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University of the District of ColumbiaDavid A. Clarke School of LawLaw ReviewVolume 13 Spring 2010Number 1CONTENTSTOWARDS EQUAL FOOTING: RESPONDING TO THEPERCEIVED CONSTITUTIONAL, LEGAL ANDPRACTICAL IMPEDIMENTS TO STATEHOODFOR THE DISTRICT OF COLUMBIA .•.•.•.•.••..•.•••.•.•.. Johnny Barnes 1AN OFFER THEY CAN'T REFUSE: RACIALDISPARITY IN JUVENILE JUSTICE ANDDELIBERATE INDIFFERENCE MEETALTERNATIVES THAT WORK .•••••••.•.••••.••••.•.••.•.••.. Edgar Cahn 71and Cynthia RobbinsBRINGING HOME THE BACON: A TWO-PRONGEDApPROACH TO TRANSPARENT AND EFFECTIVECONGRESSIONAL EARMARKING •..••.•.•.•••...••..•.• Kimberly S. Pulick 115ApPEALING TO THE LEGISLATURE: A COMPARATIVEANALYSIS OF THE GEORGIA STATUTES REGARDINGEVIDENCE PRESERVATION AND ACCESS TOPOST-CONVICTION DNA TESTING ••.•.•...•...•.•. Joy D. Aceves-Amaya 137MISSING IN ACTION: PRISONERS OF WARAT GUANTANAMO BAy •.••••.•.•••••••...•...•. Jerica M. Morris-Frazier 155

University of the District of ColumbiaDavid A. Clarke School of LawLaw ReviewVolume 13Spring 2010Number 12009-2010 EDITORIAL BOARDEditor-in-ChiefKimberly S. PulickSymposium EditorKatherine C. TackettClinical Bibliography EditorMegan S. VaheyPublications EditorJessica A. GrayManaging EditorJustin M. McLeodNotes EditorJerica M. Morris-FrazierArticles EditorJoy D. Aceves-AmayaGilda CarbonaroNicholas ClarkLindsay ConnollyMatthew HillAndrew BonaPaula BrooksIrvin CannadayLeandra CarrascoMelissa ChongMarshall ChriswellBrec CookeMalik DixonShelby Emmett2009-2010 Senior EditorsWilliam HintonAshley HughesJessenia MaldonadoRobert Maxwell2009-2010 Associate EditorsJillian FredrickAdrian GottshallSasha GrandisonKelly HoercherlErin HurdJoseph Karlya IIIKseniya KuksovaShih Ching LiLeila MansouriEvan MascagniFaculty AdvisorsMatthew FraidinHelen FrazerWilliam McLainFrancis MelliMichael PiccinelliSarah RozenskyMegan StockhausenAndrew PalmerMatthew PerdoniBenjamin PetokYesenia RiveraSonja SeehusenHeather StricklandChristopher ThomasTravis Van HookDana Walters

University of the District of ColumbiaDavid A. Clarke School of LawADMINISTRATIONKATHERINE S. BRODERICK, B.A., J.D., M.A.T., Dean and Professor of LawANN B. RICHARDSON, B.A., J.D., Associate Dean for Academic Affairs and Associate Professor ofLawANNAMARIA STEWARD, B.A., J.D., Associate Dean of StudentsJANICE WASHINGTON, B.A, M.A, M.B.A, J.D., Associate Dean for Administration and FinanceVICENC; FELlU, B.A, M.A., J.D., LL.M., Director of the Mason Law Library and AssistantProfessor of LawDENA BAUMAN, B.A., M.A., J.D., Director of Career ServicesVIVIAN W. CANTY, B.A., M.S., Assistant Dean for AdmissionHELEN FRAZER, M.L.S., M.A, J.D., LL.M., Associate Director of the Mason Law LibraryBARBARA W. GREEN, B.A., M.A., RegistrarJOSEPH F. LIBERTELLI, B.A., J.D., Director of Alumni AffairsDONALD PRITCHETf, JR., B.A., J.D., Assistant Director of AdmissionJOSEPH B. TULMAN, A.B., J.D., M.A.T., Clinical Director and Professor of LawNAILAH WILLIAMS, B.S., M.S., M.B.A., Director of the Office of Financial AidLAW FACULTYROBIN C. ALEXANDER, B.A, J.D., Associate Professor of LawEDWARD ALLEN, B.A., J.D., Professor of LawDEREK M. ALPHRAN, B.A., J.D., Associate Professor of LawMARTA W. BERKLEY, B.A., J.D., Adjunct Professor of LawTHE HONORABLE ANNA BLACKBURNE-RIGSBY, B.A., J.D., Adjunct Professor of LawSPENCER H. BOYER, B.S., J.D., LL.M, Adjunct Professor of LawJOHN C. BRITTAIN, B.A., J.D., Visiting Professor of LawSTEPHANIE Y. BROWN, B.A, J.D., Associate Professor of LawROBERT L. BURGDORF JR., AB., J.D., Professor of LawEDGAR S. CAHN, B.A., M.A., Ph.D., J.D., Distinguished Emeritus Professor of LawISAAC CAMPBELL, B.A., J.D., Adjunct Professor of LawTANYA ASIM COOPER, B.A., J.D., Clinic InstructorCOLIN M. DUNHAM, B.A., J.D., M.A., Adjunct Professor of LawKAREN EVANS, B.S., J.D., Adjunct Professor of LawMATTHEW I. FRAIDIN, B.A., J.D., Associate Professor of LawKAREN GRAY, B.S., J.D., Adjunct Professor of LawWADE HENDERSON, B.A., J.D., Professor of Public Interest LawLoUISE A. HOWELLS, B.A., M.A., J.D., LL.M, Professor of LawFRANCESCO ISGRO, B.A., J.D., LL.M., Adjunct Professor of LawCHRISTINE L. JONES, B.A, J.D., Associate Professor of LawKEVIN P. KELLY, B.A., M.B.A, C.P.A., J.D., Assistant Professor of LawTHE HONORABLE MILTON "TONY" C. LEE, JR., B.S., J.D., Adjunct Professor of LawTHOMAS MACK, B.A., J.D., Professor of LawKERMIT MAWAKANA, B.A, J.D., LL.M, Assistant Professor of LawWILLIAM G. McLAIN, B.A., J.D., Associate Professor of LawSTEPHEN B. MERCER, B.A, J.D., Adjunct Professor of LawANGELA D. MINOR, B.A, M.L.S., J.D., M.Div., Adjunct Professor of LawLAURIE A. MORIN, B.A., M.P.A., J.D., Professor of Law

JILL C. MORRISON, B.A., J.D. Adjunct Professor of LawROYCE BERNSTEIN MURRAY, B.A., J.D., Adjunct Professor of LawAUDREY ORTEZA, B.A.. J.D., Clinic InstructorMELVIN L. OTEY, B.A., J.D .• Adjunct Professor of LawTHE HONORABLE PETER J. PANUTHOS, B.A., J.D .• LL.M., Adjunct Professor of LawSHAKIRA D. PLEASANT, B.A., J.D., Adjunct Professor of LawTHE HONORABLE WILLIAM C. PRYOR, B.A., J.D., LL.M., Distinguished Professor of LawOMYRA RAMSINGH, B.S., M.A., J.D., Adjunct Professor of LawROBERT RAYMOND, B.A., J.D., Adjunct Professor of LawWILHELMINA M. REUBEN-COOKE, B.A., J.D., Professor of LawTHE HONORABLE ROBERT R. RIGSBY, B.S., J.D., Adjunct Professor of LawALYSIA ROBBEN, B.A., J.D., Clinic InstructorWILLIAM L. ROBINSON, A.B, LL. .B., Professor of LawW. SHERMAN ROGERS, B.A., J.D., LL.M., Adjunct Professor of LawWALLACE "GENE" E. SHIPP, B.A., J.D., Adjunct Professor of LawBARBARA V. SMITH, B.A., J.D., LL.M., LL.M., Adjunct Professor of LawTAMI TAYLOR, B.A., J.D., Adjunct Professor of LawJOHN F. TERZANO, B.A., J.D., LL.M., Adjunct Professor of LawSUSAN L. WAYSDORF, B.A., J.D., Professor of Law

University of the District of ColumbiaDavid A. Clarke School of LawTHE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW (ISSN 1063-8601) ispublished once annually by students of the University of the District of Columbia DavidA. Clarke School of Law, 4200 Connecticut Avenue NW, Building 38, 2nd Floor,Washington, D.C. 20008. Manuscripts should be sent to the Articles Editor at this address.The opinions expressed in articles are those of the signed author(s) and do not necessarilyreflect the views of the University of the District of Columbia School of Law or the LawReview.Subscriptions are accepted for the entire volume. l Subscriptions are payable inadvance or billable. Domestic & Foreign: $25.00. Mailing Address: THE UNIVERSITY OFTHE DISTRICT OF COLUMBIA LAW REVIEW, The University of the District of ColumbiaDavid A. Clarke School of Law, 4200 Connecticut Avenue NW, Building 38, 2nd Floor,Washington, D.C. 20008.Subscriptions are renewed automatically upon expiration unless the subscriber sendstimely notice of termination. All notifications of change of address should include oldaddress, including zip code, and new address, including zip code. POSTMASTER: Sendaddress changes to the: THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW,The University of the District of Columbia David A. Clarke School of Law, 4200Connecticut Avenue NW, Building 38, 2nd Floor, Washington, D.C. 20008.Unless a claim is made for nonreceipt of LAW REVIEW issues within six months of themailing date, the LAW REVIEW cannot be held responsible for supplying those issueswithout charge.All articles are copyrighted © 2010 by THE UNIVERSITY OF THE DISTRICT OFCOLUMBIA LAW REVIEW, except when otherwise expressly indicated. For all articles inwhich it holds copyright, THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWpermits copies to be made for classroom use, provided that: the user notifies THEUNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW, the user has made such copies,the author and THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW areidentified, and proper notice of copyright is affixed to each copy. Except when otherwiseexpressly provided, the copyright holder for every article in this issue of THE UNIVERSITYOF THE DISTRICT OF COLUMBIA LAW REVIEW grants permission for copies of that articleto be made for classroom use, provided that: the user notifies the author and THEUNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW, the user has made such copies,the author and THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW areidentified, and proper notice of copyright is affixed to each copy.Information for Contributors:THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW invites submission ofunsolicited manuscripts. All manuscripts should be double-spaced and all footnotes shouldconform to The Bluebook: A Uniform System of Citation (18th ed.). As a matter of policy,the LAW REVIEW encourages the use of gender-neutral language. Please enclose anenvelope with return postage if you would like your manuscript returned afterconsideration.Send all correspondence to THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAWREVIEW, The University of the District of Columbia David A. Clarke School of Law, 4200Connecticut Avenue NW, Building 38, 2nd Floor, Washington, D.C. 20008 or tolawreview@udc.edu.1 To be cited as 13 UOClOCSL L. REV. - (2010).

University of the District of ColumbiaLaw ReviewVolume 13 Spring 2010 Number 1TOWARDS EQUAL FOOTING:RESPONDING TO THE PERCEIVED CONSTITUTIONAL,LEGAL AND PRACTICAL IMPEDIMENTS TOSTATEHOOD FOR THE DISTRICT OF COLUMBIAJohnny Barnes** Attorney Johnny Barnes spent almost a quarter of a century in various Congressional staffpositions. serving as Chief of Staff to several Representatives. During his time with Congress, Barneswas involved in the successful effort to secure passage of a proposed amendment to the United StatesConstitution that would have given full voting representation to the District of Columbia. Thatamendment passed by supermajorities (two-thirds) in the House and Senate, but later died during theratification process in the states. Barnes drafted the proposed amendment, H.R.J. Res. 554. He alsodrafted the first bill, following the District of Columbia's Statehood Constitutional Convention, proposingto give statehood to the District of Columbia: H.R. 51. In addition to his congressional work,he has taught law and college courses at various area schools and has practiced law in Washington,D.C. and the U.S. Virgin Islands. About practicing in the Virgin Islands, "Someone had to do it," saidBarnes. A Distinguished Military Graduate. Commissioned in the Regular Army (Career Path) andHonorably Discharged Combat Engineer Officer, Barnes graduated Cum Laude from Central StateUniversity and received his Juris Doctorate from Georgetown University Law Center.The Author wishes to acknowledge the early assistance of the following law students: Lauren O.Ruffin, Howard University Law School; Sue-Yun Ahn, Columbia Law School; and Dekonti Mends­Cole and Justin Hansford, both of Georgetown University Law Center; as well as more recent assistancefrom: Michael Liszewski, University of the District of Columbia, David A. Clarke School ofLaw; Chantal Khalil, New York University; Richard Cuthbert, American University's WashingtonCollege of Law; Michael Greenwald, Washington University in St. Louis; Daniel Fitzgerald Universityof California at Santa Cruz; Sarah Ramuta, University of Illinois at Urbana-Champaign; Bertram Lee,Haverford College; Ian Cooper, Trachtenberg Scholar at The George Washington University; FidelCastro, University of the District of Columbia, David A. Clarke School of Law; and Amy Menzel,University of Utah. Attorney Ann Loikow, Chair of the D.C. Statehood Yes We Can Coalition organizedAppendix I. The Author also wishes to acknowledge the invaluable guidance given in earlywritings by Professor Jason Newman of the Georgetown University Law Center as well as CongressmanWalter E. Fauntroy (D-DC), a giant in this struggle, whose singular efforts for Home Rule andD.C. Voting Rights are unmatched in history and who gifted all of us with hope from the tunnel'slight. Finally, the author wishes to thank his daughter, Sia Tiambi Barnes, for her genius-like editorialsupport.

2 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWI. INTRODUCTIONA. Making D. C. Citizens the Same as All Other Citizens of the WorldEvery human being on this planet, residing in a nation with representativegovernment, enjoys political standing l , and most enjoy sovereignty2 - exceptthose who happen to reside in Washington, D.C. 3 Political standing in Americagrows out of the Seventeenth Amendment, providing for the popular election ofsenators;4 as well as Article I of the Constitution. s The absence of true representationfor the people of Washington, D.C. in the United States Senate and only acloistered presence in the House of Representatives is a blight on America's democracy;a glaring imperfection of a way of life this nation seeks to foist on allothers. This contradiction empowers America's detractors and weakens its proponents.6 Senator Edward M. Kennedy (D-MA) testifying at a House of Repre-1 Political standing in this context is equal participation; voting representation in a nation'sgoverning body. "[E]qual representation for equal numbers of people" is a fundamental goal. Wesberryv. Sanders, 376 U.S. I, 18 (1964).2 Sovereignty is U[s]upreme dominion, authority, or rule," independence. BLACK'S LAW DIC­TIONARY 1430 (8th ed. 2004).3 In fact, many federal nations that extend the rights of representation to the residents of thecapital have molded their governments after our own. Yet, on this basic issue of representation, theyhave taken the lead and surpassed the United States. A full discussion of the status of the District ofColumbia in the context of other capital cities around the world is presented in International Law andthe District of Columbia, infra, with excerpts from a wider discussion prepared and presented by theauthor in the booklet, If You Favor Freedom: You Must Favor Statehood for the District of Columbia,published in October, 1986, when he served as Chief of Staff to former Congressman Walter E. Fauntroy(D-D.C.). If You Favor Freedom was preceded by another booklet prepared and presented bythe author in 1978, A Simple Case of Democracy Denied, published when he served as Counsel toCongressman Fauntroy. Interestingly, nothing changed between 1978 and 1986 regarding the Districtof Columbia's standing compared to other world capitals and nothing has changed to this date. Seegenerally OFFICE OF CONGRESSMAN WALTER E. FAUNTROY, IF You FAVOR FREEDOM: You MUSTFAVOR STATEHOOD FOR THE DISTRICT OF COLUMBIA (Johnny Barnes, ed., 1986), reprinted inH.REP. No. 100-1 (1987), available at http://www.dcvote.orgltrellis/struggle/1986favorfreedomstatehood.cfm, [hereinafter IF You FAVOR FREEDOM].4 U.S. CONST. amend. XVII, provides that, "[t]he Senate of the United States shall be composedof two Senators from each State, elected by the people thereof ..." Prior to the adoption of theSeventeenth Amendment, Senators were elected by state legislatures. U.S. CoNST. art. I, § 3, c1. 1.5 U.S. CONST. art. I, § 2, c1. 1 provides, "The House of Representatives shall be composed ofmembers chosen every second Year by the people of the several States." There are 435 Representativesin the House. That number was set by Congress in 1911 and is not a Constitutional mandate.The number has varied, over the years. Initially, each state had one Representative in a UnicameralBody. Election of Senators and Representatives, Pub. L. 62-5, 37 Stat. 13, 14 (codified as 2 U.S.c. § 2(1911».6 Timothy Cooper, Executive Director of the World Rights Organization and D.C. Statehoodenthusiast and activist who has traveled around the world, has reported that, "On December 30, 2003,the Organization of American States' (OAS) Inter-American Commission on Human Rights issuedRep. No. 98/03 in case 11.204 - Statehood Solidarity Committee v. United States. That report readsin part: 'The Commission hereby concludes that the State is responsible for violations of the Petitioners'rights under Articles II and XX of the American Declaration by denying them an effective oppor-

TOWARDS EQUAL FOOTING 3sentatives D.C. Statehood Hearing in 1984 stated, "The time has come at longlast to end the unacceptable status of the District of Columbia as America's lastcolony.,,7Sovereignty for non-federal entities in the United States stems from the TenthAmendment. 8 The constraints on sovereignty for non-federal entities are specificallystated in several parts of the Constitution, but are generally found in theCommerce Clause - for example, only the federal government maintains thepower to make money, declare war, enter into treaties with foreign governments,and exercise broad taxing authority.9 These constraints on non-federal entitiesshould not be read, however, as only limiting the rights given to the states andlocal governments, but those of individuals. In New York v. United States, theUnited States Supreme Court noted, "[t]he Constitution does not protect the sovereigntyof states for the benefit of the states or state governments as abstractpolitical entities, or even for the benefit of the public officials governing thestates. The Constitution divides authority between federal and state governmentsfor the protection of individuals.,,10 When citizens have the benefit of politicalstanding and sovereignty, as every American except those residing in Washington,D.C. have, they are said to be on equal footing. lltunity to participate in their federal legislature ... '" Statehood Solidarity Comm. v. United States,Case Rep. No. 98/03 Inter-Amer. Comm. H.R. (2003); INTER-AMERICAN COMM'N. ON HUMANRIGHTS, ORG. OF AM. STATES, REP. No. 09/03 § 117 (2003), http://www.cidh.orglannualrep/2oo3englUSA.11204a.htm. The Inter-American Commission on Human Rights recommended to the UnitedStates that it "[p]rovide the Petitioners with an effective remedy, which includes adopting the legislativeor other measures necessary to guarantee to the Petitioners the effective right to participate,directly or through freely chosen representatives and in general conditions of equality, in their nationallegislature." Id. at § 119. Moreover, the Organization for Cooperation in Europe (OSCE),both the Office for Democratic Institutions and Human Rights (ODHIR) and the Parliamentary Assemblycall "on the Congress of the United States to adopt such legislation as may be necessary togrant the residents of Washington, D.C. equal voting rights in their national legislature in accordancewith its human dimension commitments." ORGANIZATION FOR SECURITY AND COOPERATION IN Eu­ROPE, WASHINGTON, D.C. DECLARATION ON DEMOCRACY, HUMAN RIGHTS AND HUMANITARIANQUESTIONS § 58 (July 5, 2005). A fuller discussion of the implications of America's denial of votingrights to its own citizens and the impact of such denial on America's standing in the world communityis presented in International Law and Politics supra.7 Kennedy Introduces Bill Urging Statehood for D. c., WASH. POST, Jan. 25, 1985, available athttp://www.washingtonpost.comlwp-dynlcontentlarticle/2oo9/03/18/ AR2oo9031802555.html.8 U.S. CONST. amend. X provides, "The powers not delegated to the United States by the Constitution,nor prohibited by it to the States, are reserved to the States respectively, or to the people."9 U.S. CONST. art. I, §8, cl. 3 states that, "The Congress shall have the Power To regulate Commercewith foreign Nations, and among the several States, and with the Indian tribes ... "10 New York v. United States, 505 U.S. 144, 181 (1992) (emphasis added).11 U.S. CONST. amend. XIV provides that, "no state shall ... deny to any person within itsjurisdiction the equal protection of the laws." Known as the "Equal Protection Clause," this provisionof the Constitution makes clear and true America's promise that "aU men [and women] arecreated equal." Id. The protections of the Fourteenth Amendment were extended to the people ofWashington, D.C. in Bolling v. Sharpe, 347 U.S. 497 (1954), a companion case to the landmark school

4 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWII. BACKGROUNDIn America, citizens in small states are treated no different than citizens inlarge states. Small town farmers are treated no different than big city businesspeople. When it comes to the Constitution and the Bill of Rights, the wealthyelite are treated no different than the modest middle class or the downtroddenhomeless. Instead of James Madison's vision of a national government free ofany power among the states as the final version of the Constitution granted thestates a substantial role and basic involvement in the operation of the nationalgovernment. When the Constitution was written in 1787, it did not contain a Billof Rights, a subject of much contention. 12 The Bill of Rights, the first ten amendments,was adopted four years later in 1791. 13 Basic rights and equal treatmentfor all have been a fundamental premise since the creation of our government.Notwithstanding this history, basic rights continue to elude the people of the Districtof Columbia.A. Admitting a New StateSince the admission of Tennessee in 1796, every act making new states a partof the United States has included a clause providing, in relevant part, entry "onan equal footing with the original states in all respects whatever.,,14Congress alone has the power to admit new states. IS The doctrine of equalityof states - treating all states the same and hence all citizens within the states thesame - is now an axiom of constitutional law. 16 "Equality of constitutional rightdesegregation case, Brown v. Board of Education, 347 U.S. 483 (1954). The Court in Sharpe relied onthe Fifth Amendment in reaching its decision regarding the District of Columbia. Sharpe, 347 U.S. at497 (1954).12 Mark A. Graber, Enumeration and Other Constitutional Strategies for Protecting Rights: TheView From 178711791, 9 U. PA. J. CONST. L. 357, 360-63 (2007). The Federalists would have preferreda document that merely outlined the structure of the government. The anti-Federalists distrustedcentralized authority such as had been experienced under the British Crown. To secure passage of theConstitution, the Federalists had to agree to add amendments incorporating basic rights. [d.13 There are many scholarly works. discussing this period of our history and the creation of ourgovernment. See AMERICAN CIVIL LIBERTIES UNION, The Bill of Rights: A Brief History (2004),http://www.aclu.org/crimjustice/gen/10084res20020304.html. See also EUGENE W. HICKOCK, JR., THEBILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING (1991); RICHARD E. LABUN.SKI, JAMES MADISON AND THE STRUGGLE FOR THE BILL OF RIGHTS (2006); CREATING THE BILL OFRIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS (Helen E. Viet et al.eds., Johns Hopkins University Press 1991); THE DISTRICT OF COLUMBIA: ITS HISTORY, ITS GOVERN.MENT. ITs PEOPLE (Johnny Barnes, ed., 3d ed. 1975).14 1 Stat. 491 (1796) (emphasis added).15 U.S. CONST. art. IV. §. 3, cl. 1.16 Escanaba Co. v. City of Chicago, 107 U.S. 678, 689 (1883). See also Pollard's Lessee v. Hagan,44U.S. 212 (1845); Permoli v. First Municipality, 44 U.S. 589, 609 (1845); Pound v. Turck, 95 U.S.459 (1877).

TOWARDS EQUAL FOOTING 5and power is the condition of all the states of the Union, old and new.,,17 "Thepower is to admit new states into this Union. This Union was and is a union ofstates, equal in power, dignity and authority ... [t]o maintain otherwise would beto say that the Union ... might come to be a union of states unequal inpower .... " 18 With that reasoning, the Court struck down a restriction Congresshad sought to impose as a condition for admitting Oklahoma into the Union.Congress had sought a change in the location of the state capital in Oklahoma,which, under the Equal Footing Doctrine, is a matter solely within the state. 19The "equal footing" clause was designed not to wipe out economic diversitiesamong the several states, but to create parity as respects political standing andsovereignty.2o The Equal Footing Doctrine is deeply rooted in history.21 Thatview was repeated in a more recent case in which the Court rejected an argumentthat Congress could not regulate federal land within a state. 22 Political standingand sovereignty means that a new state is entitled to exercise all the powers ofgovernment that the original states exercised. 23 A new state gains authority overcivil and criminal laws in order to preserve public order and safety and protectpersons and property within its boundaries. 24 A new state has the power to taxprivate activities conducted within the public domain. 25 Statutes applicable toareas that become new states no longer have any force or effect, unless the newstates adopt such statutes. 26The right of local self-government, as known to our system as a constitutionalfranchise, belongs, under the Constitution, to the states and to thepeople thereof ... Admission on an equal footing with the original states, inall respects whatever, involves equality of constitutional right and power,which cannot there-afterwards be controlled, and it also involves the adoptionas citizens of the United States of those of whom Congress makesmembers of the political community, and who are recognized as such in theformation of the new state ... 2717 Escanaba. 107 U.S. at 689.18 Coyle v. Smith, 221 U.S. 559, 567 (1911) (affirming an earlier decision by the Court in Texasv. White, 74 U.S. 700 (1869».19 Id.20 United States v. Texas, 339 U.S. 707, 716 (1950) (emphasis added).21 Utah Div. of State Lands v. United States, 482 U.S. 193, 196 (1987).22 United States v. Medenbach, 116 F.3d 487 (9th Cir. 1987) (state consent is not a prerequisiteto federal regulation of federal land pursuant to the Property Clause). See also United States v.Gardner, 107 F.3d 1314, 1319 (9th Cir. 1997).23 Pollard v. Hagan, 44 U.S. 212, 223 (1845).24 Van Brocklin v. Tenn .. 117 U.S. 151, 167 (1886).25 Wilson v. Cook, 327 U.S. 474, 487 (1946).26 Permoli v. First Municipality. 44 U.S. 589. 609 (1845).27 Boyd v. Nebraska, 143 U.S. 135, 170 (1892) (emphasis added).

6 UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWIt seems clear that if the people of the District of Columbia are to be treated thesame as all other American citizens - placed on equal footing - ultimately, theConstitutional path to that end is Article IV, Section 3, Clause 1, relating to theadmission of new states.B. The Current SituationThose residing in Washington, D.C. lack political standing and sovereignty.No other citizens are similarly situated. District residents cannot vote for senatorsor representatives; although they do vote for a non-voting delegate to theHouse. 28 No matter the population, citizens entitled to only as many electors tothe Electoral College as the least populous state. 29 As a result, the District'srepresentation does not correspond with its population. Moreover, while theHome Rule Act 30 gave District residents the right to vote for a local electedgovernment, Congress placed such severe restraints on that right, that some referto the Act as "Home Fool.,,31 Others liken District residents to Native Americans,commenting that with Home Rule, District residents were given "the reservationwithout the buffalo. ,,32 This label is particularly poignant at times whenthe District government seeks to manage and conduct its financial affairs. Congressmust pass an appropriations bill for the District, as it does for every federalagency. Thus, from local budget formulation to implementation the process cantake as many as eighteen months. 33 The form and structure of the District makes28 District of Columbia Delegate Act, Pub. L. No. 91-405, 84 Stat. 845 (1970).29 u.S. CONST. amend. XXIII, § 1 ("The District constituting the seat of Government of theUnited States shaU appoint in such manner as the Congress may direct: A number of electors ofPresident and Vice President equal to the whole number of Senators and Representatives in Congressto which the District would be entitled if it were a State, but in no event more than the least populousState ... "). Id.30 District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No.93-198,87 Stat. 774 (1973) (codified as D.C. Code § 1-221 (1973», renamed "The Home Rule Act" aspart of The District of Columbia Revitalization Act, ntle XI of the Balanced Budget Act of 1997,Pub. L. No. 105-33, 111 Stat. 251 (1997) .31 See The District of Columbia Revitalization Act, ntle XI of the Balanced Budget Act of1997, Pub. L. No. 105-33, III Stat. 251 (1997). Also referred to and recently formally renamed as the"Home Rule Act," its stated purpose is, in part, "to the greatest extent possible ... relieve Congressof the burden of legislating upon essentially local District matters." Id. at § 102(A). The Act providesfor a locally elected Mayor and thirteen-member D.C. Council. Id. at §§ 401(A), 421(A). As is clear,however, Congress really did not relieve itself of the burden of legislating on local matters.32 See If You Favor Freedom, supra note 3. This document was produced at the introduction ofH.R. 51, a D.C. Statehood Bill.33 Under the Home Rule Act, Congress can exercise a Line Item veto and thereby considerseach expenditure the District proposes to make. District of Columbia Self-Government and GovernmentalReorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified as D.C. Code § 1-221(1973».

TOWARDS EQUAL FOOTING 7it very different from any state and makes it difficult to conduct an efficientgovernment. 34District of Columbia citizenship is particularly diluted when democracy istested. Had Congress decided the Bush-Gore presidential contest and the Floridavote in 2000, District residents would have had no vote in that vital process?5They had no vote when Congress passed the Patriot Act. 36 District citizens alsohad no vote when decisions were made to involve America in Iraq. District residentsshoulder all the duties of citizenship, including paying federal taxes, andfighting and dying in wars, but they do not share in all the fruits of citizenship.37Moreover, they have performed both of those responsibilities, paying taxes andfighting in wars, at higher rates than much of the rest of the country. This blighton America exists notwithstanding the fact that Americans living in the Districtof Columbia pay taxes,38 as well as fought and died in every war since the AmericanRevolution?9 Additionally, while over 95 percent of the District's localbudget is from local tax dollars, the federal government controls the entirebudget. 4o Congress has the power to enact local laws on the District and has finalsay over any laws passed by the local government. 41 Controlling the budget andlaws epitomizes "Taxation Without Representation.,,4234 See Jd. In a recent D.C. Appropriations Bill, Congress placed as many as seventy limitationson the District of Columbia's ability to spend its own money. See District of Columbia AppropriationsAct, S. 1446, 109th Congo (2006). Some of those limitations, such as not using federal funds to pay forabortions or banning needle exchange programs, are placed every year in D.C. appropriations bills.Whatever the limitation, the citizens of other states are not similarly bridled.35 Office of the Clerk, U.S. House of Representatives, The Electoral College, http://clerk.house.gov/arChistorylhouse_history/electoral.html (last visited Nov. 9, 2(09).In the case of an Electoral College deadlock or if no candidate receives the majority of votes, a'contingent election' is held. The election of the President goes to the House of Representatives.Each state delegation casts one vote for one of the top three contenders to determine a winner.[d.36 Uniting and Strengthening America by Providing Appropriate Tools Required to Interceptand Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. 107-56, 115 Stat. 272 (2001) (codifiedthroughout the United States Code).37 Federal taxation was implemented through U.S. CONST. amend. XVI; the first draft was implementedthrough the Selective Service Act, Pub. L. No. 65-12, 40 Stat. 76 (1917).38 District of Columbia Appropriations Act of 2005, Pub. L. 108-335, 108th Congo (2004).39 See JfYou Favor Freedom, supra, note 3, at 1-5 (providing a good, non-technical examinationof many of the issues surrounding D.C. Statehood).40 See section 603 of the District of Columbia Self-Government and Governmental ReorganizationAct. Congress through this section controls "the borrowing, spending and budgetary process ... "for the District of Columbia. Jason I. Newman & Jacques B. DePuy, Bringing Democracy to theNation's Last Colony: The District of Columbia Self-Government Act, 24 AM. U. L. REV. 537, 550(1975).41 See CONSTANCE McLAUGHLIN GREEN, WASHINGTON: A HISTORY OF THE CAPITAL, 1800-1950 (1962).42 DANIEL A. SMITH, TAX CRUSADERS AND THE POLITICS OF DIRECT DEMOCRACY 21-23(1998). The statement, "Taxation without representation is tyranny," was a rallying cry that helped to

8 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWCongress may at any time - for any reason or no reason, at times arbitrarily,capriciously, and even whimsically - decide to interfere and intervene in the affairsof the people of Washington, D.C. and tell them how to live or tell them howto die. 43 There is pending language in an amendment to the current D.C. VotingRights Bill that would effectively repeal the revised gun regulation law passed bythe District government following the Heller 44 case. That language mirrors languagein a bill introduced in a recent Congress. 45 Before Heller, gun controlexisted in Washington, D.C. for more than thirty years and was supported by thevast majority of District residents because crimes involving guns is a matter ofgrave concern when it comes to public safety in the District.Notwithstanding that strong local sentiment, Congress sought to repeal theDistrict's strict gun control law. 46 Congress has considered denying tax exemptionsfor interest on bonds used for health care facilities that perform abortions. 47A number of rules enacted by Congress are opposed by most District residents,including: bans on the spending of local tax dollars on reproductive rights,48 medicalmarijuana,49 AIDS prevention measures,50 and domestic partnership benefits.51 In fact, at this writing the U.S. House of Representatives voted to end theshape attitudes leading to the American Revolution. Its origin is unclear, however, it is often attributedto a Harvard Trained Lawyer, James Otis, Jr., who lived in Massachusetts and believed strongly,when the British passed the Stamp Act, that the Parliament had no right to tax the colonies that werewithout representation in that body. Id.43 See If You Favor Freedom, supra note 3.44 District of Columbia v. Heller, 554 U.S. _, 128 S.Ct. 2783 (2008).45 District of Columbia Personal Protection Act, H.R. 1288, 109th Congo (2005).46 Id.47 H.R. 4922, 101st Congo (1991).48 NATIONAL COMMISSION FOR A HUMAN LIFE AMENDMENT, PRO-LIFE LEGISLATION IN CON­GRESS 2000 9 (2000). "On July 11,2000, the District of Columbia City Council. .. approved the HealthInsurance Coverage for Contraceptive Act of 2000 (D.C. Bill 13-399), a measure that mandated contraceptive... coverage in health insurance plans. On July 13, 2000, the subcommittee approved theFY 2001 D.C. Appropriations Bill ... with the provision that the proposed D.C. Council law 'shall nottake effect.'" Id.49 District of Columbia Appropriations Act of 1999, H.R. 4380, 105th Congo (1998). On October21,1998, Rep. Robert L. Barr Jr. (R-GA.) attached an amendment to the above-noted 1999 D.C.appropriations bill. The so-called "Barr Amendment" prohibited the District from spending moneyon any initiative that would legalize or reduce the penalties for users of marijuana. The measurepassed along with the D.C. spending bill.50 Drug Free Century Act, S. 5, 106th Congo § 3005(a) (1999). "Notwithstanding any otherprovision of law, none of the amounts made available under any federal law for any fiscal year may beexpended, directly or indirectly, to carry out any program of distributing sterile needles or syringes .... , Id. See also Makebra Anderson, Needle Exchange Program Sticks with Addicts, MINN. SPOKES­MAN-RECORDER, Mar. 7, 2005, http://www.spokesman-recorder.comlnews/article/article.asp?NewsID=3814&sID=3&ltemSource=N. ("Because of its unique relationship with the federal government,D.C. is the only city in the U.S. that has been barred from using local tax dollars to fund needleexchange programs.").51 The D.C. Council initially passed a bill allowing for health benefits, among other things, forpersons in a "caring relationship," but not necessarily married. District of Columbia Appropriations

TOWARDS EQUAL FOOTING 9ban on distributing sterile needles and syringes. While not law yet, it seems somein the Congress recognize that human life is more precious than conservativedogma. 52 Congress has debated whether dogs should be on leashes and wherekites should be flown in the District of Columbia. Imagine putting aside anydiscussion of war and debating the removal of snow and ice in District,53 permissionfor firefighters to play in the Police Band,54 or the restructuring of a footballstadium. 55 Those debates appear in the Congressional Record. District residents,like all other American citizens, deserve to have authority, power andcontrol over how their tax dollars are spent, and how they conduct their privatelives. They deserve sovereignty and political standing.III. HISTORICAL PERSPECTIVESIt is important to this discussion that we understand why and how the Districtof Columbia was created, as well as how this shaped the District to the presentday.56 Indeed, the questions and possible answers that flow from these muddiedwaters are illuminating. Would the Founding Fathers who fought to end the tyrannyof "Taxation Without Representation" have intentionally imposed such aAct, 2006, H.R. 2546, l04th Congo (1994). While this bill was not vetoed during the Congressionalreview period, Congress added a rider to the bill prohibiting the use of federal or local funds toimplement the bill. [d. In a later D.C. appropriations bill, Congress reversed itself in part and did notinsert language prohibiting the use of local funds for such purposes. District of Columbia AppropriationsAct, 2001, H.R. 4942, 106th Congo (2000). This reversal is hailed as a victory among some HomeRule proponents.52 H.B. 3170 passed the United States House of Representatives on July 24, 2009. H.R. 3170,l1lth Congo (2009); see aLm H.R. REP. No. 111-202 (2009). See also D.C. ApPLESEED CENTER. HIV/AIDS IN THE NATION'S CAPITAL 19-23,88 (2005), http://www.dcappleseed.org/projects/publications/HIV.pdf. In 2005, Washington. DC had the highest rate of AIDS cases in the country, 128.4 per100.000 vS. 19.7 per 100,000, nationally - nearly lout of every 50 residents has AIDS. and it is estimatedthat nearly lout of every 20 is infected with HIV. Id. In Washington. DC, intravenous drug useis directly responsible for 35 percent of the all AIDS cases and 54 percent of AIDS cases in womensince the beginning of the epidemic. Id.53 Oversight and Regulation of Public Buildings. H.R. 2068. 107th Congo § 3103(a) (2001); Actof July 29, 1970, Pub. L. No. 91-0358, §802, 84 Stat. 667 (amending D.C. CODE §22-1117 (1967».54 D.C. CODE §§ 5-131.01-.05 (2001).55 D.C. CODE §§ 3-321 to -330 (2001).56 There are many sources from which to draw for information, including JUDITH BEST, NA·TIONAL REPRESENTATION FOR THE DISTRICf OF COLUMBIA 17 (1984); CONSTANCE McLAUGHLINGREEN, WASHINGTON: VILLAGE AND CAPITAL. 1800-1878 11 (1962); KENNETH R. BOWLING. THECREATION OF WASHINGTON D.C.: THE IDEA AND LOCATION OF THE AMERICAN CAPITAL 30 (1993):ROBERT FORTENBAUGH. THE NINE CAPITALS OF THE UNITED STATES 9 (1948); 2 THE RECORDS OFTHE FEDERAL CONVENTION OF 1787, at 127-28 (Max Farrand ed., 1911), cited in KENNETH D. MERIN,CONGRESSIONAL RESEARCH SERVICE, STATEHOOD FOR THE DISTRICT OF COLUMBIA (1977); EUGENEW. HICKOCK, JR., THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING(1991).; RICHARD E. LABUNSKI. JAMES MADISON AND THE STRUGGLE FOR THE BILL OF RIGHTS(2006); CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERALCONGRESS (Helen E. Viet et al. eds.,1991).

10 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWsystem on their fellow citizens? If so, how could these individuals - giants of theAmerican Revolution and pillars in our history - in good conscience reason sucha result? If such reasoning was sound and justified at the time, does it remainsound and just today? Finally, can it really be argued without contradiction thatour Constitution, the very document that gives us rights, must be read to takethose same rights away? To the fair mind with historical perspectives, the answersbecome obvious.It is the seemingly minor incidents in America's history that often propel theoccurrence of major events. 57 Such was the case in creating our nation's capital.During its early days, the capital city was quite peripatetic. 58 Beginning with theFirst Continental Congress when the young nation's leaders met at Founder'sHall in Philadelphia, the capital city moved from one former colony to another asthe exigencies of war demanded, with stints in Baltimore, Lancaster, York,Princeton, Annapolis, Trenton, and New York City, peppered with frequent periodsback to Philadelphia. 59 From the end of the Second Continental Congress tothe Articles of Confederation, the capital was located in Philadelphia. 60 Whilemeeting there, local militia demanding pay forced Congress to flee. 61 This seeminglyminor incident would be a major factor when the Framers crafted the enablinglegislation for the nation's capital, with enormous implications forgenerations who would inhabit the land where the Anacostia and Potomac riversmeet. 62 It was soon apparent that the Articles of Confederation 63 were insuffi-57 THE DISTRIcr OF COLUMBIA: ITs HISTORY, ITS GOVERNMENT, ITS PEOPLE (Johnny Barnes,ed., 3d ed. 1975).58 FORTENBAUGH, supra note 56 at 9.59 [d.60 BOWLING, supra note 56, at 30. As the summer of 1783 approached, hundreds (more than200) mutinous soldiers (their numbers grew from roughly 30) from Pennsylvania who fought for theContinental Army converged upon the Pennsylvania State House - which was also then located atIndependence Hall - seeking payment from the Pennsylvania State Executive Council. It is noteworthyhere, that the soldiers made their demand upon the City of Philadelphia and the state of Pennsylvania,not upon the Congress as many have believed in the past. Congress in fact had earliersimply referred their demands to the Secretary of War. [d.61 [d. at 14-72. When the City of Philadelphia and the state of Pennsylvania refused to come tothe aide of the State Executive Council, the members of the Confederation Congress fled toPrinceton, New Jersey. [d.62 H.P. CAEMMERER, WASHINGTON: THE NATIONAL CAPITAL, S. Doc. No. 71-332, at 17 (3dSess. 1932), cited in KENNETH D. MERIN, CONGRESSIONAL RESEARCH SERVICE, STATEHOOD FOR THEDISTRlcr OF COLUMBIA (1977); CONGRESSIONAL RESEARCH SERVICE, THE CONSTITUTION OF THEUNITED STATES: ANALYSIS AND INTERPRETATIONS, S. Doc. No. 99-16, (1st Sess. 1987). GeorgeWashington, who served as the First President of the United States, was tasked with surveying theland to create Washington, D.C. from land offered by Maryland and Virginia. [d. at 365.63 BARBARA SILBERDICK FEINBERG, THE ARTICLES OF CONFEDERATION 10-25 (2002); LEBARON BRADFORD PRINCE, THE ARTICLES OF CONFEDERATION vs. THE CONSTITUTION 43 (1867).The Articles of Confederation preceded the Constitution as the document governing the originalthirteen states. It was adopted by Congress on November 15, 1777, and ratified by all of the states onMarch 1, 1781. Unlike the Constitution, the Articles reposed power in the states, with limited power

TOWARDS EQUAL FOOTING 11cient for uniting the former colonies as a single nation. 64 With the Mutiny of 1783fresh in many minds, the idea of exclusive federal jurisdiction over the capitalbecame dominant in the debates. 65 If Philadelphia could not, or perhaps wouldnot, protect its state government, how could the national government rely on alocal entity for its safety?66A. Site SelectionThere was very limited debate concerning the location of the Capital duringthe Constitutional Convention. 67 Moreover, the Philadelphia episode was notthe only compelling argument for exclusive federal jurisdiction over the seat ofgovernment. 68 It was to assuage regional jealousies and be free from the influenceof adjacent states. 69 After perhaps one of the longest debates in the annalsof Congress, these guiding principles manifested themselves in Article I, Section8, Clause 17 of the United States Constitution - the Seat of Government Clause?OEvery corner of the country attempted to locate the capital as close to their stateas possible. 71 Offers came from New York and Maryland. 72 Other states followed?3In addition to the regional disputes, competing views existed on whatkind of city should be selected and what would be the ideal of American life.Urban members favored a capital in a thriving metropolis, such as Philadelphiain the central government. Because it was felt the Articles did not accomplish the goals of unifyingthe states, the Constitution replaced them on March 4, 1789. [d.64 [d.65 Peter Raven-Hansen, CONGRESSIONAL REPRESENTATION FOR THE DISTRICT OF COLUMBIA:A CONSTITUTIONAL ANALYSIS, 12 HARV. J. ON LEGIS. 167, 169-72 (1975); See also BOWLING, supranote 56, at 76-77.66 JUDITH BEST, NATIONAL REPRESENTATION FOR THE DISTRICT OF COLUMBIA, 17 (Univ.Publishers of Am. 1984). See also GREEN, supra note 41, at 11 (1962).67 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 127-28 (Max Farrand ed., 1911),cited in KENNETH D. MER IN, CONGRESSIONAL RESEARCH SERVICE, STATEHOOD FOR THE DISTRICTOF COLUMBIA (1977).68 Whit Cobb, Democracy in Search of Utopia: The History, Law, and Politics of Relocating theNation's Capital, 99 DICK. L. REV. 527, 529-31 (1995).69 [d.70 U.S. CONST. art. I, § 8, cl. 17 provides that: "The Congress shall have power ... To exerciseexclusive Legislation in all Cases whatsoever, over such a District (not exceeding ten Miles square) asmay, by Cession of particular States, and the acceptance of Congress, become the Seat of the Governmentof the United States, and to exercise like Authority over all Places purchased by the Consent ofthe Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals,dock-Yards, and other needful Buildings ... "71 H.P. CAEMMERER, WASHINGTON: THE NATIONAL CAPITAL, S. Doc. No. 71-332, at 17 (3dSess. 1932), cited in KENNETH D. MERIN, CONGRESSIONAL RESEARCH SERVICE, STATEHOOD FOR THEDISTRICT OF COLUMBIA (1977).72 [d.73 [d. Virginia offered the entire City of Williamsburg, with its colonial capitol, governor'spalace, public buildings, 300 acres of additional land, a cash payment of up to 100,000 pounds and acontiguous district. [d.

12 UNIVERSITY OF THE DISTRICI' OF COLUMBIA LAW REVIEWor New York City,74 because these cities had the greatest claim to time as thecapital. 7s These members felt that urbanization and its related commerce oughtto be the hallmarks embodied in the capital as they would be "central toAmerica's growth.,,76 The war debts question was at issue and the future of slaverywas thought to be at stake. 77 While the northern states wanted the capital,the southern states wanted it as well. 78 The South expressed the sentiment that aless urban site was closer to their ideals that cities were unhealthy, physically andmorally, a view amplified by their experiences during Philadelphia's reign as thenation's capital. 79 The notion of an agrarian-rooted capital, they felt, embodied abreaking away from the traditional European approach of placing the capital in alarge city.8o Nonetheless, there was consensus that Congress have jurisdictionover the permanent seat of government. 81Ultimately the agrarian position prevailed. This may have had more to dowith George Washington's influence. Washington not only wanted the capitalclose to his home at Mount Vernon, he also had significant land holdings in thearea. 82 On July 16, 1790, the Potomac site was selected and a "district of territory,not exceeding ten miles square ... accepted for the permanent seat of thegovernment of the United States.,,83 Philadelphia, as a compromise, because itwas not selected as the permanent seat, would be the temporary capital. 84 Inreturn for the north's acquiescence on a southern location, the south agreed tosupport the assumption of the Revolutionary War debts.8s President Washingtonwas authorized to survey the land for the capital. 8674 FORTENBAUGH, supra note 56, at 9.75 [d.76 Cobb, supra note 68, at 534-36.77 GREEN, supra note 41, at 11. See also 2 THE RECORDS OF THE FEDERAL CONVENTION OF1787, at 127-28 (Max Farrand ed., 1911), cited in KENNETH D. MER IN, CONGRESSIONAL RESEARCHSERVICE, STATEHOOD FOR THE DISTRICT OF COLUMBIA (1977);78 GREEN, supra note 41, at 11.79 PELATIAH WEBSTER, Essay on the Seat of the Federal Government and the Executive Jurisdictionof Congress over a Ten Miles District, in POLITICAL ESSAYS ON THE NATURE AND OPERATION OFMONEY, PUBLIC FINANCES AND OTHER SUBJECTS 376-402 (1789), quoted in BOWLING, supra note 56,at 131; Cobb, supra note 68, at 535.80 BOWLING, supra note 56, at 10-11.81 GREEN, supra note 41, at 8-9.82 Cobb, supra note 68, at 537. CONGRESSIONAL RESEARCH SERVICE, THE CONSTITUTION OFTHE UNITED STATES: ANALYSIS AND INTERPRETATIONS, S. Doc. No. 99-16, at 365 (1st Sess. 1987).83 An Act for Establishing the Temporary and Permanent Seat of the Government of theUnited States, 1 Stat. 130 (1790).84 [d.85 CHRISTOPHER SHORTELL, RIGHTS, REMEDIES AND THE IMPACT OF STATE SOVEREIGN IMMU­NITY 28-31 (2008). It should be noted that the debts incurred by the Northern states were considerablyhigher than the debts incurred by those in the Southern states. [d.86 An Act for Establishing the Temporary and Permanent Seat of the Government of theUnited States, 1 Stat. 130 (1790).

TOWARDS EQUAL FOOTING 13On November 21, 1800, Congress convened for the first time in the District ofColumbia. 87 Interestingly, two weeks earlier, on November 11, 1800 the residentsof the District of Columbia cast ballots in congressional elections. 88 Afew days later, President Adams instructed Congress to immediately exercise theauthority granted to them by the District Clause. By the end of the followingFebruary, the Organic Act of 1801 was signed into law. 89 The implications of theOrganic Act would be significant, as it had the effect of robbing the residents ofthe sovereignty they enjoyed as citizens of Maryland and Virginia. It also affectedtheir ability to vote in both the U.S. House elections and state legislative elections,where U.S. senators were elected at the time. 90 Interestingly, at no place inthe Organic Act of 1801 does it expressly state that these rights were to bestripped. 91 In a view expressed by one member of Congress, "[they] have not onepolitical right defined and guaranteed to them by that instrument, while they continueunder the exclusive jurisdiction of the United States. 92 Of course, theyagree, prompting many to proclaim, "We didn't land on Plymouth Rock. PlymouthRock landed on US!,,93B. Effects of the SelectionThere is little record reflecting analysis at the time the rights of those residingwithin the "permanent" Seat of Government were stripped away. It is clear thatas quickly as Congress stripped the rights, it looked to restore them. By 1803, amember introduced legislation to retrocede the land back to Maryland and Virginia.94 Those who enjoyed the rights of citizenship and lost it when moving fromthe states recognized the wrong in their disenfranchisement. 95 One member 9687 See GREEN, supra, note 41, at 23.88 [d.89 Mark David Richards, The Debates Over Retrocession, 1801-2004," WASH. HIST., Spring!Summer 2004, at 57.90 The District of Columbia Fair and Equal House Voting Rights Act, Hearing on H.R. 5388Before the H. Comm. on the Judiciary, 110th Congo 3 (2006) (statement of the Am. Bar Ass'n.).91 The District of Columbia Organic Act of 1801 incorporated the District of Columbia andplaced it under the exclusive control of Congress. An Act of Feb. 27, 1801, ch. 15,2 Stat. 103 (concerningthe District of Columbia).92 Richards, supra note 89, at 58.93 Malcolm X, Speech on The Ballot or the Bullet (Mar. 29, 1964).94 [d. at 57.95 T.W. NOYES, OUR NATIONAL CAPITAL AND ITS UN-AMERICANIZED AMERICANS 60 (1951).Noyes, who was the publisher of the Washington Star newspaper, notes that in a pamphlet publishedin 1801, Augustus B. Woodard, a Virginia lawyer who moved to the District wrote, "This body ofpeople is as much entitled to the enjoyment of the rights of citizenship as any other part of the peopleof the United States. There can be no necessity for their disfranchisement ... they are entitled to aparticipation in the general codicils on the principles of equity and reciprocity." [d.96 Richards, supra note 89, at 57-58. (statement of Representative John Smilie (R-PA».

14 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWstated that he never saw the purpose of giving Congress exclusive jurisdiction,except to serve hastening the capital selection process. 97This view was offset by the notion that the District would receive a benefit notbestowed upon the several States. 98 Many regarded the benefit as a bargained-forexchange for the burden of second-class citizenship.99 In 1789, it was estimatedthat the selected site would benefit from $500,000 spent there annually. tOO Thisbenefit in exchange for rights was explained by James Madison in The Federalist,Number 43,101 "the [ceding] State will no doubt provide in the compact for therights and the consent of the citizens inhabiting the [federal district]; as the inhabitantswill find sufficient inducements of interest to become willing parties to thecession ... "t02 A colleague of Representative Smilie (R-PA) observed, "No pecuniaryadvantages could ever induce me to part with my elective franchise, but ithas been the pleasure of those people to part with theirs, and the Constitution ofthe United States has authorized them to do SO.,,103If the surrendering of rights was a bargained-for exchange, then it must beregarded as a compact. 104 Whit Cobb analyzes the idea of a compact betweenCongress and the District in a 1995 article in the Dickinson Law Review. lOS97 Representative Smilie stated,Here the citizens would be governed by laws, in the making of which they have no voice- by laws not made with their own consent, but by the United States for them - by men whohave not the interest in the laws made that legislators ought always to possess - by men alsonot acquainted with the minute and local interests, coming .. .from distances of 500 to 1,000miles.Id.98 In 1 ANNALS OF CONGo 864 (Joseph Gales, ed., 1789), Madison stated, "The seat of Governmentis of great importance, if you consider the diffusion of wealth that proceeds from this source ...Those who are most adjacent to the seat of Legislation will always possess advantages over others.An earlier knowledge of the laws, a greater influence in enacting them, better opportunities for anticipatingthem, and a thousand other circumstances will give a superiority to those who are thus situated."Madison could not have been more wrong.99 Cobb, supra note 68, at 532 (citing 1 ANNALS OF CONGo 896 (Joseph Gales, ed., 1789».100 Id.101 THE FEDERALIST No. 43 (James Madison). The Federalists Papers are a series of 85 articles,written by James Madison, Alexander Hamilton, John Jay and John Adams, advocating theratification of the United States Constitution. Number 43, published on January 23, 1978, related to"The Powers Conferred by the Constitution Further Considered." Id.102 Cobb, supra note 68, at 532 (citing THE FEDERALIST No. 43, at 280).103 Statement by Representative John Baptiste Charles Lucas, reprinted in Richards, supra note89, at 59, citing 1 CONSTANCE M. GREEN, WASHINGTON: A HISTORY OF THE CAPITAL 1800-1950, 30(1976).104 A compact is a contract, a covenant between parties. BLACK'S LAW DICTIONARY (Westlaw8th ed. 2004).105 Cobb, supra note 68, at 529-31.

TOWARDS EQUAL FOOTING 15Cobb introduces the compact as an agreement. 106 Notably, each time removalwas debated, a prime reason it failed was recognition of the compact. 107 In 1808,urban members, smarting from roughing it in the yet to be built capital, launchedan attempt to return the capital to Philadelphia. lOS John Love of Virginia observedthat removal would be a "violation of obligations solemnly entered into,and destroy the contracts made.,,109 Nathaniel Macon of North Carolina stated,"I consider the faith of the government as much pledged that the Seat of Governmentshall be permanently fixed [in Washington, D.C.], as it can be to any contractunder the sun."l1OSome members favored removal, yet believed the District ought to be compensatedfor losing the benefit. That opinion was not universal. 111 Still, if surrenderingpolitical standing and sovereignty was the consideration, a materialbreach should result in returning the District to its position before the agreement:full citizenship status. However, a court cannot grant such relief. 112 A compactis, "an agreement or covenant between two or more parties, especially betweengovernments or states." 11 3 The compact with Congress was entered into on behalfof the District by Maryland and Virginia acting with apparent authority.114Cobb's article reveals that under the compact the exchange that was bargainedfor was exclusive benefit. This is supported by the provision creating the Districtand the history of attitudes concerning capital removal. l15 While the statutorylanguage provides that, "offices attached to the seat of government," may be builtelsewhere, it may do so only when "expressly provided by law.,,116106 Id. at 529. Stating eight reasons, that D.C. would be a, "national commons in which therepresentatives of the nation would govern the district with the federal interest at heart and in which,in exchange for federal patronage, the citizens of the district would surrender their suffrage." Id.107 Id. at 529-31, 545-546.108 Id. at 545. As Cobb puts it, "the issue that seemed most consistently on the minds of themembers was related to the capital compact: whether the proposed removal to Philadelphiaamounted to a 'breach of contract." Id.109 Id.110 Whit Cobb, Democracy in Search of Utopia: The History, Law, and Politics of Relocating theNation's Capital, 99 DICK. L. REV. 527, 546 (1995).111 Id. at 545-46.112 U.S. CONST. art IV, § 3, cl. 1. Congress has the sole and exclusive power to grant statehoodto a land area. It is the position of proponents of statehood for the District of Columbia that politicalstanding and sovereignty, resulting in equal footing, is achieved through statehood.113 A convenant is, "a formal agreement or promise, usually in a contract;" while an agreementis, "a mutual understanding between two or more persons about their relative rights and duties regardingpast or future performances; a manifestation of mutual assent by two or more persons."BLACK'S LAW DICfIONARY (8th ed. 2004) (emphasis added).114 U.S. CONST. art. IV, § 3, cl. 1.115 4 U.S.C. §§ 71-72 (2006).116 4 U.S.c. § 72 (2006).

16 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWC. Resizing the DistrictBy the 1830s, Congress was fullfiling its promise of economic benefit to muchof the District. This was not so for those along the southern banks of the Potomac.117 The former Virginia parcel had yet to recieve any benefit whatsoever. 118This void was viewed as making those residents, "subject to all the evils, withoutany of the benefits of being citizens of this District," while further being, "deniedmany valuable privileges enjoyed by the citizens of the States. ,,119 As one mightexpect, those subject to this arguable breach of the compact sought some remedy.The remedy they sought was to be retroceeded. When the County of Alexandriafinally decided to put the idea of retrocession up for a vote on January 24, 1832, itwas soundly defeated by a margin of 57% to 42%.120 However, the growingdisatisfaction was quite clear, and by 1835 Alexandria began to lobby Congress tobe transferred back to its former jurisdition. 121 At the same time, in spite ofMaryland's willingness to reaccept Georgetown, those citizens soundly rejectedretrocession by a margin of four-to-one. 122 By 1840, a retrocession vote in Alexandriawon solid support, with the yes votes coming in at 537 to 155. 123 Alexandriarelied on the slave trade as a principal source of revenue. 124 It feared thatthe slave trade would soon be abolished,125 and with it, destruction of the localeconomy.126 Congress recognized the need for remedy by passage of the Bill thatretroceeded Alexandria County.127Retrocession enjoyed support from abolitionist and slave states. However,this support was not without challenges. In Phillips v. Payne, Alexandria residentPhillips was unhappy at paying higher taxes and filed a claim based on the fact117 Richards, supra note 89, at 60.118 Neither the Pentagon or the CIA or any federal facilities for that matter, had been constructedin Virginia at that time. See generally DAVID ALEXANDER, THE BUILDING: A BIOGRAPHYOF THE PENTAGON 6 (2008) (the plans for the Pentagon originated between the end of World War Iand U.S. entry into World War II); Central Intelligence Agency, The CIA Campus: The Story ofOriginal Headquarters Building, https:llwww.cia.gov/news-information/featured-story-archive/2008-featured-story-archive/original-headquarters-building.html (In 1955, President Eisenhower signed legislationfor a new CIA headquarters building in Langley, VA); Federal Bureau of Investigation, Ttmelineof FBI History, http://www.fbi.gov/libref/historiclhistory/historicdates.htm (On May 8, 1972, theFBI opened its new training facility in Quantico, VA).119 Cobb, supra note 68, at 532 (citing Recession of Alexandria, DAILY NAT'L INTELLIGENCERMar. 6, 1846 at 1).120 Richards, supra note 89, at 61.121 [d.122 [d. at 62.123 Id. at 67.124 Id. at 68.125 Richards, supra note 89, at 68.126 [d. at 68. The strongest evidence to suggest that some oppossed retrocession was a petitionsigned by over 300 individuals, however, it was specifically against, "retrocession without relief:"127 An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State ofVirginia,9 Stat. 35 (1846).

TOWARDS EQUAL FOOTING 17that he had not subscribed to the retrocession and was entitled to bereparated. 128 The Court, without ruling on the constitutionality declared:Virigina is de facto in possession of the territory. She has been in possession,and her title and possession have been undisputed, since she resumed possession,in 1847, pursuant to the act of Congress ... More than a quarter of acentury has since elapsed. During all that time, she has exercised jurisdictionover the territory in all respects ... She does not complain of the retrocession. . .her government. . .[has] asserted her title; and her judicialdepartment has expressly affirmed it. No murmur of discontent has beenheard ... the transfer is a settled and valid fact. 129Both the Constitution and the Organic Act of 1801 limited the size of the Districtto no greater than ten miles square, however, neither prescribed a minimumsize.13o While there is an explicit ceiling, there is no explicit floor. Consequently,the wording of the decision in Phillips gives credence to the belief that the Courtwas not going to recognize a constitutional challenge to retrocession. 131 Moreimportantly, the ruling indicates that there is no barrier to reducing the size of theDistrict from its maximum limit of "ten miles square" to a substantially smallersize. 132 D. Impact of the SelectionAfter Phillips was decided, attempts at removing the capital slowed, thoughnever vanishing entirely.133 As the twentieth century progressed, technologicaladvances had a major impact on Congress' near-perfect committment to the compact.134 Plausible expansion within the District reached critical mass, spurred by128 Phillips v. Payne, 92 U.S. 130, 131 (1875).129 Id. at 133.130 U.S. CaNsT. art. I, § 8, cl. 17. An Act For Establishing the Temporary and Permanent Seatof the Government of the United States, 1 Stat. 130 (1790). See also Retrocession of Alexandria toVirginia, House Committee on the District of Columbia, H.R. Rep. No. 29-325, at 3-4(1846).131 Phillips, 92 U.S. at 133.132 See id. at 132. According to Peter Raven-Hansen, a Constitutional Law Professor atGeorge Washington University Law School, "The true construction of this clause, U.S. CaNST. art. I,§ 8, cI. 17, would seem to be that Congress may retain and exercise exclusive jurisdiction over adistrict not exceeding ten miles square; and whether those limits may enlarge or diminish that district,or change the site ... the end is to attain what is desirable in relation to the seat of government."Peter Raven-Hansen, The Conslitlllionalily of Slale/wud, 60 GEO.WASH. L. REV. 160, 169 (1991). If itwere unconstitutional, it must follow that the Court would have required the County of Alexandria tocede the land back to the District. Thus. the example of Phillips is instructive in terms of the perceivedimpediments to statehood in two regards. First, it shows Congress has the authority, by statute, toreduce the size of the District to that which is less than the "to Miles square" ceiling. Second, itconfirms the existence and scope of the Compact between the Congress and the District.133 Cobb, supra note 68, at 575-586.134 ld. at 584.

18 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthe First World War and the New Deal. Even with increased construction, therewas a lack of office space to house the expanded federal government, as well ashousing shortages. Congress turned to removing parts of the government to thesuburbs. 135 The first significant crack in the compact was the relocation of theNational Institutes of Health prior to World War 11.136 This removal ignored twofacts: 1) the District was and is prohibited from building skyscrapers; and 2) thefederal government had ample undeveloped land in the District. 137 Additionally,it enhances the validity of Phillips on the question of whether it was constitutionalfor Congress to retrocede Alexandria and reduce the size of the capital.Moreover, this process may be the only way in which Arlington could have possiblybeen reunited with the District, as Article IV, Section 3, Clause 1 would requireconsent from the Commonwealth to sever the state. 138 Senator McCarranaccurately forecasted an era of Congressional spoils, undermining the compact.139 McCarran argued:If [the Pentagon] belongs anywhere it belongs in the District of Columbia... If the state of Virginia is to have this building, the State of Maryland willclaim the right to have the Navy Building, some other state will claim theright to have the Internal Revenue Building, and so on ... 140Cobb argues that the removal decision, in spite of Congress' will, was unconstitutional,and the District needed the land back to house its expanding federalagencies. 141135 Id. at 584-587.136 Id. at 585.137 Id. at 588 (citing ALFRED GOLDBERG, THE PENTAGON: THE FIRST FIFTY YEARS (1992) (Ifthe District were permitted to build such structures, the office and residential space arguments wouldlose much of their sheen. Over 5,000 acres of land was available.».138 Interestingly, Virginia already had a Constitutional question put before the Supreme Courton severing part of its land in the creation of West Virginia. In that case, Congress no longer viewedthe Richmond government (which admittedly has announced cessation from the Union) as the seat ofgovernment in Virginia, and considered a competing government seated in Wheeling to be the recognizedcapital. Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 CAL.L. REV. 291, 299-302 (2002). The Wheeling government conducted the electoral and legislativeprocesses that led to the creation of West Virginia, achieved by severing state west of the Appalachianfoothills. Id. The Supreme Court affirmed the validity of this act in Virginia v. West Virginia, 78 U.S.39 (1870). Ironically, it would be in Arlington where perhaps the most egregious breach of the capitalCompact would take place. The War Department, expanding swiftly, desired a building suitable to itsneeds. Without such facilitates readily available in the District, and with the nation at war, plans forthe $35,000,000 Pentagon were expedited. Id. This violation of the Compact was not without its critics.Cobb, supra note 68, at 590-591.139 See Cobb supra note 68, at 590-591.140 Id. at 591.141 See generally id.

TOWARDS EQUAL FOOTING 19IV. THE DISTRICT OF COLUMBIA AS A STATEA former judge of U.S. Court of Appeals for the District of Columbia, KennethStarr,142 advanced a very interesting theory during the Davis Hearing. 143This was not a hearing on the issue of D.C. Statehood, but a hearing on a bill thatwould have provided voting representation only in the House for the people ofthe District of Columbia. 144 According to Judge Starr, Congress has wide authorityto govern over the District of Columbia under Article I, Section 8, Clause 17 -the Seat of Government Clause. 145 He testified before the Committee that,"[w]hile ... the Constitution does not affirmatively grant [District residents] theright to vote in congressional elections, [the Constitution] does affirmativelygrant Congress plenary power to govern the District's affairs.,,146142 Kenneth Starr also served as U.S. Solicitor General, Independent Counsel for the Whitewatermatter and is now Dean of Pepperdine University Law School. Kenneth Starr - Meet the Faculty,http://law.pepperdine.edu/academics/faculty/default.php?faculty=ken_starr.143 Common Sense Justice for the Nation's Capital: An Examination of Proposals to Give D.C.Residents Direct Representation: Hearing Before the H. Comm. On Gov. Reform, 108th Congo 75-85(2004) [hereinafter Common Sense].144 The Common Sense hearing did not initially include any witnesses opposing the Davis proposal.I first presented a memorandum to Chairman Davis to raise some of the concerns with theDavis Proposal and to present another side. Subsequently, I was invited to testify as the only witnessopposing the Davis Bill. Interestingly, while I was allowed to testify and to submit testimony for therecord, my testimony does not appear among the witnesses at the Committee's website. All of thetestimony that appears is in support of the Davis proposal, a most unfortunate practice by the Committee.I rely a great deal on first hand information in the construction of this Article. I was in theroom. I was an eyewitness for much of this history. There are, however, many resources available fora deeper probing of the matters discussed in this Article. For example, see FAUNTROY, supra note 3;THE DISTRICT OF COLUMBIA, ITs HISTORY, ITs GOVERNMENT, ITs PEOPLE (Johnny Barnes ed., 3d ed.1975 ); GREEN, supra note 41; Lawrence M. Frankel, National Representation for the District of Columbia:A Legislative Solution, 139 U. PA. L. REV. 1659 (1991); Peter Raven-Hansen, CongressionalRepresentation for the District of Columbia: A Constitutional Analysis, 12 HARV. J. ON LEGIS. 167(1975); Peter Raven-Hansen, The Constitutionality of D.C. Statehood, 60 GEO. WASH. L. REV. 160(1991).145 U.S. CONST. art. I, § 8, cl. 17.146 Common Sense, supra note 143, at 75 (statement of the Hon. Kenneth Starr) (emphasis inoriginal); DINH & CHARNES, infra note 193, at 4 (agreeing with Judge Starr,We conclude that Congress has ample constitutional authority to enact the District of ColumbiaFairness in Representation Act. The District Clause, U.S. CONST. art. I, § 8, cl. 17, empowersCongress to 'exercise exclusive Legislation in all Cases whatsoever, over suchDistrict' and thus grants Congress plenary and exclusive authority to legislate all mattersconcerning the District. This broad legislative authority extends to the granting of Congressionalvoting rights for District residents-as illustrated by the text, history and structure ofthe Constitution as well as judicial decisions and pronouncements in analogous or relatedcontexts. Article I, section 2, prescribing that the House be composed of members chosen'by the People of the several States,' does not speak to Congressional authority under theDistrict Clause to afford the District certain rights and status appurtenant to states. Indeed,the courts have consistently validated legislation treating the District as a state, even forconstitutional purposes. Most notably, the Supreme Court affirmed Congressional power togrant District residents access to federal courts through diversity jurisdiction, notwithstand-

20 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWThere have been several instances in the past where Congress has treated theDistrict of Columbia as a state. 147 While recognizing that "[w]hether the Districtof Columbia constitutes a 'State or Territory' within the meaning of any particularstatutory or constitutional provision depends upon the character and aim ofthe specific provision involved,,,148 the Supreme Court has often afforded greatdeference to such Congressional determinations. 149 Significantly, where theCourt had previously found that the term "state" for purposes of Article III diversityjurisdiction did not apply to the District of Columbia,150 it later upheld aCongressional statute allowing for diversity jurisdiction between citizens of theDistrict and citizens of a state. 151 A plurality recognized the plenary power affordedCongress under the District Clause finding the clear language of ArticleIII, Section 2 referring to "different states" to be no bar. 152Similarly, although 42 U.S.C. § 1983 was found inapplicable to the District ofColumbia,153 the Court acknowledged Congress' authority to amend the statuteto make it applicable under its Article I, Section 8, Clause 17 powers154 - which,in fact, Congress later did. 155 Despite language referring to "states" in severalprovisions, the Court has allowed wide latitude in applying constitutional provisionsthrough the District Clause. 156 Congress is permitted to directly tax D.C.residents;157 to regulate commerce across District borders;158 and to delegate tothe District the power to enact local legislation. 159 At times, the courts have evenbeen willing to recognize the District as a state, without explicit Congressionalinclusion. 16o The Full Faith and Credit clause of Article IV, Section 1, has beeninterpreted to include the District, despite the constitutional text that specifiesing that the Constitution grants such jurisdiction only 'to all Cases ... between Citizens ofdifferent States."'). Cases like, Adams v. Clinton, 90 F. Supp. 2d 35, 50 n. 25 (D.D.C. 2000)(per curiam), afrd, 531 U.S. 940 (2000) (holding that District residents do not have a judiciallyenforceable constitutional right to Congressional representation, do not deny (butrather, in some instances, affirm) Congressional authority under the District Clause to grantsuch voting rights).147 A detailed analysis of this view from the Court can be found in DINH AND CHAMES, infra,note 193, at 9-16.148 District of Columbia v. Carter, 409 U.S. 418, 420 (1973).149 Nat'1. Mut. Ins. v. Tidewater Transfer, 337 U.S. 582, 603 (1949).150 Hepburn v. Ellzey, 6 U.S. 445, 453 (1805).151 Nat'l Milt. Ins., 337 U.S. at 604.152 Id. at 614 (Rutledge, J. concurring).153 Carter, 409 U.S. at 418.154 Id. at 424, n.9.155 42 U.S.c. § 1983. amended by Pub. L. No. 96-170,93 Stat. 1284 (1979).156 U.S. CON ST. art. I, § 8, d. 17.157 Loughborough v. Blake, 18 U.S. 317 (1820).158 Stoutenburgh v. Hennick, 129 U.S. 141 (1889).159 District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953).160 Loughran v. Loughran, 292 U.S. 216, 228 (1934), reh'g denied, 292 U.S. 615 (1934); DeGeofroy v. Riggs, 133 U.S. 258 (1890).

TOWARDS EQUAL FOOTING 21"state.,,161 In addition, the Court found a treaty made applicable by statute tothe states was also applicable to the District. 162 Such interpretations show theCourt's willingness to acknowledge the District of Columbia as a state undersome circumstances, yet for other circumstances, the Court has allowed Congressto legislate on the matter under its District Clause power. 163In 2000, a three judge panel of the U.S. District Court for the District of Columbiaruled that representation in either house of Congress for the District ofColumbia was not constitutionally mandated. 164 In its ruling, the Court emphasizedthat it was without authority to provide remedy for the disenfranchisementof District residents. 165 Without stating that the Constitution barred the enfranchisementof the District, the court merely held that because the Constitutiononly provided for representation for the states, the District was not required tohave representation. 166 The courts have maintained that District plaintiffs haveto seek redress in other forums and Congress alone provides the remedy for aright not explicitly prohibited. 167Some have argued that the reading of Congress' plenary power is inconsistentwith the 1\venty-Third Amendment to the Constitution, which permits the Districtof Columbia to choose electors for President and Vice President. 168 In 1961,the 86th Congress found it necessary to amend the Constitution to grant the Districtthe right to vote for President because the District is not a state. 169 TheCommittee Report stated:[T]he District is not a State or a part of a State, there is no machinerythrough which its citizens may participate in such matters ... apart from theThirteen Original States, the only areas that have achieved national votingrights have done so by becoming a State as a result of the exercise by theCongress ... to create new States pursuant to Article IV, § 3, Clause 1 ofthe Constitution. 170The Committee also recognized Congress' limitations:[The Amendment] does not give the District of Columbia any other attributeof a State or change the ... powers of the Congress to legislate withrespect to the District of Columbia and to prescribe its forms of govern-161 Loughran, 292 U.S. at 228.162 De Geofroy, 133 U.S at 271-72.163 U.S. CONST. art. I, § 8, cl. 17.164 Adams v. Clinton, 90 F. Supp.2d 35, 72 (D. D.C. 2000), affd per curiam, 531 U.S. 941 (2000).165 [d.166 [d. at 48.167 See generally Hepburn v. Ellzey, 6 U.S. (1 Cranch) 445 (1805); Adams. 90 F. Supp. 2d at 35.168 U.S. CONST. amend. XXIII.169 [d.170 H.R. REP. No. 83-1698, at 2 (1960).

22 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWment. It would not authorize the District to have Representation in theSenate or the House. l71Arguably, in the context of D.C. Statehood, if the Constitution is read as somewould have it, Judge Starr's assertion of Congress' broad powers is inconsistentwith the powers considered when the Seat of Government Clause was enacted. 172It is also inconsistent with an understanding of the Constitution when the Twenty­Third Amendment was enacted more than 150 years later in 1961. 173 If theJudge's theory is correct,174 it may well represent the least difficult manner inwhich political standing for the District could be achieved. 175 If Congress can useits plenary powers to grant the District of Columbia a representative, then itshould be able to use its plenary powers to grant the District senators and, ipsofacto, to create a state out of the District. 176 Judge Starr's reasoning, therefore, isinconsistent with his central conclusion.A. The Courts Close Their Doors On Equal Footing For the DistrictInasmuch as the essence of Washington, D.C. is steeped in constitutional doctrine,one might presume that a path through federal courts could facilitate atleast political standing, if not sovereignty, for the District of Columbia. However,the courts have rejected this approach, although sympathizing with the need forrelief, while indicating that the matter involves a political question not judicialintervention. Two cases involving claims of constitutional deprivation of votingrights for representation for District residents were consolidated in federal courtand decided in 2000. 177 The decision dashed the hopes of District residents thatthe courts might resolve the equal footing dilemma. In 2004, a subsequent decisionin Banner v. United States, made clear that the court was not a place to seekrelief for questions involving sovereignty for the people of Washington, D.C. 178171 Id. at 3.172 Adam H. Kurland, Partisan Rhetoric, Constitutional Reality, and Political Responsibility:The Troubling Constitutional Consequences of Achieving D.C. Statehood by Simple Legislation, 60GEO. WASH. L. REV. 475 (1992).173 U.S. CONST. amend. XXIII.174 Certainly the multitude of court cases concerning Congress and the District of Columbiaestablish that the legislative authority in the District is truly "extraordinary and plenary ... " UnitedStates v. Cohen, 733 F.2d 128, 140 (D.C. Cir. 1984).175 According to the D.C. Circuit Court of Appeals, Congress can "provide for the generalwelfare of citizens within the District of Columbia by any and every act of legislation which it maydeem conducive to that end." Nields v. District of Columbia, 110 F.2d 246, 250-251 (D.C. Cir. 1940).176 In fact, in later testimony, Chairman Peter Rodino stated, "If Congress cannot create a stateout of the District, the authority must be less than exclusive, an interpretation which runs against theplain meaning of the 'exclusive' power clause." H.R. REP. No. 100-305, at 46-47 (1987).177 Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000), affd 531 U.S. 941 (2000). The abovecase was consolidated with Alexander v. Daley, another matter involving constitutional deprivation ofvoting rights in the District of Columbia.178 Banner v. United States, 303 F. Supp. 2d 1 (D.D.C. 2004).

TOWARDS EQUAL FOOTING 23Plaintiffs in the Adams and Alexander cases argued that District residents wereentitled to voting representation in Congress on various grounds, including equalprotection and due process. In the Banner case, the courts rejected an effort toinvalidate the limitation imposed by Congress on the ability of the District ofColumbia to tax income at its source. The Banner court stated, "simply put ...the District and its residents are the subject of Congress' unique powers, exercisedto address the unique circumstances of our nation's capital."B. The Statehood OptionStatehood is the express goal of many local District organizations, includingthe ACLU of the Nation's Capital, with self-government and full voting representation"until then.,,179 In fact, the only time in recent history a popular vote hasbeen held in the District of Columbia, the citizens overwhelmingly voted forStatehood. 180 Article IV, Section 3 of the Constitution sets up the framework forbecoming a state}81 The provision requires simple legislation!82 stating, "[nJewstates may be admitted by the Congress into this Union.,,183 The grant of statehoodwould provide District residents their full bundle of rights. It would providepolitical standing and sovereignty. It would mean the District would berepresented in the federal government,I84 and the District would have a stategovernment to replace the current Council and Mayor}85 It would allow Con-179 Constitution for the State of New Columbia Approval Act of 1987: Hearing on Bill 7-154Before the D.C. Council (1987) (statement of Mary Jane DeFrank, Executive Director, ACLU-NationalCapital Area).180 Jamin B. Raskin, Domination, Democracy, and The District: The Statehood Position, 39CATH. U. L. REV. 417, 435-436 (1990). On February 8,1980, the necessary petitions are filed to placea statehood initiative comparable to the "Tennessee Plan" on the ballot in D.C. Id. On November 4,1980, 151,000 voters approve an Act that activates the statehood admission process. Id. On November2, 1982, D.C. voters again overwhelmingly ratify the D.C. Statehood Constitution written byelected delegates. Id.181 U.S. CONST. art. IV, § 3.182 See H.R. 2482, 102nd Congo (1991). See also New Columbia Admission Act, H.R. 51, 100thCongo § 16 (1987).183 Id.184 United State House of Representatives, Representative Offices, http://www.house.gov!houselMemberWWW _by_State.shtml. The District of Columbia, like Puerto Rico, the Virgin Islands,Guam and American Samoa currently has one non-voting Delegate in the House of Representatives.Id.185 Id.

24 UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWgress to avoid dealing with local legislation. 1s6 Moreover, once statehood isgranted, it cannot be taken away.1S7The area within the District proposed for the state are residential neighborhoods.1sS It would not include certain federal buildings or national monuments.189 Nothing requires the Seat of Government to be larger than thatproposed,190 so reduction to this area seems appropriate. 191Opponents argue that making the District a state would destroy the originalconcept of the Seat of Government being independent from any state. 192 Indeed,the U.S. Department of Justice presented an extensive legal memorandum thatremains conservative dogma. 193 Some are concerned that the Seat of Governmentwould be surrounded by one state that may exert its influence over thefederal government. 194 As it stands, Maryland generally surrounds the current186 Indeed in passing the Home Rule Act, Congress indicated that its purpose was to relieveCongress of the burden of legislating for the District of Columbia. District of Columbia Self-Governmentand Governmental Reorganization Act, Pub. L. No. 93-198, § 102(A), 87 Stat. 774 (1973) [hereinafterGovernmental Reorganization Act].187 See If You Favor Freedom, supra note 3, (emphasis added) (providing a good examinationof many of the issues surrounding D.C. Statehood).188 New Columbia Admission Act, H.R. 51, looth Congo § 16 (1987).189 Those edifices are distinctly federal in nature and that character should not be destroyed.When Congress uses its exclusive control over the District to reduce the size of the federal district andto create the territory of New Columbia, Congress can then use its constitutional power under ArticleIV, Section 3 to admit that land area into the Union. U.S. CONST., art. IV, § 3.190 U.S. CONST., art. I, § 8, cl. 17. The seat of Government shall "not [exceed] ten milessquare." [d. Obviously, it can be less than that as it is now, with the return of part of D.C. to Virginiaby Act of Congress in 1846. Act of July 9, 1846, ch. 35, § 1,9 Stat. 35 (as amended at 29 Congo ch. 35)(providing for the retrocession of the County of Alexandria, in the District of Columbia, to the Stateof Virginia).191 Indeed Congress defined and adopted the boundaries for this reduced Federal Enclavewhen it passed the District of Columbia Self Government and Governmental reorganization Act. SeeSec. 739 of Pub. L. No. 93-198 (1973). Referred to as the National Capital Service Area, it will becomethe District of Columbia, consisting of the Mall and the principal federal monuments, the WhiteHouse, the Capitol Building, the United States Supreme Court Building and the Federal Office Buildingsadjacent to the Mall, housing the offices of the executive, legislative and judicial branches. Id.192 R. HEWITT PATE, THE HERITAGE FOUNDATION, D.C. STATEHOOD: NOT WITHOUT A CON­STITUTIONAL AMENDMENT (1983), https:/Iwww.policyarchive.orglbitstreamlhandlell02071l2663/92076_1.pdf?sequence= 1.193 See OFF. OF LEGAL POLICY, U.S. DEP'T. OF JUSTICE, REPORT TO THE ATTORNEY GEN­ERAL: THE QUESTION OF STATEHOOD FOR THE DISTRICT OF COLUMBIA (1987) [hereinafter REPORTTO THE ATTORNEY GENERAL]. This report continues to be cited as authority by opponents of D.C.Statehood and was most recently cited during the Davis Hearings by Judge Kenneth Starr and also aspart of the follow-up study by Professor Viet Dinh. See also VIET D. DINH & ADAM H. CHARNES,REPORT TO THE HOUSE COMM. ON GOVT. REFORM ON THE AUTHORITY OF CONGRESS TO ENACTLEGISLATION TO PROVIDE THE DISTRICT OF COLUMBIA WITH VOTING REPRESENTATION IN THEHOUSE OF REPRESENTATIVES, 108th Cong., 2d Sess. 2 (2004) [hereinafter DINH & CHARNES].194 See REPORT TO THE ATTORNEY GENERAL, supra note 193, at 25-27,56-58.

TOWARDS EQUAL FOOTING 25District. 195 By delegating exclusive control of the District, the Constitution enablesCongress to address all issues whatsoever that concern the District. If theauthority extended to Congress is exclusive, then Congress may do with the Districtwhat it thinks best,196 including designating it as a state. 197 Statehood wouldsolve the problem of representation and sovereignty for those who reside withinthe District of Columbia. 198Moreover, as indicated, Congress has used this expansive power in the past. 199In 1846 a bill allowed for the retrocession of one third of the District back toVirginia. 2oo As noted, thirty years later, when the Supreme Court was presentedwith the opportunity to rule the retrocession unconstitutional, the Court rejectedthe claim.201 The defining language describing the geographical limits of the Districtsimply states that the federal seat of power is not to exceed ten milessquare. 202 The retrocession of 1846 reduced the District from one hundred squaremiles to sixty-seven square miles.2 03 The District may be reduced in size withoutviolating any provisions of the Constitution. 204 Opponents argue that a fair readingof the terms of the Maryland Act of Cession, does not allow Congress tocreate a state from that land. 205 The history of the creation of West Virginiamakes this seem unlikely.206 Article IV, Section 3, Clause 1 of the Constitutionrequires Congress to obtain a state's consent before Congress can change thatstate's borders. 207 Yet, in 1863, Congress approved an area of western Virginiafor statehood, thus creating present-day West Virginia. 208195 See generally An Act to Cede to Congress a District of Ten Miles Square in This State forthe Seat of the Government of the United States. 1788 Md. Acts ch. 46 (1788), reprinted in D.C. Code,2001 Ed. An Act Authorizing Cession from MD (West 2009).196 U.S. CONST. art. I, § 8, cl. 17 (reading "[t]o exercise exclusive Legislation in all Cases whatsoever,over such District (not exceeding ten Miles square) as may, by Cession of Particular States,and the Acceptance of Congress, become the Seat Of Government of the United States ... ")197 Hearing Before the House Subcom. on Fiscal Affairs and Health, Comm. Oil the District ofColumbia, lOOth Congo (1987) (statement of Professor Jason Newman): "Although Article I, Section8, Clause 17, raises a number of interesting questions concerning the seat of the Federal Government,it does not prohibit Congress from creating a new state out of parts of the present District ofColumbia.)".198 See U.S. CONST. art I, § 2, cl. 1..199 S. Con. Res. 259, 29th Cong., 9 Stat. 35 (1846).200 [d.201 Phillips, 92 U.S. 130 (1875).202 U.S. CONST. art. 1, § 8, cl. 17.203 See Phillips supra note 201.204 See Phillips supra note 132.205 See REPORT TO THE AtTORNEY GENERAL, supra note 193, at 61.206 Act for the Admission of West Virginia, 37th Cong., (1862).207 U.S. CONST. art. IV, § 3, cl. 1. This Article and Clause provides in relevant part that, " ... nonew State shall be formed or erected within the jurisdiction of any other State." [d.208 REPORT TO THE ArrORNEY GENERAL, supra note 193, at 61. However, if Congress couldcreate a state out of land over which a state had control, it seems incongruous to say the District couldnot be a state, having been ceded from Maryland for over 200 years.

26 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWOpponents also argue that, given the District Clause 209 and the 1\venty-ThirdAmendment, creating a state out of the District of Columbia can only be done byamending the Constitution. 210 They argue that because the District is providedfor in the Constitution, only an amendment to the Constitution can change itsborders. 211 Essentially they posit that the "form and function" of the Districtunder the Constitution does not permit any change. 212 The Virginia precedent isagain instructive. 213 In 1846, to protect slavery and at the request of Virginia,thirty-three square miles were returned by Congress to Virginia. 214 That act wasdone by statute, a simple legislative act of Congress. 215 There is already a considerablerecord from congressional hearings that the non-federal parts of the Districtcan be converted, by simple act of Congress, into a state without amendingthe Constitution. 216 Even if a constitutional amendment is required to create astate,217 statehood remains the preferred option 218 among District residents.Critics worry that the District is not economically viable as a state. 219 Theyalso express concerns about the District's small land area and how it will affectthe potential for population growth. 22o These worries are unfounded. The Districtis economically viable as a state. 221 The District has had a balanced budget209 U.S. CONST. art. I, § 8, cl. 17; U.S. CONST. amend. XXIII.210 REPORT TO THE ATTORNEY GENERAL, supra note 193, at 23-25.211 [d. at 72.212 Peter Raven-Hansen, The Constitutionality of D.C. Statehood, 60 GEO. WASH. L. REV 160(1991).213 GREEN, supra note 41, at 173-176.214 Law of July 9,1846, ch. 35, § 1,9 STAT. 35 (providing for the retrocession of the County ofAlexandria, to the State of Virginia).215 [d.216 See generally H.R. Rep. No. 100-305 (1987). See also Hearing on H.R. 3861 Before theSubcomm. on Fiscal Affairs and Health of the Comm. on the District of Columbia, 98th Congo 36-50(to provide for the admission of the state of New Columbia into the Union, May 15, 1986). See VanNess V. City of Washington, 29 U.S. (4 Pet.) 62, 70 (1830) (a private grant of land for the creation ofthe District "for use of the United States forever" vests "an absolute unconditional fee-simple in theUnited States.").217 R. HEWITT PATE, THE HERITAGE FOUNDATION, D.C. STATEHOOD: NOT WITHOtrr A CON­STITtrrlONAL AMENDMENT (1983), https:llwww.policyarchive.org/bitstreamlhandle/l 0207/12663/92076_1.pdf?sequence= 1.218 Constitution for the State of New Columbia Approval Act of 1987: Hearing on Bill 7-154Before the D.C. Council (1987). On November 4, 1980, more than 150,000 D.C. voters voted in anelection to activate the statehood admission process. H.R. REP. No. 100-305, at 14 (1987). That votewas reaffirmed on November 2,1982, when over 110,000 voters participated in a referendum to ratifythe statehood constitution that had been drafted by duly elected delegates to a constitutional convention.[d.219 REPORT TO THE ATTORNEY GENERAL, supra note 193, at 5-6.220 [d. at 3-4.221 H.R. REP. No. 100-305, at 12 (1987). The House Committee found that, "[wJithin the Districtof Columbia, earnings by industry are very diverse and rank higher than many states in severalcategories. In finance, in insurance, real estate activities, the District of Columbia ranks higher than14 states. In hotel and lodging, it ranks higher than 27 states of the Union. In business services, it

TOWARDS EQUAL FOOTING 27in the past eleven years and has been relatively free of mismanagement and corruptionfor at least that long. 222 The Control Board, during its existence, certifiedthat the District is economically stable, and gave the District the freedom to enterinto the markets. 223 As a state, the District would also have the power to tax theincome of non-residents working here. 224 In fact, experts have assessed the economicviability of the District of Columbia over the years and have reached similarconclusions. The findings of these experts are presented later in thisArticle. 225Over the years, members of Congress and scholars have also addressed theconstitutional and legal issues associated with statehood. Senator Edward M.Kennedy (D-MA), who once chaired the Senate Judiciary Committee and whointroduced a companion D.C. Statehood Bill in the Senate, stated:I believe that the District. .. meets the generally accepted historic standardsfor the admission of the States to the Union. The three preeminent conditionsare the commitment to the principles of democracy, resources andpopulation sufficient to support statehood, and the will of the people forstatehood. 226Senator Arlen Specter (R-PA), who also served as Chair of the Senate JudiciaryCommittee, echoed similar sentiments, "[M]y sense is that every considerationshould be given to the question of statehood for the District of Columbia, and myinstincts are in favor of it.,,227 Democratic Representative Peter W. Rodino ofNew Jersey, who chaired the House Committee on the Judiciary for many years,said about D.C. statehood:There is no clause in the Constitution that expressly prohibits Congressfrom erecting a state out of the non-federal part of the District of Columbia.Under Article I, § 8, Clause 17, Congress exercises "exclusive" authorityover the District. If the authority is exclusive, Congress can do with theDistrict what it wishes. If Congress cannot create a state out of the District,ranks higher than 41 states ... There are 1,800 trade associations in the District of Columbia; 18-20million tourists visit the District of Columbia every year. The benefit to the District of Columbia fromtourism is larger than the federal payroll." See also Can the District Afford to be a State infra Part Vexploring financial implications of D.C. Statehood.222 District of Columbia Appropriations Act of 2005, H.R. 4850, 108th Congo (2004). The D.C.Appropriations Bill makes appropriations for the government of the District of Columbia and otheractivities chargeable in whole or in part against the revenues of said District for the fiscal year endingSeptember 30, 2005, and for other purposes. [d.223 [d.224 H.R. REP. No. 100-305, at 46-47 (1987).225 See infra Part V, at 50.226 Hearing on H. R. 3861 Before the Subcomm.on Fiscal Affairs and Health of the H. Comm. onthe District of Columbia, 100th Congo (1987) (statement of Sen. Edward M.Kennedy).227 See H.R. REP. No. 100-135, at 32.

28 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWthe authority must be less than exclusive - an interpretation which runsagainst the plain meaning of the "exclusive" power clause. 228On the question of whether it is necessary to repeal Article I, Section 8, Clause17 of the Constitution prior to going forward with a D.C. Statehood bill, ChairmanRodino was unequivocal again.229 Referring to the 1846 act of retrocession,the Chairman concluded, "[t]he authority for admitting new states into the unionis vested solely in the Congress of the United States by Section 3 of Article IV ofthe Constitution .... "230 Peter Raven-Hansen, Professor of Constitutional Law atGeorge Washington University Law Center, agrees. 231 While opponents point toa view by former Attorney General Robert Kennedy,232 proponents can point toa view of the power of Congress by Professor Viet Dinh, a political conservativeand principal author of the Patriot Act. 233 While scholars differ, the weight ofauthority favors the proponents of D.C. Statehood. Rather than constrainingCongress, the District Clause offers the broadest powers in the Constitution.On the question of whether the federal government or the new state wouldowe any obligation to the state of Maryland, which ceded the land to create theDistrict of Columbia, Professor Raven-Hansen found that the original act of cessionwas unconditional, and the act of Maryland ratifying the cession unequivocallyacknowledged the land "to be forever ceded and relinquished to theCongress and government of the United States in full and absolute right, andexclusive jurisdiction .... ,,234 Congress would continue to have authority over theSeat of Government when the size changes. 235 Indeed, the presence of a ceiling228 See If You Favor Freedom, supra note 3, at 21.229 BlII see REPORT TO THE ATTORNEY GENERAL, supra note 193, at 18 n.72, 19, in which theargument is made that when Congress accepted the land from Maryland and Virginia, the boundarieswere declared "finally fixed." Id. This argument is addressed in Raven-Hansen, supra, note 212, aswell as by a parade of scholars with a different view. The position discussed there was that of theJustice Department under a single u.s. President and would not likely be the view under the currentadministration. Both President Obama and Attorney General Holder have expressed support forD.C. Statehood.230 Id. at 22.231 Raven-Hansen, supra, note 212, at 189.232 Letter and Memorandum from Robert F. Kennedy, Attorney General, to Rep. Basil L.Whitener (1963). reprinted in REPORT TO THE ATTORNEY GENERAL, supra note 193. at 128.233 District of Columbia Voting Rights Act of 2009: Before the Comm. of the Judiciary, Subcomm.On the Constitution, Civil Rights and Civil Liberties of the H.R. at 3 (Jan. 2009) (statement ofViet D. Dinh. Professor. Georgetown University Law Center).234 Raven-Hansen, supra, note 212 at 179.235 Id. at 172-73.

TOWARDS EQUAL FOOTING 29and the absence of a floor2 36 suggest that the Framers intended for Congress tohave the ability to alter the size of the Seat of Government. 237The Twenty-Third Amendment established the current framework by whichDistrict of Columbia residents vote for President and Vice President. 238 Whatbecomes of that Amendment in the wake of D.C. Statehood?239 According toProfessor Stephen Saltzburgh, a Professor of Constitutional Law from the Universityof Virginia Law School, "[t]he truth is, I don't know why anybody caresabout what happens with the Twenty Third Amendment ... every time you tinkerwith the Constitution it's so costly it would be better to leave it alone .... "240Similarly, Professor Raven-Hansen reasoned that the Twenty-Third Amendmentwill become moot, either on the theory that it is no longer applicable by its termsand intent to any existing political jurisdiction, or on a theory of implied repealby the act of admission of "New Columbia" to the Union. Legislation under theenforcement provisions of the Fourteenth Amendment can work "a pro tantorepeal of the Eleventh Amendment and the incorporated doctrine of sovereignimmunity. ,,241Moreover, the Constitution is "replete with asterisks to sections that are nowobsolete or superseded. They are still in there, but they do not work anymorebecause subsequent legislation or amendment changed the purpose or made thepurpose no longer achievable.,,242 There are, of course, contrary views. 243 On thequestion of whether Congress can impose limitations on the District as a conditionfor admission as a state, as it has under the Home Rule Act, both J. OtisCochran, Professor of Constitutional Law at the Tennessee School of Law and236 This again seems to debunk the "fixed form" argument because that Act of Congress renderedthe form no longer ftxed. See Act to Retrocede the County of Alexandria, in the District ofColumbia, to the State of Virginia, ch. 35, 9 Stat. 35 (1846).237 IF You FAVOR FREEDOM, supra note 3, at 22 (statement of Chairman Peter W. Pidino).238 U.S. CONST. amend. XXIII, § 1.239 Kurland, supra note 172, at 476-79. The weight of authority indicates that repeal of the1Wenty-Third Amendment is simply unnecessary Passage of the 1Wenty-third Amendment in 1961granted Congress the authority to direct the appointment of electors to the Electoral College in theDistrict of Columbia. This authority allows District residents to participate in elections for Presidentand Vice-President. Although valuable, the Twenty-third Amendment fails to endow District residentswith all the rights of citizenship. District residents still cannot vote for Senators, cannot votefor Representatives (with the exception of one non-voting delegate), and cannot be accorded withmore electors than the least populous state. The Twenty-Third Amendment might narrow the dividebetween people living elsewhere in the United States and the world, but full statehood for D.C. remainsthe best option for eliminating that divide. Id.240 See IF You FAVOR FREEDOM, supra note 3, at 25-26.241 Raven-Hansen, supra note 212, at 183-90, n. 114 (citing Fitzpatrick v. Bitzer, 427 U.S. 445(1976».242 Examples of this are in the U.S. Constitution Article I, Section 9; Article II, Section 1;Article IV; Article V; and the Twelfth Amendment.243 Kurland, supra note 172, at 486.

30 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWProfessor Raven-Hansen cited to Coyle v. Smith 244 and Permoli v. City of NewOrleans. 245 Professor Cochran said "[t]he answer to this question .. .is fairlystraightforward primarily because there is judicial precedent on this point ... thebinding effect of those 'conditions' may be severely limited or non-existent afterstatehood is achieved ...."246 Professor Raven-Hansen said, "Imposing conditionsprior to admission of a state is tantamount to writing, at least in part, thatstate's constitution.,,247 In sum, all states must be admitted on equal footing. 248The District's population is larger than one state and not that much smaller thanother states. It is in the range of states such as Alaska, Vermont, Wyoming, andNorth Dakota. 249 There is also great potential for population growth. Some thinkthat because the District is largely urban, there is no place for new residents tomove. The facts show this is not the case. 250 In recent years, the District had200,000 more residents than it has now.251 One additional thought, as in theHome Rule Act, Congress could provide that no more than one Senator may beelected from anyone political party, thereby ensuring the election of one non-244 Coyle v. Smith, 221 U.S. 559 (1911).245 Permoli v. City of New Orleans, 44 U.S. 589 (1845).246 Constitutional and Economic Issues Surrounding Statehood for the District of Columbia:Hearing Before the Subcomm. on Fiscal Affairs and Health of the H. Comm. on the District of Columbia,99th Congo (1986) (statement of Prof. Cochran) (citing Permoli V. FIrst Municipality, 44 U.S. 589,594 (1845»247 Id.248 See U.S. CoNST. art. IV, § 3, cl. 1.249 U.S. CENSUS BUREAU, U.S. DEPT. OF COMMERCE, RESIDENT POPULATION OF THE 50STATES, THE DISTRICT OF COLUMBIA, AND PUERTO RICO: CENSUS 2000 (Dec. 28, 2(00), http://www.census.gov/populationlwww/cen2000/maps/filesltab02.pdf The population of the District of Columbiawas 572,059 at the time of the U.S. Census in 2000. Alaska reported 626, 932 residents, North Dakotareported 642, 200 residents, Vermont reported 608, 827 residents, and Wyoming reported 493,782.250 U.S. CENSUS BUREAU, U.S. DEPT. OF COMMERCE. Estimated Daytime PopUlation and Employment-ResidenceRatios: 2000 (2000), http://www.census.gov/populationlsocdemo/daytimel2000/tab01.xls. According to the Census Bureau, the District's daytime population is estimated at 982,853.The influx of over 410,000 workers into Washington on a normal business day comprises a seventytwopercent increase of the capital's normal population. That is the largest increase percentage-wiseof any city studied and the second-largest net increase, behind only New York City. Id.251 U.S. CENSUS BUREAU, U.S. DEPT. OF COMMERCE, DISTRICT OF COLUMBIA: RACE ANDORIGIN 1800-1990 (2002), http://www.census.gov/populationlwww/documentation/twps0056/tab23.pdf.In 1970, the population of the District of Columbia was 756,510 and in 1980, the population was638,333. Id.

TOWARDS EQUAL FOOTING 31Democratic Senator.2 52 The courts upheld that provision. 253 However, manywould find that solution objectionable. 254In November 1967, former U.S. Attorney General Ramsey Clark stated,"[Representation for the District] recognizes that the right to vote is the last weshould ever withhold, because it can protect all others." Echoing that sentimentin June 1970, former Chief Justice of the United States Supreme Court WilliamRehnquist, then the Assistant U.S. Attorney General, stated that "[t]he need foran amendment [providing representation for the District] at this late date in ourhistory is too self-evident for further elaboration; continued denial of voting representationfrom the District of Columbia can no longer be justified.,,255 Additionally,Congressman Walter Fauntroy said, "The 1803 proponents of a return ofvoting rights to the District stated that the disenfranchisement was 'an experimentin how far free men can be reconciled to live without rights.' It is simplytime to end this unfruitful experiment.,,256C. Congress Can Grant Statehood to the District of ColumbiaStatehood is a viable solution for the District of Columbia. Under the DistrictClause, Congress has authority "[t]o exercise exclusive legislation in all caseswhatsoever, over such District. ,,257 Article IV grants Congress the power to admitstates into the Union.258 The creation of a state would give District citizens252 District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No.93-198, § 401,87 Stat. 774 (1973) (codified as D.C. CODE § 1-221 (1973». The Act provides:(a) [t]here is established a Council of the District of Columbia; and the members of theCouncil shall be elected by the registered qualified electors of the District. (b) (1) [t]heCouncil established under subsection (a) shall consist of thirteen members elected on a partisanbasis. The Chairman and four members shall be elected at large in the District, and eightmembers shall be elected one each from the eight election wards established, from time totime, under the District of Columbia Election Act .... The term of office of the members ofthe Council shall be four years, except as provided in paragraph (3), and shall begin at noonon January 2 of the year following their election. (2) [i]n the case of the first election held forthe office of member of the Council after the effective date of this title [January 2, 1975], notmore than two of the at-large members (excluding the Chairman) shall be nominated by thesame political party. Thereafter, a political party may nominate a number of candidates for theoffice of at-large member of the Council equal to one less than the total number of at-largemembers (excluding the Chairman) to be elected in such election. (emphasis added) [d.253 Hechinger v. Martin. 411 F. Supp. 650, 654-55 (D.D.C. 1976), afrd, 429 U.S. 1030 (1977).254 The people of Washington, D.C. have made their preference clear through votes. See Constitutionfor the State of New Columbia Approval Act of 1987, Act 7-19, D.C. Council (1987).34 D.C.Reg. 3057-3110.255 D.C. VOTE - REPUBLICANS AND D.C. VOTING RIGHTS, http://www.dcvote.org/pdfs/congress/dcvrarepublicans0807.pdf256 Congressman Walter Fauntroy, Preface to IF You FAVOR FREEDOM, supra note 3.257 U.S. CONST. art. 1, § 8, cl. 17.258 U.S. CONST. art. IV, § 3. Congress's power to create states reads: "New States may beadmitted by the Congress into this Union; but no new States shall be formed or erected within theJurisdiction of any other State; nor any State be formed by the Junction of two or more States, or

32 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWpolitical standing and sovereignty.259 The only restriction is that Congress maynot create a district "exceeding ten miles square." The 1846 Congress rejected theFixed Form Argument. 2OO Congress could again reduce the District by statute. 261Immediately following the District Clause, it states, Congress shall "exerciselike Authority over all Places purchased by the Consent of the Legislature of theState in which the Same shall be, for the Erection of Forts, Magazines, Arsenals,Dock-Yards, and other needful Buildings.,,262 This language inspires further dissentagainst the Fixed Form Argument. Congress commonly changes the form offorts, arsenals, etc., yet still retains plenary power over these federal places. IfCongress enjoys "like Authority" over the District, then it should be able tochange the form of it without relinquishing its power. 263A weaker, but perhaps more practical, variation of the Fixed Form Argumentis the "Fixed Function Argument. ,,264 When drafting the Constitution, the Framersintended the District to function as a permanent location for the seat of government265 and never meant for the District to become a state. The Framers'immediate concerns in the late eighteenth century were securing police authorityover the District and addressing the limitations of federal power. 266 In the earlytwenty-first century, however, the federal government possesses substantialpower over the armed forces 267 and the state militias. 268 Congress' inability toward off a band of mutinous soldiers in 1783 Philadelphia 269 is inconceivabletoday.parts of States, without the Consent of the Legislatures of the States concerned as weD as of theCongress." Using this "exclusive" authority, Congress can reduce the size of the federal district toinclude only certain federal buildings and national monuments, the icons of democracy. At the sametime, Congress with the remaining government buildings, businesses and residential can admit thatterritory into the Union as the state of New Columbia. [d.259 See GOVERNMENTAL REORGANIZATION Aer, Pub. L. No. 93-198 § 102(A), 87 Stat. 774(1973). The District of Columbia currently has one non-voting delegate in the House.260 An Act to Retrocede the County of Alexandria, in the District of Columbia, to the State ofVirginia, ch. 35, 9 Stat. 35 (1846).261 Johnny Barnes, The Ones the Voting Rights Act Left Behind: Options for Restoring FullVoting Right in the District of Columbia (2006), 19-20 (on file with the author).262 U.S. CONST. art. 1 § 8 cl. 17.263 Raven-Hansen, supra note 212, at 168.264 [d. Proponents of the FlXed Function Argument concede that Congress may adjust the sizeof the District, but assert that any changes to the district cannot affect its function.265 Kennedy Letter, supra note 235.266 REPORT TO THE ATTORNEY GENERAL, supra note 193, at 25.267 U.S. CONST. art. 1, § 8, cl. 15.268 Perpich v. Department of Defense, 496 U.S. 334 (1990).269 See Barnes, supra note 261, at 8. In 1783, Pennsylvania militiamen surrounded the buildingin Philadelphia where the Founders were meeting to discuss the new Constitution. [d. The militiamen,demanding payment, refused to let the Founders leave. [d. Congress called on Pennsylvania for help,but members of the Pennsylvania government sided with their militiamen. [d. Seeing no other optionfor escape, the Founders were forced to sneak out the back door of the building under the cover of

TOWARDS EQUAL FOOTING 33Like the National Capital Service Area, the District is an enclave inside astate. 270 Opponents to D.C. Statehood also cite the expected economic relianceof the National Capital Service Area on New Columbia as detrimental to the ideaof independence for the Seat of Government. 271 However, the District alreadyrelies on a regional metropolis, extending beyond its boundaries, especially itstransportation system?n Non-residents earn two-thirds of the income. 273 Surely,changing the size to the National Capital Service Area would not affect the existinginterdependence. 274Even in the unlikely event of encroachment, Congress still has the means toprotect the functioning of the Seat of Government. 275 According to Cohens v.Virginia,276 Congress retains the power to legislate against states impacting theindependent functioning of the District. 277 Since the District Clause explicitlyassigns Congress authority over the District, would the formation of New Columbiaresult in an abrogation of legislative power? If so, must the District Clausethen be repealed? As the Supreme Court recognized in Texas v. White, statehood,once granted, can never be revoked. 278 Thus, this Abrogation of Power Argumentproves weak under examination.2 79 The multitude of court cases concerningdarkness. Id. This seemingly minor incident convinced the Founders that the seat of the federal governmentneeded to be independent from state control. Id.270 Raven-Hansen, supra note 212. at 166.Proponents of D.C. statehood, however, do not propose to eliminate the district comprisingthe seat of government. Instead, they propose to shrink it to an enclave of federal buildingsand installations called the National Capital Service Area, and then to admit the balanceof what is now D.C. as the new state of New Columbia.Id.See also 40 U.S.c. § 8501(a)(l) (2009), which currently defines the National Capital Service Areaas: "The National Capital Service Area is in the District of Columbia and includes the principal federalmonuments, the White House, the Capitol Building, the United States Supreme Court Building,and the federal executive, legislative, and judicial office buildings located adjacent to the Mall and theCapitol Building, ..."271 An argument proposed and then refuted by Raven-Hansen. See generally Raven-Hansen,supra note 212.272 Raven-Hansen, supra note 212, at 170.273 If the District of Columbia Becomes a State: Fiscal Implications, Hearing Before Special D.C.Council Comm. on Statehood and Self Determination, 18th Council Period 2 (2009) (statement of Dr.Alice M. Rivlin, Special D.C. Council Comm. on Statehood and Self Determination).274 See Roy P. Franchino. The Constitutionality of Home Rule and National Representation forthe District of Columbia, Part 1/, 46 GEO. L. J., 387 (1958).275 Raven-Hansen, supra note 212. at 171-72.276 Cohens v. Virginia, 19 U.S. 264, 347 (1821).277 Id. at 428. (stating that "the power vested in Congress as the legislature of the UnitedStates, to legislate exclusively within [the District], carries with it, as an incident, the right to make thepower effectual").278 Texas v. White, 74 U.S. 700 (1868). overruled by Morgan v. United States, 113 U.S. 476, 496(1885).279 See PATE, supra note 194, at 4.

34 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWCongress and the District of Columbia establish that the legislative authority inthe District is truly "extraordinary and plenary.,,28o According to the D.C. CircuitCourt of Appeals, Congress can "provide for the general welfare of citizenswithin the District of Columbia by any and every act of legislation which it maydeem conducive to that end. ,,281 The broad language of the District Clause combinedwith the extensive judicial precedent illustrates the ability of Congress tocontrol all aspects of District affairs. However, Representative Rodino explainsthat "if Congress cannot create a state out of the District, the authority must beless than exclusive, an interpretation which runs against the plain meaning of the'exclusive' power clause."282An analysis of the differences between Congressional representation and electoralrepresentation illustrates that a constitutional amendment is not necessaryto provide statehood, even though a constitutional amendment was necessary toprovide District residents with electors in the Electoral College. In the Constitution,provisions related to the Seat of Government are in Article I, while thoserelated to electors are in Article 11.283 Article I reflects great deference to Congressby endowing the legislative branch with sweeping authority to "make allLaws which shall be necessary and proper for carrying into Execution" its variouspowers. 284 Among these powers is an "exclusive" authority over the Seat of Government.Article II is different. Although Congress determines the day on whichthe Electoral College votes,285 it does not have any other authority. The electionof the president and vice-president is precisely detailed and unalterable by simplelegislation because the provisions concerning the Electoral College are foundwithin the constrictive Article II. Additionally, legislating with respect to theElectoral College is outside the boundaries of Congress' broader Article I authority.Granting District residents the right to vote in presidential electionscould not be achieved through statute. 286 Statehood, however, may be grantedthrough statute because the Constitution specifically allows Congress to admitnew states. 287Opponents argue that repeal of the Twenty-Third Amendment is necessarybecause its provisions entitle any few remaining residents of the National Capital280 United States v. Cohen, 733 F.2d 128, 140 (D.C. Cir. 1984).281 Neilds v. District of Columbia, 110 F.2d 246, 250-51 (D.C. Cir. 1940).282 H.R. REP. No. 100-305, at 46-47 (1987).283 DINH & CHARNES, supra note 193, at 19-20.284 U.S. CONST. art. I, § 8, c1. 18.285 U.S. CONST. art. II, § 1, c1. 4.286 DINH & CHARNES, supra note 193, at 20.287 U.S. CONST. art. IV, § 3. The creation of New Columbia and reducing the District implicatesArticle I powers, which not only allow Congress to legislate in manners deemed "necessary andproper" for the United Sates in general, but also allows Congress to legislate in "aU Cases whatsoever"for the District in particular. U.S. CONST. art. I, § 8.

TOWARDS EQUAL FOOTING 35Service Area three electoral votes. 288 These residents would be endowed withmore influence in elections for President and Vice-President, a direct violation ofthe "one man, one vote" principle. 289 The creation of New Columbia would notbe incompatible with the purpose of the Twenty-Third Amendment. 29o Congressintended the Amendment to "provide the citizens of the District of Columbiawith appropriate rights of voting in national elections for President and Vice­President of the United States.,,291 The few who might be in the National CapitalService Area would vote as residents of New Columbia. 292 As Raven-Hansenstates, "[w]hile no constitutional provision should ordinarily be read to yield anullity, neither should any be read to yield an absurdity.,,293 Philip Schrag, a Professorat Georgetown Law Center, reaches a similar conclusion. 294 According toSchrag, the Twenty-Third Amendment empowers Congress, not the District. 295The Amendment provides the District with the power to appoint electors "insuch manner as the Congress may direct," and allows Congress to "enforce [the]article by appropriate legislation. ,,296 Thus, if Congress decides that the residentsof the National Capital Service Area must vote as residents in New Columbia inorder to receive their constitutional right to representation in the Electoral College,Congress may pass this legislation without fear of violating theConstitution. 297Finally, most states' cession clauses expressly provide for a reversion of cededland upon the termination of federal use. Like those states, Virginia included anexpress reversion provision in its cession of Fort Monroe in 1824.2 98 New Yorkused a similar provision when ceding the Brooklyn Naval Yard, providing forfederal government use only "as long as" the premise was used for the purposes288 Kurland, supra, note 172, at 487.289 U.S. CONST. amend. XIV, § 1.290 Raven-Hansen, supra note 212, at 187.291 U.S. CON ST. amend. XXIII.292 Constitution for the State of New Columbia, Bill No. 7-154, D.C. Council (1987).293 Raven-Hansen, supra note 212, at 184.294 Philip G. Schrag, The Future 0/ District a/Columbia Home Rule, 39 CATH. U. L. REV. 348-49 (1990).295 See 106 Congo Rec. 12,561 (1960) (statement of Rep. Whitener).296 U.S. CONST. amend. XXIII.297 Schrag, supra note 298, at 348-49.298 Such an omission is indicative that a reversion was not intended. See Crook Homer & Co. v.Old Point Comfort Hotel Co., 54 F. 604, 606-08 (E.D. Va. 1983) (discussing the the March 1,1821 Actof the Virgin a Assembly ceding lands). The cession stated that, "should the said United States at anytime abandon the said lands and shoal, or appropriate then to any other purpose than those indicatedin the preamble to this act ... the same shall revert to and revest in this Commonwealth." [d. at 606.When reviewing a statement of purpose stating that if the grant was used for any other purpose thanintended, it "shall at once become void," the Maryland Court of Appeals refused to find a reverterbecause the provision did not expressly state that the grant was only effective "so long as" it was usedas provided. McMahon v. Consistory of St. Paul's Reformed Church, 75 A.2d 122, 125 (Md. 1950).

36 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWfor which jurisdiction was ceded, "and no longer. ,,299 Maryland, on the otherhand, did not expressly provide for a reversion. In fact, the specific words "reversion"or "reverter" are not found in Maryland's cession.J oo The District of Columbiadeserves full representation in Congress because the District has a largerpopulation than Wyoming and a population on par with other states. 3ot Opponentsof D.C. Statehood argue that the District is too small to be on equal footingwith larger states such as California, home to thirty-six million people, or Texas.The District has 591,833 citizens within its borders,302 more numerous than Wyomingwith 493,782, yet Wyoming is fully represented in Congress. 303 Six otherstates are on par with the District. 304 Again, those states are fully represented. 305At points throughout its history, the District had 802,178 citizens; a populationgreater than ten other states. 306 Yet, statehood is not about size. The framersintended to accept large and small states into the Union. At the Federal Conventionof 1787, Virginia proposed representation based on population,307 while NewJersey advocated for equal representation for all states. 308 To create a Union withlarge and small states included, the Framers incorporated the 1787 compromise.309 The result is a bicameral legislature with equal representation in the Senateand proportional representation in the House.D. Other Options to Democracy for D.C.No right is more precious in a free country than that of having a voice in theelection of those who make the laws under which, as good citizens, we mustlive. Other rights, even the most basic, are illusory if the right to vote is299 Palmer v. Barrett, 162 U.S. 399, 403 (1896) (quoting the language of the cessation of jurisdictionto the United States).300 See U.S. CENSUS BUREAU, supra note 249.301 /d.302 [d.303 [d.304 [d. Vermont, North Dakota, and Alaska have populations of 608,827,642,200, and 626, 932,respectively. Montana, Delaware, and South Dakota each have a population of less than a millionpeople. [d.305 United State House of Representatives, Representative Offices, http://www.house.gov!house!MemberWWW _by_State.shtml306 U.S. CENSUS BUREAU, U.S. DEP'T. OF COMMERCE, POPULATION OF COUNTIES BY DECEN­NIAL CENSUS: 1900 TO 1990 (1995), available at http://www.census.gov!population!www!censusdataJcencountslindex.html.307 Yale Law School The Avalon Project, Note of James Madison; May 30, 1787, available athttp://avalon.law.yale.edulsubjecCmenus!madispap.asp.308 Yale Law School The Avalon Project, Note of James Madison; June IS, 1787, available athttp://avalon.law.yale.edulsubjecCmenuslmadispap.asp.309 Yale Law School The Avalon Project, Note of James Madison; July 16, 1787, available athttp://avalon.law.yale.edu/subject_menuslmadispap.asp.

TOWARDS EQUAL FOOTING37undermined. Our Constitution leaves no room for classification of peoplein a way that unnecessarily abridges this right.3l0While giving the right to elect a local government in 1973, Congress imposedsevere restraints. Congress must pass an appropriations bill for the District - as itdoes for every federal agency - thus, from the time the district government formulatesa budget until the time it can spend the money often takes many months.The result of this congressional oversight mandate costs the District millions andmillions of dollars each year. 311 Congress' power to enact laws on the District,while controlling the budget, is tantamount to "Taxation without Representation."Yet, while supporting Statehood, it is important to explore other ideas.E. The D.C. Voting Rights AmendmentIn his seminal book, Facing Mount Kenya, lomo Kenyatta, the founding leaderof independent Kenya, raised the rhetorical question, "Why can't I write aboutAfrica? I am African.,,312 Often this author feels the way Kenyatta felt. Manyhave written about the D.C. Voting Rights Amendment effort how it passedsuper majorities in Congress, yet failed to pass three-quarters of the state legislatures.However, I lived and breathed that issue in the critical time leading up toits passage and the seven-year ratification effort that followed. The passage of thelegislation in Congress was a remarkable victory. When the measure cleared theHouse, Majority Leader Jim Wright (D-TX) took to the Floor and singled outCongressman Walter E. Fauntroy (D-DC) for praise. 313 Even more remarkablewas the victory in the Senate,314 where the resolution enjoyed unbelievable, bipartisansupport. 315 The President has no role in proposed amendments to theConstitution. 316 In sixteen of the fifty states, both houses simultaneously ratifiedthe Amendment within the seven-year period prescribed. 317 Had the proposed310 Wesberry v. Sanders, 376 U.S. 1. 17-18 (1964).311 See infra Part V of this Article. This blight on America exists despite the fact that over 95percent of D.C.'s budget is from local tax dollars.312 JOMO KENYATIA, FACING MOUNT KENYA 5 (1938).313 H.R. J. Res. 554, 92 Stat. 3795, 94th Cong., 124 CONGo REC. 5272 (1978). The resolutionwas approved by a vote of 289 to 127. Id. Eighteen members did not vote. Id.314 H.R. J. Res. 554,92 Stat. 3795, 94th Cong.,124 CONGo REC. 27260 (1978). The Senate tookup the House Bill, literally by-passing the Senate Judiciary Committee, and approved it by a vote of67 to 32; thus paving the way for consideration by the state legislatures. Id.315 Id. Senate Republican supporters included Strom Thurmond (SC), Barry Goldwater (AZ),Bob Dole (KA) and Howard Baker (TN), who was later President Reagan's Chief of Staff.316 U.S. CONST. art. V.317 H. R. REP. No. 111-22, at 24 n. 14 (2009). The sixteen states that ratified the 1978 amendmentwithin the seven-year timeframe were: New Jersey, Michigan, Ohio, Minnesota, Massachusetts,Connecticut, Wisconsin, Maryland, Hawaii, Oregon, Maine, West Virginia, Rhode Island, Iowa, Louisianaand Delaware. Id. An extension was not possible, as was done with the Equal Rights Amendment,because the seven-year limit was placed in the Article of Amendment itself. The United StatesSupreme Court, in Dillon V. Gloss, 256 U.S. 368, 371-374 (1921), held that Article V of the Constitu-

38 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWAmendment succeeded, District residents would have political standing, butwould continue to lack sovereignty.318 Other proposals include retrocession ofmost, or all, of the District to Maryland. 319F. Full and Partial RetrocessionThere are many views about retrocession and how it will work. In one form,retrocession would give the non-federal portion of the District back to Maryland.Maryland is the logical choice, based on historical and geographical considerations,320As Maryland surrounds the District on three sides, absorption would notbe difficult. 321 The District and Maryland share many systems and are somewhatinterdependent regarding matters of infrastructure. 322 Maryland is the only statewith these connections; therefore, it is best for any proposed retrocession. 323 Atthe Davis Hearing, two retrocession proposals were presented. 324 H.R. 381, introducedby Congressman Regula, accords with the traditional retrocession conceptand would cede the non-federal land on which the District sits back to Maryland,with the exception of the "National Capital Service Area.,,325 H.R. 3709, introducedby Congressman Rohrabacher, calls for what in the past has been referredto as "partial retrocession," and would allow District citizens to vote in Marylandtion implies that amendments must be ratified, if at all, within some reasonable time after their proposal.[d. The Court also stated that Congress, in proposing an amendment, may fIx a reasonable timefor ratifIcation, and that the period of seven years, fIxed by Congress in the resolution proposing theEighteenth Amendment was reasonable. [d. at 375-376.318 The lesson learned is that, with proper packaging and presentation, both Democrats andRepUblicans in Congress can be persuaded to support equal footing for the people of the District ofColumbia.319 A plan then-Attorney General Robert F. Kennedy deemed impractical and unconstitutional.See supra note 235.320 See District of Columbia-Maryland Reunion Act, H.R. 381, 108th Congo § 3 (2003).321 Printable Maps - Reference, http://nationalatlas.gov/printable/reference.html#Maryland(last visited Dec. 1, 2009).322 COMMON SENSE, supra note 144, at 161 (statement of Ted Trabue, Reg. V.P. for Dist. ofColumbia Affairs, PEPCO; Greater Wash. Bd. of Trade). This hearing did not initially include anywitnesses opposing the Davis proposal. I fIrst presented a memorandum to Chairman Davis to raisesome of the concerns with the Davis Proposal and to present another side. Subsequently, I was invitedto testify as the only witness opposing the Davis Bill. Interestingly, while I was allowed to testifyand to submit testimony for the record, my testimony did not appear among the witnesses at theCommittee's website. AU of the testimony that appears is in support of the Davis proposal- a mostunfortunate practice by the Committee. I rely a great deal on first hand information in the constructionof my presentations on this issue because I was in the room when a great deal of the relevantactivity occurred. I was an eyewitness to much of this history.323 [d. at 12-14 (statement of Ralph Regula, Member, House of Representatives, State ofOhio).324 [d. at 3, 12 (statement of Dana Rohrbacher, Member, House of Representatives, State ofCalifornia; statement of Ralph Regula, Member, House of Representatives, State of Ohio).325 H.R. 381, 108th Cong. (2004).

TOWARDS EQUAL FOOTING 39federal elections. 326 Except for their sponsors who testified, neither of these proposalsreceived support during the Hearing. 327 Any retrocession legislation couldbe done by statute. 328 There is historical precedent based on the retrocession ofAlexandria and Arlington in 1846. 329 The same thing could be done for the District.33o Retrocession would also relieve the federal government of dealing withgoverning the city.331 Retrocession would also eliminate the duplication of manyservices. 332 Yet, there are difficulties with retrocession. It may require the approvalof the Maryland legislature and, quite possibly, a majority of the populationof Maryland. 333 In the past, Maryland politicians have not endorsed such aproposa1. 334 There is also concern that giving the District back to Marylandwould destroy the unique character of the city.335 The District is a source of distinction.336 Finally, there is the idea of treating the District as we treat otherfederal enclaves. 337 Residents of federal enclaves vote in the states from whichthe enclave was carved. 338 The Supreme Court has held that giving Congress exclusivejurisdiction over that land could not deprive those living on the land oftheir rights. 339 Residents of the District could be treated the same as those from astate because District land was once part of Maryland. 34o By legislative enactment,Congress could assert that, as a federal enclave carved from Maryland, theDistrict may vote in Maryland elections. 341 This method would arguably not re-326 H.R. 3709, 108th Congo (2004).327 See generally COMMON SENSE, supra note 144. No single proposal enjoyed overwhelmingsupport throughout the testimony by many representatives of groups with positions on the D.C. statehood/votingrights issue. Id. The Committee members, throughout the testimony, gave no indicationof support for anyone position. Id.328 See supra note 321.329 John Hammond Moore, Alexandria and Arlington "Come Home" - Retrocession, 1846,3 N.VA. HERITAGE 3, 3-9 (1981); Dean C. Allard, When Arlington Was Part of the District of Columbia, 6THE ARLINGTON HIST. MAG. 36, 36-45 (1978).330 Id. (statement of Linda Cropp, Chair, D.C. Council).331 COMMON SENSE, supra note 144, at 60.332 Id.333 DINH & CHARNES, supra note 193 at 2.334 See supra note 321, at 22.335 COMMON SENSE, supra note 144, at 16.336 Id. at 31 (statement of Anthony Williams, Mayor, Dist. of Columbia).337 U.S. Const. art. I, § 8, cl. 17. See also Paul v. United States, 371 U.S. 245 (1963) (a state maynot legislate with respect to a federal enclave unless it reserved the right to do so when it gave itsconsent to the purchase by the United States and only state law existing at time of acquisition remainsenforceable ).338 Evans v. Cornman, 398 U.S. 419 (1970).339 Id. at 426.340 An Act to Cede to Congress a District of Ten Miles Square in This State for the Seat of theGovernment of the United States, 1788 Md. Acts ch. 46, reprinted in D.C. Code, 2001 Ed. An ActAuthorizing Cession from MD. (West 2009).341 COMMON SENSE, supra note 144, at 65.

40 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWquire a constitutional amendment,342 nor require approval of the Marylandlegislature. 343The Uniformed and Overseas Citizens Voting Rights Act of 1975 requiresstates to accept votes from people overseas, even though the people overseas arenot technically residents of the state. 344 Replacing that Act, the Uniformed andOverseas Citizens Absentee Voting Act makes provisions for American citizenswho reside outside of the United States to vote by absentee ballot?45 Underprovisions like this Act, District residents could vote in Maryland congressionalelections without becoming Maryland citizens. 346Some argue that Article I, Sections 2 and 3 of the Constitution are an impedimentto this approach. 347 Under these provisions, membership in the U.S. Houseand Senate is limited to individuals elected by the people of the several states. 348Arguably, because District citizens are not among the people of the severalstates, they cannot elect representatives and senators. On the other hand, theFourteenth Amendment may allow Congress to enact partial retrocession as wellas specifically grants Congress the power to enforce the amendment through legislation.349 When the District was established, its residents still voted in Marylandelections.3 5o Maryland's voting laws continued to be in force until Congresschanged those regulations?51 Congress has not passed any laws making the votinglaws of Maryland inapplicable 352 to District residents. However, the additionof over 500,000 votes to a Maryland federal election would change the dynamicsof Maryland elections and government. 353 It would be unfair to force this new342 [d.343 See DINH & CHARNES, supra note 323, at 9.344 Unified and Overseas Citizens Voting Rights Act of 1975, 42 U.S.c. § 1973, repealed byUniformed and Overseas Citizens Absentee Voting Act, Pub. L. No. 99-410, 100 Stat. 924 (1986).345 Uniformed and Overseas Citizens Absentee Voting Act, Pub. L. No. 99-410, 100 Stat. 924(1986).346 COMMON SENSE. supra note 144, at 65.347 U.S. CONST. art. I. § 2.3.348 [d.349 U.S. CONST. amend. XIV. § 5.350 Organic Act, ch. 15,2 Stat. 103 (1801) (eliminating the right of District residents to vote forSenators and Representatives). Prior to passage of the Organic Act, from 1790 to 1801, District residentsfully participated in federal elections as voters in Virginia and Maryland, the two states thatceded land in order to create the District of Columbia. [d. See An Act to Cede to Congress a Districtof Ten Miles Square in This State for the Seat of the Government of the United States, 1788 Md. Actsch. 46, reprinted in D.C. Code, 2001 Ed. An Act Authorizing Cession from MD. (West 2009).; see alsoAct for the Cession from the State of Virginia, 13 Va. Acts Ch. 32, reprinted in D.C. Code, 2001 Ed.Act of Cession from the State of Virgina (West 2009).351 See Jason I. Newman & Jacques B. DePuy, Bringing Democracy to the Nation's Last Co/­ony: The District of Columbia Self-Government Act, 24 AM. U. L. REV. 537, 540 (1975).352 [d.353 REPORT TO THE A1TORNEY GENERAL, supra note 193, at 19-31.

TOW ARDS EQUAL FOOTING 41voting scheme onto Maryland residents without input from them. 354 This potentialconflict is just one of many matters that would have to be decided beforeDistrict residents could vote in Maryland elections. 355v. CAN THE DISTRICT AFFORD To BE A STATEThis author believes the question is better posed if inverted - can the Districtafford not to be a state? Revenue foregone due to limitations imposed by its·status significantly impacts the quality of life of District residents. Experts haveaddressed these limitations and what lifting them through Statehood could meanfor District finances. 356 The District is economically viable as a state, independentof special federal government support. 357A. What Effect, if any, Will Statehood Have on Federal Payments to D.C.?For many years, the District of Columbia received a special payment - referredto as "The Federal Payment" - that ended when the The District of ColumbiaRevitalization Act was enacted in 1998. 358 A recurring question has been whatwill become of federal contributions if the District becomes a state? The responseshave been similar; many believe the federal contributions will notchange. 359 Dr. Andrew Brimmer, as well as many other scholars, reached the354 Id.355 Id. This plan would keep the District out of state government, but there would be timeswhen District representation would be essential. Should the District send representatives to drawboundaries? State governments decide districting issues. The District would deserve a say. In Maryland,the Governor fills vacancies in the Senate. Would this require District residents to vote forGovernor? If not, one would represent the District in the federal government for whom they did notvote. That would make no sense. Last, should District residents vote in Maryland primary elections?If they have a say in the final decision, should they not have a say in the earlier decision?356 IF You FAVOR FREEDOM, supra note 3, at 32-42.357 Admission of the State of New Columbia into the Union: Hearing on H. R. 51 Before the H.Comm. on the District of Columbia, lOOth Cong., 1st Sess. (1987) (statement of Matthew Watson,Former Auditor, Dist. of Columbia); See also IF You FAVOR FREEDOM, supra note 3, at 33.358 Balanced Budget Act of 1997, Pub. L. No.1 05-33, 111 Stat. 251 (1997). The Act has animpact on eight major areas of the District Government: 1) retirement funds for certain classes ofD.C. employees; 2) financing the accumulated deficit; 3) reforming the criminal justice system; 4)management reform; 5) privatization of tax collections: 6) improving bond financing; 7) reform of theregulatory process; and 8) elimination of the federal payment. Id.359 Admission of the State of New Columbia into tire Union: Hearing on H.R. 5/ Before tire H.Comm. on the District of Columbia, looth Cong .• 1st Sess. (1987) (statement of Matthew Watson,Former Auditor, Dist. of Columbia).Although not legally compelled to, the President has supported and the Congress hasregularly appropriated federal payments for the District of Columbia. Upon admission as astate, the District would have no greater or lesser entitlement to receive continued payments.But, there is no reason to believe that the payments would not continue. While J believe thatthe District is financially viable as a state even without the continuance of the federal payment,there would certainly be some decline in the quality of services if the District does not

42 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWsame conclusion. 360 A lump-sum payment system was made permanent by theDistrict of Columbia Revenue Act of 1939 and used until 1973, when the multiyear,lump-sum system was established as part of the Home Rule Act. 361 Thatscheme remained until 1998, when Congress eliminated the federal payment. 362The financial implications of achieving Statehood for the District are admittedlycomplex. As Senator Mary Landrieu (D-LA) stated, "The District faceseconomic challenges that no other city in the country has to meet.,,363 The Districtis caught in limbo between being a state and a city.364 Even so, numerousexperts conclude that any foreseeable negative results of Statehood are moderate,while the possible benefits are immense. 365 The National Capital Revitalizationand Self-Government Improvement Act of 1997 gave certain benefits to theDistrict. 366 Dr. Alice Rivlin estimates that the loss of those benefits could costthe District roughly one billion dollars. 367 At the same time, New Columbiawould gain roughly $2.26 billion from personal income tax,368 earmarks,369 in-receive some contribution from its major property owner. Such a decline in the quality of lifein the nation's capital is not likely to be acceptable to the federal interest.Id.360 The Economic and Financial Impact of DC Statehood: Public Oversight Hearing Before theSpecial Comm. on Statehood and Self-Determination, D.C. Council (July 2(09) (statement of Dr. AndrewBrimmer, Former Chair, Dist. of Columbia Fin. Resp. and Mgmt. Asst. Auth.). "A review of thehistory of the federal payment and an examination of its logical and practical basis suggests that thestate of New Columbia would probably receive some form of federal payment." Id.361 Subcomm. Consideration and Mark-up of H.R. 2637 Before the H. Comm. on the Dist. ofColumbia, 98th Congo (1983) (statement of Congressman Walter E. Fauntroy, Chairman, Subcomm .. on Fiscal Affairs and Health). Following enactment of the Home Rule Act, the payment experienceda steady decline; from 27.3 percent in 1975 to well below 20 percent in the years that followed. Id.362 Balanced Budget Act of 1997, Pub. L. No.105-33, 111 Stat. 251 (1997) [hereinafter BalancedBudget Act].363 Press Release, Sen. Mary Landrieu, Report Confirms Fiscal Imbalance in D.C.: Identifyingthe Problem is First Step in Reaching a Solution (Jun. 5, 2(03), available at http://www.dcwatch.com/governlbudget030605.htm. See also U.S. Gov'T. ACCOUNTABILITY OFF.RPT. NO. 03-666, DISTRICT OFCOLUMBIA: STRUCTURAL IMBALANCE AND MANAGEMENT ISSUES (May 2(03), available at http://www.gao.gov/new.itemsld03666.pdf. (last visited Nov. 8,2(09).364 Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified as D.C. Code §§ 1-201.01-207.71 (2001». Under this Act, the District must bear the burden of state-like responsibilitieswhile relying on Congress to agree to its budgetary and legislative decisions, a process that can takeup to eighteen months. Id.365 The Economic and Financial Impact of DC Statehood: Public Oversight Hearing Before theSpecial Comm. on Statehood and Self-Determination, D.C. Council (July 2(09) [hereinafter Economicand Financial Impact].366 See Balanced Budget Act, Pub. L. No. 105-33, 111 Stat. 251 (1997).367 See supra note 365, (statement of Alice Rivlin, Former Chair, Dist. of Columbia Fin. Resp.and Mgmt. Asst. Auth.).368 See supra note 365. (statement of Robert Ebel, Deputy Chief Fin. Off., Dist. of Columbia).369 Id. (statement of Robert Ebel, Deputy Chief Fm. Off., Dist. of Columbia and Walter Smith,Exec. Dir., D.C. Appleseed Ctr.).

TOWARDS EQUAL FOOTING 43creased budget efficiency,370 commuter taxes and higher bond ratings. Currently,the local government lacks the sovereignty all states enjoy.371 In the District, thefederal government holds ultimate financial authority.372 This unique status haslong been recognized as having an adverse impact on the District's financialhealth.3 73 Although the District has a larger population than the state of Wyomingand close to that of nine other states,374 Congress determines its affairs.B. Will the State be Treated Differently than the Current Government forPurposes of Federal Grants and Loans?The District's entitlement to federal grants would be more secure as a state. 375The basis for continued support from the federal government has not changed.3 76Again, expert opinions, spanning many years, tend to agree. 377 Due to its lack of370 Jd. (statement of Walter Smith, Exec. Dir., D.C. Appleseed Ctr.).371 U.S. CONST. art. IV, §3, cl. 1.372 Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified as D.C. Code §§ 1-201.01-207.71 (2001».373 "The District faces unique hurdles including its status as a combination 'city-state,' and evencounty, if you will, its special relationship to the Federal Government and to Congress in particular."District of Columbia Bond Authorization Act: Hearing on H.R. 1807 Before the Subcomm. on FiscalAffairs and Health of the H. Comm. on the Dist. of Columbia (1981) (statement of Hyman Grossman,V.P. , Standard & Poor's Corp.). Mr. Fauntroy detailed seven reasons upon which the special federalpayment was justified. Jd. Those reasons remain unchanged to this date and include 1) revenueforegone due to nontaxable commercial and industrial property utilized by the federal government; 2)revenue foregone due to nontaxable business income; 3) revenue foregone due to federally imposedexemptions from District taxes; 4) the cost of providing services to corporations doing business onlywith the Federal Government; 5) the cost of direct services to the Federal Government; 6) uniqueexpenditure requirements mandated by the Federal Government; and 7) the relative tax burdenplaced upon District residents. Jd.374 U.S. CENSUS BUREAU, U.S. DEP'T. OF COMMERCE, ANNUAL POPULATION ESTIMATES 2000TO 2008 (Dec. 22, 2008), available at http://www.census.gov/popest/statesINST-ann-est.html(last visitedJul. 27, 2009).375 Constitutional and Economic Issues Raised by D.C. Statehood: Hearing on H.R. 325 Beforethe H. Comm. on the District of Columbia, 99th Cong., 2nd Sess. (1986) (statement of Matthew Watson,Former Auditor, Dist. of Columbia).376 Hearing and Mark-Up of H.R. 2637, 98th Congo (1983) (statement of Congressman WalterE. Fauntroy, Chairman, Subcomm. on Fiscal Affairs and Health).377 If You Favor Freedom, supra note 3, at 32-42. Dr. Andrew F. Brimmer, noted economist,stated:A comprehensive examination of the District government's receipts under major federalgovernment programs was undertaken. The results indicate that - if the District of Columbiawere to become a state - it would neither gain nor lose any significant level of Federal funds.At the present time, the District of Columbia receives federal funding as follows: Wherefunding is available to local governments only, the District is funded as a local government -e.g .• the Department of Housing and Urban Development, Community Development BlockGrant Program. Where funding is available to state governments only, the District is designatedby the statute or regulations to receive Federal funds along with the 50 states and U.S.territories or is treated as if it were a state. Where federal funding is available to state andlocal governments or to local governments through the state, the District generally is treated

44 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWstatehood, the District of Columbia cannot lean on a state government to helpwith local funding. 378 If granted statehood, the District would be in a far betterposition to fund its needs and those of sixteen million yearly visitors. 379C. How Will Statehood Affect Taxing Authority?Approximately 70 percent of the District's workforce does not live within itsphysical boundary.38o The District of Columbia is a city where 591,833 peoplereside 381 and more than 700,000 people work. 382 Congress prohibits the Districtfrom taxing income earned by nonresidents working within its boundaries; a limitationon taxing authority discussed extensively in a 1985 report prepared by Dr.Brimmer.383 In her 2009 testimony, Dr. Rivlin noted:as a state. On balance, then, the District of Columbia is presently treated as a state. Thereare few, if any, major funding sources that would become available to the District as a resultof statehood. The major programs funded to local governments generally have provisions forstate funding where the local government is not an applicant.Id.378 Structural Imbalance of the District of Columbia: Hearing Before the S. Subcomm. of theComm. on Appropriations, 108th Congo 4 (2004) (statement of Anthony Williams, Former Mayor,District of Columbia). "The D.C. Public Schools have prepared a 10-year modernization program forall facilities in need of repair, and to execute it would cost $250 million per year over the next 6years." Id.379 Washington D.C. Visitors and Convention Assoc. - DC City Fact Sheet, hUp:!lwashington.orglplanninglmeeting-planners/dc-in-a-boxldc-city-fact-sheet.380 See supra note 378, at 5.381 Id. at 4.382 Id.383 If You Favor Freedom, supra note 3, at 32-42 Discussing the economics of the District'staxing authority, Dr. Andrew F. Brimmer noted:The Government of the District of Columbia collects revenues from taxes, fees, grantsunder Federal programs, and other miscellaneous sources, in much the same way as otherstates and local governments within the United States. Its position differs from that of otherjurisdictions because of (1) the Federal payments it receives to compensate for costs associatedwith the presence of the Federal Government, and (2) the Federal restrictions placed onits taxing authority and on its budgetary discretion ... Although the Federal payment is asmall part of total revenue for the District of Columbia, the Congress has authority to appropriatethe entire District budget. Further, the District of Columbia is prohibited from taxing(1) earnings of workers residing outside of the District, (2) property owned by the FederalGovernment, or (3) property owned by certain organizations, such as the National GeographicSociety, the National Academy of Sciences, and others exempted from taxationunder Federal laws ... Property taxes and income taxes are the leading sources of tax revenues,followed closely by sales taxes. These, along with several minor tax sources, have beenproviding over 70% of total general fund revenues in recent years. The remaining revenuesources include the Federal payment. Miscellaneous charges and fines, including licenses andpermits, service charges, etc., provide about 5% of total revenue, and the net receipts formthe lottery now amount to nearly 2% of total general fund revenues.Id.

TOWARDS EQUAL FOOTING45The District is extremely small ... [ only 61.4 square miles] at the heart of aprosperous metropolitan area. Relatively affluent suburbs, many of whoseresidents work in the District, use its roads and parks and other services, butpay no income tax to the District, ring it. Indeed, two-thirds of the incomeearned in D.C. is earned by non-residents. 384Correspondingly, Dr. Rivlin argues for such taxing authority.385In other large cities, such as New York City, a commuter tax is placed on thosewho enter the city to work. 386 Consequently, "[t]he District already charges someof the highest tax rates in the country. They have resorted to high rates in partbecause of restrictions on their tax base. ,,387 Another burden that residents of theDistrict must bear is the inability to tax specific property in the area. Accordingto Dr. Rivlin, "[f]ully 42 percent of the real and business property base is exemptfrom taxation, with the federal government accounting for 28 percent. ,,388 Despitenot paying taxes, these properties - foreign embassies, federal buildings,and non-profit organizations 389 - benefit from District services and infrastructure,including: fire, police, roads, and emergency services.D. What are the Expected Transition Costs of Statehood?Experts throughout the years have addressed this question with remarked similarity.390In 1984, a former Auditor for the District commented that transition384 See supra note 367.385 Id.Including non-resident income in the tax base would give the District the option of cuttingits income tax rates in half and still raising substantial additional revenue to improvepublic services. Better services and lower income tax rates would make the District a moreattractive place to live and might precipitate substantial in-migration, especially of upperincome people whose location decisions are sensitive to income tax rates.Id.386 PAUL GESSING, NAT'L, TAXPAYER's UNION FOUND., COMMUTER TAXES: MILKING OUTSID­ERS FOR ALL THEy'RE WORTH 141 (2003), http://www.ntu.orglmainJpress_papers.php?PressID=148&or!Lname=NTUF.387 See supra note 383.388 Structural Imbalance of the District of Columbia: Hearing Before the S. Subcomm. of theComm. on Appropriations, 108th Congo 24 (2004) (statement of Dr. Alice Rivlin, Director, BrookingsInstitution Greater Washington Research Program).389 Union Station Redevelopment Corp. Payment in Lieu of Taxes Act of 2009: Hearing on Bill18-220 Before the D.C. Comm. on Fin. and Revenue, D.C. Council (2009) (statement of Ed Lazere,Exec. Dir., D.C. Fiscal Policy Inst.), available at http://dcfpi.orglwp-contentluploads/2009/05/S-2l-09unionst.pdf (last visited Nov. 9. 2009).390 Constitutional and Economic Issues Raised by D.C. Statehood: Hearing on H.R. 325 Beforethe H. Comm. on the District of Columbia, 99th Cong., 2nd Sess. (1986) (statement of Dr. Lucy Reuben,Vice President, Financial Research Associates, Inc. and Associate Professor of Finance, GeorgeMason University). "With respect to the cost of statehood, clearly the costs of statehood will be proportionateto any added responsibilities of statehood. At present, however, the District already bearsmany of these costs through its full-scale legislative and executive systems. Presumably, additional

46 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWcosts would likely be IOW. 391 However, the city lacks the control and restraintnecessary to lower its debt, which was created by high interest loans as a result ofpoor bond ratings. 392 The District's debt burden is considerably higher than recommendedby the rating agencies:All three of the rating agencies (Moody's, Standard & Poor's, and Fitch)have indicated that ... the District's debt burden [is] relatively high. Such ahigh debt burden is a contributing factor to limitations on the potential forfurther bond rating upgrades forcing the city to continue to pay higher thannecessary interest rates. Bond ratings have a direct financial effect ... ofthe amount of interest that the District must pay on its debt, and bond ratingsalso represent a broad indicator to investors and other stakeholders of... current and long-term financial health. 393The District of Columbia is forced to spend a significant percentage of the annualbudget on interest alone - even during an economic or financial crisis when thecity does not generate as much revenue as it normally does. 394 Additionally, thecity is forced to prioritize paying debt, rather than financing education and healthcare.In recent years, there has been increasing attention to the District of Columbia'shigh debt levels, which are among the highest per capita whencompared with other cities and states. [The District's] debt consumesfiscal responsibilities will be paid for through the additional fiscal flexibility of any incremental powersof statehood." Id.391 Id. (statement of Matthew Watson, Former Auditor, Dist. of Columbia).Transition costs, of themselves, are likely to be minimal, and should be of no concern inmaking a determination as to whether to approve statehood. However, although tht: Districtnow performs at its own expense almost all activities which it would be required to performas a state, several programs which the state would be required to take over from the FederalGovernment would have cost implications which are not merely transition costs, but whichwould continue indefmitely.Id.Although the District of Columbia has encountered many fmancial obstacles, it has managed tobalance its budget for the past eleven years as well as create an emergency and contingency reserve.See infra note 392.392 Moody's - Ratings Policy & Approach, http://v3.moodys.comlratings-process/Ratings-Policy-Approachl002003.Any city or state in the U.S. borrows money from the private sector via bondsand agrees to pay a certain amount of interest depending on how high or low their bond-ratings are.Id.393 Letter from Natwar M. Ghandi, Chief Fin. Off. for the Dist. of Columbia to Adrian M.Fenty, Mayor, Dist. of Columbia and Vincent C. Gray, Chair, Council of the Dist. of Columbia 3-4(Jui. 8, 2(08), available at http://cfo.dc.gov/cfo/frames.asp?doc=/cfollib/cfo/debCletteC070908_.pdf(last visited Nov. 9, 2009).394 Id.

TOWARDS EQUAL FOOTING47nearly 12 percent of the operating budget, more than the 10 percent recommendedby bond rating agencies. 395Dr. Robert Ebel, the Deputy Chief Financial Officer for the District, has estimatedthat taxing personal income of nonresidents who work in the Districtwould generate $2.26 billion annually.396 Currently, the District is operatingunder a structural imbalance. The U.S. Government Accountability Office definesthis as "the difference between its cost of providing an average level ofservices, and its total revenue capacity - the amount of revenue the District wouldhave (including federal grants) if it applied average tax rates to its taxable resources.,,397 Consequently, residents must compensate for the lack of revenuefrom the inability to tax 70 percent of the personal income generated within thecity and 42 percent of real and business property.398 Ed Lazere, Executive Directorof the DC Fiscal Policy Institute, has argued that the only realistic way toaddress a projected revenue shortfall for 2009 is to tap into the city's $330 millionemergency and contingency reserves because it is too late to sufficiently implementtax or fee increases?99 Although borrowing from the emergency and contingencyfund (often referred to as the "rainy day" fund) is the usual option to fillthe shortfall, D.C.'s lack of control over its budget presents rigid obstacles. Congresshas mandated that any money the District borrows from its rainy day fundmust be paid back entirely within two years. 400Because of its unique structure, the District is currently forced to operate likea state, but with the added burden of not taxing like a state. Even though the cityhas balanced its budget over the past eleven years,401 it has done so at the cost ofraising taxes and eliminating essential services. Statehood would allow the structuralchanges that are necessary to payoff its large debt,402 thus freeing desperatelyneeded money to lower taxes and offer better services. Creating NewColumbia would help fix the structural imbalance.395 Union Station Redevelopment Corp. Payment in Lieu of Taxes Act of 2009: Hearing on Bill18-220 Before the D.C. Comm. on Fin. and Revenue, D.C. Council (2009) (statement of Ed Lazere,Exec. Dir., D.C. Fiscal Policy Inst.), available at http://dcfpi.orglwp-contentluploadsl2oo9/0515-21-09unionst.pdf (last visited Nov. 9. 2009).396 Id. (statement of Robert Ebel, Dep. Chief Fin. Off., Dist. of Columbia).397 U.S. Gov'T. ACCOUNTABILITY OFF.RPT. NO. 03-666, DISTRICT OF COLUMBIA: STRUCTURALIMBALANCE AND MANAGEMENT ISSUES 7 (May 2003), available at http://www.gao.gov/new.items/d03666.pdf. (last visited Nov. 8, 2009).398 [d.399 ED LAZERE, DC FISCAL POLICY INST., FILLING DC's NEWEST REVENUE HOLE (2009),available at http://dcfpi.orgl?p=603 (last visited Nov. 9, 2009).400 [d.401 Public Oversight Roundtable on the Economic and Financial Impacts of District of ColumbiaStatehood: Hearing Before the Spec. Committee on Statehood and Self-Determination, D.C.Council (2009) (testimony of Ed Lazere, Exec. Dir., DC Fiscal Policy Inst.), available at http://dcfpi.orgl?p::::693 (last visited Nov. 9, 2009).402 [d.

48 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWVI. INTERNATIONAL LAW AND THE DISTRIcr OF COLUMBIABy denying representation in Congress to the people of Washington, D.C., theUnited States damages its authority to advocate for the spread of democracyabroad. 403 The United States is also potentially violating international law. Bothformal treaties 404 and the behavior of nations 405 recognize full representation inthe national legislature as a universal right to which all people are inherentlyentitled. The United States of America stands absolutely and totally alone as theonly nation in the world with a representative democracy that denies to the citizensof its capital voting representation in the national legislature.However, domestic courts have held that they lack the authority and jurisdictionto create a judicial remedy to this issue, ruling in Ballentine v. United States,that "pursuant to Article I of the Constitution, only states are entitled to regularvoting members [in Congress]. ,,406 Earlier courts have also ruled on whether U.S.territories are entitled to membership in the Electoral College, concluding, "thefranchise for choosing electors is confined to 'states' cannot be 'unconstitutional'because it is what the Constitution itself provides.,,407 However, many courtshave been sympathetic to the plight of U.S. citizens robbed of voting rights. 408Nonetheless, there is mounting international pressure on the United States toresolve the incongruity between the voting and representational status of living instates and its citizens living elsewhere. 409 While some criticisms have been generalor applicable to the District in a nonspecific fashion,41o some have beenaimed squarely at the city of Washington and its specific grievances-lack of selfdeterminationand voting representation. 411403 See supra note 6. Such efforts are necessarily weakened by the dissonance between Americanforeign policy and domestic action.404 Known as "Treaty Law". SEAN D. MURPHY, PRINCIPLES OF INTERNATIONAL LAW 66 (2006)[hereinafter MURPHY].405 Known as "Customary Law." [d. at 78.406 Ballentine v. United States, 486 F.3d 806, 811 (3d Cir. 2007) (citing Adams v. Clinton, 90F.Supp.2d 35, 48-49 (D.D.C.2000», affd 531 U.S. 941 (2000).407 [d. at 811 (quoting Igartua-De La Rosa v. United States, 417 F.3d 145,147 (1st Cir. 2005».Separation of powers makes it impossible for any court to simply order Congress to create a new statein order to grant a group of people representation. [d.408 See generally Igartua-De La Rosa v. United States, 417 F.3d 145 (1st Cir. 2005) (Torruella, J.and Howard, J. dissenting).409 See supra note 6.410 Press Release, Special Comm. Decolonization, Special Comm. on Decolonization AdoptsText Calling United States to Expedite Self-Determination Process for Puerto Rican People (June 9,2008), http://www.un.orglNewslPressldocs/2008/gacoI3176.doc.htm. The United Nations Special Committeeon Decolonization adopted text calling on the United States to Expedite Self-determinationProcess for Puerto Rican People. [d.411 See supra note 6. Statehood Solidarity Comm. v. United States, Case Rep. No. 98/03 Inter­Amer. Comm. H.R. (2003); INTER-AMERICAN COMM'N. ON HUMAN RIGHTS, ORG. OF AM. STATES,RPT. No. 09/03 § 117 (2003), http://www.cidh.orgiannualrepl2003englUSA.11204a.htm.

TOW ARDS EQUAL FOOTING 49A. Treaty LawInternational law comes from two primary and distinct sources-treaty andcustom. 412 Treaties are straightforward; they are contracts between states,413 andhave a force equal to that of a Congressional statute granted under theSupremacy Clause of the United States Constitution.,,414 The federal governmentcould hardly conduct foreign policy if its treaties were unenforceable under statelaw. International law is thus a source of domestic law. 415In practice, the status of treaties in domestic law is more complex. 416 The U.S.is a party to a number of treaties that are part of a growing framework of internationalhuman rights law. 417 In the years following the horrors of World War 11,418the global community came together to recognize that all people are entitled witha corpus of rights that transcend anyone nation or government. 419 The Universal412 Statute of the International Court of Justice, art. 38 § 1 (June 26, 1945). [hereinafter ICJStatute))413 See supra note 406.414 U.S. CON ST. art. VI, § 2.415 [d.416 The courts have established a bifurcated system for their integration into law. This system,first articulated by Chief Justice John Marshall in Foster v. Neilson, 27 U.S. 253, 314 (1829), defines atreaty as either self or non-self-executing. Self-executing treaties become American law as soon asthey are ratified, while non-self-executing treaties require Congress to pass implementing legislationbefore they are actionable in domestic courts. Justice Marshall wrote:Our Constitution declares a treaty to be the law of the land. It is, consequently, to beregarded in courts of justice as equivalent to an act of the legislature, whenever it operates ofitself without the aid of any legislative provision. But when the terms of the stipulation importa contract, when either of the parties engages to perform a particular act, the treatyaddresses itself to the political, not the judicial department; and the legislature must executethe contract before it can become a rule for the Court.[d.417 Including, but not limited to: the UN Universal Declaration of Human Rights, the InternationalCovenant on Civil and Political Rights, the Inter-American Democratic Charter and the AmericanDeclaration of the Rights and Duties of Man.418 Atlantic Charter. U.S.-U.K., August 14, 1941,55 Stat. 1600; EAS 236; 3 Bevans 686, availableat www.state.ga/documents.organization/65515.pdf. Less than six months before the United Statesentered into World War II, President Franklin Roosevelt and Prime Minister Winston Churchill ofBritain signed the Atlantic Charter "to make known certain common principles" they were determinedto defend in the face of Nazi aggression. Among those principles were a commitment to "respectthe rights of all peoples to choose the form of government under which they will live," and to"see sovereign rights and self government restored to those who have been forcibly deprived ofthem." [d. The Atlantic Charter was an articulation of American foreign policy to no longer fight forterritory but to protect and encourage freedom and democracy.419 The International Bill of Human Rights is the most comprehensive enumeration of thosepolitical rights, and speaks directly to the specific rights denied to residents of Washington, D.C. Itconsists of several components, including the U.N. Universal Declaration of Human Rights (Declaration),the International Covenant on Civil and Political Rights (ICCPR), the International Covenanton Economic, Social, and Cultural Rights (ICESC), and two optional protocols to the ICCPR. TheDeclaration and the ICCPR both explicitly support the case for D.C. statehood. Article 21 of the

50 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWDeclaration of Human Rights, issued in 1948 by the United Nations Commissionon Human Rights, is the first part of the International Bill of Human Rights; itdoes not create new rights, but rather restates "fundamental freedoms" recognizedby the United States and other members of the international community as"inalienable" to all people. 42o "This Declaration may well become the internationalMagna Carta. ,,421 The views of the members of the Commission reflect thisbroad vision. 422 This is not to say there was unanimous agreement among all thedelegates. 423 However, 48 out of 58 members of the United Nations, includingthe United States, supported it. 424The International Covenant on Civil and Political Rights ("ICCPR") was createdin 1966. 425 Article 1 and Article 25 of the ICCPR affirm the political rightsin the Declaration: "All peoples have the right to self-determination. By virtue ofthat right they freely determine their political status and freely pursue their economic,social, and cultural development.,,426 The ICCPR is a treaty and theUnited States is among 166 countries to have ratified it and is bound by itsDeclaration states: "Everyone has the right to take part in the government of his country, directly orthrough freely chosen representatives." United Nations Universal Declaration of Human Rights,G.A. Res. 217 A (III), at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. N810 (Dec. 12, 1948»."The will of the people shall be the basis of the authority of government; this will shall be expressed inperiodic and genuine elections which shall be by universal and equal suffrage," Id. Article 21 echoessimilar, Hobbesian language found in the Declaration of Independence, which famously states that"[governments derive] their just powers from the consent of the governed." DECLARATION OF INDE­PENDENCE para. 2 (U.S. 1776). Both of these documents are inherently reflective of American values -values applied to the vast majority of American citizens, but not to the residents of the District.420 Socia~ Humanitarian and Cultural Questions: Universal Declaration of Human Rights, 1947-8 U.N.T.B. 573, available at http://unyearbook.un.orglunyearbook.html?name=194748index.html. (lastvisited Nov. 9, 2009).421 International Human Rights Treaties: Hearing Before the S. Comm. on Foreign Relations,69th Congo 1 (1980) (statement of Claiborne Pell, Chair, S. Comm. On Foreign Relations).422 UNITED NATIONS YEARBOOK SUMMARY, 1948, http://www.udhr.orglhistory/yearbook.htm.One Member of the Commission stated, "[i]t was imperative that the peoples of the world shouldrecognize the existence of a code of civilized behavior which would apply not only in internationalrelations but also in domestic affairs." [d. at B(l)(a). Another took the view that "by making humanrights international, the United Nations Charter had placed upon States positive legal obligations."[d. Still another was even more emphatic, stating "the primary purpose of the Declaration was ... toenable man, all over the world, to develop his rights and, in consequence, his personality ... Manshould feel confident that [government] powers could not impair his fundamental rights." [d.423 [d. For example, "[t]he representative of New Zealand, the Union of South Africa, SaudiArabia, the USSR, Poland, the Byelorussian SSR, the Ukrainian SSR, Yugoslavia, and Czechoslovakiacriticized the draft Declaration."424 [d.425 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 52, U.N. Doc. N6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23,1976), available at http://www1.umn.edulhumanrtslinstreeIb3ccpr.htm (last visited Nov. 9,2009). TheICCPR is designed to give judicial force to the Declaration.426 [d at art. I, cl. 1.

TOWARDS EQUAL FOOTING 51terms. 427 The treaty covers the lack of self-determination in Articles 1.1 and1.3. 428 Exclusion of non-self-governing territories from the auspices of theICCPR would seem to run contrary to its intent and purpose. Some territories,however, have accepted their status. In Igartua-De La Rosa v. United States, thecourt stated that because Puerto Ricans "themselves acceded to their presentCommonwealth status," they are not entitled to any further protection undertreaties such as the ICCPR. 429Article 25 of the ICCPR mirrors the language of Article 21 of the Declaration,and further supports the idea that the treaty does not accept the status of nonself-governingterritories carte blanche. 430 Residents of the District of Columbialack Article 25 rights because their powers are subordinate to the unelected mastersin Congress. 431 A violation of the ICCPR raises the opportunity for one ofthe treaty partners to challenge the U.S. under the dispute resolution mechanismoutlined in Articles 41 and 42.432 Such an investigation could lead to a formaldenunciation of the United States. 433 The United States is also a party to regionalinstruments emphasizing its obligation to full voting representation for its people.The Inter-American Democratic Charter ("IADC") was adopted in 2001. 434 In427 Id. at art. 1, cl. 3. "The States Parties to the present Covenant, including those having responsibilityfor the administration of Non-Self-Governing and Trust Territories, shall promote therealization of the right of self-determination, and shall respect that right, in conformity with the provisionsof the Charter of the United Nations." Id.428 Id.429 Igartua-De La Rosa v. United States, 417 F.3d 145, 149, n. 5 (1st Cir.2oo5). In its opinion,the court quoted a U.N. General Assembly Official Record from 1953 that states "when choosingtheir constitutional and international status, the people of the Commonwealth of Puerto Rico haveeffectively exercised their right to self-determination." Id. (quoting G.A. Res. 748 (VIII), U.N.GAOR, 8th Sess., 459th plen. mtg. at 26 (1953».430 See GA. Res. 748 (VIII), U.N. GAOR, 8th Sess., 459th plen. mtg. at 25.Every citizen shall have the right and the opportunity, without any of the distinctionsmentioned in article 2 and without unreasonable restrictions: a) To take part in the conductof public affairs, directly or through freely chosen representatives; b) To vote and to beelected at genuine periodic elections which shall be by universal and equal suffrage and shallbe held by secret ballot, guaranteeing the free expression of the will of the electors; c) Tohave access, on general terms of equality, to public service in his country.Id.431 JIMMY CARTER, THE CARTER CTR., U.S. FINALLY RATIFIES HUMAN RIGHTS COVENANT(1992), available at hUp:llwww.cartercenter.orginews/documents/doc1369.html (last visited Nov. 9,2009). The Senate, which ratified the ICCPR in 1992, did not make any reservations or declarations; aclear indication the Senate saw the scope of those provisions as acceptable and appropriate. However,the Senate did declare the ICCPR to be a non-self-executing treaty, which precludes District residentsfrom suing the federal government for violating the terms of the ICCPR.432 See supra note 430, at art. 41, 42. The U.N. Human Rights Committee would have originaljurisdiction over the claim; and, it would also have the authority to appoint an ad hoc Commission tofurther investigate. Id.433 Id.434 Organization of American States, Inter-American Democratic Charter, Sept. 11, 2001,http://www.oas.orgicharter/docs/resolutionCen_p4.htm. The Inter-American Democratic Charter

52 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW2003, the Inter-American Commission on Human Rights, a body of the Organizationof States ("OAS"), ruled against the United States. 435B. Customary LawThe United States is also in defiance of customary international law. Customhas a legal force equal to that of treaties or Congressional statute; it can be analogizedto common law. 436 Unlike treaty law, customary international law is basednot on a single written document but on what the International Court of Justicedefines this as "evidence of a general practice accepted as law.,,437 There are twoessential components in establishing custom. 438 The first component requires observingstate practice through "interstate interaction and acquiescence. ,,439 Suchpractice must be "general and consistent.,,44o A given practice need not be adheredto by all nations to become custom. While the 9th Circuit Court ruled in1994 that a norm must be "specific, universal, and obligatory,,,441 the 2nd CircuitCourt of Appeals has clarified that position stating, "[ s ]tates must not be universallysuccessful in implementing the principle in order for custom to arise. ,,442 Fora practice to become custom, it must be widespread and seen as legally mandated- a principle known as opinio juris. 443In addition to its role as a source of international law, custom is also a part ofAmerican domestic law. 444 The traditional view is that custom should be based(lAD C) was adopted in 2001 and contains language on political rights similar to that of the Declarationand the ICCPR. The IADC is a binding resolution of the General Assembly of the Organizationof American States (OAS), and was based on the American Declaration for the Rights and Duties ofMan (American Declaration), a precursor to the U.N. Universal Declaration of Human Rights.435 See supra note 6. The Commission stated that the United States, " ... has failed to justifythe denial to the [residents of the District of Columbia] of effective representation in their federalgovernment, and consequently, that [they] have been denied an effective right to participate in theirgovernment, directly or through freely chosen representatives and in general conditions of equality,contrary to Articles XX and II of the American Declaration." INTER-AMERICAN COMM'N. ONHUMAN RIGHTS, ORG. OF AM. STATES, RPT. No. 09/03 § 109 (2003), http://www.cidh.org/annualrep/2003englUSA.11204a.htm.436 See MURPHY, supra note 407, at 78.437 ICJ Statute, supra note 416, at art. 38 § 1(b).438 Frederic L. Kirgis, Jr., Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits),81 AM. J. INT'L L. 144, 146 (1987).439 Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary InternationalLaw: A Reconciliation, 95 AM. J. INT'L L. 757, 758 (20ot).440 Id.441 In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994).442 Flores v. S. Peru Copper Corp., 406 F. 3d 65, 80 (2nd Cir. 2003). "States need not beuniversally successful in implementing the principle in order for a rule of customary international lawto arise. If that were the case, there would be no need for customary international law. But the principlemust be more than merely professed or inspirational." [d.443 See supra Roberts note 439, at 757.444 See The Paquete Habana, 175 U.S. 677, 686 (1900). The Supreme Court, ruling in PaqueteHabana famously stated: "International law is part of our law, and must be ascertained and adminis-

TOWARDS EQUAL FOOTING 53primarily on state practice,445 with opinio juris being of secondary importance. 446This view was given a forceful measure of support by the U.S. Supreme Court inSosa v. Alvarez,447 where Justice Souter stated for the majority that customshould be determined by three primary standards: "[a] norm of internationalcharacter, accepted by the civilized world, and defined with a specificity comparableto the features of the 18th century paradigms we have recognized.,,448The exact structure of democratic governments may vary considerably. Thispoint is raised by the court in Igartua 449 which refuted the plaintiff's claim thatthere exists no right in customary international law to vote for one's head of stateholding, "[n]o serious argument exists that customary international law ... requiresa particular form of representative government. .. If there exists an internationalnorm of democratic government, it is at a level of generality so high as tobe unsuitable for importation into domestic law."45o The Court drew on theSosa 451 ruling, which held that a "high level of generality" is insufficient for determiningcustom. 452There may be many different forms of an elected government, yet there is onlyone real form of electing the legislatures inherent to that government - one citizen,one vote. Anyone seeking to contest this position must ask: is any othermethod practiced?453C. State PracticeEstablishing state practice is relatively simple. Every state that holds electionsfor a national legislature grants the citizens of its capital full voting rights andrepresentation, including all of the countries named in Appendix II. The UnitedStates is the sole exception. 454 The American military presence in Iraq and Afteredby the courts ... For this purpose, where there is no treaty, and no controlling executive orlegislative act or judicial decision, resort must be had to the customs and usages of civilized nations."Id.445 See Roberts supra note 439, at 758.446 Id.447 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (referencing examples of international customwhen the Alien Tort Statute was enacted in 1789, including prohibitions against piracy and diplomaticimmunity).448 Id. at 725 (discussing that claims based on present-day laws of nations must be based onaccepted norms).449 Igartua, 417 F.3d at 151.450 Id.451 Sosa, 542 U.S. at 737. n. 27.452 Id.453 See U.S. CaNST. art. I, § 3, cl. 1. American Congressional districts do vary somewhat in sizeand Senate representation is not proportionate to population. Id. However, the basic principle remainsthat every citizen has the right to be represented under the same system as their fellows.454 Arjun Garg, A Capital Idea: Legislation to Give the District of Columbia a Vote in the HOllseof Representatives, 41 COLUM. J. L. & Soc. PROB. 1 (2007). Opponents of statehood for the District

54 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWghanistan, with the goal of spreading democracy to that region, represents a willingnesson the part of the United States government to strongly support thosebeliefs through action. Both Iraq and Afghanistan now hold elections in which allcitizens vote to elect their nationallegislature. 455D. Opinio JurisEstablishing opinio juris is more complex. The declarations and treaties listedare evidence that states view those rights as legally binding custom. 456 On September11, 2001, the United States adopted the IADC along with thirty-fourcountries in the Western Hemisphere. Secretary of State Colin Powell representedthe United States at the treaty signing and upon hearing of the terroristattacks that took place, stated: "It is important that I remain here for a bit longerin order to be part of the consensus of this new charter on democracy. That is themost important thing I can do ... I very much want to express the United States'commitment to democracy . .. [and1 to individualliberties.,,457E. Implications of CustomBoth state practice and opinio juris provide evidence that the right of all peopleto full representation in the national legislature is international custom. Thisargument meets the test set forth in Sosa. 458 In Igartua, Judge Toruella expressedthat view in his dissent. 459 Because custom is a part of U.S. domestic law, it couldbe a possible mechanism to challenge the status of the District in federal court.Statehood should be pursued by primarily political means because no court,have often argued it has a unique status as the seat of the federal government that must be preserved.However, six foreign capitals, Canberra (Australia), Brasilia (Brazil), New Delhi (India), Mexico City(Mexico), and Caracas (Venezuela) were all initially conceived of as federal districts mirroring theAmerican model. Id. at 9-10. All six have since attained full voting representation in their nationallegislatures; no other disenfranchised capital enclaves now exist. Id.455 See CONSTITUTION OF AFGHANISTAN CH. III ART. 61 AND CH. V ART. 83-84, http://www.servat.unibe.chlIaw/icUafOOOOO_.html; CONSTITUTION OF IRAQ CHAP. II ART. 10 & ART. 20, CHAP. IVART. 30 AND CH. V ART. 36, http://portal.unesco.orglcilinlfilesI20704/11332732681iraq_constitution_en.pdf.456 Igartua-De La Rosa 417 F.3d at 176. Judge Toruella wrote, "The ICCPR, the UDHR, theAmerican Declaration, the ACHR and the IADC are all evidence of the emergence of a norm ofcustomary international law with an independent and binding juridical status." Id.457 Id. at 172. (emphasis added).458 Sosa, 542 U.S. at 716. (discussing the three-part standard for what constitutes a "custom":"[a] norm of international character; accepted by the civilized world; and defined with a specificitycomparable to the features of the 18th century paradigms").459 Igartua-De La Rosa 417 F.3d at 176, (Tortuella, J. dissenting). "The right to equal politicalparticipation, as evidenced by these international treaties, covenants, and declarations, is reinforcedby what has become the overwhelming practice worldwide ... While the system of democratic governmentmay differ from country to country, the fundamental right of citizens to participate, directlyor indirectly, in the process of electing their leaders is at the heart of all democratic governments." Id.

TOWARDS EQUAL FOOTING 55under either domestic or international law, has the authority to compel Congressto create a new state. 460 However, a legal challenge allows for the possibility toseek a judicial remedy that would grant some relief. 461vu. CONCLUSIONRecent surveys have found that 78 percent of Americans believe District residentshave the same Constitutional rights as other U.S. citizens, including equalvoting rights in Congress. 462 When informed of the disfranchisement, 82 percentof those surveyed, including 87 percent of Democrats and 77 percent of Republicans,believe District citizens should have equal congressional voting rights. 463Popular support of that magnitude is an important tool in persuading Congress tosupport Statehood. The issue is parochial. The District's status gives it little leverageto gain support for their cause. But voters from their home states can encourageCongress to support the District. The most important reason is thatdemocracy is an American birthright. The quickest solution may be treating Districtresidents the same way other enclave residents are treated. The problem is,assuming that action could be taken by statute, that those same rights can betaken away - a precarious situation. 464If the goal is to secure for District residents the most rights, without the possibilityof those rights being taken away, the solution is statehood. It gives theDistrict the sovereignty that many of its residents desire. Some have said Congressshould provide that no more than one Senator could be elected from anyparty, ensuring the election of a non-Democratic Senator. 465 The courts upheld460 Id. at 152-153.461 28 U.S.C. § 2201(a}. Under the Declaratory Judgment Act, "in a case of actual controversywithin its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading,may declare the rights and other legal relations of any interested party seeking such declaration,whether or not further relief is or could be sought.·' Id.462 KRC RESEARCH, DC VOTE, U.S. PuBLIC OPINION ON D.C. VOTING RIGHTS 11 (Jan.2005),http://www.dcvote.orgltrellislresearchlpolljan2005.pdf. KRC Research surveyed 1,007 U.S. adults bytelephone. Id. at 3.463 Id. at 7, 11.464 H.R. REP. No. 100-305, at 46 (1987). The true benefit of statehood is that it is permanent.Id. At one time, Hawaii, Alaska and Minnesota were territories of the United States. Id. It is obviousthat they cannot now be returned to such a status, nor could the District of Columbia, should itbecome a state. Statehood gives the citizens of a particular state sovereignty. Id.465 D.C. CODE § 1-221 (1973). The Act provides:(a) [t)here is established a Council of the District of Columbia; and the members of theCouncil shall be elected by the registered qualified electors of the District. (b) (1) [t)heCouncil established under subsection (a) shall consist of thirteen members elected on a partisanbasis. The Chairman and four members shall be elected at large in the District, and eightmembers shall be elected one each from the eight election wards established, from time totime, under the District of Columbia Election Act ... The term of office of the members ofthe Council shall be four years, except as provided in paragraph (3), and shall begin at noonon January 2 of the year following their election. (2) [i)n the case of the first election held for

56 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthat provision. 466 Many would find it objectionable. 467 The drive to achieve D.C.Statehood must be waged on several levels. They should not give up on thecourts. Many considered America to have a binding agreement with the Districtat its founding. Equally, America has not met the terms of that agreement. Thisbreach may be cognizable in the courts. Moreover, Congress has proven to be aplace where, with hard work, sympathy can be found. It is time, once again, to putthe issue squarely before them. Of course, world opinion may be the strongestasset. All of these strategies should be undertaken.Statehood for the people of the District of Columbia is inevitable. Throughproper package and presentation, the impossible can become possible. I remainhopeful and optimistic that one day, in our lifetime, the invisible line one crosseswhen entering Washington, D.C. will make no difference to the matter of equalcitizenship. Somewhere in the midst of a long, dark passageway, there is the tunnel'slight. Statehood could finally mend the crack in the Liberty Bell, throughwhich close to 600,000 citizens have fallen. Statehood for the District of Columbiais the only path to lasting political standing and sovereignty - equal footing -something all other citizens in America and many around the world enjoy, demand,and take for granted.the office of member of the Council after the effective date of this title [January 2, 1975], notmore than two of the at-large members (excluding the Chairman) shall be nominated by thesame political party. Thereafter, a political party may nominate a number of candidates for theoffice of at-large member of the Council equal 10 aile less than the total number of at-largemembers (excluding the Chairman) to be elected ill such election.[d. (emphasis added).466 Hechinger v. Martin, 411 F. Supp. 650,654-655 (D.D.C. 1976), affd 429 U.S. 1030 (1977).A provision in the Home Rule Act requires that no more than one at large councilmember may befrom anyone political party. [d.467 Constitution for the State of New Columbia Approval Act of 1987, Act 7-19, D.C. Council(1987),34 D.C. Reg. 3057-3110. The people of Washington, D.C. have made their preference clearthrough votes. [d.

TOWARDS EQUAL FOOTING57ApPENDIX ITIMELINE:209 YEARS OF THE DISTRICT OF COLUMBIA'S EFFORTSTO RESTORE SELF-GOVERNMENT1788 The General Assembly of the State of Maryland authorizes the cession ofterritory for the seat of government of the United States, "acknowledged to beforever ceded and relinquished to the Congress and Government of the UnitedStates, and full and absolute right and exclusive jurisdiction, as well of soil as ofpersons residing or to reside thereon, pursuant to the tenor and effect of theeighth section of the first article of the Constitution ... And provided also, Thatthe jurisdiction of the laws of this State over the persons and property of individualsresiding within the limits of the cession aforesaid shall not cease or determineuntil Congress shall, by law, provide for the government thereof, undertheir jurisdiction, in manner provided by the article of the Constitution beforerecited." The Maryland Assembly passes supplementary acts of cession in 1792and 1793 regarding the validity of deeds and sale of property in the new capital.1789 The General Assembly of the Commonwealth of Virginia authorizes thecession of territory for the permanent seat of the General Government as Congressmight by law direct and that the same "was thereby forever ceded and relinquishedto the Congress and Government of the United States, in full andabsolute right, and exclusive jurisdiction .... " Like Maryland, Virginia's act ofcession provides that Virginia law shall continue to apply until Congress, "havingaccepted the said cession, shall, by law, provide for the government thereof,under their jurisdiction, in manner provided by the articles of the Constitutionbefore recited." (District clause).1790 Congress accepts the territory ceded by the State of Maryland and the Commonwealthof Virginia to form the Seat of Government of the United States. Itdeclares that on the first Monday in December 1800, the Seat of Government ofthe United States shall be transferred to such district and it authorizes the Presidentto appoint three commissioners to survey and purchase land and prepare itfor the new government which is to take up residence on the first Monday inDecember 1800.1791 President George Washington issues several presidential proclamations definingand fixing the boundaries of the new District.1790-1800 Qualified residents of the new District of Columbia continue to vote inelections of federal officers conducted in Maryland and Virginia, including Rep-

58 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWresentatives in Congress, even though Maryland and Virginia ceded the land tothe Federal government and the District's boundaries had been drawn.1800 The Seat of Government of the United States is transferred to the new Districtof Columbia.1801 A lame duck Congress passes the Organic Act of 1801 on Feb. 27, 1801 anddivides the District into two counties, the county of Washington (Maryland cession)and the county of Alexandria (Virginia cession). The Act creates a circuitcourt for the District of Columbia, authorizes the appointment of a U.S. Attorney,marshals, justices of the peace, and a register of wills for the District. It alsoprovides that the Act shall not "alter, impeach or impair the rights, granted by orderived from the acts of incorporation of Alexandria and Georgetown [incorporatedcities in Virginia and Maryland prior to cession]. No longer in a state, Districtresidents lose their state and national representation (senators were thenelected by state legislatures) and their local self-determination to the extent theydo not live in the two incorporated cities.1802 Congress abolishes the board of commissioners and incorporates the City ofWashington (formerly in the County of Washington) with a presidentially appointedmayor and a popularly elected council of twelve members with twochambers, one with seven members and the second with five members. The secondchamber is to be chosen by all the members elected. All acts of the councilmust be sent to the Mayor for his approval. Suffrage is limited to "free, whitemale inhabitants of full age, who have resided twelve months in the city and paidtaxes therein the year preceding the election's being held."1804 Congress extends the 1802 charter fifteen years and provides for the directelection of both houses of the Council, each with nine members.1812 Congress amends the charter of the City of Washington to enlarge the council,now consisting of an elected board of aldermen (eight members) and anelected board of common council (twelve members). The Mayor is to be electedby the two boards in a joint meeting. Congress also expands the corporation'staxing authority and authority to develop public institutions, although subject tothe approval of the President (including the budget) since the Mayor will nolonger be a Presidential appointee.1812 Congress confers certain powers upon a levy court or board of commissionersfor the County of Washington (part of Maryland cession not included in thecity of Washington) primarily dealing with taxes for public improvements such asroads and bridges. The board has seven members designated by the Presidentfrom existing magistrates in the county.

TOWARDS EQUAL FOOTING 591820 Congress repeals the 1802 and 1804 acts and reorganizes the government ofthe City of Washington by providing for a popularly elected Mayor. Existingelected council continued.1822 A Committee of Twelve, appointed "pursuant to a resolution of a meetingof the Inhabitants of the City of Washington," requests from Congress a republicanform of government and the right to sue and to have federal representation"equal to citizens who live in States." "The committee confesses that they candiscover but two modes in which the desired relief can be afforded, either by theestablishment of a territorial government, suited to their present condition andpopulation, and restoring them, in every part of the nation to the equal rightsenjoyed by the citizens of the other portions of the United States, or by a retrocessionto the states of Virginia and Maryland, of the respective parts of the Districtwhich were originally ceded by those states to form it." Washington Cityresidents were not interested in retrocession, however.1825 On December 28, a Committee of Thirteen sends a ten-page Memorial toCongress "praying for an amelioration of their civil and political condition" andsaid they should be treated at least as well as territories.1841 In his inaugural address, President William Henry Harrison says" Amongstthe other duties of a delicate character which the President is called upon toperform is the supervision of the government of the Territories of the UnitedStates. Those of them which are destined to become members of our great politicalfamily are compensated by their rapid progress from infancy to manhood forthe partial and temporary deprivation of their political rights. It is in this Districtonly where American citizens are to be found who under a settled policy aredeprived of many important political privileges without any inspiring hope as tothe future ... Are there, indeed, citizens of any of our States who have dreamedof their subjects in the District of Columbia? The people of the District of Columbiaare not the subjects of the people of the States, but free American citizens.Being in the latter condition when the Constitution was formed, no wordsused in that instrument could have been intended to deprive them of thatcharacter. "1846 Congress, the Virginia Legislature and the City of Alexandria approve theretrocession of the county and town of Alexandria (what is now ArlingtonCounty and the City of Alexandria) back to Virginia, decreasing the size of theDistrict by about forty percent. The referendum on retrocession passes 763 for to222 against. Residents of Alexandria City approve the retrocession (734 for to116 against), while residents of Alexandria County, disapprove it (29 for to 106against).

60 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW1848 Congress reorganizes the government of the City of Washington, approvinga new charter that allows voters to elect the Board of Assessors, the Register ofWills, the Collector, and the Surveyor. It abolishes the property qualifications forvoting and extends voting rights to all white male voters who pay a one dollaryearly school tax.1850 Congress ends the slave trade in the District.1862 Congress abolishes slavery in the District (on April 16th, "EmancipationDay," nine months before the Emancipation Proclamation is issued) and establishesa school system for black residents.1867 Congress grants the vote to every male person "without any distinction onaccount of color or race" who is not a pauper or under guardianship, is twentyoneor older, who has not been convicted of any infamous crime and has notvoluntarily given "aid and comfort to the rebels in that late rebellion," and whohas resided in the District for one year and three months in his ward. AfricanAmericans make up thirty-three percent of the District's population and wieldconsiderable political power.1871 Congress repeals the charters of the cities of Washington and Georgetownand creates the Territory of the District of Columbia. The Territory will have aPresidentially appointed Governor and Secretary to the District, subject to Senateconfirmation, a bicameral legislature with a Presidentially appointed upperhouse and Board of Public Works, both subject to Senate confirmation, and apopularly elected twenty-two seat House of Delegates, and a nonvoting Delegateto the House of Representatives. Norton P. Chipman is the District's first nonvotingDelegate to the U.S. House of Representatives. However, the District's voterslose the right to elect its executive and the upper house of its legislature.1874 Congress removes all elected Territorial officials, including the nonvotingDelegate in Congress, temporarily replaces the Territorial government with threePresidentially appointed commissioners and places an officer of the Army Corpsof Engineers in charge, under the general supervision and direction of the commissioners,of public works in the District. The First and Second Comptroller ofthe Treasury are appointed to a board of audit to audit the Board of PublicWorks and Territorial Government's financial affairs.1878 Congress passes the Organic Act of 1878 which declares that the territoryceded by the State of Maryland to Congress for the permanent seat of governmentof the United States shall continue to be the District of Columbia and amunicipal corporation with three Presidentially appointed commissioners, one ofwhom shall be an officer of the Army Corps of Engineers, as officers of the cor-

TOWARDS EQUAL FOOTING 61poration. The board of the metropolitan police, the board of school trustees, theoffices of the sinking-fund commissioners, and the board of health are abolishedand their duties and powers transferred to the Commissioners. Congress and theSecretary of the Treasury must approve the Commissioners' proposed annualbudget. The federal payment is fifty percent of the budget Congress approves.Congress must also approve any public works contract over $1,000.1888 Conservative newspaperman Theodore Noyes of The Washington Starlaunches campaign for congressional representation and strongly opposes real democracy.Noyes writes, "National representation for the capital community is notin the slightest degree inconsistent with control of the capital by the nationthrough Congress." Sen. Henry Blair of New Hampshire introduces the first resolutionfor a constitutional amendment for District voting rights in Congress andin the Electoral College, which fails to pass.1899 A political scientist describes the Board of Trade-which supports congressionalvoting rights only-as providing District with the ideal form of local governmentthrough a "representative aristocracy."1919 Congress reduces the federal payment to forty percent. The Board of Tradeand the Chamber of Commerce advocate Congressional voting rights and opposehome rule.1925 Congress abandons a fixed percentage federal payment and gives the commissionersauthority to raise local taxes.1935 The California legislature passes a resolution recommending Congressamend the Constitution to grant the District representation in Congress.1940 Congress grants District residents the same access to federal courts as thatavailable to residents of the states (diversity jurisdiction). The Supreme Court, inNational Mut. Ins. Co. v. Tidewater Transfer Co., Inc., 337 U.S. 582 (1949), upholdsthat act.1943 Board of Trade appears before Senate Committee to support representationin Congress but opposes local self-government.1952 President Truman transmits Reorganization Plan No.5 of 1952 to Congressto streamline the District's government by transferring over fifty boards and commissionsto the Commissioners. When transmitting the plan to Congress, hestates "I strongly believe that the citizens of the District of Columbia are entitledto self-government. I have repeatedly recommended, and I again recommend,enactment of legislation to provide home rule for the District of Columbia. Local

62 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWself-government is both the right and the responsibility of free men. The denialof self-government does not befit the National Capital of the world's largest andmost powerful democracy. Not only is the lack of self-government an injustice tothe people of the District of Columbia, but it imposes a needless burden on theCongress and it tends to controvert the principles for which this country standsbefore the world."1960's Segregationist Rep. John McMillan, who favors a District vote for Presidentand Vice President, says a struggle for home rule will cripple the campaignfor the national vote. McMillan thinks the national vote should "satisfy" DC residents"at least for a while."1961 1\venty-Third Amendment to the Constitution that gives the District a limitedvote in the electoral college is ratified.1964 District voters vote for the first time for President since the creation of theDistrict in 1800, but only get "three fourths" of a vote since the District is limitedto three electoral votes regardless of its population, which at the time would havemerited two seats in the House.1967 Thinking he might reduce tensions in the District and prevent riots likethose occurring in other U.S. cities, President Lyndon Johnson transmits ReorganizationPlan No.3 of 1967 to Congress. It creates a Presidentially appointedCouncil of nine members and a Presidentially appointed Commissioner and AssistantCommissioner of the District of Columbia (Mayor and Deputy Mayorequivalents), eliminating the office held by an officer of the Corps of Engineers.He notes that the commissioner form of government was designed for a city of150,000 people and that "(t)oday Washington has a population of 800,000 .... Iremain convinced more strongly than ever the Home Rule is still the truestcourse. We must continue to work toward that day - when the citizens of theDistrict will have the right to frame their own laws, manage their own affairs, andchoose their own leaders. Only then can we redeem that historic pledge to givethe District of Columbia full membership in the American Union." He appointsWalter Washington "Mayor" and Thomas Fletcher "Deputy Mayor" and JohnHechinger as Council Chairman.1968 Congress authorizes an elected school board and the District residents votefor school board members, their first vote for any local body since the territorialgovernment was dissolved in 1874.1970 Congress passes a law authorizing a nonvoting delegate in House of Representativesfor the District (the first since 1874). D.C. Statehood Party is formedwith Julius Hobson its first candidate for nonvoting Delegate.

TOWARDS EQUAL FOOTING 631971 District voters elect Walter Fauntroy as their second nonvoting Delegate toHouse of Representatives.1973 Congress passes the D.C. Self-Government and Governmental ReorganizationAct (Home Rule Act) providing for an elected Mayor, thirteen memberCouncil and Advisory Neighborhood Commissions and delegating certain powersto the new government, subject to Congressional oversight and veto. The newgovernment is prohibited from taxing federal property and nonresident incomeand from changing the federal building height limitation, altering the court systemor changing the criminal code until 1977. Congress retains a legislative vetoover Council actions and must approve the District's budget. All District judgesare Presidential appointees. A "floating" federal payment is retained. A mixtureof District and Federal agencies governs planning and zoning.1974 District voters elect Walter Washington as their first elected Mayor since1870 and their first elected Council, headed by Chairman Sterling Thcker, since1874.1978 Congress amends the Home Rule Act to add recall, initiative and referendumprovisions and makes a number of changes to address the problems of delayand federal intrusions into purely local decisions.1978 Congress passes a Constitutional amendment to give the District full Congressionalvoting rights (two senators and representatives) and full representationin the Electoral College. The states have seven years to ratify it.1979 An initiative to hold a Statehood Constitutional Convention is filed. Congressrejects the Council's bill on the location of chanceries, an example of thefederal interference in local land use decisions.1980 District voters overwhelmingly approve the initiative to hold a StatehoodConstitutional Convention.1981 District voters elect forty-five delegates to the Statehood ConstitutionalConvention. Congress rejects the Council's revision to the District sexual assaultlaw.1982 The convention, of which D.C. Statehood activist Charles Cassell is electedPresident, completes its work in three months. In November, voters approve astatehood constitution for the State of New Columbia and elect two "Shadow"Senators and a Representative to promote statehood (the latter not implementeduntil 1990).

64 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW1983 A petition for statehood, including the 1982 constitution ratified by the voters,is sent to Congress, where no action is taken on it.1985 The 1978 constitutional voting rights amendment dies after only sixteenstates ratify it.1987 The District Council revises the Constitution for the State of New Columbiaand transmits it to both Houses of Congress.1990 District residents elect their first statehood senators and representative.The positions were first authorized in 1982 when the statehood constitution wasapproved.1992 The House of Representatives, with a new Democratic majority, grants alimited vote in the Committee of the Whole to the District Delegate.1993 The House District Committee favorably reports a statehood bill out ofcommittee; in first full House vote on statehood ever, but it fails (153 to 277).1995 The District Delegate's vote in the House Committee of the Whole is revoked.Congress authorizes the President to appoint the District of ColumbiaFinancial Responsibility and Management Assistance Authority (Control Board),which replaces the elected school board with an appointed board. The law alsocreates the Office of Chief Financial Officer for the District of Columbia.1997 Congress strengthens the Control Board by giving it total control over theDistrict's courts, prisons and pension liabilities (much of that $5 billion in unfundedliabilities is from the pre-Home Rule era), increased control over Medicaidand removes nine agencies from the Mayor's authority. The FederalPayment provisions are repealed. Locally elected officials can regain authorityafter four consecutive balanced budgets.1998 Voters vote on a medical marijuana initiative (Initiative 59), but the BarrAmendment prohibits spending money to even count the ballots. U.S. DistrictCourt Judge Richard Roberts rules in 1999 that ballots can be counted (690/0 ofthe voters favored the initiative), but Congressional riders prohibit implementingthe initiative.1998 Twenty District citizens (Adams v. Clinton) sue the President, the Clerk andSergeant At Arms of the U.S. House of Representatives, and the Control Boardseeking declaratory judgments and injunctions to redress their deprivation oftheir democratic right (1) to equal protection or "the right to stand on an equalfooting with all other citizens of the United States," (2) to enjoy republican formsof government, (3) to be apportioned into congressional districts and be repre-

TOWARDS EQUAL FOOTING 65sented by duly elected representatives and Senators in Congress, and (4) to participatethrough duly elected representatives in a state government insulatedfrom Congressional interference in matters properly with the exclusive competenceof state governments under the 10th Amendment.1998 Another lawsuit, Alexander v. Daley, is filed by fifty-seven District residentsand the District government against the Secretary of Commerce, the Clerk andSergeant of Arms of the U.S. House of Representatives, and the Secretary andSergeant of Arms of the U.S. Senate alleging violations of their equal protectionand due process rights and privileges of citizenship and seeking voting representationin both houses of Congress.1999 President Bill Clinton vetoes H.R. 2587, the "District of Columbia AppropriationsAct, 2000" because it contains numerous riders that "are unwarrantedintrusions into local citizens' decisions about local matters." Specifically, the billprohibits (1) the use of federal and District funds for petition drives or civil actionsfor voting representation in Congress; (2) limits access to representation inspecial education cases; (3) prohibits the use of federal and District funds forabortions except where the mother's life was in danger or in cases of rape orincest; (4) prohibits the use of federal and District funds to implement or enforcea Domestic Partners Act; (5) prohibits the use of federal and District funds for aneedle exchange program and District funding of any entity, public or privatethat has a needle exchange program, even if funded privately; (6) prohibits theD.C. Council from legislating regarding controlled substances in a manner thatany state could do; and (7) limits the salary that could be paid to D.C. CouncilMembers.2000 A three judge panel of the U.S. District Court for the District of Columbia,in the consolidated lawsuit of Adams v. Clinton and Alexander v. Daley, finds ithas authority to only rule on the issue of apportionment and representation in theHouse and holds that inhabitants of the District are not unconstitutionally deprivedof their right to vote for voting representation in the House. The courtremands the issues of voting representation in the Senate and Adams' challengeto the existence of the Control Board to the single District Judge with whom thecases were originally filed, and that judge dismisses both claims. Adams' claimregarding the right to an elected state government insulated from Congressionalinterference is not directly addressed. In his dissent, Judge Louis Oberdorferfinds the people of the District of Columbia are entitled to elect members of theU.S. House.2000 A D.C. Superior Court jury finds Statehood activists Anise Jenkins andKaren Szulgit not guilty of "Disruption of Congress" when they spoke out on July29, 1999 in the House of Representatives against passage of the Barr Amendment

66 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthat prohibited the implementation of D.C. Initiative 59. Ben Armfield was acquittedof a similar charge earlier in the year. Ms. Szulgit reflected on their 7-month ordeal saying: "Freedom isn't free. I look forward to the day when westand together - all the D.C. democracy advocates, our locally elected officials,and every member of Congress - and finally address the unfinished business ofthe civil rights movement."2000 On the 40th anniversary of the founding of SNCC, the Unemployment andPoverty Action Committee (UPAC), of which James Foreman is president, petitionsCongress to "grant immediate Statehood to the majority part of the Districtof Columbia."2001 The D.C. Democracy 7 are acquitted. They were arrested on July 26,2000for "Disruption of Congress" in the House of Representatives Visitors' Galleryfor allegedly chanting "D.C. Votes No! Free D.C.!" during a Congressional voteon the D.C. Appropriations Bill. Their first trial ended in a hung jury andmistrial.2001 The Control Board officially suspends its operations and transfers home ruleauthority back to the elected Mayor and Council (although upon certain conditionsoccurring, the Control Board can be reactivated in the future).2001 The Inter-American Commission on Human Rights of the Organization ofAmerican States (OAS) rules on a 1993 charge brought by the Statehood SolidarityCommittee and finds that the denial to District citizens of equal political participationin their national legislature and the right to equality before the law is aviolation of their human rights.2002 At the Second World Social Forum in Porto Alegre, Brazil, the D.C. StatehoodGreen Party presents a petition calling for Statehood, democracy, and fullrights under the U.S. Constitution for residents of the District of Columbia.2004 The Inter-American Commission on Human Rights issues a report findingthat the United States Government violates District residents' rights by denyingthem participation in their federal legislature.2004 The demand for D.C. Statehood is dropped from the Democratic Party platformat the suggestion of D.C. Delegate Eleanor Holmes Norton, vice-chair ofthe DNC Platform Committee.2005 The Parliamentary Assembly of the Organization for Security and Cooperationin Europe (OSCE) passes a resolution calling on Congress to support equalvoting rights legislation for District residents.

TOWARDS EQUAL FOOTING 672005 The U.S. Court of Appeals for the District of Columbia holds in Banner v.United States that in prohibiting a commuter tax on nonresidents working in theDistrict, Congress was merely exercising the power that "the legislature of a Statemight exercise within the State" and does not violate the Equal Protection or theUniformity Clause of the Constitution.2006 The U.N. Human Rights Committee finds that the District's lack of votingrepresentation in Congress violated the International Covenant on Civil and PoliticalRights, a treaty ratified by more than 160 countries, including the UnitedStates.2007 The Organization for Security and Cooperation in Europe's Office of DemocraticInstitution and Human Rights finds the District's lack of equal congressionalvoting rights inconsistent with United States' human rights commitmentsunder the OSCE Charter.2008 D.C. Statehood continues to be missing from the Democratic Partyplatform.2009 Congress considers granting the District a vote in the House of Representatives;extraneous gun rights amendments threaten to kill the bill. Despite havinga Democratically controlled House and Senate, an amendment that would prohibitthe District from providing money to any needle exchange program thatoperates within 1,000 feet of virtually any location where children gather is addedto the House version of its 2010 appropriation bill.2009 The D.C. Council creates a new Special Committee on Statehood and Self­Determination chaired by Council Member Michael A. Brown. The Committeebegins an extensive series of hearings on statehood and its ramifications. Led byCouncil Chair Vincent Gray, nine members of the D.C. Council attend the 2009Legislative Summit of the National Conference of State Legislatures in Philadelphiaand promote statehood."We hold these Truths to be self-evident, that all Men are created equal, that theyare endowed by their Creator with certain unalienable Rights, that among these areLife, Liberty, and the Pursuit of Happiness - that to secure these rights, Governmentsare instituted among Men, deriving their just Powers from the Consent of theGoverned . ... "- Preamble, Declaration of Independence, July 4, 1776

68 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWApPENDIX IITABLE: A LIST OF COUNTRIES WHOSE CAPITALS RECEIVE FULLREPRESENTATION IN THEIR NATIONAL LEGISLATUREAlbaniaAlgeriaAndorraAntiguaArgentinaAustraliaAustriaBahamasBarbadosBelgiumBelizeBotswanaBrazilBulgariaBurmaCambodiaCameroonCanadaCape Verde IslandsChinaColombiaCook IslandsCosta RicaCyprusCzech RepublicDenmarkDjiboutiDominicaDominican RepublicEgyptEl SalvadorEquatorial GuineaFijiFinlandFranceGabonGambiaGermanyGreeceTIraneAlgiersAndorra la VellaSt. JohnsBuenos AiresCanberraBrusselsNassauBridgetownBrusselsBelmopanGaboroneBrasiliaSofiaRangoonPhnom-PenhYaoundeOttawaPraiaBeijingBogotaAuaruaSan JoseNicosiaPragueCopenhagenDjiboutiRoseauSanto DomingoCairoSan SalvadorMalaboSuvaHelsinkiParisLibrevilleBanjulBerlinAthens

TOWARDS EQUAL FOOTINGGrenadaGuatemalaGuineaGuyanaHaitiHungaryIcelandIndiaIndonesiaIranIrelandIsraelItalyIvory CoastJamaicaJapanKenyaKorea (North)South KoreaLiberiaLiechtensteinLuxembourgMacaoMadagascarMalawiMalaysiaMaldivesMaltaMauretaniaMauritiusMexicoMonacoMongoliaMoroccoNauruNetherlandsNew ZealandNicaraguaNigeriaNorwayPakistanPanamaPapua New GuineaSt. George'sGuatemala CityConakryGeorgetownPort-au-PrinceBudapestReykjavikNew DelhiDjakartaTehranDublinJerusalemRomeAbidjanKinstonTokyoNairobiPyongyangSeoulMonroviaVaduzArlonMacaoAntananarivoLilongweKuala LumpurMaleVallettaNouakchottPort LouisMexico CityMonaco-VilleUlan BatorRabatYeran: Administrative DistrictAmsterdamWellingtonManaguaAbujaOsloIslamabadPanama CityPort Moresby69

70 UNIVERSITY OF THE DISTRIcr OF CoLUMBIA LAW REVIEWParaguayPhilippinesPolandPortugalRomaniaSan MarinoSenegalSierra LeoneSingaporeSouth AfricaRussiaSlovakiaSpainSri LankaSurinamSwedenSwitzerlandSyriaTanzaniaTongaTrinidad and TobagoThrkeyUnited KingdomVenezuelaVietnamWest SamoaYugoslaviaZaireZambiaZimbabweAsuncionManilaWarsawLisbonBucharestSan MarinoDakarFreetownSingapore CityCape Town (Legislative)MoscowBratislavaMadridColumboParamariboStockholmBernDamascusDar es SalaamNukualofaProt of SpainAnkaraLondonCaracasHanoiApiaBelgradeKinshasaLusakaHarare

AN OFFER THEY CAN'T REFUSE:RACIAL DISPARITY IN JUVENILE JUSTICE ANDDELIBERATE INDIFFERENCE MEET ALTERNATIVESTHATWORK*Edgar Cahn** and Cynthia Robbins***INTRODUcnONWhile young people of all races commit delinquent acts, some are providedtreatment while others are detained and incarcerated. Once incarcerated, theseyouth begin their slide down a slippery slope; they lack an equal opportunity togather evidence and prepare their cases. Furthermore, they will be effectivelydeprived of the opportunity and the resources to develop the educational andemployment skills necessary to progress to productive adult lives. It is well documentedthat juveniles of color are more likely than their white counterparts to bearrested, l referred to juvenile court rather than to diversion programs, charged,* This article lays out a legal theory and a strategy developed as part of the Racial JusticeInitiative of Time Banks USA funded in substantial part by the W. K. Kellogg Foundation. Additionalsupport for this research was provided by Ashoka Innovators for the Public and by the UDC DavidA. Clarke School of Law. The authors extend our heartfelt appreciation for substantive contributions,editorial insights, and feedback from our colleagues: Perry Moriearty, Clinical Professor of Law, Universityof Minnesota Law School; Mark Soler, Executive Director, Center for Children's Law andPolicy; Professors Thomas Mack, William McLain, Joseph Thlman, UDC David A. Clarke School ofLaw; Helen Frazer, Public Services Director, Library of the UDC David A. Clarke School of Law;Keri A. Nash, Associate for Legal Research & Outreach, TImeBanks USA - Racial Justice Initiative;and, Christine Gray, Executive Director, TImeBanks USA. We are particularly indebted to JoyAceves-Amaya, law student, UDC David A. Clarke School of Law, for her steadfast and painstakingeditorial support.** Distinguished Emeritus Professor of Law, UDC David A. Clarke School of Law; Co­Founder & Co-Dean, Antioch School of Law; Co-Founder, OEO Legal Services Program; Founder,TImeBanks USA (TBUSA); Co-Director, TBUSA Racial Justice Initiative; Founder, Tune DollarYouth Court; Distinguished Visitor, London School of Economics; Ph.D., Yale University; J.D., YaleLaw School; M.A., Yale University; B.A., Swarthmore College.*** Consultant, Nonprofit Organizational Development, Philanthropy, and Education; Co-Director,TBUSA Racial Justice Initiative; Former Executive Director, See ForeverlMaya AngelouSchool; Former Staff Attorney and Board Chair, District of Columbia Public Defender Service; FormerSenior Program Officer, Eugene and Agnes E. Meyer Foundation; Founding Director, PublicCounsel's Urban Recovery Legal Assistance; Board Member, Phelps Stokes Fund; Co-Founder, EastPalo Alto Community Law Project; J.D., Stanford Law School; A.B., Harvard University.1 We use the term "youth of color" throughout this article primarily to refer to African Americanand Latino youth. The Office of Juvenile Justice and Delinquency Prevention ("OJJDP") definesminority populations - youth of color - as African Americans, American Indians, Asians, PacificIslanders, and Hispanics. OJJDP Substantive Requirements for Grant Programs, 28 C.F.R.§ 31.3030)(6) (2009).

72 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWwaived to adult court, detained pre-trial, and locked up at disposition. 2 Whatrecent studies have shown, however, is that these disparate outcomes are notsolely the product of race neutral factors. Multi-regression research that controlsfor other causal variables has revealed a statistically significant "race effect" ondecision-making at multiple points in juvenile justice courts and administrationsacross the nation. There is incontrovertible evidence that race bias affects criticaldecisions leading to detention or confinement. The consequences of this disparatetreatment can be devastating to juveniles of color and any community aspiring tomake good on the guarantee of equal justice. 3Efforts to address these disparities have thus far produced little more than a"multi-million dollar cottage industry whose primary activity is to restate theproblem of disparities, in essence, endlessly adoring the question of what to do2 NAT'L COUNCIL ON CRIME AND DELINQUENCY, AND JUSTICE FOR SOME: DIFFERENTIALTREATMENT OF YOUTH OF COLOR IN THE JUSTICE SYSTEM 3 (2007), hUp:llwww.nccd-crc.orglnccd/pubsl2007janjustice_focsome.pdf [hereinafter AND JUSTICE FOR SOME]. From 2002 to 2004, AfricanAmericans comprised 16% of all youth; 28% of juvenile arrests; 30% of referrals to juvenile court;37% of the detained population; 34% of youth formally processed by the juvenile court; 30% ofadjudicated youth; 35% of youth judicially waived to adult criminal court; 38% of youth in residentialplacement; and 58% of youth admitted to state adult prison. Id. Over the last thirty years, multiplestudies have shown that disproportionate minority contact ("DMC") afflicts nearly every processingpoint in nearly every juvenile justice system in the country. Perry Moriearty, Combating the Color­Coded Confinement of Kids: An Equal Protection Remedy, 32 N.Y.V. REV. L. & Soc. CHANGE 285,310 (2008). From the mid-1980's to 1995, the number of white youth in detention decreased, while thedetention of minorities increased until they represented a majority of detained young people. BARRYHOLMAN ET AL., JUSTICE POLICY INST., DANGERS OF DETENTION: THE IMPACT OF INCARCERATINGYOUTH IN DETENTION AND OTHER SECURE FACILITIES 12, (2007) [hereinafter DANGERS OF DETEN­TION]. In 1985, 43% of juvenile detainees nationwide were youth of color; in 1995, that percentagegrew to 56% and 62% in 1999. In 2006, in the most recent national count taken, the percentage ofyouth of color detainees rose to 69%. RICHARD A. MENDEL, THE ANNE E. CASEY FOUND., TwoDECADES OF JDAI, A PROGRESS REPORT - DRAFT 5, (2009) [hereinafter Two DECADES OF JDAI].However, in 2007, African American juveniles accounted for only 16.3% of the population nationwide,Asian-Americans accounted for 4.8% of the population, Native Americans accounted for 1.2%,and self-identified Hispanics accounted for 20.9%. C. PUZZANCHERA. ET AL., OFFICE OF JUVENILEJUSTICE & DELINQUENCY PREVENTION, EASY ACCESS TO JUVENILE POPULATIONS: 1990-2007 (2008),hUp:llwww.ojjdp.ncjrs.gov/ojstatbb/ezapop/.3 Michael J. Leiber, Disproportionate Minority Confinement of Youth: An Analysis of State andFederal Efforts to Address the Issue, 48(1) CRIME & DELINQ. 11-14 & app. D (2002) (noting that 32 of46 studies conducted by 40 different states reported "race effects," defined as "the presence of astatistically significant race relationship with a case outcome that remains once controls for legal factorshave been considered"); Carl E. Pope et ai., Disproportionate Minority Confinement: A Review ofthe Research Literature from 1989 Through 2001, OJJDP Juv. JUST. BULL. 5, http://ojjdp.ncjrs.orgldmc/pdf/dmc89_01.pdf (noting that 25 of 34 studies reviewed reported "race effects" in the processingof youth). By 1997, in thirty states - representing 83% of the national population - minority youthcomprised the majority of youth in detention. DANGERS OF DETENTION, supra note 2, at 12. Even instates with minuscule ethnic and racial minority populations, more than fifty percent of the youthdetained were minorities. Id. Additionally, a study by the Office of Juvenile Justice and DelinquencyPrograms ("OJJDP") found that in 49 states the numbers of detained minority youth exceeded theirproportion of the nation's population. Id.

AN OFFER THEY CAN'T REFUSE 73about disproportionate minority contact (HDMC"), but never reaching an answer.,,4In 1992 and again in 2002, in its reauthorization of the Juvenile Justiceand Delinquency Prevention Act ("JJDPA" or "the Act"), Congress was explicitlyconcerned about DMC and elevated the mandate to reduce DMC to a corerequirement of the Act. The Office of Juvenile Justice and Delinquency Protection("OJJDP") has launched a technical assistance website and database andfunneled millions of dollars to states to study and reform their local juvenile justicesystems. s There have been numerous conferences, meetings, and studies.States have added DMC specialist staff positions. And yet, despite this long-termand substantial investment of governmental resources, the bottom line is thatthere has been virtually no reduction in DMC in most jurisdictions.For decades, despite the persuasive data documenting DMC, the efforts to dismantlestructural racism stemming from the systemic polices and practices of governmentagencies has been thwarted by the requirement for injured parties toprove discriminatory intent set forth in Washington v. Davis 6 and Village of ArlingtonHeights v. Metropolitan Housing Development Corp.,? then reaffirmed byMcCleskey v. Kemp.8 When it comes to a municipality or an agency, intent todiscriminate is virtually impossible to prove. 9 However, in City of Canton v. Harris,the Supreme Court provided one explicit test that results in a finding of municipalintent and liability. to Intent can be inferred when government4 JAMES BELL ET AL., W. HAYWOOD BURNS INST., ADORATION OF THE QUESTION: REFLEC·TION ON THE FAILURE TO REDUCE RACIAL & ETHNIC DISPARITIES IN THE JUVENILE JUSTICE SYSTEM15 (2008). The Juvenile Justice and Delinquency Prevention Act ("JJDPA") originally provided that"DMC" was an acronym for "Disproportionate Minority Confinement," which occurs when the percentageof minority youth confined in the juvenile justice system facilities exceeds their proportion inthe general population. 42 U.S.C. § 5633(a)(22) (1988). In 2002. Congress expanded the concept ofDMC to include any point of "contact" with the juvenile justice system at which minority youth areoverrepresented. See 42 U.S.C. § 5633(a)(22) (2006). The acronym "DMC" now commonly refers to"Disproportionate Minority Contact." Id.5 See Development Services Group, Inc., hltp:llwww.dsgonline.comlindex.html (last visitedMar. 10,2009) [hereinafter DSG Website].6 Washington v. Davis, 426 U.S. 229,242 (1976).7 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) ("Our decisionlast Term in Washington v. Davis made it clear that official action will not be held unconstitutionalsolely because it results in a racially disproportionate impact. Disproportionate impact is notirrelevant, but it is not the sole touchstone of an invidious racial discrimination. "). Proof of raciallydiscriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Id.8 McCleskey v. Kemp, 481 U.S. 279, 298 (1987).9 William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on ConstitLllionalLaw in the Twentieth Century, 100 MICH. L. REV. 2062, 2107 (2002); Serena A. Hoy, InterpretingEqual Protection: Congress, The Courts and The Civil Rights Acts, 16 J. L. & POL. 381, 417 (2000);Charles Lawrence, The Id, The Ego and Equal Protection: Reckoning with Unconscious Racism, 39STAN. L. REV. 317,355 (1987).10 City of Canton v. Harris. 489 U.S. 378, 388 (1989) (finding that a failure to provide trainingfor police officers in the use of deadly force was reckless or grossly negligent because it could be

74 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWpolicymakers "where - and only where - a deliberate choice to follow a course ofaction is made from among various alternatives" by city policymakers."llThis Article applies the Supreme Court's "deliberate indifference" test in anew context - enforcement of equal protection rights - to address the problem ofdisproportionate minority contact in the juvenile justice system. 12 The juvenilejustice system continues to subject youth of color to the high risks of injury fromdecisions regarding detention and confinement that manifest a racial bias. 13Those decisions demonstrate "deliberate indifference" when decision-makers areon formal notice of preferable, more effective, less costly, and less injurious alternatives.This pattern of practices, if maintained, violates constitutional rights andgives rise to a valid claim for damages, declaratory, and injunctive relief. 14This Article also proposes a system change strategy that envisions the use oflitigation as the last step and a last resort. We urge tactical reliance upon the useof other forums and processes to engage officials and enlist public support forthese more efficacious alternatives. To establish the requisite "deliberate indifference"in the juvenile justice context, we posit the need for a process to put officialson formal notice that:(1) the present system results in documented disproportionate minoritycontact that violates the United States Constitution if the requisite discriminatoryintent or purpose is shown;anticipated - with substantial certainty - that the lack of training would deprive persons' of theirconstitutional rights).11 City of Canton, 489 U.S. at 388 (citing Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986»;Oklahoma City v. Thule, 471 u.S. 808 (1985).12 Although we developed this analysis in the juvenile justice context, our proposed strategymight also be applicable in other areas, such as child welfare and special education.13 The administration of juvenile justice varies by jurisdiction in regard to the number of players,their respective roles, and who bears decision-making authority for such aspects as diversion,charging, and detention. These varied players include, among others: police officers, prosecutors, probationdepartments, court social services departments, youth services departments, and schools. Accordingly,system change strategies must be tailored to reflect the readiness, resources, and roles ineach particular jurisdiction under review. This article is designed to set in motion the dynamics necessaryto effectuate system change by providing a strategy to overcome the historic "discriminatoryintent" barrier to successful litigation.14 42 U.S.C. § 1983 provides:Every person who, under color of any statute, ordinance, regulation, custom, or usage, of anyState or Territory or the District of Columbia, subjects, or causes to be subjected, any citizenof the United States or other person within the jurisdiction thereof to the deprivation of anyrights, privileges, or immunities secured by the Constitution and laws, shall be liable to theparty injured in an action at law, suit in equity, or other proper proceeding for redress, exceptthat in any action brought against a judicial officer for an act or omission taken in suchofficer's judicial capacity, injunctive relief shall not be granted unless a declaratory decreewas violated or declaratory relief was unavailable.

AN OFFER THEY CAN'T REFUSE75(2) this disparity cannot be accounted for by purely racially neutralfactors; 15(3) injuries flow from this disparity, specifically from the disproportionatelyhigh detention rate for youth of color;16 and(4) highly effective, replicated, and less costly alternatives would substantiallyreduce disproportionate minority contact and these methods havebeen made known to official decision-makers and have not beenutilized.When official decision-makers have had formal notice of alternatives that are lesscostly and yield significant, sustained effects that have been replicated or haveearned designation as promising or exemplary, the failure to use these alternativeswould constitute "intentional disregard" of injury to the fundamental constitutionalrights for youth of color in the juvenile justice system. I7Officials have an obligation to make use of knowledge where existing practiceshave a disproportionately injurious impact on youth of color. Part I of this Articleprovides a truncated summary of the extent to which DMC pervades the juvenilejustice system and violates a youth's constitutional right to equal protection; it15 We make this assertion because youth who are white and commit the same offenses as youthof color are treated differently and alternatives known to officials have been more frequently utilizedfor white youth. These available alternatives are more effective and less expensive than present practice.These alternatives have been formally recognized and recommended by authoritative sources.16 Although DMC manifests at all key milestones of the juvenile process, this article focuses onthe decision points that result in confinement because the detention decision is pivotal to eventualoutcomes for any juvenile who finds him or herself behind bars. "More than fifteen years of experiencesuggests that changing practices and procedures to bring greater rationality to the use of juveniledetention could be an important component in efforts to reduce disparity." CTR. FOR JUVENILE Jus·TICE REFORM, UNDERSTANDING RACIAL AND ETHNIC DISPARITY IN CHILD WELFARE AND JUVENILEJUSTICE: A COMPENDIUM, 29 (2009); see also Moriearty, supra note 2, at 291. We use the word "detention"to refer to two distinct practices: secure pre-adjudication detention and secure confinementpost-adjudication.Secure detention refers to the holding of youth, upon arrest, in a juvenile detention facility(e.g., juvenile hall) for two main purposes: to ensure the youth appears for all court hearingsand to protect the community from future offending. In contrast, secure confinement refersto youth who have been adjudicated delinquent and are committed to the custody of correctionalfacilities for periods generally ranging from a few months to several years.See infra Austin, note 43, at 1.17 ROBIN L. DAHLBERG, ACLU RACIAL JUST. PROJECf, LOCKING Up OUR CHILDREN: THESECURE DETENTION OF MASSACHUSETIS YOUTH AFTER ARRAIGNMENT AND BEFORE ADJUDICA­TION (2008).In 2006, it cost Massachusetts taxpayers approximately $15,000 to detain a child for 16 days(the average length of stay) in one of DYSts facilities. At the same time, it costs less than$1500 to provide a child who was permitted to remain at home with 6 to 8 weeks of supervisionto ensure that he returned to court and didn't re-offend.[d.

76 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthereby gives dimension to the scale of the injury inflicted. Is Excessive use ofdetention may also give rise to a Due Process claim that is equally injurious to allyouth - white as well as youth of color. 19 However, the central purpose of thisArticle is to propose a way to meet the "intent" requirement under the EqualProtection Clause by providing a structured opportunity for officials to choosecost-effective alternatives that would reduce DMC instead of relying on the ineffectiveand racially disproportionate option of incarceration.Part II analyzes how using "deliberate indifference" as the gravamen of a complaintunder 42 U.S.C. § 1983 addresses the intent requirement that has operatedas a barrier to relief in the past. Part III describes the extensive body of knowledgewhich has emerged over the past few decades and which, if used, would savevast amounts of money, reduce DMC, and mitigate its most injurious manifestation- the disproportionate use of detention and confinement of minority youth.It also describes two highly successful alternatives to secure confinement withwhich the authors have experience that illustrate how readily beneficial and costeffective system change could be initiated. One involves diversion prior to adjudication;the other offers a highly effective alternative to confinement, used bothpre- and post-adjudication, that has proven effective for over thirty years.Part IV discusses how courts deal with public interest litigation designed toeffect system change. Instead of focusing the search for proof of intent on pastactions and practice, we propose to shift the focus to include future actions takenfollowing a proffer of alternatives. Thus, the relevant officials in the juvenile justicesystem need to be given a prospective choice to use alternatives to detentionthat have proven to be effective, including initial diversion. If these officials persistin continuing a present practice of disproportionate incarceration, they willhave manifested the requisite "deliberate indifference."I. WHAT COLOR Is JUVENILE JUSTICE?Since the turn of the last century, a separate system of juvenile justice hasdeveloped in the United States that is expressly designed to serve the "best interestsof the child" and to rehabilitate any young person who has erred in judgmentand conduct. 20 It should not matter what color young people are if they misbe-18 See Appendix A: Two Roads Diverge - Parallel Tales. Appendix A provides a typical scenariodescribing how such disparities manifest in a relatively routine case.19 The Supreme Court has severely circumscribed the liberty interest of juveniles. See Schall v.Martin, 467 U.S. 253 (1984) (noting that children are assumed to be subject to control of their parentsand that if parental control falters, "the juvenile's liberty interest may be subordinated to the state'sparens patriae interest in preserving and promoting welfare of the child") (quoting Santosky v.Kramer, 455 U.S. 745,766 (1982». Accordingly, we have focused exclusively on the violation of EqualProtection rather than on denial of Due Process.20 The first separate juvenile court was created by the enactment of the Illinois Juvenile CourtAct of 1899. In response to the Reformist movement of the late nineteenth century, the Illinois legislaturecreated a rehabilitative system for the adjudication of youth under the age of sixteen in order to

AN OFFER THEY CAN'T REFUSE 77have or commit acts that would be crimes if they were adults. All too often, however,the color of a young person's skin defines the experience he or she will havein the juvenile justice system. 21 A cascading series of decisions throughout thejuvenile justice process can determine whether resources are spent on rehabilitation,as called for and supported by the JJDPA,22 or whether a single bad actplaces a youth on a path that will irrevocably delimit his future as a life journeydown the "cradle to prison pipeline. ,,23A. Equal Justice is the Casualty of Disproportionate Minority Contact[F]airly viewed, pretrial detention of a juvenile gives rise to injuries comparableto those associated with the imprisonment of an adult.24Removing young people from their communities and dropping them into securedetention halts their development while causing many long-term injuriousconsequences that amount to anything but rehabilitation. Too often, youth ofcolor get locked up; their development is suspended much like the fossilized insectfrozen in petrified amber - stuck. Recent brain development research indicatesthat under ordinary circumstances, mature decision-making capacity maynot develop until the age of twenty, or even later in some instances. 25 Manyyoung people who have been incarcerated and returned to the community beseparatejuveniles from the social stigma and procedural formalities associated with the adult criminalprocess. Robert E. Shepherd, Jr., The Juvenile Court at 100 Years: A Look Back, in Juv. JUST. J. 13(1999), available at hUp:llwww.ncjrs.gov/htmUojjdp/jjjournaI1299/2.html. Because the guiding principlefor creation of the first juvenile court was "[a] child should be treated as a child," it was unacceptablethat children under the age of 16 would be prosecuted and incarcerated in prisons "before theyknew what a crime was." Ann Reyes Robbins, Troubled Children and Children in Trouble: Redefiningthe Role of the Juvenile Court in the Lives of Children, 41 U. MICH. J. L. REFORM 243 (2007).21 See Appendix: 1\vo Roads Diverge - Parallel Tales; which mimics real life when tracing thefictional, but typical the fates of two young men. Ian, a Caucasian, and lYrone, an African-American,both teenagers who commit virtually identical incidents that result in vastly different outcomes.22 42 U.S.C. §§ 5601-5784 (2002). The purpose of the JJDPA is to support state and local programsto prevent juvenile involvement in delinquent behavior, promote public safety by encouragingjuvenile accountability, and to provide technical assistance and information on programs to combatjuvenile delinquency.23 THE CHILDREN'S DEFENSE FUND, AMERICA'S CRADLE TO PRISON PIPELINE 5 (2007), availableat http://www.childrensdefense.orglchild-research-data-publications/datalcradle-prison-pipelinereport-2oo7-full-highres.pdf.In 2007, The Children's Defense Fund launched an initiative, the Cradleto Prison Pipeline Campaign, to address and interrupt this apparent pipeline for young people,particularly low income youth of color. Id. The organization's vision calls for a paradigm shift in thejuvenile system's current focus on punishment and incarceration to one focused on investment, prevention,and intervention in the lives of all young people. [d.24 Schall, 467 U.S. at 291 (Marshall J., dissenting). As the juvenile court developed to incorporatemore due process protections per In re Gault, 387 U.S. 1 (1966), and other cases, the moreconfrontational process has also resulted in disproportionate outcomes.25 Elizabeth Cauffman et aI., (Im)maturity of Judgment in Adolescence: Why Adolescents MayBe Less Culpable Than Adults, 18 BEHAV. SCI. & L. 741, 756 (2000).

78 UNIVERSITY OF THE DISTRICI' OF COLUMBIA LAW REVIEWcome unable to break out of behaviors that they might have otherwise outgrownas adults. 26Adolescent antics are a predictable developmental byproduct of youth. 27 Asteenagers mature they grow less inclined to act out. 28 This is particularly truewhen youth live in the community with access to support from family or surrogatesupervision, wrap-around and enrichment programming, mentors, role models,school, and employers. 29 Most youth desist from delinquent behavior oncethey have achieved educational and employment milestones.3° Detention oftenarrests a youth's developmental process; detention propels a youth in a differentdirection, as evidenced by recidivism rates of 50% to 80% for youth who havebeen incarcerated. 31 Adolescents are very suggestible, seeking a sense of belonging,confidence, and competency. When incarcerated in close proximity to otherdelinquent youth, their environment promotes the development of antisocial be-26 Id. at 7. (noting that incarceration interrupts and delays a youth's normal pattern of discontinuingdelinquent behavior as they mature due to its effect on community, education, and employmentengagements); see generally ELIZABETH S. Soon & LAURENCE STEINBERG, RETHINKINGJUVENILE JUSTICE (Harvard Univ. Press 2(08).27 U.S. DEP'T OF HEALTH & HUMAN SERV., YOUTH VIOLENCE: A REPORT OF THE SURGEONGENERAL, ch. 3 (2000), available at http://www.surgeongeneral.govllibrary/youthviolence/ [hereinafterYOUTH VIOLENCE]. As many as one-third of youth exhibit delinquent behaviors; however, most willnaturally outgrow such actions as they attain maturity. DANGERS OF DETENTION, supra note 2, at 6."According to Dr. Delbert Elliott, former President of the American Society of Criminology andhead of the Center for the Study of the Prevention of Violence, although the rate of delinquentbehavior appears high, the rate at which the criminal behavior ceases is also high." Id.28 YOUTH VIOLENCE, supra note 27; DANGERS OF DETENTION, supra note 2, at 6.29 DANGERS OF DETENTION, supra note 2, at 6.30 Id. Studies show that youth able to establish a relationship with a partner or mentor, as wellas obtain employment, correlates with the ability of youthful offenders to cease delinquent behavior.31 According to the Annie E. Casey Foundation,In fact, recidivism studies routinely show that 50 to 80 percent of youth released from juvenilecorrectional facilities are rearrested within 2 to 3 years - even those who were not seriousoffenders prior to their commitment. Half or more of all released youth are later reincarceratedin juvenile or adult correctional facilities. Meanwhile, correctional confinementtypically costs $200 to $300 per youth per day, far more than even the most intensive homeandcommunity-based treatment models. Research shows that youth who spend time in custodyare less likely to complete high school, less likely to avoid re-arrest, less likely to findemployment, and less likely to form stable families. They are also more likely to abuse drugsand alcohol.ANNIE E. CASEY FOUND., 2008 KIDS CoUNT ESSAY: A ROAD MAP FOR JUVENILE JUSTICE REFORM 9(2008) [hereinafter ROAD MAP FOR JUVENILE JUSTICE]. "Youth who are detained are more thanthree times as likely to be found guilty and incarcerated than similarly situated peers." '!\vo Decadesof JDAI, supra note 2, at 5. When comparing likelihood of behavior, youth who have been detainedor incarcerated have a 49% chance of using alcohol, 42% chance of using any illicit drug, and a 59%chance of dropping out of high school. Id. By comparison, youth who have not been detained orincarcerated, have a 34% chance of using alcohol, 21 % chance of using any illicit drug, and a 30%chance of dropping out of high school. Id.

AN OFFER THEY CAN'T REFUSE 79havior among teenagers seeking both competency in illicit behavior and acceptanceby their peers. 32In 2006, the Department of Justice reported that 96,655 juveniles were incarceratedin youth detention centers. 33 African American youth constitute 16% ofU.S. youth but 38% of the youth in detention. 34 In many states, the disparity iseven greater.3 5 Minorities are more likely than whites to be formally charged injuvenile court and to be sentenced to out-of-home placement, even when referredfor the same offense. 36Today, Latin, Native, Asian, Pacific Islanders and African Americans are 350/0of the U.S. youth population, yet comprise 65% of all youth who are securelydetained pre-adjudication. 37 Youth of color are four times more likely to be arrestedfor a drug trafficking offense,38 even though white teens self-reported experiencesof using and selling drugs at rates greater than African Americanteens. 39 The length of incarceration compounds both the disparity and the injuryinflicted; on average, African American and Latino juveniles are confined, respectively,61 and 112 days longer than white youth. 4o Additionally, minoritiesaccount for more than 58% of youth admitted to state adult prisons. 41 Althoughthis Article does not address in detail the disproportionate rate of referral to32 Thomas J. Dishion, et ai., When Interventions Harm: Peer Groups and Problem Behavior, 54AM. PSYCHOL. 755-64 (Sept. 1999).33 HOWARD N. SNYDER ET AL., NAT'L CrR. FOR JUVENILE JUSTICE, JUVENILE OFFENDERS ANDVICTIMS: 2006 NATIONAL REPORT 211 (2006).34 Id. at 2.35 Id. at 213.36 AND JUSTICE FOR SOME, supra note 2, at 2.37 Eleanor Hynton Hoytt et ai., Reducing Racial Disparities in Juvenile Detention, in 8 Annie E.CASEY FOUND. PATHWAYS TO JUVENILE DETENTION REFORM 18 (2001).38 SNYDER, supra note 33, at 211. In 2003, 79% of the youth incarcerated for drug traffickingoffenses were minorities, compared to 21 % for white youth. [d. During this period, 73% of adjudicateddrug offenses involved a white youth; white youth comprised 58% of the offenders receivingout-of-home placement and 75% of those receiving formal probation. Id. Contrastingly, 25% of theadjudicated drug offense cases involved an African-American youth; African-American youth comprised40% of the offenders receiving out-of-home placements and 22% of those receiving formalprobation. [d.39 Carl McCurley et ai., Co-Occurrence of Substance Use Behaviors in Youth, Juv. JUST. BULL.,4 (Nov. 2(08), hup://www.ncjrs.gov/pdffIlesllojjdp/219239.pdf. The 1997 Longitudinal Survey ofYouth indicates that white and Hispanic youth were "more likely than African American youth toreport ... substance-related behavior (twenty-nine, twenty-six, and nineteen percent, respectively)."[d. Additionally. "whites and Hispanics were more likely than African American youth to reportdrinking alcohol [and] whites were more likely than African Americans to report either marijuana useor selling drugs." Id.40 ALEX PIQUERO, Disproportionate Minority Contact, 18 FUTURE OF CHILD. 59, 62 (Fall 2(08),available at http://www.eric.ed.govIERI CDocs/data/ericdocs2sqllcontenCstorage_01lOOOOOl9b/80/41192/3a.pdf.41 [d. at 63.

80 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWadult court, this decision offers one of the most predictably high rates of disparitywith some of the most gravely injurious consequences.The systematic failure of many state and local authorities to collect data byrace stymies efforts to fully document, explain, and address disproportionality.42Nonetheless, the information that does exist strongly suggests that racial bias accountsfor disproportionate treatment at each stage of the juvenile delinquencyprocess and that its consequences are severe in regard to decisions concerningjuvenile incarceration, pre- and post-adjudication.B. Collateral Consequences of ConfinementIncarcerated youth typically do not receive the education or the healthcarewhich would have been available to them had they been sent home under supervision.Correctional systems have been the dumping ground for children withmental health, substance abuse, family-related, and behavioral problems - alongwith those suffering undiagnosed and untreated developmental disabilities. 43Studies estimate that as many as 70% of incarcerated youth have diagnosablemental health problems. 44The legal collateral consequences that result from juvenile incarceration havebeen dubbed "invisible punishment" by Jeremy Travis, former director of the NationalInstitute of Justice. 45 These consequences increasingly and disproportionatelyharm the life options for youth of color. 46 For anyone convicted of a felonydrug offense, collateral consequences include lifetime bans on the receipt of federalbenefits, such as food stamps and other types of public assistance. 47 For anyoneconvicted of a drug related offense or activity, collateral consequencesinclude denial of public housing and student loans. 48 Disproportionately highrates of conviction and incarceration of juveniles of color for drug related of-42 DAHLBERG, supra note 17, at 5.43 Joseph J. Cocozzo & Kathleen Skowyra, Youth with Mental Health Disorders: Issues andEmerging Responses, 7 Juv. JUST. J., 4-5 (Apr. 2000), http://www.ncmhjj.com/pdfs/publications/Youth_with_Mental_Health_Disorders.pdf.44 James Austin et aI., Alternatives to the Secure Detention and Confinement 0 f Juvenile Offenders,ODJJP Juv. JUST. BULL. 2 (Sept. 2005), htlp:llwww.ncjrs.gov/pdffilesllojjdp/208804.pdf. "Between50 and 70 percent of incarcerated youth have a diagnosable mental illness and up to 19 percentmay be suicidal, yet timely treatment is difficult to access in crowded facilities." Id. See also Linda A.Teplin, Assessing Alcohol, Drug, and Mental Disorders in Juvenile Detainees, ODJJP FAcr SHEET(Jan. 2001), http://www.ncjrs.gov/pdffilesllojjdp/fs2oo102.pdf.45 See JEREMY TRAVIS, INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASSIMPRISONMENT (Marc Mauer et a1. eds. 2002).46 Marc Mauer, Invisible Punishment: Block Housing, Education, Voting, Focus MAG., MaylJun. 2003, at 3, 4.47 Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 115, 110 Stat. 2180 (1996).48 Quality Housing and Work Responsibility Act of 1998, Pub. L. 105-276, § 576 (1998) (currentversion at 42 U.S.c. § 13661 (2006»; Higher Education Act, 20 U.S.c. § 1091(r)(I) (2006).

AN OFFER THEY CAN'T REFUSE 81fenses drastically diminish their ability to participate in their communities afterthey are released. 49 Confinement in juvenile facilities represents a significant separationfrom the communities to which these youth return. Substantial obstaclesmust be overcome upon release from confinement, such as re-entry to publicschools, obtaining marketable skills, and finding employment opportunities. 50To illustrate the decision points in the juvenile justice process from which disparateoutcomes emerge, the Appendix provides contrasting fictional, but typical,scenarios for two sixteen-year-old males, one Caucasian and the other AfricanAmerican. Both teenagers are involved in a fight at their respective neighborhoodhigh schools where most people are of the same race as the young man inthe altercation. By design, the initial incidents are virtually identical but the consequencesare as different as black and white.II. DELIBERATE INDIFFERENCE: REFRAMING DISPROPORTIONATE MINORITYCONTACT FOR A § 1983 COMPLAINTThe Juvenile Justice and Delinquency Prevention Act ("JJDPA" or the "Act")is designed to provide the resources, leadership, and coordination necessary todevelop and conduct effective programs that prevent delinquency, divertjuveniles from the traditional juvenile justice system, and provide criticallyneeded alternatives to the institutionalization of youth. 51 Four core protections ofthe Act are explicit: (1) deinstitutionalizing status offenders; (2) separating juvenileand adult offenders in secure confinement; (3) eliminating the practice ofdetaining or confining juveniles in adult jails and lockups; and (4) addressing thedisproportionately large number of minority youth who come into contact withthe juvenile justice system. And, the JJDPA provides states with the funds andexpertise they need to meet these goals. 52Earlier court decisions have found an implicit private right of action in three ofthese JJDPA protections - not jailing status offenders, separating adult and juvenileoffenders, and ceasing to confine juveniles in adult jails. 53 However, the policymandate to address disproportionate minority contact ("DMC") simplymeans that the states must submit a plan that addresses DMC. The JJDPA doesnot set numerical standards and does not require states to adopt measures known49 Dep't. of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002) (holding that federal Anti­Drug Abuse Act required lease terms that gave local public housing authorities the discretion toterminate the lease of a tenant when a member of the household or a guest engaged in drug-relatedactivity, regardless of whether tenant knew, or should have known, of the drug-related activity). "Ona given day, African Americans comprise nearly half of all youth in the United States detained for adrug offense." DANGERS OF DETENTION, supra note 2, at 13.50 Tamara A. Steckler, Litigating Racism: Exposing Injustice In Juvenile Prosecutions, 60RUTGERS L. REV. 245, 258 (2007).51 Juvenile Justice and Delinquency Prevention Act, 42 U.S.c. § 5602(b) (2000).52 Cruz v. Collazo, No. 77-83084, 1979 U.S. Dist. LEXIS 8941, at 13 (D.P.R. Oct. 26, 1979).53 Hendrickson v. Griggs, 672 F. Supp. 1126, 1134 (N.D. Iowa 1987).

82 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWto be effective. Such requirements could be added through amendments orthrough the regulations governing state plan requirements. 54 To be enforceable,however, an express private right of action likely is necessary in light of two SupremeCourt decisions: Alexander v. SandovaP5 and Gonzaga University v.Doe. 56 While an action in mandamus might lie to secure effective enforcement, itis not likely to succeed until Congress amends the JJDPA provisions governingcore DMC measures in a manner that makes the requirements, consequences,and enforcement processes far more specific. 57 At present, all a state must showis that it is addressing the DMC problem. 58This Article proposes that the community of people concerned about juvenilejustice reform and reducing DMC need not and should not wait idly, hoping thenext Congressional re-authorization mandates more effective enforcement. 59Historically, federal agencies have been extremely reluctant to withhold fundsfrom states even in the face of egregious violations. These agencies regard fundingcut-offs as the equivalent of using a nuclear bomb and, in deference to federalism,are often leery of acting. It is possible that this reluctance also is being54 On March 24, 2009, Senator Patrick Leahy introduced the Juvenile Justice and DelinquencyPrevention Reauthorization Act of 2009. Press Release, Office of Senator Leahy, Leahy IntroducesJuvenile Justice Reauthorization Bill (Mar. 24, 2009), http://leahy.senate.gov/press/200903/023409b.html. This Act will strengthen provisions related to the disproportionate minority contactcore requirement by requirement by providing additional direction for states and localities on how toidentify and reduce racial and ethnic disparities among youth who come into contact with the juvenilejustice system. Id. In addition, state juvenile justice system plans must provide alternatives to detentionthat include diversion to home-based detention or community-based services for youth in need oftreatment for mental health, substance abuse, or co-occuITing disorders. Id. States must also includeplans to: reduce the number of children housed in secure detention facilities who are awaiting placementin residential treatment programs; encourage inclusion of family members in the design anddelivery of juvenile delinquency prevention and treatment services - particularly, post-placement; anduse community-based services for addressing needs of at-risk youth and those who have come intocontact with the juvenile justice system. Id.55 Alexander v. Sandoval, 532 U.S. 275 (2001) (holding that no freestanding private right ofaction exists to enforce disparate impact Under 'TItle VII of the Civil Rights Act of 1964).56 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).57 See supra note 53.58 JAMES BELL ET AL., W. HAYWOOD BURNS INST., ADORATION OF THE QUESTION: REFLEC·TION ON THE FAILURE TO REDUCE RACIAL & ETHNIC DISPARITIES IN THE JUVENILE JUSTICE SYSTEM13-14 (Dec. 2008) (explaining that the 2002 amendment to the JJDPA "required that States 'addressjuvenile delinquency prevention efforts and system improvement efforts designed to reduce, withoutestablishing or requiring numerical standards or quotas, the disproportionate number of juvenilemembers of minority groups who come into contact with the juvenile justice system.''').59 FED. ADVISORY COMM. ON JUVENILE JUSTICE, ANNUAL REPORT 2008 xvi-xvii, 20-24 (2008).Reasonable people can disagree about whether fund cut-offs would trigger the needed changes. TheFederal Advisory Committee on Juvenile Justice has recommended expansion of the Justice AssistanceEdward Byrne Memorial Justice Assistance Grant Program, promotion of community widecollaboration, creation of funding incentives to pool funds from multiple federal programs, and interdisciplinaryteams to develop cross-training models, legal models, technical assistance and emergencyservices for children who are in both the juvenile justice and child welfare systems. Id.

AN OFFER THEY CAN'T REFUSE 83reinforced by JJDPA grantee assertions that a withholding of federal funding willcompromise the viability of both the law enforcement apparatus and the preservationof law and order. Thus, despite the grantee's failure to reduce DMC, thegrantor dares not risk withholding federal funds. Being tough on crime has politicalappeal for actors at both the state and federal level. Given the state of theeconomy, those administering the JJDPA could become scapegoats blamed forany juvenile crime if they cut back on resources as a penalty for failure to reduceDMC in the juvenile justice system. We have not heard the last of "adult time foradult crime" despite unequivocal evidence that waiver of juveniles into adultcourt ultimately increases the likelihood of recidivism. 60Failure to address DMC sets the stage for an equal protection action under§ 1983. Because of the nature of such a claim, liability will ensue if, and only if,the parties injured by a state action that produces DMC can prove that the disparityresulted from an intent to discriminate.A. Intentional Indifference Interferes with Constitutional Rights: A DifferentApproach for Remedy under § 1983While numerous threshold requirements must be met to initiate a § 1983 action,there are two primary cases that have made it more difficult to prove intentwhen bringing an action based on disparate impact. In Washington v. Davis, theSupreme Court held that a mere showing of disparate racial impact of a faciallyrace neutral policy or practice is not sufficient to prove discriminatory intent. 61The Court later raised the hurdle for plaintiffs in McCleskey v. Kemp, where the60 Diane H. Schetky, Juveniles Standing Trial: Waiver into Adult Court, J. OF PSYCHIATRICPRAC., Nov. 2003, at 3. "Two studies suggest that no only do they [juveniles held in adult correctionalfacilities] have a higher rate of recidivism, but that recidivism occurs more rapidly than in controlswho remain in the juvenile justice system." Id. According to The Sentencing Project:• A Florida study comparing recidivism rates for matched groups of youthful offenders(comparable on the basis of the number and seriousness of past and current offenses aswell as socio-demographic characteristics) found that juveniles coming out of the adultsystem were more likely to reoffend, to reoffend earlier, to commit more subsequentoffenses, and to commit more serious offenses than juveniles retained in the juvenilesystem.• A study of over 500 youth charged in Pennsylvania found that youths transferred to adultcourt are more likely to be convicted and incarcerated but their recidivism rates arehigher than the rates for those who remain in juvenile court.• A study comparing 15-16-year olds charged with robbery in New York and New Jerseyfound that New York juveniles whose cases originated in criminal court were more likelyto reoffend and to reoffend sooner than the New Jersey juveniles whose cases were heardin juvenile court.MALCOLM C. YOUNG & JENNI GAINSBOROUGH, THE SENTENCING PROJECT, PROSECUTINGJUVENILES IN ADULT COURT: AN ASSESSMENT OF TRENDS AND CONSEQUENCES 9 (2000) (citationsomitted).61 Washington, 426 U.S. at 245 (holding that the plaintiff must prove that the discriminatoryimpact was the result of a specific racially discriminatory intent).

84 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWpetitioner presented what still stands as one of the most comprehensive multiregressionstudies ever conducted on the impact of race in sentencing. 62 However,even such a well-documented, statistically significant discriminatory patternwas insufficient to support an inference that any of the decision-makers in Mc­Cleskey acted with discriminatory purpose. 63 McCleskey hoped to prove that administrationof the death penalty was racially discriminatory and, accordingly,that his death sentence violated the Constitution. 64 The Court reasoned that whatother juries had done in sentencing defendants to death did not prove that thejury in McCleskey's case had discriminated against him on the basis of race. 65According to the Court, the probability of a discriminatory motive was insufficientto prove actual discrimination by one particular jury.66 The Court furtherobserved that any number of other factors might have accounted for the McCleskeyverdict and that the uniqueness of every jury forestalled inferring motive in aparticular instance from a statistical pattern of disparity.67The McCleskey defense can be anticipated in response to a cause of actionbrought by any particular juvenile in detention who alleges racial discriminationin the decision to confine him or her in a secure facility. The circumstances of thejuvenile delinquency process, however, can be distinguished from McCleskey dueto the repetitive experience, professional expertise, and policy influence of thejuvenile justice decision-makers as compared to the McCleskey jury of lay communitymembers. 68 B. Addressing the Requirement of IntentWashington and McCleskey stand for the governing precedent that a showingof disparate impact alone will not suffice. When it comes to a municipality or anagency, actual intent to discriminate is necessary but virtually impossible to prove- even where DMC exists, since some non-discriminatory public purpose justificationfor the policy or action can usually be found in each individual case. TheSupreme Court has, however, provided one explicit test which, if met, results inliability: when "deliberate indifference" has been shown to rights protected bythe Constitution and federal laws. Under such circumstances, "execution of thegovernment's policy or custom, whether made by its lawmakers or by thosewhose edicts or acts may fairly be said to represent official policy, inflicts the62 McCleskey, 481 U.S. at 286-91.63 [d. at 293.64 [d. at 286-91.65 [d. at 295-96.66 [d.67 [d. at 293-300.68 See generally Morietary, supra note 2.

AN OFFER THEY CAN'T REFUSE 85Constitutional injury, that the government, as an entity, is responsible under§ 1983."69In City of Canton v. Harris,7o the Supreme Court determined that a local governmentcould be held liable for the inadequate training of its police officers.Justice White wrote:We hold today that the inadequacy of police training may serve as the basisfor § 1983 liability only where the failure to train amounts to deliberateindifference to the rights of persons with whom the police come into contact.This rule is most consistent with our admonition ... that a municipalitycan be liable under § 1983 only where its policies are the "moving force [behind]the constitutional violation." Only where a municipality's failure totrain its employees in a relevant respect evidences a "deliberate indifference"to the rights of its inhabitants can such a shortcoming be properlythought of as a city "policy or custom" that is actionable under § 1983. AsJustice Brennan's opinion in Pembaur v. Cincinnati, put it: "[M]unicipalliabilityunder § 1983 attaches where - and only where - a deliberate choice tofollow a course of action is made from among various alternatives" by citypolicymakers. Only where a failure to train reflects a "deliberate" or "conscious"choice by a municipality-a "policy" as defined by our prior cases-cana city be liable for such a failure under § 1983.71This holding's essence is that liability can be based on constructive intent as inferredwhen officials have actual knowledge of predictable injury and yet theyreject or disregard known alternatives that would avert that injury.72 Intent canbe inferred when a constitutional injury is substantially certain to result and thedecision-maker chooses to continue a course of action that perpetuates a patterntainted by racial bias rejecting known and available alternatives that would haveaverted the injury.73 Moreover, an "objective obviousness" standard is employedto identify the threshold for holding a government entity responsible for deliber-69 Monell v. Dep't of Soc. Serv., 436 U.S. 658, 694 (1978).70 City of Canton, 489 U.S. at 388.71 Id. (citations omitted).72 See, e.g., Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992). In Walker, theSecond Circuit articulated three criteria for constructive intent: (1) the policymaker must know "to amoral certainty" that his other employees will confront a particular situation; (2) "the situation eitherpresents the employee with a difficult choice of the sort that training or supervision will make lessdifficult or ... there is a history of employees mishandling the situation"; and (3) the wrong choice bythe employee frequently causes constitutional deprivation. [d. See also SHELDON H. NAHMOD, CIVILRIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECfION 19836-190 (4th ed. 1997,2007).73 A similar standard of "deliberate indifference" has been invoked in an Eighth Amendmentcase involving cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825 (1994). In Farmer,Justice Souter, writing for a unanimous court, defined the term deliberate indifference in the contextof criminal confinement as "the official must both be aware of facts from which the inference could bedrawn that a substantial risk of serious harm exists, and he must also draw the inference." [d. at 980.

86 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWate indifference to the constitutional rights for acts committed by its inadequatelytrained agents?4 The City of Canton Court's deliberate indifference inquiry intoliability focused on obviousness, or constructive notice, an objective standard forinferring intent.In the juvenile justice context, we propose to use this same deliberate indifferencestandard to redress violations of the Equal Protection Clause. Our theory isthat government policies and practices consistently subject a juvenile of color tothe infliction of sanctions that are predictably far greater and more punitive thanif the same offense had been committed by a white youth. Injuries stemming fromdisproportionate minority contact include: deprivation of liberty; developmentalinjury; blocked access to special education guaranteed by federal law and otherwrap-around services that are available to non-detained youth; an increased likelihoodof personal injury; intensification of established risk factors; restrictedability to find witnesses to contribute to defense preparation, and to secure probation;and, a predictably higher probability of recidivism?5 To prove "deliberateindifference" for purposes of a §1983 claim, the plaintiff must demonstrate: (1)injury to a right protected by the Constitution or federal law; (2) that the injurywas relatively certain to occur; and (3) that the government's course of action wasone selected from among various alternatives?6 Use of an alternative to detentionwill eliminate the injury that comes from current patterns of racially disproportionatedetention decisions.C. "Deliberate Indifference" Stems from a Duty to Use KnowledgeThe origin of the juvenile justice system fundamentally relies on the intent toprovide for the welfare of the youth in its ambit, with rehabilitation being theprimary goal. The JJDPA promotes seeking the least restrictive alternative andspecifically anticipates detention only for those youth who pose either significantrisk of flight and failure to return to court, or risk of endangerment to themselvesor to public safety.?7 Estimates of the number of youth for whom detention is74 Collins v. City of Harker Heights, 503 U.S. 115, 124 (1992).75 Nancy Rodriguez, A Multilevel Analysis of Juvenile Court Processes: The Importance ofCommunity Characteristics 25 (Jun. 30,2008) (unpublished manuscript, on file with National Institutefor Justice), available at hUp:l/www.ncjrs.gov/pdffilesllnjj/grantsl223465.pdf.[J]uveniles who were informally processed were less likely to reoffend post age 17 in urbanjurisdictions. Models with the detention outcome as a predictor of recidivism reveal thatjuveniles who were detained were more likely to recidivate post age 17 in both urban andrural counties. (J]uveniles who were removed from the home at disposition were more likelyto reoffend post age 17. This effect was significant in both the urban and rural jurisdictions.Id.76 SWORD AND SHIELD: A PRACTICAL ApPROACH TO SECTION 1983 LmOATION 209-247 (MaryMassoron Ross et a1. eds., 3d ed. 2007) (1971).77 Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. § 5603(19)(A) (2002); Austin,supra note 44, at 1.

AN OFFER THEY CAN'T REFUSE 87warranted range from five to twenty-one percent of those routinely detained. 78 Acombination of procedures has been proven to dramatically reduce the averagedaily population in secure detention without increased risk to public safety. Theseinclude the use of objective risk screening instruments,79 diversion from the systemaltogether, expedited case processing, and rigorously designed alternatives todetention. In fact, several states committed to reducing DMC were able to alsoreduce juvenile crime and recidivism. 80 Every state receives funding expresslydedicated to providing access to the knowledge and technical assistance neededto reduce DMC; the strategy outlined in this article provides a way to ensure thatstates actually do reduce DMC.Every youth, irrespective of race, is entitled to a level of care that honors thepurpose of the JJDPA by limiting juvenile confinement to only the situations inwhich it is truly required. Guaranteeing equal protection of the law requires governmentofficials to be on notice that current practices result in a continuing injurythat disproportionately impacts youth of color. Therefore, the injuredparties must serve formal notice on the relevant government officials that thecurrent practices result in a continuing injury. This notice should be coupled witha presentation of effective and cost efficient alternatives to confinement. Refusalto utilize these alternatives would constitute an intentional disregard of a foreseeableinjury and an infringement of constitutionally protected rights.78 Two DECADES OF JDAI, supra note 2, at 7. "Few kids in detention (21 percent) are chargedwith serious violent crimes, less than the number of detained youth for status offenses (i.e., noncriminalbehaviors like being "unruly" or running away) or rule violations (e.g., missing curfew). As onechief probation officer recently said about his detention population, 'These are kids we are angry at,not kids we are scared of.'" [d.79 Austin, supra note 44, at 6, 8.The key attributes of objective classification and risk assessment instruments are: [1] Theyemploy an objective scoring process; [2] They use items that can be easily and reliably measuredmeaning the results are consistent both across staff and over time as they relate toindividual staff members; and [3] They are statistically associated with future criminal behavior,so that the system can accurately identify offenders with different risk levels.The factors to be considered in objective detention risk assessments can be separated intofour categories: [1] Number and severity of the current charges; [2] Earlier arrest and juvenilecourt records; [3] History of success or failure while under community supervision; and[4] Other 'stability' factors associated with court appearances and reoffending (e.g. age,school attendance, education level, drug/alcohol use, family structure).[d.80 The Annie E. Casey Foundation's Juvenile Detention Alternatives Initiative, "is one of themost effective, influential, and widespread juvenile justice reform initiatives" "after more than a decadeof innovation and replication." Juvenile Detention Alternatives Initiative, Annie E. Casey Foundation,http://www.aecf.org/MajorInitiatives/JuvenileDetentionAlternativesInitiative.aspx (last visitedMar. 16, 2(09) [hereinafter AECF Detention Alternatives Website]; ELIZABETH DRAKE, WASH.STATE INST. FOR PUB. POLICY, EVIDENCE-BASED JUVENILE OFFENDER PROGRAMS: PROGRAMDESCRIPTION, QUALITY ASSURANCE, AND COST (Jun. 2(07), http://www.wsipp.wa.gov/rptfiles/07-06-1201.pdf.

88 UNIVERSITY OF THE DISTRKi OF COLUMBIA LAW REVIEWThe OJJDP, through its partnership with Development Services Group, Inc.,has gone to extraordinary lengths to make available knowledge about model programsand DMC reduction. 81 For the past twenty years, the Annie E. CaseyFoundation has implemented its Juvenile Detention Alternatives Initiative("JDAI") in nearly one hundred locations throughout twenty-two states and theDistrict of Columbia. 82 During the same period, the John D. and Catherine T.MacArthur Foundation has invested in parallel efforts through its Model forChange Initiative. 83 We submit that the requisite proof of available alternatives isprovided by the extensive documentation of model programs by the OJJDP coupledwith the extensive research on effective alternatives conducted by the ColoradoBlueprints Project, the Washington State Institute for Public Policy, and thenationally respected Annie E. Casey Foundation's JDAI. 84 These resources, developedover the past two decades, demonstrate efforts to create alternatives toconfinement that are effective and less costly than the prevailing practice.The "deliberate indifference" strategy puts officials on formal notice of theimpact of current policies and practices and documents effective alternative remedies.After receiving formal notice, the continuance of a current practice representsan informed and deliberate choice to continue inflicting injury in lieu ofavailable alternatives that are authoritatively regarded as more effective and lesscostly. If the responsible officials conduct business as usual, there is ample basisfor alleging and proving "deliberate indifference" or "intentional disregard." Litigationcould commence, only after juvenile justice officials in the jurisdictionhave been put on notice of the injury flowing from their present juvenile incarcerationpractices given the availability of validated and affordable alternatives thatwould not have caused a disparate impact.In the private sector, continuing to employ a prevailing practice while disregardingknowledge of more efficacious and cost effective alternative interventionswould give rise to a claim of professional malpractice or gross negligence. 85Admittedly, addressing DMC involves attacking a problem that stems from mul-81 DSG Website, supra note 5. Both OJJDP's Model Programs Guide and DMC ReductionDatabase are easily accessible from the home page.82 AECF Detention Alternative Website, supra note 80. See also Two DECADES OF JDAI,supra note 2.83 Models for Change, Background and Principles, http://www.modelsforchange.netlaboutlBackground-and-principles.html.84 AECF Detention Alternative Website, supra note 80; Center for the Study and Prevention ofViolence at the University of Colorado, Blueprints for the Prevention of Violence, http://www.colorado.edu/cspvlblueprints/index.html (last visited Apr. 27, 2009); Washington State Institute forPublic Policy, http://www.wsipp.wa.gov/ (last visited Apr. 27, 2009).85 An obligation to keep abreast and make use of knowledge is commonplace in medical malpracticeclaims, product safety claims (most notably those involving asbestos), and where a fiduciaryobligation is involved. See, e.g., Borel v. Fiberboard Paper Prod. Co., 493 F.2d 1076 (5th Cir. 1973);Feldman v. Lederle Labs, 470 A.2d 374, 386 (N.J. 1984).

AN OFFER THEY CAN'T REFUSE 89tiple factors embedded and entrenched in every aspect of life - e.g., economic,social, educational, cultural, and geographic. 86 This is precisely why courts wereonce likely to shy away from the issue of DMC altogether. But after more thantwenty years of skirting the issue because of its perceived complexity, there is agrowing body of knowledge regarding available, effective, and affordable remediesthat can no longer be dismissed or ignored. In the context of long-standinginjurious disparity, the constitutional right to equal protection gives rise to anobligation to use knowledge of what works.A showing of actual knowledge of injury coupled with the rejection of proposedcost-effective, efficient alternatives meets or satisfies the intent requirementsufficiently to defeat a motion to dismiss for "failure to state a claim uponwhich relief can be granted.,,87 Doubtless, defendants would reply with a descriptionof the efforts they have been making, the complexity of the problem, and theneed to come up with a comprehensive solution. Our focus on confinement issomething that can be implemented right away - and every youth of color keptout of detention represents a reduction in disproportionate minority contact.In regard to detention, the DMC situation parallels the disparity addressed bythe Supreme Court in Castenada v. Partida. 88 Castenada involved a claim of discriminationbased on a grand jury selection process where Spanish surnamescomprised 50% of the list from which the grand jurors were selected. "Three ofthe five jury commissioners, five of the grand jurors who returned the indictment,seven of the petit jurors, the judge presiding at the trial, and the Sheriff whoserved notice on the grand jurors to appear had Spanish surnames.,,89 Nonetheless,the Supreme Court held that the plaintiff had established a discriminationclaim by presenting evidence that over an eleven-year period, only 390/0 of personssummoned for grand jury service were Mexican American when thecounty's population was 79.1 % Mexican American. 90 In short, the Court foundthat this disproportionality coupled with a selection procedure susceptible toabuse was sufficient to make a prima facie case of intentional discrimination. 9186 OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, DISPROPORTIONATE MINOR­ITY CONTACf TECHNICAL ASSISTANCE MANUAL (2006). Specific reference is made to this difficulty inthe Introduction. Lesson 2 states, "Many factors contribute to DMC at different juvenile justice systemcontact points, and a multipronged intervention is necessary to reduce DMC." Id.87 FED. R. CIv. P. 12(b)(6).88 Castenada v. Partida, 430 U.S. 482 (1977). The issue then becomes: what acts constitute arejection of these alternatives, what constitutes a good faith effort to make use of available knowledge,and what action over what period of time constitutes merely dilatory tactics? Getting beyondthe "intent" barrier to those questions would lay the foundation for defining meaningful indicators ofprogress in reducing DMC. A significant reduction in the number of youth of color detained would bea primary measure.89 Id. at 484.90 Id. at 496.91 [d. at 497-98.

90 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWWhen the burden of proof shifted, the State failed to rebut this prima facie presumption,despite the racially neutral qualifications for grand jurors and despitethe fact that Mexican Americans held a "governing majority" in the county'selected offices. 92Similar to Casten ada, the criteria for reaching a determination of whether todetain a juvenile offender are purportedly neutral on their face while the ultimatedecision-making process is discretionary and susceptible to abuse. And, there isalso a multi-year disproportionality in the detention of juveniles of color. Theavailability of alternatives proven to radically reduce the use of detention at eachstage in the process from arrest to post-adjudication through diversion, risk assessmentinstruments, and community-based wrap-around services supports theassertion that youth of color have been denied Equal Protection if the systemrefuses to change.Abusive use of detention by juvenile justice systems is peculiarly ironic. Onone hand, the system was established to safeguard the best interests of the juvenileby imposing a duty on officials to care for the juveniles over whom the systemhas jurisdiction. On the other hand, these officials default on their duty whenthey know of efficacious, less costly alternatives and allow infliction of injury byracially biased confinement decisions to persist.D. Addressing the Requirement of CausationCommentators have noted that without causation, "negligent or even grosslynegligent training would not give rise to a §1983 municipal liability claim.,,93 Asuccessful plaintiff must, therefore be able to demonstrate a sufficiently closecausal connection between the deliberately indifferent training and the deprivationof the plaintiff's federally protected right.Even upon finding "intentional disregard" or interference with fundamentalrights, the reasoning of the Supreme Court in McCleskey v. Kemp would appearto impose a further requirement for Equal Protection claims: not only must racebe a factor in the disparities generated by the system, but race must be shown tohave been a causal factor present in each particular case. 94 Admittedly, someyouth ought to be confined securely. However, experts observe that far moreyoung people than can be justified by safety concerns are in secure confinementall across the country. Furthermore, each youth has a right to counsel and theopportunity to demonstrate that detention is not appropriate or necessary in hisor her individual case. Therefore, a respondent could contend that there is nocausal relationship in any individual case between the injury caused by racially92 Id.93 SWORD AND SHIELD, supra note 71, at 33-34.94 See Moriearty, supra note 2, at 323 (discussing how race falls outside the rationale in McCleskeyv. Kemp).

AN OFFER THEY CAN'T REFUSE 91biased decisions to incarcerate and the failure to use knowledge aboutalternatives.Professor Perry Moriearty, in a recent law review article, argued that the refusalof the Court in McCleskey to infer the operation of a racial motive in aspecific capital case should not apply to the detention of juveniles:In every critical respect Juvenile Court pretrial detention decisions in manyjurisdictions are analogous to the jury venire decision at issue in Castaneda... and are distinguishable from the capital sentencing decision at issue inMcCleskey . .. By the McCleskey Court's own reasoning, then, an equalprotection challenge to the discriminatory pretrial detention of youth ofcolor in the juvenile justice system should be analyzed under the Castenadathree-pronged inquiry: a claimant would create an inference of discriminatoryintent if she could demonstrate that she was a member of a historicallydisadvantaged class that has been overrepresented in the population ofjuveniles detained by the judge or probation officer in question over a significantamount of time. 95Unlike a jury verdict, a decision to detain a juvenile is made by professionals whocan be required to explain the rational basis underlying their decision. As ProfessorMoriearty points out, "the nature of juvenile detention decisions, in manyjurisdictions, places them squarely within the contours of the type of administrativedecisions for which, according to Justice Powell, evidence of disparate impactalone may be sufficient to create an inference of discriminatory intent. ,,96In juvenile cases, as distinguished from jury verdicts, the decision-makers areprofessionally trained, the criteria are ostensibly prescribed by statute, and actorscan be called upon to explain the racial disparities produced by their confinementdecisions. 97 A sufficient causal relationship between intentional disregard and theinjury flowing from detention can be proven where the disparities are known,where a "race effect" is present, and where a choice has been made to maintainthe existing system even after alternatives that would reduce that disparity havebeen formally presented to and rejected by the relevant juvenile justiceadministrators.We suggest, as a tactical matter, that the issue of whether race was a factor inany specific confinement decision would be best eliminated by a class action lawsuit.Plaintiffs would seek prospective relief from a continuing practice that failsto make secure confinement the choice of last resort - i.e., a choice made only95 Id. at 331-32.96 Id. at 329.97 Id. at 291.

92 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWafter all other alternatives have been exhausted. 98 These claims would best beraised in a class action context. Such a tactic is imperative given the well-documentedabsence of effective counsel in a vast number of juvenile cases 99 and theinability of a juvenile respondent to effectively challenge a widespread practice ofunnecessary detention. looDI. WE KNOW A GREAT DEAL ABOUT ALTERNATIVES TO DETENTIONFirst, it should be acknowledged that no alternative to detention can totallyeliminate recidivism. lOt This makes secure confinement appealing to decisionmakers.On its face, incarceration gives the appearance of protection for the publicand in theory, presents an opportunity to provide rehabilitative treatment forthe youth. However, this overall sense of public safety belies the evidence nowavailable: unnecessarily excessive juvenile detention begets crime. Crowded facilitiesresult in increased institutional violence. to2 Youth detained for long periodsof time usually do not have the opportunity to further their education, nor aretreatment programs in detention facilities designed to address substance abuse ora history of physical or sexual abuse.to3 Even more disturbingly, consistent researchfindings indicate that detention actually increases recidivism. These find-98 Carter v. Doyle, 95 F. Supp. 2d 851 (N.D Ill. 2(00) (finding that the class action did notbecome moot even after final judgment was entered against the juvenile finding him to bedelinquent).99 In 1995, the American Bar Association's Juvenile Justice Center published A Call for Justice:An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, anational study that revealed major failings in juvenile defense across the nation. Since that time,numerous state-based assessments have documented, in detail, the manner in which these failingsresult in lifelong, harmful consequences for our nation's children. Common findings among theseassessments include a lack of access to competent counsel, inadequate time and resources for defendersto prepare for hearings or trials, a juvenile court culture that encourages respondents to pleadguilty, to move cases quickly, a lack of pretrial and dispositional advocacy and an over-reliance onprobation. All National Juvenile Defender Center Assessments are available at http://www.njdc.info/assessments.php. See NAT'L JUVENILE DEFENDER CTR, & NAT'L LEGAL AID & DEFENDER Assoc.,TEN CORE PRINCIPLES FOR PROVIDING QUALITY REPRESENTATION THROUGH PUBLIC DEFENSE DE­LIVERY SYSTEMS (Jul. 2008), http://www.njdc.info/pdfllO_Core_Principles_2008.pdf.100 ROAD MAP FOR JUVENILE JUSTICE, supra note 31, at 8-9. "Just 24 percent of youth confinedin 2003 were adjudicated for violent felonies, whereas more than 45 percent were guilty only of statusoffenses; probation violations; misdemeanors; or low-level felonies unrelated to violence, weapons ordrug trafficking." Id. In 2006, only 21 % of detained youth were held for violent crimes and 10% forsimple assaults and other person offenses whereas the majority of youths were held for property,drugs, "public order and other crimes, 41 %; and status offenses, 28%. Two DECADES OF JDAI, supranote 2, at 7.101 Austin, supra note 44, at 1.102 MELISSA SICKMUND, OFFICE OF JUVENILE JUSTICE & DELINQUENCY PREVENTION, JUVE­NILE RESIDENTIAL FACILITY CENSUS, 2000: SELEcrED FINDINGS 1 (2002); Paul Florsheim & TimFowles, An Interpersonal-Developmental Perspective on Juvenile Justice Systems, 10 J. L. & FAM.STUD. 147 (2007).103 Austin, supra note 44, at 2.

AN OFFER THEY CAN'T REFUSE 93ings show that secure detention makes it more, not less, likely that a youth willcommit additional crime - though there may be a delay factor built in.104 In otherwords, confinement exacts more than a temporary deprivation of liberty. It imposesthe heightened prospect that a youth will commit future crime against societyonce the youth is ultimately released. Moreover, by halting the youth'sdevelopment, confinement increases the likelihood that the youth will become adrain on society instead of a producer of wealth and wellbeing.There is a growing national consensus, expressly reflected in the Juvenile Justiceand Delinquency Prevention Act ("JJDPA"), that secure detention should beused as "an option of last resort only for serious, violent and chronic offendersand for those who repeatedly fail to appear for scheduled court dates.,,105 "Just140/0 of more than 50,000 youth in 28 states detained in the 1990s had committeda serious violent offense. Prior to 2005 in the District of Columbia, only 170/0 ofconfined youth were serious violent offenders."t06Only a small fraction of youth confined in juvenile facilities have histories thatwarrant confinement. Io7 Extensive research coupled with cost-benefit analysessupport the need for a policy shift for all youth - regardless of race. This researchshould be accorded even greater weight in the context of disproportionate minoritycontact and supports but one conclusion: except in those truly exceptionalcircumstances where confinement is clearly warranted, divert the youth before heor she enters the system by providing alternatives to detention that place theyouth in the community with access to services - preferably in his or her ownhousehold with access to family. 108A. Alternatives to Secure Detention and Confinement Cost Less andWork BetterThis Article does not purport to provide an exhaustive review of the full rangeof alternatives to detention that have been tested, replicated, and evaluated. It104 Id. at 2-3. Research cn traditional confinement in large training schools found recidivismrates ranging from 50-70% of previously confined youth were rearrested within 1 or 2 years afterrelease. See also ROAD MAP FOR JUVENILE JUSTICE, supra note 31, at 9.105 Austin, supra note 44, at 1; Juvenile Justice and Delinquency Prevention Act, 42 U.S.c.§ 5633(a)(9)(L)(i) (2002).106 ROAD MAP FOR JUVENILE JUSTICE, supra note 31, at 19.107 Id.108 DANGERS OF DETENTION, supra note 2, at 8. Diversion programs - often restricted to thefirst-time offenders facing charges on a non-violent offense - are designed to divert the youngsterfrom the bowels of the juvenile delinquency system and its attendant path to facilities for incarceration.For example, young people in San Francisco's Detention Diversion Advocacy Program haveapproximately half the recidivism rate of juveniles ordered to detention or funneled elsewherethrough the juvenile justice system. Continued confinement of non-violent offenders in the face ofsubstantial success at rehabilitation or preventing recidivism is indicative of a governmental apparatusintent on meting out punishment rather than pursuing the rehabilitative solutions for which juvenilecourts were established.

94 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWwill suffice to provide a brief overview of the extensive work and research undertakenin this field over at least two decades, along with some of the findings thathave emerged and the materials that have been produced.The short survey begins with the Office of Juvenile Justice and DelinquencyPrevention ("OJJDP"), which issued a Juvenile Justice Bulletin ("the Bulletin")in 2002 that "promotes reducing the court's reliance on detention and confinementthrough administrative reforms and special program initiatives informed byan objective assessment of a youth's risk level.,,109 OJJDP has identified modelprogrammatic responses available for every element and at every stage of theprocess that contributes to DMC and offers a web-based directory to assist statesin developing initiatives to reduce DMC. 110 The Bulletin extensively describesseveral alternatives to detention with an extensive bibliography,111 and includessample "Risk Assessment Instruments" used by several jurisdictions to providean objective basis for determining whether or not detention is warranted. 112 Italso provides a concise description (with contact information) of a continuum ofalternatives coupled with evaluation data for each approach, including: diversion,supervised release, home detention, electronic monitoring, intensive supervision,day and evening reporting centers, skills training programs, residential programssuch as foster homes, and programs for runaway youth. 113 The Bulletin, alongwith extensive materials provided by the Annie E. Casey Juvenile Detention AlternativesInitiative project, attest to the mushrooming body of knowledge aboutpromising strategies to reduce detention and confinement of youth. 114The development of objective screening criteria and risk assessment instrumentsfirst made it possible to limit the use of detention to high risk cases. Severalcase processing reforms have expedited case flow so that youth are notunnecessarily held in detention pending initial hearing or arraignment - e.g., newpolice referral procedures, 24-hour intake, fast track hearings, case expediters,and increased automation. During the past few decades there has also been extensivedevelopment, experimentation, refinement, and utilization of alternativesto detention pending an adjudicatory hearing. Finally, due to a major investmentin cost-benefit analysis and evaluation, the body of knowledge regarding the costeffectivenessof various juvenile rehabilitation strategies continues to expand.109 Austin, supra note 44, at 1. Detention is confmement or incarceration of a juvenile in asecure facility before an adjudicatory finding of involvement. [d. There is also evidence of DMC in therate of confinement of juveniles of color in secure facilities after they have been found involved in ajuvenile delinquent act, akin to the court finding an adult defendant gUilty of a crime. DANGERS OFDETENTION, supra note 2, at 8.110 DSG Website, supra note 5.111 Austin, supra note 44, at 24-29.112 [d. at 29.113 [d. at 13-20.114 See, e.g., AECF Detention Alternatives Website, supra note 80; Two DECADES OF JDAI,supra note 2.

AN OFFER THEY CAN'T REFUSE95B. Private Philanthropy Funded Expansion of Alternatives toJuvenile IncarcerationMuch of the knowledge about alternatives to incarceration stems from foundation-fundedinitiatives that have significantly reduced the use of detention whilealso generating a derivative reduction in DMC. Two foundation initiatives havebeen at the forefront of developing alternatives to detention and reducing DMC:the Juvenile Detention Alternatives Initiative of the Anne E. Casey Foundation("JDAI") and the Models for Change Initiative of the John D. and Catherine T.MacArthur Foundation. These two philanthropic initiatives have enabled statesand counties to develop, utilize, and validate effective and less expensive alternativesto detention.1. Success of the Casey Foundation's Juvenile Detention Alternative Initiative- LocalThrough participation in the Casey Foundation-funded JDA!, MultnomahCounty, Oregon became "the first jurisdiction to produce substantial reduction inracial disparity within its juvenile justice system.,,115 The Casey Foundation's2008 Report notes that "[w]hen Multnomah began JDA! in the mid 1990s, youthof color were 300/0 more likely than white youth to be detained following a delinquencyarrest.,,116 Because no other viable location existed, Multnomah Countylaw enforcement officials brought almost 1400 youth charged with non-detain ableoffenses to the detention center. 117Reform of the system began when the County's Department of CommunityJustice and Police, with assistance from a non-profit agency, established a JuvenileReception Center where caseworkers, rather than the court or probation personnel,reunited the youth with their families and referred them to appropriateservices. ttS About five years later, by 2000, detention reforms and persistentleadership had reduced the odds of detention to 22% for all youth, regardless ofrace. t19 The progress was no accident. By reviewing system data, local leadersidentified decision points where racial disparities were prominent. Where structuralbias or exercise of discretion was found to have "placed youth of color at adisadvantage, the leaders made [systemic] changes."t20 As a result, detention wasreduced for all youth and, even more relevant to this Article, disproportionateminority contact had effectively been eliminated.115 ROAD MAP FOR JUVENILE JUSTICE, supra note 31, at 24.116 [d.117 [d.118 [d.119 [d.120 ROAD MAP FOR JUVENILE JUSTICE, supra note 31, at 24.

96 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWFrom 1996 to 2006, using the JDAI model, Cook County (Chicago), Illinoisreduced the youth committed to confinement by 500 per year and to residentialtreatment centers by more than 400. The greatest reductions were among thenumber of African American youth. 121 A similar trend was documented in SantaCruz County, California, where reforms reduced the average number of Latinoyouth in detention by more than 50% from 1996 to 2007. 1222. Success of the MacArthur Foundation's Models for Change Initiative -LocalThe Model for Change Initiative "supports reform in 16 states and aims tohelp accelerate a national juvenile justice reform movement to improve the livesof young people in trouble with the law, while enhancing public safety and holdingyoung offenders accountable for their actions.,,123 Pennsylvania, a participantin the Models for Change Initiative, has seen a reduction in detention rates inBerks County. "Since 2007, Berks County has reduced its detention populationby 45% without compromising public safety.,,124 The county was able to reduceits detention population because it used "data-driven analysis of key decisionpoints in Berks County" and then created a detention assessment instrument, anevening reporting center, and used alternatives to out of home placements. l25Because of the reduction in detention caused by the data-driven, purposeful decision-making,"the County has permanently removed 24 beds from its secure detentionprogram, altering the space to create a shelter for youth who cannotreturn home for safety reasons .... ,,126C. Assessing EffectivenessDuring the past thirty years, a variety of community-based models haveemerged. Those designated as "evidence-based" include Multi-Systemic Therapy,Functional Family Therapy and Multidimensional Treatment Foster Care. Althoughthese models remain relatively small-scale pilot projects in otherwise unreformedsystems, they nevertheless provide rock-solid evidence of moreeffective, less expensive, consistently successful alternatives to incarceration. 127121 Id. at 3.122 Id. at 8.123 The John D. and Catherine T. MacArthur Foundation, Juvenile Justice, http://www.macfound.org/site/c.lkLXJ8MQKrHlb.9434771k.95381D0mestic_ Grantmakin~Juvenile_Justice.htm.124 Models for Change, Reducing the Incarceration of Youth of Color in Berks County (May 13,2009), http://www.modelsforchange.netlreform-progresslI4.125 Id.126 Id.127 DSG Website, supra note 5. OJJDP's Model Programs Guide rates the effectiveness of avariety of programs using the following designations: "promising", "effective" and "exemplary." Id.Programs are evaluated according to four factors: conceptual framework of the program; program

AN OFFER THEY CAN'T REFUSE 97On a larger scale, extensive reviews and evaluations of wrap-around servicesand intensive case management initiatives have documented positive results inmany jurisdictions. 128 Because wrap-around programs are neighborhood-based,customized to each community, make use of lay advocates, and are invariablyshaped by individual, family and local contexts, there have not been the controlledrandomized trials (CRT) required for a strategy to gain the "evidencebased"designation. 129While there is an increasing institutional, and even a policy, bias towards formalCRT, with control groups and random assignment, other evaluation methodologiesproffer significant advances in reliable information and knowledge. 13oOver more than two decades these "non-evidence-based" programs have consistentlyshown major reductions in recidivism. For that reason, they have earneddesignation as Model Programs by the OJJDP. 131We have personal experience with two effective alternatives to detention: TheTIme Dollar Youth Court ("T-D Youth Court") diversion program, authorized bythe Superior Court of the District of Columbia, and the Youth Advocate Programs,Inc. ("YAP"), a community-based program of wrap-around services. Bothfidelity; evaluation design; and, empirical evidence demonstrating the prevention or reduction ofproblem behavior, the reduction of risk factors related to problem behavior, or the enhancement ofprotective factors related to problem behavior. Id.128 OJJDP's Model Program Guide, http://www.dsgonline.com/mpg2.5/wraparound_prevention.htm.The guide documents the successes of wraparound case management servicesand programs. Id.129 We propose that juvenile justice administrators should not limit their options for demonstrablyeffective programs solely to those that bear the "evidenced-based" designation. Youth Courtsand other wraparound programs work and have been shown to have significant and sustained positiveoutcomes in more than one site. The juvenile justice field needs to promote constant innovation andshould promote constant innovation. Community based learning and social entrepreneurship reflects"common sense" responses to the needs of young people.130 Michael Quinn Patton, 120 NEW DIREcnONs FOR EVALUATION 101, 114 (2008). MichaelPatton, a former president of the American Evaluation Association, supports appropriateness - notCRT - as "the gold standard" of evaluation. Id. He describes the need to counter "inflexible institutionalbiases toward specific methodologies such as experimental designs" and notes that this is thestandard affirmed by the American Evaluation Association, the European Evaluation Society, andthe Network of Networks on Impact Evaluation. Id.131 See e.g. The Youth Prison Reduction through Opportunities, Mentoring, Intervention, Support,and Education Act of 2009, H.R. 1064 ll1th Congo (2009) (introduced by Rep. Scott) [hereinafterYouth PROMISE Act]. The purpose of the Youth PROMISE Act is to use the "wide range ofevidence-based and promising programs, integrated into a youth-oriented community system of care[because it] has been demonstrated to reduce youth violence, delinquency, and crime risks, as well ascriminal justice, public assistance, victim assistance, and other cost. H.R. 1064 § 4(2). Furthermore,the specific findings of the Youth PROMISE Act includes the finding that, "many alternatives toincarceration of youth have been proven to be more effective in reducing crime and violence at theNational, State, local, and tribal levels, and the failure to provide for such effective alternatives is apervasive problem that leads to increased youth, and later adult, crime and violence." H. R. 1064§ 4(17).

98 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWprograms have proved highly successful in furthering youth development and reducingrecidivism. One is particularly effective prior to adjudication; the otherhas a proven track record as an alternative to institutional confinement followingadjudication. Both efforts incorporate a "co-production" framework,132 in whichthe "consumers" of human service programs and interventions - the youth themselves- are enlisted as co-workers and "co-producers" of the transformation desired.133 These two programs incorporate a set of core principles that we believeoffer an even more enduring and transformative approach to address delinquentconduct than the "evidence-based" programs now enjoying authoritativeendorsement. 1341. Time Dollar Youth Court ("T-D Youth Court")"The Time Dollar Youth Court was authorized in 1996 by the Superior Courtof the District of Columbia to work with the courts in a 'partnership for the purposeof jointly developing a diversion program that provides a meaningful alternativeto the traditional adjudication format in juvenile cases.",135 For twelveyears T-D Youth Court has successfully diverted juvenile, non-violent first timeoffenders away from the juvenile delinquency system. In 2008, T-D Youth Courtjurors heard 912 cases for offenses such as simple assault, possession with intent132 See EDGAR CAHN, No MORE THROW-AWAY PEOPLE: THE CO-PRODUCTION IMPERATIVE(2d ed. 2004); EDGAR CAHN, PRICELESS MONEY: BANKING TIME FOR CHANGING TIMES (2007); NEWECONOMICS FOUND., THE NEW WEALTH OF TIME: How TIMEBANKING HELPS PEOPLE BUILD BET­TER PUBLIC SERVICES (2007); PHELPS-STOKES FUND, COMING HOME: AN ASSET-BASED ApPROACHTO TRANSFORMING SELF & COMMUNITY - VOL. 1 CO-PRODUCTION AT WORK (2008).133 Co-Production is premised on the conviction that efforts to address major social problemsprove most effective when they enlist and engage the target population as contributors and co-producers.It is an approach to system change and social welfare that focuses on the idea that the traditionalbeneficiaries of social programs: clients, recipients, consumers, and at-risk populations can "coproduce"outcomes that address issues as diverse as eldercare, childcare, juvenile justice, education,community development, health, self-sufficiency, and opportunity.134 Those core principles are:(1) An Asset Perspective: We must build on strengths; one cannot build on weaknesses;every human being has capacities of potential use and value to others;(2) Valuing Real Work: We must honor real work: caring labor, civic labor, social justicelabor and lifelong learning. Rewards for contribution must enhance one's quality of life;(3) Reciprocity - or Pay It Forward: Giving back empowers the recipient so that receivinghelp is not regarded as charity and does not create dependency;(4) Community: Building a social infrastructure of help, support, companionship and trust isessential; and,(5) Respect: The voices of those who are most disenfranchised need to be amplified andrespected.See also Edgar S. Cahn, Co-Producing Justice: The New Imperative, 5 UDaDCSL L. REV. 105 (2000).135 TIme Dollar Youth Court Home Page, hUp:llwww.tdyc.orgl.

AN OFFER THEY CAN'T REFUSE 99to distribute marijuana, and disorderly conduct. 136 1Ypically, recidivism rates duringthe first six months after referral to T-D Youth Court were a mere 5% andtwelve months after referral recidivism has risen only to 9%.137 Both the sixmonthand one-year recidivism rates are far below the prevailing 33-35% recidivismrate for the comparison group. The estimated nationwide cost of YouthCourt programs is $458 per respondent compared to: (1) the costs of probation,estimated cost of $1,635 per youth; and, (2) juvenile justice processing, estimatedcosts ranging between $21,000 and $84,000 per case.1382. Youth Advocate Programs, Inc. ("YAP")For the past thirty years, the Youth Advocate Programs, Inc. ("YAP") hasoperated a community-based wraparound program that now reaches sixteenstates and works annually with approximately 10,000 youth who would otherwisehave been in secure confinement at an average annualized cost of $88,000. 139YAP has been extraordinarily successful with some of the most entrenched andchronic juvenile offenders by hiring and training community members to functionas advocates who work to strengthen the family and build an informal supportnetwork for the young person. 140 One of YAP's sites, the Tarrant County AdvocateProgram-North ("TCAP") underwent extensive review and earned officialcharacterization as a "successful intensive probation program.,,141 TCAP usespaid mentors and advocates who link the youth with community-based services.Programs include "counseling, job training, subsidized youth employment, vocationaltraining, anger management classes, tutoring, community service restitutionprojects, character development courses, and parent education classes. ,,142 In136 CAROLYN D. DALLAS & RENE M. GORNALL, A FIVE YEAR LoOK AT PARTICIPATION INTHE TIME DOLLAR YOUTH COURT, INC. DIVERSION PROGRAM: PROGRESS REPORT 2004 TO 2009 2(2009).137 [d.138 SARAH S. PEARSON & SONIA JURICH, AM. YOUTH COURT: A COMMUNITY SOLUTION FOREMBRACING AT-RISK YOUTH 16 (2005).139 Youth Advocate Programs, Inc., 10 Fast Facts about YAP, http://www.yapinc.orglindex.php?pID=57 (last visited Mar. 10,2009); see Two DECADES OF JDAI supra note 2, at 7.140 DSG Website, supra note 5. The Model Programs Guide contains many such indications ofimprovements and accomplishments by programs in multiple jurisdictions.141 Austin, supra note 44, at 19; RONALD B. REA ET AL., FINAL EVALUATION REPORT OF THEHARRIS COUNTY YOUTH ADVOCATE PROGRAMS (YAP) (2003). Perhaps the most important findingis that young offenders can be served in their home communities and neighborhoods by members oftheir communities who are recruited, provided with a limited amount of pre-service training and supervisedby professional staff in providing direct services to the youth and their families. The programmodel can be operated at less than half of the cost of residential contract services and achieves asuccess rate that compares favorably with the more expensive residential service. Based on an analysisof the closed cases, the YAP is realizing successful outcomes for approximately 80% of the clientsenrolled in their program.142 [d.

100 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW2002, TCAP served over 500 youth and their families - nearly 400 families completedthe entire program. 143 OJJDP reported that "[o]f these youth, 96 percentwere successfully maintained in the community or were diverted from out-ofhomeplacement or commitment to the Texas Youth Commission.,,144We cite these programs because they exemplify the growth in knowledge thathas mushroomed over the past several decades. Indeed, they embody a new approachto juvenile justice which takes strength-based youth development quiteliterally. These programs regard juvenile offenders as neighborhood assets whocan be enlisted to contribute to rebuilding the sense and quality of life in a community- all the while radically reducing disproportionate minority contact, recidivism,and crime - at a fraction of the cost of incarceration.D. Alternatives Beat Incarceration in the Cost-Benefit AnalysisBesides effectiveness, cost is the other major factor that public officials bear inmind when choosing a course of action for youthful offenders. Ongoing studies ofthe cost of secure detention versus the cost of alternatives to detention consistentlyshow that alternatives to detention are far less expensive than keeping ayouth in secure detention. 145 As one commentator writes, "[w]hile states spendmillions of dollars on detention centers, the community-based programs are heldtogether by a fair amount of gum, tape, and baling wire.,,146 For example, "Texasspends $57,000 a year incarcerating each minor.,,147 Other jurisdictions averagebetween $32,000 and $65,000 annually per minor, with far higher average costsreflected in the highest cost-of-living regions. By comparison, most communitybased,wrap-around programs boast annual costs considerably less than $20,000per youth, with many as low as $13,000.,,148 "States spent about $5.7 billion in2007 to imprison 64,558 youth committed to residential facilities.,,149 According143 [d.144 [d.145 COAL. FOR JUVENILE JUSTICE, ANNUAL REPORT 2003: UNLOCKING THE FUTURE 23 (2003).The Coalition provides the following comparative data: New York City, secure confinement at $358per day and alternative to detention at $16-24 per day; Cook County (Chicago, IL), secure detentionat $115 per day and alternative at $33 per day; Multnomah County (Portland, OR), secure detentionat $180-200 per day and alternative to detention at $30-50 per day; Tarrant County (DallaslFt. Worth,TX) at secure detention $121 per day, an intensive advocacy program at $30-35 per day, and electronicmonitoring at $3.50-3.75 per day. [d.146 David L. Marcus, Communities Helping Kids, THE AM. PROSPECT, Aug. 14, 2005, http://www.prospect.orglcs/articles?article=commmunities_helping..kids.147 [d.148 DANGERS OF DETENTION, supra note 2, at 10-11.149 JUSTICE POLICY INST., THE COSTS OF CONFINEMENT: WHY GOOD JUVENILE JUSTICE POLI­CIES MAKE GOOD FISCAL SENSE 4 (May 2009), http://www.justicepolicy.orglimages/uploadl09_05_REP _CostsOfConfinemenCJJ_PS.pdf.

AN OFFER THEY CAN'T REFUSE 101to the American Correctional Association, "on average, it costs states $240.99 perday - around $88,000 a year - for every youth in a juvenile facility.,,150The benefit of an investment in community-based alternatives escalates uponconsideration of the 500/0 recidivism rate for young people within two years ofrelease from secure confinement. The Washington State Institute for Public Policy("WSIPP"), at the direction of its state legislature, conducted extensive researchassessing the effectiveness of prevention and early intervention programsto reduce at-risk behaviors for children and youth and identified specific research-provenprograms that result in a positive cost-benefit analysis. 151 WSIPPdeveloped criteria designed to ensure quality implementation and program fidelityof research-proven programs in the state. 152 Cost-benefit studies of those programshave produced some startling figures ranging from a benefit of $31,243 foreach dollar spent to negative value of $12,478 of the Scared Straight program,after subtracting costS. 153 The legislature also directed WSIPP to develop recommendationsfor potential state legislation that would encourage local governmentsto invest in research-proven prevention and early intervention programsby reimbursing a portion of the savings accruing to the state as a result of thelocal programs. 154IV. CAN COURTS EFFEcr SYSTEM CHANGE? INSTITUTIONAL CAPACITY:COURTS AND SYSTEM REFORMOur hope is that, prior to litigation, concerned juvenile justice advocates willemploy a "public notice forum" to put officials on formal notice of the extent towhich youth of color have disproportionate contact within their respective juvenilejustice systems. By design, a notice forum will demonstrate the injury thatflows from both the "race effect" in the juvenile justice process and the resultingunnecessary detention and confinement of youth of color. A notice forum willalso provide evidence of the availability of cost-efficient, officially-recommended,and demonstrably-effective alternatives to confinement. Successful notice forumswill either obviate the need for litigation or provide the record necessary to proveintentional disregard.150 [d.151 ROBERT BARNOSKY, WASH. STATE INST. FOR PUB. POLICY, EVALUATION OF WASHING­TON'S 1996 JUVENILE COURT PROGRAM (EARLY INTERVENTION PROGRAM) FOR HIGH-RISK, FIRST­TIME OFFENDERS: FINAL REPORT (Apr. 2003), http://www.wsipp.wa.gov/rptfiles/EIPfinal.pdf.152 WASH. REV. CODE ANN. § 13.40.530 (LexisNexis 2009).153 DRAKE, supra note 75.154 ROBERT BARNOSKY, WASH. STATE IN ST. FOR PUB. POLICY, THE COMMUNITY JUVENILEACCOUNTABILITY Acr: RESEARCH-PROVEN INTERVENTIONS FOR THE JUVENILE COURTS (Jan. 1999),http://www.wsipp.wa.gov/rptfiles/CJAA_Research.pdf. The result of this mandate was the CommunityJuvenile Accountability Act, since codified in WASH. REV. CODE ANN.§ 13.40.510 (LexisNexis 2009).

102 UNIVERSITY OF THE DISTRICT OF CoLUMBIA LAW REVIEWA notice forum can take many forms: a blue ribbon commission, a caucus ofstate legislators, a select committee, a judicial convening or more. The first suchforum will likely be convened by a group of concerned inner-city legislatorswhose constituencies are most directly affected by the high concentrations ofyouth of color historically drawn into the "cradle to prison pipeline." Such a forumwould do more than put officials on notice of effective, less expensive alternatives.It would enfranchise families and neighborhoods, by providing them witha platform to voice injury and to advocate change, information about alternatives,and an opportunity to begin holding the system accountable to producebetter outcomes and lower recidivism rates. It would provide legislators with theopportunity to exercise oversight of the federally mandated State AdvisoryGroup charged with making plans and recommending grants to implement thecore requirement of the Juvenile Justice and Delinquency Prevention Act. Ideallysuch forums could provide an opportunity for those youth who have been in detentionand others who have benefited from alternatives to detention to informcommunity leaders about the world that only they know. Finally, the voices ofthose who have benefitted from system change need to be heard because advocatesfor reform need youth allies who can share their personal stories and attestto the benefits they have derived from innovative community-based practices.Without such a constituency, progress in breaking the current addiction to detentionis all too vulnerable to a fatal setback if even one juvenile who might havebeen detained does something bad. Those cases are as predictable as they arerare; they will generate exponential backlash if they are not countered by youthwho can say: "You get twenty or fifty of us for every one who slips through thecracks. And we are your future family heads, taxpayers, and leaders."Emerging research demonstrates the savings derived from use of diversion andalternatives to detention. Such a cost-benefit analysis is important because theofficials who administer the juvenile justice system are likely to plead "systempoverty," particularly in the current economic environment. 155 Government officialsare obligated to seek the most cost-effective strategies to meet their policyobjectives, especially when less costly strategies produce a much higher rate oflong and short-term success while preventing a constitutionally prohibited injury.Following a formal hearing where notice of effective alternatives has been provided,officials may choose to resist system change by maintaining business asusual, or to go through the motions of a response by announcing a plan that isclearly inadequate to end racial bias. 156 There clearly needs to be pressure to155 AECF Detention Alternatives Website, supra note 80; DRAKE, supra note 75.156 Interview with Bart Lubow, Oir. of Programs for High Risk Youth & Their Families, AnnieE. Casey Found., in Baltimore, MO (Jan. 22, 2009). Mr. Lubow reported that the Georgia legislatureundertook a response by appropriating millions of dollars for programs that would provide 500 slotsas alternatives to detention. Ill. The programs were launched and all slots were fIlled; however, thenumbers of juveniles placed in criminal institutions was not reduced. [d.

AN OFFER THEY CAN'T REFUSE 103reduce the use of detention, not only by offering alternatives to juvenile detention,but also by limiting the number of available secure confinement slots.It will take strategic litigation planning, akin to Charles Houston's work inplotting the road to Brown v. Board of Education,IS7 to identify the best litigantswithin a jurisdiction where there is a clear violation. The OJJDP monitors violationsof the JJDPA, and there is no shortage of cases. ISS Given the plethora ofresearch and data filed with the federal government, county-level analyses shouldsurface examples where two juveniles of the same socio-economic class and systeminvolvement committed the same offense, where (as in our hypothetical comparisonin Appendix) the youth of color was not diverted but was instead chargedand detained, while the white youth was sent home. Once such evidence is obtained,the issue becomes securing a remedy that compels officials to use knowledgeof what works. Assuming that intent is established under the theory ofdeliberate indifference, the next hurdle will be getting judges to oversee systemchange when it comes to prisons and secure confinement facilities - a problem ofancient vintage. 1S9 This obstacle is not insurmountable; there is now a substantialbody of case law dealing with "public law litigation" and ongoing judicial supervisionof systemic reform. These cases involve public services provided by schools,hospitals, mental health systems, prisons, police, and housing authorities. 16oInitially, judicial intervention was characterized by what has been called a"command-and-control" orientation. Court orders took the form of comprehensiveregimes of "fixed and specific rules that prescribed the inputs and operatingprocedures of the institutions they regulated.,,161 Commentators have identifiedthree characteristics that typify this "command and control" approach: (1) "aneffort to anticipate and express all the key directives needed to induce compliancein a single, comprehensive, and hard-to-change decree";162 (2) "assessmentof compliance in terms of the defendant's conformity to detailed prescriptions of157 Brown v. Bd. of Educ., 347 U.S. 483 (1954). For an in-depth discussion of Houston's legalstrategy, see RICHARD KLUGER, SIMPLE JUSTICE 508-40 (1977).158 Mead Gruver, Some States Disregard Juvenile Justice Law, ABC NEWS, Feb. 8,2009, http://abcnews.go.comlUS/wireStory?id=6831314.159 Bernard Shaw, Preface to SYDNEY WEBB ET AL., ENGLISH PRISONS UNDER LocAL Gov­ERNMENT, at viii (Cass 1963) (1922) ("Judges spend their lives in consigning their fellow creatures toprison; and when some whisper reaches them that prisons are horribly cruel and destructive places,and that no creature fit to live should be sent there, they only remark calmly that prisons are notmeant to be comfortable; which is no doubt the consideration that reconciled Pontius Pilate to thepractice of crucifixion.").160 See Abram Chayes, The Role of the Judge in Public Law, Litigation 89 HARV. L. REV. 1281(1976); Note, Implementation Problems in Institutional Reform Litigation, 91 HARV. L. REV. 428(1977).161 Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law LitigationSucceeds, 117 HARV. L. REV. 1015, 1018 (2004).162 Sabel, supra note 161, at 1021.

104 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWconduct in the decree";163 and (3) "a strong directive role for the court or a specialmaster in the formulation of remedial norms.,,164 In short, the "commandand-control"approach mandates certain actions for the defendant and monitorscompliance. Substantial concerns emerged regarding the judicial competence tooversee operation of complex, executive branch institutions when confrontedwith opposing armies of experts arrayed by plaintiffs and defendants. 165 Courtsinitially embraced three guiding principles: (1) the response must be one chosenfrom professionally approved strategies;166 (2) implementation must commit sufficientresources to carry out the chosen strategy effectively and responsibly;167and (3) performance will be judged on the outcome. Implicit in this arrangementis the notion that if the strategy chosen fails to produce the anticipated outcome,then the strategy will have to be changed. 168Over several decades, courts learned the limitations of command-and-controlorders that freeze the parties' adversarial roles and lack the flexibility or capacityto address new factors, such as unintended consequences or sabotage by frontline administrators. As a result, system change methodology has shifted awayfrom the command-and-control approach. More recently, commentators havecharacterized system change judges as employing a "catalyst" approach,169 engagingin an "experimentalist" approach,t7o or creating "destabilization rights"163 [d. at 1021-22.164 [d. at 1022.165 In the context of responding to egregious cases of educational failure, courts have articulatedvarying standards for defining what "sound and effective professional practice" might mean.These include: Castenada v. Pickard, 648 F.2d 989 (5th Cir. 1981) (sound educational theory or legitimateexperimental strategy); U.S. v. Texas, 506 F. Supp. 405, 420 (E.D. Texas 1981) (defendant'sprogram must be an "equally effective alternative" to that sought by plaintiffs); Martin Luther KingJr. Elementary Sch. Children v. Mich. Bd of Educ., 473 F. Supp. 1371 (E.D. Mich. 1979) (best availableknowledge); Nicholson v. Pittenger, 364 F. Supp 669, 675 (E.n. Pa. 1973) (violation of size, scopeand quality requirements where programs were approved without an evaluation to determine programeffectiveness).166 Youngberg v. Romeo, 457 U.S. 307 (1982). The court embraced "deference to the judgmentexercised by a qualified professional" noting that "liability may be imposed only when the decision bythe professional is such a substantial departure from accepted professional judgment, practice, orstandards as to demonstrate that the person responsible actually did not base the decision on such ajudgment." [d. at 322-23. See also Soc'y for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239,1248-49 (2d Cir. 1984); Sabel & Simon, supra note 161, at 1056 (discussing the changing role of professionalsin formulating remedies).167 See Nicholson, 364 F. Supp. at 675 (finding violations of size, scope and quality requirementswhere programs were approved without an evaluation to determine program effectiveness).168 Gomez v. Ill. State Bd. of Educ., 811 F.2d 1030, 1041 (7th Cir. 1987) ("U]udicial deferenceto the school system is unwarranted if over a certain period the system has failed to make substantialprogress in correcting the language deficiencies of its students").169 Susan Sturm, Resolving the Remedial Dilemma: Strategies of Judicial Intervention in Prisons,138 U. PA. L. REV. 805, 856-59 (1990).170 See Sabel & Simon, supra note 161, at 1055 ("The judge's role changes from that of directlydetermining the merits to facilitating a process of deliberation and negotiation among stakeholders.").

AN OFFER THEY CAN'T REFUSE 105which open the door to stakeholders in an ongoing participatory process. I71Rather than imposing a static order from above, recent intervention takes theform of a "rolling-rule regime" where rules are regarded as provisional and subjectto a continuous, transparent process of reassessment and revision. In Newstakeholders can intervene, negotiations are deliberative, and the goal is to reachconsensus. Representation of diverse stakeholders has proven critical in a rollingruleregime because such cases typically entail political resistance to reforms thatrespond to the interests of a vulnerable, stigmatized minority.173 The creation of"destabilization rights" through an ongoing "rolling rule" remedy that permitsstakeholders to intervene could reverberate throughout the "web" of juvenile justiceauthorities;174 and thereby reduce their insulation from accountability. Ourhope is that emergence of a legal obligation to make use of the knowledge availablewill operate as an incentive, not a threat, to accrue new knowledge so the"rolling rule" regime also initiates an ongoing journey of exploration andlearning.CONCLUSIONWe submit that the initial set of demands for reduction of disproportionateminority contact should commence with the query: What response would be accordeda white juvenile who had committed the same offense? There is no excusefor continuing to treat youth of color as "throw-away people.,,175 And this is just171 "Destabilization induces the institution to reform itself in a process in which it must respondto previously excluded stakeholders." Sabel & Simon, supra note 161, at 1056.Destabilization usefully describes both the remedy and the process by which the meaning ofthe background substantive right is articulated in these cases. In the new public law, the judgedoes not exercise discretion in each case to choose among an infinite array of potential responsesto the particular problem. Rather, having found a violation of some broad norm-theright to an adequate education, the right to access to justice-she imposes the single remedythat the liability phase has shown to be appropriate: institutional destabilization. This remedyhas a common structure across fields. Moreover, judicially and publicly accountable standard-settingin the experimentalist liability phase bridges the gulf between the initial affirmationof the substantive right and the eventual remedy.[d.172 [d. at 1068.173 [d. at 1065. "The minority can be a racial group, as in some versions of the education,housing, and police cases. Or it can be a group that has been socially stigmatized on the basis ofconduct or disposition, as with prisoners and mental health patients." [d.174 Different entities are responsible for different parts of the juvenile justice system. Police,probation offices, youth services, and courts play key decision-making roles. In addition, other agencies,such as the Medicaid agency, the department of mental health and the public school system,provide critical resources needed for an effective remedy. The "rolling-rule regime" provides a vehiclefor enlisting all relevant parties. The design of a pre-litigation strategy is critical in securing theirinvolvement.175 SNYDER, supra note 33, at 211. While the majority of delinquency cases are referred tojuvenile court by law enforcement, cases may also be referred by parents, schools, or probation of-

106 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthe beginning. "Deliberate indifference" can yield an evolving national standardfor Equal Protection. In some states, the standard of intervention for white youthmay also be far below that which is attainable through co-production andstrength-based approaches. There is a new body of knowledge respecting alternativesto detention that engage both family and community that produce betteroutcomes for all, but especially for youth of color. It is time that officials wereobliged to make use of that knowledge. 176flcers. Id. "[N]early half of all cases referred to juvenile court intake are handled informally." Id.While many informal cases are dismissed, in others, "the juvenile voluntarily agrees to abide by specificconditions for a specific time period." Id.176 We oppose limiting that obligation to only those programs that are "evidenced-based."Youth Courts and wrap-around programs work. Verification and demonstrable effectiveness ought tobe sufficient, and there is still much to be said for common sense. After all, we knew that segregationsent a message of inferiority long before doll tests were utilized to "prove" the stigma. Further delayin utilizing what we know is unacceptable when it perpetuates injustice. Accord EDMOND CAHN, CON­FRONTING INJUSTICE: THE EDMOND CAHN READER 329 (1966); Edmond N. Cahn, A Dangerous Mythin the School Segregation Cases, 30 N.Y.U. L. REv. 150 (1955).

AN OFFER THEY CAN'T REFUSE 107ApPENDIXTwo ROADS DIVERGE-PARALLEL TALESThis short hypothetical scenario presents two fictional, but representative sixteenyear olds: Ian, who is Caucasian and 1)rrone, who is African American.Each protagonist in the parallel scenarios attends his neighborhood school in acommunity where most people are of the same race as he.These parallel tales begin with each protagonist starting a minor altercation athis own school. Each fight results in a few thrown punches and bruised adolescentegos; the only bloodshed is from a minor cut to the young protagonist. Bydesign, the initial virtually identical incidents result in consequences that are asdifferent as black and white.DECISION POINT INTWO TAKES DIVERGE-PARALLEL TALESTHE JUVENILE IAN's EXPERIENCE TYRONE'S EXPERIENCEJUSTICE PROCESSPRE-ARRESTERRANT Ian and two other young men lYrone and two other youngBEHAVIOR IS THE begin to argue and throw men being to argue and throwSAME punches. Only Ian has a punches. Only lYrone has aminor bleeding cut. No one minor bleeding cut. No oneelse is injured in any way. else is injured in any way.Several other students stand Several other students standaround jeering.around jeering.WHAT AUTHORITY The School Nurse and College The School Policeman 1 is theCOMES TO Counselor are the first adults first adult to arrive on theADDRESS THE to arrive on the scene. They scene. He diffuses the crowdSITUATION? diffuse the crowd of students of students and radios a reportand dispatch one to get the of the incident to the precinct.Assistant Principal (AP).1 This officer parks his markedsquad car by the school todeter fighting and othercriminal behavior, such asdrug deals.ONCE LAW Ian has stopped bleeding from lYrone has stopped bleedingENFORCEMENT IS a minor cut by the time the from a minor cut by the timeCONTACTED, WHAT first adult arrives on the scene. the first adult arrives on thescene.IS THEASSESSMENT?

108 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWINITIAL CONTACTARE CHARGES The AP has been briefed by The police officer looks atBROUGHT? the Counselor that Ian has lYrone and asks, "Don't youbeen out of sorts since his run with 'Smoke,?,,2 Theother brother has just left town police officer pushes otherto go to a drug treatment students out of the way as heprogram.) The AP asks Ian handcuffs and guides Tyronewhat happened and says that out toward the patrol car. Hesince there is blood they must doesn't let lYrone speak andcall the police. The responding he says he knows lYrone is aofficer prepares paperwork troublemaker and he saw theover the phone and offers to incident himself.issue a citation for diversionwhich must be picked up by 2 Smoke is an 18 year old. Hethe child and parent within 24 was just sentenced to prisonhours.for 10+ years in a crackcocainedistribution case for) lan's older brother was having 40 packets of crackbustedfor having 40 packets of cocaine."powder" cocainehydrochloride in the basement.PRE-PETITIONHow ARE FIRST- The AP tries to reach lan's lYrone asks to go to his lockerTIME OFFENDERS mother, whose phone is out of to get his aunt's work numberTREATED? service. Ian is then permitted because his mother cannotto try to reach another adult receive calls at work duringrelative. He calls his cousin to her afternoon shift. Theget his aunt's telephone officer refuses and ordersnumber. Ian is still permitted '!yrone, "to shut up or I'll shutto go home. When his mother you up," as he pushes Tyronegets home he tells her that she into the squad car to go downmust to go to retrieve the to the station for his firstcitation. Later that night lan's booking.mother goes to the policestation to pick up the citation When lYrone's mother arrivesdirecting Ian to report to Courttwo weeks later, on a Saturday.at home after work, Tyrone isnot there. Tyrone's friends tellher what happened to lYroneand she quickly goes to theneighborhood police station topick him up. lYrone is notthere and no one can tell herwhere he is being held orwhen his case might be incourt.

AN OFFER THEY CAN'T REFUSE 109INmAL HEARINGIN RE GAULT A lawyer calls Ian's home a lYrone meets his lawyer forENTITLES few days later. Ian and his the first time, in open courtJUVENILES TO lawyer meet so the lawyer can when he is brought out fromLEGAL ascertain the facts, possible the lock-up cell behind theREPRESENTATION. witnesses and develop a judge's bench. His appointeddefense while the incident is counsel did not come to meetstill fresh. The lawyer him before his afternoon courtencourages Ian to mind the appearance and instead startsrelease order and to follow all whispering some basicof the rules so that he can questions like, "Is anyone inpersuade the court to order Ian court for you?"into a diversion program.WHAT HAPPENS Ian arrives at court with his lYrone gets to court the dayWHEN THE YOUTH mother and uncle, on a after his arrest. He is alone,GOES TO COURT? Saturday about two weeks after sleepless, scared, disheveled,his arrest. The case gets and hungry. He has notreferred to diversion for first talked with his mother, anyoffenders and they do not other family member, or withappear before the judge. They his lawyer. lYrone is boughtcomplete paperwork shortly out to the counsel table inafter they arrive at court and handcuffs. The lawyer defersare able to leave court less to the court social services andthan an hour after they getthere.the prosecutor'srecommendation for Tyrone tobe held in a halfway house orgroup home because he seemsunsupervised and no adult hascome forward to speak on hisbehalf. lYrone tries, to noavail, to explain that thepolice did not permit him tocall anyone.

110 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWWHAT HAPPENS Ian goes home. He continues All of the community halfwayAFI'ER THE FIRST to act out on occasion, but has houses are full so 1Yrone getsCOURT been chastened by the sent to a youth detentionAPPEARANCES? diversion agreement that he facility. He is incarcerated onand his mother signed at the a ward with about twentycourthouse. The agreement other juvenile detainees whererequires Ian to meet all of the he gets into altercations andconditions, including getting a disagreements with staff andsummer job and staying out of bunk mates. 1Yrone hastrouble for an entire year. If talked with his mom a coupleIan meets all of the conditions of times by phone, but she hasin the diversion agreement, he been unable to visit due towill not even have an arrest transportation issues.record.When 1Yrone returns to courtfor his status hearing twoweeks later, he has "earned" anumber of infractions.1Yrone's attorney, whom hehas not seen since the initialhearing/arraignment, directshim to enter a gUilty plea andhe does. 1Yrone is adjudicated"involved"; the judge commits1Yrone to the Department ofYouth Services, which decidesto keep him locked up foranother month or two, or untila group home slot opens up.

AN OFFER THEY CAN'T REFUSE 111DURING THE FIRST SIX MOTHS AFfER INITIAL INCIDENTWHAT HAPPENS Ian finds a part time job at the lYrone eventually gets into aPOST-DISPOSITION? local pizza shop and tries not group home near the rivalto let his temper flare. high school; he is happy to beAlthough Ian does not get any back in the community and nonew contacts during the first longer locked up.six months he is on diversion, Due to overcrowding in thehe begins to slide about six system, particularly inmonths later. His volatile community-based group home,temper results in Ian getting lYrone is released a mere tenfired from his job, which days later and returned homeplaces him out of compliance under several conditions ofwith the diversion program. aftercare (the juvenileequivalent of parole). lYroneIan's citation is filed, he gets must report weekly to hisofficially charged, and a notice aftercare worker, submit tosent to his home orders him to drug tests, go to a monthlyappear on the following anger management meeting atSaturday. Since Ian has not the probation officer and he isgotten rearrested, when he goes ordered to find a summer job.before the judge he enters aguilty plea for the initial fightcase and is placed onprobation. His only conditionis that he complete anafterschool SAT Prep programand report to the probationoffice six months later with acertificate of completion.

112 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWWHEN THERE IS Although Ian completes the During his first month home,SUBSEQUENT BAD SAT Prep program he has 'yYrone reports religiously forCONDuer, HOW several additional disciplinary his aftercare appointmentsDOES THE SYSTEM reports at school and gets more where he submits urineRESPOND? and more out of control. His samples and "tests clean"school counselor signs him up indicating no drug use orfor an art therapy program exposure. Tyrone tries in vaindesigned to tackle his anger to find a summer job. Itmanagement issues. This seems like the first questionbegins to make a difference. on each application is:He also meets a girl in the Whether he has been arrestedprogram who is a good and found gUilty. After heinfluence on his study habitsand overall behavior.answers that question, "yes,"he does not get called back.The next two times that'yYrone shows up his aftercareworker is either absent orunavailable. When 'yYronefinds out there are noconsequences for failing tofind a job or for failing tocheck in with his aftercareworker (although it is herfault), he slackens onattendance at the weeklyappointments and falls backinto his old patterns andactivities. He goes to a partyone Saturday night and hangsout in a room where hisfriends are smoking marijuana.The next week, his aftercareworker calls and orders him tocome in or risk getting lockedup. 'yYrone believes that hewill test dirty for drug use sohe refuses to go to theappointment. The systemrecords are also unclear fromthe group home. A benchissues for 'yYrone's arrest. Theschool officer is notified andthe next day 'yYrone isarrested coming out of school.

AN OFFER THEY CAN'T REFUSE 113EIGHTEEN MONTHS AFfER ADJUDICATIONTyrone refuses to submit to adrug test and is held pendingan aftercare revocationhearing. When he appearsbefore the judge, Tyrone istold that he will be held inconfinement for another sixmonths to teach him a lesson.WHAT HAS Due to his continued bad During the same eighteen-HAPPENED temper, Ian lost his job at the month period, Tyrone wasEIGHTEEN MONTHS local pizza parlor and his incarcerated first in detentionAFTER chance at diversion is taken and then in commitment statusADJUDICATION? away. When his case his pending an opening in a groupreinstated, the court places Ian home. When he eventuallyon probation with the sole got home, he could not find aconditions that he stay out of job, and did not get any othertrouble and complete the after helpful services. Once heschool SAT Prep course. Ian realized that thehad some technical violations recordkeeping at the aftercarewhile on probation because he office was lax, he stoppedcontinued to get into disputes going and began to hang outand altercations. lan's with the "wrong crowd" again.probation does not get Although he has no newrevoked. He accessescharges, some technicalcommunity-based services and violations result in lYroneparticipates in an art therapy being locked up again.program that actually helpshim cope better. While in theprogram, he befriends a younglady with whom he enjoysspending afternoons studyingand starts managing his timeand temper better.These parallel tales depict the many points in the classic juvenile delinquencyincident where disparate decisions will result in vastly different outcomes. AlthoughIan and Tyrone are similarly predisposed to have volatile tempers, theconsequences are very different. The system offers alternatives, resources and ameasure of grace to permit Ian to overcome his temper problem and to developcoping skills. On the other hand, Tyrone, like so many before him, becomes onemore statistical casualty - one swept into the "cradle to prison pipeline." Disparitywith a racial bias element is present in every phase of the juvenile justicesystem, but the decision at the point of the initial contact regarding whether todivert, prosecute, detain, or employ an alternative to detention is the most criticalin the eyes of many scholars.

BRINGING HOME THE BACON: A TWO·PRONGEDAPPROACH TO TRANSPARENT AND EFFECTIVECONGRESSIONAL EARMARKINGKimberly S. Pulick*INTRODUcnONEarmarks signify the process of Congressional allocation of Treasury funds toselected projects or persons by individual Congress members without oversight,without any merit-based allocation process, and often, anonymously. It is a processauthorized by the United States Constitution which requires Congress tosupervise and direct all appropriations of money from the U.S. Treasury.l Althougha large proportion of funds are allocated to federal agencies, the remainderis available to members of Congress for special projects or persons asearmarks. Because members of Congress have had the power to earmarkprojects and persons without supervision and without attaching their names tothe earmarks, the process has become synonymous with pork barrel politicking.The phrase "bringing home the bacon" often conjures thoughts of a hardworkingfamily man or woman providing for their spouse and children. To those onCapitol Hill, however, "bacon" and "pork" symbolize more than just the meansto a comfortable life. Pork barrel spending or earmarking-the process of allocatingtens of millions of dollars in taxpayer funds to special interest projects-isa complicated endeavor involving Members of Congress, constituents, and lobbyists.For years, some legislators have used the federal appropriations process as ameans to wrangle as much of the federal piggy bank as possible for their petprojects and powerful supporters.Despite the negative reputation they have garnered, earmarks can be of greatbenefit to district specific non-profit and social service organizations and programs.Unfortunately, they have become associated with backroom deals andpolitical favors to preferred companies and campaign contributors. As a result of• J.D. candidate 2010, University of the District of Columbia David A. Clarke School of Law.Kimberly S. Pulick. Editor-in-Chief of the University of the District of ColumbialDavid ClarkeSchool of Law Law Review, would like to thank Helen Frazer, Associate Director & Head of PublicServices, Charles N. & Hilda H. M. Mason Law Library, for her excellent and insightful advising onthis Comment. The author would also like to thank the Editorial Board and members of the LawReview for their assistance throughout the publication process, as well as Bob and Patty Pulick andDarren Withers for their unwavering support.1 U.S. CONST. art. I, § 9, d. 7.

116 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWpublic complaints and criticism, Congress has repeatedly enacted rules to reduceor eliminate the most egregious abuses of earmarking. 2Congress's most recent rule requires transparency - earmarked legislationmust be disclosed, including beneficial tax provisions. 3 Because Congress is selfregulating,however, some scholars and critics contend that self-regulation is insufficientto solve the problem. Rebecca Kysar, Assistant Professor of Law atBrooklyn Law School, contends that external regulation is necessary and offers astatutory interpretation method to assure that earmarking rules are, in the main,upheld. 4 This comment takes a different approach.This comment provides a model for Members of Congress to use in decidingprojects and entities to fund with earmarks. This process honors the transparencygoal of recent legislative reforms of earmarks. It is a method that is straightforward,repeatable, and focuses on projects and programs that best serve the constituents,while understanding the importance of maintaining politicalrelationships.In sum, the model process takes the form of a two-pronged approach toearmarking:1. Complete transparency of the Congressional appropriations processand2. Lawmaker implementation of an objective, analytical procedure to determinewhich special interest projects to support.The combination of these two concepts fosters the political relationships necessaryfor a Member to zealously legislate on behalf of his constituents, while simultaneouslyproviding residents at home with the specific services or programs theyneed the most.Part I of this comment examines earmark controversies over the past fiveyears and the reform measures recently instituted in Congress, particularly withthe goal of transparency. Part II of the comment explores some of the possibleintended and unintended consequences of the transparency in earmark reformstaking effect at the beginning of Fiscal Year 2010. Part III proposes a method forMembers of Congress to analyze the earmark requests they receive and allocatefunds more evenhandedly. The comment concludes that although complete reformof the earmarking process will not occur overnight, the method presented ispragmatic and most effective at bringing constituents the district specific projectsand services they need.2 Elisabeth Bassett, Comment: Reform Through Exposure, 57 EMORY L. J. 1049 passim (2008);Rebecca M. Kysar, Listening to Congress: Earmark Rules and Statutory Interpretation, 94 CORNELL L.REV. 519 passim (2009); see also the discussion of these rules infra Part I.3 Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735(codified as amended at 2 U.S.c. §§ 1601-14); H.R. Res. 6, HOth Congo § 404 (2007) (enacted).4 Kysar. supra note 2, at 519.

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH117I: OVERVIEW OF EARMARK CONTROVERSY, RESULTING REFORMMEASURES, AND EXISTING RULESPart I recounts some of the recent scandals involving Members' of Congressimproper use of their authority to direct funds to special interest groups. Thissection also considers Congressional procedural measures taken over the previousthree years to reform the earmarking process. Lastly, Part I reviews the existingHouse and Senate rules regarding appropriations.A. Recent Earmark ControversyOriginally, an earmark was understood to be a literal mark upon the ear of asheep or other animal to denote ownership.5 In current American society, however,earmarks 6 are provisions in Congressional legislation that allocate a specifiedamount of money for a project, program, or allocation? Funds releasedthrough earmarks are directed to particular locations or recipients, thereby circumventingmerit-based or competitive allocation processes. s When consideringappropriation measures, Congress is exercising the power granted to it under theConstitution, which directs, "No money shall be drawn from the Treasury, but inConsequence of Appropriations made by Law.,,9 The power to appropriate is alegislative function disallowing executive agencies from spending more than theamount appropriated to them. Additionally, funds are to be used only for thepurposes established by Congress. 1O The remaining funds, allocated by Congress,are inserted by Members into various types of legislation.In the past, special interest earmarks were incorporated into legislation or theaccompanying reports without proper attribution to the sponsoring Member. Recently,reports of Congressional abuse of power, in the form of appropriatingfunds to further personal gain, have come to light. In November 2005, CaliforniaRep. Randy "Duke" Cunningham resigned from Congress after accepting $2 millionin bribes from military contractors. 1t Cunningham used his position on the5 BLACK'S LAW DICfIONARY 547 (8th ed. 2004) ("Cattle were ear-marked or branded, and thisenabled their owner to swear that they were his in whosesoever hands he might find them." (quoting 2FREDERICK POLLOCK & FREDERIC W. MAITLAND, HISTORY OF ENGLISH LAW BEFORE THE TIME OFEDWARD I 151-52 (2d ed. 1899»).6 MEGAN SUZANNE LYNCH, CONGo RESEARCH SERV., EARMARK DISCLOSURE RULES IN THESENATE: MEMBER AND COMMITIEE REQUIREMENTS 1 (2009) (The Senate uses the term "congressionallydirected spending item" in place of earmark. This comment will use the terms interchangeably.From this point forward, "earmark" refers to any congressionally directed spending item).7 Merriam-Webster Online Dictionary, Earmark, http://www.merriam-webster.com/dictionary/earmark (last visited Sept. 18, 2009).8 Earmarks, http://earmarks.omb.gov (last visited Sept. 18.2009).9 U.S. CONST. art. 1, § 9, d. 7.10 [d.11 Mark Mazzetti, Report Spells Out Favors By Former Congressman, N.Y. TIMES, Oct. 18,2006, at A15.

118 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWHouse Appropriations Committee to direct more than $70 million in classifiedfederal projects to the businesses of two personal friends, Brent R. Wilkes andMitchell J. Wade. 12 One project, run by Mr. Wade's company MZM, Inc., hasbeen criticized by civil liberties groups which claim it authorized military officialsto spy on Americans under the guise of protecting domestic military bases. 13Also in 2005, then-House Transportation Committee Chairman Don Youngand then-Senate Appropriations Committee Chairman Ted Stevens, both ofAlaska, earmarked $223 million for the infamous "Bridge to Nowhere," linkingthe remote town of Ketchikan (population 8,900) to the small island of Gravina(population 50).14 The public was outraged at this symbol of wasteful spending.lsIn 2005's Transportation Equity Act, Young secured $941 million, making Alaska,the third least populated state, the fourth largest recipient of transportationfunds. 16Most recently, criminal investigations of several contractors and lobbyists closeto Rep. John Murtha of Pennsylvania have been exposed. Murtha backed $53million in earmarks to two companies with owners who are convicted drug dealers.17The CEO of another defense contracting company, Coherent Systems International,pleaded guilty to bribery and fraud when it was revealed his companywas being used as a money skimming operation. 1S The company's lobbyist, Rep.Murtha's brother Robert, secured an $8 million earmark from the Congressmanto fund the Air Force battlefield communications project. 19 Although there is noindication that either Murtha or his brother knew of the impropriety of CoherentSystems' business dealings, the charges and guilty pleas shine a light directly onthe Congressman's extensive use of pork. 2oB. Resulting Reform MeasuresFrom the years 1994-2005, Congressional spending on special interest projectsincreased 300 percent. 21 By 2006, pork barrel politics became so prevalent that12 [d.13 [d.14 Michael Grunwald, Pork By Any Other Name . .. , WASH. POST, Apr. 30, 2006, at BOL15 [d. (noting that $223 million for the "Bridge to Nowhere" project was "lampooned by Leno,Letterman and Limbaugh").16 Rebecca Clarren, A Bridge to Nowhere, http://dir.salon.com/story/newslfeaturel2oo5/0B/09/bridges/print.html (last visited JuI. 13, 2009).17 Pete Yost, 1Wo Former Drug Dealers Tied to Murtha-Backed Firm, WASH. POST, Jun. 5, 2009.18 Carol D. Leonning, Guilty Plea in Florida Case Shines Light on Murtha Earmark, WASH.POST, JuI. 14, 2009.19 [d.20 [d.21 Press Release, Office of U.S. Sen. John McCain, McCain Statement on Earmark ReformBefore Senate Rules Committee (Feb. 8,2006) (on file with author), available at hUp:llmccain.senate.gov/publid (follow "Press Office" and "Press Releases" hyperlinks; then browse by February 2006,and follow "GO" hyperlink).

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 119President George W. Bush promised unprecedented support for earmark andlobbying reform. 22 A long standing low public opinion of bureaucratic processesprompted the legislative branch to enact rules and reform the mysteriousearmarking process. 23 Beginning with the l09th Congress, both houses haveadopted rules to increase transparency in the appropriations process-effectingthe actions of lobbyists as well as lawmakers. 24 Much of the l09th Congress'legislation included provisions against "air-dropping,,,25 prohibiting considerationof a conference report unless its joint explanatory statement included a list ofearmarks not committed to the conference committee or otherwise disclosed.The 110th Congress promptly adopted revised earmark rUles. 26 House RuleXXI required that all bills, joint resolutions, and joint explanatory statements toconference reports, prior to consideration, contain a list of earmarks includingthe name of the Member who requested the item, or a statement that the billcontained no such item. 27 The House enforced the rule upon itself by making apoint of order if the statements were not provided. 28 The Rule also required aMember requesting earmarks to provide a written statement to the chairman andranking member of the committee of jurisdiction, to be made available to thepublic, including the following information: the Member's name, the name andaddress of the intended recipient of the earmark, the purpose of the project, anda certificate that neither the Member nor the Member's spouse has any financialinterest in the earmark. 2922 President George W. Bush, State of the Union Address (Jan. 31, 2(06), available at http://www.c-span.orglexecutive/transcript.asp?cat=current&code=bush_admin&year=2006 ("I am pleasedthat members of Congress are working on earmark reform, because the federal budget has too manyspecial interest projects. And we can tackle this problem together, if you pass the line-item veto.").23 Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation:An Interest Group Model, 86 COLUM. L. REV. 223, 223 (1986) (believing that too frequently, thelegislative process serves only private special interests, without regard to the greater public interest).24 See Budget and Transparency Act, H.R. 6201, 109th Congo §§ 201-03 (2006); H.R. Res. 1008,109th Congo (2006) (amending the Rules of the House of Representatives to provide for transparencyin earmark requests); H.R. Res. 1000, 109th Congo § 1 (2006) (considering a bill reported by a committeewithout a list of earmarks and Members who requested them "out of order"); LegislativeTransparency and Accountability Act of 2006, S. 2349, 109th Cong. § 3 (requiring earmark disclosurein appropriation and authorization bills); Pork-Barrel Reduction Act, S. 2265, 109th Congo §§ 2-3(2006) (providing for greater accountability of taxpayer dollars by curtaining earmarking).25 TOM FINNIGAN, ALL ABOUT PORK: THE ABUSE OF EARMARKS AND THE NEEDED REFORMS(2007) (defining air-dropping as the practice of inserting projects into final versions of legislationwithout providing the House or Senate an opportunity to debate or vote on such projects).26 H.R. Res. 6, llOth Congo (2007) (enacted).27 Id. § 404.28 Id.29 Id. § 404(b).

120 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWIn September 14,2007, President Bush signed into law the Honest Leadershipand Open Government Act of 2007 (the Act).30 The Act set forth Senate RuleXLIV, making it "out of order" to vote on a motion to proceed to considerationof a bill, joint resolution, or an accompanying committee report unless the chairmanof the relevant committee or the Majority Leader (or his or her designee)certifies that each earmark, as well as the Senators who submitted them, has beenidentified and made available to the public on a website forty-eight hours beforea vote. 31 The Rule also applied these disclosure rules to conference reports andaccompanying joint statements. 32 Enforcement is carried out by permitting aSenator to raise a point of order that could suspend the motion to proceed untilthe rule is followed. 33 Additionally, the Rule creates a point of order to strike"air-dropped" projects from conference reports that were absent from the measureoriginally committed to the members, subject to a sixty vote waiver.34C. Existing Earmark RulesDuring the 110th Congress, the House and Senate made strides towards reformby enacting rules and legislation that required increased transparency of theearmark process. 35 However, critics pointed to a lack of provision for preventing"air-dropped" earmarks in the House Rules?6 As it stood, Members could notpropose amendments or raise points of order to challenge projects added to conferencereports. 37 The lllth Congress adopted the Standing Rules used by the110th Congress, which included Rule XXI, and created an additional clause tocreate a point of order should a report contain any "air-dropped" projects. 38Appropriations rules for the current Senate were codified in the Act as SenateRule XLIV.39 Senator Claire McCaskiII introduced Senate Resolution 63 onMarch 4, 2009, to amend the Senate Rules to increase transparency in theearmarking process. 40 The Senator calls for a list of the earmarks a member requestson their website within forty-eight hours of request, Internet postings in a30 Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, § 521, 121 Stat.735 (codified as amended at 2 U.S.C. §§ 1601-14).31 [d.32 [d. at cl. 3(a)-(b).33 [d. at cI. l(b).34 [d. at cI. 8.35 See Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, § 521, 121Stat. 735 (codified as amended at 2 U.S.C. §§ 1601-14); H.R. Res. 6, 1l0th Congo § 404 (2007)(enacted).36 See supra text accompanying note 25.37 [d.38 H.R. Res. 5, 111 th Congo (2009) (enacted).39 See Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, § 521, 121Stat. 735 (codified as amended at 2 U.S.C. §§ 1601-14).40 S. Res. 63, l1lth Congo (2009).

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 121searchable format, and an out of order ruling if Senate legislation includes earmarksfor a private for-profit or non-profit entity.41The Chairmen of the House and Senate Appropriations Committees releaseda joint statement in early 2009 instituting further earmark reforms. 42 The transparencyprocedures required legislators to post information on each earmarkthey request on their individual websites. They must list contact information forthe requestors of the earmark, the purpose of the project, and why it is a valuableuse of taxpayer funds. 43 The Chairmen also promised earlier public disclosure ofearmark subcommittee reports and a 50 percent reduction of the 2006 level fornon-project based earmarks. 44n: TRANSPARENCY GOALS OF EARMARK REFORMEarmark reform, in terms of increased transparency of the appropriations process,is very new. The Fiscal Year (FY) 2010 earmark cycle, beginning in early2009, was the first to require public disclosure of all Members' requests for fundsand the first to award earmarks directed to a for-profit entity through a competitivebidding process. 45 Transparency, so the taxpayer can better follow how theirtax dollars are spent, is a central objective of recent reforms. 46 Such lucidity ispresumed to shed light on Members' spending habits, creating a new dimensionof open government to the Congress. This Part examines transparency as ameans to reform and its possible effects on the future of earmarks.A. Transparency as a means to reformDeliberate discussion of laws is considered a primary benefit of the Americanlegislative process. 47 Earmark reform rules requiring transparency of previouslyopaque special interest projects promote open discussion of potential expenditures.48 Lawmakers govern with a desire to satisfy their personal ideologies as41 [d. (S. Res. 63 currently is with the Committee on Rules and Administration).42 Press Release, Rep. Dave Obey and Sen. Daniel Inoyue, House and Senate AppropriationsCommittees Announce Additional Reforms in Committee Earmark Policy (Jan. 6, 2009) (on file withauthor).43 [d.44 [d.45 Office of Majority Leader Steny Hoyer, Earmark Reforms Under the Democratic Congress,http://www.majorityleader .gov/doc UpioadslDemocraticEarmarkReforms0311 09 .pdf (last visited Sept.18,2009).46 [d.47 1 ALEXIS DE TOCOUEVILLE, DEMOCRACY IN AMERICA 232 (maintaining that the UnitedStates has "a conciliatory government under which resolutions are allowed time to ripen; and in whichthey are deliberately discussed, and executed with mature judgment").48 John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 709(1997) ("[SlY relying on multiple, potentially antagonistic constitutional decisionmakers, the legisla-

122 UNIVERSITY OF THE DISTlUcr OF COLUMBIA LAW REVIEWwell as to gain power and prestige. 49 Thus, scholars argue, representatives areinfluenced by the political process and may use it for their personal benefit. 50Given politicians' reliance on discourse and their ability to be persuaded basedon the environment in which they govern, many view transparency as the mostefficient means 51 to reform our current "earmark nation.,,52 The requirementthat Members post their earmark requests on their websites, with an explanationof why it is a valuable use of taxpayer funds, is intended to allow full scrutiny bythe American public. 53 Thus, Members inappropriately using earmarked fundswill be exposed by the taxpayers, media, and other lawmakers who can easilyidentify what funds each politician requests. 54Transparency, it is thought, will tend to support a more objective allocation offunds. When earmark requests are posted for all to see on the Internet, Membersmay wish to use an impartial method or process for choosing all the projects theyagree to support. An objective procedure would be a constructive step in removingthe taint of pork barrel politics. 55 For example, a Member could decide toaccept only projects or programs that occur in his or her district and are run byorganizations located in the district. 56 Member instituted change, such as requiringcertain objective criteria for all earmark requests, would be a positive consequenceof transparency reforms.Freely available data on earmark requests and legislators' voting practices mayincrease competition among special interest groups, creating awareness about thestruggle for limited appropriations funds. 57 Members and special interest groupsalike will be forced to clarify and substantiate their goals, as well as prepare fortive process prescribed by Article I often produces conflict and friction, enhancing the prospects for afull and open discussion of matters of public import. ").49 Dan Shaviro, Beyond Public Choice and Public Interest: A Study of the Legislative Process asIllustrated by Tax Legislation in the 1980s, 139 U. PA. L. REv. 1, 66 (1990) ("Politicians are not onlyself-interested but narrowly so; they are literally for sale .... Good economic analysis takes people'spreferences as a given and asks what consequences follow from them. ").50 Cass R. Sunstein, Beyond the Republican Revival, 97 YALE LJ. 1539, 1550 (1988)("[D]eliberative processes are often undermined by intimidation, strategic and manipulative behavior,collective action problems, adaptive preferences, or most generally disparities in political influence.").51 Hoyer, supra note 45.52 Daniel Henninger, Earmark Nation, WALL ST. J., May 14,2009, at A15.53 Obey & Inouye, supra note 42.54 Although transparency requirements such as website posting and early public disclosureswere implemented for FY 2010 earmark requests by the House and Senate Appropriations Committee,Obey, supra note 42, some have called for further detail and transparency, such as a display onthe Members' websites with hyperlink text containing, among others, the word "earmark." H.R. Res.440, ll1th Congo § 18(4) (2009) (as of the writing of this Comment, the resolution is with the HouseCommittee on Rules and the Committee on Official Standards of Conduct).55 Memorandum from Kimberly Pulick on the Appropriations Process-Step by Step Guide 4(May 1,2009) (on file with author).56 Id. at 3-4.57 Kysar, supra note 2, at 531.

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 123oversight by other lawmakers. 58 Generally, it appears special interest groups opposethe public disclosure of their projects. When special interest tax provisionswere publicized in the Tax Reform Act of 1986, public outrage compelled theSenate Finance Committee to adopt rules against such special interestprovisions. 59 B. Transparency and BipartisanshipWhile many view transparency reforms as the most efficient way to promotedeliberation and conversation in the legislative process,60 it is possible that thenew requirements will actually hinder open exchange of information and bipartisanship.Despite President Obama's desire for joint efforts in Congress,61 transparencymay increase partisanship in the legislative process. 62 Becauselawmakers' earmark requests and voting history can be tracked in an open andtransparent system, lawmakers may not feel free to depart from earlier convictions,for fear of being known as a "flip-flopper.,,63 Also, politicians may be moreinclined to act according to the whims of public passions without regarding thetrue value of such impulses. 64 Lastly, the reforms, which reveal the voting historyof Members, may curtail logrolling, or the trading of votes by legislators to securepassage of measures important to each lawmaker. 65 This practice is not univer-58 Elizabeth Garrett, Harnessing Politics: The Dynamics of Offset Requirements in the Tax LegislativeProcess, 65 U. CHI. L. REV. 501, 503-04 (1998) (proposing the notion that the structure ofbudget rules in the tax arena encourages legislators to provide reasons for their decisions, thus increasingtheir accountability to the people).59 Lawrence Zelenak, Are Rifle Shot Transition Rules and Other Ad Hoc Tax Legislation Constitutional?,44 TAX L. REV. 563, 567 (1989) ("Members of the tax committees received numerousletters critical of the 1986 Act's ad hoc provisions after the Inquirer series appeared. A congressionalaide commented that '[t]he public outrage at the committee members has had a profoundly soberingeffect.' ").60 See Manning, supra note 48, at 709; Heninger, supra note 52, at A15.61 Liz Sidoti, Obama bipartisan push has mixed success, Apr. 24, 2009, http://www.msnbc.msn.comlidl30384993/.62 Cass R. Sunstein, The Law of Group Polarization (John M. Olin Law & Econ. WorkingPaper No. 91 (2d Series», available at http://papers.ssrn.comlpaper.taf?abstracCid-199668 (noting thepossibility that members of a political party may polarize as a result of internal discussions; partiallyexplaining party-line voting on this ground).63 Kysar, supra note 2, at 531.64 Adrian Vermeule, The Constitutional Law of Congressional Procedure, 77 U. CHI. L. REV.361,412 (2004) ("Transparency subjects public deliberation to reputational constraints: officials willstick to initial positions, once announced, for fear of appearing to vacillate or capitulate, and thiseffect will make deliberation more polarized and more partisan.").65 Paul M. Johnson, Logrolling: A Glossary of Political Terms, http://www.auburn.edul-johnspmlglosS/logrolling.

124 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWsally regarded as undesirable. 66 It can be viewed as a necessary process of deliberationand compromise leading to bipartisan support of legislation.The transparency of past voting records, earmarks, and even election promises,however, could allow interest groups to use the information to track whetherpoliticians fulfill promises. 67 In other words, the complete availability of suchinformation could provide interest groups with the opportunity to threatenlawmakers with electoral retaliation. 68 The collective power of these groups mayput them at an advantage over ordinary citizens, whose use of information gainedthrough transparency requirements is infinitely less potent. 69C. Post-transparency Reform EarmarkingPosting earmark requests on websites is an improvement to the previous systemof shrouding projects in layers of undisclosed paperwork. It does not, however,make it easy to assess Congressional earmarking as a whole or to makecomparisons among Members of Congress. It has been suggested that a fullysearchable database would assist the public in accessing this information. Althoughthere is a searchable database of earmarks maintained by the Office ofManagement and Budget (OMB),1o the design of its search engine makes it impossibleto search by Member. 71 Other organizations have created user-friendlydatabases for certain fiscal years' earmarks. 72 The Congress has easy access to allthe information for such a compilation and could certainly design a simpledatabase on its website. Alternatively, the existing OMB earmark database couldbe revamped, including a function to search by lawmaker name, and be linked tothe House and Senate websites. The posting of earmarks on Member websites ishelpful, but a comprehensive, searchable database would allow the public to researchand analyze information more efficiently.73Although many assume a correlation between special interest project spendingand inefficiency, earmarks may not reduce federal spending in the long term. 7466 Bob Cusack, Bipartisanship a likely cause of earmark reform, THE HILL, Feb. 15, 2006, at 4,available at http://thehill.com!homenews/newsl10321-bipartisanship-a-likely-casualty-of-earmarkreform.67 Manning, supra note 48, at 709; Heninger, supra note 52, at A15.68 Zelenak, supra note 59.69 Manning, supra note 48, at 709; Heninger, supra note 52, at A15.700MB, supra, note 8.71 Nicole Gaouette & Tom Hamburger, White House Posts Earmarks on Website, L.A. TIMES,Apr. 5, 2007, available at http://articles.latimes.coml2007/apr/05/nationlna-earmarks5?pg=1.72 See Earmark Search, http://php.app.comlearmarksl (last visited Sept. 18, 2009); Earmarks­LegisStorm, http://www.legistorm.comlearmarks.html (last visited Sept. 18, 2009).73 Gaouette & Hamburger, supra note 71.74 See John Fund, Earmark Cover-Up, Wall St. J., Mar. 26, 2007, at A14, available at http://www.opinionjoumal.comldiaryl?id:::::ll0009835 (Earmarks amounted to over sixty four billion dollars in2006, but a budget analysis group reports that reducing earmarks will not necessarily reduce spendingbecause federal and state agencies, instead of Congress will make such expenditures); BACK-

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 125Regardless of a possible connection, one should not underestimate the positivemessage earmark transparency conveys.75 It is an encouraging rejection of thenotion that special interests are privy to exclusive benefits, hidden by a lack ofrecords. 76 Thus, an increase in transparency may re-establish public confidencein the Congress, strengthening the democratic process. 77The best approach to appropriating funds to special interest projects may be tomaximize transparency and further routinize the earmark process,18 When theFounders gave Congress the "power of the purse" in the Constitution, their reasoningwas that accountability to local voters was the best safeguard for people'smoney,19 The notion that Congress should only fund what is in the President'sbudget is inconsistent with the Constitution. 80 Federal programs, as they standnow, use standard funding formulas and contracting rules, without much considerationfor the subtleties that are important to specific projects. 81 These programsmay, in actuality, be too slow to meet urgent, local needs; too rigid tosupport innovation; and too formulaic to finance a one-of-a-kind project. 82 Iftransparency can be assured, perhaps earmarks are the best way for elected officialsto exercise judgment and spend taxpayer funds on matters of local pressingconcern. 83III:PROPOSAL FOR A LAWMAKER'S PROCESS FOR EFFEcrIVERECOMMENDATION OF EARMARKSReform to earmark rules and procedures in the form of increased transparencyis essential to an honest appropriations process. However, eliminating scandaland abuse of power must come from the bottom up-beginning with the individualMembers of Congress who receive appropriations requests and choose to supportparticular earmarks. This Part proposes a general procedure for legislators 84to follow when deciding which earmarks to support. The method will shed lighton special interest projects that best serve a Member's constituents while simultaneouslypreserving his political associations. This Part also outlines a follow-upG ROUNDER: EARMARK REFORM, http://washingtonbudgetreport.comlArchives/B.earmarks.php (last visited Sept. 18, 2009).75 Kysar, supra note 2, at 533.76 Id.77 Id.78 Jonathan Rauch. Earmarks are a Model, Not a Menace, NAT'L J., Mar. 14,2009.79 Id.80 Id.81 Id. (Rep. Jim Moran of Virginia explains, "The problem with a lot of federal programs is thatthey have to take a cookie-cutter approach.").82 Id.83 Rauch, supra note 78.84 In Part III, "legislator," "lawmaker," "representative," and "Member" are used interchangeablyto refer to elected officials in both the House of Representatives and in the Senate.

126 UNIVERSITY OF TIlE DISTRlcr OF COLUMBIA LAW REviEWstrategy to maximize the Member's relationships with all who requested his orher earmark support.The procedure detailed in this Part arises from author's experience in 2009 asthe Legal Fellow for Appropriations for a Member of Congress. 85 The authorwas tasked with receiving all earmark requests, analyzing the proposals, and recommendingwhich projects the Member should support for the FY 2010 appropriationscycle. Of the thirty earmark requests the author recommended, all weresubmitted to the House Appropriations Committee for consideration.During the analysis of the numerous earmark requests, the author developed aprocess or method for determining which projects were likely to most benefit theMember's constituents. In devising a method for analysis, it became apparentthat an objective method, combined with the earmark transparency requirementsin place, would not only benefit the citizens of the district, but also strengthen theMember's relationships with constituents and other politicians alike. 86 The resultof a small sample of thirty requests indicates that the objective method of analyzingrequests shows great promise of providing desperately needed resources tothe people of the district while enabling Members to legislate openly andhonestly.Although Members are not mandated to follow a particular procedure whendeciding which earmarks to support, a repeatable analysis applied to every requestwill likely reveal the best special interest project proposals. Member supportof a special interest project is the result of an intricate web of lobbyistinfluence 87 , constituent voting trends 88 , partisan politics 89 , and campaign contributorrewards. 90 The recent transparency reform measures required full disclosureto any citizen with an interest and Internet connection. Despite the varying inter-85 The author participated in the Legislation Legal Clinic at the David A. Clarke School of Lawduring the Spring 2009 semester. The clinic places students in the offices of Members of Congress andthe District of Columbia Council as student attorneys, to provide counsel on legislative matters.86 The author met with lobbyists and representatives from requesting special interest organizations,developed criteria to analyze the large volume of information on each proposed project,researched and ensured compliance with transparency requirements, and revamped the applicationform earmark requesters must complete and submit to the Member. The author also created referencematerials, such as a sample agenda for future "town hall" informational meetings and a step-bystepguide to earmark request analysis, for the Member to use in future appropriations cycles.87 Bassett, supra note 2, at 1061.88 Christi Parsons, Senate OKs Tougher Ethics Bill 96-2, CHI. TRIB., Jan. 19,2007, at 4, availableat http://archives.chicagotribune.coml2007/janl19/news/chi-0701190128jan19 (the earmarks process isa longtime favorite way for lawmakers to fund projects at home in an effort to woo voters).89 Erik Engstrom & Georg Vanberg, The Politics of Congressional Earmarking (Dec. 24, 2007)(unpublished manuscript, on file with the UDClDCSL Law Review) available at http://papers.ssrn.cOInlsoI3/papers.cfm?abstracCid=1081654 (analyzing earmark data attached to appropriations legislationfor the lOOth Congress to demonstrate the crucial role political parties play in the allocation ofearmarks to individual Members).90 Bassett, supra note 2, at 1061.

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 127ests involved in an earmark, Members can use a repeatable method to generate alist of special interest projects that will best serve the constituency, maintain politicalrelationships, and uphold the highest ethical standards.A. The Earmarking Appraisal Method for Members of Congress1. TImelines to considerThe timeline of the Congressional appropriations process dictates when aMember may want to hold a meeting or establish deadlines. The closing date forMember earmark requests to their respective subcommittees is generally inApril, as the House Appropriations Committee begins reporting the bills in Mayor June. 91 The full House usually passes most of the twelve appropriations billsby July or the August recess.92 The Senate Appropriations Committee also reportsits bills to the Senate in Mayor June, with passage of most of the bills bythe full Senate beginning in July and continuing into the fall. 93 When Congressreturns in the fall, the committees are usually deeply involved in conferences betweenthe two bodies. 94 Little or no time is left before the beginning of the newfiscal year to resolve differences between the House and the Senate, and thenbetween Congress and the President. 95 Thus, Congress is usually faced with enactingone or more temporary continuing resolutions pending the final dispositionof the regular appropriations bills. 962. Notice to constituentsa. Town Hall meetingsFirst, the lawmaker should disseminate information about the earmark applicationprocess to as many potential constituent requesters as possible. 97 Membersmay hold Town Hall meetings in November or December to informconstituent groups of the process to apply for federal appropriations. 98 At thisTown Hall meeting, citizens of the district are able to ask questions about theprocess, which is foreign to many smaller or local non-profit organizations.Larger groups may be represented by professional lobbyists who are skilled in91 Sandy Streeter, CONGo REs. SERV., THE CONGRESSIONAL ApPROPRIATIONS PROCESS: ANINTRODUCTION, Dec. 2, 2008, at 5.92 [d.93 [d.94 [d.95 [d.96 Streeter, supra note 91, at 5.97 Pulick, supra note 55, at 1.98 Memorandum from Kimberly Pulick on Town Hall Meetings on Appropriations-Tips 1(May 1,2(09) (on file with author) (setting forth a time line and sample agenda to be used at town hallmeetings regarding appropriations and the process to request earmarks).

128 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWnavigating the appropriations process on the local or state level but are unfamiliarwith procedures on the federal level. The Town Hall provides an equal opportunityfor all those seeking earmarks from the Member to address their concerns.Copies of the legislator's earmark request form, required of each potential specialinterest project, may also be available at the Town Hall meeting. The content ofthe form is crucial in assisting the Member with the decision on which projects tosupport. The form should be as brief as possible while being thorough enough toaddress all aspects of the earmark request. 99 Some have expressed frustrationwith a formal earmark request form. loo However, the form is beneficial in providinga uniform way in which requesters can present details about their potentialspecial interest project. Although the form may be different than the one used bystate or local governments, requesters must be informed that it is not more difficultor complicated to complete. lolThe House and Senate Appropriations Committee Chairmen recently implementeda transparency requirement that Members publish on their website astatement of why each earmark request they support is a valuable use of taxpayerfunds. 102 Certainly, an item on the Member's earmark request form should callfor a one or two sentence explanation on why the proposed project is a valuableuse of taxpayer funds. lo3 Requiring organizations to literally spell out the objectivesof their program may seem elementary, but the thoughtful planning ultimatelyserves the constituents most effectively by preventing the true intent ofprograms from getting lost in translation.b. Meeting with individuaL requestersMembers should also willingly meet with special interest requesters to gain aworking knowledge of as many potential projects as possible. Although Americanshave had a negative view of the Congress because of their ties to lobbyists,special interests can provide valuable insight. 104 Interest groups may be able tooffer "expert opinions" to Members about the specific issues and the policy considerationstaking action. lOS This information gives lawmakers additional per-99 Id.100 Rauch, supra note 78 ("Imagine my shock when I got a staffer who insisted that I wouldhave to apply . .. for a pet project?").101 Pulick, supra note 98, at 3.102 Obey & Inoyue, supra note 42.103 Memorandum from Kimberly Pulick on Fiscal Year 2011 sample Appropriations Form(May 4, 2009) (on file with author) (sample appropriations form including questions necessary toascertain the most beneficial earmark requests).104 See THOMAS E. MANN & NORMAN J. ORNSTEIN, THE REFORM INST., RESTORING ORDER:PRACfICAL SOLUTIONS TO CONGRESSIONAL DYSFUNCTION 13 (2006) (recalling several scandals involvingthe "unseemly" relationship between lobbyists and Members of Congress).105 Bassett, supra note 2, at 1063.

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 129spectives and assists them in legislating. to6 Also, special interests may drawattention to legislative problems that would otherwise go unaddressed. 107 Theincrease of special interest groups and their lobbying on both sides of an issue willinherently "check" their power. lOB Their many perspectives, whether or not beneficialto the public interest, will assist the Member in understanding the full pictureand making an informed decision.c. Broad, public disseminationThe earmark request form should be disseminated publically beginning in December.The request form should be made available on the Member's websiteand in hard copy in all offices. An electronic version of the form should beemailed to all known non-profit organizations, cultural institutions, universities,and other groups in the district who may be interested in obtaining an earmarkfrom the Member. In the past, legislators favored special interest projects andrequested earmarks for those projects in exchange for money and support. I09Those practices, in addition to being a potential abuse of power and unethical,did not serve the constituents or the legislator most effectively. I to By soliciting asmany earmark proposals as possible, constituents are more likely to receive themost worthwhile programs and services available. In the process, the Member isforging relationships with the leaders of non-profit, social service, educational,and economic development organizations within his district. II ILastly, in seeking projects from such a diverse group of requesters, the Representativeavoids any potential for the appearance of impropriety and demonstratesto constituents that he has their best interest in mind. 112 The deadline forsubmission of the request forms should be set in mid-February. The six weeksremaining from the mid-February deadline until the cut off for Members to submitrequests to the Appropriations Committee is ample time to analyze all proposalsreceived and to make a final decision on which projects to send up to theCommittee.106 Id.107 David A. Strauss, What is the Goal of Campaign Finance Reform?, 1995 U. CHI. LEGAL F.141, 150.108 Bassett. supra note 2, at 1063.109 Fund. supra note 74, at A19 (stating earmarks have increased lobbying efforts).110 Id.111 See supra note 86 (the author, on behalf of the Member of Congress, opened and maintainedlines of communication. via personal meetings, telephone, and email conversations, with severalprominent organizations serving the district during the FY 2010 appropriations cycle).112 See David D. Kirkpatrick, Democrats Split Oil How Far to Go with Ethics Law, N.Y. TIMES,Nov. 19, 2006, § 1 at 1, available at http://www.nytimes.coml2006/U/19/washingtonlI9ethics.html(commenting the public perceives the relationship between politicians and special interests repletewith free gifts. meals, and travel).

130 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW3. Pre-determined criteria for earmark evaluationNext, the representative should thoroughly evaluate the project proposals received,using pre-determined criteria to assess the overall benefit to the mostconstituents. Abuse of power masked by the intricacies of the federal appropriationsprocess has highlighted the need for a reformed decision making process. l13Additionally, new transparency requirements and rules preventing "air-dropped"special interest projects will reveal improprieties as they occur.114 If a reformeddecision making process is not implemented, legislators may devise methods tocircumvent the rules, thereby continuing the current trend of "bridges to nowhere"or "teapot museums.,,1lSPreventing frivolous earmarks is possible through a replicable analysis performedon every earmark request. If a Member thoroughly and methodicallyanalyzes the merit of all requests and honestly recommends projects, currenttransparency reforms will serve simply as fail-safe back-up measures. 116a. Objective, bright line criteriaEach fiscal year, a federal legislator may receive thousands of earmark requeststotaling tens of millions of dollars. 117 A representative should first set oneor two objective, bright line criteria to reduce the amount of extraneous earmarkrequests received. Although there are no limits on monetary amount or numberof projects a Member may pass on to the Appropriations Committee, it is widelyrecognized on the Hill that approving every request received is not only ineffectivein serving the constituents but a poor political strategy.118 A means to reducethe volume of requests and to determine the most advantageous programs isto create one or two bright line requirements.One requirement a Member may enforce is that the project must serve theconstituents and have home offices or headquarters located in the district. 119Programs and projects located in the district not only directly benefit the constit-113 See Bassett, supra note 2, at 1061 (explaining that an earmark is unlike legislation in that itis not necessarily subject to a scrutinized vote).114 See Obey & Inoyue, supra note 42.115 Bassett, supra note 2, at 1081 (recalling the 2007 spending bill that passed without earmarksbut which ultimately funded special interest projects after legislators directly contacted federalagencies).116 See generally Pulick, supra note 55.117 Rauch, supra note 78, ("[Rep.] Moran told me that he will get a thousand earmark applicationsthis year. 'It actually goes up every year."').118 Kirstin Brost, Staff Member of House Appropriations Committee, Address on New PostingRequirement for Members' Earmark Requests (Mar. 2, 2009) (Ms. Brost recalled a Member whosupported all earmark requests received for FY 2009. The Member was subjected to intense mediascrutiny for his "rubber stamping" and inefficiency).119 Pulick, supra note 55, at 3-4.

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 131uents but will most likely have the strongest ties to the community.120 However,if adopted, exceptions to this rule may be made when a project serves a substantialnumber of people in the district but the organization's headquarters are notphysically located within the boundary.121 For example, a youth program providingafter school and summer activities to over 20,000 public school children willmost likely receive a Member's support, despite having offices in a neighboringdistrict. 122One or two defining, objective requirements not only serve the constituentsmost positively, but would provide understandable and plausible explanations forwhy certain proposals are declined. 123 Such requirements would assist the Memberin paring down the consistently overwhelming volume of earmark requests,thus generating a more manageable group of worthwhile projects. Once there isa workable amount of special interest project proposals, the legislator can furtheranalyze their merits and recommend the most beneficial earmarks to the AppropriationsCommittee.b. Analysis of congressional district socioeconomicsIn addition to the bright line criteria set forth above, a Member should nextanalyze the socioeconomics of his congressional district to assess which earmarkproject proposals will best serve his constituents. Although this type of investigationmay seem fundamental, it seems some Members in recent years have chosento disregard the information such examination yields, overlooking valuable informationon the needs of their constituents. 124 For the past five years, an influx oflegislators have awarded earmarked funds based on political or personal preferences,rather than for constituent benefit. 125 Corrupt legislators are subject toscrutiny for their seemingly unabashed political favoritism and lack of regard forthe best interest of their district residents. 126 A thorough review of thesocioeconomics in a district will improve a Member's ability to act effectively forthe benefit of constituents.120 See generally id.121 {d.122 {d. (citing a Member who recommended a non-profit organization located outside of thedistrict for a FY 2010 earmark).123 Pulick, supra note 55, at 3-4.124 See Bassett, supra note 2, at 1061 ("Earmarks ... are also viewed as a method to rewardcampaign contributors").125 See Mann & Ornstein, supra note 104, at 13 (discussing Congressional scandals involvingbribery and inappropriate lobbyist influence).126 See id.

132 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWAn ideal Member has a unique understanding of where and to whomearmarked money should be directed. 127 Representatives have close contact withthe cultures, problems, and needs of communities. 128 Such knowledge informsthem of what programs and projects would best serve the people. 129 For example,a representative in an urban, socioeconomically diverse district will likelyrequest earmarks for African American, Asian American, Jewish, and CaribbeanAmerican social service organizations. 13o By understanding the wide-rangingneeds of the district, the representative will not only serve his constituents successfully,but strengthen ties and create a cohesive force with various groups inhis district.Constituents benefit most when a Member seriously considers the socioeconomiccondition of the district and supports special interest projects accordingly.Additionally, a legislator's relationship with his constituents also benefits, as theresidents appreciate a lawmaker who seeks to serve all those in the district, notjust his friends or political allies.4. Maximize the probability of funding through language analysisLastly, the Member should carefully review the plain language of the proposalshe intends to recommend to the Appropriations Committee so as to maximizethe probability of receiving funding.Every earmark request from a representative must be submitted to one of thetwelve Appropriations Subcommittees for consideration and possible inclusion inthat subcommittee's bill.131 Each subcommittee has jurisdiction to appropriatefunds to various federal agencies, such as the Department of Agriculture(U.S.D.A.).132 For example, an earmark request to inspect plants for invasiveenvironmental pests at various entry points would be submitted to the Agriculture,Rural Development, Food and Drug Administration Appropriations Subcommittee.133Since the Subcommittee has jurisdiction over the U.S.D.A., thefunding for the plant inspection program would be appropriated from monies127 Jill Zuckman, House Cools on Lobbying Reform, CHI TRIO., Feb. 21, 2006, § 1, at 3 ("supporterssay no one knows districts as well as their representatives, so it makes sense for them to directmoney to important projects there").128 See generally id.129 [d.130 Pulick, supra note 55, at 4.131 Streeter, supra note 91, at 5.132 Subcommittee on Agriculture, Rural Development, Food and Drug Administration, andRelated Agencies, http://appropriations.house.gov/Subcommittees/sub_ardf.shtmI (last visited Sept.20,2009).133 Letter from Rep. Joe Baca to Chairman Obey and Ranking Member Lewis (Mar. 19,2008),hUp:llappropriations.house.gov/Subcommiueeslsub_ardf.shtmI (follow "FY 2009 Earmark CertificationLetters" hyperlink).

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 133allocated to that agency.134 In order to ensure a request is submitted to the mostappropriate subcommittee, and therefore subject to a higher degree of success, aMember should scrutinize the language of every appropriation request received.There are no limits on how many proposals can be submitted to each Subcommittee.135 However, it is understood that competition is keen for funding certaintypes of projects, such as those under the jurisdiction of the LaborlHealth andHuman Services/Education (L/HHS/Ed) Subcommittee. 136 Although many ofthe L/HHS/Ed earmark requests (generally comprised of social service programs,after school programs, and health services) are worthwhile, several thousand similarprograms will be vying for the same funds}37 The Member's options arelimited: recommend the project to the already congested L/HHS/Ed Subcommittee;do not recommend the project; or examine the project closely, keeping inmind the possibility that it may be in the jurisdiction of another bill. By carefullyreviewing the substance of the proposed project, the representative may concludethat either 1) the requesting organization submitted the request to an incorrectsubcommittee, or 2) the project is well within the parameters of another bill.Many times the organization requesting the earmark inadvertently misrepresentsthe Subcommittee of jurisdiction on the Member's earmark requestform. 138 Members and their staff are in the best position to research the agenciesunder each Subcommittee's jurisdiction and gain thorough comprehension ofeach earmark request. Likewise, the knowledge of jurisdictional issues and thesubject matter of the earmark request allows the Member and staff to recognizethese mistakes. Legislators who submit earmark requests to the wrong Subcommitteeare subject to professional embarrassment and reprimand by the Subcommitteechairperson. 139 Accordingly, Members should be intently attuned to thelanguage used in each request they endorse.Close examination of the language of earmark requests may prove beneficialwhen the request falls under the jurisdiction of a less "in demand" Subcommittee.For example, an afterschool program for youth may be initially considered a U134 See Subcommittee on Agriculture, Rural Development, Food and Drug Administration,and Related Agencies, supra note 132; see also HOUSE AND SENATE EARMARK R&D FUNDS INUSDA, NASA, AND DOE BUDGETS. www.aaas.orglspp/rd/earmark.pdf (2009) (FY2002 U.S.D.A.earmarks included $91 million for more than 150 itemized extramural research projects).135 See Brost, supra note 118 (explaining that although there are no restrictions on how manyearmark requests a Member can recommend to the House Appropriations Committee, recommendingall requests received is ineffective and a poor political strategy).136 Eastern Michigan University, Federal Earmarks Program FY 2009 Guide, 2, http://www.ord.emich.edU/fundinglspecial_opp/fed_earmarks.html (follow "Federal Earmarks Program FY2009Guidelines" link) (emphasizing the competitive nature of earmarks for academic institutions).137 Subcommittee on Labor, Health and Human Services, Education, and Related Agencies,http://appropriations.house.gov/Subcommittees/sub_lhhse.shtml (last visited Sept. 20, 2009) (see "Jurisdiction"section).138 Pulick, supra note 55. at 2.139 Id. at 3.

134 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWHHSlEd earmark, under the purview of the Department of Education. 14o The UHHSlEd Subcommittee has historically received a large number of requests for aproportionally smaller amount of available funds, resulting in many unsuccessfulrequests. If, for example, a Member identifies a request for an afterschool programfor disadvantaged youth, closer inspection may reveal that the same requestalso falls under the jurisdiction of the Commerce/Justice/Science (C/J/S) Subcommittee.141 Department of Justice programs are appropriated funds through theClJ/S Subcommittee. 142 Byrne discretionary grants, administered by the JusticeDepartment, fund juvenile justice initiatives. 143 Depending on the specifics ofthe request, the above hypothetical afterschool program for disadvantaged youthmay be considered preventative measure against juvenile delinquency, thus fallingunder the jurisdiction of the slightly less occupied C/J/S Subcommittee. Competitionis keen for any earmarked monies, let alone for the limited funds allottedto the social services projects vital to the well being of communities. l44 A thoroughreview of the language of an earmark request would guarantee properplacement and yield a higher likelihood of success by avoiding "in demand"Subcommittees.When Members have a comprehensive knowledge of the particular earmarkrequests recommended to the Appropriations Subcommittees, they are betterequipped to advocate on behalf of their constituents for the needed funds. Acareful survey of the language used in each request will ensure the legislator refersthe earmark to the correct and most advantageous Subcommittee. With thecurrent transparency measures in place, in-depth knowledge of the earmarks recommendedis also necessary when faced with questions from constituents, otherpoliticians, or the media. 145B. After Action Report: Following up with Successful andUnsuccessful RequestersThe decision whether to support an earmark proposal does not signify the endof the relationship between the requester and the Member. After the Membersubmits the list of earmarks to the Appropriations Committee, the Member140 Subcommittee on Labor, Health and Human Services, Education, and Related Agencies,supra note 137 (Department of Education is under the jurisdiction of the UHHSlEd AppropriationsSubcommittee ).141 Wesley D. Bizzell, Congressional Earmarks Are More Than Just Pork, CoRREcrIONS To.DAY, October 2004, at 28 (OJ/S appropriations provide funds to fight crime, enhance drug enforcement,and meet the needs of at risk youths).142 [d.143 EDWARD BYRNE MEMORIAL COMPETITIVE GRANT PROGRAM: NATIONAL INITIATIVES,(2008) http://www.ojp.usdoj.govIBJAIgrantl08BymeFAQ.pdf.144 See Bizzell, supra note 141, at 2.145 See Garrett, supra note 58, at 503-04 (transparency rules force legislators to clarify theirgoals).

BRINGING HOME THE BACON: A TWO-PRONGED APPROACH 135should contact all organizations that submitted project proposals as soon as possible.Reconnecting with all requesters is universally advantageous and opens linesof communication between the lawmaker and those involved in worthwhile, district-specificprojects. 146a. Successful requestersCongresspersons should contact requesters whose earmarks they supported.The organizations will be pleased to know their representative in Washington isworking diligently on their behalf. The support will lend credence to the worthwhiledistrict-specific project and will ideally attract sponsors and others interestedin helping the constituents. Even if the earmark is removed from theappropriations bill, the legislator can make a persuasive argument to the constituentsthat they "fought the good fight" and claim a semblance of credit for theirefforts. 147The Member would also benefit from renewing and reinforcing their relationshipwith the organization and its constituent beneficiaries. Earmarks are requestedonce a year-an opportune time for representatives to routinely createand renew ties with the valuable nonprofit, educational, and social service groupsin his district.b. Unsuccessful requestersMembers of Congress should make an effort to connect with those organizationswhose special interest projects are meaningful but could not be endorsed.An explanation as to why the earmark was not successful could go a long way inmaintaining a working relationship with the group. For example, a non-profitAIDS prevention organization in a neighboring district would most likely understandthe Member's lack of endorsement if the Member simply explains that it ishis policy to only support earmarks of groups located within his district. 148 Manynon-profit groups report difficulties with navigating the federal grant applicationsystem 149 and direct feedback from the Member would actively address this issue.146 Bassett, supra note 2, at 1085 (increased availability to information will "empower voters touse their vote effectively").147 Engstrom & Vanberg, supra note 89, at 10 (stressing the significance of "credit claiming"opportunities for Members).148 Pulick, supra note 55, at 3.149 U.S. GOV'T ACCOUNTABILITY OFFICE, GRANTS MANAGEMENT GRANTS.GOV HAS SyS­TEMIC WEAKNESSES THAT REQUIRE ATfENTION 15, 17 (2009) (reporting the Grants.gov system limitingthe ability to submit timely and complete applications and instances of applicants experiencingdifficulties with Contact Center employees). See also Jill R. Aitoro, GAO: Grant application portallittered with technical problems, NEXTGOV, Jul. 16, 2009, http://www.nextgov.comlnextgov/n~20090716_7363.php (quoting Barbara Pisaro Clark, assistant secretary for legislation at the Departmentof Heath and Human Services, who emphasized the need for standard procedures across thefederal government for grant application).

136 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWThe legislator's staff is well positioned to conduct research and supply organizationswith a brief list of federal funds they are eligible to apply for.The implementation of a required follow-up letter to prospective organizations,in conjunction with relating basic grant opportunity research, would havevery positive consequences. The non-profit, located in an adjacent district, willrecognize the Member's dedication to social services for all citizens. The informationon grants will help groups expand their funding options, perhaps lesseningtheir reliance on earmarks to cover their operating costs.CONCLUSIONTransparency reforms are positive for both constituents and the lawmakersthat represent them. Freely available information on the types of special interestprojects Members of Congress are requesting be funded not only holds the legislatoraccountable for their actions but also ensures the most worthwhile programsare parsed, considered, and made available to citizens. Such transparency checksshould remain a prominent and permanent facet of the legislative earmarkingprocess. However, following an easily replicable routine, such as an analysis ofthe factors discussed in this Comment, will bring bacon home to the programsand services that need it most. Additionally, legislators will enhance relationshipswith a diverse group of organizations by providing an open dialogue aboutthe specifics of earmark possibilities.Despite its generally poor reputation of corruption and waste, pork barrelmonies are a vital source of funding for many social service and nonprofit organizationsserving the nation's poor, hungry, and uneducated. Implementing a decisionmaking method, such as the process suggested in this Comment, will revealthe most needed projects in a district while strengthening a lawmaker's relationshipswith the people. Similarly, maintaining, or potentially increasing, the transparencyrules in Congress will provide a check on politicians so as to ensure theyare allocating taxpayer money most efficiently. Although reform of the earmarkprocess will likely take some time, this comprehensive two-prong approach toearmarking is pragmatic, will bring home the bacon and distribute it mostequitably.

APPEALING TO THE LEGISLATURE: A COMPARATIVEANALYSIS OF THE GEORGIA STATUTES REGARDINGEVIDENCE PRESERVATION AND ACCESS TOPOST-CONVICTION DNA TESTINGJoy D. Aceves-Amaya*A right of access to evidence for tests which, given the particular crimefor which the individual was convicted and the evidence that was offered bythe government at trial in support of the defendant's guilt, could prove beyondany doubt that the individual in fact did not commit the crime, is constitutionallyrequired, I believe, as a matter of basic fairness. 1DNA evidence testing is the leading cause of exonerations in criminal casesthroughout the United States. 2 Yet, without the preservation of evidence in thesecases and the ability to subject this evidence to advancing technology in DNAtesting, many claims of innocence go unheard and defendants remain incarceratedwhile the real perpetrators of crime go unpunished.As of September 2009, seven Georgia men have been exonerated by postconvictionDNA testing. 3 Such exonerations should be considered "victories forour criminal justice system: they free the innocent, correct miscarriages of justicethat undermine public confidence in our criminal justice system, and allow thepursuit of the real perpetrators of heinous crimes to commence.,,4 The purpose ofthis paper is to offer a comparative analysis of Georgia's current evidence preservationand post-conviction DNA testing statutes with a model policy offered by* J.D. Candidate 2010, University of the District of Columbia David A. Clarke School of Law.Ms. Aceves-Amaya, Articles Editor of the University of the District of Columbia David ClarkeSchool of Law Law Review, would like to thank John Terzano, Adjunct Professor of Law, Universityof the District of Columbia David A. Clarke School of Law and President, The Justice Project, forinstructing the next generation of attorneys on how to avoid wrongful convictions. The author alsowishes to thank the committed attorneys of the Atlanta Circuit Public Defender's Office for theirencouragement as well as Emilio Aceves-Amaya for his unwavering support.1 Harvey v. Horan, 285 F.3d 298, 315 (4th Cir. 2002) (Luttig, J., respecting the denial of rehearingen banc).2 Samuel L. Gross et aI., Exonerations in the United States: 1989 through 2003, 95 J. CRIM. L. &CRIMINOLOGY 523, 524 (2005).3 The Innocence Project, Georgia Exonerations, http://www.innocenceproject.orglnews/state.php?state=GA (last visited Nov. 28, 2(08) (the exonerated individuals are: Calvin Johnson (1999);Douglas Echols (2002); Samuel Scott (2002); Clarence Harrison (2004); Robert Clark (2005). WillieWilliams (2007) and John Jerome White (2007».4 Rachel Steinbeck, The Fight for Post-Conviction DNA Testing L'I Not Over Yet: An Analysis ofthe Eight Remaining "Holdout States" and Suggestions for Strategies to Bring Vital Relief 10 the WrongfullyConvicted, 98 J. CRIM. L. & CRIMINOLOGY 329, 332 (2007).

138 UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEWThe Justice Project, a bi-partisan criminal justice reform organization. s The additionalprovisions advocated by the policy model not only protect criminal defendantsfrom wrongful incarceration, but also allows law enforcement agencies andprosecutors an increased time frame to pursue unsolved homicides and other violentcrimes. Many of these unsolved crimes are the result of the positive outcomesof post-conviction DNA testing in innocence claims. 6By offering this comparison, the hope is to encourage the General Assemblyto consider additional statutory provisions designed to ensure that wrongful convictionsand claims of innocence are promptly addressed in Georgia's legal system;thus enabling law enforcement agencies and prosecutors to locate andconvict those truly responsible for the crimes for which others may beincarcerated.I. INTRODUCTIONIn 2003, Georgia was on the forefront of enacting legislation regarding evidencepreservation and procedures for access to post-conviction DNA testing?The legislation was enacted on the heels of the exonerations of three Georgiamen. s As of February 2003, 114 men nationwide had been released after DNAtesting absolved them of their crimes. Lieutenant Governor Mark Taylor andSenator David Adelman, in cooperation with the Prosecuting Attorneys' Council,the Georgia Bureau of Investigation (GBI), the Georgia Innocence Project (GIP)and the Georgia Association of Criminal Defense Attorneys (GACDL), introducedSB 119 to allow Georgia law to keep pace with technological advances inDNA testing and "insure that innocent people are not kept in prison for serious5 The Justice Project lobbies for reforms on both the national and state level addressing significantflaws in the American criminal justice system, as well as works to increase public awareness ofneeded reforms.6 News Advisory, The U.S. Attorney's Office for the Northern District of Georgia, Departmentof Justice Helps With "Cold Cases" in Georgia (Apr. 30, 2005), http://www.usdoj.gov/usao/gan/pressl2005/04-30-2005.html (in 2005, the District Attorney's Office in Fulton County, Georgia received$714,150 from the Department of Justice, part of President Bush's DNA initiative, Advancing JusticeThrough DNA Technology, to help solve old, unsolved "cold" cases and to identify the missing usingDNA evidence).7 See GA. CODE ANN. § 17-5-55 (2009) (custody of evidence in criminal cases); § 17-5-56 (2009)(preservation of evidence collected at crime scenes); § 17-5-71 (2009) (specific to evidence in sexualassault cases); § 5-5-41(c) (2009) (motion for performance of forensic deoxyribonucleic acid (DNA)testing).8 Melissa Rife, Searches and Seizures: Provide Extraordinary Appeals and Motions for NewTrial Based on Request for DNA Testing and Analysis; Establish Procedures for Preservation of Evidence,20 GA. ST. U. L. REV. 119-20 (2003) (the men exonerated before the proposed statutes wereCalvin Johnson (1999), Douglas Echols (2002), and Samuel Scott (2002».

POST-CONVICfION DNA & PRESERVATION OF EVIDENCE 139crimes they did not commit.,,9 The bill enjoyed the broadest support ever encounteredfor a criminal law-related statute in Georgia. 10II. PRESERVATION OF EVIDENCEEvery jurisdiction has an administrative policy or practice regarding the collectionand storage of evidence collected by the government in criminal cases; however,few states mandate the preservation of evidence. 11 As of August 2009, onlytwenty-six states, as well as the District of Columbia and the federal government,compel the preservation of evidence in criminal cases. 12A. Exonerations Made Possible by Evidence PreservationLuckily for Calvin Johnson, the first defendant exonerated by DNA evidencein Georgia after serving sixteen years of a life sentence for rape, the evidence inhis case was retained past the time period allowed by the statute currently inplace. 13 Johnson was convicted of rape in Cobb County in 1983. 14 He made amotion for a new trial that was denied in 1984 and his conviction was affirmed in1989. 15 In 1994, Johnson made an extraordinary motion for a new trial in order toobtain the rape kit so that DNA testing could be conducted. 16In 1997, a laboratory analyzed the samples it received; however, the testingappeared not to be relevant to establishing the identity of the perpetrator. 17 ForensicScience Associates, an independent laboratory, later conducted PCRbasedDNA testing on a swab and ~lides from the rape kit and issued a reportthat concluded that Johnson was not the source of the material. 18 A judge ordereda new trial for Johnson in 1999 and the district attorney dropped all9 Id. at 119.10 Id. at 120 (SB 119 was passed unanimously by both the Senate and the House ofRepresentatives).11 Cynthia Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological EvidenceUnder Innocence Protection Statutes, 42 AM. CRIM. L. REV. 1239, 1242-44 (2005).12 Innocence Project, Fact Sheet: Preservation of Evidence, http://www.innocenceproject.org/Contentl253.php (last visited Sept. 25, 2009) (the 26 states are: Arkansas, Arizona, California, Colorado,Connecticut, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maryland, Michigan,Minnesota, Missouri, Nebraska, New Hampshire, New Mexico, North Carolina, Oklahoma,Rhode Island, South Carolina, Texas, Virginia, and Wisconsin). See also D.C. Code § 5-113.32 (2009);The Innocence Protection Act of 2004, 18 U.S.c.A. § 3600A (2009).13 Kathy Lohr, Exonerated Prisoners Adjust to Life on the Outside (Feb. 27, 2007), http://www.npr.orgitemplates/storylstory.php?storyId=7567797.14 Id.15 Innocence Project, Georgia Exonerations: Calvin Johnson, http://www.innocenceproject.org/Contentl186.php (last visited Sept. 25, 2009).16 Id.17 Id.18 Id.

140 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWcharges after reviewing the test results. 19 However, at any point between 1989and 1994, due to the window of time between his direct appeal and post-convictionmotions, the evidence in Johnson's case could have been rightfully destroyedby the custodian and an innocent man would remain incarcerated today.Likewise, in 1987, Clarence Harrison was convicted of rape and sentenced tolife in prison; yet he consistently maintained his innocence,z° In 1988, at the requestof the public defender's office, slides from the rape kit were sent to a commerciallaboratoryfor DNA analysis. However, the lab was unable to performadequate testing on the slides due to the limited technology available at thattime. 21In 2003, when the Georgia Innocence Project (GIP) assigned two law studentsto investigate his case, DeKalb County officials informed the interns that all ofthe evidence in Mr. Harrison's case had been destroyed. 22 In a last ditch attemptto locate evidence, the interns combed through the box containing his case materialsand eventually found a single slide of the rapist's semen from the victim'srape kit.23 Testing at an independent laboratory excluded Harrison as the perpetratorand a court later dismissed the charges. 24 Without the persistence of unpaidlaw students, Mr. Harrison would remain wrongfully incarcerated becausehis evidence had been officially destroyed.B. Comparison of Georgia Statutes to the Model PolicyIn order to ensure that defendants are provided access to the evidence used intheir convictions for use in post-conviction remedies, the model policy suggeststhat states devise standards regarding custody of evidence in criminal cases, providefor sanctions and remedies when evidence is destroyed in violation of statutoryprovisions, and require the preservation of biological evidence throughout adefendant's sentence. 2519 Innocence Project, Georgia Exonerations: Calvin Johnson, http://www.innocenceproject.org/ContentJl86.php (last visited Sept. 25, 2009).20 Hans Sherrer, Innocent Georgia Man Exonerated of Rape, Kidnapping and Robbery After 17Years Imprisonment, 28 JUSTICE: DENIED 18 (2005).21 Innocence Project, Georgia Exonerations: Clarence Harrison, http://www.innocenceproject.org/ContentJ173.php (last visited Sept. 25, 2009).22 Hans Sherrer, Innocent Georgia Man Exonerated of Rape, Kidnapping and Robbery After 17Years Imprisonment, 28 JUSTICE: DENIED 18 (2005).23 Id.24 Id.25 THE JUSTICE PROJECT, IMPROVING ACCESS TO POST-CONVICTION DNA TESTING: A POLICYREVIEW 23 (2008) [hereinafter JUSTICE PROJECT].

POST-CONVICfION DNA & PRESERVATION OF EVIDENCE 1411. Custody and Control of EvidenceThe policy model suggests that, in addition to custodial requirements, standardsrelating to the proper collection and retention of evidence as well as trainingprograms should be addressed by the legislature. 26 Georgia law currentlyprescribes the chain of custody required for physical evidence in criminal cases.Specifically it mandates that the court designate a custodian of any property introducedinto evidence during the pendency of a case and requires that an evidencelog be created and maintained in order to establish a verifiable chain ofcustody.27 The current statutes also allow for the appointed custodian to storeand maintain the evidence. 28Storage and collection methods are not addressed by the current statutes. Issuesrelated to storage and preservation are addressed by the internal regulationsor policies of independent agencies within the criminal justice system. However,evidence custodians should be statutorily required to ensure that the evidence isidentified, cataloged, preserved and stored under appropriate conditions by individualswith specialized training in preservation techniques. The custodiansshould also ensure that evidence is readily available when requested. 292. Enforcement ProvisionsDestruction by governmental custodians creates a roadblock to the use ofDNA evidence in solving cold cases and exonerating the innocent. The U.S. SupremeCourt has stated that if evidence is "destroyed ... in good faith and inaccord with ... normal practices, it would be clear that their destruction did notconstitute an impermissible destruction of evidence nor deprive petitioner of anyright. ,,30 As late as 2004, the Court continued this reasoning when it upheld acriminal conviction where evidence had been destroyed after ten years in policepossession. 31 Therefore, defendants seeking access to evidence face an insurmountableburden in establishing the "bad faith" showing necessary for appropriaterelief if the evidence is unavailable for DNA testing due to its destruction or26 [d.27 GA. CODE ANN. § 17-5-55(a) (2009).28 [d. (The statute specifically states that "the judge shall designate the clerk of court, the prosecutingattorney, or the law enforcement agency involved in prosecuting the case ... to store theevidence").29 JUSTICE PROJECf, supra note 25, at 22 (the model policy specifically recommends that astatewide task force composed of legislators. prosecutors. defense attorneys, judges, academicians,representatives of the GBI, and property clerks association be appointed to devise uniform custodial,collection and training standards).30 California v. Trombetta, 467 U.S. 479, 487 (1984) (citing Killian v. United States, 368 U.S.231, 242 (1961». See also Arizona v. Youngblood, 488 U.S. 51 (1988) (reasoning there is no dueprocess violation for failure to preserve exculpatory evidence in the absence of a showing of "badfaith" by the State).31 lIIinois v. Fisher, 540 U.S. 544 (2004).

142 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWloss. While Georgia has made great strides in protecting the rights of defendantsby mandating the preservation of evidence in criminal cases, Georgia courts haveconsistently complied with only those protections dictated by the federal courtsregarding constitutional due process violations relative to evidencepreservation. 32On one occasion, the Georgia Supreme Court has taken the opportunity toremind custodians of their statutory duties. 33 However, in all cases but one, nosanctions have been imposed by Georgia appellate courts due to the state's failureto preserve evidence in criminal cases. 34 Additionally, the statutes faciallycontain no enforcement provision. This leaves a myriad of local jurisdictions, lawenforcement agencies and varied evidence custodians wide discretion regardingthe preservation of evidence. 35Enforcement provisions, including criminal sanctions, should be specifically includedin the statute to act as a deterrent to the premature disposal of evidencethat prevents continued access to law enforcement agencies as well as the adjudicationof innocence claims. 363. Time Periods for PreservationGiven the length of time involved in post-conviction proceedings, especiallythose seeking extraordinary remedies, evidence may be rightfully destroyed bylaw enforcement agencies and crime laboratories, leaving innocent defendantswithout recourse and ihe real perpetrators unanswerable for their crimes. 37 Withmore than 242 exonerations nationwide and advances in forensic and DNA tech-32 Lockheart v. State, 663 S.E.2d 213 (Ga. App. 2(08) (citing Illinois v. Fisher, 540 U.S. 544, 547(2004); Arizona v. Youngblood, 488 U.S. 51 (1988»; Blackwood v. State, 627 S.E.2d 907 (Ga. App.2006) (citing Arizona v. Youngblood, 488 U.S. 51 (1988»; Champion v. State, 579 S.E.2d 35 (Ga. App.2003) (citing Jones v. State, 574 S.E.2d 359, 360 (Ga. App. 2002) ("[i]n dealing with the failure of thestate to preserve evidence which might have exonerated the defendant, a court must determine bothwhether the evidence was material and whether the police acted in bad faith in failing to preserve theevidence").33 In Phillips v. State, 604 S.E.2d 520, 529 n.6 (Ga. App. 2004), the Court opined: "We take thisopportunity to remind trial courts, clerks of court, law enforcement agencies, and other records' custodiansacross the state of their important statutory duties regarding preservation of evidence."34 No sanctions have been granted in felony cases. The one exception to the imposition ofsanctions was a misdemeanor DUI case in which a urine sample was destroyed by the state crimelaboratory after notification that defendant has exerted his right to independent testing of the sample.Given that the urine sample was the only evidence against the defendant, the trial court dismissed thecharges and the dismissal was affirmed by the Court of Appeals of Georgia. See State v. Blackwell,537 S.E.2d 457 (Ga. App. 2000).35 Under Georgia law, the crime of tampering with evidence prevents a person from obstructingthe prosecution or defense of any person by knowingly destroying or concealing physicalevidence. GA. CODE ANN. § 16-10-94 (2001) (emphasis added).36 JUSTICE PROJECT, supra note 25, at 23, 2537 Innocence Project, Fact Sheets: Facts on Post-Conviction DNA Exonerations, available athttp://www.innocenceproject.orglContentl351.php (last visited Sept. 25, 2009). The Innocence Project,

POST-CONVICTION DNA & PRESERVATION OF EVIDENCE 143nology improving at a rapid pace, the preservation of evidence is of major importanceto ensuring a fair and equitable criminal justice system.3 8The current statute mandates that evidence in death penalty cases be maintaineduntil the sentence is carried out; however, evidence relating to othersentences need only be preserved until ten years after judgment in the case isfinal or ten years after May 27, 2003, whichever is later. 39 Additionally, defendantsmay apply to the court of conviction for an order preserving evidence beyondthe time period specified, provided the defendant is a party to anextraordinary motion or habeas corpus action. 40 However, this request for additionaltime may only be extended until judgments in the above-noted actions arefinal. 41 Evidence in sexual assault cases must be maintained for ten years afterthe report of the alleged sexual assault. 42The average time spent in prison for the seven Georgia men later exoneratedthrough DNA testing was sixteen years, with multi-year lapses between pendingappeals - time counted as "final judgment" in the eyes of Georgia law. 43 Therefore,the time limitations for preservation of evidence in non-death penalty casesshould be extended to include all felonies and preservation should be mandateduntil completion of the defendant's sentence, including probation, parole and sexoffender registration. Evidence preservation until sentence completion is especiallyimportant given Georgia's restrictive statutory requirements for sex offenderregistration, limited residential choices for all defendants convicted of asex-based offense, as well as lifetime registration requirements for some sexbasedoffenders. 44 4. Conviction StatusThe policy model recommends that evidence be preserved throughout a defendant'ssentence, regardless of the nature of the crime. 45 Georgia currently mandatesthat preservation of evidence is required only in defined "serious violentfelonies," specifically: murder, felony murder, armed robbery, kidnapping, rape,whose clients have normally exhausted all available avenues of relief, states they have closed twentytwopercent of accepted cases since 2004 due to lost or missing evidence.38 Id.39 GA. CODE ANN. § 17-5-56(b) (2009).40 GA. CODE ANN. § 17-5-55(c) (2009). The statutory scheme relating to appeals considers allmotions more than 30 days after a judgment by the trial court as "extraordinary motions." See GA.CODE ANN. § 5-5-41(b) (2009).41 GA. CODE ANN. § 5-5-41(b) (2009).42 GA. CODE ANN. § 17-5-71(a) (2009).43 The Georgia Supreme Court has defined final judgment as "[when] the case is no longerpending in the court below" and no motions for appeal are pending. State v. Clark, 615 S.E.2d 143(Ga. App. 2005). See also GA. CODE ANN. § 5-6-34(a)(1).44 See GA. CODE ANN. § 42-1-12(a), (e); § 42-1-14(e); § 42-1-15(a), (c) (2009).45 JUSTICE PROJECT, supra note 25, at 3, 25

144 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWstatutory rape, bestiality, aggravated and non-aggravated child molestation, sodomyand sexual battery.46However, many criminal defendants are convicted of other non-enumeratedfelony offenses and these defendants should be afforded a reasonable opportunityto prove their innocence of the crime for which they were convicted. 47 Thisreasoning also applies to those convicted of sex-based misdemeanors for whichthere may be significant collateral consequences. 48III. ACCESS TO POST CONVICTION DNA TESTINGA Florida state legislator recently said, "An innocent person in prison is thegreatest nightmare of those working within the criminal justice system.,,49 Of theindividuals who have been exonerated through post-conviction DNA testing, seventeenof them served time on death row. 50 The model policy proposes thatstates enact legislation prescribing that post-conviction testing be available to alldefendants asserting claims of innocence and that counsel be appointed for defendantsseeking post-conviction testing. Furthermore it proposes that courts allowreasonable conditions regarding choice of laboratories, determine fundingsources for testing by indigent defendants, allow for appeal from denials of testing,and mandate procedures following the return of test results favorable to thepetitioner. 51A. Availability of Post-Conviction TestingThe policy model proposes that all persons who assert they did not commit thecrime for which they are currently under sentence be granted access to post-con-46 GA. CODE ANN. § 17-5-56(b) (2009).47 In a recent case, a defendant was convicted of incest; however, the defendant claimed thathad DNA testing been allowed, it would have shown that he and the victim were not related by bloodor marriage as required by the statute. Hunter v. State, 669 S.E.2d 533 (Ga. App. 2008). See also GA.CODE ANN. § 16-6-22(a) (2009).48 In 2006, in response to the case of Marcus Dixon, a high school football player convicted in2003 of statutory rape and aggravated child molestation for consensual sex with a 15-year old classmate,the Georgia legislature enacted a so-called "Romeo and Juliet" provision to the child molestationstatute, which specially states: "[i]f the victim is at least 14 but less than 16 years of age and theperson convicted of child molestation is 18 years of age or younger and is no more than four yearsolder than the victim, such person shall be guilty of a misdemeanor." GA. CODE ANN. § 16-6-4(b)(2)(2009). See generally, Suzanne Smith Williams, Can't do the Time, Don't Do the Crime: Dixon v. State,Statutory Construction, and the Harsh Realitites of Mandatory Minimum Sentencing in Georgia, 22GA. ST. U. L. REV. 519, 521-22 (2005).49 Henry M. Coxe III, Deoxyribonucleic Acid, Separation of Powers and Justice, 80 FLA. B.J. 6(Aug. 2006) (statement of State Representative J.e. Planas to the Florida legislature during a debateon pending legislation mandating the preservation of evidence and access to post-conviction DNAtesting).50 Innocence Project, supra note 37.51 JUSTICE PROJECT, supra note 25, at 17-22,25.

POST-CONVICflON DNA & PRESERVATION OF EVIDENCE 145viction DNA testing. 52 Georgia law provides that a defendant seeking testingmay do so in a post-conviction motion for DNA testing; however, the law currentlylimits this remedy to only one such motion. 53 This creates a significant riskto those defendants whose innocence claims could not be established by furtherDNA testing if they have previously requested relief under this remedy.54Due to limits on subsequent motions for DNA testing, Charles Chatman has asympathetic jurist to thank for his freedom. Chatman was recently exonerated inTexas after serving twenty-seven years of a ninety-nine-year sentence for sexualassault. 55 His first request for DNA testing was filed in 2001 and granted in 2004,but the results of the testing were inconclusive. 56 The remaining biological evidencewas a very small sample and would be fully consumed in further testing; ifsubsequent testing was inconclusive, Chatman would forego his chance at exoneration.57The judge allowed Chatman's attorneys to "suspend" an extraordinarymotion to allow for technological advances in DNA testing. 58 The remainingsample was finally tested in 2007 and conclusively eliminated Chatman as thevictim's attacker. 59 He was freed on January 2, 2008, yet spent an unnecessary,not to mention patient, four additional years in prison in order to pursue hisclaim of innocence. 6o 1. Status of ConvictionThe model policy posits that post-conviction DNA testing should be allowedby all defendants without regard to the status of their conviction or the nature ofthe crime. 61 Limiting such access undermines the fundamental fairness and integrityof the criminal justice system. 62 In Georgia, only those petitioners convictedof specified felony offenses may motion the court for post-conviction DNAtesting. 6352 Id. at 18.53 GA. CODE ANN. § 5-5-41(b) (2009) specifically states: "only one such extraordinary motionshall be made or allowed."54 GA. CODE ANN. § 5-5-41(c)(3)(B) (2009). To obtain relief, the defendant is required to makea showing that the technological advances now available were not available at the time of trial. Id.(emphasis added). Additionally, Code Section 5-5-41(c)(4)(B) requires the petitioner to state that"the requested DNA testing was not ordered in a prior proceeding in any court .... "55 Kevin Johnson, DNA Tests Fuel Urgency to Free the Innocent, USA TODAY, Feb. 19,2008,available at http://www.usatoday.comlnews/nation/2008-02-18-dna_N.htm.56 Id.57 Id.58 Id.59 Johnson, supra note 55.60 Id.61 JUSTICE PROJECT, supra note 25, at 18,25.62 Id.63 GA. CODE ANN. § 5-5-41(c)(1) (2009). The felony offenses, the so-called "seven deadlysins", as defined by Code Section §17-10-6.1, are: murder, armed robbery, kidnapping, rape, aggra-

146 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWIn November 2008, the Georgia Court of Appeals affirmed a trial court's denialof post-conviction testing to a petitioner, who pled gUilty to the charge ofincest, sentenced to a term of twenty years. 64 The Court reasoned that the petitionerwas barred from requesting DNA testing under the statute because thecrime of incest is not defined by the statute as a serious violent felony; therefore,he failed to meet even the initial statutory requirement for filing such a motion. 65Additionally, post-conviction testing in Georgia is limited to those individualswho were convicted at trial. 66 As such, the statutory scheme fails to provide aremedy for individuals who pled guilty, including those under Alford v. NorthCarolina, or those who plead nolo con ten dere. 67 In 2004, the Missouri SupremeCourt ordered the state to conduct a DNA test for a defendant who pled guilty torape in 1992, stating, "a person who pleaded gUilty is not somehow 'more' guilty,or less deserving of a chance to show actual innocence than one who went totrial. ,,68 In fact, according to available exoneration statistics, eleven individualslater proven innocent through post-conviction DNA testing initially pled gUilty.692. Special Considerations in Death SentencesWhile it is human nature to exhibit revulsion to heinous crimes, the legal systemseeks justice and must work to ensure that only those who are actually guiltyare put to death at the hands of the state. Georgia courts denied post-convictionDNA testing to Eddie Crawford, accused of the rape and murder of his niece in1983, and convicted and sentenced him to death in 1984.'° The appellate courtoverturned his conviction and he was retried, convicted and sentenced to death in1987.71vated child molestation, aggravated sodomy and aggravated battery. See GA. CoDE ANN. §17-10-6.1(a)(I)-(7) (2009).64 Hunter v. State, 669 S.E.2d 533 (Ga.App. 2008).65 [d. (citing GA. CODE ANN. § 5-5-41(c)(1».66 GA. CODE ANN. § 5-5-41(c)(3)(B) requires the petitioner to show that "[t]he evidence wasnot subjected to the requested DNA testing because the existence of the evidence was unknown tothe petitioner or to the petitioner's trial attorney prior to trial or because the technology for thetesting was not available at the time of trial." (emphasis added).67 North Carolina v. Alford, 400 U.S. 25 (1970) (an individual accused of a crime may voluntarily,knowingly and understandingly consent to the imposition of prison sentence even if he is unwillingor unable to admit his participation in acts constituting the crime).68 Weeks v. State, 140 S.W.3d 39, 46 (Mo. 2004) (rejecting the state's argument which waspremised on the assumption that all those who plead guilty are in fact guilty).69 Innocence Project, Fact Sheet: Access to Post-Conviction DNA Testing, http://www.innocenceproject.orglContentl304.php# (last visited Sept. 26, 2(09).70 Crawford v. State, 597 S.E.2d 403 (Ga. 2004). Crawford was the first defendant to motionthe court for extraordinary relief following adoption of the Georgia statute authorizing post-convictionDNA testing.71 [d. at 403.

POST-CONVICfION DNA & PRESERV A nON OF EVIDENCE 147Crawford filed a request for post-conviction DNA testing in 2003 and the requestwas denied without a hearing by the trial court. 72 The trial court stated thatCrawford did not meet the legal standards required for DNA testing and theSupreme Court of Georgia later affirmed this denial .73Crawford's defense at trial was that someone else had committed the crimeand other persons with access to the child on the night of crime had a history ofsexually abusing children?4 There was a significant amount of evidence at trial;including a blanket found with the child, bed linens and trousers belonging toanother individual, that were not tested for DNA at the time of Crawford's trialbecause DNA technology was not then available?5 The trial court's denial ofDNA testing focused primarily on Crawford's confession?6 Yet, approximatelytwenty-five percent of wrongful convictions have been attributed to false confessionsby defendants?7With an execution date looming, non-profit organizations offered to pay forthe testing if a stay was granted long enough for it to be conducted?8 They wererefused and Crawford was executed in 2004. 79 Doubts linger concerning Crawford'sguilt because he was not allowed the opportunity to conduct DNA testingdespite its relatively low cost. soB. Legal Standards for Testing AccessThe model policy recommends the standards for securing testing of DNA relatedto a criminal conviction: that the DNA evidence is materially relevant to aclaim of innocence or reduced culpability for the challenged conviction; that theevidence to be tested still exists and the chain of custody has been maintained;that the evidence in question was not previously tested or was previously testedbut is now subject to testing using new methods or technologies; and that therequest is not made for the purpose of unreasonable delay.81 For the most part,72 Id.73 Id. at 404 (reasoning that since Crawford confessed to the crime, his identity was not a significantissue at trial).74 Id. at 407 (Fletcher, c.J., dissenting) (discussing evidence posited by Crawford that shouldhave mandated a hearing by the trial court).75 Id.76 Id. at 408.77 Innocence Project, Fact Sheet: False Confessions & Recording Of Custodial Interrogations,http://www.innocenceproject.org/Contentl314.php (last visited Sept. 26, 2009).78 Shaila K. Dewan, Georgia Case Tests Reach Of Appeals Based on DNA, N.Y. TIMES, Jul. 19,2004, at All.79 Carlos Campos, Execution 'Worth It' For Family, Killer Says, ATL. J. CONST., Jul. 20, 2004, atB3.80 Charles Montaldo, Doubts Remain After Crawford Execution in Georgia: New DNA EvidenceCould Point to Other Suspects, http://crime.aboul.comlodJdeathlalcrawford040719.htm (last visitedJul. 19,2004).81 JUSTICE PROJECf, supra note 25, at 18.

148 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWGeorgia's statutory scheme comports with the suggested portions of the policymodel.Georgia law currently limits the availability of post-conviction DNA testing topetitioners who demonstrate the following: that the evidence to be subjected toDNA testing is related to the crime that resulted in conviction; that such evidencewas not previously tested because it was not known to the defendant or becausethe technology was not available; and that DNA testing results would raise a"reasonable probability" that the petitioner would have been acquitted if thetesting results were available at trial. 82The statute includes an additional requirement that any petitioner show thatthe identity of the perpetrator was, or should have been, a significant issue in thecase. 83 As the majority of post-conviction requests for DNA testing have beenmade by petitioners convicted of sexual offenses, primarily rape and statutoryrape, this additional statutory requirement may be responsible for the low numberof requests from defendants whose defense theory at trial was the consent ofthe victim. 84Defendants must also demonstrate a verifiable chain of custody, provide thecourt with the location, origin and means of the collection of the original evidence,and advise the court of any testing previously conducted. 85Given the vetting requirements of the statute, there is no indication that trialcourts in Georgia have been overwhelmed with requests for DNA testing sincethe statute was enacted in 2003. 86 However, as a precaution against petitionsmade by defendants whose test results are likely to confirm their guilt, which inturn would result in delays for DNA testing concerning claims of actual innocence,the Georgia legislature should enact penalties to prevent a flood of postconvictiontesting motions from this population. 87 Such penalties should includemonetary sanctions, additional incarceration or revocation of earned "good time"credits. 8882 GA. CODE ANN. § 5-5-41(c)(3)(A), (B), (0) (2009).83 GA. CODE ANN. § 5-5-41(c)(3)(C) (2009).84 The Georgia Supreme Court confirmed this view in a recent case where the petitioner wasconvicted of rape and aggravated sodomy in 1983. lWenty-two years later, the defendant filed amotion for DNA testing and the Court held that, since he admitted to having sex with the victim onthe night in question, his identity was not a significant issue at his trial; the significant issue at trial wasthat of the consent of the victim. Williams v. State, 658 S.E.2d 446 (Ga. App. 2008).85 GA. CODE ANN. § 5-5-41(c)(3)(E), (G) (2009).86 Only six denials by trial courts, discussed later in detail, have been entertained on appeal bythe Georgia appellate courts. As most petitioners with claims of innocence would likely appeal adenial by the trial court, coupled with the stringent legal requirements of the post-conviction DNAtesting statute and the lack of access to counsel in post-conviction proceedings, there is little evidenceto suggest that trial courts have been overwhelmed by requests for testing.87 Tonya Jacobi & Gwendolyn Carroll, Acknowledging Guill: Forcing Self-Identification in Post­Conviction DNA Testing, 102 Nw. U. L. REV. 263, 264 (2008).88 Id. at 293-94.

POST-CONVICfION DNA & PRESERVATION OF EVIDENCE 149C. Appointment of CounselFew of those convicted and imprisoned have access to adequate legal informationand assistance concerning their rights regarding the testing of evidence followingconviction. This is especially true for those engaged in the complex taskof seeking a post-conviction remedy such as access to DNA testing. Additionally,as previously discussed, the state mandates a time limitation on the preservationof evidence in criminal cases. If defendants are required to wade through themaze of both evidence preservation restrictions and post-conviction proceedingswithout legal counsel, the evidence may be destroyed prior to the defendant'sability to petition the court for testing. For this reason, the policy model suggeststhat states provide counsel to ensure the adequate representation of those seekingaccess to post-conviction DNA testing. 89In Georgia, petitioners in post-convictions proceedings are not entitled to theappointment of counse1. 90 Therefore, those seeking testing must rely on alreadyover-burdened non-profit organizations that focus on claims of innocence. In itssix year existence, the Georgia Innocence Project has received more than 3,600requests for post-conviction assistance, but has been limited by resources andstrict case compliance reviews. 91 To date, the organization, the only one of itskind in Georgia, has accepted only twenty-one clients.92 Additionally, in extremelylimited circumstances, the Southern Center for Human Rights providesassistance to those who are currently on death row in Georgia and Alabama. 93The criminal justice system in Georgia should seek justice and not be limitedsolely to seeking convictions based on numbers. Therefore, defendants should begiven an opportunity to prove their innocence, which is unlikely to occur withoutlegal advice given the complex nature of the post-conviction DNA testing statute.94 By providing access to appointed counsel in post-conviction proceedings,specifically in claims of actual innocence, the state can limit the number of wrongfulconvictions, ensure that only those who are truly guilty remain sentenced and89 JUSTICE PROJECT, supra note 25, at 19.90 Crawford v. State, 597 S.E.2d 403, 407 (Ga. 2004) (Fletcher, c.J., dissenting) (noting that "apetitioner seeking post-conviction DNA testing most often will not have counsel because the statutedoes not authorize the appointment of counsel"). See also Gibson v. Turpin, 513 S.E.2d 186 (Ga.1999)(no right to counsel beyond direct appeal).91 Georgia Innocence Project - History, http://www.ga-innocenceproject.orglhistory.html. Theorganization does not take cases where a defendant is still eligible for appointed counsel, where theidentity of the perpetrator is not at issue, and where there is lack of DNA evidence.92 [d. Given the current economic climate and the associated decreasing donations to nonprofitorganizations, the outlook is even bleaker for those individuals seeking assistance from regionalInnocence Project offices.93 Southern Center for Human Rights, http://www.schr.orgldeathpenalty/index.html (last visitedSept. 26, 2009).94 In his dissent in Crawford v. State, 597 S.E.2d 403, 406 (Ga. 2004), Georgia Supreme CourtChief Justice Fletcher opined. "The language of the statute is, admittedly, a little confusing .... "

150 UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWimprisoned as well as allow law enforcement agencies the opportunity to locatethe true perpetrator of the crime.D. Payment for TestingThe Justice Project proposes that testing, if ordered, be conducted by statelaboratories and paid for by the state. 95 Additionally, the policy model suggeststhat payment methods for independent testing, if requested, be determined bythe court, based on the petitioner's ability to pay.96The Georgia statute mandates that courts determine the method of paymentfor the cost of testing and may require that it be paid from private funds if possible.97 If the petitioner is indigent, the costs are paid from the state's "fine andforfeiture fund. ,,98 Therefore, Georgia law does not limit access to post-convictiontesting based on a petitioner's financial circumstances.E. Choice of LaboratoryThe model policy recommends that post-conviction testing of evidence be conductedby a mutually agreeable facility and that the court impose reasonable conditionson testing to protect each party's interest in the integrity of the evidenceand the testing process. 99 Under the current statute, testing must be conductedby the state laboratory at Georgia Bureau of Investigation (GBI) headquartersand a sample of the petitioner's DNA must be submitted to the Forensic ScienceDivision of the GBI for inclusion in the state's DNA data bankYJOAdditional testing by an independent laboratory may also be ordered if thelaboratory meets the accreditation standards established by the DNA IdentificationAct of 1994. 101 The Georgia Supreme Court has previously disallowed independenttesting by an uncertified laboratory, though the laboratory in questionemployed some of the most preeminent analysts in the fields of criminology andDNA testing, and when petitioner's counsel offered to pay for the cost of thetesting. 10295 JUSTICE PROJECT, supra note 25, at 20.96 Jd.97 GA. CODE ANN. § 5-5-41(c)(8) (2009).98 Id. The statute specifically states "[i]f petitioner is indigent, the cost shall be paid from thefine and forfeiture fund as provided in Article 3 of Chapter 5 of ntle 15"; however. effective July 1.2008. payments from the fund are provided for in newly-enacted Code § 15-21-5.99 JUSTICE PROJECT, supra note 25. at 20.100 GA. CODE ANN. § 5-5-41(c)(9) (2009).101 The DNA Identification Act of 1994. 42 U.S.GA. 14131(a) (1994). contained in the ViolentCrime Control and Law Enforcement Act of 1994. provides for a national DNA advisory committeeto recommend quality assurance methods, including standards for proficiency testing, for local. stateand federal crime laboratories conducting DNA analyses.102 Dr. Edward Blake. specifically named in the Court's opinion in State v. Clark, is a partnerat Forensic Science Associates (FSA). an independent forensic consulting firm in California. and a

POST-CONVICfION DNA & PRESERVATION OF EVIDENCE 151Given the backlog of cases at state-run laboratories, petitioners should be providedwith reasonable choices regarding requests for post-conviction DNA testing.103 Allowing a choice of laboratories will also ensure the objectivity andreliability of evidence testing by allowing testing to be conducted by laboratoriesnot under the control of law enforcement or prosecutorial agencies. 104F. Appeals from Denial of TestingThe model policy states that petitioners should have the right to appeal anydecision that denies post-conviction DNA testing. lOS Georgia law allows both theState and the petitioner to appeal a denial of a motion for post-conviction DNAtesting. 106 To date, only six appellate cases have been entertained by the GeorgiaSupreme Court: one appeal by the State and five by defendants. to?legend in the field of DNA analysis in criminal cases for over 35 years. In the trial court, it was"undisputed that [FSA] ... has never been certified because Dr. Blake made a personal decision that itwould not be certified"; however, the trial court ordered the test conducted. State v. Clark, 615S.E.2d 143, 145 (Ga.App. 2005). On appeal by the State, the Georgia Court of Appeals concludedthat the trial court had "no discretion to ignore the statutory mandate" when it approved independenttesting by FSA. ld. at 147.103 According to the Forensic Sciences Division of the Georgia Bureau of Investigation, themost current statistics indicate that the waiting period for results of DNA testing in most cases is 30days. Tim Shurrock, GBI Lab Trims Backlog, MACON TELEGRAPH (Jul. 3,2006), available at http://dofs.gbi.georgia.gov/00/article/0,2086, 75166109 _75684228_75775092,00.html.104 In 2007, the Maryland General Assembly enacted legislation, the first of its kind in thenation, assigning oversight of all forensic laboratories in the state to the Maryland Department ofHealth and Mental Hygiene, which currently oversees hospital laboratories, by 2011. The legislationremoved oversight of Maryland's municipal, county and state crime laboratories from the MarylandState Police in order to protect the integrity of the forensic science process and create a separationbetween law enforcement and prosecutorial agencies and other participants in the criminal justicesystem. See generally MD. CODE ANN. - HEALTH-GEN. §§ 17-2A-01 to -12 (2009). See also JulieBykowitz, Dubious Science: Carelessness in Crime Lab Procedures Raises Serious Questions AboutEvidence, BALTIMORE SUN, Sept. 7, 2008, at lB.105 JUSTICE PROJEcr, supra note 25, at 21.106 GA. CODE ANN. § 5-5-41(c)(13) (2009).107 The State appealed in State v. Clark, 615 S.E.2d 143 (Ga.App. 2005) (citing errors in thetrial court's failure to mandate entry of DNA into the state's data bank and authorization of testing byuncertified laboratory). Clark was granted post-conviction testing and exonerated by the results in2005 after serving 23 lh years of a life sentence for rape, kidnapping and armed robbery. InnocenceProject, Georgia Exonerations: Robert Clark, http://www.innocenceproject.orglContentl71.php (lastvisited Sept. 26, 2009). Appeals by petitioners include: HUnter v. State, 669 S.E.2d 533 (Ga.App. 2008)(petitioner convicted of crime not set forth in statute as one eligible for post-conviction DNA testing);Pate v. State, 665 S.E.2d 907 (Ga.App. 2008) (remand necessary so trial court could enter writtenorder setting forth denial); Williams v. State, 658 S.E.2d 446 (Ga.App. 2008) (identity of the perpetratornot a significant issue at trial); Palmer v. State, 650 S.E.2d 255 (Ga.App. 2007) (in a motion fornew trial, trial court did not abuse its discretion in denying defendant's motion to hire a DNA expertof his choosing to test evidence); Crawford v. State, 597 S.E.2d 403 (Ga. 2004) (petitioner could notdemonstrate a reasonable probability that DNA testing results would have effected the outcome ofhis trial).

152 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWG. Procedure Following Favorable DNA Testing ResultsPetitioners may remain incarcerated following favorable post-conviction testingresults, thus resulting in further delays of fairness in the justice system.Therefore, the policy model recommends that states enact procedures that dictatethe actions courts are required to take to determine appropriate relief whenDNA testing results are favorable to the petitioner. lOS Under Georgia law, thepost-conviction process requires a petitioner to make an extraordinary motion fornew trial to the court of conviction in order to secure a hearing followingfavorable DNA testing results and the court must afford the State twenty days inwhich to respond. 109Most recently, when notification of favorable testing results is received, thedistrict attorneys overseeing such cases have been reluctant to continue incarcerationof petitioners with claims of innocence and favorable DNA testing resultS.IIO These actions reflect the ability of the state crime laboratory to quicklyperform and verify testing results and enter the information into the state's offenderDNA databank, allowing them to more quickly identify the true perpetratorsif they have been previously convicted of a crime. I II Furthermore,organizations focused on wrongful convictions now have the Internet and twentyfour-hourmedia access to the criminal justice system in addition to attorneys whoare not reluctant in using such media to their advantage. 112IV. THE COST VS. BENEFIT ANALYSISThe cost of DNA testing is relatively inexpensive; normally $25 to $110 percase for testing performed at state crime laboratories and $425 to $1,720 per casefor testing at independent laboratories, depending on the amount of evidence to108 JUSTICE PROJECT, supra note 25, at 21-22.109 GA. CODE ANN. § 5-5-41(a) specifically states: "When a motion for a new trial is made afterthe expiration of a 30 day period from the entry of judgment, some good reason must be shown whythe motion was not made during such period, which reason shall be judged by the court. In all suchcases, 20 days' notice shall be given to the opposite party."110 Calvin Johnson, the first man exonerated in Georgia in 1999, was incarcerated for an additionalsix months following the return of favorable testing results. The most recent, John JeromeWhite, exonerated in 2007, spent less than four days of incarceration following his favorable testresults. Innocence Project, Georgia Exonerations: Calvin Johnson, http://www.innocenceproject.orglContentl186.php (last visited Sept. 26, 2009).111 The real perpetrators have been identified in two of Georgia's wrongful conviction cases­Robert Clark and John Jerome White. The Innocence Project, Georgia Exonerations, http://www.innocenceproject.orglnews/state.php?state:::::GA (last visited Sept. 26, 2(09).112 Television programs like NBC's Dateline, CBS's 48 Hours, ABC's 20/20, A&E's AmericanJustice, CNN programming and others abound with timely stories of claims of wrongful conviction aswell as exonerations. A recent search of the West database, using the term "wrongful conviction",returned more than 3000 stories from major news services for the preceding three years.

POST-CONVICTION DNA & PRESERVATION OF EVIDENCE 153be tested. l13 States spend an average of $22,650 per year to house a single inmatein the prison system. 114 Recent studies in Maryland and Florida place the cost ofprosecuting a death penalty case and housing an inmate on death row at an averageof $3 million per case. ttSGiven the low cost of DNA testing and the increased cost of compensation ofthe wrongfully convicted, it may be a more efficient use of state resources toallow petitioners greater access to post-conviction DNA testing. The continuedincarceration of those inmates who may be proven innocent through access topost conviction testing is a waste of state resources. 116CONCLUSIONThe Georgia legislature should be applauded for their past work in enactingstatutes concerning the preservation of evidence and access to post-convictionDNA testing. However, many more defendants with claims of innocence are nowincarcerated in Georgia's prisons and access to DNA testing may provide themwith the only remedy to prove their claims. Although the concept of finality isrespected in the criminal justice system, victims and law enforcement agencies donot have true finality if the true persons who committed these crimes remainunanswerable for their actions. The citizens of Georgia deserve faith and reassurancethat their criminal justice system incarcerates, and perhaps even executes,only those who are guilty of their crimes.Wrongful convictions have many causes including: false confessions, erroneouseyewitness identifications, unreliable informant testimony, and faulty forensic science.Regardless of the causes of wrongful convictions, it has been demonstratedthat our criminal justice system can overcome these errors by providing defendantswith access to post-conviction DNA testing; especially when such access maybe the only avenue for defendants with claims of actual innocence. Yet, access toDNA testing becomes irrelevant if the evidence used in the conviction is not113 N.C. DEPT. OF JUSTICE, COST STUDY OF DNA ANALYSIS AND TESTING 7, 8 (2006).114 BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, 2001 STATE PRISON EXPENDI.TURES 1 (2004).115 JOHN ROMAN ET AL., COST OF THE DEATH PENALTY IN MARYLAND 2 (Urban Institute forJustice,2008); The High Price Of Killing Killers: Death Penalty Prosecutions Cost Taxpayers MillionsAnnually, PALM BEACH POST, Jan. 4, 2000, at 1A.116 To date, the Georgia General Assembly has authorized $3.9 million in compensation for thewrongful imprisonment of three individuals - Robert Clark, Willie Otis Williams, Clarence Harrisonand John Jerome White. Although several resolutions have been introduced by the Georgia legislature,Douglas Echols and Samuel Scott have not yet been compensated foe their wrongful convictions.Perdue Approves $500K for Wrongfully Convicted Man, ATL. J. CONST., May 9, 2009, availableat http://www.ajc.com/services/content/metro/stories/2009/05I06/georgia_exonerate_compensation.html?cxtype=rss&cxsvc=7&cxcat=13; Cynthia Thcker, The Incalculable Price of Faulty EyewitnessIDs, ATL. J. CONST., Mar. 5, 2008, at A20; House OKs Wrongful Imprisonment Award, AUGUSTACHRONICLE, Mar. 20, 2007, at B06.

154 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWavailable for testing. It is within the power of Georgia's elected representativesto clear the way to reducing wrongful convictions and exonerations, as well aslocating the actual perpetrators of crime by enacting additional safeguards forevidence preservation and for increasing the access to post-conviction testing.We can only request that they use their power to do so.

MISSING IN ACTION:PRISONERS OF WAR AT GUANTANAMO BAYJerica M. Morris-Frazier*INTRODUCTIONThe United States of America has presented a national and international imageof fairness, justice, and humane treatment of others, while abiding by the lawsto which it is bound. However, the reputation of the United States has beentarnished by its seemingly prolonged internment of detainees at GuantanamoBay. After reports of torture, sexual degradation, and the refusal to apply prisonerof war status to any of the detainees the world is looking to the UnitedStates for answers and demanding changes to the current situation at GuantanamoBay. This paper focuses on the lack of application of prisoner of war status,as provided for in the Geneva Convention, to Guantanamo Bay detainees.This paper also examines the United States Supreme Court decisions reviewingthe extension of United States jurisdiction to the Guantanamo Bay detainees andother international treaties the United States is a party to that provide for thedetainees' rights to a fair trial.DELIMITATION OF THE PROBLEMThe Specific ProblemThe Geneva Convention places heavy emphasis on international standards fordetention of enemy combatants, spies, and prisoners of war ("PQWS,,)1 in time ofmilitary conflict. Currently, the United States is receiving international and nationalpublic scrutiny for its detainment of alleged terrorists or terrorist cohorts atthe Guantanamo Bay military facility in Cuba.The United States acquired a perpetual lease of territorial control over GuantanamoBay from the 1903 Cuban-American Treaty.2 This treaty provides thatthe United States has "complete jurisdiction and control" over Guantanamo Bay,* J.D. candidate 2010, University of the District of Columbia David A. Clarke School of Law.Jerica Morris-Frazier, Notes Editor of the University of the District of Columbia David Clarke Schoolof Law, Law Review, would like to thank the men and women of the United States Armed Forcesthat risk their lives everyday to defend the freedoms and values of the United States of America.1 The official United States military term for an enemy prisoner of war is "enemy prisoner ofwar" ("EPW"), but they will be referred to as "POWs" herein. Eric Schmitt, War In The Gulf:P.O. W. 's; U.S. Says Prisoners Seem War-Weary, N.Y. TIMES, Feb. 19, 1991, at A7, available at 1991WLNR 3021129.2 Yale Law School The Avalon Project, Agreement Between the United States and Cuba forthe Lease of Lands for Coaling and Naval stations; Feb. 23, 1903, http://avalon.law.yale.eduJ20th_century/dip_cubaOO2.asp (last visited April 23, 2009) [hereinafter Cuban-American Treaty].

156 UNIVERSITY OF THE DISTRICT OF COLUMDIA LAW REVIEWwhile Cuba retains ultimate sovereignty.3 In 1934, the treaty was renegotiated,allowing free access through the bay and modifying the lease payment from$2,000 in U.S. gold coins to $3,085 in U.S. dollars per year. 4 Furthermore, underthe 1934 treaty, the lease of Guantanamo Bay is permanent unless both Cuba andthe United States agree to its termination or the United States abandons theproperty altogether. 5Since October of 2001, the beginning of the "War on Terror," 779 detaineeshave been brought to Guantanamo Bay.6 Approximately 500 of these detaineeshave been released without charges,7 but as of January 2009, about 245 detaineesremain at the base. s Of the 245 remaining, several of the detainees are clearedfor release, but have not left because "countries are reluctant to accept them.,,9The United States signed the 1949 Geneva Convention on August 12, 1949,10and ratified it August 2, 1955. 11 Afghanistan signed and ratified the Conventionon December 8, 1949, and September 26, 1956, respectively.12 Iraq accessionedthe Convention on February 14, 1956.13 Article 2 states that the Geneva Convention"shall apply to all cases of declared war or of any other armed conflict whichmay arise between two or more of the High Contracting Parties, even if the stateof war is not recognized by one of them. ,,14 Therefore, countries that are part ofa conflict that are also parties to the conventions are bound by its terms. TheUnited States, Iraq, and Afghanistan are High Contracting Parties involved inundeclared armed conflict; therefore pursuant to Article 2, each country must3 Id. at art. 3.4 Id.5 Yale Law School The Avalon Project, Treaty Between the United States of America andCuba; May 29, 1934, http://avalon.law.yale.eduJ20th_century/dip3ubaoo1.asp (last visited April 23,2009).6 Kim Barker, From Locked Up to Boxed in Afghanistan Lacks Reintegration Plan for ex-GuantanamoDetainees, Leaving Them Fighting to Fit in and Feeling the Battlefield's Pull, CHI. TRIB., Mar.4, 2009, at 4, available at 2009 WLNR 4142365.7 The Associated Press, 3 Prisoners Let Out of Guantanamo, N.Y. TIMES, Sept. 3, 2008, at A22,available at 2008 WLNR 16626194.8 Mark Mazzetti and Scott Shane, Where Will Guantanamo Detainees Go?, N.Y. TIMES, Jan. 24,2009, at A13, available at 2009 WLNR 1406715.9 Id.10 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949,6 U.S.T.3316, 75 U.N.T.S. 135, available at http://www.un.orglpreventgenocide/rwandaltext-imageslGeneva_POW.pdf [hereinafter Convention on POWs].11 Geneva Conventions of 12 Aug. 1949, State Parties, http://www.icrc.orglihl.nsf/WebSign?ReadForm&id:::::375&ps:::::P (last visited April 28, 2009) (applying a reservation/declaration to the Conventionallowing the exclusion or modification of the legal effect of the application of certain provisionsof the treaty to the U.S., provided that the reservation does not interfere with the object andpurpose of the treaty.).12 Id.13 Id.14 Convention on POWs, supra note 10, at art. 2.

MISSING IN ACfION 157provide humane treatment to prisoners of war. According to the Geneva Convention,prisoners of war are "persons belonging to one of the following categories,who have fallen into the power of the enemy:,,15(1) Members of the armed forces of a Party to the conflict, as well as membersof militias or volunteer corps forming part of such armed forces.(2) Members of other militias and members of other volunteer corps, includingthose of organized resistance movements, belonging to a Partyto the conflict and operating in or outside their own territory, even ifthis territory is occupied, provided that such militias or volunteer corps,including such organized resistance movements, fulfil [sic.] the followingconditions:(a) that of being commanded by a person responsible for hissubordinates;(b) that of having a fixed distinctive sign recognizable at a distance;(c) that of carrying arms openly;(d) that of conducting their operations in accordance with the laws andcustoms of war.(3) Members of regular armed forces who profess allegiance to a governmentor an authority not recognized by the Detaining Power.(4) Persons who accompany the armed forces without actually being membersthereof, such as civilian members of military aircraft crews, warcorrespondents, supply contractors, members of labour [sic.] units or ofservices responsible for the welfare of the armed forces, provided thatthey have received authorization, from the armed forces which they accompany,who shall provide them for that purpose with an identity cardsimilar to the annexed model.(5) Members of crews, including masters, pilots and apprentices, of themerchant marine and the crews of civil aircraft of the Parties to theconflict, who do not benefit by more favourable [sic.] treatment underany other provisions of international law.(6) Inhabitants of a non-occupied territory, who on the approach of theenemy spontaneously take up arms to resist the invading forces, withouthaving had time to form themselves into regular armed units, providedthey carry arms openly and respect the laws and customs of war.16Based on this definition, not only are the official military troops of the UnitedStates, Iraq, and Afghanistan protected as prisoners of war, but also the membersof al Qaeda, the Taliban, and any other informal militia units. The Prisoner ofWar status is even extended to civilians who are captured with the "enemy" mili-15 [d. at art. 4(A).16 [d.

158 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWtia members, but are not members of the group themselves. 17 Even those peopleinhabiting the invaded territory that took up arms to fight against the invasionshould be afforded prisoner of war status. IS Therefore, under this definition, amajority, if not all, of the detainees held at Guantanamo Bay captured during the"War on Terror" qualify for Prisoner of War status allowing for humane treatmentand the application of POW privileges. Humane treatment of prisoners ofwar, as detailed in Article 13, involves,Any unlawful act or omission by the Detaining Power causing death or seriouslyendangering the health of a prisoner of war in its custody is prohibited,and will be regarded as a serious breach of the present Convention. Inparticular, no prisoner of war may be subjected to physical mutilation or tomedical or scientific experiments of any kind which are not justified by themedical, dental or hospital treatment of the prisoner concerned and carriedout in his interest.Likewise, prisoners of war must at all times be protected, particularlyagainst acts of violence or intimidation and against insults and publiccuriosity.Measures of reprisal against prisoners of war are prohibited. 19Throughout the "War on Terror" conflict, the United States has been accusedof ill treatment of detainees interned at Guantanamo Bay. Released detaineeshave accused the United States of flagrantly violating Article 13 of the Convention.Detainees have alleged they were subjected to the following: inadequatefood or healthcare; physical mutilation during torture with glass and cigarettes;sleep deprivation; light and sound manipulation; and exposure and temperatureextremes.2° The United States has also been accused of sexual assault, religiouspersecution, and sexual degradation 21 violating Article 13 and Article 14.22 Assumingarguendo these allegations are true, the United States completely disregardedthese two provisions of the Geneva Convention in its treatment ofdetainees at Guantanamo Bay.There are additional accusations of forced feedings to detainees who are hunger-strikingor wish to die. 23 Article 26 of the Convention concerns food forpaws, which states in part, "The basic daily food rations shall be sufficient in17 [d. at art. 4(A)(3).18 [d. at art. 4(A)(6).19 See Convention on POWs, supra note 10, at art. 13.20 CrR. FOR CONST. RTS., REP. ON TORTURE AND CRUEL, INHUMAN, AND DEGRADING TREAT­MENT OF PRISONERS AT GUANTANAMO BAY, CuBA (2006), 18-28, http://ccrjustice.orglfileslReporcReportOnTorture.pdf. [hereinafter CrR. FOR CaNST. RTS.].21 [d.22 Article 14 states in part, "Prisoners of war are entitled in all circumstances to respect fortheir persons and their honour [sic]." See Convention on POWs, supra note 10, at art. 14.23 CTR. FOR CON ST. RTS., supra note 20, at 29.

MISSING IN ACTION 159quantity, quality and variety to keep prisoners of war in good health and to preventloss of weight or the development of nutritional deficiencies. ,,24 If theseforce-feeding accusations are true, the United States, ironically, is in full compliancewith Article 26. Perhaps forced feedings may be an extreme measure totake, but in doing so the United States is making certain these detainees remainalive and healthy.CONFUCTING CLAIMSIssues Surrounding the ProblemThe main point of contention the international community has with the UnitedStates and the detainees held at Guantanamo Bay is the application of POWstatus to the detainees. The 1949 Geneva Convention expanded upon the protectionsprevious conventions 25 afforded to prisoners of war. The drafters purposefullyset out to clearly and explicitly define a prisoner of war to eliminate anyconfusion or ambiguity by Contracting Parties. 26 This clear POW definitionshould reasonably equip Contracting Parties to quickly assess detainees' status.Despite the clear definition of POW status, the United States alleges there are nodetainees currently held at Guantanamo Bay warranting POW status as definedunder Article 4 of the Geneva Convention?7 The United States defends thisposition because the members of the Taliban and al Qaeda allegedly were notuniformed soldiers or guerrillas wearing "distinctive insignia," were not "beingcommanded by a person responsible for his subordinates," bearing arms openly,or abiding by the rules of war as required by Article 4.28 Yet upon a properapplication of Article 4, many of the detainees would meet at least two of thefour conditions listed. However, the commentaries to Article 4 state "[t]he qualificationof belligerent 29 is subject to these four conditions being fulfilled."30 Butmany of the detainees may still fall under POW status if they are "inhabitants of anon-occupied territory who, on the approach of the enemy, spontaneously takeup arm to resist the invading forces,,,31 referring to a "mass rising.,,32 The com-24 See Convention on POWs, supra note 10, at art. 26.25 Geneva Convention Relative to the Treatment of Prisoners of War Commentary, art. 4, Aug.12, 1949 at art. 4, http://www.icrc.org/ihl.nsflCOMl375-590007?OpenDocument [hereinafter ConventionCommentary] (referring to the Hague Convention of 1899 and the First Geneva Convention of1929).26 Id. ("Contrary to the solution adopted in 1929, the drafters of the 1949 Convention considered,from the outset, that the Convention should specify the categories of protected persons and notmerely refer to the Hague Regulations (7). Article 4 is in a sense the key to the Convention, since itdefines the people entitled to be treated as prisoners of war.").27 CTR. FOR CONST. RTS., supra note 20, at 13-14.28 Id.29 Term belligerent is synonymous to detainee. See Convention Commentary, supra note 25.30 Convention Commentary, supra note 25.31 Id.

160 UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWmentaries further state that when inhabitants carry arms openly and respect thelaws and customs of war they should be recognized as a POW "even though theymay not have had time to form themselves into regular armed units as requiredby Article 1."33 The difficulty in applying this expanded explanation of Article 4is deciphering which detainees were mere inhabitants and which were actuallymembers of the Taliban, al Qaeda, or any enemy militia.Along with the POW status comes specific guidelines of treatment, questioning,34healthcare,35 and internment that should be followed by the DetainingPower. The Convention explicitly states in Article 17 that torture may not beused to question a detainee who has met the requirements of a POW. Article 17states in part:No physical or mental torture, nor any other form of coercion, may be inflictedon prisoners of war to secure from them information of any kindwhatever. Prisoners of war who refuse to answer may not be threatened,insulted, or exposed to any unpleasant or disadvantageous treatment of anykind. 36While these privileges accompany POW status, it is the Detaining Power thatmust ultimately determine a detainee's POW status. The United States maintainsPOWs are not located at Guantanamo Bay and therefore interrogations are notbound to the terms set forth in Article 17. The failure to apply POW status hasleft the United States open to attack from released detainees claiming to havebeen tortured while at Guantanamo Bay.Another issue stemming from the United States' internment of the detaineeswithout POW status is the limited civilian access provided to them. Members ofthe International Committee of the Red Cross ("ICRC") are permitted into thedetention areas to provide medical attention and verify the detainees have adequatefood, water, and healthcare. 37 The ICRC is the only independent bodyallowed into the camp without invitation and/or a full escort throughout the dura-32 Id.33 Id.34 Article 17 states in part:"every prisoner of war, when questioned on the subject, is bound to give only his surname,first names and rank, date of birth, and army, regimental, personal or serial number, or failingthis, equivalent information. If he wilfully [sic.] infringes this rule, he may render himselfliable to a restriction of the privileges accorded to his rank or status."Convention on POWs, supra note 10, art. 17.35 See id. at art. 25-28 (Quarters, Food and Clothing of Prisoners of War) and at art. 29-32(Hygiene and Medical Attention).36 See id. at art. 17.37 Interview by Int'l Comm. of the Red Cross with Dominik StHihart, Deputy Director of Operations,Int'l Comm. of the Red Cross (Jun. 3, 2008), http://www.icrc.orglweb/englsiteengO.nsflhtmllconfidentiality-interview-010608?opendocument (last visited Apr. 20, 2009) [hereinafter Interviewwith Stillhart].

MISSING IN ACfION 161tion of the camp visit. 38 The JCRC is allowed in Guantanamo Bay because theorganization conducts its work with the utmost confidentiality.3 9 Any humanrights violations found by the JCRC are reported only to the proper channels ofthe U.S. military and government personnel. 40 Since 2002, the JeRC has "facilitatedthe exchange" of letters to and from detainees and their families. 41 Also,JCRe has arranged for detainees to have a one-hour phone call once a year tofamily members. 42 Under the Geneva Convention Article 71, a "[p]risoner ofwar shall be allowed to send and receive letters and cards. ,,43 The DetainingPower may limit the frequency of correspondence allowed to each detainee to theArticle 71 minimum of "two letters and four cards" per month as it deems necessary.44Furthermore, the correspondence "must be conveyed by the most rapidmethod at the disposal of the Detaining Power; they may not be delayed or retainedfor disciplinary reason. ,,45 Had the United States deemed any of theGuantanamo detainees paws, the JCRC would not have had to initiate the opportunityfor the detainees to communicate with their families.The failure to provide POW status to detainees besmirches the United States'international reputation regarding Guantanamo Bay.46 Furthermore, with theJCRe effectively gagged from disclosing any information about possible GenevaConvention violations and the United States' tight-hold on who enters the facility,the world only has the accusations of released detainees to provide insight38 Cuba - Guantanamo Bay (ABC television broadcast May 28, 2003) (Interview by Jill Colgan,Foreign Correspondent, in Guantanamo Bay, Cuba) (transcript on file with the author), available athttp://www.abc.net.aulforeign/stories/s866115.htm. The foreign correspondent was escorted the entiretime she was in Guantanamo Bay, even when questioning the officers. "We can talk to young campguards, but never alone." Id.39 Interview with Stillhart, supra note 37 ("Our main focus is on improving conditions for peopleaffected by conflict and hostilities, regardless of who they are. We do speak out on some issuesand we also offer assessments of the humanitarian situation in conflict-affected countries around theworld, but when it comes to addressing possible violations of international humanitarian law, it's veryimportant that we are able to do this primarily in a confidential manner.").40 Id. ("If the ICRC marks a report as confidential, it means that it is intended only for theauthorities or parties to the conflict to whom it is addressed. We object to any sharing or publicationof this information without our consent."). See also Cuba - Guantanamo Bay, supra note 38 ("Toguarantee ongoing access to prisoners around the world, the Red Cross agrees to report what it findsonly to the authorities holding the prisoners.").41 Int'l Comm. of the Red Cross, Guantanamo internee speaks by telephone with family inSudan, Jun. 19, 2008, http://www.icrc.orglweb/englsiteengO.nsflhtmlaIVsudan-news-190608?opendocument.42 Id. (The phone calls were arranged April 3, 2008. An exception to one call a year is in casesof "special circumstances, such as when a death has occurred in their immediate family.").43 Convention on paws, supra note 10, art. 71.44 Id.45 Id.46 See Kate Zernike, Administration Prods Congress To Curb the Rights of Detainees, N.Y.TIMES, Jul. 13,2006, at AI, available at 2006 WLNR 12041290. See also National Security Network, ANational Security Legacy of Failure (2009), http://www.nsnetwork.orglnodeI1177.

162 UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWinto Guantanamo Bay activities. It is no surprise that the United States is receivingpublic backlash for some activities carried out at Guantanamo Bay. Thereare unfettered allegations of offering cash bounties to Afghan tribesmen in returnfor the capture of believed members of al Qaeda and the Taliban;47 excessivetorture of detainees; abuse of detainees' religions;48 and admissions of havingjuvenile enemy combatants as detainees. 49Supreme Court precedent demonstrates the United States utilized GuantanamoBay as a detention facility for enemy combatants during several militaryconflicts, while receiving little to no public backlash or outcries for the closure ofthe base. So why now, why this "war?" Perhaps it is due to the "media age,"which is constantly expanding the information accessible to the public. Or, perhapsit is because the patriotism and national security mentalities that were themajority during other military endeavors are not the same as society's today. Regardlessof the reasoning, one thing is certain: "torture" of enemy combatants,detainees, or POWs for information relating to national security has been presentthroughout the history of war and conducted by those countries party to a war. 50Granted there can be excessive amounts or types of torture, but torture nonethelesshas been a staple in war and a method to gather information.The Roman maxim says it all, Inter arma silent leges, meaning "During waf, thelaw is silent.,,51 This maxim is prevalent in Justice Scalia's dissents in Rasul v.Bush 52 and Boumediene v. Bush. 53 In both dissents, Justice Scalia maintainedthat the extension of U.S. jurisdiction to Guantanamo Bay "is an irresponsibleoverturning of settled law in a matter of extreme importance to our force cur-47 Carol Rose, Op-Ed., Justice Delayed, Denied for Gitmo's Detainees, BOSTON HERALD, Jan. 1,2008, at 17, available at 2008 WLNR 642515. See also Mark Denbeaux et aI., REp. ON GUANTANAMODETAINEES: A PROFILE OF 517 DETAINEES APP. A (2006), http://law.shu.edulnewslguantanamo_reporCfinal_2_08_06.pdf(examples of bounty flyers supposedly from the United States).48 Released detainees have "alleged that abuse of religion including flushing the Our'an downthe toilet, defacing the Our'an, writing comments and remarks on the Our'an, tearing pages out of theOur'an and denying detainees a copy of the Our'an." CTR. FOR CON ST. RTS., supra note 20.49 See Cuba - Guantanamo Bay, supra note 38 (television interview by Jill Colgan, ForeignCorrespondent with Major General G. Miller of the U.S. Army).(TO MILLER) Are there any juveniles in Guantanamo?MAJOR GENERAL GEOFFREY MILLER: There are enemy juvenile combatantshere. For our definition, that is anyone who is less than sixteen years old.COLGAN: So there are people under 16 years of age here who are enemy combatants?MAJOR GENERAL GEOFFREY MILLER: That's correct.50 See History.com, Encyclopedia: Torture, http://www.history.comlencyclopedia.do?articleId=224327 (last visited Nov. 8, 2009).51 See generally WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WAR­TIME (Norman A. Knoff ed., 1998) (President Lincoln captured the underpinning of this maxim in hisresponse to criticism of limitations placed upon civil liberties during the Civil War.).52 Rasul v. Bush, 542 U.S. 466 (2004) (Scalia, J., dissenting).53 Boumediene v. Bush, 553 U.S. _, 128 S.Ct. 2229 (2008) (Scalia, J., dissenting).

MISSING IN ACI10N 163rently in the field, ,,54 thereby reaffirming restriction of U.S. jurisdiction in areasoutside U.S. sovereignty.55 Justice Scalia insisted that the majority erred in itsdecision stating: "Today, the Court springs a trap on the Executive, subjectingGuantanamo Bay to the oversight of the federal courts even though it has neverbefore been thought to be within their jurisdiction-and thus making it a foolishplace to have housed alien wartime detainees. ,,56Given the history of the United States, Justice Scalia's argument was warrantedand valid, especially in light of the continuing conflict in the Middle-East.The Rasul decision leaves Guantanamo Bay wide open for non-U.S. detainees,who have been associated with an anti-American group, to have access and benefitsthat are not given to U.S. detainees in other countries. Using the majority's"jurisdiction and control" argument 57 to extend jurisdiction to areas in whichUnited States retains captured detainees, one may say, as Justice Scalia stated,that parts of Afghanistan and Iraq will also fall within the jurisdiction of U.S.laws. 58 Justice Scalia correctly summed up the appalling Rasul majority decisionby stating, "to create such a monstrous scheme in time of war, and in frustrationof our military commanders' reliance upon clearly stated prior law, is judicialadventurism of the worst sort. ,,59 In Boumediene, the Court's extension of jurisdictionby intervening into a military matter, regulated by the Constitution, was"entirely ultra vires.,,60 Relying on past precedent, Justice Scalia offers a "jurisdictional"test, which is essentially a more specific test extending jurisdiction onlyto those detainees located within U.S. sovereignty or territory.61 If the real test is"functional," as the Court held, then there will not be any consideration of territorialboundaries. Without such consideration, the majority's decision would createa possibility of extension of U.S. jurisdiction to any area that the UnitedStates has some minimal "control" over.62 Furthermore, an extra burden will beplaced upon military commanders by creating "the impossible task of proving toa civilian court, under whatever standards this Court devises in the future, thatevidence supports the confinement of each and every enemy prisoner. ,,63The "War on Terror" is a difficult military endeavor because the troops arefighting a nameless, faceless, and anonymous enemy. It is unclear who is a part of54 Rasul, 542 U.S. at 497-98.55 Boumediene, 128 S.Ct. at 2295, 2298-99.56 Rasul, 542 U.S. at 497-98.57 Id. at 480.58 Id. at 501 (Scalia, J. dissenting) ("Since 'jurisdiction and control' obtained through lease is nodifferent in effect from 'jurisdiction and control' acquired by lawful force of arms, parts of Afghanistanand Iraq should logically be regarded as subject to our domestic laws.").59 Raslll, 542 U.S. at 506.60 Boumediene, 128 S.Ct. at 2294.61 Id. at 2300-02.62 [d. at 2303-06.63 Id. at 2307.

164 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWan enemy militia and who is merely a citizen caught in the midst of battle. Theuse of detention and interrogation of captured detainees is essential to weed outthose who are truly a threat to national security and the U.S. troops.64 If extensiveperiods of detention are necessary to protect national security, it is warranted.However, the United States is keeping the activities and treatment of thedetainees held at Guantanamo Bay secret, which enables skeptics and critics toignore the fact that such detention may be for national security purposes. It feedsinto the public hysteria and outcry for justice and the extension of U.S. legaljurisdiction.PAST TRENDSIn lohnson v. Eisentrager,65 the Supreme Court was tasked with determiningwhether aliens should be granted access to U.S. federal court jurisdiction. InEisen trager, twenty-one German citizens were tried in China by a U.S. militarycommission for conspiracy against the United States by aiding and abetting Japanafter Germany's surrender; a violation of the law of war.66 The Court held that"the Constitution does not confer a right of personal security or an immunityfrom military trial and punishment upon an alien enemy engaged in the hostileservice of a government at war with the United States.,,67 Furthermore, theCourt held that an enemy alien or non-citizen outside the United States' jurisdiction,like Guantanamo Bay, will not be afforded the same rights and privileges asif he or she were detained within the jurisdictionallimits. 68After September 11, 2001, all those captured in Afghanistan were held atGuantanamo Bay because under Eisentrager, Guantanamo Bay was not deemedunder United States' territory for jurisdictional purposes. 69 However, the SupremeCourt redefined Guantanamo Bay Naval Base's jurisdictional standing in64 See Charles Stimson, Holding Terrorists Accountable: A LaWful Detainment Framework forthe Long War, THE HERITAGE FOUNDATION, Jan. 23, 2009, available at http://www.heritage.orglresearch/nationalsecurityllm35.cfm#_ftn5(stating, "Military detention of some detainees is appropriate,consistent with long historical practice, and a necessary and lawful tool in the current conflict .... Yetmilitary detention, properly calibrated and designed to complement our broader national security andcounterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamobut also for future captures of high-value detainees.").65 Johnson v. Eisentrager, 339 U.S. 763 (1950).66 [d. at 766. See also [d. at 788 ("Capitulations agreed upon between contracting parties musttake into account the rules of military honour. 'Once settled, they must be scrupulously observed byboth parties: 'If there is one rule of the law of war more clear and peremptory than another, it is thatcompacts between enemies, such as truces and capitulations, shaU be faithfully adhered to; and theirnon-observance is denounced as being manifestly at variance with the true interest any duty, not onlyof the immediate parties, but of all mankind." (citations omitted».67 [d. at 785.68 [d.69 [d.

MISSING IN ACfION 165Rasul v. Bush. 70 In Rasul, fourteen nationals from countries not at war with theUnited States were detained at Guantanamo Bay for allegedly engaging in acts ofaggression against the United States, without receiving access to a tribunal, noticeof any charges against them, or a conviction of wrongdoing?1 The Court heldthat "[a]liens held at the base, no less than American citizens, are entitled toinvoke the federal courts' authority" under statutory provisions because "there islittle reason to think that Congress intended the geographical coverage of thestatute to vary depending on the detainee's citizenship.,,72 This decision by theSupreme Court, extending the United States jurisdiction to the Guantanamo BayNaval Base, essentially undermined the holding of Eisentrager. The SupremeCourt relied heavily upon the lease agreement with Cuba, which granted theUnited States "complete jurisdiction and control" over the naval base area. 73The Court disregarded the argument that Cuba retained complete sovereigntysince U.S. troops held the detainees at the naval base which was, by the leaseagreement, under U.S. jurisdiction and control. 74For the first time, the Court determined the detainment issue regarding aUnited States citizen apprehended as a member of an opponent force in Hamdi v.Rumsfeld. 75 Hamdi was a U.S. citizen by birth, but his family members werecitizens of Saudi Arabia. Sixty days prior to his capture he and his family movedback to Saudi Arabia. The Northern Alliance, which found Hamdi with theTaliban in an active combat zone in Afghanistan holding an assault rifle,76 laterturned him over to the United States military. The U.S. government viewedHamdi as an enemy combatant, thus justifying "holding him in the United Statesindefinitely - without formal charges or proceedings - unless and until it makesthe determination that access to counselor further process is warranted. ,,77 TheSupreme Court held that there is no bar on holding a U.S. citizen as an enemycombatant because "[ c ]itizens who associate themselves with the military arm ofthe enemy government, and with its aid, guidance and direction enter this countrybent on hostile acts, are enemy belligerents within the meaning of ... the law ofwar. ,,78 The Court reasoned that detention of a combatant was "necessary andappropriate force" to prevent the combatant from returning to the battlefield?9However, the Court held that under the Geneva Convention, Hamdi was entitled70 Rasul v. Bush, 524 U.S. 466 (2004).71 [d. at 476.72 [d. at 481 (referencing the habeas corpus provision 28 U.S.c. § 2241).73 [d. at 480. See also Cuban-American Treaty, supra note 2.74 Rasul, 524 U.S. at 480.75 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).76 The Northern Alliance is "a coalition of military groups opposed to the Taliban government."[d. at 510.77 [d.78 [d. at 519.79 Hamdi, 542 U.S. at 519.

166 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWto a formal determination of his enemy combatant status. The Court determinedthat the indefinite detention of a U.S. citizen as an enemy combatant "for thepurpose of interrogation is not authorized,,8o because a U.S. citizen has the rightto contest his enemy combatant status in front of a neutral decision maker. 81A military commission convened to try an alleged enemy combatant wasfound to structurally and procedurally violate the Geneva Convention inHamdan v. Rumsfeld. 82 Pursuant to Congressional authorization to the Presidentin the Authorization For Use Of Military Force Against Iraq Resolution Of2002,83 allowing force against those involved in the September 11, 2001, attacks,84President Bush "issued a comprehensive military order intended to govern the'Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.',,85 The Order included any non-citizen whom the President determined"'there is reason to believe' that he or she (1) 'is or was' a member of al Qaeda or(2) has engaged or participated in terrorist activities aimed at or harmful to theUnited States.,,86 Under this Order, a person found to have met these criteria"shall" be tried by a military commission, but only for the offenses triable by sucha commission and punished accordingly, which includes imprisonment or death. 87Militia forces captured Hamdan, a Yemeni national, during hostilities against theTaliban in Afghanistan and released him to the U.S. military.88 The U.S. militarytransported Hamdan to Guantanamo Bay where he was alleged to have committedfour "overt acts:" 1) acting as Osama bin Laden's bodyguard and personaldriver; 2) arranging transportation and actually transporting weapons used byalQaeda members and bin Laden's bodyguards; 3) driving or accompanying binLaden to "al Qaeda- sponsored training camps, press conferences, or lectures;"and 4) receiving "weapons training at al Qaeda-sponsored camps.,,89 After aCombatant Status Review Tribunal determined Hamdan to be an enemy combatant,a military commission proceeding followed. 90 The Supreme Court reasonedthat although the President was authorized by Congress' Joint Resolution, thatauthorization did not expand the President's "authority to convene military com-80 ld. at 521.81 ld. at 537.82 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (finding also that the Uniform Code of MilitaryJustice was violated.).83 Authorization for Use of Military Force Against Iraq Resolution of 2002, HJ. Res. 114, Pub.L. No. 107-243, 116 Stat. 1498 (2002), available at http://www.iraqwatch.orglgovemmentlUSlLegislationlhirc-hjresl14report-100702.pdf.84 Hamdan, 548 U.S. at 557.85 Id. at 568.86 Id.87 ld.88 Hamdan, 548 U.S. at 566.89 ld. at 570.90 ld.

MISSING IN ACTION 167missions. ,,91 The Court held that the President is "bound to comply with the ruleof law that prevails in this jurisdiction," thereby granting Hamdan access to U.S.district courts. 92 In reliance upon a military commission provision referencingthe "laws of war," the Court selectively incorporated only aspects of the GenevaConvention that it found convenient to undercut the President's Executive Powerauthorizing such military commissions. 93 In doing so, the majority changed thevery nature of the Geneva Convention and made it self-executing rather thannon-self-executing. 94In the wake of the Hamdan decision, President George W. Bush signed theMilitary Commissions Act of 2006 ("MCA"), which authorized trial by militarycommissions for violations of the law of war by any "alien unlawful enemy combatant.,,95Violations of the law of war, however, by "lawful enemy combatants,,96are subject to the Uniform Code of Military Justice. 97 The MCAessentially applies two different standards for enemy combatants, based on nationalorigin, by dividing enemy combatants into "unlawful" and "lawful," which91 Id. at 594.92 Id. at 635.93 Hamdan, 548 U.S. at 716-18.94 "Legal instruments may be self-executing according to various standards. For example, treatiesare self-executing under the Supremacy Clause of the U.S. Constitution (art. VI, § 2) if textuallycapable of judicial enforcement and intended to be enforced in that manner." BLACKS LAW DlenoN­ARY 643 (3d pocket ed. 2006). See also Human Rights First, Hamdan v_ Rumsfeld Background Informationon the Legal Issues in the Case, http://www.humanrightsfirst.orglus_law/inthecourtslsupreme_courChamdan_bg.htm (last visited Apr. 20,2009) ("Courts generally refer to international treaties as"self-executing" if they create rights that can be enforced in court without the need for further legislationto implement those rights.").95 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified at 10U.S.C.A. §§ 948a- 950w (2006». An unlawful enemy combatant is defined as:(i) a person who has engaged in hostilities or who has purposefully and materially supportedhostilities against the United States or its co-belligerents who is not a lawful enemycombatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or(ii) a person who, before, on, or after the date of the enactment of the Military CommissionsAct of 2006, has been determined to be an unlawful enemy combatant by a CombatantStatus Review Tribunal or another competent tribunal established under the authority of thePresident or the Secretary of Defense.10 U.S.C.A. § 948a(1)(A) (2006).96 A "lawful enemy combatant" is defined as one who is:(A) a member of the regular forces of a State party engaged in hostilities against theUnited States;(B) a member of a militia, volunteer corps, or organized resistance movement belongingto a State party engaged in such hostilities, which are under responsible command, wear afixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the lawof war; or(C) a member of a regular armed force who professes allegiance to a government engagedin such hostilities, but not recognized by the United States."10 U.S.C.A. § 948a(2) (2006).97 10 U.S.C.A. §§ 801-881 (2006).

168 VNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWis a violation of the Geneva Convention and international law. The MCA statesthat a trial by a military commission "shall not apply,,98 the following provisions:1) speedy trial;99 2) self-incrimination;100 and 3) pre-trial investigation. lOl TheMCA also does not allow an "alien unlawful enemy combatant" to "invoke theGeneva Convention as a source of rights.,,102 This legislation ultimately strippedthe detainees of any opportunity of receiving a fair hearing by an impartial decision-maker.Also in 2006, the JCRC worked closely with the United States' administrationto implement improvements at Guantanamo Bay. The JCRC requested that theUnited States "define the status and rights of individual detainees/internees andto ensure they fitted [sic] into a proper and adequate legal framework providingthe relevant procedural safeguards.,,103 The ICRC urged the United States tocomply with the Geneva Convention and any other recognized international standardsthat are applicable "concerning the treatment of detainees/internees andtheir conditions of detentionlinternment."l04 Because of the JCRC, communicationswere restored and maintained between the Guantanamo Bay detainees andtheir families. lOS The JCRC also presented a report to the United States of itsfindings and recommendations for the detention facility, in which the UnitedStates agreed to make improvements to the detainees' conditions. IOO However, adisagreement remained as to what constituted "an appropriate legal frameworkfor U.S. detention operations.,,10798 10 V.S.C.A. § 948b(d)(I) (2006) (emphasis added).99 10 V.S.c.A. § 948b(d)(I)(A) (2006) (referencing 10 V.S.C.A. § 810 (1956) which states inpart, "When any person subject to this chapter is placed in arrest or confinement prior to trial, immediatesteps shall be taken to inform him of the specific wrong of which he is accused and to try him orto dismiss the charges and release him.").100 10 V.S.C.A. §948b(d)(I)(B) (2006) (referencing 10 V.S.c.A. §§ 831(a), (b), (d) (1982),which states (a) No person subject to this chapter may compel any person to incriminate himself or toanswer any question the answer to which may tend to incriminate him." (b) No person subject to thischapter may interrogate, or request any statement from, an accused or a person suspected of anoffense without first informing him of the nature of the accusation and advising him that he does nothave to make any statement regarding the offense of which he is accused or suspected and that anystatement made by him may be used as evidence against him in a trial by court-martial. (d) Nostatement obtained from any person in violation of this article, or through the use of coercion, unlawfulinfluence, or unlawful inducement may be received in evidence against him in a trial by courtmartiaL).101 10 U.S.c.A. § 948b(d)(1)(C) (2006) (referencing 10 U.S.C.A. § 832 (1996».102 10 U.S.C.A. § 948b(g) (2006).103 INT'L COMMITIEE OF THE RED CROSS ANNUAL REPORT 2006: EUROPE AND THE AMERI­CAS, 301 (2006), http://www.icrc.org/web/eng/siteengO.nsflhtmlaI1l738d8t1$file/icrc_ar_06_eucamerica.pdf?openelement.104 [d.105 [d. at 302.106 [d.107 [d. at 301.

MISSING IN ACfION 169The Supreme Court in Boumediene v. Bush granted by far the most expansiveextension of rights afforded to Guantanamo Bay detainees. !Os In Boumediene,non-U.S. citizens captured in Afghanistan detained at Guantanamo Bay were deniedaccess to federal court jurisdiction under the MCA because it effectivelydenied federal court jurisdiction to actions pending at the time of its enactment.109 The Court reasoned that three factors should be considered to determinewhether jurisdiction should be extended to Guantanamo Bay: 1) "thedetainees' citizenship and status and the adequacy of the process through whichthat status was determined;" 2) "the nature of the sites where apprehension andthen detention took place;" and 3) "the practical obstacles inherent in resolvingthe prisoner's entitlement to the writ. ,,110 In applying these factors to the petitionerdetainees, the Court held that the detainees were entitled to privilege ofaccess to federal court jurisdiction because 1) the adequacy of the process used todetermine their status was lacking; 2) they were transferred from regions abroadto Guantanamo Bay which is under United States' control; and 3) there wereminimal obstacles due to the proximity of Guantanamo to federal court jurisdictions.1l1 The Court further held that "the United States, by virtue of its completejurisdiction and control over the base, maintains de facto sovereignty over thisterritory." 112While the United States Supreme Court has been grappling with the jurisdictionalissues surrounding the detainees at Guantanamo Bay, the internationalcommunity has been defining basic rights and freedoms afforded to detainees,especially those concerning the right to a fair trial. The most prominent treatyencompassing these due process rights is the International Covenant of Civil andPolitical Rights ("ICCPR"),113 which has similar provisions to those provided forin the Geneva Convention, American Declaration of the Rights and Duties ofMan,114 and the American Convention on Human Rights. 1lS The ICCPR states108 Boumediene v. Bush, 128 S.Ct. 2229 (2008).109 [d. at 2242.110 [d. at 2259.111 [d. at 2259-60.112 [d. at 2253.113 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (Dec. 16,1966), available at http://www.law.georgetown.edu/rossrights/docs/pdfs/UN-ICCPRhc.pdf [hereinafterICCPR). The United States ratified the ICCPR on Jun. 8,1992, with it taking effect Sep. 8, 1992, witha declaration that articles 1-27 are not self-executing. UNITED NATIONs-TREATY SERIES, INTERNA.TIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, RATIFICATION BY UNITED STATES OFAMERICA (1992), http://untreaty.un.orglhumanrightsconvS/ChapCIV _ 4/reservationslUSA.pdf.114 AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN, ADOPTED BY THE NINTHINTERNATIONAL CONFERENCE OF AMERICAN STATES, BOGOTA, COLOMBIA (1948), http://www.oas.orglD IV American_Declaration_oCthe_Rights_and_Duties_oCMan.pdf [hereinafter American Declaration].Although this is a declaration and not legally binding as a treaty, the Inter-American Courtand the Inter-American Commission on Human Rights have held that "the American Declaration istoday a source of international obligations for the OAS [Organization of American States] member

170 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthat "everyone shall be entitled to a fair and public hearing by a competent, independentand impartial tribunal established by law.,,116 Like the Geneva Conventionfor POWs, the ICCPR holds that the right to a fair trial should be anessential right provided for all. The prolonged detention of Guantanamo Baydetainees without receiving charges placed against them is in violation of Article9(1) of the ICCPR, which states "[n]o one shall be subjected to arbitrary arrest ordetention."tt7 Furthermore, Article 9(2) provides that "[a]nyone who is arrestedshall be informed, at the time of arrest, of the reasons for his arrest and shall bepromptly informed of any charges against him. "t18 A detainee has the right to beinformed of the charges against him in a language that he understands as providedfor in Article 14(3)(f).119For detainees charged with a criminal offense, Article 9(3) of the ICCPR statesthat a person "shall be brought promptly before a judge or other officer authorizedby law to exercise judicial power and shall be entitled to trial within a reasonabletime or to release.,,120 Moreover, Article 14(2) holds that "[e]veryonecharged with a criminal offense shall have the right to be presumed innocent untilproved guilty according to law."t2t However, this does not prove true for thedetainees at Guantanamo Bay who have not been charged let alone been affordedan opportunity for a trial. Detainees are also afforded the right "[t]o haveadequate time and facilities for the preparation of his defense and to communicatewith counsel of his own choosing" under the ICCPR. 122 Therefore, a detainee'scounsel should be granted access to any information, files, anddocuments necessary for the preparation of the defense and the right to conferwith the detainee in private. Article 15(1) is a key provision within the ICCPRrelating to the detainees at Guantanamo Bay who were neither captured in anactive war zone nor bearing arms. The Article provides "[n]o one shall be heldgUilty of any criminal offence on account of any act or omission which did notstates." ORGANIZATION OF AMERICAN STATES INTER-AMERICAN CoURT OF HUMAN RIGHTS, BASICDOCUMENTS PERTAINING To HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM 7 (2003). http://www.corteidh.or.cr/docs/librosIBasinglOl.pdf.115 Department of International Law, American Convention on Human Rights "Pact of SanJose, Costa Rica," Nov. 22, 1969, http://oas.orgljuridico/englishltreatieslb-32.html(signed by theUnited States June 1, 1977.) [hereinafter ACHR].116 ICCPR, supra note 113, art. 14. See also American Declaration, supra note 114, at art. 18(Right to a Fair 'Dial).117 ICCPR, supra note 113, art. 9(1). See also ACHR, supra note 115 art. 7(3); American Declaration,supra note 114, art. 2 (Right to equality before law).118 ICCPR, supra note 113, art. 9(2). See also ACHR, supra note 115, art. 7(4).119 ICCPR, supra note 113, art. 14(3)(f). See also ACHR, supra note 115, art. 8(2)(a) (A detaineeis entitled "[t]o have the free assistance of an interpreter if he cannot understand or speak thelanguage used in court.").120 ICCPR, supra note 113, art. 9(3). See also ACHR, supra note 115, art. 7(5).121 ICCPR, supra note 113, art. 14(2). See also ACHR, supra note 115, art. 8(2).122 ICCPR, supra note 113, art. 14(3)(b). See also ACHR, supra note 115, art. 8(2)(c).

MISSING IN ACfION 171constitute a criminal offence, under national and international law, at the timewhen it was committed.,,123FUTURE TRENDSJustice Scalia powerfully concluded in his Boumediene v. Bush 124 dissent, "TheNation will live to regret what the Court has done today.,,12s As Justice Scaliafeared and predicted in Boumediene,126 the potential expansion of U.S. jurisdictionto detention facilities abroad has come to the forefront in the recent UnitedStates District Court for the District of Columbia decision Al Maqaleh v.Gates. 127 In Al Maqaleh, four detainees, one a citizen of Afghanistan, were capturedoutside Afghanistan's borders. 128 These men were detained as enemy combatants"for six or more years" at the United States Air Force base at Bagram. 129All four detainees allege they are not enemy combatants. 13o Judge Bates heldthat in applying the Boumediene factors,131 the three detainees who are non­Afghan citizens are "virtually identical" to Guantanamo Bay detainees. 132 JudgeBates reasoned because they are non-citizens "apprehended in foreign land;" detainedas enemy combatants in another foreign land;133 and the "practical obstaclesinherent in resolving" their detention at Bagram, while only slightly greaterthan at Guantanamo Bay due to the active war zone, are not insurmountablesince the United States chose to transfer them to Bagram, where the UnitedStates asserts a "degree of control.,,134 Judge Bates further held in regards to thefourth detainee, "[w]hen a Bagram detainee has either been apprehended in Afghanistanor is a citizen of that country, the balance of factors may change," re-123 ICCPR, supra note 113, art. 15(1}. See also ACHR, supra note 115, art. 7,8.124 Boumediene v. Bush, 553 U.S. _, 128 S.Ct. 2229 (2008).125 [d.126 Id.127 AI Maqaleh v. Gates, 2009 WL 863657 (D.D.C. Apr. 2, 2009).128 AI Maqaleh, 2009 WL 863657, at *1,3.129 AI Maqaleh, 2009 WL 863657, at *1, 3. (While the term 'enemy combatant' has been abandonedin reference to detainees held at Guantanamo Bay, it is still in use at Bagram. Recently, theExecutive Branch has decided to abandon the term 'enemy combatant' as to detainees held at GuantanamoBay, but not necessarily for those at Bagram. Each of these petitioners was determined to bean enemy combatant through the process at Bagram for determining a detainee's status, and that termhas been employed by the parties in the briefing) (citations omitted».130 Id. at *3.131 The three Boumediene factors discussed in AI Maqaleh are "(I) the citizenship and statusof the detainee and the adequacy of the process through which that status determination was made;(2) the nature of the sites where apprehension and then detention took place; and (3) the practicalobstacles inherent in resolving the prisoner's entitlement to the writ." AI Maqaleh, 2009 WL 863657,at *8.132 [d. at *2.133 Here "foreign land" refers to any area that is not directly in the United States, land that is"far from the United States." Id.134 Id.

172 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWsuiting in the unavailability of expansion of U.S. jurisdiction to that detainee. 135It is predicted that Judge Bates' decision will be overturned on appeal;136 however,given the Supreme Court's decision in Boumediene, it seems more likelythat it will be upheld. Like Boumediene, Al Maqaleh undermines the UnitedStates' ability to detain those people deemed necessary for national security purposes.It also undermines the basic purpose for detention, which is "to preventcaptured individuals from returning to the field of battle and taking up arms onceagain.,,137Another area in which such an extension of U.S. jurisdiction may apply isPresident Obama's Executive Order 138 concerning Guantanamo Bay and the detaineeswithin. As one of his first acts, President Obama ordered GuantanamoBay closed within one year. 139 In accordance with this process, he began thereview of evidence against each detainee still held at Guantanamo Bay to determinewho can be released and who cannot be released prior to a tria1. 140 Theorder also requires all U.S. personnel to follow the U.S. Army Field Manualwhen interrogating detainees, which explicitly prohibits "threats, coercion, physicalabuse and waterboarding.,,141 Currently, this order does not extend to othermilitary detention facilities abroad also holding detainees. 142 Should PresidentObama extend this order to military detention bases abroad, he too will underminethe United States' ability to detain enemy combatants throughout and forthe duration of hostile situations. Without detention of enemy combatants inwartime, President Obama runs the risk of increased espionage, treason, enemymilitia numbers, and loss of U.S. lives without ramifications for the actions ofenemy combatants.RECOMMENDATIONSThe possible extension of U.S. jurisdiction to military bases abroad, as posedby the Al Maqaleh decision, is a direct result of the Pandora's box the Supreme135 Id. (emphasis added).136 Charlie Savage, Detention at Afghan Base Is Subject to U.S. Courts, N.Y. TIMES, Apr. 3,2009, A14.137 Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).138 Exec. Order No. 13492,74 Fed. Reg. 4897 (Jao. 22, 2009), available at 2009 WL 166956 andhttp://www.whitehouse.gov/the_press_office/ClosureOfGuaotanamoDetentionFacilitiesl.139 74 Fed. Reg. 4897, sec. 3. See also David Espo, Obama draft order calls for closing GuantanamoBay, ASSOCIATED PRESS, Jan. 21, 2009, http://www.gopusa.com!news/2009/january/012Cobama~itmo.shtml; Savage, supra note 136.140 74 Fed. Reg. 4897, sec. 4. See also Espo, supra note 139.141 Obama orders CIA prisons, Guantanamo shut: President also orders that all interrogationsmust follow Army manual, Apr. 20, 2009, http://www.msnbc.msn.comlidl287881751 (last visited April20,2009) [hereinafter MSNBC Obama]. For a definition of waterboarding, see ide ("[A] techniquethat creates the sensation of drowning and has been termed a form of torture by critics.").142 Savage, supra note 136. However, it does extend to CIA "secret 'black site' prisons" usedto interrogate suspected terrorists. MSNBC Obama, supra note 141.

MISSING IN ACTION 173Court has opened with its decisions in Rasul and Boumediene. 143 In his dissent ofthese cases, Justice Scalia predicted and feared that such an extension would essentiallybe the result of the majority's extension of U.S. jurisdiction to GuantanamoBay. It is understandable as to why the Supreme Court eventuallyextended jurisdiction to detainees at Guantanamo Bay since the United Statesretains "complete jurisdiction and control" over the base. However, it becomesillogical to extend the same jurisdiction to those military facilities that are notunder the "complete jurisdiction and control" of the United States. Many of thefacilities used for detention are within active war zones interning those who maypose a more substantial threat to U.S. troops and U.S. national security thanthose transferred to Guantanamo Bay. Furthermore, a detainee closer in proximityto these war zones may more readily take up arms again upon release froma detention center abroad. For these reasons, it is imprudent to allow the furtherextension of U.S. jurisdiction to detainees interned in international military facilities,especially those near active areas of conflict.President Obama's current policy plan to close Guantanamo Bay is altogetherpremature. In response to international and national pressures calling for theclosure of the base and release of detainees, President Obama is aggressivelyadvocating for Guantanamo Bay's closure. However, the real driving force behindthe anti-Guantanamo Bay pressure is the failure to apply POW status to thedetainees interned at the base resulting in ill-treatment and denial of due process.By merely closing the base and providing the current detainees access to courtsand due process, President Obama is not addressing the United States' poor applicationof the Geneva Convention. The closure is essentially a band-aid appliedto the real problem. The United States expects other High Contracting Parties toprovide POW status to any captured U.S. troop but is not willing to extend thesame status to citizens of other High Contracting Parties, as demonstrated byGuantanamo Bay. Without addressing the underlying error of POW application,the extension of due process to current Guantanamo Bay detainees does not preventa similar situation from reoccurring in the future. Even closure of GuantanamoBay will not prevent future reoccurrences of this nature because there areother United States bases around the world that are currently interning detainees.Therefore, if President Obama wants to truly fix the problems at GuantanamoBay, he should delve into the realities of how the application process of theGeneva Convention is actually utilized by the United States rather than simplyclosing the base.With the push for the closing of Guantanamo Bay, President Obama has initiatedan expedited review process of evidence, or lack thereof, against each detainee.The ultimate goal of these reviews is the immediate release of "innocent"detainees and trials for those determined to be "terrorist" detainees. However,143 Rasul, 542 U.S. at 466; Boumendiene, 128 S.Ct. at 2229.

174 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWhad the United States properly determined that there are POWs interned atGuantanamo Bay, rather than maintaining its blanket refusal of POW status ofdetainees, this review process would have already been in place and continuouslyavailable for detainees. The Geneva Convention would have been applicable tothe detainees determined to be POWs, granting them a right to a fair hearing andcounsel, as provided by Articles 84 and 105. The Geneva Convention Article 84states,A prisoner of war shall be tried only by a military court, unless the existinglaws of the Detaining Power expressly permit the civil courts to try a memberof the armed forces of the Detaining Power in respect of the particularoffence alleged to have been committed by the prisoner of war.In no circumstance whatever shall a prisoner of war be tried by a court ofany kind which does not offer the essential guarantees of independence andimpartiality as generally recognized, and in particular, the procedure ofwhich does not afford the accused the rights and means of defence [sic.]provided for in Article 105. 144Article 105 states in part,The prisoner of war shall be entitled to assistance by one of his prisonercomrades, to defence [sic.] by a qualified advocate or counsel of his ownchoice, to the calling of witnesses and, if he deems necessary, to the servicesof a competent interpreter. He shall be advised of these rights by the DetainingPower in due time before the trial.[ ... ]He [the advocate or counsel] may, in particular, freely visit the accused andinterview him in private. He may also confer with any witness for the defence,including prisoners of war.145However, an application of Article 84 to the Guantanamo Bay detainees bythe United States would create a conflict between the MCA by Congress and theSupreme Court's decision in Hamdan. The MCA authorizes the use of militarycommissions for detainees, but does not afford any simulation of a fair hearing.On the other hand, Hamdan affirms that certain "structures and procedures ofmilitary commission[s]" violate the Geneva Convention and should not be appliedto try "purported enemy combatant[s].,,146 Regardless of this conflict, it isclear that neither military commissions nor extension of U.S. jurisdiction toGuantanamo Bay have made any extraordinary strides towards granting fairhearings. Under the Geneva Convention, detainees should have right to counsel,either of their choice or provided for them, and access to confer with that coun-144 Convention on POWs, supra note 10, art. 84.145 Convention on POWs, supra note 10, art. 105.146 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

MISSING IN ACfION 175sel. But, the current situation at Guantanamo Bay leaves the detainees entirelyunaware that litigation on their behalf is even occurring.147 Furthermore, thepossibility of indefinite detainment of detainees without ever receiving a chargeor trial to determine enemy combatant status is inexcusable. 148 The UnitedStates, in proper compliance with the Geneva Convention, should bring onlythose to trial that have been found to have evidence against them of committingcrimes. If, after a specified time frame in which the detainee has been internedby the United States, evidence is still not found against him and he is not charged,he should be released immediately. However, upon release the United Statesshould make appropriate arrangements for the detainee to return back to hiscountry of origin. If there are threats of human rights violations occurring to thedetainee upon returning, the United States should aid in finding a country willingto take the detainee, as Ireland has stated it is willing to dO. 149A majority of the problems associated with the detentions at Guantanamo Baystem from the lack of an international body with the ability to enforce the GenevaConvention. The United States has been able to claim there are no detaineesqualified as POWs held at Guantanamo Bay because there is no treaty bodyto enforce the application of Article 4. An enforcing treaty body for the GenevaConvention could reasonably be incorporated into the ICRC. In doing so, thebody could be set up similar to the Human Rights Committee,150 which overseesand enforces the ICCPR. The Human Rights Committee consists of eighteenindependent experts 151 that monitor the implementation of the ICCPR by memberstates. 152 All member states are obligated to submit regular reports detailing147 Cuba - Guantanamo Bay, supra note 38 ("JOE MARGUILES: Not only have I not metthem, they don't know that litigation's even going on, they don't even know that the litigation is goingon their behalf and we're not allowed to tell them.").148 Id. ("DANIEL CAVOLl, ICRC Head of Mission: The big problem we have is that all thesepeople are in a legal limbo, they cannot challenge their detention and they've been kept until nowsine.: 15 months outside judicial process completely."). See also, Al Maqaleh, 2009 WL 863657, at *1(D.D.C. Apr. 2,2(09) (Detainees were held for "six or more years.").149 Amnesty International, Ireland's offer to accept Guantanamo detainees must be matched,http://www.amnesty.orglenlnews-and-updates/newslirelands-offer-accept-guant%C3%A1namo-detainees-must-be-matched-20090320(last visited Apr. 20, 2009) (Currently, Obama is working with theEuropean Union to determine if released detainees will be accepted into any European countries bytheir governments.).150 Office of the United Nations High Commissioner for Human Rights, Human Rights Committee:Monitoring civil and political rights, http://www2.ohchr.orglenglishlbodieslhrclindex.htm (lastvisited Apr. 27, 2009) [hereinafter Human Rights Committee].151 OVERVIEW OF UN HUMAN RIGHTS COMMITTEE, POWERS, FUNCfIONS AND PERFORMANCEOF THE ICCPR COMMITTEE 1, http://iilj.orglcourses/documentslOverviewofUNHumanRts.Comm.pdf.The experts are chosen representatives from the eighteen sitting countries who have "personal capacity,"high moral character", and "recognized competence" with emphasis on their "compelling legalexperience, the compelling inference is that Committee members are to act independently of thegovernments of their states, not under orders of their government." Id. at 1-2.152 Human Rights Committee, supra note 149.

176 UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW"how the rights are being implemented.,,153 These reports are reviewed by thecommittee experts who then address any concerns, violations, and recommendationsto the member state in "the form of 'concluding observations.' ,,154 Shouldthe ICRC incorporate a similar committee to enforce the Geneva Convention,countries would be held accountable for their actions and may be more apt tocorrectly apply the protections detainees should be afforded under the GenevaConvention. However, if the ICRC took on the enforcement of the Geneva Convention,it would place itself in a precarious position creating more harm for thedetainees because countries would be less likely to allow the ICRC into theirfacilities to aid detainees without the assurance of the utmost confidentiality thatthe ICRC currently upholds.Regardless of whether an enforcing treaty body is created, the United Stateshas always maintained that its own laws are "the supreme law of the land,,155 andany treaty or international document in conflict with those laws will be disregarded.However, if the treaty body truly had the power and authority to enforcethe Geneva Convention, it should essentially trump any law created by theUnited States that may conflict with it. But to date, there has not been a treatybody that the United States has recognized as having authority over it or its enforcementof a treaty. As articulated in Medellin v. Texas, "[w]hile a treaty mayconstitute an international commitment, it is not binding domestic law unlessCongress has enacted statutes implementing it or the treaty itself conveys an intentionthat it be 'self-executing' and is ratified on that basis.,,156 With the creationof a treaty body with the authority to bind all High Contracting Parties to theGeneva Convention, there would be little doubt of mistreatment of detaineeswho are afforded POW status.CONCLUSIONThe United States has tarnished its own international and national reputationwith its constant refusal to acknowledge that prisoners of war are interned atGuantanamo Bay effectively restricting the application of the Geneva Conventionand prisoner of war status to the detainees. The United States has remainedtight-lipped about activities at Guantanamo Bay leaving the public to rely uponaccusations by released detainees and the media as to what is actually occurring.While the U.S. Supreme Court has extended de facto jurisdiction to the GuantanamoBay detainees, it has simultaneously created the possibility and inevitabilityof further extension of U.S. jurisdiction to other U.S. military bases in active warzones abroad. Rather than close Guantanamo Bay, as President Obama has pro-153 [d.154 [d.155 u.s. CONST. art. 6.156 Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 1348 (2008).

MISSING IN ACTION 177posed, efforts should be put into correcting the prevalent mistakes of applicationof the Geneva Convention and POW status to prevent a similar situation fromoccurring in the future. Regardless of the detainees' classifications, they are entitledto a fair hearing either under the Geneva Convention as a paws or underthe ICCPR. However, to effectively resolve all the issues present at GuantanamoBay and hold the United States responsible for its actions, an international treatybody with the authority to enforce the Geneva Convention is a necessity. TheUnited States, in its "War on Terror," has been able to blatantly ignore theproper application of prisoner of war status to detainees essentially stripping boththe United States and its' detainees of their dignity and self-respect.