Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

Spring 2021 || Vol. 2 || No. 2 

b r o w n 

u n d e r g r a d u a t e 

l a w r e v i e w 

The Brown Undergraduate Law Review is Brown University?s 

student-written and student-run journal of legal scholarship.

www.brownulr.org 

2

BROWN 

UNDERGRADUATE 

LAW REVIEW 

2021 || Volume 2 || Issue 2 

Editorial Board and Staff 

UNITED STATES LAW 

EDITORS 

Chaelin Jung '23 (Head) 

Noah Glickman '23 

Sonia Kelly-Manning '22 

Christopher Morillo '21 

EDITOR-IN-CHIEF 

Jordan Kei-Rahn '21 

EDITOR-IN-CHIEF 

Filippo Zinni '21 

MANAGING EDITOR 

Ilana Duchan '23 

INTERNATIONAL LAW 

EDITORS 

Sophia Matthews '22 (Head) 

Hing Lai Sophia Chan '22 

David Del Terzo '23 

Adriana Lorenzini '22 

COPY EDITORS 

Amber Fehrs '22 

Katherine Harty '24 

Edan Larkin '23 

Kiara Moon '24 

Anna Park '23 

Daniel Poloner '24 

FACULTY ADVISOR 

Ari Gabinet 

Senior Fellow, 

Watson Institute 

Legal Expert in Residence 

CREATIVE TEAM 

Zeynep Aydin '23 (Director) 

Nayoung Choi '24 

Elaine Wang '24 

SPECIAL THANKS TO OUR SPONSORS: 

THE PRINCETON REVIEW 

THE BROWN LEGAL HISTORY WORKSHOP 

Brown Undergraduate Law Review 

3

A LETTER FROM 

THE EDITORS 

For our final time as editors-in-chief, we are proud to present the Spring 2021 issue of the Brown 

Undergraduate Law Review (BULR). This moment marks one full year since our organization?s public 

introduction into the greater Brown community, a year replete with challenges owing both to the global 

SARS-CoV-2 pandemic and the BULR?s rapid expansion. We can still recall our final staff meeting before the 

mass exodus from campus in March 2020: a group of nine colleagues methodically discussing new submissions 

and initial plans for remote editing procedures. While our overall mission has never wavered, the BULR hardly 

resembles this pre-COVID manifestation. Instituting stronger and more efficient selection and editing criteria as 

well as new digital platforms such as the Blog, our staff more than quadrupled to 37 members, far exceeding the 

capacity of our former meeting space in the Watson Institute. This expanded team navigated our third semester 

of virtual operation, contributing new methods to optimize our efficacy while engendering closer relationships 

with authors. We owe all our accomplishments to the outpouring of student support for and engagement with 

our organization that enabled this mind-boggling growth. In many ways, the tumultuous nature of pandemic life 

provided the perfect stress test for our burgeoning publication, allowing our team to mature and excel in a 

hyper-complicated and ever-changing environment. We remain confident that this institutional memory will 

allow the BULR to master the inevitable future vicissitudes. 

As purveyors of substantive legal discourse, we typically reserve this letter partially as a means of 

acknowledging current legal issues plaguing both the United States and the greater world. Yet, the word 

4

A Letter from the Editors 

?current? wrongly implies a sense of transiency, a sense that these topics remain ephemeral, appearing one 

semester and dissipating by the next. Deep wounds, however, require time and care; COVID-19 hospitalizations 

and deaths, 2020 U.S. Presidential Election strife, the January 6th Capitol insurrection, and the murders of 

George Floyd and numerous other people of color? the oozing blood of our wounds. These tragic phenomenon 

represent symptoms, not products, of glaringly insufficient legal systems long in need of recognition and repair. 

Yet, time does not await positive action and wounds continue to accrue: the increase in anti-Semitic and 

anti-AAPI hate crimes escalate and uncertainty abounds over the future structure of the U.S. Supreme Court. 

The BULR remains dedicated to civil discourse of these critical legal issues. We hope that historical, 

theoretical, and pragmatic analyses of law and public policy permits our readers to synthesize an informed 

understanding of how our institutions can continue to evolve and improve. 

Establishing such impactful dialogue remains possible only thanks to the insightful authors featured in 

our flagship publication and the Blog. The articles contained herein represent only a fraction of the stimulating 

and worthy submissions the BULR received. The intellectual ingenuity, legal fluency, and stunning prose of our 

fellow students continually impress. Ranging from international space law (a topic particularly relevant given 

the recent venture of Jeff Bezos and Sir Richard Branson) to Native American tribal sovereignty to medical 

autonomy, our authors present a diverse range of topics discrete from prior volumes. We are humbled that 

members of the Brown community allow us to take a small role in their legal journey. We hope that the 

subsequent pages provide illumination and inspiration to the careful reader. 

With sincere gratitude, we thank all our thought-provoking authors; our diligent editorial board; our 

prolific Blog staff; our faculty advisor, Ari Gabinet; and our sponsors, the Princeton Review and the Brown 

Legal History Workshop. We would also be remiss in failing to express our sincere appreciation for Michael 

Vorenberg of Brown?s History Department. Both Professor Gabinet and Professor Vorenberg have provided 

invaluable advise and tutelage both in our BULR endeavors and our own personal development; for this, we 

owe them a debt of gratitude. As we continue our own legal pursuits? Jordan at Yale Law School and Filippo at 

Georgetown Law Center? we look forward to spreading the BULR?s mission of creating accessible, unbiased 

platforms to highlight law-related discourse. We have come to view the BULR as an intellectual child, and thus 

also relish the opportunity to continue supporting the organization in advisory capacities as alumni consultants. 

As we take a slight step back, it is our pleasure to announce Ilana Duchan and Sophia Matthews as our 

successor editors-in-chief. We are confident that their leadership will provide the energy necessary for the 

continued expansion of the BULR, especially as we look toward greater engagement with faculty and alumni. 

As our mission of magnifying the voices debating timely and timeless legal issues continues, we once 

again sound our familiar refrain: May our words inspire a more just world. 

Sincerely, 

Jordan Kei-Rahn '21 Filippo Zinni '21 

Editors-in-Chief 

5

TABLE OF 

CONTENTS 

The Failure of the Treatment of Low-level 

Offenders in the Juvenile Justice System 

Morgan Awner 

Targeting Muslims and Civil Liberties Prevention: 

An Analysis of CVE and TVTP's Infringements on 

First Amendment Rights 

Luqmaan Bokhary 

Standardizing Autonomy: Medical 

Communication, Liability, and the Doctrine of 

Informed Consent 

Liza Edwards-Levin 

The Legal Precedents for Police Brutality: The 

Enduring Legacy of the Objective Reasonableness 

Standard 

Deepak Gupta 

The International Space Law Regime in the 

Modern Era 

Christopher Kobel 

Climate Refugees: Protection Gaps in the 

International Law 

Sophia Matthews 

Native Sovereignty, Jurisdiction, and the Epidemic 

of Sexual Violence against Native Women 

Deborah Meirowitz 

Proscribable Thoughts 

Chris Morillo 

. . . . . page 7 

. . . . . page 21 

. . . . . page 32 

. . . . . page 46 

. . . . . page 57 

. . . . . page 66 

. . . . . page 75 

. . . . . page 91 

. . 

6

THE FAILURE OF THE 

TREATMENT OF LOW-LEVEL 

OFFENDERS IN THE JUVENILE 

JUSTICE SYSTEM 

Morgan Awner 

ABSTRACT 

The juvenile justice system was created to rehabilitate youth, instead of forcing them into the punitive adult criminal 

justice system. However, there are 48,000 youth under the age of 18 in secure detention facilities around the United 

States. There is a large overlap between those in the juvenile justice system and youth who experience high rates of 

trauma. However, a trauma-informed approach alone will not replace the procedural failures of the juvenile justice system 

that encourages paternalistic intervention and surveillance of youth. 

By analyzing the juvenile justice system?s origins in post-slavery America through a critical race lens, this paper shows 

how the juvenile justice system functions exactly as intended: to punish low income youth of color. This historical 

analysis, as well as an investigation into Supreme Court jurisprudence that fails to extend all due process protections to 

youth offenders, illustrates a juvenile justice system in desperate need of reform. 


7

The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System 

Juvenile Justice: The Problem 

standing, the due process rights and equal protection 

statuses of these minors were never fully investigated by 

When Alin N. was 13 years old, the Providence School 

the courts. 

District filed a petition to truancy court to judge Alin as 

?wayward? and habitually truant. Alin suffers from 

sickle-cell anemia, a genetic disorder that causes severe 

pain and swelling, which often results in missed school. 

Because of his condition, Alin had an Individualized 

Education Plan, under Section 504 of the federal 

Rehabilitation Act, that stated he would not be punished 

for his absences. Despite extensive documentation, the 

truancy judge issued an arrest warrant for Alin and ordered 

his attendance at school that day and the next 30 days. 

Within two hours of returning to school, Alin was rushed 

to the hospital due to severe chest pain. It was not until 

months later, when a public defender presented evidence of 

Alin?s medical condition and Section 504 plan, that the 

judge dismissed Alin?s case. 1 

As Justice Fortas wrote in In re Gault, ?Under our 

Constitution, the condition of being a boy does not justify 

a kangaroo court.? 2 However, that is exactly what Alin 

experienced in the Truancy Court, a subdivision of the 

Rhode Island Family Court system. Alin was just one of 

The Bill of Rights guarantees citizens substantial 

protections in the context of government investigation and 

prosecution, including in respect to searches and arrest 

under the Fourth Amendment, due process, the privilege 

against self-incrimination and double jeopardy in the Fifth 

Amendment, and the right to a speedy and public trial, 

cross-examination, and counsel by the Sixth Amendment. 4 

Youth are often denied these same protections in the 

juvenile justice system, as illustrated by Alin?s case. 

Justice Fortas wrote in Gault that ?neither the Fourteenth 

Amendment nor the Bill of Rights is for adults alone,? but 

the Court has specifically endorsed in cases such as In re 

Gault, In re Winship, and McKeiver v Pennsylvania lower 

due process standards for juveniles precisely because they 

are children. 5 

Since the founding of the juvenile justice system, 

informality and flexibility have been endorsed in order to 

ensure rehabilitation instead of punishment. The right to 

counsel, a jury or public trial, sworn testimony, and the 

multiple plaintiffs in the class action lawsuit Boyer v. privilege against self-incrimination have not been 

Bedrosian, which detailed due process violations by 

Truancy Courts in Rhode Island. The complaint detailed 

failure to assign counsel, insufficient notice, and improper 

waiving of constitutional rights, rights which were 

extended to juvenile courts with In re Gault by the 

Supreme Court. Boyer v. Bedrosian was resolved by an 

11th-hour administrative order that rendered the class 

action suit moot. 3 Due to mootness, and subsequent loss of 

guaranteed by the juvenile justice system. The Supreme 

Court, recognizing the lack of procedural safeguards, ruled 

in 1967 with In re Gault to extend some due process 

protections to the juvenile court system, but denied full 

due process protections to juveniles that are afforded to 

adults in the criminal justice system. 6 The Court rests its 

decision on the doctrine of parens patriae, the power of 

the state to act for the welfare of the child. 7 However, with 

1. Boyer v. Bedrosian, 57 A.3d 259 (2012). 

2. In re Gault, 387 U.S. 1, 39 (1967), (Fortas, J., plurality opinion). 

3. Boyer v. Bedrosian, 57 A.3d 259, 271 - 274(2012). 

4. U.S. Constitution, Amend. IV, V, VI. 

5. In re Gault, 387 U.S. 1, 13. 

6. In re Winship, 397 U.S. 358, (1970). 

7. Irene Merker Rosenberg, ?The Rights of Delinquents in Juvenile Court: Why Not Equal Protection?? Criminal Law Bulletin 45, no. 5 (September 

- October 2009), 734. 


8


weaker liberty standard, many children are incarcerated for 

low-level offenses without an adequate defense nor 

Furthermore, there is no greater indicator of dropping out 

of school and decreased success in the labor market. 15 

procedural safeguards. In their most formative years, these 

A quarter of all these incarcerated juveniles are imprisoned 

children stand to lose the most in mental health, 

for low-level and low-risk offenses like technical 

educational attainment, and future prospects as a result of 

violations and status offenses. This class of juvenile 

incarceration. The juvenile court system exposes children 

offenses, including truancy, curfew violations, and running 

to the worst of both worlds. 

away, are only criminalized for those under 18. 16 

The United Nations Convention on the Rights of the Child 

requires the detention of children be a last resort, but all 

too often in the United States it is the first. 8 At any given 

moment, there are 48,000 youth in secure detention 

facilities around the United States. 9 10 The US leads the 

world in the incarceration of juveniles, along with the 

number of children sent to adult jails and prisons? 95,000 

Low-level offenses often result from a lack of basic 

necessities or illustrate manifestations of failures in a 

child?s home life or school. Instead of being directed to a 

network of community social services, these children are 

too often forced into juvenile courts or informal pre-court 

diversion programs. 17 

To end the ineffective and rampant incarceration of 

in 2011. 11 Incarcerated youth are more likely to have 

children, low-level offenses must be taken out of the 

mental illnesses, and are disproportionately youth of color, 

jurisdiction of juvenile courts in favor of evidence-based 

low-income, LGBTQ+, and designated for special 

community programs. Furthermore, for children in the 

education. 12 Not only does the juvenile detention system 

jurisdiction of juvenile courts, probation must be 

exacerbate racial disparities, the incarceration of youth is 

transformed for a smaller population with less surveillance, 

counterproductive and harmful. Incarcerated youth have 

and attorneys need to be provided to juveniles at all stages 

suicide rates that are two to four times higher than the 

of court proceedings. 

national youth average. 13 Detention can increase 

recidivism rates, and pull youth farther into the criminal 

justice system. 14 There is no greater single indicator of 

Juvenile Courts: A Discriminatory System 

Separate treatment for youth in criminal settings has its 

future incarceration than previous incarceration. roots in the reformatories and settlement houses of the 

8. United Nations Office of the High Commissioner on Human Rights, ?Convention on the Rights of the Child,? November 20, 1989, 

https://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx. 

9. ?Juvenile Justice,? Youth.gov, Youth.gov, (November 21, 2020), https://youth.gov/youth-topics/juvenile-justice. 

10. Wendy Sawyer, ?Youth Confinement: The Whole Pie,? Prison Policy Initiative, December 19, 2019, 

https://www.prisonpolicy.org/reports/youth2019.html. 

11.Human Rights Watch, ?World Report 2016: Rights Trends in Children Behind Bars,? (2016), 

https://www.hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north#. 

12. Monique W. Morris, Mankaprr Conteh, Melissa Harris-Perry, ?Pushout: The Criminalization of Black Girls in Schools,? (2018). 

13. Amanda McNelly, ?Truancy, Secure Detention, and The Right to Liberty,? Suffolk Journal of Trial & Appellate Advocacy 24 (2018 / 2019), 112. 

14. Barry Holman and Jason Ziedenberg, ?The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities,? 

Justice Policy Institute, (2017). 

15. Ibid. 

16. Sawyer, 16. 

17. Daniel J. Gibbs, ?Status Offenses and Dejudicialization: Establishing a Right to Counsel in Informal Diversion Proceedings,? UC Davis Journal 

of Juvenile Law & Policy 19 (2015), 126. 


9


early nineteenth century. The first rehabilitation home for 

youth opened in 1824 with New York?s House of Refuge. 

The House gave food, shelter, and education to poor, 

homeless white boys. Not until 10 years later were Black 

children admitted to the House of Refuge, with less care 

and rehabilitation than that which was granted to white 

children. The New York House of Refuge considered the 

rehabilitation of Black boys a ?waste of resources and a 

debasement of whites.? 18 By the time these reform ideas 

spread to the South, slavery had ended, and convict leasing 

was rampant. Convict leasing was legalized slavery, where 

prisoners, especially Black prisoners, were lent to private 

parties for labor without pay. By 1890, more than 18% of 

all Black prisoners in the United States were juveniles. 

Death, torture, and abhorrent conditions were common 

with convict leasing, especially among youth. 19 

Juvenile Courts: A Discriminatory System 

Separate treatment for youth in criminal settings has its 

roots in the reformatories and settlement houses of the 

early nineteenth century. The first rehabilitation home for 

youth opened in 1824 with New York?s House of Refuge. 

The House gave food, shelter, and education to poor, 

homeless white boys. Not until 10 years later were Black 

children admitted to the House of Refuge, with less care 

and rehabilitation than that which was granted to white 

children. The New York House of Refuge considered the 

rehabilitation of Black boys a ?waste of resources and a 

debasement of whites.? By the time these reform ideas 

spread to the South, slavery had ended, and convict leasing 

was rampant. Convict leasing was legalized slavery, where 

prisoners, especially Black prisoners, were lent to private 

parties for labor without pay. By 1890, more than 18 

percent of all Black prisoners in the United States were 

juveniles. Death, torture, and abhorrent conditions were 

common with convict leasing, especially among youth. 

As convict leasing exploded in the postwar South, 

progressive reformers in the North known as ?child-savers? 

advocated for the first juvenile court system. As noted by 

the Supreme Court in subsequent juvenile jurisprudence, 

?They [child-savers] believed the society?s role was not to 

ascertain whether the child was ?guilty? or ?innocent,? but 

?What is he, how has he become what he is, and what had 

best be done in his interest and the interest of the state to 

save him from a downward career.? 20 Accordingly, to 

facilitate rehabilitation, juvenile courts had fewer 

formalities than the criminal justice system, lacking due 

process procedures explicitly laid out by the Bill of Rights 

for the accused. Juvenile courts have been distinct from the 

regular system since the first was established in Chicago in 

1899. 21 However, this conception of youth rehabilitation 

only applied to poor white and European immigrant youth 

at its inception. Purposefully excluded from this notion of 

rehabilitation were Black and non-white youth. A North 

Carolina juvenile court judge of the early 20th century 

admitted there was a ?widespread feeling? that whipping 

is the most effective way of handling delinquent Negro 

boys.? 22 This pattern of juvenile justice continued across 

the United States, where white, poor youth being afforded 

rehabilitation opportunities while Black and non-white 

youth were more severely punished in these informal 

proceedings. 

The Tough on Crime Era 

While juvenile reforms continued throughout the 1960s 

and 70s, the 80s and 90s brought the ?tough on crime? 

18. Robin Walker Sterling ?A Broken Shield: a Plea for Formality in the Juvenile Justice System,? University of Maryland Law Journal of Race, 

Religion, Gender and Class 13, (2013): 242. 

19. Ibid., 243. 

20. In re Gault, 387 U.S. 1, 15. 

21. Sterling, ?Broken Shield,? 243. 

22. Robin Walker Sterling, ?Fundamental Fairness: In re Gault and the Road Not Taken,? Maryland Law Review 72, (2013): 607. 


10


attitude to juvenile justice. The term ?super-predator? 

entered the national consciousness, which referred to ?a 

young juvenile criminal who is so impulsive, so 

remorseless, that he can kill, rape, maim, without giving a 

second thought.? 23 This term, coined by Princeton 

academic John Dilulio Jr., frenzied the white-dominated 

media, which warned of a "moral poverty" in Black 

communities. This fear brought a wave of prosecutors, 

judges, and politicians pledging to be tough on juvenile 

crime. By 1997, 17 states amended state law to rewrite the 

goal of juvenile justice as ?punishment, public safety, and 

accountability.? Currently, only three states have statutes 

that state the primary interest of juvenile proceedings as 

the best interests of the child, the original intent of the 

child-savers of the late 19th century. 24 

The effects of the ?tough on crime? era on Black and 

non-white youth were disastrous. Between 1983 to 1987, 

four out of every five children in detention were children 

of color. 25 The incarceration and arrest rates of youth of 

color and white youth continue to be disproportionate to 

this day, stemming from implicit bias. 26 One 1998 study 

found that probation officers were more likely to attribute 

of color being incarcerated. 

Status Offenses and Technical Violations 

While the juvenile justice system is detrimental to all 

youth involved, it is especially harmful to low-level 

offenders. These low-level offenders include those with 

status offenses, such as truancy, running away, and curfew 

violations, along with technical violations, for instance 

violations of probation rules. Probation rules are strict and 

can include compelling school attendance, following house 

rules, or attending meetings with probation officers. These 

low-level offenders are caught in a juvenile justice system 

that values control and detention over rehabilitation. 

Status offense jurisdiction of juvenile courts resulted from 

the supposed threat of crime from poor and immigrant 

youth. With the adoption of compulsory education after 

World War II, schools were facing an ?epidemic of juvenile 

delinquency? as a result of increased class size and an 

inability to respond to the social and cultural needs of their 

students. 28 This led to a rise of standardized school 

discipline policies, as opposed to the doctrine of in loco 

parentis that was dominant before World War II. In loco 

criminal activity to character rather than outside factors in 

parentis grants authority to teachers and school 

Black youth. Another recent study, in 2012, found that the 

general population was more likely to blame a juvenile 

defendant if that defendant was Black. 27 Because of the 

lack of due process rights and the informality and 

discretion permissible in juvenile proceedings, these 

implicit biases result in disproportionate numbers of youth 

administrators to act as parents in school and apply 

individualized discipline as they see fit. 29 This doctrine, 

which literally means ?in the place of the parent,? has its 

origins in 18th century England and was first judicially 

upheld in Gott v. Berea College (1913), stating colleges 

acting in loco parentis had authority over students? 

physical and moral welfare. 30 With new district-wide 

23. Priyanka Boghani, ?They Were Sentenced as ?Superpredators.?Who Were They Really?? PBS, (May 2, 2017). 

24. Sterling, ?Broken Shield,? 238. 

25. Ibid., 250. 

26. Sawyer. 

27. Ibid. 

28. Judith Kafka, ?Struggle for Control in the 1960s: In The History of Zero Tolerance in American Public Schooling,? New York City, New York: 

Palgrave Macmillan, (2011), 76-96. 

29. Ibid. 

30. Theodore C. Stamatakos, ?The Doctrine of In Loco Parentis, Tort Liability, and the Student-College Relationship,? Indiana Law Review 55, 

(1990), 471. 


11


standardized discipline measures, police presence in 

schools increased, along with referrals to juvenile courts. 31 

Many of these policies first took hold in large 

minority-concentrated urban districts. As more young men 

However, for the states that allow incarceration on the 

valid court order (VCO) exception, the incarceration rates 

are greatly disproportionate for youth of color. 37 The VCO 

exception specifically circumvents the intent of the JJDPA, 

of color were shepherded into the to end the incarceration of status offenders, and has led to 

school-to-prison-pipeline, status offenses also criminalized 

anti-feminine behavior in women, such as promiscuity and 

alcohol consumption. 32 

As a result of centralized discipline policies, status 

offenders and low-level offenders began to crowd the 

juvenile justice system, paving the way for the federal 

Juvenile Justice and Detention Prevention Act (JJDPA) of 

1974. This law conditions federal grant money on the 

removal of detention sentences for status offenses. 33 In 

contrast to the law's intention, the JJDPA does not 

eliminate the detention of status offenders. The law allows 

for judges to use ?valid court orders? or mandatory 

conditions to students who plead guilty to a status 

the incarceration of over 7,000 status offenders annually. 

In 2014, 27 states continued to use this exception, with 

Utah using the VCO exception to incarcerate more than 

2,000 juveniles in one year. 38 

The Department of Justice Office of Juvenile Justice and 

Delinquency Prevention along with the National Council 

of Family and Juvenile Court Judges supported the repeal 

of the VCO exception for decades, based on the abundance 

of evidence that incarceration worsens outcomes for status 

offenders in school completion, mental health, and future 

job prospects. Incarceration is also costly, with secure 

detention costing on average $149,000 for one child per 

year. 39 

offense. 34 These conditions can include school attendance, 

It was not until 2018 that the JJDPA was reauthorized with 

curfew, substance abuse treatment, and any other measures 

stricter requirements for incarceration. The 2018 

the court deems fit. 35 Valid court orders are enforced with 

reauthorization, co-sponsored by Senator Chuck Grassely 

the threat of incarceration for failure to comply. Most 

(R-IA) and Senator Sheldon Whitehouse (D-RI), caps the 

states lack a statutory definition for valid court orders, and 

incarceration of status offenders at seven consecutive days, 

many states do not allow judges to use valid court orders. 

even with a valid court order. 40 The law also recognizes the 

These states follow the intentions of the JJDPA, and have 

disproportionate number of youth of color in the juvenile 

deemed that the distinction between status offenders and 

justice system and strengthens protections for girls, 

delinquents must be upheld. 36 

31. Ibid. 

32. Morris et. al. 

33. Ibid., 115. 

34. Juvenile Justice and Detention Prevention Act, Pub. L. No. 93-415, 42 U.S.C. § 5601 et seq., (1974). 

35. ?Use of the Valid Court Order,? SOS Project, Coalition for Juvenile Justice, November 21, 2020, 

https://www.juvjustice.org/our-work/safety-opportunity-and-success-project/issue-areas/vco. 

36. Gibbs, 126. 

37. Sawyer. 

38. ?Use of the Valid Court Order.? 

39. Jeffrey A. Butts and Douglas N. Evans, ?Resolution, Reinvestment and Realignment: Three Strategies for Changing Juvenile Justice,? John Jay 

College of Criminal Justice, City University of New York, (2011). 

40. Juvenile Justice and Detention Prevention Act, Pub. L. No. 93-415, 42 U.S.C. § 5601 et seq. 


12


especially those who have been trafficked or are victims of the goals and objectives, documenting the performance, or 

sexual violence. 41 

measuring the outcomes of probation.? 43 With confusing 

guidelines, subjectivity and bias are rampant. 55 percent of 

Like status offenses, technical violations are often 

all probation dispositions in 2014 involved youth of color, 

committed by low-risk youth who are convicted of 

and youth of color made up 68 percent of all youth 

misdemeanors. Juvenile courts use both formal and 

incarcerated on technical violations in 2015. 

informal probation to track and control delinquents without 

44 

Furthermore, probation is a deficit-based approach, 

detention. Formal probation is ordered by a judge after 

meaning it highlights the failures of youth without room 

conviction, where the youth is to be supervised by a 

for growth or acknowledgement of circumstances. Many 

probation officer. Informal probation occurs in pre-court 

juvenile crimes, like many crimes in general, are related to 

diversion programs, where youth are still monitored, but 

institutional or outside failures: lack of school resources, 

without a formal court appearance. Both formal and 

unsafe communities, abuse, and many other factors beyond 

informal probation violations can lead to incarceration if 

the child?s control. In some states, the average probation 

youth do not comply with rules, which can include 

period is 12 months, meaning one full year of a child?s 

anything from skipping school, missing a probation officer 

development is spent under strict supervision. 

meeting, or not complying with a parent?s house rules. 

45 

Incarceration is Detrimental for Juveniles 

Those incarcerated because of a probation violation make 

up 15 percent of juveniles in secure detention or Juvenile detention is harmful for brain development, 

out-of-home placement. 42 Just as with status offenses, mental health, and the socialization of youth. Incarcerated 

detention is often counterproductive and increases the youth have suicidal rates quadruple that of other youth, 

probability of recidivism. While probation may have the and 18 percent of incarcerated youth have depressive 

well-meaning intention of rehabilitating youth, it imposes disorders, compared to 4 percent of all youth. 46 

strict rules while providing little support. 

Incarcerated youth are also more likely to have substance 

abuse disorders, and are at greater risk for self harm. 

Probation fails to provide rehabilitation or forgiveness to 

47 

These numbers provide a staggeringly negative picture of 

youth. Probation?s failure is partly due to a lack of 

juvenile detention in which the children most at risk for 

uniformity among states, or even among officers of the 

mental health crises are more likely to be incarcerated. 

same jurisdiction. As the National Center for Juvenile 

These youth are funneled from their communities into 

Justice stated, ?nobody is given responsibility for stating 

secure detention centers, which often lack basic mental 

41. Act 4 Justice Juvenile Justice, ?Overview of the Juvenile Justice Reform Act of 2018,? National Juvenile Justice and Delinquency Prevention 

Coalition, (December 2018), 

http://www.act4jj.org/sites/default/files/resource-files/JJDPA%20Reauthorization%20Summary%20December%202018.pdf, 2. 

42. Sawyer. 

43. Patricia Torbet and Patrick Griffin, ?Desktop guide to good juvenile probation practice,? National Center for Juvenile Justice, (2002), 

www.ncjj.org/Publication/Desktop-Guide-to-Good-Juvenile-Probation-Practice.aspx. 

44. Annie E. Casey Foundation, ?Progress Accelerates for Eliminating Confinement as a Response to Juvenile Probation Violations,? (February 26, 

2019). 

45. Ibid. 

46. McNelly, 117. 

47. Vidhya Ananthakrishnan and Mahsa Jafarian, ?Just Kids: When Misbehaving Is a Crime,? Vera Institute, (August 16, 2017), 

https://www.vera.org/when-misbehaving-is-a-crime. 


13


resources. 48 

including different common spaces. This is to prevent 

children from abuse and physical assault by adults. 

Not only is detention detrimental for youths?mental health, 

Similarly, placing low-risk juveniles in detention exposes 

it is also ineffective for rehabilitation. There is no greater 

youth to others who have committed actual violent 

predictor of future incarceration than previous detention, 

even as compared to gang membership, weapons, or a poor 

parental relationship. 49 Detention inherently pulls youth 

crimes. 56 These interactions may be a strong factor of 

increased recidivism rates. 57 

further into both the juvenile and later criminal justice Overall, incarceration is costly and ineffective 

system. A study found that the incarceration of juveniles 

for truancy had no effect on later school attendance. 50 

Detained juveniles, who do not re-offend and have no 

subsequent interaction with the criminal justice system, are 

still up to 40 percent less likely to graduate, and have 

reduced success in future earnings. 51 52 Exposure to 

juvenile court, even without incarceration, increases crime 

rates in young adulthood threefold. 53 

rehabilitation, especially for low-level offenders. However, 

with the rise of school shootings, zero-tolerance policies, 

and the hysteria of juvenile superpredators, every state has 

changed their laws in some way to make it easier to 

incarcerate youth in the last 30 years. 58 Despite the 

abundance of research against and the cost of juvenile 

detention, more than 48,000 youth are currently confined 

in facilities away from home. 59 

While detention is detrimental for all youth, the risk is 

greatest for youth incarcerated for status offenses and 

technical violations. A meta-analysis of risk in juvenile 

detention found that intensive supervision had no effect on 

rehabilitation and increased recidivism rates for some low 

risk offenders. 54 This can be explained through the same 

logic of sight and sound separation for juvenile offenders. 

Sight and sound separation requires juveniles placed in 

adult jails or prisons to be separated by ?sight and sound,? 

Informal and Flexible Procedures 

The child-savers assumed that the government would have 

the best interests of youth in mind. Therefore, due process 

protections were not extended to juvenile delinquency 

proceedings, which were considered civil instead of 

criminal proceedings. 

In 1967, President Lyndon Johnson?s Commission on Law 

Enforcement and Administration of Justice released a 

48. Rani A. Desai et al., "Mental Health Care in Juvenile Detention Facilities: A Review." Journal of the American Academy of Psychiatry and the 

Law Online 34 (June 2006): 204. 

49. Holman and Ziedenberg. 

50. Dean Hill Rivkin, ?Truancy Prosecutions of Students and the Right [to] Education,? Duke Forum for Law & Social Change, (2011), 139-161. 

51. John Whibey, ?Juvenile incarceration and its impact on high school graduation rates and adult jail time,? Journalist?s Review, (2015). 


53. Uberto Gatti, et al., ?Effects of juvenile court exposure on crime in young adulthood.? Journal of Child Psychology and Psychiatry, vol. 54, no. 3, 

(2013), 291-297. 

54. Edward J. Latessa and Christopher T. Lowenkamp, ?Understanding the Risk PrincipleL How and Why Correctional Interventions Can Harm 

Low-Risk Offenders,? Topics in Community Corrections, (2004). 

55. The Coalition for Juvenile Justice, ?Sight and Sound Separation,? 

https://www.juvjustice.org/juvenile-justice-and-delinquency-prevention-act/sight-and-sound-separation. 

56. Latessa and Lowenkamp. 

57. McNelly, 117. 


59. Sawyer. 


14


report that included unprecedented research on the juvenile 

justice system. 60 The report detailed the failures of the 

juvenile justice system, stating, ?the great hopes originally 

held for the juvenile court have not been fulfilled. It has 

due process and fair treatment. The Court went further to 

detail four specific protections that juvenile courts must 

provide when there is a possibility of incarceration: 

adequate written notice of charges, a right to counsel, 

not succeeded significantly in rehabilitating delinquent privilege against self-incrimination, and 

youth, in reducing or even stemming the tide of 

delinquency, or in bringing justice and compassion to the 

cross-examination. 

Justice Fortas?opinion outlined the unfruitful intentions of 

child offender.? 61 Among the failures detailed in the report, 

the progressive child-savers to create an informal, flexible 

a study discovered half of juvenile court judges had no 

court environment for juveniles. Justice Fortas wrote, 

undergraduate degree, hearings often lasted no longer than 

?juvenile court history has again demonstrated that 

10 minutes per child, and half of judges did not have 

unbridled discretion, however benevolently motivated, is 

access to a psychologist or psychiatrist to diagnose and 

frequently a poor substitute for principle and procedure.? 64 

assist in treatment plans for children. 62 The report also 

The Court stated the Fifth Amendment privilege against 

noted that youth face the same retribution and punitive 

self-incrimination is ?unequivocal and without exception,? 

approaches of adult courts but without the same due 

and therefore applies to juvenile courts through the 

process protections. 63 

Fourteenth Amendment. 65 

The case that changed the landscape of due process 

In re Gault reversed and remanded the Arizona Supreme 

protections in juvenile courts, In re Gault (1967), came in 

Court on the grounds of due process. The Arizona 

the same decade as the Presidential Commission report. 

Supreme Court upheld the detention of Gault until he was 

The question before the Supreme Court in Gault regarded 

21. Notably missing from this argument was any Equal 

the precise due process requirements in juvenile 

Protection standard for juveniles, which would entail that 

delinquency proceedings. The case concerned 15-year-old 

any citizen, regardless of age, deserves equal protection 

Gerald Gault who was committed to juvenile detention 

under the law. In a memorable line, Justice Fortas stated 

until he was 21 for making a lewd phone call while on 

?under our Constitution, the condition of being a boy does 

probation. In his proceedings, Gault was not notified of his 

not justify a kangaroo court?. 66 Notably missing from this 

right to remain silent, not given adequate notice to prepare 

argument was any Equal Protection standard for juveniles, 

a defense or access to an attorney, and was denied the 

which would entail that any citizen, regardless of age, 

rights of confrontation and cross-examination. The 

deserves equal protection under the law. 

neighbor to whom he made the lewd phone call was never 

called to testify. Justice Fortas?majority opinion held that 

states? juvenile delinquency proceedings (those that may 

result in incarceration) must measure up to the essentials of 

The Court extended further due process protections to 

juvenile court proceedings in 1970 with In re Winship, 397 

US 358. In New York State, a 12 year old boy was 

60. Cheryl Corley, ?President Johnson?s Crime Commission Report, 50 Years Later,? National Public Radio, (2017). 

61. President?s Commission on Law Enforcement and Administration of Justice, "The Challenge of Crime in a Free Society" (Washington, D.C., 

United States Government Printing Office: 1967), 80. 

62. Ibid., 80. 

63. Ibid., 82. 

64. In re Gault, 387 U.S. 1, 18. 

65. Ibid., 47. 

66. In re Gault, 387 U.S. 1, 28. 


15


detained for stealing money from a women?s locker room. 

The judge used the standard of proof applicable in civil 

cases, as established by Section 744(b) of the New York 

Family Court Act, which is lower than ?beyond a 

reasonable doubt? required in criminal trials. The US 

Supreme Court declared the New York Family Court 

statute unconstitutional, requiring the standard of proof 

beyond a reasonable doubt in the adjudicatory stage of 

juvenile delinquency proceedings. 

The central argument on behalf of the State was that 

juvenile delinquency cases operated as civil cases and thus 

did not require the full protections of criminal cases, 

including the higher standard of proof. However, as the 

Court had decided in In re Gault, juvenile delinquency 

cases are considered civil as a "label of convenience" and 

the proceedings are entitled to the essentials of due process 

and fair treatment. Justice Brennan, writing for a 

five-member majority of the Court, said ?civil labels and 

good intentions do not themselves obviate the need for 

criminal due process safeguards in juvenile courts.? 67 The 

charged with a misdemeanor and placed on probation and 

the other detained after a felony conviction. In both cases, 

the judge denied the defendants a trial by jury. The North 

Carolina cases involved a group of 46 children, aged 11 to 

15, who were charged with various misdemeanors after a 

planned demonstration protesting a school consolidation 

plan. All these juveniles were also denied a trial by jury 

and a public trial. 

The Court ruled the due process clause of the Fourteenth 

Amendment did not grant the right to jury trial in state 

juvenile court delinquency proceedings. The opinion, 

written by Justice Harry Blackmun and joined by three 

other members of the Court, detailed that with In re Gault 

and In re Winship, the Court attempted to give procedural 

orderliness to the juvenile courts, while maintaining the 

atmosphere of flexibility, individuality, and rehabilitation. 

The Court stated mandating jury trials in the juvenile 

system would remake the courts into a "fully adversary 

process," against the founding principles of a separate 

juvenile court system. 69 

Court argued that these protections were constitutionally 

The appellants argued the proceedings were ?substantially 

necessary for the juvenile courts and would not 

similar?to a criminal trial, and therefore should be afforded 

compromise the confidentiality, informality, and flexibility 

the same due process protections granted in criminal trials. 

needed in juvenile proceedings. 68 

With the Court on a trend of increasing due process rights 

for juvenile courts, McKeiver et al. v. Pennsylvania (1971) 

marked the end of due process right expansions for 

juvenile proceedings. McKeiver combined two writs of 

certiorari, one from the state Supreme Court of 

Pennsylvania and the other from the state Supreme Court 

of North Carolina, to determine whether the due process 

clause gave the right to trial by jury for juvenile 

However, the Court disagreed, stating that the jury trial 

would not remedy the defects previously outlined in the 

juvenile justice system, both by the Court in Gault and 

through President Lyndon Johnson?s Commission on Law 

Enforcement and Administration of Justice report, which 

the Court cited in its opinion. On the contrary, the Court 

argued, a jury trial would not lend to the fact-finding 

function of the court, and the juvenile court system was 

still entitled to different functions, related to rehabilitative 

delinquency proceedings. The Pennsylvania cases goals, than criminal trials. 70 

concerned two boys, aged 15 and 16, one of whom was 

66. In re Gault, 387 U.S. 1, 28. 

67. In re Winship, 397 U.S. 366. 

68. Ibid. 

69. In re Winship, 397 U.S. 366, 545. 

70. McKeiver v. Pennsylvania, 403 U.S. 543. 


16


Limited due process protections were only extended to 

juvenile adjudicatory hearings and not other areas of the 

system like pre-court diversion. The removal of low-level 

offenses from formal court is favorable for youth 

outcomes, but the informality of pre-court diversions 

creates spaces where due process protections are not 

guaranteed. Some pre-court diversions are mandatory, 

?Families in Need of Services? and allocates oversight to 

the Department of Juvenile Justice and the vast non-profit 

Florida Network of Youth and Family Services. Florida has 

a weaker standard for petition to court but still mandates 

diversion or refusal of services before reaching family 

court. However, in both Florida and New York, as with all 

pre-court diversion programs, there is no right for youth to 

while others are not. Diversions often include appoint counsel if they cannot afford one. 75 

conversations with social services, mediators, or 

These procedures show the extensiveness of pre-court 

transformative justice coordinators. However, if pre-court 

diversion and the decisions made before a child steps into 

diversion fails, information from informal conferences 

the courtroom. While statements made in diversion cannot 

may be used by the court in depositions or sentencing. This 

be admitted prior to a conviction or fact-finding stage, 

possibility is often unclear to the family or child, who will 

these statements can be used in sentencing and disposition 

in turn unknowingly divulge incriminating information. 71 

hearings. 76 Further, although attorneys are not banned from 

This is contrary to the Fifth Amendment principle of the 

pre-court diversion proceedings, they are not provided. 

right against self-incrimination and sworn testimony, 

Since the majority of low-level offenders come from 

which was formerly applied to juvenile proceedings by the 

low-income families, the possibility of obtaining an 

Supreme Court in In re Gault. 72 

attorney without public assistance is minimal. 77 

Two pre-court diversion programs are in New 

Attorneys can be useful advocates for the child in informal 

York State and Florida. New York State classifies status 

proceedings. They can advocate for more diversion 

offenders as Persons In Need of Supervision (PINS), 

services to avoid formal proceedings, hold the court 

which includes status offenders or anyone who is 

accountable to due process rights, and suppress evidence 

?incorrigible, ungovernable, or habitually disobedient.? 73 

from fact-finding stages that may be prejudicial. Without a 

Under pre-court diversion, different agencies coordinate 

trained professional, a child and his or her family may not 

services and may attempt different intervention strategies 

know their rights that are at risk of being violated in 

(counseling, home-visits, etc.). For the youth to enter 

informal proceedings. Especially since many diversion or 

formally into family court, a petition must be filed by the 

probation programs require excessive surveillance, an 

lead social service agency attesting that ?all other options 

attorney may be able to advocate for reduced and more 

have been exhausted? and ?diligent efforts? were made. 74 

The state of Florida labels these same children as 

realistic requirements for the child. 78 Otherwise, a child or 

family may feel pressured to agree to all terms of probation 

71. Claire Shubik and Jessica Kendall, ?Rethinking Juvenile Status Offense Laws: Considerations for Congressional Review of the Juvenile Justice 

and Delinquency Prevention Act,? Family Court Review 45 (July 2007): 384. 

72. In re Gault, 387 US 1. 

73. N.Y. Fam. Ct. Act §711-784. 

74 N.Y. Fam. Ct. Act § 735(g)(ii). 

75. Gibbs, 143. 

76. Ibid., 141. 

77. Ananthakrishnan and Jafarian. 

78. Gibbs, 144. 


17


or diversion without understanding what is realistic for the 

situation. When unrealistic probation rules are put in place, 

and a child violates these rules, they can be forced into 

detention. An effective attorney advocate will understand 

these risks and navigate fair probationary and diversion 

programs. 

As established by In re Gault, the right to counsel is 

status, and other information to inform the judge. Without 

adequate time and investment in the child, incarceration 

may be used when a less restrictive and expensive option 

would be sufficient, like therapy or substance abuse 

treatment. 

A joint report from the Institute for Judicial Administration 

and American Bar Association advised counsel to be 

granted to juveniles when facing the possibility of present for juveniles from pretrial hearings to 

incarceration. 79 However, in many states, it is legal for 

children, or guardians, to waive the right to counsel for the 

child in juvenile hearings. In Ohio, a recent report by the 

National Juvenile Defender Center found that 80 percent of 

children accused of criminal wrongdoing were not 

represented by an attorney. 80 Many youth and their 

guardians may not understand the prospect of ?waiving?the 

right. In a study of competence to stand trial, youth were 

more likely to make choices deferring to authority, like 

accepting harsh probation standards or detention. 81 

post-disposition through the Juvenile Justice Standards 

(IJA-ABA, 1980). However, there are many barriers in 

accessing counsel in juvenile proceedings. Many states 

have no formal system to provide counsel, which gives 

discretion for judges to appoint counsel when available. 

Furthermore, since youth detention hearings occur only 24 

hours after an arrest, an attorney is often not appointed 

until the adjudication. This can result in children in 

pre-trial detention when they have never even met with an 

attorney. 

The waiver of attorneys is significant? as many as 90 

percent of adjudication hearings result in a plea bargain. 82 

Without adequate counsel, a child may not fully 

understand the plea bargain or the alternatives to accepting 

the bargain. By making uninformed decisions, and being 

influenced by a deference to authority, children are at risk 

for punishment and incarceration by a punitive system. 

Furthermore, In re Gault and subsequent cases only 

established a right to counsel at adjudication hearings, but 

disposition and post-disposition hearings are equally 

important for juveniles. Counsel at disposition hearings, 

where the court decides any placement or sanctions, can 

advocate for the child by presenting letters of support from 

the community, medical information, special education 

Due to these barriers, some youth may choose to waive 

their right to an attorney to be released from pre-trial 

detention. In Georgia, where bail can be set at $2,500 or 

more, many parents or children waive counsel to have an 

earlier hearing date. 83 In many states, youth can sign a 

waiver form without a guardian present and without first 

speaking to an attorney. 84 Further, even when public 

defenders are provided, they are often strapped with high 

caseloads and are therefore unable to use the total range of 

motions and investigations to defend their clients. 85 

Juvenile courts have a long way to go to ensure every child 

is given adequate counsel, as mandated by the 

Constitution. 

79. In re Gault, 387 US 1, 34. 

80. Judith B. Jones, ?Access to Counsel,? Juvenile Justice Bulletin: Office of Juvenile Justice and Delinquency Prevention, (2004), 8. 

81. Thomas Grisso et al., ?Juveniles?Competence to Stand Trial: A Comparison of Adolescents?and Adults?Capacities as Trial Defendants,? Law 

and Human Behavior 27, no. 4, (Aug. 2003): 333-363. 

82. Jones, 2. 

83. Ibid., 8. 

84. Ibid. 

85. Ibid., 19. 


18


The juvenile justice system is built on the idea of parens 

patriae, which, with origins in 14th century Chancery 

courts, vests in loco parentis power to the state. 86 In Schall 

Based on the risk principle, offenders should be provided 

with supervision and treatment that correspond with their 

probability of re-offending. In juvenile detention, low-risk 

v. Martin (1984), a case which affirmed the offenders, like status offenders or technical violators, are 

constitutionality of pre-trial detention of juveniles, the 

Court assumes a lesser liberty interest in children than 

adults because ?the juvenile?s liberty interest may, in 

appropriate circumstances, be subordinated to the State?s 

?parens patriae? interest in preserving and promoting the 

welfare of the child.? 87 Based on this interest, the Court 

aimed to strike a balance between the informality and 

flexibility of juvenile courts while providing the 

?fundamental fairness? demanded by due process in In re 

Winship. 

This parens patriae interest in the welfare of the child has 

not come to fruition for many children within the juvenile 

court system, especially the thousands of youth detained 

and incarcerated for low-level offenses. Detention is 

proven to be the least effective deterrent for later juvenile 

delinquency of all other methods of rehabilitation. Studies 

have found programs that include counseling and treatment 

to youth reduce recidivism and improve outcomes, while 

detention or programs that emphasize supervision tend to 

increase recidivism. 88 There are many other alternatives to 

detention and probation that are less restrictive and have 

better results in recidivism and rehabilitation, including 

restorative justice conferences, individualized counseling 

and social services, or even ?warn and releases?that leave 

the child without any record. 89 For example, cognitive 

behavioral therapy, one method of counseling for youth, 

mixed with high risk offenders who commit serious violent 

crimes or multiple serious misdemeanors. This leads to 

disruption for low-risk offenders; they are separated from 

families and communities and placed with anti-social and 

potentially violent youth. 91 Even the formal processing of 

juveniles in court, regardless of court outcomes, can lead 

to higher rates of future violent and nonviolent crime. 92 

The very institution whose mission is ?rehabilitation?may 

cause increased involvement in criminal activity. 

Not only is detention ineffective for decreasing recidivism, 

the effects of secure detention and out-of-home placements 

on youth are detrimental. Detention centers lack mental 

health treatment, substance abuse treatment, and even 

adequate educational services. Most alarmingly, three out 

of every ten youth confined in the United States has 

attempted suicide before. These youth are abandoned and 

placed in dire, unhealthy circumstances. 93 For such 

low-level, and frequently first time, offenders who pose 

low public safety risks, it begs the question: how can the 

state continue to justify their parens patriae interest over 

these children?s lives? Not only does detention have severe 

consequences for youth and families, detention itself 

hinders the facilitation of the state?s interest in the 

rehabilitation of youth to productive, full members of 

society. 

As Judge Fortas said, ?there is evidence, in fact, that there 

was shown to decrease recidivism rates by 26 percent. 90 

86. Douglas Rendleman, ?Parens Patriae: From Chancery to the Juvenile Court,? South Carolina Law Review 23, (1971): 205?260. 

87. Schall v. Martin, 467 US 253, 265 (1984). 

88. The Annie E. Casey Foundation. 

89. Ibid. 

90. Richard A. Mendel, ?No Place For Kids: The Case for Reducing Incarceration,? (2011), The Annie E. Casey Foundation, 

http://www.aecf.org/m/resourcedoc/aecf-NoPlaceForKidsFullReport-2011.pdf. 

91.Latessa and Lowenkamp. 

92. Gatti et al., 291-297. 

93. Mendel, 22. 


19


may be grounds for concern that the child receives the 

worst of both worlds: that he gets neither the protections 

accorded to adults nor the solicitous care and regenerative 

treatment postulated for children.? 94 The children in the 

juvenile justice system are exposed to the worst of both 

worlds, and will continue to be harmed in this system until 

low-level offenses are removed from the jurisdiction of 

these ?kangaroo courts?altogether, and placed instead into 

the care of the community. 

strategies that effectively rehabilitate status offenders, 

instead of involving a court system that is proven to 

increase future criminality. Community-based programs, 

that center the family and provide group therapy, have 

consistently improved outcomes for juveniles, both 

empirically and in observed changes. These methods are 

also cost-effective for the state and follow the founding 

principle of juvenile justice: rehabilitation. 

While more procedural protections, zealous attorney 

Conclusion 

advocacy for children, and rehabilitative-minded 

approaches can incrementally fix problems in the juvenile 

In November 2020, 50 prosecutors and 90 current and 

justice system, these solutions can not override the 

former probation officers issued a joint statement with the 

discriminatory and punitive founding of the juvenile 

organization EXiT (Executives Transforming Probation 

justice system. Children who have been stripped of their 

and Parole) calling to end incarceration for technical 

liberty do not feel rehabilitated. Justice Fortas feared 

probation violations, downsize probation, and make 

supervision more individualized and goal-orientated.? 95 children were receiving the ?worst of both worlds? within 

the juvenile justice system, and more than 50 years later, 

Even those most intimately involved in this surveillance 

his warning still rings true. 

system, prosecutors and probation officers, recognize that 

this two billion dollar system has gone too far. While a 

step in the right direction, reforms in the juvenile justice 

system have not fixed a system broken from inception. The 

failure of the juvenile justice system reaches farther 

beyond an overzealous probation system and the 

incarceration of low-level offenses for crimes better 

handled by community rehabilitation. The largest failure of 

the juvenile justice system is its systemic robbing of liberty 

from children. Instead of protection and benevolent 

rehabilitation, children are robbed of their liberty and due 

process in the name of control and punishment. 

Through state statute, the jurisdiction over status offenders 

can be removed from juvenile or family courts and placed 

in social services. By ending juvenile jurisdiction over 

status offenders, officials will be forced to reexamine 

social services, community interventions and other 

programs that play a role in the rehabilitation of these 

youth. This can encourage investment in community-based 

94. Kent v. United States, 383 U.S. 556, (1966). 

95. Miriam A. Krinsky and Vincent Schiraldi, ?Community supervision, once intended to help offenders, contributes more to mass incarceration,? 

USA Today, November 19, 2020. 


20

TARGETING MUSLIMS AND CIVIL 

LIBERTIES PREVENTION: 

AN ANALYSIS OF THE 

COUNTERING VIOLENT 

EXTREMISM PROGRAM?S FIRST 

AMENDMENT VIOLATIONS 

Luqmaan Bokhary 

ABSTRACT 

The post-9/11 world has ushered in a growing infatuation with securitization and counterterrorism programs, much of 

which have blatantly targeted and infringed upon the rights of Muslim communities in the United States. In 2011, 

President Obama announced the creation of the Countering Violent Extremism Task Force, a counterterrorism program, 

housed in the U.S. Department of Homeland Security and the Department of Justice, dedicated to preventing violent 

extremists and their supporters from further aiding extremist groups and ideology. Countering Violent Extremism 

programs sought to use community engagement and partnerships with law enforcement and government agencies to 

expand surveillance and intelligence gathering capabilities on Muslim communities. In this paper, I argue that the 

Countering Violent Extremism program is unconstitutional on three grounds: it infringes on the freedom of speech of 

Muslims, it burdens their free exercise of religion, and it discriminates against them on the basis of religion, thereby 

violating the Establishment Clause. 


21


An Analysis of the Countering Violent Extremism Program?s First Amendment Violations 

Introduction 

CVE seeks to prevent the proliferation of extremist 

ideologies; though previous programs have shared this 

American Muslims have borne the brunt of measures taken 

aim, CVE was the first to do so as an explicit part of its 

by federal, state, and local governments and law 

strategy. All of these approaches taken in the name of 

enforcement agencies aimed at preserving and advancing 

national security in the post-9/11 era are unconstitutional, 

national security in the aftermath of the 9/11 attacks. The 

as evidenced by both their strategic frameworks and their 

passage of the USA PATRIOT Act in 2001 was an 

effects on Muslim communities. 

inflection point in increasing securitization. Granting law 

enforcement agencies the authorization to enhance their This article will elucidate the deficiencies in the 

surveillance capabilities became the impetus for constitutionality of the CVE program. The first section 

ever-expanding counterterror programs. 

provides a brief history of the CVE, including an outline of 

the three pilot programs in Boston, Los Angeles, and 

These programs included divisions for research into the 

Minneapolis, and characterizes the prominent 

causes of terrorism itself. The prevailing theories on terror 

radicalization theories underpinning CVE programs, 

advanced by research analysts at the FBI and NYPD 

highlighting the central premise: an assumed causal 

identified adherence to Salafism or ?jihadi? interpretations 

relationship between adherence to Islam and participation 

of Islam as the primary precursors to extremist violence. 

in violent extremism. The second section, in reviewing 

These radicalization theories, coupled with new capacities 

three relevant Supreme Court cases, addresses the 

as a result of expanded security apparatuses, led to 

unconstitutionality of the CVE program based on its 

unprecedented intelligence gathering programs, both overt 

violation of freedom of speech under the First 

and covert. The National Security Entry-Exit Registration 

Amendment. The third section analyzes whether the 

System required male non-citizens entering the United 

targeting of entire Muslim communities by the CVE 

States from Muslim-majority countries to register with 

programs can meet the strict scrutiny standard for 

their local Immigration and Customs Enforcement office in 

burdening freedom of religion, a right protected by the 

an effort to track ?potential terrorists.? The NYPD Muslim 

First Amendment. The fourth section considers whether 

Surveillance Program recruited and supervised thousands 

the CVE program, motivated by blatant anti-Muslim 

of informants engaged in ?warrantless, blanket 

animus, violates the prohibition against the establishment 

surveillance of Muslim communities? in New York City, 

Pennsylvania, New Jersey, and parts of Connecticut. 1 of an official religion set forth in the First Amendment. 

This 

The article concludes that the CVE program is 

information gathering on supposed ?centers of terrorism? 

unconstitutional in all three regards? infringing on 

furthered de facto criminalization and created an air of 

freedom of speech, burdening the free exercise of religion, 

suspicion toward Muslim communities. 

and discriminating against American Muslims on the basis 

It is in the context of enhanced surveillance and 

of religion. 

counterterrorism efforts in the post-9/11 era that the 

Countering Violent Extremism (CVE) Task Force arose. It 

can be distinguished from previous programs by two main 

characteristics. First, instead of unilateral action on the part 

of government and law enforcement, CVE seeks to work 

with community partners to combat extremism. Second, 

Countering Violent Extremism Task Force 

The Countering Violent Extremism Task Force is a 

program, housed in the Department of Justice and the 

Department of Homeland Security, that was unveiled by 

the Obama administration in August 2011 with the purpose 

1. Asad Dandia, ?Bloomberg?s NYPD Spied On Me For Being Muslim. He Has Never Apologized,? Washington Post, February 20, 2020. 


22



of ?preventing violent extremists and their supporters 

from inspiring, radicalizing, financing or recruiting 

individuals or groups in the United States to commit acts 

?supplement law enforcement counterterrorism tactics 

such as surveillance, investigations, and prosecutions with 

a secondary set of prevention measures.? 8 

of violence.? 2 The White House makes it explicitly clear 

These programs can broadly be categorized into three 

that the CVE program intends to ?address the conditions 

groups: initiatives focused on finding ?extremist? 

and reduce the factors that most likely contribute to 

American Muslims, programs to fund social services to 

recruitment and radicalization by violent extremists,? 

American Muslims, and messaging that the government 

establishing itself firmly as a preventative program. 3 For 

believes will counter ISIS and other ?extremist? 

the purposes of CVE?s goals, violent extremists are defined 

propaganda. 9 The underlying theory behind such programs 

as ?individuals who support or commit 

is that there are distinct signs or criteria that lead people to 

ideologically-motivated violence to further political 

commit extremist violence, whether it is identifying with 

goals.? 4 

The CVE Task Force lays out three priority action areas: 

?(1) enhancing engagement with and support to local 

?extremist ideology,? facing social and/or economic 

hardships, and/or exhibiting unusual behavior patterns or 

alienation. The programs CVE funds are meant to root out, 

communities; (2) building government and law identify, and prevent such behaviors and ideologies. 

enforcement expertise for preventing violent extremism; 

Pilot Programs: Boston, Los Angeles, and 

and (3) countering violent extremist propaganda while 

Minneapolis 

promoting our ideals.? 5 At the national level, CVE seeks to 

direct federal departments and agencies to advance 

initiatives that enable CVE programs by means of funding 

research, disseminating best practices, issuing grants, and 

building partnerships with non-government stakeholders. 6 

At the local level, CVE efforts are meant to integrate ?into 

existing programs or overall public safety strategies? in 

collaboration with ?state and local authorities, U.S. 

Attorneys? offices, and other Federal agencies.? 7 In 

essence, these local CVE programs are meant to 

In September 2014, the U.S. Department of Justice 

established pilot CVE programs in Boston, Los Angeles, 

and Minneapolis. Each city?s program developed their own 

unique frameworks and priorities and were executed by the 

local U.S. Attorneys?offices. In implementing the Boston 

pilot program, the U.S. Attorney for the District of 

Massachusetts (USAO-MA) identified alienation among 

young people, encountering extremist propaganda over 

social media, and anger/frustration on U.S. foreign policy 

2. Executive Office of the President, Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United 

States (Washington, D.C., 2011), 1, https://obamawhitehouse.archives.gov/sites/default/files/sip-final.pdf. 

3. Executive Office of the President, Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United 

States (Washington, D.C., 2016), 2, 

https://www.dhs.gov/sites/default/files/publications/2016_strategic_implementation_plan_empowering_local_partners_prev.pdf. 

4. Ibid, 1. 

5. Ibid, 2. 

6. Ibid, 11. 

7. Ibid. 

8. Faiza Patel and Meghan Koushik, Countering Violent Extremism (New York: Brennan Center for Justice at New York University, 2017), 1-2, 

https://www.brennancenter.org/sites/default/files/publications/Brennan%20Center%20CVE%20Report.pdf. 

9. Ibid. 


23



violence. 10 11 12 USAO-MA?s framework emphasizes 

partnerships between law enforcement, federal agencies, 

and community organizations to combat terrorism by 

conducting trainings with community organizations on 

radicalization theories and sharing intelligence. 13 

program sought to prevent violent extremism primarily 

among the Somali community. The Minneapolis CVE 

framework listed five causes of radicalization: ?disaffected 

youth,? ?a deepening disconnect between youth and 

religious leaders,? ?internal identity crises,? ?community 

isolation,? and ?lack of opportunity.? 

The Los Angeles CVE program operated under a similar 

The first programs 

the Minneapolis CVE program sought to fund were 

framework, focusing on bringing together law 

?after-school and tutoring programs in hope of fostering a 

enforcement, government agencies, and community 

sense of belonging for young Somali-Americans.? 

organizations to ?address a broad spectrum of extremist 

In 

ideology that promotes violence and criminal activity.? 14 addition, as part of its intervention strategy, the framework 

calls for youth workers to build relationships with Somali 

The framework also highlights ?partnerships with the 

American-Muslim community? 15 public school students in order to work directly with them 

in combating extremism, 

thus indicating a specific focus for this CVE program on 

Muslim communities. One of the most striking elements of 

?before law enforcement is ever involved.? 19 

Underlying Theories 

the Los Angeles pilot program is its recognition of 

Although the CVE reports themselves do not offer a clear 

critiques levelled against CVE programs. It notes that ?the 

definition of the threats CVE seeks to eradicate, CVE?s 

reluctance among some to engage with law enforcement 

counterterrorism framework borrows heavily from theories 

partners rests on negative perceptions of law enforcement 

of radicalization put forth by the FBI and NYPD in the 

and a view that law enforcement methods securitize 

aftermath of the 9/11 attacks. The FBI and NYPD?s 

relationships, stigmatize communities, violate privacy 

radicalization theories? operating under the assumption 

rights and civil liberties, and constitute a form of 

that ?religious and political cultures within Muslim 

spying.? 16 

communities foment radicalization in 

The last pilot CVE program was based in Minneapolis, 

home to the largest Somali diaspora community in the 

individuals?? targeted Muslim communities. 20 The FBI?s 

flawed anti-Muslim approach to counterterrorism can best 

United States. Uncoincidentally, Minneapolis?s CVE be encapsulated by its 2006 report titled The 

10. U.S. Attorney?s Office, District of Massachusetts, A Framework for Prevention and Intervention Strategies (Massachusetts, 2015), 4, 

https://www.justice.gov/sites/default/files/ usao-ma/pages/attachments/2015/02/18/framework.pdf. 

11. Ibid., 8. 

12. Ibid., 9. 

13. Ibid. 

14. Los Angeles Interagency Coordination Group, The Los Angeles Framework for Countering Violent Extremism (California, 2015), 1, 

https://www.dhs.gov/sites/default/files/publications/ Los%20Angeles%20Framework%20for%20CVE-Full%20Report.pdf. 

15. Ibid., 7-8. 

16. Ibid., 9. 

17. U.S. Attorney?s Office, District of Minnesota, Building Community Resilience Minneapolis-St. Paul Pilot Program A Community-Led 

Framework (Minnesota, 2015), 4, https://www.justice.gov/usao-mn/file/642121/download. 

18. Mukhtar M. Ibrahim, ?Muslim Groups Speak Against Anti-Terror Program,? MPR News, May 1, 2015. 

19. U.S. Attorney?s Office, District of Minnesota, 4. 

20.Amna Akbar, ?Policing ?Radicalization,?? UC Irvine Law Review 3, no. 4 (December 2013): 814. 


24



Radicalization Process: From Conversion to Jihad, 

primarily in the way it theorizes extremism as a staged 

process with clear markers defined by various Islamic 

and/or political observances and beliefs. The FBI?s report 

identification stage includes ?seek[ing] guidance from 

imams or more senior followers on how to live every detail 

of the religion,? leading the individual to become ?more 

committed to the newfound faith.? 26 

defines the radicalization cycle as being ?generally 

The third stage, indoctrination, is defined as occurring 

composed of four steps: pre-radicalization, identification, 

once an individual ?has accepted the radical ideology? and 

indoctrination, and action.? 21 

The first stage, pre-radicalization, is attributed by the 

?ultimately becomes convinced that further action is 

required to support the cause.? 27 

report to include major life changes motivated by either 

The final stage, action, is ?engaging in terrorist activities in 

intrinsic or extrinsic motivation. The examples of intrinsic 

support of the cause? and includes activities such as 

motivation given include a convert to Islam repudiating the 

recruitment, suspicious weapons/bomb purchases, and 

Holy Trinity and the Lackawanna Six giving up a lifestyle 

large transfers of funds. 28 The NYPD report Radicalization 

of alcohol and drugs. 22 Extrinsic motivations could include 

in the West: The Homegrown Threat ?mirrors the 2006 FBI 

major life changes, such as a conversion or faith 

Intelligence Assessment, theorizing the process from 

reinterpretation, stemming ?from economic, ethnic, racial, 

Muslim to terrorist with similar stages and markers, but in 

legal, political, religious, familial, or social deprivation.? 23 

The report also lists particular sites, primarily sites where 

Muslims congregate, where the journey to radicalization 

greater detail.? 29 

From the FBI and NYPD reports, it is clear that the central 

begins, including mosques, prisons, universities 

focus behind these agencies?conceptions of extremism is 

(specifically Islamic groups in universities), places of 

employment, and Internet chat rooms. 24 

that extremism is by and large influenced by devotion to 

Islamic practices. By assuming a causal relationship 

between adherence to Islam and radicalization and 

The second stage, identification, is defined as when ?an 

extremism, the FBI and NYPD have thus situated Islamic 

individual identifies himself with a particular extremist 

places and identification markers as sites to spy on, 

cause and accepts a radicalized ideology that justifies, 

monitor, and surveil American Muslims for simply 

condones, encourages, or supports violence or other 

practicing, associating, and/or identifying with their faith. 

criminal activity against the US Government, its citizens, 

CVE adopts this radicalization paradigm and seeks to not 

its allies, or those whose opinions are contrary to his own 

only gather intelligence on those deemed as falling into 

extremist agenda.? 25 In addition, one of the markers of the 

violent extremism, but also to prevent such ideologies 

21. Federal Bureau of Intelligence, Counterterrorism Division, The Radicalization Process: From Conversion to Jihad (Washington, D.C., 2006), 3, 

https://cryptome.org/fbi-jihad.pdf. 

22. Ibid., 5-6. 

23. Ibid. 

24. Ibid., 6-7. 

25. Ibid., 7. 

26. Ibid. 

27. Ibid., 8. 

28. Ibid., 9-10. 

29. Akbar, 821. 


25



from having influence in the American marketplace of 

ideas. 

Freedom of Speech: Supreme Court Precedent 

punishment of which have never been thought to raise any 

Constitutional problem. These include . . . ?fighting 

words?? those by which their very utterance inflict injury 

or tend to incite an immediate breach of the peace.? 33 Free 

Of the principal constitutional concerns with CVE is the 

way in which it seeks to restrict constitutionally-protected 

free speech. CVE seeks to prevent ?violent extremists and 

their supporters from inspiring, radicalizing, financing or 

recruiting individuals or groups in the United States to 

commit acts of violence.? 30 The key problem this 

definition poses is that it deems the support and inspiring 

of violence as a criminal act. This is in violation of 

precedent set by the Supreme Court in Brandenburg v. 

speech can only be limited when there is an imminent 

threat of violence. CVE programs, by and large, have 

failed to demonstrate that any of their programs target 

individuals or groups who have explicitly threatened 

violence or used ?fighting words? as defined by this 

Supreme Court decision. By nature of the unwarranted 

restrictions CVE programs put upon the freedom of 

expression of various Muslim communities, CVE is 

unconstitutional under Chaplinsky. 

Ohio (1969). 

The Court?s ruling in Cantwell v. Connecticut (1940) is 

Brandenburg dealt with the constitutionality of an Ohio 

criminal syndicalism law, which ?punishe[d] persons who 

?advocate or teach the duty, necessity, or propriety? of 

violence ?as a means of accomplishing industrial or 

political reform.?? 31 The Supreme Court ruled that ?a 

statute which fails to to draw this distinction [between 

mere abstract teaching and preparing a group to use 

also relevant in examining CVE programs? stifling of 

American Muslims? right to free religious speech. In 

Cantwell v. Connecticut? involving a Jehovah?s Witness 

proselytizer who was charged with inciting a ?breach of 

the peace?? the Supreme Court delineated what could be 

considered a ?breach of the peace.? The Court?s opinion 

explained in part that 

violence] impermissibly intrudes upon the freedoms 

guaranteed by the First and Fourteenth Amendments.? 32 

CVE explicitly states that its focus is on the ?marketplace 

When clear and present danger of riot, disorder, 

interference with traffic upon the public streets, or 

other immediate threat to public safety, peace, or order 

of ideas? and preventing people from accessing 

appears, the power of the State to prevent or punish is 

?extremist? and ?radical? thought. The decision in 

Brandenburg makes it clear that it is unconstitutional for a 

government program to target and criminalize even the 

teaching of and exposure to ?radicalizing theories,? let 

obvious. Equally obvious is it that a State may not 

unduly suppress free communication of views, 

religious or other, under the guise of conserving 

desirable conditions. 34 

alone religious teachings. 

The primary rationale offered for CVE programs is the 

In Chaplinsky v. New Hampshire (1941), the Supreme 

Court held that ?there are certain well-defined and 

protection of national security and public safety. However, 

CVE fails as a program to demonstrate how the Muslim 

narrowly limited classes of speech, the prevention and 

30. Executive Office of the President, Strategic Implementation Plan (2011), 1. 

31. Brandenburg v. Ohio, 395 U.S. 448 (1969). 

32. Ibid. 

33. Chaplinsky v. New Hampshire, 315 U.S. 571-572 (1942). 

34. Cantwell v. Connecticut, 310 U.S. 308 (1940). 


26



communities it targets pose imminent threats to public identity, including in their schools, and subject them to law 

safety. Despite failing to demonstrate a clear and present enforcement intervention through arbitrary means. The 

danger, under CVE the government nevertheless surveils, programs explicitly target Muslim students in schools, 

monitors, and collects information on those very same using markers of extremism that target their religious 

communities, thereby executing an intrusion into those practices and threaten their free expression of political and 

community members? First Amendment?protected civil religious ideas, as seen in the Minneapolis CVE program. 

liberties. This unwarranted intrusion is unconstitutional The Los Angeles CVE program was explicitly focused on 

under Cantwell. 

rooting out extremism within Muslim communities and 

allowed for anyone referred to the LAPD, Joint Terrorism 

Free Exercise of Religion: Strict Scrutiny Standard 

Task Force, or other law enforcement agencies for 

When cases come before a court where the complainant 

exhibiting ?violent extremism? to undergo a ?work-up? 

party alleges a violation of constitutionally protected 

conducted by the LAPD. Given this evidence, there is no 

rights, the court applies a higher standard of evaluation 

doubt that the free exercise of religion by American 

than in regular cases. Strict scrutiny requires a 

Muslims is heavily burdened. 

three-pronged test? the government must demonstrate a 

The court must therefore determine whether there is a 

compelling state interest, their action must be the least 

compelling state interest for the burden on free exercise of 

restrictive means of pursuing that interest, and the policy 

religion. In the past, the Supreme Court has ruled that 

must be as narrowly tailored as possible. Because freedom 

preserving national security is a legitimate compelling 

of religion is a fundamental freedom protected by the First 

state interest. Justice Frankfurter wrote in a concurring 

Amendment, courts use strict scrutiny to evaluate policies 

opinion in Dennis v. United States (1951): ?The right of a 

that may violate that freedom. Under the strict scrutiny 

government to maintain its existence? self 

standard, it would be quite challenging to prove CVE?s 

preservation? is the most pervasive aspect of society. 

constitutionality given its questionable foundations. 

?Security against danger,? wrote Madison, ?is one of the 

The compelling state interest test in the case of religious 

primitive objects of civil society.?? 37 

freedom infringements is best laid out in the Supreme 

Given that the Supreme Court considers national security a 

Court?s opinion in Sherbert v. Verner (1963). The test first 

compelling state interest, the question remains whether 

considers whether a given program ?imposes any burdens 

CVE programs are a narrowly tailored means of 

on the free exercise of . . . religion.? If there is indeed a 

accomplishing that interest. The Court in Dennis writes 

burden placed on the free exercise of religion, the Court 

that in cases involving national security, only speech that 

would consider whether there is a ?compelling state 

constitutes a ?clear and present danger? of criminal activity 

interest? that could justify ?the substantial infringement of 

[a] First Amendment right.? 36 may be restricted and prosecuted. 

CVE programs certainly 

38 The Court found 

petitioners could not be convicted if they did ?no more 

burden the free exercise of religion of American Muslims, 

than pursue peaceful studies and discussions or teaching 

as the programs target Muslims by virtue of their religious 

35. Sherbert v. Verner, 374 U.S. 403 (1963). 

36. Ibid., 374 U.S. 406. 

37. Dennis v. United States, 341 U.S. 519 (1951) (Frankfurter, J., concurring). 

38. Dennis v. United States, 341 U.S. 515. 


27



and advocacy in the realm of ideas.? 39 Therefore, in order hate crime or terrorist attack.? 41 These conspiracy statutes 

for CVE to be constitutional, it would need to prove that it have been used previously by the Justice Department in 

was targeting individuals and groups that present a ?clear hate crime and domestic terrorism cases. Relevant 

and present danger,? and only those targets? the program conspiracy statutes include those that deem illegal a 

must be narrowly tailored. 

?conspiracy to injure, threaten, or intimidate a person in 

free exercise or enjoyment of any right or privilege secured 

CVE has failed to demonstrate that it specifically targets 

under the Constitution or U.S. laws? and ?conspiracy to 

only individuals who present a ?clear and present danger.? 

defraud the United States.? 

CVE?s primary intent is to ?[prevent] violent extremists 

42 These statutes operate in line 

with previous Supreme Court precedents, which delineate 

and their supporters from inspiring, radicalizing, financing 

the necessity of a ?clear and present danger? or an 

or recruiting individuals or groups in the United States to 

commit acts of violence.? 40 ?imminent threat of violence? before restricting First 

In furtherance of this aim, 

Amendment rights of free speech, expression, and exercise 

CVE has targeted individuals with no criminal history, 

of religion. Given that such statutes exist and have proven 

based upon deeply flawed markers of extremism like their 

successful in the prevention of terrorism and 

community, religious, and school affiliations. The Court 

extremism? without targeting an entire community? CVE 

has ruled that even extremist ideology is protected speech 

cannot be considered the least restrictive means of 

not subject to government intervention. Therefore, even if 

preventing extremism. Because CVE programs as policy 

a Muslim community espouses extremist ideology, it 

are neither narrowly tailored nor the least restrictive means 

cannot be targeted by CVE, even in light of a valid 

of furthering the government?s national security interest, 

national security interest more broadly. Though the 

they must be considered unconstitutional. 

government may argue that it has had some limited success 

with the CVE, this does not make the policy constitutional Establishment Clause Violation: Anti-Muslim Animus 

since it is not narrowly tailored and impacts the entire 

CVE programs are influenced by anti-Muslim animus and 

Muslim community. 

can therefore be found unconstitutional for violating the 

The final prong of the strict scrutiny standard is whether Establishment Clause of the United States Constitution. 

the policy at issue is the least restrictive means of The radicalization theories that CVE programs are based 

preventing terrorism in order to advance the government?s on directly target the religious practices and congregation 

interest in national security. It is not. There are already sites of American Muslims as indicators of extremism, 

federal statutes that the Justice Department and law undoubtedly compromising the strict neutrality towards 

enforcement agencies could use to target violent religion guaranteed by the Establishment Clause. Perhaps 

extremists. For example, scholar Michael German argues the most explicit evidence of anti-Muslim animus are the 

that ?conspiracy statutes provide substantial recourse to Trump administration?s statements against Muslims and 

charge individuals before they successfully complete a his intention to ?rename [Countering Violent Extremism] 

39. Ibid., 341 U.S. 502. 

40. Executive Office of the President, Strategic Implementation Plan (2011), 1. 

41. Michael German and Sara Robinson, "Wrong Priorities on Fighting Terrorism " (New York: Brennan Center for Justice at New York University, 

2018), 13, https://www.brennancenter.org/sites/default/files/2019-08/Report_Wrong_Priorities_Terrorism.pdf. 

42. Ibid. 


28



. . . so that it focuses solely on Islamist extremism.? 43 

In order to understand the anti-Muslim animus behind the 

Trump administration?s restructuring of CVE, one must 

take a look at the pattern of anti-Muslim animus in his 

official statements and speeches. In response to a question 

on Muslim training camps at a rally in September 2015, 

Trump answered, ?We?re going to be looking at a lot of 

different things. You know, a lot of people are saying that, 

and a lot of people are saying that bad things are 

happening out there. We?re going to be looking at that and 

plenty of other things.? 44 In November 2015, Trump made 

comments that implied he was considering implementing a 

database and/or surveillance programs that would target 

American Muslims. 45 In December 2015, Trump called for 

?a total and complete shutdown of Muslims entering the 

United States,? while citing polls that indicate 25 percent 

of Muslims polled ?agreed that violence against Americans 

. . . is justified as a part of the global jihad.? 46 In the 

aftermath of the shooting at the Pulse nightclub in June 

2016, Trump ?tweeted that he appreciated ?the congrats for 

being right on radical Islamic terrorism,?and called for the 

federal government to begin surveiling ?the mosques? 

inside the United States.? 47 In May 2017, Trump said in a 

commencement speech, ?I?ll speak with Muslim leaders 

and challenge them to fight hatred and extremism and 

embrace a peaceful future for their faith . . . We have to 

stop radical Islamic terrorism.? 48 

Trump?s statements show a pattern of explicit anti-Muslim 

intent? firstly by embracing the notion that Muslims and 

Islam itself are either inherently extremist or more 

predisposed to being radical, violent, and/or extremist, and 

secondly, that Muslim communities, individuals, and 

congregation sites can be subject to government 

surveillance and intelligence gathering programs by virtue 

of their faith?s supposed proximity to extremism. This 

anti-Muslim animus is ultimately reflected in Trump?s 

CVE policies, as he sought to orient the program to 

exclusively focus on ?radical Islam? and rescinded funding 

to organizations countering white supremacist terrorism. 

This targeting of Islam and Muslim communities is in clear 

violation of the Establishment Clause, which provides 

?that the Government cannot favor or disfavor one religion 

over another.? 49 

Trump v. Hawaii 

CVE programs not only inherently target Muslim 

communities unconstitutionally, as established in the 

previous section, but in targeting communities precisely 

because they are of a particular religion, the CVE is in 

violation of the Establishment Clause. It may be difficult, 

however, to prove a causal link between the blatant and 

repeated displays of anti-Muslim animus by the Trump 

43. Julia Edwards Ainsley, Dustin Volz, and Kristina Cooke, ?Exclusive: Trump to Focus Counter-Extremism Program Solely on Islam - Sources,? 

Reuters, February 3, 2017, https://www.reuters.com/article/us-usa-trump-extremists-program-exclusiv/exclusive-trump-to-focus-counterextremism-program-solely-on-islam-sources-idUSKBN15G5VO. 

44. Jenna Johnson and Abigail Hauslohner, ??I Think Islam Hates Us?: A Timeline of Trump?s Comments About Islam and Muslims,? Washington 

Post, May 20, 2017, 

https://www.washingtonpost.com/news/post-politics/wp/2017/05/20/i-think-islam-hates-us-a-timeline-of-trumps-comments-about-islam-and-muslims. 

45. Lauren Carroll, ?In Context: Donald Trump?s Comments On A Database of American Muslims,? PolitiFact, November 24, 2015, 

https://www.politifact.com/article/2015/nov/24/donald-trumps-comments-database-american-muslims. 

46. Donald J. Trump for President, Inc., ?Donald J. Trump Statement on Preventing Muslim Immigration,? December 7, 2015, 

https://web.archive.org/web/20170207013545/https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement 

-on-preventing-muslim-immigration. 

47. Zack Beauchamp, ?Trump Loves Saying ?Radical Islamic Terrorism.?He Has A Tough Time With ?White Supremacy,?? Vox, August 14, 2017, 

https://www.vox.com/world/2017/8/14/16143634/trump-charlottesville-white-supremacy-terrorism-islamism. 

48. Ibid. 

49. Trump v. Hawaii, 585 U.S. __, slip. op., 2 (2018) (Sotomayor, J., dissenting). 


29



repeated displays of anti-Muslim animus by the Trump 

administration and their implementation of the CVE 

program. 

more than a ?religious gerrymander.?? 53 Justice Sotomayor 

concludes that there does not need to be an explicit 

mention of religion for there to be Establishment Clause 

violations in the Muslim ban, as ?the record? establishes 

Justice Sotomayor?s dissenting opinion in Trump v. Hawaii 

that ?the President campaigned on a promise to implement 

(2018) provides an important precedent in establishing the 

?a total and complete shutdown on Muslims?entering the 

viability of considering the government?s intent when 

country, translated that campaign promise into a concrete 

attempting to review the constitutionality of a 

policy, and made several statements linking that policy (in 

governmental policy. Trump v. Hawaii deals with the 

constitutionality of the Executive Order 13780, more 

commonly known as the Muslim ban. In her dissenting 

opinion, Justice Sotomayor cites that the Court 

[h]as generally considered the text of the government 

policy, its operation, and any available evidence 

regarding ?the historical background of the decision 

under challenge, the specific series of events leading to 

the enactment or official policy in question, and the 

its various forms) to anti-Muslim animus.? 54 

Establishment Clause and CVE 

In applying Justice Sotomayor?s framework in Trump v. 

Hawaii to the constitutionality of CVE, one clearly sees 

that CVE can be considered unconstitutional due to its 

violation of the Establishment Clause. Like the Muslim 

ban, Trump?s repeated anti-Muslim statements and 

comments can be used to show a pattern of anti-Muslim 

legislative or administrative history, including animus that has guided the implementation of CVE, as 

contemporaneous statements made by? the indicated specifically by his comments advocating for 

decisionmaker. 50 

surveillance of mosques and a national registry of 

American Muslims. Unlike the Muslim ban at issue in 

Next, Justice Sotomayor quotes many of Trump?s 

Trump v. Hawaii, CVE is very explicit in its targeting of 

anti-Muslim statements and comments in order to 

Muslim communities. 

demonstrate a pattern of anti-Muslim animus that would 

then inform the signing of the Muslim ban. 51 Justice 

Sotomayor argues that under the endorsement test, a 

Almost all of the pilot CVE programs? strategic 

frameworks identified Muslim and/or predominantly 

rational observer ?would conclude that the primary Muslim ethnic communities as primary sites of 

purpose of the Proclamation is to disfavor Islam and its 

adherents by excluding them from the country,? thereby 

constituting a violation of the Establishment Clause. 52 In 

subjecting the issue to the strict scrutiny standard 

necessary in an Establishment Clause case, Justice 

Sotomayor finds the national security interests mentioned 

in the majority?s opinions to be insufficient and ?nothing 

engagement for counterterror activity. In addition, all CVE 

frameworks are heavily influenced by FBI and NYPD 

counterterror frameworks and strategies, which essentialize 

Muslims as inherently predisposed to extremism and 

correlate adherence to Islam with extremism. This pattern 

demonstrates a level of anti-Muslim animus and 

unconstitutional disfavoring of Muslims that predates the 

50. Ibid., 585 U.S. __, slip. op., 3-4 (Sotomayor, J., dissenting). 


52. Ibid., 585 U.S. __, slip. op., 10 (Sotomayor, J., dissenting). 

53. Ibid., 585 U.S. __, slip. op., 17 (Sotomayor, J., dissenting). 



30



Trump administration?s hostility towards Muslims. Through the case study of American Muslims in the 

Therefore, applying Justice Sotomayor?s reasoning in 

Trump v. Hawaii to CVE would render it to be in major 

violation of the First Amendment?s protections of free 

religious exercise and neutrality towards religion. 

Conclusion 

The history and development of CVE programs occurred 

within a larger process of securitization of Muslim 

communities in the aftermath of the 9/11 attacks, which 

was characterized by targeting Muslims and Islam for 

supposedly being inherently predisposed to committing 

crosshairs of the Countering Violent Extremism Task 

Force and its programs, this article has challenged the 

legality of the existing counterterror paradigm as a whole. 

As counterterrorism agencies? mandate continues to 

expand, the list of ideologies targeted beyond the scope 

allowed in Brandenburg?s standard of ?clear and imminent 

danger? to public safety will expand commensurately. 

American society, not only within the Muslim community, 

but beyond, is increasingly coming face to face with the 

harsh realities of the United States? police, security, and 

surveillance state. It is clearer than ever that we must 

terrorist acts. Not only have such radicalization theories 

expend greater energy to preserve Americans? 

been widely criticized and debunked by terrorism experts, 

but programs based on these theories have run deeply afoul 

of the principles of the United States Constitution. CVE 

constitutional rights. We cannot continue to hand blank 

checks to law enforcement agencies in the name of 

national security and public safety. 

programs clearly violate the Establishment Clause and 

infringe upon the First Amendment rights of American 

Muslims by impinging on their freedom of speech, 

burdening their free religious exercise, and discriminating 

against them on the basis of their religion. 

The radicalization theories and legal fallacies that have 

enabled the CVE programs against American Muslims also 

undergird actions targeting other groups in society. The 

FBI has sought to expand counterterrorism frameworks to 

target Black communities under the ?Black identity 

extremist? domestic terrorism category, continuing the 

FBI?s long legacy of surveilling Black movement 

leaders. 55 In the aftermath of the Capitol Hill insurrection 

of January 6, 2021, law enforcement agencies have also 

begun focusing on counterterrorism operations against 

white supremacists and far-right activists. Though the 

targeting of these groups may not raise the same 

constitutional issues stemming from the Establishment 

Clause and the protections for the free exercise of religion, 

they do share the same violations of freedom of speech and 

discrimination on the basis of ideology. 

55. Mike German, ?The FBI Has A History of Targeting Black Activists. That's Still True Today,? Guardian, June 26, 2020. 


31

STANDARDIZING AUTONOMY: 

MEDICAL COMMUNICATION, 

LIABILITY, AND THE DOCTRINE 

OF INFORMED CONSENT 

Liza Edwards-Levin 

ABSTRACT 

This paper critically examines the legal history and social significance of the informed consent doctrine of medical 

malpractice law in the United States. Continually referring back to the landmark case of Canterbury v. Spence (1972), I 

analyze the reasoning behind several key legal decisions that influenced the development of medical informed consent 

law. My analysis centers around the complexity of at once upholding patients' autonomy and respecting physicians' 

professional expertise in the eyes of the law, through analyzing several widely-debated aspects of medical informed 

consent law (such as reasonable disclosure standards) that continue to be interpreted differently between and even within 

states. 


32

Standardizing Autonomy: Medical Communication, Liability, and the Doctrine of Informed Consent 

Canterbury Sets the Stage 

violated his duty to disclose the operation?s risks. 5 Unlike 

When 19-year-old Jerry Canterbury entered surgery to 

traditional medical battery law, which applied only to 

relieve pressure on his spinal cord in 1972, he could not 

procedures performed without a patient?s authorization, 

have known what he was in for: a future disabled by Canterbury v. Spence established that in order to obtain 

urinary incontinence and partial paralysis from the waist consent, physicians must inform their patients of a 

down. 1 Having complained of back and neck pain, treatment?s material risks and alternatives. In this sense, a 

Canterbury agreed to undergo a laminectomy (removing patient?s ?lack of informed consent operates to negate 

part of the vertebral bone) at the recommendation of [their] authorization for a procedure.? 6 In addition to 

neurosurgeon William Spence, who examined Canterbury drawing on the doctrine of medical battery, the appeals 

to find evidence of a ruptured disk. When Canterbury?s court characterized Canterbury?s claim against Spence as 

mother inquired about the seriousness of the procedure, Dr. one of negligence, stating, ?[Canterbury?s] interest in 

Spence described it as relatively low-risk, ?not any more bodily integrity commanded protection, not only against an 

[serious] than any other operation.? 2 Following the intentional invasion by an unauthorized operation but also 

surgery, however, Canterbury slipped out of his hospital against a negligent invasion by his physician?s dereliction 

bed while attempting to urinate, after which his legs of duty to adequately disclose.? 7 

became numb and paralysis ensued. In the words of the 

Canterbury v. Spence also marked a historic shift toward 

D.C. Circuit Court of Appeals, today?s doctrine of medical 

protecting patients?autonomy? every adult?s fundamental 

informed consent law was precipitated by Canterbury?s 

?depressing tale? of medical practice gone wrong? and his 

?right to determine what shall be done with his own 

?understandable search for reasons.? 3 

body?? over and above physicians?expertise. 8 The appeals 

court recognized that patients, typically lacking 

Canterbury v. Spence (1972) expanded the physician?s 

sophisticated medical knowledge, rely upon doctors to 

duty to care under medical malpractice law to include the 

fulfill their ?vital informational needs.? 9 Further, 

obligation to disclose relevant information. 4 In a landmark 

Canterbury ?judicially mandated? this doctor-to-patient 

ruling that crystallized a new means of adjudicating 

information transfer by stating that physicians, not 

informed consent, the Canterbury appeals court reversed 

patients, are responsible for ensuring appropriate 

the district court?s award of directed verdicts to the 

disclosure (that is, ?describing the proposed treatment, its 

Defendants (Dr. Spence and the hospital), ruling that 

risks, benefits, complications and alternatives [including 

sufficient evidence existed to establish that Dr. Spence 

1. Sam Roberts, ?Jerry Canterbury, Whose Paralysis Led to Informed Consent Laws, Is Dead at 78,? The New York Times, May 16, 2017, 

https://www.nytimes.com/2017/05/16/us/jerry-canterbury-medical-consent-paralysis.html. 

2. Canterbury v. Spence, 464 F.2d 772 (1972). 

3. Ibid., 464 F.2d 772. 

4. May Anne Bobinski, ?Law and Power in Health Care: Challenges to Physician Control,? Buffalo Law Review 67 (May 2019): 616. 

5. Ibid., 614. 

6. Clinton L. Kelly, ?THE RISE OF MEDICAL BATTERY AND INFORMED CONSENT,? Tennessee Bar Journal 52 (August 2016): 22. 

7. Canterbury, 464 F.2d 793. 

8. Ibid., 464 F.2d 780 (citing Schloendorff v. Society of New York Hospital (1914)). 

9. Ibid., 464 F.2d 782. 


33


no treatment at all]?). 10 11 Departing from precedent, the 

appeals court determined that doctors cannot be legally 

entrusted with judging the scope of adequate disclosure; 

such discernment should be left to the courts. 12 Suggesting 

certain degree of ambiguity. The Canterbury court adopted 

the novel ?lens of reasonableness, rather than custom? to 

determine the materiality of a given risk, delineate 

physicians? duty to disclose, and assess the validity of 

that physicians may fail to align their professional informed consent claims. 16 17 However, assessing 

standards with patient interests, the appeals court declared, 

?Respect for the patient?s right of self-determination on 

particular therapy demands a standard set by law for 

physicians rather than one which physicians may or may 

not impose upon themselves.? 13 

reasonableness? let alone standardizing it? has proven a 

challenging science. After all, individuals? responses to, 

and interest in, the disclosure of specific risks may vary 

dramatically? posing the question: Is it possible to 

generalize the decision-making process of a mythical 

At the same time, not every doctor?s failure to inform 

?reasonable? patient? Even the Canterbury court 

could result in an informed consent claim. Besides 

demonstrating that their physician failed to disclose a 

procedure?s material risk, plaintiffs must also prove that a 

?reasonable patient [made aware of the risk] would more 

likely than not have opted not to undergo the procedure,? 

acknowledged the delicate task of applying the standard in 

practice, stating, ?There is no bright line separating the 

significant from the insignificant; the answer in any case 

must abide by a rule of reason.? 18 

Courts across the United States have since struggled to 

and that the undisclosed risk caused them to suffer a pinpoint the boundaries of reasonable disclosure. 

compensable injury. 14 Furthermore, according to Wisconsin?s state courts interpreted Canterbury to justify 

Canterbury, physicians are exempt from their duty to 

obtain informed consent in emergencies when the patient is 

the adoption of an unusually expansive disclosure doctrine, 

leading state physician groups to protest against the 

?unconscious or otherwise incapable of consenting,? as harmful impacts of defensive medicine. 19 While 

well as in situations where risk disclosure would threaten 

the patient?s well-being. 15 

Yet, the very notion of informed consent is imbued with a 

Canterbury has led some states to judge informed consent 

cases foremost according to the expectations of a 

reasonable patient? a standard that tends to favor plaintiffs 

10. Marc D. Ginsberg, ?Beyond Canterbury: Can Medicine and Law Agree about Informed Consent? And Does It Matter?? The Journal of Law, 

Medicine & Ethics 45, no.1 (March 2017): 109. 

11. Bobinski, 618. 

12.Canterbury, 464 F.2d 786. (?The duty to disclose, we have reasoned, arises from phenomena apart from medical custom and practice. The latter, 

we think, should no more establish the scope of the duty than its existence.?) 

13. Ibid., 464 F.2d 780, 784. 

14.Nadia N. Sawicki, ?Modernizing Informed Consent: Expanding the Boundaries of Materiality,? University of Illinois Law Review, (2016):, 8?9. 

15.Canterbury, 464 F.2d 788. (?Two exceptions to the general rule of disclosure have been noted by the courts. Each is in the nature of a physician?s 

privilege not to disclose, and the reasoning underlying them is appealing. Each, indeed, is but a recognition that, as important as is the patient?s right 

to know, it is greatly outweighed by the magnitudinous circumstances giving rise to the privilege? ?) 

16.Bobinski, 617. 

17. Canterbury, 464 F.2d 785. (?We hold that the standard measuring performance of that [duty to disclose] by physicians, as by others, is conduct 

which is reasonable under the circumstances.?) 

18.Canterbury v. Spence, 464 F.2d 787. 

19.Marc D. Ginsberg, ?Informed Consent and The Differential Diagnosis: How the Law Overestimates Patient Autonomy and Compromises Health 

Care,? Wayne Law Review 60 (2015): 371?72. 


34


in case outcomes? others defer to the reasonable 

physician?s expertise and instinct. 20 21 In recent years, 

disclosure statutes enacted in Canterbury?s wake have 

required physicians to communicate information of 

varying medical accuracy to abortion-seeking patients in 

the name of women?s ?right to know.? 22 Today more than 

ever, patients are viewed as active consumers rather than 

state?s enactment of a 1981 statute mandating physicians? 

?full disclosure? of risks beyond Canterbury?s scope. The 

statute, Wis. Stat. §448.30 (?Information on Alternate 

Modes of Treatment?), centered doctors?duty to disclose 

around the patient?s condition rather than the physician?s 

diagnosis. Indeed, Wis. Stat. §448.30 required physicians 

to not only disclose information (risks and alternatives) 

passive recipients of healthcare, yet health relevant to their proposed therapy, but to additionally list 

literacy? patients?ability to ?acquire, understand, and use? 

medical information? varies widely across the population, 

rendering true informed consent unenforceable. 23 Indeed, 

while an increasing majority of Americans seek out health 

information online, Americans? self-reported dependence 

the ?benefits and risks? associated with ?all alternate, 

viable medical modes? of treating the patient?s condition. 25 

Between Martin v. Richards (1993) and Jandre v. 

Physicians Insurance Company of Wisconsin (2012), the 

statute?s ambiguous use of the word ?treatment? underwent 

on healthcare providers to impart reliable information has immense scrutiny: Wisconsin?s legal definition of 

not decreased as a result: patient-provider communication 

remains at the core of patients?medical decision-making. 24 

Still, in the nearly 50 years since Canterbury v. Spence was 

decided, subsequent legal efforts to protect patients? 

agency while respecting physicians? expertise have 

?treatment? expanded dramatically, then narrowed, as 

patients and physicians respectively defended their 

personal and professional judgment. 26 

While the political motivation behind Wis. Stat. §448.30 

remains unclear, its legal implications for Wisconsin 

demonstrated that patients? autonomous medical 

physicians proved substantial. 27 In Martin v. Richards 

decision-making cannot feasibly be standardized. 

(1993), the Wisconsin Supreme Court interpreted the 

statutory meaning of ?treatment? to encompass the 

Knowledge is Power? Informed Consent and Full 

Disclosure 

Where does reasonable disclosure end? Wisconsin?s courts 

wrestled with this question for decades following the 

conditional treatment of risks associated with the patient?s 

diagnosis, beyond the immediate treatment of the 

diagnosis at hand. After 14-year-old Cheryl Martin crashed 

her bike into the back of a truck, emergency room 

20. Sawicki, 10. 

21. Studdert et al., ?Geographic Variation in Informed Consent Law: Two Standards for Disclosure of Treatment Risks,? Journal of Empirical Legal 

Studies 4, no.1 (March 2007): 120. 

22. Daniels et al., ?Informed or Misinformed Consent? Abortion Policy in the United States,? Journal of Health Politics, Policy and Law 41, no. 2 

(April 2016): 181?82. 

23. Ginsberg, ?INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT 

AUTONOMY AND COMPROMISE HEALTH CARE,? 392. 

24. ?The Great American Search For Healthcare Information,? Weber Shandwick & KRC Research, 2018, 2, 11. 

25. Wis. Stat. § 448.30, Information on alternate modes of treatment. 

26. Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d 672. (??Treat?is not a defined term. The undefined term appears six times in 

different forms in Wis. Stat. §448.30.?) 

27. Ginsberg, ?INFORMED CONSENT? 361. (?There is nothing contained in the legislative history materials obtained from the Legislative 

Reference Bureau indicating why the proposed legislation was so broad. The proposed legislation may have been a product of a political agenda 

unknown to this author. Whatever the motivation for the statute, it would become an enemy of Wisconsin physicians.?) 


35


physician William Richards diagnosed her head injuries as 

a concussion, noting ?the possibility of intracranial 

bleeding.? 28 When Dr. Richards recommended to Martin?s 

family that she remain at Fort Atkinson Memorial Hospital 

(FAMH) for observation, he failed to mention that the 

hospital had no neurosurgeons on staff and thus would be 

incapable of treating a ?neurological complication such as 

intracranial bleeding? should such a risk materialize. 29 

Martin did in fact suffer an intracranial bleed during her 

stay at FAMH, and a helicopter rushed her to the 

calling that standard ?the very point of [Wis. Stat. 

§448.30]?: The court stated, ?Here the doctor was 

concerned about the possibility of an intracranial bleed. 

When a reasonable person would want to know about an 

alternative treatment or method of diagnosis such as a CT 

scan or hospitalization in a facility with a neurosurgeon, 

the decision is not the doctor?s alone to make.? 33 As such, 

the court reasoned that Wisconsin physicians?disclosure of 

?all alternate, viable medical modes of treatment? under 

Wis. Stat. §448.30 must include available treatment 

University of Wisconsin hospital in Madison where she options (and their material risks) for potential 

underwent two emergency surgeries several hours later; 

her injuries left her a ?partial spastic quadriplegic.? 30 

complications related to the patient?s diagnosis. Indeed, 

rather than being selectively filtered through a physician?s 

professional judgment, Martin v. Richards established that 

Martin and her family sued Dr. Richards for negligence, 

a physician?s disclosure must contain all that a ?reasonable 

and the applicability of their informed consent claim was 

person would [or could] want to know,? including 

debated extensively as the case moved through 

treatments for statistically rare but serious complications 

Wisconsin?s courts. After the Jefferson County Circuit 

like intracranial bleeding. Yet, ?reasonable? people will 

Court granted Dr. Richards? motion to dismiss the 

inevitably desire different degrees of risk disclosure, and 

informed consent claim, the Wisconsin Court of Appeals 

physicians cannot possibly intuit the scope of each 

reversed the circuit court?s dismissal and remanded the 

case. 31 patient?s expectation. 

The Wisconsin Supreme Court affirmed the appeals 

court?s decision on the basis of informed consent, finding 

Dr. Richards liable under the standard established by Wis. 

Stat. §448.30. Having considered the risk of an intracranial 

bleed, Dr. Richards claimed he did not believe Martin was 

bleeding at the time he diagnosed her concussion, and thus 

did not think she required care at a facility with a 

neurosurgeon. In his argument before Wisconsin?s 

Supreme Court, Dr. Richards posed the question, ?Why 

should we inform the patient that we don?t think we should 

do something?? 32 The Court responded by invoking the 

reasonable patient standard established by Canterbury, 

Wis. Stat. §448.30 and the precedent set by Martin 

informed the Wisconsin Supreme Court?s decision in 

Jandre v. Physicians Insurance Company of Wisconsin 

(2012), which expanded physicians?disclosure duty even 

further to include discarded diagnoses. Thomas Jandre was 

evaluated by emergency room physician Therese Bullis 

with symptoms of ?drooling, slurred speech and one-sided 

facial droop, dizziness, and leg weakness?; after testing 

Jandre for multiple types of stroke events (hemorrhagic 

and ischemic strokes) and brain tumors, Dr. Bullis 

diagnosed him with Bell?s palsy, a ?diagnosis of 

28. Ibid., 74. 

29. Martin by Scoptur v. Richards, 531 N.W.2d 74. 

30. Ibid. 

31. Martin by Scoptur v. Richards, 531 N.W.2d 75. 

32. Ibid., 531 N.W.2d 80. 

33. Ibid., 531 N.W.2d 80?81. 


36


exclusion? dependent on ruling out all other possible 

conditions. 34 35 Eleven days later, Jandre "suffered a fullblown 

stroke, [impairing] his physical and cognitive 

abilities.? 36 A carotid ultrasound subsequently revealed a 

significant blockage in Jandre?s carotid artery, indicative of 

an ischemic stroke event. Unfortunately, Dr. Bullis had 

incorrectly ruled out the possibility of an ischemic stroke 

through ?listening to Jandre?s carotid arteries with a 

stethoscope,? which she herself admitted to be a relatively 

unreliable screening method. 37 In her examination of 

Jandre, Dr. Bullis had declined to order a carotid 

ultrasound? a more accurate diagnostic tool that could 

have detected the blockage. Jandre?s family sued Dr. Bullis 

for negligence, bringing forth claims of informed consent 

as well as negligent care and treatment. 38 A trial court jury 

concluded that, although Dr. Bullis was not negligent in 

her diagnosis of Bell?s Palsy, she breached her disclosure 

duty under Wis. Stat. §448.30 when she did not inform 

part of Dr. Richards?diagnosis of concussion but rather a 

possible complication of Martin?s injury, the Martin court 

held that Dr. Richards should have disclosed the potential 

for intercranial bleeding to develop (and the hospital?s 

ability? or inability? to treat it) in order for the Martin 

family to make properly informed decisions about their 

daughter?s medical care. In the case of Jandre, the supreme 

court applied its previous, condition-centered informed 

consent standard to justify an even broader reading of Wis. 

Stat. §448.30, whereby ?the distinction between conditions 

?related?to the final diagnosis and conditions ?unrelated?to 

the final diagnosis finds no support in the statute or case 

law.? 41 In other words, the court determined that a 

physician?s duty to disclose includes diagnostic procedures 

and treatments for conditions related to the patient?s 

symptoms, yet unrelated to the physician?s final 

diagnosis? namely, conditions discarded by the physician 

in the diagnostic process. 42 Yet, a barrage of conflicting 

Jandre of the option to conduct a carotid ultrasound test for diagnostic information may leave patients more 

ischemic strokes. This judgment was upheld by the 

Wisconsin Court of Appeals, and ultimately affirmed by 

Wisconsin?s Supreme Court in their review of the case. 39 

Citing Martin v. Richards and Wis. Stat. §448.30, the 

Jandre court found that a physician?s duty to disclose 

should be dictated by the patient?s condition (?the 

symptoms that the patient displays?), not limited to their 

diagnosis. 40 Indeed, while intracranial bleeding was not 

overwhelmed than informed, not to mention, less aware of 

exactly what they are consenting to. 

Further, the Jandre court asserted that a physician?s 

inadequate disclosure of information could be deemed 

negligent even when their diagnosis and treatment were 

not, marking a sharp divergence between the professional 

standard used to review medical care and the patient 

standard for adjudicating informed consent. The medical 

34. Ginsberg, ?INFORMED CONSENT,? 369. 

35. Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d 641. 

36. Ibid. 

37. Ibid. (?Dr. Bullis admitted at trial that listening to the carotid arteries for a bruit is a ?very, very poor screening test for determining what shape 

the arteries are in.??) 

38. Ibid., 813 N.W.2d 686. 

39. Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d 627. 

40. Ibid. (?The essence of the decision in Martin, Wisconsin?s informed consent doctrine, and Wis. Stat. §448.30 ? is that when a reasonable person 

would want to know about an alternative treatment or method of diagnosis, the decision is not the doctor?s alone to make. It is the condition of a 

patient, that is, the symptoms that the patient displays, that drives the duty to inform, not the diagnosis.?) 

41. Jandre, 813 N.W.2d 648. 

42. Jandre, 813 N.W.2d 652. (?We apply the principle stated in Martin that it is Jandre?s condition, not Dr. Bullis?diagnosis of Bell?s palsy, that 

drives the scope of Dr. Bullis?duty to inform Jandre in the present case. Jandre?s symptoms indicated that he might be suffering from any number of 

conditions, of which a stroke seemed one of the most plausible and most capable of inflicting immediate, severe harm.?) 


37


malpractice action filed against Dr. Bullis by Jandre disclosure? maintaining that while physicians may rely on 

included claims of negligent misdiagnosis as well as professional customs to adjudicate their treatment, care, 

negligence with respect to informed consent. In their and diagnosis, informed consent is governed by the 

request for review, the Physicians Insurance Company of reasonable patient?s desire for information ?regardless of 

Wisconsin (PIC) contended that the inconsistency of the what disclosures may be customary in the medical 

jury?s original verdicts rendered the informed consent profession.? 46 In Jandre, these two standards appear at 

claim invalid. Given that Dr. Bullis? diagnosis of Bell?s odds: Jandre?s (retrospective) wish to hear the full range of 

palsy, ? though incorrect, ? was found not to be negligent possible diagnoses, tests and treatments related to his 

by the professional standard applied to misdiagnosis symptoms undermined Dr. Bullis? diagnosis of Bell?s 

claims, PIC argued that Dr. Bullis had no enforceable duty palsy. 

to inform Jandre about the carotid ultrasound, a diagnostic The Wisconsin Supreme Court?s refusal to delimit risk 

test for an unrelated diagnosis of ischemic stroke. 43 materiality at once obstructed and weakened physicians? 

Physician-defendant Dr. Richards made a similar argument diagnostic prerogative. Despite insisting that its application 

in Martin, claiming that if his diagnosis and care was not of the reasonable patient standard would not impose strict 

negligent, then ?as a matter of law? he could not be found liability upon physicians, the Jandre court?s unusually 

negligent for ?failing to discuss a diagnosis which he did broad definition of materiality suggested otherwise. On the 

not make.? 44 However, as noted in Justice Roggensack?s one hand, the court took pains to emphasize the limits of 

dissenting opinion, while Fort Atkinson Hospital?s physicians?disclosure duties, reassuring doctors that they 

inability to treat intracranial bleeding (should it develop as had ?no duty to provide information to patients about 

a result of Ms. Martin?s concussion) could be construed as tests? that a reasonable patient would not consider 

a risk inherent in Dr. Richards? proposed treatment, in material. 47 At the same time, physicians could deem few 

Jandre?s case ischemic stroke represented a separate procedures definitively immaterial according to Jandre?s 

diagnosis altogether? and a discarded one at that. 45 The standard, whereby, ?[f]rom the perspective of the patient, 

Jandre court justified this widening of treatments and the materiality of risk has nothing to do with whether that 

diagnoses mandating disclosure under Wis. Stat. §448.30 risk comes from a potential condition that is related to the 

by distinguishing the discrete legal standards applicable to final diagnosis, as in Martin ? or from a potential 

Jandre?s respective claims of negligent diagnosis and condition that the physician has eliminated, though not 

43. Ibid., 813 N.W.2d 649. (?PIC?s basic argument is that it is anomalous to impose liability for breach of the duty to inform the patient when, as in 

the present case, the physician was not negligent in her care and diagnosis of the patient.?) 

44. Ibid., 813 N.W.2d 650. 

45. Ibid., 813 N.W.2d 680. (?In Martin, the recommended treatment for Ms. Martin?s head trauma was to remain at Fort Atkinson Hospital for 

careful observation. However, the risk of that treatment, i.e., a significant delay in surgery if it became necessary due to an intercranial bleed, was not 

explained.?) 

46. Ibid., 813 N.W.2d 649, 650. (?Under Wisconsin law, negligence in failing to abide by the professional standard of care and negligence in failing 

to obtain informed consent are two separate and distinct forms of malpractice, with two different standards of care. A failure to diagnose is one form 

of medical malpractice. A failure to obtain informed consent is another discrete form of malpractice, requiring a consideration of additional and 

different factors. There is nothing anomalous or inconsistent in holding that a reasonable patient may want information about alternative diagnostic 

techniques when the physician was not negligent in using one of multiple alternative, non-negligent techniques. To hold otherwise would 

substantially undercut the reasonable patient standard.?) 

47. Ibid., 813 N.W.2d 662. (?Physicians have no duty to provide information to patients about tests that would not be material to a reasonable patient. 

The holding in the present case does not give patients leave to request all conceivable tests. Nor do physicians have a duty to perform tests that are 

not medically reasonable.?) 


38


unequivocally, as in the present case." 48 According to 

Canterbury v. Spence, a risk is material when a reasonable 

person would consider it a significant factor in deciding 

whether to undergo the proposed treatment. 49 With the 

legal definition of materiality expanded under Jandre to 

include all risks posed by discarded diagnoses, physicians 

faced an impossible decision: inundate patients with the 

details of virtually every possible diagnosis, test, treatment 

and risk associated with their condition, relevant or not, or 

fear the specter of an informed consent lawsuit. This 

concern appeared in the Wisconsin Medical Society?s 

amicus brief, which predicted that the Jandre court?s 

interpretation of Wis. Stat. §448.30 would require 

physicians to tell their patients, ?I believe in my diagnosis 

malpractice suits. 51 Beyond the excessive, unsustainable 

economic costs imposed by defensive medicine, an 

average-length doctor?s appointment of 13 to 20 minutes 

simply would not afford enough time for physicians to 

disclose and explain the breadth of information required 

under Jandre?s reading of Wis. Stat. §448.30? let alone 

obtain their patient?s informed consent to proceed with 

treatment. 52 Moreover, physicians have argued that ?the 

very objective of the doctrine of informed consent [would] 

be undermined? by presenting patients with an inordinate 

amount of information surrounding alternate conditions 

beyond their diagnosis. 53 After all, many patients lack 

health literacy, the ability to process and understand 

essential health information. Rather than resulting in more 

but if my diagnosis is wrong, here are all the other things informed patients, Jandre-style disclosure? more 

you should consider,? thereby inviting patients (if 

reluctantly) to ?[usurp] their professional judgment.? 50 

Jandre?s overbroad application of informed consent 

threatened to harm physicians and patients alike, leading 

Wisconsin?s Hospital Association and Medical Society to 

lobby in favor of amending Wis. Stat. §448.30. The state?s 

medical associations expressed concern that Jandre would 

drive Wisconsin doctors to practice defensive medicine, 

unnecessary procedures conducted so as to avoid future 

information and greater choices? may leave patients 

overwhelmed and confused. 54 Indeed, psychological 

research has revealed that decision-makers become 

?rapidly overwhelmed by having to consider more than a 

few options,? and in situations perceived as risky, 

individuals often rely on emotional reactions (rather than 

objective facts) to drive their choices. 55 56 Existing 

evidence does not suggest that receiving ?an endless 

variety of choices and options? would equip patients to 

make maximally informed healthcare decisions. 57 Further, 

48. Jandre, 813 N.W.2d 656. 

49. Canterbury, 464 F.2d 772. (?A risk is material when a reasonable person, in what the physician knows or should know to be the patient?s 

position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.?) 

50. Jandre, 813 N.W.2d 674. (?No other area of human interaction embraces the proposition that a professional must give a layperson the choice of 

usurping their professional judgment. There is no practical guidance on how to meet this obligation.?) 


52.Ginsberg, 393. 

53. Jandre, 813 N.W.2d 663. (?Both here and in Martin, the physicians argued that ?extending?the informed consent duty to include alternate modes 

of diagnosis unrelated to a non-negligent final diagnosis would unnecessarily inundate patients with more information than they can possibly 

manage. The physicians contend that in this way the very objective of the doctrine of informed consent will be undermined.?) 


55. Peter A. Ubel and George Loewenstein, ?The Role of Decision Analysis in Informed Consent: Choosing Between Intuition and Systematicity,? 

Social Science & Medicine 44, no. 5 (1997): 647. 

56. George Loewenstein et al., ?Risk as Feelings,? Psychological Bulletin 127, no. 2 (2001): 267. 

57. Jandre, 813 N.W.2d 673. (?Once diagnosis is determined to come within treatment, we are likely to be confronted with an endless variety of 

choices and options, some of which will entail no bodily invasion whatsoever. Many states appear not to embrace diagnosis in their informed consent 

statutes or cases for this very reason.?) 


39

more care has not been shown to produce better results: 

though patients may gravitate toward the seeming security 

of ?more aggressive medical care,? patients in regions 

favoring aggressive care tend to have poorer health 

outcomes and lower satisfaction rates. 58 The quality of 

medical care is not meaningfully predicted by its quantity, 

nor does an influx of medical information result in 

higher-quality patient experiences. 

Fearing increased liability and anticipating disruptions to 

their professional practice, physician groups? efforts to 

revise Wis. Stat. §448.30 succeeded when Wisconsin 

adopted a new informed consent statute in 2013. 

Abandoning its prior reasonable patient standard, the 

updated statute instead deferred to the reasonable 

physician to determine informed consent, as well as 

clarifying that physicians must no longer disclose 

?information about alternate medical modes of treatment 

for any condition the physician has not included in his or 

her diagnosis at the time the physician informs the 

patient.? 59 While professional custom may not reliably 

dictate the most effective means of risk disclosure, 

Wisconsin?s lawmakers ultimately agreed that a legal 

remedy was the wrong prescription: ?[J]udges and juries 

ought not [play doctor].? 60 

Whose Reason Rules: State by State, Divergent 

Standards 


Since Canterbury v. Spence, two broad standards have 

emerged by which informed consent cases are adjudicated 

in the United States. Some states (about half) have 

privileged patients? self-determination over professional 

tradition by adopting a version of Canterbury?s reasonable 

patient standard, which gauges the adequacy of physicians? 

disclosure based on what a reasonable patient would 

consider important to their medical decision. 

61 62 

Meanwhile, other states have decided against the 

patient-centered standard, questioning its feasibility and 

fairness. Such states have determined that a 

physician-defendant?s disclosure should be judged against 

the customary practices of fellow doctors in the 

community, an approach known as the reasonable 

physician or professional standard. The distinction 

between these standards appears to tangibly influence the 

outcomes of informed consent lawsuits: research has 

demonstrated that states with a reasonable physician 

standard are significantly less likely to rule in patients? 

favor. 63 

Indiana is one such state. In the case of Culbertson v. 

Mernitz (1992), Patty Jo Culbertson?s cervix improperly 

adhered to the wall of her vagina following a bladder 

suspension and cryosurgery performed by Dr. Roland 

Mernitz? a complication for which Culbertson underwent 

subsequent surgery by another doctor. When Culbertson 

filed an informed consent suit against Dr. Mernitz claiming 

that he failed to disclose the surgery?s ?inherent risks and 

complications,? Dr. Mernitz requested summary judgment 

based on a medical review panel?s assessment of the 

case. 64 Despite acknowledging Dr. Mernitz?s lack of 

58. Elliott Fisher et al., ?The Implications of Regional Variations in Medicare Spending. Part 2: Health Outcomes and Satisfaction with Care,? 

Annals of Internal Medicine 138, no. 4 (February 2003): 

59. Wis. Stat. § 448.30, Informed consent. 

60. Jandre, 813 N.W.2d 671. 

61. Canterbury, 464 F.2d 787 (quoting Waltz & Scheuneman). (?In broad outline, we agree that ?[a] risk is thus material when a reasonable person, in 

what the physician knows or should know to be the patient?s position, would be likely to attach significance to the risk or cluster of risks in deciding 

whether or not to forego the proposed therapy.??) 

62. Sawicki, 9. (?In the United States, jurisdictions are more or less evenly divided between a patient-based standard and a physician-based standard 

for identifying the information that must be disclosed as part of the informed consent process.?) 

63. Studdert et al., ?Geographic Variation in Informed Consent Law,? 115?117. 

64. Culbertson v. Mernitz, 602 N.E.2d 99. 


40


disclosure, the panel held that he did not violate ?the 

appropriate standard of care? because cervical adhesion to 

the vagina ?is not considered a risk of such surgery 

requiring disclosure to the patient.? 65 Considering this 

finding alongside Culbertson?s lack of opposing expert 

testimony, the trial court entered summary judgment in Dr. 

(e.g. lay juries) lack sufficient medical knowledge to 

accurately comprehend the relative significance of risks 

accompanying the majority of medical procedures. 69 

Indiana?s decisive instatement of the professional standard 

in Culbertson v. Mernitz countered the Canterbury court?s 

assertion that laypeople?s reasonableness should override 

Mernitz?s favor. However, the Fulton Circuit Court of medical custom to judge informed consent. 

Appeals went on to side with Culbertson, stating that the 

trial court jury had not addressed one key issue of 

fact? namely, whether the potential for cervical adhesion 

Hawaii?s legal history of informed consent tells a different 

story? one of patient as protagonist. In the state?s 

landmark case of Carr v. Strode (1995), when Robin Carr?s 

would pose a material risk to a vasectomy failed, he alleged that Dr. Walter Strode had 

reasonable patient. 66 In reviewing the case, the Indiana 

Supreme Court affirmed the trial court?s original decision 

to grant summary judgment. The supreme court held that 

most informed consent cases would require expert medical 

testimony to ascertain what a ?reasonably prudent 

physician would disclose? to inform the patient?s choice of 

treatment. 67 Rather than expect physicians to ?peer into the 

neglected to inform him of the risk of remaining fertile 

after the procedure. Carr testified that he would have 

decided against the surgery had he been made aware of this 

risk. 70 Although a trial jury of Hawaii?s First Circuit Court 

upheld Carr?s informed consent claim against Dr. Strode, 

the circuit court judge entered a judgment notwithstanding 

the verdict (JNOV) in Dr. Strode?s favor based on the 

brain? of a ?hypothetical ?reasonably prudent patient,?? the Plaintiff?s lack of expert medical evidence, and 

court reasoned that physicians? disclosure should be 

evaluated according to the professional norms of fellow 

doctors? although patient-plaintiffs may believe their 

?right of self-decision? to be profoundly hindered as a 

result. 68 Furthermore, the court maintained that laypeople 

conditionally granted Dr. Strode?s motion for a new trial 

pending the results of an appeal. 71 Indeed, the Hawaii 

Supreme Court?s prior ruling on the issue of informed 

consent pointed in Dr. Strode?s favor, having required 

medical testimony to establish failure to disclose: two 

65. Ibid. 

66. Ibid., 602 N.E.2d 99?100. (?The Court of Appeals agreed with the Culbertsons that the trial court had erroneously entered summary judgment on 

Counts II and IV because an issue of fact remained as to whether the risk of cervical adhesion to the vagina was a ?material risk.?The court further 

held that that issue was a question for the jury which does not require expert testimony as to materiality, although expert testimony might be required 

to establish the existence and extent of the risk.?) 

67. Ibid., 602 N.E.2d 100. 

68. Ibid., 602 N.E.2d 103. (?When viewed through the eyes of the physician, it is easy to see that a physician should not be required to guess or 

speculate as to what a hypothetical ?reasonably prudent patient?would ?need to know?in order to make a determination ? From a physician?s 

viewpoint, he should not be called upon to be a ?mind reader?with the ability to peer into the brain of a prudent patient to determine what such 

patient ?needs to know,?but should simply be called upon to discuss medical facts and recommendations with the patient as a reasonably prudent 

physician would. On the other hand, from the patient?s viewpoint, the physician should be required to give the patient sufficient information to 

enable the patient to reasonably exercise the patient?s right of self-decision in a knowledgeable manner.?) 

69. Ibid., 602 N.E.2d 104. (?We therefore hold that, except in those cases where deviation from the standard of care is a matter commonly known by 

lay persons, expert medical testimony is necessary to establish whether a physician has or has not complied with the standard of a reasonably prudent 

physician.?) 

70. Carr v. Strode, 904 P.2d 502. (?Carr further indicated that he would not have undergone the first vasectomy procedure if he had known that it 

might fail or allow him to become fertile in the future.?) 

71. Ibid., 904 P.2d 491. 


41


years prior to Canterbury, in Nishi v. Hartwell (1970), the 

supreme court validated informed consent as a tort cause 

of action yet affirmed a trial court?s dismissal of the case 

because Plaintiff Nishi had failed to ?adduce expert 

concept of what a patient needs to hear is an insufficient 

metric by which to determine an individual patient?s 

informational needs. 75 While expert testimony would still 

be required to demonstrate the materiality of medical risk, 

medical testimony? to prove the inadequacy of following Carr v. Strode Hawaiian courts no longer invited 

physician-Defendant Dr. Hartwell?s disclosure. 72 Faced 

with a similar case in Carr v. Strode, however, Hawaii?s 

Supreme Court embraced Canterbury to overrule the 

state?s informed consent precedent, contrasting Indiana?s 

stubborn rejection of the patient standard that Canterbury 

medical professionals to establish the scope of reasonable 

disclosure on their patients?behalf. 

Alabama?s case of Fain v. Smith (1985) illuminates the 

challenge of legally defining not only reasonable 

disclosure, but reasonable consent on the patient?s 

sought to advance. Despite their pre-Canterbury 

behalf? particularly in the wake of a distressing medical 

application of the reasonable physician standard in Nishi v. 

Hartwell, Hawaii?s Supreme Court reversed the circuit 

court judge?s JNOV in Carr v. Strode and remanded the 

case for a new trial on the issue of informed consent, citing 

Canterbury?s reasoning as well as a ?growing nationwide 

trend [reflected in Hawaii?s lower court decisions] favoring 

the patient-oriented standard.? 73 

In their comparison of the physician- and patient-oriented 

standards, the Carr court opined that both ?seek to achieve 

the same goal? of ?[ensuring] informed and intelligent? 

patient decision-making. 74 Ideally, the scope of disclosure 

dictated by each standard would align in keeping with this 

shared aim. Still, acknowledging the significant difference 

between the two means of judging physicians?conduct, the 

court explained its choice to adopt the patient standard in 

Carr v. Strode by arguing that the medical community?s 

mistake. The Alabama Supreme Court heard the appeal of 

Plaintiff Duncan Fain, whose heart was erroneously 

punctured during a pulmonary arteriogram. After Fain?s 

informed consent case against physician-Defendant Dr. R. 

T. Smith was decided in Dr. Smith?s favor by a district 

court jury, on appeal Fain held that the jury had applied the 

wrong standard to assess proximate causation. 76 While 

Fain and Dr. Smith concurred that the risk of heart 

puncture should have been disclosed prior to the 

procedure, the two parties disputed whether Dr. Smith?s 

inadequate disclosure actually caused Fain?s injury: If Fain 

had been properly informed, would it have altered his 

decision to undergo the diagnostic test? Fain argued that 

the district court should have employed the subjective 

standard, by which the plaintiff?s own testimony 

constitutes sufficient proof that ?he would not have 

72. Ibid., 904 P.2d 494. (?Because Nishi had failed to adduce expert medical testimony regarding what physicians in the community disclosed to 

their patients regarding the particular medical procedure, we affirmed the trial court?s dismissal of Nishi?s complain, and by so holding, adopted the 

?physician-oriented?standard of disclosure for actions based on the doctrine of informed consent.?) 

73. Ibid., 904 P.2d 499. 

74. Carr v. Strode, 904 P.2d 498. (?Both standards, therefore, tempered by objectivity, seek to achieve the same goal, that is, to ensure that the 

patient?s decision to undergo a particular medical procedure is an informed and intelligent decision.?) 

75. Ibid., 904 P.2d 499. (?Moreover, not only should the patient?s decision remain at the forefront when assessing the physician?s disclosure to his or 

her patient in each case, but we also believe that, barring situations where the therapeutic privilege exception to the physician?s duty to disclose is 

applicable, what the medical community believes the patient needs to hear in order for the patient to make an informed decision is insufficient, 

without more, to resolve the question of what an individual patient reasonably needs to hear in order for that patient to make an informed and 

intelligent choice regarding the proposed medical treatment.?) 

76. Fain v. Smith, 479 So. 2d 1154. (?Plaintiffs contend in brief that the objective standard does away with consideration by the jury of the patient?s 

testimony concerning his thoughts.?) 


42


consented to the procedure had he been advised of the 

particular risk in question.? 77 On the other hand, according 

to the objective standard, the jury must consider factors 

beyond the patient?s self-serving testimony to ascertain, 

more generally, how a ?reasonable person in the patient?s 

position? would have responded to the disclosure of all 

material risks. 78 Alabama?s Supreme Court affirmed the 

district court?s judgment and upheld the objective standard, 

deeming it ?fairer to both plaintiff and defendant.? 79 

While it is true that a patient-plaintiff?s account of what 

they would have done is unavoidably shaped, at least to 

some degree, by 20/20 hindsight, Justice Jones and Adams? 

dissenting opinions in Fain v. Smith raised the point that 

true objectivity in discerning causation may be virtually 

impossible. 80 Indeed, given that prudent patients vary in 

their responses to risk disclosure, Jones found the so-called 

objective standard to be fundamentally subjective with 

respect to juries, essentially tasking ?each juror ? with 

subjectively determining what he or she would have 

done.? 81 Furthermore, even under the objective standard, 

the Alabama Supreme Court stated that the factfinder in an 

informed consent case must surmise the decision of a 

hypothetical patient who shares the plaintiff?s 

?idiosyncrasies,? ?religious beliefs,? and all other relevant 

traits. 82 While Adams argued that a patient-plaintiff?s 

testimony alone should not conclusively dictate causation, 

he also claimed that no standard filtered so narrowly 

through the patient?s point of view can call itself 

?objective?: He wrote, ?When we build into the standard, 

as we have done here, ?all of the characteristics of the 

plaintiff,? ? we no longer have the reasonable person 

standard.? 83 Finally, Jones contended, courts should not 

seek to honor the self-determination of ?reasonable 

persons alone.? Despite its claims of objective fairness, 

Jones asserted that the informed consent doctrine advanced 

by Canterbury chiefly ?[safeguards] the right of individual 

choice, even where it may appear idiosyncratic? or even 

unreasonable. 84 The question remains, however: Should 

informed consent law principally instruct doctors to guide 

or follow the path of individuals?unique choices? 

Where Will Canterbury Take Us? 

Only a small fraction of the United States population 

possesses expert medical knowledge, yet we are almost all 

patients at some point, faced with medical decisions that 

weigh heavily on our lives. In the landmark U.S. Supreme 

Court case of Dent v. West Virginia (1889), which 

empowered states to regulate the medical profession, the 

Court described doctors?ubiquitous influence, ?Every one 

may have occasion to consult [a physician], but 

comparatively few can judge of the qualifications of 

learning and skill which he possesses.? 85 The foundation 

of modern-day informed consent law, Canterbury v. 

Spence (1972) affirmed the principle that no individual 

should be expected to relinquish their claim to bodily 

autonomy upon entering the doctor?s office: ?Every human 

being of adult years and sound mind has a right to 

77. Fain v. Smith, 479 So. 2d 1152. 

78. Ibid., 479 So. 2d 1155. 

79. Ibid., 479 So. 2d 1154. 

80. Ibid. 

81. Ibid., 479 So. 2d at 1159. (?If there is no one reasonable person, each juror is left with subjectively determining what he or she would have done 

(e.g., ?Well, I?m reasonable, so what would I have done in this situation??).?) 

82. Ibid., 479 So. 2d 1155. 

83. Fain, 479 So. 2d 1164. 

84. Ibid., 479 So. 2d 1158 (citing Katz). 

85. Dent v. West Virginia, 129 U.S. 122. 


43


determine what shall be done with his own body.? 86 Within 

medical malpractice law, the doctrine of informed consent 

Patients? Jurors? Doctors? Standardizing a patient?s 

hypothetical past decision-making is by no means an exact 

attempts to foster and protect informed patient science. No metric, legal or otherwise, is capable of 

decision-making. Ideally, informed consent law equips 

patients with the information they need to determine the 

direction of their medical treatment without compromising 

physicians?ability to provide quality care. 

Since Canterbury, however, the relationship between 

medicine and law has remained more adversarial than 

synergistic. In a dramatic tug-of-war that literally rewrote 

the state?s informed consent policy, Wisconsin?s courts and 

doctors spent decades haggling over the highly contested, 

inherently personal territory of what a reasonable patient 

needs to know. The Indiana Supreme Court?s refusal to 

cast physicians as mind readers in Culbertson v. Mernitz 

and Hawaii?s commitment to following the mores of 

patient autonomy in Carr v. Strode illustrate the nation?s 

split between physician- and patient-centered disclosure 

standards? seemingly, a question of whose rationale a 

state?s courts should champion. 

calculating the degree to which an individual?s medical 

choices would have been impacted by a risk unknown to 

them at the time. 

When the law of informed consent purports to know better 

than physicians and patients alike, the doctrine?s original 

goal is hindered. In the recent case of EMW Women?s 

Surgical Center, P.S.C. v. Beshear (2019), the U.S. Sixth 

Circuit Court of Appeals invoked Canterbury to justify 

upholding Kentucky?s Ultrasound Informed Consent Act 

(H.B. 2), a statute that required doctors to perform and 

display an ultrasound, explain the images in their own 

words, and play the fetal heartbeat out loud before 

obtaining an abortion patient?s consent. 87 Although H.B. 2 

mandated disclosing the consequences of abortion for the 

fetus? not the patient undergoing the procedure? the Sixth 

Circuit nonetheless affirmed the state?s right to compel 

physicians? divulgence of medical information deemed 

?truthful, non-misleading, and relevant.? 

But, is the issue quite so simple? Should it be? Medical 

Citing 

Canterbury?s assertion that medical custom should not 

informed consent is, after all, a two-way street, 

dictate the bounds of mandatory disclosure, the court went 

encompassing both physicians? disclosure of risk 

so far as to deem physicians? qualms with the statute 

information and patients? resulting treatment decisions. 

irrelevant. 

Fain v. Smith rested on whether the divulgence of an 

By ?eviscerating physician discretion,? 

however, the court precluded physicians from respecting 

undisclosed material risk would have caused the 

their patients? autonomy, thus undermining the very 

patient-plaintiff to withhold consent, thus preventing his 

objective of informed consent. 

injury. The Alabama Supreme Court endeavored to 

Beyond infringing on 

physicians?professional expertise? about one-third of the 

determine who should be trusted to verify causation: 

information that abortion informed consent statutes force 

86. Canterbury, 464 F.2d 780 (citing Schloendorff v. Society of New York Hospital (1914)). 

87. EMW Women?s Surgical Center, P.S.C. v. Beshear, 920 F.3d 423. (?Under [Roe v. Wade (1973)], a woman has the right to choose to have an 

abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to ascultate (or make audible) the 

fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.?) 

88. Ibid. 

89. Ibid., 920 F.3d 444. (?To give the patient more information that is truthful, non-misleading, and relevant to a medical procedure is the epitome of 

ensuring informed consent.?) 

90. Ibid., 920 F.3d 439. (?If the validity of an informed-consent law depended on whether doctors agreed with the law? or whether the law required 

disclosures that, with no law, the doctor would disclose anyway? there would be no need for the law to supplement custom.?) 

91. Ibid., 920 F.3d 447 (Donald, B., dissenting). (?Under the prevailing standard of care, informed consent requires respect for the patient?s 

autonomy and sensitivity to the patient?s condition. Physician discretion is vital, but H.B. 2 eviscerates physician discretion.?) 


44


doctors to disclose is medically inaccurate? such an increasingly crowdsourced medical knowledge and 

approach to informed consent also threatens to erode widespread misinformation, providers should be held 

patients? trust in medicine through inflicting needless responsible for disclosing the baseline risks and 

emotional injury. 92 One abortion patient subject to a Texas alternatives associated with a procedure. 97 Yet, physician 

statute?s consent requirements recalled her nightmarish disclosure does not guarantee patient understanding, nor 

experience: ?The description the doctor provided was does knowledge of medical risk ensure a positive outcome. 

perhaps the most devastating part because although our True informed consent? awareness of the known, 

baby was profoundly ill, he had healthy organs too. So, the acceptance of the unknown? relies on legal questions, not 

doctor was forced to describe ? and I to hear ? that he had legal answers. 

a well-developed diaphragm ? His words were 

unwelcome and I felt completely trapped.? 93 

In order to facilitate more effective patient-provider 

communication, informed consent law must recognize its 

own limits. Malpractice liability already exacts a high 

economic cost on the United States healthcare system: A 

2010 study found that ?medical liability system costs, 

including defensive medicine? comprise 2.4 percent of the 

nation?s total healthcare spending, upwards of $55.6 billion 

annually. 94 If the doctrine of informed consent expanded to 

mandate the disclosure of treatment-adjacent information 

such as medical costs, financial conflicts of interest, and 

physicians? personal and professional history (as some 

ethicists advocate), the already blurry lines distinguishing 

material from immaterial and reasonable from 

unreasonable would dissolve, rendering a fair, efficient 

litigation model unachievable. 95 Moreover, opening the 

informed consent floodgates would regiment a clinical 

conversation that, like the idiosyncratic patient themselves, 

escapes standardization. As Sawicki suggests, patient- and 

physician- oriented disclosure standards need not be 

viewed in opposition; indeed, a patient?s ?informational 

needs? cannot be isolated from the practices of their 

surrounding medical community. 96 In an era of 

92. Daniels et al., ?Informed or Misinformed Consent?,? 181. 

93. Beshear, 920 F.3d 458. 

94. Michelle M. Mello et al., ?National Costs Of The Medical Liability System,? Health Affairs 29, no. 9 (September 2010): 1569. 

95. Sawicki, 26. 

96. Ibid., 16. 

97. Briony Swire-Thompson and David Lazer, ?Public Health and Online Misinformation: Challenges and Recommendations,? Annual Review of 

Public Health 41, no. 1 (April 2, 2020): ##. 


45

THE LEGAL PRECEDENTS FOR 

POLICE BRUTALITY: 

THE ENDURING LEGACY OF THE 

OBJECTIVE REASONABLENESS 

STANDARD 

Deepak Gupta 

ABSTRACT 

As cases of police brutality continue to plague the criminal justice system, it is important to understand the legal 

precedents and history that have allowed this issue to continue. After studying the modern applications of landmark 

Supreme Court cases, we can conclude that the objective reasonableness standard established in Graham v. Connor 

(1989) has played a major role in allowing police to perpetrate acts of violence without consequence in Section 1983 

litigation. This particular precedent has resulted in the vast majority of police brutality cases being analyzed under the 

Fourth Amendment. Most notably, courts are prevented from considering the intentions of the offending officers and 

instead focus solely on officers?decisions in ?split-second? situations. Therefore, this method fails to accurately capture 

the role of implicit bias in policing. In order to ensure a fair future for the prosecution of police officers, courts should 

instead rely on the Fourteenth Amendment?s Equal Protection Clause. 


46

The Legal Precedents for Police Brutality: The Enduring Legacy of the Objective Reasonableness Standard 

Introduction 

George Floyd, Breonna Taylor, Jacob Blake, Tamir Rice, 

Michael Brown, Eric Garner? these are just a few of the 

names that have become memorialized in a country that 

grapples with an epidemic of police brutality. With the 

expansion of the Black Lives Matter movement this past 

summer, the United States must now confront greater calls 

than ever before to reform the carceral state and nature of 

policing. To understand the system that allows police 

brutality to occur and propose solutions, one must analyze 

the essential legal precedents that protect police officers 

from facing the consequences of gross miscarriages of 

justice. In this paper, I will argue that the objective 

reasonableness standard established in Graham v. Connor 

(1989) has played a major role in allowing police to 

perpetrate acts of violence without ramifications in Section 

1983 litigation. Moreover, the consolidation of most police 

A Brief History of 42 U.S.C. Section 1983 and Qualified 

Immunity 

To understand the legal framework behind police brutality, 

it is first necessary to understand 42 U.S.C. Section 1983. 

After the Civil War, testimonies of atrocities committed 

against African Americans in the South alarmed President 

Ulysses S. Grant and other Republicans. 1 Thus, they 

passed the Civil Rights Act of 1871 (otherwise known as 

the Ku Klux Klan Act) and included 42 U.S.C. Section 

1983 so that those targeted for their identity could claim a 

civil cause of action against the liable party. 2 Litigation 

under Section 1983 allows individuals to sue state 

government employees and other officials for civil rights 

violations and enforces Section 1 of the Fourteenth 

Amendment, preventing any state from engaging in the 

deprivation of life, liberty, or property without due process 

or equal protection of the law. 3 

brutality cases under Fourth Amendment analysis fails to 

Not many lawsuits were filed under Section 1983 until the 

accurately capture the role of implicit bias, which would be 

1960s. This change occurred as a result of Monroe v. Pape 

better addressed under the Fourteenth Amendment?s Equal 

(1961), a case regarding thirteen Chicago police officers 

Protection Clause. 

who searched the wrong home without a warrant. The 

First, I will review the history of 42 U.S.C. Section 1983, 

qualified immunity, and the objective reasonableness 

standard established by Graham v. Connor. Then, I will 

explore the effects of legal precedent on modern cases 

involving excessive force by police. Finally, I conclude by 

Supreme Court upheld the respondent?s lawsuit and 

determined that authorities acting ?under color of? state 

authority can be held personally liable through Section 

1983. 4 Subsequent cases advanced the applications of 

Section 1983. Monell v. Department of Social Services 

underscoring the importance of the Fourteenth (1978) determined that municipalities and local 

Amendment in allowing for advocates and policymakers to 

succeed in reforming this corrupted system. 

governmental units may be sued if their policies are in 

clear violation of an individual?s rights. 5 Together, Monroe 

and Monell played instrumental roles in allowing for 

claims of excessive force against police departments to fall 

under Section 1983 litigation. 

1. ?The Enforcement Acts of 1870 and 1871,? United States Senate, June 5, 2020, https://www.senate.gov/artandhistory/history/common/generic/ 

EnforcementActs.htm. 

2. Ibid. 

3. ?A Section 1983 Primer (1): History, Purposes and Scope,? Nahmod Law, November 7, 2009, https://nahmodlaw.com/2009/10/29/a-section-1983- 

primer-1-history-purposes-and-scope/. 

4. Monroe v. Pape, 365 U.S. 167 (1961). 

5. Schools Legal Services Staff of the Orange County Department of Education,?Liability Under Section 1983,? (legal document, Orange County 

Department of Education, 2003), 2. 


47


Cases regarding 42 U.S.C. Section 1983 are also governed 

by another concept: qualified immunity. The doctrine of 

qualified immunity was originally established by Pierson 

v. Ray (1967), in which police in Jackson, Mississippi, 

arrested a group of clergymen, including three black 

priests, after the group attempted to use a racially 

segregated bus terminal. 6 This arrest was based on a state 

code that outlawed congregating with others in a public 

place, breaching the peace, and refusing to move when 

ordered by a police officer. The clergymen were later 

sentenced to jail by a local judge. They filed suit against 

both the police department and judge under Section 1983 

on the basis of false arrest and imprisonment. The Court of 

Appeals for the Fifth Circuit maintained that the judge was 

immune from liability based on prior Supreme Court 

precedent (Bradley v. Fisher (1871)). 7 With regards to the 

police, the appeals court found the Mississippi code 

unconstitutional yet determined that the police officers had 

not acted wrongfully since the police had no way of 

knowing which laws were unconstitutional when arresting 

the clergymen. 

Upon hearing the case, the Supreme Court agreed that the 

judge was immune from liability but clarified that the 

police officers were not entitled to absolute immunity. 

Rather, officers were entitled to immunity when acting 

under laws they reasonably believed to be constitutional 

even if said laws are later determined otherwise: 

A policeman's lot is not so unhappy that he must 

choose between being charged with dereliction of duty 

if he does not arrest when he has probable cause, and 

being mulcted in damages if he does. Although the 

matter is not entirely free from doubt, the same 

consideration would seem to require excusing him 

from liability for acting under a statute that he 

reasonably believed to be valid but that was later held 

unconstitutional, on its face or as applied . . . . We hold 

that the defense of good faith and probable cause, 

which the Court of Appeals found available to the 

officers in the common-law action for false arrest and 

imprisonment, is also available to them under Section 

1983. 8 

The Supreme Court finally remanded the case for retrial 

given evidence that racial motivations influenced the jury. 

In the process, the Court?s ruling established the doctrine 

of qualified immunity for police officers under Section 

1983. 

The first major Supreme Court case relating Section 1983 

to the authoritative use of force was Tennessee v. Garner 

(1985). 9 On October 3, 1974, Memphis Police Officers 

Elton Hymon and Leslie Wright responded to reports of a 

home break-in. 10 Hymon explored behind the house and 

heard a door slam. He then saw 15-year-old Edward 

Garner run across the backyard. Using a flashlight, Hymon 

was able to see Garner's face and hands and was 

?reasonably sure? that Garner was unarmed. He called out 

for Garner to halt but Garner began to climb over a 

chain-link fence. Then, Hymon fatally shot Garner in the 

back of the head. His decision to shoot was based on a 

Tennessee statute and police department policy stating that 

if, ?after notice of the intention to arrest the defendant, he 

either flees or forcibly resists, the officer may use all the 

necessary means to effect the arrest.? 11 The authorities 

later found ten dollars and a purse on Garner?s body. 

Though Hymon suspected Garner of burglarizing the 

house, he did not have proof at the time of the shooting. 

Garner?s father filed suit under 42 U.S.C. Section 1983, 

alleging violations of his son's rights under the Fourth, 

Fifth, Sixth, Eighth, and Fourteenth Amendments. The 

district court ruled in favor of the defendants since Hymon 

was acting under state and local policy. However, the Sixth 

Circuit Court of Appeals reversed the judgment and held 

that killing is a form of ?seizure.? The court determined 

7. Ibid. 

8. Ibid. 

9. Brandon Garrett and Seth Stoughton, ?A Tactical Fourth Amendment,? Virginia Law Review 103, no. 2 (April 2017): 224. 

10. Tennessee v. Garner, 471 U.S. 1 (1985). 

11. Ibid., 471 U.S. 3. 


48


that such seizure is constitutional only when reasonable, followed Graham and his friend and pulled them over. As 

and based on the mildness of Garner?s crime and the fact Berry attempted to explain Graham?s diabetes to Connor, 

that he was unarmed, the court found that Hymon?s actions Graham, still in need of insulin, exited the car and ran 

violated the Fourth Amendment. 12 

around it twice before passing out on the sidewalk. 

The Supreme Court affirmed the Sixth Circuit's decision 

and ruled in favor of Garner?s father. 13 Although Hymon 

believed Garner was the suspected burglar, that did not 

alone justify the use of force. On the contrary, Hymon had 

enough reason to believe that the suspect was unarmed. 

Therefore, the Supreme Court concluded that by shooting 

an unarmed, fleeing Garner, Hymon had violated Garner?s 

rights under the Fourth Amendment. The Court?s 

interpretation of the Fourth Amendment provided that the 

use of lethal force is unconstitutional unless it is necessary 

to prevent escape or the suspect poses a threat to others. 14 

While Garner established precedent in restricting the use of 

deadly force, it simultaneously introduced the notion of 

?reasonableness? into the assessment of a police officer?s 

actions. 

Graham v. Connor (1989) expanded on this notion by 

establishing the objective reasonableness standard. 15 In 

1984, Dethorne Graham, a diabetic living in Charlotte, 

North Carolina, suffered an insulin reaction and asked his 

friend William Berry to drive him to the nearest grocery 

store so he could purchase orange juice. 16 Upon arriving at 

the store and seeing that the line to pay was long, Graham 

quickly exited and asked Berry to drive him to another 

store. Officer M.S. Connor had been watching Graham 

enter and exit quickly and became suspicious. Connor 

Connor handcuffed Graham and called additional officers 

to the scene. 17 Once they arrived and Graham regained 

consciousness, the officers moved him to the hood of 

Berry?s car. Graham attempted to reach into his wallet and 

show his diabetic identification, but an officer shoved his 

head down and instructed him to ?shut up.? Graham then 

vigorously resisted as officers moved him into the police 

car. After finally determining that Graham had not 

committed any crime, Officer Connor returned him home. 

During the altercation, Graham suffered multiple injuries, 

including a broken foot, cuts on his wrist, and a bruised 

forehead. He filed suit under Section 1983 against the 

officers and alleged that their use of force during his arrest 

was ?excessive? and ?unreasonable,? thereby violating his 

Fourteenth Amendment rights. 18 

The district court ruled in favor of the officers on the basis 

of the due process standard articulated by the Second 

Circuit in Johnson v. Glick (1973). 19 The four-part test, 

cited by this court in Graham v. Charlotte, assessed: 

1) the need for the application of force; 

2) the relationship between that need and the amount 

of force that was used; 

3) the extent of the injury inflicted; 

4) whether the force was applied in a good faith effort 

to maintain and restore discipline or maliciously and 

12. Ibid. 

13. Ibid., 471 U.S. 5. 

14. Ibid., 471 U.S. 8. 

15. Charles Lane, ?A 1989 Supreme Court Ruling Is Unintentionally Providing Cover for Police Brutality,? The Washington Post, June 9, 2020, 

https://www.washingtonpost.com/opinions/a-1989-supreme-court-ruling-is-unintentionally-providing-cover-for-police-brutality/2020/06/08/91cc7 

b0c-a9a7-11ea-94d2-d7bc43b26bf9_story.html. 

16. Graham v. Connor, 490 U.S. 386 (1989). 

17. Ibid., 490 U.S. 389. 

18. Ibid. 

19. ?You Decide: Did the Officers Use Excessive Force?? University of Minnesota Department of Sociology, accessed December 3, 2020, 

http://users.soc.umn.edu/~samaha/cj6e/ch06_you_decide_excessive_force.htm. 


49


sadistically for the very purpose of causing harm. 20 Altogether, the greatest difference between the Glick test 

and Graham?s Fourth Amendment analysis is that, under 

Graham appealed to the Fourth Circuit Court of Appeals, 

the latter, the intent of a police officer is not relevant in 

which affirmed the district court?s judgment and further 

assessing reasonableness. The former?s criteria assess 

endorsed the applicability of the four-factor test to claims 

whether force was applied in ?good faith? or ?maliciously 

of unconstitutionally excessive force. The Fourth Circuit 

and sadistically? in its substantive due process analysis. 

held that since a reasonable jury applying the test could not 

However, this is irreconcilable with the Fourth 

find Connor?s use of force ?constitutionally excessive,? 

Amendment analysis because the ??malicious and sadistic? 

then the original ruling should be upheld. Graham filed a 

factor concerns the subjective motivations of the individual 

petition for certiorari, which the Supreme Court granted. 

officers.? 25 Moreover, ?the calculus of reasonableness? 

In the majority opinion authored by Chief Justice William 

must consider that officers are often caught in 

Rehnquist, the Court reversed the Fourth Circuit Court of 

Appeals?decision. 21 The Court found that the due process 

approach established by Johnson v. Glick cannot be 

?split-second? situations where they are forced to make 

decisions based on ?tense, uncertain, and rapidly evolving? 

circumstances. 

applied indiscriminately to cases of excessive force by 

Modern Legal Consequences of Objective 

police officers because there must be a constitutional basis 

for such claims. 22 Reasonableness 

The Court determined that Graham?s 

claim instead fell under the Fourth Amendment given that 

he was invoking his right to ??to be secure in [his] persons 

? against unreasonable ? seizures.?? 23 Using the Fourth 

The judicial legacy of Graham v. Connor lies in its 

frequent citations in lower court decisions on police 

brutality. The Supreme Court?s objective reasonableness 

Amendment, the Court determined that the standard has bound the judicial system toward favoring 

?reasonableness? of an officer?s actions must be assessed 

based on the facts and circumstances presented to the 

officer in the moment? disregarding analysis of intent or 

hindsight. In other words, one must determine whether an 

officer?s actions are ?objectively reasonable? based on the 

suspect?s threat to others, active resistance, and severity of 

law enforcement. To fully understand the municipal effects 

of the Court?s ruling, one must review additional Supreme 

Court and district level cases that cite Graham. Maney v. 

Garrison (2017) and Mullenix v. Luna (2015) are two 

recent cases with outcomes influenced by the 1989 

landmark decision. 

the crime committed. Therefore, the Court ruled that the 

To begin with, Maney v. Garrison underscores how the 

Fourth Circuit erred in using the Johnson v. Glick four-part 

notion of objective reasonableness still has a component of 

test because it considered intent and subjective motivations 

subjectivity. On May 4, 2010, Officer Terence Garrison 

(which play no role in Fourth Amendment analysis). Given 

and his police dog Bikkel tracked a robbery suspect to an 

this, the Court remanded the case for reconsideration. 

abandoned house in High Point, North Carolina. 26 At the 

20. Graham v. Charlotte, 827 F.2d 945 (1987). 

21. Graham v. Connor, 490 U.S. 392. 

22. Ibid., 490 U.S 396. 

23. Ibid. 

24. Ibid. 

25. Ibid. 

26. Maney v. Garrison, 681 Fed. Appx. 210 (2017). 


50


front stoop, Bikkel noticed an individual crouched behind 

a nearby bush and began to bite him. The victim was a 

homeless man named Christopher Maney rather than the 

suspect. Garrison quickly realized that Maney did not 

match the physical description of the suspect he and Bikkel 

were tracking. However, fearing that Maney might still 

pose a threat, he ordered him to show his hands before 

calling off the dog. During that time, Bikkel continued to 

bite Maney?s head, tearing away a two-square-inch section 

of hair, skin, and tissue that ultimately required a nearly 

sixteen-inch skin graft. 27 

Afterward, Maney filed suit against Garrison under Section 

1983, alleging that the officer violated his Fourth 

Amendment right to be free from unreasonable seizure. 

The District Court granted summary judgment in favor of 

Garrison, which the Fourth Circuit Court of Appeals later 

affirmed. In the majority opinion, the appeals court found 

that, although Maney had not committed any crime, 

Garrison had reason to suspect that he might have posed a 

danger given the circumstances in which he was found. 

Garrison had every indication that the suspect he was 

searching for was concealed somewhere in the darkness 

nearby when Bikkel attacked Maney. Although Garrison 

quickly determined that Maney was not the suspect, the 

court found that the uncertainty Garrison faced in the 

moment justified his actions: 

Who was this person crouching behind a bush, in the 

dark, near an abandoned house? Why did he continue 

hiding as police approached? Why did Bikkel confuse 

him for the suspect? Was he acting in concert with the 

suspect? Was the suspect still in fact nearby? And, in 

about as much time as it takes to type (let alone to 

answer) those questions, Appellee sought to resolve 

perhaps the most pressing uncertainty of all ? 

whether the unknown individual hiding from police, in 

the spot where Bikkel had tracked the robbery suspect, 

was a threat to officer safety. As soon as Appellee 

determined the answer to that question was ?no,?it is 

undisputed that he called Bikkel off and restrained the 

animal. In sum, Appellee was faced with a situation 

that was tense, uncertain, and rapidly evolving ? 

precisely the context in which the Supreme Court has 

counseled us to make allowances for on-the-scene 

decisions about the amount of force that is necessary, 

?even if it may later seem unnecessary in the peace of a 

judge's chambers.? 28 

In this instance, Graham?s objective reasonableness 

standard removed hindsight analysis from consideration 

and justified the officer?s actions given that there was a 

reasonable chance that Maney could have been dangerous. 

According to the court, the hazardous reality of police 

work prevents officers from engaging in the ?unrealistic 

second-guessing? of the use of force. 29 Although the court 

considered Garrison?s actions to be reasonable, the court?s 

justification emphasized negative hypotheticals and 

entirely discarded the truth. By assuming that Maney was 

suspicious, the majority valued the worst possible scenario 

over reality. According to the dissenting opinion, the 

qualifications for what actions were reasonable in 

Garrison?s case were debatable. Many indicators showed 

that the victim was not a threat to the officer. Maney bore 

no resemblance to the suspect, yet the officer still chose to 

treat him with suspicion. The dissenting opinion makes 

clear that although Garrison reasonably assumed that 

Maney was guilty, he could have also reasonably assumed 

that he was innocent, writing that ?common sense would 

dictate that use of a violent canine attack to address those 

fears was an overreaction.? 30 The outcome of Maney 

emphasizes how the objective reasonableness standard 

allows officers the right to presume guilt and act 

accordingly with minimal repercussions. 

Mullenix v. Luna is slightly different in that it raises 

27. Mark Joseph Stern, ?Appeals Court: Homeless Man Has No Right to Sue Cop Who Let Police Dog Maul Him,? Slate Magazine, March 10, 2017 

https://slate.com/news-and-politics/2017/03/appeals-court-rules-homeless-man-cannot-sue-cop-who-let-police-dog-maul-him.html. 

28. Maney v. Garrison, 681 Fed. Appx. 220. 

29. Ibid., 681 Fed. Appx. 222. 

30. Ibid., 681 Fed. Appx. 234. 


51


questions regarding the role of objective reasonableness in use of deadly force on a fleeing, dangerous suspect 

granting qualified immunity. On March 23, 2010, a Texas violated the Fourth Amendment. 34 The essential inquiry 

police officer approached Israel Leija, Jr. at a restaurant was whether the Fourth Amendment prohibited Mullenix?s 

with a warrant for his arrest. 31 Leija subsequently led the actions given the circumstances he faced. 35 There was no 

police on a high-speed chase while calling the police excessive force precedent guiding the assessment of the 

dispatcher and threatening to shoot the officers chasing reasonableness of Mullenix?s actions. However, given the 

him. The officers continued their pursuit and deployed circumstances, the Court found that his actions fell 

spike strips. Trooper Chadrin Lee Mullenix decided to somewhere along the ?hazy border between excessive and 

shoot at Leija?s car in order to stop it. Before receiving acceptable force.? 36 Therefore, the Court reversed the 

permission from his supervisor, Mullenix positioned lower court?s ruling and found that qualified immunity was 

himself on an overpass. Witnesses testified that Mullenix justified. 

could hear his supervisor say that he should ?stand by? and 

Justice Sonia Sotomayor?s strong dissent highlights the 

?see if the spikes work first.? 32 When Leija?s car 

broader political implications of granting Mullenix 

approached, Mullenix fired six shots. The car then struck 

qualified immunity. Sotomayor found that there was no 

the spike strips, hit the median, and rolled several times. 

government interest in shooting Leija rather than waiting 

Authorities later determined that Leija died due to 

for the spike strips to take effect. Additionally, Sotomayor 

Mullenix?s bullets. Beatrice Luna, a representative of 

rejected the notion that Mullenix?s decision was 

Leija?s estate, filed suit against Mullenix under 42 U.S.C. 

?split-second? given that he spent several minutes 

Section 1983 and argued that Mullenix had violated Leija?s 

positioning himself on the overpass with the intention of 

Fourth Amendment rights by employing excessive force. 

shooting the vehicle and had solicited his supervisor for 

The district court denied Mullenix?s motion for summary 

approval. Therefore, she determined that Mullenix violated 

judgment on the grounds of qualified immunity, and the 

Leija's Fourth Amendment right to be free from intrusion 

Court of Appeals for the Fifth Circuit affirmed. Both 

absent government interest. Outside of her legal analysis, 

courts questioned his conduct and reasonableness in the 

Sotomayor noted that, after the shooting, Mullenix asked 

situation, given that it was not a ?split-second? moment 

his supervisor, ?How?s that for proactive?? 37 This was 

and there was no substantial and immediate threat. 

apparently in reference to a prior meeting in which a 

Therefore, the courts determined that Mullenix was not 

supervisor told Mullenix to be more engaged in his duties. 

entitled to qualified immunity. 33 

While irrelevant to the legal discussion (since Graham bars 

However, in a per curiam opinion, the Supreme Court hindsight analysis), Sotomayor concluded that the Court?s 

reversed the decision and granted Mullenix qualified decision to uphold the reasonableness of Mullenix?s 

immunity because there was no clear law stating that the actions sanctioned a ?shoot first, think later? approach and 

31. Mullenix v. Luna, 577 U.S. 7 (2015). 

32. Ibid. 

33. Ibid., 577 U.S. 10. 

34. A per curiam opinion refers to a decision issued in the name of the Court, usually indicating unanimous agreement on one component of the case. 

35. Mullenix, 577 U.S. 10. 

36. Ibid. 

37. Ibid., 577 U.S. 24. 


52


rendered the Fourth Amendment ?hollow.? 38 Mullenix v. 

Luna provides another clear example of how the 

assessment of ?reasonableness? under Graham can be 

unclear. Sotomayor?s opinion highlights how the legal 

precedents currently in place empower police officers to 

use lethal force rather than properly analyzing their 

situations first. 

Altogether, these examples demonstrate that the concept of 

objective reasonableness is inherently flawed. Police 

officers can easily justify their actions without explaining 

their flawed intentions, even when it goes against basic 

common sense. This fact can be especially frustrating in 

instances like Mullenix v. Luna, where an officer?s prior 

statements and behavior cast further doubt on their actions. 

The Implications of Objective Reasonableness on 

Policing 

Graham?s Fourth Amendment objective reasonableness 

standard has transformed lower court rulings in cases 

under Section 1983 by consolidating them under Fourth 

Amendment analysis. Only 28 percent of federal court 

cases regarding excessive force prior to Graham discussed 

the Fourth Amendment, compared with 90.4 percent 

afterward. 39 With the Johnson v. Glick test no longer 

relevant, the judicial system now has a primary mode of 

analysis for evaluating the constitutionality of excessive 

force claims under Section 1983. 

Most critically, Graham?s objective reasonableness 

standard for justifying the use of force has shaped how 

police departments craft their official policies on the 

subject. Today, the case remains one of the primary 

sources of legal guidance for many departments in 

developing their tactics on when to use force. In a study of 

use-of-force policies from 75 different police departments, 

researchers Osagie K. Obasogie and Zachary Newman 

found that 100 percent mention reasonableness to some 

degree and reference the landmark case. 40 Other areas of 

the guidelines around lethal force are coded with language 

that implicitly encourages an officer to use force. 92 

percent of the guidelines mention force levels and 79 

percent talk about resistance levels. 41 The Denver Police 

Department's policy describes how ?psychological 

intimidation, non-verbal cues, attitude, appearance, 

demeanor, or posture? may be construed as a ?threat or 

overt act of an assault.? 42 Conversely, terminology that 

emphasizes the role of secondary assessment in force 

appears much less in current policing handbooks. In 

Obasogie and Newman?s research, deescalation appeared 

52 percent of the time, as well as force continua (48 

percent), exhaustion of alternatives (31 percent), 

reassessment (19 percent), and proportionality (17 

percent). 43 Only 12 percent of guidelines mention 

prejudice or bias. 44 This disparity reveals that although an 

officer?s sense of reasonableness is still relatively 

subjective, training programs can encourage the impulsive 

use of force with the assurance of legal protection under 

Graham. 

Furthermore, while there is typically absolute language 

regarding when not to use lethal force, such as when a 

suspect is fleeing, the same guidelines that provide these 

protections often allow for exceptions if the officer 

38. Ibid. 

39. Osagie K. Obasogie and Zachary Newman, ?The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through An 

Empirical Assessment Of Graham V. Connor,? Northwestern University Law Review 112, no. 6 (2018): 1485. 

40. Osagie K. Obasogie and Zachary Newman, ?The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of 

Excessive Force Become Constitutional Law,? Cornell Law Review 104, no. 5 (July 2019): 1304. 

41. Ibid, 1305. 

42. Ibid, 1304. 

43. Ibid, 1308. 

44. Ibid, 1307. 


53


believes that force is ?reasonable? or ?appropriate.? The According to The Washington Post, black people consist of 

Virginia Beach policy against choke-holds notes that they less than 13 percent of the U.S. population but are more 

?are not authorized unless the use of deadly force is than twice as likely to be shot and killed by police 

appropriate.? 45 In Minneapolis, deadly force is allowed in compared to white Americans. 50 Other minority groups 

order to prevent the escape of someone who the officer have also faced disparate police brutality. According to the 

?knows or has reasonable grounds to believe? has National Alliance of Mental Health, nearly half of all those 

committed or attempted to commit a felony involving the killed in police custody have some form of disability. 51 

use of deadly force or will cause death or great bodily The Treatment Advocacy Center estimates that people with 

harm if their apprehension is delayed. 46 In practice, the untreated mental illness are 16 times more likely to be 

objective reasonableness standard allows law enforcement killed during a police encounter. 52 

officials to disregard regulations and act based on their 

Focusing specifically on communities of color, much of 

instincts. 

the death rate disparity can be attributed to implicit bias. In 

Introducing Implicit Bias 

other words, officers have a subconscious tendency to 

punish black and brown citizens at a much higher rate than 

The institutional shift toward, as Sotomayor describes, a 

white people. Implicit bias may also explain why black 

?shoot first, think later? mentality has had the most 

adults are about five times as likely as white people to say 

significant impact on communities of color. Unfortunately, 

they have been unfairly stopped by police because of their 

there is a severe lack of data regarding the historical trends 

race or ethnicity. 

of police brutality because local departments are not 

53 Nearly two-thirds of black adults (65 

required to report such information. 47 percent) say they have been in situations where people 

According to 

acted as if they were suspicious of them because of their 

estimates by the Center on Juvenile and Criminal Justice, 

race or ethnicity, while only a quarter of white adults say 

the number of black people killed by police sharply 

dropped after 1968. 48 the same. 

Nevertheless, police killings are 

54 The implicit bias of police, combined with 

Graham?s objective reasonableness standard, has allowed a 

much more frequent among black Americans than they are 

cycle of excessive violence to continue against 

among other races? 4.5 times more often for young black 

Americans and 1.7 times for older black Americans. 49 communities of color. 

45. Ibid. 

46. Ibid. 

47. Nicholas Goldberg, ?Column: We Need a Lot More Data on Police Abuse. Here's Why,? Los Angeles Times, June 17, 2020. 

48. Mike Males ?Who Are Police Killing?? Center on Juvenile and Criminal Justice, August 26, 2014, http://www.cjcj.org/news/8113. 

49. Ibid. 

50. Niall McCarthy, ?Police Shootings: Black Americans Disproportionately Affected [Infographic],? Forbes, May 28, 2020, 

https://www.forbes.com/sites/niallmccarthy/2020/05/28/police-shootings-black-americans-disproportionately-affected-infographic/?sh=5b772ece59f 

7. 

51. ?NAMI Illinois,? NAMI Illinois, November 17, 2020, https://namiillinois.org/half-people-killed-police-disability-report/. 

52. Heather Carroll, ?People with Untreated Mental Illness 16 Times More Likely to Be Killed By Law Enforcement,? Treatment Advocacy Center, 

accessed December 3, 2020, https://www.treatmentadvocacycenter.org/key-issues/criminalization-of-mental-illness/2976-people-with-untreatedmental-illness-16-times-more-lik 

ely-to-be-killed-by-law-enforcement-. 

53. Drew DeSilver, Michael Lipka, and Dalia Fahmy, ?10 Things We Know about Race and Policing in the U.S.,? Pew Research Center, August 17, 

2020, https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/. 

54. Ibid. 


54

The Future of the Fourteenth Amendment 

In order to accurately account for disparities in the use of 

excessive force, the Supreme Court must rely on the Equal 

Protection Clause of the Fourteenth Amendment. As a 

result, rather than taking the individualized approach of the 

Fourth Amendment, the Supreme Court can collectively 

acknowledge the role that race plays in policing. 

To begin with, the original intent of the Fourteenth 

Amendment presents a strong case for its application in 

instances of police brutality. In 1866, the United States 

Senate Committee on Reconstruction convened to analyze 

a report on the violence against African Americans in the 

South. 55 The report shocked senators and ?cataloged how 

police officers acted ?in respect to violence and ill usage, 

in every way equal to the old days of slavery.?? 56 The 

report served as one of the many inspirations for the 

Fourteenth Amendment. According to one of the 

Amendment?s framers, Senator Jacob Howard, the 

Amendment was intended to fundamentally transform 

policing by establishing basic fundamental rights and 

creating ?the equal protection of laws? in order to end ?the 

injustice of subjecting one caste of persons to a code not 

applicable to another.? 57 Despite the text and history of the 

Fourteenth Amendment, the Supreme Court has continued 

to cite Graham?s objective reasonableness standard instead. 

The case-by-case structure of this approach prevents the 

Court from characterizing police brutality as a systemic 

issue. 


Shifting the judicial view of excessive force toward the 

Equal Protection Clause still requires monumental changes 

to Supreme Court jurisprudence. The Court must change 

how it applies the Fourteenth Amendment to avoid 

promoting colorblindness and asserting that authorities 

must be overtly racist for the Equal Protection Clause to 

become relevant. 58 Obasogie and Newman?s research 

highlights how modern Equal Protection Clause claims 

have failed because the judicial understanding of what 

discrimination looks like is still somewhat antiquated: 

After being assaulted during a traffic stop, one 

plaintiff?s equal protection claim failed because ?the 

officers did not make any sort of racist remarks.?When 

a mentally ill, African-American man was shot with a 

stun gun and brought suit under the Fourth 

Amendment and Equal Protection Clause, the court 

found that his ?equal protection claim warrant[ed] 

summary adjudication in favor of Defendants because 

he . . . presented no evidence that similarly situated 

individuals were treated differently or that Defendants 

pursued a course of action because of his race or 

mental illness.? 59 

Petitioners must often provide concrete, comparative 

evidence of bias that is near impossible to obtain. Overall, 

while the Fourteenth Amendment?s Equal Protection 

Clause provides hope for sufficiently addressing the role of 

implicit bias in Section 1983 excessive force claims, 

judicial applications of the Amendment must evolve as 

well to account for the variety of ways racism manifests 

itself. 

Conclusion 

Graham v. Connor?s legacy of objective reasonableness 

has had a significant negative impact on shaping 

America?s current state of policing. Although police 

departments have come under scrutiny for perpetuating 

systemic violence against certain communities, the U.S. 

judicial system has also played a major role in enabling 

such violence. Graham limited the protections guaranteed 

by the Fourth Amendment, allowing numerous instances 

of brutality to go unpunished. Even when police exhibit 

55. David H. Gans, ?The 14th Amendment Was Meant to Be a Protection Against State Violence,? The Atlantic, July 19, 2020. 

56. Ibid. 

57. Ibid. 

58. Obasogie and Newman, ?The Futile Fourth Amendment,? 1495. 

59. Ibid., 1495. 


55


illogical decision-making (Mullenix v. Luna) or unjust 

force toward an innocent person (Maney v. Garrison), 

courts have defended the offending officers by attributing 

their actions to the ?split-second? nature of their jobs or by 

granting them qualified immunity. The ease with which 

police officers are able to use lethal force has transformed 

official training tactics to encourage impulsive action 

rather than reassessment and patience. This phenomenon 

has become particularly harmful when considered 

alongside new evidence regarding implicit bias in criminal 

justice. One of the most viable judicial solutions for 

alleviating this issue is a renewed focus on the Equal 

Protection Clause of the Fourteenth Amendment. 

However, even this shift will require significant reform. 

Allowing Graham?s objective reasonableness to continue 

governing excessive force claims under Section 1983 will 

only further exacerbate the imbalances that have severely 

damaged and divided the country. 


56

THE INTERNATIONAL SPACE LAW 

REGIME IN THE MODERN ERA 

Christopher Kobel 

ABSTRACT 

The beginning of the space age in the 1950s introduced the world to the daunting task of governing outer space. Between 

the mid-1960s and the mid-1980s, the international community negotiated a number of guiding principles, treaties, and 

supporting organizations that came to constitute the modern outer space law regime. Unfortunately, as it stands today, 

gaps and challenges in the regime such as unregulated militarization, unchecked private use, and the declining strength of 

the global commons ideal are hindering the effective governance of outer space. These gaps and challenges can be 

addressed by taking a more methodical approach to strengthening the outer space legal regime. Avoiding wide-sweeping 

conferences and resolutions and instead seeking more targeted negotiations with very specific scopes is advisable. 

Individual states can also help expand the scope of the regime by passing domestic laws that address the outlined gaps in 

the regulation of private space actors. 


57

Introduction 

The issue of outer space occupies a peculiar sphere in the 

study of international relations. It is simultaneously the site 

of classical international political interactions over 

territory, sovereignty, and military force and also subject to 

the whims of modern physics and astounding technological 

advancement. It is odd to imagine governance in a place so 

abstract and disorienting, where both space and time are 

bent by unfamiliar laws of physics and mystery is more 

abundant than certainty. Yet, the invention of weapons of 

mass destruction, orbital vehicles, and both manned and 

unmanned spaceflight has made this governance absolutely 

necessary. Beginning in the late 1960s, the international 

community adopted a number of guidelines and 

agreements aiming to address everything from nuclear 

weapons to sovereignty claims and telecommunications 

issues. But since the mid-1980s, no additional treaties of 

consequence have been negotiated. 

This article will explore how effectively the international 

community has handled the issue of outer space and will 

argue that, as it stands today, the outer space regime is 

ill-equipped to manage the current challenges to the 

peaceful and just use of the void. Structural gaps in the 

regime, as well as its outdated nature, currently prevent it 

from addressing contemporary problems such as space 

militarization, control over celestial territory, and the 

growing presence of private actors in outer space. 

The Path to Outer Space Law 

The successful launch of Sputnik in 1957 inspired 

widespread amazement across the world and acute fear 

amongst the United States and its allies. A region thought 

to be inaccessible to humans for millennia had finally been 

breached. The prospect of the Soviet Union having 

unchallenged space primacy kicked the Cold War space 

race into high gear; soon, the United States placed its own 

The International Space Law Regime in the Modern Era 

satellites into orbit and, a little over a decade after 

Sputnik?s launch, landed humans on the Moon. 

The American flag planted on the Moon by the astronauts 

further demanded a discussion by the international 

community about sovereignty and territory in space. 

Meanwhile, as the development of nuclear weapons 

progressed and intercontinental ballistic missiles (ICBMs) 

began to reach suborbital trajectories, concerns about space 

militarization became particularly salient. 1 Beyond the 

politics of the Cold War, the proliferation of operational 

satellites and their growing use for telecommunications 

necessitated a discussion about the partition (or lack 

thereof) of orbital and transmission space. Lastly, the 

ever-growing outer space debris field led to concerns about 

spacecraft and satellite safety. 

The Outer Space Regime 

Before crafting specific law, the international community 

first was tasked with deciding how it intended to imagine 

outer space. Would it be imagined in terms of ownership, 

like private property, or would it be a common space, akin 

to the ocean? Ultimately, the international community 

decided on the latter. The common space imagined was 

much like the high seas, free of the extensions of territory 

characteristic of airspace. The most basic principle that 

underlies the regime of treaties, resolutions, and 

frameworks is that outer space is free to all, and, as stated 

in the Outer Space Treaty, ?the province of all mankind.? 2 

Building on this basic concept, this section of the article 

will be broken up into the following subsections of the 

regime: the Principles, the Treaties, and the Organizations. 

The Principles 

Before speaking about the principles of space law, it is 

important to mention that the key difference between 

treaties and principles is that the former is legally binding, 

1. Karl Tate, ?How Intercontinental Ballistic Missiles Work (Infographic),? Space.com, Space.com, February 4, 2013, 

www.space.com/19601-how-intercontinental-ballistic-missiles-work-infographic.html. 

2. Magnus Wijkman, ?Managing the Global Commons,? International Organization, vol. 36, no. 3, 1982, 512. 


58

while the latter is not. This does not mean, however, that 

legal principles are not significant; they undoubtedly 

provide important guidance for states and the creation of 

binding law. The veritable beginning of international outer 

space law arrived in December of 1963 with the adoption 

by the UN General Assembly of the ?Declaration of Legal 

Principles Governing the Activities of States in the 

Exploration and Uses of Outer Space,? or simply ?The 

Declaration of Legal Principles.? First and foremost, the 

resolution formally declared outer space to be a common 

space ?free for exploration and use by all States on a basis 

of equality and in accordance with international law.? 3 

Critically, it also declared space and celestial objects to be 

formally free from claims of sovereignty or national 

territory and asserted the applicability of both the UN 

Charter and existing international law to outer space. 4 

Furthermore, astronauts were to be considered the ?envoys 

of mankind,? and their safety a common responsibility 

amongst all states. 5 Finally, the ?Declaration? affirms that 

states own and are liable for all objects they launch into 

space. 6 Many of these principles were later given legal 

force with the approval of the ?Outer Space Treaty.? 

While the ?The Declaration of Legal Principles? laid the 

basic standards for the governance of outer space, 

technological advancement in the years following its 

adoption necessitated the conception and implementation 

of new legal principles. One of these subsequent 

documents, ?The Broadcasting Principles,? was adopted 

by the General Assembly (GA) in 1982 and sought to 


ensure equality amongst states relating to the use of 

satellites for television broadcast. The document?s words 

were clear: ?Every State has an equal right to conduct 

activities in the field of international direct television 

broadcasting by satellite.? 7 

Four years later, in 1986, the GA adopted ?The Remote 

Sensing Principles.? These principles offer a legal 

framework for the more esoteric issue regarding the 

capability of satellites to produce data of activity on Earth 

through ?remote sensing.? 8 The agreement, in essence, did 

little more than endorse the use of remote sensing within 

the framework of ?The Declaration of Legal Principles.? 9 

Subsequent adoption by the GA in 1992 and 1996 of the 

?Nuclear Power Sources? principles and the ?Benefits 

Declaration,? respectively, addressed the safe use of 

nuclear power in spacecraft and sought to make space 

exploration and use more globally equitable. 10 

The Treaties 

Following a common practice of international law, many 

of the legally binding treaties created for the governance of 

outer space heavily incorporated frameworks outlined in 

the non-binding Principles. In 1967, the UN General 

Assembly approved the ?Outer Space Treaty? (OST), 

establishing for the first time a legally binding framework 

for outer space governance. Modeled in large part after 

?The Declaration of Legal Principles,? the OST granted 

legal force to all of the key proclamations of ?The 

Declaration? such as the peaceful and mutually beneficial 

3. General Assembly resolution 1962(XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer 

Space, A/RES/1962(XVIII), (13 December 1963), https://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/legal-principles.html. 

4. William H. Schauer, ?OUTER SPACE: The Boundless Commons?? Journal of International Affairs, vol. 31, no. 1, 1977, 70. 

5. Ibid. 

6. Ibid., 76. 

7. General Assembly resolution 37/92, Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television 

Broadcasting, A/RES/37/92, (10 December 1982), www.unoosa.org/oosa/en/ourwork/spacelaw/principles/dbs-principles.html. 

8. Carl Q. Christol, ?UNITED NATIONS: COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE DRAFT PRINCIPLES ON REMOTE 

SENSING,? International Legal Materials, vol. 25, no. 5, 1986, www.jstor.org/stable/20693025, 1332. 

9. Ibid., 1331. 

10. ?Space Law Treaties and Principles,? United Nations Office for Outer Space Affairs, The United Nations, 


59

use of outer space and international cooperation thereof, 

but added a few new and important regulations. 11 

Crucially, article IV of the treaty mandated the total 

absence of nuclear weapons from both outer space orbit 

and celestial bodies. Secondly, article IV explicitly 

instructed states to conduct only peaceful activities on the 

Moon and all other celestial bodies. 12 As will be noted in 

detail later, the OST did not outlaw space weaponry in 

general. But, despite this apparent gap, the international 

community viewed the OST and its provisions as the 

elementary guiding principles for the further development 

of the outer space regime. Critically, the treaty also 

enjoyed widespread ratification amongst states, including 

all of the nuclear and space-faring nations at the time. 13 

The years following the OST saw the adoption of a number 

of treaties that sought to emphasize different portions of 

the OST. All of these subsequent treaties, except for the 

?Moon Treaty,? have been ratified by all of the key 

spacefaring nations. 14 In 1968, just one year after the 

accession of the OST, the GA adopted the ?Rescue 

Agreement.? In essence, the treaty elaborated on the 

provisions of the OST and ?The Declaration of Legal 

Principles? providing for the safety of astronauts. 15 The 

1970s saw the adoption of two treaties, the ?Liability 

Convention? and the ?Registration Convention,? both of 

which elaborated on particular provisions of the OST. 


According to Alex Young, the ?Liability Convention,? 

seeking to clarify vague clauses in previous treaties, 

established that ?states are liable for damage done to other 

states or persons by objects that state has launched.? 16 

Meanwhile, the ?Registration Convention? sought to 

address the serious problem of space junk by, to use the 

words of the treaty itself, ?expand[ing] the scope of the 

?United Nations Register of Objects Launched into Outer 

Space? that had been established by resolution 1721B 

(XVI) of December 1961.? 17 Finally, 1984 offered what is, 

to this day, the last major UN treaty on outer space. The 

?Moon Treaty,? as it became known, was created to 

re-emphasize the peaceful use of the Moon and the 

illegality of sovereignty claims. 18 Unfortunately, as no 

spacefaring nation has yet ratified it, the treaty is largely 

viewed as ineffectual. 19 

The Organizations 

Along with the adoption of principles and treaties, the 

international community also created a number of 

bureaucracies, conferences, and committees both to 

facilitate the development of additional space law and 

handle its implementation. Just as the most relevant space 

law has been produced through UN mechanisms, many of 

these related bureaucracies, conferences, and committees 

also fall under the UN umbrella. 

11. General Assembly resolution 2222 (XXI), Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, 

including the Moon and Other Celestial Bodies, RES 2222 (XXI), (19 December 1966), 

www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html. 

12. Ibid., 1. 

13. Elizabeth Howell, ?Who Owns the Moon? | Space Law & Outer Space Treaties,? Space.com, October 27, 2017, 

www.space.com/33440-space-law.html. 

14. Committee on the Peaceful Uses of Outer Space. ?Status of International Agreements Relating to Activities in Outer Space as at 1 January 2018.? 

UNOOSA, April 9, 2018. www.unoosa.org/Documents/Pdf/Spacelaw/Treatystatus/AC105_C2_2018_CRP03E.pdf. 

15. General Assembly resolution 2345 (XXII), Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched 

into Outer Space, RES 2345 (XXII), (19 December 1967), www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introrescueagreement.html. 

16. Alex Young, ?Diplomacy in Space: The Final Frontier of International Law,? Harvard International Review, vol. 35, no. 3, 2014, 6. 

17. General Assembly resolution 3235 (XXIX), Convention on Registration of Objects Launched into Outer Space, RES 3235 (XXIX), (12 

November 1974), www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-convention.html. 

18. General Assembly resolution 34/68, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, A/RES/34/68, (5 

December 1979), www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html. 

19. Ibid. 


60

Created by an act of the GA in 1959, the UN Committee 

on the Peaceful Uses of Outer Space (COPUOS) is the 

central governing arm for the UN outer space regime. 

According to the UN, the committee (which is also divided 

into two subcommittees for scientific and legal issues) is 

tasked with reviewing the status of peace and international 

cooperation in space, formulating additional law, and 

identifying potential legal problems. 20 Next, and of close 

relation to COPUOS, is the UN Office for Outer Space 

Affairs (UNOOSA). UNOOSA is a division of the UN?s 

Department for Political Affairs and advertises itself as the 

secretariat for COPUOS. Beyond its broad duty of 

?promoting international cooperation in the peaceful uses 

of outer space,? the Office also is burdened with both 

maintaining the UN's registry of objects launched into 

space and overseeing the execution of the Secretary 

General?s imperatives as ordered by space law. 21 Beyond 

these more broad-scope organizations, the issue of space 

militarization is a delegated focus of the UN Conference 

on Disarmament, while the partition of the electromagnetic 

spectrum for broadcasting purposes (from satellites to 

Earth) is managed by the UN?s International 

Telecommunications Union. 22 

Gaps and Challenges to the Outer Space Regime 

When analyzing any kind of existing legal regime, it is 

important to resist the temptation to paint with a broad 

brush: no set of laws is entirely effective nor entirely 

ineffective. The UN?s Space Object Register (the existence 

of which is mandated by the Registration Convention) 

continues to serve a critical role in keeping track of the 

proliferating amount of ?space junk? in orbit around Earth. 

And, for its part, UNOOSA has developed resources that 


outline how outer space can be used to achieve the UN?s 

Sustainable Development Goals (space technologies can, 

for example, be used to improve livestock management). 23 

Though the Principles, Treaties, and Organizations 

constituting the outer space law regime are certainly 

well-intentioned, they fall short of effective governance in 

key ways. In this section, the current regime?s 

shortcomings relating to space militarization, private 

actors, the norm of a global commons, and more, will be 

described. It is important to first re-emphasize the 

astonishing fact that the last time the international 

community created a significant addition to the regime 

(1984), the Soviet Union was still in existence, and the 

International Space Station had not yet been launched. Just 

as a basic point of departure, it is clear that the sheer 

magnitude of political and technological change that has 

occurred up to the present is more than enough to warrant 

a serious examination of gaps in the existing law. 

Militarization 

First, and posing the most direct threat to the maintenance 

of peace, is the issue of space militarization. It is clear that 

the existing law has not set sufficient precedent to deter 

more powerful states from continuing on a path towards 

additional space militarization. Nor is there an adequate 

enforcement mechanism to punish such actions. As 

mentioned previously, while the outer space regime 

adequately prevented the placement of nuclear weapons in 

space, it did not explicitly ban or limit all outer space 

related weaponry. This is not to say that other actors have 

not tried. According to Nina Tannenwald, ?China and 

Russia have drafted text for a treaty to ban space weapons. 

The United States, however, has refused to enter 

20. ?Committee on the Peaceful Uses of Outer Space,? United Nations Office for Outer Space Affairs, The United Nations, 

www.unoosa.org/oosa/en/ourwork/copuos/index.html. 

21. ?Roles and Responsibilities,? United Nations Office for Outer Space Affairs, The United Nations, 

www.unoosa.org/oosa/en/aboutus/roles-responsibilities.html. 

22. Wijkman, 534. 

23. ?Sustainable Development Goal 2: Zero Hunger,? United Nations Office for Outer Space Affairs, The United Nations, 

http://www.unoosa.org/oosa/en/ourwork/space4sdgs/sdg2.html. 


61

negotiations on such a treaty.? 24 

Unfortunately, as it stands today, there is little question that 

outer space is militarized. One has to look no further than 

the United States to see this. To begin with, many current 

U.S. military defense postures purport the inevitability of 

conflict in space and subsequently call for the 

?establishment of control and superiority in outer space.? 25 

In 2018, then-President Donald Trump even created the 

Space Force to defend U.S. interests in space. 26 But even 

beyond these aspirations, basic functions of the U.S. 

military rely heavily on outer space technologies. As John 

Logsdon of George Washington University?s Space Policy 

Institute remarked, ?U.S. armed forces would have great 

difficulty carrying on a military mission today if denied 

access to its guidance, reconnaissance and communication 

satellites.? 27 Existing completely beyond the calculus of 

major elements of the regime, China too has expanded the 

scope of its military to the heavens with the stated purpose 

of challenging American power in the realm. For example, 

in 2015, ?China tested the Dong Neng-3 exoatmospheric 

vehicle capable of ramming US satellites and destroying 

them.? 28 Finally, much of the statutory language calling for 

peace in outer space ignores that many modern space 

weapons, such as satellite jamming devices and computer 

viruses capable of disabling spacecraft systems, originate 

from the ground. 29 As Professor Nina Tannenwald writes, 

?Without a concerted effort to develop a more 

comprehensive legal regime for space that will limit 

unconstrained weaponization, the international community 

will likely face a new military competition for space, with 


destabilizing consequences for national and global 

security.? 30 

Every year that the international community avoids 

addressing this serious gap in the international space law 

regime, space militarization threatens to balloon past the 

point of reversal. Admittedly, hashing out a broad-based 

multilateral agreement or treaty with real teeth and 

enforcement mechanisms is a multi-year process at a 

minimum and carries no guarantee of success. While such 

efforts are necessary and should be initiated, it would be 

more prudent for the major spacefaring nations to negotiate 

amongst themselves in a manner similar to the major arms 

agreements of the Cold War. By and large these 

agreements were considered successful, in large part 

because they were specific, rather than broad, in scope. At 

this point, since it is unrealistic to expect that major 

powers will agree to demilitarize space all at once 

(abandoning strategic interests such as military satellite 

communication is a nonstarter), negotiations should 

instead first focus on nipping certain emerging 

technologies in the bud. For example, a treaty banning the 

use of satellite-ramming space vehicles could be a good 

place to start. 

Private Use 

During the roughly 20 years in which the vast majority of 

the outer space regime was crafted and adopted, essentially 

no serious thought or legal action was given to the matter 

of private use of outer space. The Outer Space Treaty only 

mentions private actors in passing, asserting that ?States 

24. Nina Tannenwald, ?Law Versus Power on the High Frontier,? The Yale Journal of International Law, vol. 29, no. 2, 2004, 410. 

25. Saeed Khan, ?Space Law for Peace: A Critical Review,? Pakistan Horizon, vol. 59, no. 2, 2006, 83. 

26. Justin Bachman, ?Why Trump Wants a Space Force for the Final Frontier,? Bloomberg, August 10, 2018, 

www.bloomberg.com/news/articles/2018-08-06/what-s-a-space-force-and-can-trump-really-start-one-quicktake. 

27. Khan, 83. 

28. Namrata Goswami, ?China in Space: Ambitions and Possible Conflict,? Strategic Studies Quarterly, vol. 12, no. 1, 2018, 76. 

29. Jim Wolf, ?China Key Suspect in U.S. Satellite Hacks: Commission,? Reuters, Thomson Reuters, October 28, 2011, 

www.reuters.com/article/us-china-usa-satellite-idUSTRE79R4O320111028. 

30. Tannenwald, 420. 


62

shall be responsible for national space activities whether 

carried out by governmental or non-governmental 

entities,? and offers no legally binding principles or 

guidelines for how private actors should conduct 

themselves in outer space. 31 This was, unfortunately, very 

short sighted: according to Professor Nina Tannenwald, 

?The number of commercial space launches began to 

outpace military launches in 1998.? 32 

For private space actors like Elon Musk?s SpaceX? a 

frequent launcher of private space-faring rockets? there 

are, again, no international rules regulating their actions. 

Using the lack of legal guidelines on the private 

appropriation of celestial territory, ?Many private 

companies, such as Lunarland, ? have offered to sell plots 

of land on celestial bodies such as the moon.? 33 Following 

in this trend of increasingly marketized space activity, 

states are often choosing to contract out to the private 

sector. 34 In 2004 alone, ?[w]ell over 300 of the 2959 total 

(active and inactive) satellites in orbit ? were operated by 

international organizations or private corporations.? 35 

Space tourism is also moving closer to reality, with private 

companies such as ?World View Enterprises, Virgin 

Galactic, and XCOR Aerospace [already] beginning to 

offer opportunities for space tourism,? all the while in the 

complete absence of international standards ensuring the 

safety of passengers. 36 Finally, private companies are 

escalating their interest in colonization. SpaceX, for 

example, has released an extremely detailed and ambitious 

plan to create the first human colony on Mars. 37 

If SpaceX is to be the emissary of humankind in its first 


extra-Earth habitation, it should absolutely not be allowed 

to act unilaterally. For such a momentous occasion, the 

international community must have in place clear and 

comprehensive rules and guidelines to prevent any 

corporate behavior that might be harmful to the common 

interest of humanity. This behavior could include actions 

that are anti-competitive as well as practices that contribute 

to harmful and unnecessary resource exploitation and 

planetary degradation. Unfortunately, the international 

community has no such guidelines at present. It is 

important to emphasize that it is neither wise nor realistic 

to attempt to ban private space activity outright. If space is 

a global commons, it is hypocritical to make it the 

exclusive zone of nation-states. Rather, to address this 

issue, individual states and the international community 

can contribute to the international space law regime in a 

number of ways. First, the Outer Space Treaty should be 

amended to include tougher language that sets the 

standards for fair and equitable competition amongst 

private space actors and clarifies that they, too, may not 

appropriate, sell, or otherwise control public outer space 

resources as their own. International forums like the G20 

could also be used to deliberate and form multilateral 

agreements on these issues. Domestically, individual state 

governments should enact laws that accomplish similar 

goals, with a particular eye for avoiding monopolies and 

prohibiting private appropriation of outer space resources. 

Outer Space as a Commons 

Ever since the international community ceased developing 

the outer space regime in the mid-1980s, the central norm 

31. General Assembly, Outer Space. 


33. Jill Stuart, ?The Outer Space Treaty Has Been Remarkably Successful ? but Is It Fit for the Modern Age?? The Conversation, The Conversation, 

September 20, 2018, theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-modern-age-71381. 

34. Art Dula, ?Private Sector Activities in Outer Space,? The International Lawyer, vol. 19, no. 1, 1985, 163. 


36. Young, 7. 

37. ?Mars & Beyond.? SpaceX, 2021. https://www.spacex.com/mars. 


63

of space as a global commons has faced challenges. The 

first of these is a problem of definition. Critically, ?neither 

treaties nor most laws define exactly where the atmosphere 

ends and space begins.? 38 The consequences of this were 

seen when, in 1976, ?a group of eight countries tried to 

claim ownership of a segment of an orbit that was in the 

space situated above their land.? 39 In what became known 

as the Bogota Declaration, the countries claimed that 

because ?their borders projected into the heavens, any 

?stationary? satellite there would always be within their 

borders.? 40 Even though the international community 

resoundingly rejected these claims, the continuing lack of 

legal definition still allows for states and other actors to 

challenge the norm of outer space as non-appropriable by 

applying this airspace-esque analogy. 

The virtue of space as a common space of cooperation is 

also challenged by the growing prevalence of ?first-come, 

first-serve? protocols relating to resource extraction. 

Again, the outer space regime failed to produce clear 

guidelines on resource extraction, leading to contradictory 

messages today. For example, the UN?s own International 

Telecommunications Union, instead of using an equitable 

system, awards user rights to outer space broadcasting 

signals on a first-come, first-serve basis. 41 Noting such 

cues from the UN, powerful, spacefaring nations such as 

China and the United States have continued to widely 

ignore the more cooperative ideals of the existing law in 

favor of more competitive rhetoric. In 2002, a senior 

scientist of China?s Moon exploration program stated that, 

?The Moon could serve as a new and tremendous supplier 

of energy and resources for human beings...Whoever first 


conquers the Moon will benefit first.? 42 The United States, 

on the other hand, officially bestowed to its citizens the 

right to extract resources on any celestial body with the 

passage of the Commercial Space Launch Act of 2015. 43 It 

is evident that the United States and China, as well as any 

private actors, are poised to capitalize off of this 

contradiction between the absence of clear resource 

guidelines such as those outlined in the previous section 

and the cooperative and equitable spirit of the regime. 

Other Challenges 

It is important to briefly mention two other gaps in the 

current outer space regime. First is the near absence of a 

dispute settlement mechanism. Even if all of the gaps 

outlined in the above subsections are corrected with 

additions to the outer space regime, disputes will 

undoubtedly arise. All that is mandated in the Outer Space 

Treaty, however, is that states in dispute or in suspected 

violation of outer space law are to ?consult? with each 

other and the relevant UN institutions. 44 This is simply 

inadequate to handle the often intensely complicated and 

highly sensitive disputes that can arise from international 

relations in outer space. Therefore, a key and missing 

component in the regime is a strong and effective dispute 

settlement mechanism, much like that of the World Trade 

Organization. 

Finally, in conflict with the ideals of the regime, outer 

space has not been a location accessible to all countries. 

Only a small percentage of nations have space capabilities, 

and much of that percentage remains dominated by 

traditional large powers. The United States, for example, 

38. Michael J. Finch, ?Limited Space: Allocating the Geostationary Orbit,? Northwestern Journal of International Law and Business, vol. 7, no. 4, 

1986, 794. 

39. Ibid., 790. 

40. Ibid. 

41. Wijkman, 534. 

42. Goswami, 77. 

43. U.S. Commercial Space Launch Competitiveness Act, Public Law 114-90, US Statutes at Large 129 (2015): 704-722. 

44. General Assembly, Outer Space. 


64

?accounts for three-quarters of official space funding 

worldwide, and U.S. public and private corporations own 

more than 40 percent of orbiting satellites.? 45 This 

distributional problem is also not helped by the growing 

prevalence of ?first-come, first-served,? as described 

above. Under this developing scenario, the large, powerful, 

spacefaring nations are able to access celestial resources 

first, again at the expense of less developed and powerful 

nations. For the time being, outer space seems to be 

dominated by many of the same inequalities that exist on 

Earth. 


Conclusion 

Ever since the launch of Sputnik in the late 1950s, 

humanity has faced the daunting task of governing outer 

space. From the mid-1960s to the mid-1980s, the 

international community created a number of guiding 

principles, legally binding treaties, and supporting 

organizations that formed the modern outer space regime. 

Unfortunately, as it stands today, gaps and challenges in 

the regime such as unchecked militarization, private use, 

and the strength of the global commons ideal are hindering 

the effective governance of outer space. These gaps and 

challenges can be addressed by taking a more methodical 

approach to strengthening the outer space legal regime. 

Fewer wide-sweeping conferences and resolutions and 

more targeted negotiations with very specific scopes are all 

advisable. Individual states can also contribute by passing 

domestic laws that address the outlined gaps in the 

regulation of private space actors. Without a serious and 

focused effort on the part of the international community 

and individual states to redesign and modernize the outer 

space regime, challenges, old and new, will continue to 

remain unaddressed. 

45. Stewart Patrick, ?Conflict and Cooperation in the Global Commons,? Managing Conflict in a World Adrift, ed. Chester A. Crocker et al., 

(McGill-Queen University Press, 2015), 103. 


65

CLIMATE REFUGEES: 

PROTECTION GAPS IN THE 

INTERNATIONAL LAW 

Sophia Matthews 

ABSTRACT 

The international refugee regime does not extend protection to climate refugees. The term ?climate refugee? is 

unrecognized in international law? in this paper, it will refer to those displaced either internally or across national borders 

by environmental disruption. Offering data that demonstrates that climate refugees are a material issue, this paper 

identifies the protection gaps in international law and argues that such gaps are inconsistent with the spirit of the 

international refugee regime. Next, this paper will examine a case study of Bangladesh that illustrates the severity of the 

climate refugee crisis. Finally, this paper will explore the Nansen Initiative and the Kampala Convention as the basis for 

rectifying protection gaps for climate refugees. Ultimately, this paper seeks to draw parallels between the core issues that 

preclude climate refugee protection and the issue of climate change as a whole, drawing attention to how the notion of 

legal responsibility is constructed. 


66

Introduction 

The concept of environmental refugees was first 

introduced to public discourse in 1985 when Essam 

El-Hinnawi, an expert from the United Nations 

Environment Programme, defined environmental refugees 

as ?those people who have been forced to leave their 

traditional habitat, temporarily or permanently, because of 

environmental disruption? natural or triggered by people 

? that jeopardized their existence and/or seriously affected 

the quality of their life.? 1 Ever since, international spheres 

of politics and academia have debated the definition? and 

the very existence? of climate and environmental 

refugees, terms that are now used interchangeably. Despite 

its increasing relevance as the threat of climate change 

intensifies and the refugee crisis worsens, the term 

?climate refugee? remains unrecognized and undefined in 

international law. Although a consensus has emerged 

around the specifications made by El-Hinnawi, the lack of 

legal definition has left swelling numbers of people 

unprotected, generating considerable international and 

national security concerns. 2 

Between 2008 and 2014, 184 million people were 

displaced by sudden environmental disasters, with an 

average of 26.4 million displaced each year? this is 

equivalent to one person displaced every second. 3 

Conservative estimates project that there will be more than 

200 million climate refugees by 2050, an almost four-fold 

increase in the number of displaced persons currently 

eligible for protection under international refugee law. Less 

conservative estimates by the Intergovernmental Panel on 

Climate Refugees: Protection Gaps in the International Law 

Climate Change (IPCC) forecast that 600 million people in 

low-lying coastal zones will be at risk this century, the vast 

majority of which are located in the least-developed 

countries. 4 Island states in the Pacific and Caribbean are 

most acutely threatened by the prospect of land loss, while 

Vietnam, Bangladesh, India, and parts of China are 

projected to present the greatest numbers of climate 

migrants. 5 Millions more are expected to flee from the 

coasts of Africa, with large population flows stemming 

from Eritrea, Libya, and Nigeria. 6 In short, the issue of 

climate refugees is urgent, burgeoning, and international. 

These figures do not account for those displaced by 

slow-onset environmental degradation, nor internally 

displaced persons (IDPs). While IDPs, people displaced 

within national borders, may pose less of a challenge to 

international security than cross-border refugees, 

climate-induced IDPs should likewise be entitled to legal 

protection? this paper will address protection for both 

IDPs and international refugees. The figures provided also 

do not include those whose cause for migration overlaps 

with political persecution: for example, refugees from 

Syria. This categorization not only obscures the true 

number of climate refugees, but also the reality that 

climate change often functions as an exacerbator of other 

social, political, and economic crises. Environmental 

degradation intensifies competition for resources that 

increases tensions between social or political groups, while 

increased climate variability can result in adverse growth 

shocks that increase the risk of conflict. Climate 

deterioration has been linked to membership in rebel 

groups as livelihoods are threatened and desperation 

1. Joanna Apap, ?The concept of ?climate refugee?: Towards a possible definition? (briefing, European Parliamentary Research Service, European 

Parliament, February 2019), 3. 

2. Ibid. 

3. The Nansen Initiative, Global Consultation Report (Geneva: The Nansen Initiative, 2015), 8. 

4. Benjamin Glahn, ?Climate refugees? Addressing the international legal gaps,? International Bar Association, June 11, 2009, 

https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=B51C02C1-3C27-4AE3-B4C4-7E350EB0F442. 

5. Government of the United Kingdom, The Stern Review: The Economics of Climate Change, by Nicholas Stern, United Kingdom: Her Majesty?s 

Treasury, 2006, 77. 

6. Denise Robbins and John Wennertsen, ?The Middle East: The Boiling Point of Climate Change and National Security,? in Rising Tides: Climate 

Refugees in the Twenty-First Century (Bloomington: Indiana University Press, 2017), 224. 


67

increases. 7 Countries with political instability, ethnic 

tensions, unemployment, rapid urbanization, or high 

dependence on agriculture are particularly vulnerable to 

the exacerbating effects of climate change. 8 Indeed, the 

Syrian refugee crisis was underscored by a drought that led 

to cataclysmic crop failures and the loss of 85 percent of 

livestock in some areas. 9 Under debilitating environmental 

conditions, political violence intensifies. In short, growing 

numbers of political refugees are also climate refugees. 

Like climate change itself, the international failure to 

address climate refugees arises from the issue of 

responsibility. The global community does not lack 

information; the scientific consensus identifies greenhouse 

gas emissions produced by the developed West as the 

primary culprit of the climate crisis. However, holding the 

entirety of the industrialized West legally responsible for 

anthropogenic climate change is both unfeasible and 

unproductive. It is possible to narrow down the scope of 

responsibility to the top emitters of greenhouse gases in the 

developed West or, even further, to the handful of 

multinational corporations responsible for the vast 

majority of carbon emissions. Although such an exercise 

might be morally and intellectually satisfying, significant 

action by the top emitters remains a pipedream of 

corporate social responsibility. The lack of incentive for 

Western nations to accept responsibility leads one to an 

unfortunate conclusion: legal responsibility for climate 

change is impossible. 

If assigning legal responsibility for climate change is 

impossible, assigning legal responsibility for climate 

refugees is also impossible. Thus, the future of climate 

refugees rests on the principle of burden-sharing. However, 

the burden-sharing norm is weak and lacks any legal 

framework, a reality that lies at the crux of the climate 


refugee issue. 10 But this does not constitute grounds for 

lethargy. The international community must work to 

construct, at the very least, a normative framework for 

addressing the impending climate refugee crisis. This 

paper will explore the legal mechanisms by which this can 

be done, argue that the current international refugee regime 

is insufficient insofar as it does not address climate 

refugees, and identify distinct gaps in protection for such 

refugees in international law. Ultimately, this essay seeks 

to prove that the issue of responsibility lies at the root of 

such protection gaps. Next, this paper points to Bangladesh 

as a case study of climate-induced migration that 

demonstrates the urgency of expanding the refugee 

protection regime. The following section provides policy 

recommendations and discusses lingering challenges, 

arguing that the Nansen Initiative and Kampala 

Convention should serve as the foundations for a 

comprehensive protection regime. Finally, this paper 

provides a brief commentary on the parallels between the 

issue of climate refugees and the issue of climate change as 

a whole. 

Protection Gaps in the International Refugee Regime 

The kingpin of the international refugee regime is the 

United Nations 1951 Convention Relating to the Status of 

Refugees. According to the Convention, a refugee is any 

person who, ?owing to a well-founded fear of being 

persecuted for reasons of race, religion, nationality, 

membership of a particular social group or political 

opinion,? has fled their country of residence and is unable 

or, owing to such fear, unwilling to return. Thus, the 

Convention requires direct causation or responsibility and 

is typically applicable only where a state, rebel group, or 

other organization is the agent of targeted persecution. This 

is the primary barrier to climate refugees?protection under 

7. Government of the United Kingdom, 112. 

8. Norman Myers, ?Environmental Refugees: An Emergent Security Issue,? (presentation, 13th Economic Forum, Organization for Security and 

Co-operation in Europe, Prague, May 23-27, 2005), 2. 

9. Robbins and Wennersten, 224. 

10. Nina Tannenwald, ?The Global Refugee Regime? (class lecture, POLS 1500: The Politics of the International Law and Human Rights, Brown 

University, November 13, 2019). 


68

the Convention. The language of the Convention 

necessitates systematic discrimination in which, as a 

non-sentient entity, climate change cannot partake. Again, 

the question of responsibility for the perils facing climate 

refugees is subject to the broader debate over responsibility 

for climate change as a whole. As long as causing climate 

change does not constitute a form of persecution, neither 

does causing climate refugees. Therefore, climate refugees 

are beyond the scope of the Convention. 

Though the exclusion of climate refugees is consistent 

with the letter of the Convention, it is inconsistent with its 

spirit. 11 Climate refugees, like political refugees, flee 

dangers from which their government cannot or will not 

protect them. Such is the founding philosophy of the 

Refugee Convention? the international community should 

assist citizens whose governments are unable to ensure 

their safety and wellbeing. So, despite the definitional 

barriers to protecting climate refugees, climate refugees 

should invoke the very ideals of collective responsibility 

upon which the Convention is based. Moreover, the 

Convention neglects internally displaced persons (IDPs). 

These protection gaps reflect not only the issue of 

responsibility for climate change but also the delay 

between the onset of global issues and their codification 

into law. The scale and gravity of the effects of 

anthropogenic climate change were not well researched or 

understood when the Refugee Convention was drafted. 12 

Thus, the legal definition of a refugee is limited to the 

explicit legal category that was relevant at the time; 

international refugee law must adapt to protect those 

persons for whom their state of origin cannot or will not 

fulfill their responsibilities because of contemporary 


challenges facing the global community. 

Case Study: Bangladesh 

Bangladesh represents a dire example of the need for an 

expanded refugee protection regime. Alongside the Nile 

Delta in Egypt and parts of Vietnam, Bangladesh has been 

identified as one of the nations most susceptible to the 

impacts of climate change and climate-induced 

displacement. 13 Its low elevation, high population density, 

and inadequate urban infrastructure render the nation 

acutely vulnerable. Anthropogenic climate change has 

disrupted natural rain patterns, creating droughts in some 

areas and destructive floods in others. More than 20 

percent of the South Asian country is flooded every year. 

As one of the world?s least-developed countries, 

Bangladesh can hardly afford the technology that might be 

used to mitigate the effects of flooding. 14 To date, 45 

million people of Bangladesh?s total 163 million have been 

displaced by floods. A survey of 600 households revealed 

that 28 percent had at least one migrant, of which 83 

percent reported flooding as the primary reason behind 

their displacement. Rising sea levels constitute another 

persistent threat to Bangladesh. A one-meter increase in 

sea level will lead to land dispossession for upwards of 14 

million and the displacement of up to 40 million people. 15 

Furthermore, sea-level rise is increasing the salinity of soil 

in coastal agricultural areas, promising to damage or 

eradicate agrarian livelihoods. The salinity has damaged 

the job market as much as it has the environment; 

wealthier farmers have converted rice paddies to 

self-reliant and salt-intolerant shrimp ponds, thus removing 

a reliable opportunity for paid labor along the coasts. 6 

11. Aram Kamali, ?Climate Refugees: Exposing the Protection Gap in International Law? (paper, Climate Institute, August 23, 2016), 4. 

12. Glahn. 

13. Orrin H. Pilkey, Keith C. Pilkey, and Linda Pilkey-Jarvis, ?The Cruelest Wave: Climate Refugees,? in Retreat from a Rising Sea: Hard Choices 

in an Age of Climate Change (New York: Columbia University Press, 2016), 136. 

14. Ibid., 134. 

15. Tasneem Sidiqqui, ?Impact of Climate Change: Migration as One of the Adaptation Strategies? (Working Paper Series no. 18, Refugee and 

Migratory Movements Research Unit, Dhaka, Bangladesh, 2010), 4. 

16. Tim McDonnell, ?Climate change creates a new migration crisis for Bangladesh? National Geographic, January 24, 2019, 

https://www.nationalgeographic.com/environment/article/climate-change-drives-migration-crisis-in-bangladesh-from-dhaka-sundabans. 


69

The resulting displacement has put colossal pressures on 

Dhaka, Bangladesh's capital and one of the fastest-growing 

and most densely populated megacities in the world. 

Dhaka, still vulnerable to flooding, is plagued by extreme 

poverty, public health hazards, and human trafficking. It is 

estimated that up to 2,000 new migrants move to Dhaka 

every day. 17 One woman interviewed for National 

Geographic recalls watching her house crumble beneath a 

flood before migrating to Dhaka with her teenage 

daughters. She now lives in a slum where sewage runs 

freely, electricity is illegally tapped from the grid, single 

beds are occupied by five or more family members, and 

rent flows into a real estate black market controlled by 

corrupt local officials and businessmen. 18 According to the 

International Organisation for Migration (IOM), 40 percent 

of Dhaka?s residents live in slums like these; 70 percent of 

these slum-dwellers migrated due to environmental 

challenges. Tariq bin Yousef, a senior official at Dhaka 

City Corporation, a government agency that manages 

urban infrastructure, says that the local government plans 

to leave slum residents reliant on aid from local and 

international NGOs so as to avoid legitimizing the 

unsanctioned housing. 19 Migration to Dhaka is but a 

band-aid solution? the metropolis itself is situated 

between four flood-prone rivers growing increasingly 

volatile due to changing precipitation patterns and storm 

surges. 20 Considering Dhaka?s housing shortage and 

extreme poverty, migration to the city hardly decreases the 

vulnerability of migrants. 

Although the vast majority of displaced persons from 

coastal Bangladesh seek refuge in Dhaka, thus falling 

under the category of internally displaced persons (IDPs), 

the problem is not contained within national borders. In 


May 2017, Bangladesh was the single largest origin of 

migrants arriving in Europe. 21 Still, this was a relatively 

small portion of international climate refugees from 

Bangladesh. Those who cross national borders typically 

land in India, itself vulnerable to the same environmental 

issues. The same meter rise in sea level that would drive 

one-fifth of Bangladesh underwater threatens to displace 

over seven million in India. It is estimated that 

Bangladeshi climate refugees have expanded India?s 

population by up to seventeen million over the last four 

decades. 22 

None of these migrants are entitled to protection under 

international refugee law? the hardships described above 

do not meet the criteria of the 1951 Refugee Convention. 

Thus, the case of Bangladesh illustrates the severity and 

complexity of the climate refugee crisis, exemplifying the 

indivisibility of climate change from social and economic 

issues and the necessity of protection. Climate-induced 

migration inside and outside of Bangladeshi borders levies 

immense pressure on local governments, urban 

infrastructure, and the agricultural industry in a nation 

already strained by obstacles to development. Although 

they may not face targeted persecution, Bangladeshis are 

beset with rapidly growing unemployment rates, land 

dispossession, extreme poverty, corrupt local officials, and 

potentially life-threatening conditions. The need for 

protection is uncontestable. Will the international 

community stand idly by as millions are threatened by the 

very problem it created? 

Policy Recommendations 

To fill the gaps in protection for climate refugees, the 

international refugee regime should seek to coalesce two 

existing entities: the Nansen Initiative and the Kampala 

17. ?Climate Displacement in Bangladesh,? Environmental Justice Foundation, accessed December 2019, 

https://ejfoundation.org/reports/climate-displacement-in-bangladesh. 

18. McDonnell. 

19.. Ibid. 

20. Kamali, 2. 

21. ?Climate Displacement in Bangladesh.? 

22. Architesh Panda, ?Climate Refugees: Implications for India,? Economic and Political Weekly 45, no. 20 (2010): 78. 


70

Convention. First, the Nansen Initiative aims to build a 

consensus among states regarding a protection agenda for 

climate refugees and currently represents the only 

framework designed to govern cross-border 

climate-induced displacement. Importantly, the Nansen 

Initiative does not endeavor to develop new legal 

standards. Rather, it aims to establish a normative 

framework, or soft law, that can be applied at domestic, 

regional, and international levels. 23 The project, originally 

undertaken by the governments of Norway and 

Switzerland in 2012, has since expanded to include 

consultation of states across multiple continents. 

The Nansen Initiative?s Protection Agenda identifies 

effective practices for states receiving or sending refugees 

to govern the protection of climate refugees, each of which 

can be categorized under four guiding principles: (1) 

reducing vulnerability and building resilience; (2) 

facilitating migration out of hazardous areas before 

disaster strikes; (3) conducting planned relocation; and (4) 

responding to the needs of IDPs. 24 Each proposal in the 

Protection Agenda seeks to build a comprehensive 

framework for addressing climate refugee protection to 

replace the informal, ad hoc response regime currently 

accepted by the global community. The Protection Agenda 

includes recommendations such as increased 

climate-sensitivity in urban planning, research for climate 

adaptation technology and processes, and, crucially, 

engaging with women in vulnerable communities to ensure 

equity in the process of planning relocation. The Protection 

Agenda maintains that it is the responsibility of the state of 

origin to engage with affected communities to determine 

their need for relocation. 25 Perhaps its most novel 

argument, the Protection Agenda calls for the 


establishment of an international institution to govern the 

protection of climate refugees, oversee the implementation 

of the proposed climate refugee regime, and facilitate 

cooperation between relevant regional actors. 26 

The Nansen Initiative represents a collaborative and 

intergovernmental effort to address the protection gaps for 

climate refugees in international law? in short, a step in 

the right direction. It serves to (1) gather illustrative data 

on current and past environmental migrants and (2) 

consolidate research on the most effective and 

cost-efficient approaches to managing climate-induced 

migration. The Nansen Initiative does not, however, 

constitute in itself a solution to the impending climate 

refugee crisis. First, it focuses almost exclusively on 

cross-border displacement and thus fails to answer to the 

projected millions of internally-displaced environmental 

refugees. Second, it does not champion any sort of 

international agreement, binding or otherwise. 

Many of the shortcomings of the Nansen Initiative are 

addressed in the African Union Convention for the 

Protection and Assistance of Internally Displaced Persons 

in Africa, or the Kampala Convention. Established in 

2012, the Kampala Convention is the first legally binding 

agreement to address the needs of IDPs and, in particular, 

those displaced by climate. Among other categories of 

IDPs, the Kampala Convention directly addresses 

climate-induced displacement and mandates that state 

parties bear the primary responsibility for the protection of 

climate refugees and ensure the accountability of non-state 

actors, including multinational corporations. 27 The 

following articles, drawn from the Kampala Convention, 

pertain directly to the governance of climate-induced IDPs. 

23. ?The Nansen Initiative,? The Nansen Initiative, accessed December 2019, https://www.nanseninitiative.org/. 

24. Ibid. 

25. The Nansen Initiative, ?Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change? (agenda, 

The Nansen Initiative, June 20, 2015), vi. 

26. Ibid., 15. 

27. African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), October 23, 2009, 

Kampala, Uganda, African Union, 13-14. 


71

Article 3.2(a): State Parties shall incorporate their 

obligations under this Convention into domestic law 

by enacting or amending the relevant legislation on the 

protection of and assistance to internally displaced 

persons in conformity with their obligations under 

international law. 

Article 3.2(b): State Parties shall designate an 

authority or body, where needed, responsible for 

coordinating activities aimed at protecting and 

assisting IDPs and assign responsibilities to 

appropriate organs for protection and assistance, and 

for cooperating with relevant international 

organizations or agencies, and civil society 

organizations, where no such authority or body exists. 

Article 5(4): States Parties shall take measures to 

protect and assist persons who have been internally 

displaced due to natural or human made disasters, 

including climate change. 

Article 15(1): State Parties agree that except where 

expressly stated in this Convention, its provisions shall 

apply to all situations of internal displacement 

regardless of its causes. 28 

Provisions (a) and (b) under Article 3.2 expressly state the 

necessity of decentralizing the governance of climate 

refugees, calling upon states to enact domestic legislation 

and establish authoritative institutions to oversee 

protection. Article 5(4) explicitly addresses the legitimacy 

of climate refugees as a category of IDPs covered by this 

Convention and is further supported by other provisions 

that relate to disaster management? both man-made and 

natural. For example, Article 2(4) reads: 

Article 4(2): State Parties shall devise early warning 

systems, . . . establish and implement disaster risk 

reduction strategies, emergency and disaster 

preparedness and management measures. 29 

Perhaps most importantly, Article 15(1) mandates that 


provisions be applied to "all situations of internal 

displacement." Therefore, other provisions of the 

Convention, although not explicitly designated to climate 

refugees, concern situations of climate-induced internal 

displacement. These include the right to protection from 

political, cultural, social, and economic exclusion under 

Article 1(b) and the right to seek and be granted asylum 

under the 1951 Refugee Convention, under Article 20(1). 

Further, the Kampala Convention details the obligation of 

states to seek the assistance of international organizations 

and actors under Article 5(6) should domestic efforts prove 

insufficient. 

Thus, the key takeaways from the Kampala Convention are 

(1) state parties are obligated to protect climate-induced 

IDPs; (2) state parties shall establish domestic institutions 

to govern the protection of IDPs, including those displaced 

by climate; (3) state parties are obligated to seek assistance 

from relevant international actors when domestic efforts 

fail; (4) the rights and obligations detailed are applicable to 

all IDPs, including those displaced by climate; and (5) 

state parties shall incorporate these rights and obligations 

in domestic law. However, like the Nansen Initiative, the 

Kampala Convention alone is insufficient. Although it is 

legally binding, the Kampala Convention applies only to 

signatories within the African Union, neglecting climate 

refugees in other parts of the world and exempting most 

countries from burden-sharing. It also governs only IDPs 

and thus excludes cross-border climate refugees. Although 

IDPs represent the majority of climate refugees, a 

comprehensive regime must protect both categories. 

The ideal framework for addressing climate refugees is a 

declaration that combines the provisions of the Kampala 

Convention with the proposals of the Nansen Initiative. 

Drawing on the Nansen Initiative, such a declaration 

would govern cross-border climate refugees, provide 

guidelines for building preventative climate resilience and 

planned relocation, and mandate consultation with women 

28. Ibid. 

29. Ibid. 


72

and other particularly vulnerable groups within affected 

communities. Further, this declaration would accept the 

Nansen Initiative?s proposal to create an international 

institution for the governance of environmental migrants 

and mimic the Initiative?s method of global consultation 

during the process of establishment. Building on the 

Kampala Convention, this declaration would apply to IDPs 

as well as cross-border migrants, and establish climate 

refugees as a legally legitimate category entitled to 

protection. This declaration should remain consistent with 

the Kampala Convention?s appeal to incorporating 

protection measures within domestic law. In sum, the 

necessary declaration (1) governs both internal and 

international climate-induced migration; (2) provides 

well-researched, specific guidelines for planned relocation 

for both receiving and sending states; (3) encourages 

preventative measures to build climate resilience; (4) 

corresponds to an international institution; and (5) 

champions incorporation of the aforementioned provisions 

into domestic law. 

Note that the policy recommendation described above is 

not legally binding. This recommendation seeks to comply 

with the realities of the global order, in which a realist 

understanding of international relations requires a 

self-interest mechanism in international agreements. Under 

a binding agreement, states in the global North, far less 

vulnerable to the effects of climate change, may stand 

more to lose than to gain by accepting the obligations of 

such an agreement. By signing a binding agreement, states 

that do not face an immediate threat from climate change 

accept unknown financial and social costs. They stand only 

to gain from the rewards of organized hypocrisy? an 

enduring attribute of international relations whereby 

longstanding norms are frequently violated when a state is 

incentivized to do so. A non-binding political agreement, 

however, offers the same benefits to a participating 

state? increased respect on the world stage as a champion 

of human rights? without the costs. A non-binding 

declaration would serve as the foundation for a framework 


on the governance of climate refugees while largely 

circumventing the issues of reservations, refusal to ratify, 

or other loopholes to compliance. Perhaps, as the climate 

crisis worsens, a binding convention will grow 

increasingly realistic and desirable. To stand idly by until 

such an opportunity presents itself, however, is to deny 

protection to millions of refugees. Until a binding 

convention becomes achievable, the international 

community must cooperate to establish a political 

agreement that will, at the very least, serve to legitimize 

the issue and provide a foundation for future developments 

in climate refugee law. 

Conclusion 

Ultimately, the protection gaps for climate refugees reveal 

a delay between the onset of global issues and adaptation 

in international law. Anthropogenic climate change is a 

relatively new challenge to international security and 

wellbeing that was not well understood when the Refugee 

Convention was drafted. Nevertheless, in order to honor 

the spirit of the Refugee Convention, international law and 

the refugee regime must respond to the consequences of 

climate change and the needs of millions of displaced 

persons across the globe. The international community 

must cooperate to create a political agreement that will 

invoke and strengthen the principle of burden-sharing to 

provide protection and assistance to this new and growing 

category of refugees. Establishing a declaration to protect 

climate refugees may prove useful in the global effort to 

address climate change mitigation as a whole. It would 

provide protection and assistance to the millions displaced 

by climate change. Such an international declaration would 

contribute to and stimulate important conversation about 

climate adaptation and mitigation on a global scale. The 

proposed agreement may bolster discussions in legal, 

academic, and public spheres surrounding responsibility 

and the necessity of taking legal action against climate 

change, a pressing and interdisciplinary issue that threatens 

the very existence of humanity. Overall, the establishment 

of an international declaration to govern the protection of 


73

climate refugees is urgent and indispensable. However, it is 

also only the first step. 



74

NATIVE SOVEREIGNTY, 

JURISDICTION, AND THE 

EPIDEMIC OF SEXUAL VIOLENCE 

AGAINST NATIVE WOMEN 

Deborah Meirowitz 

ABSTRACT 

Native American legal sovereignty is recognized and protected by the United States Constitution, legal precedent, treaties, 

and human rights principles, but it is often suppressed by complex criminal jurisdiction codes and the present court 

system. The incompatibility between Western and Indigenous conceptions of sovereignty and self-government has led to 

the suppression of Native nations and the reduction of tribal criminal jurisdiction in Indian Country. This paper examines 

the history of Native jurisdiction as it relates to Native sovereignty in the U.S., considering three forms of legal 

sovereignty: de recto sovereignty or ?sovereignty by moral principle or right,? de jure sovereignty or ?sovereignty by 

legal decree or legislative act,? and de facto sovereignty, which is ?sovereignty in practice.? 1 Limitations to Native legal 

jurisdiction has created the current system of jurisdictional disarray which debilitates tribal governments. This paper 

argues that the U.S. federal and state governments?restriction of Native sovereignty has created a complex jurisdictional 

dynamic that endangers Native individuals and impedes justice, evidenced by the disproportionate impact of sexual 

violence on Native women. This epidemic of sexual violence demonstrates how the federal government fails to fulfill its 

codified obligations to protect Native people and, in many ways, perpetuates a colonial relationship with Native American 

and Alaska Native people. The U.S. federal and state governments?continuous erosion of tribal governmental authority 

hinders the development of effective mechanisms of tribal self-governance and law enforcement. This paper argues that 

the U.S. government must not limit Native jurisdiction as it inhibits tribal sovereignty. Furthermore, it advocates for a 

number of reforms and recognitions to protect Native nations?codified rights to legal sovereignty and self-determination. 

1. Joseph P. Kalt and Joseph William Singer, ?Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule? (John F. 

Kennedy School of Government Harvard University Faculty Research Working Papers Series, 2004), 6. 


75

Native Sovereignty, Jurisdiction, and the Epidemic of Sexual Violence Against Native Women 

Introduction 

sovereignty is ?sovereignty by moral principle or right,? de 

jure sovereignty is ?sovereignty by legal decree or 

Indigenous history in the United States is defined by 

legislative act,? and de facto sovereignty is ?sovereignty in 

resistance and the pursuit of sovereignty. Sovereignty is a 

practice.? 

highly contested term used to describe a state?s ?original, 

For instance, the U.S. government has curtailed 

tribal governments? power to investigate and prosecute 

absolute, unlimited, universal power over the individual 

subject and over all associations of subjects.? 2 criminal offenses in federal statutes and Supreme Court 

This 

decisions that include, but are not limited to, (1) the Major 

definition reflects how sovereignty is understood in the 

Crimes Act of 1885, (2) Public Law 280 of 1953, (3) the 

official archive: within a Western, Eurocentric framework. 

Indian Civil Rights Act of 1968, and (4) Oliphant v. 

This is exemplified by the recognition of Native 

sovereignty within the confines of the U.S. Constitution. 3 Suquamish Indian Tribe (1978). 9 The impact of imposing 

Western notions of sovereignty characterized by the 

In the United States, Native tribes officially exercise 

supremacy of a state? a political organization of typically 

self-governance, but their sovereignty relating to criminal 

elite individuals? over territory is evident in issues related 

and general civil jurisdiction is veritably limited by U.S. 

to jurisdiction and justice, contributing profoundly to the 

federal and state governments. According to case law 

epidemic of sexual violence inflicted upon Native 

established by Cherokee Nation v. Georgia (1831) and 

American women. The fundamental incompatibility of 

subsequent statutes such as the Indian Law Enforcement 

Native American conceptions of sovereignty with Western, 

Reform Act, Indian reservations are considered ?domestic 

capitalist land ownership necessitates the construction of 

dependent nations? for which the United States ?has 

more expansive, legitimate, and anti-colonial legal 

distinct legal, treaty, and trust obligations to provide for the 

public safety.? 4 5 paradigms of sovereignty to combat exploitation and 

Thus, tribal sovereignty is recognized 

injustice. These structures will help ensure that 

and protected by the U.S. Constitution, legal precedent, 

jurisdictional oversight, particularly as it relates to the 

treaties, and applicable human rights principles. 

epidemic of violence against Native women, does not 

Continuing a long history of infringing treaty rights, U.S. 

federal and state governments maintain de facto rule over 

both tribes and individual Indians in all manners of 

personal and civil affairs. 6 The United States has often 

exercised such authority de jure by its legal and 

continue to cause undue harm to Indigenous communities. 

The current system of jurisdictional disarray exacerbates 

the injustice victims of sexual violence experience. 

Therefore, the recognition of de facto sovereignty and 

tribal criminal jurisdiction and the expansion of tribal 

constitutional standards, while contrarily declaring 

self-government is necessary to protect Indigenous women 

Indigenous nations? de recto sovereignty. 7 De recto 

from sexual violence and support Native communities. 

2. Carol Weisbrod, Emblems of Pluralism: Cultural Differences and the State (Princeton: Princeton University Press, 2002), 30. 

3. ?Native,? ?Indigenous,? and ?Indian? are used interchangeably, as scholars employ varied terms to refer to Indigenous individuals and nations in 

the United States. Legal scholarship often refers to ?Indians? while other fields use the term ?Native Americans.? In this paper, ?Indian? is used in 

reference to U.S. statutes and common law and in cases in which ?Indian? is included in the Native nation?s name. 

4. Cherokee Nation v. Georgia, 30 U.S. 30 (1831). 

5. Indian Law Enforcement Reform Act, Pub. L. 111?211, title II, §202, July 29, 2010, 124 Stat. 2262. 

6. Kalt and Singer. 

7. Andrew Boxer, ?Native Americans and the Federal Government,? History Today, September 2009, 

https://www.historytoday.com/archive/native-americans-and-federal-government. 

8. Kalt and Singer, 6. 

9. Jasmine Owens, ??Historic?in a Bad Way: How the Tribal Law and Order Act Continues the American Tradition of Providing Inadequate 


76


The U.S. government?s continued legal interference in 

Native American affairs highlights the unfortunate results 

of the paternalistic imposition of Eurocentric ideas of 

government and justice on distinct Native American and 

Alaska Native civilizations displaced by U.S. federal and 

state governments. Despite pledging to protect Native 

tribes? rights to sovereignty and self-determination, U.S. 

policy has refused Native nations the autonomy to govern 

themselves according to their worldviews. The result is a 

confusing body of law arbitrating Native American tribes? 

rights and constitutional statuses, enabling atrocious 

miscarriages of justice. Violence against Native American 

women is one example of this rift between legal structures, 

as perpetrators escape through the holes in the complex 

jurisdictional system while victims suffer due to 

insufficient sources of support and redress. 

The History of Native Sovereignty in the United States 

Indigenous conceptions of nationhood and sovereignty and 

the spiritual connection between Indigenous peoples and 

the land they inhabit are naturally in conflict with 

Eurocentric jurisdictional legal codes defined by individual 

as ?deviant,? portraying their societies as lawless. 

Indigenous peoples were considered ?savages,? serving as 

justification for the expropriation of Native lands and 

criminalization. 12 The creation of the Bureau of Indian 

Affairs in 1824 exemplifies the U.S. federal government?s 

restriction of Native sovereignty; the federal government 

began to impose federal law on nonconsenting, supposedly 

semi-sovereign (according to the 1823 Johnson v. 

McIntosh decision) Indian tribes due to calls for the 

Department of the Interior to take action against ?savage 

and barbarous? Natives. 13 This is one of many instances of 

violent policies mandating assimilation and adherence to 

?civilized law.? 14 As a result, American Indian assertions 

of sovereignty and self-determination have dissolved into 

U.S. territoriality. 15 Colonialism?s racialization of Native 

people generated the conceptualization of the ?savage 

inferior.? 16 Consequently, U.S. policy takes a paternalistic 

approach in which the government fulfills its obligations to 

provide for the public safety of American Indian and 

Alaska Native people by asserting control over their 

criminal investigations and prosecutions. 17 To understand 

this intricate jurisdictional dynamic, one must first 

ownership. 10 Many traditional tribal codes were 

understand the legal precedents? Supreme Court cases, 

criminalized when the United States imposed its laws and 

culture on Native people post-colonization via statutes 

treaties, and statutes? that led to the current state of 

jurisdictional disarray. 

enforcing policies of assimilation and dispossession, such 

In the Tribal Law and Order Act of 2010, Congress 

as the Civilization Fund Act (1819), the Indian Removal 

Act (1830), and the Dawes Act (1887). 11 describes the complex mix of federal, state, and tribal 

Thus, the state 

authorities responsible for prosecuting incidents occurring 

and federal governments expressed cultural superiority via 

on Native land and those perpetrated by or against 

federal assimilation policies and prohibitive geographical 

American Indian and Alaska Native residents as a 

jurisdictional legislation. They defined Native Americans 

?complicated jurisdictional scheme.? 18 Indigenous nations 

10. Luana Ross, Inventing the Savage: The Social Construction of Native American Criminality (Austin: University of Texas Press, 1998), 16. 

11. Ibid. 

12. Ibid. 

13. Ibid., 5. 

14. Ibid., 17. 

15. Jodi A. Byrd, Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis: University of Minnesota Press, 2011), 137. 

16. Ross, 16. 


18. Tribal Law and Order Act of 2010, Pub. L. No. 111-211, § 202(a)(4), 124 Stat. 2261, 2262. 


77


are the ?original sovereigns and owners? of the land 

occupied by the United States but must now defer to U.S. 

federal jurisdictional decisions. 19 Thus, the U.S. 

government recognizes that Indigenous nations? 

sovereignty has been diminished but not entirely 

eliminated. It granted tribes the ability to exercise 

considerable, albeit limited, sovereignty defined by 

restrictions on tribal criminal jurisdiction (e.g., sentencing 

limitations and jurisdiction or lack thereof over 

non-Indians) and various other legal holdings. Additional 

legal holdings include, but are not limited to, the 

termination of the legal status of tribes and their property, 

the conscription of citizens of tribes into the army, and the 

authorization of state and municipal governments to 

exercise sovereignty over tribal citizens. 20 

Indigenous notions of sovereignty are different from 

Western ones, which are based on territorial 

control? including control obtained and maintained by 

force. According to Dr. Luana Ross, a sociologist of the 

Confederated Salish and Kootenai Tribes, ?Sovereignty is 

inherent; it comes from within a people and their 

culture.? 21 As such, many Indigenous cultures do not 

consider land to be a resource that can be conquered or 

owned by man, as man belongs to the land; ?I belong to 

this land? is the articulation of this concept, which directly 

contrasts with the classic Western belief that, ?This land 

belongs to me.? 22 Dr. Jodi Byrd, a Chickasaw academic, 

shares this sentiment, saying, ?Chickasaw sovereignty is 

. . . . unconquered and unconquerable.? 23 Thus, Byrd?s and 

Ross?s statements reflect the spiritual nature of Indigenous 

notions of sovereignty and highlight the complexities of 

the term?s interpretations. This distinction has posed 

significant barriers to sustainable tribal self-governance. 

The U.S. federal government created internally 

contradictory predicaments. It recognized de recto and de 

jure sovereignty but stripped Native nations of their de 

facto sovereignty by prohibiting them from exercising 

authority for their ?betterment.? De recto and de jure 

sovereignty are both performative and admittedly limited, 

existing on paper via statutes and common law but not in 

reality as jurisdiction, for instance, is limited. In contrast, 

the federal government disparately applied principles of 

self-governance to white settlers by recognizing their de 

facto sovereignty. In this way, the same systems that 

promote human rights and recognitions (de recto and de 

jure) authorize the dispossession of Indigenous peoples for 

?the common good.? 24 These abuses are delineated by 

decades of broken treaties and bloodshed. In the United 

States, Indian tribes are considered ?domestic dependent 

nations? under the law. 25 Despite this, there are distinct 

types of sovereignty that Indigenous nations encounter in 

the United States: de recto sovereignty, de jure 

sovereignty, and de facto sovereignty. Indigenous nations 

have made a compelling case asserting de recto 

sovereignty, lobbied for de jure sovereignty, and have 

struggled to secure de facto sovereignty. 26 In some 

instances, the U.S. federal government has recognized the 

de recto and de jure sovereignty of Indigenous nations. For 

example, the Commerce Clause grants the U.S. federal 

government ?plenary power . . . over residents within their 


20. Ibid., 1. 

21. Ross, 3. 

22. Bishop Kristyna, ?This Land Knows Me: Indigenous Land Rights,? Cultural Survival Quarterly Magazine, March 2001, 

https://www.culturalsurvival.org/publications/cultural-survival-quarterly/land-knows-me-indigenous-land-rights. 

23. Byrd, xvii. 

24. Ibid., xix. 

25. ?Attorney General June 1, 1995 Memorandum on Indian Sovereignty,? Office of the Attorney General, The United States Department of Justice, 

March 8, 2017, https://www.justice.gov/archives/ag/attorney-general-june-1-1995-memorandum-indian-sovereignty. 



78


borders with the semi-autonomous status of Indians living to Johnson v. McIntosh and statutes mandating land 

on tribal reservations,? thus recognizing the allotment, such as the Dawes Act, which gave the federal 

?semi-autonomous? status of Native nations (de jure and 

de recto sovereignty) while contrarily eroding tribal 

sovereignty by limiting tribal governments? regulatory 

authority (denying de facto sovereignty). 27 Thus, the 

Commerce Clause fails to ensure de facto sovereignty as it 

empowers Congress to restrict tribal regulatory authority. 

As a result of this Clause, the United States has the legal 

means to assert extraterritorial sovereignty over ?Indian 

government ?plenary power? over the internal and external 

affairs of Indian tribes, Native Americans must only sell 

their land to the federal government as a result of their 

colonization. 32 33 Land allotment as codified by Dawes 

essentially separated individuals from their nations to 

assist in the process of assimilation and gave the federal 

government the power to expand, contract, or abolish tribal 

sovereignty and confiscate Native land with little to no 

Country.? 28 

compensation. 34 Hence, the federal government 

distinguishes between the right to occupy the land and the 

Three precedential tribal sovereignty cases are Johnson v. 

right to own it, an issue of jurisprudence concerning 

McIntosh (1823), Cherokee Nation v. Georgia (1831), and 

Worcester v. Georgia (1832). 29 In Johnson v. McIntosh, the 

Supreme Court ruled that the Piankeshaw tribe? a tribe 

that sold its land to a private individual named Thomas 

Johnson? did not have the right to convey the land. 

Therefore, priority rights to the property remained with 

William McIntosh, who had allegedly been given a land 

patent to the same land by the federal government. 30 In the 

Native lands that persists today. 35 

Similar to the Supreme Court?s earlier ruling, the Court?s 

decision in Cherokee Nation v. Georgia further limited the 

sovereignty of Indian nations. In the 1831 case, the 

Cherokee Nation filed a lawsuit against the state of 

Georgia requesting ?relief from state jurisdiction on their 

land.? 36 The Cherokee Nation argued its rights as a 

Court?s unanimous decision, Justice Marshall argued that ?sovereign and independent state,? which were 

?discovery patterns? during the European colonization of 

the New World dictated that European powers secured 

sovereignty over the land they settled. According to 

Marshall?s argument, the U.S. federal government 

inherited the right to the land from the British. 31 According 

consistently recognized in treaties between its Nation and 

the United States. According to the Cherokee Nation?s 

lawsuit, the Georgia laws stripped the Nation?s right to 

self-governance and judicial sovereignty, displacing the 

Nation from its land and violating the treaty that was 

27. U.S. Const. art. I, § 8. 

28. Byrd, 137. 

29. ?An Issue of Sovereignty,? National Conference of State Legislatures, January 2013, 

https://www.ncsl.org/research/state-tribal-institute/an-issue-of-sovereignty.aspx. 

30. Thomas Johnson and Graham's Lessee v. William M'Intosh, 21 U.S. 543 (1823). 

31. Ibid. 

32. According to the Harvard Law Review, ?plenary power? essentially limits tribal authority, emphasizing the ?absolute sovereignty? of the United 

States by giving Congress the same authority over Indian affairs as states have over their citizenry. The Marshall Trilogy rulings? Johnson v. 

McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia? led to the reduction of tribes?rights. See: ?Herrera v. Wyoming,? Harvard Law 

Review 133, no. 402 (2019): 407. 

33. Johnson v. McIntosh, 21 U.S. 543 (1823). 

34. Ablavsky, 1014. 

35. ?An Issue of Sovereignty.? 

36. Ibid. 


79


signed on March 22, 1816, between the United States and political and legal sovereignty by creating and enforcing 

the Cherokee Nation. 37 38 In Cherokee Nation v. Georgia, their own laws on tribal lands but must still yield to the 

the Supreme Court held that the Cherokee people did not legal limitations imposed on their jurisdictions by the U.S. 

constitute a foreign nation as discussed in Article III of the federal government. 45 Furthermore, the ruling addressed 

U.S. Constitution. 39 40 Therefore, the Court dismissed the the issue of ownership versus occupancy by asserting that 

case, as the federal judiciary lacked jurisdiction to hear the ?Indians have rights of occupancy to their lands . . . but 

claims of ?an Indian nation? against their state of they are only rights of occupancy.? 46 

residence. 41 In the opinion, tribes were described as 

In contrast with the aforementioned cases, the decision in 

?domestic dependent nations? that are ?in a state of 

Worcester v. Georgia strengthened Indigenous sovereignty, 

pupilage? and ?subject to many of those restraints which 

ruling that the Constitution considers Indian tribes to be 

are imposed upon our own [U.S.] citizens,? with a 

separate political entities whose sovereign power is not 

federal?tribal relationship resembling ?that of a ward to his 

superseded by state law. Additionally, the case stipulated 

guardian.? 42 Thus, the Supreme Court lacked jurisdiction 

that tribes have civil jurisdiction over non-members on 

to hear the claims of an Indian nation against Georgia?s 

land within reservation borders. 47 While the Court did not 

state government because Indian nations do not constitute 

overturn Cherokee Nation v. Georgia in this decision, 

?foreign nation[s]? under Article III due to their 

Justice Marshall concedes that ?the Cherokee Nation, then, 

dependency according to the decision. 43 The opinion 

is a distinct community occupying its own territory . . . in 

describes ?dependency,? explaining that tribes look to the 

which the laws of Georgia can have no force? in the 

?government for protection,? relying ?on its kindness and 

majority opinion. 48 However, he does not go so far as to 

its power.? 44 This is indicative of the paternalistic nature of 

define them as a ?foreign nation.? 49 Thus, this concession 

the United States? relationship with tribal 

is indicative of the confusing and contradictory 

governments? Indigenous nations can exercise their 

inconsistencies in court decisions and statutes that inhibit 

37. This Treaty with the Cherokee created boundaries between Cherokee land and distinct U.S. states, establishing peace, friendship, and sovereignty 

for the Cherokee Nation in Cherokee Country. See: William Penn, ?NO. XI,? Cherokee Phoenix, October 28, 1829, 

https://www.wcu.edu/library/DigitalCollections/CherokeePhoenix/Vol2/no29/no-xi-page-1-column-4a.html. 

38. ?Cherokee Nation v. Georgia,? Federal Judicial Center, accessed December 1, 2020, 

https://www.fjc.gov/history/timeline/cherokee-nation-v-georgia. 

39 Section II of Article III deals with judicial relations between the U.S. federal government and foreign states. It states that ?the judicial power shall 

extend to all cases, in law and equity, arising under this Constitution . . . between a state and citizens of another state;? between Citizens of different 

States;? between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign 

States, Citizens or Subjects.? See: U.S. Const. art. III, §2, cl. 1. 

40. ?Cherokee Nation v. Georgia,? Federal Judicial Center. 

41. Ibid. 


43. Cherokee Nation v. Georgia, 30 U.S. 18 (1831). 

44. Ibid., 30 U.S. 19. 

45. Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA (New York: Amnesty 

International USA, 2007), 28. 

46. Ibid., 30. 


48. Worcester v. Georgia, 31 U.S. 31, 515 (1832). 

49. Ibid. 


80


Native nations from being free of unlawful regulation by 

U.S. federal and state governments. Without eliminating 

illegal regulation, Native nations cannot attain de facto 

sovereignty. Though President Andrew Jackson declined to 

enforce the ruling, Worcester v. Georgia has served as the 

foundation for subsequent U.S. law regarding tribal 

sovereignty, as it established that only Congress has 

oversight over Indigenous nations? affairs, state laws are 

not applicable in Indian Country, and tribes do not lose 

their sovereignty completely by becoming subject to the 

United States? power. 50 51 Despite this significant ruling, 

jurisprudence regarding jurisdiction has been inconsistent 

and perplexing. 

U.S. Legal Limitations on Native Jurisdiction 

The issue of legal limitations is exacerbated by the fact that 

federal agencies, in many cases, control funds for tribal 

governments? services. As discussed regarding Cherokee 

Nation v. Georgia, the U.S. federal government assumed 

legal responsibility to ensure the ?protection of the rights 

and wellbeing of American Indians and Alaskan 

Natives.? 52 In an attempt to fulfill these obligations, the 

federal government has exerted more control over criminal 

investigations and prosecutions involving American 

Indians and Alaska Natives. 53 Three pieces of legislation 

and a Supreme Court decision have inhibited the power of 

tribal governments to investigate and prosecute criminal 

offenses: the Major Crimes Act of 1885, Public Law 280 

of 1953, the Indian Civil Rights Act of 1968, and Oliphant 

v. Suquamish Indian Tribe (1978). 54 

The Major Crimes Act granted federal authorities, not 

Native, jurisdiction over ?major crimes? committed in 

Indian Country, essentially ignoring tribal jurisdiction. 55 

These major crimes include ?murder, manslaughter, 

kidnapping, maiming, assault with intent to commit 

murder, assault, felony child abuse or neglect, arson, 

burglary, robbery, and rape committed by an Indian against 

the ?person or property of another Indian or other 

person.?? 56 However, the law did not explicitly grant 

exclusive jurisdiction to the federal government, and 

courts interpret the statute differently. According to some 

courts, the statute excludes tribal jurisdiction over 

American Indian and Alaska Native offenders. In contrast, 

others hold that ?tribal courts retain concurrent jurisdiction 

if the crime is committed in Indian Country by an 

American Indian or Alaska Native perpetrator.? 57 

Overall, the Major Crimes Act restricted tribal authority, 

placing a legal obligation to provide for the public safety 

of Native nations. For instance, Ronnie Tom is a Colville 

Indian man who raped a child on the Colville Indian 

reservation and received minimal punishment due to his 

race and location. 58 Tom?s case fell under federal 

jurisdiction because he committed his crime on the 

Colville Indian reservation in Washington. Though the 

seven-year-old victim?s testimony was considered ?clear 

and credible,? Tom was not charged with a felony because 

the federal court declined to prosecute him, and federal 

50. The Worcester v. Georgia ruling did not prevent the displacement of Cherokees in what is known as the Trail of Tears. These inconsistencies in 

rulings led to lack of enforcement and complete disregard for tribal sovereignty on treaty-guaranteed lands. See: Lance F. Sorenson, ?Tribal 

Sovereignty and the Recognition of Power,? American Indian Law Review 42, no. 1 (2017): 104. 


52. Amnesty International, 2. 

53. Ibid., 28. 

54. Owens, 504. 

55. Ibid. 

56. Ibid. 

57. Ibid. 

58. Ibid., 497. 


81


laws prevented the tribe from sentencing Tom to more than 

a ?year of incarceration per crime, . . . a $5000 fine, or 

both.? 59 While we do not know why the federal court 

exclusive jurisdiction over all crimes committed by 

non-Indians. Moreover, Public Law 280 requires states to 

oversee law enforcement activities for which Congress 

declined to prosecute Tom? such information is fails to provide funds. As a result, tribal and state 

confidential? we know that there is an Indian reservation 

declination rate of 72 percent for prosecuting child sex 

crimes, 58 percent for aggravated assaults, and 50 percent 

for murder and manslaughter. 60 This declination rate can 

authorities have not received adequate funding to assume 

their respective law enforcement responsibilities, resulting 

in troubled relations between tribal and state officials in 

some communities and a sense of ?lawlessness? overall. 62 

be attributed to many factors which include, but are not The legacy of colonialism and this current-day 

limited to, shoddy investigations, discrimination, and poor 

forensic evidence. Unfortunately, stories like these are not 

uncommon. Thus, the U.S. government?s lack of respect 

for tribal law and law enforcement authorities prevents 

tribal governments from exercising the political and legal 

sovereignty codified in the treaties they have signed with 

the United States. 

jurisdictional maze have hindered the development of 

effective mechanisms of tribal self-governance and law 

enforcement. Thus, the U.S. federal government must 

provide tribal authorities with the funding and resources 

necessary to enable the development of tribal courts that 

are effective and capable of operating in accordance with 

international standards. 63 

Furthermore, with Public Law 280 of 1953, the federal 

government transferred jurisdiction over criminal offenses 

involving Native Americans in Indian Country to state 

governments. 61 Thus, this law gave tribal and state 

authorities concurrent jurisdiction over crimes committed 

on tribal land by American Indians or Alaska Natives 

without the consent of the governed. Indigenous people 

and legal scholars alike see this as an affront to tribal 

sovereignty, as it gave states the option to relinquish or 

assume jurisdiction, expanding state governments?criminal 

and civil jurisdiction in Indian Country? an option not 

afforded to tribal nations, as the federal government 

assumes exclusive jurisdiction over major crimes in the 

case of interracial crime and the state government assumes 

In the same vein as Public Law 280, the Indian Civil 

Rights Act casts tribal sovereignty aside as it ?limits the 

penalty which can be imposed by tribal courts for any 

offense? including murder or rape? to a maximum of one 

year?s imprisonment and a $5,000 fine.? 64 The act 

blatantly disrespects tribal sovereignty by restricting the 

punishment that a tribe may impose on a criminal 

defendant. This sends a message that tribal justice systems 

can only handle less serious crimes, thus limiting their 

custodial sentencing powers and inhibiting tribal courts 

from prosecuting serious crimes such as sexual violence. 65 

Furthermore, tribal courts suffer from a lack of funding, 

out-of-date tribal codes, and a lack of resources to rework 

their codes. In combination with Public Law 280 and the 

59. Ibid., 499. 

60. The Tribal Law and Order Act of 2009: Hearing on S. 797, Before the Committee on Indian Affairs, 111th Cong. 2 (2009) (opening statement of 

Hon. Bryan L. Dorgan, U.S. Senator from North Dakota). 

61. Owens, 507. 


63. Ibid.,12. 

64. Ibid., 29. 

65. Ibid. 


82


Major Crimes Act, the Indian Civil Rights Act is ?a (1981), the Court reversed its ruling in Worcester, holding 

practical divestiture of all tribal jurisdiction over major that tribes generally have no civil jurisdiction over 

crimes committed by American Indians or Alaska Natives non-members, ?at least on non-member owned land within 

in Indian Country.? 66 

reservation borders.? 68 

Lastly, in another blow to tribal jurisdiction, the Supreme 

Court?s ruling in Oliphant v. Suquamish Indian Tribe 

dictated that tribal courts could not exercise criminal 

jurisdiction over non-Indian citizens. This decision 

arguably represents the most egregious reduction of 

sovereignty by the U.S. government to date; it is of 

particular concern considering the disproportionately high 

volume of reports of sexually violent crimes committed 

against American Indian women by non-American Indian 

men. The ruling grants federal and state law enforcement 

officials the sole authority to intervene. According to 

Amnesty International?s Maze of Injustice report, the ?gap 

in jurisdiction or enforcement has encouraged non-Indian 

individuals to pursue criminal activities of various kinds in 

Indian Country.? 67 Thus, criminal activity in Indian 

Country, such as sexual violence, is indicative of the 

horrific consequences of jurisdictional issues for 

Indigenous peoples. Limits on tribal jurisdiction hinder 

tribal governments? abilities to exercise sovereignty and 

protect their citizens. The lack of communication between 

tribal authorities and U.S. federal and state governments 

and deficient resources for tribal governments cause many 

crimes to fall through the cracks, exacerbating the ?maze 

of injustice.? Furthermore, Oliphant v. Suquamish Indian 

Tribe marked the beginning of the Supreme Court?s 

trajectory of reducing tribal powers over non-Indians. 

Three years after Oliphant, in Montana v. United States 

The jurisdictional maze?s most recent expansion occurred 

on July 29, 2010, when President Barack Obama signed 

the Tribal Law and Order Act of 2010 to address the 

epidemic of sexual violence against Native women. The 

act was lauded as ?historic? with its stated purpose to 

?reduce the prevalence of violent crime in Indian Country 

and to combat sexual and domestic violence against 

American Indian and Alaska Native women.? 69 Despite its 

positive press, the legislation does not do enough to protect 

women who have experienced rape and sexual violence, as 

it does not recognize the right of tribal authorities to 

prosecute rape and other serious felonies ?and continues to 

restrict tribal courts?authority to punish tribal members.? 70 

Jurisdiction and Native Sexual Violence Survivors 

Since Montana v. United States in 1981, the Supreme 

Court has become increasingly unwilling to grant 

Indigenous nations regulatory powers and court 

jurisdiction over non-members. 71 Due to the limitations on 

tribal governments? criminal jurisdiction, justice for 

victims of sexual violence rests on state authorities.? 72 

Where Public Law 280 is applied, state police and 

prosecutors have exclusive jurisdiction over crimes 

committed by non-Native perpetrators on tribal land and 

concurrent jurisdiction with tribal officials over crimes 

committed by Native perpetrators concurrent jurisdiction 

with tribal officials over crimes committed by Native 

66. Owens, 508. 



69. Owens, 500. 

70. Ibid. 




83

perpetrators on tribal land. 

73 74 


That said, the largest impediment to victims? pursuit of 

justice is the discretion of federal prosecutors to either 

prosecute or decline a case. Former U.S. Attorney 

Margaret Chiara confessed that federal prosecutors 

actively avoid prosecuting rape cases from Indian Country, 

stating, ?I?ve had [Assistant U.S. Attorneys] look right at 

me and say, ?I did not sign up for this?. . . they want to do 

big drug cases, white-collar crime, and conspiracy.? 75 

According to Chiara, most federal judges see Indian 

Country cases and share the sentiment of the prosecutors, 

with one complaining, ?I could have stayed in state court if 

I wanted this stuff.? 76 Moreover, other prosecutors attribute 

their frequent rejection of American Indian and Alaska 

Native rape cases to poorly conducted investigations and 

lacking forensic evidence. 77 Due to federal jurisdiction 

requirements, rape is generally not a crime prosecuted in 

federal courts, Native jurisdictional issues aside. Sex crime 

investigation and litigation almost always begin locally, as 

federal sex crime investigations and trials are far more 

complex and expensive; therefore, even outside of Indian 

Country, federal prosecutors declined to prosecute about 

26 percent of the rape cases filed in 2000. Still, this is 

nothing compared to the staggering 65 percent of rape 

cases that federal prosecutors declined to prosecute from 

Indian Country in 2011. 78 There are similar obstacles to 

justice in tribal and state courts? not to mention additional 

barriers, like the distance Native victims must travel (from 

remote Indian Country locations to courts), language 

barriers, unrepresentative jury selections, and 

discrimination against them. 79 Victims face further 

hardship in securing rape kits and communicating with 

prosecutors to prepare for trial. 80 Prosecuting perpetrators 

is also a challenge, as they sometimes evade prosecution 

by running off to different jurisdictions. 

81 82 

American Indian and Alaska Native people suffer from a 

disproportionately high rate of sexual assault. 83 Data from 

the U.S. Department of Justice shows that Native women 

are ?2.5 times more likely to be assaulted than women in 

the U.S. in general.? 84 Studies show that, though assaults 

on American Indian and Alaska Native women are ?more 

violent than rapes suffered by the general population,? the 

rapes often go unprosecuted. 85 The complex jurisdictional 

system decreases accountability for all law enforcement 

73. Public Law 280 is applied in California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska. Congress mandatorily conferred extensive 

criminal and civil jurisdiction over tribal lands to the six states aforementioned (the so-called ?mandatory states?). Public Law 280 also permits states 

in which it is not applied to acquire jurisdiction at their request. See: ?Public Law 280,? Tribal Court Clearinghouse, Tribal Law and Policy Institute, 

http://www.tribal-institute.org/lists/pl280.htm. 


75. Owens, 511. 

76. Ibid. 

77. Ibid. 

78. Ibid., 512. 

79. Ibid. 

80. Ibid. 

81. As previously discussed, jurisdictions are strictly separated into tribal, state, or federal land. Thus, perpetrators can take advantage of this rigidity 

and escape prosecution by crossing borders into a different jurisdiction from that in which they committed the crime. For instance, unless federal, 

state, and tribal agencies enter into extradition agreements, in a non-Public Law state, a state police officer does not have jurisdiction to arrest a tribal 

member for a crime committed outside of Indian Country if that tribal member is on tribal lands. See: Owens, 512. 

82. Ibid., 512. 

83. Ibid., 499. 


85. Owens, 5000. 


84


system decreases accountability for all law enforcement 

agencies involved, as cases are often mishandled if they 

have not already slipped through the cracks. Investigation 

and prosecution processes are chronically underfunded and 

mismanaged? issues that make justice processes for 

Issues of jurisdiction and challenges to Native sovereignty 

are particularly glaring in the Standing Rock Sioux 

Reservation, where high numbers of Native women have 

been assaulted by non-Natives working on the Dakota 

Access Pipeline (DAPL)? a project that first began in 

Native peoples in the U.S. inconsistent with international 2016 and is demonstrative of the U.S. federal 

human rights standards. 86 Various authorities?jurisdictions 

overlap, resulting in uncertainty that inhibits intervention 

and leaves victims without legal protection or redress: this 

dual jurisdiction leads to ?impunity for perpetrators.? 87 

According to the Department of Justice, ?At least 86% of 

the reported cases of rape or sexual assault against 

American Indian and Alaska Native women are committed 

by non-Native men.? 88 

government?s continued disregard for treaties such as the 

Treaty of Fort Laramie (1868). 91 The construction of the 

DAPL conflicts with the rights codified in treaties, as the 

area in which the pipeline is to be constructed was ?set 

apart for the absolute and undisturbed use, and occupation 

of the Indians herein named,? as prohibited by the Treaty 

of Fort Laramie. 92 The Treaty also states that if ?bad men 

among the whites, or among other people subject to the 

authority of the United States? do wrong against the 

Furthermore, sexual violence against women is generally 

?person or property of the Indians,? they shall be arrested 

underreported. Explanations for this issue include fear of 

and punished according to the laws of the United States. 

breaches in confidentiality, the threat of retaliation, and 

Activists, survivors, and support workers on the Standing 

lack of confidence that reports will be seriously 

Rock Sioux Reservation contend that rates of sexual 

considered. In 2001, UN Special Rapporteur on violence 

violence on the reservation are disproportionately high. 

against women, Radhika Coomaraswamy, asserted that 

Authorities are unsure of actual perpetration and 

?Indigenous women . . may fear State authority, if the 

prosecution rates, as sexual violence reporting rates are 

police have traditionally used coercive and violent means 

of criminal enforcement in their communities.? 89 notoriously low due to the stigma associated with 

These 

victimhood. According to Andrea Smith, Assistant 

facts, combined with the jurisdictional nightmare that 

Professor of Native Studies at the University of Michigan, 

inhibits justice for Native victims of sexual violence, are in 

non-Native perpetrators often seek out victims on 

many ways a continuation of the United States?colonial 

reservations because they know they can inflict violence 

relationship with Native American and Alaska Native 

people. 90 

without legal repercussions. 94 Thus, violent crimes can be 

86. The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power claims that victims must be ?kept informed of the 

scope, timing and progress of proceedings and of the disposition of their cases; and protected from intimidation and retaliation? to ensure 

accountability for law enforcement agencies and dignity for victims. See: Amnesty International, 20. 

87. Ibid., 9. 

88. Owens, 502. 


90. Owens, 502. 


92. Treaty of Fort Laramie, U.S.-Sioux-Brule-Oglala-Miniconjou-Yanktonai-Hunkpapa-Blackfeet-Cuthead-Two Kettle-San Arcs-Santee-Arapaho, 

art. 2, April 29, 1868, 25 U.S.C. 1776i. 

93. Ibid., art. 1. 



85


inflicted upon Native women with impunity, as federal 

officials have exclusive jurisdiction when the alleged 

perpetrator is non-Indian. Moreover, tribal courts and the 

Standing Rock Sioux Tribe?s court of appeals, which 

adjudicate criminal and civil cases, are underfunded, 

causing delays; at the same time, federal prosecutors often 

decline cases from Indian Country. The net result is that 

perpetrators are not prosecuted at the federal or tribal court 

level. 95 

The United States was formed not solely by the 

Constitution, but by the treaties it entered into with 

Indigenous nations. 96 These treaties comprise part of the 

American government?s original framework and recognize 

tribes? property rights and sovereignty. Failing to honor 

treaties with Native nations constitutes a breach of contract 

and violates constitutional principles like property rights 

and the rule of law. 

Jurisdiction and Indigenous Sovereignty 

Issues with jurisdiction in Indian Country are tied to the 

question of Indigenous sovereignty: how should Native 

sovereignty be expressed, and to what extent might the 

occupying colonial power need to step in and support the 

Native nations they subjugated and displaced? According 

to Amnesty International, jurisdictional authority is 

determined by three factors: whether the victim is a 

member of a federally recognized Indian tribe, whether the 

suspect is a member of a federally recognized Indian tribe, 

and whether the alleged offense took place on tribal land. 

Ultimately, this determination dictates how the crime is 

investigated, which body of law applies to the case? tribal, 

federal, or state? and by whom it is handled. 97 

The federal government recognizes the prevalence of 

non-Indian crime in Indian Country as a public safety 

concern. Current statutes and common law suggest that the 

federal government and courts consider state or federal law 

and law enforcement to be the most appropriate 

mechanism for deterring crime, policing reservations, and 

prosecuting criminals that commit crimes in Indian 

Country. 98 

Jurisdiction is tied to land possession and property law, 

which maintain oppressive hierarchical structures that 

support the state?s right to exercise power and control. 

Jurisdiction in the United States is guided by two 

principles, which the Court enunciated in Pennoyer v. Neff 

(1878): ?every State possesses exclusive jurisdiction and 

sovereignty over persons and property within its territory,? 

and ?no State can exercise direct jurisdiction and authority 

over persons or property without its territory.? 99 The 

mention of ?territory? references power related to the 

general occupation of property and land ownership. This is 

particularly significant to the present discussion as 

Indigenous conceptions of sovereignty tend not to include 

land ownership. To many Indigenous communities, 

?sovereignty is inherent?: land is more valuable than 

money and cannot be sold because it was given to them 

?by the Great Spirit.? 100 Hence, they ?cannot sell it 

because it does not belong to them.? 101 But, if Native 

nations do not emphasize land ownership, jurisdiction, as 

defined by the United States, is up for grabs, which 

inherently threatens sovereignty. 

95. Ibid., 33. 



98. Owens, 509. 

99. Pennoyer v. Neff, 95 U.S. 722 (1878). 

100. Flyer, ?Support Yellow Thunder Camp: Evening in Solidarity with Native American Struggles,? September 27, 1981, The Moncada Library and 

the May 19th Communist Organization, Moncada Library, The Freedom Archives, San Francisco, California. 

101. Ibid. 


86

Potential Solutions to Jurisdictional Complexities 

The epidemic of sexual violence against Native women 

indicates the need for the upheaval of the Eurocentric, 

traditionally colonial view of sovereignty; the complex 

jurisdictional dynamic between tribal governments and the 

United States necessitates the formation of an anti-colonial 

approach. The issue of property ownership is central to this 

discussion, as the U.S. government has not only violated 

treaties that recognize Indigenous property rights but has 

also enacted legislation reducing tribal jurisdiction in 

Indian Country. Thus, a possible solution involves 

expanding sovereignty by passing legislation that gives 

American Indian nations the authority to prosecute crimes 

on their land and reduces Congress?s ability to diminish 

American Indian sovereignty. More specifically, the U.S. 

federal government should recognize concurrent 

jurisdiction regardless of the identity of the accused, and 

the Indian Civil Rights Act should be amended ?to 

recognize the authority of tribal courts to impose penalties 

proportionate to the offenses they try.? 102 


Research suggests that Indigenous survivors of sexual 

violence face prejudice and discrimination at ?all stages 

and levels of federal and state investigation and 

prosecution.? 103 Therefore, the U.S. government must 

recognize tribal authorities?jurisdiction over all offenders 

who commit crimes on tribal land, regardless of their 

identity, because tribal governments can meet their own 

citizens?needs better than outside authorities. 104 The U.S. 

government must also acknowledge the right of tribal 

governments to impose sentences commensurate with the 

crime and consistent with international human rights 

standards. 105 Congress should codify concurrent 

jurisdiction, legislatively override the Oliphant v. 

Suquamish ruling, and amend the Indian Civil Rights Act 

to ensure Indigenous sovereignty. 

The Tribal Law and Order Act of 2010 must also be 

amended, as it does nothing to fix or clarify the 

jurisdictional maze and fails to bestow any authority on 

tribal law enforcement. The act adds another layer of 

jurisdictional confusion ?by allowing public law states to 

opt into a concurrent state, federal, and (possibly) tribal 

jurisdiction? and by creating more bureaucracy through the 

establishment of new agents and officers. 106 This 

legislation also does not address the federal prosecutors? 

rate of refusing cases involving the rapes of American 

Indian and Alaska Native women. The act does, however, 

pledge to provide more resources to prosecute Indian 

Country crimes. 107 However, this is not the first time such 

a promise was made and not kept. 

108 109 

All things considered, the Tribal Law and Order Act of 

2010 takes several missteps toward solving the issues 

facing American Indians and Alaska Native people; it is 

insulting to tribal sovereignty as it does not address the 

jurisdictional distinctions based on the race or ethnicity of 

the accused, which have deprived victims of access to 

justice time and time again. The legislation is inherently 


103. Ibid., 70. 

104. Ibid., 62. 

105. Ibid., 12. 

106. Owens, 519. 

107. Ibid., 518. 

108. Another instance of the federal government pledging to provide more resources to tribes was in 2002, when the federal government pledged to 

provide more agents and resources to police Indian Country but ultimately diverted these resources to Homeland Security after 9/11. See: Owens, 

519. 

109. Owens, 518. 


87


flawed as it attempts to solve issues relating to the administering justice in and around Indian Country to 

jurisdictional maze by vesting more authority in federal combat the discrimination and cultural barriers previously 

and state governments and neglects promises of discussed in this paper. 114 

sovereignty codified in treaties such as the Treaty of Fort 

The federal government should also provide the funding 

Laramie. This is the wrong approach; according to Janet 

and resources necessary for tribal governments to develop 

Reno, former U.S. Attorney General, tribal justice systems 

and maintain tribal courts and legal systems that comply 

are the best institutions for maintaining order in tribal 

with international human rights standards. As it stands, 

communities because they are local institutions close to the 

most tribal governments do not have the resources to 

people they serve. 110 Therefore, the act should be amended 

conduct legislative and legal affairs due to the effects of 

to allow tribal governments to ?adopt concurrent 

centuries of colonialism and oppressive policies thereafter. 

jurisdiction over American Indian and Alaska Native 

Therefore, it is critical that the U.S. government helps 

perpetrators, remove custodial sentencing caps to allow 

revitalize tribal governments? via funding and the 

tribes to punish their members, and provide federal 

implementation of training programs in collaboration with 

funding for tribes to further develop and update their 

Indigenous organizations, to ensure the competency of 

judicial systems.? 111 These steps would recognize tribal 

court and prosecution officials. The steps above must be 

sovereignty and empower tribes to protect American 

taken for the United States to hold true to its legal 

Indian and Alaska Native women. The U.S. government 

obligation to protect the rights and wellbeing of American 

should fulfill its codified duties to Native nations by 

Indian and Alaskan Native peoples (a responsibility 

supporting their efforts to enhance their justice systems, 

recognized again in the Indian Tribal Justice Act of 

making life safer for those living in American Indian and 

1993). 115 

Alaska Native communities. 

The long, harrowing history of the relationships between 

The federal government should cooperate with Indigenous 

the U.S. government, Native Americans, and tribal 

legal experts to ensure that national judicial systems take 

sovereignty is characterized by extensive policy change 

the human rights of Indigenous people into account. 112 

over short periods. For instance, the U.S. government?s 

This includes, but is not limited to, the establishment of 

policy of tribal self-government was essentially abandoned 

clear policies and practices ?regarding the timely and 

before the 1950s. As discussed, the Supreme Court 

regular provision of information to victims of sexual 

divested tribes of their territorial sovereignty and 

violence.? 113 The U.S. government must also promote 

jurisdiction in the late 1900s, which frustrated federal 

proper representation of Indigenous individuals, 

policies favoring self-sufficiency, economic development, 

particularly women, in agencies responsible for 

and strong tribal government. 116 Only in 1993 did Justice 

110. Ibid., 519-521. 

111. Ibid., 522. 


113. Ibid., 88. 

114. Ibid., 91. 

115. Ibid., 90. 

116. John Fredericks, ?America's First Nations: The Origins, History and Future of American Indian Sovereignty,? Journal of Law and Policy 77, no. 

2 (1999): 403. 


88


Ginsburg make a statement supporting the limitation, if not 

abolition, of tribal jurisdiction over the conduct of 

non-members in the Supreme Court case Strate v. A-1 

Contractors. 117 118 There, the Court effectively reversed 

Chief Justice Marshall?s holdings in the Cherokee 

cases? that unless Congress explicitly limits the exercise 

of that sovereignty by treaty or statute, tribes maintain 

their sovereign authority over lands that are part of their 

reservation. 119 Tribal governments have not had the time or 

resources to achieve self-sufficiency, as a result of 

colonialism and the U.S. federal government?s inconsistent 

and contradictory policies related to tribal sovereignty and 

the tribes [would obtain] reservations of land as their 

remaining homeland, within which they reserved their 

historic sovereignty.? 121 Thus, any diminution of their 

territorial or jurisdictional sovereignty, whether by 

congressional act or judicial decision, is as good as another 

broken promise on the part of the United States and a 

violation of Native peoples? human rights, treaty rights, 

and historical right to exist as unique ?cultural, political 

and sovereign nations? within the United States. 122 

Therefore, the U.S. federal government should collaborate 

with tribal leaders to ensure culturally appropriate support 

services, criminal justice, community-based responses to 

jurisdiction. Therefore, to improve relations with violence against Native women, and tribal self-governance 

Indigenous nations, support Indigenous peoples? right to structures to secure de facto sovereignty and 

self-determination, and uphold existing treaties, Native 

tribes must be given adequate time and resources to 

improve and create institutions of self-governance to 

support their sovereignty. 

self-determination. The federal government must stop 

eroding tribal sovereignty and remove the barriers to 

justice created by jurisdictional complexities. 

Conclusion 

The U.S. government must not limit Native jurisdiction as 

The right of Native nations to self-determination and 

tribes cannot be sovereign or self-sufficient in that manner. 

sovereignty was diminished by the paternalistic nature of 

Though Native activists and authorities becoming active in 

their relations with the United States. The incompatibility 

asserting their political and legal rights has caused 

between Western and Indigenous conceptions of 

controversy, the U.S. government must not discontinue the 

sovereignty and self-government has led to the suppression 

new policy of promoting tribal sovereignty and 

of Native nations and the reduction of tribal criminal 

self-government. The U.S. government must remember 

jurisdiction in Indian Country. The depletion of Native 

that tribal sovereignty is a historical legal concept written 

sovereignty and tribal jurisdiction has produced a complex 

into the nation?s earliest treaties, many of which were used 

jurisdictional maze that has contributed profoundly to the 

to procure the vast expanse of U.S. territories over which 

epidemic of sexual violence Native women experience 

Native tribes had a prior claim. 120 The treaties stipulate 

today. This epidemic demonstrates how the federal 

that ?in return for giving up their title to the lands ceded, 

government is failing to fulfill its codified obligations to 

117. The Court decided that a tribal court does not have jurisdiction over a civil action brought against a non-Native negligent driver and their 

employer when the accident occurs on state highways that cross Indian trust land within reservations. See: Strate v. A-1 Contractors, 520 U.S. Pp. 

445-460 (1997). 

118. Fredericks, 395. 

119. Ibid., 403. 

120. Fredericks, 406. 

121. Ibid., 368. 

122. Ibid., 407. 


89

protect Native people. 


In many ways, the complex system of jurisdiction that 

perpetuates the oppression of Native people is a 

continuation of the United States? colonial relationship 

with Indigenous nations. The consequences of colonialism 

and the U.S. government?s erratic policy regarding tribal 

jurisdiction have eroded tribal governmental authority and 

hindered the development of effective mechanisms of 

tribal self-governance and law enforcement. Therefore, the 

federal government must work alongside tribal authorities 

to clarify the constitutional status of tribal nations, create 

laws that prevent the diminution of Native territorial 

sovereignty, amend legislation to untangle the complex 

and unjust web of jurisdictions, and provide the funds and 

resources necessary to foster strong tribal governments and 

legal systems. These steps are imperative to end the United 

States? colonial relationship with Indigenous nations and 

the epidemic of sexual violence against Native women. 

Tribal sovereignty is recognized and protected by the U.S. 

Constitution, legal precedent, treaties, and applicable 

human rights principles. Therefore, Indigenous people 

have the right to tell their stories, practice their traditions, 

and live with self-determination and sovereignty without 

the U.S. government?s illegal interference. 


90

PROSCRIBABLE THOUGHTS: U.S. 

HATE CRIME STATUTES AND THE 

FIRST AMENDMENT OBJECTION 

Chris Morillo 

ABSTRACT 

This paper attempts to wrestle with a central legal and philosophical objection to U.S. hate crime statutes? the objection 

concerning the First Amendment. After providing an overview of hate crime statutes and the relevance of the First 

Amendment, this paper identifies and analyzes three approaches that respond to this objection. In essence, opponents of 

hate crime statutes are probably correct that these statutes regulate expression, so it would be wise for proponents of these 

statutes to justify such expression as constitutionally proscribable. This paper employs a conversation between several 

notable Supreme Court decisions, especially R.A.V. v. St. Paul, Wisconsin v. Mitchell, Virginia v. Black, and Chaplinsky v. 

New Hampshire, and also incorporates the work of legal theorists and policymakers. 


91

Proscribable Thoughts: U.S. Hate Crime Statutes and the First Amendment Objection 

Since Congress passed the Hate Crimes Statistics Act in 

1990, the Department of Justice has been required to track 

and publish annually the number of crimes motivated by 

bias against a victim?s race, ethnicity, ancestry, religion, 

sexual orientation, disability, gender, and/or gender 

identity. 1 In 2019, the federal government reported the 

most hate crimes in over a decade, as well as the most 

statutes. Rather, the primary concern of this paper is the 

handling of a central philosophical and legal objection 

against such statutes, the objection from the First 

Amendment. The bulk of this paper will therefore be the 

identification and analysis of three possible approaches for 

handling this objection. 

Legal Background 

hate-motivated killings since 1990. 2 Such statistics reflect 

what the New York Times has recognized as an ?upward 

trend in bias-motivated crimes during the Trump era.? 3 

This category of crimes is thus more relevant today than 

ever, but the category itself? the designation of certain 

crimes as motivated by hate? remains controversial 

among judges, academics, and the general public alike. 

To establish some background on the matter, ?hate crimes? 

broadly refer to crimes motivated by a perpetrator?s 

prejudice against a victim on the basis of the victim?s 

membership in a specific group or perceived membership 

in such a group. Some argue that ?hate crime? is an 

improper title, and a moralizing one, and many writers 

instead prefer to refer to ?bias crimes.? 5 This paper will 

The primary objection to such a designation is that it 

still use the designation ?hate crime,? however, as it is both 

constitutes an impermissible violation of an individual?s 

the more common phrase and, I believe, a more accurate 

First Amendment rights. Civil rights lawyer Frederick M. 

one. Indeed, Jack Levin and Jack McDevitt?s expansive 

Lawrence has referred to this tension as the hate crimes/ 

typology of hate crime motivations seems to reflect not 

hate speech paradox, asking, ?How is it possible both to 

just the biased selection of a victim, but a commonality 

punish the bias criminal and to protect the right of the 

that would be more aptly described as ?hate.? Levin and 

bigot to express his beliefs?? 4 While many, such as 

McDevitt identify four such motivations: resentment 

Lawrence himself, have concluded that this paradox is a 

toward a specific group, thrill-seeking, a perceived 

false one, this paper will instead assume the paradox?s 

personal threat, or a mission to eliminate an entire group. 6 

truth in order to reimagine a defense of hate crime statutes 

from such a starting point. Even if we believe hate crime 

statutes involve content-based limitations on speech, such 

Also of note, ?hate crime? is a rather recent designation, 

but the law on the matter is over half a century old. Title I 

limitations should be considered to be of the 

of the Civil Rights Act of 1968 is the earliest version of a 

constitutionally proscribable variety. 

federal hate crime statute? the law prohibits interference 

in a person?s enjoyment of federally protected rights, such 

This paper will not consider questions of efficacy, nor will 

as voting or attending school, on the basis of their race, 

this paper seek to delineate which biases? that is, biases 

color, religion, or national origin. 7 The federal government 

against which groups? should be subject to hate crime 

1. Barbara Perry, In the Name of Hate: Understanding Hate Crimes (New York, NY: Routledge, 2001), 11. 

2. Tim Arango, ?Hate Crimes in U.S. Rose to Highest Level in More Than a Decade in 2019,? New York Times, November, 16, 2020. 

3. Ibid. 

4. Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law (Cambridge, MA: Harvard University Press, 2002), 80. 

5. Beverly A. McPhail, ?Hating Hate: Policy Implications of Hate Crime Legislation,? Social Service Review 74, no. 4 (December 2000): 637-638, 

https://doi.org/10.1086/516428. 

6. Jack Levin and Jack McDevitt, Hate Crimes Revisited: America's War On Those Who Are Different (Cambridge, MA: Westview Press, 2002), 49, 

67, 77, 91. 

7. Thomas Streissguth, Hate Crimes (New York, NY: Facts On File, 2009), 44. 


92


has used Title I to prosecute bias-motivated ?interference,? of St. Paul considered cross-burning punishable via a 

including cases of intimidation as well as assault and penalty enhancement on the standard vandalism statute 

murder. Since then, hate crime statutes have expanded rather than a discrete offense? In other words, as this paper 

across all levels of government. As much as it is possible is concerned, penalty enhancement statutes are not 

to categorize a vast collection of laws, there are two broad immune to the freedom of speech objection. 

categories of hate crime statutes. 

The Free Speech Objection 

First, and most commonly, there are penalty enhancement 

On June 21, 1990, Russ Jones and his family awoke to the 

statutes for existing criminal conduct in cases in which the 

burning of a cross in their front yard. 12 The Jones family 

defendant is motivated ?because? or ?by reason of? the 

had recently moved into a home in the mostly white East 

victim?s identity. 8 If such motivation can be established 

Side of St. Paul, Minnesota, and the fiery cross delivered a 

during trial, these statutes allow for harsher prison 

clear message that, as a black family, they did not belong. 

sentences or steeper fines upon conviction. Penalty 

Police eventually arrested Robert A. Viktora, a juvenile at 

enhancement statutes for hate-motivated crimes have 

the time, for the crime. He was prosecuted not under arson 

generally passed constitutional muster: in 1993, the 

or vandalism statutes, but under a specific St. Paul 

Supreme Court unanimously upheld such statutes in 

ordinance against any ?symbol, object, appellation, 

Wisconsin v. Mitchell. 9 

characterization or graffiti, including but not limited to, a 

Second, there are ?substantive? hate crime statutes, those burning cross or Nazi swastika, which one knows or has 

that establish a discrete, separate offense motivated by reasonable grounds to know arouses anger, alarm or 

prejudice, most often labeled as intimidation. 10 These laws, resentment in others on the basis of race, color, creed, 

unlike penalty enhancement statutes, have proven more religion or gender.? 13 Viktora appealed his conviction, 

constitutionally contentious in that they seek to punish eventually petitioning the U.S. Supreme Court, arguing 

something beyond already criminalized conduct. In many that the ordinance violated his First Amendment rights. 

cases, they overtly prohibit some type of expression, such 

The Supreme Court heard the case in 1992 and, in a 

as the burning of a cross. In R.A.V. v. St. Paul (1992), the 

unanimous decision, struck down the ordinance. Five 

Supreme Court ruled that such an ordinance punished 

justices? the conservative majority? determined the 

certain expression on the basis of content and was thus 

majority opinion on the basis that the ordinance violated 

unconstitutional. 11 

the First Amendment. The other four justices concurred in 

However, this paper will not dwell on the distinctions striking down the ordinance but only on the basis of its 

between these subcategories of hate crime statutes, as I overbreadth. Writing for the majority, Justice Antonin 

believe the question of impermissibly regulating speech is Scalia declared the ordinance facially unconstitutional in 

essentially constant, despite what the divergent Supreme that it selectively punished speech on the basis of content 

Court rulings would suggest. What if, for instance, the city and viewpoint. 14 

8. Lawrence, 35. 

9. Wisconsin v. Mitchell, 508 U.S. 476 (1993). 

10. James B. Jacobs and Kimberly A. Potter, ?Hate Crimes: A Critical Perspective,? Crime and Justice 22 (1997): 5/ 

11. R.A.V. v. St. Paul, 505 U.S. 377 (1992). 

12. Streissguth, 27. 

13. R.A.V., 505 U.S. 380. 

14. Ibid., 505 U.S. 391. 


93


At first glance, one might wonder how the case involved 

speech at all. However, the Supreme Court has regularly 

affirmed that the First Amendment applies to more than 

pure speech and can protect non-speech acts on the basis of 

discrimination. 18 Accordingly, despite more recent rulings, 

R.A.V. remains decisive precedent on hate crime statutes, 

and the objection to hate crime statutes from the First 

Amendment is still relevant. 

their expressive nature. In Texas v. Johnson (1989), in 

There are three approaches to handling this objection that 

which the Court overturned the conviction of an individual 

will constitute the rest of this paper. First, there is the 

for burning a U.S. flag in protest, the Court established that 

approach that suggests hate crime statutes regulate conduct 

the First Amendment is implicated to the fullest extent 

and not speech. However, this approach is flawed, and the 

whenever the government seeks to ?proscribe particular 

Court is correct to implicate the First Amendment when 

conduct because it has expressive elements.? 14 On such 

considering the constitutionality of cross-burning 

grounds, the majority in R.A.V. v. St. Paul implicated the 

ordinances and hate crime statutes in general. Second, for a 

First Amendment and found the ordinance violative: 

more satisfying response, we will turn to the approach that 

?burning a cross in someone?s front yard is reprehensible. 

admits regulation of speech but suggests that such 

But St. Paul has sufficient means at its disposal to prevent 

regulation falls within existing limitations on the First 

such behavior without adding the First Amendment to the 

Amendment, namely the ?fighting words? and ?true threat? 

fire.? 16 As the majority in R.A.V. astutely pointed out, if it 

doctrines. Finally, this paper will conclude with a more 

was not for a concern with the conduct?s expressive nature, 

radical approach? if hate crime statutes fall outside of 

the city would have found sufficient recourse amongst the 

these established limitations, then this calls for a novel 

statutes against vandalism, arson, and trespassing. 

limitation on the First Amendment, a limitation that must 

The Supreme Court revisited the topic in 2003, in 

reference to a cross-burning statute in Virginia v. Black. 

?The burning of a cross is symbolic expression,? the Court 

acknowledged, and ?the reason why the Klan burns a cross 

at its rallies, or individuals place a burning cross on 

someone else?s lawn, is that the burning cross represents 

the message that the speaker wishes to communicate.? 17 

With this framing in mind, while the Court in Black upheld 

some components of the cross-burning statute, the Court 

rejected the notion that cross-burning amounted to prima 

facie evidence of intent to intimidate. Further, the Court 

refused to overturn R.A.V., recalling that the St. Paul 

ordinance in R.A.V. only prohibited cross-burning ?on the 

basis of [the victim?s] race, color, creed, religion or 

indeed pass strict scrutiny. As these latter approaches will 

suggest, though hate crime statutes may regulate some 

form of expression, such statutes meet the burden 

mandated by the invocation of the First Amendment. 

First Approach: Conduct, not Speech 

One approach is to defend hate crime statutes as a 

limitation on conduct rather than speech. Such a distinction 

is most clear in Wisconsin v. Mitchell, in which the 

Supreme Court unanimously upheld a Wisconsin statute 

that increased penalties for any criminal who ?intentionally 

selects the person against whom the crime is committed 

. . . because of the race, religion, color, disability, sexual 

orientation, national origin or ancestry of that person.? 19 

gender,? and thus amounted to content-based 

The Court found that the statute in question in Mitchell, 

14. Ibid., 505 U.S. 391. 

15. Texas v. Johnson, 491 U.S. 406 (1989). 

16. R.A.V., 505 U.S. 396. 

17. Virginia v. Black, 538 U.S. 360 (2003). 

18. Ibid., 538 U.S. 361. 

19. Wisconsin v. Mitchell, 508 U.S. 480. 


94


unlike the ordinance in R.A.V., regulated criminal conduct question is related to the expressive nature of the conduct 

and not protected speech or expression. Criminal courts in question. As the brief submitted on behalf of Mitchell, 

regularly consider a defendant?s motivation to determine the defendant facing penalty enhancement, correctly 

sentencing, and Mitchell affirmed such consideration as a pointed out, the analogous law in O?Brien would instead 

constitutional mechanism by which the government may be one that increased punishment for those that burned 

punish conduct. 

draft cards for specific, disfavored reasons, such as 

anti-war beliefs. 

The groundwork for this approach stems from United 

21 In Mitchell, the Court justified penalty 

enhancements by claiming to appeal to the ramifications of 

States v. O?Brien (1968), in which the Court wrestled with 

criminal behavior, a state interest supposedly unrelated to 

David O?Brien?s conviction for burning his draft card. The 

the suppression of specific expression. In actuality, the 

Court ultimately affirmed his conviction, ruling that ?when 

Court spoke to the ramifications of the expressive qualities 

?speech? and ?nonspeech? elements are combined in the 

of hate-motivated criminal behavior, and thus directly 

same course of conduct, a sufficiently important 

invoked a state interest related to the suppression of 

governmental interest in regulating the nonspeech element 

particularly harmful expression. It is telling, for instance, 

may justify incidental limitations on First Amendment 

freedoms.? 20 that speech is used as evidence to establish motivations of 

However, there are a few problems with this 

hate in the courtroom. The Supreme Court of Wisconsin 

approach as applied to hate crime statutes. 

recognized as much in State v. Mitchell (1992), writing, 

First, we should note that this approach is entirely unable 

?The use of the defendant?s speech, both current and past, 

to make sense of discrete hate crime statutes, such as the 

as circumstantial evidence to prove the intentional 

ordinance in question in R.A.V., which is why the Court 

selection makes it apparent that the statute sweeps 

was able to use this approach to affirm penalty 

protected speech within its ambit and will chill free 

enhancements in Mitchell but was unable to uphold the St. 

speech.? 22 Therefore, the O?Brien test seems insufficient to 

Paul ordinance just a year earlier. Still, there are reasons 

license hate crime statutes, even those that are mere 

why this approach fails to make sense of even penalty 

penalty enhancements. 

enhancement statutes. 

Thus, this first approach is not necessarily helpful in 

The distinction between the regulation of conduct and 

proving the constitutionality of either subcategory of hate 

expression in regard to hate crime statutes is blurry if not 

crime statutes. While this first approach relies on the hope 

entirely ontologically suspect? the very act of a hate crime 

that the distinction between speech and conduct is 

seems to inherently express a certain belief, and it is that 

concrete, it often is not. Many scholars have noted that 

expression that makes hate crimes especially concerning. 

there seems to be ?only a semantic distinction between 

Because of this fact, the O?Brien precedent does not seem 

what is constitutionally impermissible under R.A.V. and 

to validate hate crime statutes at all. O?Brien affirmed a 

what is constitutionally permissible under Mitchell.? 23 

law that punished the destruction of draft cards on the 

Rather than sidestep the freedom of speech objection it 

basis of a state interest entirely unrelated to the 

would be wise for proponents of hate crime statutes to 

suppression of speech. However, hate crime statutes are 

charitably engage with this objection in order to truly 

not analogous to such a law, as the state interest in 

defeat it. 

20. United States v. O?Brien, 391 U.S. 376 (1968). 

21. Brief of Petitioner, Wisconsin v. Mitchell, 1993 U.S. S. Ct. Briefs LEXIS 168. 

22. State v. Mitchell, 169 Wis. 2d 173 (1992). 

23. Jacobs and Potter, 12. 


95

Second Approach: Established Limitations 


acknowledged by the Court. 

In 1940, Walter Chaplinsky was convicted under a New 

Hampshire statute for calling a city marshal a ?damned 

racketeer? and a ?damned Fascist.? 24 In Chaplinsky v. New 

Hampshire (1942), the Supreme Court affirmed his 

conviction, acknowledging that ?fighting words?? ?those 

which by their very utterance inflict injury or tend to incite 

an immediate breach of the peace?? are an exception to 

the protections of the First Amendment. 25 In other cases, 

the Court has acknowledged different exceptions, as in 

Watts v. United States (1969), where the Court affirmed the 

ability of states to prohibit ?true threats.? 26 Though Watts 

clarified that ?political hyperbole? does not amount to such 

a threat, it has been interpreted to apply to ?statements 

where the speaker means to communicate a serious 

expression of an intent to commit an act of unlawful 

violence to a particular individual or group of 

individuals.? 27 Under accepted doctrine, even if the 

speaker does not intend to carry out the threat, a serious 

threat alone is intimidating and disruptive enough to justify 

the prohibition of such speech. 

The invocation of the First Amendment thus does not 

provide an individual with entirely unlimited expression. 

In Chaplinsky, the Court affirmed as much: ?It is well 

understood that the right of free speech is not absolute at 

all times and under all circumstances. There are certain 

well-defined and narrowly limited classes of speech, the 

prevention and punishment of which have never been 

thought to raise any Constitutional problem.? 28 A second 

approach to hate crime statutes, then, would work within 

these limitations on the First Amendment that have been 

The expression prohibited by hate crime statutes might 

well be considered ?fighting words? or ?true threats,? and 

thus should be considered proscribable. There is even 

some precedent for this approach. In Virginia v. Black, the 

Supreme Court specifically applied the ?true threat? 

doctrine to cross-burning, arguing, ?The First Amendment 

permits Virginia to outlaw cross-burnings done with the 

intent to intimidate because burning a cross is a 

particularly virulent form of intimidation.? 29 Even in his 

dissent, Justice Clarence Thomas acknowledged, ?In our 

culture, cross burning has almost invariably meant 

lawlessness and understandably instills in its victims 

well-grounded fear of physical violence.? 30 As established 

in Watts, the government has a compelling interest in 

minimizing threats that engender fear in people and in 

communities. Even if such threats are technically 

expressive, their proscription passes the scrutiny mandated 

by the First Amendment. It is also not a stretch of the 

imagination to consider such expression ?fighting words? 

and thus proscribable for that reason as well. In Justice 

John Paul Stevens?s concurring opinion in R.A.V., he 

contends that the St. Paul ordinance ?bars only low-value 

speech, namely, fighting words,? deeming the ordinance a 

legitimate content-based regulation of speech. 31 However, 

even this approach has its own drawbacks that ought to be 

addressed. First, there is the objection provided by Justice 

Scalia in his opinion in R.A.V., in which he explained that 

even categories of speech such as ?fighting words? or ?true 

threats? are categories not ?entirely invisible to the 

Constitution? and thus cannot be proscribed on the basis of 

24. Chaplinsky v. New Hampshire, 315 U.S. 569 (1942). 

25. Ibid., 315 U.S. 572. 

26. Watts v. United States, 394 U.S. 705 (1969). 

27. Black, 538 U.S. 359. 

28. Chaplinsky, 315 U.S. 571. 

29. Black, 538 U.S. 363. 

30. Ibid., 538 U.S. 391 (Thomas, J., dissenting). 

31. R.A.V., 505 U.S. 432 (Scalia, J., dissenting). 


96


content. 32 More precisely, Scalia argued that the the Supreme Court has not upheld a government action on 

government cannot prohibit some ?fighting words? but not the basis of the ?fighting words? doctrine since 

others on the basis of the content of such words. To Chaplinsky. 37 Even the ?true threats? doctrine is only 

illustrate this objection, Scalia provides a helpful example: helpful precedent for certain hate crime statutes, such as 

?the government may proscribe libel; but it may not make the cross-burning statute in question in Black. Therefore, 

the further content discrimination of proscribing only libel another approach is needed to fully defend hate crime 

critical of the government.? 33 

statutes from a First Amendment objection. 

However, Scalia?s argument is tenuous. Content-based 

regulation of speech is not ?presumptively invalid? as he 

would suggest. 34 For one, as Justice Stevens points out in 

his concurrence, the distinction between proscribable 

speech and non-proscribable speech? fighting words and 

non-fighting words, for instance? seems content-based 

itself. 35 Further, there seems to be some variability to the 

proscribable nature of certain types of speech on the basis 

of their content, and Scalia admits as much. He 

acknowledges in R.A.V. that threats against the president, 

for instance, are especially threatening and therefore are 

especially proscribable. 36 Scalia makes no attempt, 

however, to explain why this exception does not apply to 

the ordinance in question, even though it seems to apply 

rather directly? symbols and expressions of hate on the 

basis of identity are more egregious ?fighting words? and 

?true threats? than other ?fighting words? and ?true 

threats? we can imagine. 

Even though this approach should withstand Scalia?s 

objections, it is still not fully satisfactory on its own. 

Indeed, ?fighting words? and ?true threats? are rather strict 

categories as delineated in legal precedent. Courts have 

generally been reluctant to consider hate speech as falling 

under the ?fighting words? doctrine, for instance. In fact, 

Third Approach: A New Unprotected Category of 

Speech 

A final approach would be to carve out a new category of 

proscribable speech related specifically to the 

hate-motivated expression in question, thus considering 

such expression proscribable even if it falls outside of the 

aforementioned established categories. Crudely, we might 

refer to this new category as ?hate speech,? but more 

precisely I mean to refer to expression that is integral to 

hate crimes. Regardless, it is indeed a content-based 

limitation and is thus subject to strict scrutiny. 38 Therefore, 

the rest of this paper will be devoted to meeting the burden 

of strict scrutiny, specifically by articulating a compelling 

government interest in mitigating the unique harms of the 

expression that distinguishes hate crimes from other 

criminal conduct. 

First, there are unique harms to victims of hate crimes that 

should make associated expression especially concerning. 

Statistically, such crimes tend to be more vicious. One 

study in Boston found that, compared to parallel crimes, 

hate-motivated crimes were more likely to involve assault 

as well as serious injury to the victim; ?30 percent of hate 

crime victims required treatment at a hospital because of 

the severity of their injuries as compared with only 7 

32. Ibid., 505 U.S. 383 (Scalia, J., dissenting). 





37. U.S. Library of Congress, Congressional Research Service, The First Amendment: Categories of Speech, by Victoria L. Killion, IF11072 (2019). 

38. Eugene Volokh, ?Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny,? University of Pennsylvania Law Review 144, no. 

6 (1997): 2417 


97


percent of victims of assaults of all kinds.? 39 Ontario Tech crimes effectively perpetuate marginalization against entire 

Professor of Criminal Justice Barbara Perry has theorized communities, allowing the majority to reinforce ?their 

that such extreme violence? that which goes ?beyond that position of social and political superiority? by sending a 

necessary to subdue the victim?? is a result of the unique message to those who step outside the bounds of 

motivations of these crimes: ?fear, hatred, mistrust, or permissible behavior. 44 A hate crime is, in effect, both a 

resentment.? 40 Beyond physical violence, a victim of hate ?disciplinary mechanism? as well as a defensive one. 45 

crimes also faces a unique degree of emotional and Barbara Perry explicitly makes this contention in regard to 

psychological harm due to having been targeted for their women and sexual minorities, arguing that ?violence 

identity. Hate crimes are a threat against some immutable against women and homosexuals allows perpetrators to 

aspect of the victim?s identity, leading to a ?heightened reaffirm their own aggressive heterosexuality in opposition 

sense of vulnerability? among victims in the aftermath. 41 to these nonconformist threats.? 46 This argument is more 

Frederick M. Lawrence has elaborated on this matter, comprehensive, however, and Perry continues: 

stating, ?It is one thing to avoid the park at night because it 

[A hate crime is] a mechanism of power and 

is not safe. It is quite another to avoid certain 

oppression, intended to reaffirm the precarious 

neighborhoods because of one?s race.? 42 These 

hierarchies that characterize a given social order. It 

psychological and emotional harms are far-reaching and 

attempts to re-create simultaneously the threatened 

apply even to hate-motivated criminal intimidation, such 

(real or imagined) hegemony of the perpetrator?s group 

as cross-burning. 

and the ?appropriate? subordinate identity of the 

Second, beyond the harms faced by the immediate victims, victim?s group. It is a means of marking both the Self 

hate crimes are differentiated from parallel crimes in that and the Other in such a way as to reestablish their 

they have unique impacts on the broader community. In ?proper? relative positions. 47 

the aftermath of a hate crime, much of the fear is translated 

The government has a compelling interest in mitigating 

to all those who share the relevant identity with the victim 

such oppression, in addition to preventing physical and 

due to the identity-based nature of the crime. 43 The 

psychological harm or the breakdown of social harmony. It 

burning cross in question in R.A.V. was not merely a threat 

should thus be able to proscribe a category of speech that 

against the Jones family, for instance, but against any black 

has been shown to lead to such impacts. has been shown to 

family attempting to move into St. Paul?s white 

lead to such impacts. 48 

neighborhoods. In this way, the expressive qualities of hate 

39. McPhail, 648. 

40. Perry, 29. 

41. Lawrence, 40. 

42. Ibid. 

43. Ibid., 42. 

44. Perry, 5. 

45. Ibid., 113. 

46. Ibid., 5. 

47. Ibid., 10. 

48. It is worth acknowledging that the Supreme Court in Mitchell considered some of the adverse ramifications of hate crimes that I discuss in this 

third approach. However, the court considered these to be ramifications of conduct rather than of speech or expression. This is inaccurate and 

imprecise, and avoids the necessary invocation of strict scrutiny. Still, I believe the severity of these ramifications mean that hate crime statutes 

should pass strict scrutiny. 


98


This approach is admittedly controversial. Law Professor 

Susan Gellman has responded to it quite thoroughly in her 

Importantly, too, victims and communities would remain 

without proper restitution. 

article, ?Brother, You Can?t Go to Jail for What You?re 

Gellman is only somewhat more compelling in arguing 

Thinking.? Gellman contends that there is no compelling 

that this approach is a slippery slope to essentially carving 

government interest to justify hate crime statutes, as the 

out all hate speech as unprotected by the First Amendment. 

?extra harm? is merely ?the impact of the offender?s 

She writes: 

beliefs and the offensiveness of their communication.? 49 

However, Gellman flagrantly misdescribes the relevant 

If the state?s interest in protecting citizens from the 

harm. The harm rendered is not the ?offensiveness? of the 

offensiveness and sense of fear created by 

expression but rather the tangible impact to individuals and 

entire communities. In affirming the ?true threats? 

doctrine, the Supreme Court has recognized that 

individuals ought to be protected ?from the fear of 

violence and from the disruption that fear engenders,? as 

well as ?from the possibility that the threatened violence 

will occur.? 50 Just as it is not merely the ?offensiveness? of 

?true threats? that warrants their proscription, it is not 

merely the ?offensiveness? of the beliefs motivating hate 

crimes that should justify hate crime statutes. 

Gellman also questions whether the other components of 

strict scrutiny can be satisfied with this approach. 

Specifically, she contends that hate crime statutes are not 

narrowly tailored because there are content-neutral 

alternatives that could account for the government?s 

interest: the standard statutes that criminalize assault, 

vandalism, trespassing, etc. 51 However, this argument 

essentially requires that we deny any meaningful 

difference between hate crimes and their parallel crimes. In 

a hate-motivated assault, the government?s interest is not 

merely in the assault itself but in the unique impacts that 

affect the community and the victim, which we have 

identified. In other words, if the government prosecuted a 

cross-burner simply under a vandalism statute, the 

compelling government interest would remain unfulfilled. 

bias-motivated crimes could justify punishment of 

motives, there would seem to be no reason it could not 

also be used to justify punishment of books, speeches, 

and demonstrations that create the same or worse 

effects. 52 

However, first, there is no reason to be concerned with 

such a slippery slope, as the relevant effects of hate crimes 

are tied to the expressive qualities of specific criminal 

conduct, such as intimidation or assault. The standard for 

?the same or worse effects,? as established in this 

approach, is rather high, and it is not clear that books, 

speeches, or demonstrations could have the same or worse 

effects as a hate-motivated assault, murder, or vandalism. 

It is the combination of prejudiced motivations and 

violence (or the threat of violence) that leads to the effects 

we have discussed. Second, if it is the case that these 

books, speeches, and demonstrations truly lead to the same 

or worse effects as hate crimes, then their proscription is 

similarly a compelling government interest. Taking 

Gellman?s point most charitably here, she has simply 

demanded that proponents of hate crime statutes do exactly 

what this paper has sought to do in its entirety? concede a 

limitation on the First Amendment and meet the required 

strict scrutiny standard. Rather than run from such a 

demand, proponents of hate crime statutes would be wise 

49. Susan Gellman, ??Brother, You Can't Go to Jail for What You're Thinking?: Motives, Effects, and ?Hate Crime?Laws,? Criminal Justice Ethics 

11, no. 2 (1992): 26. 

50. Black, 538 U.S. 360. 

51. Gellman, 27. 

52. Ibid., 26. 


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optimal starting point for resolving the First Amendment impact on victims of hate crimes and their communities, 

objection. 

who are made to feel unwelcome and vulnerable, 

sentenced to silence. In this roundabout way, hate crime 

Conclusion 

statutes might enable individuals to be better able to 

This paper has provided an overview of hate crime statutes 

exercise the freedoms they are guaranteed, including those 

and a summary of the main objection to such statutes? an 

enshrined in the First Amendment. 

objection from the First Amendment? before identifying 

three potential approaches that respond to this objection. 

The first approach, despite being quite popular, is unsound. 

The second approach, which relies on established 

limitations on the First Amendment, is more helpful, but is 

still imprecise when applied for our purposes. Finally, 

while the third approach is certainly the most radical, it is 

most able to charitably handle the objection in question. In 

summary, even if the prosecution of hate crimes includes a 

limitation on speech, it should be considered proscribable 

speech, unprotected by the Constitution, thus affirming 

hate crime statutes as constitutional. 

There is undoubtedly more discussion to be had at the 

intersection of the First Amendment and hate crime 

statutes. The freedoms of speech, thought, and expression 

are indeed instrumental to a functioning democratic 

society. As Oliver Wendell Holmes recognized, ?if there is 

any principle of the Constitution that more imperatively 

calls for attachment than any other it is the principle of free 

thought? not free thought for those who agree with us but 

freedom for the thought that we hate.? 53 It is an 

understatement, then, that we ought to be cautious in 

affirming restrictions on such freedom. 

Still, the Constitution accepts restrictions on most rights, 

demanding that we take into account the effects of the 

rights that we exercise. It is a rather utilitarian approach, 

but if we care about freedom of speech as a proxy for 

diversity of ideas and perspectives in our communities, 

perhaps we ought to favor some limitations on freedom of 

speech after all, in the form of hate crime statutes. If there 

is a chilling effect on speech with which we ought to be 

concerned, it is not from these statutes. If anything, it is the 

53. United States v. Schwimmer, 279 U.S. 655 (1929) (Holmes, J., dissenting). 


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Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

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