Volume V Issue I

i

Contents

DOCTRINALIST AND MINIMALIST INTERPRETATIONS OF

EDUCATORS’ RIGHTS TO FREE SPEECH IN PUBLIC SCHOOL Clare Callahan, University of California-Davis 1

FOR THEY DO NOT KNOW WHAT THEY ARE DOING: INCREASING POLICE OFFICER EDUCATION TO REDUCE

POLICE PERJURY Tobias Kuehne, Yale University 10

THE EVOLUTION OF COMMAND RESPONSIBILITY IN

INTERNATIONAL HUMAN RIGHTS LAW Max Markham, Stanford University 35

INNOVATION AND REVOLUTION: HOW SECONDARY

LIABILITY OVER COPYRIGHT INFRINGEMENT HURTS SOCIAL

MEDIA GROWTH Brenda Muñoz, Stanford University 52

MISCARRIAGES OF JUSTICE IN NORTHERN IRELAND: WHAT

THE UNITED STATES CAN LEARN FROM THE UNITED

KINGDOM’S INVOLVEMENT IN NORTHERN IRELAND Sarah Rouhan, American University 71

THE POLITICIZED ARBITER: JUDICIAL ELECTIONS AND THE

DANGERS OF DEMOCRATIZING THE LAW Peter Williams, University of Washington 97

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The Washington Undergraduate Law Review, a journal devoted to the scholarly discussion of legal subjects, is edited and produced by undergraduates at the University of Washington. Our purpose is to encourage and provide an outlet for undergraduates with an interest in the field of law. The Washington Undergraduate Law Review provides students the opportunity to present a tangible culmination of their hard work, either as contributors to the journal or as officers on the editorial staff. The Washington Undergraduate Law Review also strives to provide an environment conducive to networking and to finding peers with similar interests.

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Masthead

Editor-in-Chief Amanda C. Lui

Executive Editors Ashley D. Burnam Ashley M. Lindsey Vanessa M. Stone Juliya M. Ziskina

Lead Editors

Lucas Barash-David Cecilia Jeong

Michael Rebagliati Leo Yexuan Zhang

Senior Editors

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Alyssa Harkins Nicole Hill

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Brian Rho

Associate Editors

Amanda Lukens Christopher Garlock

Hanna Giuntini Rachna Hajari

Boram Kim

Michael Magee Hannah Weaver

Austin Wolfe Sher-Min Yang

Volume V Fall 2011 Issue I

ARTICLES

Doctrinalist and Minimalist Interpretations of Educators’

Rights to Free Speech in Public Schools

By Clare Callahan* *Clare Callahan is a fourth year undergraduate student at the University of California at Davis pursuing a Bachelor of Arts in Political Science and History. She hopes to study International Law in law school with an emphasis on women's rights and the Middle East. Clare interned in the Public Rights division of the California Department of Justice, the UC Davis Law Review, and most recently worked in D.C. with KARAMAH Muslim Women Lawyers for Human Rights as a Research and Programs intern.

According to Doctrinalism and Minimalism, what are

the limitations on public high school teacher’s curriculums, with regard to the use of aggravating language, including profanity and derogatory language within their classrooms for use as an educational tool? A teacher’s right to instruct

2 WULR • Vol V, Issue I • Fall 2011

through a medium of emotion and incitement in a classroom presents a constitutional challenge on the basis of First Amendment protections of speech. Particularly, weighing an educator’s use of provocative and untimely language in a high school classroom for the purpose of education against the state’s interest in the education of public school students. It is clear that the question of speech in a classroom must be decided through judicial means due to the unavailability of legislation by which the

Court may defer. Second, the vagueness of cases, which set precedent for teacher’s speech rights through their creation of judicial test require the Court to examine this issue by applying the clearest and most narrow interpretation of the Constitution and judicial doctrine possible. First, this examination will define the basic principles of Doctrinalism and Minimalism and how these two judicial interpretations would review the main issues involved with teacher’s speech in schools. Next, using Doctrinal and

Minimalist theories to analyze precedent cases, this paper will address the legality of the use of aggravating langue by a teacher.

Both Doctrinalism and Minimalism focus on placing limitations on the Court’s ability to overrule or alter legal and legislative doctrine. Doctrinalism sets out principles by which a judge’s autonomy may be narrowed,

particularly, requiring judges to follow strict paths of stare

decisis and abiding by popularly voted upon Constitutional

regulations. However, Dotrinalism does rely on unambiguous and existing laws to function for application, therefore, altering the decisions found in precedent would only be acceptable if a “conflict” in precedent had arisen.1

1 Sotirios A. Barber & James E. Fleming, Constitutional Interpretations: The Basic Questions 137 (2007).

Callahan 3

The prominent Minimalist theorist, Cass Sunstein, also emphasizes the need for judges to have limited ability to frivolously change precedent. Particularly, he suggests that judges first defer to current legislation, while adhering to the original intent of vague provisions, narrowly interpret precedent, and finally “build modestly” on their precedents.2

While the original intent of the First Amendment of the U.S. Constitution suggests the Framers had finite

beliefs on the eminence and necessity of the preservation of individual political speech, judicial doctrine has evolved to place emphasis on the state’s interest alongside the individual’s rights. Judicial doctrine has developed, modestly, to balance the interest of the state against the interest of individual citizen. In doing so, the Court has created separate protections for citizen’s speech and the speech of public employees.3 Nonetheless, the Court has instituted conflicting approaches to speech in schools, in

regard to whether the speech rights of the teachers outweigh those of the state. As such, this conflict must be rectified in order to create a concise and clear judicial doctrine.4 The result was a codified two-pronged test in which the first prong allowed for a school to “refuse to sponsor student speech inconsistent with [the] shared values of civilized order”5 while the second prong legitimated limits on speech due to pedagogical concern in

preventing distribution of material that was inappropriate

for “immature audiences.”6 While Hazelwood School District v.

2 Cass R. Sunstein, Second-Order Perfectionism, 75 FORDHAM L. REV. 2867, 2868-2870 (2007). 3 Connick v. Myers, 461 U.S. 138 (1983). 4 Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 291 (1988). 5 Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 272 (1988). 6 Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 285 (1988).


Kuhlmeier7 limited the speech rights of teachers and

students, the Court found a need to judicially protect the

rights of teachers. With the combination of Pickering v.

Board of Education of Township High School District 205, Will

County8 and Connick v. Myers,9 the court authorized another

two-pronged test. The first prong protected speech of public employees while acting in their roles as citizens with the exception that public employees acting in their role as employees do not maintain these protections. The

second prong instituted a “balancing framework”10 by which the court must examine the appropriateness of the time, place, and manner of the contested speech. Because it is within the interest of the judiciary to continue the legitimization of previous rulings and to create a clear test by which speech can be measured, the Court has merged the two approaches, neither being mutually exclusive, in order to develop a doctrine both stringently tied to precedent and more appropriate for understanding speech rights specific to public school teachers. The narrowly developed test requires a limitation on teachers’ speech in which they must abide to specific guidelines. First, the issue must be balanced against the interest of the teacher, acting as a citizen expressing issues of public concern, either political or controversial in nature, against the efficiency of the state.11 Second, the expression must be made in the appropriate “manner, time, and

place,”12 in order to receive status as protected speech. An

7 Hazelwood, 484 U.S. 260 (1988). 8 Pickering, 391 U.S. 563 (1968). 9 Connick, 461 U.S. 138 (1983). 10 Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989) (The Fifth Circuit held that public school teachers do not maintain the right to alter school curriculums without the approval of the administrative body). 11 Pickering, 391 U.S. 563 (1968). 12 Connick, 461 U.S. 138 (1983) at 152.

Callahan 5

appropriate manner requires that the speech abide by common conceptions of civilized order.13 For example, the

majority opinion in Hazelwood School District v. Kuhlmeier

noted that speech, which may go against civilized order, includes “advocat[ing] drug or alcohol use,” within a school.14 Furthermore, speech that interferes with an employee’s duties, even if that employee is acting as an individual citizen, violates “place” restrictions and is, therefore, not a protected speech.15 In addition, a school

may place limits on speech if the speech hinders the teaching of the curriculum.16 It is important to note that the school, not the teacher, has control over the curriculum, therefore, a school may limit the speech of a teacher that violates the school administration’s pedagogical interest.17 Finally, it is appropriate to draw distinction between acceptable speech in a K-12 and a higher education environment.18 These standards abide by and clarify the

developments in judicial doctrine concerning the issue of speech specific to the actions of teachers.

In Pickering v. Board of Education of Township High School

District 205,19 a case on teacher promotion of controversial

opinions outside of the classroom, was decided in favor of the individual’s right to express his opinion on matters of public concern. More specifically, the school was unable to

13 Hazelwood, 484 U.S. 260 (1988). 14 Hazelwood, 484 U.S. (1988). 15 Connick, 461 U.S. 138 (1983) at 152. 16 Hazelwood, 484 U.S. 260 (1988). 17 See Boring v. Buncombe County Board of Education, 136 F.3d 364, 367-68 (4th Cir. 1998) (The Fourth Circuit held that curriculum development is a right exclusive to public schools, not classroom teachers.). 18 See Vanderhurst v. Colorado Mountain College District, 208 F.3d 908 (10th Cir. 2000) (The Tenth Circuit Court upheld that Colorado Mountain Spring had erred in termination a college professor due to a violation of his First Amendment free speech rights). 19 Pickering, 391 U.S. 563 (1968).


prove that its interest “in limiting [the teacher’s] contribution to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public”.20 The Court emphasized the rights of a citizen to converse freely in an open forum without the constraint of their position protected the speech of teachers in reference to a matter of public debate. A school’s interest in restricting its employee’s speech is minimal, unless the employee’s speech is slanderous. While

a public employee does maintain speech rights as a citizen,

in Connick v. Myers,21 the Court found that when the

expression of speech interrupts employee duties, termination was an appropriate recourse. Therefore, the interest of the state in maintaining an efficient work environment outweighs an individual’s interest.

In Boring v. Buncombe County Board of Education

(1998),22 Justice Frankfurter’s concurring decision

established that a school has priority in creating and

administering the curriculum. In court quoted Hazelwood v.

Kuhlmeier“[w]e hold only that public school teachers are not free, under the first amendment, to arrogate control of

curricula,”23 In Boring v. Buncombe County Board of Education

the plaintiff brought suit after being transferred as a penalty for having her students perform a play, which the school found inappropriate.24 The majority opinion focused on applying the standard that an issue must be of public

concern in order to gain protection declaring: “Since Mrs. Boring's dispute …is nothing more than an ordinary employment dispute, it does not constitute protected

20 Id. at 573. 21 Connick, 461 U.S. 738 (1983). 22 Boring, 136 F.3d at 369. 23 Hazelwood School District v. Kuhlmeier, 484 U.S. 802 (1988). 24 Boring, 136 F.3d at 369.

Callahan 7

speech and has no First Amendment protection.”25 The Court also found that the selection of a specific play is not a matter of public concern, and is, therefore, not protected speech. The ruling in favor of the school’s decision to transfer the plaintiff is appropriate because the plaintiff acted as a public employee, thus the restriction was within the guidelines set down by the court. Similarly, the court

in Kirkland v. Northside Independent School District26, found that

issues on the assignments given by teachers are not of

public concern, rather they are administrative in nature. Second, a teacher acting within their role as employee cannot also be acting as an individual citizen. Therefore, the state may place restrictions on a teacher in his role as an employee without violating the First Amendment. Nevertheless, the constriction on speech for teachers in their roles as employees may be found unconstitutional if the issue is a public concern. For

example, classroom presentations on hemp production in

Crockrel v. Shelby County School District (2001),27 were deemed

controversial in nature and therefore, of public concern. In

Crockrel v. Shelby County School District l,28 the defendant was

not only unable to prove that the issue was not of public concern but also that it disrupted the plaintiff’s duties. The Court ignored the defendant’s claims that the hemp presentation was disruptive, primarily because the defendant approved of the presentation before hand.29

25 Boring, 136 F.3d at 369. 26 Kirkland, 890 F.2d at 802. 27 Cockrel v. Shelby County School District, 270 F.3d 1036, 1042-45 (6th Cir. 2001) (The Sixth Circuit court ruled that presentation of a controversial nature are of public concern but because the plaintiff received prior authorization her termination was a violation of the First Amendment). 28 Id. 29 Id.


In Hazelwood School District v. Kuhlmeier,30 the Court

established a school’s authority to regulate student’s speech if that speech is deemed inappropriate and presents legitimate pedagogical concerns.31 The court applied these

protections to teachers in California Teachers Association v.

State Board of Education (2001).32 Furthermore, the court

moved to establish a different limit on speech for professors of college students than those of teachers of K-

12 in Vanderhurst v. Colorado Mountain College District (2000).33

Fewer restrictions on professor’s expressions are acceptable by court standards due to the age and mental maturity of a college student.34 Hence, a public high school teacher’s speech acting within their role as an employee of the state and not as an individual citizen, is not protected. While, in accordance

with Crockrel v. Shelby County School District,35 an employee of

the state acting in their capacity as an employee may enjoy

protected speech if that speech is of a public concern, and it is clear that the an educator’s actions are an issue of public concern, the Court is unable to approve of their actions because of their violation of the other tiers in the Court’s reasoning. The usage of profanity and derogatory terminology clearly violates common expectations of civilized order and manner restrictions on speech set forth

30 Hazelwood, 484 U.S. 260 (1988). 31 Id. 32 California Teachers Association v. State Board of Education, 263 F.3d 1141 (9th Cir. 2001) (The Ninth Circuit Court found that Proposition 227 requiring teacher’s to teach classes in English was too vague for teachers to understand when they were required to speak in English). 33 Vanderhurst v. Colorado Mountain College District, 208 F.3d 908 (10th Cir. 2000). 34 See Ward v. Hickey, 996 F.2d 448, 453-454 (1st Cir. 1993) (The First Circuit Court upheld the district court’s ruling that a high school may regulate the speech of a teacher for pedagogical reasons as long as her viewpoint was not suppressed). 35 Crockrel, 270 F.3d.

Callahan 9

in Hazelwood School District v. Kuhlmeier and Connick v. Myers.36

On these grounds, the issue at hand would also be considered unprotected speech. However, the judicial doctrine of the court has developed to further explain why such actions are not protected speech. It is within the power of the school to set a curriculum, therefore, it is also within its power to establish when said curriculum has been interrupted or when an instructor has deviated. Furthermore, unorthodox curriculums may been more

suited for a college setting as suggested by the court

doctrine set down in Vanderhurst v. Colorado Mountain College

District.37A Doctrinalist and Minimalist interpretation of

judicial doctrine requires public high school educator’s speech rights within the classroom to be limited and under the purview of their high school’s administrators.

36 See Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1053 (6th Cir. 2001); Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). 37 Vanderhurst, 208 F.3d.

For They Do Not Know What They Are Doing: Increasing Police

Officer Education to Reduce Police Perjury

By Tobias Kuehne*

Police perjury is acknowledged to be widespread, but difficult to detect. When perjury occurs, officers create false affidavits to manufacture probable cause for a search and seizure, and later lie in court to avoid the dismissal of unlawfully obtained evidence. Reasons for police perjury range from the competitive assessment of officer performance, to public pressure for arrests, to ignorance of Constitutional principles. Judges have little way of telling when an officer is lying, because officer testimonies use similar vocabulary and means of justification. This paper evaluates a few proposals to combat police perjury before advancing its own suggestions. This paper suggests that, in cases of defendant and plaintiff making opposite claims without further conclusive evidence, both parties undergo a polygraph examination. Furthermore, the narrative portion of police reports should be replaced with more detailed and specific questions that prevent ambiguous recapitulations of events. To achieve systemic change, this paper proposes to hire more college graduates as police officers by expanding the existing Police Cadet Corps program.

Kuehne 11

*Tobias Kuehne is currently a Senior at Yale University, double-majoring in Literature and Math & Philosophy. This paper grew out of Professor Steven Duke’s course “Convicting the Innocent” at Yale Law School. Tobias is the Editor-in-Chief of the Yale Undergraduate Law Review and the Yale Philosophy Review, and his interests include the study of systems, modernist literature, and existentialist philosophy. He hopes to combine a J.D. with a Ph.D. in German Studies.

Table of Contents INTRODUCTION 12 I: THE DUAL NATURE OF THE POLICE PERJURY

PHENOMENON 13 II: SUPERFICIAL AND SYSTEMIC REASONS FOR POLICE

PERJURY 16 III: PREVIOUS PROPOSALS TO COMBAT POLICE

PERJURY 22 IIIa. Proposal to Flexify Probable Cause, Extend Warrant Requirements, & Utilize Liquidation Remedy 22 IIIb. In-Camera Hearings 23 IIIc. Use of Polygraphs During Suppression Hearings 24 IV: SO THAT THEY SHALL KNOW WHAT THEY ARE

DOING, ENHANCING POLICE OFFICER EDUCATION

AND RACIAL DIVERSITY 28 IVa. Specific Reforms That Address Underlying Causes of Police Perjury 28 IVb. Systemic Reforms 29 IVc. Ramifications of These Policies 32 V: CONCLUSION 33


INTRODUCTION

Police perjury is a curious phenomenon. Few empirical and statistical data exist about it. Regardless, commission reports1 and legal literature asserting its pervasiveness in the criminal justice system abound. Perjury has been marked as illegal, unethical, and corrosive to society,2 yet, policemen are often incentivized to lie as a part of their trade.3 With judges winking at it,4 prosecutors condoning it,5 and police departments teaching their officers to perfect their lying techniques,6 the phenomenon of police perjury has severely disrupted the U.S. criminal justice system. Police, whose fundamental obligation is to uphold the law in letter and in spirit, have contributed to undermining the very foundations of the criminal justice system.

This paper explicates the problem of police perjury, discusses previously proposed solutions and their merits, and suggests a few solutions to remedy the problem. Part I

1 Commission reports confirming prevalence of police perjury, see e.g. Charles M. Sevilla, The Exclusionary Rule and Police Perjury, 11 SAN DIEGO L. REV. 868 (1973-1974) (referencing the Knapp Commission Report on Police Corruption);The Failure to Breach the Blue Wall of Silence: The Circling of the Wagons to Protect Police Perjury, 39 WASHBURN L. J. 211 n.4 (1999-2000) (referencing the Report of the Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, also known as the Mollen Commission Report), [hereinafter Failure to Breach]; and Gabriel C. Chin & Scott C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. PITT. L. REV. 237, n.15 (1997-1998) (referencing the Report of the Independent Commission on the Los Angeles Police Department 168 (1991), also known as the Christopher Commission Report). 2 Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies By the Police, 76 Or. L. Rev. 790 (1997) (quoting moral philosopher Sissela Bok: “The veneer of social trust is often thin. As lies spread—by imitation or in retaliation, or to forestall suspected deception—trust is damaged. Yet trust is a social good to be protected just as much as the air we breathe or the water we drink. When it is damaged, the community as a whole suffers; and when it is destroyed, societies falter and collapse.”). 3 Id. at 784. 4 Edward Bunker, Perjury and the Police, 2 STUDENT LAW. 24 (1973-1974). 5 Joseph D. Grano, A Dilemma for Defense Counsel: Spinelli-Harris Search Warrants and the Possibility of Police Perjury, 1971 U. ILL. L.F. 410 (1971). 6 See SLOBOGIN, supra note 2, at 784.

Kuehne 13

will address the dual nature of police perjury: perjury before trial, which occurs by way of lying in affidavits and fabricating probable cause in police reports, and perjuring in court by lying under oath in suppression hearings. Part II will identify the underlying reasons why police perjury is so deeply ingrained in the criminal justice system. Part III will assess suggestions that authors have previously made to ameliorate the situation, such as proposals to have judges demand in camera hearings of informants;7 introduce polygraph testing to suppression hearings;8 and “flexify” probable cause by allowing officers wider leeway in its application;9 broaden the search warrant requirement, and replace the exclusionary rule with a damages remedy. Part IV will then recommend a bifurcated approach consisting of procedural and systemic changes to address police perjury. This approach will alleviate, to some degree, all the underlying systemic problems conducive to police perjury as outlined in Part II.

PART I: THE DUAL NATURE OF THE POLICE PERJURY

PHENOMENON

Despite the lack of empirical data, police perjury is largely acknowledged to be widespread. Over the past few decades, several commission reports have pointed out that perjury is deeply rooted in New York and Los Angeles police departments.10 Legal scholars agree that police perjury is a common phenomenon,11 and even “[j]udges and prosecutors will discuss the existence of police perjury

7 See GRANO, supra note 5. 8 Donald A. Dripps, Police, Plus Perjury, Equals Polygraphy, 86 J. CRIM. L. &

CRIMINOLOGY 693 (1995-1996). 9 Christopher Slobogin, Testilying: Police Perjury and What to Do about It, 67 U. COLO. L. REV. 1037 (1996). 10 See SEVILLA, supra note 1. 11 See Police Perjury in Narcotics “Dropsy” Cases: A New Credibility Gap, 60 GEO. L. J. 507 (1971-1972) [hereinafter Police Perjury in Narcotics]; see also DRIPPS supra note 8, at 693, 698; see also GRANO supra note 5, at 409, 456; SLOBOGIN supra note 2, at 214.


candidly in relatively private settings; but rarely in public fora.”12 Some scholars have objected that evidence of police perjury is largely anecdotal and thus lacks a proper empirical foundation, thereby implying that police perjury is not a pervasive problem.13 However, given the many indicators of the phenomenon, and the inherent difficulty of obtaining such data, this paper will disregard such claims.14

Police perjury is a dual phenomenon. It occurs before and during trial, most commonly at suppression hearings. Perjury before trial occurs when officers fabricate probable cause in a search warrant affidavit.15 Such fabrications may include fake informants16 or false claims of previously observed, regularly occurring suspicious behavior. In Spinelli v. United States,17 the Supreme Court ruled that an affidavit may be granted based on hearsay from a confidential informant, provided that two conditions are fulfilled: There must be a factual basis that warrants the conclusion that the informant is reliable,18 and the affidavit must include information as to how the informant reached his conclusions.19 Although this ruling initially made it more difficult to create false affidavits, perjuring officers quickly found ways to manufacture affidavits that conformed to those standards.20 The extent of this problem is difficult to assess because, as Justice Schaefer pointed out in State v. Mitchell: “The courts have no

12 Morgan Cloud, The Dirty Little Secret, 43 EMORY L. J. 1314 (1994). 13 Kevin R. Reitz, Testilying as a Problem of Crime Control: A Reply to Professor Slobogin, 67 U. COLO. L. REV. 1063 (1996). 14 See CHIN & WELLS, supra note 1, at 236. 15 See GRANO, supra note 5, at 411. 16 Id. at 411. 17 Spinelli v. United States, 393 U.S. 410 (1969). 18 See GRANO, supra note 5, at 406. 19 Id. at 406. 20 Id. at 406; see also DRIPPS, supra note 8, at 693 (Dripps says that “Police perjury, if accepted, can defeat any constitutional rule… no matter what rule appellate courts adopt, police may circumvent that rule by persuading trial courts to accept an incorrect account of the facts.).

Kuehne 15

way of knowing how many unproductive searches are made upon the basis of false affidavits because those cases do not come before the courts.”21

Pre-trial perjury may also occur in circumstances in which no warrant was obtained at all. Officers may search an individual on a mere hunch and subsequently fabricate probable cause in police reports if they find evidence.22 Also, police create post-hoc probable cause by filing ambiguous reports that allow them to perjure themselves in court without contradicting their report.23 University of Minnesota Law’s Professor Myron W. Orfield, Jr. uncovered a particularly egregious practice in the Chicago police department: the “double filing system”.24 Initial reports were kept in “street files.” Those reports were first cleansed of potentially exculpatory evidence before they were forwarded as the official reports to the prosecutor.25 Even though the practice of double filing stopped, the fact that major police departments felt at liberty to pursue such practices suggests that there may be systemic issues that permeate the criminal justice system at large.

Police perjury, if it has occurred before trial, generally has to occur again during a trial or suppression hearing. If the officer obtained evidence illegally, he or she must perjure again in court to fabricate probable cause and prevent evidence from being suppressed under the exclusionary rule. Again, little empirical evidence for this practice exists, but certain patterns in police testimony during suppression hearings raise strong suspicions. After the Supreme Court extended the application of the

21 State v. Mitchell, 170 Mo. 633, 71 S.W. 175 (1902). 22 See POLICE PERJURY IN NARCOTICS, supra note 11. 23 Stanley Z. Fisher, “Just the Facts, Ma’am”: Lying and the Omission of Exculpatory Evidence in Police Reports, 28 NEW ENG. L. REV. 6 (1993-1994). 24 Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 83 (1992); see also SEVILLA supra note 9, at 1044. 25 See FISHER, supra note 23, at 6-7.


exclusionary rule to state courts in Mapp v. Ohio,26 officers began to heavily resort to “dropsy” testimony in narcotics cases,27 claiming that the defendant had abandoned drugs in plain view of the officer, and thus could be seized without a warrant or probable cause. Other types of post-hoc fabrication of probable cause testimony may include claims of furtive movements, attempts to flee, or interference with officer authority.28

PART II: SUPERFICIAL AND SYSTEMIC REASONS FOR POLICE

PERJURY

Professor Christopher Slobogin and others have pointed out numerous factors that contribute to the perpetuation of police perjury. First, police officers feel that restrictions such as probable cause and the exclusionary rule are superfluous hurdles that keep officers from properly doing their jobs.29 Consequently, officers feel the need to sidestep constitutional rights in order to properly enforce justice. Second, a law enforcement officer’s performance is measured in terms of number of arrests and conviction rates. This competitive nature of police work30 induces some police officers to ramp up their arrest numbers toward the end of a month with illegal arrests or arrests following unreasonable searches that need to be backed up with perjury.31 Yet another reason that Slobogin points out is simply the widespread nature of the phenomenon:32 everyone is doing it because they know

26 Mapp v.Ohio, 367 U.S. 643, 655 (1961); also cf. Weeks v. United States, 232 U.S. 383 (1914). 27 See POLICE PERJURY IN NARCOTICS, supra note 11. 28 H. Richard Uviller, TEMPERED ZEAL: A COLUMBIA LAW PROFESSOR’S YEAR ON

THE STREETS WITH THE NEW YORK CITY POLICE 115-16 (Contemporary Books 1st ed. 1988). 29 See SEVILLA, supra note 1, at 852, fn. 40. 30 Id. at 865. 31 See CHIN & WELLS, supra note 1, at 247. 32 See SLOBOGIN, supra note 9, at 1045.

Kuehne 17

everyone else is doing it; cops virtually never tell on other cops.33 Lying has become part of the police culture, and officers feel they can get away with it.34 As magistrates are overworked and often rubberstamp affidavits,35 and as prosecutors and judges seldom do anything about it,36 cops may justifiably feel they have free rein to write whatever they want in their reports and affidavits, or say whatever they want in court.

Judges know about the possibility of this problem, but are powerless to do anything about it. Even though it is common knowledge that officers frequently perjure themselves, it is impossible for a judge to tell in any particular case whether a specific officer is lying. A judge cannot make any determination simply because there is a high probability that the officer before him or her is lying.37According to Professor Morgan Cloud, while judges know about the problem of perjury, it is difficult for them to detect a specific lie38 in a specific situation—officers are often experienced at providing testimony that appears valid and consistent, on the surface; they are also comfortable in a court setting. Many suppression hearings must be decided based on witness credibility, and in many cases, the only evidence at the judge’s disposal are the contradicting testimonies of the defendant and the police officer. Judges are wary of deciding “swearing contests” in favor of a presumably guilty defendant and against a government official. In Cloud’s words, “judges simply do not like to call other government officials liars.”39According to Slobogin, many judges and prosecutors silently agree

33 See CHIN & WELLS, supra note 1, at 237-238. 34 See SLOBOGIN, supra note 9, at 1045. 35 See GRANO, supra note 5, at 414. 36 See SLOBOGIN, supra note 9, at 1047. 37 See DRIPPS, supra note 8, at 696. 38

SAUL M. KASSIN & CHRISTINA T. FONG, “I’m Innocent!”: Effects of Training on Judgments of Truth and Deception in the Interrogation Room, 23 LAW AND HUMAN BEHAVIOR 499-516 (1999). 39 See CLOUD, supra note 12, at 1323-1324.


with police officers that the end of a conviction justifies the means of twisting the facts.40 Other reasons for judges’ inaction are that they often think the defendant is guilty,41 and that they dislike suppressing evidence just as much as the police officer.42 As far as the prosecutors are concerned, even if they disapprove of a police officer’s behavior, they are cautious about indicting a member of law enforcement on whose testimony they so strongly depend on to litigate their cases.43

Moreover, many suppression hearings devolve into “swearing matches”: the officer’s testimony stands against the testimony of a presumably guilty felon.44 The police officer may have strong incentives to perjure, but the criminal defendant has even stronger ones, namely to be acquitted.45 Irving Younger, a judge relatively vocal about his mistrust toward police testimony, asserted in People v. McMurtry46 that, if testimony is evenly balanced on both sides, it is the prosecution that must prevail.47

These reasons provide a good first step toward understanding the problem, however they are derivatives of more underlying, systemic causes of police perjury. Various articles have touched upon some of these underlying reasons,48 but few have attempted to bring them together to look at them in their totality.

Probably the most fundamental reason why police perjure themselves is not malice, but ignorance: Officers generally have little understanding of the principles of the Constitution, civil rights, and, in particular, the Fourth Amendment and the rationale behind the restrictions

40 See SLOBOGIN, supra note 9, at 1047. 41 Id. at 1323. 42 Id. at 1322. 43 See CHIN & WELLS, supra note 1, at 261; note 5, at 410. 44 See DRIPPS, supra note 8, at 696. 45 Id. at 696. 46 People v. McMurtry, 314 N.Y.S.2d 194 (N.Y.C. Crim. Ct. 1970). 47 See CHIN &WELLS, supra note 1, at 268. 48 See SEVILLA, supra note.1; see also GRANO, supra note 55.

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intended to enforce it.49 It is implausible to think that the majority of officers who are suspicious of the Fourth Amendment and sidestep it do so because of an outright malicious intent. It is implausible to think that the majority of officers who are suspicious of the Fourth Amendment and sidestep it do so because of an outright malicious intent. Especially taking into consideration statistical evidence that shows police officers are generally less educated,50 ignorance seems to be a more plausible reason for illegal behavior that has to be backed up by perjury. Various authors have commented on the lack of communication between courts and police departments and on police officers’ ignorance as to the meaning and spirit of constitutional principles.51 None of those authors, however, have identified this as an underlying problem to be attacked directly, though it is possible that doctrines and ideas that are improperly understood are highly unlikely to be valued, respected, or followed.52

A second underlying reason for police perjury is their close relationship with the prosecution, coupled with police officers’ ingrained presumption of suspects as

49 See SLOBOGIN, supra note 9, at 515 (Slobogin acknowledges the judicial system’s lack of formal corrective feedback, which systematically perpetuates police ignorance, but more importantly he does not suggest alternative educational reforms.); see also SEVILLA, supra note 1, at 876 (“When individual police officers involved in a motion to suppress leave the courtroom confused rather than clarified as to what proper conduct should be, the judiciary fails in its important educative function.”). Sevilla also does not suggest solutions to this problem.); see also GRANO, supra note 55, at 410 (“Yet society has made no commitment to provide adequate education concerning the meaning and more importantly, the spirit, of the constitutional provisions that limit the methods of law enforcement.” Grano acknowledges this issue on a societal scale, yet no remedies are suggested as well.). 50 Stanley K. Shernock, The Effects of College Education on Professional Attitudes Among Police, 3 J. CRIM. JUST. EDUC. 71 (1992). 51 See FAILURE TO BREACH supra note 1. 52 See FAILURE TO BREACH supra note 1, at 51 (fn. 48 quotes a 1976 Commission Report on Law Enforcement and Administration of Justice that suggests that “it seems to be common practice that only the more intelligent and more disciplined plainclothesmen and narcotics squad officers are presented with and clearly comprehend these judicial standards”).


guilty.53 Police officers eventually become so confident in their ability to detect criminals and to distinguish guilt from innocence that it becomes difficult for them to abandon their presumption of guilt of a suspect once they have established this presumption. Their close relationship and interdependence with the prosecution exacerbates this situation.54This misinterpretation of their position within the criminal justice system leads some police to think they have license to overstep the restrictions placed upon them. This is reinforced by considering an individual police officer’s arrest numbers and conviction rates as indicators of good performance.55

The third underlying reason for police misconduct and perjury is a result of the differing expectations that society places on police officers. While society sometimes perceives police in an adverse light, it simultaneously demands more effective apprehension of criminals,56scoffing at releases based on technicalities.57This pressure creates a clash between constitutional principles and their societal duties.58

These external challenges often amplify the strict code of silence in police departments, also known as the “Blue Wall of Silence,”59 which Professors Gabriel J. Chin and Scott C. Wells have called “arguably the strongest

53 Richard A. Leo, POLICE INTERROGATION AND AMERICAN JUSTICE, 225 (1st ed, 2008). 54 See GRANO, supra note 5, at 410 (Prosecutors tend to ask pointed questions of police officers, such as whether a statement of purpose was made. According to Grano, “Only an officer of extremely low intelligence would fail to realize that announcement of purpose is necessary.”); see also GRANO, supra note 7, at 410 (“At this point, the prosecutor is not ready to concede; rather, he asks whether a statement of purpose was made. Only an officer of extremely low intelligence would fail to realize that announcement of purpose is necessary.”). 55 See supra note 11. 56 See GRANO, supra note 5, at 410. 57 See FAILURE TO BREACH supra note 1, at 514. 58 See SEVILLA, supra note 1, at 852, fn.40 (“If we follow some of our court decisions literally, the public would be demanding my removal as the Superintendent of Police and—I might add—with justification.”). 59 Id.

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form of peer pressure.”60Police perjury persists not merely because of its prevalence and widespread nature, but because officers who report their colleagues’ misconduct can expect to experience harsh retribution, ranging from isolation in the department, to harassment, to refusal for backup in a potentially life-threatening situation. The strength of this phenomenon and the prospect of such severe retaliation subsume honest and dishonest officers alike: “The honest officer fears the dishonest officer and not the other way around.”61The persistence of the “Blue Wall of Silence” is no surprise in light of the position that police hold in society, as they risk their lives in potentially hostile environments for low pay,62with adverse perceptions by the media and society perpetuating a sentiment of “us versus them”.63 It is understandable that such circumstances encourage “a banding together, a cover-up, a conspiracy of silence.”64

Given all these factors—low-level education, undue closeness to the prosecution, intense public pressure, and an internally adverse environment that perpetuates the “Blue Wall of Silence”—it is not surprising that police officers are unaware of the role they are supposed to play in the criminal justice system, and their relationship to the principles of the Constitution. While pointed, pragmatic reforms are certainly in order, serious attempts to alleviate police perjury must consider the police’s level of education and strained relationship with society.

60 Id. at 213. 61 Id. at 241. 62 David L. Carter & Allen D. Sapp, The Effect of Higher Education on Police Liability: Implications for Police Personnel Policy, 8 AM. J. POLICE 153 (1989); see also CHIN &

WELLS supra note 1, at 234. 63 See CHIN & WELLS supra note 62, at 228-229. 64 Id. at 251.


PART III: PREVIOUS PROPOSALS TO COMBAT POLICE PERJURY IIIa. Proposal to Flexify Probable Cause, Extend Warrant

Requirements, & Utilize Liquidation Remedy

Slobogin suggests reducing the incentive to lie and disregard perjury,65 and he proposes to flexify probable cause, extend the warrant requirement to all non-exigent searches, and replace the exclusionary rule with a liquidated damages remedy.66 While Slobogin’s ideas are a step in the right direction to alleviate the system’s underlying issues, they ultimately promise little success due to external and internal factors.

Flexifying probable cause is unlikely to change anything. Probable cause is a restriction that protects the constitutional right to privacy and protection from unreasonable searches. The problem is not whether or not probable cause is too strict. The real problem lies with police officer’s improper understanding of the meaning and rationale behind probable cause. Flexifying probable cause likely creates more exceptions from the standard, which means that the current modus operandi for police officers to sidestep it—trial and error—would be facilitated. Ultimately, flexifying probable cause would merely make certain behaviors legal that previously were not.

Certain currently illegal practices will become legalized if probable cause is flexified. Slobogin couples his flexified probable cause with an extended warrant requirement to curb potential increases in abuses of constitutional rights. However, a warrant would not change this fact, but could even sanctify such newly legalized behaviors. The problem is not with the applicability of warrants; rather it is that officers are able to obtain warrants too easily, and in cases of warrant-less

65 See SLOBOGIN, supra note 9, at 1054 (allowing officers wider leeway in applying probable cause). 66 Id. at 1055-58.

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searches, an exception to probable cause restrictions would be manufactured post-hoc.

Slobogin’s third proposal is to replace the exclusionary rule with a liquidated damages remedy, or monetary compensation awarded by a court. One could argue that judges would now be more willing to take action against perjury because they would not have to dismiss the case but make officers pay for perjuring themselves. This, however, still seems unlikely. Prosecutors still depend on police officers in their investigation, and would still hesitate to litigate perjury, regardless of the officers’ ultimate punishment. Thus, even if such prosecutions were to occur regularly, such trials would place a significant administrative and financial burden on the judicial economy.

One of two scenarios could occur under Slobogin’s approach: the judicial system would become even more congested and waste resources, or litigations for perjury, even under flexified probable cause, would rarely occur. The latter case poses a grim situation--defendants could be convicted based on illegally obtained evidence without any possibility of restitution. Slobogin’s idea to abolish the exclusionary rule poses the danger of severely compromising constitutional rights to privacy, protection from unreasonable searches, and due process.

IIIb. In-Camera Hearings

Professor Joseph D. Grano made a specific proposal

to decrease the fabrication of informants in affidavits.67Grano proposed that, when a suppression judge is unsure about the existence of an informant, he or she “could interview in camera, thus assuring himself and an appellate court through a sealed record, that the affiant has

67 See GRANO, supra note 5, at 446-447.


not fabricated the informant’s existence or communication.”68Grano’s approach is prepared to withstand the objection that the informant runs the risk that his identity may be disclosed—the in camera hearing could be held at an undisclosed location and time.69 Yet it has some irremediable shortcomings.

While this idea may initially deter some perjury by police officers, if the informant was falsified in the affidavit, it would not be difficult for a police officer to find an accomplice whom he or she could coach about what to say to the suppression judge.70 The possibility that an informant may need to appear in front of a suppression judge is still unlikely to deter police officers who consider perjury a necessary means to securing justice. Furthermore, those informants who are real may be deterred from providing tips if they know they might have to appear in front of a judge, whether or not immunity is granted. Under this consideration, Grano’s proposal carries little bargaining power.

IIIc. Use of Polygraphs During Suppression Hearings

A more promising approach was put forward by

Professor Donald A. Dripps, who advocated employing polygraphs in a very limited set of scenarios. Dripps proposed that, if a suppression hearing’s outcome depends solely on the credibility of the witnesses, the judge can propose that each party take a polygraph examination, which is both administered by an independent examiner and open to the other party to attend. Both parties must make their decision at the time the judge proposes the examination, without waiting for the result of the other party’s examination. If one party refused to be examined, it

68 Id. at 446. 69 Id. 70 See SLOBOGIN, supra note 9, at 1050.

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would be viewed negatively by the court. If the two tests yielded consistent results (i.e. exactly one party told the truth and exactly one party lied), the judge could make a decision based on this result. However, if both parties are said to have lied or told the truth, the court reverts back to its original proceedings.71

The reliability of polygraph exams falls under the purview of Daubert v. Merrell Dow Pharmaceuticals,72 in which the Supreme Court laid out the standards for scientific expert testimony admissibility. Dripps’ idea is supported by the fact that two administrations of polygraph examinations would drastically reduce the error rate. The danger of a wrong court decision based on polygraph examinations would arise only if both exams are incorrect, whereas no adverse result would ensue if only one was incorrect. Furthermore, the Ninth Circuit Court of Appeals, in its decision of United States v. DeBetham73 has deemed polygraphs as a highly reliable technique of determining truthfulness.74

Dripps’ proposal, in the confines outlined above, seems plausible, since a suppression hearing is not decided by a jury, which eliminates the concern of improperly infringing upon a jury’s domain as an arbiter of fact. The judge may be expected to have the experience and perspective to properly assess polygraph test results. However, a few reservations remain as to whether or not a polygraph is “beatable”. Polygraphs measure the examinee’s stress level, and police officers may, through repeated practice, be able to train themselves to have low stress in response to anticipated questions. If this is possible, Dripps’ proposal collapses. There may even be a chance that illegally obtained evidence will be improperly deemed admissible if a composed police officer and a

71 See DRIPPS, supra note 8, at 694. 72 Daubert v. Merrell Dow Pharmaceuticals, 113 S. Ct. 2786 (1993). 73 United States v. DeBetham, 470 F.2d 1367, 1368 (9th Cir. 1972). 74 See SEVILLA, supra note 1, at 874.


nervous, easily stressed defendant yield two incorrect but mutually consistent exam results. This very narrow objection should not, however, defeat the idea as a whole, but rather serve as a point of caution.

A claim from judicial economy could also be made to attack Dripps’ idea: Who would pay for the polygraph machines and the administering experts? However, as such examinations would only apply to a fraction of suppression hearings, all of which would be held regardless, the financial impact of conducting two fairly short polygraph exams is minimal. As long as the examiner is independent, the court may even use the polygraph machines that many police departments already own. There might be a chance that the number of suppression hearings would spike after the implementation of Dripps’ proposal, but this is a speculative matter that would need to be supported by empirical observations.

Slobogin makes a more fundamental objection to Dripps’ plan: Subjecting officers to polygraph exams would communicate a lack of trust, without reducing societal and individual pressures to lie.75 In light of the fundamental reasons for police perjury outlined in Part II, Slobogin advances a valid point: While Dripps’ proposal may be both realistic and effective in reducing police perjury, it does not address the systemic ills that cause it. Further estranging the police force does not bode well under these considerations. However, while a more fundamental reform would be desirable, Dripps’ plan remains the most viable solution.

Dripps advances a second idea, namely the use of miniature cameras on police uniforms76 in order to reliably record searches and seizures. Dripps makes the argument that undercover officers have been using a similar

75

SLOBOGIN, supra note 9, at 1054. 76 See DRIPPS, supra note 8, at 715-6.

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technique with audio recorders for years.77Dripps’ reasoning suggests that this approach deters unreasonable searches and seizures because they are recorded, and thus reduces the concomitant phenomenon of police perjury. Introducing cameras ordinarily would not place a great financial burden on the police department, as “[a]n 8 millimeter camcorder is no more expensive than a 9 millimeter automatic.”78 Granted, the current economic situation makes this proposal difficult to implement at this very moment in time, but nonetheless, it is a goal that could gradually be implemented.

Notwithstanding the constant surveillance by cameras, the danger of tampering remains. A perjuring officer would want as little information as possible to be made available through the recorded footage. The officer may “forget” to turn on the camera in time, especially when he or she claims that the search needed to be conducted immediately. The officer can make a convincing case that there was no time to turn on the camera, by claiming that the suspect turned and fled. In the cases of home searches, if the footage showed no announcement of purpose, the officer could claim that purpose was announced before the camera was turned on. Tampering could also occur when the camera is running: it may be “inadvertently” covered or turned to the ground.

A remedy to this sort of tampering could be a requirement to have the camera running at all times. This, however, would raise several problems. Who would monitor the huge amounts of footage? Although the miniature camera makes unreasonable searches and seizures more difficult, Dripps’ idea reinforces the underlying systemic problem of police officer estrangement identified in Part II as a contributor to perpetuating police perjury.

77 Id. at 716. 78 Id.


PART IV: SO THAT THEY SHALL KNOW WHAT THEY ARE

DOING, ENHANCING POLICE OFFICER EDUCATION AND

RACIAL DIVERSITY IVa. Specific Reforms That Address Underlying Causes of Police

Perjury

Ultimately, these proposals attempt to cure police perjury without addressing its underlying reasons. Workable solutions that promise to reduce police perjury while not tackling the fundamental ailments of the system have some merit. However these approaches still must be reinforced by measures that increase officers’ understanding of the principles of the Constitution and reduce the social pressures on police.

This bifurcated approach of making it harder for police to lie while enhancing their understanding of the Constitution and their role in society has several advantages. Measures aimed at reducing lying will be more effective if police officers understand the principles they violate when they lie. There would be less danger that police will search for new ways to perjure.

Dripps’ proposal for introducing polygraphs to suppression hearings that turn on witness credibility is a feasible, low cost approach. The lack of trust communicated to the officers is minimal, particularly because polygraphs will only be used when nothing but the officer’s and the defendant’s testimonies stand against each other,

A more viable proposal would be to include more detailed questions that require specific answers and a drastically reduced narrative portion on the police report form.79 Such questions could include: If a search was conducted, did the defendant explicitly consent? Was the purpose of entry announced, and if it was, when? Did you

79 See FISHER, supra note 23, at 7-9.

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discover any evidence that might, under any circumstances, be exculpatory for the defendant? While it may still be possible to answer the above questions ambiguously, the general point stands. With precise questions and a reduced narrative portion, an officer who usually files reports with ambiguous narratives would have a harder time perjuring. Perjury would be discouraged because discrepancies would be more easily detectable. It is clear that such new police report forms would need to be implemented on the federal level, most likely by the Department of Justice. If this task were to be left to local police departments, it is likely that the questions will be self-serving and less effective in combating perjury.

Furthermore, it may be possible that officers can still answer specific questions ambiguously so as to be able to perjure themselves in court without contradicting the report. Similarly to the surge in “dropsy” testimonies after Mapp v. Ohio, officers may find formulaic answers to questions that pass the scrutiny of the court. Such specific questions may even backfire when perjuring officers blatantly and knowingly lie. The last objection may be a bit drastic, especially if the motivation for perjury is not from malice, and that polygraphs would be employed at inconclusive suppression hearings.

IVb. Systemic Reforms

Reforms intended to make lying harder can only

function properly if they are supported by more fundamental measures, namely improving police education. As Professor H. D. Wendorf pointed out in Police Education and the Law of Evidence, “No solution can be fully effective without competent law enforcement officers.”80 Better-

80 H. D. Wendorf, Police Education and the Law of Evidence, 17 BAYLOR L. REV. 247 (1965).


educated police officers will be less inclined to perjure and also diminish the underlying problems outlined in Part II.

The behavior of college educated police officers has been shown to differ in a significant manner from the behavior of their counterparts who have not attended college. An article in the American Journal of Police evaluated numerous empirical studies and found that police officers who attended college are more tolerant toward other lifestyles, races, and ethnicities; less likely to overstep their authority and abuse their powers; more likely to understand their role in society as upholders of the Constitution; and are generally more professional, discrete, and judicious in their decision-making process.81 These findings were also verified by Stanley K. Shernock in The Effects of College Education on Professional Attitudes Among Police.82

Furthermore, a survey of police departments produced the following data: 98.4% of responding police departments remarked that college-educated officers received fewer citizen complaints than lesser-educated officers, 96.3% of responding departments stated there were fewer disciplinary problems with college-educated officers, 88% found that officers were more discrete, 88% indicated that they are more racially and ethnically aware, and 81.6% found that college-educated officers were more professional.83 These statistics show that college-educated officers tend to uphold both formal and informal expectations to a greater degree. From this, it is reasonable to assume that they would be more disposed toward professionalism, be more aware of their role in the larger system, and subsequently about the detrimental effects of perjury.

81 See CARTER & SAPP, supra note 62. 82 See SHERNOCK, supra note 50, at 73. 83 See CARTER & SAPP, supra note 62, at 158-159.

Kuehne 31

At this point, an objection could be leveled against the probative value of the empirical data cited: They merely show a correlation between education and better police officer performance, without indicating that an education actually causes better performance; these two factors may only be indirectly correlated. However, causation is not necessary to support the point. Even if factors other than education lead to better officer performance, officers who attended college still perform better than those who did not. Hence, recruiting more college graduates promises to achieve the basic objective of increasing ethical police officer conduct and reducing perjury amongst the police force as a whole.

Overhauling the education system at police academies seems neither well-advised nor feasible. It is generally former police officers who educate new cadets, and the police academy where prospective officers become immersed in the ideology of the “Blue Wall of Silence”.84 Instead, one could leverage a program that already exists, the “Police Cadet Corps” (PCC), which is modeled after the Reserve Officer Training Corps (ROTC). The program pays for an undergraduate education if the cadet participates in police training while attending college, and serves as an officer within the state for at least four years after graduation.85

The PCC should be expanded in both its scope and criteria, and needs to be injected with a competitive element. Participants of the PCC, in addition to the two requirements already in place, should be required to enroll in courses that enhance knowledge of ethics, Constitutional law, government, and history. Those courses would encourage PCC participants to recognize issues closely related to their future profession, which

84 See FAILURE TO BREACH, supra note 1, at 233 (“At the earliest stages of training, officers are instilled with the subconscious need to protect the Blue Wall of Silence”). 85 See FAILURE TO BREACH, supra note 1, at 238.


would drastically reduce the risk that a police officer perjures out of ignorance.

PCC participants should also be required to perform a certain amount of community service every year, which would make them more compassionate and integrated into the communities in which they serve. Lastly, PCC participants should be required to maintain some minimum GPA, which would ensure the quality of new cadets. A further measure that should be taken is to actively develop officers’ exposure to and tolerance for different backgrounds, lifestyles and ethnicities. This could be achieved with new recruiting policies, and seminars on diversity and tolerance.86

Two factors suggest that police departments have a stake in hiring more educated police officers. First, Carter and Sapp’s article reports that “[t]he monetary costs of liability are staggering … liability suits pose a significant threat to police resources.”87 Overall, police departments would save money through reduced liability charges. Second, Shernock refers to empirical studies that indicate that educated police officers responded more quickly to calls, were involved in fewer accidents, and were less likely to be assaulted.88 These effects will offset increased costs due to higher salaries.

IVc. Ramifications of These Policies

A more educated police force would, as a direct

result of their higher education, be less inclined to perjury. As the studies above indicated, a more educated police force would be more professional, well-rounded, and ethical. Officers would show more respect and understanding for Constitutional restrictions. In addition,

86 Id. at 239. 87 See CARTER & SAPP, supra note 62, at 153. 88 See SHERNOCK, supra note 50.

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the “Blue Wall of Silence” would be more difficult to sustain. A more ethical and professional police force would be less inclined to conceal their colleagues’ misconduct. A more educated and diverse police force would erode the support for the “Blue Wall of Silence”, as fewer officers would identify with such values.89

CONCLUSION

Perjury may occur before trial with fabricated

search warrant affidavits and ambiguous police reports. In such cases, officers must then perjure themselves in suppression hearings to avoid having their evidence suppressed. Judges, prosecutors, and police departments are sometimes complicit in this scheme, either intentionally or inadvertently, when they either cannot distinguish a lie from true testimony, or because they silently agree with the mentality amongst some police officers that the ends justify the means in bringing a criminal to justice. Following from this belief is the conviction that an alleged criminal should never be released on a technicality. Underlying reasons for the widespread phenomenon of police perjury are officers’ ignorance as to the rationale behind the Fourth Amendment and the exclusionary rule, their close relationship with the prosecution, social pressure, and alienation from society.

Potential procedural adaptations including in camera hearings of informants, installation of miniature cameras on police jackets, flexifying constitutional requirements, and replacing the exclusionary rule with a liquidated damages remedy, are all untenable for various reasons. However, the proposal to use polygraph examinations in cases where suppression hearings rely solely upon the decision to trust an officer or defendant’s

89 See FAILURE TO BREACH, supra note 1, at 238.


sworn testimony has merit. Reducing the occurrence of police perjury will be most effective when adopted in conjunction with the following specific proposals: reduce the narrative portion of police reports with more detailed questions in order to make it more difficult for police officers to lie, expanding the PCC to recruit more college-educated and racially diverse officers. These measures promise more ethical behavior, more reasoned decision-making, and a significant reduction of police perjury.

The Evolution of Command Responsibility in International

Human Rights Law

By Max Markham*

This paper investigates the international legal roots and history of the principle of command responsibility. It examines the various interpretations, opinions, and pertinent tribunal judgments in the past seven centuries in an attempt to establish the customary international law regarding command responsibility.

*Max Markham is currently a senior in the Stanford graduating class of 2012, majoring in International Relations with a minor in modern languages: Arabic, French, and Spanish. He has studied abroad in Paris and Madrid and has traveled to over 40 countries. Max Markham was raised in New York City and is a dual citizen of New Zealand. His interests include human rights, international law, politics, political communication, and journalism. The doctrine of command responsibility, though

expounded upon very briefly in most international tribunal

statutes, is a notably contentious topic in the realm of

international humanitarian law. Defined as “the

responsibility of commanders for war crimes committed by

subordinate members of their armed forces or other persons

subject to their control,”1 the doctrine has been explicitly

developed over the course of the 20th

and 21st centuries via

1 Weston Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107 MIL. L. REV. 71, 76 (1985).


war crime tribunals responsible for bringing justice after

wartime malpractices. In modern times, it has permeated

preeminent precedents for international law, notably the

Additional Protocol I to the Geneva Convention of 1949,

the International Criminal Tribunal for the Former

Yugoslavia (ICTY) and the International Criminal Tribunal

for Rwanda (ICTR), as well as the Rome Statute of the

International Criminal Court. Command responsibility is

established in three ways, as will be explored further in

relation to existing precedents: via the superior-subordinate

relationship, in which the superior exercises "effective

control" over the subordinate;2 via the mens rea

requirement, in which the superior "had reason to know" or

"should have known" of his subordinates’ actions;3 and via

the failure to take adequate responsibility for the actions of

subordinates in punishing and/or preventing the execution

of war crimes. The mens rea requirement, specifically, has

been the subject of controversy in its application to

superiors in terms of whether guilt can be imputed based on

available information, or whether guilt can be imputed

based on the superior having effective control and hence a

duty to be aware of his subordinates’ actions. This paper

will explore the evolution of the doctrine of command

responsibility, tracing its roots back to pre-World War II

documentation that helped establish and develop its modern

jurisprudence.

The trial of Peter von Hagenbach was widely

regarded to be one of the first international criminal

tribunals. Held in 1474, the trial focused on his role in the

enabling of rape, torture, murder and illegal distribution

under his jurisdiction as governor on the Upper Rhine.

Pivotal to the establishment of his guilt, was “the question

2 Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise,

Command Responsibility, and the Development of International Criminal Law, 3.1 CALIF. L.

REV. 75, 75-169 (2005). 3 Id.

Markham 37

of compliance with superior orders”4 under the Duke of

Burgundy, Charles the Bold. His defense was merely a

compliance with superior orders, and he was notably

quoted as saying, “Is it not known that soldiers owe

absolute obedience to their superiors?”2 Regardless of his

defense, Hagenbach was found guilty and beheaded, based

on the proof that he was linked to “crimes which he had the

duty to prevent.”4

General Order 100 further explored the principle in

American law during the Civil War. Known as the Lieber

Code, General Order 100 was signed by President Lincoln

in 1863 to direct the code of conduct for Union soldiers.

Concerned mainly with the ethical and humane treatment of

prisoners, the Lieber Code was seen as a critical

development in military strategy and customary law, as

well as a precursor to the Hague Regulations of 1907.5 As a

means of enforcement, the Lieber Code placed criminal

responsibility upon superiors for allowing the mistreatment

of prisoners and enemies during wartime.

The Hague Conferences of 1899 and 1907 built

upon the Lieber Code by establishing principles of

disarmament and compulsory arbitration by an international

body.6 Additionally, the Hague Conventions promulgated

and further established war crimes, with Convention IV and

X of 1907 more concretely defining “affirmative command

duties in relation to the conduct of subordinate persons.”7

The Hague Conventions proposed no means of

enforcement and were heavily violated by Germany in

World War I. Ultimately, the repercussions were limited to

4

Edoardo Greppi, The Evolution of Individual Criminal Responsibility under International Law, INTERNATIONAL REVIEW OF THE RED CROSS, No. 835 (1999). 5 Grant R. Doty, The United States and the Development of the Laws of Land Warfare, MIL. L. REV. 156, 224-255 (1998). 6 Manley O. Hudson, Present Status of the Hague Conventions of 1899 and 1907, AM. J. INT'L. L. 25.1, 114-117 (1931). 7 Ilias Bantekas, The Contemporary Law of Superior Responsibility, AM. J. INT'L. L. 93.3, 573-595 (1993).


only a few domestic trials for German commanders and

high level war crime violators.

World War II ushered in a deeper exploration of

superiors' responsibility in the development of the

international justice system. The Nuremburg military trials

of 1946 were an effort to prosecute Nazi commanders

based on their implementation of programs to exterminate

"undesirables." It was often the case that these commanders

delivered orders, which were then carried out by

subordinates. As a result, commanders were held

individually accountable for their subordinate units'

heinous conduct.8 Other Nuremburg cases followed suit,

prosecuting superiors based on their negligence of

opposing unlawful actions.

Another development in this post-WWII period

occurred within the International Military Tribunal of the

Far East, which was established by US General MacArthur,

the Supreme Commander for the Allied Powers. The

Yamashita case was pivotal to the development of

command responsibility in the early 20th

century. Similar to

the Hostage and High Command cases of Nuremburg, the

trial held Yamashita in contempt and prosecuted him on the

basis of an omission of responsibility for his subordinates.

Tomoyuki Yamashita, Japanese commander for the

Philippines, was charged on the basis of his failure to

discharge control of the actions of his subordinate units in

the Philippines:

[Yamashita] lawfully disregarded and failed to

discharge his duty as commander to control the

operations of members of his command, permitting

them to commit brutal atrocities and other high […]

which indicate a plan to massacre and exterminate

8 Id. at 574.

Markham 39

a large part of unarmed non-combatant civilian

population of the occupied territory.9

Yamashita defended himself on the grounds that he had not

ordered or tolerated these acts. In his trial, he pleaded not

guilty on the basis that he had no knowledge of the crimes

in question taking place. He was indicted based on the

Tribunal’s finding that he “at the very least must have

tacitly condoned the actions of the Japanese forces in

question, and more likely he had both known as well as

ordered the crimes.”10

Similarly, he was also indicted for

failing to punish the subordinates with the established tacit

knowledge he had. The case was notable for the defense’s

failure to “contest that the war crimes were committed” and

the prosecution’s failure to charge him with the

commission of war crimes or crimes against humanity.

Instead it charged him with the "omission of action to

prevent his men’s behavior,"11

which was crucial for the

development of international law because it subsequently

identified command responsibility specifically as a crime of

omission. It is now defined in many of the modern tribunal

and international court statutes, as well as by the United

States Supreme Court. In addition, the Yamashita standard,

as it is commonly known in international law, helped to

strictly define the mens rea standard, leading many modern

ad hoc tribunals to debate the customary international law.

After the post-WWII developments in international

law, there was a lull in command responsibility's

progression in the 20th

century, as its violation was not

expressly brought to the attention of the international

9 Far Eastern Commission. & United States. Dept. of State. Division of Publications., Activities of the Far Eastern Commission Report by the Secretary General, February 26, 1946 - July 10, 1947. 1947. 10 Stuart E. Hendin, Command Responsibility and Superior Orders in the Twentieth Century: A Century of Evolution, 10 MURDOCH U. ELEC J.L. 100 (2003). 11 Richard J. Goldstone & Adam M. Smith, INTERNATIONAL JUDICIAL INSTITUTIONS: THE ARCHITECTURE OF INTERNATIONAL JUSTICE AT HOME AND ABROAD, 71 (Routledge 2009).


community via international legislation or judicial norms.

As Ilias Banteka writes in the American Journal of

International Law, “No express provision on superior

responsibility was contained in the Geneva Conventions of

1949 […] This resulted in the decline in the use of the

doctrine of superior responsibility for a period of over

thirty years.”12

The vast majority of the rulings in the

Nuremburg and Tokyo trials imposed liabilities on

superiors to control the actions of their subordinates.

Taking into account the “requisite standard of mens rea,”13

the rulings lowered the level of knowledge necessary for

conviction.

In 1977, the Additional Protocol I of the Geneva

Convention of 1949 clarified the issues of superior

knowledge and failure to act, which had been alluded to in

the post-WWII trials. Specifically, Article 86(2) deals with

the notion of a superior failing to act, stating that guilt is

imputed:

...If they knew, or had information which should

have enabled them to conclude in the circumstances

at the time, that he was committing or was going to

commit such a breach and if they did not take all

feasible measures within their power to prevent or

repress the breach.14

Article 87(1) goes on to state the requirement for military

commanders “to prevent and, where necessary, to suppress

and to report to competent authorities breaches of the

Conventions and of this Protocol.”15

An elaboration of the

12 Bantekas, supra note 7, at 574. 13 Eugenia Levine, Command Responsibility: The Mens Rea Requirement, GLOBAL POLICY

FORUM 31 (2005). 14 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 87(1), June 8, 1997 1125 U.N.T.S. 3 [hereinafter Geneva Protocol I]. 15 Id.

Markham 41

Yamashita standard, Article 87 (1) extrapolates on the

potential to impute guilt based on a lack of action. This is

further elaborated on by Article 87(3), which states:

…Parties to the conflict shall require any

commander who is aware that subordinates or

other persons under his control are going to commit

or have committed a breach of the Conventions or

of this Protocol, to initiate such steps as are

necessary to prevent such violations of the

Conventions or this Protocol, and, where

appropriate, to initiate disciplinary or penal action

against violators thereof.16

It should be noted that this was the first explicit

international documentation of the knowledge argument

within the theory of command responsibility. Not only does

Article 87(3) impute guilt based on a failure to act, but it

further imputes guilt based on a failure to take preventative

action. In addition, Protocol I explicitly defines a superior's

ascertainable knowledge as denoting responsibility in the

actions of subordinates, but does not necessarily take into

account a superior's negligence, or the more strictly defined

proposal of “should have known,” as found in the Rome

Statute.17

As shown, Article 87(3) states specifically that

commanders “who are aware” of their subordinates’

breaches of international law are required to exercise

superior responsibility and implement prevention

mechanisms against their subordinates. Simultaneously,

there is much debate as to whether Article 86(2) alludes to

the requirement of knowledge by a superior - either making

reference to provided information subject to neglect by the

16 Geneva Protocol I, supra note 14, art. 87(3). 17 Rome Statute of the International Criminal Court, art. 28(a)(i), U.N. Doc. A/CONF.183/9 (1998).


superior, or to information not provided due to failure of

communications or reporting systems.18

The ad hoc tribunals of Yugoslavia and Rwanda

have specifically delved deeper into the international

jurisprudence of the command responsibility theory. On

May 25th, 1993, United Nations Security Council

Resolution 827 effectively established the International

Tribunal for the Former Yugoslavia (ICTY). By

“interpreting the mens rea standard applicable to command

responsibility as it existed in customary law at the time of

commission of alleged offenses,”19

the ICTY limited the

use of precedent in international customary law. As found

in the ICTY statute, Article 7(3) specifies command

responsibility and the element of mens rea by stating:

[Acts] committed by a subordinate do not relieve

his superior of criminal responsibility if he knew or

had reason to know that the subordinate was about

to commit such acts or had done so and the superior

failed to take such necessary and reasonable

measures to prevent such acts or to punish the

perpetrators thereof.20

It is important to note the two different levels of knowledge

that are encompassed in the ICTY’s definition of mens rea:

direct and "actual" knowledge, which can be ascertained

through testimony or through the compilation of

circumstantial evidence. The Appeals Chamber of the

Celebici and Akayesu cases of the ICTY and ICTR more

strictly defined the phrase, "had reason to know,"21

as will

be further explored.

18 Hendin, supra note 10, at 138. 19 Levine, supra note 13, at 35. 20 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY), art. 7(3). 21 Levine, supra note 13, at 35.

Markham 43

The 1997 Celebici case instigated a new

identification of direct and indirect command responsibility,

as well as a more precise definition of the mens rea

argument. The ICTY found that direct responsibility was

established as a result of a positive action, whereas indirect

responsibility would be established by the “failure to

undertake a necessary act.”22

Further, the Celebici Trial

Chamber judgment took into account the issue of

culpability of non-militarily involved superiors,

commenting, "A superior may be exposed to culpability on

the basis of de facto authority so long as the individual has

the fundamental power to control the acts of

subordinates.”23

The Trial Chamber’s judgment was

notable in that it differed from the stricter Yamashita

standard of "should have known." Instead, it advocated for

the less strict "had reason to know" and used the Additional

Protocol I of the Geneva Convention as the customary

international law. The decision stated the "a superior can be

held criminally responsible only if some specific

information was in fact available to him which would

provide notice of offenses committed by his subordinates.24

The Trial Chamber noted that the explicit statement of "had

reason to know" did not allow for willful negligence of

criminal acts of subordinates.25

Rather, it established that

the mens rea for command responsibility could be found

“where [the superior] had in his possession information of a

nature, which […] would put him on notice of the risk of

such offenses by indicating the need for additional

22 Hendin, supra note 10, at 191. 23 Id. at 194. 24 Prosecutor v. Delalic et al, Case No. IT-96-21-T, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 393 (International Crim. Trib. for the Former Yugoslavia February 20, 2001) [hereinafter Prosecutor v. Delalic et al]. 25 Hendin, supra note 10, at 197.


investigation” and through the existence of circumstantial

or direct evidence leading to “actual knowledge."26

Soon after the Celebici case began, the Tihomir

Blaskic case reviewed similar principles of command

responsibility, yet reached a different conclusion. The

Blaskic Trial Chamber found that effective control over

subordinates or persons committing the crimes must be

established in order to charge for command responsibility.

These subordinates did not have to be formally under the

control of the superior “or in his chain of command” for

him to “be found culpable criminally for crimes committed

by them.”27

Similarly using the Additional Protocol I as the

foundation for customary international law, the Blaskic

Trial Chamber found Article 86(2) to be in conjunction

with Article 87, imposing “a duty on commanders to be

constantly informed of the way in which their subordinates

carry out the tasks entrusted to them, and to take the

necessary measure for this purpose.”28

As a result of this

reading of Protocol I, the Trial Chamber deemed Article

86(2) to be in concordance with Article 87, therefore

defining the mens rea of command responsibility with the

stricter "should have known" standard.29

In 2000, the Blaskic Trial Chamber’s judgment conflicted

directly with the "had reason to know" mens rea standard

of the Celebici Trial Chamber judgment that was delivered

less than two years prior. As defined in the Blaskic Trial

Chamber, the mens rea standard held that "the ordinary

meaning of the provision indicated that the commander

must have some information available to him which puts

him on notice of the commission of unlawful acts by his

26 Prosecutor v. Delalic et al, supra note 24, at 383. 27 Hendin, supra note 10, at 211. 28 Prosecutor vs. Blaskic, Case No. IT-95-14-A, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY February 20, 2001). 29 Levine, supra note 13, at 37.

Markham 45

subordinates.”30

Thus, the Appeals Chamber’s decision, as

the superior legislator, held binding the decision over both

the Blaskic and Celebici Trial Chamber judgments that

there was “no consistent trend in the decisions that emerged

out of the military trials conducted after the Second World

War”31

in regards to a defined customary international law

of the mens rea standard. In the Celebici case, the Appeals

Chamber further elaborated on the principle of "had reason

to know," which held that "the ordinary meaning of the

provision indicated that the commander must have some

information available to him which puts him on notice of

the commission of unlawful acts by his subordinates.”32

This interpretation, which dispelled the standard of

negligence from the ICTY, established a precedent of

“setting a standard of due diligence on the part of the

[superior].”33

The ICTY held that the evidence for the mens rea

standard must be evaluated on a case-by-case basis. The

final decision maintained that the mens rea standard was

only established by the existence of information leading the

superior to "have reason to know" or be able to identify his

subordinates undertaking criminal acts.

In November 1994, the United Nations Security

Council Resolution 955 effectively established the

International Criminal Tribunal for Rwanda (ICTR), which

was created to deal with non-international conflict, while

still containing the defined doctrine of command

responsibility under Article 6(3) - the equivalent of the

ICTY Article 7(3) - in its statute.34

The trial of Jean-Paul

Akayesu, who was appointed to the position of

bourgmestre in the village of Taba, was largely known for

30 Id. at 45. 31 Prosecutor v. Dubrovnik, Case No. ICTY IT-01-42, Appeals Chamber Expands the Scope of Strugar’s Responsibility for Dubrovnik Shelling, 229 (July 17, 2008). 32 Levine, supra note 13, at 45. 33 Hendin, supra note 10, at 215. 34 International Criminal Tribunal for the Rwanda Statute, ICTR art. 6(3), 1994.


its establishment of genocide as a crime perpetrated by an

individual. It reflected decisions pertinent to the

establishment of Akayesu as a superior through de jure

power. Using this de jure superiority as the basis for their

judgment on command responsibility, the Trial Chamber

articulated that:

...Akayesu was responsible for the maintenance of

law and order in the village. The Tribunal further

found that he either knew, or in the alternative, had

reason to have known of the criminal acts taking

place, particularly, near his own office and he did

nothing to either prevent the crime or to punish the

perpetrators.35

Ultimately, the Trial Chamber did not find Akayesu guilty

under Article 6(3) of the statute, and instead sentenced him

on the grounds of actus reus for his complicity in genocide

by aiding, abetting, instigating, and procuring means.

Clement Kayeshima's case was held in a similar

fashion as the trial of Akayesu. The Trial Chamber held

that Article 6(3) of the United Nations Security Council

Resolution 955 expresses a “clear duty upon those in

authority, with the requisite means at their disposal, to

prevent or punish the commission of a crime,”36

and applies

that to the civilians exerting “requisite authority.”37

The

Trial Chamber's allusion to the de facto power of a superior

was a contentious subject due to the lack of formal

definition of his or her explicit power. The Tribunal also

noted that the mens rea standard for non-military superiors

with established de facto power would be held to a lower

standard of "had reason to know;" it does not “demand a

35 Hendin, supra note 10, at 248. 36 Hendin, supra note 10, at 252. 37 Prosecutor v. Clément Kayishema & Obed Ruzindana, Case No. ICTR 95-1-T, Judgment and Sentence, 213 (Trib. Pénal Int’l Pour Le Rwanda May 21, 1999).

Markham 47

prima facie duty upon a non-military commander to be

seized of every activity of all persons under his or her

control.”38

Ultimately, the court ruled:

In light of this incontestable control that Kayishema

enjoyed, and his overarching duty as a Prefect to

maintain public order, the Trial Chamber is of the

opinion that a positive duty upon Kayishema existed

to prevent the commission of the massacres […] No

evidence was adducted that he attempted to prevent

the atrocities that he knew were about to occur and

which were within his power to prevent.39

He was sentenced to life imprisonment by the Trial

Chamber, which was upheld by the Appeals Chamber in

June 2001.

In 1999, Alfred Musema-Uwimana was prosecuted

on the basis of his complicity in genocide. His superior

responsibility for committing of genocide was due to his

ownership of a tea factory in the Byumba Préfecture. As a

non-military civilian, Musema-Uwimana was found guilty

of criminal responsibility for his de jure as well as de facto

control over his employees. He failed “to take any measure

to prevent or punish the commission of these crimes,”

instead “aiding and abetting in their commission by his

presence, and, in some cases, his participation”40

by

helping transport armed rebels in a vehicle and with his

presence during systematic attacks on Tutsi individuals.

Although it is sometimes asserted that the ICTR

failed to properly develop or apply the doctrine of

command responsibility,41

it is apparent from the Musema,

38 Id. at 228. 39 Id. at 513. 40 Prosecutor v. Musema, Case No. ICTR 96-13-A, Judgment and Sentence, 57 (Trib. Pénal Int’l Pour Le Rwanda Jan. 27, 2000). 41 Matthew

Lipmann, Humanitarian Law: The Uncertain Contours of Command

Responsibility, 9 TULSA J. COMP. & INT'L. L., 85 (2011).


Kayishema, and Akayesu cases that the ICTR did, in fact,

define command responsibility. It furthered developed it in

terms of its relevance to the unique Rwandan conflict in a

way that allowed for the aforementioned cases to be

effectively tried in international court. In the Akayesu case,

though the Trial Chamber determined that Akayesu had

exercised de jure control over his subordinates, it also

deemed that he did not have effective or structural control.

As a result, he was not convicted on the mens rea standard

of responsibility for the actions of his subordinates, and the

strict liability standard was rejected. However, in the other

two aforementioned cases, both Kayishema and Musema-

Uwimana’s convictions expanded the nature of the

command responsibility doctrine to encompass civilian

responsibility. The issue of civilian responsibility was an

extremely important development in international law,

especially with regard to the Rwandan genocide, as it

organized and defined a previously unclear subject,

ensuring a more appropriate and structured justice process

for civilian offenders like Musema-Uwimana and

Kayeshima. The Tribunal explicitly established that the

mens rea standard, though lower for non-military or de jure

superiority, was still applicable to civilian superiors with

structural control over their subordinates. It would thus

appear as if the understanding of command responsibility

with relation to the mens rea standard has been well

established by both Tribunals insofar as the negation of the

standard of negligence.42

Further, both Tribunals have

accentuated important topics incorporated into the Rome

Statute, such as civilian versus military responsibility (and

the differences, if any, in standards of mens rea for each) as

well as the "had reason to know" versus "should have

known" arguments of customary international law.

42 Danesh Sarooshi & Malcolm D. Evans, Command Responsibility and the Blaskic Case, 50.2 INT'L & COMP. L.Q., 456. (2001).

Markham 49

The undertaking of both the ICTY and the ICTR

channeled momentum into the establishment of the

International Criminal Court via the Rome Statute, which

was enacted in July of 1998. Article 28 notably defines the

ICC’s position on superior responsibility; 28(a), which

refers explicitly to “a military commander or person

effectively acting as a military commander”43

and Article

28(b), which refers to “superior and subordinate

relationships not described in paragraph (a),”44

were

interpreted to encompass acts carried out by non-military

civilians, as was taken into account in the Kayishema and

Musema cases in the ICTR. For command responsibility to

be established with regard to military personnel, Article

28(a) specifies that superiors must have failed to exercise

“effective command and control” or “effective authority

and control” over their subordinates, notably making use of

what has been interpreted to be a stricter reading of the

mens rea requirement. The interpretation would follow that

the superior “either knew or, owing to the circumstances at

the time, 'should have known' that the forces were

committing or about to commit such a crime.”45

Furthermore, as distinct from 28(a), Article 28(b) notably

does not include the "should have known" clause, instead

replacing it with: “knew, or consciously disregarded

information which clearly indicated, that the subordinates

were committing or about to commit such crimes.”46

Similar to its application in the Kayishema case, the ICTR

presents jurisprudence under which non-military superiors

with effective control within the specific crimes that were

committed47

are held to a lower standard of the mens rea

requirement. The word "clearly," which acts as an

43 Rome Statute of the International Criminal Court, art. 28(a), U.N. Doc. A/CONF.183/9 (1998). 44 Id. art. 28(b). 45 Id. art. 28(a)(i). 46 Id. art. 28(b)(i). 47 Id. art. 28(b)(ii).


indication of the intent to commit a crime, seemingly

heightens the evidentiary basis for which mens rea must be

established. Moreover, it lowers the liability standard for

civilians who express influence over subordinates but does

not formally distinguish "effective authority and control"

and absolves them of the requirement to make use of their

"informal influence and persuasion."48

Still, there is great debate as to whether the

jurisprudence of the Rome Statute does in fact indicate the

stricter "should have known" mens rea requirement. In the

opinion of former World Bank attorney Eugenia Levine,

Article 28(a) of the Statute adopts a stricter interpretation

of the mens rea requirement, suggesting that it may

reasonably be interpreted to impose an “affirmative duty to

remain informed of the activities of subordinates.”49

The

implementation of the stricter "should have known"

requirement of superiors can be used as a deterrent to

apathy or turning a blind eye, and firmly establishes the

role of a superior in international criminal law. At the same

time, an interpretation of superiority as a duty to preserve

international law among subordinates could be considered a

breach of legality because it does not adhere to the direct

commission of a crime, but rather enforces peace among

subordinates. German law professor Kai Ambos advocates

for the standard of conscious negligence to be interpreted

as international jurisprudence, saying:

…the ‘should have known’ and ‘consciously

disregarded’ standards of Article 28(1)(a) and (2)(a)

do not require awareness, nor do they require the

imputation of knowledge on the basis of purely

objective facts. In essence, the superior must

48 Lippman, supra note 41, at 86. 49 Levine, supra note 13, at 48.

Markham 51

possess information that enables them to conclude

that the subordinates are committing crimes.50

Ambos interprets the Statute to read that imputation of

knowledge is not guaranteed by the established effective

control. Rather, there must be a situation of conscious

negligence or “advertent recklessness”51

with an

availability of information for command guilt to be imputed.

As shown, the doctrine of command responsibility

has developed from an ill-defined concept into a

cornerstone of the modern jurisprudence of international

humanitarian law. The exact definitions and applications of

command responsibility, especially in regards to mens rea,

have been intensely contested, with varying opinions

advocating for different interpretations of modern law. The

Rome Statute, ICTY and ICTR, and the Additional

Protocol I to the Geneva Convention have all contributed to

modern customary international law. They all have subtle

ambiguity in language, allowing each case of humanitarian

violations and war crimes to be treated differently. As

reprehensible crimes against humanity continue to occur

globally, international justice, when applied, will

undoubtedly be further developed by the particularities of

each unique trial.

50 Kai Ambos, Joint Criminal Enterprise and Command Responsibility, 5.1 J. INT’L CRIM. JUST. 159, 179 (2005). 51 Sarooshi & Evans, supra note 42, at 456.

Innovation and Revolution: How Secondary Liability over Copyright Infringement Hurts Social Media Growth

By Brenda Muñoz*

The explosive development of social interaction on the Internet in the last decade has blurred the lines of ownership and content dissemination that were once so clear in the pre-digitalized era. The resulting copyright confusion has led to a prolonged legal battle between the old media guard and new emerging social media companies. This paper argues that forcing liability on social networks and other social media technologies for copyright infringement done on the part of their user base stifles innovation for the social media sector as a whole. This paper analyzes recent court cases, which rely on the copyright strategy of secondary liability and the negative impact it has on the social media industry. The conclusion is that by repressing the type of innovation which social media is introducing to the sector, old media corporations are also restricting a revolution of information, which benefits society as a whole.

*Brenda Muñoz is a sophomore at Stanford University who plans to pursue a Bachelor’s Degree in Political Science. After graduation, Muñoz’s plans include going to law school and focusing on the intersection between technology and the law, including topics as intellectual property, privacy, and freedom of expression. Ultimately, she hopes to work in and study the fast-emerging technology law sector.

Muñoz 53

Table of Contents

INTRODUCTION 52 I: THE HISTORY OF THE DIGITAL MILLENNIUM

COPYRIGHT ACT 54 Ia. Digital Millennium Copyright Act 55 Ib. Peer-to-Peer File Sharing Networks 57 II: SECONDARY LIABILITY AND COPYRIGHT

INFRINGEMENT: PARADIGM CASES 59 IIa. Viacom v. YouTube: Financial Liability 59 i: First Counterclaim 61 IIb: Universal Music Group (UMG) v. MySpace: Technological Stagnation 63 i: Second Counterclaim 66 III: CONCLUSION 68

INTRODUCTION

The rapid growth of the social media sector poses

many challenges to the legal system that has been in place for centuries in the United States. Such challenges have forced the existing jurisprudential structure, notorious for being slow to respond to change, to confront its shortcomings in the realm of 21st Century legal problems. Nowhere is the divide between emerging technologies and their participation in the judicial structure more prominent than in the difficulties which have arisen from litigation concerning copyright infringement. The social media sector has transformed the way we view important aspects of our lives: socially, economically, and culturally. Technology has made participation in society more democratic, both by facilitating the transmission of information and chipping away at its monopolization by a privileged few. This ultimately results in wide-ranging individual and societal progress.

However, an outdated copyright model, still embraced by such media giants as Viacom and Universal


Media Group, threatens this vision of a freer world through technology. This model is based on hierarchical distribution, and encourages an asymmetrical process in which the masses were empowered only to consume. Such a model dominated most of the 20th Century, and works well with the original system that the United States government created to support copyright protection. Innovation by social media has given us another model, one based on user-generated content and the widespread sharing of ideas. Facebook, Yahoo, and eBay summarized this view best in the amicus curiae they submitted to the courts in support of YouTube and Google, which stated that the lawsuit that Viacom brought against the video-sharing site “inhibit[s] the growth and development of user-centric online models that, day after day, make[s] the Internet and the world more democratic.”1

In this paper, I will argue that the rise of litigation in the copyright sector over secondary liability has a negative effect on companies that fall under the umbrella of “social media” (i.e companies that facilitate the exchange of information between users) because it discourages these companies from pursuing innovation that democratizes the internet. First, I will examine the history of copyright infringement in the context of modern technology, including the relevant legislation of the Digital Millennium Copyright Act and the Supreme Court cases of Sony v. Universal and MGM Studios v. Grokster. Then, I will use the cases of Viacom v. YouTube, Universal Music Group v. Veoh, and Universal Music Group v. MySpace as contemporary examples to showcase how secondary liability of copyright infringement has led to unjust placement of financial liability and technological stagnation within the social media sector, both of which have negative effects on social

1 See Brief of Amici Curiae Ebay Inc., Facebook, Inc., IAC/Interactive Corp, et al, in Support of Defendants, Viacom v. YouTube, 718 F. Supp. 2d 514 (S.D.N.Y 2010), appeal docketed, No. 10-3270 (2d Cir. Dec. 3, 2010) (No. 07-CV-2103, 2007 LLS 346).

Muñoz 55

media innovation. Finally, I will address the prevalent counterarguments, based on alternate readings of the DMCA and opposing views of the extent to which secondary liability should be applied, and how neither effectively addresses the issue of copyright liability for social media companies.

I: THE HISTORY OF THE DIGITAL MILLENNIUM COPYRIGHT

ACT

Much debate exists as to the bearing of the DMCA to emerging Web 2.02 applications. There are those that argue the market relationship between social media and copyright holders is more skewed towards the former as compared to the relationship between Internet Service Providers and copyright holders. As such, significantly relevant to the conversation is the legal precedent set by such cases as Sony v. Universal and Metro-Goldwyn-Mayer. v. Grokster. As one of the first of its kind, the 1984 Supreme Court case between Sony and Universal involved an emerging technology of the time: Betamax, a video tape technology similar to video cassettes.3 Universal alleged that Sony’s Betamax video tape recorders were primarily being utilized to record copyrighted works originally broadcasted on television The corporation also claimed that Sony had “constructive knowledge” that this would be its principal use.4 In a 5-4 decision, the Supreme Court ruled that Sony was not liable for the copyright

2 Exactly what constitutes web 2.0 is indeterminate at times, but for the most part Web 2.0 is seen as programs and applications, which facilitate online interaction between two parties, with an emphasis on collaboration and information sharing. The industry is now underlined by social interactions, whereas before the Internet was seen as the digitalization of content for pure distribution purposes. 3 Lital Helman, Pull Too Hard and the Rope May Break: On the Secondary Liability of Technology Providers for Copyright Infringement, 19.1 TEX. INTELL. PROP. L.J. 111, 110-128 (2010) (legal background and doctrines of the Sony v. Universal case). 4 Brandon Brown, Fortifying the Safe Harbors: Reevaluating the DMCA in a Web 2.0 world, 23.1 BERKELEY TECH. L.J. 437, 437-438, (2008) (introduction of the “constructive knowledge” doctrine and its application in Sony).


infringement done by those who used its product; the Court concluded that: “…a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.”5 The decision represented a watershed moment for technological innovators and their continued protection.

Ia. Digital Millennium Copyright Act

Though the Sony case pioneered a limited reading

of secondary liability in terms of copyright infringement in the technology sector, its dominance as legal doctrine could not last. The late 1980s and 1990s saw the rise of the personal computer and swift adoption of the Internet and ultimately the World Wide Web. Sharing items with other people became exponentially easier, leading to new and complicated legal issues, which the Sony case could not address because it could only deal with physical reproduction. As such, pressure began to mount on Congress from all sides to address these new digital issues, leading to a groundbreaking piece of legislation whose effects still have a tremendous impact on the Internet, and leading into the 2000s, on the rise of social media. The Digital Millennium Copyright Act (DMCA),6 signed into law on October 28, 1998, is an example of a prominent piece of legislation that has created precedent in copyright law. As Congress hoped that the DMCA would “[ensure] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the

5 Sony Corporation of America v. Universal City Studios, Incorporation, 464 U.S. 417 (1984). 6 Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 17 and 28 U.S.C.) [hereinafter DMCA].

Muñoz 57

Internet will continue to expand,”7 the act created laws with the intention of discouraging piracy declaring: “No person shall circumvent a technological measure that effectively controls access to a work protected under this [act].”8 The Act furthered this intent through Title II known as the Online Copyright Infringement Liability Limitation Act (OCILLA) to the DMCA. Title II of the act exposed Internet Service Providers to claims of secondary liability as a result of their customers,9 declaring: “The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement.”10

This specific title of the DMCA began a system of takedown notices, which ISPs were required to use to remove infringing content on a website reported by copyright holders. OCILLA provided “safe harbors” for ISPs and other qualifying online companies by ensuring that they would not be held liable when their user base exchanged information that infringed on copyright over the Internet.11 Thus, the DMCA along with OCILLA gave ISPs an opportunity to immunize themselves from infringement liability so long as they take the steps required to cooperate with making sure copyright holder’s rights are enforced. However, the certainty of the Sony precedent and the “safe harbor” provision of the DMCA would not last, and would later be challenged by another Supreme Court case, this one several years later and involving peer-to-peer file sharing networks.

7 See H.R. REP. NO. 105-190 (Part 3), 105th Cong., 2d Sess. 23 (July 22, 1998). 8 17 U.S.C. § 1201(1)(2)(A) (1998). 9 Brown, supra note 4. 10 17 U.S.C. § 512(a)(1)(A) (1998). 11 Brown, supra note 4, at 444.


Ib. Peer-to-Peer File Sharing Networks The “safe harbor” provision of the DMCA

strengthened the defense against secondary liability, which the Sony case had provided, both for analog and digital technologies alike. However, the widespread adoption of the Internet began to foster an environment of profuse and unregulated distribution of content. This frightened many, including those corporations who held copyright over thousands of works on the market. It became inevitable that the pro-technology and pro-innovator tilt of the legal system would buckle under the pressure, and reversals on the established status quo began to emerge. The most radical came in the form of another Supreme Court case, this one several years after the Sony case and the adoption of the DMCA, which involved peer-to-peer file sharing networks. P2P networks, such as Napster, enabled online users to exchange copyrighted works with ease. Napster was the first network to face litigation, followed by the case of MGM Studios v. Grokster.12 The lower courts which presided over the case ruled in favor of Grokster Ltd. and StreamCast Networks, citing: “…liability for contributory infringement accrues where a defendant has actual - not merely constructive – knowledge of the infringement at a time during which the defendant materially contributes to that infringement.”13 With their decisions, they cited the Sony case as precedent, applying its safe harbor protection since the technology was capable of “substantial noninfringing use.”14 MGM and the other plaintiffs anticipated this argument, and made the case that Grokster and StreamCast were not interested in the users who qualified under this provision; the two networks targeted their marketing to the users who exchanged

12 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). 13 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 269 F. Supp. 2d 1213. (C.D. Cal., 2003). 14 Brown, supra note 4, at 440.

http://en.wikipedia.org/wiki/Case_citation

http://en.wikipedia.org/wiki/2005

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copyrighted works, and it was this user base that the two P2P networks presented to potential advertisers.15 In August 2005, the Supreme Court handed down their decision, ruling that Grokster and StreamCast were liable for infringement done by their users: “One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, going beyond mere distribution with knowledge of third-party action, is liable for the resulting acts of infringement by third parties using the device, regardless of the device’s lawful uses.”16

Though the justices agreed that the lower courts had misinterpreted the Sony decision when issuing their rulings, they refused to revisit the doctrine, stating that there was no need to do so in relation to their Grokster decision.17 The contradiction between the two Supreme Court cases was obvious: the Sony case had left the door open for technologies to emerge that facilitated the transmission of copyrighted content, and when this actually occurred with the emergence of the Internet, the Court decided to backtrack from a situation which was threating to loosen the control of the copyright owners. The result was a set of circumstances where potential tech innovators could not accurately assess potential legal consequences of their products, especially since they were working with technologies that were brand new, and which the Supreme Court would be unlikely to be familiar with.

15 Id. 16 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154 (9th Cir. 2004). 17 Brown, supra note 4, at 440.


II: SECONDARY LIABILITY AND COPYRIGHT INFRINGEMENT: PARADIGM CASES

Given the two contradictory legal doctrines

provided by the Supreme Court and a piece of congressional legislation ripe for misapplication, the legal circumstances which existed as social media began to grip the technological sector were murky at best. Neither the past judicial decisions nor the DMCA were equipped to address the legal issues surrounding social media. The nature of social media, the core philosophy of exchanging information and holding conversations online, was fundamentally different than the online applications and programs, which the DMCA was supposed to prohibit. It was no coincidence, then, that the courts are now facing cases, such as Viacom v. You Tube and Universal Music Group v. Veoh, that deal with the gaps that the DMCA and court cases left; namely, the shift in purpose of the Internet from the digitalization of resources to a platform of discussion provided by social media.

IIa. Viacom v. YouTube: Financial Liability

The lawsuit to emerge from this conflict, one that is still ongoing, is that of Viacom International Inc., et. al. v. YouTube, Inc. et. al. On March 13th, 2007, Viacom filed a lawsuit against YouTube and its parent company, Google, seeking one billion dollars in damages for “160,000 unauthorized clips of Viacom’s programming…viewed more than 1.5 billion times.”18 Viacom alleged that the DMCA required YouTube to actively search for and remove infringing content, which the company claimed the video-sharing site

18 Stephanie C. Ardito, Social Networking and Video Web Sites: MySpace and YouTube Meet the Copyright Cops, SEARCHER: THE MAGAZINE FOR DATABASE PROFESSIONALS, May 2007.

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wasn’t doing.19 In fact, like MGM before it, Viacom argued that YouTube was well aware of copyright infringement by their users, did not do anything about the situation, and actively promoted itself to advertisers as a booming marketing medium20. In their brief, Viacom alleged that: “YouTube itself commits the infringing duplication, distribution, public performance, and public display of Plaintiffs’ copyrighted works, and that infringement occurs on YouTube’s own website, which is operated and controlled by Defendants, not users.”21 Essentially, Viacom claimed, YouTube was making money off the copyright infringement of others, and was thus promoting and inducing the practice.22 YouTube responded by reminding Viacom of its role in enforcing copyright through the DMCA’s takedown notice, and that it did everything that it was legally required to do. In providing a safe harbor for Internet Service Providers against secondary liability, the DMCA required that the ISPs have this system in place. Because it had done so and continues to do so, YouTube argued that it was protected by the DMCA and not liable for their users’ infringement.23 The litigation, which has goes on for a little over four years with no end in sight, has had an adverse effect on YouTube and on the rest of the social media sector. The consequences for YouTube of such a public legal battle are not immediately evident, but they are definitely there. First, there is the unavoidable fact that litigation such as the one between Viacom and YouTube takes up an inordinate amount of time, money, and resources, all tools spent by YouTube not for its actual services but for defense against a

19 Alexis Allen, Battling in the Name of Balance: Evaluating Solutions to Copyright Conflict in Viacom International v. YouTube, Vol. 2007 Nbr. 4, January 2007 B.Y.U. L. REV 1023, 1049 (2007). 20 Id. 21 Complaint for Declaratory and Injuctive Relief and Damages, Viacom Int’l, Inc v. YouTube, Inc., No. 07-CV-02103 (S.D.N.Y. Mar. 13, 2007). 22 Allen, supra note 19, at 1049. 23 Id.


brutal attack. In the summer of 2010, after the US District Court ruled in favor of YouTube, Google told its investors that they had spent one hundred million dollars on the lawsuit.24 This incredible amount is only up to that specific moment in the case; it does not include the fees involving Viacom’s appeal of the decision, or the potential legal fees if the case goes all the way to the Supreme Court, which to some is the inevitable outcome. Ultimately, in suing YouTube and demanding that it take a more active role in cracking down on copyright infringement, Viacom wants to require YouTube and Google to take actions and make decisions, which conflict with their business goals. This goes against the very foundation of capitalism, which the legal doctrine of copyright claims to protect. There is also the effect this lawsuit has on smaller, startup tech companies. These companies will see Viacom’s one billion dollar demand and be afraid to develop a revolutionary technology or platform in which users share information because of the potential lawsuits involving copyright infringement that might arise. Though YouTube may have the resources to continue the fight, smaller companies do not, and their freedom and space to innovate is being limited by the shadow of copyright litigation.

i: First Counterclaim

Though YouTube, Veoh, and social media in general have a powerful argument of protecting innovation and exchange of information by their users on their side, Viacom, Universal Music Group, and other copyright holders have the resources and interest needed to develop their own counterclaims to this argument and continue a long, legal battle. The main argument given, one they claim

24 Megan O’Neill, Google CFO Reveals Viacom’s Lawsuit Cost YouTube $100 Million, SOCIALTIMES (July 16, 2010), http://socialtimes.com/google-cfo-reveals-viacom%E2%80%99s-lawsuit-cost-youtube-100-million_b17615.

http://socialtimes.com/google-cfo-reveals-viacom%E2%80%99s-lawsuit-cost-youtube-100-million_b17615

http://socialtimes.com/google-cfo-reveals-viacom%E2%80%99s-lawsuit-cost-youtube-100-million_b17615

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can be found within the Digital Millennium Copyright Act, is the claim that YouTube and other online service providers have the legal responsibility to actively remove infringing content if they have any sort of knowledge that such content exists. In their legal briefs, Viacom claimed that YouTube was aware in general of content that infringed on the copyright of others, and this broad “knowledge” is what Congress meant when they enacted the DMCA.25 The courts that ruled in favor of YouTube said that the lack of specific knowledge of where the infringing was happening – URLs of infringing video and accounts that hosted copyright material – meant that YouTube did not have the “knowledge” of copyright infringement defined by the DMCA.26 YouTube had demonstrated in their legal filings that they complied with the takedown notice of the DMCA, which they were legally required to do. Viacom’s argument of general knowledge of infringement is further denigrated when you consider the fact that even the company itself was unsure what kind of content was infringing and what was not. In 2009, Viacom dropped several videos from the lawsuit that it claimed were being infringed on because the company found out that the videos had been uploaded by Viacom employees; lawyers went on to drop several hundred more videos a year later.27 If Viacom finds it hard to use this “general knowledge” to determine which videos are infringing, how can they expect YouTube to use this definition of knowledge to remove copyright infringement on their website? While Viacom has the resources to

25 Joe Mullin, Viacom Takes A Final Shot at YouTube, PAIDCONTENT.ORG (May 2nd, 2011), http://paidcontent.org/article/419-viacom-takes-a-final-shot-at-youtube/. 26 See id. 27 See Mike Masnick, The Difference Between Content and Communication in the YouTube/Viacom Billion Dollar Spat, TECHDIRT (May 27th, 2008), http://www.techdirt.com/articles/20080526/2348521220.shtml; see Mike Masnic, Viacom Still Can’t Figure Out Which Clips Actually Infringed on YouTube, TechDirt (Mar. 18th, 2010), http://www.techdirt.com/articles/20100317/1936288607.shtml.

http://paidcontent.org/article/419-viacom-takes-a-final-shot-at-youtube/

http://www.techdirt.com/articles/20080526/2348521220.shtml

http://www.techdirt.com/articles/20100317/1936288607.shtml


continue long battles of litigation, their case against YouTube further proves the issues regarding secondary liability and the ineffectiveness of forcing an online service provider to follow any lead, however tenuous, of copyright infringement.

IIb. Universal Music Group (UMG) v. MySpace:

Technological Stagnation

Universal Music Group v. Veoh is another example of how copyright litigation over secondary liability hinders the growth of social media. Veoh launched in 2005, branding itself as an internet television network that allowed anyone to create and broadcast their own TV show or a channel full of shows.28 The site, which had Michael Eisner, CEO of Walt Disney, as a member of its Board of Directors, was ultimately overshadowed by its competitor, YouTube.29 However, UMG’s lawsuit against Veoh, which is further along in the system than the lawsuit between Viacom and YouTube, serves as a preview of the latter court case. The courts have been friendly to Veoh: a Los Angeles Federal judge ruled in the video site’s favor in 2009, ruling that: “…Veoh expeditiously removed infringing videos upon attaining actual knowledge of such videos…For the above reasons, the Court finds that the undisputed facts show that Veoh fulfilled the requirements of section 512 [of the DMCA].”30 What is unique about this particular case is the financial trouble that Veoh has been dealing with in the last couple of years. The company went through a series of layoffs for several years, letting go of its

28 Interview with Dmitry Shapiro, CEO of Veoh, SOCALTECH.COM (Dec. 12th, 2005), http://www.socaltech.com/fullstory/0002761.html. 29 Supra note 25. 30 See UMG Recordings, Inc. v. Veoh Networks, Inc. (Veoh IV), No. CV 07-5744 AHM (AJWx), 2009 U.S. Dist. LEXIS 70553 (C.D. Cal. May 5, 2009)

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remaining employees in 2009.31 That same year, Veoh CEO Dmitry Shapiro announced that the company would be filing for bankruptcy.32 In a blog post, Shapiro cited the ongoing litigation with UMG as a significant factor in the failure of the company, calling the legal battles a “distraction” from his business of running the company.33 Veoh’s case study demonstrates the very dangerous effect that copyright litigation can have on smaller tech companies who do not have the financial backing of tech giants like Google. Though the courts have ruled in Veoh’s favor, the process itself has left it struggling to survive. This demonstrates the complete ineffectiveness of litigation as a means to enforce copyright and/or preserve innovation: UMG has continued to push the case in appeals, and the decisions, meant to protect Veoh and the booming social media sector, have done more harm than good. Though appeals and other aspects of the legal system can be shown to have an adverse effect on social media innovation, settlements between two parties can also cause technological stagnation within the sector. This is evident in the lawsuit Universal Music Group brought against MySpace on November 17, 2006.34 In the lawsuit, Universal claimed that “MySpace [was] well aware of Plaintiffs’ [UMG] copyright interests in the thousands of sound recordings, musical compositions, and music videos that have been posted to MySpace without Plaintiffs’ permission.”35 By the time the lawsuit was filed, News Corp, the powerful media corporation owned by Rupert

31 David Kaplan, Veoh Lays Off Remaining Staffers, Files for Bankruptcy, PAIDCONTENT.ORG, (Feb. 11th, 2010), http://paidcontent.org/article/419-veoh-lays-off-remaining-staffers-prepares-for-bankruptcy/. 32 See id. 33 Id. 34 Universal Music’s Copyright Infringement Lawsuit Against The Social Networking Website MySpace, FINDLAW (Nov. 17, 2006), http://news.findlaw.com/wsj/docs/ip/umgmyspace111706cmp3.html. 35 Id.

http://paidcontent.org/article/419-veoh-lays-off-remaining-staffers-prepares-for-bankruptcy/

http://paidcontent.org/article/419-veoh-lays-off-remaining-staffers-prepares-for-bankruptcy/


Murdoch, had already bought MySpace. Wanting to avoid a costly and drawn out legal battle, and owned by a corporation which itself had “copyright interests” to protect, MySpace settled with Universal quietly in spring 2008.36 Their agreement gave Universal an equity stake in a joint venture launched by MySpace called MySpace Music, along with Sony BMG and Warner Music Group.37 When the news broke, media outlets reported it with excitement, showcasing an example of the two sides in this contentious public debate reaching a (what appeared to be) mutually beneficial compromise. However, this had the opposite effect, and showed that a settlement can be a dangerous alternative for social media companies. There are many reasons as to why MySpace’s settlement with Universal Music Group did more damage than good. First, MySpace has been struggling to compete with other social networks and social media companies that have been flourishing within the last couple of years. Once considered a social networking giant, MySpace now lags behind sites like Facebook and Twitter; the site lost ten million users in one month and one hundred million in one quarter this year alone.”38 Of course, there are multiple reasons as to the “demise”, as many tech pundits put it, of MySpace. One reason involves the fact that MySpace sacrificed innovation and effectively responding to the needs of their users in favor of establishing a good relationship with the traditional media corporations that have dominated popular culture. The social network’s settlement with Universal is just one example of this overall trend. MySpace made the conscious decision of adhering within the limits set by traditional media, which

36 Michael Arrington, Confirmed: MySpace To Launch New Music Joint Venture With Big Labels, TECHCRUNCH (April 2, 2008), http://techcrunch.com/2008/04/02/myspace-to-launch-new-music-joint-venture-with-big-labels/. 37 Id. 38 Emma Barnett, MySpace loses 10 million users in a month, THE TELEGRAPH (March 24, 2011), http://www.telegraph.co.uk/technology/myspace/8404510/MySpace-loses-10-million-users-in-a-month.html.

http://techcrunch.com/2008/04/02/myspace-to-launch-new-music-joint-venture-with-big-labels/

http://techcrunch.com/2008/04/02/myspace-to-launch-new-music-joint-venture-with-big-labels/

http://www.telegraph.co.uk/technology/myspace/8404510/MySpace-loses-10-million-users-in-a-month.html

http://www.telegraph.co.uk/technology/myspace/8404510/MySpace-loses-10-million-users-in-a-month.html

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included an asymmetrical copyright observance. MySpace, with the guidance of News Corp, ran the company according to “professional management”: coming up with a plan and seeing that it was executed.39 The social network didn’t allow their product “permission to do whatever it takes to keep growing. And resource it as best [as they could] – without prejudice as to what might work well, or even best.”40 MySpace stuck to the roles of the professional world, including traditional notions of copyright, when social media innovation required them to have “its ears close to the market, and the flexibility to react quickly, willing to make mistakes (and learn from them even faster) without bias for a predetermined plan.”41 This was part of the mistake MySpace made in settling with Universal Music Group and placing copyright, among other older doctrines of mass communication, above true, 21st Century innovation.

i: Second Counterclaim

The legal argument on the part of UMG is an accurate characterization of the way that media corporations and copyright holders view the role that social media and sites with user-generated content should have in terms of copyright infringement by their users. Helman Lital, a legal scholar who published an article on the issue of secondary liability in the Texas Intellectual Property Law journal, argued that secondary liability is a viable way of enforcing copyright, despite the current ineffectiveness of the model that had emerged from contradictions present in contemporary copyright legislation and court cases. His argument is predicated on

39 Adam Hartung, How Facebook Beat MySpace, Forbes, (January 14, 2011), http://www.forbes.com/sites/adamhartung/2011/01/14/why-facebook-beat-myspace/ 40 See id. 41 Id.


three basic assumptions, which he believed made secondary liability the best option for copyright holders fighting infringement in the digital sphere. The first assumption is that cost-effective litigation targets one key player instead of multiple infringers. Copyright holders see secondary liability as a cheaper and less time-consuming option than suing each individual direct infringer. However, the most obvious objection to this first assumption is simple: why should a technology be held accountable for infringement done by an individual person, especially when the main purpose of that technology is not explicitly for copyright infringement? One can only assign liability to an extent before beginning to traverse into unjust territory and place blame on an entity, which has no constructive control over the matter.

The second assumption claims that secondary liability is a better option of compensation because of the higher wealth of these social media platforms. Assigning secondary liability to these larger, wealthier corporations ensures that the potential compensation is higher, since copyright holders can receive much more monetary-wise from a thriving Internet company than from most individual infringers combined. However, the very fact that social media companies have more economic capital at their disposal means that they, like the media corporations and copyright holders, can hire expensive lawyers and mount a much better defense than individual direct infringers ever could.

The final assumption of this belief is that social media companies can act as the gatekeepers of copyright enforcement. Given the primary responsibility to track acts of copyright infringement that take place on their networking sites, social media corporations can act as “controllers of passageways that are essential in engaging in infringement.”42 However, the idea that social media

42 Helman, supra note 3, at 162.

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companies could become “gatekeepers” of copyright infringement falls apart when the highly decentralized character of the Internet is taken into account. True, MySpace could attempt to fill this noble role for copyright holders, but the high number of restrictions that such a process would require them to place on their users would simply cause the users to move to another site and post infringing content there. Though viable theories at face value, implementation of the model, which copyright holders hope to have with social media falls apart at the seams very quickly.

CONCLUSION

True and momentous change such as the type that social media is inflicting on this generation comes infrequently. Calling the change a revolution is neither exaggerated nor understated: it is the perfect word to describe the modernization in the exchange of information that social media is responsible for. This revolution is a direct result of the innovation being pursued by the social media industry, and it is this revolution, which is being infringed upon by the copyright holders who insist on molding it to fit their traditional views. Social media innovation is not just about creating new technologies; the innovation is the fact that these technologies are changing the way we communicate.

Unfortunately, the hindrance of the copyright litigations hurts the technological innovators and the millions of users who are benefiting from these technologies. These 21st Century websites are characterized by their main function: the sharing and dissemination of user-generated content, abbreviated by many as UGC. These sites allow their users to post videos, photos, text files, music, and many other forms of digital content to their profiles that these users can then share


with their friends or the entire site community. Such a fundamental shift needs to be allowed to grow, which is why imposing barriers to the revolution is doomed to failure. It is the responsibility of our lawmakers and those in power to pay attention to the revolution and to change the laws in this country to allow social media, and its innovation in the dissemination of information, room to grow. There is a reason that our institutions were created with the option for flexibility in their very foundations. Even centuries ago, those who were designing the legal system we have in place to this day were expecting change in society to spill over onto our legal principles, and they provided a way for the system to be modified according to these inevitable changes. It is for this reason, among many others, why the attempt to impose liability on social media and social networking over copyright infringement will hurt that industry’s rapid innovation, which is poised to completely transform most facets of society.

Miscarriages of Justice in Northern Ireland:

What the United States Can Learn from the United Kingdom’s Involvement in

Northern Ireland

By Sarah Rouhan*

Using Great Britain’s response to domestic terrorism in Northern Ireland as an example, the United States can learn which specific policies and strategies should be avoided in future policy-making due to their severe restrictions on the civil liberties of the country’s citizens. After a brief history of the Northern Ireland Troubles, this paper delves into the main policies implemented by Great Britain in Northern Ireland during the 1960s, 70s, and 80s. This paper uses mistakes made in Northern Ireland and their impact on the civil liberties of the country’s citizens in order to suggest policy implications for the United States. I will highlight a few similarities between Great Britain’s response and the current methods employed in the United States, and will discuss how the lessons learned can be used in the United States with regards to future policy-making.

*Sarah Rouhan is a senior at American University, majoring in justice with a

criminology concentration. She wrote this paper for a comparative studies course with professor Kristine Kalanges, and would like to thank her for all her support and guidance. Upon graduation, Sarah intends to take time off before renewing her


legal studies through law school. An advocate for animal welfare, Sarah enjoys spending her time interning for the Humane Society of the United States. She was born and raised in Gilford, NH, and is currently living in Washington, DC.

Table of Contents INTRODUCTION 71 I: POLITICAL CRIME 72 II: THE HISTORY BEHIND THE TROUBLES 74 III: GREAT BRITAIN’S RESPONSE TO NORTHERN IRELAND 77 IIIa. 1973 Emergency Provisions Act (EPA) 78 IIIb. Ulsterisation 81 IIIc. Additional Miscarriages of Justice 83 IV: IMPLICATIONS FOR THE UNITED STATES 88 IVa. Political Crime in the United States 88 IVb. Future Policy Implications 92 V: CONCLUSION 95

INTRODUCTION

Many liberal-democratic states experience some form of terrorism, and as a result implement policies regarding domestic terrorism and political crime which may not benefit the country as a whole or provide a valid solution. Domestic terrorism is committed by the country’s citizens on the country’s soil, and therefore confusion arises as to how to specifically treat these acts of violence. For example, in Northern Ireland, the British government created a hybrid system which treats the suspect as both a terrorist and a conventional criminal. However, due to the unique nature of these crimes, such methods are ineffective in combating political crime. Because there is a tendency to limit the civil liberties of all citizens in times of violence, these policies are not only unsuccessful, but allow for massive miscarriages of justice. Using mistakes made in Northern Ireland during the time of the Troubles from the

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1960s through the 1980s, the United States can avoid making similar errors when dealing with their own cases of political crime and domestic terrorism.

PART I: POLITICAL CRIME

In order to implement the best strategies to

overcome politically motivated attacks, it is essential that proper definitions of these actions be used. However, this is easier said than done as there is a multitude of definitions available, none of which are officially agreed upon. Because this paper focuses on domestic terrorism and political crime, it is important to recognize that their implications may be different regarding international terrorism, and that the narrow scope applies specifically to politically motivated crimes only.

In order to understand the definition of political crime, it is essential to first understand how to define terrorism itself. The term “terrorism” tends to have a flexible meaning, given the context of its use. Some argue it is merely a pejorative label meant to condemn an opponent’s cause as illegitimate.1 The definition of terrorism will differ depending on the individual, as what constitutes terrorism is essentially in the eye of the beholder – one person’s freedom fighter will always be someone else’s terrorist.2 Governments such as Great Britain have legally defined terrorism in a variety of ways, and are continuing to expand upon these definitions. For example, 1972 Emergency Legislation officially defines terrorism as, “the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear.”3 Consultants

1 Martha Crenshaw, The Psychology of Terrorism: An Agenda for the 21st Century, 21 POL. PSYCHOL., 405-420 (2000). 2 Cuthbertson, supra note 3, at 51. 3 Kieran McEvoy, PARAMILITARY IMPRISONMENT IN NORTHERN IRELAND: RESISTANCE, MANAGEMENT, AND RELEASE 4-5 (Oxford University Press 2001).


hired by the British government have suggested this definition be improved, arguing that terrorism should be defined as, “the use of serious violence against persons or property, or the threat to use such violence to intimidate or coerce a government, the public, or any section of the public, in order to promote political, social, or ideological objectives.”4 This definition would greatly expand the role of terrorism in society, placing necessary emphasis on the presence of ideological beliefs which are not necessarily political. In 2000, Great Britain expanded their definition of terrorism through the Terrorism Act of 2000, as well as the Terrorism Act of 2006 and the Counter-Terrorism Act of 2008. The current definition in Great Britain can be summarized as any act involving either (1) serious violence, (2) serious damage to property, (3) serious risk of health and safety, (4) endangerment of life, or (5) serious intentional interruption of an electronic system that is used to influence government, an international governmental organization, or the public and is used to advance a political, religious, racial, or ideological cause.5 Political crime is simply a subset of domestic terrorism that is exclusively motivated by political ideologies, and used to intimidate or coerce the government or the public. In other words, rather than being classified as standard crime, which is typically completed for the purpose of the act itself, political crime focuses on the motive of the act. For example, a thief steals for personal gain, whereas a political criminal bombs a government building in order to send a politically motivated message. While some acts of crime may seem identical, their motivation distinguishes the two.

In order to be considered a political criminal, one must be convinced of the truth and justification of their own beliefs, and as such, will carry out ordinary crime as a

4 Ian M. Cuthbertson, A Rose by Any Other Name, 24 WORLD POL’Y J. 52, (2007). 5 Terrorism Act, 2000, c. 11, § 1 (U.K.).

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means to a higher political end.6 For example, in an interview concerning the Troubles in Northern Ireland, one member of the Irish Republican Army (IRA) stated, “What’s important to understand about our mindset is that we were combatants. We believed in what we were doing, one hundred percent. We were morally right, one hundred percent. We were defending our communities and defending our lands.”7 Similarly, another IRA member argued, “We saw ourselves as prisoners of war. It didn’t matter what the charge was.”8 The act is considered political crime if it has been achieved for the purposes of a political cause the individual considers necessary. Thus, political crime can be defined as an act or series of acts, driven by purely political motivations, which are used to coerce the government or public and are genuinely believed to be necessary.

PART II: THE HISTORY BEHIND THE TROUBLES In 1921, the six counties of Northern Ireland

officially separated from the Republic of Ireland. Since the split, the country has had continuous conflict arising within its borders. From Northern Ireland’s establishment through the mid-1960s, the civil rights and liberties of Catholics living in Northern Ireland steadily declined. A disproportionate number of Catholics held poor jobs or lacked employment, had substandard housing, and received limited educational possibilities.9 If a name simply sounded Catholic, an individual would often be denied housing or employment.10 Partially inspired by the civil rights movement occurring in the United States, Catholics

6 MCEVOY, supra note 2, at 2. 7 Paul Howard, The Long Kesh Hunger Strikers: 25 Years Later, 33 SOC. JUST. 90 (2006). 8 Id. See also: BRIAN CAMPBELL, NOR MEEKLY SERVE MY TIME: THE H-BLOCK

STRUGGLE 1976-1981 (Colour Books Ltd. 1994). 9 JEFFERY IAN ROSS, POLITICAL TERRORISM: AN INTERDISCIPLINARY APPROACH 131

(2006). 10 Id.


began to peacefully demonstrate against their plight, yet they were soon barred from being able to peacefully demonstrate – if they attempted to do so, they were attacked and beat down by the Royal Ulster Constabulary (RUC) and the B-Specials, a predominantly loyalist/Protestant group.11 Loyalists and other Protestants were also known to hold demonstrations regarding any housing and employment conditions, and no attempts were made to stop their demonstrations.12

In August 1969, riots erupted in Belfast and Londonderry. Because the local police force was entirely ineffective in combating these riots, the British government decided to increase the number of soldiers stationed there.13 However, the army, viewing Catholics as the enemy, allied itself with the Loyalists and the RUC, further dividing the Catholics and the Protestants. As one Catholic stated, “the soldiers were supposed to be peacekeepers – to referee between two tribes, the British said – but it was obvious…that they considered themselves to be at war with the nationalist people.”14 These beliefs weren’t unfounded. For example, in the beginning stages of the conflict the army would surround mainly Catholic neighborhoods, break down doors, and throw tear gas and smoke bombs in order to draw out “terrorists and their sympathizers.”15 These actions led to the reconstitution of the Republican paramilitary group, known as the IRA, which split into the “Officials” and “Provisionals” in December 1969. The “official” IRA declared a ceasefire, and placed its energy into supporting Sinn Fein, the political party established to seek independence from Great Britain. Since then, the term “IRA” has been used in reference to the Provisionals, who

11 Id. 12 Id. 13 Id. 14 Howard, supra note 6, at 76. 15 Ross, supra note 8, at 132.

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prefer the use of violence as a means of promoting unification.16 Tensions continued to heighten, and in January 1972 during an attempt at a peaceful civil rights demonstration in Londonderry, British paratroopers shot and killed thirteen unarmed citizens and wounded an additional fourteen others.17 Known as “Bloody Sunday,” this event sparked mass fury among Catholics against the British. As one Catholic stated, events such as Bloody Sunday brought about a “slow realization that there are two communities here. One is armed. And they could do whatever they wanted with you.”18 It also brought to the surface feelings of discrimination and favoritism by the British towards Catholics– it seemed to become clear that they weren’t on equal footing. IRA volunteers would reason, “You were going to be shot, so you might as well be shot for something as for nothing;”19 a rationale which played a large role in the violence and rioting which later took place. Because of this violence, the IRA and other paramilitary organizations were able to gain both public support and momentum in their political fight for a united Ireland. Still, there were a number of individuals who wanted to use peaceful means to resolve the conflict, and over the next decade a number of peace-driven initiatives were suggested, tested, and ultimately defeated.20 Plans for a new Northern Ireland assembly led to loyalist bombs exploding in Dublin and killing thirty-two people, the most deadly single event in the history of the Troubles.21 From 1968 until the ceasefire occurring with the Good

16 Id. 17 Id. 18 Howard, supra note 6, at 73. 19

Timothy Shanahan, THE PROVISIONAL IRISH REPUBLICAN ARMY AND THE

MORALITY OF TERRORISM 170 (Edinburgh University Press 2009). 20 Northern Ireland: The Troubles, 1963-1985, BBC HISTORY (2007), http://www.bbc.co.uk/history/recent/troubles/the_troubles_article_01.shtml. 21 Id.

http://www.bbc.co.uk/history/recent/troubles/the_troubles_article_01.shtml


Friday Agreement in 1998, approximately 3,600 individuals died in the conflict.22 PART III: GREAT BRITAIN’S RESPONSE TO NORTHERN IRELAND

In order to combat the political crime taking place

in Northern Ireland, Great Britain enacted various policies which, if enforced correctly, they felt would successfully control the violence occurring in the country. However, a policy or program becomes increasingly harder to control once it is in place. As a result, the initial reduction of civil liberties by Great Britain initiated a change in the way the law was used in the struggle against terrorism.23 The British government claimed that the counter-terrorism laws would not be used to restrict freedom of speech or lawful support for political oppression and change, but it immediately became evident that the sweeping nature of the provisions of the Emergency Provisions Act, Ulsterisation, and other enacted policies made such restrictions inevitable.24 Civil liberties in Great Britain are based exclusively on common law tradition rather than formal legislation (such as the U.S. Bill of Rights); therefore, in times of perceived crisis, Parliament can enact emergency legislation without being constrained by legally or constitutionally protected civil liberties.25

The following are highlights of the policies implemented by Great Britain in Northern Ireland, as well as the corresponding consequences.26 In looking at these policies, it is important to keep in mind the implications each policy has for the civil liberties of citizens not

22 See Seumas Miller, TERRORISM AND COUNTER-TERRORISM: ETHICS AND LIBERAL

DEMOCRACY 19 (Blackwell Publishing 2009). 23 Ian M. Cuthbertson, Whittling Liberties: Britain’s Not So-Temporary Antiterrorism Laws, 18 WORLD POL’Y J. 27, (2002). 24 Id. at 53. 25 Shanahan, supra note 19, at 169. 26 See Clive Walker, Intelligence and Anti-Terrorism Legislation in the United Kingdom, 44 CRIME, L. & SOC. CHANGE, 387-422 (2005).

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involved in any political organizations; because the conflict in Northern Ireland was not acted out by mercenary armies but rather by ordinary citizens who ‘became involved’ or ‘went active,’ any number of citizens could be included in the suspect pool.27

IIIa. 1973 Emergency Provisions Act (EPA)

Legislation enacted in 1922 following the formation

of Northern Ireland in 1921 played a key role in shaping the implementation of the 1973 Emergency Provisions Act (EPA). At that time, the government implemented what became known as the Civil Authorities (Special Powers) Act which was intended to be a temporary solution. This Act permitted the imposition of curfews, the banning of certain books and materials, and a prohibition against holding inquiries into sudden deaths. It also allowed the RUC or Army personnel to enter any home believed to be used for illegal purposes.28 Most importantly, however, the Act allowed for detention without charge or trial, known as internment. These “special powers” were often used throughout Northern Ireland, and significantly reduced citizens’ personal liberties. In 1928, the Act was given a five-year life span, and in 1933 it became permanent and remained in effect until 1972.29 The EPA of 1973 replaced the 1922 Special Powers Act. As with most emergency legislation, the EPA was implemented following a period of intense violence in Northern Ireland. The Act dramatically increased the powers of the police and fundamentally changed the civil rights and liberties of its citizens.30 The

27 For more information on the psychology of terrorism See Crenshaw, supra note 1, at 405-420. 28 Michael P. O'Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same Mistakes made Fighting Terrorism, in Northern Ireland, 24 CARDOZO L. REV. 1657, 1680 (2003). 29 Id. at 1664. 30 Id. at 1666.


Act established two policies which have been especially controversial in nature: increased internment and Diplock courts, coupled with an increase in police and prosecutory power.

Until 1972, internment was specifically a military operation, but with the change in legislation in 1973, the venue of operation changed. Civilian authorities now had the power to detain individuals suspected of involvement in terrorist activities for up to twenty-eight days, unless the case was referred to the Commissioner for “determination” which would allow the suspect to remain detained until the determination had been met.31 The standard of proof applied by the commissioners hearing detention cases was “a very high degree of probability,” and was in no means a fixed standard.32 In order to safeguard against misuse of power, the Act originally required the Secretary of State to make out a prima facie case regarding involvement in terrorism or an ongoing danger to the community before the suspect could be detained. However, this prima facie case was exclusively based on summaries provided by police or armed forces, and was not suspect to challenge.33 Detention proceedings hardly resembled judicial proceedings: evidence was frequently taken outside the presence of the defendant and his counsel, witnesses testified behind screens with voice scramblers, and the names of the witnesses were typically not provided to the defense.34 No safeguards were implemented to prohibit discriminatory internment – thus, because both the Army and the RUC sided with the loyalists, the use of internment applied almost exclusively to Catholics. Consequently, of the 1,981 people being held without trial from 1971 to 1975, 1,874 were Catholic.35

31 Id. at 1669. 32 Id. at 1669. 33 Id. at 1669. 34 Id. at 1670. 35 Shanahan, supra note 18, at 169 -170.

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The second major change the EPA implemented was the suspension of right to trial by jury, and the introduction of the Diplock courts.36 The Act contained a list of “scheduled offenses,” which, when committed, would trigger revoking the right to a jury.37 This controversial change to judicial process was made in order to eliminate the chance of a perverse verdict caused by either juror intimidation from outside members of the organization (such as the IRA) or by elimination of politically motivated decisions.38 Instead of facing a jury of one’s peers, a suspected political criminal would face a panel of judges. This change to the judicial process, coupled with other tenets provided by the EPA, uprooted the entire judicial system, leading to serious consequences in prosecution. In many instances individuals would be arrested when no specific crime was suspected of occurring, and then held for an extended period of time for an in-depth interrogation, in which use of torture was allegedly common and any confessions or statements made during the entire period of internment would be admissible in court.39 The EPA also granted more leeway to police discretion and increased prosecutory powers. One tenet within the Act granted the RUC or any member of the armed forces the power to stop and question any individual regarding his identity, movements, and any knowledge he had concerning political offenses; failure to provide accurate information or remaining silent would be considered a substantial offense.40 This extended to allow the armed forces to enter and search any place where they suspected a person involved in a terrorist offense could be

36 Id. at 170. 37 O’Connor & Rumann, supra note 27, at 1667. 38 It is important to note that these conclusions have been discovered to be unsupported by evidence. Id. at 1667. 39 Shanahan, supra note 18, at 170- 171.. 40 O’Connor & Rumann, supra note 27, at 1671.


found, and members of the RUC were permitted to arrest suspects without a warrant.41 Through tenets such as these, the EPA legislation had a severe impact on the civil liberties of all citizens, not just those guilty of committing political crime.

IIIb. Ulsterisation

One of the most controversial policies enacted in Northern Ireland during the Troubles dealt with the revocation of the special category status for political prisoners. Previously, in June 1972, Great Britain had introduced a “special category status” for paramilitary prisoners, thereby acknowledging the political nature of their offenses. Essentially, this meant prisoners were considered “prisoners of war,” and were given special rights such as being permitted to wear their own clothes, associate with other prisoners, exemption from standard criminal work, and be held in WWII style compounds rather than being held in the typical prison for conventional prisoners.42

From 1976 through 1981, however, a new policy called Ulsterisation was formed. Also known as criminalisation, the basis of the policy was that acts of political crime are, first and foremost, breaches of the common law. Therefore, political crimes were prosecuted and sentenced as crime, rendering the political motivation behind the criminal act irrelevant.43 Former Prime Minister Margaret Thatcher headed the Ulsterisation movement with the soon-famous statement, “there is no such thing as political murder, political bombing, or political violence. There is only criminal murder, criminal bombing, and

41 Id. 42 Shanahan, supra note 18, at 171. 43 Cuthbertson, supra note 2, at 52.

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criminal violence.”44 Thatcher would often advocate the idea that, “crime is crime is crime. It is not political, it is crime.”45 Thus, Ulsterisation officially withdrew the special category status given to paramilitary prisoners and gave the local RUC responsibility for security in Northern Ireland.

However, because the current governmental legislation did not completely change with the Ulsterisation policy, Northern Ireland’s policy towards political crime became a hybrid between military and common law. Political criminals were prosecuted under domestic law for any unlawful acts, while internment and other military techniques (such as ambush and assassination), only justifiable in war, were being used simultaneously.46 This disastrous system formed a hybrid which allowed suspects to enjoy the rights and immunities of neither, yet nevertheless suffer the liabilities from both.47 On September 15, 1976, Kieran Nugent became the first Republican prisoner to protest the Ulsterisation policy. Refusing to wear the prison uniform, he was denied alternative clothing, consequently wrapping himself in a blanket, earning all such protesters the name of “blanketmen.” By May of the next year, four hundred Republicans refused to wear the uniforms.48 The prisoners conveyed their demands encompassing five political rights: the right to wear citizen clothing, the right to free association with Republican political prisoners, the right to not participate in typical common criminal prison work, access to education and recreation, and the right to one weekly visit, letter, and parcel.49 In essence, granting these

44 Shanahan, supra note 18, at 172. 45 Id. 46 CJ Finlay, Terrorism, Resistance and the Idea of the “Unlawful Combatancy,” 24 ETHICS &

INT’L AFF. 92 (2010). 47 Id. at 93. 48 C. Crawford, DEFENDERS OR CRIMINALS? LOYALIST PRISONERS AND

CRIMINALISATION, 51 (1999); Howard, supra note 6, at 70. 49 Howard, supra note 6, at 89.


rights would ultimately reestablish the main principles behind the special category status of 1972. The British government under Thatcher remained unmoved, and due to physical harassment and abuse of prisoners, coupled with the lack of success in gaining political status, the protest soon escalated into a dirty protest.50 Prisoners would smear excreta on the walls of their cells, and urinate under their door.51 Seemingly no closer to achieving political status, seven men began a hunger strike on October 27, 1980.52

As one of the hunger strikers neared death in December 1980, the British government delivered an apparently valid thirty page document which offered concessions to three of the five demands. However, when the strike ended, limited compromises were made. Believing they were lied to, a second, more serious hunger strike began on March 1, 1981, which aimed to heighten the moral pressure on the British government by a series of staggered, drawn-out, highly publicized deaths.53 Each death was purposefully staggered, in order to draw out the public response and increase government tension. Two hundred and seventeen days later, with ten political prisoners dead as a result of the strike, the Thatcher government began to make concessions to end the protest.54

IIIc. Additional Miscarriages of Justice

Other strategies implemented by British policies often led to clear violations of justice, heavily impacting the

50 McEvoy, supra note 2, at 85. 51 Id. 52 In a statement issued by IRA prisoners dated May 27, 1976, they stated, “We are prepared to die for the right to retain political status. Those who try to take it away must be fully prepared to pay the same price.” Id. at 233. 53 Howard, supra note 6, at 78. 54 Id. at 69.

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prosecution of these cases. For example, by 1986 ninety percent of the convictions in terrorist trials relied primarily on confessions made to the police during interrogation.55 Under normal situations this reliance would be circumstantial, but in cases where the suspect has been detained for up to a month, possibly enduring torture, it is completely unreliable. Although no legislation specifically encouraged the use of torture in interrogation, it has become apparent that many suspects were treated inhumanely, and that brutality was a common practice in order to gain information and confessions.

Five “techniques” were typically used during interrogation: covering a detainee’s head with a black hood for extended periods of time; exposure to continuous, monotonous loud noise; rigorous sleep deprivation; severely restricted food and water access; and forcing a detainee to stand against the wall with legs apart and arms raised for four to six hours at a time, with any unwilling detainee being struck with a baton until compliance.56 When the Committee of Inquiry led by Sir Edmund Compton was hired by the Home Secretary Reginald Maulding to look into these acts in order to determine their severity, it reported that the behavior constituted ill treatment, but not torture or physical brutality. The Committee stated, “We consider that brutality is an inhuman or savage form of cruelty, and that cruelty implies a disposition to inflict suffering, coupled with an indifference to, or pleasure in, the victim’s pain.”57 Thus, because those inflicting the acts allegedly felt no pleasure or indifference to it, it was not considered torture. However, the European Commission on Human Rights later declared the five techniques constituted torture in violation of the European Convention on Human Rights.

55 Shanahan, supra note 18, at 171. 56 Id. at 178. 57 Id. at 179.


Another notorious tactic was the use of the shoot-to-kill policy. This policy was used in instances when security forces, such as the RUC, shot with intent to kill those suspected of engaging political crime. For example, in 1987 eight members of the East Tyrone Brigade of the IRA, all wearing body armor, set out to destroy the RUC station. They were met by twenty four Special Air Service (SAS) soldiers, who immediately unleashed six hundred rounds, killing all eight men.58 Instances such as this could arguably be considered a necessary step in order to protect the lives and property of the RUC, and possibly even a form of self-defense, given the intent of the IRA members. However, there have been proven cases when suspected IRA men and women have been unnecessarily killed by the RUC. For example, in 1988, SAS soldiers gunned down three unarmed members of the IRA who they believed to be staging an attack against British military personnel. Arms raised in surrender, the three were shot and killed by SAS soldiers – one was shot eight times, one was shot twice, and the third was shot sixteen to eighteen times, with at least four bullet wounds to the head.59 After a two-year investigation of the shoot-to-kill policy, Deputy Chief Constable John Stalker stated that many of these shootings seem to be merely a police inclination to shoot suspects dead without warning, rather than go through the hassle of arresting them.60 Thus, as with the case illustrated in 1988, the shoot-to-kill policy had the potential to lead to situations which could have been diffused using less fatal means, and led to deaths which could essentially be considered unnecessary.

Miscarriages of justice did not only occur within the context of arrest and detainment, however. The court system, including various methods of prosecution, adhered

58 Id. at 181-182. 59 Id. at 183. 60 Id. at 181.

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to new strategies which were also potentially unjust. For example, supergrass trials were utilized in order to gather information on suspected political criminals. In these trials, a suspected member of the IRA was arrested and security forces would convince him or her to implicate other fellow IRA members in exchange for a reduced sentence or immunity. By the time the supergrass period ended, five hundred people had been charged on the word of twenty seven supergrasses.61 Typically, these implications were uncorroborated, relied on questionable credibility and had debatable judicial value; as such, of the two hundred and seventeen defendants charged in the first ten supergrass trials, one hundred and twenty were found guilty; of these, sixty seven were overturned on appeal, demonstrating the unreliability of the trials.62

The Guildford Four, the Birmingham Six, and the Maguire Seven are three famous cases from 1974 that are often cited as examples of when police misconduct and miscarriages of justice in prosecution resulted in conviction. In the first case, four Republicans, later titled the Guildford Four, were arrested for the detonation of three IRA bombs. Despite allegations of torture by the police, they were given life sentences. During a re-examination of the case in 1989, an investigator discovered typed notes from the interrogation which had been heavily edited, including deletions, additions, and rearrangement. The four were released after spending 15 years in prison. In the second case, six individuals later titled the Birmingham Six were arrested for denotation of two IRA bombs in local pubs. When appearing in court with signed confessions, all members of the Birmingham Six had bruises and signs of maltreatment; yet they were sentenced to life sentences based on their confessions and evidence that was circumstantial at best. Sixteen years later their convictions

61 Id. at 173. 62 Id. at 173.


were overturned due to new information which demonstrated the police had fabricated evidence. At appeals, the judge stated the police “must have lied,” yet none were prosecuted. In the third case, seven citizens, including a minor, were arrested for possessing “bomb-making materials,” and convicted of running a bomb-making factory. Each was sentenced to twelve years. In 1991, their convictions were overturned after it was established that their confessions had been obtained during torture, and that the police had withheld evidence that would have cleared them of the charges. In essence, these cases reveal instances when individuals were given sentences based upon fabricated evidence, false police testimony, withholding evidence, and heavily edited notes; yet despite this, the officers involved were either acquitted or never charged.63

These policies created a troubling pattern of restricting civilians’ civil liberties in order to remain tough on potential domestic terrorists. The restrictions eventually led to ineffective policy in many cases, as well as diminished public support, riots, and revolting (such as the hunger strikes). In many cases, convictions have been overturned due to unjust treatment, so many terrorists involved in bombings and assassinations have gone free. If the United Kingdom had enacted policies which had upheld the Northern Ireland citizens’ rights and liberties, the situation could have been very different. As such, it is important for other liberal-democratic countries to learn from the mistakes made in Northern Ireland, and apply those lessons when dealing with domestic terrorism in their own nations.

63 Id. at 173-177.

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PART VI: IMPLICATIONS FOR THE UNITED STATES Using Northern Ireland as a guide, there are a few

lessons which can be learned regarding combating political crime and similar counter-terrorism methods for other liberal-democratic countries. Specifically, counter-terrorism legislation enacted in Northern Ireland severely restricted civilians’ civil liberties, and enforced policies which were largely ineffective in combating the terrorist acts. It is important to take these lessons into account when dealing with domestic terrorism in countries that do not have well-derived policies for these encounters. This paper will highlight a few of the current similarities between the United Kingdom’s response to political crime in Northern Ireland and the current methods employed in the United States. I will then elaborate on what lessons to take from the Northern Ireland experience, and how these lessons can be used in the United States in future policy making.

VIa. Political Crime in the United States

In many ways, the United States and Northern

Ireland are similarly situated. Both countries have legal traditions deriving from Great Britain, with similar democratic systems and similar capitalist, free trade notions.64 However, one important difference between Northern Ireland and the United States is that civil liberties have been formalized in the United States into the Bill of Rights. In other words, while Northern Irish citizens have civil rights and liberties, they are not formalized into a legally binding document. Thus, it may be easier for legislation that disregards these liberties to be passed in the United Kingdom than it would in the United States.

64 O’Connor & Rumann, supra note 27, at page 1728.


However, it is also important to recognize that although American civil liberties are legally granted through the Bill of Rights, it is possible for legislators to sidestep or ignore those civil liberties which they find restricting, especially in cases where legislation is enacted immediately following an act of extreme violence. For example, policies specifically tailored for international terrorists could, according to the American Civil Liberties Union, “with a stroke of the pen, be expanded to include United States citizens.”65 For instance, internment has held a key role in the U.S. fight against international terrorism, yet in a couple cases this policy has been expanded to allow indefinite detainment of U.S. citizens, whom were held incommunicado, with no access to counsel and no right to a determination of whether they were truly “unlawful” combatants.66

Similar to the Emergency Provisions Act enacted in Northern Ireland, the U.S.A. PATRIOT Act was also enacted during a period of extreme violence. Following the September 11th terrorist attacks on the World Trade Center in 2001, this comprehensive bill was passed in order to strengthen and streamline the government’s ability to gather information, to enhance Immigration and Naturalization Service, and to make fighting terrorism a national priority. This Act was the first legislation to officially define domestic terrorism in legal terms. Previously thought of as general crime, the U.S.A. PATRIOT Act defined domestic terrorism as an act or acts that occur primarily on United States territory and are dangerous to human life, in violation of the criminal laws of either the United States or any state within the U.S., and appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a

65 Id. at 1719. 66 Id. at 1715.

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government by mass destruction, assassination, or kidnapping.67 Violent political crime therefore falls directly into the category of domestic terrorism in the United States, and one U.S. court has even noted that these crimes must be looked at differently when carried out to further a political struggle against a state.68

However, despite the positive reinforcement the U.S.A. PATRIOT Act has received regarding its inclusion of domestic terrorism, it has been criticized as a “wish list” of powers previously sought by law enforcement that was rejected by Congress as too invasive, and the government has acknowledged that the Act allows for the enhancement of law enforcement investigatory tools and prosecution provisions which have no tie to domestic terrorism.69 The expansion of powers this Act provides mirrors the expansion of enforcement powers that occurred over time in Northern Ireland through legislative efforts like the EPA meant to combat terrorism.70 For example, in order to search internet records, email, and voicemail messages of suspected domestic terrorists, officers simply need to show that information is “relevant to an ongoing criminal investigation.”71 This standard is much lower than the typical probable cause standard, and hold potential for infringements on citizens’ Fourth Amendment rights. Similarly, in 2001 the Bureau of Prisons adopted a regulation which allows monitoring of conversations between inmates and attorneys, with no judicial involvement to precede the monitoring in order to provide a check on its appropriateness.72 One lawyer argued there

67 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (2001). 68 Marilyn Buck, Prisons, Social Control, and Political Prisoners, 27 SOC. JUS. 26 (2000). 69 O’Connor & Rumann, supra note 27, at 1706-1707. 70 Id. at 1707. 71 Id. at 1710. 72 Id. at 1721. See also J.S. Elijah, The Reality of Political Prisoners in the United States: What September 11 Taught Us About Defending Them, 30 SOC. JUS. 115-118 (2003). (This


is an unspoken policy of charging lawyers in order to sway them from representing undesirable clients, stating “As the nation begins to accept greater infringements on civil liberties, it seems that lawyers are among the first to feel the intrusion into their profession.”73 While the U.S.A. PATRIOT Act established the definition of domestic terrorism in response to the events surrounding September 11th, the United States has also been facing another form of domestic terrorism. A new group called the Earth Liberation Front (ELF) comprised of various supporters of eco-terrorism, animal rights, and anti-genetic engineering, has been responsible for more than six hundred criminal acts between 1996 and 2006, including sabotage, tree spiking, property damage, intimidation, and arson, resulting in tens of millions of dollars.74 Currently, the ELF attempts to avoid targeting areas populated by people, although their acts have become increasingly violent.

This pattern of increasing violence of the ELF mirrors the increasing violence exhibited by the IRA. In many cases, the IRA avoided placing bombs in buildings that were currently being used, yet overall it was viewed that the violence of the IRA had escalated, and since the 1960s the organization has killed approximately 1,800 people.75,76,77 There are three underlying forces which could fuel the ELF movement’s growth, thus further increasing the presence of violence. These underlying forces include (1)

provision has been widely criticized as violating the Sixth Amendment Right to Counsel and the Fourth Amendment prohibition against “unreasonable” government intrusions). 73 Elijah, supra note 85, at 117. 74 White, supra note 75, at 258. 75 JOHN CONROY, BELFAST DIARY: WAR AS A WAY OF LIFE, (1987).; 76 R. C. Longworth, As Ira Violence Increases, Britain Searches For Right Reaction, CHI. TRIB., Sept. 18, 1988, http://articles.chicagotribune.com/1988-09-18/news/8801310130_1_northern-ireland-ulster-defense-regiment-royal-ulster-constabulary. 77 Irish Republican Army, N. Y. TIMES, Mar. 10, 2009, http://topics.nytimes.com/top/reference/timestopics/organizations/i/irish_republican_army/index.html

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the perception within the movement that the activists are the last real hope for their cause, (2) a structural means of organization and recruitment, and (3) a support base sympathetic enough to privately accept the illegal activities as morally acceptable (or the lesser of two evils).78 Unfortunately, the United States continues to downplay the significance of the ELF and other eco-terrorist organizations.

Although the political crime the United States is nowhere near the turmoil which existed within Northern Ireland, it is important to recognize that domestic terrorism does persist, and has been increasing. Because the U.S. government has begun using many of the same tactics present in Northern Ireland during the Troubles of 1960 through the 1980s, it is important to recognize the severely detrimental effect which would occur from following in Northern Ireland’s footsteps with regards to the rights of U.S. citizens.

VIb. Future Policy Implications

In order to fight domestic terrorism, the United States’ government has used tactics similar to those used in Northern Ireland. Due to the resulting limitations on the liberties of the country’s citizens, it is important to highlight how mistakes made by Great Britain in dealing with Northern Ireland’s citizens should not be replicated in the United States. The following is a brief discussion of those lessons which may serve as a guide in developing policies to combat political crime in the United States and other similar liberal-democratic countries. Note that this is not a comprehensive discussion, but merely briefly emphasizes some of the specific lessons which can be learned from the experiences of citizens regarding the

78 X. Beltran, Applying RICO to Eco-Activism: Fanning the Radical Flames of Eco-Terror, 29 B.C. ENVTL. AFF. L. REV. 307 (2002).


restriction of their rights and liberties in Northern Ireland, and how those restrictions led to less effective policies.

Democratic governments must commit to democratic principles in order to retain their legitimacy. Public support for the government and its policies diminish with each new strategy implementation that further limits the civil liberties of citizens. For example, the use of internment during the Troubles was ineffectual in diminishing IRA activity – as quickly as suspected IRA members were taken off the street, additional volunteers took their place.79 In an article in the Republican News, one IRA member stated, “The Republican movement in Belfast extends to her Majesty’s forces their heartfelt thanks for the magnificent recruiting drive that they have held on our behalf.”80 Thus, by using strategies which citizens’ view as undemocratic, a government may actually led to the legitimization and increased participation in the opposing terrorist organization.

Liberal-democratic states should instead ensure they are upholding those democratic principles their country holds supreme. When cases do arise which may threaten their validity, the government itself should redress deficiencies to garner support.81 For example, when victims of brutality during interrogation appealed to outsiders such as the European Court of Human Rights to substantiate their claims of abuse because the government was not addressing the issues, the government’s reputation was severely damaged.82 Instead, government should acknowledge and attempt to resolve those appeals by citizens regarding genuine abuse to their rights and liberties as stated in the Bill of Rights. The government should also refrain from any form of prejudice or bias in

79 Shanahan, supra note 18, at 170. 80 Id. at 170. 81 Art & Richardson, supra note 92, at 94-95. 82 Id. at 94-95.

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policy. In many instances, the United Kingdom was found to be protecting, at times arming and abetting, loyalist paramilitaries as a means of gaining intelligence on Republican paramilitaries.83 This tactic lost the British government much support, and further legitimized the IRA. When fighting political crime, democratic governments must be widely perceived as performing the proper function of protecting civilians, especially by the “target audience” of the terrorist group.84 Otherwise, they are essentially raising public support for the terrorist groups themselves.

Finally, it could be beneficial to engage domestic terrorists in some form of negotiation, rather than delegitimizing their causes without some attempt at peace. Although this is controversial practice, it allows governments to learn how these groups operate in order to influence their internal dynamics and engage them in the process of peace keeping.85 By engaging political criminals, the government can understand their grievances and priorities, the players involved in various groups, and how they might react to certain incentives or the use of force, leading to a solution that will appease both parties.86 For example, the 1998 Good Friday Agreement was an attempt at a solution resulting from the negotiations between the IRA and the British government. The proposal included plans for a Northern Ireland assembly with a power-sharing executive, as well as controversial proposals regarding the future of policing of Northern Ireland; the Irish Republic dropped its constitutional claim to the six counties which form Northern Ireland.87 It was through these negotiations that the United Kingdom was able to

83 Id. at 94-95. 84 Evans, supra note 91 at 127. 85 Art & Richardson, supra note 92 at 94-95. 86 Id. at 95. 87 The Good Friday Agreement in Full, BBC NEWS, (Dec. 9, 2004, 13:47 GMT) http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/4079267.stm


recognize the need for cross-border security cooperation, identify the need for a more neutral Police Service of Northern Ireland (rather than the Loyalist RUC), and the importance for offering amnesty for political offenses.88 Becoming open to negotiation does not entail legitimizing or reward the terrorists’ use of violence, and there may be those situations where this isn’t applicable. The decision to open negotiations with domestic terrorists should remain on a case-by-case basis. However, by opening communication between the two opposing sides, the government can address the concerns of those engaging in political crime and incorporate them back into the political process.

PART V: CONCLUSION

Northern Ireland has witnessed an array of policies and legislation which has taken a severely detrimental toll on their civil liberties during the time of the Troubles. Arrests and convictions based on biases and confessions gained under torture, unwarranted searches and seizures, and increased violence by those in charge of protecting them are just a few of the clear incidents of rights and liberty restrictions experienced by Northern Ireland citizens. Due to Northern Ireland’s similarities with the United States, as well as other liberal-democratic countries, it is important to identify those clear injustices that occurred in order to suggest policy implications that will reduce future incidents. While there is no single method that can eliminate domestic terrorism, methods that restrict citizen’s civil liberties will most likely become ineffective in combating these crimes. Instead, policies which uphold those democratic principles and promote neutrality and the correct handling of citizens’ civil rights are essential in establishing effective policies.

88 Art & Richardson, supra note 92, at 95.

The Politicized Arbiter: Judicial

Elections and the Dangers of Democratizing the Law

By Peter Williams*

In designing the American system of government, the Framers were careful to institute a series of checks and balances that would prevent any particular branch from accruing an imbalanced amount of influence. The selection of judges is therefore contentious, as the judges are patently expected to be inoculated from biased political affiliation. The appointment process has often been lambasted for exposing judges to these biases, and many states have compensated by electing their judges. While the appointment process is admittedly flawed, electing the Judiciary is actually much worse. Empirical data demonstrates that judges’ decisions and sentencing practices, particularly those relating to the death penalty, are significantly impacted when they are up for reelection. Through scrutinizing the Court’s past ruling, it seems that they are aware of the negative implications resulting from judicial elections. However, the Court has visibly avoided tackling the problem, and so the states themselves are best suited to repair the judicial selection process. One such solution would be the implementation of Judicial Nomination Committees: groups representing diverse backgrounds that blend the strengths of both the appointment process as well as the election process.


*Peter graduated in 2011 with degrees in English (with honors) and Law, Societies, and Justice (LSJ), as well as a minor in Philosophy. He recently wrapped up a six-month internship with the ACLU of Washington State, where he served as a legal intake counselor. Peter is currently working on applications for graduate school in various permutations of political studies, and is interested in pursuing a Master’s degree somewhere in the United Kingdom; his first choice is the London School of Economics and Political Studies. In his spare time, he enjoys backpacking, whitewater rafting, and performing improvisational comedy.

Judges, unlike members of the Executive and

Legislative branches, are governmental figures who are implicitly expected to be impartial by deciding a case based on its logic and merits, rather than its effect on a political party’s agenda. Despite this expectation of political detachment, thirty-nine of the fifty United States still select their judges by popular election; the reasoning being that judges are akin to governors and legislators in that they are representatives of the people. The idea of a representative entails more than simply being elected by the people as they are also expected to speak for the interests of his or her electorate. While judges accomplish this in some sense by seeking to fairly administer the law, they are also occasionally required to stand against some of these same interests: “it is the prosecutor who represents ‘the People’; the judge represents the Law – which often requires him to rule against the People.”1 Judges are therefore not representatives in the same sense as other elected officials, meaning that the practice of selecting them by popular election has the capacity to taint their impartiality. If a judge’s successful candidacy relies on the people’s appreciation of his or her take on certain issues, then the judge stands to benefit in bringing their judicial decisions in line with popular opinion. Supreme Court Justice Sandra Day O’Connor, in her concurring opinion for Republican Party of Minnesota, et al. v. White (2002), hit upon

1 Pamela S. Karlan, Elected Judges, Judging Elections and the Lessons of Caperton, 123 HARV. L. REV. 80, 85 (2009).

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this very point in claiming that if a “state has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”2 In this paper, I will argue that the practice of popularly electing judges is directly at odds with their role as unbiased arbiters, and through examining the logical framework supporting this election tradition as well as relevant empirical data, I will demonstrate how the election of judges frequently leads to inconsistent applications of the law.

In designing the Constitution, the Framers implemented a separation of powers in order to prevent a branch of government from abusing its authority. As a result, the planned role for the Judiciary was one of autonomy, where the judges tasked with deciding individual cases needed to rule in a manner which was uninfluenced by either the Executive or the Legislative branches. Otherwise, the Judiciary would merely augment the role of either branch, both of which are controlled by a particular political party seeking to realize its agenda. Federal judges are therefore appointed by the Executive branch and summarily reviewed by the Legislature. The logic behind this is that the two groups’ interest will counterbalance and prevent the selection of an ideologically compromised judge. This check against biased court appointments is often ineffectual. A cursory glance of this process’s history reveals that “[t]he whole process of selecting and confirming judicial nominees, especially at the federal level, has obviously become a highly contentious and politicized one,” where the Senate often objects with “ideological concerns…to [the nominee’s] perceived proclivities.”3According to Minkow, writing for the popular magazine Social Policy, a president will often nominate individuals who potentially lend themselves to

2 Republican Party of Minnesota v. White, 536 U.S. 765, 792 (2002). 3 Aaron Minkow, Judges Should Be Elected, 40 Social Policy 39, 40 (2010).


his or her own beliefs and legislative aspirations, leaving the Senate to oppose or approve nominees depending on whether the majority is aligned with or against the president. The appointment process is thus criticized for threatening a judge’s impartiality, as the president and the Senate both tend to utilize it in ways which benefit their respective positions. Electing judges is then offered as an alternative procedure at the state level since letting the populace choose individual judges removes the other branches from the process altogether.

Given the recognized shortcomings of the Judiciary’s appointment process, proponents of judicial election claim that simply inverting the status quo will solve many of the logistical dilemmas. One common assertion is that “[b]ecause there is no limitation on the legislative laws and executive edicts over which the court system has purview, the non-elective nature of the judiciary essentially undermines our democratic character. Requiring the judiciary to face electoral accountability, however, would correct this deficiency.”4This argument is troubling for a number of reasons. First, there is an underlying assumption that judges are policy-makers. This claim, in and of itself, is a valid one, as the power of judicial review essentially grants judges law making powers by allowing them a great deal of discretion in considering a law’s constitutionality. However, the argument proceeds by claiming that because judges are pragmatic lawmakers, the fact that some are not elected undercuts the democratic process by insulating the knowledge of their decisions from the electorate. In other words, the belief is that all lawmakers should be elected, and because judges are technically lawmakers, they too should be elected.

This argument incorrectly relies on the nature of judicial policymaking by assuming that legislative powers are officially incorporated into the allotted abilities of

4 Id. at 40.

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judges. In reality, their lawmaking capacities are a side-effect stemming from judicial review. If it is a troubling notion that judges have direct influence over the effectuation of laws, it is not clear how electing them would solve the problem, as embracing their unofficial roles as lawmakers would further politicize their powers and expunge the important difference that separates them from members of the other branches. Thus, accepting judges as elected policymakers is a move in the wrong direction, as it removes their impartiality by encouraging them to step away from neutral territory as members of a political forum.

The second flaw in the above argument relates to mediation of the law itself. In asserting that not electing judges “undermines our [the people’s] democratic character,” it is implied that the people are deprived of some democratic privilege. Such a privilege is one which involves the people’s role in deciding what constitutes fair application of the law: “Our courts are simply not a strong enough institution to make decisions credibly on some of our country’s most pressing issues as they have chosen to do so…[U]nelected courts undermine our democratic character when they decide such important as well as controversial matters and, as such, they are unable to decide such cases in a credible or legitimate manner.” 5A major difference between an elected court and an unelected court is one of ideological support, where judges who face the electorate are often chosen by individuals that share their opinions on certain issues. To think that an elected court is “legitimate” when an appointed one is not suggests that there is something dubious about not allowing society to voice its beliefs in the courtroom. If this justification for picking judges boils down to officially supporting personal legal philosophies by opting for candidates that represent

5 Id. at 42.


them, then the practice pragmatically makes the application of the law democratic.

Arguing that the law should be democratic is a fallacious line of reasoning because it places itself directly at odds with a judge’s impartial nature. Proponents claim that the people have staked interests in certain issues, and “while our courts may deviate for a short while away from the general sentiment of the public…[a] general backlash either from the general public or the intelligentsia will ultimately prevail.”6 If appointing judges “undermines our democratic character,” then electing them undermines the logistical purpose of the judges themselves. When a judge rules on an issue such as abortion or same-sex marriage, a large partition of the populace will disagree with his or her decision, no matter which side wins. This judge has apparently made the ‘wrong’ choice, and were it up to segments of the electorate, they would have selected a judge who ruled in the opposite direction. The authenticity of a legal ruling should not always need validation from popular opinion, else the Gallup or Rasmussen polls could supplant judiciary decisions. Furthermore, the majority has, at times, exhibited tyrannical behavior—the internment of Japanese-American citizens during World War II being one apt example—and such awful displays of mainstream dominion should not be considered acceptable simply because supporters outnumber the opposition. John Stuart Mill was undoubtedly aware of this position: “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind”7As a result, judges who deliver verdicts based on the preponderance of the masses’ opinions overlook scenarios

6 Id. at 42. 7 John Stuart Mill, On Liberty, IN CLASSICS OF WESTERN PHILOSOPHY 1058, (Steven M. Cahn ed., 2002)

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like the one observed by Mill, where an individual seeks protection from the majority by the use of the courts. In order to demonstrate how the opinions of the populace negatively impact judicial decision making in ways which threaten an individual’s rights, it is imperative to examine pertinent empirical data that reveal the unjust nature of these judgments by connecting them to the practice of electing judges.

In 2008, Brace and Boyea, two sociologists from Rice University and The University of Texas respectively, conducted a study seeking to discover how public opinion affected judges who had been, or were going to be, subjected to the election process. Their findings, while somewhat predictable, are distressing; it turns out that judicial “outcomes correspond with public sentiment because elites fear losing office, or because the elite shares the public’s opinion about the outcome.”8In order to cement the tie between the decisions made by elected judges and public sentiment, the researchers selected a contentious issue which would easily be measurable in both social as well as legal spheres—i.e., the death penalty. They found that “[t]he impact of death penalty opinion is contingent on judicial elections,” where a judge was significantly more likely to affirm a death sentence for capital crimes if he or she were up for reelection.9 This discovery highlights a stark lack of punitive consistency at the state level, as the election atmosphere seems to add a strictly temporal factor in deciding the nature of a defendant’s sentence.

Imagine, for instance, that Mr. X has murdered his wife. He is then arrested, tried, convicted and sentenced to death. Many states automatically appeal death penalty convictions, due to their inherent gravity. Suppose the

8 Paul Brace and Brent D. Boyea, State Public Opinion, The Death Penalty, and the Practice of Electing Judges, 52 American Journal of Political Science 360, 362 (2008). 9 Id. at 367.


murder took place in such a state, and Mr. X is placed before an appellate court that will confirm or deny the lower court’s sentence. Certain factors should be considered in reviewing Mr. X’s sentence: the motive, the brutality of the murder, the degree of planning, etc. What about the time of the trial? All things being equal, should Mr. X be sentenced to death simply because it is election season? The trial’s date has no effect on the severity or facts of the crime itself, and because defendants are largely not in control of when they go to trial, it becomes a matter of bad luck to come before a judge who is currently campaigning for reelection.

Death sentences should be handed down in considering a crime’s cruelty and ruthlessness, and judges who use them as a means to bolster their campaigns by showing that they are ‘tough on crime’ render their rulings unjust and erratic by justifying them with factors unrelated to the crime itself. Furthermore, this variation in death sentencing is unique to elected judges, as “the impacts of…public opinion are significant in states that elect their judges but not in states that appoint their judges”.10 Thus, in the case of the death penalty, popular election of the judiciary leads to inconsistent applications of the law.

Reelection is not the only factor that influences a judge’s behavior on the bench. The same study found that “the public’s support for the death penalty may thus operate directly and lead seated judges to alter their voting behavior to align with public opinion, or indirectly by helping to recruit judges who share the public’s sentiments.”11This indirect influence functions as a troublesome hurdle for a court’s legitimacy, as reconciling a judge’s supposed impartiality with his or her well-advertised political opinions does not seem possible if the judge is elected principally for these opinions. Returning to

10 Id. at 369. 11 Id. at 362.

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the case of Mr. X, it is difficult to understand how the validity of his death sentence changes, all things being equal, from judge to judge. The study points out that “[i]n elective states, conservative electorates may elect conservative judges who in turn make decisions this conservative public supports”.12

Assume that Mr. X commits his murder during the term of a judge scheduled to retire shortly, meaning that the conditions of an upcoming election are not encouraging him or her to rule in a castigatory fashion. While Mr. X waits in prison to face trial, a new judge is elected, and this judge publicized his staunch support for the death penalty during his campaign by promising that it would be used more frequently. In other words, the new judge promises to enforce his or her ideological preferences, which are of course identical to the majority that decided the election. Such promises are hardly different from vowing that the outcomes of certain cases are predetermined, where the legitimacy of a death sentence is decided before the case even reaches trial.

A clear illustration of the intrinsic injustice invoked by such decisions is seen in Native Son, a novel published in 1940 by Richard Wright, where its central character is a victim of this kind of judicial determinism. Bigger Thomas, the protagonist, is a poor black boy living in the ghettos of Chicago. In the course of his job as a chauffeur, he accidentally kills his employer’s daughter and attempts to skirt responsibility by burning the body and improvising a phony kidnapping scheme. Fearing betrayal, Bigger also rapes and murders his own girlfriend. He is eventually caught, tried, and sentenced to death. While Bigger’s crimes certainly might qualify for capital punishment, his lawyer observes that his conviction was largely determined before he committed his crime. A black man who murdered a white woman in 1930s Chicago cannot possibly have

12 Id. at 363.


hoped to escape the cry for vengeance propagated by a vehemently racist society. His lawyer, Max, bitterly claims, “Rather that courts be abolished and each man buy arms and proceed to protect himself or make war for what he thinks is rightfully his own, than a man should be tried by men who have already made up their minds that he is guilty”.13Native Son painstakingly outlines how White Chicago’s pursuit of Bigger was predicated on alarmist and racist justifications. Max is eager to point out that society could never perceive Bigger as anything other than guilty, no matter what he did: “Dare I, deeply mindful of this boy’s background, put his fate in the hands of a jury (not of his peers, but of [a]…hostile race!) whose minds are already conditioned by the press of the nation; a press which has already reached a decision as to his guilt, and in countless editorials suggested the measure…punishment?”.14 Max successfully highlights how racism, rather than Bigger’s actual crimes, was the basis of the conviction, thereby contending that the spirit of justice would be perverted.

The Judiciary exists so that the law may be fairly administered after both sides present their arguments and all the facts have been considered. This precaution means that preordained convictions serve only to demote courtroom proceedings to rituals necessary to make such convictions official. As already shown, “strong public support for the death penalty produced significantly more conservative courts than would be predicted by state ideology alone” meaning that the indirect influence of public opinion allows the election and retention of judges who prepare sentences.15 However, the case of Bigger Thomas is a fictional account of public influence on the judiciary. Several topical real-world cases have occurred

13 Richard Wright, Native Son 384 (Harper Collins Publishers 1940). 14 Id. at 384. 15 Paul Brace and Brent D. Boyea, supra note 8, at 370.

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that also emphasize the almost transparent vulnerability of judicial independence.

In the case of Caperton v. A. T. Massey Coal Co (2009), the Massey Coal Company owed Caperton’s Harman Mining Company a $50 million settlement from an earlier lawsuit, which they had of course appealed. While the petition was pending in the West Virginia Supreme Court of Appeals, Massey’s CEO, Don Blankenship, donated $3 million to the campaign of Brent Benjamin, who was a judicial candidate running against an incumbent on the same Supreme Court. Blankenship’s donation was greater than the total sum of any other donations received or expenses incurred by Benjamin’s campaign, unsurprisingly resulting in his election. The appeal made it to trial once Benjamin was on the bench, and Caperton petitioned for Benjamin to recuse himself due to his obvious financial ties to Massey’s CEO. Benjamin refused, and was in the majority for the 3-2 decision which overturned the large settlement awarded by the lower court. Caperton lobbied for a retrial, which ended in the same 3-2 decision. He finally brought the case to the Supreme Court, arguing that the nature of Blankenship’s campaign donations coupled with Benjamin’s judicial performance represented blatant bias on the part of Benjamin, thereby robbing the Harman Mining Company of its right to due process. The Supreme Court, in a 5-4 decision, ruled in favor of Caperton: “Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. We conclude that there is a serious risk of actual bias…when a person with a personal stake in a particular case had a significant and disproportionate influence...on…the judge’s election campaign when the case was pending or imminent.”16 (Caperton v. A. T. Massey Coal Co (2009)129 S. Ct. at 2252). It was almost as if the narrowly split court, not wanting to

16 Caperton v. A.T. Massey Coal Co., 129 U.S., 2252 (2009).


correct the flawed principle behind the problem, simply stepped in to halt an isolated and serious example. Their response to Caperton indicated that the Court was aware of the problem’s serious nature, as it curtly sidesteps the issue.

The majority’s decision is quite peculiar in that its scope is narrow. Writing for the majority, Justice Kennedy is very careful to limit the verdict to the inordinate amount of financial support underlying the allegation of bias. He writes that “there is a serious risk of bias…when a person with a personal stake in a particular case had a significant and disproportionate influence…by raising funds…[for] the judge’s election campaign when the case was pending or imminent." This restriction is interesting considering that this case is not the first time the Court has come up against the shortcomings of judicial elections. In Wells v. Edwards (1973), the Court held that a state could elect state supreme court justices from jurisdictions with varying sizes of population because the ‘one-person, one-vote’ clause in the Fourteenth Amendment does not apply to the Judiciary. The earlier mentioned Republican Party of Minnesota, et al. v. White (2002) held that a law prohibiting judicial candidates from espousing their legal opinions on salient issues before an election was unconstitutional, as judicial elections were not exempt from general legal provisions such as the First Amendment.

Linking these three decisions proves difficult. The Court found in Wells that the Judiciary was excused from a legal rule while their decision in White, which did not overturn Wells, seemed to argue the opposite. To further complicate the interpretation of precedent, White then seems to mesh poorly with Caperton, where the former affirmed judicial candidates’ free speech rights, which include political spending according to Buckley v. Valeo (1976), and the latter holding that certain levels of financial

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support to a judicial election campaign can reasonably be curtailed.

It is accordingly challenging to unify the Court’s collective rulings dealing with judicial elections, as “[a]pplying their framework to the issue in Caperton would broaden the case far beyond lawsuits involving exceptional amounts of money. It would bring the Court onto a collision course with the practice of electing judges”17In the earlier cases, “[a]ll the Justices thought that elections should not affect how judges conduct themselves once they are elected” because “the Due Process Clause requires that judges be impartial,” but ruling that election of judges is unconstitutional would throw the Judiciary into utter chaos—thirty-nine states would suddenly be forced to find new selection systems18. The Court’s opinion is then similar to Justice O’Connor’s earlier quote, where states that are concerned by the numerous complications arising from the judicial election process should take it upon themselves to devise a better system that fosters judicial impartiality. Appeals to the Court to fix the electoral process are steps in the wrong direction; asking a higher authority to mend a system which is beyond repair wastes time that could be spent inventing a more competent system.

While the state practice of electing judges has been shown to be deeply flawed, the Federal appointment process is far from perfect as well. It is hardly a satisfying resolution to such an important debate to have to select the lesser of two evils. One possible alternative, similar to the system in Massachusetts, system known as merit selection, where a commission (often called a Judicial Nomination Committee, or JNC) provides a list of potential candidates to the governor, who makes the final choice. Such systems are vulnerable to the same flaws of the election or appoint

17 PAMELA S. KARLAN, supra, note 1 at 92. 18 Id at 85-86.


processes, but several caveats can effectively shield merit selection in a way that promotes judicial impartiality. First, the committee should contain “nine members, three chosen by the governor, three by the bar, and three by the governor and bar jointly”19Under this model, there is no longer a dominance of executive power and yet there is very much still a strong gubernatorial voice involved in the process of candidate selection. However, the JNC cannot be expected to make the final selection without avoiding lockout votes, meaning that the governor would still need to pick from the final list of nominees (between three and six). In an attempt to weaken the governor’s control over the JNC, members on the committee would each have four-year terms, where each group of three is staggered two years apart, where first, the bar reevaluates their representatives, and then after two years pass the governor can do the same. The governor’s appointees would come midway through a governor’s term, meaning that half of each gubernatorial term would reflect JNC representatives picked by the last governor. In a real-world scenario, this would mean that an elected governor of one political persuasion could face some fraction of reasonable resistance in his or her JNC due to the appointments of the previous governor. The system would lend some advantage to the minority, but not enough to tip the balance in a particular side’s favor.

As one final stipulation, retention elections, which require a majority vote at the end of a judge’s term in order for them to remain on the bench, would be restricted to members of the JNC. A JNC would make its votes public, publishing their results along with who voted how in order to preserve transparency. This condition solves a number of problems. First, because the public is not voting and the JNC is already very familiar with the candidate, there is no need for expensive campaigns. The committee members are

19 Drew Lanier Symposium: Judicial Professionalism in a New Era f Judicial Selection – Session Four: Alternatives to Electing Judges, 56 MERCER L. REV. 885, 904 (2004).

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already knowledgeable and embedded into the system, rendering rhetorical strategies like propaganda useless. Problems of indirect influence, like those observed in Caperton, would also be less of an issue because the elimination of campaigns also removes campaign promises. Only the credentials and record of a candidate would be relevant in considering his or her appointment. In addition, due to the varied backgrounds of JNC members, it is highly unlikely that majority public opinions will dominate the committee. Judges would therefore know that the body charged with reelecting them would be assessing their quality based on adherence to impartial principles rather than how the people feel about certain salient issues. The increase in punitive sentencing observed in cases where judges were up for reelection in a popular electoral system would thus be nullified, as judges would no longer need to pander to the tyranny of the majority in order to be retained. The JNC merit system thus avoids many flaws embodied by the appointment and election systems by downplaying the ideological political factors that hamper pursuits for judicial impartiality.

Having thoroughly examined judicial elections and their effects on the court’s impartiality, it is apparent the practice of selecting judges by election inflicts a number of serious problems. Popular elections for the Judiciary democratize the law at a fundamental level by allowing popular opinion to be the governing force in determining what is right and wrong, as demonstrated by the irregular sentencing patterns common to traditionally elected judges. Moreover, cases such as Caperton v. A. T. Massey Coal Co (2009) reveal the Supreme Court’s continued reluctance to engage and consider the legitimacy of electing judges, as their majority decisions continue to indicate a Court left uneasy by the general practice of judicial elections but ill-equipped to solve the problem. Repairing the Judiciary’s selection process must occur at the state level, where more


competent models like the JNC merit selection system should be instituted in order to protect the Judicial branch from politicized campaigns that destabilize the unbiased judicial ideal states strive to create in their judges. When “the vast majority of voters…say ‘Yes, I want to continue to elect my judges,’ and yet an even greater number of them express suspicion about the process and the role of money in that process,” there is an unmistakable discomfort with the system as it stands now20The people want to elect their judges in order to safeguard their beliefs with a power that is static in its fairness. It is this mindset which can and should be championed by the Judiciary in ways that are neither electoral nor political.

20 Id at 910.

Volume V Issue I

Documents

Transcript of Volume V Issue I