in which unhealthy beverages and snacks have become the norm. While industry responses have come in various forms, PepsiCo stands out, at least in terms of public relations. The com­ pany prides itself on being a leader in corporate social responsibil­ ity. The goal of this article is to take a closer look at what the company says it's doing, what it's actually doing, and the broader context for these actions. By any measure of good health, sugary beverages and salty snacks are not exactly "part of a balanced diet," at least not on a regular basis. Add to that increasing pressures in schools and local communities to reduce or eliminate junk food marketing to chil­ dren, 3 and it becomes clear that a company like PepsiCo has a pretty serious public relations challenge on its hands.

t Michele Simon is a public health attorney and author of Appetite for Profit: How the Food Industry Undermines Our Health and How to Fight Back. She is also the President of Eat Drink Politics, a consulting business on countering corporate harm to improve public health. 1 John Seabrook, Snacks for a Fat Planet, THE NEw YORKER, May 16, 2011, at 54. 2 Our History, PEPSICO, http:/ /www.pepsico.com/Company/Our-History.html (click "1965" on timeline) (last visited Jan. 2, 2012). 3 See, e.g., Gardiner Harris, A Federal Effrm to Push junk Food Out of Schools, N.Y. TIMES, Feb. 7, 2010, at Al4; Kim Severson, Effort to Limit junk Food in Schools Faces Hurdles, N.Y. TIMES, Dec. 2, 2007, at A32.

9 10 CUNY LAW REVIEW [Vol. 15:9

PEPSICO'S PERFORMANCE WITH PURPOSE It's difficult to comprehend the enormity of this company. PepsiCo's total net revenue in 2010 was more than $57 billion, with profits topping $10 billion.4 Often figures are easier to place into context when they are broken down. Here are the company's reve­ nues for a few of its divisions.5

PepsiCo Division 2010 Revenue PepsiCo Americas Beverages (includes Pepsi-Cola, $20.4 billion Gatorade, and Tropicana brands) Frito-Lay North America $13 billion Quaker Foods North America $1.8 billion Latin American foods $6.3 billion Europe $9 billion Asia, Middle East and Africa $6.6 billion

To fully understand how the company is structured, you have to think of PepsiCo as not just a soda and snack company, but bro­ ken down into its five core divisions, organized by brands: Pepsi­ Cola; Frito-Lay; Tropicana; Quaker; and Gatorade.6 Total market­ ing expenditures, which include the costs of advertising and other marketing activities, totaled $3.4 billion in 2010.7 Since becoming CEO in 2006, Indra Nooyi has become some­ thing of a corporate superstar, recognized with numerous awards (including "CEO of the year") and in many publications both in the U.S. and in her native India.8 Her claim to fame is largely based on the company's positioning itself as a national leader in "corpo­ rate social responsibility" in general and as it specifically relates to health and nutrition. The company touts its "Performance with Purpose," which consists of a series of "commitments" in three ar­ eas: health; the environment; and company employees.9 Given the criticism the company has come under for selling products like Mountain Dew and Cheetos (among many other brands), PepsiCo needs to at least appear to be making some

4 PEPSICO, PERFORMANCE WITH PURPOSE: THE PROMISE OF PEPSICO, PEPSICO 2010 ANNUAL REPORT 15 (2010), available at http://www.pepsico.com/Download/Pepsi Co_Annual_Report_2010_Full_Annual_Report.pdf. 5 Id. at 65. 6 See Brands, PEPSICO, http:/ /pepsico.com/Brands.html {last visited Dec. 21, 2011). 7 PEPSICO, supra note 4, at 80. 8 See e.g. Global Leaders Group, GLOBAL SUPPLY CHAIN REv., July 2009, at 3. 9 PErs1Co, supra note 4, at 10. 2011] PEPSICO AND PUBLIC HEALTH 11 changes. Some of the company's stated commitments with respect to its products are to: • Provide more food and beverage choices made with whole­ some ingredients that contribute to healthier eating and drinking. • Increase the amount of whole grains, fruits, vegetables, nuts, seeds, and low-fat dairy in our global product portfolio. • Reduce the average amount of sodium per serving in key global food brands, in key countries, by 25% by 2015, with a 2006 baseline. • Reduce the average amount of saturated fat per serving in key global food brands, in key countries, by 15% by 2020, with a 2006 baseline. • Reduce the average amount of added sugar per serving in key global beverage brands, in key countries, by 25% by 2020, with a 2006 baseline. 10 While these certainly sound like worthy goals, much of the lan­ guage is vague and questions loom regarding accountability and evaluation. For example, the pledges to reduce sodium, saturated fat, and added sugar are only "in key global food brands" and "in key countries." Which ones are "key"? Also, PepsiCo is in charge of measuring any progress the company is making toward these goals. In its 2010 annual report, PepsiCo uses more vague language to show off how well they are doing in each category. For example, sweetened beverages have come under a lot of scrutiny for causing health problems. Here is an excerpt from how PepsiCo is reporting its progress on this issue: While reducing added sugars in beverages is challenging-due to strong consumer taste preferences for sugar and complex regulatory processes for alternatives-we have set aggressive goals and are making progress toward achieving our 25 percent reduction target by 2020.11 No wonder it's a challenge when companies like PepsiCo have con­ vinced Americans to drink soda and other sugary beverages instead of water. Complaining about "complex regulatory processes" is a way to excuse inaction. No further details are given, except that the company is hard at work to develop "an all-natural sweetener designed to replicate the taste and feel of sugar."12 In other words, the solution is more

10 Human Sustainability, PEPSICO, http:/ /www.pepsico.eu/purpose/human­ sustainability (last visited Dec. 21, 2011). 11 PEPSICO, supra note 4, at 28-29. 12 Id. at 29. 12 CUNY LAW REVIEW [Vol. 15:9 technology when the healthiest thing people could do is replace all bottled beverages with tap water. But a company that makes $20 billion annually selling beverages can't exactly say that. Given the public outcry regarding marketing to children, es­ pecially in the school setting, PepsiCo has also made the following commitments under "marketplace." Encourage peofle to make informed choices and live healthier. • Display calorie count and key nutrients on our food and bev­ erage packaging by 2012. • Advertise to children under 12 only products that meet our global science-based nutrition standards. • Eliminate the direct sale of full-sugar soft drinks to primary and secondary schools around the globe by 2012. • Increase the range of foods and beverages that offer solu- tions for managing calories, like portion sizes. 13 More vague and self-serving language here, including the promise to only advertise to children under 12 "products that meet our global science-based nutrition standards." Trouble is that PepsiCo gets to decide the science-a company that has a vested interest in the outcome of that science. And what about the progress being made? More vague language from the annual report: For example, between 2006 and 2009, we voluntarily discontin­ ued direct sales of full-sugar soft drinks to K-12 schools in the U.S. and replaced them with smaller-portioned and lower-calorie bev­ erage options. We also do not sell full-sugar soft drinks directly to primary and, in some cases, secondary schools in most of Europe, Ca­ nada, Australia and the majority of countries in the Arabian Penin­ sula (emphasis added). 14 It's unclear exactly what the phrases in italics mean and how these qualifiers undercut the specifics and the spirit of the commitments. The bottom line is that PepsiCo is in charge of everything: of what sort of changes they commit to, of how any progress is evaluated and of course, how the results are reported.

SPINNING THE PRODUCT PORTFOLIO When it comes to claims of caring about people's health and offering "wholesome foods and beverages,"15 PepsiCo has a huge challenge on its hands. Most of the corporate profits come from selling the very products that Americans need to be eating less of:

13 Id. 14 Id. at 30. 15 Id. at 2. 2011] PEPSICO AND RUBLIC HEALTH 13 nutritionally deficient sugar-loa ed soft drinks and salty, fatty snacks. But PepsiCo has realized that by creating a continuum of "healthiness" in which the entir universe is defined by the com­ pany's own products, this public relations problem could be over­ come. Enter PepsiCo-speak. The company prides itself o a wide portfolio of products that are broken down into a trio of sp~n-centric "good-for-you," "better­ for-you," and "fun-for-you" proddcts, as described by PepsiCo CEO Indra Nooyi in an interview with Fortune.16 According to Nooyi, the "fun-for-you" products include full-octane brands such as Pepsi and Mountain Dew, Doritos and Lays, while the "better-for-you" category is comprised of allegedly healthier options including Diet Pepsi, Baked Lays, and SoBe Lifewater. Rounding out the portfolio trifecta are the "good-for-you" choices from the company's Quaker, Tropicana, Naked Juice, and Gatbrade lines.17 In the world of PepsiCo nu rition, drinks like Diet Pepsi are "better-for-you" because they hav zero calories. But that's hardly a measure of good nutrition. Mari n Nestle, Paulette Goddard Pro­ fessor in the Department of Nu ition, Food Studies, and Public Health at New York University a d author of Food Politics (among other books) is unimpressed with PepsiCo's three-tiered approach: PepsiCo is leading the way to nd health reasons to sell junk food. "Fun-for-you" is a brillian tf way to spin "bad-for-you." "Bet­ ter-for-you" raises the question, rbetter than what? It's great the company isn't claiming these products are health foods but I think PepsiCo is on a slippery s~ope in these categories.18 Also, that Nooyi places the entire line of Gatorade products in the "good-for-you" category is especially troubling. Most health experts say that except for marathon rum;iers and tri-athletes, the made-up category of "sports drinks"-mostly sugar water with artificial color­ ing-is really unnecessary.19 Eve~ worse, to promote these prod­ ucts in schools, where kids are ~arely getting any exercise these days, is downright shameful. As Pr fessor Nestle put it, "Since when is Gatorade equivalent to orange 'uice in its health benefits?"20

16 JP Mangalindan, PepsiCo CEO: "If All onsumers Exercised . .. Obesity Wouldn't Ex­ ist," FORTUNE (Apr. 27, 2010, 1:02 PM E ), http://money.cnn.com/2010/04/27/ news/ companies/indra_nooyi_pepsico.for~ ne/index.htm. 17 Id. I 18 Michele Simon, Pepsi Teams Up with White House to Whitewash Worthf.ess Snacks and Sodas, ALTERNET (June 2, 2010), http:Ji/www.alternet.org/health/147064/pepsi_ teams_up_with_white_house_to_whitewash.!._worthless_snacks_and_sodas/. 19 See Marcie Beth Schneider et al., Clinifal Report-Sports Drinks and Energy Drinks for Children and Adof.escents: Are They Appropriate?, 127 PEDIATRICS 1182 (2011). 20 Marion Nestle, Pepsi's Answer to "Eat Natural": Snackify Beverages and Drinkify 14 CUNY LAW REVIEW [Vol. 15:9

Nooyi also admits that right now, the portfolio is only 20% "good for you" but she sees "growth" in that category. Still, she also refers to the other 80% as the "core" brands of the company that they need to focus on. 21 Nooyi says the company is putting more R&D dollars behind developing additional "good-for-you" products and is "investing in new sweeteners and salt-reduction technologies to make our 'fun­ for-you' products better for you."22 In other words, the company is hard at work trying to engineer healthy Cheetos. The economic goal is to increase the cun:ent $10 billion in revenues from "good-for-you" products to $30 billion over the next decade. Nooyi explains that the company will achieve this in part with "fruit and vegetable offered in different forms, whole grains or any other sort of super grains."23 How exactly, does a processed food company accomplish this? Nooyi explains in more Pepsi­ speak: "We see the emerging opportunity to 'snackify' beverages and 'drinkify' snacks as the next frontier in food and beverage convenience."24 In an amalgam of the two, in early 2011, the company released a new product called "Tropicana Tropolis"-squeezable fruit, de­ signed to "squeeze more fruit into kid's daily diets."25 But nutrition expert Marion Nestle is not impressed. She describes it as, "watery apple and banana sauce, artificially thicke'ned, sweetened with fruit sugars, flavored with additives, and with added vitamin C" q,nd con­ cludes that "kids would be better off eating an apple or a banana."26

LAY'S CHIPS: FARMWASHING? While total Lay's sales topped $2 billion in 2009, growth-the key to continued success-was down in 2010. According to the New York Times: "Sales growth for Lay's had slowed to less than 1 per-

Snacks, Fooo POLITICS (Jan. 5, 2011), http://www.foodpolitics.com/2011/0l/pepsi's­ answer-to-" eat-natural"-snackify-beverages-and-drinkify-snacks/. 21 Fareed Zakaria CPS: Interview with Indra No

cent from 2005 to 2007, raising concern among executives at Frito­ Lay as well as PepsiCo."27 Translation: the company is worried and looking for new ways to greenwash its products. And no wonder, with the growth of the local food movement, an increasing segment of the population is concerned with where their food comes from. This is another public relations headache for a multinational company whose business model doesn't exactly lend itself to having booths at your local farmers market. But Pep­ siCo PR professionals are all over that problem with, what else? An ad campaign. Marion Nestle aptly describes it as "farmwashing."28 Not wanting to miss out on the current "love your local farmer" movement, the campaign featured ads of regional farmers in local markets, along with an online "Happiness Exhibit" photo gallery at lays.com. The addition of farmers to the ad campaign is an aim, says Gannon Jones, vice president for portfolio marketing at Frito-Lay, "to put the hometown face on it, and the hometown face is our farmers."29 But how come the company didn't put the "hometown face" of the local factory workers who pulverize the potatoes, and then douse the mixture in salt along with many gallons of ("all-natural") oil. Or the other numerous local factory workers who must work very hard turning those "simple ingredients" into fried chips. Then there are even more local factory workers on the assembly line where all of those many chips are put into bags. They also left out the local factory workers who put the bags into boxes, seal the boxes and get them ready to leave the factories. And who can forget all the local truckers who have to drive the big trucks to the regional distribution centers before they can be deliv­ ered by yet other local truck drivers to all those local stores. Nope, just focus on the local farmers. Wonder why?

Co-OPTING SCIENCE AND HEALTH PROFESSIONALS Shaking the foundations of sound policy-making in attempts to control the scientific discourse on nutrition and health is a well­ honed strategy of the food industry. While the tactic takes numer­ ous forms, its goals are always the same, to: (1) cast doubt on

27 Stuart Eliot, Promoting a Potato Chip Using Many Farmers, and Less Salt, N.Y. TIMES, May 26, 2010, at Bl. 28 Michele Simon, PepsiCo's Latest "Local" Ad Campaign for Lay's Reveals that Potato Chips Come from . .. Potatoes!, APPETITE FOR PROFIT (May 28, 2010), http://www.appe ti teforprofit.com/2010 / 05 /28/ pepsicos-latest-local-ad-cam paign-for-lays-reveals-that­ potato-chi ps-come-from-potatoes/. 29 Eliot, supra note 27. 16 CUNY LAW REVIEW [Vol. 15:9 findings that might threaten financial interests; (2) position food makers' own (biased) contributions to the scientific debate as legit­ imate and authoritative; (3) co-opt experts who would otherwise be critical of business practices; and ( 4) ensure ultimately that people continue to consume food companies' unhealthy products. While plenty of other food companies are attempting to healthwash their junk food products and menu items, PepsiCo has emerged as the industry leader in the cooptation of health profes­ sionals. The company has an entire department with the official sounding name of "Global Health Policy."30 At the helm is a public health professional who once worked for a much more prestigious institution: The World Health Organization. Ask anyone who's been in the public health field for at least ten years if they've heard of Derek Yach, and the response is likely to be: "Of course, he's a public health hero."31 But when the news came, in 2007, that one of the world's most respected public health experts went to work for PepsiCo, many were shocked.32 It was a personnel coup for PepsiCo whose new director of global health policy came with a pedigree the company must have been salivating over. A native of South Africa where he did his medical training, Yach established the Center for Epidemiologic Research at the South African Medical Research Council. But he earned his global health hero reputation as Representative of the Director General at the World Health Organization. There, he helped cement the Framework Convention on Tobacco Control, an unprecedented global treaty that pitted Yach against the world's most powerful tobacco industry leaders. While at WHO, Yach also became embroiled in food issues, at times finding himself at odds with Big Food. Indeed, his willingness to speak out about food politics ultimately led to his downfall at WHO, which only furthered his public health hero status. Ironi­ cally, though, it was when he later joined Kelly Brownell's team at the Rudd Center for Food Policy and Obesity at Yale University that things went downhill. Yach left Rudd for a brief stint at the Rockefeller Foundation before joining PepsiCo in 2007.

30 Press Release, PepsiCo, PepsiCo Appoints Derek Yach As Director - Global Health Policy (Feb. 8, 2007), available at http:/ /www.redorbit.com/news/health/ 832479 I pepsico_appoin ts_derek_yach_as_director_glo bal_heal th_policyI. 31 See e.g. Michele Simon, How junk Food Giant PepsiCo Is Buying Up High-Ranking Experts to Look Like a Leader in Health and Nutrition, ALTERNET (Aug. 5, 2010), http:/ I www.alternet.org/food/147738/how_junk_food_giant_pepsico_is_buying_up_high­ ranking_experts_to_look_like_a_leader_in_health_and_nutrition/?page=2n. 32 Id. 2011] PEPSICO AND PUBLIC HEALTH 17

New York University Professor Marion Nestle, author of Food Politics, offers her take on what happened: I first met Derek Yach when he was a public health hero at WHO for his efforts to get food companies to stop marketing junk foods to kids and to stop lobbying against proposed WHO advice to restrict sugars. He lost on both counts, but not for lack of trying. He must have decided that outside advocates can't get anywhere with food companies and that change has to come from within. I'm dubious that meaningful changes from within are possible for a company that makes most of its money selling sodas and potato chips, but that's just me.33 PepsiCo has placed other health experts on its payroll for simi­ lar reasons.Just a few months after Yach was hired, PepsiCo tapped Dr. Mehmood Kahn also for the newly created position of "Chief Scientific Officer." Kahn worked at the Mayo Clinic and also served as division chief of endocrinology, metabolism and nutrition at the University of Minnesota Medical School.34 But PepsiCo did not stop there. PepsiCo plucked its latest plum from the tried and true depository of scientific experts: the U.S. government. In late 2009, Dr. George Mensah became Pep­ siCo's "Director of Heart Health and Global Health Policy." Previ­ ously, Dr. Mensah, a native of Ghana, spent nearly a decade with the U.S. Centers for Disease Control and Prevention, helping lead the federal agency's efforts to fight strokes, heart attacks, heart dis­ ease and colorectal cancer.35 But his government career got trumped by Cheetos. In a 2010 interview, Dr. Mensah explained his decision to work for PepsiCo: "The real role we play is to use the best science available to make sure everything we do supports our customers. I don't feel like I've left public health."36 And why should he, when he is surrounded by other doctors? Great strategy: Create a re­ search environment where scientists don't feel out of place so they forget they're working for a company that profits from the sales of salt, sugar, and fat. To recap: Since 2007, PepsiCo has hired at least three noted

33 Id. 34 Press Release, PepsiCo, PepsiCo Names Dr. Mehmood Khan Chief Scientific Of­ ficer (Dec. 12, 2007), availabl,e at http://www.redorbit.com/news/health/1180054/ pepsico_names_dr_mehmood_khan_chief_scientific_officer. 35 Jeremiah McWilliams, Whatever Happened to ... George Mensah?, AJC.coM (ATLANTA JOURNAL-CONSTITUTION) (May 14, 2010, 5:00 p.m.), http:/ /www.ajc.com/ business/whatever-happened-to-george-527595.html. 36 Id. 18 CUNY LAW REVIEW [Vol. 15:9 international experts in medicine, science, and public health. Their pedigrees span the world's premier public health organiza­ tion, America's top public health governmental agency and the most respected medical and research academic institutions.

FINDING SCIENTIFIC VEHICLES FOR THE CORPORATE MESSAGE

Another disturbing sign that PepsiCo was coopting the scien­ tific conversation around public health and diet came in 2010 when CEO Indra Nooyi succeeded in infiltrating one of the na­ tion's most respected annual reports on obesity. For the past eight years, a nonprofit called Trust for America's Health (TFAH) has published a report called Fas in Fat, which updates the grim obes­ ity statistics from around the nation, culling information mostly from respectable government sources. In the 2010 edition, right in the middle of the sobering data and potential policy solutions came an unexpected new entry: a two-page missive penned by In­ dra Nooyi herself. As you might expect, it reads more like a press release than scientific analysis: "We firmly believe companies have a responsibility to provide consumers with more information and more choices so they can make better decisions," Nooyi wrote.37 Even more troubling, this report is co-published by its funder, the Robert Wood Johnson Foundation (R\~JF), the nation's largest health care foundation. One of RV\jF's most ambitious goals is to "reverse the childhood obesity epidemic by 2015." Why is PepsiCo infiltrating what used to be neutral reports from the Trust for American Health and the Robert Wood Johnson Foundation? Laura Segal, spokesperson for the Trust for America's Health, says that having PepsiCo CEO Nooyi's comments in the report was an innocent attempt to have the "industry perspective" and not the result of any shady financial relationship. "We reached out to a number of companies and Pepsi was the first one to respond. We want to represent a range of opinions and the industry segment is a significant component of dealing with obesity," says Segal.38 In contrast, Harold Goldstein, executive director of the Cali­ fornia Center for Public Health Advocacy, notes what Nooyi conve­ niently left out:

37 TRUST FOR AMERICA'S HEALTH, F Is FOR FAT 44-45 (2010), available at http:// healthyamericans.org/reports/obesity2010/0besity2010Report.pdf. 38 Melanie Warner, Obesity Reporl Chronicles the Sad State of America's Waistline-and Tells Us How Great PepsiCo Is, CBS MoNEYWATCH Quly 1, 2010, 6:30 AM), http:/ /www. bnet.com/blog/food-industryI obesity-report-chronicles-the-sad-state-of-americas­ waistline-8212-and-tells-us-how-great-pepsico-is/ 1129. 2011] PEPSICO AND PUBLIC HEALTH 19

She doesn't mention the highly sophisticated multimillion dol­ lar national marketing and lobbying campaign they have under­ taken to promote themselves as good corporate citizens and undermine efforts to establish state and local policies to reduce consumption of sugar-sweetened beverages, which have been the single leading contributor to the obesity epidemic.39 In other words, when food companies such as PepsiCo (even when speaking through their own scientific experts) opine on a major public health problem, we are not about to hear the entire story, but rather one filtered through the corporate agenda, which by definition must promote its bottom line, and thus omit the less flattering aspects. That's why no matter how many MDs or PhDs the company hires, or how many public health reports it infiltrates, PepsiCo should never be looked to as an expert on anything other than what it does best: marketing and selling highly processed food and beverage products to the world. In the right hands, science plays a critical role in public policy debates. We need to rely on credible science for sound decision making. So it's critical that scientific research remain unfettered by corporate interests. As more and more health experts and organi­ zations slide down the slippery slope of accepting corporate fund­ ing, we will ultimately lose a critical tool for effective policymaking.

PHILANTHROPY DISGUISED AS MARKETING While most large corporations engage in some form of philan­ thropy, PepsiCo has demonstrated remarkable skill in this depart­ ment as well. And what better place to show how much the company cares than in schools? Schools have become especially controversial in the food debate because of concerns that corpora­ tions should not be targeting children in a learning (and captive) environment. For example, in 2010, PepsiCo's Frito-Lay North America infil­ trated high school football season with its "Score for Your School" program for Texans that invited fans to help schools win up to a $10,000 donation for their sports programs. Texans could visit www.scoreforyourschool.com, enter the 9-digit product code from any Frito-Lay product (chips, dips, salsa and more) and then select the Texas high school of their choice.40 This is branding disguised as philanthropy.

39 Simon, supra note 31. 40 Michele Simon, Back to School with PepsiCo Stealth Marketing?, APPETITE FOR 20 CUNY LAW REVIEW [Vol. 15:9

For the past couple of years, the company has been gaining much positive PR with its ubiquitous Pepsi Refresh donation pro­ gram.41 In 2010, a parochial elementary school in Alton, Illinois held a "thank you assembly" for Pepsi employees after the school won a Refresh Everything grant of $25,000 to purchase com­ puters. 42 An article describing the event showed the image of ador­ able six-year-old Matthew Dixon holding a "thank-you Pepsi" sign.43 This is the same company that has pledged to "[e]liminate the di­ rect sale of full-sugar soft drinks to primary and secondary schools around the globe by 2012."44 The local reporter explains how the youngsters showed Pepsi employees their gratitude: The entire school signed a large, thank-you poster, and the younger students made individual thank-you drawings in red, white and blue, the soda brand's colors (emphasis added). Teach­ ers wore turquoise shirts that read, "Every Pepsi Refreshes the World," and the children pinned on Pepsi buttons ... The high­ light of the 15-minute assembly in the gymnasium came when Father Delix Michel riled up the youngsters with a T-shirt toss. Similar to professional baseball games-but minus the sling­ shot-Michel showed a good pitching arm as he deftly threw Pepsi shirts to all areas where students were sitting, including landing one shirt in the back row. Some of the shirts landed in the students' laps.45 A priest handing out Pepsi T-shirts, it doesn't get any better than that for positive PR. Of course it's fine if PepsiCo wants to give back to the community, but this is not philanthropy, it's branding. The Pepsi Refresh website has an entire section devoted to educa­ tion.46 But Pepsi does not belong in schools, whether it's vending machines or voting contests. Another disturbing aspect of the Pepsi Refresh Project is its cooptation of healthy food advocates. The program comes com­ plete with a "Food and Shelter Ambassador" that is making $5K

PROFIT (Sept. 1, 2010), http://www.appetiteforprofit.com/2010/09/01/back-to­ school-with-pepsico-stealth-marketing/. 4 1 See generally PEPSI REFRESH PROJECT, http:/ /www.refresheverything.com/ (last visited Dec. 21, 2011). 42 Linda N. Weller, Pepsi Refreshes Alton Parochial School's Computers, TttETELEGRAPH.COM (Aug. 20, 2010, 8:30 PM), http://www.thetelegraph.com/news/ pepsi-43982-new-alton.html. 43 Id. 44 PEPSICO, supra note 4, at 30. 45 Weller, supra note 42. 46 See generally PEPSI REFRESH PROJECT, supra note 41. 2011] PEPSICO AND PUBUC HEALTH 21 grants for projects like school gardens and a cross-country bicycle potluck.47 And in another heartwarming kid project, a farmers market in Illinois won $25,000 to help teach schoolchildren about eating fresh fruits and vegetables, a worthy cause for sure. 48 But what about the mixed messages kids receive from all the promo­ tion with Pepsi logos associated with these two projects? It's no wonder that in these hard economic times, so many groups would be desperate enough to turn to the nation's largest purveyor of processed food to try and promote the healthy kind. But they are really doing more to promote the Pepsi brand than they are to advance their own cause. Indeed, they are undermining the very ideals they espouse. Moreover, these grants give credibility to the notion that we can (and should) rely on Big Food to fix our broken food system. But nothing could be further from the truth. PepsiCo is happy to spend relatively small amounts of money in exchange for getting to hitch its PR wagon to the likes of farmers markets and school gardens.

PEPSICO IN THE DEVELOPING WORLD, AKA "EMERGING MARKETS" In addition to being America's leading purveyor of processed foods, PepsiCo is also positioning itself as global leader, forming a "Global Nutrition Group" in 2010. According to the company's an­ nual report, this "groundbreaking initiative is intended to help ac­ celerate the growth of our Good-for-You products from $10 billion in net revenue in 2010 to $30 billion by 2020."49 These days no food company can survive globally without continuous expansion, especially into the developing world. Global growth is also crucial because of threats of regulation and other public relations challenges here at home. PepsiCo is very dependent on "emerging markets," which in corporate speak means the developing world. PepsiCo proudly an­ nounced a $2.5 billion investment in China, on top of the $1 bil­ lion the company has already spent there since 2008.50 The soft drink and snack food giant intends to build a dozen new food and beverage plants, to add to the current 27 facilities. 51 Its interna-

47 Michele Simon, Why Are Healthy Food Advocates Stumping for Pepsi?, APPETITE FOR PROFIT (Sept. 20, 2010), http://www.appetiteforprofit.com/2010/09/20/why-are­ healthy-food-advocates-stumping-for-pepsi/. 48 See PEPSI REFRESH PROJECT, supra note 41. 49 PErs1Co, supra note 4, at 27. 50 Valerie Bauerlein, Pepsi Battles Coke in China-Investment of $2.5 Billion Increases Competition with Main Rival, Local Finns, WALL ST. J., May 22, 2010, at B6. 51 Id. 22 CUNY LAW REVIEW [Vol. 15:9

tional business boosted 2010 first-quarter results, with its Asia, Mid­ dle East and Africa unit posting 13% growth in snack volume and 10% in beverage volume, largely due to growth in China and In­ dia.52 According to the Wall Street journal: "Both beverage giants [Pepsi and Coke] are expanding aggressively in China, India and Russia, among other emerging markets, where growth is much faster than in the U.S. Soft-drink sales have declined for five years in the U.S."53 While it's typical for global food companies to expand in this manner, PepsiCo is also positioning itself as a source of good nutri­ tion for malnourished nations. For example, the company says that "in countries where malnutrition is a serious issue, we offer prod­ ucts directly aimed at addressing chronic hunger."54 The company announced "a pilot program focusing on chronic hunger . . . to eradicate extreme poverty and hunger by 2015" and is "working toward developing nutritious fortified products to reduce hunger in India, South Africa, and in time, Nigeria."55 But are fortified processed foods really the answer to global hunger?

PEPSI'S LOBBYING POWER

PepsiCo Helping to Undermine Marketing to Children Regulation For years, PepsiCo and other food companies that claim to be so responsible and care about the welfare of children have shown themselves to be completely untrustworthy. In late 2005, given alarming data on childhood obesity and the connection to child­ targeted junk food ads, the Institute of Medicine recommended that Congress act within two years if industry showed no signs of progress through voluntary measures.56 In response, fast food and junk food peddlers banded to­ gether in 2006 to create the impressive-sounding Children's Food and Beverage Advertising Initiative (CFBAI).57 An "initiative" is in-

52 Id. 53 Id. 54 Addressing Under Nutrition, PErs1Co INDIA REGION, http:/ /demol.pepsicoindia. co.in/CSR/PerformanceWi thPurpose/HumanSustainabili ty /AddressingU nderNutri tion.aspx (last visited Dec. 21, 2011). 55 Id. 56 INST. OF MEDICINE, FooD MARKETING TO CHILDREN AND YOUTH: THREAT OR OP­ PORTUNITI'? (2010), available at http:/ /www.iom.edu/Reports/2005/Food-Marketing­ to-Children-and-Youth-Threat-or-Opportunity.aspx. 57 See generally Children's Food and Beverage Advertising Initiative, Better Business Bu­ reau, http://www.bbb.org/us/ children-food-beverage-advertising-initiative/ (last vis­ ited Dec. 21, 2011). 2011] PEPSICO AND PUBUC HEALTH 23 dustry's favorite way to substitute for actual law. The CFBAI con­ sisted of a series of individual company "pledges" on food marketing to children.58 PepsiCo proudly touts its membership in CFBAI.59 Only one problem: by all accounts, it's been a dismal fail­ ure. At least three organizations, the Yale Rudd Center for Food Policy and Obesity, Children Now, and the Center for Science in the Public Interest have each conducted reviews of industry volun­ tary self-regulation on food marketing to children and found the system to be lacking, to say the least. 60 Then in 2009 at the request of Congress, four government agencies-Federal Trade Commission, Centers for Disease Control and Prevention, U.S. Department of Agriculture, and the Food and Drug Administration-collectively known as the Interagency Work­ ing Group, proposed voluntary "principles" for food companies to follow in hopes of curbing ads aimed at kids for fast food, sugary cereals, soda, candy, and a host of other nutrient-deficient food products.61 The FTC even took pains to explain just how voluntary the rules would be: This is a report to Congress, not a rulemaking proceeding, so there's no proposed government regulation. In fact, the ITC Act explicitly forbids the Commission from issuing a rule re­ stricting food advertising to children. So the ITC couldn't issue a rule on this subject if it wanted to, which it doesn't.62 And yet, in July 2011, the food industry launched an all-out offen­ sive against this tame governmental attempt to rein in corporate marketing. Enter the "Sensible Food Policy Coalition" consisting of Pep-

58 Id. 59 See PU1pose: Policies, PEPSICO, http:/ /www.pepsico.com/Purpose/Performance­ with-Purpose/Policies.html (last visited Dec. 21, 2011). 60 JENNIFER L. HAiuus ET AL., YALE RuDD CTR. FOR FooD PouCY AND OsESl'IY, FAST FooD FACTS: EVALUATING FAST FooD NUTRITION AND MARKETING TO YOUTH (2010), avai/,able at http://fastfoodmarketing.org/media/FastFoodFACTS_Report.pdf; CHIL­ DREN Now, THE IMPACT OF INDUSTRY SELF-REGULATION ON THE NUTRITIONAL QUAU'IY OF Fooos ADVERTISED ON TELEVISION TO CHILDREN (2009), available at http:/ /www. childrennow.org/index.php/learn/reports_and_research/article/576; AMEENA BATADA ET AL., CTR. FOR Set. IN THE PUB. INTEREST, BETTER-FOR-WHO? (2009), available at http://cspinct.org/new/pdf/pledgereport.pdf. 61 See Press Release, Fed. Trade Comm'n, Interagency Working Grp. Seeks Input on Proposed Voluntary Principles for Marketing Food to Children (Apr. 28, 2011) http:/ /www.ftc.govI opa/2011/04/foodmarket.shtm. 62 David Vladeck, Whats on the Table, BUSINESS CENTER BLOG FOR THE BUREAU OF CONSUMER PROTECTION: BUSINESS CENTER Uuly 1, 2011, 8:46 AM), http:/ !business. ftc.gov/blog/2011/07 /whats-table. 24 CUNY LAW REVIEW [Vol. 15:9 siCo, Kellogg, Viacom, Time Warner, and even the U.S. Chamber of Commerce, all banding together trying to derail the federal pro­ posal. The group spent a cool $6.6 million on lobbying in the first quarter of 2011.63 "Overall, records show, the coalition's main members [which includes PepsiCo] have spent nearly $60 million on lobbying since the start of the Obama administration."64 By Au­ gust of 2011 PepsiCo, itself had spent over $2.5 million on lobbying the federal government.65 The previous year, PepsiCo expended $6,874,800 on lobbying.66 PepsiCo made political contributions in 14 states in 2010, both to individual campaigns and political action committees (PACs). PepsiCo focused its energy on a few states, spending the bulk of its money in California and Illinois. The com­ pany made political contributions of about $714,000 in California and $40,000 in Illinois.67 With industry pulling out all the stops, even going so far as to successfully lobby Congress to require a "cost benefit analysis" of the proposed voluntary principles68 (how to measure cost/benefit if compliance is not required is a mystery), what are the odds the final report will ever see the light of day?

THE LAw AccoRDINC TO PEPsrCo? PepsiCo clearly has no interest in anything the government has to say about how to regulate marketing to children. Instead, PepsiCo has it all figured out. Indeed, the company's website con­ tains an array of "policies" regarding marketing to children. You can download: • PepsiCo's Nutrition Criteria for Advertising to Children • PepsiCo's Policy on Responsible Marketing and Advertising to Children • The PepsiCo Pledge (Children's Food and Beverage Adver­ tising Initiative) • PepsiCo's Global Policy on the Sale of Beverages to Schools

63 Lyndsey Layton & Dan Eggen, Food, Ad Industries Lobby Against Nutrition Guide­ lines, WASH. PosT,July 10, 2011, at A03. 64 Id. 65 See Annual Lobbying by PepsiCo Inc.: 2011, CTR. FOR REsPONSIVE POLITICS, http:// www.opensecrets.org/lobbyI clientsum. php?id=D000000200&year=2011 (last visited Jan. 2, 2012). 66 See Annual Lobbying by PepsiCo Inc.: 2010, CTR. FOR RESPONSIVE PoLmcs, http:// www.opensecrets.org/lobbyI clientsum.php?id=D000000200&year=2010 (last visited Jan. 2, 2012). 67 See PepsiCo, Inc. 2010 Corporate Political Contributions, PEPSICO, http:/ /www. pepsico.com/Download/PepsicolO_Corp_Cont.pdf (last visited Dec. 23, 2011). 68 Brian Montopoli, GOP Decries "Nanny State" Push on Junk Food Ads, CBS NEws Quly 7, 2011, 1:39 PM), http:/ /www.cbsnews.com/8301-503544_162-20077584- 503544.html. 2011] PEPSICO AND PUBLIC HEALTH 25

• PepsiCo Beverages North America School Beverage Policy • Frito-Lay School Policy69 The PepsiCo website is a veritable legal document depository. If there's one thing corporations hate more than bad PR, it's govern­ ment regulation. PepsiCo's myriad commitments and pledges are part of an overall strategy to placate critics and give policymakers the impression that the company has it covered. No need for sci­ ence-based, democratically-determined laws to protect public health, PepsiCo will decide all by itself how and when to control its behavior. But is voluntary self-regulation sufficient, given the enor­ mity of the current public health crisis of diet-related chronic disease? History has demonstrated that companies like PepsiCo cannot be trusted to put people before profits. In fact, corporations-de­ spite the increasing lip service given to corporate social responsibil­ ity-are legally required to make shareholders' interests paramount.70 Indeed, a recent downturn in PepsiCo's stock per­ formance is causing some investment analysts to criticize the com­ pany. "They have to realize that at their core they are a sugary, fatty cola company and people like that."71 And the Wall Street journal explained the problem this way: Hailed as a strategic visionary since taking PepsiCo's reins nearly five years ago, Mrs. Nooyi is facing doubts from investors and industry insiders concerned that her push into healthier brands has distracted the company from some core products.72 In the same article, Nooyi acknowledged that she may have spent a disproportionate amount of time talking about healthier products, but that "PepsiCo has to satisfy critics about health concerns."73 In other words, Nooyi has a conflict on her hands. She has to keep both investors and critics happy. The only way to accomplish both is by boosting the company's core brands, while attempting to make things look good through clever public relations. What all this translates to is little change that will actually ben­ efit public health. That's why we have a system of laws and regula-

69 See Purpose: Policies, supra note 59. 70 See Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919); Katz v. Oak Indus. Inc., 508 A.2d 873, 879 (Del. Ch. 1986). But see Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 955 (Del. 1985). 71 See Tony D'Altorio, The Pepsi Challenge Loses Its Fizz, INVESTMENT U (Mar. 30, 2011), http:/ /www.investmentu.com/2011/March/the-pepsi-challenge-loses-fizz. html. 72 Mike Ester! & Valerie Bauerlein, PepsiCo Wakes Up and Smells the Cola, WALL ST.]., June 28, 2011, at Bl. 73 Id. 26 CUNY LAW REVIEW [Vol. 15:9 tions designed to protect the public from corporate overreach. Unfortunately, in the current anti-regulatory climate, that system is under attack and constantly being eroded. Have we now replaced the democratic process with corporate public relations? What are the long-term consequences of allowing such a powerful multinational corporation like PepsiCo to call all the shots? Let's hope we don't find out. BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI

Meena Jagannatht

I. ABSTRACT While gender-based violence is not a new phenomenon in Haiti, the aftermath of the January 12, 2010 earthquake further exposed the vulnera­ bility of Haitian women and girls to gender-based violence and the limited possibilities for women to evince a judicial response to gender-specific viola­ tions of the law. Drawing from the experiences of Haitian lawyers and wo­ men's rights advocates, this paper will examine women's barriers to accessing justice in Haiti by drawing on actual examples of gender-based violence at each step of the investigatory process under the Haitian justice system. It will provide, by way of background, an overview of the Haitian justice system, including gender rights under Haitian law, the framework of Haiti's obligations with respect to the administration of justice, and the structure and processes of each institution implicated in the pursuit ofjus­ tice for cases involving gender-based violence. Additionally, the case studies will reveal the requirements and barriers women confront at each stage of the process. The article will then explore community-based responses to ad­ dressing these barriers and provide recommendations on legislative, judi­ cial, and law enforcement reforms aimed at improving women's access to justice.

t MeenaJagannath is a 2011-2012 Lawyers' Earthquake Response Network Legal Fellow at the Bureau des Avocats Intemationaux (BAI), based in Port-au-Prince, Haiti, and its U.S.-based partner, the Institute for Justice & Democracy in Haiti (IJDH). At the BAI, Meena coordinates the Rape Accountability and Prevention Project, which combines direct legal representation in Haitian courts and the international fora with international and national advocacy on gender-based violence and grassroots organiz­ ing. She earned her J.D. from the University of Washington School of Law, where she was a William H. Gates Public Service Law Scholar, and her M.A. in International Affairs with a concentration in human rights from the School of International and Public Affairs at Columbia University. For the past ten years, over the course of her professional and academic careers, she has been a human rights activist and advocate in diverse contexts around the world. The author would like to thank Mario Joseph, director of the BAI, Brian Concannon, director of IJDH, and Lisa Davis, clinical pro­ fessor for the International Women's Human Rights Clinic at CUNY School of Law, for their support, mentorship and guidance throughout her work in Haiti. 27 28 CUNY LAW REVIEW [Vol. 15:27

II. INTRODUCTION

''Pawol Jo, machwa gonjle. "1 The mouths of Haitian women have long been swollen by un­ told accounts of violence. Silenced by the structural impediments caused by the deep-rooted gender discrimination that has marked their society, women in Haiti have only recently begun speaking out against gender-based violence in a systematic fashion. However, while the past decade has seen advances in developing the wo­ men's movement and integrating governmental institutions aimed at combating the structural inequalities that give rise to and perpet­ uate gender-based violence and discrimination, progress remains slow in the face of class divisions and setbacks such as the scale of Haiti's January 12, 2010 earthquake that killed hundreds of thousands and uprooted over a million people, by official estimates. 2 Even before the earthquake, Haiti's statistics on gender indi­ cated women's low economic and political status in Haitian society. According to the 2008-2010 Poverty Reduction Strategy Paper on Haiti, 60% of female-headed households had been living in ex­ treme poverty pre-earthquake. 3 Another telling statistic on wo­ men's economic disfranchisement before the earthquake indicates that 83% of women's economic activity occurs within the informal sector.4 Women's political involvement corresponds accordingly: there is only one female senato~ in the 30-member 2011 Senate (or 3.33%) 6 and four female deputies out of 95 total actual mem-

1 Haitian proverb that means, "Strong words make the mouth swell." In other words, extraordinary news prevents one from speaking. 2 See Earthquakes with 1,000 or More Deaths Since 1900, U.S. GEOLOGICAL SURVEY (last modified Apr. 14, 2011), http:/I earthquake.usgs.gov/earthquakes/world/world _deaths.php. 3 INT'L MONETARY FUND [IMF], HArr1: GROWTH AND PovER1Y REDUCTION STRAT­ EGY PAPER, 2008-2010, IMF COUNTRY REPORT No. 08/115, 22 (2008), available at http://www.imf.org/extemal/pubs/ft/scr/2008/cr08115.pdf. 4 Comm. on the Elimination of Discrimination Against Women, Consideration of Reports Submitted by States Parties Under Article 18 of the Convention on the Elimi­ nation of all Forms of Discrimination against Women - Combined Initial, Second, Third, Fourth, Fifth, Sixth, and Seventh Periodic Reports of States parties: Haiti, 1 13.2, U.N. Doc. CEDAW/C/HTl/7 Quly 9, 2008) [hereinafter CEDAW combined reports]. 5 INTERPARLIAMENTARY UNION, HAITI SENATE: LAsT ELECTIONS, http:/ /www.ipu. org/parline/reports/2138_E.htm (last updated July 15, 2011). No women were elected in the 2010-2011 elections for 11 seats on the Senate. Id. The sole female senator's term expired in January 2012. Id. 6 Id. 2011] BARRIERS TO WOME,N'S ACCESS TO JUSTICE IN HAITI 29 bers of the 49th Chamber of Deputies (or 4.21 %). 7 This longstand­ ing economic and political exclusion of Haitian women is both a result of and a factor perpetuating gender discrimination that im­ pinges on women's expression of their basic human rights.8 Given this sobering backdrop, Haiti's deadly 2010 earthquake could only exacerbate the existing vulnerability and disfranchise­ ment faced by women and girls. Owing to the precarious condi­ tions imposed by displacement as well as social and economic dislocation, poor women and girls are disproportionately exposed to the risk of sexual or gender-based violence ( GBV) characteristic of post-disaster scenarios.9 The aftermath of Haiti's disaster has proven no different: since the earthquake, human rights advocates and women's groups have noted an epidemic of GBV in camps for internally displaced persons (IDPs), where preventative measures such as adequate security and access to services have been severely lacking. 10 International-level advocacy on the part of these groups has drawn the attention of the international community to the issue of GBV in post-earthquake Haiti, while national advocacy and grass­ roots organizing has helped increase women's awareness of their rights and encourage greater reporting of instances of sexual vio­ lence in the camps.11 Accordingly, cases of gender-based violence, and rape specifically, are increasingly making their way onto the courts' dockets, and the demand for legal recourse has risen among women survivors of sexual violence. Unfortunately, the Hai­ tian justice system has yet to grow in accordance with the number of rape cases presented to it, owing to a number of structural (cor­ ruption, long procedure, lack of resources) 12 and social barriers

7 Id. 8 See Inter-Am. Comm'n on H.R., The Right of Women in Haiti to be Free from Violence and Discrimination, 1 11, OEA/Ser.L/V/II, Doc. 64 (2009) [hereinafter IACHR Report]. 9 See WORLD HEALTH ORGANIZATION [WHO], WHO ETHICAL AND SAFE'IY REcoM­ MENDATIONs FOR RESEARCHING, DOCUMENTING, AND MONITORING SEXUAL VIOLENCE IN EMERGENCIES 6 (2007), available at http:/ /whqlibdoc.who.int/publications/2007I 978924159568l_eng.pdf. 10 MADRE ET. AL., Gender-Based Violence Against Haitian Women & Girls in Internal Displacement Camps, in UNIVERSAL PERIODICAL REVIEW, REPUBLIC OF HAITI, SUBMISSION TO THE HUMAN RIGHTS COUNCIL 12TH SESSION 87, 88 (2011), available at http:/ /ijdh. org/wordpress/wp-content/uploads/2011/04/LERN-Compiled-UPR-Submissions-1. pdf [hereinafter UPR SUBMISSION ON GBV]. 11 Blaine Bookey, Enforcing the Right to be Free from Sexual Violence and the R.ole of Lawyers in Post-Earthquake Haiti, 14 CUNY L. REv. 255 (2011). 12 See lNT'L Crusis GRP., LATIN AMERICA/CARIBBEAN BRIEFING No. 27, KEEPING HAITI SAFE:JusTICE REFORM (2011) [hereinafter ICG REPORT]. 30 CUNY LAW REVIEW [Vol. 15:27 that discriminate against female complainants at each level of the process and discourage women and girls from formally seeking justice. Women occupying the economically disfavored class and those still living in the IDP camps suffer the consequences of these barri­ ers. Unrepresented women's cases often fall by the wayside in the face of disorganization and corruption, including prioritization of cases in which money is likely to influence the judges or clerks tak­ ing the case.13 Many of these women cannot afford private coun­ sel, and free legal services are almost non-existent in Haiti. 14 Following the 2010 earthquake, the Bureau des Avocats Intemation­ aux created the Rape Accountability and Prevention Project (RAPP) in partnership with the Institute for Justice & Democracy in Haiti and several grassroots women's organizations such as KOFAVIV, 15 FAVILEK,16 KONAMAVID,17 and GCFV18 in order to provide a mechanism by which women and girl victims of sexual violence can obtain free legal counsel and other services that sup­ port and encourage prosecution of rape and other forms of gen­ der-based violence. It is on the basis of the findings of this program, the first of its kind in Haiti, that this article reveals critical gaps in the Haitian justice system. The article will begin by giving a general overview of the right to remedy under Haitian law and international instruments to which Haiti is a signatory, and next outline Haiti's legal obligations with respect to gender rights. It will then give a brief overview of the functions of each institution involved in the prosecution of sex­ ual violence and describe the attitudes and capacity issues facing each, drawing on examples from the cases and experiences of Hai­ tian lawyers and women's rights advocates19 to highlight the inade-

l3 Benedetta Faedi, The Double Weakness of Girls: Discrimination and Sexual Violence in Haiti, 44 STAN.]. lNT'L L. 147, 190 (2008); Interview with Marie Esther Felix, in Haiti (Aug. 13, 2011) (on file with author). 14 !CG REPORT, supra note 12, at 7. 15 Komisyon Fanm Viktim pou Viktim [Commission of Women Victims for Victims]. 16 Fanm Viktim Leve Kanpe [Women Victims, Get Up Stand Up]. 17 Kodinasyon Nasyonal Viktim Direk [National Coordination of Direct Victims]. 18 Groupe Concertation des Femmes Victimes [Dialogue Group for Women Victims]. 19 Methodological note: Since, at the time of writing this article, no program outside of the Rape Accountability and Prevention Project (RAPP) at the Bureau des Avocats Internationaux (BAI) provided systematic and comprehensive free legal assis­ tance to victims of sexual violence (from start to finish-other organizations do set up selected victims with pro bono legal assistance, but this is not systematic and some­ times does not accompany the victim through the legal process to the end), much of 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 31 quacies of the Haitian justice system in its treatment of predominantly poor or disadvantaged victims of rape. The article will then conclude with recommendations to enhance community­ based responses that strengthen the rule of law and support legisla­ tive measures to broaden the protections for women and girls against violence as necessary to improve women's access to justice through the Haitian justice system.

III. BARRIERS TO ACCESSING JUSTICE A. Overview of Rights Under the Haitian justice System While the 1987 Constitution of Haiti includes an "absolute ob­ ligation to guarantee the right to life, health and respect of the human person for all citizens without distinction" in accordance with the Universal Declaration of Human Rights,20 it also stipulates that any duly ratified international treaties or agreements directly become a part of Haitian law and abrogate any conflicting laws. 21 Thus, where its national law falls short, Haiti has a relatively well­ defined legal framework for rights through the regional and inter­ national rights treaties it has signed to reinforce and protect human rights.

1. Framework of Haiti's International, Regional, and Constitutional Human Rights Obligations Relating to the Administration of Justice Under Haiti's legal framework, citizens have the right to seek adequate remedy in a competent tribunal. Although the 1987 Con­ stitution of Haiti does not explicitly grant a right to remedy to vie- the observations from this article come from direct experience working on legal cases in the Port-au-Prince-based RAPP program for over one year with several Haitian law­ yers. Marie Esther Felix had been the dedicated RAPP attorney at the BAI for almost one year prior to my integration into RAPP. I subsequently have gained considerable exposure to the Haitian justice system and rape prosecution in particular, through interviews, court accompaniments and case management for over 150 adult and mi­ nor victims of sexual violence primarily from Port-au-Prince. Thus, many propositions raised by Marie Esther Felix have been corroborated by my personal experience in the system, as well as discussions with subsequent Haitian lawyer colleagues working on rape cases. In addition, my close work with women's rights groups has provided me with substantial knowledge of the socio-political context of the women's move­ ment as well as issues that plague the legal system. As this article is intended to be very specific to rape prosecution, I have limited discussion of related topics that impact the Haitian justice system's response to rape. 20 CoNSTITUTION DE LA REPUBLIQUE o'HAIT1, Mar. 10, 1987, art. 19. See also Univer­ sal Declaration of Human Rights, art. 8, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR]. 21 CONSTITUTION DE LA REPUBLIQUE o'HAiTI, art. 276-2. 32 CUNY LAW REVIEW [Vol. 15:27 tims of human rights abuses, Article 27 does provide the right for an arrested individual to bring suit in court for any violation of the provisions on individual liberty.22 However, both by Article 19 of the Constitution and under customary international law, Haiti is bound by the provisions of the UDHR, which provides a right to adequate remedy under Article 8.23 Additionally, states are re­ quired to provide "fair, effective and prompt access to justice" and "adequate, effective, prompt and appropriate remedies, including reparation. "24 Haiti has also ratified the International Covenant on Civil and Political Rights (ICCPR), which requires states to make available and enforce an effective remedy for victims as determined by a competent authority.25 The U.N. Human Rights Committee, tasked with monitoring implementation of the ICCPR, notes states' obli­ gations to provide victims access to "effective remedies to vindicate those rights," and requires states to make reparations.26 Other international human rights treaties that Haiti has signed and ratified also provide for victims' right to an effective remedy. Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) provides for effective pro­ tection and remedy, as well as adequate compensation or satisfac­ tion for a violation of rights.27 Similarly, the Convention on the Rights of the Child (CRC) requires that a state rehabilitate the vic­ tim-child. 28

22 Id. art. 27. See also Article 50, which provides for a jury trial for "crimes of blood" and political crimes, but this speaks to procedural due process protections more than the basic human right to remedy. 23 UDHR, supra note 20, art. 8 ("Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law."). 24 See Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Viola­ tions of International Humanitarian Law, G.A. Res. 60/147, U.N. Doc. A/Res/60/ 147, I.2(b) & (c) (Dec. 16, 2005) (implementing legal obligations under international human rights and humanitarian law) [hereinafter Basic Principles]. 25 International Covenant on Civil and Political Rights art. 2(3), Dec. 16, 1966, S. Exec. Rep. No. 23, 102d Cong., 2d Sess., 999 U.N.T.S. 171 (ratified by Haiti on Feb. 6, 1991). 26 U.N. Human Rights Comm., Gen. Cmt. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U[ 15-16, U.N. Doc. CCPR/ C/21/Rev.l/Add.13 (May 26, 2004). 27 Convention on the Elimination of All Forms of Racial Discrimination art. 6, Dec. 21, 1955, 660 U.N.T.S. 195 (ratified by Haiti on Dec. 19, 1972) [hereinafter CERD]. 28 Convention on the Rights of the Child art. 39, Nov. 20, 1989, 1577 U.N.T.S. 3 (ratified by Haiti on June 9, 1995) [hereinafter CRC]. 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 33

Regional human rights treaties that Haiti has ratified and juris­ prudence of regional human rights tribunals have also explicitly mentioned the right. Article 25 of the American Convention on Human Rights ("American Convention") of the Organization of American States calls for prompt, effective redress before a compe­ tent tribunal and enforcement of that tribunal's decision.29

IL Obligations Concerning Violence Against Women 1. Obligations Under International Law As to Haiti's obligations with respect to addressing violence against women, Haiti has ratified the Convention on the Elimina­ tion of all Forms of Discrimination against Women (CEDAW) ,30 which incorporates violence against women as a form of discrimi­ nation by way of General Recommendation 19 to Article 1 of the CEDAW Committee.31 In addition to CEDAW, Haiti has obligations under the Inter­ American Convention on the Prevention, Punishment and Eradica­ tion of Violence Against Women ("Convention of Belem Do Para") 32 signed and ratified at the behest of the women's move­ ment in 1996.33 The Convention of Belem Do Para imposes an ob­ ligation on state parties to establish mechanisms to investigate, adjudicate and prevent violence against women, with the goal of eliminating it.34 The above provisions, along with those mentioned in the pre­ vious section, make up the foundation of the due diligence stan­ dard to prevent, investigate, and punish acts of violence against women.35 Under this standard, a state should develop the necessary national legislation and mechanisms by which victims of gender-

29 American Convention art. 25,July 18, 1978, 1144 U.N.T.S. 123 (ratified by Haiti on Sept. 14, 1977). See also Velasquez-Rodriguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4, if 62 (July 29, 1988) ("State Parties have an obligation to provide effective judicial remedies to victims of human rights violations."). 30 Convention on the Elimination of all Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 (ratified by Haiti on July 20, 1981) [hereinafter CEDAW]. 31 Lisa Davis, Still Trembling: State Obligation Under International Law to End Post­ Earthquake Rape in Haiti, 65 U. MIAMI L. REv. 867, 881 (2011) ("Recommendation No. 19 defines GBV as 'violence that is directed against a woman because she is a woman or that affects women disproportionately."'). 32 Inter-Am. Convention on the Prevention, Punishment, and Eradication of Vio­ lence Against Women, June 9, 1994, 33 I.L.M. 1534 (entered into force March 5, 1995) [hereinafter Convention of Belem Do Para]. 33 Faedi, supra note 13, at 179. 34 Convention of Belem do Para, supra note 32, art. 7. 35 Davis, supra note 31, at 882-85. 34 CUNY LAW REVIEW [Vol. 15:27 based violence can have recourse to the justice system free of dis­ crimination as to gender, or any other social status.36 Accordingly, Haiti has a specific obligation under international law to put into place effective mechanisms of providing redress for gender-based violence that are accessible to all women and girls.

2. Obligations Under National Law In addition to the obligations undertaken under national law through Article 276-2 of the Haitian Constitution, which directly incorporates international treaty obligations into national law, Ha­ iti has a national legal framework that addresses discrimination and gender-based violence. Although Haiti's Constitution had to go through multiple revisions in the mid-1900s to address the con­ cerns from the women's movement, it was not until the 1987 Con­ stitution of Haiti, currently in force, that Haiti eliminated the gender distinctions previously included in such provisions as those on women's participation as candidates in national elections.37 Under the current Constitution, Articles 17-19 reaffirm the princi­ ple of non-discrimination with respect to the exercise of civil and political rights, equality before the law, and protection of individ­ ual human rights.38 Similarly, Haiti's Penal Code, based upon the French Penal Code of 1810, did not change its classification of rape as an offense against morals (attentat aux moeurs) 39 as opposed to a offense against the person until 2005. Articles 1-4 of the Decree of July 6, 200540 reformed Articles 278-281 of the 1835 Penal Code of Haiti to make rape a criminal offense to an individual's physical integ­ rity, as opposed to an offense to an individual's moral integrity or honor.41 While this represented a significant step for the women's movement, however, it did not provide a comprehensive frame­ work for addressing and punishing a wider range of gender-based violence offenses, such as sexual harassment in the workplace. Fur­ thermore, in practice, the provisions have not been applied in a

36 Id. at 883. 37 See CONSTITUTION DE LA REPUBLIQUE o'HAtn; CEDAW combined reports, supra note 4, at 26-28 (summary of the history of the Haitian Constitution's treatment of discrimination against women as per Article 1 of CEDAW). 38 CONSTITUTION DE LA REPUBLIQUE D'HAi'TI, arts. 17-19. 39 CODE PENAL [C. PEN.] [HAITIAN CRIMINAL CODE], arts. 279-80 (Haiti). 40 See Decret du 6 juillet 2005 modijiant le Regime des Agressions Sexuelles et Elimination en la Matiere les Discriminations Contre la Femme [Decree Modifying the Regulation of Sexual Assaults and Eliminating Forms of Discrimination Against Women], LE MoNITEUR [THE MONITOR], Aug. 11, 2011 (Haiti). 41 See Faedi, supra note 13, at 181. 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 35

systematic, effective fashion that targets the underlying discrimina­ tion inherent in the legal system.42 In 2011, the Ministry on the Status of Women and Women's Rights (Ministere a la Condition Feminine et aux Droits des Femmes) along with the Organization of American States (OAS) and the Na­ tional Dialogue on the Prevention of Violence Against Women (Ta­ ble de Concertation Nationale contre !es violences faites aux femmes) 43 began an initiative to draft, in consultation with civil society and jurists, a comprehensive bill on violence against women and girls. Though the bill is still in the stage of drafting and in need of signif­ icant revisions, it constitutes an important step towards Haiti's pro­ tection of the rights of women and girls to be free of discrimination and violence.

B. Overview of Criminal Procedure for a Case of Rape, Including Introduction of the Structures Below

I. Haitian Criminal Procedure The Haitian justice system is modeled after the French civil system, and its criminal procedure is directed by the Criminal Pro­ cedure Code (CIC, Code d'Instruction Criminelle). Because post­ earthquake cases of rape received by the Bureau des Avocats Interna­ tionaux (BAI) have only recently begun to be referred to the crimi­ nal court stage for trial,44 this article will focus on the functions of the various actors within the judicial police (police judiciaire) in the stages leading up to trial.45 Under Article 9 of the CIC, the powers of the judicial police are exercised by the police, justices of the peace, the Office of the Prosecutor (parquet/Ministere Public), the investigating judges (juges

42 Id. at 182. 43 This entity consisting of state actors, members of civil society, as well as agencies for international cooperation formed in 2003 to coordinate the responses of different actors in society with the aim of addressing and preventing violence against women in an efficient manner. See CONCERTATION NATIONALE CONTRE LES VIOLENCES' FAITES AUX FEMMES, PLAN NATIONAL DE LUTTE CONTRE LES VIOLENCES FAITES AUX FEMMES, PREVEN­ TION, PRISE EN CHARGE ET AccoMrAGNEMENT DES V1CTIMES DE VIOLENCES SrECIFIQUES FAITES AUX FEMMES 2006-2011 (2005). 44 As of the writing of this article, there are nine BAI cases that have received orders referring the cases to the criminal court for judgment. Three of these cases were heard in criminal court during the last week of July 2012. 45 "The judicial police researches crimes, offenses and misdemeanors, assembles to proof of these, and brings the adult or minors offenders to the courts or special jurisdictions charged with determining and fixing the duration of their punishment in penitentiary institutions or re-education centers as prescribed by the law." CODE D'lNSTRUCTION CRJMINELLE D'HAITI [CIC] [CODE OF CRIMINAL PROCEDURE], art. 8 (Haiti). 36 CUNY I.AW REVIEW [Vol. 15:27 d'instruction) and the Institute for Social Welfare and Research (IBESR, the equivalent of child protection services) .46 This section will analyze the functions of each body and the barriers presented at each stage of the legal process of prosecuting rape.47

ii. The Police and Justices of the Peace 1. Structure and Functions The Haitian National Police (HNP) 48 is supervised by the Min­ ister of Justice, appointed by the Prime Minister. The HNP is the institution for law enforcement in Haiti, headed by the Director General, whom the President appoints. HNP is made up of differ­ ent units, in particular the Central Direction of Judicial Police (DCPJ), which is the body tasked with carrying out the preliminary criminal investigations. 49 Chapter II, Article 10 of the CIC describes the duties of the police: to investigate crimes, misdemeanors and offenses; provide a preliminary report to the justices of the peace on the facts of the crime as well as any evidence they can gather; collect and confis­ cate items that could have been taken; and arrest and bring before the justices of the peace any individual caught in the act, or "fla­ grant offense" (flagrant delit). 50 According to Chapter V of the CIC, police officers and justices of the peace are members of the Judicial Police (police judiciaire) 51 and act as auxiliaries of justice for the Chief Prosecutor ( Commis­ saire du Gouvernement) .52 They have a role to receive complaints, and, in the case of a flagrant offense (flagrant delit), make arrests and execute mandats d'amend'3 issued by the Office of the Prosecu­ tor (parquet). The Justices of the Peace (juges de paix), who take

46 CIC, art. 9. 47 Under Art. 3 of the CIC, the civil process can march hand in hand with the criminal process. Accordingly, the BAI and other complainant-side lawyers represent victims in seeking damages from the accused as "partie civile." CIC, art. 3. 48 See IACHR Report, supra note 8, at 29. 49 Id. 50 Flagrant dilit literally means "flagrant offense," but denotes either when a person is caught in the act of committing a crime or immediately after ("un temps voisin'', usually within a 24 to 48-hour window, though it can be extended in certain circum­ stances at the discretion of the prosecutor). It also applies when the accused is de­ nounced by public.outcry (clameur publique) or "when the accused is found with the effects,_ weapons, instruments or papers that give the presumption that he is the au­ thor or accomplice, provided that it is within a time immediately after the offense." CIC, arts. 10, 30-31. 51 Id. art. 9. 52 Id. art. 38-43. 53 Id. art. 30. 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 37 down the preliminary information of the crime and victim's com­ plaint (proces-verbaux) ,54 can also issue a mandat d'amener to be exe­ cuted by the police.55 A mandat d'amener is an order to render the accused to the prosecutor's office for prompt interrogation (within 48 hours), which will then decide whether to transfer the accused from jail (garde d vue) to prison.56 A mandat de depot57 must be is­ sued in order to continue detention of the accused.58

2. Reporting Requirements and Barriers As auxiliaries ofjustice, the police and justices of the peace are meant to receive complaints from the public and answer for them with diligence.59 However, the police often answer by saying that they do not have the resources to respond to a complaint, such as a vehicle to get to the scene, or gas to power the vehicle they do have.6° Furthermore, though the police are theoretically reachable by telephone, in most cases the number does not work or the po­ lice officers do not answer.61 Victims and their lawyers have said that it is particularly difficult to reach the police at nighttime. There have even been instances where the person answering the call has said that the police are sleeping and cannot respond. 62 Thus, the best way to file a complaint with the police is to visit the police station directly. However, this also poses significant bar­ riers. First, the time spent traveling to the police station risks losing evidence or important facts about the crime that would otherwise be recuperated if the police could arrive at the scene of the crime. Second, not all women have the capacity or the will to go to the station immediately because they are distrustful of the police, fear­ ful or they cannot pay for transport. Third, women often face dis­ criminatory reactions (discussed in the next section) or receive misinformation from police officers. For example, in several cases, the police have referred the victim to the justice of peace instead of taking her complaint directly, as they are required to do.63 In other

54 Id. art. 39. 55 Id. art. 30. 56 See ICG REPORT, supra note 12, at 3. 57 Literally, "order to deposit." 58 Id. 59 CIC, art. 38. 60 Interview with Marie Esther Felix, in Haiti (Aug. 13, 2011). 61 Id.; MADRE/CUNY Training with Grassroots Women's Focus Group in Port-au­ Prince, Haiti Quly 26-28, 2011) [hereinafter Focus Group Data] (on file with author). 62 Interview with Marie Esther Felix, supra note 60. 63 Id. 38 CUNY LAW REVIEW [Vol. 15:27 cases, the police have told the victim to get her medical certificate (discussed below) before filing a complaint,64 though they are not competent to evaluate this evidence, and are not required to have it in order to take a complaint.65

3. Attitudes and Capacity The attitudes of the police towards a victim when she presents her complaint have seriously discouraged reporting instances of gender-based violence.66 The first response many women or girl victims receive when they go to the police station to report an inci­ dent is that the police do not have the resources to investigate the scene of the crime.67 In the case of a flagrant offense, and even outside of that window, the failure of the police to visit the site of the alleged crime results in the loss of critical evidence and contra­ venes the CI C's requirement that the Chief Prosecutors (or its aux­ iliaries) arrive at the scene without delay to furnish the proces­ verbaux.68 Furthermore, the discriminatory or sexist form and attitude of some police officers when they receive complainants at the station have re-traumatizing and dissuasive effects on victims' reporting. Victims and lawyers have noted that these officers minimize or of­ fend the women who come before them, commenting that the complaint is a ruse to get money out of the system.69 The problem is more acute for adult women, particularly poor women, whom police have refused to believe because they think she is lying. 70 In some instances, police officers have asked female complainants what they had done or what they were wearing to have provoked the sexual assault, or whether they had already had previous sexual relations with the accused.71 The police are also more reluctant to act in cases in which a

64 Interview with mother of rape victim, in Haiti (Feb. 17, 2012). 65 CIC, art. 42-43. The police are required to pass any complaints, preliminary information (proces-verbaux), or other papers on to the investigating judge for evaluation. 66 Id.; Focus Group Data, supra note 61. See also Faedi, supra note 13, at 187. 67 Interview with Marie Esther Felix, supra note 60. See also INT'L CRISIS GRP., UP­ DATE BRIEFING No. 26: KEEPING HA1T1 SAFE: PoucE REFORM 5 (2011); Faedi, supra note 13, at 189-90. 68 CIC, art. 22. 69 Interview with Marie Esther Felix, supra note 60; Focus Group Data, supra note 61. 70 Interview with Marie Esther Felix, supra note 60. 71 Focus Group Data, supra note 61. 2011] BARRIERS TO WOMF,N'S ACCESS TO JUSTICE IN HAITI 39 minor72 has raped a minor.73 That is to say, there is a noticeable difference in treatment of a given case depending on the age of the aggressor. If the aggressor is a minor, the police are often un­ willing to respond because they know of the limited avenues of le­ gal recourse in dealing with juvenile offenders.74 Not only does this block off an avenue to justice for an increasing number of minor victims of sexual violence, but it also increases the possibility of de­ linquency among minors where there is virtually no mechanism for rehabilitation of these children. 75 These attitudes reflect a lack of training and sensitivity to gen­ der stereotypes. Lawyers have noted that since the earthquake, as consciousness among victims has risen and more GBV cases have been reported, there has been some improvement among those police officers that have undergone training on how to deal with victims of GBV. 76 The failure to adequately respond is a function of some police officers' lack of such training, as well as confusion as to their roles and when or how to arrest individuals. 77 There is a noticeable difference in the reactivity between officers who have been well-trained and those who have not been sensitized in cases of GBV in particular. For example, the personnel at the Depart­ mental Service of Judicial Police (Service Departemental de Police judiciaire, hereinafter SDPJ) has shown itself to be recognizably bet­ ter trained than other sections of the police.78 In one case brought to the SDPJ, the officers worked with the complainant and used techniques to locate the accused aggressor and approach him in civilian clothes to make the arrest. 79 Similar training across all of the police stations would thus greatly enhance the capacity of the police to respond to victims' complaints. The lack of resources has required that ancillary institutions step in to provide the dissuasive security presence needed in the post-earthquake scenario where much of the population is still liv­ ing in IDP tent camps. The United Nations Stabilization Mission in Haiti (MINUSTAH) and the UN Police Division (UNPOL) have

72 Under the Haitian Constitution, the age of majority is 18-years-old. CONSTITU- TION DE LA R.EPUBLIQUE o'HAfTI, art. 16-2. 73 Interview with Marie Esther Felix, supra note 60. 74 Id. 75 Though there are corrective education centers in Port-au-Prince, including the "Duval Duvalier" Centre d'Accueil (see C. Pen. art. 50), these are woefully inadequate and overburdened for the number of juvenile offenders in Port-au-Prince. 76 Interview with Marie Esther Felix, supra note 60. 77 Id.; Focus Group Data, supra note 61. 78 Interview with Marie Esther Felix, supra note 60. 79 Id. 40 CUNY LAW REVIEW [Vol. 15:27 taken on patrolling in some of the camps when the Haitian Na­ tional Police cannot be present. However, while it is desirable to have a force to deter violence and an institution to receive com­ plaints from victims at any hour of the day, MINUSTAH and UN­ POL are of limited effectiveness because they do not have an executive mandate that allows them to make arrests, take com­ plain ts and perform policing duties.80 Thus, while the units in­ stalled in several large camps throughout Port-au-Prince may be trained in receiving victims of gender-based violence, they have a limited capacity to actually respond to complaints beyond leading a victim to the police station, the prosecutor's office, or the Brigade for the Protection of Minors (BPM) to file a complaint.

m. Office of the Prosecutor (Parquet/Ministere Public) 1. Structure and Functions As mentioned above, the chief prosecutor ( Commissaire du Gouvernement) 81 is represented by police agents and justices of the peace as auxiliaries. The chief prosecutor heads the Office of the Prosecutor and is the third major component of the judicial po­ lice.82 The chief prosecutor is represented through substituts, or deputy public prosecutors.83 The chief prosecutor and its deputies take on the role of Ministere Public as the principal party acting in the public interest in a criminal matter and the neutral party in civil matters.84 There are 14 judicial jurisdictions in Haiti, each of which has a prosecutor's office directed by a chief prosecutor.85 Additionally, there is a prosecutor's office for the courts at each instance-the Supreme Court, appeals courts, and trial courts.86 The prosecutor's office has the power to receive complaints and conduct investigations into all complaints, including those sub­ mitted by the police and the justices of the peace.87 It can also issue mandats d'amener and mandats de comparution88 in flagrant offense

so UN Police Div. [UNPOL] GBV Coordinator, Presentation at GBV Sub-cluster Meeting Quly 28, 2011). 81 When cited in CIC, the Commissaire du Gouvernernent refers to the ensemble of the police, the justices of peace, and the standing magistrates ( magistrat debout) who act as subtituts for the Chief Prosecutor. 82 CIC, art. 9. 83 Organisation judiciaire, JuRISTE fiAITIEN, http:/ /juristehaitien.chez.com/pages_ textes/systjudic/p_orga_judic.htm (last visited Mar. 7, 2012). 84 Id. 85 Id. 86 IACHR Report, supra note 8, at 31. 87 Interview with Marie Esther Felix, supra note 60; CIC, art. 32. 88 An order for the accused to present himself/herself in court. CIC, art. 77. 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 41

cases, refer cases to an investigating judge by preliminary indict­ ment (requisitoire d'informer), and issue the definitive indictment (re­ quisitoire definitij) once the investigating judge has finished instructing on the case and has ordered the case to be tried before a criminal or correctional court. 89 Haitian lawyers and women's rights advocates place particular emphasis on the obstacles that exist at the level of the prosecutor's office.90 Aside from misunderstood reporting requirements, lim­ ited resources and deeply engrained gender discrimination that deters women from filing complaints, there is a high degree of cor­ ruption and racketeering that occurs at this stage, making it partic­ ularly challenging for poor women and girls to access justice for gender-based violence claims.

2. Reporting Requirements and Barriers The Office of the Prosecutor takes over a case ( saisi) in the criminal process in several different ways. It automatically takes ju­ risdiction when a complaint is filed there directly. In such a case, it must immediately begin a public action if the crime has taken place within its territorial jurisdiction.91 Preliminary reports and complaints (proces-verbaux) from the police or justices of the peace are also submitted to the prosecutor's office for further investiga­ tion.92 In the case of a flagrant offense (flagrant delit), individuals may make a denunciation if they are witnesses to the crime, or if the perpetrator is pursued by public outcry (clameur publique).93 In the context of the gender-based violence claims of poor wo­ men, the prosecutor's office poses considerable obstacles for re­ porting and ensuring that a case advances through the legal process. Of these, medical certificates to show evidence of a sexual assault and the resource constraints of the prosecutor's office are most significant.

a. Medical Certificates Though not technically required by law, actors in the Haitian justice system place an inordinate amount of importance on the

89 CIC, art. 115. The investigating judge can also send the case to the police's court (Tribunal de Simple Police) and release the accused if the judge finds that the accused is guilty of a minor infraction (simple contravention). Id. at 116. 90 Interview with Marie Esther Felix, supra note 60; Focus Group Data, supra note 61. 91 CIC, arts. 14-16. 92 Id. art. 19. 93 Id. art. 88. 42 CUNY LAW REVIEW [Vol. 15:27 medical certificate as the foundation for cases of sexual violence.94 The medical certificate is thus treated as requisite in practice, and it is the most commonly sought piece of material evidence.95 In a case of sexual assault, though, there are significant barriers to ob­ taining one. First, a woman should seek medical care within 72 hours of rape in order to preserve evidence96 and receive adequate medical treatment.97 Although the preservation, analysis, and use of foren­ sic evidence in cases of rape are still severely underdeveloped, the reliability and precision of the medical certificate still depends on quick action. However, the ability to act quickly depends on knowl­ edge of the types of services available and the capacity to travel and seek adequate medical care. It also requires psychosocial support and accompaniment to overcome the trauma that might result from sexual assault, and fear of reprisal. While some organizations have established networks of community agents to provide this cru­ cial accompaniment and support,98 many Haitian women still do not know of or have access to these services in their communities. Second, particularly at the level of the prosecutor's office, the medical certificates issued from different institutions vary greatly in terms of detail and form. For example, while the medical certifi­ cate from the General Hospital (Hopital de l'Universite de l'Etat d'Haiti-HUEH) is seven pages in length and provides a number of details regarding the patient's mental, physical, and reproduc­ tive health, the medical certificates from other institutions are sim­ ple one-page documents that each have faults of their own.99 Other institutions simply leave a space for the examining physician to fill in a narrative relating to the examination. As a result, officials at

94 INST. FOR JusT. & DEMOCRACY IN HAITI, ET AL., OuR Booms ARE STILL TREMBLING: HAITIAN WoMEN's FIGHT AGAINST RAPE 20 (2010), available at http://ijdh.org/word press/wp-content/uploads/2010/07/Haiti-GBV-Report-Final-Compressed.pdf. 95 CooE PENAL [C. PEN.] art. l (Haiti), reprinted in MENAN PrnRRE-Lorns & PATRICK PIERRE-Lorns, CooE PENAL app. at 15 (2007). Three elements must be proven for a conviction of rape. The material (materiel) element is an act or omission that the pe­ nal law punishes; the legal element is the assigned penalty that makes the act or omis­ sion an infraction; and the moral element is the criminal intent. Id. 96 JANICE Du MONT & DEBORAH WHITE, SEXUAL VIOLENCE RESEARCH INITIATIVE, THE USES AND IMPACTS OF MEDICO-LEGAL EVIDENCE IN SEXUAL AssAULT CASES: A GLOBAL REVIEW 13 (2007), available at www.svri.org/m!ResearchBrief.pdf. 97 Sexual Violence, MEDICINS SANS FRONTIERES, http:/ /www.doctorswithoutborders. org/news/issue.cfm?id=3466 (last visited Mar. 7, 2012). This includes emergency con­ traception and the HIV prophylaxis, which are most effective in the 72 hours follow­ ing sexual intercourse or rape. 98 See, e.g., supra notes 15-19 and accompanying text. 99 Medical Certificates on file with the author and the CUNY Law Review. 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 43

the parquet have turned away complainants because of a perceived inadequacy of their medical certificates and have insisted on the form issued by the General Hospital. 100 In addition to the concerns of accessibility and the efficacy of the General Hospital, this prac­ tice poses a serious problem for victims when the General Hospital is closed because the hospital workers are on strike-a common­ place occurrence. 101 In such cases, the victims are forced to seek services at other institutions, risking their ability to depend on the medical certificate as a key piece of evidence in their legal cases. But the prosecutor's office's insistence, by reflex, that victims present the medical certificate at the time of filing a complaint also highlights a lack of understanding within the prosecutor's office as to the reporting requirements and the purpose of the medical cer­ tificates. It is often the case that if the complainant does not pre­ sent a medical certificate, the prosecutor's office declines to take the case or does not advance with the investigation. 102 Lawyers and advocates have heard the officials in the prosecutor's office make derisive statements about complainants without a medical certifi­ cate-essentially equating her lack of a medical certificate to proof that she is lying about the rape.103 Similarly, clerks at the prosecu­ tor's office have previously said, "This is an easy case, there's no medical certificate."104 However, the prosecutor's office inappropriately makes this determination. As a preliminary matter, the prosecutor's office can and should act on a complaint if it is filed while there is still a flagrant delit. Since it takes three days at a minimum, and more commonly one week, for a victim to obtain a medical certificate after examination, it is not reasonable for the prosecutor's office to ask for a medical certificate during the window of time for a fla­ grant delit. It is up to the investigative judge to weigh the evidence and instruct on the case, 105 and thus the prosecutor's office (or the police, for that matter) need not have the medical certificate in hand while the flagrant offense window still exists. Additionally, sometimes even the best medical examination may not produce any relevant evidence, or other material evidence may be available to support the claim, such as witness testimony. Finally, it rein-

100 Focus Group Data, supra note 61;· Interview with Marie Esther Felix, supra note 60. 101 Focus Group Data, supra note 61. 102 Interview with Marie Esther Felix, supra note 60. 103 Id.; Focus Group Data, supra note 61. 104 Interview with Marie Esther Felix, supra note 60. 105 CIC, art. 43-44. 44 CUNY LAW REVIEW [Vol. 15:27 forces the discriminatory view that a woman's testimony alone is unreliable.

b. Resource Limitations Resource constraints disproportionately impact poor women who cannot afford to hire an attorney or pay the necessary court fees. For example, while the prosecutor's office will receive a com­ plaint or issue a mandat d'amener, the complainant must bear the costs of the process-server (huissier) .106 Additionally, unrepresented complainants are much less likely to succeed in prosecuting their claims due to inefficiency, disorganization, and inadequate re­ sources.107 This inefficiency and the competing demands on re­ sources result in greater opportunities for intermediaries to take advantage of unrepresented and vulnerable complainants, triage that favors those with means or representation, and increased cor­ ruption, as a later section will discuss. Victims, advocates, and lawyers have noted that the prosecu­ tor's office officials are rarely present in the office on time, much less during the office hours they are required to keep.108 Hence, it is common for complainants to come to the prosecutor's office early in morning to file a complaint and wait until noon for the officials to arrive. 109 Once the officials do arrive, it is often the individuals with representation who pass ahead, or those with money may pay an intermediary or the clerk him/herself to ensure that they go ahead.11° Furthermore, there is an inadequate system of communication with the victims that often results in the release of the accused from jail because she was not present for the ac­ cused's interrogation within 48 hours of his/her arrest, and the prosecutor's office fails to inform the victim's lawyer of the hearing directly. 111 The issue of communication also arises when a victim is called for a hearing, but the prosecutor's office does not attend to her in a timely manner. There have been cases in which the victim had a 9:00 a.m. hearing and the prosecutor's office left after wait­ ing a full day without any information, only to find the next day that the accused was released because she was not present when the prosecutor's office called the accused forward around 6:00

106 Id. 107 Id. See also ICG Report, supra note 12, at 4. 108 Interview with Marie Esther Felix, supra note 60. 109 Id. 110 Id.; Focus Group Data, supra note 61. 111 Interview with Marie Esther Felix, supra note 60. 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 45

p.m.112

3. Attitudes and Capacity a. Discriminatory Attitudes as a Barrier Discriminatory attitudes of both the clerks and the judges at the prosecutor's office pose a barrier to victims' desire to pursue justice. It is common for prosecutor's office officials receiving the complaint to discredit the victim's story as a ruse and blame the victim or the victim's parents for the act. 113 This discriminatory treatment is particularly acute towards poor women and girls, whose claims are considered especially suspect because prosecu­ tor's office officials believe that the women or parents of the mi­ nor-victim are simply telling a story to extract money from the accused.114 For example, in one case, the deputy public prosecutor (substitut) told the victim's lawyer directly, without considering the available evidence, that he just did not believe the victim was raped, and that he believed she was bringing the case because she needed money from the accused.11 5 Furthermore, discrimination towards poor women and girls has transferred to these victims' lawyers and supporting advocates in the form of disrespect and hostility. Lawyers and advocates have noticed immediate changes in the attitudes of some clerks in the prosecutor's office who withhold information or resist sharing the case file on various pretexts.116 One extreme example of this is when the victim went to the clerk's office of the prosecutor's office. to obtain the case number in order to identify the deputy prosecu­ tor (substitut) leading the accused's interrogation. In order to delay turning over the file, the clerk replied that his finger was hurt and he could not open the file. 117 The victim and her advocates were obliged to leave; when the lawyer returned later to recover the file, the clerk replied that he had already put away the file and could no longer give her the information.118 One possible impact on the case is that the accused could be released because the lawyer and victim cannot access the informa-

112 Id. 113 Interview with Marie Esther Felix, in Haiti (June 20, 2011); Interview with Marie Esther Felix, supra note 60; Focus Group Data, supra note 61. 114 Focus Group Data, supra note 61. 115 Id. 116 Interview with Marie Esther Felix, supra note 60; Focus Group Data, supra note 61. 117 Interview with Marie Esther Felix, supra note 60. 118 Id. 46 CUNY LAW REVIEW [Vol. 15:27

tion they need to ensure their presence at the accused's hearing during the 48-hour detention period in jail. The differential treat­ ment of victims and their lawyers similarly affects women's confi­ dence in the justice system and their belief that their claims are given due importance.

b. Corruption Corruption is another major reason why significant barriers exist at the level of the prosecutor's office. Since the BAI attorneys and advocates do not offer bribes or money as a rule, they have not been accorded the respect or attention that private attorneys may enjoy.11 9 Additionally, the intense backlogs and wait-times facilitate corruption: in some instances, attorneys or complainants with money have paid the clerks and other officials to be heard ahead of others.120 It has also given rise to enterprising individuals who pose as intermediaries to unknowing or vulnerable individuals awaiting reception by the prosecutor's office. These racketeers offer to file the complaint on behalf of a victim, or to arrange for the victim to pass ahead, in return for a sum of money. For poor victims without representation or knowledge of the system, this can have the effect of convincing victims to drop their complaints because they are led to believe that they cannot access justice unless they have money.121 Further, victims without legal representation are particularly vulnerable to the behind-the-scenes maneuvering of various actors that requires sustained pressure and presence at the prosecutor's office in order to detect and devise strategies to circumvent these schemes. For example, when the prosecutor's office clerk refused to disclose the case number to the victim's lawyer in one instance, the lawyer and the victim's advocates insisted on staying at the pros­ ecutor's office until they saw the accused being released from jail.122 At that point, they were able to intervene and obtain the information needed to have the victim present at the interrogation of the accused.123

119 Id. 120 Id. l 21 Inteiview with father of client, in Haiti (Aug. 22, 2011). See also Faedi, supra note 13, at 188. 122 Interview with Marie Esther Felix, supra note 60. 123 Id. 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 47

iv. Investigatory Stage (Cabinet d'Instruction) 1. Structure and Processes The Cabinet d'Instruction is the primary investigatory stage of the criminal process. The Cabinet is made up ofinvestigatingjudges (juges d'instruction), who may: take complaints for flagrant of­ fenses;124 issue arrest warrants (mandats d'amener, de depot, d'arreter) and summonses (mandats de comparution/invitation)125 without con­ sulting the prosecutor's office;126 and receive cases from the prose­ cutor's office with a preliminary indictment (requisitoire d'iriformer). 127 They can also issue search warrants (mandat de per­ quisition) and seize any evidence according to the same rules that apply to the prosecutor's office,128 as well as grant provisional lib­ erty to the accused during the course of the investigation. 129 The investigating judges "instruct" on the case and visit the scene of the crime, accompanied by the prosecutor's office and the court's clerk.130 The investigating judge additionally summons all of the peo­ ple mentioned in the denunciation or the complaint, and those individuals identified by the prosecutor's office as familiar with the offense or the surrounding circumstances for an individual hear­ ing.131 They each give their declaration under oath, recorded by the clerk and signed by the judge and the testifying individual. 132 Once the instruction is complete-that is to say, once the in­ vestigating judge finishes gathering testimony and other evidence and evaluates it for indices of guilt or innocence-the jurisdiction of the Cabinet terminates and the case is sent back to the prosecu­ tor's office with an order to drop the case (ordonnance de non lieu) 133 or to refer the case to criminal or correctional court (ordon­ nance de renvoi) .134 If the prosecutor's office deems that the investi­ gation (instruction) was incomplete or not sufficiently thorough, it can request that the investigating judge do a supplemental investi-

124 CIC, art. 46. 125 Though "invitation" is not the word used in the Criminal Procedure Code, law- yers and judges often refer to this order as a mandat d'invitation. 126 CIC, arts. 48, 77-94. 127 Id. art. 51. 128 Id. arts. 73, 75. 129 "Main levee du mandat de depot ou d'arret." Id. art. 80 ("Main levee" means "raised hand," to signify temporary release of the accused). 130 Id. art. 49. 131 CIC, art. 58. 132 Id. arts. 62-63. 133 Id. art. 115. 134 Id. art. 116. 48 CUNY IA W REVIEW [Vol. 15:27 gation. If the prosecutor's office is satisfied with the investigation and the investigating judge's accompanying order, then it will issue an indictment ( requisitoire definitive).

2. Evidentiary Hearings and Barriers At this stage, the victim presents any evidence not previously submitted or seized by the chief prosecutor ( Commissaire du Gouvernement), and, in addition to separate individual hearings in camera of all the witnesses, the investigating judge may summon the victim for a hearing with the accused (confrontation) .135 There are several troubling barriers with respect to the manner in which these hearings take place. First, there is no well-established and reliable system of com­ munication with the victims when they are called for a hearing or confrontation. Most of the communication with the victim hap­ pens over the telephone, and the clerks often communicate di­ rectly with the victim, even though the victim has legal representation.136 In some instances, the clerk has called the victim for a hearing the next day. This presents a problem if the victim is not in Port-au-Prince and may have difficulties traveling on short notice. It also presents a problem if the victim does not know to, or fails to inform her lawyer of the summons. There have also been instances in which the victim's phone number has been out of ser­ vice and the clerk cannot locate the person because she does not have a fixed address-a problem particularly affecting the dis­ placed persons living in camps following the earthquake. In other cases, the judges fail to invite the victim altogether, hearing the accused before ever hearing the victim.137 In one egregious case, the judge directly communicated With the victim in order to con­ vince her to negotiate a settlement with the aggtessor.138 Second, the investigating judges do not have adequate train­ ing to address the particular sensitivities of the victims of sexual violence. Thus, even a well-meaningjudge might re-traumatize the victim at the confrontation hearing, where it is often the case that the victim encounters her attacker for the first time since the as­ sault. In one case, when the accused arrived for the confrontation, the investigating judge asked the 14-year-old victim's mother to get up from her seat beside the victim to allow the middle-aged ac-

135 Court accompaniments, in Haiti (June-Aug., 2011) (on file with author). 136 Id; Interview with Marie Esther Felix, supra note 60. 137 Interview with Marie Esther Felix, supra note 60. I38 Meeting with rape victim, in Haiti (Mar. 26, 2012). 2011] BARRIERS TO WOMEN'S ACCESS TO JUSTICE IN HAITI 49

cused aggressor to sit down.139 The victim's face transformed, and her body noticeably froze when the man sat down next to her.140 The judge had not done this on purpose, however; it simply did not occur to him that the act of seating the accused aggressor next to the minor victim would be a traumatizing experience. It was not until the victim's lawyers objected to the seating arrangement that the judge realized that there was a problem.141 Third, language poses a barrier to the interrogation process and the accuracy of the declarations taken at the investigatory stage. Specifically, while the judge asks questions in Haitian Creole, the clerk must write the answers that constitute the declaration in French, since the proceedings of the court take place in French.142 This can cause a potential problem of misinterpretation or bad translation that could impact the victim's case at the trial stage and disfranchises the victim from being able to correct the record when the judge dictates the victim's declaration to the clerk in French. If the testifying individual does not have an attorney to review and approve the declaration for signature at the conclusion of the hear­ ing, there is a risk that the declaration inaccurately reflects the re­ sponses and meanings of the witness. For example, though not in the specific context of gender-based violence, there have been cases in which the witness has been shocked by what is read as their declaration at trial because the clerk misinterpreted, misrecorded, or misrepresented what the witness said during the investigatory hearing.143

3. Attitudes and Capacity

As at the prosecutor's office stage, discriminatory attitudes of judges and corruption jeopardize the integrity of the legal process at the investigatory stage as well. Some investigatory judges, for lack of training or sensitivity to gender-based violence issues, blame the victim for having done something to attract the aggression, or trivialize the experience.144 These attitudes surface in the manner of questioning the victim, when the types of questions and the tone of the judge indicate that the judge has prejudged the woman or

139 Court accompaniment, in Haiti (July 11, 2011). 140 Id. 141 Id. 142 Court accompaniments, in Haiti (e.g., July 11, 2011, Feb. 29, 2012). 143 Interview with Marie Esther Felix, supra note 60. 144 Focus Group Data, supra note 61; Interview with Marie Esther Felix, supra note 113; Interview with Marie Esther Felix, in Haiti, supra note 60. 52 CUNY LAW REVIEW [Vol. 15:27 tors in the Haitian justice system. 157 Implementation of these rec­ ommendations would also help resolve women's barriers to accessing justice by, inter alia, concentrating greater resources on the issue, providing more training to medical professionals and le­ gal actors, and reinforcing the state's commitment to eradicating violence against women. 158

B. Going Fonvard The proposed law on violence against women, if proposed to and passed by Parliament, will represent a necessary move by the Government of Haiti towards implementing the recommendations of the IACHR and meeting its human rights obligations to punish, prevent, and redress violence against women. In terms of institutional reinforcement, more coordinated training and sensitization of the actors in the justice system at all levels on how to deal with the specific context of gender-based vio­ lence-the police, prosecutors, and judges-would help address the discouraging effects of gender discrimination and prejudices against poor women complainants in particular.159 Additionally, gender training would help signal the specific issues that arise in gender-based violence cases, including re-traumatization of the vic­ tim. Greater accountability mechanisms within the justice system, as well as a commitment of more resources towards hiring judges, would address the issue of backlogs that give rise to corruption. Simplifying the process of prosecuting rape by, for example, elimi­ nating the added investigatory stage, would reduce the number of steps a victim must take to achieve justice. A better understanding of the structural impediments to accessing justice in Haiti is the first step to improving the status of women before the law.

157 Id. at 889. 158 Id. at 888-91. 1 59 See Faedi, supra note 13, at 190-91. AN IRRATIONAL OVERSIGHT: APPLYING THE PLRA'S FEE RESTRICTIONS TO COLLATERAL PRISONER LITIGATION1

Walker Newellt

The Federal Prison Litigation Reform Act precludes prisoners from filing lawsuits in Jorma pauperis and imposes significant limitations on the recovery of attorney's fees. Many states have followed the /,ead of Con­ gress by prohibiting their courts from waiving filing fees in prisoner cases. The federal Jee provisions have withstood a barrage of constitu­ tional challenges, with courts uniformly holding that the provisions are rationally related to a legitimate government interest in deterring frivo­ lous inmate litigation. Many courts, however, apply these Jee restrictions in a manner that cannot be justified by the analysis generally supporting the constitutionality of the provisions. In both state and federal courts, Jee restrictions are applied to litigation collateral to prisoners' incarcera­ tion, such as appeals of bankruptcy and divorce court rulings. The de­ nial of in forma pauperis status to prisoners in these proceedings bears no relationship to the government interest in deterring frivolous inmate litigation, instead imposing a substantial burden on the ability of pris­ oners to pursue important matters that is not felt by other indigent liti­ gants. To the extent that state and federal Jee restrictions continue to be applied to certain collateral prisoner litigation, they are unconstitutional.

l. INTRODUCTION As the United States prison system has grown astronomically over the past 30 years, there has been correspondingly robust growth in the amount of federal litigation brought by prisoners.2 By the early 1990s, the per capita rate of prisoner filings and the absolute number of prisoner suits had reached levels that imposed

I The term "collateral inmate litigation" is used throughout the article to refer to litigation that is unrelated to a prisoner's status as a prisoner. It encompasses all forms of civil litigation unrelated to incarceration, such as appeals of adverse rulings in divorce and bankruptcy courts and§ 1983 police brutality suits. Later in the article, a distinction will be drawn between the constitutionality of collateral civil rights suits and other collateral civil litigation, but for the most part, all prisoner litigation unrelated to incarceration will be termed "collateral." t J.D., 2011, Columbia Law School. 2 See, e.g., Margot Schlanger, Inmate Litigation, 116 HAR.v. L. REv. 1555, 1578-87 (2003) (detailing the "deluge" of inmate litigation that occurred from 1970s to early 1990s).

53 54 CUNY LAW REVIEW [Vol. 15:53

a significant burden on the efficiency of federal courts.3 Concern with these developments, possibly bolstered by a desire to appear tough on crime in an election year,4 spurred legislative action. In 1996, Congress passed a new law that would effectively and severely curtail the ability of prisoners to vindicate their rights in federal court. With the enactment of the Prison Litigation Reform Act (PLRA), the United States became perhaps the only country "in which national legislation singles out prisoners for a unique set of barriers to vindicating their legal rights in court."5 The drafters of the PLRA took a variety of approaches to re­ strain prison litigation, including rigid exhaustion provisions,6 a "physical injury" requirement,7 a ceiling on attorney's fees, 8 and a prohibition on in forma pauperis (IFP) lawsuits. 9 These measures were specifically designed and intended to prevent prisoners from rabidly litigating over grievances arising during their imprison­ ment: mistreatment by correctional staff; inadequate medical care; and related issues. The first section of the Act, which addresses ex­ haustion, only applies to suits regarding "prison conditions."10 However, the attorney's and filing fees sections apply, respectively, to "any action brought by a prisoner"11 and to "civil actions or ap­ peals" brought by prisoners. 12 It is clear that most prisoner litigation is covered by the PLRA's restrictions on IFP filings and the recovery of attorney's fees. But when confronted with certain types of litigation, the courts have had difficulty agreeing on whether the PLRA applies. There is a general consensus that habeas and mandamus actions are not covered by the IFP provision's "civil action" language, 13 but the applicability of the PLRA's fee restrictions to other litigation is

3 Id. at 1584-87 (discussing a rise in both filing rates and the overall numbers of filings in the early 1990s). 4 See Julie M. Riewe, The Least Among Us: Unconstitutional Changes in Prisoner Litiga­ tion Under the Prison Litigation Reform Act, 47 DuKE LJ. 117, 142 (1998) (making the argument that the PLRA was motivated, at least in part, by such considerations). 5 HuMAN RIGHTS WATCH, No EQUAL JUSTICE 2 (2009), available at http:/ /www. hrw.org/ en/node/83713/section/2. 6 42 U.S.C. § 1997e(a) (2006). 7 42 U.S.C. § 1997e(e) (2006). s 42 U.S.C. § 1997e(d) (2006). 9 28 U.S.C. § 1915(b) (1) (2006). 10 42 U.S.C. § l 997e(a) (2006). 11 42 U.S.C. § 1997e(d) (2006). 12 28 U.S.C. § 1915(b) (1) (2006). 13 See, e.g., Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996) (holding that the PLRA does not apply to habeas corpus petitions), overruled on other grounds by Nelson v. Walker, 121 F.3d 828, 832-33 (2d Cir. 1997). 2011] AN IRRATIONAL OVERSIGHT 55 uncertain. In particular, litigation involving matters that arose before a prisoner's incarceration does not fit comfortably with the statute's purposes. Recognizing this incompatibility, a small minor­ ity of courts, relying on legislative intent or canons of statutory in­ terpretation, has ruled that the PLRA's fee provisions do not apply to claims that arose prior to a litigant's period of incarceration.14 In contrast, the majority of courts implicitly consider all provisions of the PLRA to apply to all litigation brought by prisoners, while a few courts have explicitly held that the fee provisions are constitu­ tional and applicable to all prisoner litigation. 15 The Federal Bank­ ruptcy Code adds additional texture to the discussion by singling out prisoners as ineligible for fee waivers when filing for bank­ ruptcy or appealing a bankruptcy court ruling.16 IFP limitations have also been extended to collateral prisoner litigation through state law. By enacting laws modeled after the PLRA, several states have prevented prisoners from proceeding IFP in general matters such as appeals of divorce proceedings. 17 A Wis­ consin law modeled after the PLRA, for example, was enacted not only to target conditions of confinement litigation but also to "limit broadly prisoner litigation at taxpayers' expense."18 Similarly, Michigan's ban on prisoner IFP filings has been applied to inmate appeals of divorce court rulings.19 In Colorado, a statute mirroring the PLRA requires that all indigent prisoners bringing "civil ac­ tions" gradually pay full filing fees. 20 Prisoners in these states are faced with significant restrictions on their ability to file or appeal both state and federal litigation. These developments represent a distortion of the central pur-

14 See Robbins v. Chronister (Robbins I), 402 F.3d 1047, 1051-55 (10th Cir. 2005), reu'd en bane, Robbins v. Chronister (Robbins JI), 435 F.3d 1238 (10th Cir. 2006); Hatchet v. Cnty. of Phila., No. 09-1708, 2010 WL 4054285, at *2 (E.D. Pa. Oct. 15, 2010); Hall v. Gallie, No. 05-975, 2009 WL 722278, at *7 (E.D. Pa. Mar. 17, 2009) (attorney's fees provisions of PLRA inapplicable to pre-conviction police brutality claim). 15 See, e.g., Robbins II, 435 F.3d at 1244 (PLRA's attorney's fees provision applies to all actions brought by prisoners); United States v.Jones, 215 F.3d 467 (4th Cir. 2000) (motion to have property seized at arrest returned is civil action for purposes of IFP provision of PLRA). 16 11 U.S.C. § 523(a) (17) (2006). 17 See, e.g., Sirbaugh v. Young, 25 F. App'x 266 (6th Cir. 2001) (denying inmate challenge of state IFP provisions modeled after PLRA); N.Y. C.P.L.R. llOl(a), (f) (McKinney 2011) (New York statute mirroring PLRA's IFP provisions). 18 State ex rel. Cramer v. Schwarz, 613 N.W.2d 591, 601 (Wis. 2000); see also State ex rel. Henderson v. Raemisch, 790 N.W.2d 242 (Wis. Ct. App. 2010). 19 Sirbaugh, 25 F. App'x at 266. 20 Cow. REv. STAT. ANN. § 13-17.5-103(2) (West, Westlaw through 2011 1st Reg. Sess.). 56 CUNY LAW REVIEW [Vol. 15:53

poses of the original PLRA, which was enacted to curtail frivolous prisoner litigation. AB the Second Circuit held in denying an early challenge to the new IFP provisions, "the Act's goal of relieving the pressure of excessive prisoner filings on our overburdened federal courts is a constitutionally legitimate one."21 Although a legitimate government interest in preventing excessive and frivolous prisoner litigation has been comprehensively recognized by the courts, such an interest does not justify some of the litigation discussed in the preceding paragraphs. An appeal of a divorce court ruling cannot be easily categorized as the frivolous prisoner litigation that the PLRA was enacted to address. On the other hand, the plain lan­ guage of the fee restrictions suggests that Congress intended the Act to have an extensive reach. The remainder of this article will interrogate the jurispruden­ tial trend of imposing fee restrictions on all inmate litigants, not merely those challenging their conditions of confinement. The first section will briefly outline the structure of the Federal PLRA's fee restrictions, identify state laws imposing similar restrictions, and investigate the practical significance of these restrictions. Next, the article will discuss the few decisions to directly address the issue of fee restrictions in the context of litigation unrelated to conditions of confinement, ultimately finding that Congress intended the PLRA's fee restrictions to be applicable to all collateral prisoner litigation. The final section will explore the possibility that the im­ position of fee limitations on collateral prisoner litigation is pro­ hibited by the Fifth and Fourteenth Amendments. It will conclude that the courts have a constitutional duty to refrain from imposing fee restrictions on certain categories of collateral inmate litigation. Independent of the constitutionality or interpretive validity of the practice, the extension of the PLRA's fee restrictions to all inmate litigation is a sad and unnecessary coda to the statute's symphony of discordant treatment of hundreds of thousands of Americans.

II. FEDERAL AND STATE FEE RESTRICTIONS ON COLLATERAL PRISONER LITIGATION

[P]risoners are now faced with impossible choices: choosing, for example, between spending money to bring a lawsuit after being brutalized or sending money home to a child; making co­ payments for needed medical care or suing to protect one's rights . . . non-prisoners do not have to make such stark

2 1 Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997). 2011] AN IRRA TION. OVERSIGHT 57

choices.22 By restricting the ability of prisoners to litigate as poor persons or recover full attorney's fees, federal and state governments have created an effective barrier to accessing the legal system. Although these fee restrictions are not as burdensome as the strict exhaus­ tion requirements embodied in the PLRA,23 they significantly limit the incentives of inmates and attorneys to litigate. The PLRA con­ tains several fee restrictions, including a prohibition on filing fee waivers, a filing fee prepayment requirement for inmates who have had three previous suits dismissed, and a cap on attorney's fees. Several state statutes have followed all or part of this scheme, so that prisoners in those states are irrationally prevented from pro­ ceeding IFP in matters such as appeals of divorce court rulings. These laws combine to frustrate legitimate inmate litigation and impede prisoners from litigating important matters unrelated to their incarceration.

A. Filing Fees When the PLRA was enacted, it included an amendment to the general federal IFP statute, which imposes unique burdens on prisoners not felt by other indigent persons. Title 28, § 1915(a) of the U.S. Code provides that federal courts may waive filing fees for litigants who cannot afford them. Prisoner litigants are the only group ineligible for this exercise of judicial discretion. Unlike all other indigent litigants, prisoners are "required to pay the full amount of a filing fee" and directed to make a 20% prepayment toward that obligation.24 To ease the burden on prisoners who can­ not afford filing fees at the outset oflitigation, the statute allows for installment payments.25 Prisoners who cannot pay up front have a lien placed on their prison account, with automatic deductions made until filing fees are repaid.26 The statute also contains a sav­ ings clause which provides that no litigant shall be denied access to the courts because of his or her inability to prepay a portion of filing fees. 27 Finally, prisoner litigants who have had three or more lawsuits dismissed must pay full filing fees at the outset of subse­ quent litigation.28

22 Murray v. Dosal, 150 F.3d 814, 820 (8th Cir. 1998) (Heaney, J., dissenting). 23 42 U.S.C. § 1997e(a) (2006). 24 28 u.s.c. § 1915(b)(l) (2006). 25 28 u.s.c. § 1915(b)(2) (2006). 26 Id. 27 28 u.s.c. § 1915(b)(4) (2006). 28 28 u.s.c. § 1915(g) (2006). 58 CUNY LAW REVIEW [Vol. 15:53

Many states have followed the letter or spirit of the PLRA, im­ posing restrictions on the ability of prisoners to litigate IFP in state court. New York's statute, for example, is almost an exact replica of the PLRA, directing courts to seek partial payment at the outset of litigation, mandating the gradual repayment of all filing fees, and containing a savings clause preserving completely indigent in­ mates' access to the courts.29 Statutes in Wisconsin,30 Delaware,31 Virginia,32 Massachusetts,33 Georgia,34 and Missouri,35 among others, 36 follow a similar formula, providing for some form of pre­ payment or subsequent installment plan payments for indigent inmates. In each state, prisoners are denied IFP status without regard to whether or not they are challenging their conditions of confine­ ment, creating disincentives for them to participate in litigation of any kind. The application of IFP prohibitions to all state prisoner litigation is puzzling. While federal prisoner litigation is largely made up of civil rights claims,37 prisoners may find themselves in state court for a variety of reasons unrelated to alleged civil rights violations. By placing fee restrictions on this type of litigation, which has no relationship to the type of frivolous prisoner litiga­ tion targeted by the Federal PLRA,38 state legislatures have exacted additional, unseen revenge on those convicted of crimes.

29 N.Y. C.P.L.R. § 1101(£) (McKinney 2011). 30 Wis. STAT. ANN.§ 814.29 (West, Westlaw through 2011Act31, Acts 33 to 36, and Acts 38 to 44). 31 DEL. CoDE ANN. tit. 10 § 8804(b) (West, Westlaw tl1rough 78 Laws 2011, chs. 1-203). 32 VA. CODE ANN. § 8.01-691 (LEXIS 2011). 33 MAss. GEN. LAws ANN. ch. 261, § 29(d) (1) (West, Westlaw through ch. 175 of 2011 1st Ann. Sess.). 34 GA. CODE ANN. § 42-12-4 (LEXIS 2011). 35 Mo. ANN. STAT. § 514.040(2) (West, Westlaw through 2011 1st Extraordinary Sess.). 36 See, e.g., Texas (TEx. CIV. PRAc. & REM. CODE ANN. § 14.006 (West, Westlaw through 2011 Reg. Sess.)); Minnesota (MINN. STAT. ANN. § 563.02 (West, Westlaw through 2011 1st Spec. Sess.)); and Louisiana (LA. REV. STAT. ANN. §15:1186 (West, Westlaw through 2011 1st Extraordinary and Reg. Sess.)). 37 Schlanger, supra note 2, at 1558. 38 See 141 Cong. Rec. Sl4, 629 (daily ed. Sept. 29, 1995) (statement of Sen.Jon Kyl describing the "frivolous" types of prison litigation the act's sponsors intended to tar­ get, such as a lawsuit brought by a plaintiff who was served a "hacked up" piece of cake, a suit based on allegations that medical staff had implanted a mind control device in tl1e plaintiff's head, and a suit brought by a death row inmate against correc­ tional staff for taking away his Gameboy). It is notable that there is no mention in this record of collateral prisoner litigation on the dockets of federal courts, suggesting the PLRA's framers were unaware of this potential application of the act. Cf Schlanger, supra note 2, at 1571-73. 2011] AN IRRATIONAL OVERSIGHT 59

Despite the allowance of gradual payment and the existence of savings clauses, the laws preventing inmates from proceeding IFP are extremely burdensome. IFP statutes exist because court costs, while manageable for most litigants, can be impossible for low-in­ come plaintiffs to afford. The cost of filing a civil suit in United States District Court is $350,39 while the initial filing fee in New York County is $210.40 On top of filing fees, prisoners may be re­ sponsible for significant expenses that accrue during litigation, such as the costs of taking depositions and printing copies of the record.41 Since prisoners in federal and state prisons typically make less than a dollar per hour (while in some states, prisoners engage in unpaid labor) these costs may present an insurmountable obsta­ cle.42 One prisoner who litigated prose through trial and appellate proceedings racked up over $1,300 in fees, an amount that, accord­ ing to the Second Circuit, would have taken him nine years to re­ pay at his weekly salary of around seven dollars.43 The prospect of automatic monthly deductions from prison accounts (used to pay for essential goods, such as certain mailing and hygienic materials not provided by the prison) 44 lasting for years may operate as a substantial disincentive to even the most aggrieved prisoner litigants. In addition to creating financial barriers to prisoner litigation, the prohibition on IFP filings in cases unrelated to conditions of confinement embodies a troubling culture within the legal system. The costs of incarcerating a greater percentage of the population than any other nation in the world have become increasingly clear: prisons have long been overflowing; spending on prisons has

39 Frequently Asked Qu_estions, U.S. CouRTS, http://www.uscourts.gov/Common/ FAQS.aspx#filing (last visited Oct. 4, 2011). 40 Court Fees, NEW YoRK SUPREME CouRT, http://www.nycourts.gov/supctmanh/ court_fees.htm (last visited Oct. 4, 2011). 4 1 See, e.g., Whitfield v. Scully, 241 F.3d 264, 268-69 (2d Cir. 2001) (tallying IFP inmate litigant's deposition and printing costs). 42 PETER WAGNER, THE PRISON POLICY INITIATIVE, THE PRISON INDEX: TAKING THE Pm.SE OF THE CRIME CONTROL INDUSTRY §III (2003), availab/,e at http://www. prisonpolicy.org/prisonindex/prisonlabor.html. 43 Whitfield, 241 F.3d at 268-69. The Second Circuit eventually held that the PLRA's cap on filing fee deductions from inmate accounts did not apply to deduc­ tions for costs owed for other court costs. Id. at 278. Accordingly, the court allowed 40% of the plaintiffs income to be deducted toward his court costs. Id. 44 See, e.g., Matt Stiles, Texas Prisoners Spent $95 Million at Commissaries, TEx. TRIBUNE, Apr. 8, 2010, http:/ /www.texastribune.org/texas-dept-criminaljustice/ texas-department-of-criminaljustice/texas-prisoners-spent-95-million-at-commissaries (detailing prisoner commissary expenditures on hygiene, mailing, and supplemental food). 60 CUNY LAW REVIEW [Vol. 15:53 grown astronomically at the expense of education;45 and prisoner litigation has burdened the courts for years. The PLRA's filing fee limitations could have been a reasonable response to the last prob­ lem if they had been narrowly tailored to prevent truly frivolous litigation. Instead, the application of these provisions to all pris­ oner litigation is a reflection of government's unwillingness to ad­ mit to the devastating consequences of mass incarceration.

B. Attorney's Fees Another provision of the PLRA that has had a significant im­ pact on the practicability of prisoner litigation is the statute's re­ strictions on attorney's fees. Under 42 U.S.C. § 1997e(d), a prevailing plaintiffs recovery of attorney's fees from a defendant is limited to 150% of the money damages awarded. The statute also requires that up to 25% of the plaintiffs total money damages be put toward those fees. 46 Finally, the Act caps the effective hourly wage that lawyers representing prisoners can receive at rates com­ parable to the amount paid to lawyers working in indigent de­ fense.47 These provisions are extremely significant in cases where a plaintiff is victorious but only awarded nominal damages. When a prisoner is awarded one dollar in damages as symbolic vindication of his constitutional rights, his attorney is not compensated. As a result of these provisions, it is difficult for attorneys to litigate on behalf of prisoners. The PLRA's fee limitations have "fundamentally altered an attorney's decision to represent prison­ ers by adding a heavy financial burden that impacts public and pri­ vate attorneys alike."48 Public interest organizations, which play a vital role in litigating civil rights cases, are always in need of fund­ ing, and restrictions on attorney's fees limit the number of cases they are able to accept.49 Private attorneys seeking to litigate pris­ oners' rights cases are deterred to an even greater extent. The PLRA's limitations make representing prisoners almost a financial impossibility for lawyers seeking to make a profit.50

45 See, e.g., NAACP, MISPLACED PRIORITIES: OVER INCARCERATE, UNDER EDUCATE 7, 14 (2011), availabl,e at http://naacp.3cdn.net/Old6f368edbel35234_bq0m68x5h.pdf (finding that between 1987 and 2007 funding for corrections increased by 127%, while funding for education increased by only 21%). 46 42 U.S.C. § 1997e(d) (2) (2006). 47 See Lynn S. Branham, Toothkss in Truth? The Ethereal Rational Basis Test and the Prison Litigation Act's Disparate Restrictions on Attorney's Fees, 89 CAL. L. REv. 999, 1007 (2001). 48 Karen M. Klotz, The Price of Civil Rights, 73 TEMP. L. REv. 759, 790 (2000). 49 Id. at 790-91. so Id. 2011] AN IRR.A TIONAL OVERSIGHT 61

In Walker v. Bain, the Sixth Circuit Court of Appeals, while affirming the facial constitutionality of the PLRA's attorney's fees provisions, noted the deterrent effect that the law would have on viable civil rights claims. [Section] 1997e(d) (2) will have a strong chilling effect upon counsel's willingness to represent prisoners who have meritori­ ous claims ... We admit to being troubled by a federal statute that seeks to reduce the number of meritorious civil rights claims and protect the public fisc at the expense of denying a politically unpopular group their ability to vindicate actual, al­ beit "technical," civil rights violations.51 Although the plaintiff in Walker brought a successful retaliation claim against corrections officers, during which his attorneys amassed expenses and wages totaling roughly $36,000, the total award of attorney's fees was limited to $629.52 With these numbers in mind, private attorneys are likely to only accept prisoner cases with the potential for significant damages.53 While attorney's fees are not typically part of remedies in the United States, they have long been awarded to indigent plaintiffs who succeed in causes of action under civil rights statutes. In the watershed Civil Rights Act of 1964, Congress authorized the recov­ ery of reasonable attorney's fees, enabling a generation of civil rights litigants to enter the courts.54 In Newman v. Piggie Park Enter­ prises, the Supreme Court recognized the systematic importance of allowing for attorney's fees in civil rights litigation, noting that "[i]f successful plaintiffs were routinely forced to bear their own attor­ ney's fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts."55 The PLRA's attorney's fees provisions have frustrated this objective, preventing potential landmark cases from being litigated and won in the prison context. Even more significantly, the provi­ sions prevent prisoners from litigating civil rights claims deriving from events that occurred before they were incarcerated.56 Because of these limitations and the aforementioned prohibition on IFP fil-

51 Walker v. Bain, 257 F.3d 660, 670 (6th Cir. 2001). 52 See id. at 674 (remanding to trial court for reassessment of attorney's fees under the PLRA). 53 See, e.g., Fred Cohen, The Limits ofJudicial Reform of Prisons: What Works; What Does Not, 40 CRIM. L. BULL. l, 1 n.l (2004). 54 42 U.S.C. § 2000a-3 (2006). 55 See Klotz, supra note 48, at 764 (quoting Newman v. Piggie Park Enterprises, 390 U.S. 400, 401 (1968)). 56 See, e.g., Robbins II, 435 F.3d 1238 (10th Cir. 2006) (limiting attorney's fees for successful § 1983 claim that arose prior to incarceration). 62 CUNY LAW REVIEW [Vol. 15:53 ing, prisoners are not only deterred from bringing legitimate claims arising out of their incarceration; they are prevented from bringing important claims that are not prison litigation at all.

III. APPLYING THE PLRA TO COLI.ATERAL PRISONER LITIGATION: RATIONAL OR .ABSURD? On scattered occasions, pro se litigants57 and attorneys have forced the courts to consider whether the PLRA's fee restrictions should apply to litigation unrelated to a plaintiff's incarceration. Most courts to consider the question, including three courts of ap­ peals, have determined that the fee restrictions are constitutional as applied to all civil litigation brought by prisoners, including bankruptcy appeals,58 divorce appeals,59 motions to return prop­ erty seized by the state,60 and civil rights claims that arose before the plaintiff was incarcerated.61 In contrast, a minority of courts to address the issue head-on has ruled that the PLRA's fee provisions do not apply to pre-incarceration claims. Finally, many courts apply the PLRA's fee provisions to collateral prisoner litigation without considering whether the application is warranted. The following section will consider each jurisprudential trend, highlighting the inadequate constitutional reasoning of the first group of cases, the failed analysis found in the second group of cases, and the willful blindness of the third group of cases.

A. Unsubstantiated Findings of Rationality The interest most commonly asserted by the federal govern­ ment in support of the PLRA is the prevention of frivolous and burdensome prisoner litigation.62 When considering constitutional challenges to the application of the PLRA's fee restrictions to con­ ditions of confinement suits, the courts have uniformly found that the government interest in curbing excessive litigation satisfies the

57 See, e.g., Sirbaugh v. Young, 25 F. App'x 266 (6th Cir. 2001). 58 See Lefkowitz v. Citi-Equity Group, 146 F.3d 609 (8th Cir. 1998). 59 See Sirbaugh, 25 F. App'x 266. 60 See U.S. v.Jones, 215 F.3d 467 (4th Cir. 2000). 61 See Robbins II, 435 F.3d at 1238. 62 See, e.g., Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997) ("The legisla­ tion was aimed at the skyrocketing numbers of claims filed by prisoners-many of which are meritless-and the corresponding burden those filings have placed on the federal courts."); Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996) ("Congress enacted the PLRA primarily to curtail claims brought by prisoners under 42 U.S.C. § 1983 and the Federal Tort Claims Act, most of which concern prison conditions and ·many of which are routinely dismissed as legally frivolous."). 2011] AN IRRATIONAL OVERSIGHT 63 rational basis test.63 Some courts have taken this argument beyond the boundaries of its logic, however, by assuming that the legiti­ mate government interest in deterring frivolous prisoner litigation can be used to justify the imposition of fee restrictions on, for ex­ ample, an inmate challenging the ruling of a divorce court.64 These courts have employed shallow reasoning in rejecting as-ap­ plied constitutional challenges to the PLRA and state laws. In re­ sponse to challenges not derived from the constitution, other courts have achieved a more thorough justification of the applica­ tion of the PLRA's fee restrictions to collateral prison litigation as a correct exercise of statutory interpretation.65 Thus, while the argu­ ment that Congress intended the PLRA to apply to collateral prison litigation is persuasive, this application's constitutionality is suspect.

I. Rejections of As-Applied Constitutional Challenges Lefkowitz v. Citi-Equity Group was the first case to rule on a con­ stitutional challenge to the PLRA's filing fee restrictions as applied to collateral prisoner litigation.66 In Lefkowitz, the plaintiff was a prisoner appealing an adverse ruling by a bankruptcy court.67 After the Eighth Circuit denied his petition to proceed IFP on appeal, the plaintiff raised an equal protection challenge to the application of the PLRA's fee restrictions to his case.68 In summarily rejecting the plaintiffs arguments, the court of appeals held that "Congress has a legitimate interest in curbing meritless prisoner litigation" and that "making indigent prisoners partially responsible for the costs of their litigation would decrease the amount of such merit­ less litigation."69 To support this argument, the court relied on ear­ lier cases that had addressed the validity of the PLRA's fee restrictions in the context of conditions of confinement litiga­ tion. 70 The court did not address the possibility that the legitimate government interests generally justifying the PLRA might not apply in the instant case.

63 Hampton, 106 F.3d at 1286; see also Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997); Shabazz v. Parsons, 127 F.3d 1246, 1248 (10th Cir. 1997) ("[courts have] uni­ formly concluded that the provisions pass constitutional muster."). 64 See Sirbaugh, 25 F. App'x at 266. 65 See Robbins II, 435 F.3d at 1238. 66 Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 609, 610 (8th Cir. 1998). 67 See id. at 610-11. 68 See id. 69 Id. at 612. 70 Id. (citing Nicholas v. Tucker, 114 F.3d 17, 20-21 (2d Cir. 1997); Rollerv. Gunn, 107 F.3d 227, 233-34 (4th Cir. 1997)). 64 CUNY LAW REVIEW [Vol. 15:53

The court in Sirbaugh v. Young employed similarly superficial analysis in rejecting an equal protection challenge to a Michigan statute modeled after the PLRA. 71 The plaintiff in Sirbaugh was a prisoner who had attempted to appeal an unfavorable ruling of a divorce court IFP. In processing his appeal, a state court applied Michigan's prohibition on IFP filings by prisoners and declined to waive the filing fee.72 The plaintiff challenged the application of the state act to his appeal, asserting that he was denied equal pro­ tection of the law. 73 The case made its way to the Sixth Circuit Court of Appeals, where a panel of judges held that the plaintiff's rights had not been violated.74 Like the Lefkowitz court, the Sixth Circuit gave no reason why the rationales generally justifying the PLRA's IFP prohibition could be used to justify the imposition of filing fees on collateral prisoner litigation. Instead, the court ruled that because it had previously rejected a constitutional challenge to the PLRA's fee restrictions, and because Michigan's statute was modeled after the PLRA, the plaintiff's equal protection argument had no merit.75 However, the precedent it cited in support of this blanket proposition dealt with the imposition of filing fees on a prisoner bringing a First Amend­ ment claim against a correctional institution.76 Without conducting any meaningful analysis, the court of appeals decided that the de­ nial of IFP status to a prisoner appealing an adverse divorce ruling satisfied rational basis review.77 Lefkowitz and Sirbaugh appear to be the only published opin­ ions in which courts have considered the constitutionality of the PLRA's fees provisions as applied to collateral prisoner litigation. Perhaps this dearth of jurisprudence is due to the fact that the courts have long since agreed on the fee provisions' facial constitu­ tionality78 and thus overlook the fact that collateral prisoner litiga­ tion presents a different set of issues. The application of fee restrictions to collateral prisoner litigation, which is much less likely to be baseless than conditions of confinement litigation, can-

71 Sirbaugh v. Young, 25 F. App'x 266 (6th Cir. 2001). 72 See id. at 268. 73 See id. 74 Id. at 268-69. 75 See id. at 268. 76 Id. (citing Hampton v. Hobbs, 106 F.3d 1281, 1284-88 (6th Cir. 1997)). 77 See id. ("The defendants' actions did not violate Sirbaugh's constitutional right of access to the courts because his state court case did not involve a fundamental human interest such as the termination of parental rights or the ability to obtain a divorce."). 7 8 See, e.g., cases cited supra note 63. 2011] AN IRRATIONAL OVERSIGHT 65

not be justified by the government's interest in deterring frivolous litigation. The courts, however, have thus far failed to articulate another rational basis for the imposition of fee restrictions on these prisoner litigants.

ii. Cases Approving the Application of Fee Restrictions to Collateral Prisoner Litigation Based on Statutory Interpretation Courts have also rejected statute-based challenges to certain applications of the PLRA's fee restrictions, dismissing arguments that Congress did not intend for the Act to apply to collateral pris­ oner litigation. These holdings generally rely on the plain lan­ guage of the fee restriction provisions, which explicitly apply to "any action brought by a prisoner"79 and "civil action[s] or ... appeal[s] ."80 The analysis found in these cases is more substantial than that found in the cases considered in the preceding section, and their reading of the PLRA is persuasive. But they still neglect to identify any rational basis for applying the PLRA's fee restric­ tions to collateral prisoner litigation. The most substantial decision in this category came in Robbins v. Chronister (Robbins I[) ,81 in which the Tenth Circuit, en bane, held that the PLRA's attorney's fees provisions applied to all pris­ oner litigation.82 Overruling an earlier panel decision, the court fixated on the legitimacy of the government's interest in deterring prisoners from litigating. According to the court, there was "noth­ ing absurd about reducing [the incentive to litigate] for all civil­ rights claims filed by prisoners, not just those challenging condi­ tions in prison."83 The court went on to reason that prisoners, be­ cause of their abundance of free time and access to free legal materials, should be discouraged from litigating all claims, not merely those related to their incarceration.84 Though it acknowl­ edged that "applying the PLRA cap to cases like this is not the most rational means for controlling litigation," the court found that this application was well within the "bounds of legitimate legislative compromise."85

79 42 U.S.C. § 1997e(d)(l) (2006). 80 28 u.s.c. § 1915(b) (1) (2006). 81 Robbins II, 435 F.3d 1238 (10th Cir. 2006) (en bane). 82 Id. at 1244. But see Reyes, 90 F.3d at 676 (exceptions for habeas actions, and in some jurisdictions, writs of mandamus). 83 Robbins II, 435 F.3d at 1244. 84 Id. 85 Id. 66 CUNY LAW REVIEW [Vol. 15:53

In defending the rationality of applying fee restrictions to col­ lateral litigation, the Robbins II court focused on the differences between prisoner litigants and the general public. According to the court, The balance of incentives and disincentives for filing suit is quite different for prisoners than for free persons, regardless of the subject matter of the claim, whether it be prison conditions or preincarceration conduct. Free persons must weigh the value of a possible victory in court against the burdens on their time and wallets in pursuing litigation. Prisoners, in contrast, have time in abundance, do not need money for their own necessities, and are entitled to free legal assistance or access to legal materials. And what may be perceived as burdens to free persons, such as taking time for depositions or court appearances, may well be considered an attractive change of scenery for prisoners. 86 While Robbins II affirmed the viability of attorney's fees restric­ tions, a different court of appeals has approved the application of the PLRA's IFP prohibition to collateral prisoner litigation. In United States v. Jones, the Fourth Circuit rejected the plaintiff's con­ tention that "Congress intended for the PLRA to encompass only prisoner civil rights cases."87 The court, while recognizing that the IFP prohibition was primarily intended to discourage frivolous civil rights litigation, stressed that the plain language of the statute cov­ ered all "civil actions."88 Denying the plaintiff's petition to proceed in forma pauperis in his motion to recover property seized by the state, the court determined that Congress must have meant for the fee restrictions to apply to all civil actions.89 In so ruling, the court did not identify any reasons why this application was presumptively rational or constitutional.

iii. Willful Blindness

The four cases discussed in the preceding subsections are the only instances in which federal courts have explicitly rejected chal­ lenges to the application of fee restrictions to collateral prisoner litigation. Many other courts, however, simply impose fee restric­ tions on all prisoner litigation, without any consideration of whether this practice is constitutionally or statutorily sound. Prison-

86 Id. 87 United States v. Jones, 215 F.3d 467, 469 (4th Cir. 2000). 88 Id. 89 Id. 2011] AN IRRATIONAL OVERSIGHT 67

ers challenging child support determinations, 90 appealing adverse bankruptcy court rulings,91 and litigating police brutality claims,92 have all been subjected to fee restrictions imposed or inspired by the PLRA. Moreover, these examples consist only of published fed­ eral court opinions. In practice, it appears that the courts compre­ hensively require prisoners to pay filing fees, regardless of the subject matter of the litigation.93 In states such as Colorado and Wisconsin,94 then, it may be that prisoners are deterred from liti­ gating or appealing all important grievances. Even if one accepts the Robbins II court's argument that all civil rights litigation on the part of prisoners must be discouraged, it is difficult to justify the imposition of filing fees on inmates challenging divorce court rulings.

B. Contrary to Legislative Intent? Only three courts have disagreed with the majority view re­ garding the application of the PLRA's fee restrictions to collateral inmate litigation. A court of appeals panel decision applied the ab­ surdity exception of statutory interpretation to argue that Congress could not have meant to limit the award of attorney's fees to in­ mate plaintiffs who had brought successful collateral civil rights liti­ gation.95 However, that opinion was subsequently overruled by Robbins Il,96 discussed in Section III.A.ii, supra. Two later cases both came out of the Eastern District of Pennsylvania. These decisions cited the original Robbins decision but ultimately relied upon the "whole act" rule of statutory interpretation to determine that Con­ gress had intended to limit the PLRA's application to conditions of confinement litigation.97 These three cases stand in direct contrast

90 See, e.g., Grant v. State of New Jersey, No. Civ. 04-1748 (DMC), 2005 WL 1528920, at *l (D.NJ.June 28, 2005). 91 See, e.g., In reBlumeyer, No. 4:06CV1681 CDP, 2007WL 209917, at *l (E.D. Mo. Jan. 24, 2007). 92 See, e.g., Hopper v. Rinaldi, 2:07-CV-05323, 2008 WL 558049, at *l (D.NJ. Feb. 29, 2008). 93 Justice Emily Goodman of New York Supreme Court indicates that the New York court system does not allow any prisoner to proceed in forma pauperis, regard­ less of the substance of the litigation. Interview with Emily Goodman, Justice of the Supreme Court of New York, in New York, N.Y. (Feb. 2, 2011). 94 See COLO. REv. STAT. ANN. § 13-17.5-103(2) (West 2010); State ex rel. Cramer v. Schwarz, 613 N.W.2d 591, 601 (Wis. 2000). 95 Rnbbins I, 402 F.3d 1047, 1051-55 (10th Cir. 2005). 96 Robbins II, 435 F.3d 1238 (10th Cir. 2006) (en bane). 97 See Hall v. Galie, No. 05-975, 2009 WL 722278, at *l (E.D. Pa. Mar. 17, 2009); Hatchett v. Cnty. of Phila., No. 09-1708, 2010 WL 4054285, at *l (E.D. Pa. Oct. 15, 2010). 68 CUNY LAW REVIEW [Vol. 15:53

to the majority interpretation of the PLRA and make valiant efforts to prove that collateral prisoner litigants should not be subjected to fee restrictions. There is, however, a reason that they represent the minority rule. The plain language of the PLRA frustrates the courts' creative attempts to achieve an equitable result. In Robbins I, the court took the "extraordinary" step of holding that it would be "absurd" to apply the PLRA's attorney's fees re­ strictions to collateral prisoner litigation.98 Confronted with the plain language of the PLRA's attorney's fee provisions, which apply to "any action brought by a prisoner," the court noted that it had a duty to interpret the Act in a way that would effectuate congres­ sional intent.99 After discussing the legislative history of the PLRA, the court concluded that there was no evidence that Congress had intended to "impose a fee limitation on pre-incarceration civil rights claims brought by plaintiffs who subsequently become prisoners."100 Then, citing recent Supreme Court cases using the absurdity exception to depart from a statute's plain meaning, the court ruled that the PLRA could not be interpreted to apply to collateral pris­ oner litigation.101 Finding a dearth of any indication that Congress had intended to curtail pre-incarceration civil rights claims, the court held that "failing to distinguish between pre-incarceration cases and post-incarceration cases would lead to absurd results."102 However, the Robbins I order was overruled by Robbins II and is no longer good law. The Eastern District of Pennsylvania is the only other court to find the PLRA's fee restrictions inapplicable to collateral prisoner litigation. In two published opinions, the district court relied on the "whole act rule" to arrive at a counterintuitive interpretation of the PLRA's plain language. As the court explained in Hall v. Callie, "[t]he whole act rule directs that 'when interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute ... and the objects and policy of the law .... "'103 Applying this interpretative method to the PLRA's attorney's fees provision, the district court determined that the "prison conditions" language found in the first section of the Act should be imputed to the rest

98 Robbins I, 402 F.3d at 1050. 99 Id. 100 Id. at 1051. 101 Id. at 1051-52. 102 Id. at 1054. 103 Hall v. Gallie, No. 05-975, 2009 WL 722278, at *l (E.D. Pa. Mar. 17, 2009) (quot­ ing Hernandez v. Kalinowski, 146 F.3d 196, 200 (3d Cir. 1998)). 2011] AN IRRATIONAL OVERSIGHT 69 of the statute. 104 Accordingly, the court found that the statute's limits on attorney's fees only applied to litigation concerning con­ ditions of confinement.105 This reasoning was echoed in a subse­ quent case in the Eastern District of Pennsylvania, 106 and it appears that the settled law of the district is to allow prisoners litigating matters collateral to their incarceration to recover full attorney's fees. The Eastern District of Pennsylvania, however, is alone among the federal courts in its interpretation of the PLRA's attorney's fee restrictions. And while the court's application of the "whole act" rule is not unreasonable, the majority rule is much more consistent with the language and spirit of the PLRA. The animating purpose of the PLRA was to frustrate the ability of prisoners to access the courts, which at the time, were overburdened by prison litigation. The Act's apparent application of fee restrictions to all inmate liti­ gation-not merely conditions litigation-is consistent with this goal. The "prison conditions" language of the first section of the Act107 must be logically read as limited to that section; it would be nonsensical to impose an exhaustion requirement on litigation un­ related to conditions of confinement, because no administrative grievance process would be available. Additionally, the fact that dif­ ferent sections of the Act explicitly apply to different types of law­ suits ("conditions," "all actions brought by prisoners," and "civil actions or appeals") indicates that Congress consciously drafted certain portions of the statute to apply to collateral prisoner litiga­ tion. Despite the best efforts of the Eastern District of Penn­ sylvania, it is difficult to construe the PLRA's fee restrictions as applying exclusively to prison conditions litigation. There is some evidence that Congress paid inadequate atten­ tion to detail in drafting the PLRA, a fact which could support the argument that the Act was sloppily worded and only meant to apply to prison conditions litigation. As critics have noted, the PLRA was hastily passed, failed to define key terms, and was inconsistent with preexisting law in some sections. 108 Perhaps, in a rush to respond

104 Id. at *7. 105 Id. 106 Hatchett v. Cnty. of Phila., No. 09-1708, 2010 WL 4054285, at *2 (E.D. Pa. Oct. 15, 2010). 107 42 U.S.C. § 1997e(a) (2010) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."). 108 Susan N. Herman, Slashing and Burning Prisoners' Rights: Congress and the Supreme Court in Dialogue, 77 OR. L. REv. 1229, 1277 (1998). 70 CUNY LAW REVIEW [Vol. 15:53

to a perceived crisis of unbounded prisoner litigation, Congress failed to accurately articulate the applicability of the PLRA's fee restrictions. But it is impossible to know whether this interpretation has any basis in fact: the PLRA's drafters left almost no legislative history behind, and the Act can therefore only be judged on the basis of its plain language. Through this language, in an internally consistent legislative structure, the PLRA's drafters indicated that the Act's fee provisions would apply to collateral prisoner litiga­ tion. Therefore, while the rationality of this operation of the Act is questionable, arguments that the PLRA's fee restrictions do not ap­ ply to collateral litigation are unpersuasive.

C. The Uncertain Status of Collateral Prisoner Litigation Congress clearly intended for the PLRA's fee restrictions to apply to collateral inmate litigation. Yet courts have been unable to articulate a rational basis for this application. Part of the problem may be that few courts have addressed the constitutionality of this trend. But even the courts that have considered the issue have failed to demonstrate why the imposition of fee restrictions on col­ lateral prisoner litigation is not an irrational policy in violation of the Equal Protection Clause. The remainder of the article will at­ tempt to fill this analytical gap.

IV. THE CoNSTITUTIONALI'IY OF FEE REsTRICTIONS oN COLLATERAL PRISON LITIGATION When a law draws distinctions between groups of United States citizens, imposing burdens or benefits on one group that are not experienced by another, it is subject to review under the Equal Protection Clause of the Fourteenth Amendment.109 Laws that dif­ ferentiate between groups on the basis of a classification recog­ nized as suspect by the Supreme Court are subjected to a heightened standard of reviewY0 In contrast, laws that place bur­ dens upon individuals who are not members of a suspect class are evaluated under rational basis review. The traditional formulation of this test requires that laws be "rationally related" to a "legitimate government interest."111 Rational basis review is largely deferential to the legislative goals enunciated by legislatures, but the test has been employed to invalidate irrational laws unconnected to any

109 U.S. CONST. amend. XIV § 1. 110 See, e.g., United States v. Carolene Prod. Co., 304 U.S. 144, n.4 (1938) (establish­ ing the concepts of strict scrutiny, rational basis). 111 See, e.g., San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. l, 40 (1973). 2011] AN IRRATIONAL OVERSIGHT 71 reasonable government purpose.112 Prisoners are not considered a suspect class by the federal courts. Although the Supreme Court has not addressed the issue, the lower courts "have uniformly held that prisoners are a non­ suspect group because status as a prisoner is not an immutable characteristic; entry into the class is voluntary; and entry into the class requires commission of an illegal act."113 As-applied constitu­ tional challenges to the PLRA's fee restrictions, therefore, are gov­ erned by the rational basis test. Even under this lax standard, however, the application of fee restrictions to certain collateral prisoner litigation is unconstitutional. These applications of fee re­ strictions are in no way rationally related to the legitimate govern­ ment interest in deterring frivolous litigation, and it is impossible to conceive of any other legitimate government interest to which they are rationally related. As a result, the PLRA's fee restrictions, as applied to certain collateral prisoner litigation, violate the Four­ teenth Amendment. The courts have a duty to conduct a small, but significant, reversal of the general trend of abrogating prisoners' constitutional rights by striking down this application of the PLRA.

A. A Brief Discussion of the Rational Basis Test's Viability It has been said that the Supreme Court's infrequent use of the rational basis test to strike down statutes and regulations consti­ tutes an "active"114 or "rational basis with bite"115 test more akin to intermediate scrutiny. But despite the efforts of commentators and dissenters to interpret these cases as having been decided under a heightened standard, the Court has been clear that its use of the rational basis test to find laws unconstitutional does not constitute intermediate scrutiny.116 This refrain is consistent with the scatter­ shot character of rational basis equal protection claims that have

112 See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (striking down statute denying fund­ ing for education of children of aliens via rational basis review). 113 Jason Pepe, Challenging Congress's Latest Attempt to Confine Prisoners' Constitutional Rights, 23 HAMLINE L. REv. 58, 72. See also Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997) ("inmates are not a suspect class"); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997) ("neither prisoners nor indigents are a suspect class"). 114 See, e.g., Alfonso Madrid, Comment: Rational Basis Review Goes Back to the Dentist's Chair, 4 TEMP. PoL. & Civ. RTs. L. REV. 167 (1994) (discussing what the author and some lower courts term the "active rational basis test"). 115 See, e.g., Gayle Lynn Pettinga, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 IND. LJ. 779 (1987) (arguing that applications of rational basis test causing laws to be invalidated are functionally intermediate scrutiny). 116 See, e.g., Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457-58 (1988) (citing Plyler, 457 U.S. 202, for the proposition that laws must be rationally related to legiti­ mate government interests). 72 CUNY IA W REVIEW [Vol. 15:53 been successful in the Supreme Court. As one study has found, the ten successful equal protection claims under the rational basis stan­ dard in the Supreme Court from 1973 to 1996 cannot be explained by reference to the "nature of the class disadvantaged" or "the gov­ ernment interest involved."117 Indeed, it is difficult to argue that the Court has singled out "newcomers, out-of-staters, hippies, un­ documented aliens, the mentally retarded, nonfreeholders, and gays" 118 as quasi-suspect classes warranting intermediate scrutiny. Although the Supreme Court's occasional use of the rational basis review to invalidate laws has bedeviled academics and lower courts seeking a pattern in its jurisprudence, these cases are not inconsistent with the letter of the test itself. While most laws are enacted to specifically address legitimate government interests, it is clear that illegitimate government interests exist and likewise evi­ dent that some laws are in no way related to genuine legislative goals. Understandably, most statutes and regulations considered by the Supreme Court are not sufficiently flawed to violate the ra­ tional basis standard. However, when confronted with a law that, for example, seeks to promote "the creation and perpetuation of a subclass of illiterates,"119 the Court has demonstrated that rational basis does not operate as a rubber stamp for the irrational whims of legislatures.

B. The Government Interest in Deterring Frivolous Prisoner Litigation: Inapplicable to Certain Collateral Litigation The PLRA has been challenged ad nauseum by prisoners and advocates to little effect. Throughout a vast body of jurisprudence upholding the Act's constitutionality, the courts have echoed a consistent refrain: the government has a legitimate interest in preventing frivolous and excessive prisoner litigation, the existence of which has been thoroughly documented.120 But though the va-

117 Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term Through Romer v. Evans, 32 IND. L. REv. 357, 411-13 (1999). 118 Id. (citing Romer v. Evans, 517 U.S. 620 (1996); Allegheny Pittsburgh Coal Co. v. Cnty. Comm'n, 488 U.S. 336 (1989); Quinn v. Millsap, 491 U.S. 95 (1989); Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985); Williams v. Vermont, 472 U.S. 14 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985); Zobel v. Williams, 457 U.S. 55 (1982); Plylerv. Doe, 457 U.S. 202 (1982); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973)). 119 Plyler, 457 U.S. at 230. 120 See, e.g., Murray v. Dosal, 150 F.3d 814, 818 (8th Cir. 1998); Tucker v. Branker, 142 F.3d 1294, 1300 (D.C. Cir. 1998); Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997); Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997). 2011] AN IRRATIONAL OVERSIGHT 73

lidity of this government interest is firmly established, there is no relationship between the denial of IFP status to a prisoner seeking to appeal a child support or bankruptcy ruling and the prevention of frivolous litigation. Collateral inmate litigation is not at all char­ acteristic of the type of litigation that prompted Congress to pass the PLRA, 121 nor is it especially vulnerable to frivolity. 122 Instead, such litigation is representative of significant legal problems exper­ ienced by all Americans. A rational relationship simply does not exist between deterring prisoners from pursuing significant legal matters unrelated to their incarceration and preventing gratuitous and systematically burdensome civil rights litigation. Although the Act's legislative history is limited, 123 the available evidence indicates that Congress had a clear and defined goal it sought to achieve by enacting the PLRA. Since there were no com­ mittee markups accompanying the bill and little debate within the legislature, the congressional intent behind the PLRA can only be determined by reference to the Act itself and to statements made on the floor of Congress in support of the Act. 124 In these endorse­ ments, which have formed the foundation of the rational basis ar­ ticulated by the courts in response to constitutional challenges to the PLRA, the Act's sponsors unambiguously stated that the Act was primarily intended to address frivolous prison litigation. Senator Orrin Hatch, the chief sponsor of the PLRA, justified the Act on the floor of Congress by arguing that it would "help bring relief to a civil justice system overburdened by frivolous pris­ oner lawsuits," "help restore balance to prison conditions litiga­ tion," and "ensure that Federal court orders are limited to remedying actual violations of prisoners' rights ...." 125 To demon­ strate the types of litigation the PLRA was meant to deter, Senator Jon Kyl read a "Top Ten" list of frivolous prisoner suits into the Congressional Record, including cases in which prisoners challenged video-game confiscations and the provision of chunky, rather than

121 See 141 CONG. REc., Sl4,629 (daily ed. Sept. 29, 1995). 122 See, e.g., Grant v. State of New Jersey, No. Civ. 04-1748, 2005 WL 1528920, at *3 (D.NJ. June 28, 2005) (applying IFP prohibition to inmate appealing adverse child support determination). 123 See Herman, supra note 108, at 1277 (discussing the lack of consideration or debate preceding the passage of the PLRA). 124 See Ann H. Matthews, The Inapplicability of the Prison Litigation R.eform Act to Pris­ oner Claims of Excessive Force, 77 N.Y.U. L. REv. 536, 560-61 (2002) (noting that the legislative intent behind the PLRA can only be determined by reference to statements made on the floor of Congress). See also Riewe, supra note 4, at 142 (discussing the dearth of legislative history in support of the PLRA). 125 141 CoNG. REc. Sl4,418 (1995). 74 CUNY LAW REVIEW [Vol. 15:53

smooth, peanut butter.126 These examples were used to build sup­ port for the proposition that the PLRA would "help put an end to the inmate litigation fun-and-games."127 It is necessary here to note that the PLRA's consequences have extended far beyond the discouragement of "fun-and-games" en­ joyed at the expense of the federal courts. While foundationless prisoner litigation was a tangible and significant problem during the early 1990s, 128 the PLRA's provisions have operated to deny remedies to prisoners who have experienced serious violations of their legal and constitutional rights. The Act's exhaustive require­ ments, in particular, have been responsible for a massive decrease in prisoner litigation, and the extent to which "the suits which the PLRA has evidently deterred were frivolous" is unclear. 129 Thus, al­ though the PLRA has apparently succeeded in limiting foundation­ less prisoner litigation, it has also arbitrarily prevented "real abuses that take place within the prison system'' from being litigated.130 The ongoing P/,ata and Coleman litigation 131 challenging horrific conditions of confinement in California prisons demonstrates the manifest necessity of effective legal avenues through which prison­ ers may vindicate their constitutional rights. Notwithstanding these concerns, the courts have unvaryingly decided that the government interest in deterring frivolous inmate litigation is a legitimate one. These findings of legitimacy, however, have been predicated on the existence of a nexus between impos­ ing fee limitations and forcing prisoners to carefully consider whether to litigate marginal issues such as those detailed by Sena­ tors Hatch and Kyl. Denying IFP status to prisoners filing for bank-

126 141 CONG. REc. Sl4,629 (daily ed. Sept. 29, 1995). 127 141 CONG. REc. Sl4,626 (daily ed. Sept. 29, 1995) (statement of Sen. Bob Dole). 128 See Schlanger, supra note 2, at 1592-1627. Professor Schlanger affirms, with qualifications, the baseline presumption underlying the PLRA: that prisoner civil rights litigation in the federal courts was extremely common and had a low rate of success. According to Professor Schlanger's data, about 80% of inmate civil rights suits were dismissed prior to trial during the period from 1990-1995. Notwithstanding the many factors that contribute to prisoners' difficulty in successfully suing correc­ tional institutions, including inadequate access to counsel and an oppositional cul­ ture within the correctional system, there is support for the proposition that baseless inmate litigation had become a problem in the early-to-mid 1990s. Id. 129 Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Conse­ quence of Procedural Error, 52 EMORY LJ. 1771, 1779 (2003). 130 Id. at 1776. 131 See Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK ]FM P, 2009 WL 2430820 (E.D. and N.D. Cal. Aug. 4, 2009) (ordering release of California prisoners as remedy for gross constitutional violations), affd, Brown v. Plata, 131 S. Ct. 1910 (2011). 2011] AN IRRATIONAL OVERSIGHT 75 ruptcy132 or appealing the rulings of divorce courts cannot be seen as a rational means of curtailing frivolous inmate litigation. In con­ trast to the typical foundationless prisoner lawsuit, in which a pris­ oner may file and burden the court system without proving that any of his legal rights have been implicated, 133 a prisoner filing for bankruptcy will typically have compelling, and legally recognized, reasons to do so. Imposing fee restrictions on collateral prisoner litigation unrelated to civil rights issues is not a rational means of achieving the legitimate governmental goal of preventing frivolous litigation. Courts applying the PLRA's fee restrictions to collateral litiga­ tion have drawn an arbitrary distinction between prisoners and other indigents without articulating any rationale for this discrimi­ nation. Senator Batch's claim that prison conditions litigation was out of control was somewhat supported by the burden felt by fed­ eral courts and high rates of frivolous filings. There has been no such showing that collateral inmate litigation is burdensome, foun­ dationless, or even more commonly brought by prisoners than by the general population. The presumption that prisoners consider the courts to be "an attractive change of scenery"134 does not have any relevance to collateral litigation absent some indication that prisoners abuse bankruptcy or divorce proceedings as a means of temporarily escaping their cells. It is clear that the prisoner suits actually burdening the courts at the time of the PLRA's enactment were related to prison conditions.135 A rational response to those frivolous filings does not include the imposition of fee restrictions on collateral prisoner litigation, which can only be brought under certain circumstances and which is not vulnerable to abuse. Separately, the Due Process Clause unquestionably prohibits the imposition of fee restrictions on prisoners filing for divorce or contesting child custody determinations. Indigent litigants in di­ vorce proceedings have a constitutionally protected right to pro­ ceed IFP.136 This right is derived from the Due Process Clause of the Fourteenth Amendment and relates to court access rather than the nondiscrimination principle, 137 but it is applicable to all indi­ gents, including prisoners. Due process also requires that indigents

132 See, e.g., Lefkowitz v. Citi-Equity Group, 146 F.3d 609 (8th Cir. 1998). 133 See Schlanger, supra note 2. 134 Robbins II, 435 F.3d 1238, 1244 (10th Cir. 2006) (en bane). 135 See Robbins I, 402 F.3d 1047, 1050-54 (10th Cir. 2005). 136 See Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that indigents must be allowed to bring divorce proceedings). 137 Id. at 382-83. 76 CUNY LAW REVIEW [Vol. 15:53

be granted IFP status in cases and appeals affecting child custody rights.138 It should be noted that the right to family-related court access does not extend to purely pecuniary divorce appeals relating to the distribution of marital property. 139 However, as detailed above, the application of fee restrictions to such collateral litiga­ tion is independently unconstitutional under the Equal Protection Clause. The United States Congress and members of the Supreme Court have similarly acknowledged the importance of providing fee waivers to indigents in bankruptcy court. As discussed, the de­ nial of IFP status to prisoners in bankruptcy filings and appeals is not rationally related to any legitimate government interest, a con­ clusion given further substance by the significance of fee waivers in these proceedings. The enactment of the Bankruptcy Abuse and Consumer Protection Act of 2005 (BAPCPA),140 which provided in­ digent persons with the right to proceed IFP in bankruptcy pro­ ceedings, was meant to solve a longstanding paradox of bankruptcy filings: that "some of the poor are too poor even to go bank­ .rupt."141 Strangely, BAPCPA does not apply to inmate filings,142 al­ though the Act reflects a congressional intent to demonstrate that "the court system is open to rich and poor alike,"143 and although four Supreme Court Justices have ruled that a constitutional right to IFP bankruptcy proceedings exists for indigents.144 Unlike di­ vorce and child custody proceedings, there is no constitutional right to file IFP in bankruptcy proceedings, but the recognized im­ portance of filing fee waivers in this context is further demonstra­ tion of the irrationality of federal law's discrimination against prisoners in these matters. In contrast, the application of fee restrictions to prisoner civil rights litigation unrelated to conditions of confinement is constitu­ tional. Like conditions litigation, all prisoners have common expe­ rience from which to base civil rights claims related to police

138 M.L.B. v. S.LJ., 519 U.S. 102 (1996). 139 Sirbaugh v. Young, 25 F. App'x 266, 268 (6th Cir. 2001) ("The defendants' ac­ tions did not violate Sirbaugh's constitutional right of access to the courts because his state court case did not involve a fundamental human interest such as the termination of parental rights or the ability to obtain a divorce."). 140 28 u.s.c. § 1930(£)(1) (2006). 141 United States v. Kras, 409 U.S. 434, 457 (1973) (Stewart, J., dissenting). 142 11 U.S.C. § 523(a) (17) (2006). 143 See Philip Tedesco, In Forma Pauperis in Bankruptcy, 84 AM. BANKR. LJ. 79, 79 (2010) (citing 144 CoNG. REc. Sl0,572 (daily ed. Sept. 18, 1998) (statement of Sen. Durbin). 144 Kras, 409 U.S. at 457. 2011) AN IRRATIONAL OVERSIGHT 77 brutality, wrongful arrest, or other issues collateral to criminal con­ duct. Just as many prisoners have grievances with their treatment while incarcerated, 145 many prisoners believe their rights were vio­ lated in the course of their interactions with police.146 While legal issues collateral to incarceration, such as divorce, are not faced by all inmates, many inmates share common experiences giving rise to civil rights litigation.147Additionally, unlike divorce court appeals or motions to have property returned, pre-incarceration civil rights litigation can be frivolously filed without any underlying basis. Ac­ cordingly, the courts have a rational basis for applying fee restric­ tions to collateral prisoner civil rights litigation. There is a clear constitutional mandate to provide IFP status to prisoners in divorce and child custody proceedings. Insofar as they fail to contain savings clauses to this effect, the PLRA and analo­ gous state statutes are unconstitutional. Additionally, the applica­ tion of fee restrictions to collateral litigation such as bankruptcy proceedings, motions to recover seized property, and appeals of divorce court rulings is not rationally related to the government interest in deterring frivolous litigation and is therefore unconsti­ tutional. Although actions such as appeals of property court deter­ minations in divorce proceedings are not covered by Supreme Court precedent establishing a right to court access, 148 IFP filing has traditionally been seen as especially necessary in divorce and bankruptcy proceedings and it is patently irrational to deny prison­ ers this privilege enjoyed by all other indigents. In contrast, the application of fee restrictions to collateral civil rights litigation con­ forms to the requirements of equal protection. Although this appli­ cation may have "little, if any, effect in terms of curbing frivolous litigation,"149 it is at least rationally related to a legitimate govern­ ment interest. The application of fee restrictions to other collateral inmate litigation, however, is unconstitutional and must cease.

V. CONCLUSION: TURNING THE TrnE OF MA.ss INCARCERATION Federal courts have supported and enabled some of the most significant social change to occur throughout United States his-

145 Se,e Schlanger, supra note 2, at 1571-72 (noting that "leading topic" of inmate litigation is challenge to conditions of confinement). 146 Id. (discussing the notable percentage of inmate litigation alleging mistreat- ment by police and other non-correctional actors). 147 Id. (discussing the consistent subject matter underlying most inmate litigation). 148 See Sirbaugh v. Young, 25 F. App'x 266, 268 (6th Cir. 2001). 149 Murrayv. Dosal, 150 F.3d 814, 821 (8th Cir. 1998) (Heaney,]., dissenting). 78 CUNY LAW REVIEW [Vol. 15:53

tory. From Brown v. Board ofEducation 150 to Lawrence v. Texas, 151 the courts have been, at times, a progressive and countermajoritarian force, operating as a bulwark against the more pernicious tenden­ cies of citizens and legislatures. Mass incarceration may be a more convoluted issue than segregation or homophobia, but as a social phenomenon, it is no less destructive. Sadly, the courts have partic­ ipated in, rather than prevented, this destructive trend, particularly in the wake of the PLRA. Legislatures will always have incentives to promote strict crime control policies and are unlikely to be the vanguards of change. Courts have a duty to protect us from our baser instincts, such as the decision to imprison the young, black, and poor members of society in great numbers and deprive them of their constitutional rights. For years, California has been one of the leaders in hyper-pu­ nitive criminal justice policy and over-incarceration, 152 an experi­ ment that has contributed to the state's fiscal crisis153 and forced the federal courts to take drastic measures to correct the draconian conditions in its prisons. 154 As a result of the valuable political capi­ tal available in tough crime control policies, the influence of the powerful correctional industry, and a culture of bureaucratic disen­ titlement, the California legislature allowed the conditions in its prisons to deteriorate to levels that might be expected in the pris­ ons of an unstable developing country.155 For decades, the state staunchly defended against meritorious claims asserted in the Cole­ man and Plata class actions, a recalcitrance that finally caused a panel of three federal judges to order the release of a substantial number of prisoners.156 Even after this order and in the face of an undeniable pattern of constitutional violations, California's legisla­ tive and executive branches continue to resist any significant re-

150 347 U.S. 483 (1954). 151 539 U.S. 558 (2003). 152 See, e.g., Vincent Schiraldi, Criminal justice Reform: Public Turnabout on Three Strikes, S.F. GATE, July 6, 2004, available at http:/ /articles.sfgate.com/2004-07-06/opin­ ion/l 7435648_l_three-strikes-third-strike-violent-crimes (noting that the number of California prisoners serving time under three-strikes law was equivalent to the aggre­ gate prison population of forty other states). 153 See, e.g., Michael P.Jacobsen, Crisis and Opportunity in California's Prison System, 13 BERKELEY J. CruM. L. 319 (2008) (discussing the impact that prison growth in Califor­ nia has had on the fiscal crisis faced by the state). 154 See Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P, 2009 WL 2430820, at *l (E.D. and N.D. Cal. Aug. 4, 2009), affd, Brown v. Plata, 131 S. Ct. 1910 (2011). 155 See Jacobsen, supra note, 153 at 320 (discussing the "toxic political mix" imped­ ing meaningful prison reform and resulting in federal court intervention). 156 See Coleman, 2009 WL 2430820, at *l. 2011] AN IRRATIONAL OVERSIGHT 79 forms. The circumstances surrounding this litigation are representative of a broad governmental unwillingness to reverse failed criminal justice policies. If meaningful and necessary change is to come, it must come from the judiciary. Striking down the PLRA's IFP restrictions as applied to collat­ eral prison litigation would be a small, but significant, step in a process of change led by the courts. While the rationality of the PLRA is generally unassailable, there is no constitutionally legiti­ mate reason for the application of its fee restrictions to divorce and bankruptcy proceedings. It appears that a solution to the deeper problems of mass incarceration and prisoner litigation is not forth­ coming. But, at the margins, the courts have the ability to deny legislatures their more irrational means of dealing with prisoners. If the courts are capable of establishing the high water mark be­ yond which prisoners' constitutional rights may not be diluted any further, perhaps the broader trend of the country's evolution into a carceral regime will begin to reverse itself. EARNING THE RIGHT TO REMAIN SILENT AFTER BERGHUIS V. THOMPKINS

Isa Chakarian t

INTRODUCTION Even the interrogating detective conceded that the interroga­ tion of Van Chester Thompkins was "very, very one sided" and "nearly a monologue."1 Detective Helgert, the primary interroga­ tor, described Mr. Thompkins as "largely silent" and "not verbally communicative" throughout the three-hour interrogation.2 Ac­ cording to Helgert's testimony, throughout the interrogation, Mr. Thompkins appeared "peculiar" and "sullen."3 Mr. Thompkins re­ fused to make eye contact with the detectives and kept his head down. 4 Describing Mr. Thompkins's response to the officers' at­ tempts to get him to talk, Helgert admitted, "not only did it not illicit any admissions or denials, for that matter, it did not illicit any sort of reaction."5 Mr. Thompkins's interrogation took place in an "austere" eight by ten feet room in a detention facility, during which he was made to sit in a school-room type chair.6 Initially unsuccessful, the two detectives who interrogated Mr. Thompkins resorted to using a number of tactics in an effort to get him to speak. They told him, there are "two sides to a story," and that "[p]eople are going to want to hear from you."7 When these efforts failed to produce a statement from Mr. Thompkins, Helgert made a last ditch effort. He appealed to Mr. Thompkins's spirituality. Helgert asked Mr. Thompkins whether he believed in God and "if he prayed to God to forgive him for shooting that boy down. "8 After at least two hours and forty-five minutes of consistently exercising his right to

t J.D. 2012, CUNY School of Law. The author thanks Professor Steve Zeidman for his invaluable guidance and support. The author is also grateful to my colleagues Cynthia Liang and Eric Washer for their insightful comments, and gratefully acknowl­ edges the City University of New York Law Review for its administrative support. 1 Brief for Respondent, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (No. 08- 1470), 2010 WL 265634, at *2 [hereinafter Brief for Respondent]. 2 Brief for Respondent at *2. 3 Id. at *5. 4 Id. 5 Id. at *5-6. 6 Id. at *5. 7 Id. at *6. 8 Brief for Respondent supra note 1, at *6.

81 82 CUNY LAW REVIEW [Vol. 15:81 remain silent, Mr. Thompkins tearfully answered "Yes" to both questions.9 These two one-word answers were later used as evi­ dence against Mr. Thompkins in the fatal shooting of Samuel Mor­ ris. The propriety of this interrogation was litigated all the way to the Supreme Court. In Berghuis v. Thompkins, the Court held that to trigger the pro­ cedural duty on police officers to "scrupulously honor" the right to remain silent, the individual must first invoke that right clearly and unambiguously.10 This Note describes how lower federal and state courts are interpreting and applying the Berghuis clear statement requirement. An additional objective is to compare the various in­ terpretations of the Berghuis clear statement requirement to deter­ mine which approach sets out the best guidelines for distinguishing between clear and ambiguous invocations of the right to remain silent. I attempted to reach these goals by surveying 66 federal and state cases that extensively or substantially discuss the Berghuis decision. Parts I and II begin with a discussion of important Supreme Court precedents on the Fifth Amendment privilege against com­ pelled self-incrimination. In Part III, I turn to the specific issue of invocation. There, I argue that the Berghuis Court's failure to set out a meaningful standard by which courts can differentiate be­ tween clear and ambiguous invocations of the right to remain si­ lent has resulted in varying interpretations of the clear statement requirement among lower federal and state courts. Specifically, my research revealed that lower courts' understanding of the Berghuis invocation standard fits into roughly three categories of interpretation. After comparing and contrasting the three categories of inter­ pretation in Part IV, I argue in Part V that an approach based on the totality of the circumstances is the best way to determine whether an individual has "unambiguously" invoked his or her right to remain silent. An approach to the invocation inquiry which takes into account all of the relevant facts provides a balance be­ tween the interests of the state in solving crime and the rights and dignity of ordinary citizens that comes closer to objective fairness. Such a standard also acknowledges the reality that the conditions of custodial interrogation are specifically designed to undermine the individual's ability to exercise his or her rights. Additionally, the totality of the circumstances test redistributes the burden of

9 Id. io 130 S. Ct. 2250, 2260 (2010). 2011] RIGHT TO REMAIN SILENT AFI'ER BERGHUIS 83 persuasion between the accused and the state because it accounts for the statements, conduct, and demeanor of the interrogating police officer in relation to the individual's invocation. By operat­ ing in this way, the totality of the circumstances test is more consis­ tent with Miranda's assertion that the burden of persuasion rests with the state, "since [it] is responsible for establishing the isolated circumstances under which the interrogation takes place ...." 11 Unlike the totality of the circumstances test, the other two standards discussed in this Note fail to achieve objectivity because they ignore the affect of the custodial interrogation environment on the individual's ability to exercise the right to remain silent. Furthermore, standards that fail to take into account the totality of the circumstances are grounded in a superficial analysis because they only provide courts with a snapshot of the interrogation, whereas the totality standard provides courts with a richer factual basis for deciding on the invocation question. Finally, the totality of the circumstances standard provides the potential for greater con­ sistency across decisions dealing with the invocation inquiry, by specifically identifying and considering contextual factors that give a rational explanation for why one statement counts as unambigu­ ous while another does not.

I. BACKGROUND In Miranda v. Arizona the Supreme Court aimed to set out a broader set of protections against coerced confessions than that provided by the voluntariness doctrine and the Fifth and Four­ teenth Amendment due process standards which had preceded it. 12 The Miranda Court held that in the context of custodial inter­ rogation, statements made by an accused individual are inadmissi­ ble unless the police abide by certain procedures that operate to protect the individual's Fifth Amendment privilege against com­ pelled self-incrimination and the Sixth Amendment right to coun­ sel. 13 The underlying rationale of the Miranda procedures is to ensure that the individual who makes a confession during custodial interrogation does so of his or her own free will. 14 Prior to Mi-

11 Miranda v. Arizona, 384 U.S. 436, 475 (1966). 12 See Dickerson v. United States, 530 U.S. 428, 432-33 (2000); Miranda, 384 U.S. at 457 (discussing shortcomings of the totality of the circumstances test for determin­ ing the voluntariness of a confession). 13 Miranda, 384 U.S. at 478-79. See also James L. Buchwalter, Construction and Appli­ cation of Constitutional Rule of Miranda - Supreme Court Cases, 17 A.L.R. FED. 2d 465 (2011). 14 Miranda, 384 U.S. at 462 (explaining that the issue of admissibility for purposes 84 CUNY LAW REVIEW [Vol. 15:81 randa, confessions obtained during the course of custodial interro­ gation were judged against the standard of "voluntariness" and the due process clause of the Fifth and Fourteenth Amendments.15 The voluntariness test is grounded in the Fifth Amendment's privi­ lege against compelled self-incrimination, and consists of examin­ ing "'whether a defendant's will was overborne' by the circumstances surrounding the individual's confession."'16 In ap­ plying the voluntariness test, courts take into consideration "the totality of all the surrounding circumstances," which includes the characteristics of the accused and the details of the interrogation. 17 In Miranda, the Supreme Court took a markedly different ap­ proach to determining whether a confession obtained during the course of custodial interrogation is admissible. The Court empha­ sized the effect of modern custodial interrogation tactics on the ability of the individual to make an unfettered and voluntary choice to speak or remain silent; the Court very clearly asserted that custodial interrogation is an inherently compulsive process de­ signed to jeopardize the individual's free choice to remain silent.18 According to the Miranda Court, the traditional totality of the cir­ cumstances test was ineffective in catching involuntary custodial confessions, and in fact, posed an "unacceptably great" risk that such confessions would escape detection.19 Miranda held that a confession is admissible only if the police abide by certain proce­ dures that operate to dispel the inherent compulsion of custodial interrogation and protect the individual's right to exercise his or of the Fifth Amendment privilege against self-incrimination depends on whether the confession is voluntary; whether a confession is involuntary depends on proof estab­ lishing that but for external forces in the context of custodial interrogation, the indi­ vidual would not have made the ·confession (citing Bram v. United States, 168 U.S. 532, 542 (1897)). See also Illan M. Romano, Note and Comment, Is Miranda on the Verge ofExtinction? The Supreme Court Loosens Miranda's Grip in Favor of Law Enforcement, 35 NovA L. R.Ev. 525, 528 (2011) (describing the central goal of Miranda as ensuring that the individual makes a free choice to speak to the police). 15 Dickerson, 530 U.S. at 432 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)) (discussing the pre-Miranda law governing admission of confessions). 16 Id. at 433-34 (citing Bram, 168 U.S. at 542 and Brown v. Mississippi, 297 U.S. 278, 286-87 (1936), which initially set forth the voluntariness test, and Escobedo v. Illinois, 378 U.S. 478, 486, 492 (1964) and Schneckloth, 412 U.S. at 225-29, which re­ fined the due process standard for admissibility of confessions). 17 Id. at 434 (citing Schneckloth, 412 U.S. at 226). 18 Miranda, 384 U.S. at 467 ("We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime con­ tains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely."). 19 See Missouri v. Seibert, 542 U.S. 600, 608 (2004) (quoting Dickerson, 530 U.S. at 442) (describing why the Court abandoned the "totality of the circumstances" volun­ tariness inquiry in favor of the Miranda protections). 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 85 her free will when choosing to make a statement to the police.20 The Miranda procedures are a series of bright-line rules that establish a clear way of determining whether a particular statement is admissible, consistent with the Fifth Amendment.21 These proce­ dural requirements were designed to diminish the coercion inher­ ent in custodial interrogation, which "blurs the line between voluntary and involuntary statements," and thus heightens the risk that the privilege against self-incrimination will not be observed.22 The first and perhaps most enduring of the straightforward Miranda procedural protections is the requirement that interrogat­ ing police officers warn the individual of his or her Fifth Amend­ ment privilege against self-incrimination and the Sixth Amendment right to an attorney.23 Specifically, the warning re­ quirement established by Miranda requires the police to advise the accused prior to interrogation of: (1) the right to remain silent and that any statements made by the accused can and will be used against her in court; and (2) the right to an attorney, the right to have the attorney present during interrogation, and the right to have an attorney appointed if the accused is indigent.24 According to the Miranda Court, the warning requirement serves three princi­ ple purposes. First, the warning serves to make persons who are unaware of the privilege conscious of the right, which is a thresh­ old requirement for its intelligent exercise.25 Second, the Court reasoned that such warnings served to assure the individual that his or her decision to exercise these rights would be respected by the police at any time during the course of the interrogation.26 Finally, the Court held that the most important purpose of the warnings is that they help overcome the inherent pressures of custodial inter­ rogation.27 Thus, if the police fail to advise the individual of his or her Miranda rights before the interrogation, any statements made

20 Miranda, 384 U.S. at 444. 2l Id. at 458 ("Unless adequate protective devices are employed to dispel the inher­ ent compulsion in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice."). 22 Dickerson, 530 U.S. at 435. See also George M. Dery III, Do You Believe in Miranda? The Supreme Court Reveals Its Doubts in Berghuis v. Thompkins Uy Paradoxically Ruling that Suspects Can Only Invoke Their Right to Remain Silent by Speaking, 21 GEO. MAsoN U. C.R. LJ. 407, 413 (2011) (citing to Dickerson in describing the underlying concerns addressed by Miranda, and characterizing the rules that were established in Miranda as "straightforward"). 23 Miranda, 384 U.S. at 467-6S. 24 Id. at 444-45, 479. 25 Id. at 468. 26 Id. 27 Id. 86 CUNY LAW REVIEW [Vol. 15:81 by the individual during the interrogation, whether inculpatory or exculpatory, are inadmissible. 28 The second important procedural rule established by Miranda is the requirement that police obtain an affirmative waiver of rights from the individual prior to commencing the interrogation.29 The Court was very clear in holding that merely warning the individual of the right to remain silent and the right to counsel is not enough to sufficiently allay the coercive nature of police interrogation. 30 In order to effectively combat the inherent compulsion of custodial interrogation, the police can only interrogate the individual after he or she has expressly waived the rights protected by Miranda. 31 In effect, this second procedural requirement precludes persistent po­ lice questioning in the absence of an affirmative waiver of the rights.32 Nine years after Miranda was decided, the Supreme Court explicitly affirmed the ban on persistent police questioning in Michigan v. Mosley, 33 and held that a critical safeguard of the Mi­ randa procedures is the individual's "right to cut off questioning."34 The Mosley Court recognized unrelenting questioning to be an ele­ ment of coerciveness, which wears down the individual's resistance and compels him or her to speak.35 The Miranda Court went further than merely requiring the po­ lice to obtain an express waiver of rights from the individual prior to the commencement of the interrogation. The Court established a presumption against the finding of waiver by holding that even

28 Id. at 444-45, 476-77. See also Missouri v. Seibert, 542 U.S. 600, 608 (2004) ("[F]ailure to give the prescribed warnings and obtain a waiver of rights before custo­ dial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a waiver."). 29 Miranda, 384 U.S. at 476 ("The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a prelimi­ nary ritual to existing methods of interrogation."). See also Richard L. Budden, All in All, Miranda Loses Another Brick from Its Wall: The U.S. Supreme Court Swings Its Hammer in Berghuis v. Thompkins, Dealing a Crushing Blow to the Right to &main Sil£nt, 50 WASHBURN LJ. 483, 505 (2010). 30 Miranda, 384 U.S. at 469-70. 31 Id. at 479. See also Brief for Respondent, supra note 1, at *19 (asserting that "Miranda requires an affirmative waiver of rights before questioning begins"); ~ud­ den, supra note 29, at 505. 32 Brief for Respondent, supra note 1, at *46 (citing Michigan v. Mosley, 423 U.S. 96, 105-06 (1975)). 33 Mosley, 423 U.S. at 105-06. 34 Id. at 103-04 (quoting Miranda, 384 U.S. at 474). 35 Id. at 104. 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 87 where the police obtain an express waiver, it is not necessarily tan­ tamount to a voluntary waiver.36 Additionally, Miranda holds that in a motion to suppress statements that were obtained in violation of its prescribed procedures, the prosecution bears a heavy burden in proving that the individual knowingly, intelligently, and voluntarily waived his or her rights.37 Moreover, waiver can never be presumed simply from the silence of the accused after warnings are given or merely from the fact that a confession is ultimately obtained.38 Later Supreme Court decisions limited the scope of Miranda's express pre-interrogation waiver requirement, holding that Mi­ randa did not set up a per se rule requiring an express waiver in all situations.39 In North Carolina v. Butler, the Court recognized an im­ plied waiver based on "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver."40 In Butler, the Court determined that the facts were suffi­ cient to establish an implied waiver because the accused individual verbally indicated to the police his willingness to make statements immediately after he received Miranda warnings even though he refused to waive his rights in writing.41 In addition to setting up a regime which requires the police to obtain an express waiver prior to interrogation, the Miranda proce­ dures established a standard that allows the individual to assert his or her right to remain silent through an implied invocation.42 The Court specifically stated that if the individual "indicates in any

36 Miranda, 384 U.S. at 471. See al,so Berghuis v. Thompkins, 130 S. Ct. 2250, 2269 (2010) (Sotomayor,]., dissenting) (discussing the presumption against the finding of waiver as interpreted by the Court in North Carolina v. Butler, 441 U.S. 369 (1979)). Indeed, even the Berghuis Court acknowledged language in Miranda which indicates that waivers are difficult to establish absent an explicit written waiver or an express oral statement. Id. at 2260-61 (citing Miranda, 384 U.S. at 475). 37 Miranda, 384 U.S. at 475. In Moran v. Burbine, the Court further established that the individual must know "the nature of the right being abandoned and the conse­ quences of the decision to abandon it" and that the waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception." 475 U.S. 412, 421 (1986). 38 See Miranda, 384 U.S. at 475; Butler, 441 U.S. at 373. 39 See Romano, supra note 14, at 538 (noting that "the language in Miranda should not be read to require a per se rule that only an express waiver is sufficient to illustrate a waiver"). 40 Butler, 441 U.S. at 373. 41 Id. See also Brief for Respondent, supra note l, at *18-24. 42 Miranda, 384 U.S. at 444-45. See also Dery III, supra note 22, at 407, 433 (point­ ing out the extent to which Berghuis flips Miranda on its head by establishing a very low standard for waiver, but requiring an incongruously high standard for invocation, and arguing that the imbalance between the care demanded of lay individuals and the informality permitted to professional police casts doubt on the Berghuis Court's commitment to Miranda). 88 CUNY LAW REVIEW [Vol. 15:81 manner that he does not wish to be interrogated, the police may not question him."43 Going further, the Court held that "[t]he mere fact that [the individual] may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. "44

II. THE CONSTITUTIONAL STATUS OF MIRANDA The Supreme Court in Berghuis v. Thompkins reached two con­ clusions that effectively reduced Miranda's protections to the mere requirement that police warn the individual of his or her right to remain silent and right to counsel prior to commencing the inter­ rogation. In many ways the Court's indifference toward the Mi­ randa rules comes as no surprise. Since the Supreme Court decided Miranda, it has repeatedly distinguished Miranda violations from actual coercion which violates the Fifth Amendment, and in­ terpreted Miranda as having announced "only prophylactic rules" that go above and beyond the right against compelled self-incrimi­ nation.45 It is apparent that the majority in Berghuis supported Chief Justice Robert's position by repeatedly limiting the reach of Miranda, stating, " [ t] he main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel,"46 and explaining that "the primary pro­ tection afforded suspects subjected to custodial interrogation is the Miranda warnings themselves."47

43 Miranda, 384 U.S. at 445. 44 Id. Subsequent Supreme Court decisions have limited the scope of the implied invocation standard. For example, in Michigan v. Mosley, the Court ruled that even where an individual expresses his or her wish to remain silent, a statement made thereafter could be admissible as a subsequent waiver of the right so long as the police "scrupulously honor" the individual's right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 104 (1975). 45 See Dickerson v. United States, 530 U.S. 428, 450 (2000) (Scalia, J., dissenting). Indeed, during the oral argument in Berghuis, Chief Justice Roberts repeatedly ex­ pressed his view that Miranda's procedural requirements are not grounded in the Constitution by drawing a distinction between the procedural requirements of Mi­ randa and the Fifth Amendment privilege against compelled self-incrimination. Tran­ script of Oral Argument at 40-42, 49-51, Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (No. 08-1470) [hereinafter Transcript of Oral Argument] (Chief Justice Rob­ erts: "I thought there was no dispute on this record that there was no voluntariness. We are talking about a violation of the technical, important but formal, Miranda re­ quirements. This is not a case where the person says: My statements were involuntary."). 46 Berghuis, 130 S. Ct. at 2261. 47 Id. at 2263 (citing Davis v. United States, 512 U.S. 452, 460 (1994)), 2011] RIGHT TO REMAIN SILENT AFI'ER BERGHUIS 89

In several cases decided after Miranda, the Supreme Court has expressly stated that a violation of Miranda's procedural rules does not necessarily amount to a violation of the Constitution.48 For ex­ ample, in Michigan v. Tucker, the Court limited application of the exclusionary rule to evidence recovered as a direct result of a Mi­ randa violation. 49 In that case, the Court described Miranda's proce­ dural safeguards as "not themselves rights protected by the Constitution" but instead "measures to insure that the right against compulsory self-incrimination was protected."50 The Court also went on to state that the police officer's conduct in this case "did not abridge [the defendant's] constitutional privilege against com­ pulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege."51 In Oregon v. Hass the Supreme Court permitted the admissibil­ ity of statements obtained in violation of Miranda for purposes of impeachment at trial.52 The Court again distinguished Miranda's procedural requirements from the "voluntariness" standards of the Fifth and Fourteenth Amendments by stating that, despite the Mi­ randa violation, there was no evidence or suggestion that the defen­ dant's statements to the officers were coerced or involuntary.53 In New York v. Quarles the Court held that a "public safety ex­ ception" justified the failure of the police to give the defendant Miranda warnings and permitted the admission of his unwarned statements and the evidentiary fruits of that statement in the prose­ cution's case in chief.54 As in Michigan v. Tucker, the Court distin­ guished between actual coercion and a violation of the Miranda procedures, explaining that "[i]n this case we have before us no claim that [the defendant's] statements were actually compelled by police conduct which overcame his will to resist."55 The Court also

48 For a general discussion, see Harvey Gee, In Order to Be Silent, You Mu.st First Speak: The Supreme Court Extends Davis 's Clarity Requirement to the Right to Remain Silent in Berghuis v. Thompkins, 44J. MARsHALL L. REv. 423, 427-34 (2011). 49 Michigan v. Tucker, 417 U.S. 433, 439 (1974). 50 Id. at 444. 51 Id. at 446. 52 Oregon v. Hass, 420 U.S. 714, 721-22 (1975) (citing Harris v. New York, 401 U.S. 222, 222-23 (1971)). 53 Id. at 722. See also Dery III, supra note 22, at 411 (describing the Court's reason­ ing as further distinguishing Miranda from compulsory self-incrimination). 54 New York v. Quarles, 467 U.S. 649, 657 (1984) (reasoning that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self incrimination"). 55 Id. at 654. 90 CUNY LAW REVIEW [Vol. 15:81 characterized the Miranda procedural rules merely as "practical re­ inforcement" of the Fifth Amendment.56 Also consider Oregon v. Elstad, where the Supreme Court again declined to apply the exclusionary rule to evidence obtained as a result of a Miranda violation. In holding that the defendant's writ­ ten confession was admissible, the Court rejected the argument that the failure of police to give him his Miranda warnings amounted to a constitutional violation.57 The Court was explicit in concluding that a Miranda violation was distinct from a violation of the Fifth Amendment: The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amend­ ment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amend­ ment must nevertheless be excluded from evidence under Mi­ randa. Thus, in the individual case, Miranda's preventative medicine provides a remedy even to the defendant who has suf­ fered no identifiable constitutional harm.58 The culmination of these erosions came in Dickerson v. United States. The Court considered in Dickerson whether Congress had the authority to supersede its decision in Miranda by passing legislation which expressly designated voluntariness as the basis for admissibil­ ity of statements obtained during custodial investigation.59 The Court ultimately ruled that Miranda is constitutionally based,60 but its underlying rationale raises questions about the Court's commit­ ment to treating the Miranda procedural protections as themselves arising out of the Fifth Amendment. For example, the Court admit­ ted that numerous exceptions to Miranda have been recognized61

56 Id. (citing Michigan v. Tucker, 417 U.S. 433, 444 (1974) ). See also Dery III, supra note 22, at 411 (citing additional language from Quarles where the Court distin­ guishes Miranda from the Fifth Amendment, and observing that, "[r]ather than com­ ing directly out of the Fifth Amendment, the Quarles Court characterized Miranda's 'procedural safeguards' as merely 'as~ociated with the privilege against compulsory self-incrimination.'"). 57 Hass, 470 U.S. 298, 305-06 (1985). 58 Id. at 306-07. 59 See Dickerson v. United States, 530 U.S. 428, 436-37 (2000). 60 See id. (discussing the rationale underlying Miranda's constitutional basis). 61 Id. at 441 (but countering this point, the Court stated that Miranda has also been broadly applied, which demonstrated "not that Miranda is not a constitutional rule-but that no constitutional rule is immutable"). 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 91 and expressed some uncertainty as to whether it would have ruled the same way if the issue were one of first impression.62 Further­ more, in its actual discussion of Miranda as a constitutionally based ruling, the Court seemed to limit its focus to Miranda's warning requirement. In explaining why the Congressional legislation at is­ sue failed to be equally as effective as Miranda in preventing co­ erced confessions, the Court's focus was specifically limited to the fact that the law failed to contain a warning requirement;63 the Court made no reference to Miranda's other important procedural rules, such as the requirement that police obtain a waiver prior to commencing an interrogation. Dickerson appeared to sum up all of Miranda's "procedure" as the requirement that police merely warn the individual in custody of his or her rights.64 After Dickerson, the limited extent to which the Court consid­ ers Miranda as based in the Fifth Amendment is apparent in a num­ ber of decisions that have continued to cut the substance out of Miranda's procedural safeguards. Berghuis v. Thompkins was decided shortly after two cases in which the Court dealt significant blows to Miranda's requirement that individuals must be "clearly informed" of their rights prior to the interrogation,65 and that the police must immediately cease interrogation when an individual invokes his or her right to an attorney.66 In Florida v. Powell the Court concluded that the defendant was "clearly informed" of his right to counsel even though police of­ ficers never expressly told him that an attorney could be present with him throughout the interrogation.67 Although the police of­ ficers failed to explicitly advise Mr. Powell of a fundamental aspect of his rights, the Supreme Court nonetheless concluded that, taken together, the officers' statements "reasonably conveyed" Mr. Pow­ ell's right to have an attorney present.68 Powell is significant because it has the effect of reducing Miranda's requirement that individuals be "clearly informed" of their rights to a standard that merely re­ quires the warnings to be "reasonably convey[ed]."69 Based on the

62 Id. at 443. 63 Id. at 442. 64 Id. 65 Miranda v. Arizona, 384 U.S. 436, 471-72 (1966). 66 Id. at 474. 67 Florida v. Powell, 130 S. Ct. 1195, 1205 (2010). The issue before the Court in Powell was whether the Self-Incrimination Clause of the Fifth Amendment required suppression of the accused individual's written confession since the police had ob­ tained an earlier statement from him without advising him of his Miranda rights. 68 Id. at 1204-05. 69 See Romano, supra note 14, at 531-32. 92 CUNY LAW REVIEW [Vol. 15:81 reasoning of Powell the police are capable of "reasonably convey­ ing" an individual's rights to him even when they fail to convey a fundamental aspect of the Miranda warnings. The following day, in Maryland v. Shatzer, the Supreme Court cut another important piece out of Miranda by creating an excep­ tion to the rule established in Edwards v. Arizona, which requires police officers to immediately cease the interrogation of an individ­ ual who asserts the right to counsel.70 In Shatzer, the Court reached three conclusions that significantly diminished the Miranda proce­ dural safeguard of the individual's right to refuse questioning with­ out the presence of an attorney. The Court held that Mr. Shatzer experienced a "break in custody" when he returned to the general prison population after a 2003 interrogation that took place at the Maryland Correctional Institute.71 The Court went even further by asserting that a so-called "break in custody" lasting 14 days is suffi­ cient to eliminate the dangers of coercion prevented by the Mi­ randa procedural safeguards and the Edwards rule. 72 These rulings culminated in the Court's most significant disposition: that such a break in custody is sufficient to lift Edwards's perpetual ban on fur­ ther police questioning of an individual who has invoked the right to counsel,73 thereby permitting the police to go back and re-inter­ rogate an individual who has invoked his or her right to an attorney.

70 Maryland v. Shatzer, 130 S. Ct. 1213 (2010). The facts of this case established that in August 2003 Michael Blaine Shatzer was initially interrogated at the Maryland Correctional Institute where he was serving a prison sentence in connection with sus­ picions that he had sexually abused his son. Because Mr. Shatzer declined to speak without an attorney present during this initial questioning, the officer stopped the interrogation and Mr. Shatzer returned to the general prison population. Two and a half years later the police discovered additional evidence implicating Mr. Shatzer in the sexual abuse of his son, and a different officer returned to interrogate Mr. Shatzer. This second interrogation took place in a prison maintenance room and lasted for approximately half an hour. Five days later the police returned to adminis­ ter a polygraph test to Mr. Shatzer, at which time they advised him of his Miranda rights and obtained a written waiver. Upon being informed that he failed the poly­ graph test, Mr. Shatzer began to cry and made incriminating statements. For a thor­ ough discussion of Florida v. Powell and Maryland v. Shatzer, see Kit Kinports, The Supreme Court's Love-Hate Relationship with Miranda, 101]. CRIM. L. & CRIMINOLOGY 375 (2011). 71 130 S. Ct. at 1224-25 (discussing the difference in experience for an individual in "Miranda custody" as opposed to an individual sentenced to a prison term as justifi­ cation' for the "break in custody" rationale). 72 Id. at 1223. 73 Id. at 1222-23. See also Romano, supra note 14, at 532-33. 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 93

III. BERGHUIS v. THOMPKINS In Berghuis v. Thompkins the Supreme Court reached two con­ clusions, effectively overturning the most important holdings of Miranda. First, the Supreme Court held that the prosecution may prove waiver merely by showing that the accused eventually made incriminating statements after having received and understood his or her Miranda rights.74 Second, the Court held that the accused individual must unambiguously and clearly invoke his or her right to remain silent. 75 Berghuis held that "where the prosecution shows that a Mi­ randa warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent."76 The Court further ruled that "as a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford."77 In this case, Mr. Thompkins made statements concerning his involvement in the suspected murder after two hours and forty-five minutes of a three­ hour interrogation.78 His statements consisted of giving two ''Yes" answers in response to detectives' questions about whether he be­ lieved in God and prayed to God for forgiveness for shooting the victim.79 The Supreme Court held that by giving these ''Yes" an­ swers in response to the officer's questions at the end of the three­ hour interrogation, Mr. Thompkins engaged in a "course of con­ duct indicating waiver" of his right to remain silent.80 The Court also concluded that police are not required to ob­ tain an express waiver of Miranda rights before proceeding with the interrogation.81 It explained that in order for an accused individ­ ual's statements to be admissible at trial, the police simply have to give the accused understandable Miranda warnings. 82 Once this condition is established, the court can proceed to determine whether the individual made an express or implied waiver of his or

74 Berghuis v. Thompkins, 130 S. Ct. 2250, 2263-64 (2010). 75 Id. at 2259-60. 76 Id. at 2262. 77 Id. 78 See Brief for Respondent, supra note 1, at *l-2. 79 Id. 80 Berghuis, 130 S. Ct. at 2263 (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). s1 Id. 82 Id. at 2264. 94 CUNY LAW REVIEW [Vol. 15:81

her rights on the basis of the whole course of questioning.s3 The Berghuis Court's waiver standard diminishes the procedu­ ral safeguards established by Miranda in several ways. Berghuis held that the State can prove a valid waiver merely by establishing that the police gave the individual understandable rights, and that the individual made uncoerced statements.s4 This ruling undermines a long history of Supreme Court cases that have consistently held that a "heavy burden" rests on the prosecution to prove a valid waiver.s5 Additionally, the Berghuis waiver standard contradicts clear Su­ preme Court precedent which prohibits the inference of waiver from the fact that the police ultimately obtain a confession.s6 Mi­ randa specifically held that waiver may not be presumed "simply from the fact that a confession was in fact eventually obtained."s7 By holding that inculpatory statements are now sufficient to estab­ lish an implied waiver, the Berghuis Court ignored the underlying premise, acknowledged by the Supreme Court in Miranda and But­ ler, that custodial interrogation consists of pressures designed to jeopardize the privilege against self-incrimination.ss Further, the Berghuis Court's reliance on Butler for the deter­ mination that an implied waiver can be inferred from the "whole course of questioning"s9 is problematic. In Butler, the Court in­ ferred a valid waiver based on William Butler's express willingness to speak to the police immediately after he received Miranda warn­ ings and refused to waive his rights in writing.90 The Butler Court did not reach its conclusion regarding implied waivers on the basis of the "whole course of questioning." Rather, its conclusion relied precisely on the fact that Mr. Butler willingly began speaking to the interrogating officers right after he was advised of his Miranda rights at the beginning of the interrogation.91 By contrast, Mr. Thompkins not only refused to waive his rights in writing, but he

S3 Id. S4 Id. at 2261. S5 See Michael L. Vander Giessen, Berghuis v. Thompkins: The Continued Erosion of Miranda's Protections, 46 GoNZ. L. REv. 189, 201-02 (2011); Charles Weisselberg & Stephanos Bibas, Debate: The Right to Remain Sil£nt, 159 U. PA. L. REv. PENNUMBRA 69, 72-73 (2010). S6 See Berghuis, 130 S. Ct. at 2271 (Sotomayor, J., dissenting). See also Vander Gies- sen, supra note 85, at 201-02. S7 Miranda v. Arizona, 384 U.S. 436, 475 (1966). SS Weisselberg & Bibas, supra note 85, at 73-74. S9 Berghuis, 130 S. Ct. at 2264. 90 North Carolina v. Butler, 441 U.S. 369, 373-74 (1979). 91 Id. 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 95 also sat in silence and was uncommunicative for nearly three hours before he made any statements.92 In ruling that Mr. Thompkins voluntarily waived his right to remain silent so far into the interro­ gation, the Berghuis Court undermined Miranda's admonition that the "fact of a lengthy interrogation or incommunicado incarcera­ tion before a statement is made is strong evidence that the accused did not validly waive his rights."93 Finally, as Professor Weisselberg points out, the Berghuis waiver standard is also regrettable because it has the additional effect of shifting the burden of proof onto the individual to prove that he or she did not waive the right to remain silent.94 As discussed above, the Supreme Court ruled that a valid waiver may be presumed when an individual who has a full understanding of his or her rights "acts in a manner inconsistent with their exercise."95 The Court was also explicit in pointing out that Mr. Thompkins made no contention that he did not understand his rights, suggesting that the burden for rebutting the presumption of waiver was on him.96 Thus, the Berghuis waiver standard not only lifts the prosecu­ tion's "heavy burden" for proving waiver, but it also places a new weight on the individual to rebut the presumption of waiver. Berghuis also held that in order for the individual to validly invoke the right to remain silent, he or she must do so unambigu­ ously and clearly.97 That is, the act of remaining silent is, by itself, insufficient to trigger the police officer's duty to stop questioning. To properly invoke the right to remain silent, the accused individ­ ual must clearly and unambiguously state that he or she wishes to remain silent, or does not want to speak to the police.98 If the ac­ cused makes an ambiguous invocation, the police are not required to end the interrogation or even ask clarifying questions to affirma­ tively ascertain the intent of the accused with respect to exercising his or her right to remain silent.99 The Berghuis Court's new invocation standard is problematic for at least three reasons. First, this standard departs from Supreme

92 Berghuis, 130 S. Ct. at 2256-57. 93 Miranda v. Arizona, 384 U.S. 436, 476 (1966). See also Transcript of Oral Argu­ ment, supra note 45, at *34-36 (attorney for Mr. Thompkins arguing that given the length of his interrogation and facts showing his lack of willingness to talk to the police, there is evidence of coercion precluding the finding of a valid waiver). 94 Weisselberg & Bibas, supra note 85, at 72-73. 95 Berghuis, 130 S. Ct. at 2262. 96 Weisselberg & Bibas, supra note 85, at 72-73. 97 Berghuis, 130 S. Ct. at 2259-60. 98 Id. at 2260. 99 Id. at 2259-60. 96 CUNY LAW REVIEW [Vol. 15:81

Court precedent, which established specific procedures for invok­ ing the right to remain silent, and applied a particular rule to guard against violations of that right. Second, the Berghuis Court's invocation standard created a legal distinction, which rests on the dubious assumption that all people, regardless of the environment they are in, use direct and unqualified language to convey their intent. As a result, the new invocation standard for the Fifth Amendment right to remain silent is disproportionately disadvanta­ geous to women, racial minorities, and the socio-economically pow­ erless, demographics who tend to communicate in indirect or qualified speech patterns.100 Third, the Berghuis Court neglected to set out a careful standard for invoking the right to remain silent that could be applied to situations in which the individual affirma­ tively makes some statement that might constitute an invocation of the right to silence, as opposed to merely remaining silent throughout most of an interrogation.

IV. THE BERGHUIS CLEAR STATEMENT RULE IN PRACTICE FOR THE vALID EXERCISE OF THE RIGHT TO REMAIN SILENT What is missing from the Court's discussion of the invocation standard are guidelines for situations in which the individual af­ firmatively makes some statement that may be construed as an in­ vocation of the right to remain silent. Criticism of the Berghuis Court's invocation standard points out that since the majority failed to specify what is required for an invocation to meet the un­ ambiguous threshold, lower courts run the risk of rejecting "as am­ biguous an array of statements whose meaning might otherwise be thought plain."101 Additional criticism points out that the new invo­ cation standard is similar to the voluntariness standard, which Mi­ randa replaced, in that it is inconsistent and unworkable due to its inherent ambiguity.102 This criticism suggests that the Supreme Court's new invocation standard will not achieve its purported in­ tent, which was to create a bright line rule that would help the police recognize when a person has invoked his or her constitu­ tional right to remain silent.103 The central purpose of this paper is to understand and de­ scribe how lower federal and state courts are applying the Berghuis

100 See generally Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerless­ ness in Police Interrogation, 103 YALE LJ. 259 (1993). 101 Vander Giessen, supra note 85, at 206 (quoting Berghuis, 130 S. Ct. at 2277 (Sotomayor, J., dissenting)). 102 See Budden, supra note 29, at 503. 103 Berghuis, 130 S. Ct. at 2260. 2011] RIGHT TO REMAIN SILENT AFI'ER BERGHUIS 97

clear statement requirement. An additional purpose is to compare the varying interpretations of the clear statement requirement to determine which approach sets out the most effective guidelines for distinguishing between clear and ambiguous invocations of the right to remain silent. I attempted to answer these questions by analyzing lower fed­ eral and state court decisions applying the Berghuis invocation stan­ dard. I surveyed a total of 66 cases decided in the year since Berghuis v. Thompkins was decided. Of these, 6 were circuit courts of appeals cases, 37 were federal district court cases, and 23 were state level cases. I chose to focus my survey on cases in which Berghuis v. Thompkins is discussed in some detail.104 Of the 66 cases I surveyed, 13 included an extensive or substantial discussion of the Berghuis invocation standard. My survey reveals that there are at least three different inter­ pretations of the Berghuis clear statement requirement. First, in what I c.all the "standard of clarity" approach, the court's analysis focuses solely on the words or statements made by the individual in exercising his or her right to remain silent. Under this test, the words a person uses to invoke the right to remain silent must meet a certain threshold of clarity in order for the court to find an af­ firmative and unambiguous assertion of that right.105 By comparison, courts employing what I term the "standard of reasonableness" test analyze the clarity of the asserted invocation from the perspective of the "reasonable police officer" or the "rea­ sonable person." Unfortunately, in the cases discussed under this category of analysis, courts generally do not identify the factors that help determine whether a particular invocation is affirmative and unambiguous from the perspective of the reasonable police officer or person.106 Without a discussion of these factors, the "standard of reasonableness" test used by some courts operates very similarly to

104 In Westlaw, these cases are given three or four green stars to indicate their depth of treatment of Berghuis v. Thompkins. 105 These cases include United States v. McCarthy, No. 09-2259, 2010 WL 2413024 (10th Cir. June 16, 2010); United States v. Anderson, No. 10-cr-84-JD, 2011 WL 1304218 (Dist. N.H. Apr. 6, 2011); Welch v. Harrington, No. CV 09-01041-:JVS (JEM), 2010 WL 4794237 (C.D. Cal. Oct. 18, 2010); People v. Hernandez, No. B223310, 2011 WL 539448 (Cal. Ct. App. 2d Dist. Feb. 17, 2011); People v. Addi, No. C063132, 2010 WL 4160693 (Cal. Ct. App. 3d Dist. Oct. 25, 2010); State v. Saeger, 329 Wis.2d 711, 2010 WL 3155264 (Wis. Ct. App. Aug. 11, 2010). 106 These cases include Hurd v. Terhune, 619 F.3d 1080 (9th Cir. 2010); Ingram v. Varga, No. ED CV 10-00732-AHM (VBK), 2011WL835788 (C.D. Cal.Jan. 21, 2011); United States v. Arballo-Villa, No. CR 09-1539-TUC-DCB(HCE), 2010 WL 3947330 (Dist. Ariz. Sept. 14, 2010); State v. Demetrius M. Diaz-Bridges, No. 08-08-1014, 2010 WL 3932392 (NJ. Super. Ct. App. Div. Sept. 21, 2010), rev'd 208 NJ. 544 (2012). 98 CUNY LAW REVIEW [Vol. 15:81

the "standard of clarity" approach, where the only basis for the analysis is the particular words or statements used by the individual to assert his or her right to remain silent. The third category of analysis here determines the invocation question on the basis of the "totality of the circumstances." Courts that employ the totality of the circumstances test to determine whether an individual has affirmatively and unambiguously in­ voked his or her right to remain silent focus their attention on the particular interaction between the individual and interrogating of­ ficers, as well as the context of this interaction. Under this test, the particular words or statements used by the individual to assert the right to remain silent are only one part of the analysis. This test also accounts for the interaction between the individual and the police by focusing on the actions and statements of the police of­ ficers in response to the individual's asserted invocation.107 Each of these varying interpretations of the Berghuis invocation rule is discussed below.

1. "Standard of Clarity" Test Courts that employ what is here called the "standard of clarity" test to determine whether a person has affirmatively and unam­ biguously invoked his or her right to remain silent focus their anal­ ysis exclusively on the words or statements used by the person to assert that right. The "standard of clarity" test does not consider the effect of the custodial interrogation environment on a person's choice of words when expressing his or her intent. Nor does it ac­ count for the effect of the particular interaction between the police and individual on the person's ability to affirmatively and unequiv­ ocally assert his or her right to remain silent. In some cases, courts applying the "standard of clarity" test only recognize an assertion as affirmative and unambiguous if the individual uses precise lan­ guage, and literally states that he or she wishes to remain silent, or does not want to speak with the police.108 The overall affect of the "standard of clarity" is that it places a heavy burden on the individ­ ual, who must use specific language in order to exercise the right

107 These cases include People v. Manzo, 121 Cal.Rptr.3d 207 (Cal. Ct. App. 4th Dist., Jan. 31, 2011); State v. Jaureggui-Arballo, No. 36379, 2010 Ida. App. Unpub. LEXIS 370 (Idaho Ct. App. Oct. 7, 2010). 108 In justifying this level of precision, courts cite to the language from Berghuis v. Thompkins where the Supreme Court states that had Mr. Thompkins said he wanted to remain silent or that he did not want to speak with the police, he would have unam­ biguously invoked his right to remain silent. Berghuis v. Thompkins, 130 S. Ct. 2250, 2254, 2263 (2010). 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 99

to remain silent. The "standard of clarity" test is the least objec­ tively fair invocation inquiry; it ignores the reality of varying speech patterns and the ways in which the power imbalance inherent in custodial interrogation affects the ability of individuals to asser­ tively invoke the right to remain silent. For example, consider Welch v. Harrington, where the District Court for the Central District of California decided that the state­ ment, "I want to go back to my cell," did not constitute an unam­ biguous invocation of the right to remain silent.109 In January 2006, Lorenzo Welch was interrogated by Long Beach Police detectives about his involvement in the murder of a Rolling Twenties gang member.110 During the first hour of the interrogation, detectives questioned Mr. Welch about his residence, gang affiliation, and criminal record.111 Following this series of questions, the detectives switched the subject of their interrogation to Mr. Welch's sus­ pected involvement in the murder.112 Evidence at a hearing on Mr. Welch's motion to suppress established that at this point Mr. Welch told the officers that he thought he should have an attorney.113 Shortly after making this statement Mr. Welch said, "I want to go back to my cell."114 Detective Richard Conant testified that follow­ ing Mr. Welch's request he waited in silence for 15 seconds to see if Mr. Welch was going to repeat his request for an attorney or say that he wanted to leave. 115 When Mr. Welch did neither, the detec­ tives resumed questioning him.11 6About 15 to 20 minutes later, Mr. Welch made statements implicating himself in the murder.117 On appeal, the defense argued that Mr. Welch's statement, "I want to go back to my cell," could not be interpreted as anything but a desire to terminate the officers' questioning.118 The district court disagreed, and explained that similar to Mr. Thompkins, Mr. Welch had failed to state that he wanted to remain silent or that he did not want to talk to the police.119 The court explained that, at best, Mr. Welch "might" have been invoking his right to remain silent, and stated that, "in order to invoke the right to remain si-

109 Welch, 2010 WL 4794237, at *8-10. 110 Id. at *6. 111 Id. 112 Id. 113 Id. 114 Id. 115 Welch, 2010 WL 4794237, at *6. 116 Id. 117 Id. 1 is Id. at *8. 119 Id. 100 CUNY LAW REVIEW [Vol. 15:81 lent, a suspect need say only, 'I have nothing to say.' "120 Compare People v. Addi, decided in the Court of Appeal for the Third District of California. Amera Khalid Addi was questioned by two police officers regarding her involvement in the shooting of a rival gang member on December 4, 2007.121 On that day Ms. Addi was subjected to two rounds of interrogation, each approximately 45 minutes apart.122 During the first interrogation, one of the detectives assumed an accusatory tone and told Ms. Addi that the police had a tape recording of her telling a fellow gang member that she knew the location of the gun used in the shooting.123 Ms. Addi demanded to hear the tape, and after the detective played it for her she made statements such as: "Can you just take me back to my cell;" "I just wanna go. If I have to go to a cell, take me to a cell. Cause I have nothing to say;" and "I have nothing to say."124 The detectives continued to question Ms. Addi after she made these statements, and subjected her to a second round of interroga­ tion.125 During the second interrogation Ms. Addi revealed the lo­ cation of the gun used in the shooting.126 The Court of Appeal reversed the trial court's conclusion that Ms. Addi invoked her right to remain silent.127 In its analysis, the court stated that although Ms. Addi was not required to "utter the exact word," "she never stated specifically that she 'wanted to re­ main silent or that she did not want to talk with the police.' "128 The court concluded by stating that Ms. Addi's language and tone failed to objectively communicate to the detectives her intent to remain silent.129 A similar case is United States v. Newland, where the court held that statements such as, "I wanna go back upstairs .... So you came out here for no reason. I'd like to go back upstairs," and, "Alright, like I said ... I'll go back upstairs ... You made a worthless trip," did not constitute unequivocal invocations of the right to remain

120 Id. 121 People v. Addi, No. C063132, 2010 WL 4160693, at *2 (Cal. Ct. App. 3d Dist. Oct. 25, 2010). 122 Id. at *3. 123 Id. at *2. 124 Id. 125 Id. at *2-3. 126 Id. at *3. 127 Addi, 2010 WL 4160693, at *4. 128 Id. at *6 (quoting Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010)). 129 Id. 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 101

silent. 130 Donald Newland was interrogated in an interview room in the basement of the LaPorte County Jail on June 20, 2008 on charges related to theft and gun possession.131 On that date, Mr. Newland was interrogated three separate times. 132 Only statements made by Mr. Newland during the third interrogation were at issue on appeal.133 The facts established that approximately six minutes into the third interrogation, Mr. Newland responded to police questioning by stating, "I wanna go back upstairs.... So you came out here for no reason. I'd like to go back upstairs."134 Although the detectives persisted in questioning him, Mr. Newland made a second statement about ten minutes later, again stating "I'll go b ac k ups t airs.· . . . I' m d one. "135 In denying the claim that Mr. Newland unambiguously in­ voked his right to remain silent, the district court explained that requesting to go back upstairs is not the same as asking to cease police interrogation.136 The court stated that Mr. Newland's visible agitation when stating that he wanted to go back upstairs and that the officers wasted a trip to see him, could have meant that he wanted the interrogation to end just as much as it could have been an angry response to the officers' questioning.137 The court con­ cluded that Mr. Newland's statements did not constitute clear and unambiguous assertions of his intent to remain silent, or his wish to stop speaking with the police.138

2. The Standard of "Reasonableness" In contrast to the "standard of clarity," the "standard of rea­ sonableness," which is employed by a number of courts that follow the Berghuis invocation rule, emphasizes Miranda's holding that the right to remain silent may be invoked in any manner. On its face, the "standard of reasonableness" does not appear to focus solely on the words or statements used by the person invoking his or her right to remain silent. In this category of analysis, courts often ref­ erence the "context" in which the asserted invocation is made when discussing whether a person affirmatively and unambiguously

130 United States v. Newland, No. 3:09-CR-71JD, 2010 WL 2629504, at *4 (N.D.lnd. June 25, 2010). 131 Id. at *l. 132 Id. 133 Id. 134 Id. at *2. 135 Id. 136 Newland, 2010 WL 2629504, at *5. 137 Id. 138 Id. 102 CUNY LAW REVIEW [Vol. 15:81

invoked his or her right to remain silent. However, a close look at the reasoning of courts applying this standard reveals that it is de­ void of any meaningful discussion of facts that would explain how the court is distinguishing between clear and equivocal invocations of the right to remain silent. The overall result is that, similar to the "standard of clarity," it appears to depend entirely on the words or statements made by the person invoking his or her right to si­ lence. The only difference between the "standard of clarity" and the "standard of reasonableness" ends up being the level of preci­ sion required of the person who wishes to invoke his or her right to remain silent. Thus, the "standard of reasonableness" is not as bur­ densome on the individual as the "standard of clarity." In State v. Demetrius M. Diaz-Bridges, the Superior Court of New Jersey held that the individual's repeated requests to speak with his mother constituted an unambiguous invocation of his right to re­ main silent.139 On May 2, 2008, Demetrius M. Diaz-Bridges was in­ terrogated for nearly ten hours at the Raleigh Police Department in North Carolina about his involvement in the murder of Eliza­ beth O'Brien.140 Three hours and forty-two minutes into the inter­ rogation, Mr. Diaz-Bridges requested to speak to his mother for the first time, asking: "Can I just call my mom first?" 141 Approximately nine minutes later, Mr. Diaz-Bridges confessed to the murder. The interrogating officers did not permit Mr. Diaz-Bridges to telephone his mother until six hours and forty-eight minutes into the interro­ gation.142 Mr. Diaz-Bridges requested to speak to his mother at least 15 times between his first request and when he was finally permitted to place the call.143 On appeal, the Appellate Division held that Mr. Diaz-Bridges's initial request to speak to his mother did not constitute a clear and unambiguous invocation of the right to remain silent.144 However, the court held that Mr. Diaz-Bridges's subsequent statements indi­ cating that he wished to speak to his mother did satisfy the clear

139 State v. Demetrius M. Diaz-Bridges, No. 08-08-1014, 2010 WL 3932392, at *14 (NJ. Super. Ct. App. Div. Sept. 21, 2010), rev'd State v. Diaz-Bridges, 208 NJ. 544 (2012). 140 Id. at *1-5. 141 Id. at *2. 142 Id. at *3. 143 Id. 144 Id. at *11. The New Jersey Supreme Court reversed. Applying a totality of the circumstances analysis, the Court held that "we do not discern in any of the defen­ dant's requests to speak with his mother an invocation of the right to silence." Diaz­ Bridges, 208 NJ at 570. 2011] RIGHT TO REMAIN SILENT AFI'ER BERGHUIS 103

statement requirement for the right to remain silent.145 The court justified its decision by reference to Miranda's holding that, even after an interrogation has commenced, an individual may invoke his or her right to remain silent in any manner during the interro­ gation.146 The court emphasized that the right to silence does not need to be expressed with the utmost legal precision.147 It is not clear from the court's analysis why Mr. Diaz-Bridges's initial requests to call his mother failed to constitute an affirmative and unambiguous invocation of the right to remain silent, but his later statements did. The only explanation provided by the court on this point is that Mr. Diaz-Bridges made several statements sub­ sequent to his first request to call his mother, which the detectives could have reasonably construed as an indication that he wanted to remain silent.148 The court points to the fact that approximately six hours and forty five minutes into the interrogation, when the detectives asked Mr. Diaz-Bridges if he wanted to talk to his mother, he stated, "I want to hear her say it's gonna be okay.... I don't have nobody. I have nobody. And this thing is gonna do nothing but make it worse. I just want to hear her say it's gonna be all right, that's it."149 Shortly after he made this statement, Mr. Diaz-Bridges told the detectives, "I can't do this shit, man. I just want to go home."150 According to the court, "upon making that emphatic statement" it was satisfied that Mr. Diaz-Bridges invoked his right to remain silent.151 The overall affect of the court's failure to identify and discuss the specific factors that distinguish Mr. Diaz-Bridges's later state­ ments from his earlier requests to speak to his mother is that its analysis rests solely on the particular words Mr. Diaz-Bridges used to invoke his right to remain silent. Indeed, the court's conclusion in this case that Mr. Diaz-Bridge's later statements constituted an affirmative and unambiguous invocation of the right to remain si­ lent turned on the fact that these later statements were "emphatic" as compared to his initial statements.152 Thus, the court's refer­ ences to "context" and "reasonableness" have little meaning. The court provides no discussion of the factors surrounding the interro-

145 Diaz-Bridges, 2010 WL 3932392, at *14. 146 Id. at *10. 147 Id. 148 Id. at *14. 149 Id. 150 Id. 151 Diaz-Bridges, 2010 WL 3932392, at *14. 152 See id. at *14. 104 CUNY LAW REVIEW [Vol. 15:81

gation context and the interaction between the police and Mr. Diaz-Bridges that would explain the difference between his initial requests to call his mother and his later statements. Thus, the only difference between the standard applied by the Diaz-Bridges court and the "standard of clarity" is that in Diaz-Bridges the court was willing to accept an explanatory invocation of the right to remain silent. Unlike the "standard of clarity," the "standard of reasonable­ ness" as it was applied in Diaz-Bridges does not burden individuals with the requirement that they use precise words or language to invoke the right to remain silent.153 Furthermore, the court's final determination that Mr. Diaz­ Bridges's later statements constituted affirmative and clear invoca­ tions of the right to remain silent rest entirely on a subjective analy­ sis. The court's only substantive explanation for accepting Mr. Diaz-Bridges's later statements as unambiguous invocations is that they were "emphatic" as compared to his initial requests to speak to his mother.154 The court otherwise neglects to identify and discuss the specific factors that distinguish Mr. Diaz-Bridges's affirmative and clear invocation from his initial statements. Indeed, there is no indication in the court's reasoning 'YhY only some of at least 15 requests made by Mr. Diaz-Bridges to speak to his mother over the course of the ten-hour interrogation counted as "emphatic." In other words, in reaching its conclusion the court may have per­ ceived his repeated requests as being more urgent the longer the interrogation proceeded. Notwithstanding this possibility, the problem in the court's analysis remains that it never identifies these or any other facts to support its final determination. Also consider Ingram v. Varga, whe:re the district court held that the statement, ''You know I can't go there man. I don't want to incriminate myself," constituted an unambiguous and clear invoca­ tion of the right to remain silent.155 In this case, the facts estab­ lished that Tyrone Ingram was arrested after a routine traffic stop revealed that Mr. Ingram's girlfriend was in the backseat of his car and had suffered serious physical injuries to her face and body.156 At the time of Mr. Ingram's arrest, Deputy Trevor Montgomery read him his Miranda rights and asked Mr. Ingram if he wished to waive his rights and speak with the deputies.157 Upon Mr. Ingram's

153 See id. at *10. 154 See id. at *14. 155 Ingram v. Varga, No. ED CV 10-00732-AHM (VBK), 2011 WL 835788, at *4 (C.D. Cal. Jan. 21, 2011). 156 Id. at *3-6. l57 Id. at *4. 2011] RIGHT TO REMAIN SIIENT AFTER BERGHUIS 105

agreement to speak, Deputy Montgomery asked what happened to the victim's teeth.158 In response, Mr. Ingram stated, ''You know I can't go there, man. I don't want to incriminate myself."159 The federal district court stated that the California Court of Appeals erred when it concluded that Mr. Ingram's statement con­ stituted an equivocal and unclear invocation of his right to remain silent. 160 In its analysis, the court reasoned that under Miranda, an individual may indicate that he or she wishes to remain silent "in any manner" and that in invoking a constitutional right, "a suspect need not speak with the discrimination of an Oxford don."161 The court concluded that any reasonable person would understand the statement, "I don't want to go there, man" as meaning that the accused did not want to answer the officer's questions, and that the statement, "I don't want to incriminate myself' was a clear refer­ ence to the right not to incriminate oneself under the Fifth Amendment.162 In a footnote, the court suggests that Officer Mont­ gomery's act of discontinuing his questions regarding the victim's teeth immediately after Mr. Ingram made the statements at issue tended to indicate that he subjectively understood Mr. Ingram to mean that he wished to invoke his right to remain silent.163 Similar to the court in Diaz-Bridges, the Ingram v. Varga court appears to interpret the invocation rule broadly, accepting an ex­ planatory refusal to answer further police questioning as an affirm­ ative and unequivocal invocation of the right to remain silent.164 However, the court's reasoning is similarly lacking in references to contextual factors of the interrogation or facts related to the inter­ action between the individual and the police, which would explain the basis for the court's conclusion that Mr. Ingram affirmatively and unambiguously invoked his right to remain silent. The effect of the court's failure to ground its determination in such facts is that its analysis appears to rely primarily on the language of Mr. Ingram's refusals to further police questioning. The court's refer­ ence to the conduct of the interrogating officer, which suggested that he understood Mr. Ingram's refusals to be clear invocations of

158 Id. 159 Id. 160 Id. at *19. Although the district court found that defendant's Miranda rights were violated, his conviction was sustained under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d). Varga, 2011 WL 835788, at *20. 161 Id. at *19 (quoting Davis v. United States, 512 U.S. 452, 459 (1994)). 162 Id. at *19 n.7. 163 Id. at *19. 164 See id. 106 CUNY LAW REVIEW [Vol. 15:81

the right to silence is important, but it is only discussed parentheti­ cally, and clearly does not form the central focus of the court's conclusion. 165 In contrast, in State v. Saeger, the Wisconsin Court of Appeals used a similar analysis but reached the opposite result. Phillip Sae­ ger was interrogated by two detectives in the South Beloit police department about his role in several burglaries that occurred in surrounding counties.166 At some point during the interview the detectives learned that Mr. Saeger was fearful of receiving federal gun charges.167 After learning that a gun stolen during one of the burglaries was found at Mr. Saeger's girlfriend's house, the detec­ tives told Mr. Saeger that he could be charged under federal law and sentenced to twenty-five years in prison.168 At the hearing on his motion to suppress the statements, Mr. Saeger testified that upon receiving this news he became angry and scared, and stated, ''You ... ain't listening to what I'm telling you. You don't want to hear what I'm saying. You want me to admit to something I didn't ... do ... and I got nothing more to say to you. I'm done. This is over."169 Immediately after he made these statements, the detec­ tives engaged Mr. Saeger in negotiations and eventually told him they would not bring federal charges against him or his girlfriend.170 In response to Mr. Saeger's challenge, the Court of Appeals cited to an earlier ruling in which it held that although an individ­ ual could invoke the right to remain silent without using any words, he or she must make it sufficiently clear that the intention is to cut off questioning so that a reasonable police officer in the cir­ cumstances would understand the statement to be an invocation of the right to remain silent.171 The court then held that it was rea­ sonable for the police officers to conclude that Mr. Saeger's state­ ment, when taken in context, was merely a "fencing mechanism" to get a deal that would free him of exposure to federal charges. 172 The court acknowledged that while a reasonable person could also interpret Mr. Saeger's statement to mean that he actually wanted

165 See id. at *19 n.7 166 State v. Saeger, 329 Wis.2d 711, 2010 WL 3155264, at *l (Wis. Ct. App. Aug. 11, 2010). 167 Id. 168 Id. 169 Id. 170 Id. 171 Id. at *2. 172 Saeger, 2010 WL 3155264, at *3. 2011] RIGHT TO REMAIN SILENT AFI'ER BERGHUIS 107 to invoke his right to remain silent, it interpreted the existence of a competing inference against Mr. Saeger. Indeed, the court con­ cluded that because an alternative inference could be drawn from the statements, it was equivocal as a matter of law. 173 The court's reasoning in Saeger demonstrates that one of the biggest problems with the "standard of reasonableness" is that it tends to operate subjectively. In its analysis, the court neglects to identify or discuss any specific factors that distinguish an affirma­ tive and clear invocation of the right to remain silent, and it admits that a reasonable person could interpret Mr. Saeger's statements to be an invocation of his right to remain silent. Without citing to any specific factors in the interrogation itself, nor in the interaction between Mr. Saeger and the interrogators, the court ultimately concludes that Mr. Saeger's statements constituted a "fencing mechanism," and then goes on to interpret the possibility of this fact against him. 174

3. "Totality of the Circumstances" In the third category of analysis described here, courts employ a "totality of the circumstances" test, which focuses on the context of the custodial interrogation, and specifically, factors that describe the interaction between the individual and interrogating officer. To be sure, the "totality of circumstances" test focuses on the plain meaning of the words used by the individual to invoke his or her right to remain silent; however, the analysis does not end there. Rather, under this "totality of the circumstances" test courts in­ quire into factors such as the individual's conduct, the content of the interrogation, the demeanor and tone of the interrogating of­ ficer, the officer's response to the individual's ambiguous invoca­ tion, the point at which the individual invoked the right to remain silent, and the questions that elicited the invocation. The overall effect of the "totality of the circumstances" test is that it lifts the heavy burden of the Berghuis clear statement requirement off the individual. Additionally, the "totality of the circumstances" test pro­ vides a more objective and consistent approach to distinguishing between affirmative and unambiguous invocations of the right to remain silent. For example, in Hurd v. Terhune, the Ninth Circuit Court of Appeals held that a person's refusal to submit to a polygraph test and reenact the shooting of his wife constituted an unambiguous

173 Id. 174 See id. 108 CUNY LAW REVIEW [Vol. 15:81 invocation of the right to remain silent.175 Dale R. Hurd was taken into police custody after fatally shooting his wife. 176 Mr. Hurd ini­ tially agreed to cooperate with the police and speak without an at­ torney present.177 However, after Mr. Hurd told the police officers his version of the events leading up to the shooting, the interrogat­ ing detective asked Mr. Hurd to submit to a polygraph examina­ tion.178 The court's opinion states that Mr. Hurd refused the detective's request to conduct the reenactment.179 It also explains that the detective then asked Mr. Hurd to demonstrate how he shot his wife. 180 Mr. Hurd refused this demand as well, using state­ ments such as, "No," "I can't," and "I don't want to act it out be­ cause that-it's not that clear."181 Nevertheless, the detectives continued to pressure Mr. Hurd to submit to a polygraph test and reenact the shooting of his wife.182 The court notes that in re­ sponse to Mr. Hurd's refusals, the detectives told Mr. Hurd that he would go to jail for being uncooperative; that the District Attorney would not appreciate Mr. Hurd's refusals; and that a judge and jury would find his lack of cooperation unreasonable.183 In his appeal, Mr. Hurd argued that his repeated refusals to submit to a polygraph test or reenact the shooting of his wife were consistent with an unequivocal assertion of his right to remain si­ lent.184 The Court of Appeals rejected the trial court's explanation that Mr. Hurd did not invoke his Fifth Amendment privilege on the ground that he offered responses and explanations instead of flat refusals.185 After citing to the Berghuis clear statement rule, the court stated, "a suspect still need not utter a 'talismanic phrase' to invoke the right to silence."186 Focusing on Mr. Hurd's conduct­ in addition to his words-the court held that his responses were objectively unambiguous in context, because he repeatedly refused to perform the demonstration of his wife's shooting.187 Signifi­ cantly, in reaching its conclusion, the court also relied on com-

175 Hurd v. Terhune, 619 F.3d 1080, 1088 (9th Cir. 2010). 176 Id. at 1082-83. 177 Id. 178 Id. at 1083-84. 179 Id. at 1084. 180 Id. 181 Terhune, 619 F.3d at 1089. 182 Id. at 1084. 183 Id. 184 Id. 185 Id. 186 Id. at 1089 (quoting Arnold v. Runnels, 421 F.3d 859, 866 (9th Cir. 2005)). 187 TerhuTfe, 619 F.3d at 1088. 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 109 ments by the interrogating officers. 188 The court does not provide the officers' specific statements in its opinion; however, it is signifi­ cant that the court focused on the officers' comments, and found them important to the overall analysis, precisely because they demonstrated that the officers subjectively understood Mr. Hurd's responses to be unambiguous invocations.189 Similarly, in People v. Manzo, the Court of Appeal for the Fourth District in California held that the circumstances of the case and the context of the words used by the officers and the indi­ vidual established that Martin Manzo unequivocally invoked his right to remain silent.190 Mr. Manzo was questioned by police re­ garding his involvement in the fatal shooting ofJose Valdez.191 The video recording and written transcript of Mr. Manzo's interroga­ tion established that shortly after the police officers began to advise him of his Miranda rights, one of the officers told Mr. Manzo that he wanted to give him an opportunity to tell his version of the events leading up to the shooting. 192 Mr. Manzo replied, "Oh, hell no. Don't even .... Don't even mention it."193 Before the interro­ gating officer could even finish reading him his Miranda rights, Mr. Manzo interrupted the officer and made statements such as, "I'm doing what my right" and "I'm doing my right."194 The reviewing court concluded that Mr. Manzo unambigu­ ously invoked his right to remain silent.195 In its reasoning the court cited to Berghuis v. Thompkins, and characterized the Su­ preme Court's holding as stating that under the new invocation standard, "suspects may invoke the right to remain silent only by an unambiguous statement to that effect."196 However, the court then emphasized Miranda, stating that the interrogation must cease when the individual indicates "in any manner" that he wishes to remain silent.197 The court underscored this point by stating that no particular form of words or conduct is necessary to invoke the

l88 See id. at 1089 (noting that "the interrogating officer's comment show that they subjectively understand Hurd's responses as unambiguous refusals"). 189 Id. 190 People v. Manzo, 121 Cal.Rptr.3d 207, 218 (Cal. Ct. App. 4th Dist., Jan. 31, 2011). 191 Id. at 214-18. 192 Id. at 217. 193 Id. 194 Id. at 218. 195 Id. at 216. l96 Manzo, 121 Cal.Rptr.3d at 219 (citing Berghuis, 130 S. Ct. at 2260) (emphasis added). 197 Id. llO CUNY LAW REVIEW [Vol. 15:81 right to remain silent; individuals are not required to use specific words such as "invoke" or "assert" to unambiguously invoke the right to remain silent; and that an individual's assertion of the right to remain silent cannot be conditioned on the use of certain technical words or other similar formalities.198 The court also included a substantial description of the factual basis for its determination. In addition to considering the sub­ stance of Mr. Manzo's statements, the court analyzed whether his conduct inferentially established that he wished to exercise his right to remain silent.199 For example, the court found it signifi­ cant that after the police officers finished advising Mr. Manzo of his Miranda rights and asked him whether he understood each right, Mr. Manzo remained silent for approximately eight seconds instead of responding immediately.20° Further, the court attached great weight to the fact that in response to the officers' second inquiry as to whether he understood his Miranda rights, instead of answering that particular question, Mr. Manzo stated he was "doing what my right."201 The court explained that Mr. Manzo confirmed his invocation when, after further questioning about whether he understood his rights, he emphatically stated, "I'm doing my right."202 The Court of Appeals of Idaho considered similar and addi­ tional factors in State v. jaureggui-Arballo, where it reversed the trial court's denial of the defense's motion to suppress, holding that a reasonable police officer in the circumstances would have under­ stood the statements at issue as unambiguous and unequivocal in­ vocations of the right to remain silent.203 The facts of Mr. Jaureggui-Arballo's interrogation established that on several occa­ sions throughout the questioning, he told the interrogating police officer that he did not wish to continue answering questions, mak­ ing statements such as: "Like I said, I am not talking anymore," and "I'm not going to talk about anything with you. I told you al­ ready!"204 Additionally, Mr. Jaureggui-Arballo made statements in­ dicating that his head hurt and that he would be willing to speak at

198 Id. 199 Id. 200 Id. 201 Id. 202 Manzo, 121 Cal.Rptr.3d at 219. 203 State v. Jaureggui-Arballo, No. 36379, 2010 Ida. App. Unpub. LEXIS 370, at *7-8 (Idaho Ct. App. Oct. 7, 2010). 204 Id. at *6-12. 2011] RIGHT TO REMAIN SILENT AFTER BERGHUIS 111

a later time.205 In its analysis of the invocation issue, the court looked beyond the language of Mr. Jaureggui-Arballo's statements, and consid­ ered ten specific contextual factors as the basis for determining whether Mr. Jaureggui-Arballo's statement constituted an unequiv­ ocal invocation of the right to remain silent. These factors in­ cluded: (1) the plain meaning of the individual's words; (2) the officer's response to these words; (3) the individual's speech pat­ terns; (4) the content of the interrogation; (5) the demeanor and tone of the interrogating officer; (6) the individual's conduct dur­ ing the questioning; (7) the point at which the individual invoked the right to remain silent; (8) the questions which drew the invoca­ tion; (9) the officer's response; and (10) who was present during the questioning.206 In this case, the court attached significance to the statements and conduct of the interrogating officer in response to Mr. Jaureg­ gui-Arballo's statements. For example, the court focused on the fact that after Mr. Jaureggui-Arballo stated, "I'm not going to talk about anything with you. I told you already!" the interrogating of­ ficer reacted by leaving the room for approximately four minutes, and upon his return, he began asking Mr. Jaureggui-Arballo a se­ ries of innocuous questions for the purpose of filling out paperwork related to the charges against him. 207 The court ex­ plained that the officer's act of leaving the interrogation room af­ ter Mr. Jaureggui-Arballo told the officer he was not going to talk about anything indicated that the officer understood Mr. Jaureg­ gui-Arballo's statement to be a request to stop the interrogation.208 The court further explained that the officer's subsequent action of asking Mr. Jaureggui-Arballo a series of innocuous questions also indicated that the officer was complying with Mr. Jaureggui­ Arballo's repeated requests to stop the interrogation.209 In addition to these factors, the Idaho Court of Appeals noted that Mr. Jaureggui-Arballo's responses came after a change in the officer's demeanor and the tone of the interrogation, where he be­ gan to make accusations against Mr. Jaureggui-Arballo as opposed to merely questioning him.210 The court also emphasized that the officer's own statements established that he subjectively under-

205 Id. 206 Id. 207 Id. at *15. 208 Id. at *13. 209 ]aureggui-Arballo, 2010 Ida. App. Unpub. LEXIS 370, at *14. 210 Id. at *15. 112 CUNY U W REVIEW [Vol. 15:81 stood Mr.Jaureggui-Arballo's statements to mean that did not want to talk to the officer.211

V. RECOMMENDATIONS AND CONCLUSION Courts deciding whether an accused individual affirmatively and unambiguously has invoked the right to remain silent should apply the totality of the circumstances test. 212 This analysis provides a fair and objective balance between the interests of the state in solving crime and the rights and dignity of ordinary citizens. By focusing on the factors underlying the interaction between the in­ dividual and interrogating police officers, the totality of the cir­ cumstances test takes pressure off the individual to use precise words in order to sufficiently invoke his or her right to remain si­ lent. Unlike the standard of clarity, the totality of circumstances test gives weight to many important factors, such as the conduct of the individual, the individual's speech patterns, the officer's re­ sponses to the individual's statements, and the content and tone of the interrogation. Furthermore, by taking some weight off the plain meaning of the individual's words, the totality of the circumstances rule recog­ nizes the existence of varying speech patterns, and is thus fairer to particular vulnerable groups in society, such as women, racial mi­ norities, limited English-proficient persons, and the socio-economi­ cally powerless. The Berghuis invocation rule is regrettable because of its likely disproportionate impact on individuals and groups who communicate using indirect or qualified speech patterns. Studies on this point show that characteristics such as gender, race, and socio-economic status correlate with the use of different manners of speaking adopted by specific communities under certain circum-

211 Id. at *13. 212 The "totality of the circumstances" approach has often been adopted by the Supreme Court where the factual context is crucial and the relative importance of any one particular factor in resolving the question before the Court depends on the spe­ cific facts of the case. As the Court noted in Illinois v. Gates, "the evidence ... collected must be seen and weighed not in terms of library analysis by scholars, but as under­ stood by those versed in the field of law enforcement." 462 U.S. 213, 231 (1983) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981). See, e.g., Stansbury v. Cali­ fornia, 511 U.S. 318 (1994) and Berkemer v. McCarty, 468 U.S. 420 (1983) (whether a person is in custody for purposes of the Fifth Amendment privilege against self-in­ crimination); Gates, 462 U.S. at 235 (what is the quantum of proof that constitutes probable cause); Schneckloth v. Bustamante, 412 U.S. 218 (1973) (when does police conduct invalidate a person's consent to search); Neil v. Biggers, 409 U.S. 188 (1972) (when is a police-arranged identification procedure reliable despite it being suggestive). 2011] RIGHT TO REMAIN SILENT AFI'ER BERGHUIS 113 stances.213 In her research, Professor Ainsworth has found that a characteristic manner of speaking, which can be described as an indirect and tentative style of speech, correlates with distinct seg­ ments of the population, such as women, racial minorities, and the socio-economically powerless. 214 By creating a legal distinction which focuses on particular words and only recognizes affirmative and direct expressions of the right to remain silent, the Supreme Court's new invocation rule operates to disadvantage women, ra­ cial minorities, and the poor, because of their manner of speaking. The new invocation standard also has a negative effect on criminal defendants because it neglects to consider the context of custodial interrogation and the power dynamic inherent in this in­ teraction. Professor Ainsworth found that the adoption of an indi­ rect and qualified style of speech, whether conscious or unconscious, is a response by the speaker to contextual powerless­ ness.215 Thus, taking into consideration the context of the interac­ tion between the speaker and listener, including the power relations inherent in the situation, is necessary to understanding how people speak and what they mean.216 Research suggests that equivocation is the result of circumstances or contexts in which speakers find themselves, where direct and assertive statements are perceived as leading to negative consequences for the speaker.217 AB Professor Ainsworth and others suggest, powerless people, who most often perceive themselves as being in defensive situations, are more likely to adopt equivocal speech patterns under such circum­ stances. 218 The Berghuis invocation rule focuses almost entirely on the words used by the person being interrogated, and it fails to take into account the nature of the interaction between the indi­ vidual and interrogating officers. Thus, it not only fails to accom­ modate varying patterns of language used among all arrestees, but it also fails to account for the power imbalance in the communica­ tive relationship between the individual and interrogator. The totality of the circumstances rule assuages the dispropor-

213 Ainsworth, supra note 100, at 273, 286-87. 214 Id. at 286-87. 215 Id. at 284-85. 216 Id. at 289-92. 217 Id. at 284. See also Charles D. Weisse Iberg, Mourning Miranda, 96 CALIF. L. REv. 1519, 1537-38 (2008) (explaining that suspects are in a position of powerlessness in the stationhouse; to avoid offending those in power and for other reasons, suspects may articulate their intent in tentative ways, which will not be recognized as invoca­ tions under a standard that only recognizes "unambiguous" assertions of the right to remain silent). 218 Ainsworth, supra note 100, at 284-85. 114 CUNY LAW REVIEW [Vol. 15:81 tionate impact of the Berghuis invocation rule in two ways. Because the totality of the circumstances test focuses on factors such as the officer's responses to the individual's words, the content of the in­ terrogation, demeanor and tone of the interrogating officer, and the officer's responses to the individual's invocation, it takes some pressure off the individual to use precise language in order to meet the "unambiguous" threshold. Second, in giving weight to the de­ meanor, tone, questions, responses and conduct of interrogating police officers, the totality of the circumstances test accounts for the fact that the power relations inherent to custodial interroga­ tion affect the way individuals speak and express their intent. Un­ like the other standards discussed here, the totality of the circumstances rule accounts for the fact that through their words and conduct police officers create the coercive conditions of custo­ dial interrogation, and recognizes that individuals will adopt an equivocal and qualified style of speech in response to the conduct and responses of the interrogating officers. Thus, the rule accounts for contextual powerlessness in the invocation calculus in a way that none of the other standards do. Additionally, courts should adopt the totality of the circum­ stances analysis because it provides a substantial degree of consis­ tency and flexibility in the decision-making process. On one hand, the totality of circumstances rule provides guidance and constraint because it requires courts to consider and discuss a number of spe­ cific factors related to the interaction between the individual and police officers during custodial interrogation. Thus, unlike the "standard of reasonableness," which operates subjectively due to the lack of any apparent constraints on its decision-making process, the "totality of the circumstances" test provides a substantial amount of guidance because its analysis is framed by specific facts related to the interaction between the individual and interrogators. Through the "totality of the circumstances" test courts can draw clear distinctions between affirmative and unambiguous invoca­ tions on a case-by-case basis. On the other hand, the rule also pro­ vides courts with the flexibility to weigh and balance the various factors underlying the communicative relationship between the in­ dividual and interrogator. In setting out the new standard for valid invocations of the right to remain silent, the Berghuis Court neglected to provide any guidelines as to the application of the standard to situations involv­ ing an individual who makes an affirmative statement that may or may not be construed as an invocation of the right to remain silent. 2011] RIGHT TO REMAIN SILENT AFTERBERGHUIS 115

This failure resulted in the lower courts issuing decisions based on inconsistent and varying interpretations of the Berghuis invocation standard. In my attempt to evaluate and classify the different interpreta­ tions of the Berghuis invocation standard among lower courts, I dis­ covered cases that fit roughly into three different categories of interpretation: ( 1) "standard of clarity," (2) "standard of reasona­ bleness," and (3) the "totality of circumstances" test. Based on my analysis of these three categories, I recommend that courts adopt the "totality of the circumstances" test to determining whether an individual has affirmatively and unambiguously invoked the right to remain silent because it is the least burdensome on criminal de­ fendants. It also provides courts with substantial guidance and pre­ dictability in the decision-making process. Thus, the "totality of the circumstances" test provides a fair and objective balance between the interests of the state in solving crime and the rights and dignity of ordinary citizens. SEX OFFENDER REGISTRATION AND NOTIFICATION LAWS AT HOME AND ABROAD: IS AN INTERNATIONAL MEGAN'S LAW GOOD POLICY?

Christopher Kingt

INTRODUCTION ...... • . . . 117 I. REVIEW OF DOMESTIC REGISTRATION AND NOTIFICATION LAws ...... 119 IL REVIEW OF FOREIGN REGISTRATION AND NOTIFICATION LAws ...... 128 Ill. THE INTERNATIONAL MEGAN'S LAw PROPOSAL ...... • 132 A. Legislative History...... 134 B. Purpose and Provisions ...... 135 C. Analysis...... 137 IV. SUGGESTIONS FOR IMPROVING THE PROPOSAL AND AN ALTERNATIVE OPTION...... 141 CONCLUSION ...... 146

INTRODUCTION Egregious crimes tend to spur swift-or as some would argue, rash-legislative responses.1 And so it has been in the sex offender arena: enter sex offender registration and notification laws. 2 Al­ though the subject of much criticism and debate, registration and notification laws exist and endure in all fifty states per federal man­ dates.3 As such, for better or worse, they appear here to stay. 4 But has the registration and notification fervor spread beyond

t Student,J.D.-Ph.D. Program in Law and Clinical Psychology, Drexel University. I would like to thank Dr. Donald Bersoff and the editors of the City University of New York Law Review for their helpful comments on earlier drafts of this Note. 1 See Wayne A. Logan, Megan's Law As a Case Study in Political Stasis, 61 SYRACUSE L. REv. 371, 371 (2011). See also Catherine L. Carpenter, Legislative Epidemics: A Caution­ ary Tale of Criminal Laws that Have Swept the Country, 58 BuFF. L. REv. 1, 2-3 (2010) (terming the phenomenon "legislative epidemics" and noting that they can be some­ times appropriate, sometimes concerning). 2 See Carpenter, supra note 1, at 18-34; Wayne A. Logan, Sex Offender Registration and Community Notification: Past, Present, and Future, 34 NEW ENG. J. ON CRIM. & C1v. CONFINEMENT 3, 5 (2008). 3 See infra Part II. 4 Logan, supra note l; Kelsie Tregilgas, Sex Offender Treatment in the United States: The Current Climate and an Unexpected Opportunity for Change, 84 TuL. L. REv. 729, 730-31 (2010).

117 118 CUNY LAW REVIEW [Vol. 15:117

U.S. borders, or should the United States attempt to see that it does? While much has been written to date regarding domestic re­ gistration and notification laws,5 scant attention has been paid to comparable laws at the foreign and international levels.6 However, given the developmental pattern of sex offender laws (what one 7 author referred to as a legislative epidemic ), recent instances of in­ ternational sex slavery and abuse8 suggest that the time is ripe for comparative reviews of foreign laws. Moreover, discussions of their international implication are sorely needed in light of the Interna­ tional Megan's Law9 proposal that has now been proposed in Con­ gress four times. To address these needs, this article has two aims: (1) to ex­ plore sex offender registration and notification laws adopted by countries throughout the world; and (2) to weigh in on the Inter­ national Megan's Law proposal. Part I provides an introduction to domestic registration and notification laws, with coverage being

5 E.g., WAYNE A. LoGAN, KNOWLEDGE As POWER: CRIMINAL REGISTRATION AND COM­ MUNITY NOTIFICATION LAws IN AMERICA (2009); PROTECTING SOCIETY FROM SEXUALLY DANGEROUS OFFENDERS: LAw,JusTICE, AND THERAPY (Bruce]. Winick et al. eds., 2003) [hereinafter PROTECTING SOCIETY]; SEx OFFENDER LAws: FAILED POLICIES, NEW DIREC­ TIONS (Richard G. Wright ed., 2009) [hereinafter FAILED PoucIEs]; HuMAN RIGHTS WATCH, No EAsY ANSWERS: SEx OFFENDERS LAws IN THE US (2007), availab'-e at http:// www.hrw.org/sites/default/files/reports/us0907webwcover.pdf. 6 When I began work on this Note, my search of the legal literature revealed only two articles on the topic: one contained dated material and the other limited its scope to two countries. Alison G. Carpenter, Belgium, Germany, England, Denmark and the United States: The Imp'-ementation of Registration and Castration Laws as Protection Against Habitual Sex Offenders, 16 DrcK.j. INT'L L. 435 (1998); Meaghan Kelly, Lock Them Up­ and Throw Away the Key: The Preventative Detention of Sex Offenders in the United States and Germany, 39 GEO]. INT'L L. 551 (2008). A report released by Human Rights Watch in 2007 also briefly discussed foreign registration and notification laws, but only curso­ rily. See HUMAN RIGHTS WATCH, supra note 5, at 10. However, the International Megan's Law proposal itself is indeed beginning to draw some scholarly attention to this area. See John A. Hall, Sex Offenders and Child Sex Tourism: The Case for Passport Revocation, 18 VA.]. Soc. PoL'Y & L. 153 (2011); Wayne A. Logan, Prospects for the International Migration of U.S. Sex Offender Registration and Community Notification Laws, 34 INT'LJ.L. & PSYCHIATRY 233 (2011); Kame Newburn, The Prospect of an International Sex Offender Registry: Why an International System Mode'-ed After United States Sex Offender Laws Is Not an Effective Solution to Stop Child Sexual Abuse, 28 Wis. INT'L LJ. 547 (2011). To further the discussion on points where this work and prior works overlap, I have attempted to delve deeper into the specifics of foreign laws and the International Megan's Law proposal, hopefully resulting in a more precise analysis. 7 Carpenter, supra note 1. 8 See Deena Guzder, A Move to Register Sex Offenders Globally, TIME.COM (Sept. 7, 2009), http:/ /www.time.com/time/world/article/0,8599,1920911,00.html. 9 International Megan's Law of 2011, H.R. 3253, 112th Cong. (2011); Interna­ tional Megan's Law of 2010, H.R. 5138, lllth Cong. (2010); International Megan's Law of2009, H.R. 1623, lllth Cong. (2009); International Megan's Law of2008, H.R. 5722, llOth Cong. (2008). 2011] INTERNATIONAL MEGAN'S LAW 119 primarily at the federal level. I then explore comparable laws in foreign jurisdictions in Part II. Sex-offender-specific laws (or pro­ posals for such laws) were found to exist in Australia, Austria, Ca­ nada, France, Ireland, Japan, Kenya, New Zealand, Singapore, the European Union, the Republic of Korea, and the United Kingdom. I specifically examine whether each jurisdiction has adopted regis­ tration, community notification, retroactive application, and/ or in­ ternational travel reporting. Next, in Part III, I assess the value and implications of an inter­ national registration and notification law. I begin by describing the purposes and general provisions of the International Megan's Law proposed in Congress in 2010 and 2011. An analysis of the bill is then undertaken, in which I highlight various strengths and weak­ nesses of the proposal. In light of the bill's shortcomings, I urge that more work must be done before an international registration and notification law can be considered good policy. Part IV then offers suggestions for improving the bill; among them being postponement, a posteriori development (i.e., develop­ ment guided by empirical evidence rather than rhetoric), and greatly increased definitional and operational clarity. A more cost­ effective alternative is also set forth: legislative authorization for the denial of passports to all high-risk sex offenders. I conclude that only after the concerns set forth in this article are addressed should an International Megan's Law be considered for adoption.

I. REVIEW OF DOMESTIC REGISTRATION AND NOTIFICATION LAws Sex offender registration and notification laws in the United States have been a commonplace topic of scholarship over the past two decades. 10 Because these laws have been extensively detailed and critiqued elsewhere, 11 an abbreviated review is provided here. What follows is a summary of the developmental history of domes­ tic, federal sex offender registration and notification laws. 12 Also worth noting is the societal and political atmosphere-panic, puni­ tiveness, victim-personalization, offender-dehumanization, a focus on aggregate risk, nonempiricism, information entitlement, and federal involvement-that has bred an International Megan's Law

10 See, e.g., Symposium, Critical Perspectives on Megan's Law: Protection vs. Privacy, 13 N.Y.L. ScH.]. HuM. RTs. 1 (1996); LOGAN, supra note 5; PROTECTING Socrn'IY, supra note 5. 11 For detailed discussions of the topic, see sources cited supra note 5. 12 With federal laws serving only as minimum standards, the following review is not wholly representative of the States where legislative efforts have resulted in a wider array of laws. For a review of varying State practices, see LOGAN, supra note 5, at 66-80. 120 CUNY LAW REVIEW [Vol. 15:117 proposal.13 Although the origins of registration and notification laws can be traced back to the 1930s (and earlier),14 contemporary registra­ tion and notification laws really began to take hold in the early 1990s. The zeitgeist was incited by several notorious and highly publicized crimes involving child victims, 15 in addition to reports of unprecedented recidivism rates evinced by sex offenders.16 The first of a series of high-profile crimes that would result in federal legislation was the 1989 abduction of Jacob Wetterling, an eleven-year-old child from Minnesota.17 In an eventual response to the abduction, Congress passed the first federal sex offender regis­ tration law in 1994: the Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act. 18 The law re­ quired states to adopt registration laws for sexually violent offend­ ers, sexually violent predators, and offenders who perpetrated certain crimes against children. 19 State compliance was compelled

13 See id. at 85-108 (discussing social and political catalysts of registration and noti­ fication laws). 14 Propelled by concerns of criminals concealing themselves amidst swelling popu­ lations (aided by advances in transportation), the notion of registering specific classes of criminals arose at both local and state levels in the 1930s. Logan, supra note 2, at 4. In 1937, Florida became the first state to implement a registration law, requiring cer­ tain felons living in the most populated counties of the state to register. Id. at 5. The first state-wide registration law was enacted ten years .later in California, and was spe­ cifically directed at sex offenders. Id. By 1989, (only) 12 states had adopted some type of registration law. Id. Sex offenders had also yet to become the nearly exclusive target of these laws. Id. 15 Id. at 5. 16 Some legislators cited sex offender recidivism rates (without evidence) as high as 90%. See HuMAN RIGHTS WATCH, supra note 5, at 25 n.38. However, the empirical literature has consistently revealed far lower recidivism rates. R. Karl Hanson et al., Sexual Offender Recidivism Risk: What We Know and What We Need to Know, 989 ANNALS N.Y. ACAD. Sci. 154, 163 (2003) ("bet.Ween 10% and 15% after 5 years and approxi­ mately 20% after 10 years"); R. Karl Hanson & Monique T. Bussiere, Predicting &lapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. CONSULTING & CLINICAL PsvcHoL. 348, 351 (1998) ("On average, the sex offense recidivism rate was 13.4% (n = 23,393; 18.9% for 1,839 rapists and 12.7% for 9,603 child molesters)"); R. Karl Han­ son & Kelly E. Morton-Bourgon, The Accuracy of Recidivism Risk Assessments for Sexual Offenders: A Meta-Analysis of 118 Prediction Studies, 21 PsvcHOL. AssESSMENT 1, 6 (2009) ("The observed sexual recidivism rate was 11.5% (n = 28,757, 100 samples) ...."). 17 Logan, supra note 2, at 5. Noteworthy, however, was the absence of evidence that Jacob had been sexually abused; his abductors and body were never found. LO­ GAN, supra note 5, at 56. Nonetheless, it was believed that had law enforcement been privy to the whereabouts of local sex offenders, such information would have been invaluable to the investigation. Id. 18 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Regis­ tration Act, Pub. L. No. 103-322, tit. XVII, subtit. A,§ 170101, 108 Stat. 1796 (1994) (codified as amended at 42 U.S.C. § 14071 (2006) ). 19 Although the Jacob Wetterling Act was originally intended to target only child 2011] INTERNATIONAL MEGAN'S LAW 121 by threat of a 10% reduction in federal grant funds20 for state crime prevention expenditures if adequate laws were not adopted within three years.21 By the 1997 cut-off date, all fifty states-aided by Attorney General issued guidelines22-had adopted registration laws satisfy­ ing the minimum standards set forth in the Jacob Wetterling Act.23 These standards addressed who was to be registered, 24 what infor­ mation was to be collected, 25 how long the information was to be maintained,26 and how frequently the information was to be veri­ fied.27 Being only minimum standards, however, states were free to molesters, the adopted Act also included adult-victim sex offenders within its scope. Wayne A. Logan, Criminal justice Federalism and National Sex Offender Policy, 6 OHIO ST. ]. CRIM. L. 51, 66-68 (2008). 20 Specifically, funds derived from The Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program [Byrne Formula Grant Program]. For more about the Byrne Formula Grant Program, see Edward Byrne Memorial State and Local Law Enforcement Assistance Discretionary Grants Program, CATALOG OF FED. DOMES­ TIC ASSISTANCE, https://www.cfda.gov/index?s=program&mode=form&tab=stepl&id= 3d276ab3f9c82b2916580048553lc0ac (last visited Jan. 1, 2012). 21 § 17010l(a)(l)(A)-(B), (f)(l)-(2). The Jacob Wetterling Act would have per­ mitted a two-year extension for states that failed to adopt a satisfactory registration law by the cut-off date, but evinced a good faith effort to have done so. Id.§ 170101 (f) (1). 22 Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 61 Fed. Reg. 15110 (Apr. 4, 1996). 23 LOGAN, supra note 5, at 59; Logan, supra note 2, at 6. 24 § 170101 (a) (1) (A)-(B) ("The Attorney General shall establish guidelines for State programs that require ... a person who is convicted of a criminal offense against a victim who is a minor or who is convicted of a sexually violent offense to register a current address with a designated State law enforcement agency for the time period specified in [another subsection] and ... a person who is a sexually violent predator to register a current address with a designated State law enforcement agency unless such requirement is terminated under [a procedure laid out in another subsection] ... ."). 25 § 170101 (a) (1) (A), (b) (1) (A) (iv) (For sexually violent offenders and child-vic­ tim offenders: "a current address" and "fingerprints and a photograph ... if these have not already been obtained in connection with the offense that triggers registra­ tion"; for sexually violent predators (in addition to the aforementioned information): "identifying factors, anticipated future residence, offense history, and documentation of any treatment received for the mental abnormality or personality disorder ...."). 26 § 170101 (b) (6) (A)-(B) (The requirement of a sexually violent offender or child-victim offender to register "shall continue ... until 10 years have elapsed since the person was released from prison, placed on parole, supervised release, or proba­ tion"; "[t]he requirement of a [sexually violent predator] ... to register ... shall terminate upon a determination ... that the person no longer suffers from a mental abnormality or personality disorder that would make the person likely to engage in a predatory sexually violent offense."). 27 § 170101 (b) (3) (A)-(B) (For sexually violent offenders and child-victim offend­ ers: "on each anniversary of the person's initial registration date"; for sexually violent predators: "every 90 days after the date of the initial release or commencement of parole."). 122 CUNY LAW REVIEW [Vol. 15:117

adopt more demanding registration schemes.28 While the Jacob Wetterling Act did not require community notification, it permit­ ted laws providing for such.29 Meanwhile, at the state level, community notification laws were beginning to take hold. The first jurisdiction to adopt a sex offender law that included provisions permitting community notifi­ cation was Washington State in 1990.30 It was New Jersey's 1994 Megan's Law, however, that would provide both the impetus and model for community notification laws across the country.31 The law was named after Megan Kanka, a seven-year-old girl who was raped and murdered by a previously convicted sex offender who, unbeknownst to the Kankas, was living across the street.32 New Jersey's Megan's Law was pivotal, for it no longer merely permitted community notification, as was the practice in other states.33 Rather, for registrants deemed most likely to recidivate, it required it.34 Mandatory community notification soon became required of all states. In 1996, a federal version of Megan's Law was passed by Congress, which succinctly amended the Jacob Wetterling Act.35 Being only an amendment, State compliance was still compelled by threat of a ten percent reduction in criminal justice grant fund­ ing.36 Also, because the federal Megan's Law was but two sentences in length, the Attorney General issued new guidelines clarifying what sorts of community notification schemes would and would not be deemed satisfactory.37

28 LOGAN, supra note 5, at 59. 29 Id. at 59-60. 30 Id. at 49-53. 31 See Logan, supra note 2, at 5-6; HuMAN RIGHTS WATCH, supra note 5, at 48-49. 32 LOGAN, supra note 5, at 54. 33 Id. at 55. 34 Id. 35 Megan's Law, Pub. L. No. 104-145, 110 Stat. 1345 (1996) (codified as amended at 42 U.S.C. § 14071 (2006)) ("(l) The information collected under a State registra­ tion program may be disclosed for any purpose permitted under the Jaws of the State. (2) The state or any agency authorized by the State shall release relevant information that is necessary to protect the public concerning a specific person required to regis­ ter under this section, except that the identity of a victim of an offense that requires registration under this section shall not be released." (emphasis added)). 36 See Logan, supra note 2, at 6. 37 Final Guidelines for Megan's Law and the Jacob Wetterling Crimes Against Chil­ dren and Sexually Violent Offender Registration Act, 62 Fed. Reg. 39,009 Quly 21, 1997). The guidelines first provided examples of schemes that would be deemed incompliant: (1) "releasing registration information only to law enforcement agen­ cies, to other governmental or non-governmental agencies or organiza- 2011] INTERNATIONAL MEGAN'S LAW 123

That same year, Congress also passed the Pam Lychner Sexual Offender Tracking and Identification Act of 1996.38 The law man­ dated the creation of a national sex offender registry at the Federal Bureau of Investigation to assist law enforcement agencies at the federal, state, and local levels in tracking registrants.39 Between 1997 and 2005, a string of federal laws were passed that variously and moderately revised the general scheme established by the Ja­ cob Wetterling Act, Megan's Law, and Pam Lychner Act.40 During this time period, the Supreme Court also upheld state registration and community notification laws against constitutional chal­ lenges.41 Significant changes, however, came about in 2006, when

tions, to prospective employers, or to the victims of registrants' offenses"; and (2) "having purely permissive or discretionary authority for officials to release registration information." Id. at 39,019. The following schemes were then offered as compliant examples: (1) "[performing] particularized risk assessments of registered offend­ ers, . . . [and designating] differing degrees of information release based on the degree of risk" (e.g., limiting notice to law enforcement for low risk offenders, to schools and comparable establishments for medium risk offenders, and to neighbors for high risk offenders); (2) "provid[ing] information disclosure for all offenders (or only of­ fenders) with certain characteristics or in certain offense categories" (based upon judgments about the degree of risk different offenders classes pose); and (3) "mak[ing] information accessible to members of the public on re­ quest" (e.g., by publishing registration lists, establishing hotlines num­ bers community members can call to obtain registration information, or responding to written requests). Id. The guidelines did not specify what information needed to be provided to the public, nor the precise means by which such information was to be communicated. LOGAN, supra note 5, at 61. 38 Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. No. 104-236, 110 Stat. 3093 (codified as amended at 42 U.S.C. §§ 14071-73 (2006)). 39 Id. 40 See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, § 115(a), 111 Stat. 2440, 2461-2470 (1997) (codified as amended in scattered sections of 42 U.S.C.); Protec­ tion of Children From Sexual Predators Act of 1998, Pub. L. No. 105-314, 112 Stat. 2974 (codified as amended at 42 U.S.C. § 14071 (2006) ); Campus Sex Crimes Preven­ tion Act, Pub. L. No. 106-386, § 1601, 114 Stat. 1464, 1537 (2000) (codified as amended at 42 U.S.C. § 14071 (2006) ); Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, §§ 604-606, 117 Stat. 650, 688 (codified as amended at 42 U.S.C. § 14071 (2006)); Dru Sjodin National Sex Offender Public Database Act of 2005, 145 S. 792, 109th Cong. (codified as amended at 42 U.S.C. § 14071 (2006)). For highlights coverage of these laws, see Federal Sex Offender Legislation, OFFICE OF SEx OFFENDER SENTENCING, MONITORING, APPREHENDING, REGISTERING, AND TRACKING, http://www.ojp.usdoj.gov/ smart/legislation.htm (last visited Jan. 1, 2012) and Logan, supra note 2, at 5-7. 41 Smith v. Doe, 538 U.S. 84 (2003) (holding that Alaska's retrospective registra­ tion and community notification scheme was nonpunitive and hence not in violation 124 CUNY IA W REVIEW [Vol. 15:117

Congress passed the Adam Walsh Child Protection and Safety Act of 2006.42 Named in honor of Adam Walsh,43 a six-year-old abductee who was murdered in 1981,44 the Adam Walsh Act constituted a com­ plete overhaul of the country's registration and community notifi­ cation scheme.45 Among the reforms were: • The expansion of the list of registrable sex offenses to in- clude virtually all sex offenses.46 • The widening of jurisdictional scope.47 • The collection of more information from registrants.48 • The registration of juvenile sex offenders in many circumstances. 49 • Increased public access to information on all registrants facil- of the Ex Post Facto Clause); Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003) (holding that Connecticut's conviction-based registration and notification scheme did not run afoul of the Due Process Clause because proper procedural safeguards ex­ isted prior to conviction and because current dangerousness was not a material con­ sideration in the state's scheme). 42 Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C. §§ 16901-62). 43 Adam's father, John Walsh, is the well-known host of the America's Most Wanted television program. About John Walsh, AMERICA'S MosT WANTED, http:/ /www.amw. com/about_amw/john_walsh.cfm (last visited Jan. 1, 2012). Since Adam's murder, the Walshs (John and his wife) have advocated extensively on behalf of child victims. See id.; LOGAN, supra note 5, at 62. 44 The case remained unsolved until 2008 when Ottis Toole, a serial killer who had died in prison in 1996, was definitively named as the perpetrator. About John Walsh, supra note 43. 45 Title I of the Adam Walsh Act is known as the Sex Offender Registration and Notification Act (SORNA). §§16901-16962. For simplicity's sake, I refer to the Adam Walsh Act throughout this Note, rather than SORNA specifically. 46 See 42 U.S.C. §§ 16911(1), (5) (2006). 47 42 U.S.C. §§ 16911 (10), 16927 (expanding jurisdictional coverage to include the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the United States Virgin Islands, and most federally recognized Indian tribes). 48 42 U.S.C. § 16914 (2006).Jurisdictions are directed to collc;ct the following in­ formation from registrants: name and aliases; Social Security number; address of each residence, place of employment, and attended school; license plate number and vehi­ cle description; and any other information required by the Attorney General. Id. § l 6914(a). Jurisdictional registries are then to include the following information: physical description; text of convicted offense; criminal history; current photograph; fingerprints and palm prints; DNA sample; photocopy of an identification card; and any other information required by the Attorney General. Id. § 16914(b). 49 See 42 U.S.C. § 16911 (8) (Juveniles who are "adjudicated delinquent [for a sex offense must register] ... but only if the offender ... [was] 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse ... or was an attempt or conspiracy to commit such an offense."). 2011] INTERNATIONAL MEGAN'S LAW 125

itated by both a state and national website.50 • The creation of a new federal crime: failure to register. 51 • The creation of the Office of Sex Offender Sentencing, Mon­ itoring, Apprehending, Registering; and Tracking (SMART) within the Department ofJustice to administer national stan­ dards, coordinate grant programs, and provide trainings and technical assistance.52 The Adam Walsh Act also elected a tier system in which regis­ trants are classified into one of three tiers (with tier III being the most severe) based solely upon their committed offense (i.e., the use of individualized risk assessments as is the practice in some

so 42 U.S.C. § 16920 (2006). The national website is the Dru Sjodin National Sex Offender Public Website, which is located at http://www.nsopw.gov/Core/Portal. aspx. For the citation to the law first establishing the website, see LOGAN, supra note 5, at 220 n.86. 51 18 u.s.c. § 2250 (2006). (a) In general. -Whoever- (1) is required to register under the Sex Offender Registration and Notification Act; (2) (A) is a sex offender as defined for the purposes of the Sex Of­ fender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any terri­ tory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than IO years, or both.

(c) Crime of violence. - (1) In general.-An individual described in subsection (a) who commits a crime of violence under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States shall be imprisoned for not less than 5 years and not more than 30 years. (2) Additional punishment-The punishment provided in para­ graph (1) shall be in addition and consecutive to the punishment pro­ vided for the violation described in subsection (a). Id. However, some have questioned the legality of this new crime. See Logan, supra note 2, at 7-10; Corey Rayburn Yung, One of These Laws Is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act R.aises New Constitutional Questions, 46 HARv.J. ON LEGIS. 369, 371-72 (2009). The Supreme Court recently avoided answer­ ing whether the federal failure to register crime runs awry of the Ex Post Facto Clause. Carr v. United States, 130 S. Ct. 2229 (2010) (holding that the crime does not apply to sex offenders whose interstate travel preceded the Adam Walsh Act's effective date, obviating the need to decide on the constitutionality of the offense generally). 52 42 u.s.c. § 16945 (2006). 126 CUNY IA W REVIEW [Vol. 15:117 states was to be abandoned).53 Each tier imposes varying registra­ tion requirements on registrants.54

53 42 U.S.C. § 16911. Specifically, the tier provisions provide: (2) TIER I SEX OFFENDER.-The term "tier I sex offender" means a sex offender other than a tier II or tier III sex offender. (3) TIER II SEX OFFENDER.-The term "tier II sex offender" means a sex offender other than a tier III sex offender whose offense is punish­ able by imprisonment for more than 1 year and- (A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to com­ mit such an offense against a minor: (i) sex trafficking ...; (ii) coercion and enticement ...; (iii) transportation with intent to engage in criminal sexual ac­ tivity ...; (iv) abusive sexual contact ...; (B) involves- (i) use of a minor in a sexual performance; (ii) solicitation of a minor to practice prostitution; or (iii) production or distribution of child pornography; or (C) occurs after the offender becomes a tier I sex offender. (4) TIER III SEX OFFENDER-The term "tier III sex offender" means a sex offender whose offense is punishable by imprisonment for more than 1 year and- (A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse or sexual abuse ...; or (ii) abusive sexual contact ... against a minor who has not attained the age of 13 years; (B) involves kidnapping of a minor (unless committed by a parent or guardian); or (C) occurs after the offender becomes a tier II sex offender. Id. 54 42 U.S.C. §§ 16915-16, 16918 (2006). Relevant provisions provide: A sex offender shall keep the registration current for the full registra­ tion period (excluding any time the sex offender is in custody or civilly committed) unless the offender is allowed a reduction under [a section listing reduction-worthy positive behaviors]. The full registration period is- (1) 15 years, if the offender is a tier I sex offender; (2) 25 years, if the offender is a tier II sex offender; and (3) the life of the offender, if the offender is a tier III sex offender.

A sex offender shall appear in person, allow the jurisdiction to take a current photograph, and verify the information in each registry in which that offender is required to be registered not less frequently than- (1) each year, if the offender is a tier I sex offender; (2) every 6 months, if the offender is a tier II sex offender; and (3) every 3 months, if the offender is a tier III sex offender.

A jurisdiction may exempt from disclosure- (1) any information about a tier I sex offender convicted of an of­ fense other than a specified offense against a minor , , , 2011] INTERNATIONAL MEGAN'S LAW 127

Unfortunately, the breadth of the Adam Walsh Act resulted in considerable vagueness throughout; additional guidelines were thus necessary to clarify many applicative aspects. Consequently, a subsequent federal regulation clarified that the registration and notification provisions of the Adam Walsh Act applied retroac­ tively. 55 It was also later clarified that registrants who planned to be absent from their place of residence for seven or more days would need to report information pertaining to the location and duration of their trip (effectively creating, however, a six-day travel window for which reporting was not required).56 Subsequent to the Adam

Id. 55 28 C.F.R. § 72.3 (2007) (deciding whether and how to apply the law retroac­ tively was granted to the Attorney General). Final guidelines issued by the Attorney General provided that 'jurisdictions are specifically required to register ... sex of­ fenders if they remain in the system as prisoners, supervisees, or registrants, or if they later reenter the system because of conviction for some other crime (whether or not the new crime is a sex offense)." The National Guidelines for Sex Offender Registra­ tion and Notification, 73 Fed. Reg. 38,030, 38,063 (July 2, 2008). However, some limi­ tations on retroactive reach were explicated: SORNA requires minimum registration periods of varying length for sex offenders in different categories, defined by criteria relating to the na­ ture of their sex offenses and their history of recidivism. This means that a sex offender with a pre-SORNA conviction may have been in the community for a greater amount of time than the registration period required by SORNA.

So the guidelines do not require a jurisdiction to register in conformity with SORNA sex offenders who have fully left the system and merged into the general population at the time the jurisdiction implements SORNA, if they do not reoffend. A further limitation permitted by the guidelines is that a jurisdiction may credit a sex offender with a pre­ SORNA conviction with the time elapsed from his release (or the time elapsed from sentencing, in case of a nonincarcerative sentence) in de­ termining what, if any, remaining registration time is required. To the extent that a jurisdiction exercises this option, the effect of retroactive application on sex offenders with pre-SORNA convictions may be fur­ ther reduced. Id. at 38036, 38046-47. 56 Still, though, the precision of travel information to be reported was not made particularly clear, nor was the timing of when such reporting need take place: The authority under SORNA § 114(a) (7) is accordingly exercised to provide that jurisdictions must require sex offenders to provide infor­ mation about any place in which the sex offender is staying when away from his residence for seven or more days, including identifying the place and the period of time the sex offender is staying there. The bene­ fits of having this information include facilitating the successful investi­ gation of crimes committed by sex offenders while away from their normal places of residence, employment, or school attendance, and de­ creasing the attractiveness to sex offenders of committing crimes in such circumstances. The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 128 CUNY LAW REVIEW [Vol. 15:117

Walsh Act, only one other sex offender law has been passed by Congress.57 It requires registrants to provide their internet identifiers to authorities, but does not allow for public access to the information. 58 Noteworthy is that as of September 2010, the U.S. Department ofJustice judged only six jurisdictions to be in compliance with the mandates of the Adam Walsh Act: South Dakota; Ohio; Delaware; Florida; the Confederated Tribes of the Umatilla Indian Reserva­ tion; and the Confederated Tribes and Bands of the Yakama Na­ tion. 59 This means that a supermajority ofjurisdictions continue to remain in noncompliance with the initial 2009 implementation deadline.60 Indeed, many states are persuaded against implementa­ tion by the fact that noncompliance will cost them less than compliance. 61

II. REVIEW OF FOREIGN REGISTRATION-NOTIFICATION LAws62 Turning now abroad, sex offender registries have thus far at 38,056. What was clear, however, was that a registrant's failure to abide by whatever was intended carried the potential for severe consequences: Section 141 (a) of SORNA enacted 18 U.S.C. 2250, a new federal failure­ to-register offense, which provides federal criminal penalties of up to 10 years of imprisonment for sex offenders required to register under SORNA who knowingly fail to register or update a registration as re­ quired where circumstances supporting federal jurisdiction exist, such as interstate or international travel by a sex offender, or conviction of a federal sex offense for which registration is required. Id. at 38,069. 57 Keeping the Internet Devoid of Sexual Predators Act of 2008, Pub. L. No. 110- 400, 122 Stat. 4224 (codified as amended at 42 U.S.C. § 16915). 58 Id. § 2(a), (c). 59 Press Release, Dep't ofJustice, Justice Department Announces Sixth Jurisdiction to Implement Sex Offender Registration and Notification Act (Sept. 10, 2010), avail­ abl,e at http://www.ojp.usdoj.gov/newsroom/pressreleases/2010/SMART10120.htm. 60 42 U.S.C. §§ 16924, 16924(b) (2006). The deadline provisions permitted the Attorney General to issue "up to two I-year extensions of the deadline." Id. 61 The Congressional Budget Office estimated the total cost of implementation of the Adam Walsh Act (before it was named so) to be $1.5 billion over five years. CONG. BUDGET OFFICE, CosT ESTIMATE: H.R. 4472, CHILDREN'S SAFE'IY AND V10LENT CRIME REDUCTION ACT OF 2005 1 (2006), http://www.cbo.gov/ftpdocs/70xx/doc7061/hr4472. pdf Much-although not all-of that figure is related to sex offender provisions (roughly $900 million). Id. at 2. See also Abigail Goldman, Sex Offender Act Might Not Be Worth Its Cost to Nevada, LAs VEGAS SuN (Feb. 15, 2009, 2:00 AM), http:/ /www.lasvegas sun.com/news/2009/feb/15/sex-offender-act-might-not-be-worth-its-cost/ (discuss­ ing some states' fiscal concerns and citing implementation costs for various states). 62 This review utilized primary sources whenever possible; when primary sources could not be located (specifically, for Austria, France, Japan, and the Republic of Korea) secondary sources were relied upon. Also, because secondary sources were relied upon for Austria, France, Japan, and the Republic of Korea, it could not be 2011] INTERNATIONAL MEGAN'S LAW 129 been adopted in Australia,63 Austria,64 Canada,65 France,66 Japan,67 Ireland,68 Kenya,69 the Republic of Korea,70 and the United King­ dom.71 The European Union, New Zealand, and Singapore have also been reported as having expressed interest in adopting regis­ tries, but have yet to do so.72 One scholar observed that in compari­ son to U.S. practices, many of these registries are far smaller, target fewer types of sex crimes, and are less burdensome on registrants.73 determined whether those countries' registration Jaws apply retroactively or if they require reporting of future international travel plans. 63 See Logan, supra note 6; Offender Registers: Australia, CAsLON ANALYTICS, http:/ /www.caslon.com.au/offendersnote2.htm (last visited Jan. 1, 2012); Australian National Child Offender Register (ANCOR), CRIMTRAc, http://www.crimtrac.gov.au/our_services/ChildProtectionServices.html (last visited Jan. 1, 2012). 64 See Georgia Harlem, Sex Laws: Unjust and Ineffective, THE EcoNOMIST, Aug. 6, 2009, available at http:/ /www.economist.com/node/14164614?story_id=l4164614. 65 Sex Offender Information Registration Act, S.C. 2004, c. 10 (Can.). 66 See Harlem, supra note 64; Nicole Atwill, European Court ofHuman Rights /France: Registration in French National Sex Offender Database Does Not Violate Rights, LmRARY OF CONG. Qan. 27, 2010), http://www.Ioc.gov/lawweb/ servlet/lloc_news?disp3_1205401 799_text.. 67 See Logan, supra note 6; Mathew Rusling, Would a US-style 'Megan s Law' Work in japan?, THE CHRISTIAN SCIENCE MONITOR, Apr. 13, 2005, http://www.csmonitor.com/2005/0413/pl5s01-woap.html. 68 Sex Offenders Act 2001 (Act No. 18/2001) (Ir.), http:/ /www.irishstatutebook. ie/pdf/2001/en.act.2001.0018.pdf. See also Monitoring Sex Offenders in Ireland, CITIZENS INFORMATION, http://www.citizensinformation.ie/en/justice/law_enforcement/ monitoring_sex_offenders_in_ireland.html (last updated Sept. 17, 2010). 69 The Sexual Offences Act, (2006) Cap. 3 § 39(13) (Kenya); The Sexual Offences Regulations, (2008) § 7 (Kenya). 70 See Logan, supra note 6; DONG KEuN LEE, U.N. As1A AND FAR EAsT INST. FOR THE PREVENTION OF CRIME AND TREATMENT OF OFFENDERS, Country Report - Korea, in, AN­ NUAL REroRT FOR 2006 AND REsouRCE MATERIAL SERIES No. 72 107, 113-14 (2007). 71 Sexual Offences Act, 2003, c. 42, pt. 2 (U.K.). 72 See Logan, supra note 6; Offender Registers: Overseas Regimes, New 'Zealand, CA..<>LON ANALYTICS, http://www.caslon.com.au/offendersnote3.htm#nz (last visited Jan. 1, 2012); Sex Offenders Registry Bill 2003 36-1 (N.Z.), availab/,e at http://www.parlia men t. nz/ en-NZ/PB/Legislation/Bills/ 7If/ 5 I OOD BH0 H_BILL5306_1-Sex­ Offenders-Registry-Bill. htm; MEPs 'Want EU Sex Offender List', BBC NEWS (Aug. 22, 2007, 23:37 GMT), http://news.bbc.co.uk/2/hi/uk_news/6958807.stm. Interesting is that the practice of registration (of offenders generally) originated in Europe rather than the United States. Logan, supra note 6. 73 Logan, supra note 6. A statistic worthy of reflection is that as of December 17, 2010, the United States has 728,435 registered sex offenders. See Map of Registered Sex Offenders in the United States, NAT'L CTR. FOR MISSING & EXPLOITED CHILDREN, http:/ I www.missingkids.com/ en_US/documents/ sex-offender-map.pdf. This number can be contrasted with the 19,000 registrants in Canada and 44,700 registrants in England and Wales as of April 2009. Logan, supra note 6. If one divides population estimates of the United States, Canada, England, and Wales by the size of their respective regis­ tries (United States: 311,313,400/728,435 = 427; Canada: 34,444,150/19,000 = 1,813; England and Wales: 54,809,000/44,000 = 1,246) the U.S. registry appears (propor­ tionally) four times larger than the registry in Canada and three times larger than the 130 CUNY LAW REVIEW [Vol. 15:117

Community notification, in turn, is much less common outside of the United States,74 having only been adopted in a manner ap­ proaching U.S. practices75 by six provinces in Canada76 and the Re­ public of Korea. 77 Although not as extreme as the nearly-perpetual retroactive applicability adopted by the United States with the Adam Walsh Act,78 sex offender laws in Canada79 and the United Kingdom80 are registry in England and Wales. See Canada's Population Clock, STATISTICS CANADA, http:/ /www.statcan.gc.ca/ig-gi/pop-ca-eng.htm (last visited Jan. 1,, 2012) (Canada esti­ mate); Population Estimates for UK, England and Wales, Scotland and Northern Ireland, Mid 2009, OFFICE FOR NAT'L STATISTICS Uune 24, 2010), http://www.ons.gov.uk/ons/rel/pop-estimate/population-estimates­ for-uk-england-and-wales-scotland-and-northern-ireland/2009/index.html (En­ gland and Wales estimate); U.S. POPClockProjection, U.S. CENSUS BUREAU, http://www. census.gov/population/www/popclockus.html (US estimate) (last visited Jan. 1, 2012). 74 Most of the countries in this review only allow law enforcement and certain other interested parties (e.g., child-care workers or those who can otherwise prove they are reasonably interested parties) to access registrant information. Also, some countries (e.g., the United Kingdom) have considered and expressly rejected public access provisions. See HOME OFFICE, PROTECTING THE Pusuc: STRENGTHENING PROTEC­ TION AGAINST SEX OFFENDERS AND REF°ORMING THE LAW ON SEXUAL OFFENCES, 2002, CM. 5668, at 12 (U.K.), http://www.archive2.officialdocuments.co.uk/document/ cm56/5668/5668.pdf. As an example, although England and Wales have recently im­ plemented a program (termed Sarah's Law) allowing for caregivers to be informed (via request) whether someone with access to their children is a registered sex of­ fender, program materials specifically provide that "[i]t is not an aim of this scheme to introduce a U.S.-style Megan's Law or automatic disclosure of child sexual offender details to the general public, which could encourage offenders to go missing and therefore put children at greater risk of harm." HOME OFFICE, THE CHILD SEX OF­ FENDER (CSO) DISCLOSURE SCHEME GUIDANCE DOCUMENT 2 (2010), http://www.home office.gov. uk/ publications/crime/disclosure-scheme-guidance/ disclosure-scheme­ guidance?view=binary. See also Child Sex Offender Disclosure Scheme, HOME OFFICE, http:/ /www.homeoffice.gov.uk/ crime/ child-sex-offender-disclosure/ (last visited Jan. 1, 2012); Review Says No to UK Megan's Law, BBC NEWS (Apr. 10, 2007, 18:00 GMT), http:/ /news.bbc.co.uk/2/hi/uk_news/6540749.stm; Sex Offender Disclosure Scheme to Go Nationwide, BBC NEWS (Mar. 3, 2010, 1:16 GMT), http://news.bbc.co.uk/2/hi/85 46126.stm. 75 Professor Logan observed that community notification practices in Canada and the Republic of Korea are more limited than U.S. practices. Logan, supra note 6. For example, the Korean community notification scheme only posts identifying informa­ tion of individuals convicted of certain child-victim sex offenses for six months on a government website and for one month on government bulletin boards. Id. 76 The six providences are Manitoba, British Columbia, Alberta, Newfoundland, Saskatchewan, and Ontario. Michael Petrunik et al., American and Canadian Approaches to Sex Offenders: A Study in the Politics of Dangerousness, 21 FED. SENT'G REP. 111, 118 (2008). 77 Lee, supra note 70, at 113-14; Logan, supra note 6. 78 See supra note 55. 79 Criminal Act, R.S.C. 1985, c. C-46, s. 490.02 (Can.); National Defense Act, R.S.C. 1985, c. N-5, s. 227.06 (Can.); Sex Offender Information Registration Act, S.C. 2004, c. 10, s. 3 (Can.). 2011] INTERNATIONAL MEGAN'S LAW 131 somewhat retrospective (ranging back to 2001 and 1997, respec­ tively, while also covering all sex offenders that were under some form of correctional supervision when the registries were adopted). Australia's and Ireland's schemes apply retroactively only to sex offenders who were still under some form of correc­ tional supervision at the time their respective registration laws went into effect.81 Kenya's law is too vague to determine whether it ap­ plies retroactively.82 Additionally, Australia,83 Canada,84 Ireland,85 Kenya,86 and the United Kingdom87 require reporting of international travel (al­ though the requirement is not often expressly phrased as such). However, none expressly provide for information sharing with other nations. An interesting development in the United Kingdom is that magistrate judges have the power to issue foreign travel orders to prevent sex offenders (even non-citizens) from traveling outside of the United Kingdom, "for the purpose of protecting children generally or any child from serious sexual harm from the defen­ dant outside the United Kingdom."88 In a similar review, it was noted that recent developments abroad might be increasing the likelihood of foreign migrations of U.S. practices.89 For instance, other countries are shifting towards increased punitiveness, approval of shaming practices, and recep­ tion of the victims' rights movement (i.e., greater concern for vic­ tims) .9° However, the same review identified some potential impediments to such migrations, including: (1) other countries are less individualistic and their citizens are less distrustful of the government; (2) other nations place more value in rehabilitation and information-privacy; (3) sex offender policy debates in other

so Sexual Offences Act, 2003, c. 42, pt. 2, § 81 (U.K.). SI Child Protection (Offenders Registration) Act 2000 (NSW) ss 3-3A (Austl.); Sex Of­ fenders Act 2001 § 7 (Act No. 18/2001) (Ir.), http://www.irishstatutebook.ie/pdf/ 2001/en.act.2001.0018.pdf. 82 See The Sexual Offences Act, (2006) § 48 (Kenya). 83 Child Protection (Offenders Registration) Act 2000 (NSW) s l lA (Austl.). See also Aus­ tralian National Child Offender Register (ANCOR), supra note 63. 84 Sex Offender Information Registration Act, S.C. 2004, c. 10, ss 4, 6 (Can.). 85 Sex Offenders Act 2001 § 10(3)-(5) (Act No. 18/2001) (Ir.), http://www.irish statutebook.ie/ pdf/2001/ en.act.2001.0018. pdf. 86 The Sexual Offences Regulations, (2008) § 7(4) (c)-(5) (Kenya). 87 Sexual Offences Act, 2003, c. 42, pt. 2, § 86 (U.K.). 88 Id. §§ 114-22. A chief officer of police applies to a magistrate judge for the order. Id.§ 114. The duration of the order is six months and the order is renewable. Id. § 117. Violating the order is a punishable criminal offense. Id. § 122. 89 See Logan, supra note 6. 90 Id. 132 CUNY LAW REVIEW [Vol. 15:117

countries are marked by less vehement rhetoric; and ( 4) foreign courts appear more willing to rule that broad registration laws un­ reasonably infringe on basic human rights.91 However, as discussed in the following section, the United States is looking to overcome these obstacles and export (or, more cynically, impose) its prac­ tices elsewhere.92

III. THE INTERNATIONAL MEGAN'S LAw PROPOSAL The circumstances and forces surrounding the International Megan's Law proposal are indeed familiar to those precipitating the adoption of previous sex offender laws.93 Evidence of the effi­ cacy of current sex offender policy remains ambiguous,94 but the reality of sexual recidivism is clear. A new development begins with the report of a horrendous crime involving a convicted sex of­ fender in a novel factual scenario.95 Without pause, officials unre­ mittingly urge expanding current policy.96 It is claimed that a particular new strategy would have gone far to prevent the trag­ edy.97 When legislation is introduced, it is named in memory of the victim and endorsed by the surviving family.98 Any opposition to the new bill is condemned as soft on crime, and the new initiative

91 Id. 92 See infra notes 108-09 and accompanying text; cf. id. at 17 (" [T] he fear and hatred of convicted sex offenders, in an increasingly borderless world, struggling with how to pay for brick-and-mortar penality, will exert continued pressure to add U.S.­ style registration and community notification, to at least some degree, to the already long list of the nation's exports."). 93 The parallels are depicted in notes 80-85. 94 See, e.g., Logan, supra note 6 (reviewing studies bearing on the issue of efficacy and related issues). 95 Indeed, one finding included at the beginning of the International Megan's Law of 2010 is that: Media reports indicate that known sex offenders who have committed crimes against children are traveling internationally, and that the crimi­ nal background of such individuals may not be known to local law en­ forcement prior to their arrival. For example, in April 2008, a United States registered sex offender received a prison sentence for engaging in illicit sexual activity with a 15-year-old United States citizen girl in Ciudad Juarez, Chihuahua, Mexico in exchange for money and crack cocaine. H.R. 5138 § 2(a) (10). 96 See Guzder, supra note 8. See also infra Part III.A. 97 See Erin Duffy, Going Global - House Advances International Megan's Law, N].coM Quly 28, 2010, 2:10 AM), http:/ /www.nj.com/ mercer/index.ssf/2010 /07/ going_global_-_house_advances. html (quoting New Jersey Representative Chris Smith: "[w]e dotted every 'i' and crossed every 't' to create a program that will significantly protect children overseas and will help create Megan's Laws all over the world"). 98 Id. ("[T]he bill bears the name of Megan Kanka, the 7-year-old girl from Hamil- 2011] INTERNATIONAL MEGAN'S LAW 133

inches closer and closer to becoming law.99 Such has been the fairly consistent thread goading the passage of each new instance of sex offender legislation. 100 The Interna­ tional Megan's Law proposal is no different: the 2008 and 2009 versions failed in the House but the 2010 version reached the Sen­ ate (the 2011 version remains active in Congress at the time of this writing). The proposal thus appears to be enjoying a positive serial legislative trajectory, not unlike the legislative path of the Jacob Wetterling Act. 101 As such, it would not be unreasonable to predict that Megan's Law may soon be going international.102 But contemporary sex offender policy is not without its critics; common criticisms include issues related to justification, cost, scope, efficacy, and criminogenic effects. 103 Also noteworthy is that the vast majority of states and other U.S. jurisdictions have yet to conform to the requirements of the Adam Walsh Act. 104 In short, registration and notification laws, among other sex-offender spe­ cific laws, remain controversial and in a state of flux. Nonetheless, registration and community notification laws are unlikely candidates for repeal, 105 and time may thus be better spent identifying ways "to minimize their anti-therapeutic effects, and ... maximize their therapeutic potential. ..." 106 With that in mind, the following reflection on the International Megan's Law of 2010 (hereinafter referred to as House Bill 5138) begins with a brief description of recent legislative action taken pursuant to the

ton whose 1994 rape and murder at the hands of a repeat sex offender spurred the original Megan's Law legislation."). 99 See infra Part III.A. 100 E.g., FAILED POLICIES, supra note 5, at 5. 101 Eventually passed in 1994, the Jacob Wetterling Act was the result of three years of legislative efforts, beginning with the introduction of the Crimes Against Children Registration Act. Logan, supra note 19, at 62-66. 102 This conclusion has been arrived at elsewhere, albeit by a different analysis. See supra notes 90-93 and accompanying text. 103 An expanded list of challenges and criticisms that have been directed at registra­ tion and notification laws include issues pertaining to: protected liberty interests; double jeopardy; right to travel; equal protection; due process; ex post facto; the Commerce Clause; overbroad; lengthy duration; fiscal and practical burdens; inability of officials to monitor the large number of registered sex offenders; juvenile applica­ bility; community shunning and retribution; employment difficulties; ineffectiveness; iatrogenic effects; inaccurate portrayal of recidivism rates; and the suggested uncon­ stitutionality of the Adam Walsh Act's new crime of failing to register. See FAILED Pou­ crns, supra note 5; PROTECTING SocIE'IY, supra note 5; Tregilgas, supra note 4, at 731-37; Yung, supra note 51, at 370-71. The number of registrants is simply impres­ sive: one out of every 427 Americans. See supra note 73. 104 See supra text accompanying notes 60-62. 105 E.g., PROTECTING SoCIE'IY, supra note 5, at 213, 221. 106 Id. 134 CUNY LAW REVIEW [Vol. 15:117

proposal.107 A description of the bill's purpose and provisions is then explicated, followed by an analysis of its most notable strengths and weaknesses.108 Then, appreciating that the proposal could conceivably become law in coming years, suggestions for in­ creasing its positive aspects and minimizing its deficits are of­ fered.109 An alternative option is also presented.110

A. Legislative History The architect and sponsor of House Bill 5138 is Christopher H. Smith, a Republican representative for New Jersey's Fourth Dis­ trict.111 Representative Smith, a supporter of initiatives to reduce human trafficking,112 had previously sponsored the International Megan's Law of 2008 and the International Megan's Law of 2009, but these bills never made it past House subcommittee referrals.113 His efforts fared better in 2010 when House Bill 5138 passed the House by voice vote and moved onto the Senate; there, the bill was referred to the Senate Committee on Foreign Relations, where it ultimately died.114 The International Megan's Law of 2011 is cur­ rently under consideration in the ll2th session of Congress.U5

1 07 See infra Part III.A. 108 See infra Part III.B-C. 109 See infra Part N. uo Id. 111 Congressman Chris Smith-Biography, THE U.S. HousE OF REPRESENTATIVES, http:/ /chrissmith.house.gov/Biography (last updated Oct. 2011). 112 Representative Smith authored and sponsored the Victims of Trafficking and Violence Protection Act of 2000, H.R. 3244, 106th Cong. (enacted), the Trafficking Victims Protection Reauthorization Act of 2003, H.R. 2620, 108th Cong. (enacted), and the Trafficking Victims Protection Reauthorization Act of 2005, H.R. 972, 109th Cong. (enacted). 113 See Bill Summary & Status, THOMAS, http:/ /www.thomas.gov (follow "Try the Ad­ vanced Search" hyperlink; then follow "110" hyperlink; then search "International Megan's Law"; then follow "All Congressional Actions" hyperlink) (last visited Jan. 1, 2012); Bill Summary & Status, THOMAS, http://www.thomas.gov (follow "Try the Ad­ vanced Search" hyperlink; then follow "111" hyperlink; then search "International Megan's Law"; then follow "H.R.1623" hyperlink; then follow "All Congressional Ac­ tions" hyperlink) (last visited Jan. 1, 2012). 114 See Bill Summary & Status, THOMAS, http:/ /www.thomas.gov (follow "Try the Ad­ vanced Search" hyperlink; then follow "ll l" hyperlink; then search "International Megan's Law"; then follow "H.R.5138" hyperlink; then follow "All Congressional Ac­ tions" hyperlink) (last visited Jan. 1, 2012). 115 See Bill Summary & Status, Thomas, http:/ /www.thomas.gov (follow "Try the Ad­ vanced Search" hyperlink; then follow "ll2" hyperlink; then search "International Megan's Law"; then follow "All Congressional Actions" hyperlink (last visited Jan. 1, 2012). An International Megan's Law of 2011 was introduced in the ll2th session of Congress subsequent to the writing of much of this Note. H.R. 3253. I compared the text of that bill with the 2010 version using an open source PDF comparison program, DiffPDF. DIFFPDF, http://www.qtrac.eu/diffpdf.html (last visited Mar. 10, 2012). The 2011] INTERNATIONAL MEGAN'S LAW 135

B. Purpose and Provisions Broadly speaking, Representative Smith is reported as having offered the following comments regarding the purpose of House Bill 5138: We're trying to make it global in terms of Megan's Law ... but that also protects our kids, because we have sex tourism visitors coming to our country from Germany-a whole slew of coun­ tries-to abuse little children, and our Immigration and Cus­ toms Enforcement people don't have a clue what their M.O. is when they arrive at JFK or Newark International or wherever it might be.

This would encourage a whole global movement to enact Megan's Laws domestically and then share that information internationally.116

The International Megan's Law would establish the model needed for our administration to pressure other countries to take action to stop child sex tourism originating within their borders and threatening children in the United States and elsewhere. 117 bills are virtually identical (the only differences between the two are that the 2011 version includes updated dates and lacks a budget compliance section). Therefore, my description and critique of the 2010 version applies in equal force to the 2011 version. 116 Accord H.R. 5138 § 6(g). (g) CONSULTATIONS.-The Center shall engage in ongoing consulta­ tions with- (1) NCMEC, ECPAT-USA, Inc., World Vision, and other nongov­ ernmental organizations that have experience and expertise in identify­ ing and preventing child sex tourism and rescuing and rehabilitating minor victims of international sexual exploitation; (2) the governments of countries interested in cooperating in the creation of an international sex offender travel notification system or that are primary destination or source countries for international sex tourism; and (3) Internet service and software providers regarding available and potential technology to facilitate the implementation of an interna­ tional sex offender travel notification system, both in the United States and in other countries. Id. (emphasis added). Note the use of the word shall The desire to nudge other coun­ tries into adopting U.S.-style sex offender policies is a prominent undercurrent throughout the bill. But as is argued in this Note, the wisdom of our domestic sex offender policies is not yet certain. Accordingly, prodding other countries into adopt­ ing our questionable policies carries with it an air of hastiness and American exceptionalism. 117 Sulaiman Abdur-Rahman, House OKs Rep. Smiths 'International Megan's Law' to Protect All Kids from Perverts, TRENTONIAN, July 28, 2010, 136 CUNY LAW REVIEW [Vol. 15:117

The stated justification for House Bill 5138 is the prevention or reduction of child sex tourism.118 Based on Immigration and Customs Enforcement (ICE) information, the Congressional Budget Office "expects" that about 10,000 child-victim sex offend­ ers will travel internationally "most" years.11 9 The limited research that exists on child sex tourism suggests that at least some-al­ though seemingly a tiny proportion of-registered sex offenders engage in child sex tourism abroad.120 Hence, that a history of child-victim sexual offenses might in a very small number of cases be predictive of engaging in child sex tourism seems at least facially valid. Primary aims of House Bill 5138 include: (1) alerting destina­ tion countries of traveling high interest child-victim sex offenders; (2) encouraging other countries to provide reciprocal notification, regardless of risk level; (3) assisting foreign countries with the de­ velopment of identification and travel notification systems; (4) granting the Secretary of State with the power to revoke or limit the duration of passports of foreign child-victim sex offenders or high interest registered sex offenders, (5) maintaining non-public regis­ tries of all U.S. citizen sex offenders living abroad; and (6) assess­ ing whether countries are combating human trafficking pursuant to minimum standards set forth elsewhere.121 A Sex Offender Travel Center would be created to help carry out these objec­ tives.122 In the following section, select portions of the bill are more closely reviewed and commented upon. The analysis is premised

http://www.trentonian.com/articles/2010/07 /28/news/doc4c4fa96cc9la543289331 5. txt?viewmode=fullstory. 118 Child sex tourism being defined "as the commercial sexual exploitation of chil­ dren by people who travel from one place to another and there engage in sexual acts with minors." H.R. 5138 § 2(a)(7). 119 CoNG. BuDGET OFFICE, CosT ESTIMATE: H.R. 5138, INTERNATIONAL MEGAN'S LAw OF 2010 3 (2010) [hereinafter H.R. 5138 CosT ESTIMATE]. How the Congressional Budget Office arrived at their estimate is not reported, which raises concerns about the credibility of the statistic. 120 See THE PROTECTION PROJECT, INTERNATIONAL CHILD SEX TourusM: SCOPE OF THE PROBLEM AND COMPARATIVE CAsE STUDIES 24-26, 39-41 (2007); U.S. DEP'T OF JUSTICE, THE NATIONAL STRATEGY FOR CHILD EXPLOITATION PREVENTION AND INTERDICTION: A REPORT TO CONGRESS app. D (2010). But see eAdvocate, International Megans Law EX­ POSED! Now, Hear the Truth About HR 5138, CONG., COURTS AND SEX OFFENDERS Quly 31, 2010), http:/I congress-courts-legislation. blogspot.com/2010I 07 /in ternational-megans-Iaw­ exposed-now_31. html (last visited Dec. 23, 2011) (questioning the credibility of the data reported by the U.S. Department of Justice). 121 See H.R. 5138 § 2(b). 122 H.R. 5138 § 6. The creation of the International Sex Offender Travel Center would seem analogous to the Adam Walsh Act's creation of the SMART Office. See supra note 52 and accompanying text. 2011] INTERNATIONAL MEGAN'S LAW 137 on the perpetuation of domestic registration and notification poli­ cies as they currently appear.123

C. Analysis First, it should be noted that the International Megan's Law moniker is somewhat deceiving. House Bill 5138, in lacking com­ munity notification provisions (i.e., notification is limited to law en­ forcement officers and certain child-services personnel), is really more akin to the Jacob Wetterling Act. 124 The name thus entails the risk of misleading the public. Second, the proposal would be limited to child-victim sex of­ fenders.125 It would also only apply to juvenile offenders if they had attained the age of 14 at the time of committing an offense that was comparable or more severe than aggravated sexual abuse (thus

123 See Logan, supra note 1, at 211-39 (speculating as to why contemporary registra­ tion and notifications laws have persisted and expanded despite empirical evidence suggestive of their ineffectiveness). 124 See supra notes 18-29 and accompanying text. 125 H.R. 5138 § 3(8)-(9). This section provides: (A) IN GENERAL-The term "sex offense" means a criminal offense against a minor, including any Federal offense, that is punishable by statute by more than one year of imprisonment and involves any of the following: (i) Solicitation to engage in sexual conduct. (ii) Use in a sexual performance. (iii) Solicitation to practice prostitution (whether for financial or other forms of remuneration). (iv) Video voyeurism as described in section 1801 of title 18, United States Code. (v) Possession, production, or distribution of child pornography. (vi) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct. (vii) Conduct that would violate section 1591 (relating to sex traf­ ficking of children or by force, fraud, or coercion) of title 18, United States Code, if the conduct had involved interstate or foreign commerce and where the person recruited, enticed, harbored, transported, pro­ vided, or obtained had not attained the age of 18 years at the time of the conduct. (viii) Any other conduct that by its nature is a sex offense against a minor. (B) EXCEPTIONS.-The term "sex offense" does not include- (i) a foreign conviction, unless the conviction was obtained with sufficient safeguards for fundamental fairness and due process for the accused; or (ii) an offense involving consensual sexual conduct if the victim was at least 13 years old and the offender was not more than 4 years older than the victim. Id. § 3(9). 138 CUNY IA W REVIEW [Vol. 15:117

paralleling the treatment of juveniles in the Adam Walsh Act) .126 The bill therefore avoids some of the problems associated with be­ ing overly inclusive (e.g., needlessly including adult-victim sex of­ fenders when the proposal is predicated on preventing child-victim offending). However, by including juvenile sex offenders, the pro­ posal invites the same criticisms that have been launched at the Adam Walsh Act's inclusion of juveniles.127 Third, while all child-victim sex offenders would be required to report domestically before traveling-and at to-be-established diplomatic or consular missions abroad if remaining in the destina­ tion country for more than 30 days within a six month timespan­ notification of international travel would only apply to high interest registered sex offenders. 128 However, the provided definition of a high interest registered sex offender is not sufficiently clear, nor is the pro­ cess for classifying an individual as such. The bill only calls for a belief based on "reasonable grounds" and a consideration of the "totality of the circumstances."129 Moreover, while an appeals pro­ cess for those determined to be high interest registered sex offenders is built in, how the review panel would operate is not specified.130 The bill only dictates the agencies from which panel members would be drawn, and establishes that panel members would be in­ dependent from those who perform the initial assessments.131 Fourth, the term travel is left undefined. While the common sense definition of the word would not seem to carry a duration qualifier, guidelines for the Adam Walsh Act currently permit a six-

126 H.R. 5138 § 3(3); see also supra note 49 and accompanying text. 127 E.g., FAILED Poucrns, supra note 5, at 7, 236 ("Chaffin argued that the enact­ ment of the Walsh Act's requirement that states subject juveniles over the age of 14 to the same registration and notification mandates as adults is directly contradictory to the research findings, which point to improvements in treatments and recidivism of juvenile sex offenders .... [Moreover,] Oiuvenile sex offenders will likely face the many unintended consequences that scholars have found. Stigmatization at school, inability to secure employment or higher education, harassment, and social isolation are just as likely for the juvenile offender as for the adult. Furthermore, the require­ ments of registration for juveniles may actually prevent parents from coming forward to report intrafamilial sexual assaults due to fear that their child will have to register."). 128 See H.R. 5138 §§ 4-5. 129 H.R. 5138 § 3(4); see also id. § 7(a) ("Not later than 180 days after the date of the enactment of this Act, the Center shall issue the Center Sex Offender Travel Guidelines for the assessment of sex offenders ... (I) who report international travel from the United States to another country ... or (2) ... for purposes of determining whether such sex offenders are considered high interest registered sex offenders by United States law enforcement."). 130 See H.R. 5138 § 6(d) (5). 131 See id. 2011] INTERNATIONAL MEGAN'S IA W 139

day window for registered sex offenders to travel without report­ ing.132 Thus,jurisdictions have no guidance as to whether the pro­ posal intends to eliminate that exemption. Fifth, whereas the United States would only provide notifica­ tion to foreign jurisdictions of travel by high interest registered sex of fenders, the bill indicates that the United States expects to be notified of all foreign child-victim sex offenders who intend to travel to the United States, regardless of whether they are deemed high interest. 133 If the true intention of the proposal is to prevent child sex tourism, providing for relaxed reciprocal notification standards when the United States is not primarily a destination country (but rather an origin country) 134 seems disingenuous. Sixth, flexibility is built in (i.e., a system is to be devised post hoc) for child-victim sex offenders who regularly transit across the U.S./Canada and U.S./Mexico borders, and for those whom the 30-day notice rule would prove impractical (e.g., needing to travel quickly for a personal or business exigency) .135 The bill thus recog­ nizes that registered sex offenders may engage in legitimate and regular international travel, and that having to report each time would prove problematic. However, only providing flexibility for travel to Canada and Mexico, when legitimate travel can occur to any country, seems illogical. Moreover, as is the case throughout much of the bill, how the system would function is unknown.136 Seventh, the bill would adopt and amend the new crime of Jailing to register first introduced in the Adam Walsh Act. 137 How-

132 See supra note 56 and accompanying text. 133 SeeH.R. 5138 § 2(b)(l), (2). 134 See THE PROTECTION PROJECT, supra note 120, at 24-26, 70 (discussing that at the time the report was issued, only a single foreign individual had been charged (the case was still pending) for child sex tourism with the United States being the destina­ tion country). 135 See H.R. 5138 § 4(f). I36 See id. § 4(f) (1). An internet posting suggested the following system (for re- peated business travel, but also for travel in general): It should be a one time application and clearance for travel abroad, unless a new offence or evidence-based reason to suspect a problem occurs. Or their application/approval is valid for 2 or 3 years and then they reapply when it expires. Having to submit each and every time for those who travel abroad regularly for work or for family can only be thought of as harassment and would only serve to waste valuable re­ sources that could be used to target true threats. Posting #244 - The Actual Costs of the International Megan s Law, REFORM SEX OFFENDER LAws OF VIRGINIA (Aug. l, 2010) [hereinafter RSOL OF VIRGINIA], http:/ /www.rsol virginia.org/news/bulletin-board/posting-244-%E2%80%93-the-actual-costs-of-the­ international-megan%E2%80%99s-law/ (last visited Dec. 23, 2011). 137 See H.R. 5138 § 4(d) (1) ("Whoever knowingly fails to register with United States 140 CUNY LAW REVIEW [Vol. 15:117 ever, scholars have noted that the original offense may raise some constitutional concerns.138 The offense as written may prove unen­ forceable if courts adopt the position of critics that the original offense violates the Fifth Amendment Due Process Clause, the Ex Post Facto Clause, and the Commerce Clause.139 Eighth, multiple reports are to be furnished to Congress over the course of three years for evaluative purposes.140 These include two initial reports to be issued not more than one year after the date of adoption, three annual reports to be issued by the presi­ dent, and a report to be issued by the Inspectors General of the Department ofJustice and the Department of State not more than three years after the date of adoption.141 The call for evaluative reports is a positive aspect of the bill. Finally, the bill would cost an estimated '$252 million over a four-year period.142 No estimate is provided for how much foreign assistance might cost. Notwithstanding estimates, the bill is not ac­ tually constrained by any budgetary limit, so long as it comports to the mandates of the Statutory Pay-As-You-Go Act of 2010. 143 The cost of the proposal is therefore significantly more than what it cur­ rently costs ICE to detect and investigate instances of child sex tourism.144 officials in a foreign country or to report his or her travel to or from a foreign coun­ try, as required by the International Megan's Law of2010, after being duly notified of the requirements shall be fined under this title or imprisoned not more than 10 years, or both."). 138 See Logan, supra note 2, at 7-10; Yung, supra note 51. 139 Yung, supra note 51, at 370-71. 140 See H.R. 5138 §§ 12, 14. 141 Id. 142 H.R. 5138 CosT ESTIMATE, supra note 119, at 1. 143 Pub. L. No. 111-139, 124 Stat. 8 (codified in scattered sections of 2 U.S.C.). See also H.R. 5138 §§ 15-16. 144 This is directly contrary to what House Bill 5138 stipulates. The bill provides: (12) Between 2003 and 2009, ICE obtained 73 convictions of individuals from the United States charged with committing sexual crimes against minors in other countries. (13) While necessary to protect children and rescue victims, the detec­ tion and investigation of child sex predators overseas is costly. Such an undercover operation can cost approximately $250,000. A system that would aid in the prevention of such crimes is needed to safeguard vul­ nerable populations and to reduce the cost burden of addressing crimes after they are committed. H.R. 5138 § 2(a) (12)-(13). But if$250,000 times 73 convictions divided across 7 years equals a yearly cost of $2,607,143, that amount is significantly less than the estimated $50,400,000 (i.e., $252,000,000 divided across 5 years) yearly cost of House Bill 5138. 2011] INTERNATIONAL MEGAN'S LAW 141

IV. SUGGESTIONS FOR IMPROVING THE PROPOSAL AND AN ALTERNATIVE OPTION In light of the foregoing discussion, a list of suggestions for improving the International Megan's Law proposal is hereby offered: 145 • The name of future proposals should be changed to some­ thing that does not include the moniker Megan's Law, so as not to mislead the public. • Congress should await state compliance with the require­ ments of the Adam Walsh Act before attempting to expand the current system exponentially. The calling for more com­ plex registration and notification infrastructures is currently outpacing the speed at which these systems can be built. Moreover, the cost of these systems coupled with their un­ proven efficacy should caution against further expansion.146 • Congress should pass a bill requiring that studies be under­ taken to answer beforehand many of the questions that House Bill 5138 would seek to answer post hoc.147 Additional research on child sex tourism should also be stimulated by way of federal grants. The point here is that public policy should be driven by evidence-based data. 148 That is, unless absolutely unfeasible, the flow of public policy should be from data to legislation (and not the other way around). This temporal order is, quite obviously, most conducive to informed decisions. Indeed, how best to deal149 with the

145 The suggestions offered are not presented in any particular order. 146 As to both of these points, see supra notes 59-61 and accompanying text for support. 147 See H.R. 5138 § 12(a) (providing a list of questions to be answered post hoc once the bill is adopted). 148 Jill S. Levenson & David A. D'Arnora, Social Policies Designed to Prevent Sexual Vio­ knce: The Emperor's New Cwthes?, 18 CRIM. JusT. Po1,'v REv. 168 (2007); Lynn professor refutes claim of 100,000 missing sex offenders in new study, LYNN UNrvERSITY (July 10, 2011), http://www.lynn.edu/ about-lynn/ news-and-even ts/ news/lynn-professor­ refutes-claim-of-100-000-missing-sex-offenders-in-new-study. 149 A recent search of legal literature revealed numerous discussions and proposals of strategies for reducing child sex tourism. See, e.g., Geneva Brown, Women and Chil­ dren Last: The Prosecution of Sex Traffickers As Sex Offenders and the Need for a Sex Trafficker Registry, 31 B.C. THIRD WORLD LJ. 1 (2011) (discussing European, Asian, and U.S. efforts and advocating for the adoption of an international registry of individuals con­ victed of sex trafficking); Kelly M. Cotter, Combating Child Sex Tourism in Southeast Asia, 37 DENv.]. lNT'L L. & PoL'v 493 (2009) (discussing U.S. and various international efforts); Kalen Fredette, International Legislative Efforts to Combat Child Sex Tourism: Eval­ uating the Council of Europe Convention on Commercial Child Sexual Expwitation, 32 B.C. INT'L & COMP. L. REv. 1 (2009) (discussing approaches utilized in both source and destination countries and offering the Council of Europe's Convention on the Protec­ tion of Children Against Sexual Exploitation and Abuse as representative of current best efforts); Timothy R. Spaulding, Moving Beyond Treating Cancer with a Band-Aid: 142 CUNY LAW REVIEW [Vol. 15:117

problem150 of child sex trafficking and tourism is an impor­ tant human rights concern in need of empirical insight rather than haphazard legislation. • Operational frameworks should also be delineated prior to passage (as opposed to calling for the Attorney General to do so after the fact), so that a better estimate can be made about the necessary resources investment (e.g., cost and manpower) and to guide implementation. Relying on the is­ suance of post hoc guidelines151 will entail the same imple­ mentation problems152 currently facing the Adam Walsh Act. Moreover, the need for clearly defined operational guide­ lines is even more important here, in that the jurisdictional scope would be massively expanded from that of the Adam Walsh Act. • Less burdensome travel-reporting requirements would be ap­ propriate for the vast majority of registrants.153 Absent new

Addressing the Domestic Hindrances to Eradicating Child Sex Tourism & Child Prostitution in Cambodia, GoNz. J.L. INT'L L. (2011) (discussing Cambodian social problems that ob­ struct efforts to end child sex tourism there); Amy Fraley, Note, Child Sex Tourism Legislation Under the PROTECT Act: Does It Really Protect?, 79 ST. JOHN'S L. REV. 445 (2005) (discussing U.S., Australian, German, Japanese, and Swedish efforts and offer­ ing various recommendations for improvement). 150 The 73 convictions cited in footnote 145 are unlikely to be indicative of the scope of the problem; that figure, of course, does not account for instances of child sex tourism that do not come to the attention of authorities. Cf PROTECTING SocIE'IY, supra note 5, at 46-47 (" [O]bserved recidivism rates are underestimates of the actual rates because many sexual offenses are never detected."). 151 See, e.g., H.R. 5138 §§ 4(b), 4(f)(l), 5(b)(4), 6(a), 7(a), 14(a). 152 An impassioned and critical internet posting raised some interesting practical problems that could arise depending on how the interface between the Adam Walsh Act and House Bill 5138 is handled. See eAdvocate, supra note 120. Because the bill does not specify the details of how reporting would work abroad nor how it would be incorporated with the Adam Walsh Act, the potentially-problematic hypotheticals posed by the author of the internet posting cannot be assessed. Nonetheless, some interesting practical problems raised include: • If each country is only to have a single diplomatic or consular mis­ sion, an in-person reporting requirement would prove to be a signifi­ cant practical and financial burden on registrants visiting large countries (e.g., China, Russia). • Will reporting requirements proscribed by the International Megan's Law comport well with state reporting requirements (remembering that the Adam Walsh Act places only a federal minimum standard on state reporting and notification practices; states are free to adopt tougher policies)? • Would the International Megan's Law apply retroactively as does the Adam Walsh Act? • Travel plans can change rapidly after destination arrival. How will the International Megan's Law handle spur-of-the-moment changes in travel plans? See eAdvocate, supra note 120. 153 See supra note 128. 2011] INTERNATIONAL MEGAN'S LAW 143

offenses or other credible evidence to suggest to the con­ trary, applicants should only have to apply for permission to travel (i.e., report) once, or otherwise once every few years. 154 • Future proposals should define the word travel, specifically, whether the definition includes a seven-day duration require­ ment, as does the Adam Walsh Act. Any such proposals should also more thoroughly define what a high interest regis­ tered sex offender is and delineate how such a designation is to be made (e.g., by use of best practices in the risk/threat as­ sessment fields or a tiered system). A triggering-offenses system (e.g., the tier system adopted by the Adam Walsh Act) would be the simplest and most straightforward approach.155 An individualized risk as­ sessment system, in turn, would prove more complex. This is so because while actuarial assessment tools exist to gauge risk of sexual recidivism generally, 156 none assess for the specific target behavior of engaging in child sex tourism.157 Hence, actuarial risk assessment techniques would only prove mar­ ginally helpful, if at all, in determining the likelihood that an individual will engage in child sex tourism. Actuarial results, if they could even be used, would have to be incorporated with anamnestic (a more traditional, individualized clinical assessment using applied behavioral analysis principles) 158 or threat (an approach used to assess risk of targeted violence developed by the U.S. Secret Service) 159 assessment ap­ proaches that while allowing for individualized assessment,

154 See supra note 136. 155 See supra note 53 and accompanying text. However, adoption of the Adam Walsh Act's tier system-specifically, defining high risk registered sex offenders as tier III offenders-would present two problems in light of the stated aim of House Bill 5138 (preventing child sex tourism). First, sex trafficking is only a tier II offense (and would thus be excluded from a tier III-triggering system). Second, tier III is overly­ inclusive in this context, in that it is not limited to child-victim sex offenders. It has been suggested that the bill should only apply to individuals "who have been con­ victed of forced rape upon a child (not someone who was a girlfriend or boyfriend), or someone who has been convicted of sex tourism or human trafficking." RSOL OF VIRGINIA, supra note 136. As such, limiting triggering-offenses to relevant offenses, rather than entire tiers, would be a more befitting solution. 156 See generally HANDBOOK OF VIOLENCE RlsK AssESSMENT (Randy K. Otto & Kevin S. Douglas eds., 2010) (providing extensive coverage of a variety of actuarial tools used to assess risk of sexual recidivism). l57 For an analogous discussion of this issue (but pertaining instead to violence risk), see Randy Borum et al., Threat Assessment: Defining an Approach for Evaluating Risk of Targeted Violence, 17 BEHAV. Sc1. & L. 323, 325-26 (1999). l58 See GARY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS 307 (3d ed. 2007). 159 See Borum et al., supra note 157. 144 CUNY IA W REVIEW [Vol. 15:117

are inherently more speculative and less reliable than purely actuarial methods. Also, false positives are sure to abound given that engaging in child sex tourism is presumably a rare behavior, as compared to, for instance, "any reoffense of a sexual nature." The latter is a far more encompassing crite­ rion variable (the outcome to be predicted) commonly em­ ployed by actuarial risk assessment instruments. That is, the narrow offense of child sex tourism-necessarily measured by official charges or convictions-likely has a low rase rate of occurrence (relatively speaking), which makes prediction difficult and increases the risk of false positives. • Congress might amend the new crime of failing to register to assure that it complies with constitutional standards.160 An alternative proposal would be for Congress to pass legisla­ tion allowing for the revocation or restriction of passports and visas161 issued to domestic child-victim sex offenders162 deemed to be high-risk by use of (1) best practices in the risk/threat assess­ ment fields or (2) relevant triggering offenses.163 Notification

160 See Yung, supra note 51, at 400, 407, 423 (offering solutions to supposed con­ flicts between the federal failure to register crime and the Fifth Amendment Due Pro­ cess Clause, the Ex Post Facto Clause, and the Commerce Clause). 161 Professor John Hall also recently arrived at this solution. See Hall, supra note 6 (providing a helpful review of passport revocation jurisprudence). Federal laws allow for the revocation of passports for a variety of reasons; for a listing, see U.S. Gov'T AccouNTABILITY OFFICE, GA0-10-643, PASSPORT IssuANcE: CuRRENT SITUATION RE­ SULTS IN THOUSANDS OF PASSPORTS ISSUED TO REGISTERED SEX OFFENDERS 4-5 (2010). One such law permits the Secretary of State to deny or revoke passports to persons convicted of child sex tourism during the time they are imprisoned or under correc­ tional supervision. William Wilberforce Trafficking Victims Protection Reauthoriza­ tion Act of 2008, Pub. L. No. 110-457, § 236, 122 Stat. 5044, 5082 (codified at 22 U.S.C. § 212a (Supp. lV 2010) ). Another law permits the Department of State to re­ fuse to issue a passport to a person subject to a criminal court order, condition of probation, or condition of parole. 22 C.F.R § 51.60(b) (2) (2010). Based on his analy­ sis, Professor Hall concluded that revoking the passports of most child-victim sex of­ fenders would be constitutional. Hall, supra note 6, at 155-56, 184-202. 162 House Bill 5138 only included provisions that would have authorized the Secre­ tary of State to revoke or limit the passports issued to U.S. citizen sex offenders con­ victed in foreign countries and not visas issued to foreign nationals (but in no case would the Secretary of State be allowed to do so to preclude a U.S. citizen convicted of a sex offense in a foreign country from returning to the United States). H.R. 5138 § 8(a)-(b). The ability to restrict domestic registered sex offenders' passports was pro­ posed in Congress in 2010. H.R. 5870, lllth Cong. (2010) ("The Secretary of State may revoke, restrict, or limit a passport issued to an individual who is a sex offender ....").Two points are notable about this bill: first, it would have allowed the Secretary of State the power to revoke or restrict passports issued to all sex offenders (not just child-victim sex offenders); and second, the Secretary of State would not have the power under the bill to revoke or restrict visas issued to foreign-citizen sex offenders. 163 Again though, the problems with relying upon the Adam Walsh Act's tier system in this context are (l) that sex trafficking is not a tier III offense (but rather a tier II offense) and (2) that tier III includes adult-victim offenses (rather than just child- 2011] INTERNATIONAL MEGAN'S LAW 145 would be unnecessary in such a system because high-risk child-vic­ tim sex offenders would be denied the right to travel intemation­ ally.164 Those that might be permitted to travel due to exigent circumstances-likely to be a small number annually-could then be monitored by ICE in cooperation with law enforcement of desti­ nation countries. Such a system, given its simplicity, could be expected to result in substantial budgetary savings. The saved resources could then be spent-perhaps more effectively-on assisting other efforts to com­ bat child sex tourism in destination countries.165 Those who are caught partaking in the child sex tourism industry should, of course, continue to be prosecuted under federal criminal law. 166

victim offenses). A better solution would be to prescribe context-relevant triggering offenses (e.g., forcible rape against a child, engagement in child sex tourism, and sex trafficking of minors). See RSOL OF VIRGINIA, supra note 136. 164 While the Supreme Court has long recognized a constitutional right to travel domestically, see generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAw: PRINCIPLES AND Poucrns 857-868 (3d ed. 2006), no such right exists for international travel, see gener­ ally id. at 868-871. Restrictions on international travel are instead subject to a rational basis test. Id. 165 See, e.g., Fredette, supra note 149. 166 18 U.S.C. § 2423 (2006). The statute provides in pertinent part: (a) Transportation with intent to engage in criminal sexual activity.-A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any common­ wealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life. (b) Travel with intent to engage in illicit sexual conduct.-A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. (c) Engaging in illicit sexual conduct in foreign places.-Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with an­ other person shall be fined under this title or imprisoned not more than 30 years, or both. (d) Ancillary offenses.-Whoever, for the purpose of commercial ad­ vantage or private financial gain, arranges, induces, procures, or facili­ tates the travel of a person knowing that such a person is traveling in interstate commerce or foreign commerce for the purpose of engaging in illicit sexual conduct shall be fined under this title, imprisoned not more than 30 years, or both. Id. 146 CUNY LAW REVIEW [Vol. 15:117

CONCLUSION A review of foreign jurisdictions confirms that the United States leads the world in sex-offender-centric policies. While regis­ tration has become relatively commonplace abroad (albeit in a more restrained manner than in the United States), community notification has not been as readily received outside of the United States. Moreover, unlike the perpetual retrospective application adopted by the United States, foreign jurisdictions that provide for retroactive applicability do so in a much more restrained manner. In short, international consensus does not yet exist regarding ap­ propriate sex offender policy. One of the few practices that the United States has not led the way in adopting is international travel reporting.167 Strict require­ ments have been strangely absent from U.S. policy consideration until recently with the introduction of the International Megan's Law proposals. At least three foreign jurisdictions currently require sex offenders to alert officials of intended international travel, and the United Kingdom uniquely allows for a limited denial of a regis­ trant's right to travel if he or she is deemed to pose an unaccept­ able risk to children abroad. The International Megan's Law proposal would seek to, among other things, implement international travel reporting re­ quirements for domestic sex offenders. But it seeks to go further by attempting to incite a worldwide system of sex offender regis­ tries and information sharing. 168 I argue, however, that the current

167 See supra note 56 and accompanying text. 168 A stirring if not somewhat lofty argument is that an International Megan's Law is at odds with various Articles of the United Nations' Universal Declaration of Human Rights. See eAdvocate, supra note 120. Articles 7, 9, 11-15, and 30 of The Universal Declaration of Human Rights provide: Article 7 All are equal before the law and are entitled without any discrimi­ nation to equal protection of the law. All are entitled to equal protec­ tion against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

Article 11 1. Everyone charged with a penal offence has the right to be pre­ sumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor 2011] INTERNATIONAL MEGAN'S LAW 147 iteration of the proposal is unacceptably vague and lacking in rele­ vant research for such an expansive (and expensive) undertaking. Nor does the proposal's justification seem entirely genuine in light of the inequality introduced regarding reciprocal notification. Because the wisdom of U.S. registration and notification laws remains uncertain, it would seem prudent to postpone interna­ tional advocacy until the soundness of our own policies is first en­ sured. Combating child sex tourism certainly requires international cooperation, but such a cooperative need should not be seen as an invitation to goad foreign nations into allowing our questionable practices to expand exponentially.

shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each state. 2. Everyone has the right to leave any country, including his own, and to return to his country. Article 14 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 genu­ inely arising from non-political crimes or from acts contrary to the pur­ poses and principles of the United Nations. Article 15 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/ 217(III) (Dec. 10, 1948). For an analysis of contemporary sex offender policy in light of other assorted international and domestic human rights codes, see generally Astrid Birgden & Heather Cucolo, The Treatment of Sex Offenders: Evidence, Ethics, and Human Rights, 23 SEXUAL ABusE:J. REs. & PRAc. 295 (2011). GRAHAM, MILLER, & THE RIGHT TO HOPE

JM. Kirbyt

l. INTRODUCTION In 2010, the Supreme Court held that it is unconstitutional to sentence a youth, convicted for armed robbery committed at age 16, to life in prison with no hope of release.1 Graham v. Florida ex­ plicitly ends the practice of sentencing individuals convicted for non-homicide offenses committed while under the age of 18 to life without parole ("LWOP").2 Justice Stevens' concurrence,joined by Justices Ginsburg and Sotomayor, placed the ruling in an ongoing evolution of "standards of decency" in Eighth Amendment juris­ prudence.3 On June 25, 2012, the Court expanded on this decision in Miller v. Alabama, ruling that courts may not impose mandatory LWOP sentences on youth convicted of homicide committed while aged 17 and under, and thus that age must be considered at sen­ tencing for these defendants.4 From the perspective of prisoners' rights and youth advocates, these decisions represent a positive advancement,5 particularly when measured by international standards, which largely reject LWOP for juveniles.6 However, they also call into question the na­ ture of the "evolution" in Eighth Amendment jurisprudence, sug­ gesting that it is not fully ever-progressing, given the increased severity of U.S. sentencing practices over the past few decades.7 Set-

t J.D. Candidate (2013), Northeastern University School of Law (NUSL). My ex­ perience with NUSL's Prisoners Assistance Project clinic continues to widen my un­ derstanding and deepen my analysis. For that, I am grateful to Professors Patty Garin and Wally Holohan. My thanks also to the staff of the City University of New York Law Review. 1 Graham v. Florida, 130 S. Ct. 2011, 2018-20, 2030 (2010). 2 Id. at 2030. 3 Id. at 2036 (Stevens,]., concurring). 4 Miller v. Alabama, 132 S. Ct. 2455, 2460, 2469 (2012). 5 See, e.g., Adam Liptak & Lisa Faye Petak, juvenil,e Killers in Jail for Life Seek a Re­ prieve, N.Y. TIMES, Apr. 20, 2011, atA13 (describingjuvenilejustice advocates' efforts to extend Graham v. Florida to juvenile homicide cases); James Bell, High Court's Deci­ sion in Miller v. Alabama is a Victory for Many, Especially in Communities of Color, Juv JusT INFO EXCHANGE Quly 9, 2012). 6 See Graham, 130 S. Ct. at 2033 (noting that only 11 countries allow LWOP sentences for juveniles, and that in practice, only the United States and Israel actually impose the sentence). 7 AsHLEY NELLIS & RYAN S. KING, THE SENTENCING PROJECT, No ExIT 1 (2009) (describing increasingly harsh sentencing policies over the past three decades, includ­ ing mandatory sentences, cuts to parole release, emphasis on drug criminalization,

149 150 CUNY IA W RF,VJEW [Vol. 15:149 ting aside key decisions protecting certain classes of people from the death penalty in the broader tough-on-crime context of the past 30 years, the decisions could be framed more accurately as small steps forward after decades of leaps backwards. While un­ doubtedly representing important reforms, Graham and Miller should spark a profound rethinking of the foundation and trajec­ tory of the U.S. prison system as a whole. The decisions point to the lessened culpability of juveniles,8 and the court in Graham notes that there is a greater chance that young people's "character deficiencies will be reformed."9 Momen­ tarily suspending what this means for adults, and considering solely the implications for youth, the decision's potential impact is lim­ ited10 despite this recognition of young people's probability for positive change. In Graham, the Court's recognition of the poten­ tial for change was not extended to those youth, even as young as 12,11 who commit homicide offenses and are charged as adults. Miller does pose a significant hindrance to the imposition of LWOP sentences on juveniles convicted of homicide, but it falls short of a categorical prohibition.12 Also, it is still conceivable for someone convicted as a juvenile to spend his or her entire life in prison, even on a non-homicide offense. The Court wrote that states are "not required to guarantee eventual freedom to a juvenile offender convicted of a non-homicide crime."13 Most states have mecha- and de-emphasis on rehabilitation, all leading to dramatically increased imprisonment). 8 Graham, 130 S. Ct. at 2026; Miller, 132 S. Ct. at 2464-65. 9 Id. at 2027 (quoting Roper v. Simmons, 543 U.S. 551, 570 (2005)). 10 Courts are testing the outer limits of the Graham decision. In Virginia a Circuit Courtjudge recently dismissed a petition filed by a man who was sentenced as a juve­ nile to a life sentence with no hope of parole for a non-homicide offense. The judge reasoned, in part, that the man has an opportunity at conditional geriatric release when he reaches age 60. See Kristin Davis, Va. Beach Judge Dismisses Claims Against Life Sentence, VIRGINIAN-PILOT (May 5, 2011), http://hamptonroads.com/2011/05/va­ beachjudge-dismisses-claim-against-life-sentence. In another recent case, the Seventh Circuit Court of Appeals refused to offer relief based on the Graham decision to Reyn­ olds Wintersmith, who has served nearly two decades of a LWOP sentence on a first­ time conviction for a non-violent drug offense he committed at age 17. See Annie Sweeney, Suppurters Seek Freedom for Convict Serving Life Sentence for First Time Conviction, Cm. TRTB. (Oct. 2, 2011), http:/ /articles.chicagotribune.com/2011-10-02/news/ct­ met-drug-lifer-l 002-20111002_l_sen tencing-guideli nes-drug-conspiracy-life-sen tence. 11 Just last year a Florida prosecutor charged a 12-year-old as an adult in a first­ degree homicide case. Mark Woods, 'Baby-Faced' Boy's Case Highlights Debate about Try­ ing]uvenil,es, THE FLA. TIMES-UNION (Dec. 5, 2011, 1:44 PM) http:/ /jacksonville.com/ news/ crime/2011-06-04/ story/baby-faced-boys-case-h ighligh ts-debate-about-trying­ juveniles. 12 Miller 132 S. Ct. at 2469. 13 Graham, 130 S. Ct. at 2030. 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 151

nisms for "waiving" youth out of juvenile courts in order to try them as adults,14 and changes in sentencing structure since the 1970s, combined with the politicization of parole decisions, mean that fewer prisoners, including those convicted as youth, are re­ leased on parole.15 Thus, the limits of Graham and Milleras applied to juveniles reflect the severity of the U.S. prison system as a whole for all imprisoned people, regardless of age. Other broader problems with the sentencing structure and with the nature and elusive goals of the prison system seep through the decisions, disrupting the Court's line drawing. Writing for the majority in Graham, Justice Kennedy noted, "[p]arts of the brain involved in behavior control continue to mature through late ado­ lescence."16 Research suggests this process of brain maturation through adolescence continues until at least age 22. 17 This would at least raise questions about courts' approaches to sentencing peo­ ple ages 18 to 22. Additionally, while this evidence points to adoles­ cents' lessened culpability and their potential to dramatically change, we should also question whether this means the Court should allow for adults to be presumed incapable of rehabilitation. Since evidence suggests that access to higher education and visits from loved ones reduce the chances of imprisoned people commit­ ting new offenses once paroled, 18 might this mean that, with cer­ tain supports, the potential for fundamental change in all imprisoned people is far greater than many courts' sentencing practices recognize? Justice Kennedy even asked during oral argu­ ment in Graham, "[w]hy does ajuvenile have a constitutional right to hope, but an adult does not?"19 The Graham decision is peppered with unscientific terms such

14 Richard E. Redding, Juveni/,e Transfer Laws: An Effective Deterrent to Delinquency?, Juv. JusT. BuLL. (U.S. Dep't of Justice, Office of Juvenile Justice & Delinquency Pre­ vention) 1 (2010), availab/,e at http:/ /www.ncjrs.gov/pdffilesl/ojjdp/220595.pdf. Jus­ tice Kennedy points out that, while not necessarily a "realistic" practice in the most extreme theoretical cases, in Florida a child of any age can legally be tried as an adult and sentenced to life without parole for some offenses. See Graham, 130 S. Ct. at 2025-26. l5 DORIS L. MACKENZIE, NAT'L INST. JUSTICE, SENTENCING AND CORRECTIONS IN THE 2lsT CENTURY: SETTING THE STAGE FOR THE FUTURE 19-20 (2001), availab/,e at http:// www.ncjrs.gov/pdffilesl/nij/grants/189089.pdf. 16 Graham, 130 S. Ct. at 2026. l 7 Robert E. Shepherd, The Re/,evance of Brain Research to ]uveni/,e justice, 19 CRIM. JUST. 51, 52 (2005). 18 See discussion infra Parts II and III. 19 Joan Biskupic, Kennedy Holds to Hope in 5-4 Ruling, USA TODAY (May 17, 2010, 10:20 PM), http://www.usatoday.com/ news/washington/judicial/2010-05-17-court­ kennedy_N .htm?csp=obinsite. 152 CUNY LAW REVIEW [Vol. 15:149 as "irredeemable,"20 "incorrigible"21 and "irretrievably depraved character",22 which stem in part from language in the Court's 2005 decision in Roper v. Simmons, barring capital punishment for juveniles. The Miller decision also has a small number of quotes from Graham containing these terms.23 The idea in Graham seems to be that people age 17 and below who commit non-homicide of­ fenses may not represent any of those things-hence why a LWOP sentence is inappropriate for them-but the same may not be said about everyone else convicted of crimes. The decision recognizes rehabilitation as "a penological goal that forms the basis of parole systems" in determining that penological theories do not justify non-homicide juvenile LWOP sentences.24 In support of its hold­ ing, the court in Miller reiterates Graham's reasoning regarding the role of the rehabilitation.25 Yet in many ways the nature and opera­ tion of prison run counter to any reformative or rehabilitative po­ tential and may be to blame for recidivism or return to prison upon release. Rehabilitative opportunities for the thousands of youth who are confined to adult prisons may range from limited to non-existent.26 In these adult prisons, youth face a high risk of sui­ cide, are subject to physical and sexual abuse,27 and are not acces­ sing programs or education tailored to juveniles. For the high percentage of imprisoned people suffering mental illness, behavior associated with their mental illness may lead to disciplinary action, including "segregation," which may dramatically worsen their mental health.28 Even prisoners with no preexisting mental health issues may suffer hallucinations and other mental problems as a result of being held in prolonged isolation-a punishment that correctional officers have wide latitude in applying.29 Given these and other forms of suffering that prisoners endure, coupled with

20 Graham, 130 S. Ct. at 2030. 21 Id. at 2029. 22 Id. at 2026 (''.Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of 'irretrievably depraved character' than are the actions of adults.") (quoting Roper v. Simmons, 543 U.S. 551, 570 (2005). 23 See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012). 24 Graham, 130 S. Ct. at 2029-30. 25 Miller 132 S. Ct. at 2465. 26 JAMES AUSTIN ET AL, BUREAU OF JUSTICE AssISTANCE, U.S. DEP'T OF JUSTICE, JUVENILES IN ADULT PrusoNS AND JArL: A NATIONAL AssESSMENT 1 (2000), availabl,e at http:/Iwww.ncjrs.gov/pdffil£sl/bja/182503.pdf 27 VINCENT SCHIRALDI & JASON ZEIDENBERG, JusTICE PouCY INSTITUTE, THE RlsKS JUVENILES FACE WHEN THEY ARE INCARCERATED WITH ADULTS (1997). 28 Jamie Fellner, A Corrections Quandary: Mental fllness and Prison Rul,es, 41 HARv. C.R.-C.L. L. REv. 391, 398, 402-03 (2006). 29 Id. at 403. 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 153 the decreasing access to already limited prison programming and education, it is no wonder that Robert Dellelo, imprisoned for nearly two-thirds of his life before his sentence was commuted, notes that it is in spite of the current conditions of imprisonment, not because of prison programming, that many prisoners are able to "rehabilitate" themselves.30 Ultimately, when the Supreme Court underscores the poten­ tial for certain youth to be "reformed," it silently accepts problem­ atic corollaries; namely, that it is fine to assume that adults and potentially some youth convicted of homicide31 are incapable of change, unworthy of clemency, and undeserving of another chance. This Note explores the implications, for both youth and adults, of this last presumption. It describes how increased impris­ onment and sentence lengths, as well as a lack of rehabilitative prison programming and a denial of prisoners' access to communi­ ties outside of prison, reflect a destructive notion that imprisoned people are undeserving of hope. It briefly discusses alternatives to this system in the form of decreased sentencing, increased access to education and other services, and less reliance on imprisonment overall. Part I details the degree of severity in U.S. sentencing prac­ tices, as manifested over time, particularly since the initiation of the "war on drugs," and as compared to international practices. It ties this harsh approach to the foundational role of racism in U.S. prison and drug policy and points to the racial implications of both the initial decision to sentence Terrance Jamar Graham to die in prison and the Supreme Court's decision to categorically protect youth against LWOP sentences for non-homicide offenses. Part II illustrates the extent to which the lack of hope that the Graham and Miller decisions arguably permit the majority of imprisoned people to bear is not only manifested in sentencing lengths, but also in a growing denial of education and rehabilitative programming in prisons. Part III describes how imprisoned people are made invisible to the broader public. Prisoners not only face barriers to meaningful connection to loved ones, due to excessive phone rates and being imprisoned far from their communities, but they are also hidden

30 Robert Dellelo, Epilogue to JAMIE BISSONETTE, WHEN THE PRISONERS RAN WAL­ POLE: A TRUE STORY IN THE MOVEMENT FOR PRISON ABOLITION 223, 224-25 (2008). 31 While the Court surmises that "appropriate occassions for sentencing juveniles [convicted of homicide to LWOP] will be uncommon," Miller does not categorically bar juveniles convicted of homicide from facing LWOP sentences. Miller, 132 S. Ct. at 2469. 154 CUNY LAW REVIEW [Vol. 15:149 from public view through restrictions on media access to prisons. An overview of the press coverage of the imprisonment of Washing­ ton, D.C. residents since the early 1970s illustrates how the public narrative of imprisonment in news media dramatically shifted over time ultimately silencing those most able to speak reliably to condi­ tions and impacts of imprisonment: prisoners themselves. This "in­ visibilization"32 is part of a cycle of hopelessness in that it prevents the public from being able to see prisoners' humanity, and thus being able to countenance their potential to return to society. It also hides prison conditions that may cause the public to question the role of prisons in addressing social problems. Part III further shows how the ongoing practice of preventing prisoners' observa­ tions of their conditions from reaching the public affects their per­ ceived credibility and severely limits their ability to impact their conditions through democratic processes. Finally, Part IV points to alternatives to hopelessness currently proposed by prisoner advocates that address factors that lead to imprisonment and that keep people imprisoned. I touch on the historical example of the temporary reforms and changes in Massa­ chusetts correctional policy, which were spurred in the early 1970s in large part by reformer John Boone and in the solutions that the Massachusetts prisoners enacted themselves briefly at Walpole.

II. U.S. SENTENCING SEVERITY The United States has the highest incarceration rate m the

32 I use invisibilization to capture how the prison system, its physical structure, its legal and social ramifications, and the culture surrounding it, render imprisoned peo­ ple silent, socially dead, and without a place as citizens in a democratic process. "Criminals" figure widely in political discourse, but as I describe later, people in prison, or those formerly imprisoned, often only have a small role in shaping public perceptions of their lives and conditions of imprisonment, or in political debates about policies affecting them. Invisibilization has been used in other contexts to de­ scribe the public silence around the views and concerns of marginalized groups and the disappearing of their perspectives and even their existence in historical conceptu­ alizations and political decision-making. See Alexandra Dobrowolsky, Interrogating 'In­ visibilization' and 'Jnstrumentalization ': Women and Current Citizenship Trends in Canada, 12 CmzENSHIP STUDIES 465, 465-66 (2008) (using invisibilization to describe how Ca­ nadian women and issues like feminization of poverty disappear from political dis­ course where the state's primary goal is "the enhancement of market forces in a competitive global economy ...."); Gaston Gordillo & Silvia Hirsch, Indigenous Strug­ g/,es and Contested Identities in Argentina: Histories ofInvisibilization and Reemergence, 8 J. OF LATIN AM. ANTHROPOLOGY 4, 4-6 (2003) (describing invisibilization as the lack of ac­ knowledgment of Indigenous people's existence at the Argentinean nation-state's for­ mation, in Argentinean history books, and in political decision-making, and juxtaposing this with Indigenous groups' struggle for visibilization in part through state recognition). 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 155 world, with approximately 2.3 million people behind bars, repre­ senting 756 people for every 100,000.33 By way of companson, this is more than 6.5 times higher than the Canadian imprisonment rate.34 Prison overcrowding is a serious problem in jurisdictions throughout the United States,35 resulting in hazardous and inhu­ mane conditions for those imprisoned. The Supreme Court re­ cently upheld a court-ordered reduction of California's prison population, which will lower it from close to twice the prison sys­ tem's design capacity to 137.5% of capacity. The Court found that the current degree of overcrowding created conditions horrific enough that they violated the Eighth Amendment.36 It further found that overcrowding caused grossly inadequate mental health and medical care, which resulted in preventable deaths, a suicide rate of close to one per week, and an environment that supported the rapid spread of disease among prisoners including antibiotic­ resistant staph infections.37 As a result of lengthy mandated sentences under both the drug war and a general "tough-on-crime" approach, the national average prison population increased six times over from 1972 to 2003.38 The number of people incarcerated for drug offenses in­ creased by over 11 times between 1980 and 2003, 39 and the total number of people held in state prisons grew by 70% from 1972 to 2008.40 Referred to even in mainstream Western European politi­ cal circles as an "inexplicable deformity,"41 the U.S. prison system stands out globally for its harsh sentencing lengths. There is little judicial check on elected politicans' temptation to legislate in­ creased criminal sentences for easy political gain, as the Supreme Court traditionally will not make proportionality determinations in

33 Rov WALMSLEY, lNT'L CTR. FOR PRISON STuorns, WORLD PRISON PoruLATION L1sT 1, 3 (8th ed. 2009), available at http://www.prisonstudies.org/info/downloads/wppl- 8th_41.pdf. 34 Id. at 3. 35 MACKENZIE, supra note 15, at 20. 36 Brown v. Plata, 131 S. Ct. 1910, 1910 (2011). 37 Id. at 1923-25, 1933 n.7. 38 NELLIS & KING, supra note 7, at 1. 39 MARC MAUER, THE SENTENCING PROJECT, COMPARATIVE INTERNATIONAL RATES OF INCARCERATION 7 (2003), available at http:/ /www.sentencingproject.org/doc/publica tions/ inc_comparative_in ti. pdf. 40 PEW CTR. ON THE STATES, PRISON COUNT 2010: STATE POPULATION DECLINES FOR THE FIRST TIME IN 38 YEARS 1 (2010), http://www.pewtrusts.org/uploadedFiles/ Prison_Count_2010.pdf. 41 MAUER, supra note 39, at 11. 156 CUNY LAW REVIEW [Vol. 15:149 challenges to legislatively imposed sentence lengths.42 Only once prior, in Solem v. Helm, has the Supreme Court found the length of a prison sentence excessive.43 Because of mandatory sentencing and other policies, prisoners often cannot find relief in parole.44 As of 1987, parole was ended in the federal system45 and by 1990, 14 other states had abolished it as well.46 Observers note that where it exists, the parole process is overwhelmingly politicized.47 Even where eligibility is built into a life sentence it "does not equate to release and, owing to the reticence of review boards and governors, it has become increasingly difficult for persons serving a life sen­ tence to be released on parole."48 While race as a significant factor in imprisonment is by no means solely a U.S. phenomenon,49 the role of racism in the foun­ dation of today's prison system and in the expanded use of polic­ ing and imprisonment as social policy in this country cannot be ignored. Many prison scholars trace the racial disparity and capital­ ist exploitation permeating the criminal system back to the social and economic control that powerful corporations and White land­ owners sought to keep over the free Black population in the Civil War era. Similar to fugitive slave codes, "Black codes" enacted both prior to and after the Civil War imposed impossible restrictions on freed African-Americans. Innumerable new petty "crimes" were created that were enforced by harsh prison sentences and forced labor.50 One historian notes that the post-war courtroom became "an ideal place to exact racial retribution" and that in addition to facing a new set of criminal codes directed solely at them, African-

42 Jeffrey L. Fisher, The Exxon Valdez Case and Regularizing Punishment, 26 Ai.AsKA L. REv. 1, 36-37 (2009). 43 Solem v. Helm, 463 U.S. 277, 303 (1983) (finding LWOP sentence for passing bad check violated Eighth Amendment for being grossly disproportionate to crime in question). 44 NELLIS & KING, supra note 7, at 1. 45 Id. at 5 n.3. 46 MAcKENZIE, supra note 15, at 18. 47 NELLIS & KING, supra note 7, at 26-27. 48 Id. at 6. 49 MAUER, supra note 39, at 11 (noting similar racial disparity for imprisonment in Australia, Canada, England, and Wales). 50 Crimes punishable by forced labor included attending a "nightly and disorderly meeting," vagrancy, inability to pay fines, insulting gestures or acts, and violating cur­ fews that were enforced solely against the Black community. See, e.g., DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 1-2 (2008); ScoTT CHRISTIANSON, WITH Lrn­ ER'IY FOR SOME: 500YEARS OF IMPRISONMENT IN AMERICA 171-72 (1998); ANGELA DAVIS, ARE PRISONS OssoLETE? 28-36 (2003); CONSTANCE McLAUGHLIN GREEN, THE SECRET Cl1Y: A HISTORY OF RACE RELATIONS IN THE NATION'S CAPITAL 18-19 (1967). 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 157

Americans often faced imprisonment under fabricated charges.51 The convict lease system and the population of African-Americans subject to penal servitude expanded dramatically following the Civil War.52 The number of imprisoned African-Americans far out­ paced the White convict population. Additionally, prisons became overcrowded and prison populations changed from being prima­ rily White to being primarily Black.53 Convict laborers toiled on plantations, railroads, in mines,54 and, for corporations like U.S. Steel,55 under conditions described as "worse than slavery."56 Today, prisons continue to be sites of capitalist exploitation57 and racial disparity. People of color are over-represented in the criminal justice system at all stages. African-Americans are more likely than Whites to be sentenced to incarceration for similar felo­ nies and are also given lengthier sentences.58 Studies suggest ra-

51 DAVIS, supra note 50, at 33-34 (2003) (citing MARY ANN CURTIN, BIACK PRISON- ERS AND THEIR WORLD, ALABAMA 1865-1900 44 (2000)). 52 CHRISTIANSON, supra note 50, at 171-74. 53 DAVIS, supra note 50, at 29. 54 Id. at 32, 34-35. 55 BLACKMON, supra note 50, at 3. 56 See generally DAVID M. OsHINKSY, "WORSE THAN SLAVERY": PARCHMAN FARM AND THE ORDEAL OF JrM CRow JusTICE (1996). 57 Certain companies, such as Corrections Corporation of America and Geo Group, operate private prisons. See generally Judith Greene, Banking on the Prison Boom, in PRISON PROFITEERS: WHo MAKES MONEY OFF MAss INCARCERATION 3 (Tara Herivel & Paul Wright eds., 2007). Private industry profits from the incarceration and social control systems in myriad other ways, including by suppling the contracts for numer­ ous prison services such as medical care. In order to maximize profits, private compa­ nies that provide medical services often cut corners, creating cruelly low healthcare standards in prisons that can and do result in deaths of inmates. See generally Wil S. Hylton, Sick on the Inside: Correctional HMOs and the Coming Prison Plague, in PRISON PROFITEERS: WHO MAKES MoN!cY OFF MAss INCARCERATION 179 (Tara Herivel & Paul Wright eds., 2007). In some states private probation supervision companies are per­ mitted to charge additional fees that probationers must pay or face imprisonment for failure to pay. Kirsten D. Levingston, Making the "Bad Guy" Pay: Growing Use of Cost Shifting as Economic Sanction, in PRISON PROFITEERS: WHo MAKES MONEY OFF MAss IN­ CARCERATION 52, 70-72 (Tara Herivel & Paul Wright eds., 2007). Private telecommu­ nications companies offer states extraordinary kickbacks in order to receive lucrative contracts for long-distance and collect calls from prisons and then pass the exorbitant costs to the inmates and their loved ones. Ben Iddings, The Big Disconnect: Will Anyone Answer the Call to Lower Excessive Prisoner Telephone Rates? 8 N.C. J. LAw & TECH. 159, 160-62 (2006). Additionally, prisons supply corporations with a large pool of workers paid far below minimum wage-sometimes as little as 23 cents an hour-without nor­ mal labor standards and protections for benefits and rights. Ian Urbina, Prison Labor Fuels America's War Machine, in PRISON PROFITEERS: WHo MAKEs MONEY OFF MAss IN­ CARCERATION 109, 110-11 (Tara Herivel & Paul Wright eds., 2007). 58 CHRISTOPHER HARTNEY & LrNH VuoNG, NAT'L CouNCIL ON CRIME AND DELINQ., CREATED EQUAL: RACIAL AND ETHNIC D1sPARmEs IN THE U.S. CRIMINALJusTICE SYSTEM 2, 12 (2009), availabl,e at http:/ /nccd-crc.issuelab.org/research/O/program/Reports/ filter/title (click on "Download" below article title). 158 CUNY IA W REVIEW [Vol. 15:149 cism had an important role in the development of a U.S. drug policy that emphasized penal sanctions in lieu of a public health response; this approach flowed from inaccurate public associations of crime and drug abuse with communities of color.59 The preva­ lence of skewed "crime news story scripts" in mainstream media that focus on violent crime and depict African-Americans as the primary perpetrators have been linked to support among Whites for "tough" approaches to crime in general. 60 There is also some evidence that police act on the implicit racism permeating society as a whole. A study of drug arrests in Seattle suggested that police fail to see Whites as suspected drug users and deliverers, and thus arrest them at rates disproportionately lower than their actual par­ ticipation in the drug trade. 61 Comparatively, police arrest African­ American and Latino users and deliverers at rates far higher than their actual participation.62 A Chicago study of youth arrests, con­ trolling for various socio-economic factors at the family and neigh­ borhood levels, found that racial disparity in arrests still remained.63 Another study, seeking to explain vast racial disparities in Wisconsin's imprisonment rates, found evidence suggesting "high levels of policing and surveillance of the African-American population."64 Racially disparate law enforcement patterns and ar­ rest rates for low-level offenses and for drug crimes contributed heavily to Wisconsin's imprisonment disparities.65 Nationally, the

59 HUMAN RIGHTS WATCH, TARGETING BLACKS: DRUG LAw ENFORCEMENT AND RAcE IN THE UNITED STATES 4-5 (2008), available at http://www.hrw.org/sites/default/ files/ reports/ us0508_1.pdf. 60 Franklin D. Gilliam Jr., Nicholas A. Valentino, & Matthew N. Beckmann, Where You Live and What You Watch: The Impact of Racial Proximity and Local Television News on Attitudes About Race and Crime, 55 PoL. REs. Q. 755, 758-59 (2002). Media depiction of cocaine use changed as crack cocaine came to be used in impoverished communities. The media narrative-which in the early 1980s focused on White users, on elements of the drug treatment industry and on the potential for recovery-by the mid-1980s featured law enforcement officials underscoring policing and imprisonment ap­ proaches to the drug, and people of color figuring as the criminalized drug users and dealers. Katherine Beckett, Kris Nyrop, Lori Pfingst, & Melissa Bowen, Drug Use, Drug Possession Arrests, and the Qp,estion of Race: Lessons from Seattle, 52 Soc. PROBS. 419, 421 (2005). 61 Katherine Beckett, Kris Nyrop, & Lori Pfingst, Race, Drugs, and Policing: Under­ standing Disparities in Drug Delivery Arrests, 44 CRIMINOLOGY 105, 108, 117-22 (2006). 62 Id. 63 David S. Kirk, The Neighborhood Context of Racial and.Ethnic Disparities in Arrest, 45 DEMOGRAPHY 55, 71-74 (2008). 64 PAMElA OLIVER &JAMESYOCOM, INST. FOR RESEARCH ON POVERTY, RACIAL DISPAR­ ITTF:S IN CruMINALjusTICE: MADISON AND DANE CouNTY IN CONTEXT 28 (2002), available at http:/ /www.irp.wisc.edu/publications/ dps/pdfs/ dpl 25702.pdf. 65 Id. at 28-31. 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 159

incarceration-focused "drug war" initiated in the early l 980s66 spe­ cifically targeted communities of color, and ultimately resulted in disproportionate numbers of people of color being sent to prison, despite the fact that illicit drug use was proportionately nearly equal among different racial groups in all communities.67 One metric of the harshness of U.S. criminal justice system, and a key factor in its outsized prison population, is the increasing number of defendants sentenced to life imprisonment. The amount of people serving a life sentence, not including those sen­ tenced to a term of years equivalent to or greater than a natural life before becoming parole eligible, increased more than four times from approximately 34,000 in 1984 to 140,610 in 2008.68 LWOP sentences increased by 22% in just five years from 2003 to 2008. 69 The Supreme Court has noted that a LWOP sentence is the "sec­ ond most severe penalty permitted by law."70 The Court compared the severity of LWOP sentences to that of death sentences: [L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable.71 As with policing and imprisonment as a whole, communities of color are the most heavily affected by life-sentencing practices. African-Americans comprise almost half the life-sentenced popula­ tion nationally, though the percentage of African-Americans in the general prison population is 37.5%.72 This reflects an overall trend across the criminal system, where the harsher the sentence in ques­ tion, the more concentrated the number of sentenced people of color.73 Such extensive and severe rates of imprisonment impact communities outside of the prisons. As of 2000, an estimated 1.5 million children were growing up without the emotional or finan-

66 HUMAN RIGHTS WATCH, supra note 59, at 9 n.15 (noting that drug policy switched from treatment to punishment after the 1970s, which federal drug budgets consistently reflected). 67 Id. at 14, 41-46. 68 NELLIS & KING, supra note 7, at 7. 69 Id. at 3. 70 Graham v. Florida, 130 S. Ct. 2011, 2027 (2010) (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)). 71 Id. at 2027. 72 NELLIS & KING, supra note 7, at 11, 26. TheJLWOP sentence was disproportion­ ately applied to youth of color. African-American youth comprised 56.1 % of the juveniles sentenced to life without parole as of 2008. 73 Id. at 14. 160 CUNY LAW REVIEW [Vol. 15:149

cial support of a parent because that parent was imprisoned, with the number reaching one out of every 14 among African-American children. 74 When pronouncing the JLWOP sentence at issue in Graham, the trial court judge said to Mr. Graham, who was born to crack­ addicted parents and began drinking alcohol and smoking at age nine,75 "[y]ou had, as far as I can tell, you have quite a family struc­ ture. You had a lot of people who wanted to try and help you 76 •••. " Chief Justice Roberts noted in his concurrence that "Gra­ ham's sentence was far more severe than that imposed for similar violations of Florida law, even without taking juvenile status into account."77 He pointed out that in Florida, the average adult sentences for burglary or robbery are "less than five and less than ten years, respectively,"78 and juvenile sentences are even shorter. He wrote, "Graham's life without parole sentence was far more se­ vere than the average sentence imposed on those convicted of murder or manslaughter, who typically receive under 25 years in prison."79 While Roberts highlighted these facts in order to argue against the majority's categorical standard protecting youth from LWOP sentences, and to call for a case-by-case "narrow proportion­ ality" standard for deciding if a non-capital sentence violates the Eighth Amendment,80 these facts undercut his argument. He criti­ qued the majority decision for emphasizing that a "clear line is nec­ essary to prevent the possibility that life without parole sentences will be imposed on juvenile non-homicide offenders who are not sufficiently culpable to merit that punishment."81 Yet the renegade actions on the part of the trial court judge that he describes, which could easily be repeated or followed, point to the merits of a cate­ gorical rule that would prevent this type of action by judges. The racial implications of the decision, unspoken by the Court, add weight to the majority opinion. As noted earlier, the concentration of sentenced people of color becomes greater and even more out of proportion to their percentage in the general population, the harsher the punishment in question.82 It is rele-

74 MAUER, supra note 39, at 14-15. 75 Graham, 130 S. Ct. at. 2018. 76 Id. at 2019. 77 Id. at 2040 (Roberts, CJ., concurring). 78 Id. 79 Id. at 2041 (Roberts, CJ., concurring). 80 Id. at 2039, 2041 (Roberts, CJ., concurring). 81 Id. at 2042 (Roberts, CJ., concurring). 82 NELLIS & KING, supra note 7, at 14. 2011) GRAHAM, MILLER, AND THE RIGHT TO HOPE 161 vant to note that the petitioner in Graham is African-American, and as Chief Justice Roberts pointed out, was treated far more severely by the sentencing judge than most people similarly convicted would be.83 The undeniable role of race and racism in sentencing decisions84 further demonstrates that the majority's argument for standards and a clear line with regard to harsh sentencing practices has merit. Yet it also underscores broader problems raised by Jus­ tices Thomas and Alito in their dissents,85 such as the fact that this decision does not explicitly protect juveniles (and protects no adults) from extremely lengthy term-of-years sentences, including those equivalent to a life. Had the trial court sentenced Graham to 30 or 40 years imprisonment, which is still far greater than the aver­ age sentence for his convictions, the case may never have reached the Court despite the unfairness and the destructive impacts of such a long sentence on a youth. Thus, what is called for is systemic change far greater than what the Court provides. As described later, grassroots organizations and other advocates have long rec­ ognized this. They are committed to creating the necessary broad social movement, not only to hold officials accountable for racial disparity in the criminal system, but also to hold them accountable for the destructive impacts of reliance on imprisonment in general.

Ill. DENYING EDUCATION, ENCOURAGING RECIDIVISM Along with increased imprisonment rates and lengthier sentences, a lack of access to educational and other rehabilitative programming in prisons can create hopeless prospects for people convicted under the U.S. criminal system. Following the termina­ tion of Federal Pell Grant college funding for prisoners in 1994, there was a dramatic drop in postsecondary education programs and enrollment at prisons, with the number of states offering col­ lege programs declining from 37 to 21by1997, and less than 2% of the national prison population enrolled in them. 86 In the years fol­ lowing the loss of Pell grants, a significant number of other rehabil-

83 Graham, 130 S. Ct. at 2040-41 (Roberts, CJ., concurring). 84 See AsHLEY NELLIS, JUDY GREENE, & MARC MAUER, THE SENTENCING PROJECT, RE­ DUCING RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM 3, 14 (2d ed. 2008). 85 Graham, 130 S. Ct. at 2052 n.11 (Thomas, J., dissenting) ("[I]t seems odd that the Court counts only those juveniles sentenced to life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years' imprisonment)."); Id. at 2058 (Alito,J., dissenting) ("Nothing in the Court's opinion affects the imposition of a sentence to a term of years without the possibility of parole. Indeed, petitioner conceded at oral argument that a sentence of as much as 40 years without the possibility of parole 'probably' would be constitutional."). 86 WENDY ERISMAN & JEANNE BAYER CoNTARDO, THE INST. FOR HIGHER EDuc. PoL- 162 CUNY LAW REVIEW [Vol. 15:149

itative and educational programs in prisons were cut, including vocational and technical training and even some secondary schools as imprisonment increased and state and federal funding decreased. 87 While prison administrators have drawn on state funding and federal block grants directed at post-secondary education for incar­ cerated youth to continue post-secondary programming at many prisons,88 a 2003-2004 survey by The Institute for Higher Educa­ tion Policy found that college courses were available to around just 5% of prisoners, and that actual rates of completion were low. 89 The majority of incarcerated students taking college-level courses and receiving certificates were enrolled in vocational certificate programs for college credit, and there were not significant num­ bers of students earning college or even associates level degrees.90 While the primary barrier to enrollment in college-level courses was a lack of funding, according to the survey respondents, other barriers to enrollment and completion included the need for sub­ stantial academic remediation among potential students, prohibi­ tive security protocols that create logistical barriers, overcrowding resulting in transfers that disrupt students' coursework, and a lack of support for the programs among policymakers.91 Tragically, the lack of access to adequate education in prisons represents a continued denial of education to a population that overwhelmingly did not gain adequate educational services prior to incarceration. State and federal prisoners are significantly under­ educated compared to the general population. A larger percentage of state and federal prisoners lack a General Educational Develop­ ment (GED) or high school diploma as compared to the house­ hold population,92 and one study found that of those imprisoned who had earned a GED by 1997, at least 70% obtained it while in prison.93 While 51 % of the general household population as of

ICY, LEARNING TO REDUCE RECIDIVISM: A FIFIY STATE ANALYSIS OF POSTSECONDARY COR­ RECTIONAL EDUCATIONAL POLICY X (2005). 87 Eric Blumenson & Eva S. Nilsen, How to Construct an Underclass, or How the War on Drugs Became a War on Education, 6 J. GENDER RAcE & JusT. 61, 75 n.71 (2002). 88 ERISMAN & CoNTARDO, supra note 86, at xi. 89 Id. at vi. 90 Id. 91 Id. at vi-vii. 92 As of 1997 only 60% of state prisoners and 73% of federal prisoners had a GED or high school diploma compared to 82% of the general U.S. population. Id. at 4. 93 Id. In 1991 the Federal Bureau of Prisons required that prisoners receive educa­ tion adequate to earn a GED or a minimum of 240 hours of literacy instruction, whichever was achieved first. Emily A. Whitney, Correctional Rehabilitation Programs and 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 163

2003 had completed some post-secondary education, only 22% of imprisoned people had.94 The rate of diagnosed learning disabili­ ties was higher in prisons as of 2003, at 17% versus 6% in the adult household population.95 Illiteracy rates are also higher among im­ prisoned people than among the general adult household popula­ tion, with one study finding 56% of prisoners at basic or below basic literacy levels for prose and 50% in those two bottom catego­ ries for documents, versus 43% and 34% respectively for house­ hold populations.96 Another report estimates that 70% of federal and state prisoners are functionally illiterate or read below an eighth grade level.97 One study also found that the rate of language impairment disorders, including difficulty understanding spoken language, to be four to five times higher among imprisoned adults than in the general population,98 and that up to 84% of institution­ alized juveniles have severe communication difficulties.99 In hopeful contrast to these bleak statistics are the success rates that literacy and higher education programs can have in preventing people from returning to prison. Recidivism dramati­ cally drops among formerly imprisoned people who have partici­ pated in higher education while in prison, averaging about 46% lower than recidivism rates of those formerly imprisoned people who have not participated in post-secondary classes, according to one analysis. 100 Another study found that while programming like GED courses or vocational training is helpful, post-secondary edu­ cation is even more effective, reducing chances of re-incarceration by 62%.101 Evidence also shows that post-secondary level education significantly increases employment chances for formerly impris­ oned people.102 Other opportunity-providing programs for prisoners, includ- the Adoption of International Standards, 18 TRANSNAT'L L. & CoNTEMP. PROBS. 777, 787-88, 788 n.77 (2009). 94 ELIZABETH GREENBERG, ERIC DuNLEAW, MARK KUTNER, & SHEIDA WHITE, NAT'L CTR. FOR EDUC. STATISTICS, LITERACY BEHIND BARS: RESULTS FROM THE 2003 NATIONAL AssESSMENT OF ADULT LITERACY PRISON SURVEY 27 (2007). 95 Id. 96 Id. at 29. 97 ARK. LITERACY CouNCIL, AnuLT ILLITERACY: ITs CosT TO Us ALL 2 (2005). 98 Michele La Vigne & Gregory J. Van Rybroek, Breakdoum in the Language 7-one: The Prevalence of Language Impairments Among]uveni/,e and Adult Offenders and R'hy it Matters, 15 U.C. DAVIS]. Juv. L. & PoL'v. 37 (2011). 99 Id. at 44 n.12. 100 ERISMAN & CoNTARDO, supra note 86, at 9. 101 Id. 102 OPEN SOCIETY INST., EDUCATION AS CRIME PREVENTION 7-8 (1997), availabl,e at http:/ /www. prison policy .org/ scans/ research_brief_2. pdf. 164 CUNY LAW REVIEW [Vol. 15:149 ing furlough and work release programs, have also seen cuts in the context of the "get tough" movement.103 Ironically, in deciding if a prisoner qualifies for parole, parole boards often look to whether that person has completed certain programs that will help him or her secure income, including education and job training. They also look to whether he or she has succeeded in a work release program. Having a viable job prospect outside the prison, which is often established through work release programs that allow impris­ oned people to make contacts with community members, also sup­ ports a potential parolee's case. In terms of both increasing prisoners' prospects for liberation and for a successful, permanent exit from prison, it is clear that education and other programming that bring prisoners into contact with a broad community are im­ portant and should be expanded.

IV. INCOMMUNICADO & INVISIBLE: IMPRISONMENT AS EXILE Often cut off from communicating even with close family members, and blocked from media cameras and reporters, impris­ oned people are largely walled out of public consciousness. This invisibilization has disturbing implications both for imprisoned people's ability to rebuild their lives and for the extent to which human rights abuses can happen inside of prisons with little to no consequences for those responsible. One key way that communica­ tion with loved ones outside of prison is made difficult for impris­ oned people is through excessive phone charges. One investigation found that just one hour-long collect call per week can cost the family of an imprisoned person nearly $300 a month.104 Because prisons are frequently located in remote rural areas, far from the primarily impoverished urban communities where prisoners' friends and loved ones live, 105 and because states often send prisoners to out-of-state private prisons, calls between prisoners and their family and friends are usually long-distance and collect.106 By the mid-l 990s, almost all prisons took commission payments, or "kickbacks," from the profits of high-cost prison phone charges, with the commission running up to 60% in some

103 For example, restrictions to New York's Temporary Release Program enacted in the mid-1990s caused over a 90% decline in inmate participation. Alan Rosenthal & Patricia Warth, In Search of a Workable Sentencing Mode~ ATTICUS, Winter 2011, at 11. 104 MEDIA JUSTICE FUND, CRIMINAL CHARGES: EXCESSIVE PRISON PHONE RATES TAKE A TOLL ON INNOCENT FAMILIES 2 (2009), available at https://org2.democracyinaction. org/ o/6587/images/MJFPrisonPhones-final. pdf. 105 3 MICHAEL B. MuSHLIN, RIGHTS OF PRISONERS§ 13:1 (4th ed. 2009). I06 MEnIAjusr1cE FUND, supra note 104. 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 165 states. 107 Because of grassroots organizing, the number of states taking these kickbacks has decreased, but the problem remains, and the cost is still extremely high for interstate collect calls from all prisons. 108 Imprisoned people primarily come from impover­ ished backgrounds, 109 and for many of their families, the exploitive costs of communicating via phone may be too great to bear. For those imprisoned and their family members who may have limited literacy skills, including the young children of imprisoned people, letters would likely be a difficult medium. Further, letters do not provide the immediacy and emotional connection of personal visits and phone calls. Visiting a loved one in a prison located far away from home often also proves too expensive and is made further difficult through limits on visiting times that restrict opportunities for working people to visit their loved ones.U0 The effects of marooning imprisoned people through these limitations on communication can be particularly dramatic for their children. One former prisoner in Washington, D.C. de­ scribed what happened to his family when he was put on one of many "loads" of prisoners that the Department of Corrections sent far from the D.C. area to prisons across the country. rn Imprisoned at Lorton, Virginia since 1983, and jailed in D.C. prior to that, he had maintained close ties to his family via phone conversations and personal visits, and supported his children in their schoolwork over the phone and during visits. 112 For the cost of a city bus ride, his family would visit him every Sunday.113 In 1988, he was sent without warning to the prison at Walla Walla, Washington:114 "It was the only time that I had been separated to that magnitude with my

107 Id. 108 Id. 109 A 1997 study found the reported unemployment rate of prisoners in the month prior to their arrest was over six times the average unemployment rate in the United States. Nine percent were homeless in that month while an estimated 1 % of the gen­ eral population experienced homelessness at some point within a year. For those with income, 43% reported earnings of less than $9,600 a year. Among African-American imprisoned people, the rates of pre-arrest unemployment and poverty were even higher. ERISMAN & CoNTARDO, supra note 86, at 2-3. 11 o MusHLIN, supra note 105. 111 This event happened prior to the final closure of Lorton Reformatory in Vir­ ginia, the prison where most people sentenced to prison terms in Washington, D.C. were sent. After closing the prison, the Department of Corrections began sending D.C. residents serving prison sentences to prisons scattered across the country in places as far away as Youngstown, Ohio and Walla Walla, Washington. 112 Interview with formerly incarcerated person #1, Wash., D.C. (Oct. 10-11 2006 & Nov. 2, 2006) (on file with author). 113 Id. 114 Id. 166 CUNY LAW REVIEW [Vol. 15:149 kids," he said, "[a]nd my kids' grades dropped. One of my sons got to acting crazy. He decided he wanted to hang out."115 Studies suggest that for children, having a parent in prison can lead to emotional, mental, and behavioral problems, 116 and that the consequences of this separation include a risk of involve­ ment in criminal behavior and even imprisonment.117 While re­ search is limited, there is evidence that the ability to have quality visits with their incarcerated parent, particularly with contact, and to maintain connection with them improves outcomes for youth.118 There is strong evidence that imprisoned peoples' ability to main­ tain a connection with family members and loved ones encourages rehabilitation and reduces recidivism.11 9 Another way prisoners are made invisible to the public, and thus dehumanized, is through the news media's lack of access to prisons and jails. Supreme Court cases decided in the early 1970s granted prison authorities wide latitude to deny journalists access to interview prisoners, and to prohibit media outlets from filming or photographing inside of prisons.120 In Pell v. Procunier, the Su­ preme Court held constitutional the denial of non-written personal contact between prisoners and the media, upholding a policy that, among other restrictions, prohibited reporters from interviewing prisoners who were not chosen by guards for interviews through the prison's randomized process for selecting interviewees, or outside of a guided tour.121 The Court established an "alternative means" test and found that the policy withstood the test, in part, because prisoners could theoretically correspond through "uncen­ sored" mail with media.122 Of course, for prisoners with limited lit­ eracy skills, this has little meaning. Furthermore, the definition of

115 Id. 116 Elise Zealand, Protecting the Ties that Bind from Behind Bars, 31 CoLUM.j.L. & Soc. PROBS. 247, 277-78 (1998). 117 Id. at 278; Nkechi Taifa & Catherine Beane, Integrative Solutions to Interrelated Issues: A Multidisciplinary Look Behind the Cyde of Incarceration, 3 HARV. L. & PoL'Y REv. 283, 289 (2009). 118 Benjamin Guthrie Stewart, "When Should a Court Order Visitation Between a Child and an Incarcerated Parent?, 9 U. Cm. L. ScH. RouNDTABLE 165, 172-74 (2002). l 19 See generally William D. Bales & Daniel P. Mears, Inmate Social Ties and the Transi­ tion to Society: Does Visitation &duce &cidivism ?, 45 J. REs. CRIME & DELINQ. 287 ( 2008). 120 Pell v. Procunier, 417 U.S. 817, 827-28, 834-35 (1974) (finding that policy preventing non-written personal contact between imprisoned people and reporters was constitutional); Saxbe v. Wash. Post Co., 417 U.S. 843, 850 (1974) (holding that Federal Bureau of Prisons policy prohibiting personal interviews between reporters and prisoners in federal medium and maximum security prisons did not violate First Amendment). 121 Pel~ 417 U.S. at 830. 122 Id. at 824. 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 167

"uncensored mail" has been interpreted to include outgoing pris­ oners' mail that is subject to inspection and restriction by prison officials, including for content of the letter,123 which would neces­ sarily limit what prisoners can communicate about prison conditions. Other states have banned in-person media interviews of pris­ oners altogether.124 In states with fewer restrictions on media ac­ cess to prisons, more liberal laws prove meaningless and are readily ignored by unaccountable prison administrators.125 As one Repub­ lican Assemblyman in California, critiquing California's severe re­ strictions on media access to prisoners, pointed out: "[f] ree societies don't hold prisoners incommunicado."126 And yet, the combined restrictions on visitors generally, and on the media spe­ cifically with regard to accessing prisons, mean that prisoners' im­ mediate perspectives and images of people imprisoned rarely reach the public. A survey of local news articles about prisons in Washington, D.C. over the past several decades exemplifies a shift in the main­ stream media narrative toward denying prisoners' humanity by si­ lencing them and making them invisible. Whether as a result of journalists' decreased access to prisons or a change in overall edito­ rial sentiment and policy, both the images and the voices of prison­ ers all but disappeared from print media stories a few years after the 1971 Attica prison uprising. In the time immediately following that uprising, when D.C. prisoners staged uprisings or demonstra-

l23 Alana M. Sitterly, Silencing Death Row Inmates: How Hammer v. Ashcroft Needs a Rational Basis for Its Rational Basis, 21 GEO. MAsoN U. C.R. LJ. 323, 345-46 (2011) (pointing out that in referring to the "alternative communication rationale" from Pell to uphold restrictions on access to media by prisoners in its decision in Hammer v. Ashcroft (Hammer II), 570 F.3d 798, 804 (7th Cir. 2009), the Seventh Circuit glossed over the fact that all outgoing inmate mail was subject to inspection, and that the prison-imposed content restrictions prohibited references to other inmates in written correspondence or via phone). This runs counter to the Supreme Court's justification in Pel4 which suggested that prisoners with limited literacy skills could communicate to the press through other prisoners with greater literacy skills, thus justifying restric­ tions on in-person interviews. Pell, 417 U.S. at 827-28 n.5. Pell also specifically protects content ofletters in noting that a communication restriction is appropriate "[s]o long as this restriction operates in a neutral fashion, without regard to the content of ex­ pression[.]" Id. at 828. 124 Don Thompson, More States Restricting Media Access to Inmates, Survey Finds, ST. AucusTINE REcoRD, Dec. 11, 2000, http:/ /staugustine.com/stories/121000/nat_l210 000025 .sh tml. 125 CHRISTINA RATHBONE, A WORLD APART: WOMEN, PRISON, AND LIFE BEHIND BARS xii-xiii (2006). 126 Davis Vetoes Measure to Overturn Interview Restrictions on Inmates, METRO. NEWS ENTER., Sept. 9, 1999, at 9. 168 CUNY IA W REVIEW [Vol. 15:149 tions, newspapers showed images of prisoners holding protest signs, with their messages clear, and the accompanying stories quoting both prisoners and prison system administrators. 127 In an article on a 1972 prisoners' strike, Washington Post reporter William Claiborne described a tour of the maximum security section of prison at Lorton, guided by a prisoner who told reporters he was beaten by guards while handcuffed when he was transferred there from medium security: About 15 reporters and photographers then toured the maxi­ mum security area ... observing tiny windowless cells in a tier that the inmates call the "hole," and the administration calls the "control section." They talked with a number of inmates who said they had been confined for months on a 24 hour a day "deadlock" without having faced formal disciplinary board charges. "Deadlock" prisoners leave their cells only twice a week .... Members of the grievance committee showed visitors a cell in which an apparently mentally disturbed man cowered under his bunk. The inmates said the man had rarely emerged from under the bed in 17 months.128 By the mid-1980s, the media reduced the use of photographs, pris­ oner quotations, 129 and for the most part, prison guard quotations, in their coverage of prison demonstrations.130 The only perspec-

127 For example, an article in The Washington Post on a September 1972 demonstra­ tion at Lorton prison, features direct quotes from prisoners and a photograph of maximum security prisoner Van LaGon standing in front of a bank of microphones, delivering his message to press and prison officials, while a light rain falls on a protest of over 1,000 Lorton prisoners massed in the main courtyard. William L. Claiborne, Prisoners at Lorton Win &forms, WASH. PosT, Sept. 28, 1972, at Al. This peaceful strike received about four days' worth of editorials and local news coverage. Much of the coverage shows prisoners holding signs and intently watching negotiations. See Wil­ liam L. Claiborne, Inmates Give Lorton Aides 12 Demands, WASH. PosT, Sept. 26, 1972, at Cl; William Raspberry, The Problem at Lorton, WASH. PosT, Sept. 27, 1972, at A27; Wil­ liam Raspberry, Winning 'War' at Lorton, WASH. PosT, Sept. 29, 1972, at A27. 128 Claiborne, Prisoners at Lorton, supra, note 127, at Al. 129 See, e.g., Alma Guillermoprieto, Inmates' Strike Halts Lorton Manufacturing-Anger over Delay in Pay, Food Supflements Blamed, WASH. PosT, Aug. 24, 1983, at C4 (reporting a strike at Lorton's Central Facility that solely uses the words of the D.C. Department of Corrections spokesman as its source); Eric Pianin, Prisoners Stage Protest at Lorton, WASH. PosT, Mar. 12, 1985, at B4 (reporting a protest by 170 maximum security in­ mates that included no quotes by imprisoned people). In a short break with the gen­ eral pattern of not publishing quotes by imprisoned people, The Washington Post published a short series about Lorton in February 1983 that included interviews with prisoners, guards, and other staff. See Edward D. Sargent, A Prisoner, ajoumalist: Two Lives, Two &ads, WASH. PosT, Feb. 14, 1983, at Al. 130 Apparently, guards primarily expressed anger when administrators acceded to some demands by prison demonstrators, but a small number expressed some sympa­ thy with the prisoners. Journalist Raul Ramirez described one interview with a correc­ tional officer following a prisoner demonstration: "Officer Ronald Savoy claimed that 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 169 tives print journalists quoted on prison issues, whether those stem­ ming from uprisings or otherwise, are by prison system administrators, lawyers, and politicians.131 The lack of prisoners as everyday interview subjects represents a form of presumed "narrative incompetence" on the part of pris­ oners.132 The underlying message is that imprisonment renders one incapable of the human abilities to reflect, to step outside one­ self and provide analysis that accounts for an array of perspectives while honestly portraying one's own conditions. As one imprisoned person observed, "prisoners, although they understand what is wrong with the system better than any criminologist, judge, cop, or outsider, have the credibility of elves."133 This denial of credibility is also convenient for corrections offi­ cials seeking to avoid accountability for human rights violations oc­ curring in prisons including: the use of physical violence against prisoners; purposeful denial of prisoner medical care; rampant misuse of stun weapons, chemical sprays, and restraints; and use of solitary confinement to quiet anyone who would challenge these and other violations.134 The types of abuses news reporter William Claiborne heard from the prisoners at Lorton in the early 1970s have certainly not ended, but they now receive less news coverage. Denying access to prisons stifles the democratic function media serves in helping the public address these abuses. Charles N. Davis, attempts by officers to help individual inmates often are blocked by unsympathetic supervisors. 'The way inmates are treated is unfair,' he said .... Savoy claimed that other guards shared his views, but are just scared to let them be known to their super­ visors for fear of harassment." Raul Ramirez, Guards Assail jail Head for Cut in Power, WASH. PosT, Aug. 16, 1973, at Bl. 131 According to Washington, D.C. residents imprisoned during the 1980s, several other uprisings and strikes to address poor conditions occurred at Lorton, many of which were brutally suppressed by guards and not covered by the media. For those that were covered, interviewees who were imprisoned at the time often had far differ­ ent perceptions and remembrances of events than those the administrators provided to the media. Interview with formerly incarcerated person #1, Wash., D.C. (Oct. 10-11, 2006 & Nov. 2, 2006) (on file with author); Interview with formerly incarcer­ ated person #2, Wash., D.C. (Nov. 2, 2006) (on file with author). 132 In the late 19th century, journalist Henry Mayhew interviewed impoverished London residents about their lives and helped set a standard that challenged social researchers to presume that marginalized communities have the ability to adequately provide meaningful information about their own experiences, thus challenging the notion of narrative incompetence researchers had previously assigned them. JAMES A. HOLSTEIN & JABER F. GUBRIUM, THE ACTIVE INTERVIEW: QUALITATIVE RESEARCH METH­ ODS 21, 22 (1995). 133 Jessica Feierman, Creative Prison Lawyering: From Silence to Democracy, 11 GEo. J. POVERTY LAw & PoL'v 249, 255 n.34 (2004) (citing Paul St. John, Behind .the Mirror's Face, in DOING TIME 119, 121 (Bell Gale Chevigny ed., 1999)). 134 Id. at 254-55. 170 CUNY LAW REVIEW [Vol. 15:149

Freedom of Information co-chairman of the Society of Professional Journalists, notes, "[t]he correctional industry is the only func­ tional unit of state governance free from the scrutiny of an active press, and it is at our peril that we allow prisons to run in the dark."135

V. ALTERNATIVES A vision of alternatives to imprisonment and the current U.S. prison system should encompass the needs of people currently im­ prisoned and consider broader societal factors contributing to mass incarceration including sentencing policy and socio-eco­ nomic issues. As discussed earlier, for those inside, it is clear that maintaining ties with family and the broader community, and ac­ cessing rehabilitative programming, particularly education, are key to their success outside of prison. Thus, such programming should be dramatically expanded. Additional elements that diminish re­ cidivism include mental health and drug treatment, training, and alternative sentencing.136 Other industrialized countries have dra­ matically lowered imprisonment rates through changes to sentenc­ ing policy. In Germany, for example, officials substantially reduced the prison population and cycle of imprisonment by reducing the use of short prison terms.137 One scholar notes that "the German legislature had embraced the idea that short-term imprisonment does more harm than good; it disrupts the offender's ties with fam­ ily, job, and friends, introduces the offender into the prison subcul­ ture, and stigmatizes the offender for the rest of his or her life."138 Clearly, ending the use of imprisonment to address social and pub­ lic health issues like drug use would also dramatically reduce the number of people stigmatized through imprisonment. Building alternatives also calls for shifting public expenditures away from prisons and toward social and community programs that address factors leading to imprisonment. There is a growing under­ standing that included among "factors contributing to ... criminal conduct" are "poverty, unemployment, inadequate living condi­ tions such as substandard housing and homelessness ...." 139 Advo­ cates are also more sharply focusing on the school-to-prison

135 Press Release, Society of Professional Journalists, SJP Asks Massachusetts DOC to Drop Proposed Inmate Interview Restrictions Qune 21, 2002), available at http:/I www.spj.org/news.asp?ref=247. 136 Feierman, supra note 133, at 250 n.7. 137 MAUER, supra note 34, at 9. 138 Id. 139 Taifa & Beane, supra note 117, at 291. 2011] GRAHAM, MILLER, AND THE RIGHT TO HOPE 171 pipeline, elements of which include zero-tolerance policies, in­ creased use of expulsions and suspensions, under-resourced schools, and racism, all which ultimately lead to increased impris­ onment.140 Groups like America's Promise Alliance, a multi-sector organization devoted to improving the wellbeing of young people, propose a number of policy shifts to address these underlying fac­ tors and ensure developmental resources for youth.141 A RAND Corporation study found that crime prevention is more cost-effec­ tive for governments and municipalities than investing in pris­ ons.142 A report from the Sentencing Project points to "a variety of research demonstrat[ing] that investment in drug treatment, inter­ ventions with at-risk families, and school completion programs are more cost-effective than expanded incarceration as crime control measures. "143 There are points in history we can look to for successful alter­ natives, such as the profound changes that occurred temporarily at Walpole, in Massachusetts, in the wake of the uprising at Attica and a major community organizing campaign both in and out of the Walpole prison, which are well documented by historian Jamie Bis­ sonette. In 1972, the governor of Massachusetts appointed John Boone, a progressive reformer who ultimately became a prison ab­ olitionist, as the first African-American commissioner of correc­ tions.144 Boone ushered in a series of reforms similar to those he had enacted at Lorton Reformatory in Virginia, where he had briefly served as superintendent before going to Massachusetts.145 These reforms included furloughs, educational and vocational training, and other community-based programs. Rehabilitation was his central focus, with the ultimate goal being the shuttering of large state prisons.146 Under his appointment, recidivism rates dropped by close to two-thirds, 147 and it appeared his vision could have born out his goals. Unfortunately, the political and racial cli­ mate of Massachusetts was not prepared to allow him success. How­ ever, following a walkout by guards in retaliation for Boone's having met some prisoners' demands in response to a determined strike by inmates that the guards had met with fierce brutality, the

140 Id. at 289-90. 141 Id. at 296-97. 142 OPEN SOCIETY INST., supra note 102, at 8. 143 RvAN S. KING, MARc MAuER, & MALcoLM YouNG, THE SENTENCING PROJECT, IN- CARCERATION AND CRIME: A COMPLEX RELATIONSHIP 8 (2005). 144 JAMIE BISSONETTE, WHEN THE PRJSONERS RAN WALPOLE 40-50 (2008). 145 Id. at 46-47. 146 Id. at 64-65. 147 Id. at 9. 172 CUNY LAW REVIEW [Vol. 15:149

prisoners actually took over the prison and ran it themselves for over two months. The temporary end of brutal treatment by guards, and an end to murders, rapes, and robberies, ensued.148 At a time when racial tension in Boston was becoming more heated in the lead-up to explosive reactions to court-ordered school desegre­ gation, the prisoners at Walpole had developed a sophisticated me­ diation program and method for maintaining internal order, and were engaged in the effective and peaceful cross-racial organizing of the workings of the entire prison.149 Prisoners, who had found solidarity in similar experiences of poverty and deprivation throughout much of their lives, operated on a sense of restorative justice, self-determination, and community building. While the prisoners were brutally repressed when the state retook the prison, 150 the lessons of those several weeks and what they mean for how "corrections" should be approached are invaluable. This example of meaningful exercise of imprisoned peoples' agency, not just in running a prison but in guiding a movement, should strongly inform current advocacy efforts.

VI. CONCLUSION With regard to the often-conjured pendulum swinging be­ tween rehabilitation and retribution, Graham and Miller should sound like a broken gear signaling the extreme distance the pen­ dulum has traveled in one direction. How far into unthinking retri­ bution has the U.S. criminal justice system gone if the U.S. Supreme Court is only now recognizing that it should blink when a judge sentences a juvenile to imprisonment for the rest of his or her life? While the Court holds its nose and speaks of the chances prison will reform a youth's "character deficiencies," the challenge is for community-based movements from an array of sectors to con­ tinue to shine light on the societal deficiencies that feed crime and criminalization, and to underscore the important visioning and en­ actment of alternatives happening now amongst communities most impacted by imprisonment.

148 Id. at 123-68. 149 Id. at 143. 150 Id. at 172-85. ALL CHILDREN ARE CREATED EQUAL TOO: THE DISPARATE TREATMENT OF YOUTH RIGHTS IN AMERICA

Travis johnsont

INTRODUCTION Children and adolescents are the most vulnerable members of our society. From the time they are born until they reach the age of majority/adulthood, they are dependent on others for economic resources, guidance, education, and protection. The trajectory of the rest of a young person's life is often determined by the quality of the guidance, education and protection from harm they receive as minors. It is the result of this vulnerability that laws are created defining who minors are, restricting what they can do, establishing how they are to be treated, and defining the level of care and re­ sponsibility required by their parents or caregivers. 1 The entire body of child welfare law in this country has been created, in large part, as a response to the reality of how vulnerable children are and their need for protection.2 In addition, if one considers the disproportionate number of youth of color from low-

t Travis Johnson is an Assistant Attorney-In-Charge with the Legal Aid Society's Juvenile Rights Practice in Brooklyn, New York. The views expressed in this article are solely those of the author and do not reflect those of the organizations with which he is employed. I See, e.g., Roper v. Simmons, 543 U.S. 551, 569 (2004) (holding that the execu­ tion of a 17-year-old violated the Eighth Amendment prohibition on cruel and unu­ sual punishment because the young person did not have the mental capacity to reflect on his or her actions as compared to an adult); In re Winship, 397 U.S. 358, 367 (1970) (establishing that juveniles, like adults, are entitled to the standard of proof beyond a reasonable doubt in criminal proceedings and not the standard of a prepon­ derance of the evidence); In re Gault, 387 U.S. 1, 4, 13 (1967) (establishing a landmark precedent that juveniles accused of crimes in delinquency proceedings should be afforded the same constitutional protections as adults). See also William Wilberforce Trafficking Victims Protection Reauthorization Act ("TVPRA") of 2008 § 235(a) ( 4), 8 U.S.C.A. § 1232 (2012) (establishing legislation to combat trafficking in persons whose victims are predominantly women and children who are dispropor­ tionately affected by poverty, lack of access to education, chronic unemployment, and discrimination). 2 See Kasia O'Neill Murray & Sarah Gesiriech, A Brief Legislative History of the Child Welfare Systems, The Pew Charitable Trust (Nov. l, 2004), http:/ /www.pew trusts.org/ uploadedFiles/ wwwpewtrustsorg/Reports/Foster_care_reform/Legislative History2004.pdf (providing a chronological outline of the legislative development of child welfare laws and explaining that the law shifted from meeting children's needs to focusing on the impacts of abuse and neglect of children).

173 174 CUNY LAW REVIEW [Vol. 15:173 income or poor families involved in our nation's child welfare sys­ tems,3 it becomes clear that race and poverty-as well as sexuality and gender-work to multiply the ways in which children who are poor, of color, female or LGBT, are vulnerable to being harmed. These factors also multiply the ways in which marginalized children are left without the necessary resources that would enable them to lead empowered, self-determined lives. 4 Our country's historical reliance on the civil rights movements as a model of reform5 has had negative consequences in achieving equal justice and protection for all youth.6 This can be seen across our seemingly well-developed child welfare and legal systems that were created to respond to the needs of youth populations. As a result of our reliance on the civil rights model, our country has a very narrow understanding of human rights as a concept solely dealing with issues in poor, developing nations. We often fail to

3 African-American children comprise 42% of the children in foster care, while they comprise only 17% of the nation's children. Jessica E. Marcus, The Neglectful Parens Patrie: Using Child Protective Laws to Defend the Safety Net, 30 N.Y.U. REv. L. & Soc. CHANGE 255, 259 (2006). In urban areas, the racial disparity is greater. In New York City, one out of every 22 African-American children and one out of every 59 Latino children was placed in foster care. See Andrew White et al., Race, Bias & Power in Child Welfare, CHILD WELFARE WATCH, Spring/Summer 1998 Number 3, at 1, http:/ /www. nycfuture.org/images_pdfs/pdfs/Race%20Bias%20&%20Power%20in%20Child%20 Welfare%20CWW%2098. pdf. 4 See generally Frances Gragg et al., NEw YoRK PREVALENCE STUDY OF COMMERCIALLY SEXUALLY EXPLOITED YOUTH, N.Y. OFFICE OF CHILDREN AND FAMILY SERVS. 4 (2007), http:/ /www.ocfs.state.ny.us/main/reports/CSEC-2007.pdf (emphasizing that youth are more vulnerable to sexual exploitation because they have low self esteem, poor judgment, and greater neediness); Symposium, Mischief and Mayhem: A Symposium on Legal Issues Affecting Youth in the Child We ifare and juvenile justice Systems, 14 CARDOZO J. L. & GENDER 609 (2008) (elaborating on the dire situation faced by LGBT youth in state custody and explaining how foster care systems across the states did not have laws prohibiting gender discrimination, which exacerbated the problem). 5 See MICHELLE ALEXANDER, THE NEw JIM CRow: MAss INCARCERATION IN THE AGE OF COLORBLINDNESS 211-17 (2010) (discussing how civil rights organizations have been relatively silent on the crisis of mass incarceration and how their response to the problem has been inadequate); William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REv. 2062, 2064 (2002) ("People of color, women, and gay people all came to resist their social and legal disabilities in the civil rights movement seeking to end apartheid; various feminist movements seeking women's control over their own bodies and equal rights with men; and the gay rights movement, seeking equal rights for lesbigay and trans­ gendered people. All these social movements sought to change positive law and social norms."). 6 See generally Lisa Miller, The Invisible Black Victim: How American Federalism Perpetu­ ates Racial Inequality, 44 LAw & Soc'y REv. 805, 833 (2010) ("The promise of civil rights is the promise of inclusion; yet the vast disparity in incarceration rates between blacks, Latinos, and whites stands as an ugly reminder of the nation's long history of race-based exclusionary practices."). • "

2011] ALL CHILDREN ARE CREATED EQUAL TOO 175 connect the way in which our own American values promote op­ pression and exploitation of youth populations in ways similar to the nations we denounce and organize against as "human rights violators." The United States as a global power is quite vocal and active in opposing the abuse and exploitation of children abroad, while being blind to the human rights violations of youth here at home. The perfect example of the disparate consideration given to the notion of youth human rights between U.S.-born youth and those born abroad can be found in a consideration of commer­ cially and sexually exploited youth. The United States has commit­ ted a great deal of resources to find, arrest, and prosecute individuals involved in human trafficking.7 Further, it has created immigration remedies and supportive services for foreign-born, child-victims of commercial and sex trafficking.8 However, many states, New York for example, have a history of arresting and prose­ cuting children, not even old enough to legally consent to sex, for crimes such as prostitution.9 Only recently, after years of advocacy on the part ofjuvenile rights workers, did New York State begin to consider the idea that children living in the United States could be the victims of domestic sex trade like similarly situated youth abroad whom we have treated sympathetically for nearly a dec­ ade.10 To illustrate at least part of this point further, consider the

7 U.S. DEP'T OF STATE, TRAFFICKING IN PERSONS REPORT 2011, 372-73 (2011), available at http:/ /www.state.gov/documents/organization/164458.pdf (describing the U.S. involvement and active participation to combat human trafficking including civil Jaw enforcement, continued task forces through the Department of Justice, heightened prosecution for traffickers and those that work in the modern slave trade). 8 The Violence Against Women Act (VAWA) created special provisions in United States immigration law to protect victims of abuse who are not citizens of the United States. See, e.g., 8 U.S.C. § 1101 (a) (15) (T) (i) (2010) (creating "T Visa" for victims of trafficking); 8 U.S.C. § 110l(a)(l5)(U)(i) (2010) (creating "U visa" for victims of crime); 8 u.s.c. § 1101 (a) (27) m(2010) (creating "special immigrant" juvenile status for abused, neglected, or abandoned children). Youth who have been commercially and sexually exploited may also find remedies in asylum. See 8 U.S.C. § 1158 (2009). 9 See, e.g., Hon. Fernando Camacho, Sexually Expwited Youth: A View from the Bench, in LAWYER'S MANUAL ON HuMAN TRAFFICKING: PuRSUJNGjusTICE FOR V1cr1Ms 141 Qill Laurie Goodman & Dorch en A. Leidholdt eds., 2011) ("In the past we have based our criminal justice policies on the false assumption that all women who enter the world of prostitution are free to leave at any time."). JO Safe Harbor for Exploited Children Act, N.Y. Soc. SERV. LAw § 447-b (McKinney 2011) [hereinafter Safe Harbor Act] (governing the protection that must be afforded to sexually exploited children by designating funds and services available to them); N.Y. FAM. CT. Acr § 311.4(3) (McKinney 2011). See also GIRLS Eouc. & MENTORING SERVS. (GEMS), http://www.gems-girls.org (last visited Oct. 21, 2011). GEMS is the leading organization in New York City devoted to delivering comprehensive and holis- 176 CUNY LAW REVIEW [Vol. 15:173 experiences of two young women,11 Khadijia and Tasha who were placed in the custody of the New York City child welfare system.

I. A TALE OF Two YouNG GIRLS A. Khadijia Khadijia was born in the West African nation of Mali in 1990. From the time she was born until she was five, she was raised in a home with her mother, father, and older sister. Khadijia's family was comparatively well-off financially, as her father had a signifi­ cant amount of education. Khadijia does not remember what her father did for a living, but she has fond memories of going to work with him to "an office job where there was a secretary that an­ swered the phone for him." Khadijia's father died just after she turned five, which made her family vulnerable in a number of ways. As the man of the house, Khadijia's dad protected his daughters from a number of cultural practices in Mali that he did not wish to inflict on them, such as genital mutilation and forced marriage. In his absence, Khadijia's paternal family-through violent intimidation-sold her 12-year-old sister to be married to a much older man. Khadijia never saw her sister again. When Khadijia approached the age that her paternal family believed that she should also be married, the violence against her mother started again. They even attempted to kidnap Khadijia at one point. Desperate, Khadijia's mother sought the help of a wealthy woman she had begun house-cleaning for to make ends meet. The woman assured Khadijia and her mother that she could help by getting Khadijia out of Mali to the United States to live with her friends, a childless couple in Philadelphia, where Khadijia could live in a large home, go to school, eventually work, and send money home to her mother. The woman's generosity seemed too good to be true. But when she showed Khadijia's mother a passport and a valid-looking visa for her daughter, they trusted her. Khadijia arrived in Philadelphia at the age of 15. But she did not live in a big house. She did not go to school. She was not able to send money home to her mother. She was not even allowed to speak to her mother. She lived and worked in a hair salon. When it closed at night, the owners-the friends her mother's boss had

tic services to address the needs of commercially and sexually exploited girls and young women through a variety of programming and direct advocacy. 11 The names and other identifying information of children in this article have been changed to protect their identities. 2011] ALL CHILDREN ARE CREATED EQUAL TOO 177 told them about-would make Khadijia sleep on the floor. She could go nowhere unsupeivised and whenever she complained they beat her and threatened to have her locked up for being in the country illegally. In the year and a half that Khadija lived in Philadelphia, not only was she repeatedly forced to have sex with men who paid the couple for her, but she was also sexually as­ saulted by the husband. The only reason Khadijia was released is because the wife learned of her husband's "affair" and threw Khadijia out on the streets in the winter of 2009. Khadijia, through the most random acts of kindness, made her way to New York City. There, she came to the attention of child welfare and was placed in foster care. In attempting to locate Khadijia's mother in Mali, the Administration for Children Services learned that her mother had passed away. Thus, Khadijia was alone in the world, but finally free of a long history of abuse and instability. Khadijia's experience as a victim of human trafficking made her eligible for a visa, which may lead to permanent legal residence. As a young person in foster care and with a judge that was moved by her story, Khadijia has been able to receive a great deal of therapeutic seivices to help her deal with her grief and trauma. As a result, she is working and going to school part-time at Hunter College. She wants to be a social worker to help other girls who have also experienced the trauma of ex­ ploitation and sex trafficking.

B. Tasha

Tasha was born in the Bronx in 1992. Her father is unknown and her mother abused drugs. In fact, Tasha was born with drugs in her system. She was removed from her mother right out of the hospital and spent most of her life being raised by her grandparents. Tasha was very close to her grandfather who died when she was eight, but she also got along with her grandmother. Problems did not arise in their relationship until Tasha was a teenager. She became interested in hanging out with her friends and boys. She did not come straight home from school anymore and would spend all night talking on the phone. Tasha's grandmother was in her mid-70s by this time and just did not have the energy or desire to chase behind a teenage girl. So, she placed Tasha in foster care by claiming that she was a Per- 178 CUNY IA W REVIEW [Vol. 15:173 son in Need of Supervision12 and beyond her lawful control. Tasha, only 14, was devastated the day she was taken into care and experienced her placement as a complete rejection. She was placed in a group home in Queens, New York, which may as well have been Mars as far as Tasha was concerned. Except for very spe­ cial occasions, she had never left the Bronx in her life. And now she was taken away from her friends, her school, and her family. In addition, other girls in her group home were constantly stealing Tasha's clothes, shoes, and makeup. Someone even managed to steal money from Tasha's purse that she had taken to keeping under her pillow. Life for Tasha was awful, until one day Tasha met Derek, a handsome man about 10 years older than her, standing right on the corner in front of her group home. He smiled at her. He told her she was pretty. And, to make a long story short, he started dat­ ing her. Derek bought Tasha things, took her to nice places, picked her up after school in nice cars, and gave her a cell phone. It would have been impossible to tell Tasha that she was not in love. Derek was there for Tasha when her grandmother gave up on her. When foster care caseworkers did not care that others were stealing from Tasha, Derek replaced whatever was taken. For Tasha, it was a fairytale until about four months into their relationship. At that point, Derek asked Tasha to do him a favor. He said he owed some dangerous people money and if he did not get it to them, they would kill him. He thought that maybe she would want to help him, since he had spent so much money buying her nice things and taking her places. All she had to do was have sex with this guy Derek had met for money. Tasha refused at first. But when Derek disappeared for a few days, Tasha was afraid those people he had owed money had hurt him. So when he finally returned her call, Tasha agreed to do it, but just the one time. Then there was another time, and when Tasha refused, Derek did not plead with her or tell her his life depended on it. Instead, he beat her and told her he would kill her if he had to ask her again. So, she did it. Derek would often pick her up from her group home in Queens and drive Tasha to meet men in New Jersey, Connecticut,

12 A child under the age of 18 who does not attend school, or behaves in a way that is dangerous or out of control, or often disobeys his or her parents, guardians or other authorities, may be found to be a Person In Need of Supervision or "PINS". New York City Family Court, Persons in Need of Supervision (PINS), N.Y.S. UNIFIED CouRT Svs.. TEM, http:/ /www.nycourts.govI courts/ nyc/family/faqs_pins.shtml (last updated Jan. 31, 2008). See also N.Y. FAM. CT. Acr art. 7 (McKinney 2011). 2011] ALL CH/WREN ARE CREATED EQUAL TOO 179

Delaware, and Pennsylvania. And when he had no such men for her to meet, he would make her solicit on the street in areas of New York City known for prostitution. And that was her life until she got arrested for soliciting an undercover cop. Tasha was 15 when she was prosecuted in Family Court. Be­ cause of her history of truancy, disobeying her grandmother, and her habit of staying away from her foster home for days at a time with Derek, a Family Court judge placed her in a secure juvenile facility for an initial period of 12 months. While in the juvenile facility, Tasha received no counseling or therapy to address her his­ tory of sexual exploitation or the other underlying circumstances that led to her arrest and placement. Although she was generally compliant with the rules, Tasha continually attempted to make contact with Derek through some rather ingenious means. She would send Derek letters through friends or make calls to her cousins and ask them to conference call him. But her desire to be with Derek cost her. In New York State, when a young person is placed on a juvenile delinquency case, at the end of their initial sentence, if the juvenile prison does not feel that they are ready to return to the community, they can petition the court for an extension on a year-by-year basis until the young person turns 18. 13 Attempting to stay in touch with her pimp was all the proof that the facility and her judge needed to keep Tasha locked up on a misdemeanor solicitation arrest for nearly three years. Tasha was released on her 18th birthday. Since then, she has held various jobs at clothing stores and fast food restaurants, but only for very short periods of time. Those jobs always end with her going back to Derek and the life he manipulated and forced her into when she was 15 years old.

II. DISPARATE TREATMENT Khadijia and Tasha's experiences illuminate some of the ma­ jor issues that prevent protection of domestic juvenile human rights. On the one hand, everyone involved in Khadijia's case un­ derstood that they were dealing with a human rights violation. However, the same was not true of Tasha. Khadijia was obviously and without a doubt a victim of human trafficking, forced servitude, sexual assault, and exploitation. With-

13 N.Y. FAM. CT. Acr § 355.3 (McKinney 2011). 180 CUNY LAW REVIEW [Vol. 15:173

out question everyone in Khadijia's case was willing and able to see her as a victim. She was a young woman born in an African country where they engage in genital mutilation and force little girls to marry pedophiles. She was trying to escape that life and was manipulated into an arguably even worse situation by despicable people. All the parties involved in her case were willing and able to consider and understand the economic and cultural pressures that led to her victimization in such a way that made her deserving of sympathy and support. The system refused to see Tasha as a victim. Certainly it was understood that she had been mistreated, abused, and violated. Certainly there were arguments made that there was something un­ just and perhaps even unconstitutional about prosecuting a minor who could not legally consent to sex for prostitution. But none of that advocacy encompassed an argument that Tasha had been de­ prived of her rights as a human being and was deserving of com­ passion and support just like Khadijia.14 Quite conceivably, the reason for this difference is simply be­ cause of the fact that Tasha is American-born. Though she cer­ tainly had obstacles to overcome, the belief underlying her case is that because she is American, she simply must have had more op­ tions than someone such as Khadijia and therefore is not really a "victim." Prosecutors and caseworkers placed the fault on Tasha. They argued that if Tasha had gone to school and obeyed the rules of her home, her grandmother would not have placed her in foster care. They stated that she should not have let Derek manipulate her in the first place, and that she should have reported him to the police at the first instance of domestic violence. It was also ex­ pressed that she certainly should not have kept in contact with Derek once she was placed in a juvenile detention facility. The belief underlying all of these judgments of Tasha's behav­ ior is that because she was born and raised in the United States, Tasha had choices available to her and made the wrong ones, therefore she is not a victim. She should have been more empow­ ered to make different decisions and therefore, even as a child, she was more responsible for her circumstances and "choices" than Khadijia.

14 GEMS, supra note 10 (providing advocacy with the understanding that each girl and young woman is deserving, and needs support and services to treat the trauma and violence that each has experienced). 2011] ALL CHILDREN ARE CREATED EQUAL TOO 181

III. PORTRAYING MARGINALIZED AMERICAN YOUTH AS CRIMINALS Tasha's experience also illuminates the fact that when a marginalized and exploited youth comes in contact with the law in the United States, it is often in the context of the criminal or juve­ nile justice system.15 One result of failing to recognize and protect youth human rights domestically is that, not only is the young per­ son exploited and victimized, but then also determined to be a criminal which often works to further disempower them in all the ways in which a criminal conviction can marginalize a citizen.16 The marginalized youth as a criminal requiring punishment rather than a victim of neglect needing support has a decades-old history in New York State.17 New York is one of only two states in the country, North Carolina being the other, which currently pros­ ecutes 16- and 17-year-olds as adults in its criminal justice system instead of having their cases dealt with by its juvenile justice system. 18

15 See, e.g., Hon. Cheryl Chambers, The Disprojlortionate Number of Minority Youth in the Family and Criminal Court Systems: Introduction, 15 J.L. & PoL'Y 907, 908 (2007) (describing how youth of color are disproportionately impacted by the criminal and juvenile justice system and how these young people grow up at risk and in poverty). See generally ALEXANDER, supra note 5 (framing the crisis of mass incarceration as the creation of a racial undercaste in which African-American and Latino/a youth are disproportionately targeted by law enforcement and then they are legally discrimi­ nated in almost all aspects of social, political, and economic life). 16 The social consequences attached from a criminal conviction range from dis­ crimination in employment, in housing, in obtaining public benefits, in health care, and disenfranchisement. See, e.g., KATHERINE IRENE PETTUS, FELONY DISENFRANCHISE­ MENT IN AMERICA: HISTORICAL ORIGINS, INSTITUTIONAL RACISM, AND MODERN CONSE­ QUENCES (2005). See a/,so Margaret Colgate Love, RELIEF FROM THE CoLIATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A STATE-BY-STATE RESOURCE GUIDE 4 (2005), http:/ /sentencingproject.org/ doc/file/ collateral%20Consequences/execs umm.pdf (concluding that most state jurisdictions have inaccessible and unreliable mechanisms to mitigate the collateral consequences of a criminal conviction, which further serves to disempower citizens). 17 New York passed the Juvenile Justice Reform Act of 1976 partly as a response to the sentiment that juvenile justice was too soft on violent kids and also to institute the new category of "designated felony" that began treating children the age of 14 as adults for murder. See Merril Sobie, The juvenile Offender Act: Effectiveness and Impact on the New York juvenile justice System, 26 N.Y.L. ScH. L. REv. 677, 686 (1981) (providing a historical overview of the juvenile justice system in New York emphasizing how the Juvenile Justice Reform Act was a move away from delinquency toward criminalization). I8 See Linda Szymanski, How Does Age Impact the Way States Handle Juvenile Delin­ quency Cases?, NAT'L CTR. FORJUVENILEjUSTICE (NCJJ) SNAPSHOT (2011), http:/ /www. ncjj.org/pdf/Snapshots/2011/voll6_no7 _How%20does%20age%20impact%20the% 20way%20states%20handle%20delinquency%20cases.pdf (reporting that North Caro­ lina and New York end original juvenile court jurisdiction in delinquency matters at age 15). 182 CUNY LAW REVIEW [Vol. 15:173

The decision by New York lawmakers to be tough on youth crime and prosecute teenagers as adults was made in large part as a reaction to alarmingly high crime rates of the late 1970s and two highly publicized subway murders committed by 15-year-old Willie Bosket.19 Under the law at the time, Willie Bosket could only be incarcerated at a juvenile facility for a total of five years for his crimes, a reality that caused a public outcry for tougher laws on youth crime.20 The Juvenile Offender Act of 197821 was passed in record time establishing that in New York kids as young as 13 could be tried as adults for murder, symbolizing a reversal of 150 years of American legal history.22 An interesting and disturbing fact of Willie Bosket's life history is that he had, for a bulk of his childhood, been the victim of se­ vere physical and sexual abuse and spent a great deal of time in the custody of New York's juvenile justice system for committing minor crimes.23 Despite having been confined to their care, almost every opportunity to rehabilitate him and address his needs was missed.24 Instead of viewing him as a young man who had experienced severe abuse and whose very rights as a human being had been violated for years-Willie Bosket was physically abused by his mother and sexually abused by multiple caregivers-he was cast as a murderer with no context other than the background of the 1970s lawlessness that plagued New York City. It is inside this con­ versation of youth crime without any socio-political context that

19 Willie Bosket is currently incarcerated at the Woodbourne Correctional Facility in New York State. At the age of 13, Willie had committed two murders and was con­ sidered the most dangerous inmate who began his criminal career at age five. Willie spent the greater part of his life in juvenile correctional facilities. Throughout those years he was always denied a proper program of rehabilitation. Willie changed the face of New York's juvenile justice system as a result of the outcry when he was sen­ tenced to four years of detention for committing two murders at the age of 13. See Fox BUTTERFIELD, ALL Goo's CHILDREN: THE BosKET FAMILY AND THE AMERICAN TRA­ DITION OF VIOLENCE (1995) (providing a thorough examination of Willie Bosket's life and how that life was shaped by the culture of violence in America, the juvenile justice system, and the disparities of treatment suffered by poor African-Americans in that system). See also Sobie, supra note 17, at 686. 20 BUTTERFIELD, supra note 19, at 226. 21 jUVENILEjuSTJCE REFORM AcT OF 1978, 1978 N.Y. Laws, ch. 478. 22 BuTTERFIELD, supra note 19, at 227. 23 Willie had been designated a "destructive child" since the age of six when he was enrolled in the first grade. He would later develop a reputation of uncontrollably violent behavior for which he would be sent to numerous juvenile correctional institu­ tions. One of the ironic facts is that Willie's father had been sent to the same facilities and nobody at the time, not even psychiatrists or judges, had connected that history of institutionalization that profoundly marked all of Willie's life. Id. at 144-53. 24 Id. 2011] ALL CHILDREN ARE CREATED EQUAL TOO 183 the current juvenile justice and child welfare systems that failed Tasha were created.25 These myopic views of poor American youth are based on cul­ tural stereotypes and a vast lack of understanding of the impact of youth exploitation. These views illustrate in a very specific way the major barrier to protecting youth human rights in the United States. That obstacle is simply the fact that Americans do not fully understand what human rights are and therefore, do not under­ stand what human rights violations are or how they look when trans­ lated to an American context. We have come to rely, almost exclusively, on the language of civil rights-that is rights created, defined, and interpreted by lawmakers and the courts. We look to them to decide who a victim is, who a perpetrator is, and how each should be treated. We look to them to define even what a right is, how to determine if one has been violated and what the remedy for that violation should be. The idea that there are human rights we have as people-not as citizens-that are inviolable and worthy of defense and protection even if our government does not define or recognize them, has never completely entered our collective consciousness here in the United States.26

IV. OTHER EXAMPLES OF YOUTH HUMAN RIGHTS VIOLATIONS AND WHY WE ACCEPT THEM The conversation around domestic human trafficking of chil­ dren is not the only example of our failure to observe and protect the human rights of American youth. Further examples can be found in the existence of systems we support and take for granted

25 Hon. Fernando Camacho, supra note 9, at 141 ("I have since come to appreciate that this [punitive] approach to cases involving teenagers charged with prostitution is, to a large degree, shaped by certain misconceptions that continue to impact the crim­ inal justice system's treatment of sexually exploited youth."). 26 See TAINA BIEN-AIME: & LEAH RUTMAN, International Law in Human Trafficking, in LAWYER'S MANuAL ON HUMAN TRAFFICKING: PuRSUINGjUSTICE FOR VICTIMS 63, 69 (Jill Laurie Goodman & Dorchen A. Leidholdt eds., 2011) ("The steps the United States has taken to combat human trafficking have been substantial, but fall short of compli­ ance with international standards set by various conventions ..."). See also HUMAN RIGHTS WATCH, UNITED STATES RATIFICATION OF INTERNATIONAL HUMAN RIGHTS TREA­ TISES 1 (2009), http://www.hrw.org/sites/default/files/related_material/Treaty%20 Ratification %20Advocacy%20documen t%20-%20final %20-%20Aug%202009.pdf ("The US has not ratified any international human rights treaties since December 2002, when it ratified two optional protocols to the Convention on the Rights of the Child. Since that time, important new treaties have been adopted and other long­ standing treaties have gained new member states. Unfortunately, the US has too often remained outside these efforts."). 184 CUNY LAW REVIEW [Vol. 15:173 every day.27 Our nation, for example, has fully accepted a public education system that is funded in such a way that virtually guarantees that if a young person is born to poor or working class parents in a low­ income community, he or she will receive a worse education than a peer receiving a public education in a more affluent community.28 We fully recognize the disadvantages associated with this disparity including the exposure of youth to violence that often occurs in, or near, under-funded schools serving low-income communities. Fur­ ther, these schools are over-policed and highly punitive, as seen in their suspension rates.29 This disparity is often recognized as a civil­ rights issue, but not in such a way that has provided any vast change in the education received by poor youth in this country.30 Consider, also, our sympathy for youth in war-torn countries of Africa who are forced to fight in wars they are too young to under­ stand.31 Consider youth in Central and South American nations who are pushed into gangs.32 A great deal of academic and popular literature has been written that provides us with insight into how these young people are brainwashed or coerced into those groups

27 See, e.g., Besty Krebs & Paul Pitcoff, Reversing the Failure of the Foster Care System, 27 HARv. WoMEN's LJ. 357, 357-59 (2004) (describing the overall failures of the foster care system, in particular with respect to preparing teenagers for a successful future); Bart Lubow, Minimizing Youth Incarceration: Civilizing Aspirations?, 6 N.W. J. L. & Soc. PoL'Y 285, 286 (2011) ("But the history of youth corrections is so bad-so rife with sordid scandal, persistent abuse, and unfilled promises of remediation-as to strongly imply, if not definitely prove, that we do not know how to operate humane and safe, much less rehabilitative and secure, facilities for juveniles."); N.Y. CIVIL LIBERTIES UNION, EDUCATION INTERRUPTED: THE GROWINC UsE OF SusPENSIONS IN NEw YoRK CITY PUBLIC SCHOOLS (2011), http:/ /www.nyclu.org/files/ .. ./Suspension_Report_ Final_noSpreads.pdf (reporting that disproportionate denial of education to students of color violates internationally-recognized human rights laws). 28 San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 54 (1973) (5-4) (hold­ ing that a school-financing system based on property taxes did not violate the Four­ teenth Amendment's equal protection clause). 29 N.Y. CIVIL LIBERTIES UNION, supra note 27. 30 Susan Hamill, A Moral Perspective on the Rol,e of Education in Sustaining the Middl,e Class, 24 NOTRE DAME L. REv. 309, 320 (2010) (discussing how inadequate funding of K-12 education in high-poverty school districts shrinks the middle class which presents a moral issue for all of us to reverse the trend). 31 U.N. Office for the Coordination of Humanitarian Affairs, Special Report: Child Soldiers, INTEGRATED REG'L INFO. NETWORKS, NATIONS 1 (2003), http:/ /www.irinnews. org/pdf/in-depth/Child-Soldiers-IRIN-In-Depth.pdf (reporting on the status of chil­ dren who are abducted and forced into combat and on the inadequacy of existing regulations to effectively address this humanitarian crisis). 32 Clare Ribando Seelke, CONG. RESEARCH SERv., GANGS IN CENTRAL AMERICA 5 (2011), http://www.fas.org/sgp/crs/row/RL34112.pdf (discussing the current anti­ gang strategy deployed by Congress to combat the growing number of gangs, empha­ sizing MS-13 and M-18 as the main expanding gangs). 2011] ALL CHJLDRF,N ARE, CREA TED EQUAL TOO 185 in order to gain a sense of family and, in many instances, simply for protection.33 Our federal government has dedicated resources to provide help for foreign-born youth seeking to escape such lives. Government institutions respond very differently to young people in poor communities of our own country who are pres­ sured, socialized, or drawn into gang culture for a sense of family and protection. Further, there are no sustained resources imple­ mented to provide an alternative to gang affiliation or support a young person looking to leave a violent street gang. We simply criminalize gang involvement and leave such young people to fend on their own.34 What is at work here is an almost unshakeable rhetoric that has been created regarding the United States' righteousness, mo­ rality, and equal access to prosperity. The result of this rhetoric is this belief that everyone-even children-are solely responsible for their circumstances. They must, in essence, overcome the obstacles our culture and politics place in their way and pull themselves up by their own bootstraps. We fail to recognize and take responsibil­ ity for the ways in which our own values, similar to those of coun­ tries we readily denounce as human rights violators, allow for: 1) the sexualization of children and adolescents;35 2) the existence of pockets of poverty in our inner-cities as well as remote rural areas so severe that people are desperate, hopeless, and willing to do almost anything to make money;36 and 3) the exploitation of

33 See, e.g., Luz Nagle, Child Soldiers and the Duty of Nations to Protect Children from Participation in Armed Conflict, 19 CARDOZO]. INT'L & CoMP. L. 1 (2011) (providing different scenarios of how child soldiers are recruited, coerced, and torn apart from their families and into servitude). 34 See K Babe Howell, Fear Itself: The Impact of Allegations of Gang Affiliation on Pre­ Trial Detention, 23 ST. THOMAS L. REv. 620 (2011) (discussing gang databases and the harsh consequences of the gang affiliation label on bail determinations and emphasiz­ ing that youth of color are disproportionately impacted by the mistreatment and the mislabeling). 35 See AM. PSYCHOLOGICAL Assoc., REPORT OF THE APA TASK FORCE ON THE SEXUAL­ IZATION OF GIRLS (2010), http:/ /www.apa.org/pi/wpo/sexualizationrep.pdf (provid­ ing a detailed report on the sexualization of girls and noting how it is harmful and has negative consequences for girls and for the rest of society). 36 See Casey Kovacic, Creating a Monster: MS-13 and How United States Immigration Policy Produced "The World's Most Dangerous Criminal Gang," 12 GoNZAG. INT'L LAw. REv. 2 (2009) (discussing how the federal laws aimed at immigrant gang members are directly responsible for creating the gang and exacerbating its growth); Gary Stewart, Black Codes and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil Injunc­ tions, 107 YALE L. J. 2249, 2258 (1998) (describing how the history of vagrancy laws reveals the dangerous implications for racial minorities and other disadvantaged com­ munities of broad police discretion in crime prevention). 186 CUNY LAW REVIEW [Vol. 15:173 marginalized groups. 37 The failure to recognize and take responsi­ bility for our own human rights violations leaves American-born youth like Tasha just as vulnerable to exploitation as her foreign­ born counterparts and just as deserving of sympathy, protection, and support when her rights as a human being are violated.

V. CONCLUSION Despite the grim circumstances created by our failure to fully protect the human rights of young people, there is reason to be hopeful. Much of the work needed to resolve the tensions dis­ cussed here and protect the human rights of youth, as well as other vulnerable groups, in the United States is well underway.38 For example, as a result of years of consistent grassroots efforts by juvenile rights advocates, The Safe Harbor Act for Exploited Children went into effect in New York in 2010.39 The landmark legislation is a start to recognizing that all children, including American-born youth _under the age of 18 who are forced into the commercial sex industry are victims in need of comprehensive ser­ vices as opposed to incarceration.40 The law mandates the creation of safe houses, crisis intervention, community-based programming for survivors, and allows for the training of law enforcement to identify and help exploited youth.41 In short, the Safe Harbor Act provides law-enforcement with an option to treat these young vic­ tims humanely instead of as criminals. Many of the strategies utilized to bring about the very recent and ongoing change in the way sexually exploited youth in the United States are viewed and treated can be expanded upon to

37 Jonathan Todres, The Importance of Realizing "Other Rights" to Prevent Sex Traffick­ ing, 12 CARDOZO J.L. & GENDER 885 (2006) (discussing how systemic issues like racism, sexism, and poverty contribute to commercial sexual exploitation, which mostly af­ fects women and children across the board). 38 Chiefjudge Lippman Cal/,s for Juveni/,e Justice Refarm Based on Rehabilitation and Best Interests of the Child Rather than Punishment and Incarceration, LEGAL Am Soc'Y, http:/I www.legal-aid.org/en/mediaandpublicinformation/inthenews/chiefjudgelippman callsforjuvenilejusticereform.aspx (last visited Nov. 12, 2011) (discussing Chief Judge Lippman's plan to establish an adult court part dedicated solely for cases of 16- and 17-year-olds to show that the age of responsibility should be raised in New York). See Providers by State, GEMS, http:/ /www.gems-girls.org/what-we-do/service-providers-by­ state (last visited Nov. 12, 2011) (listing organizations throughout the country that provide services to commercially sexually exploited children). 39 Safe Harbor Act, supra note 10. See a/,so Barbara Goldberg, New Yorker Expunges Prostitution Record Under Trafficking Law, REUTERS (Sept. 21, 2011, 6:53 PM), http:/ I www.reuters.com/article/201 l /09 /21/us-sextrafficking-idUSTRE78K7Q3201l0921. 40 Safe Harbor Act, supra note 10, § 447(a)-(b). 41 Id.§ 447(b)(l). 2011] ALL CHILDREN ARE CREATED EQUAL TOO 187 impact domestic human rights of youth in other areas.42 To achieve this, our nation must first become well-versed in what human rights are and provide extensive education at the commu­ nity level on our commitments to this arena.43 Human rights edu­ cation should be included as part of our public schools' civics and history courses. Additionally, legal and social services providers must articulate the parallels between the work they do here with human rights ef­ forts occurring abroad.44 This will facilitate the opportunity for global movements to be created and a broader support of social justice responses. It would also allow for domestic human rights advocates to elevate the discourse around their work from a mere social service and civil rights framework, to one with a much broader, human rights scope.45 The value of this elevation is that our conversation will then create the necessary space that allows us to confront all the ways in which we, as a nation, violate the human rights of vulnerable popu­ lations. Once our deficiencies in this area become clear to us, we

42 See Human Rights, AMERICAN CrvrL LIBERTIES UNION, http:/ /www.aclu.org/ human-rights (last visited Nov. 12, 2011) (The Human Rights Program is dedicated to holding the U.S. government accountable to universal human rights principles and is part of a reemerging movement of U.S. based organizations that uses the interna­ tional human rights framework in domestic rights advocacy); Bringing Human Rights Home Lawyers' Network, HUMAN RIGHTS INITIATIVE: COLUMBIA LAw SCHOOL, http:// www.law.columbia.edu/ center_program/human_rights/HRin US/BHRH_Law_Net (last visited Nov. 13, 2011) (over 390 members encourage U.S. compliance with inter­ national human rights law, including through the U.N. and Inter-American Human Rights systems and the development of strategies to use human rights law in U.S. courts and domestic policy-making and debate); Human Rights at Home Campaign, U.S. Hu MAN RIGHTS NETWORK, http:/ /www.ushrnetwork.org/ content/campaign project/ human-rights-home-campaign (last visited Nov. 13, 2011) (the Human Rights Cam­ paign at Home aims to build a human rights movement in the United States). See also Bien-Aime & Rutman, supra note 26, at 73 ("National and community-based non-gov­ ernmental grassroots organizations that work with trafficking victims and promote legislative and policy changes are key players in assessing the realities and complexi­ ties of human trafficking and in developing strategies to end it."). 43 HuMAN RIGHTS INITIATIVE: COLUMBIA LAw ScHOOL, STATE AND LoCAL HuMAN RIGHTS AGENCIES: RECOMMENDATIONS FOR ADVANCING OPPORTUNITY AND EQUALITY THROUGH AN INTERNATIONAL HuMAN RIGHTS FRAMEWORK (2000), http://www. iaohra.org/storage/State_and_Local_Human_Righ ts_Agencies_Reportl. pdf ( outli n­ ing how communities can raise awareness of human rights law). 44 See Human Rights Education, AMNESTY INT'L, http:/ /www.amnestyusa.org/ resources/ educators?id=l 102117 (last visited Nov. 13, 2011) (discussing Amnesty In­ ternational's Human Rights Education training program). 45 Bien-Aime & Rutman, supra note 26, at 63 (providing an overview of how inter­ national law can be a critical tool in the fight against human trafficking). 188 CUNY LAW REVIEW [Vol. 15:173 will then be able to authentically (re)commit ourselves to domestic human rights and work towards tangible resolutions that ensure justice for our children. ZEALOUS ADVOCACY FOR THE RIGHT TO BE HEARD FOR CHILDREN AND YOUTH IN DEPORTATION PROCEEDINGS

M. Aryah Somerst

As a practitioner representing children facing deportation proceedings alone, I have struggled for years to adequately explain the deportation system and immigration laws to children, law stu­ dents, advocates, and scholars. This is particularly challenging be­ cause of the misperception that children are privileged in U.S. immigration and nationality laws. 1 I represent children like Luis, a 16-year-old from Honduras, who fled an abusive and unsafe envi­ ronment to reunify with his parents, both of whom resided lawfully in the United States with Temporary Protected Status.2 With Luis, I struggle to explain that our laws do not extend to protect him even though his parents are here lawfully. I begin to explain to him all of the possible remedies, but that I cannot predict the outcome and he could still face deportation. I cannot erase from my mem­ ory the look in Luis's eyes as he tells me that he has done every­ thing he is supposed to-go to school, play sports, be involved in his community and church, build relationships with his parents and extended family-and he wraps his mind and heart around the possibility of being deported and permanently separated from all of this. I also cannot erase from my memory the eyes of children like Katherine, a six-year-old Guatemalan girl, whose feet barely touch the ground as she sits in immigration court with me. She

t M. Aryah Somers is an attorney who represented children and youth in immi­ gration court in New York and Arizona. The author would like to extend her deepest gratitude to all of the children and youth who have pushed her to be a better attorney and to her many colleagues and mentors around the country who inspire her with their creative legal theories on behalf of immigrant children and youth. The author would especially like to thank Rebecca Press, Anita Khashu, Elizabeth Frankel, and Anthony Posada for their thoughtful comments and insights. The views expressed in this article are solely those of the author and do not reflect those any of the organiza­ tions with which she is or has been employed. Any errors or omissions are solely those of the author. 1 David B. Thronson, Entering the Mainstream: Making Children Matter in Immigra­ tion Law, 38 FORDHAM URB. L. J. 393, 395 (2010) (analyzing the myths surrounding the treatment of children under U.S. immigration law and noting how immigration law marginalizes children by failing to recognize them as individuals with indepen­ dent rights and interests). 2 The names and other identifying information of children in this article have been changed to protect their identities.

189 190 CUNY LAW REVIEW [Vol. 15:189

looks over at me, smiling, as I sit next to her, trying my best to hide my desperation in seeking another adjournment to advocate against her removal. In reflecting on these experiences and how the process seems to obscure and hide the complete lives of chil­ dren and youth, this Article will explore the history of how these children came to be in deportation proceedings, the struggle for and limitations of key due process rights for children and youth during apprehension and while in deportation proceedings, and the use of prosecutorial discretion as a tool to protect children and youth in the face of limited due process rights or substantive legal relief. In particular, this exploration, together with recent exper­ iences in the use of prosecutorial discretion, has led this practi­ tioner back to the most fundamental aspect of due process in the deportation system: the right of children and youth to be meaning­ fully heard. For example, in representing Luis, efforts had been focused on seeking asylum, withholding of removal, convention against torture, and derivative temporary protected status. How­ ever, facing a difficult asylum hearing in late summer and the ad­ vent of the newly published guidance on prosecutorial discretion, the representation demanded ensuring that the immigration sys­ tem know the entirety of Luis's life and not just those facts that directly related to the substantive forms of relief. As a result, we submitted an extensive prosecutorial discretion letter of request. The ultimate grant of asylum to Luis in late summer was a revela­ tion and a great cause of celebration. Indeed, what it meant for me is that this right to be meaningfully heard was the most critical tool in my advocacy for children like Luis and Katherine. It demon­ strated to me that irrespective of whether I, as the attorney repre­ senting the child or young person in .a deportation proceeding, believe that the child can pursue legal relief or was subjected to a due process violation, that I should, as attorney for the child, be a zealous advocate, and ensure that the child has the opportunity to present all facts regarding his or her personal history, present cir­ cumstances, and long-term safety and well-being. This creates greater accountability for attorneys representing children and youth. This also forces the immigration system to listen to the voices of children and young people in a humanizing way that gives rise to the possibility, however limited, of discretion being exer­ cised in favor of the child. Most importantly, this process of being meaningfully heard empowers children themselves in the immigra­ tion court so that they do not feel shuffled through the immigra­ tion system or live under a tyranny of silence fearing to speak out and tell their stories. 2011] CHILDREN & YOUTH IN DEPORTATION PROCEEDINGS 191

I. DUE PROCESS FOR IMMIGRANT CHILDREN IN DEPORTATION HEARINGS

A. The Right to a Deportation Hearing: No Deprivation of Life, Liberty, and Property Without Due Process of Law Until the early 1990s, children who were apprehended by the Immigration and Naturalization Service (INS) were often returned to their countries of origin under a voluntary departure system and rarely appeared in exclusion hearings.3 This was because the then­ INS procedures for apprehending children involved offering the child the right to waive their right to an exclusion hearing and choose voluntary departure.4 Under Orantes-Hernandez v. Smith, the waiver of this right had to be knowing, voluntary, and intelligent.5 Advocates argued that children were not in a position to know­ ingly, voluntarily, and intelligently waive these rights because of their lack of language skills, cultural understanding of rights, and cognitive and developmental challenges.6 In the 1980s and 1990s, advocates litigated a range of due pro­ cess rights for children in deportation proceedings, as well as cus­ tody conditions for children, and scholars devoted journal articles to the due process implications of children being removed without access to hearings. 7 Scholars and advocates alike argued that be-

3 Christine Hess & Irene Scharf, Comment, M'hat Process ls Due? Unaccompanied Minors' Rights to Deportation Hearings, 1988 DUKE LJ. 114, 114 (1988) (discussing the voluntary departure system in the context that deportation hearings may not be waived by unaccompanied minor aliens). 4 Id. at 115. 5 Orantes-Hernandez v. Smith, 541 F. Supp. 351, 376 (C.D. Cal. 1982). 6 Hess & Scharf, supra note 3, at 115. See also Tamar Birckhead, The Age of the Child: Interrogating]uveniles After Roper v. Simmons, 65 WASH. & LEE L. REv. 385, 416-17 (2008) (discussing how juveniles are particularly susceptible to authority figures and are known for falsely confessing in order to be released from custody and allowed to go home). 7 Flores v. Meese, 681 F. Supp. 665, 669 (C.D. Cal. 1988) (holding that routine strip searches of detained alien juveniles violated juveniles' Fourth Amendment rights); Perez-Funez v. INS, 619 F. Supp. 656, 669 (C.D. Cal. 1985) (finding that INS detention procedures for unaccompanied alien children deprive them of due process rights); Perez-Funez v. District Director, INS, 611 F. Supp. 990, 1004 (C.D. Cal. 1984) (granting preliminary injunction against INS policy of using threats and coercion and of not notifying alien children of their rights). This language of threats, coercion, and subterfuge was removed from the permanent injunction. Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1505 (C.D. Cal. 1988) (finding widespread abuse of de­ tained aliens through tactics of coercion and intimidation on the part of the INS); Hess & Scharf, supra note 3; Michael Olivas, Unaccompanied Refugee Children: Detention, Due Process, and Disgrace, 2 STAN. L. & PoL'v REv. 159, 160 (1990) (discussing the tragedy of unaccompanied children who are particularly vulnerable in the immigra­ tion process where they are detained in shameful conditions). 192 CUNY LAW REVIEW [Vol. 15:189

cause deportation proceedings implicate the basic rights of liberty and life, the Fifth Amendment's Due Process Clause protects chil­ dren in deportation proceedings against the denial of life, liberty, or property without due process of law and that allowing them to waive their right to a hearing denied them such due process.8 In the course of the deportation hearing, the child must have a rea­ sonable opportunity to be present, a reasonable notice of the charges, a right to: be represented by counsel, present evidence, cross examine witnesses, and examine and object to evidence of­ fered by the prosecutor.9 By ensuring that children have a mandatory right to a deportation hearing, scholars and advocates noted that the children would then not be able to simply waive their rights to seek relief from removal, but would also be able to seek possible forms of lawful status that would conform with due process of law. IO In the wake of these efforts, together with Flores v. Reno and the subsequent Stipulated Flores Settlement Agreement,11 the Homeland Security Act of 200212 and the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, 13 children are now almost entirely certain to enter the depor­ tation hearing process as called for by advocates and scholars de­ cades ago. Now, the struggle has moved to the notice of rights that attach upon apprehension, service, admissions of removability, competency, and the right to counsel. The way in which advocates have begun litigating these various due process rights that have emerged since children have achieved the right to a deportation hearing will be briefly explored below.

8 Hess & Scharf, supra note 3, at 116. 9 Id. at 116-17. IO Id. at 114, 128. 11 Flores v. Reno, Case No. CV 85-4544-RJK(Px), 5 (C.D. Cal. 1997), availab/,e at http://centerforhumanrights.org/children/Document.2004-06-18.8124043749 (ad­ dressing an INS Western Regional Office change in policy that children would only be released to a parent or guardian unless unusual and extraordinary circumstances war­ ranted release to another adult). The Flores Settlement Agreement now applies to both the Office of Refugee Resettlement for unaccompanied children and the De­ partment of Homeland Security in their contact with all children. See also Perez-Funez v. INS, 619 F. Supp. 656, 659 (1985) (addressing due process rights of juveniles de­ tained by the INS). 12 Homeland Security Act of 2002, Pub. L. No. 107-296, § 462, 116 Stat. 2135, 2202 (codified as amended at 6 U.S.C. § 279) (2006). 13 William Wilberforce Trafficking Victims Protection Reauthorization Act (TV­ PRA) of2008, Pub. L. No. 110-457, 122 Stat. 5044 (codified as amended at 8 U.S.C.A. § 1232(a)(4) (West 2011)). 2011] CHILDREN & YOUTH IN DEPORTATION PROCEEDINGS 193

B. Procedural Due Process Rights in the Removal Proceeding 1. Apprehension and the Form I-770 Notice of Rights, Interrogation, and the Issuance of the Notice to Appear One of the fundamental rights that attach when children are apprehended by U.S. Immigration and Customs Enforcement (ICE) is a requirement to provide them with a Notice of Rights and Request for Disposition through Form I-770. 14 The U.S. Code of Federal Regulations requires that all apprehended children must be given the Form I-770. 15 If the child is less than 14 years of age or unable to understand the notice, the notice must be read and ex­ plained to the child in a language he or she understands. 16 Pursuant to this regulation, the current version of the Form I- 770, Notice of Rights and Request for Disposition (Form I-770 No­ tice of Rights), requires that the arresting officer explain three ba­ sic rights to the apprehended child: the right to use the telephone to call a parent, adult relative or adult friend; the right to be repre­ sented by an attorney who can fully explain the child's rights; and the right to a hearing before the immigration judge who will de­ cide whether you must leave or whether you may stay in the United States.17 Apart from the content of the form, this regulatory re­ quirement also states that the rights must be explained to the child in a language he or she "understands" in order to waive rights.18 The Form I-770 Notice of Rights is usually provided to the child at the U.S. Customs and Border Patrol station, often after traumatic journeys and experiences of apprehension, in a confined space that children often refer to as uncomfortable, cold, and coercive.19

14 8 C.F.R. § 236.3(h) (2012). 15 Id. 16 Id. 0 17 DEP T OF JUSTICE, NOTICE OF RIGHTS AND REQUEST FOR DISPOSITION (2007) [hereinafter FoRM I-770 NOTICE OF RIGHTS] (on file with CUNY Law Review). 18 Thomas Grisso et al., Juvenil,es' Competence to Stand Trial: A Comparison of Adoles­ cents' and Adults' Capacities as Trial Defendants, 27 LAw & HuM. BEHAV. 333, 358-60 (2003) (emphasizing that in the context ofjuvenile justice, judges will look to charac­ teristics of the child, such as age, IQ, prior contacts with law enforcement, and cir­ cumstances surrounding the interrogation, such as location, methods, and lengths of interrogation). Dr. Grisso points out the need to extend these considerations to in­ clude cognitive level, maturity, judgment, and a fundamental understanding of rights. 19 Ana Arboleda & Dorien Ediger-Seto, Seeking Protection, Enduring Prosecution: The Treatment and Abuse of Unaccompanied Undocumented Children in Sfwrt-Term Immigration Detention, THE FLORENCE IMMIGRANT AND REFUGEE RIGHTS PROJECT (Aug. 2009), http:/ /www.firrp.org/media/BPAbuseReport.pdf (reporting on the condition of 124 unac­ companied minors and noting how the majority of them experienced, among other things, physical violence, lack of medical attention, and verbal abuse). 194 CUNY LAW REVIEW [Vol. 15:189

If the Form I-770 Notice of Rights is validly provided and the rights waived by an arresting officer, an interrogating officer then asks a long series of factual questions that are recorded in the Form I-213 Record of Deportable Alien and becomes the basis for the creation of the Form I-862 Notice to Appear that contains factual allega­ tions and grounds of removability. The American Bar Association Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Children in the United States (ABA Standards) provide guidance on the standard for how an adjudicator could determine if there has been a valid waiver of these rights.20 The analysis should include an evaluation of whether the child has suffi­ ciently understood the information received about the remedy or right involved, engaged in rational decision making, and accepted the remedy or waived the right of his or her own volition. In addi­ tion, the ABA Standards commentary encourages a Miranda-styled totality of the circumstances analysis by the adjudicator who must question the child about the child's intent to be removed, specifi­ cally focused on these five concepts: the child understands the na­ ture of the proceedings; the child understands his legal rights; the child understands the consequences of the proposed remedy; the child accepts the proposed remedy; and the child's acceptance is truly voluntary.21 Advocates around the country have litigated on a case-by-case basis whether ICE has met the requirement of providing the Form I-770 Notice of Rights to the apprehended child or whether there was a valid waiver of the rights contained in the Form I-770 Notice of Rights prior to being interrogated by ICE. In particular, attor­ neys have argued that the failure to provide a Form I-770 Notice of Rights is grounds for a motion to terminate deportation proceed­ ings and suppress statements made during any interrogation by ICE.22 Attorneys have also argued that the provision of the Form I- 770 Notice of Rights was invalid in some significant manner, such as the reasons highlighted in the ABA Standards, and that these

20 AM. BAR Ass'N, STANDARDS FOR THE CUSTODY, PlACEMENT AND CARE; LEGAL REP­ RESENTATION; AND ADJUDICATION OF UNACCOMPANIED ALIEN CHILDREN IN THE UNITED STATES 68 (Aug. 2004), availab/,e ast http:/ /www.abanow.org/2004/08/unaccompa­ nied-alien-children-report/ [hereinafter ABA STANDARDS]. 21 Id. at 70. 22 Examples of attorneys constructing this argument include, but are not limited to, Jason Cade, Maureen Schad, and Christa Stewart of The Door Legal Services Center; Rex Chen of Catholic Charities of the Archdiocese of Newark; Heather Axford of Central American Legal Assistance. 2011] CHILDREN & YOUTH IN DEPORTATION PROCEEDINGS 195 rights were not knowingly waived making the facts obtained during any subsequent interrogation inadmissible for the purposes of es­ tablishing grounds of removability. Also, depending on the method of apprehension, particularly in cases of children appre­ hended in the interior, there may be due process challenges that can be brought based upon an unlawful arrest, search and seizure, or racial profiling.

2. Inadequate Service of the Notice to Appear (NTA) An additional due process right specific to children provides that in the case of children under 14 years of age, service of the NTA must be made upon the person with whom the child resides; and, whenever possible, service must also be made on the near rel­ ative, guardian, committee, or friend.23 This provision has been litigated extensively, particularly in cases involving motions to reopen in absentia removal orders.24 This litigation generally demonstrates that there are important dif­ ferences amongst the circuit courts regarding what constitutes proper service on a child pursuant to this regulatory provision. The circuit courts do not agree as to what constitutes actual notice of the hearing or the proper person on whom to serve the notice to appear. There are also open issues on proper service when chil­ dren are in the custody of the Division of Unaccompanied Chil­ dren's Services (DUCS) and whether service on the specific DUCS facility is sufficient to meet the standards set forth in the regulation.

3. Admissions of Removability An additional regulation was implemented in relation to the Immigration and Nationality Act and is meant to protect a child's procedural due process right in the course of the deportation pro­ ceeding. 25 This provision addresses a substantive aspect of the de­ portation hearing by providing that an immigration judge must not accept an admission of removability from an unrepresented child,

23 8 C.F.R. § 103.8(a)(2) (c) (2011). 24 Nolasco v. Holder, 637 F.3d 159, 162 (2d Cir. 2011); Lopez-Dubon v. Holder, 609 F.3d 642, 646 (5th Cir. 2010); Llanos-Fernandez v. Mukasey, 535 F.3d 79, 83 (2d Cir. 2008); Llapa-Sinchi v. Mukasey, 520 F.3d 897, 900 (8th Cir. 2008); Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1163 (9th Cir. 2004); Cubor-Cruz, 25 I. & N. Dec. 470, 473 (B.I.A. Dec. 29, 2011) (holding that service of an NTA on a minor 14 years of age or older at the time of service is effective, even though notice was not also served on an adult with responsibility for the minor). 25 8 C.F.R. § 1240.lO(c) (2011). 196 CUNY IA W REVIEW [Vol. 15:189 under the age of 18, who is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend.26 The immigration judge must then direct a hearing on the issues. 27 Although this regulation has also been extensively litigated creat­ ing differences amongst the circuits, generally, the courts do not accept admissions made by children under the age of 14 without any adult present.28 This provision, however, highlights a perverse anomaly in the development of these procedural due process re­ quirements in that the regulations prohibit an immigration judge from accepting admissions of deportability in court, but allows ad­ missions of deportability given to an arresting officer out-of-court and during interrogation.29

4. The Right to be Represented by an Attorney All of these efforts to protect the child's due process rights depend upon an attorney being present to defend the child in the deportation proceeding because the child's ability to raise these due process rights and potential violations is limited.30 Indeed, the Form 1-770 Notice of Rights recognizes this right as one of the three most fundamental rights at the initiation of the deportation proceeding.31 Currently, the most prevalent form of representation of children in deportation proceedings is through pro bono attor­ neys or privately retained immigration attorneys. 32 There are two major flaws in this system. First, the pro bono and retained legal services provided to children in deportation proceedings is insuffi­ cient as an estimated 60% of children in proceedings still lack di-

26 Id. 27 Id. 28 United States v. Arita-Campos, 2009 WL 306394, at *l (N.D. Ind. 2009); Gonza­ lez-Reyes v. Holder, 313 Fed. Appx. 690 (5th Cir. 2009); Almeida-Amaral v. Gonzales, 461 F.3d 231, 236 (2d Cir. 2006); Flores-Chavez, 362 F.3d at 1163; Davila-Bardales v. INS, 27 F.3d 1 (1st Cir. 1994); Mejia-Andino, 23 I. & N. Dec. 533, 534 (BJ.A. 2002); Gomez-Gomez, 23 I. & N. Dec. 522, 528 (B.1.A. 2002); Ponce Hernandez, 22 I. & N. Dec., 784 (B.1.A. 1999); Amaya-Castro, 21 I. & N. Dec. 583, 586 (B.1.A. 1996). 29 Terry Coonan, Tolerating No Margin for Error: The Admissibility ofStatements by Alien Minors in Deportation Proceedings, 29 TEX. TECH L. REv. 75, 78 (1998) (discussing the inconsistency of U.S. immigration law in the context of admissions made by unaccom­ panied minors in court versus admissions made out of court to an INS officer). 30 See Linda K. Hill, The Right to Be Heard: Voicing the Due Process Right to Counsel for Unaccompanied Alien Children, 31 B.C. THIRD WoRLD LJ. 41 (2011) (evaluating the current conditions of care and custody provided to unaccompanied children and em­ phasizing that there is not only a need for protecting an unaccompanied alien child's need for counsel, but that there is a constitutional right to counsel). 31 FoRM J-770 NOTICE OF RIGHTS, supra note 17. 32 Hill, supra note 30, at 49. 20ll]CHILDREN & YOUTH IN DEPORTATION PROCEEDINGS 197

rect representation.33 For those children who do obtain counsel, the current level of attention and training on children's individual­ ized needs in the course of the removal proceeding and develop­ mental capacity is limited.34 Additionally, the federal government has historically taken the position that it cannot be compelled to provide funds for appointed counsel for respondents in removal proceedings.35 This position, however, does not prohibit the volun­ tary federal funding of appointed counsel, and, therefore, the pos­ sibility of appointed counsel for children and youth in deportation proceedings still exists. Nevertheless, the current system is inade­ quate to meet the legal representation needs of children. Second, there are no specific ethical practice standards that attorneys repre­ senting children in removal proceedings are required to comply with in stark contrast to child welfare and juvenile delinquency proceedings where ethical and practice standards are constantly re­ viewed and debated. However, the ABA Standards can form the basis for such ethical practice standards. If the child is able to ob­ tain representation in the deportation proceeding, the attorney should be held to the highest standard of zealous advocacy set forth in the ABA Standards.36

JI. ATTORNEYS As ZEALOUS ADVOCATES FOR CHILDREN IN DEPORTATION PROCEEDINGS: THE RUBRIC OF PROSECUTORIAL DISCRETION

What then does zealous advocacy mean for the attorney repre­ senting the child in a deportation proceeding? It is without a doubt that protecting the procedural and regulatory due process rights of children, as well as arguing as broadly as possible for existing forms of substantive legal relief for children, both of which are uphill, time and resource-intensive battles, meet the standard of zealous advocacy. Notably, in most training materials and forums for repre­ senting children and youth, the use of prosecutorial discretion as a powerful tool to protect immigrant children has simply been ig­ nored. It has been the DREAM Act children and youth activists who have trained and inspired us on the most critical aspect of due process and zealous advocacy: ensuring that there is the opportu­ nity to be heard in a meaningful time and in a meaningful man-

33 Id. at 50. 34 Id. 35 8 U.S.C.A. § 1362 (Westlaw 2012). 36 ABA STANDARDS, supra note 20, at 12. 198 CUNY LAW REVIEW [Vol. 15:189 ner.37 The reason for this is that DREAM Act activists and youth have been successful in ensuring that DREAM Act factors are ex­ plicitly part of prosecutorial discretion guidance and have also sup­ ported training for attorneys on how to effectively use prosecutorial discretion to ensure that children and youth are meaningfully heard in the course of the deportation proceeding even in the face oflimited forms of substantive legal relief.38 There is no doubt now that arguing for prosecutorial discretion is also required to meet the standard of zealous advocacy for children and youth in removal proceedings. This pushes the attorney to utilize frameworks for advocacy and negotiating on behalf of children and youth within the immigration system. Zealous advocacy for the right to be heard opens the path to prosecutorial discretion, alter­ native tools of humanitarian protection for children, and can, for the first time, ensure that the immigration system hears a more complete account of the lives of immigrant children. Requiring the immigration system to confront these children's realities and the real implications of removing them lends additional accounta­ bility to the system. Rather than being able to turn a blind eye, the immigration system may finally be forced to confront the harsh re­ ality that deporting children implicates.

A. Lawyering Through to Prosecutorial Discretion There is little doubt that the fact that children are in deporta­ tion proceedings is a better scenario and offers more protections than the alternative of the previous system of nearly immediate "voluntary" departure with no due process. Now that children have won the important right to appear before an immigration judge, the attorney must strive to meet the standard of zealous advocacy for the child, ensure that the child is meaningfully heard in the

37 Hess & Scharf, supra note 3, at 116. See also END OuR PAIN, http:/ /www.end ourpain.com/ (last visited Dec. 23, 2011) (conducting a national campaign to prevent the deportations of young people in the United States and thereby allowing them to pursue higher education). 38 See Memorandum from John Morton, Director, ICE, to all Field Office Direc­ tors, all Special Agents in Charge, and all Chief Counsel, (June 17, 2011) available at http:/ /www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo. pdf [hereinafter Morton Memo]. See also Memorandum from Peter S. Vincent, Princi­ pal Legal Advisor, ICE, to all Chief Counsel (Nov. 17, 2011) available at http:/ /www. ice.gov I doclib/ foia/ dro_policy_memos/ case-by-case-review-incoming-certain-pend­ ing-cases-memorandum.pdf [hereinafter Vincent Memo]; Memorandum from the Dep't of Homeland Sec., Guidance to ICE Attorneys Reviewing the CBP, USCIS, and ICE cases Before the Exec. Office for Immigr. Rev. (Aug. 18, 2011) available at http:// www.ice.gov I doclib/foia/ dro_policy_memos/ guidance-to-ice-attorneys-reviewing­ cbp-uscis-ice-cases-before-eoir. pdf [hereinafter Guidance Memo]. 2011] CHIWREN & YOUTH IN DEPORTATION PROCEEDINGS 199 proceedings, and utilize the full spectrum of possible legal strate­ gies to defend the child in deportation proceedings.39 The most basic aspect of effective lawyering for children in removal proceedings is to ensure that children are appropriately screened for legal forms of relief with a broad perspective, ranging from Special Immigrant Juvenile Status, Asylum, Withholding of Removal and Convention Against Torture, U Visas, TVisas, VAWA, citizenship and all other possible derivative forms of relief based on these applications or other family or employment based peti­ tions. However, it is with prosecutorial discretion advocacy, as noted, that lawyering takes on its most zealous and difficult form. In order to advocate with this strategy, it is important to have a basic understanding of how prosecutorial discretion has operated historically and possible strategies for the future.

B. A Brief Overview of the History of Prosecutorial Discretion Prosecutorial discretion advocacy has re-emerged as a focus of attorney advocacy on behalf of clients because of the most recent release of a memorandum from the Director of the U.S. Immigra­ tion and Customs Enforcement, John Morton,40 providing gui­ dance on the exercise of prosecutorial discretion and the memorandum regarding case-by-case review and guidance from the Principal Legal Advisor, Peter S. Vincent.41 The principle of discretion first emerged as a necessity in 1940 when administrative discretion to suspend deportation was conferred on immigration authorities.42 Yet, it was not until the 1970s, in relation to litigation involving the cases ofJohn Lennon and Yoko Ono, that the way in which prosecutorial discretion could be used to grant nonpriority status-also known as deferred action-became publicly known. 43 Deferred action is a prosecutorial discretionary decision not to re­ move an individual from the United States. While it does not con­ fer legal status, it does allow for the individual to apply for an employment authorization document. The then-INS released Op­ erations Instructions on deferred action status in which guidance

39 ABA STANDARDS, supra note 20, at 12. 40 See Morton Memo, supra note 38. 41 See Guidance Memo, supra note 38; Vincent Memo, supra note 38. 4 2 Gerald L. Nueman, Discretionary Deportation, 20 GEO. lMMIGR. LJ. 611, 622 n.29 (2006). 43 Shoba Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. Pus. INT. LJ. 243, 247-48 (2010). See also Leon Wildes, The Deferred Action Program of the Bureau of Citizenship and Immigration Services: A Possible Remedy for Impossible Immigra­ tion Cases, 41 SAN DIEGO L. REv. 819 (2004). 200 CUNY LAW REVIEW [Vol. 15:189 was given on the issuance of deferred action. Due to litigation that implied that this status could be viewed as a right, the INS later amended the Operations Instructions to state that deferred action status was not an entitlement. The Operations Instructions were eventually completely rescinded in the wake of the harsh 1996 im­ migration law, Illegal Immigration Reform and Immigrant Respon­ sibility Act (llRIRA).44 In its place, the Meissner Memorandum was issued to provide guidance on prosecutorial discretion and "be­ came the modern day 'Operations Instruction' for practitioners to utilize in compelling cases."45 Additionally, William Howard,46 Julie L. Myers,47 and now, John Morton48 and Peter S. Vincent,49 have all issued memoranda on the exercise of prosecutorial discretion.

C. A Broad View of Advocacy for the Exercise of Prosecutorial Discretion While much of the focus of discussion of prosecutorial discre­ tion has been on deferred action status, the principle of prosecutorial discretion applies to a broad range of discretionary enforcement decisions. 50 These are particularly important in the case of children in deportation proceedings. The list of potential actions included in the memoranda are: issuing or canceling a no­ tice of detainer; issuing, reissuing, serving, filing, or canceling a Notice to Appear (NTA); focusing enforcement resources on par­ ticular administrative violations or conduct; deciding whom to stop, question, or arrest for an administrative violation; deciding whom to detain or to release on bond, supervision, personal recog­ nizance, or other condition; seeking expedited removal or other forms of removal by means other than a formal removal proceed-

44 Wadhia, supra note 43, at 248-53. 45 Id. at 254. 46 Memorandum from William Howard, ICE Principal Legal Advisor, to all Princi­ pal Legal Advisor Chief Counsel, (Oct. 24, 2005) (on file with CUNY Law Review), available at http:/ /www.scribd.com/doc/22092975/ICE-Guidance-Memo-Prosecuto rial-Discretion-William:J-Howard-10-24-05 [hereinafter Howard Memo]. 47 Memorandum from Julie L. Myers, ICE Assistant Secretary, to all Field Office Directors and Special Agents in Charge, (Nov. 7, 2007) available at http:/ /www. scribd.com/doc/22092973/ICE-Guidance-Memo-Prosecutorial-Discretion:Julie-My­ ers-ll-7-07. 48 Morton Memo, supra note 38. Manuel Gomez, law intern at The Door, drafted and collaborated with the author in the creation of a letter request for prosecutorial discretion that ultimately led to a successful outcome for a child in removal proceed­ ings in New York. 49 See Guidance Memo, supra note 38; Vincent Memo, supra note 38. 50 Morton Memo, supra note 38, at 2-3. See also Howard Memo, supra note 46, at 2 ("The universe of opportunities to exercise prosecutorial discretion is large."). 2011] CHILDREN & YOUTH IN DEPORTATION PROCEEDINGS 201 ing in immigration court; settling or dismissing a proceeding; granting deferred action, granting parole, or staying a final order of removal; agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal; pursuing an appeal; executing a removal order; and responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.51 This list of potential actions is not considered exhaustive. In the case of children in deportation proceedings, some of these actions are critical parts of advocacy and negotiation on be­ half of the child. In particular, advocacy for a favorable exercise of discretion that could lead to the grant of some type of lawful status is critically important. For instance, in the case of a difficult asylum claim for a child, the prosecutor exercising discretion not to pur­ sue an appeal can create a favorable environment for the grant of asylum by the immigration judge. Additionally, in the context of asylum, prosecutorial discretion could be exercised to adjourn an asylum decision and allow for the issuance of an employment au­ thorization document. Attorneys can also seek humanitarian pa­ role or deferred action status and request an employment authorization document in the case of children whose removal would lead to separation from their primary caregivers. This is a particularly strong advocacy strategy with children whose parents have Temporary Protected Status (TPS).52 This could also be an effective strategy in cases where the child has no family to care for them in their country of origin and the child is residing safely with their primary caregiver in the United States.

D. Morton Memo Factors, Vincent Memo Criteria and Guidance Memo Criteria Regarding Children in Deportation Proceedings: Advocating for Expansion into the Best Interests of the Child and Safe Repatriation In determining whether to exercise prosecutorial discretion, the Morton Memo sets forth several factors that ICE attorneys can consider, with particular care and consideration given to minors and individuals present in the United States since childhood.53

51 Morton Memo, supra note 38, at 2. 52 Derivative status for children has not yet been favorably adjudicated by USCIS for recently arrived derivative children. There is still a very viable argument that the child can meet all of the requirements for TPS and at least one immigration court has imputed physical presence and residence from the parent with TPS to the child thereby finding the child eligible for TPS. 53 Morton Memo, supra note 38, at 5. 202 CUNY LAW REVIEW [Vol. 15:189

These factors include, among others: (i) the agency's civil immigra­ tion enforcement priorities; (ii) the person's ties and contributions to the community, including family relationships; (iii) the person's length of presence in the United States; (iv) the person's pursuit of education in the United States; (v) the circumstances of the per­ son's arrival in the United States, particularly if he or she came to the United States as a young child; (vi) the person's ties to the home country and conditions in the country; and (vii) whether the person suffers from severe mental health or physical illness.54 The Guidance Memo adds additional criteria relevant to children: if the child "has been in the United States for more than five years, and is either in school or has successfully completed high school (or its equivalent);" or if the child "came to the United States under the age of 16, has completed high school (or its equivalent) and is now pursuing or has successfully completed higher educa­ tion in the United States."55 This list, however, is not exhaustive and, as such, prosecutorial discretion should include other factors, such as the best interests of the child and the ability of the child to safely repatriate and reintegrate.56 The United Nations Convention on the Rights of the Child ( CRC), 57 although not ratified by the United States, contains prin­ ciples that are consistent with factors and criteria outlined in the most recent memoranda on prosecutorial discretion including those related to the best interests of the child.58 In fact, the princi­ ple that the courts must take into account the "best interests of the child" originated in U.S. family law before becoming an interna­ tional norm.59 Thus, the factors that weigh into an analysis on the

54 Id. at 4. 55 Guidance Memo, supra note 38, at 2. 56 Morton Memo, supra note 38, at 4. 57 Convention on the Rights of the Child, opened for signature Nov. 20, 1989, availa­ ble at, http://www2.ohchr.org/english/law/pdf/crc.pdf (last visited Feb. 1, 2012). 58 Specifically, article 3(1) of the CRC provides that "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Article 9(1) of the CRC requires that "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accor­ dance with applicable law and procedures, that such separation is necessary for the best interests of the child." 59 Sonja Starr & Lea Brilmayer, Family Separation As a Violation of International Law, 21 BERKELEY J. lNT'L L. 213, 225 (2003) ("The principle of the 'best interests of the child,' which originally derived from U.S. family law, is today a ubiquitous feature of international treaties and the reasoning of international institutions."). See, e.g., Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir. 1999) (holding that when child abuse is asserted the child's welfare predominates over other interests); 59 AM. juR. 2011] CHILDREN & YOUTH IN DEPORTATION PROCEEDINGS 203 best interests of the child should form ·part of the prosecutorial discretion advocacy. Each state in the U.S. has statutes that require that a child's best interests be considered with respect to specific types of decisions such as custody, placement, or other "critical life issues."60 With the child's ultimate safety and well-being as the par­ amount concern, the most common guiding principles of best in­ terests determinations include: the child's expressed wishes and point of view; family integrity and avoiding the removal of the child from his or her home; health, safety, and protection of the child; timely permanency decisions; and the assurance that children re­ moved from their homes will be given care, treatment and gui­ dance to assist them in developing into self-sufficient adults.61 There are also common, specific factors that arise across the states including: emotional ties and relationship of the child and his family members; capacity of the caregivers to provide a safe home and adequate food, clothing, and medical care; mental and physi­ cal health needs of the child; mental and physical health of the parents; and presence of violence in the home.62 Additionally, the TVPRA of 2008 mandates the safe and sus­ tainable repatriation of unaccompanied children by providing that: [T] o protect children from trafficking and exploitation, the Sec­ retary of State shall create a pilot program, in conjunction with the Secretary of Health and Human Services and the Secretary of Homeland Security, nongovernmental organizations, and other national or international agencies and experts, to develop and implement best practices to ensure the safe and sustainable repatriation and reintegration of unaccompanied alien children into their country of nationality or of last habitual residence, including placement with their families, legal guardians, or other sponsoring agencies.63 The TVPRA of 2008 further mandates a report on, inter alia, the "steps taken to ensure that such children were safely and hu­ manely repatriated to their country of nationality or of last habitual

2d Parent & Child§ 1 (2011) (general tenets of family law include best interests of the child); 2 AM.juR. 2d Adoption§ 109 (2011) (discussing that, in adoption, "best inter­ ests of the child" is the paramount consideration). 60 CHILD WELFARE INFO. GATEWAY, Determining the Best Interests of the Child: Summary of State Laws l (Mar. 2010), http://www.childwelfare.gov/systemwide/laws_policies/ statutes/best_interest.pdf. 61 Id. at 2. 62 Id. at 3. 63 TVPRA, (West 2011) § 235(a)(l), (5)(A) 8 U.S.C.A. 204 CUNY LAW REVIEW [Vol. 15:189 residence . ."64 Therefore, it is not only within the purview of prosecutorial discretion to consider the safe repatriation and rein­ tegration of the child, but it is also statutorily required. Thus, when it comes to representing children in deportation proceedings, at­ torneys must strive to give the child a chance to be heard about the entirety of their lives-not just the factors outlined in the Morton Memo and the Guidance Memo, but also those that go to their best interests and safe repatriation and reintegration. The way to incorporate these considerations into a prosecutorial discretion request letter can include providing docu­ mentation such as: home study evaluations by a social worker, guardian ad litem, or child advocate; letters of support from school counselors, teachers, religious organizations, sports coaches, and other similarly situated adults in the child's life; letters of support from family members, friends, and other social networks; evidence of participation in sports, after-school programs, and all forms of extracurricular activities; and evidence of specialized medical needs or psychological evaluations. This list is certainly not exhaus­ tive, but even going through the process of identifying supporting documentation ensures that the attorney for the child is in the best position to advocate for the child in the deportation proceeding and that the child is truly heard.

III. CONCLUSION

In reflecting on representing children like Luis and Kathe­ rine, it helps to understand how and why these children are in de­ portation proceedings. A child's right to a deportation hearing was a difficult battle, but one that has given attorneys and the entirety of the immigration system an opportunity to finally hear and un­ derstand the stories and lives of immigrant children. Attorneys for children must be held to the highest standard of zealous advocacy. This requires that attorneys receive proper training and support in: identifying due process rights and ensuring that these are pro­ tected during the course of apprehension and deportation pro­ ceedings; arguing for a broad view of substantive forms of legal relief; and how to actively and effectively seek prosecutorial discre­ tion in these cases as part of the arsenal of legal strategies. In seek­ ing prosecutorial discretion, attorneys will certainly face great challenges in an already strenuous environment. With prosecutorial discretion, advocacy and negotiation inherently re-

64 See id.§ 235(a)(5)(C)(iii). 2011] CHILDREN & YOUTH IN DEPORTATION PROCEEDINGS 205

lies on the prosecutor to exercise discretion and thus depends en­ tirely upon the individual actors within ICE. 65 Additionally, prosecutorial discretion is still not viewed as a right, so there is no opportunity for judicial review of a denial of the exercise of prosecutorial discretion. 66 Going through the process of prosecutorial discretionary ad­ vocacy in and of itself creates greater accountability for attorneys to our child clients. Our children's advocacy community should also be actively involved in the interagency working group of the U.S. Department of Homeland Security and the U.S. Department ofJus­ t tice to ensure that the interests of unaccompanied children are in­ J cluded and evaluated. 67 In giving a voice to children in deportation proceedings, it is most critical to recognize that children and young people themselves, such as the DREAMers, are their own best advocates and we must not silence them in the name of lawyering.

I t

I

65 Wadhia, supra note 43, at 258 n.84. 66 Nueman, supra note 42, at 629. See generally Wadhia, supra note 43, at 286. 67 Letter from Janet Napolitano, Secretary of Homeland Security, to the Honora­ ble Dick Durbin, (Aug. 18, 2011) (on file with CUNY Law Review), available at http:/I durbin.senate.gov/ pu blic/index.cfm/files/ serve?File_id= l l 80a7 46-c6d4-4fe9-b l lf-cf9 be50b6226. .. _