Volume VII Issue II

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Contents
A CHECK ON PRESIDENTIAL POWER AND A FLAWED RULING
Nathan Brickman, University of Michigan 1
JUDGMENT WITHOUT JUSTICE: THE EVOLUTION OF CIVILIAN TRIALS UNDER MILITARY COMMISSIONS
John Moreland, University of Illinois Urbana-Champaign 17
INSTITUTIONALIZED SILENCE: THE PROBLEM OF CHILD VOICELESSNESS IN DIVORCE PROCEEDINGS

Brandon Sadowsky, The Ohio State University 52
ARRESTED FOR EXPERIENCING HOMELESSNESS: THE CRIMINALIZATION OF HOMELESSNESS IN THE UNITED STATES AND THE REVOLUTION OF THE RHODE ISLAND HOMELESS BILL OF RIGHTS
Cristina Semi, Hamline University 74
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Information about the Washington
Undergraduate Law Review

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Masthead
Negheen Kamkar
Editor-in-Chief
Executive Editors
Hanna Giuntini Henry Seeley Austin Wolfe
Alex Askerov Lauren Cambronero Nicky Choi David Cooperstein Michael Gant Adam Griffis Emily Grimmius Christine Hanzawa Lana Jacobus Shweta Jayawardhan Estella Jung Adam Khan Adam Kinkley
Editors
Brandon Klett Bradly Knox Ashley Kuhn Ben Lennon Paula Luu Annica Mattus Alexander Ong Jessica Randolph Joseph Rebagliati Ann Schlossman Matthew Stone Roy Taylor Lindsey Townsend
Volume VII
Winter 2014
Issue II
ARTICLES
A Check on Presidential Power and a Flawed Ruling

By Nathan Brickman*
This paper will examine presidential power in the context of President Harry Trumans steel mill seizure in 1952. The purpose is to show the key factors surrounding this incident and explore the various reasons for the Supreme Courts decision to rule the seizure unconstitutional. This case is a critical lesson in understanding the importance of presidential authority, and this article disagrees with the Courts ruling and will explain what went wrong during the Presidents defense. Additionally, this paper will analyze and redevelop Justice Jacksons three-tiered system explaining presidential power in his concurring opinion to create a more concise guideline.
*Nathan Brickman is a native of suburban Detroit and is currently a junior at the University of Michigan. He is a political science major and hopes to attend law school after he obtains his undergraduate degree. In pursuit of a more globalized education, he plans on traveling to the Czech Republic in the spring of 2014. The inspiration for this paper came after taking a political science course about the American Chief Executive.
WULR Vol VII, Issue II Winter 2014
INTRODUCTION I: YOUNGSTOWN EXPLAINED Ia. The Majority Opinion Ib. Jacksons Three-Tier Framework II: WHY DID YOUNGSTOWN GET IT WRONG? IIa. Inherent Authority IIb. The Justice Department IIc. Relevant Statutes III: YOUNGSTOWN REVISITED IIIa. Supreme Court Ruling IIIb. Justice Jacksons Three Levels of Presidential Authority IV: CONCLUSION
Table of Contents
2 4 4 4 5 5 7 9 12 12 14 15
INTRODUCTION
On April 8th, 1952, President Harry Truman issued Executive Order 10340: Directing the Secretary of Commerce, Charles Sawyer, to Take Possession of and Operate the Plants and Facilities of Certain Steel Companies.1 Truman issued this order to avert a nationwide strike of steel workers that he felt would threaten the United States steel supply. At the time, the nation was engaged in an ongoing conflict in Korea, and Truman believed that a stoppage in steel production would jeopardize the war effort as well as the United States economic health. The countrys response to the action was one of shock and the Order triggered a national debate over the scope of presidential war powers. Presidents had seized plants before, but never based solely on the inherent executive powers granted under Article II of the Constitution.2 While the Constitution may not expressly give the President additional war powers during a national emergency, many scholars believe that the Framers implied these powers due to
MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF PRESIDENTIAL POWER (Columbia UP 1977) at 83. 2 Id. at xxi.
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the structure of the Executive Branch.3 Previously in 1950, President Truman declared a national emergency. Later, he used the state of national emergency to assert broad inherent authority under Article II to justify his seizure of the steel mills and trigger a number of statutory provisions giving him additional powers to face the crisis in Korea.4 The steel companies sued Secretary of Commerce Charles Sawyer, pleading for injunctive relief and declaratory judgment.5 In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court roundly rejected Trumans broad claim of executive power. Eight justices held that Trumans decision to seize the mills was unconstitutional on the basis that he was exercising legislative power and thus lacked authority to seize the mills. Writing for the majority, Justice Black rejected the administrations claim that the steel stoppage constituted a national emergency. Rather, he asserted that the situation was a labor dispute and Congress had provided ample guidelines to the President to address the strike without seizure. However, Chief Justice Vinson, the lone dissenter, argued that not only have presidents historically responded to emergencies without legislative action, but that the steel mill seizure actually advanced legislative precedents already enacted by Congress. This paper disagrees with the majority conclusion and agrees with Justice Vinson. While President Truman did not have the authority to seize the steel mills based solely on his inherent authority, he did have authority under the Take Care Clause based on various statutes and precedents. This paper will also examine and apply Justice Jacksons three levels of presidential power and conclude that the three-tier framework must be redeveloped into a two-pronged guideline through eliminating the second tier. The steel mill seizure was an appropriate action by Trumanbut the action was justified
3
Emergency Powers, http://www.law.cornell.edu/wex/emergency_power (last visited Nov. 11, 2013). 4 Supra note 1, at 3. 5 Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZS.html (last visited Nov. 4, 2013).
based upon statutes and precedent rather than inherent executive authority.
PART 1: YOUNGSTOWN EXPLAINED 1a. The Majority Opinion

Justice Black delivered the majority opinion of the Supreme Court, affirming that the seizure was unconstitutional. At the core of the majoritys logic was their assertion that there was no statute that expressly authorized the President to take possession of property to resolve a labor dispute.6 Justice Black believed that the seizure technique to solve labor disputes was not only unauthorized by Congress, but that Congress opposed seizure as a method to settle labor disputes. Lastly, Black found that the Executive Order fell squarely under legislative power, stating: The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice.7 Since Truman employed a method Congress opposed, his seizure was tantamount to an exercise of legislativenot executivepower. 1b. Jacksons Three-Tier Framework Justice Jacksons concurring opinion is regarded as the analytical framework for evaluating the validity of constitutional authority. He describes the three tiers of presidential authority as follows: 1. The Presidents authority is at its maximum when he acts using Article II power, plus any expressed or implied power from Congress.8
6 7
Id. Id. Charles Adside, American Chief Executive, Lecture at University of Michigan, Ann Arbor Political Science 320 (Sept. 23 2013).
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2. The Presidents authority is in a zone of twilight when he acts under Article II powers, but congressional intent is unclear.9 3. The Presidents authority is at its lowest ebb when he acts against Congresss intent and relies only on Article II powers.10 It is noteworthy to identify the distinction between expressed and implied powers authorized by Congress. Expressed powers are clearly identified in the text of the Constitution, while implied powers are drawn from expressed powers and are not explicitly enumerated.11 This distinction is necessary because Truman relied primarily on implied powers to seize the steel mills as opposed to expressed powers written in the constitution. Justice Jackson believed that Trumans seizure of the mills fell under the third tier. He explained that the seizure could not fall under tier one because he could not find any congressional authorization. Thus, in Jacksons estimation, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress.12 The Presidents action falls under tier three, the least favorable of constitutional postures, making it most vulnerable to attack.13 While Justice Jacksons three-tier system attempts to explain Trumans presidential power in the case of the seizure, it is unclear if his analysis is correct.
PART 2: WHY DID YOUNGSTOWN GET IT WRONG? 2a. Inherent Authority
Id. Id. 11 Louis Fisher, Invoking Inherent Powers: A Primer, 37 PRESIDENTIAL STUDIES QUARTERLY. 1-22 (2007) at 1. 12 Supra note 5. 13 Id.
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Inherent authority is by definition a power that necessarily derives from an office, position, or status.14 Louis Fisher, a specialist in constitutional law with the Law Library of the Library of Congress, explains inherent authority as powers over and above those explicitly granted in the Constitution or reasonably to be implied from express powers.15 Article II of the U.S. Constitution lays out the powers of the President, stating executive power shall be vested in the President.16 This indicates that the President has a reservoir of executive authority and broad discretion. Executive power is referred to as inherent authority, indicating that the President possesses implied or implicit powers that are independent from Congressional authorizationany restriction on these powers would be unconstitutional. Article I of the Constitution states, All legislative powers herein granted shall be vested in a congress of the United States, while Article II claims, The Executive Power shall be vested in a President of the United States. There is an important wording distinction between these two phrases. Article I has the words herein granted, meaning the Legislatures powers are limited to a list of guidelines. The enumeration in Article II is intended to specify the articles implied definition of inherent authority, leaving the rest to flow from the general grant of that power.17 There is no specific limitation on the Executives powers like there is on the Legislatures, notwithstanding specific exceptions embodied in the Constitution. In Justice Vinsons dissent, he cites several statements in Article II that give the President inherent authority. Specifically, he mentions the Take Care Clause, which states: The President shall be Commander in Chief of the Army and Navy of the United States,
14 15
Blacks Law Dictionary (8th ed. 2004). Neil Kinkopf. Inherent Presidential Power and Constitutional Structure, 37.1 Presidential Studies Quarterly 37-48 (2007). 16 Article II. Legal Information Institute. Jan. 23, 2014. 17 Saikrishna Bangalore Prakash. "Hail to The Chief Administrator: The Framers and The President's Administrative Powers." Yale Law Journal 2 991-1017 (1993).
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he shall have power to make treaties provided two thirds of the senators present concur, and he shall take care that the laws be faithfully executed.18 The Take Care Clause maintains that the President must execute the laws of the United States faithfully. In order to accomplish this goal, the President must enforce previous statutes and treaties that have been authorized by Congress and signed into law. The specific treaties and statutes that apply to this case will be explained later in the paper. It is difficult to say whether the Presidents seizure of the steel mills would fall under inherent authority. One could argue that the seizure was an exercise of the Presidents inherent authority under the Commander in Chief of the Army and Navy of the United States Clause, but this could open the possibility to an abuse of the Presidents powers during wartime because the clause does not have any self-limiting properties. For example, in 1941, President Roosevelt used his inherent authority to seize the North American Aviation plant in Inglewood, California in order to avert a strike and ensure that orders would be fulfilled.19 Roosevelt invoked no specific statute and relied primarily on his inherent authority to justify the seizure. Nevertheless, inherent authority is not necessary because Truman had Congressional approval through various enacted statutes. 2b. The Justice Department The Justice Departments argument was an integral contributor to the Supreme Courts verdict of unconstitutionality. In Court, the Justice Department argued that Truman had acted solely on inherent authority without any statutory support.20 Assistant Attorney General Holmes Baldridge stated, The
18
Supra note 5, at 7. Patricia L Bellia, The Story of the Steel Seizure Case, (2008) http://www3.nd.edu/~ndlaw/faculty/belliap/SteelSeizureDraftSSRN.pdf (Last visited Mar. 2, 2013) 20 Supra note 11, at 5.
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Presidents power was based on Sections 1, 2 and 3 of Article II of the Constitution, and whatever inherent, implied or residual powers may flow therefrom.21 Baldridge reasoned the Justice Departments theory that in an emergency, the Executive Branch has the responsibility to protect the nation and any action the President took in that respect was legal.22 This type of argument is unreasonablethe only interpretation is that during emergency conditions, the Presidents power is essentially unlimited. Baldridge stated, There is enough residual power in the executive to meet an emergency situation of this type when it comes up.23 Baldridge also explained that once the President determines that an emergency exists, the courts are unable to review whether it is an emergency. This argument implies that granting unlimited powers to the President during times of emergency resembles the powers of a king. This sparked the Courts defense of separation of powers. Had the Court ruled in favor of the steel mill seizure, it could have set a precedent that the President holds unlimited power during times of crisis. District Attorney Judge David A. Pine acknowledged that a nationwide strike would cause damage to the nation. Pine claimed that a strike would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power, which would be implicit in a failure to grant the injunction.24 The Justice Department doomed the President in this case by arguing solely on inherent authority. Instead, they should have based their argument on the Take Care Clause and how the President is required to enforce statutes that have been previously enacted. This would have given them a legitimate defense and the potential to win the case.
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Supra note 1, at 119. Id. 23 Supra note 11, at 5. 24 Id. at 6.

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2c. Relevant Statutes 1. The Selective Service Act While President Truman did not invoke these statutes as his basis for seizing the steel mills, these congressional enactments would have been the strongest grounds to justify the seizure. As World War II broke out in Europe, Franklin Delano Roosevelt signed the Selective Service Act into law in 1940. The main objective of this statute was to require all males ages twenty-one to thirty-six to register for the draft. It appeared that President Roosevelt was afraid the situation in Europe might escalate and require American intervention. Section 18 of the Selective Service Act describes how the President can regulate industry in order to support the war effort. It provides: Whenever the Presidentdetermines that it is in the interest of the national security to obtain prompt delivery of any articles or materialsrequired for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized to place with any person operating a plant, mine, or other facilityan order for such quantity of such articles or materials as the President deems appropriate.25 Additionally, the President is authorized to take immediate possession of a facility should a plant operator refuse or fail to meet the order placed. Had the steel workers strike ensued, the steel mills would have been unable to fulfill government contracts, which were dedicated to the war effort in Korea.26 Gordon Dean, Chairman of the Atomic Energy Commission, informed President Truman that if there were a stoppage in
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Selective Service Act of 1948, H.R. Rep. 2438, 80th Cong. S* 2(d) (1948) http://www.loc.gov/rr/frd/Military_Law/pdf/act-1948.pdf 26 Id.
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production of steel, the atomic weapons project would be delayed.27 Section 18 of the Selective Service Act gave Truman seizure power because the steel companies would have been unable to fulfill the governments contracts, thus impairing the Atomic Steel Commission. Department of Justice lawyers agreed with this conclusion in order to ensure the continuance of essential steel production; therefore, the President would have been justified in seizing the steel mills.28 While this indicates strong statutory support pointing to the constitutionality of the Presidents seizure, there are several other important statutes to examine. 2. The Defense Production Act The Defense Production Act of 1950 is another statute that would have given President Truman the authority to seize the steel mills. This act ensured the availability of the nations industrial resources to meet national security needs by granting the President powers to establish the supply and timely delivery of materials, services, and products to military and civilian agencies.29 At the outbreak of the Korean War, President Truman sent a message to Congress stating the need to increase military materials and supplies because the nations military and economic preparedness were inseparable.30 The situation in Korea was escalating, which enabled the President to propose this legislation and Congress to pass it. The section of the Defense Production Act that pertains to the Presidents power to seize the steel mills can be found in Title II Section 202. This part of the statute authorizes the President to requisition certain property which is needed for the national defense, provided that such need is immediate and impending, and such as will not admit of delay or resort to any other source of supply and that all other means upon fair and reasonable terms have been
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Supra note 1, at 71. Id. at 76. 29 DANIEL H. ELSE, CONGRESSIONAL RESEARCH SERV., DEFENSE PRODUCTION ACT: PURPOSE AND SCOPE (2009). 30 Id. at 1.
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exhausted.31 Secretary of State Robert Lovett stated that any stoppage in steel production would seriously jeopardize the war effort in Korea and the domestic economy. He asserted, Our entire combat technique in all three services depended on the fullest use of our industrial resources.32 Thus, there was clearly a national emergency, allowing President Truman to invoke this statute and thereby seize the steel mills in order to requisition materials for the national defense. 3. The Mutual Security Act and The Marshall Plan Aside from statutes, the United States is obliged to honor treaties that have been signed into law. It became clear to the Truman administration and Congress that in order for the European allies to stabilize, these countries needed assistance following the devastation of World War II. Thus, the Mutual Security Act, which emphasized an increase in military assistance to democratic nations, and the Marshall Plan were enacted. In addition, Congress earmarked the monies for raw materials, guns, tanks, planes, and medical supplies.33 Congress and President Truman believed that preventing the spread of communism required providing economic aid to distressed nations. The Marshall Plan generated a resurgence in the industrialization of Western Europe and afforded investment to the region. The Marshall Plan channeled over thirteen billion dollars to Europe, successfully sparking an economic recovery.34 The provided aid is said to have solidified US leadership of the Western alliance, buttressed moderate elements in Western European politics, smoothed Europes labor-management relations, and checked the
31
Donald S. Frey, Maintaining Economic Freedom under the Defense Act of 1950, 18 U. Chi. L. Rev. 218 (1951). 32 Supra note 1, at 74. 33 Truman Signs Mutual Security Act, http://www.history.com/this-day-inhistory/truman-signs-mutual-security-act (last visited Nov. 11, 2013) 34 Marshall Plan, http://www.history.com/topics/marshall-plan (last visted Nov. 11, 2013)
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westward march of communism.35 Had the steel mills stopped production, the United States would have been unable to fulfill these obligations and the intended gains brought about by the Marshall Plan would have been reversed. Because the President is required to take care that the laws be faithfully executed, he is obligated to ensure that the resources and aid promised to foreign nations are secure. Thus, Trumans seizure of the mills was a permissible means under the Take Care Clause of the Constitution to enforce the United States treaty obligations.
PART 3: YOUNGSTOWN REVISITED

3a. Supreme Court Ruling The Supreme Court majority ruled incorrectly for the following reasons. First, the Court failed to appreciate that a steel stoppage would create a national crisis. Had the steelworker strike ensued as planned, the United States entire steel production effort would have completely shut down. Domestically, this would have had serious implications for the economy. As Secretary of Commerce Charles Sawyer explained to President Truman, a ten day interruption of steel production would mean the loss of ninety six thousand feet of bridge and fifteen hundred miles of highway.36 Additionally, airplane and ship production would have been curtailed; petroleum, gas, electric power plants, and coalmines were all in some way dependent on steel.37 A decrease in production in these areas would lead to serious unemployment. The conflict in Korea required steel for ammunition as well as other wartime necessities. Robert Lovett, Trumans Secretary of Defense, informed him that any stoppage of steel production would dramatically increase the risk of a shortage in the armament
35
Barry Eichengreen & Mark Uzan, The Marshall Plan: Economic Effects and Implications for Eastern Europe and the Former USSR, in 7.14 Economic Policy 13, (1992) 36 Supra note 1, at 75. 37 Id.
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program.38 He explained that the entire war effort relied on the industrial facilities producing steel at full capacity, stating: We are holding the line with ammunition, and not with the lives of our troops.39 Henry H. Fowler, Administrator of the National Production Authority, briefed Truman that the inventory of several types of ammunition was already low.40 Considering these statements by Trumans staff, it is clear that any stoppage in steel production would have jeopardized the nation domestically and in the foreign theater. Furthermore, the Court sided against Truman because Congress never issued a formal declaration of war. Nevertheless, Truman had declared a limited national emergency on Dec. 16, 1950. This declaration triggered a number of statutory provisions, giving him additional powers to face the crisis in Korea.41 Unfortunately, the declaration was not enough to convince the nation that a serious emergency existed. The administration was deprived of the cooperation of Congress, many of whose members were unwilling to act as if the United States was involved in an acute wartime emergency.42 If there had been an official declaration of war, then it would have been treated as a statute and the President would have received certain authorities in order to execute the declaration faithfully.43 Additionally, Assistant Attorney General Baldridge derailed Trumans defense by claiming that the President has unlimited powers during times of emergency. It is possible that, had Baldridges arguments been based upon the statutes explained previously in this paper, the Supreme Court would have upheld the seizure. But it seems that the Supreme Court was more interested in
38
Id. at 74. Id. 40 Id. 41 Id. at 3. 42 Id. 43 Id. at 222.

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preserving the separation of powers than recognizing the real emergency at hand. 3b. Justice Jacksons Three Levels of Presidential Authority After determining the facts of this case and establishing a general understanding of presidential power, Justice Jacksons three-tiered approach to presidential authority is flawed. While the first and third tiers are valid, the second tier must be eliminated. The second tier describes the formation of a twilight zone when Congressional intent is unclear. It is fair to argue that President Trumans seizure would fall under the second tier because he had sent a message to Congress asking for approval or refusal of his actions; there was never a response. However, this tier fails to provide any direction for Presidential decision-making. Depending on congressional inertia, the lack of a response could point to acquiescence or approval of the Presidents actions. On the other hand, some may argue that lack of a response from Congress points to disapproval of the Presidents actions. It is almost impossible to say which view is correct, and this second tier does nothing to support or oppose the Presidents inherent authority. Additionally, the second tier could invite judicial mischief. If congressional intent is unclear, then it is the Courts responsibility to decide whether the Presidents action was constitutional. When it is unclear whether Congress would approve or disapprove of an action, judges are left to make the decision of which way congressional inertia is leaning. When there is no clear direction from Congress, the judge would have to rely on his or her own beliefs and perspectives of the situation instead of enforcing the laws neutrally. It is possible that the members of the Court could take personal feelings into account because there is no clear guideline regarding the Presidents power in this tier. The new two-pronged system of presidential power would only require the use of the first and third tier. This would place the
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burden of a decision first on the President. After he or she acts, the burden will be placed on Congress to decide whether it approves or disapproves of the actions. This system is a more concise and consistent way to determine the Presidents authority in a situation.
PART 4 : CONCLUSION
While the President may not have been able to rely on his inherent authority to seize the steel mills, various statutes and precedents made the seizure constitutional. An array of treaties and statutes required the President to ensure the United States security by faithfully executing the defense program as authorized by Congress. Had there been a stoppage in steel production, it would be nearly impossible for the nation to meet these obligations. Adhering to these requirements, the seizure was a necessary and proper response to fulfill a constitutional duty. While the opining Justices offered valid explanations as to why the seizure was unconstitutional, they did not adequately consider the emergency that was at hand. As opposed to properly examining the current crisis and the various statutes, they took a stand against presidential power. While it is important that the Presidents power remains in check, Truman properly executed his authority and did not go beyond the constitutional realm of his powers. One of the law clerks on the Supreme Court in 1952 was William Rehnquist.44 Rehnquist described the impact of public opinion on the judiciary in this case, stating: I think that this is one of those celebrated constitutional cases where what might be called the tide of public opinion suddenly began to run against the government, for a number of reasons, and that this tide of public opinion had a considerable influence on the Court.45 It seems that
44 45
Supra note 11, at 7. Id. at 7.
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the courts were influenced by the public and were unable to consider all relevant factors. Justice Jacksons three-tier test for presidential power should be revised before it is applied again. There is no use for the second tier because it is impossible to define inaction by Congress. It is possible that judicial mischief occurred in this case due to the intense public scrutiny of Trumans seizure of the steel mills. The pressure by the public could have influenced the Courts decision because there was no clear way to determine whether Congress approved or denounced the Presidents actions. A two-tiered system is a more functional and reliable way to evaluate the Presidents authority.
Judgment without Justice:

The Evolution of Civilian Trials under Military Commissions
By John Moreland*
Military commissions were first used in American history during the American Revolution by the Continental Army. They were again used in the War of 1812 and the MexicanAmerican War. Perhaps the most expansive use of military commissions was during the Civil War, including the famous trial of the Lincoln assassination conspirators. This article examines the use and change of trials of civilians by military commissions from the American Revolution to the post-9/11 United States. It does so by canvasing three landmark military commissions: the trial of the Lincoln assassination conspirators, ex parte Quirin (1942), and Hamdi v. Rumsfeld (2004). In each case, it examine the facts, the procedures used by the military tribunals, and the outcomes and precedent that each set for American jurisprudence. By studying this evolution of military commissions, not only do the violations of constitutional rights become apparent, but also the overreaching of constitutional powers by the Executive Branch. While each of the three cases possesses distinct time periods, fact patterns, and outcomes, all of them resulted in the violation of the defendants constitutional rights, the overreaching of governmental power by one branch exercising the authority of another branch, and the use of military commissions as an instrument of expedient revenge for attacks against America. In all three cases, the jurisdiction of the Military Commission was challenged on the basis that the Executive did not have the constitutional authority to appoint commissions. Also, they violated the Fifth and Sixth Amendment rights of the accused by not providing for a Grand
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Jury and having the trial proceedings in secret. The suspension of habeas corpus and martial law was also of issue. It is interesting to see the evolution of military commissions over the course of history and to consider their potential in the future. Even though several constitutional rights have been adopted and protected in these tribunals, the question of who is to establish them still remains. Is it expressly Congress? Is it the President, acting as Commander-in-Chief? The Supreme Court has yet to address these issues. Perhaps by not addressing these questions, the Supreme Court is giving the Executive tacit approval. However, it is during a time of war or national emergency when the president is most likely to make extralegal decisions and thus constitutional rights are most threatened.
*A life-long resident of central Illinois, John Moreland graduated in 2013 from the University of Illinois with a BA in history. He plans to start his PhD in Civil War history in the fall of 2014 and thus forth begin a career in academia.
INTRODUCTION I: THE LINCOLN CONSPIRATORS II: EX PARTE QUIRIN III: HAMDI V RUMSFELD VI: CONCLUSION
Table of Contents
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INTRODUCTION
In a post-9/11 world, military commission has become a phrase that elicits either foreboding or patriotic zeal in defense of our national security. While proponents have deemed such tribunals a military necessity, opponents have deemed them an assault on individual liberties and rights. Unfortunately, the War on Terror, begun by the Bush Administration, has second-guessed the laws of war. We no longer contend with state enemies on a clear battlefield. The enemies we face today fight with terror, targeting civilian
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populations and using other unconventional tactics in direct violation of the internationally accepted laws of war. How do we combat this new enemy and under which laws do we judge them, especially when many are United States citizens? More importantly, who is authorized to constitute military commissions in order to try such offenders? Even though the terrorist attacks were unique in American history, these legal questions were not. By examining the evolution of military commissions we can see not only the violation of constitutional rights but also the overreaching of constitutional powers by the Executive Branch. The origins of military commissions in America extend back to the early days of the country itself. In June of 1775, as the American Revolution began to escalate, the Continental Congress adopted 69 Articles of War, drawn largely from the British Articles of War.1 These Articles of War were administered exclusively by the legislature and framed the procedures for courts-martial of soldiers, not civilians.2 In 1787, Samuel Carter, a citizen of New Jersey, was arrested for delivering arms to the British. General George Washington immediately ordered Carter to be transferred to a New Jersey civilian court stating, [I am] not fully satisfied of the legality of trying an inhabitant of any State by Military Law, when the Civil authority of that State has made provisions for the punishment of persons taking Arms with the Enemy.3 With the ratification of the United States Constitution in 1787 and the subsequent creation of a new American government, military power stemmed from legislative authority as it did during the war. Pursuant to the Constitution, the President was made Commander-in-Chief of the army and navy but at the same time was made accountable
1
LOUIS FISHER, MILITARY TRIBUNALS & PRESIDENTIAL POWER: AMERICAN REVOLUTION TO THE WAR ON TERRORISM 7 (The University Press of Kansas 2005). 2 Id. at 9. 3 FISHER, supra note 1, at 10.
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and subordinate to civil law. Under Section 8 of Article I of the Constitution, it was Congress who was given the power to make Rules for the Government and Regulation of the land and naval Forces. In 1789, legislation was passed that essentially adopted the Articles of War that had been used during the Revolutionary War. As time passed, the articles were expanded and supplemented. In April 1806, Congress enacted a bill that consisted of 101 Articles of War, many of which, like the previous Articles of War, set forth the rules and procedures for courts-martial. The articles would continue to be restructured, and their boundaries tested, over the next several years.4 One of the first instances in which military commissions were used to try civilians was during the War of 1812 when General Andrew Jackson declared martial law throughout the city of New Orleans. After the British were defeated Jackson maintained the state of martial law. Louis Louallier, a New Orleans resident, wrote an article in a local newspaper declaring that citizens accused of a crime should be tried before a civil court, not a military tribunal and stated that Jacksons order was no longer compatible with our dignity and our oath of making the Constitution respected. On March 5, 1815, General Jackson had Louallier arrested for inciting mutiny and disaffection within the army. However, when Federal District Judge Dominck Hall granted a writ of habeas corpus for Louallier, Jackson arrested the Judge as well. Jackson was later fined $1,000 for his actions, ironically by Judge Hall himself.5 Military commissions were once again used on civilians during the Mexican American War. When American soldiers invaded Mexico, they did not have a stable legal system to prosecute those who violated the law of war. Therefore, General Winfield Scott declared a state of martial
4
LOUIS FISHER, MILITARY TRIBUNALS: HISTORICAL PATTERNS AND LESSON 3-6 (CRS 2004). 5 FISHER, supra note 4, at 5-8.
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law in Mexico for both American soldiers and Mexican citizens. However, when Secretary of War William Marcy submitted a bill that authorized these military tribunals, Congress refused to consider it. In curbing the lack of Congressional authority, Scott issued General Orders No. 20 on February 19, 1847. This order defined specific crimes committed by civilians and American soldiers and declared those crimes to be tried before military commissions. Scott never did receive Congressional permission for his military commissions and after the war the Supreme Court overturned many of Scotts actions and the actions of other officers who ordered military trials of civilians.6 The most expansive use of military commissions, however, occurred during the Civil War. These military commissions did not come from Congress but rather from President Lincoln himself. After declaring martial law and establishing military commissions in areas such as Missouri and Maryland, President Lincoln convinced Congress to recognize and approve, retroactively, his Presidential acts. In 1863, one particular piece of legislation declared all personsfound lurking as spiesshall be triable by a general court-martial or military commission.7 Many federal judges during the war attempted to maintain their authority but they were either curtailed or simply ignored.8 Even as the Civil War came to a close and both sides began to piece together a war-torn nation, military commissions would continue to be used to extract revenge for a war-torn nation. This is a study into the evolution of military commissions in America by examining three landmark cases: the trial of the Lincoln conspirators, ex parte Quirin, and Hamdi v. Rumsfeld. Each of these cases possesses distinct time periods, fact patterns, and outcomes. At the same time however, they
6 7
Id. at 11-14. 12 Stat. 737, 38 (1863). 8 Id. at 16-20.
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share similarities. All three resulted in the violation of the defendants constitutional rights, the overreaching of governmental power by one branch exercising the authority of another branch, and the use of military commissions as an instrument of expedient revenge for attacks against America. By looking at these three cases, we can finally bring justice to a so-called legal system that has deprived United States citizens of their constitutional rights in the name of national security.
I: THE LINCOLN CONSPIRATORS

On the evening of April 14, 1865, a lean, well-dressed gentleman with coal black hair and mustache entered Taltavuls Tavern located next to Fords Theatre. Despite the fact that it was Good Friday, the war was over and Washington D.C. had been in a state of intoxication for a week. This gentleman, however, did not come to Taltavuls to join in the celebration. He walked across the dingy, noisy room and up to the bar. Being a regular, he usually asked for brandy, but on this particular night, he asked for whiskey. It would be his last for a while. Further down the bar, a man, already drunk, lifted his glass to the dark haired gentleman and said, Youll never be the actor your father was. John Wilkes Booth smiled and replied, When I leave the stage I will be the most famous man in America.9 Meanwhile, George Atzerodt rode to the Kirkwood House to assassinate Vice-President Andrew Johnson. Upon arriving, Atzerdodt decided, like Booth, to calm his nerves with a drink before climbing the stairs to Johnsons room. However, one drink turned into several and Atzerodt never made an attempt on Johnsons life. He left the bar, stumbled onto his horse, and fled the city.10 Four blocks to the northwest Lewis Payne and David Herold arrived at Secretary
9
10
JIM BISHOP, THE DAY LINCOLN WAS SHOT 203 (Perennial Library 1955). BISHOP, supra note 9, at 205.
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of State William Sewards house at 10:10 p.m. Herold held the horses as Payne went to the door. Pretending to be delivering medicine from Sewards doctor, Payne attempted to gain access. When the servant refused him entrance, Payne forced himself in and up the staircase. Making his way to the bedroom, he made several attempts to stab Seward. Unsuccessful, Payne ran out of the house and escaped down H Street. Herold had already fled the scene.11 Shortly after 10 p.m., Booth left Taltavuls and walked through the front entrance of Fords Theatre where the popular comedy Our American Cousin was being performed. After waiting in the lobby a moment, he turned right, ascended the dress circle stairs, and walked to the white door at the end of the hallway leading to box number seven. Upon entering the unguarded presidential box, Booth withdrew from his pocket a Derringer pistol. At the very moment when the audience exploded with laughter, John Wilkes Booth, the most famous actor in America, fired a bullet into the back of President Abraham Lincolns head. As the theatre erupted in pandemonium, Booth leapt from the box onto the stage, breaking his leg in the process. Hobbling off the stage, he escaped out the back door, leapt onto his mare and galloped into the darkness.12 After fleeing Secretary Sewards home, Herold rode down Pennsylvania Avenue, across the Navy Yard Bridge, and into Maryland. Only a few minutes earlier, Booth had taken the same route out of Washington.13 About eight miles out of the city limits, Herold finally caught up with Lincolns assassin. Five miles later, Booth and Herold arrived at the Surratt Tavern where Mary Surratt, the owner, had placed carbines, a set of field glasses, and a bottle of whiskey for their escape. The two continued their flight until they reached the
11
Id. at 219-222. Id. at 205-210. 13 JAMES L. SWANSON, MANHUNT: THE 12-DAY CHASE FOR LINCOLNS KILLER 80 (HarperCollins 2006).
12
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farmhouse of Dr. Samuel Mudd at around 4 a.m. Dr. Mudd set Booths leg and allowed him and Herold to stay and rest before they continued their flight south.14 At 7 p.m. the next evening, Booth and Herold left Dr. Mudds house. Their escape south continued for another twelve days. On April 26, while hiding out in a tobacco barn on Richard Garrets farm in Virginia, Booth and Herold were finally caught and surrounded by Union soldiers. Herold surrendered but Booth remained in the barn, refusing to give himself up.15 Minutes later, Sergeant Boston Corbett found a hole in the side of the barn, took aim with his revolver, and fired a bullet into the back of Booths head, almost at the exact same spot that the president had been shot. Dragging his paralyzed body out of the barn that had been put ablaze in order to smoke the two conspirators out, the soldiers placed him on the front porch of the Garret farmhouse. A few hours later, Booth, now the most infamous actor in America, died and walked onto the stage of history.16 In the days after the assassination, pieces of the puzzle began falling into place as authorities investigated anyone connected with Booth. Finally, eight individuals were arrested and taken into custody. After giving himself up at the Garret farm, Herold was taken back to Washington. Five of the suspected conspirators were arrested on April 17. Unsuccessful in the assassination of Seward, Lewis Payne made his way to the Surratt home. To his surprise, the residence was already being searched by the authorities. Both Mary Surratt and Payne were arrested on suspicion. Edward Spangler was arrested upon being implicated by John Ford, the owner of Fords Theatre. Like Herold, Michael OLaughlin turned himself in. Samuel Arnold was arrested in Baltimore when a letter was found in Booths hotel room with Arnolds name on
14 15
Id. at 87-124. Id. at, 326. 16 SWANSON, supra note 13, at 335-342.
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it. George Atzerodt was arrested on April 20 in Germantown, Maryland at his cousins house. Dr. Samuel Mudd was arrested the next day. After being interrogated by authorities for a second time, Dr. Mudd finally admitted to knowing Booth before the assassination and harboring him during his escape.17 Seeking legal approval for the use of a military commission to try the eight conspirators in custody, President Johnson wrote a letter to Attorney General James Speed asking for his legal opinion on the appropriate course of action. Despite the fact that he admitted in his legal opinion that the civil courts were open, functioning, and capable of trying the conspirators, Speed responded, [t]he conspirators not only may but ought to be tried by a military tribunal.18 With this justification, President Johnson issued the following order on May 1: It is ordered that the Assistant Adjutant-General detail nine competent military officers to serve as a Commission for the trial of said parties, and that the Judge Advocate General proceed to prefer charges against said parties for their alleged offenses.19 Nine days later, the eight accused were brought to the Old Arsenal Penitentiary building in Washington D.C. before the nine military officers that had been appointed to serve on the Commission, none of which were lawyers. The eight were asked if they had any objections to any member of the Commission, to which they replied they had none. The Judge Advocate General then swore in the members of the Commission. Brigadier General Joseph Holt, John Bingham and Colonel Henry Burnett were appointed as Assistant Judge Advocates who would help prosecute the case for the government. With the Commission and Judge Advocates present, the accused were asked if they wanted to acquire legal
17
ROY Z. CHAMLEE, LINCOLNS ASSASSINS: A COMPLETE ACCOUNT OF THEIR CAPTURE, TRIAL, AND PUNISHMENT 142-155 (McFarland & Co. 1990). 18 Opinion on the Constitutional Power of the Military to Try and Execute the Assassins of the President, Op. Atty Gen. 3 (1865). 19 Executive Order, Andrew Johnson, PUB. PAPERS (May 1, 1865).
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counsel. All eight wished to do so. The Commission, therefore, afforded the defendants time to retain counsel and adjourned until the following morning.20 On May 10th, at 10 a.m., the eight conspirators were once again brought up to the third story of the Old Arsenal Penitentiary for arraignment. Standing before the appointed Commission, the conspirators were charged with combining, confederating, and conspiring together with oneJohn Wilkes Boothto kill and murderAbraham LincolnAndrew Johnson[and] William H. Sewardon the 14 day of April, A.D. 1865.21 All the defendants subsequently pled not guilty. After the charges had been read and the pleas heard, the Commission discussed and adopted their own rules of proceeding that would govern the trial. The most notable rule by the Commission was that the proceedings were to be held in secret and the public barred from the trial. With their rules agreed upon, the Commission adjourned in order to give the accused additional time to secure and communicate with their attorneys.22 By May 12, all eight defendants had successfully acquired counsel. On that day, each attorney was introduced and approved by the Commission as required by the Commissions own rules. Upon the conclusion of these preliminary matters, Reverdy Johnson, attorney for Mary Surratt, and Thomas Ewing, attorney for Samuel Arnold, rose to challenge the jurisdiction of the Military Commission over the civilian defendants. After arguments were heard, the members of the Commission ruled on their own jurisdiction and denied the defendants motion. Over the next 49 days, 366 witnesses testified during secret hearings in which irrelevant evidence was admitted and constitutional rights were violated. The
20 21
Id. at 21. JOHNSON, supra note 19, at 18-19. 22 Id. at 21.
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controversy over the Commissions jurisdiction, however, remained.23 On June 16, Johnson arose and again challenged the jurisdiction of the Commission on the basis that there was no constitutional foundation for it. The Executive possessed no authority to make rules for governing or regulating the army or navy. These powers belonged exclusively to Congress and such rules could not have been passed except by Congress. He argued that in order to protect citizens from the Executive overreaching its power, the founding fathers adopted certain protections and therefore the Military Commission lacked jurisdiction to try the eight individuals based on the fact that it did not provide for their Fifth and Six Amendment rights under the United States Constitution.24 The Fifth Amendment states, no person shall be held to answer for a capital crime or otherwise infamous crime, unless on a presentment or indictment of a grand jury25 The accused, therefore, were within the jurisdiction of the civil courts and entitled to the protection of indictment. For a majority of the trial, the proceedings were held in secret and the press barred from the courtroom. Johnson argued that this violated the Sixth Amendment which states that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial and the right to be confronted with the witnesses against him.26 Johnson questioned, If the names of witnesses, and their evidence, are not published, what obstacles does it not interpose to establish their innocence? He reasoned, A public trial, therefore, by which the names of witnesses and the testimony are given, even in monarchical and despotic Governments, is now esteemed and amply adequate to the punishment of guilt, and
23
JOHNSON, supra note 19, at 22-23. BENN PITMAN, THE TRIAL: THE ASSASSINATION OF PRESIDENT LINCOLN AND THE TRIAL OF THE CONSPIRATORS 252-253 (Edward Steers Jr. ed., The University Press of Kentucky 2003). 25 U.S. CONST. amend. V. 26 Id. at amend. VI.
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essential to the protection of innocence.27 Johnson acknowledged that every American had the right to expect the punishment of the guilty, but that punishment had to be administered according to the law of civil courts that were governed by the Constitution. He also pointed out that in the Articles of War, the very same laws that the Commission members were sanctioned under, if a defendant is not subject to military jurisdiction when he commits the alleged offense the military authorities must turn him over to the civilian courts for proper trial.28 This, of course, the Military Commission did not do and therefore violated the same laws through which they assumed jurisdiction. Furthermore, the accused were also charged with military treason. Article III of the United States Constitution provides that no person shall be convicted of treason, except on the testimony of two witnesses to the same overt act, or on confession in open court.29 Nowhere did the term military treason exist prior to the Civil War and the only definition of treason rested solely within the Constitution. Therefore, the offense of treason could only be tried and punished as prescribed by the Constitution, not the Articles of War. Johnson continued his argument by addressing the governments claim that the Commission possessed jurisdiction on the basis that it was an incident of the presidents war power. Johnsons contention, as mentioned before, was that the war powers lay exclusively with Congress who maintained the authority to raise armies, govern those armies by rules, and confer powers to the president as commander-in-chief. He is impotent to that end as a private soldier.30 Therefore, if military commissions were an incident to the presidents war power, it had to have been authorized
27
PITMAN, supra note 24, at 255. Id. at 254. 29 U.S. CONST. art. III, 3. 30 PITMAN, supra note 24, at 253.
28
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by Congress. No such military commissions had been authorized by the legislature, nor did the Articles of War themselves mention such tribunals except for courts-martial and courts of inquiry which were strictly limited to the prosecution of uniformed soldiers.31 The government also asserted its jurisdiction to try the eight conspirators under the suspension of habeas corpus and the declaration of martial law. Johnson correctly contended that the purpose of the writ of habeas corpus was simply to determine the legality of the detention. Even if this writ had been suspended by Congress, which it had not, the only right that would have been suspended was the right of the accused to be brought before a civil court.32 It was also argued that martial law necessitated a military commission since martial law is enacted when civil law fails to maintain order, thus military tribunals take the place of civil courts. The Government relied on the precedent of General Scott in Mexico when he established military commissions under his declaration of martial law. Johnson, however, argued that during both the Mexican-American War and the Civil War, martial law had not been declared by the proper authority and the civil courts were open and functioning, thus negating the two requirements for the existence of martial law.33 Additionally, the court proceedings of the Military Commission were far from being impartial. Not only were the members of the Commission trying the individuals who were being accused of being accomplices in the assassination of President Lincoln, but they were also weeding out alleged Confederate conspiracies throughout the recent Civil War. Testimony about infecting Washington D.C. with smallpox, plotting to burn New York City, and starving Union prisoners were actually admitted into evidence, but would have been
31
Id. at 253-254. Id. at 257. 33 Id. at 261.

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totally irrelevant and never admitted into a civil court. Even the relevant testimony that was given would have been thrown out in a civil court due to the fact that much of it was simply hearsay. The Military Commission was obviously seeking convictions and blatantly ignored the flaws in the evidence.34 As noted previously, the proceedings were held in secret. To this, Johnson stated, [i]t partakes more of the character of the Inquisition.35 Interestingly, there was more public criticism to the closed proceedings than to the use of a military commission. While Americans wanted to follow the trial of the ones who murdered their president, the newspapers, of course, feared that the lack of coverage to their readers would in turn lower revenue. Eventually public outcry increased so much that the court proceedings were opened up to the public and the press. Along with this public pressure, there was also the concern among the government that if the accused were convicted in secret it might appear that the prosecutions case was too weak to try in open court.36 Another flaw in the court proceedings was the character of the pleadings themselves. According to the government it charged the eight conspirators with aiding the rebellion in murdering President Lincoln, Vice-President Johnson, Secretary of State Seward, and General Grant, thus disrupting the line of succession and preventing a lawful election and overthrowing the Constitution and the laws of the United States. Johnson argued that this pleading would not have been tolerated in a civil court, as the survival of the government was not contingent on the lives of any or all of its leaders. In fact, the government and its necessary functions continued just as they had before the assassination of President Lincoln. Unfortunately, the Commission, for a second time,
34
THOMAS REED TURNER, The Military Trial, in THE TRIAL: THE ASSASSINATION OF PRESIDENT LINCOLN AND THE TRIAL OF THE CONSPIRATORS 25 (Edward Steers Jr. ed., The University Press of Kentucky 2003). 35 PITMAN, supra note 24, at 255. 36 TURNER, supra note 34, at 12.
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dismissed Johnsons arguments against their jurisdiction and the trial continued. 37 Finally, after 49 days of trial, the Commission published their findings. David Herold, Lewis Payne, George Atzerodt, and Mary Surratt were all found guilty and sentenced to hang. Michael OLaughlin, Samuel Arnold, and Dr. Samuel Mudd were found guilty and sentenced to hard labor for life. Edward Spangler was also found guilty but was sentenced to only six years of hard labor.38 On July 7, Mary Surratts attorney obtained a writ of habeas corpus from a federal judge ordering the army to release her and bring her before a civil court. However, in the same hour, President Johnson suspended her writ.39 On July 7, 1865, Herold, Payne, Atzerodt, and Surratt climbed the scaffolding of the gallows in the courtyard of the Old Arsenal Penitentiary. At 1:26 p.m. the four conspirators were hung by the neck until dead.40 John Surratt Jr., Mary Surratts son who was also involved in the assassination plot, escaped into Canada. After his mothers hanging, John sailed for Europe and joined the Papal Zouaves under the alias John Watson. On a tip from a fellow Zouave, Surratt was captured in 1866 and taken back to Washington D.C. for trial. Unlike his mother, John was tried before a civil court from June to August 1867. The jury was unable to reach a verdict and he was released. If he had been captured in 1865 and tried before the military commission, he likely would have been convicted and executed.41 Most voices of criticism against the Military Commission were lost in the wave of revenge for the martyred president. The following year, Americans began to see that their longing for a quick trial and execution may not have been
37
PITMAN, supra note 24, at 259. Id. at 247-249. 39 Id. at 250. 40 SWANSON, supra note 13, at 365. 41 Id. at 375-376.
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the best course of action and that perhaps the jurisdiction of military commissions needed to be limited in order to protect against another act of revenge. The landmark case ex parte Milligan, which originally began a year before President Lincolns assassination, seemed to render the conviction of the eight conspirators null and void even though, for the four executed, their sentence was certainly final and irreversible. This Supreme Court decision would set a precedent for the legality of military commissions for the next several generations. On October 5, 1864, Lambdin Milligan was arrested and charged in Indiana with conspiracy on the grounds of planning to steal weapons held by the Union Army, liberate prisoner of war camps, and overthrow the United States government. On October 21, Milligan was put on trial by a military commission in Indianapolis. He was found guilty and sentenced to hang in May of 1865. Like the Lincoln conspirators, Milligan argued against the jurisdiction of the Military Commission that tried him. Nine days before he was scheduled to be executed, Milligan petitioned for a writ of habeas corpus, arguing that the Military Commissions assumption of jurisdiction was unconstitutional and that he possessed a right to a trial by jury.42 This was the first time that the Supreme Court faced the question of whether the military could try civilians in place of civil courts in areas outside the actual field of military operations. The Court found that civilians could not be tried by military commissions when civilian courts were open and functioning and that neither Congress nor the President possessed the power to authorize such tribunals.43 This decision was really the first significant judicial protection against military and executive invasion of individual constitutional rights for future generations of Americans. The
42 43
Ex parte Milligan, 71 U.S. 218 (1866). Ex parte Milligan, 71 U.S. 218.
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critics, of course, condemned the decision, as it looked as though the Court was trying to prevent the execution of congressional policy.44 Congress asserted that this ruling would restrict the ability to carry out their harsh policy of Reconstruction. Therefore, in 1867, it passed a statute declaring, no civil court of the United States, or of any State, or of the District of Columbia, or of any district or territory of the United States, shall have or take jurisdiction of, or in any manner reverse any of the proceedings had or acts done as aforesaid.45 In other words, Congress limited the Courts jurisdiction to hear cases involving military law. Despite the Milligan decision, military commissions continued throughout Reconstruction. From the end of April 1865 to January 1, 1869, there were 1,435 military trials of civilians.46
PART II: EX PARTE QUIRIN

After the Civil War and Reconstruction, the United States military established very few commissions until World War II. In 1913, a revision of the Articles of War, attempting to limit the power of military commissions, stated that general courts-martial possessed the power not only to try persons subject to the Articles of War, but also those persons subject to trial by military commissions. Later, language was added to ensure that the jurisdiction of courts-martial and military commissions were coherent and possessed the same procedures. In 1920, Congress declared that the regulations for military commissions were to follow the rules of evidence recognized by the district courts of the United States. Despite Congress attempts at curtailing the use of military commissions, the military and specifically the Executive overreached their constitutionally-given powers and assumed
44
ROBERT F. CUSHMAN , CASES IN CONSTITUTIONAL LAW 74 (Prentice Hall, INC. 1979). 45 14 Stat. 432, 437 (1868). 46 FISHER, supra note 4, at 25.
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jurisdiction over civilians by establishing such commissions to try them for offenses that should have been tried in civil court.47 The defendants in ex parte Quirin, Ernest Peter Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel all were German-born United States citizens. Between 1933 and 1941, they returned to Germany.48 After the United States had declared war on Nazi Germany, the eight conspirators attended a sabotage school near Berlin, where they were trained to use explosives and secret inscriptions. Upon completion of their training, the accused left Germany for France where Burger, Heinck, Quirin, and Dasch boarded a submarine headed for the United States. On June 13, 1942, the four, dressed in German uniforms, landed on Long Island with explosives, fuses, and incendiary and timing devises. After burying their uniforms, the men continued on to New York City in civilian attire.49 The other four conspirators, Kerling, Neubauer, Thiel, and Haupt boarded another German submarine at the same French port. However, this submarine carried them to Ponte Vedra Beach, Florida. They landed on June 17 wearing German uniforms and carrying the same equipment as the other group. These four also replaced their uniforms for civilian clothes and proceeded to Jacksonville, Florida. Thiel went to Cincinnati, Haupt and Neubauer went to Chicago, and Kerling went to New York. All eight conspirators had received orders from the German High Command to destroy railroads, factories, bridges, and other strategic targets. Among the weapons they carried were lumps of TNT disguised as pieces of coal that could be thrown into furnaces of locomotives or factories.
47
Id. at 32-35. Ex parte Quirin, 317 U.S. 163 (1942). 49 FISHER, supra note 1, at 91-92.
48
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However, their plan quickly unraveled the minute they set foot on American soil.50 When the first group, led by Dasch, reached the coast of Long Island in the early morning hours of June 13, they emerged from the submarine and paddled to shore. As the four began to unload the explosives from the raft, an unarmed coastguardsman stumbled upon them during his patrol. Dasch attempted to give him money in order to keep him quiet. Taking the money, the coastguardsman returned to his station and alerted the FBI. By the time the federal agents reached the beachhead and found the discarded uniforms, the saboteurs were gone. Soon thereafter, Dasch, in a moment of panic, decided to turn himself in by making an anonymous call to the FBI in New York City and then taking a train to Washington D.C. to unveil their whole mission. With Daschs help, the FBI quickly found and arrested the remaining seven conspirators.51 During interrogation, the eight conspirators assumed they would be tried before a civil court; initially the federal authorities had every intention of doing so since all eight were United States citizens. In fact, the FBI told Dasch that if he testified against the others, they would get a Presidential pardon for him. The only provision was that the FBI would keep his confession quiet from the public as it would endanger Daschs family in Germany and diminish the FBIs daring capture and uncovering of the plot. However, on June 28, Dasch, through his cell door, saw an agent reading a newspaper with Daschs face on the front page. Having been betrayed, Dasch was now prepared to make a full explanation of the capture and plot to a civil court.52 A civilian trial was now not an option for the government. President Roosevelt and FBI Director J. Edgar Hoover were heralded for capturing all eight conspirators.
50 51
FISHER, supra note 1, at 92-93. Id. at 92-93. 52 FISHER, supra note 4, at 94-95.
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They certainly did not want the public to find out that Dasch actually turned the others in or that two German U-boats reached American soil undetected. Furthermore the government was concerned that the 30-year prison sentence for sabotage would not stick in civil court simply because the eight men had not actually carried out the act of sabotage. A military court, however, would accomplish several things: it could carry out the trial in secret, reach a quick verdict, allow for the adoption of its own procedural rules, and decide on a maximum sentence, most likely the death penalty.53 On June 29, Secretary of War Henry L. Stimson and Attorney General Francis Biddle met to discuss whether to try the saboteurs in a civil or military court. A military commission was quickly decided upon.54 The next day, Biddle wrote a memo to President Roosevelt outlining the advantages of a military commission. He recommended that Roosevelt deny the conspirators access to civil courts so there was no review of the Commission.55 On July 2, President Roosevelt issued Proclamation 2561 entitled, Denying Certain Enemies Access to the Courts of the United States. It began with the following language, all enemies who have entered upon the territory of the United Statesin order to commit sabotageshould be promptly tried in accordance with the law of war.56 On July 2, 1942, President Roosevelt appointed the members of the Military Commission, the prosecution, and the defense counsel. Comprising the Commission were three brigadier generals and four major generals. Attorney General Biddle and Judge Advocate General Myron Cramer would serve as the prosecutors while Colonel Cassius M. Dowell and
53
Id. at 95. Id. at 96. 55 Memorandum from Atty Gen. Biddle to President Roosevelt (June 30, 1942) (on file with FDR Library). 56 Amending Executive Order No. 8197 of July 11, 1939, Prescribing Regulations Pertaining to the Administration of the Act of May 3, 1939, 7 Fed. Reg. 5101 (July 7,1942).
54
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Colonel Kenneth Royall would serve as the defense attorneys for the eight defendants. As with the military trial of the Lincoln conspirators, this particular commission possessed the freedom to make rules for the conduct of the proceedings, consistent with the powers of military commissions.57 In regards to evidence, it could admit anything that could, in the opinion of the President of the Commission, have probative value to a reasonable man.58 The defense, of course, had to grapple with the question of how one measures or defines what is valuable to a reasonable man. Among these rules were: No peremptory challenge. Challenge of members of the Commission for cause may be permitted. The Commission, by a two-thirds vote of those voting-the challenged members not voting-may pass on any challenge.59 The Commission was also allowed to use procedures from the Manual for Courts-Martial at anytime. Therefore, it was almost impossible for the defense to have before it a set list of rules. Following the model of the Lincoln conspirators trial, the eight German conspirators trial was held in secret from July 8 to August 1. On arraignment, the eight were charged with violating the law of war, two charges of violating the Articles of War, and one charge of conspiracy.60 Not only would these procedures be questioned, but also the jurisdiction and constitutionality of the Military Commission itself. Thirteen days into the trial, defense counsel Colonel Royall met ex parte with Justice Owen Roberts. After hearing about the situation, Justice Roberts told Royall that this case most certainly needed to be reviewed. Oral argument began on July 29 in Special Term. Because the Articles of War and the law of war, issues rarely considered by the Supreme Court,
57
7 Fed. Reg. 5103 (June 2, 1942). Id. Rules Established by the Military Commission Appointed by Order of the President of July 2, 1942 (on file with Papers of Frank Ross McCoy). 60 PITMAN, supra note 24, at 991.
58 59
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were being questioned, and given the fact that the Justices were not very well prepared, the Court waived the one hour argument limit for each side.61 However, there were problems with the composition of the Court. Justice Frank Murphy had already recused himself due to his position as an officer in the reserves. Chief Justice Stones son was part of the defense. Justice Frankfurter, on a regular basis, had been visiting the White House to talk with President Roosevelt regarding the German saboteurs and Justice James F. Byrnes was one of Roosevelts advisors on the war effort.62 Despite the Courts personal involvement or bias regarding the case, all continued to hear the central legal issue of whether the President was authorized to constitute a military trial of civilians when the civilian courts were open and functional. Royall and Dowell argued that even the 81st and 82nd Articles of War, which provided for the military trial of spies, could not have been applied to this case. None of the eight individuals committed any act of spying in or around a military installation or zone of military operations. In regards to the charge of violating the law of war, this was a class of international law, equivalent to common law. Royall and Dowell argued there was no common law crime against the United States. Instead this violation was specified as sabotage which was covered by the United States Code and therefore triable by a civil court.63 Furthermore, the Military Commission did not have jurisdiction under the Presidents declaration of martial law. Counsel argued that the Presidents order of martial law did not cover the entire eastern shoreline of the United States. There was no sufficient reason why anyone in that area should have been deprived of their constitutional rights. Additionally, the establishment of a military commission violated the Fifth
61
FISHER, supra note 1, at 106-107. Id. at 107-108. 63 Ex parte Quirin, 317 U.S.
62
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and Sixth Amendments of the United States Constitution by not providing for a grand jury or a public trial. The very same Articles of War that constituted the Commission were violated as well. Articles 46 and 50 contained the provisions of appeal for individuals tried before military commissions. This particular Military Commission deprived the accused of a process of appeal.64 Oral argument before the Supreme Court ended on July 30. The following day, the justices issued their per curium decision upholding the jurisdiction of the Military Commission. It would take an additional three months for a full opinion to be written, but in the meantime, the Military Commission had the go ahead to finish the trial. On August 1, the Military Commission rendered a verdict and all eight defendants were found guilty and sentenced to death. Based on the Commissions own rules, President Roosevelt approved the death penalty for six of the conspirators while Dasch and Burger received prison sentences. The six sentenced to death were electrocuted on August 8.65 With the military trial of the conspirators over, the members of the Supreme Court had to finish their full opinion on why they decided to stand on the side of the President and uphold the jurisdiction of the Commission. On October 29, the full opinion of ex parte Quirin was released. In this opinion, the Supreme Court stated that due to the secret nature and closed proceedings of the Commission, it was impossible to evaluate whether the President had jurisdiction to convene it or not. It did define United States citizens, who commit acts of hostility against the United States under an enemy government, as enemy belligerents. These enemy belligerents were therefore subject to trial by military commissions, which were provided for by the Articles of War. In essence, the Supreme Court side-stepped the issue
64 65
Id. Id.
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of whether President Roosevelt possessed the authority to convene the Military Commission or not by stating that it was unnecessary to do so.66 Five decades later, the issue of military commissions and the definition of enemy belligerents would once again be debated. Other military commissions were used during and after World War II, all involving the President exercising powers not given to him by the Constitution and the violation of individuals constitutional rights, including the right to be tried in a civil court. From 1952 to 1960, the Supreme Court made additional rulings on military commissions and their jurisdiction. In the 1955 case, Toth v. Quarles, the Supreme Court, attempting to limit the jurisdiction of the military over civilians, established that military commissions had no standing to be considered among the Article III courts defined in the Constitution simply because they infringed upon the jurisdiction of federal courts which provide civilians constitutional safeguards. United States District Judge Stern, ruling in the 1979 case United States v. Tiede, stated his fear of military commission as allowing the government to arrest any person without cause, to hold a person incommunicado, to deny an accused the benefit of counsel, to try a person summarily and to impose sentence all as a part of the unreviewable exercise of foreign policy.67 Little did Judge Stern know that twenty-two years later, the United States would actually adopt the same unreviewable foreign policy.68
PART III: HAMDI V RUMSFELD

During the weeks and months after the terrorist attacks of September 11, 2001 that took the lives of thousands of Americans in the World Trade Center, in the Pentagon, and
66 67
Id. United States v. Tiede, 86 F.R.D. 227, 228 (U.S. Court of Berlin 1979). 68 FISHER, supra note 4, at 47-67.
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in the fields of Pennsylvania, the United States government began to put into place the tools it saw necessary to combat the threat of organizations such as al Qaeda and the Taliban. On September 14, Congress passed a resolution entitled Authorization for Use of Military Force.69 In effect, this resolution authorized the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.70 This was the first time in the history of the United States that the government was permitted to hold and prosecute by military commission non-state members of an organization in an undeclared war. Two months later, President Bush would not only use this authorization, but also test its legal boundaries. On November 13, 2001, the Bush Administration issued a military order entitled, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Included in his order, Bush established that, any individual subject to this order, shall, when tried, be tried by military commission.71 The term any individual subject to this order was defined by the administration as any individual who was not a United States citizen and who was a member of al Qaeda, engaged in acts of terrorism, or assisted such a terrorist.72 This exclusion of United States citizens, however, was not strictly obeyed. United States citizens, such as Yaser Hamdi, quickly became victims of Bushs order, in which they were arrested, detained by the military, and denied their constitutional rights before a military commission. Yaser Esam Hamdi was born in Louisiana in 1980. Sometime during his early childhood, Hamdi and his family
69
Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2001) [hereinafter Authorization]. 70 See Authorization, supra note 69. 71 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 222 (November 16, 2001). 72 Id.
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moved to Saudi Arabia. In 2001, Hamdi relocated to Afghanistan, allegedly to receive military training from the Taliban. Hamdis father continually maintained that his son was in Afghanistan doing relief work. Shortly after September 11, he was captured in Afghanistan by the Northern Alliance and turned over to American military forces. After being interrogated in Afghanistan, Hamdi was transferred to Guantanamo Bay in January of 2002. In April, after learning that he was a United States citizen, Hamdi was transferred two more times, first to Norfolk, Virginia and then to Charleston, South Carolina where he was detained indefinitely without access to an attorney.73 Finally in June of 2002, Hamdis father, acting as next friend, filed for writ of habeas corpus with the federal district court under 28 U.S.C. 2241 in the Eastern District of Virginia, alleging that his son was being unlawfully detained, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. The petition stated that he had had no contact with his son since he was taken into custody in 2001, and that the Government was holding him without access to legal counsel or notice of any charges pending against him. The habeas corpus petition asked the court to appoint counsel for Hamdi, ordered the government to halt all interrogations, schedule an evidentiary hearing, and order his immediate release. In response, the District Court ordered that a public defender be appointed for Mr. Hamdi.74 The Government appealed to the Fourth Circuit, where the lower courts decision was rejected. The Appellate Court stated that there was a need for limited judicial review during times of war and that war-time decisions should be deferred to the President and Congress. In its opinion, the Court stated that, if Hamdi is indeed an enemy combatant who was captured during hostilities in Afghanistan, the
73 74
Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) revd, 542 U.S. 507 (2004).. Hamdi, 316 F.3d 450.
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governments present detention of him is a lawful one.75 After the opinion was issued, the government filed a motion to dismiss the habeas corpus petition. Attached to the petition was an affidavit from Michael Mobbs, the Special Advisor to the Under Secretary of Defense for Policy, testifying that Hamdi was captured in Afghanistan with a Taliban unit and an AK-47 in his hands.76 The District Court found that Mobbss affidavit, or more popularly referred to as the Mobbs Declaration, fell far short of supporting Hamdis arrest and detention, calling it little more than the governments say-so.77 The Court then immediately ordered the government to turn over all statements, notes, names and addresses of Hamdis interrogators, dates and locations of interrogations, and his detention for in camera review. Once again, the case went to the 4th Circuit when the government tried to have the production order halted. The Appellate Court reversed the decision, saying that it was undisputed that Hamdi was captured in a zone of active combat in a foreign theatre of conflict.78 Therefore, according to the Court, an evidentiary hearing was not necessary and improper. The habeas corpus petition was likewise dismissed.79 The U.S. Supreme Court granted certiorari and considered the question of whether the Executive branch had the authority to detain citizens who qualify as enemy combatants. Justice OConner gave the opinion of the Court, in which Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer joined. The majority held that although Congress authorized the detention of combatantsdue process demands that citizens held in the United States as enemy combatants be given a meaningful opportunity to contest the factual basis for
75
Id. Id. 77 Id. 78 Id. 79 Id.

76
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that detention.80 Much like the Supreme Court that presided over ex parte Quirin, this Court side-stepped the issue and did not address whether the President was authorized by Article II to detain United States citizens deemed enemy combatants. In their reasoning, the Court acknowledged that the capture and detention of both lawful and unlawful combatants by universal agreement and practice are important incident[s] of war.81 However, the Court concluded that there is no bar to this Nations holding one of its own citizens as an enemy combatant.82 Therefore, even in situations in which enemy combatants are legally detained, there remains the question of what the constitutional process is for a citizen who disputes his status as an enemy combatant. Hamdi argued that his detention based on an affidavit, containing third-hand testimony, did not comply with the Fifth and Fourteenth Amendments. The Court agreed stating, The threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizens core rights to challenge meaningfully the Governments case.83 The Court further acknowledged that there were significant interests on both sides of the case. Hamdis private interest is the most elemental of liberty interest-the interest in being free from physical detention by ones own government.84 In a time of ongoing conflict or war, the government does have an interest in detaining those who do pose a threat to national security. However, an unchecked system of detention may lead to an oppressive and abusive system of detention on those who do not pose that kind of threat. In other words, the District Court and Appellate Court took a constitutional risk. That is, the risk of erroneous deprivation of a detainees liberty interest was unacceptably
80 81
Id. Id. 82 Id. 83 Hamdi, 316 F.3d 450. 84 Id.
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high under the Governments proposed rule.85 The Court, therefore, reaffirmed the weighing of government interests against the restriction of liberty on citizens. Additionally, the Court stressed the importance of striking a balance of the Constitution between maintaining national security and upholding due process and that during times of conflict and war, the commitment of due process is tested the most. Justice OConner wrote, It is in those times that we must preserve our commitment at home to the principles for which we fight abroad.86 It was decided that the detention of Yaser Hamdi, a United States citizen, as an enemy combatant did not strike that constitutional balance. The Court reiterated the meaning of due process: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.87 Hamdi was not notified of the charges against him and was not allowed to be heard until his father brought his case before a civil court. In this case, national security was of concern, first and foremost, while Hamdis 6th Amendment rights were entirely disregarded. The government thus failed in balancing the Constitution. In its final comments, the Supreme Court established that due process requires some system in which a United States citizen, who is being detained as an enemy combatant, can rebut his classification. The some evidence standard as provided in the Mobbs Declaration was highly inadequate; furthermore, being subjected to military interrogations hardly constituted, a constitutionally adequate fact finding before a neutral decision maker.88 However, the Supreme Court did state that due process could be met by an appropriately authorized and properly constituted military tribunal.89 The
85
Id. Id. 87 Id. 88 Id. 89 Id.

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Court did not elaborate on this last statement but simply vacated the judgment of the Fourth Circuit Court of Appeals and remanded the case for further proceedings.90 Because of the Supreme Court ruling, there was no military trial of Yaser Esam Hamdi. However, if there had been a trial, it would have been established by President Bushs Military Order and the rules and procedures set forth by the Department of Defenses Military Commission Order No. 1. Despite the fact that these military commissions do not completely follow constitutional provisions, they have made remarkable progress since the trial of the Lincoln conspirators. Today, military commissions are open to the public (except when classified information is being heard), evidence for the prosecution is made accessible to the defendants, defendants have the right to testify on their own behalf, and defendants have the right to present evidence for their case.91 Military Commission Order No. 1 also sets forth trial procedures. A panel of three to seven military officers, all of whom are appointed by the Secretary of Defense, tries the defendants. As stated before, hearsay evidence is admissible if it contains probative value to a reasonable person. A conviction of the accused requires a two-thirds vote by the Commission members. Unlike the Lincoln conspirators, defendants now enjoy the right of appeal. However, the appeal panel is also appointed by the Secretary of Defense and is only allowed to review the Commissions rules, not federal law or constitutional issues. Despite the seemingly progressive elements of todays military commissions, there are a few rights that still do not exist within such tribunals. Military Commission Order No. 1 does not contain any provision for
90 91
Id. Military Commission Order No. 1: Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, U.S. D.O.D. (March 21, 2002) [hereinafter Commission].
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habeas corpus or any other means of challenging the accused detention or classification as an enemy combatant.92
PART VI: CONCLUSION

Military commissions have evolved considerably over the course of American history. General Washington attempted to establish a precedent when he turned over Samuel Carter to a civilian court because he believed that a military trial was inappropriate. It is safe to say that Washington would have been disappointed to see how military commissions have been used since. These tribunals do not violate only individual constitutional rights, but also separation of powers. The drafters of the Constitution put into place certain safeguards in order to avoid the very situation that has occurred with the establishment of military commissions and their assumption of jurisdiction over civilians. The problem lies with the Executive Branch overreaching its constitutional boundaries and exercising the powers of Congress. This played out in the trial of the Lincoln assassination conspirators, ex parte Quirin, and Hamdi v. Rumsfeld. All three cases occurred during different time periods and possessed varying fact patterns and outcomes. They all arose, however, during a time of national emergency. This, according to the presidents, gave them special executive privilege in the role of Commander-in-Chief which did not require authorization from Congress. In all three cases, the Supreme Court continually rejected this argument. Federal courts even stated their fear that the presidents exercised the powers of the executive, legislative, and judicial branches through the use of military commissions, violating not only individual rights and liberties but also their constitutional powers and boundaries.
92
See Commission, supra note 92.
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I would suggest that the Founding Fathers never envisioned the possibility of a civil war in America. President Lincoln was therefore faced with an unprecedented event in which he not only had to fight in order to protect and defend the nation, but also the Constitution of the United States. Unfortunately, in the process, he suspended habeas corpus, declared martial law, and allowed for the establishment of military commissions to try certain civilians. Lincoln made these decisions without the express permission of Congress and when the Supreme Court ruled these decisions unconstitutional, he simply ignored its admonishments. When Lincoln argued that the secession of the southern states required immediate action and could not wait on Congress to make a decision, Congress retroactively approved these actions. Having Congress retroactively approve something, of course, does not equate to Congress making the original action, especially when that action is expressly given to the Legislative Branch, such as making rules for the governance of the military. In the aftermath of the Civil War and President Lincolns assassination, the Executive continued to exercise powers outside of its constitutional boundaries. Despite the fact that President Johnson was advised that the civil courts were open and functioning, he established a military commission to try the eight civilian conspirators. As argued by Reverdy Johnson, this establishment of the commission was not a part of the presidents war powers. The war powers were conferred to the president and thus required authorization from Congress. No such tribunals had been authorized by Congress. Congress had only retroactively authorized Lincolns decision to establish military commissions, it had never authorized any such commission that Johnson had established. Even if it had, a retroactive authorization of a presidential action does not constitute a legal action on the part of the president.
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President Roosevelt, like President Johnson, obtained legal permission from his Attorney General to establish a military commission to try the eight German-Americans. In his proclamation, Roosevelt insisted that because the accused had attempted to commit acts of sabotage, they had to be tried by the law of war and not by the laws of the United States. Roosevelt also, like Lincoln, derived his authority to establish the Commission through his war powers as Commander-inChief. Not expressly stating so, he also suspended habeas corpus so that the accused would not have the opportunity to have a civil court review their case. Also in his proclamation, Roosevelt authorized the Commission itself to adopt rules for the proceeding which bypassed the procedures that Congress had previously enacted for military tribunals. The Presidents proclamation also directed the court record, judgment, and sentence to be sent directly to him for approval. According to the 46th and 50th Articles of War, drafted by Congress, a conviction and sentence had to be reviewed and approved by the Judge Advocate Generals office.93 When the full opinion was published in ex parte Quirin, the Supreme Court concluded that the secrecy of the trial proceedings made it impossible to decide whether President Roosevelts proclamation establishing the Military Commission was legal and within his constitutional bounds. However, in one of his memos, Justice Frankfurter wrote that he had no doubt that Roosevelt violated Articles of War 46 through 53. If this evasion of the issue was not clear enough, the Court went one step further and clearly stated that it was not necessary to decide to what extent the President, acting as Commander-in-Chief, has the authority to create military commissions, yet they upheld the jurisdiction of the Commission. As time passed and the record of the Commission became public record, doubts were cast as to the Courts decision. The question as to the Presidents
93
Fisher, supra note 1, at 98-100.
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constitutional powers and military commissions were once again put off to another date and case.94 Unfortunately, when another date and case did come, in Hamdi v. Rumsfeld, the Supreme Court once again punted on the question of the President and Military Commissions. However, it did admonish the president harder than it ever had before. Justice OConner stated that the Court had long expressed that a state of war does not give the President a free pass in regards to individual liberties and rights. The plurality agreed that the Use of Force Act did indeed constitute congressional authorization for the President to detain certain individuals. However, it clearly stated that nothing in the act made mention of the President being authorized to detain United States citizens. The Supreme Court also agreed that Hamdi was entitled to rebut his status as an enemy combatant by a neutral decisionmaker [sic] such as an appropriately authorized and properly constituted military tribunal. However, it was the President who classified Hamdi an enemy combatant in the first place. How could a review process within the Executive Branch, like a military tribunal, provide for a neutral, impartial decision?95 It is interesting to see the evolution of military commissions over the course of history and to think that they still remain a very vague and shady instrument of military law. Even though a few constitutional rights have somewhat been adopted and protected in these tribunals, the question of who is to establish them still remains. Is it expressly Congress? Is it the President, acting as Commander-in-Chief? The Supreme Court has yet to address these issues. Perhaps the Court believes that to rule in favor of Congress would appear to be treading on the Presidents war powers and ruling in favor of the President would appear to be giving him additional, unilateral authority. Perhaps by not addressing the question of
94 95
Fisher, supra note 4, at 42-43. Fisher, supra note 1, at 226-229.
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Presidential authority in establishing military commissions, the Supreme Court is giving the Executive tacit approval. Presidents Lincoln, Roosevelt, and Bush all argued that during a state of war or national emergency, certain constitutional provisions must be set aside in order to protect and defend the Constitution itself and the nation. This included the overreaching of their constitutional boundaries and exercising the powers of Congress in establishing military commissions. However, it is during a time of war and national emergency when the president is most likely to make extralegal decisions and constitutional rights are most threatened. It is during this time that the separation of powers is most necessary. This we must strive to do not only to preserve our countrys government but to preserve the ideals of liberty for future generations.
Institutionalized Silence:
The Problem of Child Voicelessness in Divorce Proceedings
By Brandon Sadowski*
By and large, children are not represented in divorce proceedings. Moreover, when children do receive a representative, this person tends to be bound by that childs best interests rather than being bound by that childs expressed wishes. The question is, why are we so hesitant to give children a meaningful voice in the legal proceedings that so greatly affect their lives? This paper argues that issues concerning child representation are fundamentally underpinned by two conflicting intuitions: our paternalistic impulses and our value, or respect for autonomy. By understanding both of these intuitions, we can create a model of child representation that gets everything we want and need. This paper contends that a hybrid model of representation, which incorporates both a childs voice and a way to ensure a childs best interests fits the aforementioned criteria. In all, this paper is a contribution toward remedying the issue of institutionalized silence of children in divorce.
*Brandon Sadowski is a junior philosophy major at Ohio State. He is from Long Island, New York. He was inspired to write this paper by my past experience in the court system. When he was younger, he witnessed firsthand the way children are treated in divorce cases. This paper is a way to call attention to the main issue that he noticed: the lack of child representation. Having three younger brothers, ages three, eight, and sixteen has also played a role in sparking his interest for childrens rights issues. It is his hope that this paper can contribute to the ongoing debate concerning child representation and offer a unique defense of a hybrid model of representation.
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Table of Contents
INTRODUCTION 53 I: REPRESENTATION FOR CHILDREN IN DIVORCE CASES 55 IA. OVERVIEW OF CHILD REPRESENTATION PRACTICE. 55 IB. SHOULD CHILDREN BE REPRESENTED IN DIVORCE CASES?......................................................................56 II: BEST INTEREST ATTORNEY V. CLIENT DIRECTED ATTORNEY61 IIA. THE ISSUE.61 IIB. THE DEBATE62 III: PATERNALISM AND AUTONOMY.65 IIIA. UNDERSTANDING OUR INTUITIONS.65 IIIB. COMPETENCE..68 IV: POSSIBLE MODELS OF CHILD REPRESENTATION70 V: CONCLUSION 73 INTRODUCTION The United States judicial system hardly recognized any childrens rights until the late 1960s, when the Supreme Court finally declared that neither the Fourteenth Amendment nor Bill of Rights is for adults alone.1 Since then, the courts have stated that children have procedural due process rights,2 the freedom of speech (to a certain extent),3 the right to an education,4 and other constitutionally protected rights.5 Although great strides have been made through the recognition of these rights and others, children largely still lack
1
In re Gault, 387 U.S. 1, 87 (1967); Also, for summaries of the history of childrens rights see: Laurence D. Houlgate, Three Concepts of Childrens Constitutional Rights: Reflections on the Enjoyment Theory, 2 U. Pa. J. Const. L. 77; Homer H. Clark Jr., Children and the Constitution, 1992 U. Ill. L. Rev. 1. 2 Goss v. Lopez, 419 U.S. 565, 42 (1975); In re Gault supra note 2; HOULGATE supra note 2. 3 Tinker Et Al. v. Des Moines Independent Community School District Et. Al., 393 U.S. 503 (1969). 4 Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 5 For discussions of the constitutional rights of children see Homer Clark Jr., Children and the Constitution, U. Ill. L. Rev. 1 (1992).
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many of the rights that adults are afforded.6 This is particularly the case in the context of divorce and custody law. One such right that children have not been given in divorce proceedings is the unconditional right to representation.7 Instead of granting children the right to an attorney, most states give courts discretion to appoint a child attorney when a judge deems that doing so is necessary.8 It turns out that judges rarely exercise this power.9 Furthermore, when an advocate or attorney is appointed for a child, that person usually advocates for the childs best interests, rather than the childs expressed wishes.10 The question is: why are the courts so hesitant to grant children the right to a voice in custody cases? By providing a clear answer to this question, important conclusions can be made regarding which rights to representation children should be afforded. In order to answer this question, I will begin by explaining the current state of child representation in divorce proceedings in greater depth. Then, I will argue that children ought to be provided representation in divorce cases . The question then becomes, how should children be represented? In section two, I will characterize the debate between those who believe that children ought to be represented by best interest attorneys and those who believe children ought to be represented by traditional client-directed attorneys.11 I will
6
See Emily Buss, Constitutional Fidelity Through Childrens Rights, 355 Sup. Ct. Rev. 355 (2004) 7 Rebecca Hinton, Giving Children a Right to Be Heard: Suggested Reforms to Provide Louisiana Children a Voice in Child Custody Disputes, 65 La. L. Rev. 1539 (2005); Katherine Federle, Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce Proceedings, 15 Cardozo L. Rev. 1523, 1552 (1993) (Hereinafter Looking for Rights). 8 John Meyer, The Best Interest of the Child Requires Independent Representation of Children in Divorce Proceedings, 36 Brandeis J. Fam. L. 445 (1997). 9 Id. 10 Federle, Looking for Rights, supra note 8 at 1554. 11 A best interests attorney advocates for a childs best interests, rather than the childs expressed wishes. A client-directed attorney establishes a normal clientattorney relationship with the child in which the attorney advocates for the childs wishes.
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argue that these models are underpinned by two conflicting values. The first is what I call our paternalistic impulse, which drives our belief that we should help people make good decisions, or prevent people from making decisions that might harm themselves. The second is the value placed on autonomy, or self-determination, which motivates the belief that people should not infringe on another persons right to make his or her own decisions. Finally, I will consider different methods of child representation that may satisfy both of the aforementioned appeals. I do this with the beliefs that both views have legitimate virtues and that, by maintaining their most valuable considerations, an acceptable and satisfying remedy for child voicelessness can be found. PART I: REPRESENTATION FOR CHILDREN IN DIVORCE CASES IA. Overview of Child Representation Practice By and large, children do not receive representation in divorce proceedings. According to a 200712 American Bar Association survey13, thirty-nine states give complete discretion to judges to appoint representation for children.14 In other words, judges have total control over whether a child will receive representation, regardless of the circumstances of the divorce. In twelve states, the appointment of representation for the child is required under certain
12
From reviewing the statutes cited in ABAs study, it appears that the statutes were still current as of 2013. 13 ABA Child Custody and Pro Bono Project (2001-2008) http://www.americanbar.org/content/dam/aba/ migrated/legalservices/probono/childcustody/divorce_chart_with_role.authcheckd am.pdf (Hereinafter ABA Survery). 14 See e.g. Oh. Revised Code 3109.04 (The court, in its discretion, may and upon the motion of either parent, shall appoint a guardian ad litem for the child); Cal. Codes 3150 (If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel); N.J. Stat. 9:2-4 (The courtupon its own motionmay appoint a guardian ad litem or an attorney or both to represent the minor childs interests.).
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circumstances.15 In eight out of those twelve states, representation is required when there is an allegation or founding of abuse.16 The other four require representation in other circumstances.17 Oregon, for example, requires that a child receive representation if he/she requests it.18 Wisconsin is the only state that requires that representation be provided in cases where custody is disputed.19 In states where the appointment of representation is discretionary, there are few guidelines as to when judges should appoint counsel and what their role should be.20 Moreover, judges tend to not use their discretionary power to appoint representation for children.21 Finally, over ninety percent of cases are settled before going to trial and the court rarely challenges custody decisions that parents agree to before reaching litigation.22 This leads to an even greater concern about lack of representation in cases where custody is uncontested since children are generally not directly represented in divorce proceedings. Ib. Should Children Be Represented in Divorce Cases?
15
ABA Survey, supra note 14. The twelve states are as follows: Florida, Louisiana, Minnesota, Mississippi, Missouri, Oregon, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. 16 Id. (Florida, Louisiana, Minnesota, Mississippi, Missouri, Virginia, West Virginia, and Wyoming). 17 Id. 18 ORS 107.425 (The courtmay appoint cousel for the children. However, if requested by one or more of the children, the court shall appoint counsel for the child or children.). 19 Wis. Stat. 767.407 (The court shall appoint a guardian ad litem[when]the legal custody or physical placement of the child is contested.). 20 American Bar Association Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases 1 (August 2003) (Hereinafter ABA Standards). 21 MEYER, supra note 9; Linda Elrod, Counsel for the Child in Custody Disputes: The Times is Now, 26 Fam. L. Qtrly. 53, 55 (1992); Linda Rio & Amy Bouchard, Representing Children in Custody Cases: Where We Are Now and Where We Should go, 23 Childrens Rights J. 2, 3 (2003). 22 Robert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law, 88 Yale L. J. 950 (1979).
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One of the most consistently relied upon canons in family law is the best interests standard,23 which holds that a judges decision on matters relating to a child must be governed by the childs best interest.24 Historically, courts have operated with the presumption that parents represent and serve the best interests of their children.25 Under that assumption, there is little reason for the courts to provide independent representation for children. However, it is clear that this presumption does not always hold true.26 Especially in divorce, where money, homes, custody, pride, and more are at stake, a child can be at risk to having their wishes and interests put aside.27 Children, for example, are often used in divorce as a bargaining chip; a means of extorting monetary gains.28 Giving children a voice can discourage the practice of using children as a bargaining chip.29 This could also aid in preventing custody disputes from growing out of hand, as the childs best interests and personal wishes would be readily available for everyone to hear. The court would have a better idea of what would be best for the child and what the child wants, so custody battles would not be solely between parents. As such, child attorneys could reduce the time it takes to settle
23
Lynne Kohm, Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J. L. Fam. Stud. 337 (2008). 24 Id. 25 See Parham v. J.R., 442 U.S. 584, 602 (1979). Also, for the history of child representation in the U.S., see Robert Shepherd & Sharon England, I Know the Child is My Client, But Who am I?, 64 Fordham L. Rev. 1917, 1919-1925 (1996). 26 See e.g. Jenifer Troxel v. Tommie Granville 530 U.S. 57 (2004) (Justice Paul Stevens Dissenting) (The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent's interest is paramount. But even a fit parent is capable of treating a child like a mere possession); U.S. Childrens Bureau & Dept. of Health and Human Services, Child Maltreatment 2011, 1, 19 (2012) (reported incidents of child abuse and neglect reach nearly 700,000 children). 27 See MEYER, supra note 9 at 448; Alan Eidsness & Lisa Spencer, Confronting Ethical Issues in Practice: The Trial Lawyers Dilemma, 45 Fam. L. Qtrly. 21 (2011) (The very subject matter of family law casesare of such great importance to our clients, that clients often lose sight of their better judgment). 28 MEYER, supra note 9 at 450. 29 For more information on how parents use their children as a bargaining tool see Federle, Looking for Rights, supra note 8 at 1560
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the small number of high conflict divorce cases that consume much of the family courts time and resources.30 In addition, children should be viewed as the third party in every divorce case. Their interests and well-being are as jeopardized in divorce hearings as their parents.31 Divorce often means significant changes for a child32 even outside the fact that they will no longer live with both of their parents. For a child, divorce can mean a new house, new school, new financial situation and lifestyle, etc. It is important to ensure that children are not being forgotten about in the divorce process and that their needs are being taken into account sufficiently. I contend that children deserve the right to an attorney in divorce cases and all cases concerning their custody and wellbeing. Another benefit of giving children representation in divorce proceedings, especially if it is done early in the process, is that doing so can mitigate parental alienation syndrome (PAS) and issues that result from allegations of PAS.33 Parental alienation syndrome is when a parent behaves in a way that alienates a child from the other parent. Alienated children often express irrational fear of or opposition to the parent from whom they are alienated. Parental alienation has caused courts
30
For a discussion concerning high-conflict divorce, see Tonya Inman et al., HighConflict Divorce: Legal and Psychological Challenges, 45 Houston Lawyer 24 (2008); Janet Johnston, High-Conflict Divorce, 4 Future of Children 165 (1994) (explaining the effects of high-conflict divorce on children). 31 A lot of research suggests that children of divorce fare worse than children with married parents. For example, they tend to be placed in a worse economic situation than children with married parents. For more information concerning how divorce affects children, see Judith Wallerstein, The Overburdened Child: Some Long Term Consequences of Divorce, 19 Columbia J. L. & Soc. Probs. 165 (1985); Elizabeth Scott, Divorce, Childrens Welfare, and the Culture Wars, 9 Va. J. Social Policy & L. 95, 98-99 (2001) (A large body of social science research demonstrates clearly that children whose parents divorce generally fare poorly compared to children who grow up in intact families.); Andrew Collins et al., The Case for Nature and Nurture, 55 American Psychologist 218 (2000) (Parenting affects the temperament and behavior of children). 32 Id. Also, see e.g. Vijender Kumar, Impact of Divorce on Children: A Socio-Economic and Legal Study, 6 NALSAR L. Rev. 124 (2011); MEYER, supra note 9. 33 ELROD, infra note 44 at 900.
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and legal professionals to become skeptical of allegations of abuse.34 Additionally, threatening to allege PAS has become a tactic that abusive parents may use in order to encourage their ex-partners to remain silent about abuse, since a finding of PAS can lead to a loss of custody. Giving a child an attorney immediately will require a qualified representative to take account of the childs preferences before the conflict that accompanies divorce has an effect thereby mitigating the occurrence and effects of PAS. Also, giving children representation ensures that they will have the opportunity to express any concerns about abusive behavior, allowing the court to hear such issues. Some might contend that giving a child an attorney will perpetuate the effects of PAS. However, if a child is given an attorney early in the divorce process, there is a slimmer chance that the child will have already become alienated. In addition, many have questioned the hypothesis of PAS35 and have argued that allegations of PAS are merely a tool for abusive parents in custody battles. If PAS is a legitimate issue, then child representation will help by accounting for childrens views early in the process. However, if PAS is not a legitimate issue, then child representation will help by giving children the opportunity to alert the courts of abuse. Finally, children involved in divorce want to be 36 heard. They sense that their voices and concerns are disregarded and want to participate. Giving children representation would foster confidence and lead to a lasting respect for the judicial system. The following anecdote illustrates these points: An elderly woman, recounting her
34
Joan Meier, Getting Real About Abuse and Alienation: A Critique of Drozd and Olesens Decision Tree, 7 J. of Child Custody 219 (2010). 35 For a critique of PAS, see Janet Johnston, Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child, 38 Fam. L. Qtly. 757 (2005). 36 See Karen Saywitz et al., Interviewing Children in Custody Cases: Implications of Research and Policy for Practice, 28 Behav. Sci. L. 542, 544-545 (2010); Joan Kelly, Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current Research and Practice, 10 Va. Soc. Pol. & L. 129, 150-152 (2002).
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experience of her parents divorce, recalls that she was crying while at the county court house. She was upset, because she did not know what was going to happen to her following her parents divorce. The judge put her on his lap and asked, Do you want to live with your mother or your father? She told him that she wanted to live with her mother. The judge responded, Then you will.37 The old woman enjoyed recounting this story and recalled her pride in being able to state her opinion. The judge who listened, Harry S. Truman, later became the President of the United States.38 Providing children with an attorney will ensure that judges must listen to children in divorce proceedings. Although there is a longstanding legal tenet that parents have the constitutional right to raise their children with minimal government interference,39 the childrens interests at stake in divorce deserve to be represented by an attorney, instead of solely by parents. Divorce creates an extremely tense and adversarial environment, in which a childs interests may be ignored. Moreover, the idea that children should be given the right to an attorney in cases that concern their interests is not unprecedented from a legal standpoint. In dependency and delinquency cases, for example, children are given the right to counsel.40 Providing a child with an attorney ensures that their interests are accounted for, will reduce custody conflicts in divorces, and can help mitigate issues associated with PAS, It can also encourage abusive behavior to be brought forth to the court, will inspire children to appreciate the courts, and promote a feeling that they are a legitimate party in a process that greatly impacts their lives. As such, children should receive representation the moment that
37
Note that the woman was five years old at the time of her parents divorce. I found this excellent story in Randy Kandel, Just Ask the Kid! Towards a Rule of Childrens Choice in Custody Determinations, 49 U. Miami. L. Rev. 299 (1994). 39 For more on parents rights, see Emily Buss, Parental Rights, 88 Va. L. Rev. (2002). 40 In re Gault, supra note 2 (children have the right to representation in delinquency cases); 42 U.S.C. 5106a(b) (2013) (children have the right to a guardian ad litem in abuse and neglect cases).
38
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divorce is filed, so that they can be represented even during settlement. PART 2: BEST INTEREST ATTORNEY V. CLIENT-DIRECTED ATTORNEY IIa. The Issues Since children should be afforded the right to counsel in divorce cases, the question becomes, how should they be represented? There are two main models of child representation: the best interest approach41 and the clientdirected approach. For simplicity, Ill refer to representatives who work under the best interest approach best interest attorneys and those who work under the client-directed approach client-directed attorneys. A best interest attorneys role is to advocate for a childs best interest and is not bound by the childs wishes.42 Client-directed attorneys act as traditional attorneys and advocate for the childs wishes.43 The most popular model of child representation is the best interest approach.44 About thirty states require that the person representing a child in a divorce case be a guardian ad litem, or an advocate for a childs best interests.45 Less than ten states, however, require the appointment of a client-directed attorney in divorce cases.46 In many cases, the role of a child representative is unclear.47 In the next section, I will discuss
41
A guardian ad litem is a person who advocates for a childs best interest and is not legally bound by the childs expressed wishes. A guardian ad litem can be an attorney or a non-attorney. A best interest attorney is another term, which is used to describe attorneys who represent the childs best interest. 42 See ABA Standards, supra note 21 at 2. 43 See Elrod, Right thing to Do, supra note 44 at 869. 44 Barbara Atwood, The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism, 42 Fam. L. Qtrly. 63, 73-75 (2008). 45 ABA Survey, supra note 14. 46 Id. 47 It is not always clear whether a childs representative is supposed to act as a best interest attorney or a client-directed attorney. Not all states have clear
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some of the arguments that have been given on behalf or against each form of representation. My goal is to seek out their underlying motivations. IIb. The Debate In what follows, I will present the arguments that proponents of each view of child representation use to justify their respective positions. Both views have important virtues and weaknesses. By clarifying both arguments, I hope to explain the underlying intuitions that support each model. In order to decide how children should be represented, there are several related factors to consider: how much weight should be given to a childs expressed preferences? Are children able to direct an attorney? How can it be ensured that children are placed in a good situation? Following a discussion of these questions, I will present arguments on behalf of the both types of representation, attempting to motivate each viewpoint, and make the issues in the debate clearer. Proponents of the best interest attorney are driven by the idea that the decisions made in custody disputes and other matters concerning children require an investigation into a childs life, a report of those investigations, and a suggestion of what would be best for the child. Best interest model proponents argue that their position is consistent with the assumption that children have not reached the competence and maturity that is needed for autonomous decisionmaking.48 It also is a more reasonable model when it comes to children who are not yet able to express their views and desires (e.g. infants or mentally handicapped children). Moreover, best interest attorney proponents argue that a
guidelines and the role of the representative is not always clearly determined when they are appointed. 48 Frances Gall Hill, Clinical Education and the Best Interest Representation of Children in Custody Disputes: Challenges and Opportunities in Lawyering and Pedagogy, 73 Ind. L. J. 605, 620-625 (1998).
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childs voice is not irrelevant, but that it would be overburdening for a child to have to make decisions concerning something like their custody.49 Children dont want to be put in that spot.50 And at least some child representatives ensure that the childs voice is listened to and taken into account, even if it is not dispositive.51 Another advantage of the best interest model is that the representative would not be obligated to the same attorney-client confidentiality that is required under traditional representation. As such, a lawyer could report abuse, even against their child clients wishes.52 This is an obvious asset to the best interest model in cases like the one described. Additionally, the best interest attorney aligns well with the best interest standard the judges method to deciding matters concerning children. Having an attorney objectively and accurately present a childs best interests would greatly aid judges in satisfying the best interests standard. As Katherine Federle points out, judges cannot know with a large degree of certainty that their decisions will be in the childs best interest and express great discomfort when making custody decisions.53 Having a representative support a certain decision based on a thorough investigation seems to mitigate that difficulty and make judges decision easier. At the end of the day, proponents of the best interest model want the best interest attorney to discern what would be in a childs best interest and advocate that to the court, so that a good outcome for the child can be reached. They are getting at something that seems to really matter in the end: that a child is safe, happy, and in a good place. Those who support the appointment of client-directed attorneys for children seem to be motivated by the idea that
49
Robert Emery, Hearing Childrens Voices: Listening and Deciding is an Adult Responsibility, 45 Ariz. L. Rev. 621 (2003). 50 Id. 51 Id. Also, see Hill, supra note 52 at 623. 52 Hill, supra note 52. 53 Federle, Looking for Rights supra note 8 at 1539.
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children are people with independent views and concerns54 and, as such, have the right to be heard and represented. Proponents of client-directed attorneys believe that those who support the best interests model overstate the incompetence of children.55 They argue that children, on the whole, are able to formulate reasonable views and aims, and that they can direct an attorney sufficiently.56 Moreover, they argue that giving a child a traditional, client-directed attorney effectively gives the child a meaningful voice in proceedings, whereas the best interests model does not.57 Proponents point out that best interests, in practice, are often ascertained without reference to a childs expressed preferences.58 It is also important to note that giving a child a voice does not mean that he or she plays the most decisive role in any case. Instead, their voice is taken into account like any other partys.59 Still, many proponents view the appointment of a client-directed attorney as a way to empower children and ensure that their needs and desires are taken into account.60 Another benefit of a judge hearing directly from a child is that the child can be considered an expert on his/her family. The child has a unique perspective on the relationships that he or she has with both parents, the qualities of both parents, and so on. This information can help a judge determine what arrangement would be in that childs best interest. In terms of negative arguments, proponents of
54 55
Elrod, Right Thing to Do, supra note 44 at 905. Katherine Federle, Childrens Rights and the Need for Protection, 34 Fam. L. Qtrly. 421, 440 (2000) (Herineafter Childrens Rights). 56 Id. (The concern that young children make bad decisions also seems misplaced. In my experience representing children, I cannot say that young children make bad decisions. Rather, they have expressed their hopes and desires clearly and, usually, quite sensibly.). 57 Katherine Federle, Righting Wrongs: A Reply to the Uniform Law Commissions Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act, 42 Fam. L. Qtrly. 103, 104 (2008). 58 Federle, Childrens Rights, supra note 59 at 427. Also, see SHEPHERD & ENGLAND, supra note 26 at 1925 (Problems involving attorney performance have also been characterized to belack of contact with the child contact.) 59 Id. at 440. 60 Katherine Federle, Looking Ahead: An Empowerment Perspective on the Rights of Children, 68 Temple L. Rev. 1585 (1995).
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the client-directed attorney model also argue that best interests are more of a myth than a guide.61 That is, it is impossible to determine what is in a childs best interest. Instead, having an attorney advocate for a childs best interest opens the door for the lawyers to advocate for their subjective values and views.62 For example, a homosexual mother or father might be denied custody of his/her children under the pretense of best interests.63 Overall, proponents of clientdirected attorneys believe that under the best interests model of representation, children are not taken seriously, are done a disservice by not being taken seriously, and are having their rights violated by not being heard by the court. PART III: PATERNALISM AND AUTONOMY IIIa. Understanding Our Intuitions Rather than arguing for one side or another, I hold that both models of child representation have important virtues and faults. In order to understand how to settle the issue, it is important to understand the fundamental intuitions underpinning each model of child representation and to also understand that both of these intuitions are acceptable in certain situations. I will argue that the best interest model and the client-directed model are fundamentally motivated by paternalistic impulses and a value or respect for autonomy, respectively.
61
See Raven Lidman & Betsy Hollingsworth, The Guadian Ad Litem in Child Custody Cases: The Contours of our Judicial System Stretched Beyond Recognition, 6 Geo. Mason L. Rev. 255 (1998). 62 SOBIE, supra 44 at 806. 63 There is sizable debate regarding whether homosexual behavior of a parent ought to be considered when determining the best interests of a child. There is obvious room for guardian ad litems to insert their personal views through situations like this. For a discussion of how homosexual parenting has factored in on courts decision-making see Lynn Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833 (1997); Steve Susoeff, Assessing Childrens Best Interests When a Parent is Gay or Lesbian: Toward a Rational Custody Standard, 32 UCLA L. Rev. 852 (1985).
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Paternalism can be defined as interference with a persons freedom in order to ensure the welfare or happiness of that person.64 Although paternalism often has a negative connotation,65 it is clear that some paternalistic behavior and laws are generally accepted by society. For example, people seem to accept seatbelt laws, anti-drug laws, or anti-suicide laws. It is generally held that people should not be able to use heroin or sell themselves into slavery.66 However, it is clear that some acts of paternalism are considered less acceptable. The restriction of junk food, alcohol, and gay marriage67 are more controversial examples of paternalism. The key source of objection to paternalistic behavior seems to be the value of autonomy, or freedom. It seems that the belief that a person is capable of rational decision-making also plays a key role in the debate. For example, even the most adamant anti-paternalist might think that society should not let a person engage in harmful behavior while he or she is intoxicated. The idea seems to be it is justifiable to engage in paternalistic behavior if someone is not able to make rational decisions on his or her own. This factor is important in the child representation debate. The debate concerning child representation is a practical application of the theoretical conflict between paternalism and self-determination. Best interest model proponents are motivated by the idea that that children are not mature or competent enough to direct an attorney in a way that will be
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Gerald Dworkin, Paternalism, 56 The Monist 65 (1972). David Shapiro, Courts, Legislatures, and Paternalism, 74 Va. L. Rev. 519, 519 (1988). 66 FEINBERG, supra note 69. 67 Gay marriage seems to be a paternalistic restriction on a constitutional right we have, the right to marry. See M.L.B v. S.L.J., 519 U.S. 102 (1996) (Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance to our societysheltered by the Fourteenth Amendment against the States unwarranted usurpation, disregard, or disrespect.).
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ensure their well-being.68 The Supreme Court showed this concern in Belotti v. Baird by noting the peculiar vulnerability of children and their inability to make critical decisions in an informed, mature manner.69 This explains the widespread use of best-interest attorneys over client-directed attorneys for children.70 Proponents of the best interest model propose that children should not make very important decisions on their own because they are incapable of fully understanding what will ensure their safety and well-being. Accordingly, proponents of the best interest model believe that children should be given an attorney to advocate for what their best interests really are, even if they are incapable of understanding those interests. The paternalistic impulse in this reasoning is clear: childrens autonomy must be restricted in order to protect them. Paternalism seems to be justified by the idea that children are not autonomous agents capable of rational or sensible deliberation. On the other hand, those who support the appointment of client-directed attorneys for children think that the incompetence of children is overstated and that the best interests model infringes on a childs ability to make their own choices and let those choices be heard by the court. Katherine Federle, for instance, states, The concern that young children make bad decisions also seems misplaced. In my experience representing children, I cannot say that young children make bad decisions. Rather, they have expressed their hopes and desires clearly and, usually, quite sensibly.71 The resulting intuition is that children do have the right to make their own
68
Thaddeus Pope, Balancing Public Health Against Individual Liberty: The Ethics of Smoking Regulations, 61 U. Pitt. L. Rev. 419, 464-466 (Discussion of paternalism with regard to children). 69 Belotti v. Baird, 443 U.S. 622, 634 (1979). 70 For a discussion concerning what courts have held with regard to childrens competence, see Richard Redding, Childrens Competence to Provide Informed Consent for Mental Health Treatment, 50 Wash. & Lee L. Rev. 695, 704-708 (1993). Redding points out that courts have long held that children are incompetent and not able to make sound decisions themselves. 71 Fedlere, Childrens Rights supra note 58.
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choices and a right to be heard in divorce proceedings. Denying them this right is an infringement on their liberties. IIIb. Competence In order to progress the debate on child representation, it must be determined whether children are sufficiently competent to make decisions. If children are not competent enough to make decisions regarding the matters being handled in divorce, then it seems that there is good reason to appoint a best interest attorney. Thus violating their autonomy may be justified. If children are capable of making reasonable decisions regarding the matters involved in divorce, then it seems that there is good reason to appoint a client-directed attorney. If this is true, not doing so would infringe on their autonomy. Practical experience tells us that at least some children are not capable of establishing and formulating opinions about certain matters. For example, a two-year-old cannot be expected to meaningfully participate in divorce hearings or direct an attorney.72 Some children in their teens, on the other hand, are clearly able to form preferences and engage in rational decision-making.73 Evidence shows that adolescents become increasingly self-reliant and more able to make decisions on their own.74 Justice William Douglas, in Wisconsin v. Yoder, cited a number of studies from which he concluded, There is substantial agreement among child psychologists and sociologists that the moral and intellectual maturity of the 14year-old approaches that of an adult.75
72
Jessica Cherry, The Child as Apprentice: Enhancing the Childs Ability to Participate in Custody Decisionmaking by Providing Scaffolded Instruction, 72 S. Cal. L. Rev. 811, 830 (1999). 73 Id. 74 Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 L. & Hum. Behav. 249, 254 (1996). 75 Wisconsin v. Yoder, 406 U.S. 205 (1972). Justice Douglas cited the following studies: J. Piaget, The Moral Judgment of the Child (1948); D. Elkind, Children and
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However, these findings have been questioned76 and there is evidence that some adolescents differ from adults. They are unwilling to seek advice, 77 impulsive,78 influenced by others easily,79 prone to engaging in dangerous or risky behavior,80 and have other tendencies that can impede their ability to make rational decisions. The Supreme Court in Graham v. Florida also noted important differences between adolescents and adults, citing research that suggests that brain development occurs until a persons mid-twenties.81 However, some studies suggest that children as young as nine are competent enough to make meaningful decisions regarding their future.82 Given the substantial disagreement over the competence of adolescents, it is no wonder that there is no definitive psychological, sociological, or legal statement about childrens competence altogether.83 Another important issue to consider is that there is clearly great variation among the mental capacities of children that are the same age.84 It seems to be a hopeless endeavor to determine a specific age at which children become sound,
Adolescents (1970); Kohlberg, Moral Education in the Schools: A Developmental View; R. Muuss, Adolescent Behavior and Society (1971); W. Kay, Moral Development (1968); A. Gesell & F. Youth, The Years from Ten to Sixteen (1956). 76 Many studies that report that adolescents show similar competence as adults focus on informed medical consent studies. For a summary of studies that conclude that children are competent and also a critical response to those studies, see Elizabeth Scott, Judgment and Reasoning in Adolescent Decisionmaking, 37 Vill. L. Rev. 1607, 1627 (1992). 77 STEINBERG & CAUFFMAN, supra note 82. 78 Id. at 262. 79 See Elizabeth Scott et al., Adolescent Decision Making in Legal Contexts, 19 L. & Hum. Behav. 221, 230 (1995). 80 Id. Also, see Academic Academy of Child and Adolescent Psychology, The Teen Brain: Behavior, Problem Solving, and Decision Making (2011). 81 Graham v. Florida, 560 U.S., 21-26 (2010). 82 See Lois Weithorn & Susan Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53 Child Development 1589 (1982) (Discussing the competence of children to make decisions concerning their health care.). This research has been extended to other legal debates concerning the competence of children. 83 See Federle, Looking for Rights, supra note 8 at 1529 (Federle lists literature which display the substantial disagreement over the competence of children). 84 Karen Saywitz, The Credibility of Child Witnesses, 10 Fam. Advocate 38, 39 (1988).
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autonomous agents since children develop at different rates. There is no easy answer concerning whether children, at a certain point, should be given a client-directed attorney rather than a best interest attorney. As such, the debate regarding child representation cannot be settled by empirical studies that determine competence. Rather, it is necessary to create a method of representation that can handle the inability to determine a general age at which children become competent. IV. POSSIBLE MODELS OF CHILD REPRESENTATION It has already been established that there are limitations to both the client directed and best interest models. So, what are the other options? One way to both protect and empower children in a reasonable manner would be to begin with a determination of competence.85 From that point, if a child is determined to be sufficiently competent, he or she would be given a client-directed attorney. If the child is determined to be incapable of meaningfully participating in the proceedings, he or she would be given a best interest attorney. However, determining competence is a difficult task.86 Moreover, it is doubtful that people would be able to agree on any test or measure of sufficient competence. Another possibility is a hybrid model, which both respects childrens rights and protects childrens interests. In a hybrid model, the attorney would advocate for a childs expressed wishes if they are able to express their wishes, while still presenting facts objectively to the court. Accomplishing both of these tasks would necessitate investigating a childs circumstances and meeting with the child to determine the childs wishes.
85
See Gerald Koocher, Different Lenses: Psycho-Legal Perspectives on Childrens Rights, 16 Nova L. Rev. 711 (1992) for a discussion about methods that are can be used to assess child competency. 86 CHERRY, supra note 80 at 835.
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In a practical situation, the hybrid attorney, could advocate for split custody on behalf of the child, while still noting the childs mother has been his primary caregiver throughout the childs life and that his father has a higher income. The attorney in this example advocates for a childs wishes while still noting facts relevant to the childs best interests. A situation where this might be pertinent would be a case where a child wants to live with an abusive parent. An attorney could advocate for the childs wishes while still presenting the fact, objectively, that the parent is abusive. Since the standard of judicial decision-making with regard to children is already the best interests standard, the judge will ultimately do what he/she believes is in the childs best interests. However, if a childs wishes are acknowledged, the judges decision might be more equitable. Rather than completely denying visitation to the abusive father, the court may be able to establish a legitimate legal avenue for that child to safely visit the parent. It is important to remember that the childs wishes do not force any arrangement to be made; the advocacy of a childs wishes ensures that the child is being heard and that his/her rights are not being violated. An objection to the hybrid model, is that attorneys could be placed in situations that would be ethically suspect.87 Hybrid attorneys may be unable to follow the Rules of Professional Conduct.88 For example, an adult client might not want his or her attorney to mention a detail in court that is damaging to his reputation or is humiliating. As a clientdirected attorney, the attorney would be obligated to grant the client his wish. However, under the hybrid model, the attorney would be required to share information with the court if that
87
The ABA rejected a hybrid model of representation because of the confusion and ethical tensions inherent in the blended professional roles. Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (2006). See Aditi Kotheka, Refocusing the Lens of Child Advocacy Reform on the Child, 86 Wash. U. L. Rev. 481, f.n. 52 (2008). 88 For a fleshing out of this worry see e.g. Barbara Fines, Pressures Toward Mediocrity in the Representation of Children, 37 Cap. U. L. Rev. 411, 444 (2008).
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information is relevant to the clients best interests. Attorneys dealing with different types of clients ought to be held to different ethical and professional standards. The confidentiality requirement that a traditional attorney faces should not apply to a childs hybrid attorney, since the court needs the attorney to present all the relevant evidence. There is no ethical dilemma as long as the child is aware that the attorney has this obligation. Another concern is that the hybrid model is confusing and could place attorneys in conflicting roles.89 This belief may have been formed due to the indeterminate hybrid models that some states currently use. Many states lack a clear suggestion of what role a child attorney should play. This leads to courts asking attorneys to play many roles at the same time, some of which may be conflicting. These problems can be solved be carefully laying out the responsibilities of the hybrid attorney. Additional worries that may arise concern the cost of hybrid representation and the ability of attorneys to play both of the roles involved in the hybrid model. As far as cost goes, some argue that having a better model of child representation would actually lower the costs of proceedings have to do with children.90 Regardless, the cost of adequate representation should not deter us from doing what is right for children. There are several other methods that might also reasonably respect childrens rights while still accounting for their interests. For example, children could be represented by a client-directed attorney and an expert who would present facts to the court concerning childrens best interests. Perhaps a psychologist would be better suited to determine factors that might be relevant in a decision of a childs best interest. The hybrid model that I have proposed is a model that respects both our paternalistic impulses and our value for autonomy and has other valuable features. Ultimately, any model of child
89 90
Id. HUSAIN, supra note 97 at 256-258.
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representation must respect both these two basic intuitions in order to create an adequate model of child representation. CONCLUSION In this article, I have considered a number of issues associated with child representation in divorce proceedings. It seems clear that attorneys should be appointed for children in divorce proceedings in order to ensure that the court is considering their needs and desires. When it comes to providing a representative to children, I have argued that both our paternalistic impulses and our respect for autonomy seem to be reasonable intuitions that need to be accounted for in order to create an acceptable model of child representation. A hybrid model of representation in which the hybrid attorney serves as a presenter of facts while also advocating for their clients wishes would account for both intuitions. Overall, I hope to have called attention to the need to change our current practices regarding child representation in divorce proceedings.
Arrested for Experiencing Homelessness:

The Criminalization of Homelessness in the United States and the Revolution of the Rhode Island Homeless Bill of Rights
By Cristina M. Semi*
Public order laws that criminalize life-sustaining behaviors when performed in public systematically disadvantage unsheltered individuals experiencing homelessness because they are compelled by their situation to necessarily perform such conduct in public. Historically, vagrancy laws were used to legally eliminate the presence of individuals experiencing homelessness from the public streets. Since courts have largely overturned these unconstitutional laws, many cities have resorted to criminalizing basic, life-sustaining behaviors, such as sleeping, sitting, lying, and camping. Though these laws utilize neutral language that applies to all citizens, the punitive value of the laws is truly only endured by unsheltered individuals experiencing homelessness. In early 2012, Rhode Island codified a solution to this epidemic. The Rhode Island Homeless Bill of Rights confers upon all individuals experiencing homelessness the right to move around in and freely use public spaces, but the statutes inclusion of the phrase in the same manner as any other person does not confront the current discrimination against individuals experiencing homelessness in relevant criminal law. Essentially, the Rhode Island law does not acknowledge the fact that any
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75 other person is not systematically disadvantaged by public order laws. While the Homeless Bill of Rights is certainly a step in the right direction towards legally addressing the criminalization of homelessness, the law does not go far enough. All states should look to Rhode Islands law as a legislative model, but should further develop this concept to explicitly challenge and eradicate the discrimination against individuals experiencing homelessness currently within many cities ordinance codes.
*Cristina M. Semi is a native of River Falls, Wisconsin. She is a member of the Class of 2014 at Hamline University in St. Paul, Minnesota, majoring in Legal Studies, with a triple minor in Communication Studies, Philosophy, and Russian Studies. She is also completing her Paralegal Certificate. She is the Student Leader of the Homelessness in the Heart of Our Country Washington, D.C. reflective service-learning spring break trip program. She has volunteered with the Project Homeless Connect program in Hennepin County, Minnesota, and is a student member of the National Coalition for the Homeless. Cristina has recently received the national Newman Civic Fellows Award for civic engagement from Campus Compact, as well as the Alison M. Durfey Memorial Scholarship for hunger and homelessness alleviation from Hamline University. Cristina hopes to become a public defender after graduating law school. In her spare time, she enjoys exercising, reading, and spending time with her friends and family.
Table of Contents INTRODUCTION I: HOMELESSNESS IN THE UNITED STATES II: PROBLEM: CRIMINALIZATION IIa. Discriminatory Laws IIb. Constitutionality of Laws III: SOLUTION: CRIMINALIZATION TERMINATION & HOMELESSNESS ERADICATION IIIa. Homeless Bill of Rights: IIIb. Additional, Extra-Legislative Measures: IV: OBJECTIONS: REASONS FOR PUBLIC ORDER LAWS
76 78 81 82 83 91 92 96 98
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V: CONCLUSION
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INTRODUCTION
Jill and her two children are currently experiencing homelessness in Atlantic City, New Jersey.1 After sweeping the floors of a local coffee shop in exchange for the ten dollars she needed to purchase diapers for her youngest child, Jill applied for ten jobs and continued her search for more affordable childcare so she may work longer hours, all to no avail. Jill has not slept for two days, and she and her children are exhausted. They were unable to find an open bed in a shelter and cannot afford a hotel room. They have no choice but to sleep on a patch of grass underneath a large tree in a local park. Jill knows that her behavior is illegal, but also knows that her family needs sleep to face the search for housing the next day.2 Jill and her children fall asleep under the tree, and are woken a few hours later by local law enforcement. Jill is cited for the ordinance violation and fined one thousand dollars, equivalent to one month of childcare. 3,4 Ordinances that criminalize life-sustaining activities necessary for individuals experiencing homelessness, like Jill and her family, disproportionately advantage such individuals when they have no other accommodation but the public streets.5 Traditional measures aimed at driving the homeless
1
Throughout this paper, the phrase people experiencing homelessness or homeless community will be used in opposition to the phrase the homeless, homeless people or homeless person. The experiencing homelessness wording semantically separates the experience of homelessness from a persons identity, as homelessness is not an identity but a period of time in a persons life. 2 Sleeping in streets, parks, or public places prohibited, Article VII: Prohibited/Illegal Conduct Generally, N.J. MUN. CODE 204-29 (2012). 3 Violations and Penalties, Article VII: Prohibited/Illegal Conduct Generally, N.J. MUN. CODE 204-301.1 (2012). 4 National Association of Realtors, Atlantic City, NJ, New Jersey Living Costs Index, REALTORMAG, http://living-costs.realtor.org/l/376/Atlantic-City-NJ (last visited May 8, 2013). 5 The focus of this paper will be on the plight of individuals experiencing homelessness on the public streets, without any other means of shelter (i.e. transient accommodation). Therefore, when individuals experiencing
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community from public sight included prohibitions on the state of being vagrant, but these were largely declared unconstitutional in the 1970s and 1980s.6,7 More current policies to address (prevent) the presence of individuals experiencing homelessness in public take the form of criminalizing activities necessary for them to perform. Such measures include enacting public order laws that make it unlawful to sleep, sit, or store belongings in public spaces.8 Making these specific activities unlawful only when performed in public makes it unavoidable for individuals experiencing homelessness to commit a crime every time they must perform such activities. Such laws criminalize the status of experiencing homelessness.9 Moreover, the criminalization of homelessness violates several constitutional rights.10 Despite the substantial backdrop of increasing municipal criminalization measures, in 2012, Rhode Island became the first state in the United States to codify a Homeless Bill of Rights that specifically addresses the rights of individuals experiencing homelessness in public.11,12 The Rhode Island Homeless Bill of Rights is a critical and significant step towards protection from unlawful criminalization measures. The Rhode Island law aims to prevent unnecessary disadvantage on the basis of housing status for individuals
homelessness are referenced, the individuals referred to are the individuals who experience homelessness unsheltered on the public streets. 6 See John B. Mitchell, Crimes of Misery and Theories of Punishment, 15 NEW CRIM. L. REV. 465, 468-471 (2012). 7 Juliette Smith, Arresting the Homeless for Sleeping in Public: A Paradigm for Expanding the Robinson Doctrine, 29 COLUM. J.L. & SOC. PROBS. 293, 301 (1996). 8 Mitchell, supra note 6, at 467. 9 Smith, supra note 7, at 293-95. 10 Maria Foscarinis et al., Out of SightOut of Mind?: The Continuing Trend Toward the Criminalization of Homelessness, 6 GEO. J. ON POVERTY L. & POLY 145, 156-157 (1999).
11
See National Law Center on Homelessness & Poverty, CRIMINALIZING CRISIS: ADVOCACY MANUAL 46 (2011).
12
R.I. Gen. Laws 34-37.1-3 (2012).
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experiencing homelessness.13 The Homeless Bill of Rights states that a person experiencing homelessness [h]as the right to use and move freely in public spaces . . . in the same manner as any other person.14 Despite the laws revolutionary challenge to the current anti-homeless paradigm, the inclusion of the phrase in the same manner as any other person only sustains the unequal treatment currently enforced and does not appropriately acknowledge, or challenge, the discrimination against those who must live on the public streets. States should look to the Rhode Island Homeless Bill of Rights and its accompanying laws as model legislation and adopt similar measures to combat the unlawful and discriminatory criminalization of life-sustaining activities. This article will address the criminalization of homelessness and will analyze the Rhode Island Homeless Bill of Rights as a solution. Part II will explore the history of laws that criminalize homelessness, and will survey the creation of current laws that disadvantage individuals experiencing homelessness. Part III will examine the criminalization of homelessness in more detail and will explain how such public order laws disproportionately disadvantage those experiencing homelessness. Part III will also illustrate how courts have addressed these issues. Finally, Part IV will evaluate the Rhode Island Homeless Bill of Rights and its accompanying legislation as a solution to the current criminalization paradigm, and will inquire what else must be done for states to appropriately challenge criminalization measures.
PART 1: HOMELESSNESS IN THE UNITED STATES

The experience of homelessness in the United States first gained significant public attention in the 1970s and
13 14
Id. Id.
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1980s.15 In the late 1970s, Americans began noticing more people sleeping in public places, wandering the streets with their possessions in shopping bags . . . . By January 1981 . . . a small group of activists led by Robert Hayes and Mitch Snyder had given these people a new namethe homeless.16 Unfortunate systematic socioeconomic circumstances caused by reductions in federal housing assistance programs largely made homelessness more widespread in the 1980s.17 Prior to the 1980s, homelessness often followed national upheaval.18 For example, during the Great Depression, homelessness was the result of nation-wide economic distress.19 As the current epidemic of homelessness seems resistant to national economic, social, and cultural trends, homelessness today is a phenomenon characterized by its transience, instability, and flux.20,21 The skid row epidemic as it is perceived today by the housed population as derived from the culmination of increasing public exposure to the homeless experience, combined with a growing sense of animosity towards those experiencing homelessness.22,23 Todays homelessness epidemic is also characterized by and defined as a spectrum of experience; homelessness is no longer homogenous.24 The legal definition of homelessness can be found in the first federal legislation to specifically construe homelessness as a national crisis, the Stewart B. McKinney
15
Maria Foscarinis, Homelessness in America: A Human Rights Crisis, 13 J. L. & Soc'y 515, 517 (2012). 16 CHRISTOPHER JENCKS, THE HOMELESS, v (1994). 17 Foscarinis, supra note 15, at 517. 18 HENNEPIN COUNTY & CITY OF MINNEAPOLIS COMMISSION TO END HOMELESSNESS, HEADING HOME HENNEPIN: THE TEN-YEAR PLAN TO END HOMELESSNESS IN MINNEAPOLIS AND HENNEPIN COUNTY 53 (2006). 19 Id. 20 Id. 21 MARTHA BURT ET AL., HELPING AMERICAS HOMELESS 2 (2001). 22 BRUCE G. LINK ET AL., Public Attitudes and Beliefs about Homeless People, in HOMELESSNESS IN AMERICA 143, 143 (Jim Baumohl ed., 1996). 23 Harry Simon, Towns Without Pity, A Constitutional and Historical Analysis of Official Efforts to Drive Homeless Persons From American Cities, 66 TUL. L. REV. 631, 647 (1992). 24 Donald Saelinger, Note and Comment, Nowhere to Go: The Impacts of City Ordinances Criminalizing Homelessness, 13 GEO. J. ON POVERTY L. & POLY 545, 547 (2007).
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Homeless Assistance Act of 1987.25 The Act utilizes a more expansive definition of homelessness which includes: those physically on the street, those living in facilities not intended for human habitation, and those who have shelter but are at risk of immediately losing whatever shelter they have.26 The definition of homeless children and youth also includes those who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason.27 Historically, loitering and vagrancy laws have been used to exile individuals experiencing homelessness from the public streets.28 Individuals experiencing homelessness could violate vagrancy laws simply by appearing vagrant in public, or as vagrancy laws generally expressed, by being unemployed when one had the capacity to be employed.29 Courts have since largely overturned vagrancy laws, finding that they punish the status or condition of being vagrant.30 Measures to extirpate poverty-stricken individuals from public sight date back to the fourteenth century,31 but criminalization as it is used today refers to practices developed in the 1970s and 1980s.32 The invalidation of vagrancy laws during this time consequently proscribed localities from explicitly prohibiting the unwelcome poor.33 Today, the criminalization of homelessness refers to enacting legislation that prohibits specific life-sustaining activities such as sleeping, sitting, or storing personal belongings in places
25
This legislation is now known as the McKinney-Vento Homeless Assistance Act of 1987. Foscarinis, supra note 14, at 518. 26 42 U.S.C. 11302 (2006). 27 42 U.S.C. 11434a (2) (B) (i) (2006). 28 Smith, supra note 7, at 301. 29 Id. at 302. 30 Pottinger v. City of Miami, 810 F. Supp. 1551, 1562 (S.D. Fla. 1992) (discussing the subsequent judicial ramifications of Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962)). 31 Casey Garth Jarvis, Homelessness: Critical Solutions to a Dire Problem; Escaping Punitive Approaches by Using a Human Rights Foundation in the Construction and Enactment of Comprehensive Legislation, 35 W. ST. U. L. REV. 407, 413 (2008). 32 See Simon, supra note 24, at 645-47. 33 See id.
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where people are forced to exist without shelter.34 As the definition of criminalization suggests, these city-level ordinances include prohibitions on sleeping, camping, sitting, lying, loafing, and obstruction of public thoroughfares.35,36,37,38,39,40,41
PART 2: PROBLEM: CRIMINALIZATION

Criminalization measures raise several social and legal concerns. First, public order laws disproportionately apply to individuals experiencing homelessness.42,43 While they restrict behavior that is merely optional for housed citizens to perform in public, anti-homeless laws criminalize behavior that is necessary for individuals experiencing homelessness to perform in public.44 The criminalization of homelessness also violates several constitutional rights.45 Criminalization measures in the form of police sweeps violate the Fourth Amendments protection against unlawful searches and
34
NATL LAW CTR. ON HOMELESSNESS AND POVERTY, COMBATING THE CRIMINALIZATION OF HOMELESSNESS: A GUIDE TO UNDERSTAND AND PREVENT LEGISLATION THAT CRIMINALIZES LIFE-SUSTAINING ACTIVITIES 3 (2002). 35 See e.g., ATLANTIC CITY, N.J., MUN. CODE 204-29 (2012), http://www.ecode360.com/AT0848. 36 See e.g., PORTLAND, OR., MUN. CODE 14A.50.020 (2012), http://www.portlandonline.com/auditor/index.cfm? c=28148. 37 See e.g., SEATTLE, WASH., MUN. CODE 15.48.040 (A) (2012), http://library.municode.com/index.aspx?clientId= 13857. 38 See e.g., HOUS., TEX., MUN. CODE 40-352 (2012), http://library.municode.com/index.aspx?clientId=10123. 39 See e.g., BOISE, IDAHO, MUN. CODE 9-10-05 (2012), http://cityclerk.cityofboise.org/city-code/. 40 See e.g., LAS VEGAS, NEV., MUN. CODE 10.47.020 (2012), http://library.municode.com/index.aspx?clientId= 14787. 41 NAT'L LAW CTR. ON HOMELESSNESS & POVERTY & NAT'L COAL. FOR THE HOMELESS, HOMES NOT HANDCUFFS: THE CRIMINALIZATION OF HOMELESSNESS IN U.S. CITIES 165 (2009). 42 These discriminatory laws, manifestations of the criminalization of homelessness, will often be referred to as anti-homeless laws or public order laws. 43 JUDITH LYNN FAILER, Homelessness in the Criminal Law, in FROM SOCIAL JUSTICE TO CRIMINAL JUSTICE: POVERTY AND THE ADMINISTRATION OF CRIMINAL LAW 248, 253-55 (William C. Heffernan & John Kleinig eds., 2000). 44 Id. 45 Foscarinis, supra note 10, at 156-157.
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seizures when law enforcement unreasonably interferes with homeless individuals expectation of privacy.46 Furthermore, vague and overbroad anti-homeless laws violate the individuals due process rights under the Fifth and Fourteenth Amendments when they encourage punishment of inherently innocent and inoffensive conduct.47 Public order laws such as prohibitions against sleeping, sitting, lying, and camping in public spaces also violate the Fifth and Fourteenth Amendments because they encourage selective, therefore arbitrary and discriminatory, police enforcement.48 Public order laws essentially grant police greater, often unnecessary power, to determine what is lawful and what is not, thereby violating individuals rights to due process of the law.49 Finally, anti-homeless laws criminalize conduct inseparable from the status of being homeless in violation of the Eighth Amendments protection from cruel and unusual punishment.50 IIa. Discriminatory Laws Criminalization measures burden individuals experiencing homelessness by denying them the full capacity to live their lives on the basis of their status of experiencing homelessness. Anti-homeless laws prohibit behavior performed in public that would otherwise be lawful if performed in the comfort of ones own home.51 As individuals
46 47
Pottinger v. City of Miami, 810 F. Supp. 1551, 1570-73 (S.D. Fla. 1992). Id. at 1575. 48 Maya Nordberg, Jails Not Homes: Quality of Life on the Streets of San Francisco, 13 HASTINGS WOMEN S L.J. 261, 279-80 (2002). 49 See Pottinger, 810 F. Supp. at 1576. 50 Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2006). 51 See infra note 107 and accompanying text regarding the implications of consuming alcohol in ones own home compared to individuals who lack private accommodation. Under a paradigm of criminalization, housed individuals may legally consume alcohol in their home. Unsheltered individuals experiencing homelessness, however, have no such accommodation and are forced to drink in public. Suddenly, the otherwise legal practice of consuming alcohol becomes unlawful simply because an individual is experiencing homelessness.
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experiencing homelessness have no home in which to perform such acts, they are forced to perform them in the street, where the actions are suddenly unlawful. 52,53 Housed individuals can choose whether to perform such acts as sleeping, sitting, and lying in public, but individuals experiencing homelessness have no such choice.54,55 In response to augmenting challenges to the unequal application of anti-homeless laws, cities have amended existing ordinances or have enacted new litigation proof laws meant to apply to a broader population.56 Such measures include only enforcing certain laws, specifically sleeping and camping in public spaces, during certain hours of the day or in certain places of the city.57 Cities and states have also broadened the language of loitering and begging laws to include prohibitions against many forms of solicitation, focusing on the conduct versus status aspect of such laws applicability.58 Though the broader language of anti-homeless laws has increased their apparent legality by refraining from explicitly targeting specific social groups, the laws application still disproportionately disadvantages individuals experiencing homelessness.59,60 IIb. Constitutionality of Laws
52
Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 30001 (1991). 53 Id. at 315. 54 Moreover, a housed individuals choice to sleep, sit, or lie in a public space is not based on a need to survive, whereas individuals experiencing homelessness must necessarily perform these unlawful but life-sustaining behaviors in public in order to survive. 55 Failer, supra note 43, at 255. 56 Maria Foscarinis, Homelessness and Human Rights: Towards an Integrated Strategy, 19 ST. LOUIS U. PUB. L. REV. 327, 340 (2000). 57 Id. 58 Id. 59 Failer, supra note 43, at 253. 60 Though anti-homeless laws theoretically apply to and restrict the behavior of all citizens alike, the enforcement of anti-homeless laws truly disadvantages only the homeless community. Id. at 254-55.
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In addition to being inherently discriminatory and prejudicial, criminalization measures are also legally problematic.61,62 Over the past few decades, suits have been brought against municipalities, appealing to various legal theories, including status and vagueness, and on various constitutional grounds, including the Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and the Fourteenth Amendment.63, 64, 65, 66, 67,68 Taken together, these conclusions show that both the enactment and enforcement of antihomeless laws are suspect because they violate several constitutional rights.69 Fourth Amendment Though anti-homeless laws themselves do not explicitly delegate search and seize practices, the enforcement of such laws often results in unlawful searches and seizures.70 The seizure and subsequent destruction of individuals
61
Jennifer E. Watson, Notes, When No Place is Home: Why the Homeless Deserve Suspect Classification, 88 IOWA L. REV. 501, 519-20 (2003). 62 See Tami Iwamoto, Adding Insult to Injury: Criminalization of Homelessness in Los Angeles, 29 WHITTIER L. REV. 515, 529-30 (2007). 63 Robinson v. California, 370 U.S. 660, 82 (1962). See Anderson v. City of Portland, No. 08-1447-AA, WL 2386056 (D. Or. July 31, 2009). See also Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd, 61 F.3d 442 (5th Cir. 1995). See also In re Eichorn, 81 Cal. Rptr. 2d 525 (Cal. Ct. App. 1998). 64 Kolender v. Lawson, 461 U.S. 352, 103 (1983). See also Grayned v. City of Rockford, 408 U.S. 104, 92 (1972). 65 Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger v. City of Miami, 810 F. Supp. 1551 (1992). 66 Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000). See Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger, 810 F. Supp. 1551. 67 Ingraham v. Wright, 430 U.S. 651, 97 (1977). See also Robinson, 370 U.S. 660. See also Joel, 232 F.3d 1353; Anderson, No. 08-1447-AA. See also Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd, 61 F.3d 442 (5th Cir. 1995). See also Pottinger, 810 F. Supp. 1551. See also Eichorn, 81 Cal. Rptr. 2d 525. 68 Robinson, 370 U.S. 660. See also Joel, 232 F.3d 1353. See also Anderson, No. 08-1447AA. See also Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger, 810 F. Supp. 1551. 69 Foscarinis et al., supra note 10, at 156. 70 See Simon, supra note 24, at 634.
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experiencing homelessness personal property is, unfortunately, too common a practice under the criminalization of homelessness.71 For example, in 2008, two individuals experiencing homelessness stored their belongings on a public street, taking precaution not to obstruct the public thoroughfare.72 When the individuals went to retrieve their belongings one day, they found a notice of illegal camping, listing the address of the location wherein their property was held.73 When they went to the address, several clothing items and family photographs, among other personal possessions, including ashes of a deceased parent, were missing.74 The only belongings that remained were a few items of wet and moldy clothing.75 Because individuals experiencing homelessness must live in public, their property is at a significantly greater risk of public exposure than individuals who are able to store their belongings in the comfort of their home. Due to public exposure, individuals experiencing homelessness often mark their property with signs of possession, such as covering their property with a blanket, or organizing it and leaning it against a tree.76 Such measures distinguish their property from property that is truly abandoned.77 However, because their property is necessarily in public, it is more likely to be mistaken for abandoned property, and is often confiscated during police property sweeps that enforce anti-homeless laws.78,79 Anti-homeless laws therefore make it more likely that
71
Shirley D. Howell, Please Dont Feed the Homeless: Pottinger Revisited, 3 MOD. AM. 15, 16 (2007). 72 Anderson v. City of Portland, No. 08-1447-AA, WL 2386056, *2-*3 (D. Or. July 31, 2009). 73 Id. 74 Id. 75 Id. 76 See Pottinger v. City of Miami, 810 F. Supp. 1551, 1571 (S.D. Fla. 1992). 77 Id. 78 Id. 79 S ee Maria Foscarinis, Advocating for the Human Right to Housing: Notes From the United States, 30 N.Y.U. REV. L. & SOC. CHANGE 447, 469-70 (2006). During such sweeps,
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homeless individuals property will be unlawfully taken during an enforcement sweep. Property seizures are lawful, provided that they do not violate the Fourth Amendment by interfering with individuals possessory interests.80 Though their property is axiomatically always in public, individuals experiencing homelessness nonetheless have a reasonable and substantial privacy interest in their property.81 The property of individuals experiencing homelessness typically exhibits possessory characteristics by its organization, containment, and arrangement.82 Such characteristics distinguish the individuals property from dispossessed and abandoned property, thereby establishing the necessary possessory interest of individuals experiencing homelessness.83 Cities that allow property sweeps in order to maintain aesthetic standards do not have a substantially greater interest in seizing the property of individuals experiencing homelessness than the possessory interest homeless individuals have in retaining their property.84 Measures to search and seize homeless individuals property in order to maintain aesthetic standards therefore violate the Fourth Amendment.85 Fifth & Fourteenth Amendments The criminalization of homelessness also occurs when anti-homeless laws punish inherently innocent and inoffensive conduct.86 These laws violate homeless individuals due process rights under the Fifth and Fourteenth Amendments.87
police often destroy not only the inhabitants temporary shelters, but also much of their personal property. Lisa M. Kline, Comment. 80 Pottinger, 810 F. Supp. at 1570-71. 81 Id. at 1571. 82 See id. at 1571. 83 Id. at 1571. 84 See id. at 1571-72. 85 Id. at 1573. 86 Id. at 1575. 87 Id.
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Conduct such as sleeping, sitting, and lying is inherently innocent and inoffensive, violating no others rights, when performed in the comfort of ones own home.88 Though individuals experiencing homelessness must necessarily perform such conduct in public, this fact does not make the conduct any less innocent.89 Unconstitutionally vague and overbroad anti-homeless laws that prohibit such inherently innocent conduct thus violate the due process rights of individuals experiencing homelessness.90 Vague and overbroad anti-homeless laws also violate due process rights because they allow and encourage selective and arbitrary police enforcement.91 In 1972, the Supreme Court invalidated a city vagrancy ordinance because it prohibited inherently innocent and inoffensive conduct, and thereby encourage[d] arbitrary and erratic arrests and convictions.92 Under such a vague ordinance that only increase[d] the arsenal of the police, those convicted [could] be punished for no more than vindicating affronts to police authority . . . .93,94 Furthermore, vague anti-homeless laws that prohibit broad and general conduct performed in public may encourage police discretion in determining what constitutes minor street disorder. 95 This may therefore promote selective and discriminatory enforcement upon marginalized others.96 Eighth Amendment
88
See id. at 1577. See id. Municipalities overstep their constitutional power when they enact overbroad laws that punish essentially innocent and inoffensive conduct, such as sleeping, sitting, and lying in public. Id. at 1575-76; see also State v. Penley, 276 So.2d 180, 181 (Fla. Dist. Ct. App. 1973). 91 Nordberg, supra note 49, at 279-80. 92 Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843 (1972). 93 Id. at 165. 94 Id. at 166-67. 95 Nordberg, supra note 49, at 280. 96 Id.
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Anti-homeless laws that criminalize the status of experiencing homelessness violate the Eighth Amendments protection from cruel and unusual punishment.97 By prohibiting conduct that is inseparable from the status of experiencing homelessness, such as sleeping, sitting, lying, and camping in public, anti-homeless laws criminalize the status from which such conduct is derived.98 Anti-homeless laws therefore criminalize the status of experiencing homelessness when there are no other adequate alternatives, violating the Eighth Amendments Cruel and Unusual Punishment Clause.99,100 The protection from criminalizing status has manifested into what is now known as the Robinson Doctrine, a principle that arose in Robinson v. California (1962).101,102 In Robinson, the Supreme Court deemed unconstitutional a state statute outlawing narcotic addiction. The decision held that the statute criminalized the status of addiction.103 The Robinson Court equated addiction with illness, ruling that a state law which imprisons a person thus afflicted as a criminal, even though he has never . . . been guilty of any irregular behavior . . . inflicts a cruel and unusual punishment . . . . Even one day in prison would be a cruel and unusual punishment for the crime of having a common cold.104 Accordingly, the criminalization of homelessness criminalizes the status of experiencing homelessness by criminalizing conduct inextricably linked to this status. The United States Supreme Court has not yet ruled on the applicability of conduct when it is inextricably linked to status,
97
Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2006), vacated on other grounds, 505 F.3d 1006 (9th Cir. 2007). 98 Id. 99 Id. 100 Id. 101 Smith, supra note 7, at 294. 102 Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962) 103 Id. at 666-67. 104 Robinson, 370 U.S. at 667.
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but several courts have discussed the issue in dicta, ruling that conduct inextricably linked to status is at least significant for Eighth Amendment analysis.105 In Powell v. Texas, a case similar to Robinson, the Court upheld a statute prohibiting drunkenness in public. The Powell Court reasoned that the law in question was constitutional because it punished conduct separate from status.106 However, the Court did not address the implications of the law if applied to individuals without shelter, but Justice White addresses the act of being drunk in public as it would apply to individuals experiencing homelessness in his concurring opinion: The fact remains that some chronic alcoholics must drink and hence must drink somewhere. Although many chronics have homes, many others do not. For all practical purposes the public streets may be home for these unfortunates, not because their disease [alcoholism] compels them to be there, but because, drunk or sober, they have no place to go and no place else to be when they are drinking . . . . For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. As applied to them this statute is in effect a law that which bans a single act for which they may not be convicted under the Eighth Amendmentthe act of getting drunk.107 Justice Whites concurring opinion illustrates the connection between conduct and status in the case of homelessness: though laws may prohibit certain conduct, not status, anti-homeless public order laws categorically apply to individuals experiencing homelessness only because of their
105
See Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated on other grounds, 505 F.3d 1006 (9th Cir. 2007); Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992). See also, cf. Powell v. Texas, 392 U.S. 514 (1968) (White, J., concurring). 106 Powell v. Texas, 392 U.S. 514, 531-33, 88 S. Ct. 2145, 2154-55 (1968). 107 Powell, 392 U.S. at 551 (White, J., concurring).
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status (the status of experiencing homelessness). In any other case, the law in question is otherwise valid, but when applied to individuals who must live on the street because they have nowhere else they can be, the laws criminalize their inability to perform the conduct anywhere else but in public. Some courts have found that sleeping, sitting, lying, and camping are acts distinct from the status of experiencing homelessness.108 Such courts, however, have not addressed the factor that distinguishes the plight of homelessness from the privilege of secure housing: the fact that individuals experiencing homelessness have no realistic choice but to live in public places.109 Individuals who are unavoidably criminalized are often afforded eighth amendment protection if they pass a three-part test, established in Pottinger v. City of Miami (1992).110 In Pottinger, U.S. District Court for the Southern District of Florida ruled, inter alia, that the city of Miamis practice of arresting individuals experiencing homelessness for sleeping, standing, and congregating violated the Eighth Amendment.111 The three-part test determines whether homelessness is appropriately deemed a status in any given case. 112 First, courts must ask, are plaintiffs involuntarily experiencing homelessness? Second, do plaintiffs have available to them nonpublic places to carry out the punished activities? Third, are the activities being punished involuntary?113 If, according to the Pottinger court findings, the composite answer is yes, then the law in question violates the Eighth Amendment.114
108
Pottinger v. City of Miami, 810 F. Supp. 1551, 1563 (S.D. Fla. 1992). Id. 110 Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992). 111 Pottinger, 810 F. Supp. 1551. 112 Maria Foscarinis, Downward Spiral: Homelessness and its Criminalization, 14 YALE L. & POLY REV. 1, 43 (1996). 113 Id. 114 Id.
109
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Typically, however, Eighth Amendment protection only extends to individuals experiencing homelessness when city resources such as attainable and affordable low-income housing or reasonable alternative forms of shelter are deficient or inadequate.115 This is because the lack of affordable or attainable alternatives prevents individuals experiencing homelessness from performing such prohibited acts in any place except the public streets.116 In these instances when cities lack adequate alternatives, individuals experiencing homelessness have no choice but to perform the prohibited actions in public and risk the probability of criminalization.117 The criminalization of homelessness is a pervasive practice of criminalizing innocent, life-sustaining behaviors necessary for unsheltered individuals experiencing homelessness to perform. Anti-homeless laws discriminatorily apply only to those experiencing homelessness despite the claim that they have been enacted to regulate the collective population. In addition, the implementation and enforcement of anti-homeless laws violate the protections under the Fourth, Fifth, Eighth, and Fourteenth Amendments when individuals experiencing homelessness have no choice but to perform prohibited conduct in public due to lack of adequate alternatives.
PART 3: SOLUTION: CRIMINALIZATION TERMINATION & HOMELESSNESS ERADICATION

States should not only enact legislation similar to the Rhode Island Homeless Bill of Rights and its accompanying legislation, but should go farther to acknowledge and combat the discriminatory nature of criminalization measures through legislation. States should also employ additional, extralegislative efforts that would develop community-based
115
Pottinger,, 810 F. Supp. at 1564. Id. 117 Id. at 1564-65.

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solutions to end homelessness. As a solution to the criminalization of homelessness, the Rhode Island Homeless Bill of Rights and its accompanying legislation appropriately challenge and provide protection from unlawful searches and seizures, due process deprivations, as well as issues revolving around the criminalization of the status of experiencing homelessness. However, the Rhode Island law does not effectively address the discriminatory nature of criminalization measures, nor does it explicitly address the potential for selective and discriminatory police enforcement. IIIa. Homeless Bill of Rights States should enact Homeless Bills of Rights that follow the inclusive and solution-orientated approach modeled in Rhode Islands Homeless Bill of Rights. Within the Homeless Bills of Rights, states should also include legislation similar to that of Rhode Islands Homeless Bill of Rights. Enacting Homeless Bills of Rights and accompanying legislation will reduce the probability of violating the constitutional rights of individuals experiencing homelessness, and will also exhibit an attitude of non-tolerance to municipalities towards selective and discriminatory enforcement of anti-homeless municipal laws. The Rhode Island Homeless Bill of Rights (2012) is a significant advancement in the area of homelessness legislation, and substantially challenges discriminatory criminalization measures. Apart from the McKinney-Vento Homeless Assistance Act of 1987, few other legislative acts have addressed the issue of homelessness so explicitly and comprehensively.118 Until the Rhode Island law, the purposes of these acts had been to predominantly address housing issues, and few to none had addressed the rights of the homeless
118
Foscarinis, supra note 54, at 331.
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community in public.119 The Rhode Island Bill of Rights is the first major legislative action on the state level to explicitly address the comprehensive rights of the homeless community, including rights in public as well as in obtaining housing and employment. The Rhode Island Homeless Bill of Rights is an important advancement in the way a community responds to homelessness because it acknowledges the vulnerability of individuals experiencing homelessness who must live in public. Specifically, the Rhode Island law declares, no person should suffer unnecessarily or be subject to unfair discrimination based on his or her homeless status.120 According to the Homeless Bill of Rights, A person experiencing homelessness . . . has the right to use and move freely in public spaces, including, but not limited to, public sidewalks, public parks, public transportation and public buildings, in the same manner as any other person, and without discrimination on the basis of his or her housing status . . . ; has the right to equal treatment by all state and municipal agencies, without discrimination on the basis of housing status . . . ; has the right to a reasonable expectation of privacy in his or her personal property to the same extent as personal property in a permanent residence.121 Rhode Island has enacted additional legislation regarding rights in public places that simultaneously support these rights affirmed to the homeless community. Generally, [a]ll persons . . . shall be entitled to the full and equal accommodations, advantages, facilities, and privileges of any place of public accommodation . . . .122 Furthermore, [n]o
119
Id. R.I. Gen. Laws 34-37.1-3 (2012). 121 Id. at 316 (1). 122 R.I. Gen. Laws 11-24-1 (2012).
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person . . . shall directly or indirectly refuse, withhold from, or deny to any person . . . any of the accommodations, advantages, facilities, or privileges of that public place.123 Finally, the phrase places of public accommodation as it is construed in Rhode Island state law includes but is not limited to rest rooms, bath houses, . . . amusement and recreation parks, . . . boardwalks, and public libraries; . . . public halls and public elevators . . . ; and . . . public housing projects.124 Taken together, these laws indicate that individuals experiencing homelessness are guaranteed various protections against discrimination on the basis of their housing status. Specifically, individuals experiencing homelessness have several explicit rights to freely be in public spaces, use public facilities, and enjoy public accommodations free from civilian interference. Rhode Islands accompanying legislation further confirms the legitimacy of the presence of individuals experiencing homelessness in public spaces. The legislation prohibits any other person from denying an individual, experiencing homelessness or not, the accommodations and benefits of any public space.125 The legislation also affirms that individuals experiencing homelessness are allowed to be in public spaces that housed citizens might deny to homeless individuals, such as recreational parks, libraries, and boardwalks.126 This accompanying legislation serves as a supplementary guarantee that individuals experiencing homelessness have the freedom to be in public spaces that is equal to the freedom granted to housed individuals. The Rhode Island Homeless Bill of Rights and its accompanying legislation effectively address and solve several problems created by the criminalization of homelessness. First, the legislation assures that individuals experiencing homelessness have a possessory interest in their personal
123
R.I. Gen. Laws 11-24-2 (2012). R.I. Gen. Laws 11-24-3 (2012). 125 11-24-2. 126 R.I. Gen. Laws 11-24-1. See also R.I. Gen. Laws 11-24-3.
124
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property that is equal to the possessory interests of those who are housed in a permanent home.127 This measure protects individuals experiencing homelessness from unlawful searches and seizures simply because their possessions necessarily must always be in public. The Rhode Island Homeless Bill of Rights and its accompanying legislation also protects individuals experiencing homelessness from vaguely worded laws that collectively disadvantage individuals experiencing homelessness. The Rhode Island law explicitly states that all individuals experiencing homelessness are allowed to be in public to the same extent that all others are allowed to be in public.128 This language thereby protecting individuals experiencing homelessness from vaguely worded public order laws that that prohibit conduct inseparable from the status of experiencing homelessness such as general presence in public and innocently roaming public streets. Laws prohibiting sleeping, sitting, lying, and camping are thereby either limited or invalidated to allow individuals experiencing homelessness to freely use public space without discrimination on the basis of their housing status. States should therefore enact Bill of Rights legislation that models the inclusive humanitarian attitude written into the Rhode Island Homeless Bill of Rights and its accompanying legislation. By enacting state statutes that explicitly allow homeless individuals to use public spaces like housed members of society, states can reduce the potential to violate the civil rights of the homeless community. Moreover, prohibiting discrimination on the basis of housing status, specifically regarding the use of public accommodations, states can demonstrate a policy of non-tolerance towards prejudicial enforcement of anti-homeless laws.
127 128
R.I. Gen. Laws 34-37, 1-3 (7) (2012). R.I. Gen. Laws 34-37, 1-3 (1) (2012).
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Enacting a Homeless Bill of Rights will challenge the criminalization of homelessness by actively combating discriminatory legislation to prevent civil rights violations. More importantly, however, enacting Homeless Bills of Rights will allow states and municipalities to more effectively address homelessness in general. Under the current anti-homeless paradigm, the resources used to enforce laws that perpetuate the cycle of criminalization for committing crimes that only sustain a homeless individuals life, such as sleeping, sitting, and lying in public, waste energy that could be used for more meaningful purposes.129 Current anti-homeless laws thus divert the attention of authorities away from homelessness elimination, preventing them from developing long-term solutions to end homelessness. Homeless Bills of Rights would limit or invalidate anti-homeless laws, allowing states and municipalities to focus on developing solutions to end homelessness that address both the imminent and permanent needs of the homeless community.130 Ultimately, policing areas of the city to maintain public health and order does not contribute to what should be the overarching goal of eliminating homelessness. IIIb. Additional, Extra-Legislative Measures In addition to a Homeless Bill of Rights that includes provisions similar to Rhode Islands accompanying legislation, states should also enact additional social policies, including increasing social services and transitional and permanent aid efforts, to supplement legislation. Supplemental efforts will not only acknowledge and combat the discrimination borne by individuals experiencing homelessness, but will also contribute to the focal goal of eliminating homelessness.
129 130
Nordberg, supra note 49, at 298. See NATL LAW CTR. ON HOMELESSNESS & POVERTY, supra note 11, at 46.
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While Rhode Island has made significant progress regarding the ability of individuals experiencing homelessness to live their lives in public without facing criminalization, the Homeless Bill of Rights does not go far enough as to properly challenge the discriminatory disadvantage the current antihomeless laws place on individuals experiencing homelessness. Though the Rhode Island law states that such individuals have the right to use and move freely in public spaces, the inclusion of this phrase does not acknowledge the fact that any other person (i.e., a person with permanent and adequate housing) is not systematically and disproportionately disadvantaged by laws prohibiting sleeping, camping, sitting, lying, loafing, and obstruction of public thoroughfares.131 States therefore should go farther to extend Rhode Islands law by acknowledging the disadvantage that the enforcement of selected public order laws place on the community of unsheltered individuals experiencing homelessness.132 This would involve minimizing police regulation and emphasizing social services and permanent aid efforts while at the same time providing an environment in which housed citizens feel comfortable and safe. 133,134 One such solution explored by the Pottinger court involved keeping the anti-sleeping laws, but allowing individuals experiencing homelessness to remain in a limited area instead of banishing them from the park entirely.135 This measure would have maintained the citys interest in preventing crime in public parks while removing the disadvantage to individuals experiencing homelessness of risking arrest for being in a park.136 By employing such policies, cities can maintain their interest in public health and order, whilst preserving the rights
131
R.I. Gen. Laws 34-37,1-3 (2012). Such as sleeping, camping, sitting, lying, loafing, and obstruction. Nordberg, supra note 49, at 301; see also id. 134 See Andrew J. Liese, Note, We Can Do Better: Anti-Homeless Ordinances as Violations of State Substantive Due Process Law, 59 VAND. L. REV. 1413, 1449 (2006). 135 Pottinger v. City of Miami, supra note 76, at 1551, 1583. 136 Id.
132 133
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of individuals experiencing homelessness who have no other alternative.137 Some laudable jurisdictions have enacted these types of socially-rooted efforts and have developed concrete plans to end homelessness. The federal government created the Interagency Council on Homelessness, which in 2010 published the National Plan to Prevent and End Homelessness.138 The Plan prescribes an increase in leadership, collaboration, and civic engagement. It also calls for increasing to stable and affordable housing, increasing economic security, improving health and stability, and retooling the homeless crisis response system.139 States and municipalities should implement plans on local levels similar to the comprehensive federal plan to supplement Homeless Bills of Rights. One notable example of such implementation is the city of Minneapolis and Hennepin County, Minnesota. Hennepin Countys ten-year plan includes an Outreach Collaborative system that connects homeless individuals to social services in order to eliminate involvement with the police and the criminal justice system.140 Efforts such as those of the federal government and Hennepin County remove the emphasis from policing practices and place it on meeting the needs of individuals experiencing homelessness. Moreover, such efforts would beneficially supplement states enactment of Homeless Bills of Rights to terminate criminalization and eradicate homelessness. PART 4: OBJECTIONS: REASONS FOR PUBLIC ORDER LAWS
137
See id. National Law Center on Homelessness & Poverty, CRIMINALIZING CRISIS: ADVOCACY MANUAL 8 (2011). 139 UNITED STATES INTERAGENCY COUNCIL ON HOMELESSNESS, OPENING DOORS: FEDERAL STRATEGIC PLAN TO PREVENT AND END HOMELESSNESS 26 (2010). 140 HENNEPIN COUNTY & CITY OF MINNEAPOLIS COMMISSION TO END HOMELESSNESS, HEADING HOME HENNEPIN: THE TEN-YEAR PLAN TO END HOMELESSNESS IN MINNEAPOLIS AND HENNEPIN COUNTY 21-22 (2006), available at http://www.co.hennepin.mn.us/.
138
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Those in favor of retaining anti-homeless laws appeal to several justifications for the practice, including maintaining a communitys quality of life, promoting a communitys economic flourishing, and preserving a communitys public health and safety.141 While these may be laudable and desirable community aspirations, criminalizing homelessness does not actualize these goals.142 Crimes that fall under the quality-of-life category typically prohibit nuisance-type behaviors and are commonly in the form of sleeping ordinances.143 Efforts to police these activities aim to deter street crime.144 Criminalizing sleeping, sitting, lying, and camping in public does not deter individuals experiencing homelessness from committing the acts in the future if those individuals have absolutely nowhere private to sleep, sit, lie, or camp.145 Moreover, quality-of-life ordinances do not eliminate such criminal behavior from the streets.146,147 After the individuals are cited, and often jailed for failure to pay the fine, they have no choice but to return to the street where they will continue to violate the law until they acquire private, permanent shelter in which they can perform the behaviors legally.148 Another reason to regulate behavior in public spaces is to maintain and promote a communitys economic success, measured by business revenue and tourism.149 Businesses argue that homelessness disturbs residents and visitors alike, and that businesses and the community suffer economic harm from
141
Iwamoto, supra note 59, at 522; see also HARRY SIMON, Municipal Regulation of the Homeless in Public Spaces, in HOMELESSNESS IN AMERICA 149, 150-51 (Jim Baumohl ed., 1996). 142 Iwamoto, supra note 59, at 522. 143 Id. 144 Nordberg, supra note 49, at 269. 145 Iwamoto, supra note 59, at 522-23. 146 Such inherently natural and innocent behavior is only made criminal by antihomeless laws. 147 Iwamoto, supra note 59, at 523. 148 Id. 149 Id.at 524.
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decreasing tourist consumerism.150 For this reason, businesses are often a significant voice in a communitys desire to increase police powerefforts that often culminate into widespread police sweeps and selective enforcement of public order laws. However, police sweeps that attempt to eliminate the sight of homelessness from the public only shift it from one place to another.151,152 Sweeps that result in the constant migration of individuals experiencing homelessness neither solves nor addresses the underlying causes of homelessness.153 Attention to the underlying causes of homelessness would more efficiently eliminate its existence from a given community.154 Communities also appeal to the preservation of public health and welfare in order to justify criminalization measures.155 For example, an Eau Claire, Wisconsin ordinance prohibiting camping in public places states that [camping in public] create[s] unsafe and unsanitary living situations which pose[s] a threat to the peace, health, or safety of those persons and other citizens of the city.156 However, criminalizing these behaviors will not deter nor prevent individuals living on the streets from performing them. Instead of criminalizing such behaviors, cities should address the lack of public accommodation in order to legally perform these actions and develop permanent solutions to fulfill these needs.157 Less explicit, but still an argument in support of anti-homeless legislation, is the concern for community aesthetics.158 As one scholar notes,
150 151
Id. Id. 152 Id. 153 Id. 154 Id. 155 Id. 156 EAU CLAIRE, WIS., MUN. CODE 9.74.010 (2012), http://www.eauclairewi.gov/index.aspx?page=70. 157 Iwamoto, supra note 59, at 525. 158 Foscarinis et al., supra note 10, at 155; William M. Berg, Note, Roulette v. City of Seattle: A City Lives With its Homeless, 18 SEATTLE U. L. REV. 147, 152 (1994).
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The crimes of misery [quality of life laws] reflect the visceral reactions of the working, middle, and upper classes. The affluent and economically comfortable simply do not want to have to encounter [homeless] people . . . . After all, most people are uncomfortable seeing acts in public that middle-class conventions dictate should remain in the private sphere . . . .159 While public order, health, safety, and economic flourishing may be meritorious policy goals, they do not justify systematically disadvantaging an entire class of people simply because they are compelled by their housing status to live on the streets.160 As the Pottinger court found, although the idea of homeless people sleeping in public parks may disturb or offend some portion of society, the answer is not in arresting individuals who have arguably only committed the offense of being without shelter.161 PART 5: CONCLUSION The criminalization of homelessness is a pervasive practice that systematically and unconstitutionally disadvantages individuals experiencing homelessness. Criminalization makes ill-use of limited public resources and furthermore diverts states and municipalities from developing plans to effectively eliminate homelessness. Instead of targeting individuals experiencing homelessness, states should follow the inclusive and humanitarian model provided by Rhode Islands Homeless Bill of Rights and its accompanying legislation to combat unlawful and discriminatory criminalization. Rights are a revolutionary law that affirms the civil rights of individuals experiencing homelessness. In order to more appropriately challenge the discriminatory nature of
159
Mitchell, supra note 6, at 509-10. See Foscarinis et al., supra note 10, at 151. 161 See Pottinger, supra note 65, at 1583.
160
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current anti-homeless laws, however, states should explicitly acknowledge the disadvantage individuals experiencing homelessness currently face in their Homeless Bills of Rights. States should also employ additional social efforts, such as collaborative policies, ten-year plans, and community-based resource support, to supplement Homeless Bills of Rights. Such additions would engender the social, solution-focused mentality needed for effective community action. A focus on transitional and permanent solutions will contribute to a more adequate and effective framework in which to challenge criminalization. Collectively, with the enactment of Homeless Bills of Rights and supplemental policies and efforts, states can begin to end homelessness in U.S. cities. By enacting these rights-oriented solutions that recognize the personhood and autonomy of all individuals, communities can transform the dominant narrative surrounding homelessness from one of prejudice and intolerance to one of respect and understanding.

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i

INSTITUTIONALIZED SILENCE: THE PROBLEM OF CHILD VOICELESSNESS IN DIVORCE PROCEEDINGS

Information about the Washington

Undergraduate Law Review

A Check on Presidential Power and a Flawed Ruling

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

PART 1: YOUNGSTOWN EXPLAINED 1a. The Majority Opinion

PART 2: WHY DID YOUNGSTOWN GET IT WRONG? 2a. Inherent Authority

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

Supra note 1, at 119. Id. 23 Supra note 11, at 5. 24 Id. at 6.

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

PART 3: YOUNGSTOWN REVISITED

Id. at 74. Id. 40 Id. 41 Id. at 3. 42 Id. 43 Id. at 222.

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Supra note 11, at 7. Id. at 7.

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Judgment without Justice:

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

Id. at 11-14. 12 Stat. 737, 38 (1863). 8 Id. at 16-20.

WULR Vol VII, Issue II Winter 2014

I: THE LINCOLN CONSPIRATORS

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

Id. at 21. JOHNSON, supra note 19, at 18-19. 22 Id. at 21.

WULR Vol VII, Issue II Winter 2014

Id. at 253-254. Id. at 257. 33 Id. at 261.

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

Ex parte Milligan, 71 U.S. 218 (1866). Ex parte Milligan, 71 U.S. 218.

PART II: EX PARTE QUIRIN

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

PART III: HAMDI V RUMSFELD

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Id. Id. 77 Id. 78 Id. 79 Id.

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Id. Id. 82 Id. 83 Hamdi, 316 F.3d 450. 84 Id.

Id. Id. 87 Id. 88 Id. 89 Id.

WULR Vol VII, Issue II Winter 2014

PART VI: CONCLUSION

See Commission, supra note 92.

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Fisher, supra note 1, at 98-100.

WULR Vol VII, Issue II Winter 2014

Fisher, supra note 4, at 42-43. Fisher, supra note 1, at 226-229.

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014

WULR Vol VII, Issue II Winter 2014