Volume VII Issue II
description
Transcript of Volume VII Issue II
i
Contents
A CHECK ON PRESIDENTIAL POWER AND A FLAWED
RULING Nathan Brickman, University of Michigan 1 JUDGMENT WITHOUT JUSTICE: THE EVOLUTION OF
CIVILIAN TRIALS UNDER MILITARY COMMISSIONS John Moreland, University of Illinois Urbana-Champaign 17
INSTITUTIONALIZED SILENCE: THE PROBLEM OF CHILD
VOICELESSNESS IN DIVORCE PROCEEDINGS Brandon Sadowsky, The Ohio State University 52
ARRESTED FOR EXPERIENCING HOMELESSNESS: THE
CRIMINALIZATION OF HOMELESSNESS IN THE UNITED
STATES AND THE REVOLUTION OF THE RHODE ISLAND
HOMELESS BILL OF RIGHTS Cristina Semi, Hamline University 74
ii
Information about the Washington Undergraduate Law Review
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.
The Washington Undergraduate Law Review receives article submissions each year from the top-ranked universities across the country, allowing us to publish a high-quality journal three times a year. All types of submissions that comprise undergraduate work are accepted, from those in the field of political science to economics to the natural sciences. All have bearing on the legal field, and we believe that a diversity of submission enhances the quality of our final product.
Citations: The text and citations of the Review generally conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. Ordering: Hard copies of the Washington Undergraduate Law Review are $10 each (not including shipping) and can be ordered by sending an email to [email protected]. The Washington Undergraduate Law Review homepage is located at http://students.washington.edu/wulr/
iii
Masthead
Editor-in-Chief Negheen Kamkar
Executive Editors
Hanna Giuntini Henry Seeley Austin Wolfe
Editors
Alex Askerov Lauren Cambronero
Nicky Choi David Cooperstein
Michael Gant Adam Griffis
Emily Grimmius Christine Hanzawa
Lana Jacobus Shweta Jayawardhan
Estella Jung Adam Khan
Adam Kinkley
Brandon Klett Bradly Knox Ashley Kuhn Ben Lennon Paula Luu
Annica Mattus Alexander Ong
Jessica Randolph Joseph Rebagliati Ann Schlossman Matthew Stone
Roy Taylor Lindsey Townsend
Volume VII Winter 2014 Issue II
ARTICLES
A Check on Presidential Power and a Flawed Ruling
By Nathan Brickman*
This paper will examine presidential power in the context of President Harry Truman’s steel mill seizure in 1952. The purpose is to show the key factors surrounding this incident and explore the various reasons for the Supreme Court’s decision to rule the seizure unconstitutional. This case is a critical lesson in understanding the importance of presidential authority, and this article disagrees with the Court’s ruling and will explain what went wrong during the President’s defense. Additionally, this paper will analyze and redevelop Justice Jackson’s three-tiered system explaining presidential power in his concurring opinion to create a more concise guideline.
*Nathan Brickman is a native of suburban Detroit and is currently a junior at the University of Michigan. He is a political science major and hopes to attend law school after he obtains his undergraduate degree. In pursuit of a more globalized education, he plans on traveling to the Czech Republic in the spring of 2014. The inspiration for this paper came after taking a political science course about the American Chief Executive.
2 WULR Vol VII, Issue II Winter 2014
Table of Contents INTRODUCTION 2 I: YOUNGSTOWN EXPLAINED 4 Ia. The Majority Opinion 4 Ib. Jackson’s Three-Tier Framework 4 II: WHY DID YOUNGSTOWN GET IT WRONG? 5 IIa. Inherent Authority 5 IIb. The Justice Department 7 IIc. Relevant Statutes 9 III: YOUNGSTOWN REVISITED 12 IIIa. Supreme Court Ruling 12 IIIb. Justice Jackson’s Three Levels of Presidential Authority 14 IV: CONCLUSION 15
INTRODUCTION
On April 8th, 1952, President Harry Truman issued Executive
Order 10340: “Directing the Secretary of Commerce, Charles Sawyer,
to Take Possession of and Operate the Plants and Facilities of
Certain Steel Companies.”1 Truman issued this order to avert a
nationwide strike of steel workers that he felt would threaten the
United States’ steel supply. At the time, the nation was engaged in
an ongoing conflict in Korea, and Truman believed that a stoppage
in steel production would jeopardize the war effort as well as the
United States’ economic health.
The country’s response to the action was one of shock and
the Order triggered a national debate over the scope of presidential
war powers. Presidents had seized plants before, but never based
solely on the inherent executive powers granted under Article II of
the Constitution.2 While the Constitution may not expressly give
the President additional war powers during a national emergency,
many scholars believe that the Framers implied these powers due to
1 MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF PRESIDENTIAL POWER (Columbia UP 1977) at 83. 2 Id. at xxi.
Brickman 3
the structure of the Executive Branch.3 Previously in 1950, President
Truman declared a national emergency. Later, he used the state of
national emergency to assert broad inherent authority under Article
II to justify his seizure of the steel mills and trigger a number of
statutory provisions giving him additional powers to face the crisis
in Korea.4 The steel companies sued Secretary of Commerce Charles
Sawyer, pleading for injunctive relief and declaratory judgment.5
In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court roundly
rejected Truman’s broad claim of executive power. Eight justices
held that Truman’s decision to seize the mills was unconstitutional
on the basis that he was exercising legislative power and thus lacked
authority to seize the mills. Writing for the majority, Justice Black
rejected the administration’s claim that the steel stoppage
constituted a national emergency. Rather, he asserted that the
situation was a labor dispute and Congress had provided ample
guidelines to the President to address the strike without seizure.
However, Chief Justice Vinson, the lone dissenter, argued
that not only have presidents historically responded to emergencies
without legislative action, but that the steel mill seizure actually
advanced legislative precedents already enacted by Congress. This
paper disagrees with the majority conclusion and agrees with
Justice Vinson. While President Truman did not have the authority
to seize the steel mills based solely on his inherent authority, he did
have authority under the Take Care Clause based on various statutes
and precedents. This paper will also examine and apply Justice
Jackson’s three levels of presidential power and conclude that the
three-tier framework must be redeveloped into a two-pronged
guideline through eliminating the second tier. The steel mill seizure
was an appropriate action by Truman—but the action was justified
3 Emergency Powers, http://www.law.cornell.edu/wex/emergency_power (last visited Nov. 11, 2013). 4 Supra note 1, at 3. 5 Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZS.html (last visited Nov. 4, 2013).
4 WULR Vol VII, Issue II Winter 2014 based upon statutes and precedent rather than inherent executive
authority.
PART 1: YOUNGSTOWN EXPLAINED
1a. The Majority Opinion
Justice Black delivered the majority opinion of the Supreme
Court, affirming that the seizure was unconstitutional. At the core
of the majority’s logic was their assertion that there was no statute
that expressly authorized the President to take possession of
property to resolve a labor dispute.6 Justice Black believed that the
seizure technique to solve labor disputes was not only unauthorized
by Congress, but that Congress opposed seizure as a method to
settle labor disputes. Lastly, Black found that the Executive Order
fell squarely under legislative power, stating: “The Founders of this
Nation entrusted the law making power to the Congress alone in
both good and bad times. It would do no good to recall the historical
events, the fears of power, and the hopes for freedom that lay behind
their choice.”7 Since Truman employed a method Congress opposed,
his seizure was tantamount to an exercise of legislative—not
executive—power.
1b. Jackson’s Three-Tier Framework
Justice Jackson’s concurring opinion is regarded as the
analytical framework for evaluating the validity of constitutional
authority. He describes the three tiers of presidential authority as
follows:
1. The President’s authority is at its maximum when he acts using Article II power, plus any expressed or implied power from Congress.8
6 Id. 7 Id. 8 Charles Adside, American Chief Executive, Lecture at University of Michigan, Ann Arbor Political Science 320 (Sept. 23 2013).
Brickman 5
2. The President’s authority is in a zone of twilight when he acts under Article II powers, but congressional intent is unclear.9
3. The President’s authority is at its lowest ebb when he acts against Congress’s intent and relies only on Article II powers.10
It is noteworthy to identify the distinction between expressed and
implied powers authorized by Congress. Expressed powers are
clearly identified in the text of the Constitution, while implied
powers are drawn from expressed powers and are not explicitly
enumerated.11 This distinction is necessary because Truman relied
primarily on implied powers to seize the steel mills as opposed to
expressed powers written in the constitution.
Justice Jackson believed that Truman’s seizure of the mills
fell under the third tier. He explained that the seizure could not fall
under tier one because he could not find any congressional
authorization. Thus, in Jackson’s estimation, “we can sustain the
President only by holding that seizure of such strike-bound
industries is within his domain and beyond control by Congress.”12
The President’s action falls under tier three, the least favorable of
constitutional postures, making it most vulnerable to attack.13
While Justice Jackson’s three-tier system attempts to explain
Truman’s presidential power in the case of the seizure, it is unclear if
his analysis is correct.
PART 2: WHY DID YOUNGSTOWN GET IT WRONG?
2a. Inherent Authority
9 Id. 10 Id. 11 Louis Fisher, Invoking Inherent Powers: A Primer, 37 PRESIDENTIAL STUDIES QUARTERLY. 1-22 (2007) at 1. 12 Supra note 5. 13 Id.
6 WULR Vol VII, Issue II Winter 2014
Inherent authority is by definition “a power that necessarily
derives from an office, position, or status.”14 Louis Fisher, a specialist
in constitutional law with the Law Library of the Library of
Congress, explains inherent authority as “powers over and above
those explicitly granted in the Constitution or reasonably to be
implied from express powers.”15 Article II of the U.S. Constitution
lays out the powers of the President, stating executive power shall
be vested in the President.16 This indicates that the President has a
reservoir of executive authority and broad discretion. Executive
power is referred to as inherent authority, indicating that the
President possesses implied or implicit powers that are independent
from Congressional authorization—any restriction on these powers
would be unconstitutional.
Article I of the Constitution states, “All legislative powers
herein granted shall be vested in a congress of the United States,”
while Article II claims, “The Executive Power shall be vested in a
President of the United States.” There is an important wording
distinction between these two phrases. Article I has the words
“herein granted,” meaning the Legislature’s powers are limited to a
list of guidelines. The enumeration in Article II is intended to specify
the article’s implied definition of inherent authority, “leaving the
rest to flow from the general grant of that power.”17 There is no
specific limitation on the Executive’s powers like there is on the
Legislature’s, notwithstanding specific exceptions embodied in the
Constitution.
In Justice Vinson’s dissent, he cites several statements in
Article II that give the President inherent authority. Specifically, he
mentions the Take Care Clause, which states: “The President shall
be Commander in Chief of the Army and Navy of the United States,
14 Black’s Law Dictionary (8th ed. 2004). 15 Neil Kinkopf. Inherent Presidential Power and Constitutional Structure, 37.1 Presidential Studies Quarterly 37-48 (2007). 16 “Article II.” Legal Information Institute. Jan. 23, 2014. 17 Saikrishna Bangalore Prakash. "Hail to The Chief Administrator: The Framers and The President's Administrative Powers." Yale Law Journal 2 991-1017 (1993).
Brickman 7
he shall have power to make treaties provided two thirds of the
senators present concur, and he shall take care that the laws be
faithfully executed.”18 The Take Care Clause maintains that the
President must execute the laws of the United States faithfully. In
order to accomplish this goal, the President must enforce previous
statutes and treaties that have been authorized by Congress and
signed into law. The specific treaties and statutes that apply to this
case will be explained later in the paper.
It is difficult to say whether the President’s seizure of the
steel mills would fall under inherent authority. One could argue that
the seizure was an exercise of the President’s inherent authority
under the Commander in Chief of the Army and Navy of the United
States Clause, but this could open the possibility to an abuse of the
President’s powers during wartime because the clause does not have
any self-limiting properties. For example, in 1941, President
Roosevelt used his inherent authority to seize the North American
Aviation plant in Inglewood, California in order to avert a strike and
ensure that orders would be fulfilled.19 Roosevelt invoked no specific
statute and relied primarily on his inherent authority to justify the
seizure. Nevertheless, inherent authority is not necessary because
Truman had Congressional approval through various enacted
statutes.
2b. The Justice Department
The Justice Department’s argument was an integral
contributor to the Supreme Court’s verdict of unconstitutionality.
In Court, the Justice Department argued that Truman had acted
solely on inherent authority without any statutory support.20
Assistant Attorney General Holmes Baldridge stated, “The
18 Supra note 5, at 7. 19 Patricia L Bellia, The Story of the Steel Seizure Case, (2008) http://www3.nd.edu/~ndlaw/faculty/belliap/SteelSeizureDraftSSRN.pdf (Last visited Mar. 2, 2013) 20 Supra note 11, at 5.
8 WULR Vol VII, Issue II Winter 2014 President’s power was based on Sections 1, 2 and 3 of Article II of the
Constitution, and whatever inherent, implied or residual powers
may flow therefrom.”21 Baldridge reasoned the Justice Department’s
theory that in an emergency, the Executive Branch has the
responsibility to protect the nation and any action the President
took in that respect was legal.22
This type of argument is unreasonable—the only
interpretation is that during emergency conditions, the President’s
power is essentially unlimited. Baldridge stated, “There is enough
residual power in the executive to meet an emergency situation of
this type when it comes up.”23 Baldridge also explained that once the
President determines that an emergency exists, the courts are unable
to review whether it is an emergency. This argument implies that
granting unlimited powers to the President during times of
emergency resembles the powers of a king.
This sparked the Court’s defense of separation of powers.
Had the Court ruled in favor of the steel mill seizure, it could have
set a precedent that the President holds unlimited power during
times of crisis. District Attorney Judge David A. Pine acknowledged
that a nationwide strike would cause damage to the nation. Pine
claimed that a strike would be “less injurious to the public than the
injury which would flow from a timorous judicial recognition that
there is some basis for this claim to unlimited and unrestrained
Executive power, which would be implicit in a failure to grant the
injunction.”24 The Justice Department doomed the President in this
case by arguing solely on inherent authority. Instead, they should
have based their argument on the Take Care Clause and how the
President is required to enforce statutes that have been previously
enacted. This would have given them a legitimate defense and the
potential to win the case.
21 Supra note 1, at 119. 22 Id. 23 Supra note 11, at 5. 24 Id. at 6.
Brickman 9
2c. Relevant Statutes 1. The Selective Service Act
While President Truman did not invoke these statutes as his
basis for seizing the steel mills, these congressional enactments
would have been the strongest grounds to justify the seizure. As
World War II broke out in Europe, Franklin Delano Roosevelt
signed the Selective Service Act into law in 1940. The main objective
of this statute was to require all males ages twenty-one to thirty-six
to register for the draft. It appeared that President Roosevelt was
afraid the situation in Europe might escalate and require American
intervention. Section 18 of the Selective Service Act describes how
the President can regulate industry in order to support the war
effort. It provides:
“Whenever the President…determines that it is in the interest of the national security to obtain prompt delivery of any articles or materials…required for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized to place with any person operating a plant, mine, or other facility…an order for such
quantity of such articles or materials as the President deems appropriate.”25
Additionally, the President is authorized to take immediate
possession of a facility should a plant operator refuse or fail to meet
the order placed. Had the steel workers’ strike ensued, the steel
mills would have been unable to fulfill government contracts, which
were dedicated to the war effort in Korea.26
Gordon Dean, Chairman of the Atomic Energy Commission,
informed President Truman that if there were a stoppage in
25 Selective Service Act of 1948, H.R. Rep. 2438, 80th Cong. S* 2(d) (1948) http://www.loc.gov/rr/frd/Military_Law/pdf/act-1948.pdf 26 Id.
10 WULR Vol VII, Issue II Winter 2014 production of steel, the atomic weapons project would be delayed.27
Section 18 of the Selective Service Act gave Truman seizure power
because the steel companies would have been unable to fulfill the
government’s contracts, thus impairing the Atomic Steel
Commission. Department of Justice lawyers agreed with this
conclusion in order to ensure the continuance of essential steel
production; therefore, the President would have been justified in
seizing the steel mills.28 While this indicates strong statutory
support pointing to the constitutionality of the President’s seizure,
there are several other important statutes to examine.
2. The Defense Production Act
The Defense Production Act of 1950 is another statute that
would have given President Truman the authority to seize the steel
mills. This act ensured the availability of the nation’s industrial
resources to meet national security needs by granting the President
powers to establish the supply and timely delivery of materials,
services, and products to military and civilian agencies.29 At the
outbreak of the Korean War, President Truman sent a message to
Congress stating the need to increase military materials and supplies
because the nation’s military and economic preparedness were
inseparable.30 The situation in Korea was escalating, which enabled
the President to propose this legislation and Congress to pass it.
The section of the Defense Production Act that pertains to
the President’s power to seize the steel mills can be found in Title II
Section 202. This part of the statute “authorizes the President to
requisition certain property which is needed for the national defense,
provided that such need is immediate and impending, and such as
will not admit of delay or resort to any other source of supply and
that all other means upon fair and reasonable terms have been
27 Supra note 1, at 71. 28 Id. at 76. 29 DANIEL H. ELSE, CONGRESSIONAL RESEARCH SERV., DEFENSE PRODUCTION ACT: PURPOSE AND SCOPE (2009). 30 Id. at 1.
Brickman 11
exhausted.”31 Secretary of State Robert Lovett stated that any
stoppage in steel production would seriously jeopardize the war
effort in Korea and the domestic economy. He asserted, “Our entire
combat technique in all three services depended on the fullest use of
our industrial resources.”32 Thus, there was clearly a national
emergency, allowing President Truman to invoke this statute and
thereby seize the steel mills in order to requisition materials for the
national defense.
3. The Mutual Security Act and The Marshall Plan Aside from statutes, the United States is obliged to honor
treaties that have been signed into law. It became clear to the
Truman administration and Congress that in order for the European
allies to stabilize, these countries needed assistance following the
devastation of World War II. Thus, the Mutual Security Act, which
emphasized an increase in military assistance to democratic nations,
and the Marshall Plan were enacted. In addition, “Congress
earmarked the monies for raw materials, guns, tanks, planes, and
medical supplies.”33 Congress and President Truman believed that
preventing the spread of communism required providing economic
aid to distressed nations.
The Marshall Plan generated a resurgence in the
industrialization of Western Europe and afforded investment to the
region. The Marshall Plan channeled over thirteen billion dollars to
Europe, successfully sparking an economic recovery.34 The provided
aid is said to have “solidified US leadership of the Western alliance,
buttressed moderate elements in Western European politics,
smoothed Europe’s labor-management relations, and checked the
31 Donald S. Frey, Maintaining Economic Freedom under the Defense Act of 1950, 18 U. Chi. L. Rev. 218 (1951). 32 Supra note 1, at 74. 33 Truman Signs Mutual Security Act, http://www.history.com/this-day-in-history/truman-signs-mutual-security-act (last visited Nov. 11, 2013) 34 Marshall Plan, http://www.history.com/topics/marshall-plan (last visted Nov. 11, 2013)
12 WULR Vol VII, Issue II Winter 2014 westward march of communism.”35 Had the steel mills stopped
production, the United States would have been unable to fulfill
these obligations and the intended gains brought about by the
Marshall Plan would have been reversed. Because the President is
required to “take care that the laws be faithfully executed,” he is
obligated to ensure that the resources and aid promised to foreign
nations are secure. Thus, Truman’s seizure of the mills was a
permissible means under the Take Care Clause of the Constitution
to enforce the United States’ treaty obligations.
PART 3: YOUNGSTOWN REVISITED
3a. Supreme Court Ruling
The Supreme Court majority ruled incorrectly for the
following reasons. First, the Court failed to appreciate that a steel
stoppage would create a national crisis. Had the steelworker strike
ensued as planned, the United States’ entire steel production effort
would have completely shut down. Domestically, this would have
had serious implications for the economy. As Secretary of
Commerce Charles Sawyer explained to President Truman, “a ten
day interruption of steel production would mean the loss of ninety
six thousand feet of bridge and fifteen hundred miles of highway.”36
Additionally, airplane and ship production would have been
curtailed; petroleum, gas, electric power plants, and coalmines were
all in some way dependent on steel.37 A decrease in production in
these areas would lead to serious unemployment.
The conflict in Korea required steel for ammunition as well
as other wartime necessities. Robert Lovett, Truman’s Secretary of
Defense, informed him that any stoppage of steel production would
dramatically increase the risk of a shortage in the armament
35 Barry Eichengreen & Mark Uzan, The Marshall Plan: Economic Effects and Implications for Eastern Europe and the Former USSR, in 7.14 Economic Policy 13, (1992) 36 Supra note 1, at 75. 37 Id.
Brickman 13
program.38 He explained that the entire war effort relied on the
industrial facilities producing steel at full capacity, stating: “We are
holding the line with ammunition, and not with the lives of our
troops.39” Henry H. Fowler, Administrator of the National
Production Authority, briefed Truman that the inventory of several
types of ammunition was already low.40 Considering these
statements by Truman’s staff, it is clear that any stoppage in steel
production would have jeopardized the nation domestically and in
the foreign theater.
Furthermore, the Court sided against Truman because
Congress never issued a formal declaration of war. Nevertheless,
Truman had declared a limited national emergency on Dec. 16, 1950.
This declaration triggered a number of statutory provisions, giving
him additional powers to face the crisis in Korea.41 Unfortunately,
the declaration was not enough to convince the nation that a serious
emergency existed. The administration was deprived of the
cooperation of Congress, many of whose members were unwilling to
act as if the United States was involved in an acute wartime
emergency.42
If there had been an official declaration of war, then it would
have been treated as a statute and the President would have received
certain authorities in order to execute the declaration faithfully.43
Additionally, Assistant Attorney General Baldridge derailed
Truman’s defense by claiming that the President has unlimited
powers during times of emergency. It is possible that, had
Baldridge’s arguments been based upon the statutes explained
previously in this paper, the Supreme Court would have upheld the
seizure. But it seems that the Supreme Court was more interested in
38 Id. at 74. 39 Id. 40 Id. 41 Id. at 3. 42 Id. 43 Id. at 222.
14 WULR Vol VII, Issue II Winter 2014 preserving the separation of powers than recognizing the real
emergency at hand.
3b. Justice Jackson’s Three Levels of Presidential Authority
After determining the facts of this case and establishing a
general understanding of presidential power, Justice Jackson’s
three-tiered approach to presidential authority is flawed. While the
first and third tiers are valid, the second tier must be eliminated. The
second tier describes the formation of a “twilight zone” when
Congressional intent is unclear. It is fair to argue that President
Truman’s seizure would fall under the second tier because he had
sent a message to Congress asking for approval or refusal of his
actions; there was never a response. However, this tier fails to
provide any direction for Presidential decision-making. Depending
on congressional inertia, the lack of a response could point to
acquiescence or approval of the President’s actions.
On the other hand, some may argue that lack of a response
from Congress points to disapproval of the President’s actions. It is
almost impossible to say which view is correct, and this second tier
does nothing to support or oppose the President’s inherent
authority. Additionally, the second tier could invite judicial mischief.
If congressional intent is unclear, then it is the Court’s responsibility
to decide whether the President’s action was constitutional. When
it is unclear whether Congress would approve or disapprove of an
action, judges are left to make the decision of which way
congressional inertia is leaning. When there is no clear direction
from Congress, the judge would have to rely on his or her own
beliefs and perspectives of the situation instead of enforcing the
laws neutrally. It is possible that the members of the Court could
take personal feelings into account because there is no clear
guideline regarding the President’s power in this tier.
The new two-pronged system of presidential power would
only require the use of the first and third tier. This would place the
Brickman 15
burden of a decision first on the President. After he or she acts, the
burden will be placed on Congress to decide whether it approves or
disapproves of the actions. This system is a more concise and
consistent way to determine the President’s authority in a situation.
PART 4 : CONCLUSION
While the President may not have been able to rely on his
inherent authority to seize the steel mills, various statutes and
precedents made the seizure constitutional. An array of treaties and
statutes required the President to ensure the United States’ security
by faithfully executing the defense program as authorized by
Congress. Had there been a stoppage in steel production, it would
be nearly impossible for the nation to meet these obligations.
Adhering to these requirements, the seizure was a necessary and
proper response to fulfill a constitutional duty.
While the opining Justices offered valid explanations as to
why the seizure was unconstitutional, they did not adequately
consider the emergency that was at hand. As opposed to properly
examining the current crisis and the various statutes, they took a
stand against presidential power. While it is important that the
President’s power remains in check, Truman properly executed his
authority and did not go beyond the constitutional realm of his
powers. One of the law clerks on the Supreme Court in 1952 was
William Rehnquist.44 Rehnquist described the impact of public
opinion on the judiciary in this case, stating: “I think that this is one
of those celebrated constitutional cases where what might be called
the tide of public opinion suddenly began to run against the
government, for a number of reasons, and that this tide of public
opinion had a considerable influence on the Court.”45 It seems that
44 Supra note 11, at 7. 45 Id. at 7.
16 WULR Vol VII, Issue II Winter 2014 the courts were influenced by the public and were unable to
consider all relevant factors.
Justice Jackson’s three-tier test for presidential power
should be revised before it is applied again. There is no use for the
second tier because it is impossible to define inaction by Congress.
It is possible that judicial mischief occurred in this case due to the
intense public scrutiny of Truman’s seizure of the steel mills. The
pressure by the public could have influenced the Court’s decision
because there was no clear way to determine whether Congress
approved or denounced the President’s actions. A two-tiered system
is a more functional and reliable way to evaluate the President’s
authority.
Judgment without Justice: The Evolution of Civilian Trials under
Military Commissions
By John Moreland*
Military commissions were first used in American history during the American Revolution by the Continental Army. They were again used in the War of 1812 and the Mexican-American War. Perhaps the most expansive use of military commissions was during the Civil War, including the famous trial of the Lincoln assassination conspirators. This article examines the use and change of trials of civilians by military commissions from the American Revolution to the post-9/11 United States. It does so by canvasing three landmark military commissions: the trial of the Lincoln assassination conspirators, ex parte Quirin (1942), and Hamdi v. Rumsfeld (2004). In each case, it examine the facts, the procedures used by the military tribunals, and the outcomes and precedent that each set for American jurisprudence. By studying this evolution of military commissions, not only do the violations of constitutional rights become apparent, but also the overreaching of constitutional powers by the Executive Branch.
While each of the three cases possesses distinct time periods, fact patterns, and outcomes, all of them resulted in the violation of the defendant’s constitutional rights, the overreaching of governmental power by one branch exercising the authority of another branch, and the use of military commissions as an instrument of expedient revenge for attacks against America. In all three cases, the jurisdiction of the Military Commission was challenged on the basis that the Executive did not have the constitutional authority to appoint commissions. Also, they violated the Fifth and Sixth Amendment rights of the accused by not providing for a Grand
18 WULR Vol VII, Issue II Winter 2014
Jury and having the trial proceedings in secret. The suspension of habeas corpus and martial law was also of issue. It is interesting to see the evolution of military commissions over the course of history and to consider their potential in the future. Even though several constitutional rights have been adopted and protected in these tribunals, the question of who is to establish them still remains. Is it expressly Congress? Is it the President, acting as Commander-in-Chief? The Supreme Court has yet to address these issues. Perhaps by not addressing these questions, the Supreme Court is giving the Executive tacit approval. However, it is during a time of war or national emergency when the president is most likely to make extralegal decisions and thus constitutional rights are most threatened.
*A life-long resident of central Illinois, John Moreland graduated in 2013 from the University of Illinois with a BA in history. He plans to start his PhD in Civil War history in the fall of 2014 and thus forth begin a career in academia.
Table of Contents INTRODUCTION 18 I: THE LINCOLN CONSPIRATORS 22 II: EX PARTE QUIRIN 33 III: HAMDI V RUMSFELD 40 VI: CONCLUSION 47
INTRODUCTION
In a post-9/11 world, “military commission” has become
a phrase that elicits either foreboding or patriotic zeal in
defense of our national security. While proponents have
deemed such tribunals a military necessity, opponents have
deemed them an assault on individual liberties and rights.
Unfortunately, the War on Terror, begun by the Bush
Administration, has second-guessed the laws of war. We no
longer contend with state enemies on a clear battlefield. The
enemies we face today fight with terror, targeting civilian
Moreland 19
populations and using other unconventional tactics in direct
violation of the internationally accepted laws of war. How do
we combat this new enemy and under which laws do we judge
them, especially when many are United States citizens? More
importantly, who is authorized to constitute military
commissions in order to try such offenders? Even though the
terrorist attacks were unique in American history, these legal
questions were not. By examining the evolution of military
commissions we can see not only the violation of
constitutional rights but also the overreaching of
constitutional powers by the Executive Branch.
The origins of military commissions in America extend
back to the early days of the country itself. In June of 1775, as
the American Revolution began to escalate, the Continental
Congress adopted 69 Articles of War, drawn largely from the
British Articles of War.1 These Articles of War were
administered exclusively by the legislature and framed the
procedures for courts-martial of soldiers, not civilians.2 In
1787, Samuel Carter, a citizen of New Jersey, was arrested for
delivering arms to the British. General George Washington
immediately ordered Carter to be transferred to a New Jersey
civilian court stating, “[I am] not fully satisfied of the legality
of trying an inhabitant of any State by Military Law, when the
Civil authority of that State has made provisions for the
punishment of persons taking Arms with the Enemy.”3
With the ratification of the United States
Constitution in 1787 and the subsequent creation of a new
American government, military power stemmed from
legislative authority as it did during the war. Pursuant to the
Constitution, the President was made Commander-in-Chief of
the army and navy but at the same time was made accountable
1 LOUIS FISHER, MILITARY TRIBUNALS & PRESIDENTIAL POWER: AMERICAN
REVOLUTION TO THE WAR ON TERRORISM 7 (The University Press of Kansas 2005). 2 Id. at 9. 3 FISHER, supra note 1, at 10.
20 WULR Vol VII, Issue II Winter 2014
and subordinate to civil law. Under Section 8 of Article I of the
Constitution, it was Congress who was given the power to
“make Rules for the Government and Regulation of the land
and naval Forces.” In 1789, legislation was passed that
essentially adopted the Articles of War that had been used
during the Revolutionary War. As time passed, the articles
were expanded and supplemented. In April 1806, Congress
enacted a bill that consisted of 101 Articles of War, many of
which, like the previous Articles of War, set forth the rules and
procedures for courts-martial. The articles would continue to
be restructured, and their boundaries tested, over the next
several years.4
One of the first instances in which military
commissions were used to try civilians was during the War of
1812 when General Andrew Jackson declared martial law
throughout the city of New Orleans. After the British were
defeated Jackson maintained the state of martial law. Louis
Louallier, a New Orleans resident, wrote an article in a local
newspaper declaring that citizens accused of a crime should be
tried before a civil court, not a military tribunal and stated that
Jackson’s order was “no longer compatible with our dignity
and our oath of making the Constitution respected.” On
March 5, 1815, General Jackson had Louallier arrested for
inciting mutiny and disaffection within the army. However,
when Federal District Judge Dominck Hall granted a writ of
habeas corpus for Louallier, Jackson arrested the Judge as well.
Jackson was later fined $1,000 for his actions, ironically by
Judge Hall himself.5
Military commissions were once again used on
civilians during the Mexican American War. When American
soldiers invaded Mexico, they did not have a stable legal
system to prosecute those who violated the law of war.
Therefore, General Winfield Scott declared a state of martial
4 LOUIS FISHER, MILITARY TRIBUNALS: HISTORICAL PATTERNS AND LESSON 3-6 (CRS 2004). 5 FISHER, supra note 4, at 5-8.
Moreland 21
law in Mexico for both American soldiers and Mexican
citizens. However, when Secretary of War William Marcy
submitted a bill that authorized these military tribunals,
Congress refused to consider it. In curbing the lack of
Congressional authority, Scott issued General Orders No. 20
on February 19, 1847. This order defined specific crimes
committed by civilians and American soldiers and declared
those crimes to be tried before military commissions. Scott
never did receive Congressional permission for his military
commissions and after the war the Supreme Court overturned
many of Scott’s actions and the actions of other officers who
ordered military trials of civilians.6
The most expansive use of military commissions,
however, occurred during the Civil War. These military
commissions did not come from Congress but rather from
President Lincoln himself. After declaring martial law and
establishing military commissions in areas such as Missouri
and Maryland, President Lincoln convinced Congress to
recognize and approve, retroactively, his Presidential acts. In
1863, one particular piece of legislation declared “all
persons…found lurking as spies…shall be triable by a general
court-martial or military commission.”7 Many federal judges
during the war attempted to maintain their authority but they
were either curtailed or simply ignored.8 Even as the Civil
War came to a close and both sides began to piece together a
war-torn nation, military commissions would continue to be
used to extract revenge for a war-torn nation.
This is a study into the evolution of military
commissions in America by examining three landmark cases:
the trial of the Lincoln conspirators, ex parte Quirin, and Hamdi v.
Rumsfeld. Each of these cases possesses distinct time periods,
fact patterns, and outcomes. At the same time however, they
6 Id. at 11-14. 7 12 Stat. 737, § 38 (1863). 8 Id. at §§ 16-20.
22 WULR Vol VII, Issue II Winter 2014
share similarities. All three resulted in the violation of the
defendant’s constitutional rights, the overreaching of
governmental power by one branch exercising the authority of
another branch, and the use of military commissions as an
instrument of expedient revenge for attacks against America.
By looking at these three cases, we can finally bring justice to a
so-called legal system that has deprived United States citizens
of their constitutional rights in the name of national security.
I: THE LINCOLN CONSPIRATORS
On the evening of April 14, 1865, a lean, well-dressed
gentleman with coal black hair and mustache entered
Taltavul’s Tavern located next to Ford’s Theatre. Despite the
fact that it was Good Friday, the war was over and
Washington D.C. had been in a state of intoxication for a
week. This gentleman, however, did not come to Taltavul’s to
join in the celebration. He walked across the dingy, noisy
room and up to the bar. Being a regular, he usually asked for
brandy, but on this particular night, he asked for whiskey. It
would be his last for a while. Further down the bar, a man,
already drunk, lifted his glass to the dark haired gentleman and
said, “You’ll never be the actor your father was.” John Wilkes
Booth smiled and replied, “When I leave the stage I will be the
most famous man in America.”9
Meanwhile, George Atzerodt rode to the Kirkwood
House to assassinate Vice-President Andrew Johnson. Upon
arriving, Atzerdodt decided, like Booth, to calm his nerves
with a drink before climbing the stairs to Johnson’s room.
However, one drink turned into several and Atzerodt never
made an attempt on Johnson’s life. He left the bar, stumbled
onto his horse, and fled the city.10 Four blocks to the
northwest Lewis Payne and David Herold arrived at Secretary
9 JIM BISHOP, THE DAY LINCOLN WAS SHOT 203 (Perennial Library 1955). 10 BISHOP, supra note 9, at 205.
Moreland 23
of State William Seward’s house at 10:10 p.m. Herold held the
horses as Payne went to the door. Pretending to be delivering
medicine from Seward’s doctor, Payne attempted to gain
access. When the servant refused him entrance, Payne forced
himself in and up the staircase. Making his way to the
bedroom, he made several attempts to stab Seward.
Unsuccessful, Payne ran out of the house and escaped down H
Street. Herold had already fled the scene.11
Shortly after 10 p.m., Booth left Taltavul’s and walked
through the front entrance of Ford’s Theatre where the
popular comedy Our American Cousin was being performed.
After waiting in the lobby a moment, he turned right, ascended
the dress circle stairs, and walked to the white door at the end
of the hallway leading to box number seven. Upon entering
the unguarded presidential box, Booth withdrew from his
pocket a Derringer pistol. At the very moment when the
audience exploded with laughter, John Wilkes Booth, the most
famous actor in America, fired a bullet into the back of
President Abraham Lincoln’s head. As the theatre erupted in
pandemonium, Booth leapt from the box onto the stage,
breaking his leg in the process. Hobbling off the stage, he
escaped out the back door, leapt onto his mare and galloped
into the darkness.12
After fleeing Secretary Seward’s home, Herold rode
down Pennsylvania Avenue, across the Navy Yard Bridge, and
into Maryland. Only a few minutes earlier, Booth had taken
the same route out of Washington.13 About eight miles out of
the city limits, Herold finally caught up with Lincoln’s
assassin. Five miles later, Booth and Herold arrived at the
Surratt Tavern where Mary Surratt, the owner, had placed
carbines, a set of field glasses, and a bottle of whiskey for their
escape. The two continued their flight until they reached the
11 Id. at 219-222. 12 Id. at 205-210. 13 JAMES L. SWANSON, MANHUNT: THE 12-DAY CHASE FOR LINCOLN’S KILLER 80 (HarperCollins 2006).
24 WULR Vol VII, Issue II Winter 2014
farmhouse of Dr. Samuel Mudd at around 4 a.m. Dr. Mudd set
Booth’s leg and allowed him and Herold to stay and rest before
they continued their flight south.14
At 7 p.m. the next evening, Booth and Herold left Dr.
Mudd’s house. Their escape south continued for another
twelve days. On April 26, while hiding out in a tobacco barn
on Richard Garret’s farm in Virginia, Booth and Herold were
finally caught and surrounded by Union soldiers. Herold
surrendered but Booth remained in the barn, refusing to give
himself up.15 Minutes later, Sergeant Boston Corbett found a
hole in the side of the barn, took aim with his revolver, and
fired a bullet into the back of Booth’s head, almost at the exact
same spot that the president had been shot. Dragging his
paralyzed body out of the barn that had been put ablaze in
order to smoke the two conspirators out, the soldiers placed
him on the front porch of the Garret farmhouse. A few hours
later, Booth, now the most infamous actor in America, died and
walked onto the stage of history.16
In the days after the assassination, pieces of the puzzle
began falling into place as authorities investigated anyone
connected with Booth. Finally, eight individuals were arrested
and taken into custody. After giving himself up at the Garret
farm, Herold was taken back to Washington. Five of the
suspected conspirators were arrested on April 17. Unsuccessful
in the assassination of Seward, Lewis Payne made his way to
the Surratt home. To his surprise, the residence was already
being searched by the authorities. Both Mary Surratt and
Payne were arrested on suspicion. Edward Spangler was
arrested upon being implicated by John Ford, the owner of
Ford’s Theatre. Like Herold, Michael O’Laughlin turned
himself in. Samuel Arnold was arrested in Baltimore when a
letter was found in Booth’s hotel room with Arnold’s name on
14 Id. at 87-124. 15 Id. at, 326. 16 SWANSON, supra note 13, at 335-342.
Moreland 25
it. George Atzerodt was arrested on April 20 in Germantown,
Maryland at his cousin’s house. Dr. Samuel Mudd was arrested
the next day. After being interrogated by authorities for a
second time, Dr. Mudd finally admitted to knowing Booth
before the assassination and harboring him during his escape.17
Seeking legal approval for the use of a military
commission to try the eight conspirators in custody, President
Johnson wrote a letter to Attorney General James Speed asking
for his legal opinion on the appropriate course of action.
Despite the fact that he admitted in his legal opinion that the
civil courts were open, functioning, and capable of trying the
conspirators, Speed responded, “[t]he conspirators not only
may but ought to be tried by a military tribunal.”18 With this
justification, President Johnson issued the following order on
May 1: “It is ordered that the Assistant Adjutant-General detail
nine competent military officers to serve as a Commission for
the trial of said parties, and that the Judge Advocate General
proceed to prefer charges against said parties for their alleged
offenses.”19
Nine days later, the eight accused were brought to the
Old Arsenal Penitentiary building in Washington D.C. before
the nine military officers that had been appointed to serve on
the Commission, none of which were lawyers. The eight were
asked if they had any objections to any member of the
Commission, to which they replied they had none. The Judge
Advocate General then swore in the members of the
Commission. Brigadier General Joseph Holt, John Bingham
and Colonel Henry Burnett were appointed as Assistant Judge
Advocates who would help prosecute the case for the
government. With the Commission and Judge Advocates
present, the accused were asked if they wanted to acquire legal
17 ROY Z. CHAMLEE, LINCOLN’S ASSASSINS: A COMPLETE ACCOUNT OF THEIR
CAPTURE, TRIAL, AND PUNISHMENT 142-155 (McFarland & Co. 1990). 18 Opinion on the Constitutional Power of the Military to Try and Execute the Assassins of the President, Op. Att’y Gen. 3 (1865). 19 Executive Order, Andrew Johnson, PUB. PAPERS (May 1, 1865).
26 WULR Vol VII, Issue II Winter 2014
counsel. All eight wished to do so. The Commission,
therefore, afforded the defendants time to retain counsel and
adjourned until the following morning.20
On May 10th, at 10 a.m., the eight conspirators were
once again brought up to the third story of the Old Arsenal
Penitentiary for arraignment. Standing before the appointed
Commission, the conspirators were charged with “combining,
confederating, and conspiring together with one…John Wilkes
Booth…to kill and murder…Abraham Lincoln…Andrew
Johnson…[and] William H. Seward…on the 14 day of April,
A.D. 1865.”21 All the defendants subsequently pled “not guilty.”
After the charges had been read and the pleas heard, the
Commission discussed and adopted their own rules of
proceeding that would govern the trial. The most notable rule
by the Commission was that the proceedings were to be held
in secret and the public barred from the trial. With their rules
agreed upon, the Commission adjourned in order to give the
accused additional time to secure and communicate with their
attorneys.22
By May 12, all eight defendants had successfully
acquired counsel. On that day, each attorney was introduced
and approved by the Commission as required by the Commission’s
own rules. Upon the conclusion of these preliminary matters,
Reverdy Johnson, attorney for Mary Surratt, and Thomas
Ewing, attorney for Samuel Arnold, rose to challenge the
jurisdiction of the Military Commission over the civilian
defendants. After arguments were heard, the members of the
Commission ruled on their own jurisdiction and denied the
defendants’ motion. Over the next 49 days, 366 witnesses
testified during secret hearings in which irrelevant evidence
was admitted and constitutional rights were violated. The
20 Id. at 21. 21 JOHNSON, supra note 19, at 18-19. 22 Id. at 21.
Moreland 27
controversy over the Commission’s jurisdiction, however,
remained.23
On June 16, Johnson arose and again challenged the
jurisdiction of the Commission on the basis that there was no
constitutional foundation for it. The Executive possessed no
authority to make rules for governing or regulating the army or
navy. These powers belonged exclusively to Congress and
such rules could not have been passed except by Congress. He
argued that in order to protect citizens from the Executive
overreaching its power, the founding fathers adopted certain
protections and therefore the Military Commission lacked
jurisdiction to try the eight individuals based on the fact that it
did not provide for their Fifth and Six Amendment rights
under the United States Constitution.24 The Fifth Amendment
states, “no person shall be held to answer for a capital crime or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury…”25 The accused, therefore, were
within the jurisdiction of the civil courts and entitled to the
protection of indictment.
For a majority of the trial, the proceedings were held in
secret and the press barred from the courtroom. Johnson
argued that this violated the Sixth Amendment which states
that “in all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial” and the right “to be
confronted with the witnesses against him.”26 Johnson
questioned, “If the names of witnesses, and their evidence, are
not published, what obstacles does it not interpose to establish
their innocence?” He reasoned, “A public trial, therefore, by
which the names of witnesses and the testimony are given,
even in monarchical and despotic Governments, is now
esteemed and amply adequate to the punishment of guilt, and
23 JOHNSON, supra note 19, at 22-23. 24 BENN PITMAN, THE TRIAL: THE ASSASSINATION OF PRESIDENT LINCOLN AND THE
TRIAL OF THE CONSPIRATORS 252-253 (Edward Steers Jr. ed., The University Press of Kentucky 2003). 25 U.S. CONST. amend. V. 26 Id. at amend. VI.
28 WULR Vol VII, Issue II Winter 2014
essential to the protection of innocence.”27 Johnson
acknowledged that every American had the right to expect the
punishment of the guilty, but that punishment had to be
administered according to the law of civil courts that were
governed by the Constitution.
He also pointed out that in the Articles of War, the
very same laws that the Commission members were
sanctioned under, if a defendant is not subject to military
jurisdiction when he commits the alleged offense the military
authorities must turn him over to the civilian courts for proper
trial.28 This, of course, the Military Commission did not do
and therefore violated the same laws through which they
assumed jurisdiction. Furthermore, the accused were also
charged with “military treason.” Article III of the United
States Constitution provides that “no person shall be
convicted of treason, except on the testimony of two witnesses
to the same overt act, or on confession in open court.”29
Nowhere did the term “military treason” exist prior to the Civil
War and the only definition of “treason” rested solely within
the Constitution. Therefore, the offense of treason could only
be tried and punished as prescribed by the Constitution, not
the Articles of War.
Johnson continued his argument by addressing the
government’s claim that the Commission possessed
jurisdiction on the basis that it was an incident of the
president’s war power. Johnson’s contention, as mentioned
before, was that the war powers lay exclusively with Congress
who maintained the authority to raise armies, govern those
armies by rules, and confer powers to the president as
commander-in-chief. “He is impotent to that end as a private
soldier.”30 Therefore, if military commissions were an “incident
to the president’s war power,” it had to have been authorized
27 PITMAN, supra note 24, at 255. 28 Id. at 254. 29 U.S. CONST. art. III, § 3. 30 PITMAN, supra note 24, at 253.
Moreland 29
by Congress. No such military commissions had been
authorized by the legislature, nor did the Articles of War
themselves mention such tribunals except for courts-martial
and courts of inquiry which were strictly limited to the
prosecution of uniformed soldiers.31
The government also asserted its jurisdiction to try the
eight conspirators under the suspension of habeas corpus and the
declaration of martial law. Johnson correctly contended that
the purpose of the writ of habeas corpus was simply to determine
the legality of the detention. Even if this writ had been
suspended by Congress, which it had not, the only right that
would have been suspended was the right of the accused to be
brought before a civil court.32 It was also argued that martial
law necessitated a military commission since martial law is
enacted when civil law fails to maintain order, thus military
tribunals take the place of civil courts. The Government relied
on the precedent of General Scott in Mexico when he
established military commissions under his declaration of
martial law. Johnson, however, argued that during both the
Mexican-American War and the Civil War, martial law had
not been declared by the proper authority and the civil courts
were open and functioning, thus negating the two
requirements for the existence of martial law.33
Additionally, the court proceedings of the Military
Commission were far from being impartial. Not only were the
members of the Commission trying the individuals who were
being accused of being accomplices in the assassination of
President Lincoln, but they were also weeding out alleged
Confederate conspiracies throughout the recent Civil War.
Testimony about infecting Washington D.C. with smallpox,
plotting to burn New York City, and starving Union prisoners
were actually admitted into evidence, but would have been
31 Id. at 253-254. 32 Id. at 257. 33 Id. at 261.
30 WULR Vol VII, Issue II Winter 2014
totally irrelevant and never admitted into a civil court. Even
the relevant testimony that was given would have been thrown
out in a civil court due to the fact that much of it was simply
hearsay. The Military Commission was obviously seeking
convictions and blatantly ignored the flaws in the evidence.34
As noted previously, the proceedings were held in
secret. To this, Johnson stated, “[i]t partakes more of the
character of the Inquisition.”35 Interestingly, there was more
public criticism to the closed proceedings than to the use of a
military commission. While Americans wanted to follow the
trial of the ones who murdered their president, the
newspapers, of course, feared that the lack of coverage to their
readers would in turn lower revenue. Eventually public outcry
increased so much that the court proceedings were opened up
to the public and the press. Along with this public pressure,
there was also the concern among the government that if the
accused were convicted in secret it might appear that the
prosecution’s case was too weak to try in open court.36
Another flaw in the court proceedings was the
character of the pleadings themselves. According to the
government it charged the eight conspirators with aiding the
rebellion in murdering President Lincoln, Vice-President
Johnson, Secretary of State Seward, and General Grant, thus
disrupting the line of succession and preventing a “lawful
election” and overthrowing the Constitution and the laws of
the United States. Johnson argued that this pleading would
not have been tolerated in a civil court, as the survival of the
government was not contingent on the lives of any or all of its
leaders. In fact, the government and its necessary functions
continued just as they had before the assassination of President
Lincoln. Unfortunately, the Commission, for a second time,
34 THOMAS REED TURNER, The Military Trial, in THE TRIAL: THE ASSASSINATION OF
PRESIDENT LINCOLN AND THE TRIAL OF THE CONSPIRATORS 25 (Edward Steers Jr. ed., The University Press of Kentucky 2003). 35 PITMAN, supra note 24, at 255. 36 TURNER, supra note 34, at 12.
Moreland 31
dismissed Johnson’s arguments against their jurisdiction and
the trial continued. 37
Finally, after 49 days of trial, the Commission
published their findings. David Herold, Lewis Payne, George
Atzerodt, and Mary Surratt were all found guilty and
sentenced to hang. Michael O’Laughlin, Samuel Arnold, and
Dr. Samuel Mudd were found guilty and sentenced to hard
labor for life. Edward Spangler was also found guilty but was
sentenced to only six years of hard labor.38 On July 7, Mary
Surratt’s attorney obtained a writ of habeas corpus from a federal
judge ordering the army to release her and bring her before a
civil court. However, in the same hour, President Johnson
suspended her writ.39
On July 7, 1865, Herold, Payne, Atzerodt, and Surratt
climbed the scaffolding of the gallows in the courtyard of the
Old Arsenal Penitentiary. At 1:26 p.m. the four conspirators
were hung by the neck until dead.40 John Surratt Jr., Mary
Surratt’s son who was also involved in the assassination plot,
escaped into Canada. After his mother’s hanging, John sailed
for Europe and joined the Papal Zouaves under the alias “John
Watson.” On a tip from a fellow Zouave, Surratt was captured
in 1866 and taken back to Washington D.C. for trial. Unlike
his mother, John was tried before a civil court from June to
August 1867. The jury was unable to reach a verdict and he
was released. If he had been captured in 1865 and tried before
the military commission, he likely would have been convicted
and executed.41
Most voices of criticism against the Military
Commission were lost in the wave of revenge for the martyred
president. The following year, Americans began to see that
their longing for a quick trial and execution may not have been
37 PITMAN, supra note 24, at 259. 38 Id. at 247-249. 39 Id. at 250. 40 SWANSON, supra note 13, at 365. 41 Id. at 375-376.
32 WULR Vol VII, Issue II Winter 2014
the best course of action and that perhaps the jurisdiction of
military commissions needed to be limited in order to protect
against another act of revenge. The landmark case ex parte
Milligan, which originally began a year before President
Lincoln’s assassination, seemed to render the conviction of the
eight conspirators null and void even though, for the four
executed, their sentence was certainly final and irreversible.
This Supreme Court decision would set a precedent for the
legality of military commissions for the next several
generations.
On October 5, 1864, Lambdin Milligan was arrested
and charged in Indiana with conspiracy on the grounds of
planning to steal weapons held by the Union Army, liberate
prisoner of war camps, and overthrow the United States
government. On October 21, Milligan was put on trial by a
military commission in Indianapolis. He was found guilty and
sentenced to hang in May of 1865. Like the Lincoln
conspirators, Milligan argued against the jurisdiction of the
Military Commission that tried him. Nine days before he was
scheduled to be executed, Milligan petitioned for a writ of
habeas corpus, arguing that the Military Commission’s
assumption of jurisdiction was unconstitutional and that he
possessed a right to a trial by jury.42
This was the first time that the Supreme Court faced
the question of whether the military could try civilians in place
of civil courts in areas outside the actual field of military
operations. The Court found that civilians could not be tried
by military commissions when civilian courts were open and
functioning and that neither Congress nor the President
possessed the power to authorize such tribunals.43 This
decision was really the first significant judicial protection
against military and executive invasion of individual
constitutional rights for future generations of Americans. The
42 Ex parte Milligan, 71 U.S. 218 (1866). 43 Ex parte Milligan, 71 U.S. 218.
Moreland 33
critics, of course, condemned the decision, as it looked as
though the Court was trying to prevent the execution of
congressional policy.44 Congress asserted that this ruling
would restrict the ability to carry out their harsh policy of
Reconstruction. Therefore, in 1867, it passed a statute
declaring, “… no civil court of the United States, or of any State,
or of the District of Columbia, or of any district or territory of
the United States, shall have or take jurisdiction of, or in any
manner reverse any of the proceedings had or acts done as
aforesaid.”45 In other words, Congress limited the Court’s
jurisdiction to hear cases involving military law. Despite the
Milligan decision, military commissions continued throughout
Reconstruction. From the end of April 1865 to January 1, 1869,
there were 1,435 military trials of civilians.46
PART II: EX PARTE QUIRIN
After the Civil War and Reconstruction, the United
States military established very few commissions until World
War II. In 1913, a revision of the Articles of War, attempting to
limit the power of military commissions, stated that general
courts-martial possessed the power not only to try persons
subject to the Articles of War, but also those persons subject
to trial by military commissions. Later, language was added to
ensure that the jurisdiction of courts-martial and military
commissions were coherent and possessed the same
procedures. In 1920, Congress declared that the regulations for
military commissions were to follow the rules of evidence
recognized by the district courts of the United States. Despite
Congress’ attempts at curtailing the use of military
commissions, the military and specifically the Executive
overreached their constitutionally-given powers and assumed
44 ROBERT F. CUSHMAN, CASES IN CONSTITUTIONAL LAW 74 (Prentice Hall, INC. 1979). 45 14 Stat. 432, 437 (1868). 46 FISHER, supra note 4, at 25.
34 WULR Vol VII, Issue II Winter 2014
jurisdiction over civilians by establishing such commissions to
try them for offenses that should have been tried in civil
court.47
The defendants in ex parte Quirin, Ernest Peter Burger,
George John Dasch, Herbert Hans Haupt, Heinrich Heinck,
Edward Kerling, Herman Neubauer, Richard Quirin and
Werner Thiel all were German-born United States citizens.
Between 1933 and 1941, they returned to Germany.48 After the
United States had declared war on Nazi Germany, the eight
conspirators attended a sabotage school near Berlin, where
they were trained to use explosives and secret inscriptions.
Upon completion of their training, the accused left Germany
for France where Burger, Heinck, Quirin, and Dasch boarded a
submarine headed for the United States. On June 13, 1942, the
four, dressed in German uniforms, landed on Long Island with
explosives, fuses, and incendiary and timing devises. After
burying their uniforms, the men continued on to New York
City in civilian attire.49
The other four conspirators, Kerling, Neubauer, Thiel,
and Haupt boarded another German submarine at the same
French port. However, this submarine carried them to Ponte
Vedra Beach, Florida. They landed on June 17 wearing German
uniforms and carrying the same equipment as the other group.
These four also replaced their uniforms for civilian clothes and
proceeded to Jacksonville, Florida. Thiel went to Cincinnati,
Haupt and Neubauer went to Chicago, and Kerling went to
New York. All eight conspirators had received orders from the
German High Command to destroy railroads, factories,
bridges, and other strategic targets. Among the weapons they
carried were lumps of TNT disguised as pieces of coal that
could be thrown into furnaces of locomotives or factories.
47 Id. at 32-35. 48 Ex parte Quirin, 317 U.S. 163 (1942). 49 FISHER, supra note 1, at 91-92.
Moreland 35
However, their plan quickly unraveled the minute they set foot
on American soil.50
When the first group, led by Dasch, reached the coast
of Long Island in the early morning hours of June 13, they
emerged from the submarine and paddled to shore. As the four
began to unload the explosives from the raft, an unarmed
coastguardsman stumbled upon them during his patrol. Dasch
attempted to give him money in order to keep him quiet.
Taking the money, the coastguardsman returned to his station
and alerted the FBI. By the time the federal agents reached the
beachhead and found the discarded uniforms, the saboteurs
were gone. Soon thereafter, Dasch, in a moment of panic,
decided to turn himself in by making an anonymous call to the
FBI in New York City and then taking a train to Washington
D.C. to unveil their whole mission. With Dasch’s help, the FBI
quickly found and arrested the remaining seven conspirators.51
During interrogation, the eight conspirators assumed
they would be tried before a civil court; initially the federal
authorities had every intention of doing so since all eight were
United States citizens. In fact, the FBI told Dasch that if he
testified against the others, they would get a Presidential
pardon for him. The only provision was that the FBI would
keep his confession quiet from the public as it would endanger
Dasch’s family in Germany and diminish the FBI’s daring
capture and uncovering of the plot. However, on June 28,
Dasch, through his cell door, saw an agent reading a
newspaper with Dasch’s face on the front page. Having been
betrayed, Dasch was now prepared to make a full explanation
of the capture and plot to a civil court.52
A civilian trial was now not an option for the
government. President Roosevelt and FBI Director J. Edgar
Hoover were heralded for capturing all eight conspirators.
50 FISHER, supra note 1, at 92-93. 51 Id. at 92-93. 52 FISHER, supra note 4, at 94-95.
36 WULR Vol VII, Issue II Winter 2014
They certainly did not want the public to find out that Dasch
actually turned the others in or that two German U-boats
reached American soil undetected. Furthermore the
government was concerned that the 30-year prison sentence
for sabotage would not stick in civil court simply because the
eight men had not actually carried out the act of sabotage. A
military court, however, would accomplish several things: it
could carry out the trial in secret, reach a quick verdict, allow
for the adoption of its own procedural rules, and decide on a
maximum sentence, most likely the death penalty.53
On June 29, Secretary of War Henry L. Stimson and
Attorney General Francis Biddle met to discuss whether to try
the saboteurs in a civil or military court. A military
commission was quickly decided upon.54 The next day, Biddle
wrote a memo to President Roosevelt outlining the advantages
of a military commission. He recommended that Roosevelt
deny the conspirators access to civil courts so there was no
review of the Commission.55 On July 2, President Roosevelt
issued Proclamation 2561 entitled, “Denying Certain Enemies
Access to the Courts of the United States.” It began with the
following language, “…all enemies who have entered upon the
territory of the United States…in order to commit
sabotage…should be promptly tried in accordance with the law
of war.”56
On July 2, 1942, President Roosevelt appointed the
members of the Military Commission, the prosecution, and the
defense counsel. Comprising the Commission were three
brigadier generals and four major generals. Attorney General
Biddle and Judge Advocate General Myron Cramer would
serve as the prosecutors while Colonel Cassius M. Dowell and
53 Id. at 95. 54 Id. at 96. 55 Memorandum from Att’y Gen. Biddle to President Roosevelt (June 30, 1942) (on file with FDR Library). 56 Amending Executive Order No. 8197 of July 11, 1939, Prescribing Regulations Pertaining to the Administration of the Act of May 3, 1939, 7 Fed. Reg. 5101 (July 7,1942).
Moreland 37
Colonel Kenneth Royall would serve as the defense attorneys
for the eight defendants. As with the military trial of the
Lincoln conspirators, this particular commission possessed the
freedom to “make rules for the conduct of the proceedings,
consistent with the powers of military commissions.”57 In
regards to evidence, it could admit anything that could, “in the
opinion of the President of the Commission, have probative
value to a reasonable man.”58 The defense, of course, had to
grapple with the question of how one measures or defines
what is valuable to a reasonable man.
Among these rules were: “No peremptory challenge.
Challenge of members of the Commission for cause may be
permitted. The Commission, by a two-thirds vote of those
voting-the challenged members not voting-may pass on any
challenge.”59 The Commission was also allowed to use
procedures from the Manual for Courts-Martial at anytime.
Therefore, it was almost impossible for the defense to have
before it a set list of rules. Following the model of the Lincoln
conspirator’s trial, the eight German conspirators’ trial was
held in secret from July 8 to August 1. On arraignment, the
eight were charged with violating the law of war, two charges
of violating the Articles of War, and one charge of conspiracy.60
Not only would these procedures be questioned, but also the
jurisdiction and constitutionality of the Military Commission
itself.
Thirteen days into the trial, defense counsel Colonel
Royall met ex parte with Justice Owen Roberts. After hearing
about the situation, Justice Roberts told Royall that this case
most certainly needed to be reviewed. Oral argument began on
July 29 in Special Term. Because the Articles of War and the
law of war, issues rarely considered by the Supreme Court,
57 7 Fed. Reg. 5103 (June 2, 1942). 58 Id. 59 Rules Established by the Military Commission Appointed by Order of the President of July 2, 1942 (on file with Papers of Frank Ross McCoy). 60 PITMAN, supra note 24, at 991.
38 WULR Vol VII, Issue II Winter 2014
were being questioned, and given the fact that the Justices
were not very well prepared, the Court waived the one hour
argument limit for each side.61 However, there were problems
with the composition of the Court. Justice Frank Murphy had
already recused himself due to his position as an officer in the
reserves. Chief Justice Stone’s son was part of the defense.
Justice Frankfurter, on a regular basis, had been visiting the
White House to talk with President Roosevelt regarding the
German saboteurs and Justice James F. Byrnes was one of
Roosevelt’s advisors on the war effort.62
Despite the Court’s personal involvement or bias
regarding the case, all continued to hear the central legal issue
of whether the President was authorized to constitute a
military trial of civilians when the civilian courts were open
and functional. Royall and Dowell argued that even the 81st
and 82nd Articles of War, which provided for the military trial
of spies, could not have been applied to this case. None of the
eight individuals committed any act of spying in or around a
military installation or zone of military operations. In regards
to the charge of violating the law of war, this was a class of
international law, equivalent to common law. Royall and
Dowell argued there was no common law crime against the
United States. Instead this violation was specified as sabotage
which was covered by the United States Code and therefore
triable by a civil court.63
Furthermore, the Military Commission did not have
jurisdiction under the President’s declaration of martial law.
Counsel argued that the President’s order of martial law did
not cover the entire eastern shoreline of the United States.
There was no sufficient reason why anyone in that area should
have been deprived of their constitutional rights. Additionally,
the establishment of a military commission violated the Fifth
61 FISHER, supra note 1, at 106-107. 62 Id. at 107-108. 63 Ex parte Quirin, 317 U.S.
Moreland 39
and Sixth Amendments of the United States Constitution by
not providing for a grand jury or a public trial. The very same
Articles of War that constituted the Commission were
violated as well. Articles 46 and 50 contained the provisions of
appeal for individuals tried before military commissions. This
particular Military Commission deprived the accused of a
process of appeal.64
Oral argument before the Supreme Court ended on
July 30. The following day, the justices issued their per curium
decision upholding the jurisdiction of the Military
Commission. It would take an additional three months for a
full opinion to be written, but in the meantime, the Military
Commission had the go ahead to finish the trial. On August 1,
the Military Commission rendered a verdict and all eight
defendants were found guilty and sentenced to death. Based
on the Commission’s own rules, President Roosevelt approved
the death penalty for six of the conspirators while Dasch and
Burger received prison sentences. The six sentenced to death
were electrocuted on August 8.65 With the military trial of the
conspirators over, the members of the Supreme Court had to
finish their full opinion on why they decided to stand on the
side of the President and uphold the jurisdiction of the
Commission.
On October 29, the full opinion of ex parte Quirin was
released. In this opinion, the Supreme Court stated that due to
the secret nature and closed proceedings of the Commission, it
was impossible to evaluate whether the President had
jurisdiction to convene it or not. It did define United States
citizens, who commit acts of hostility against the United
States under an enemy government, as “enemy belligerents.”
These “enemy belligerents” were therefore subject to trial by
military commissions, which were provided for by the Articles
of War. In essence, the Supreme Court side-stepped the issue
64 Id. 65 Id.
40 WULR Vol VII, Issue II Winter 2014
of whether President Roosevelt possessed the authority to
convene the Military Commission or not by stating that it was
unnecessary to do so.66 Five decades later, the issue of military
commissions and the definition of “enemy belligerents” would
once again be debated.
Other military commissions were used during and
after World War II, all involving the President exercising
powers not given to him by the Constitution and the violation
of individuals’ constitutional rights, including the right to be
tried in a civil court. From 1952 to 1960, the Supreme Court
made additional rulings on military commissions and their
jurisdiction. In the 1955 case, Toth v. Quarles, the Supreme
Court, attempting to limit the jurisdiction of the military over
civilians, established that military commissions had no
standing to be considered among the Article III courts defined
in the Constitution simply because they infringed upon the
jurisdiction of federal courts which provide civilians
constitutional safeguards. United States District Judge Stern,
ruling in the 1979 case United States v. Tiede, stated his fear of
military commission as allowing the government “to arrest any
person without cause, to hold a person incommunicado, to
deny an accused the benefit of counsel, to try a person
summarily and to impose sentence — all as a part of the
unreviewable exercise of foreign policy.”67 Little did Judge
Stern know that twenty-two years later, the United States
would actually adopt the same “unreviewable foreign policy.”68
PART III: HAMDI V RUMSFELD
During the weeks and months after the terrorist
attacks of September 11, 2001 that took the lives of thousands
of Americans in the World Trade Center, in the Pentagon, and
66 Id. 67 United States v. Tiede, 86 F.R.D. 227, 228 (U.S. Court of Berlin 1979). 68 FISHER, supra note 4, at 47-67.
Moreland 41
in the fields of Pennsylvania, the United States government
began to put into place the “tools” it saw necessary to combat
the threat of organizations such as al Qaeda and the Taliban.
On September 14, Congress passed a resolution entitled
“Authorization for Use of Military Force.69 In effect, this
resolution authorized the President “to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001.”70 This was the first time in the history of the United
States that the government was permitted to hold and
prosecute by military commission non-state members of an
organization in an undeclared war. Two months later,
President Bush would not only use this authorization, but also
test its legal boundaries.
On November 13, 2001, the Bush Administration issued
a military order entitled, “Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism.”
Included in his order, Bush established that, “any individual
subject to this order, shall, when tried, be tried by military
commission.”71 The term “any individual subject to this order”
was defined by the administration as any individual who was
not a United States citizen and who was a member of al Qaeda,
engaged in acts of terrorism, or assisted such a terrorist.72 This
exclusion of United States citizens, however, was not strictly
obeyed. United States citizens, such as Yaser Hamdi, quickly
became victims of Bush’s order, in which they were arrested,
detained by the military, and denied their constitutional rights
before a military commission.
Yaser Esam Hamdi was born in Louisiana in 1980.
Sometime during his early childhood, Hamdi and his family
69 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2001) [hereinafter Authorization]. 70 See Authorization, supra note 69. 71 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 222 (November 16, 2001). 72 Id.
42 WULR Vol VII, Issue II Winter 2014
moved to Saudi Arabia. In 2001, Hamdi relocated to
Afghanistan, allegedly to receive military training from the
Taliban. Hamdi’s father continually maintained that his son
was in Afghanistan doing relief work. Shortly after September
11, he was captured in Afghanistan by the Northern Alliance
and turned over to American military forces. After being
interrogated in Afghanistan, Hamdi was transferred to
Guantanamo Bay in January of 2002. In April, after learning
that he was a United States citizen, Hamdi was transferred
two more times, first to Norfolk, Virginia and then to
Charleston, South Carolina where he was detained indefinitely
without access to an attorney.73
Finally in June of 2002, Hamdi’s father, acting as “next
friend,” filed for writ of habeas corpus with the federal district
court under 28 U.S.C. §2241 in the Eastern District of Virginia,
alleging that his son was being unlawfully detained, in
violation of the Fifth and Fourteenth Amendments to the
United States Constitution. The petition stated that he had
had no contact with his son since he was taken into custody in
2001, and that the Government was holding him “without
access to legal counsel or notice of any charges pending against
him.” The habeas corpus petition asked the court to appoint
counsel for Hamdi, ordered the government to halt all
interrogations, schedule an evidentiary hearing, and order his
immediate release. In response, the District Court ordered that
a public defender be appointed for Mr. Hamdi.74
The Government appealed to the Fourth Circuit,
where the lower court’s decision was rejected. The Appellate
Court stated that there was a need for limited judicial review
during times of war and that war-time decisions should be
deferred to the President and Congress. In its opinion, the
Court stated that, “if Hamdi is indeed an ‘enemy combatant’
who was captured during hostilities in Afghanistan, the
73 Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) rev’d, 542 U.S. 507 (2004).. 74 Hamdi, 316 F.3d 450.
Moreland 43
government’s present detention of him is a lawful one.”75 After
the opinion was issued, the government filed a motion to
dismiss the habeas corpus petition. Attached to the petition was
an affidavit from Michael Mobbs, the Special Advisor to the
Under Secretary of Defense for Policy, testifying that Hamdi
was captured in Afghanistan with a Taliban unit and an AK-47
in his hands.76
The District Court found that Mobbs’s affidavit, or
more popularly referred to as the “Mobbs Declaration,” fell “far
short” of supporting Hamdi’s arrest and detention, calling it
“little more than the government’s ‘say-so.’”77 The Court then
immediately ordered the government to turn over all
statements, notes, names and addresses of Hamdi’s
interrogators, dates and locations of interrogations, and his
detention for in camera review. Once again, the case went to the
4th Circuit when the government tried to have the production
order halted. The Appellate Court reversed the decision,
saying that it was “undisputed that Hamdi was captured in a
zone of active combat in a foreign theatre of conflict.”78
Therefore, according to the Court, an evidentiary hearing was
not necessary and improper. The habeas corpus petition was
likewise dismissed.79
The U.S. Supreme Court granted certiorari and
considered the question of whether the Executive branch had
the authority to detain citizens who qualify as “enemy
combatants.” Justice O’Conner gave the opinion of the Court,
in which Chief Justice Rehnquist, Justice Kennedy, and Justice
Breyer joined. The majority held that “although Congress
authorized the detention of combatants…due process demands
that citizens held in the United States as enemy combatants be
given a meaningful opportunity to contest the factual basis for
75 Id. 76 Id. 77 Id. 78 Id. 79 Id.
44 WULR Vol VII, Issue II Winter 2014
that detention.”80 Much like the Supreme Court that presided
over ex parte Quirin, this Court side-stepped the issue and did
not address whether the President was authorized by Article II
to detain United States citizens deemed enemy combatants.
In their reasoning, the Court acknowledged that the
capture and detention of both lawful and unlawful combatants
by “universal agreement and practice” are “important
incident[s] of war.”81 However, the Court concluded that
“there is no bar to this Nation’s holding one of its own citizens
as an enemy combatant.”82 Therefore, even in situations in
which enemy combatants are legally detained, there remains
the question of what the constitutional process is for a citizen
who disputes his status as an enemy combatant. Hamdi
argued that his detention based on an affidavit, containing
third-hand testimony, did not comply with the Fifth and
Fourteenth Amendments. The Court agreed stating, “The
threats to military operations posed by a basic system of
independent review are not so weighty as to trump a citizen’s
core rights to challenge meaningfully the Government’s case.”83
The Court further acknowledged that there were
significant interests on both sides of the case. Hamdi’s “private
interest is the most elemental of liberty interest-the interest in
being free from physical detention by one’s own
government.”84 In a time of ongoing conflict or war, the
government does have an interest in detaining those who do
pose a threat to national security. However, an unchecked
system of detention may lead to an oppressive and abusive
system of detention on those who do not pose that kind of
threat. In other words, the District Court and Appellate Court
took a constitutional risk. “That is, ‘the risk of erroneous
deprivation’ of a detainee’s liberty interest” was “unacceptably
80 Id. 81 Id. 82 Id. 83 Hamdi, 316 F.3d 450. 84 Id.
Moreland 45
high under the Government’s proposed rule.”85 The Court,
therefore, reaffirmed the weighing of government interests
against the restriction of liberty on citizens.
Additionally, the Court stressed the importance of
striking a balance of the Constitution between maintaining
national security and upholding due process and that during
times of conflict and war, the commitment of due process is
tested the most. Justice O’Conner wrote, “It is in those times
that we must preserve our commitment at home to the
principles for which we fight abroad.”86 It was decided that
the detention of Yaser Hamdi, a United States citizen, as an
enemy combatant did not strike that constitutional balance.
The Court reiterated the meaning of due process: “Parties
whose rights are to be affected are entitled to be heard; and in
order that they may enjoy that right they must first be
notified.”87 Hamdi was not notified of the charges against him
and was not allowed to be heard until his father brought his
case before a civil court. In this case, national security was of
concern, first and foremost, while Hamdi’s 6th Amendment
rights were entirely disregarded. The government thus failed
in balancing the Constitution.
In its final comments, the Supreme Court established
that due process requires some system in which a United
States citizen, who is being detained as an enemy combatant,
can rebut his classification. The “some evidence” standard as
provided in the Mobbs Declaration was highly inadequate;
furthermore, being subjected to military interrogations hardly
constituted, “a constitutionally adequate fact finding before a
neutral decision maker.”88 However, the Supreme Court did
state that due process could be “met by an appropriately
authorized and properly constituted military tribunal.”89 The
85 Id. 86 Id. 87 Id. 88 Id. 89 Id.
46 WULR Vol VII, Issue II Winter 2014
Court did not elaborate on this last statement but simply
vacated the judgment of the Fourth Circuit Court of Appeals
and remanded the case for further proceedings.90
Because of the Supreme Court ruling, there was no
military trial of Yaser Esam Hamdi. However, if there had been
a trial, it would have been established by President Bush’s
Military Order and the rules and procedures set forth by the
Department of Defense’s Military Commission Order No. 1.
Despite the fact that these military commissions do not
completely follow constitutional provisions, they have made
remarkable progress since the trial of the Lincoln conspirators.
Today, military commissions are open to the public (except
when classified information is being heard), evidence for the
prosecution is made accessible to the defendants, defendants
have the right to testify on their own behalf, and defendants
have the right to present evidence for their case.91
Military Commission Order No. 1 also sets forth trial
procedures. A panel of three to seven military officers, all of
whom are appointed by the Secretary of Defense, tries the
defendants. As stated before, hearsay evidence is admissible if
it contains “probative value to a reasonable person.” A
conviction of the accused requires a two-thirds vote by the
Commission members. Unlike the Lincoln conspirators,
defendants now enjoy the right of appeal. However, the appeal
panel is also appointed by the Secretary of Defense and is only
allowed to review the Commission’s rules, not federal law or
constitutional issues. Despite the seemingly progressive
elements of today’s military commissions, there are a few rights
that still do not exist within such tribunals. Military
Commission Order No. 1 does not contain any provision for
90 Id. 91 Military Commission Order No. 1: Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, U.S. D.O.D. (March 21, 2002) [hereinafter Commission].
Moreland 47
habeas corpus or any other means of challenging the accused
detention or classification as an enemy combatant.92
PART VI: CONCLUSION
Military commissions have evolved considerably over
the course of American history. General Washington
attempted to establish a precedent when he turned over
Samuel Carter to a civilian court because he believed that a
military trial was inappropriate. It is safe to say that
Washington would have been disappointed to see how
military commissions have been used since. These tribunals do
not violate only individual constitutional rights, but also
separation of powers. The drafters of the Constitution put
into place certain safeguards in order to avoid the very
situation that has occurred with the establishment of military
commissions and their assumption of jurisdiction over
civilians.
The problem lies with the Executive Branch
overreaching its constitutional boundaries and exercising the
powers of Congress. This played out in the trial of the Lincoln
assassination conspirators, ex parte Quirin, and Hamdi v. Rumsfeld.
All three cases occurred during different time periods and
possessed varying fact patterns and outcomes. They all arose,
however, during a time of national emergency. This, according
to the presidents, gave them special executive privilege in the
role of Commander-in-Chief which did not require
authorization from Congress. In all three cases, the Supreme
Court continually rejected this argument. Federal courts even
stated their fear that the presidents exercised the powers of
the executive, legislative, and judicial branches through the use
of military commissions, violating not only individual rights
and liberties but also their constitutional powers and
boundaries.
92 See Commission, supra note 92.
48 WULR Vol VII, Issue II Winter 2014
I would suggest that the Founding Fathers never
envisioned the possibility of a civil war in America. President
Lincoln was therefore faced with an unprecedented event in
which he not only had to fight in order to protect and defend
the nation, but also the Constitution of the United States.
Unfortunately, in the process, he suspended habeas corpus,
declared martial law, and allowed for the establishment of
military commissions to try certain civilians. Lincoln made
these decisions without the express permission of Congress
and when the Supreme Court ruled these decisions
unconstitutional, he simply ignored its admonishments.
When Lincoln argued that the secession of the southern states
required immediate action and could not wait on Congress to
make a decision, Congress retroactively approved these
actions. Having Congress retroactively approve something, of
course, does not equate to Congress making the original
action, especially when that action is expressly given to the
Legislative Branch, such as making rules for the governance of
the military.
In the aftermath of the Civil War and President
Lincoln’s assassination, the Executive continued to exercise
powers outside of its constitutional boundaries. Despite the
fact that President Johnson was advised that the civil courts
were open and functioning, he established a military
commission to try the eight civilian conspirators. As argued by
Reverdy Johnson, this establishment of the commission was
not a part of the president’s war powers. The war powers
were conferred to the president and thus required
authorization from Congress. No such tribunals had been
authorized by Congress. Congress had only retroactively
authorized Lincoln’s decision to establish military
commissions, it had never authorized any such commission
that Johnson had established. Even if it had, a retroactive
authorization of a presidential action does not constitute a
legal action on the part of the president.
Moreland 49
President Roosevelt, like President Johnson, obtained
“legal” permission from his Attorney General to establish a
military commission to try the eight German-Americans. In
his proclamation, Roosevelt insisted that because the accused
had attempted to commit acts of sabotage, they had to be tried
by the law of war and not by the laws of the United States.
Roosevelt also, like Lincoln, derived his authority to establish
the Commission through his war powers as Commander-in-
Chief. Not expressly stating so, he also suspended habeas corpus
so that the accused would not have the opportunity to have a
civil court review their case. Also in his proclamation,
Roosevelt authorized the Commission itself to adopt rules for
the proceeding which bypassed the procedures that Congress
had previously enacted for military tribunals. The President’s
proclamation also directed the court record, judgment, and
sentence to be sent directly to him for approval. According to
the 46th and 50th Articles of War, drafted by Congress, a
conviction and sentence had to be reviewed and approved by
the Judge Advocate General’s office.93
When the full opinion was published in ex parte Quirin,
the Supreme Court concluded that the secrecy of the trial
proceedings made it impossible to decide whether President
Roosevelt’s proclamation establishing the Military
Commission was legal and within his constitutional bounds.
However, in one of his memos, Justice Frankfurter wrote that
he had no doubt that Roosevelt violated Articles of War 46
through 53. If this evasion of the issue was not clear enough,
the Court went one step further and clearly stated that it was
not necessary to decide to what extent the President, acting as
Commander-in-Chief, has the authority to create military
commissions, yet they upheld the jurisdiction of the
Commission. As time passed and the record of the
Commission became public record, doubts were cast as to the
Court’s decision. The question as to the President’s
93 Fisher, supra note 1, at 98-100.
50 WULR Vol VII, Issue II Winter 2014
constitutional powers and military commissions were once
again put off to another date and case.94
Unfortunately, when another date and case did come,
in Hamdi v. Rumsfeld, the Supreme Court once again punted on
the question of the President and Military Commissions.
However, it did admonish the president harder than it ever had
before. Justice O’Conner stated that the Court had long
expressed that a state of war does not give the President a free
pass in regards to individual liberties and rights. The plurality
agreed that the “Use of Force Act” did indeed constitute
congressional authorization for the President to detain certain
individuals. However, it clearly stated that nothing in the act
made mention of the President being authorized to detain
United States citizens. The Supreme Court also agreed that
Hamdi was entitled to rebut his status as an “enemy
combatant” by a “neutral decisionmaker [sic]” such as “an
appropriately authorized and properly constituted military
tribunal.” However, it was the President who classified Hamdi
an “enemy combatant” in the first place. How could a review
process within the Executive Branch, like a military tribunal,
provide for a neutral, impartial decision?95
It is interesting to see the evolution of military
commissions over the course of history and to think that they
still remain a very vague and shady instrument of military law.
Even though a few constitutional rights have somewhat been
adopted and protected in these tribunals, the question of who
is to establish them still remains. Is it expressly Congress? Is
it the President, acting as Commander-in-Chief? The Supreme
Court has yet to address these issues. Perhaps the Court
believes that to rule in favor of Congress would appear to be
treading on the President’s war powers and ruling in favor of
the President would appear to be giving him additional,
unilateral authority. Perhaps by not addressing the question of
94 Fisher, supra note 4, at 42-43. 95 Fisher, supra note 1, at 226-229.
Moreland 51
Presidential authority in establishing military commissions,
the Supreme Court is giving the Executive tacit approval.
Presidents Lincoln, Roosevelt, and Bush all argued that during
a state of war or national emergency, certain constitutional
provisions must be set aside in order to protect and defend the
Constitution itself and the nation. This included the
overreaching of their constitutional boundaries and exercising
the powers of Congress in establishing military commissions.
However, it is during a time of war and national emergency
when the president is most likely to make extralegal decisions
and constitutional rights are most threatened. It is during this
time that the separation of powers is most necessary. This we
must strive to do not only to preserve our country’s
government but to preserve the ideals of liberty for future
generations.
Institutionalized Silence: The Problem of Child Voicelessness in
Divorce Proceedings
By Brandon Sadowski*
By and large, children are not represented in divorce proceedings. Moreover, when children do receive a representative, this person tends to be bound by that child’s best interests rather than being bound by that child’s expressed wishes. The question is, why are we so hesitant to give children a meaningful voice in the legal proceedings that so greatly affect their lives? This paper argues that issues concerning child representation are fundamentally underpinned by two conflicting intuitions: our paternalistic impulses and our value, or respect for autonomy. By understanding both of these intuitions, we can create a model of child representation that gets everything we want and need. This paper contends that a hybrid model of representation, which incorporates both a child’s voice and a way to ensure a child’s best interests fits the aforementioned criteria. In all, this paper is a contribution toward remedying the issue of institutionalized silence of children in divorce.
*Brandon Sadowski is a junior philosophy major at Ohio State. He is from Long Island, New York. He was inspired to write this paper by my past experience in the court system. When he was younger, he witnessed firsthand the way children are treated in divorce cases. This paper is a way to call attention to the main issue that he noticed: the lack of child representation. Having three younger brothers, ages three, eight, and sixteen has also played a role in sparking his interest for children’s rights issues. It is his hope that this paper can contribute to the ongoing debate concerning child representation and offer a unique defense of a hybrid model of representation.
Sadowski 53
Table of Contents INTRODUCTION 53 I: REPRESENTATION FOR CHILDREN IN DIVORCE CASES 55 IA. OVERVIEW OF CHILD REPRESENTATION PRACTICE……….… 55 IB. SHOULD CHILDREN BE REPRESENTED IN DIVORCE CASES?......................................................................56 II: BEST INTEREST ATTORNEY V. CLIENT DIRECTED
ATTORNEY……………………………………………………………………………61 IIA. THE ISSUE……………………………………………………………………….61 IIB. THE DEBATE……………………………………………………………………62 III: PATERNALISM AND AUTONOMY……………………………….65 IIIA. UNDERSTANDING OUR INTUITIONS…………………………….65 IIIB. COMPETENCE………………………………………………………………..68 IV: POSSIBLE MODELS OF CHILD REPRESENTATION………………………………………………………………70 V: CONCLUSION 73
INTRODUCTION
The United States judicial system hardly recognized
any children’s rights until the late 1960’s, when the Supreme
Court finally declared that “neither the Fourteenth
Amendment nor Bill of Rights is for adults alone.”1 Since then,
the courts have stated that children have procedural due
process rights,2 the freedom of speech (to a certain extent),3
the right to an education,4 and other constitutionally protected
rights.5 Although great strides have been made through the
recognition of these rights and others, children largely still lack
1 In re Gault, 387 U.S. 1, 87 (1967); Also, for summaries of the history of children’s rights see: Laurence D. Houlgate, Three Concepts of Children’s Constitutional Rights: Reflections on the Enjoyment Theory, 2 U. Pa. J. Const. L. 77; Homer H. Clark Jr., Children and the Constitution, 1992 U. Ill. L. Rev. 1. 2 Goss v. Lopez, 419 U.S. 565, 42 (1975); In re Gault supra note 2; HOULGATE supra note 2. 3 Tinker Et Al. v. Des Moines Independent Community School District Et. Al., 393 U.S. 503 (1969). 4 Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 5 For discussions of the constitutional rights of children see Homer Clark Jr., Children and the Constitution, U. Ill. L. Rev. 1 (1992).
54 WULR Vol VII, Issue II Winter 2014 many of the rights that adults are afforded.6 This is particularly
the case in the context of divorce and custody law. One such
right that children have not been given in divorce proceedings
is the unconditional right to representation.7 Instead of
granting children the right to an attorney, most states give
courts discretion to appoint a child attorney when a judge
deems that doing so is necessary.8 It turns out that judges
rarely exercise this power.9 Furthermore, when an advocate or
attorney is appointed for a child, that person usually advocates
for the child’s “best interests,” rather than the child’s expressed
wishes.10
The question is: why are the courts so hesitant to grant
children the right to a voice in custody cases? By providing a
clear answer to this question, important conclusions can be
made regarding which rights to representation children should
be afforded. In order to answer this question, I will begin by
explaining the current state of child representation in divorce
proceedings in greater depth. Then, I will argue that children
ought to be provided representation in divorce cases . The
question then becomes, how should children be represented?
In section two, I will characterize the debate between those
who believe that children ought to be represented by best
interest attorneys and those who believe children ought to be
represented by traditional client-directed attorneys.11 I will
6 See Emily Buss, Constitutional Fidelity Through Children’s Rights, 355 Sup. Ct. Rev. 355 (2004) 7 Rebecca Hinton, Giving Children a Right to Be Heard: Suggested Reforms to Provide Louisiana Children a Voice in Child Custody Disputes, 65 La. L. Rev. 1539 (2005); Katherine Federle, Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce Proceedings, 15 Cardozo L. Rev. 1523, 1552 (1993) (Hereinafter Looking for Rights). 8 John Meyer, The Best Interest of the Child Requires Independent Representation of Children in Divorce Proceedings, 36 Brandeis J. Fam. L. 445 (1997). 9 Id. 10 Federle, Looking for Rights, supra note 8 at 1554. 11 A best interests attorney advocates for a child’s best interests, rather than the child’s expressed wishes. A client-directed attorney establishes a normal client-attorney relationship with the child in which the attorney advocates for the child’s wishes.
Sadowski 55
argue that these models are underpinned by two conflicting
values. The first is what I call our paternalistic impulse, which
drives our belief that we should help people make “good”
decisions, or prevent people from making decisions that might
harm themselves. The second is the value placed on autonomy,
or self-determination, which motivates the belief that people
should not infringe on another person’s “right” to make his or
her own decisions. Finally, I will consider different methods of
child representation that may satisfy both of the
aforementioned appeals. I do this with the beliefs that both
views have legitimate virtues and that, by maintaining their
most valuable considerations, an acceptable and satisfying
remedy for child voicelessness can be found.
PART I: REPRESENTATION FOR CHILDREN IN DIVORCE CASES
IA. Overview of Child Representation Practice
By and large, children do not receive representation in
divorce proceedings. According to a 200712 American Bar
Association survey13, thirty-nine states give complete
discretion to judges to appoint representation for children.14 In
other words, judges have total control over whether a child
will receive representation, regardless of the circumstances of
the divorce. In twelve states, the appointment of
representation for the child is required under certain
12 From reviewing the statutes cited in ABA’s study, it appears that the statutes were still current as of 2013. 13 ABA Child Custody and Pro Bono Project (2001-2008) http://www.americanbar.org/content/dam/aba/ migrated/legalservices/probono/childcustody/divorce_chart_with_role.authcheckdam.pdf (Hereinafter ABA Survery). 14 See e.g. Oh. Revised Code § 3109.04 (“The court, in its discretion, may and upon the motion of either parent, shall appoint a guardian ad litem for the child”); Cal. Codes § 3150 (“If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel…”); N.J. Stat. § 9:2-4 (“The court…upon its own motion…may appoint a guardian ad litem or an attorney or both to represent the minor child’s interests.”).
56 WULR Vol VII, Issue II Winter 2014 circumstances.15 In eight out of those twelve states,
representation is required when there is an allegation or
founding of abuse.16 The other four require representation in
other circumstances.17 Oregon, for example, requires that a
child receive representation if he/she requests it.18 Wisconsin is
the only state that requires that representation be provided in
cases where custody is disputed.19 In states where the
appointment of representation is discretionary, there are few
guidelines as to when judges should appoint counsel and what
their role should be.20 Moreover, judges tend to not use their
discretionary power to appoint representation for children.21
Finally, over ninety percent of cases are settled before going to
trial and the court rarely challenges custody decisions that
parents agree to before reaching litigation.22 This leads to an
even greater concern about lack of representation in cases
where custody is uncontested since children are generally not
directly represented in divorce proceedings.
Ib. Should Children Be Represented in Divorce Cases?
15 ABA Survey, supra note 14. The twelve states are as follows: Florida, Louisiana, Minnesota, Mississippi, Missouri, Oregon, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. 16 Id. (Florida, Louisiana, Minnesota, Mississippi, Missouri, Virginia, West Virginia, and Wyoming). 17 Id. 18 ORS § 107.425 (“The court…may appoint cousel for the children. However, if requested by one or more of the children, the court shall appoint counsel for the child or children.”). 19 Wis. Stat. § 767.407 (“The court shall appoint a guardian ad litem…[when]…the legal custody or physical placement of the child is contested.”). 20 American Bar Association Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases 1 (August 2003) (Hereinafter ABA Standards). 21 MEYER, supra note 9; Linda Elrod, Counsel for the Child in Custody Disputes: The Times is Now, 26 Fam. L. Qtrly. 53, 55 (1992); Linda Rio & Amy Bouchard, Representing Children in Custody Cases: Where We Are Now and Where We Should go, 23 Children’s Rights J. 2, 3 (2003). 22 Robert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law, 88 Yale L. J. 950 (1979).
Sadowski 57
One of the most consistently relied upon canons in
family law is the best interests standard,23 which holds that a
judge’s decision on matters relating to a child must be
governed by the child’s best interest.24 Historically, courts have
operated with the presumption that parents represent and
serve the best interests of their children.25 Under that
assumption, there is little reason for the courts to provide
independent representation for children. However, it is clear
that this presumption does not always hold true.26 Especially
in divorce, where money, homes, custody, pride, and more are
at stake, a child can be at risk to having their wishes and
interests put aside.27 Children, for example, are often used in
divorce as a bargaining chip; a means of extorting monetary
gains.28 Giving children a voice can discourage the practice of
using children as a bargaining chip.29 This could also aid in
preventing custody disputes from growing out of hand, as the
child’s best interests and personal wishes would be readily
available for everyone to hear. The court would have a better
idea of what would be best for the child and what the child
wants, so custody battles would not be solely between parents.
As such, child attorneys could reduce the time it takes to settle
23 Lynne Kohm, Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J. L. Fam. Stud. 337 (2008). 24 Id. 25 See Parham v. J.R., 442 U.S. 584, 602 (1979). Also, for the history of child representation in the U.S., see Robert Shepherd & Sharon England, I Know the Child is My Client, But Who am I?, 64 Fordham L. Rev. 1917, 1919-1925 (1996). 26 See e.g. Jenifer Troxel v. Tommie Granville 530 U.S. 57 (2004) (Justice Paul Stevens Dissenting) (“The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent's interest is paramount. But even a fit parent is capable of treating a child like a mere possession”); U.S. Children’s Bureau & Dept. of Health and Human Services, Child Maltreatment 2011, 1, 19 (2012) (reported incidents of child abuse and neglect reach nearly 700,000 children). 27 See MEYER, supra note 9 at 448; Alan Eidsness & Lisa Spencer, Confronting Ethical Issues in Practice: The Trial Lawyer’s Dilemma, 45 Fam. L. Qtrly. 21 (2011) (“The very subject matter of family law cases…are of such great importance to our clients, that clients often lose sight of their better judgment”). 28 MEYER, supra note 9 at 450. 29 For more information on how parents use their children as a bargaining tool see Federle, Looking for Rights, supra note 8 at 1560
58 WULR Vol VII, Issue II Winter 2014 the small number of high conflict divorce cases that consume
much of the family court’s time and resources.30
In addition, children should be viewed as the third party
in every divorce case. Their interests and well-being are as
jeopardized in divorce hearings as their parents’.31 Divorce
often means significant changes for a child32 – even outside the
fact that they will no longer live with both of their parents. For
a child, divorce can mean a new house, new school, new
financial situation and lifestyle, etc. It is important to ensure
that children are not being forgotten about in the divorce
process and that their needs are being taken into account
sufficiently. I contend that children deserve the right to an
attorney in divorce cases and all cases concerning their custody
and wellbeing.
Another benefit of giving children representation in
divorce proceedings, especially if it is done early in the process,
is that doing so can mitigate parental alienation syndrome
(PAS) and issues that result from allegations of PAS.33 Parental
alienation syndrome is when a parent behaves in a way that
alienates a child from the other parent. Alienated children
often express irrational fear of or opposition to the parent from
whom they are alienated. Parental alienation has caused courts
30 For a discussion concerning high-conflict divorce, see Tonya Inman et al., High-Conflict Divorce: Legal and Psychological Challenges, 45 Houston Lawyer 24 (2008); Janet Johnston, High-Conflict Divorce, 4 Future of Children 165 (1994) (explaining the effects of high-conflict divorce on children). 31 A lot of research suggests that children of divorce fare worse than children with married parents. For example, they tend to be placed in a worse economic situation than children with married parents. For more information concerning how divorce affects children, see Judith Wallerstein, The Overburdened Child: Some Long Term Consequences of Divorce, 19 Columbia J. L. & Soc. Probs. 165 (1985); Elizabeth Scott, Divorce, Children’s Welfare, and the Culture Wars, 9 Va. J. Social Policy & L. 95, 98-99 (2001) (“A large body of social science research demonstrates clearly that children whose parents divorce generally fare poorly compared to children who grow up in intact families.”); Andrew Collins et al., The Case for Nature and Nurture, 55 American Psychologist 218 (2000) (Parenting affects the temperament and behavior of children). 32 Id. Also, see e.g. Vijender Kumar, Impact of Divorce on Children: A Socio-Economic and Legal Study, 6 NALSAR L. Rev. 124 (2011); MEYER, supra note 9. 33 ELROD, infra note 44 at 900.
Sadowski 59
and legal professionals to become skeptical of allegations of
abuse.34 Additionally, threatening to allege PAS has become a
tactic that abusive parents may use in order to encourage their
ex-partners to remain silent about abuse, since a finding of
PAS can lead to a loss of custody. Giving a child an attorney
immediately will require a qualified representative to take
account of the child’s preferences before the conflict that
accompanies divorce has an effect – thereby mitigating the
occurrence and effects of PAS. Also, giving children
representation ensures that they will have the opportunity to
express any concerns about abusive behavior, allowing the
court to hear such issues. Some might contend that giving a
child an attorney will perpetuate the effects of PAS. However,
if a child is given an attorney early in the divorce process, there
is a slimmer chance that the child will have already become
alienated. In addition, many have questioned the hypothesis of
PAS35 and have argued that allegations of PAS are merely a tool
for abusive parents in custody battles. If PAS is a legitimate
issue, then child representation will help by accounting for
children’s views early in the process. However, if PAS is not a
legitimate issue, then child representation will help by giving
children the opportunity to alert the courts of abuse.
Finally, children involved in divorce want to be
heard.36 They sense that their voices and concerns are
disregarded and want to participate. Giving children
representation would foster confidence and lead to a lasting
respect for the judicial system. The following anecdote
illustrates these points: An elderly woman, recounting her
34 Joan Meier, Getting Real About Abuse and Alienation: A Critique of Drozd and Olesen’s Decision Tree, 7 J. of Child Custody 219 (2010). 35 For a critique of PAS, see Janet Johnston, Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child, 38 Fam. L. Qtly. 757 (2005). 36 See Karen Saywitz et al., Interviewing Children in Custody Cases: Implications of Research and Policy for Practice, 28 Behav. Sci. L. 542, 544-545 (2010); Joan Kelly, Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current Research and Practice, 10 Va. Soc. Pol. & L. 129, 150-152 (2002).
60 WULR Vol VII, Issue II Winter 2014 experience of her parents’ divorce, recalls that she was crying
while at the county court house. She was upset, because she
did not know what was going to happen to her following her
parents’ divorce. The judge put her on his lap and asked, “Do
you want to live with your mother or your father?” She told
him that she wanted to live with her mother. The judge
responded, “Then you will.”37 The old woman enjoyed
recounting this story and recalled her pride in being able to
state her opinion. The judge who listened, Harry S. Truman,
later became the President of the United States.38 Providing
children with an attorney will ensure that judges must listen
to children in divorce proceedings.
Although there is a longstanding legal tenet that
parents have the constitutional right to raise their children
with minimal government interference,39 the children’s
interests at stake in divorce deserve to be represented by an
attorney, instead of solely by parents. Divorce creates an
extremely tense and adversarial environment, in which a
child’s interests may be ignored. Moreover, the idea that
children should be given the right to an attorney in cases that
concern their interests is not unprecedented from a legal
standpoint. In dependency and delinquency cases, for example,
children are given the right to counsel.40 Providing a child with
an attorney ensures that their interests are accounted for, will
reduce custody conflicts in divorces, and can help mitigate
issues associated with PAS, It can also encourage abusive
behavior to be brought forth to the court, will inspire children
to appreciate the courts, and promote a feeling that they are a
legitimate party in a process that greatly impacts their lives. As
such, children should receive representation the moment that
37 Note that the woman was five years old at the time of her parents’ divorce. 38 I found this excellent story in Randy Kandel, Just Ask the Kid! Towards a Rule of Children’s Choice in Custody Determinations, 49 U. Miami. L. Rev. 299 (1994). 39 For more on parent’s rights, see Emily Buss, Parental Rights, 88 Va. L. Rev. (2002). 40 In re Gault, supra note 2 (children have the right to representation in delinquency cases); 42 U.S.C. § 5106a(b) (2013) (children have the right to a guardian ad litem in abuse and neglect cases).
Sadowski 61
divorce is filed, so that they can be represented even during
settlement.
PART 2: BEST INTEREST ATTORNEY V. CLIENT-DIRECTED
ATTORNEY
IIa. The Issues
Since children should be afforded the right to counsel
in divorce cases, the question becomes, “how should they be
represented?” There are two main models of child
representation: the best interest approach41 and the client-
directed approach. For simplicity, I’ll refer to representatives
who work under the best interest approach “best interest
attorneys” and those who work under the client-directed
approach “client-directed attorneys.” A best interest attorney’s
role is to advocate for a child’s best interest and is not bound
by the child’s wishes.42 Client-directed attorneys act as
traditional attorneys and advocate for the child’s wishes.43 The
most popular model of child representation is the best interest
approach.44 About thirty states require that the person
representing a child in a divorce case be a guardian ad litem, or
an advocate for a child’s best interests.45 Less than ten states,
however, require the appointment of a client-directed attorney
in divorce cases.46 In many cases, the role of a child
representative is unclear.47 In the next section, I will discuss
41 A guardian ad litem is a person who advocates for a child’s best interest and is not legally bound by the child’s expressed wishes. A guardian ad litem can be an attorney or a non-attorney. A best interest attorney is another term, which is used to describe attorneys who represent the child’s best interest. 42 See ABA Standards, supra note 21 at 2. 43 See Elrod, Right thing to Do, supra note 44 at 869. 44 Barbara Atwood, The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism, 42 Fam. L. Qtrly. 63, 73-75 (2008). 45 ABA Survey, supra note 14. 46 Id. 47 It is not always clear whether a child’s representative is supposed to act as a best interest attorney or a client-directed attorney. Not all states have clear
62 WULR Vol VII, Issue II Winter 2014 some of the arguments that have been given on behalf or
against each form of representation. My goal is to seek out
their underlying motivations.
IIb. The Debate
In what follows, I will present the arguments that
proponents of each view of child representation use to justify
their respective positions. Both views have important virtues
and weaknesses. By clarifying both arguments, I hope to
explain the underlying intuitions that support each model. In
order to decide how children should be represented, there are
several related factors to consider: how much weight should be
given to a child’s expressed preferences? Are children able to
direct an attorney? How can it be ensured that children are
placed in a good situation? Following a discussion of these
questions, I will present arguments on behalf of the both types
of representation, attempting to motivate each viewpoint, and
make the issues in the debate clearer.
Proponents of the best interest attorney are driven by
the idea that the decisions made in custody disputes and other
matters concerning children require an investigation into a
child’s life, a report of those investigations, and a suggestion of
what would be best for the child. Best interest model
proponents argue that their position is consistent with the
assumption that children have not reached the competence
and maturity that is needed for autonomous decision-
making.48 It also is a more reasonable model when it comes to
children who are not yet able to express their views and
desires (e.g. infants or mentally handicapped children).
Moreover, best interest attorney proponents argue that a
guidelines and the role of the representative is not always clearly determined when they are appointed. 48 Frances Gall Hill, Clinical Education and the “Best Interest” Representation of Children in Custody Disputes: Challenges and Opportunities in Lawyering and Pedagogy, 73 Ind. L. J. 605, 620-625 (1998).
Sadowski 63
child’s voice is not irrelevant, but that it would be
overburdening for a child to have to make decisions concerning
something like their custody.49 Children don’t want to be put
in that spot.50 And at least some child representatives ensure
that the child’s voice is listened to and taken into account,
even if it is not dispositive.51 Another advantage of the best
interest model is that the representative would not be
obligated to the same attorney-client confidentiality that is
required under traditional representation. As such, a lawyer
could report abuse, even against their child client’s wishes.52
This is an obvious asset to the best interest model in cases like
the one described. Additionally, the best interest attorney
aligns well with the best interest standard – the judge’s
method to deciding matters concerning children. Having an
attorney objectively and accurately present a child’s best
interests would greatly aid judges in satisfying the best
interests standard. As Katherine Federle points out, judges
cannot know with a large degree of certainty that their
decisions will be in the child’s best interest and express “great
discomfort” when making custody decisions.53 Having a
representative support a certain decision based on a thorough
investigation seems to mitigate that difficulty and make judge’s
decision easier. At the end of the day, proponents of the best
interest model want the best interest attorney to discern what
would be in a child’s best interest and advocate that to the
court, so that a good outcome for the child can be reached.
They are getting at something that seems to really matter in
the end: that a child is safe, happy, and in a good place.
Those who support the appointment of client-directed
attorneys for children seem to be motivated by the idea that
49 Robert Emery, Hearing Children’s Voices: Listening and Deciding is an Adult Responsibility, 45 Ariz. L. Rev. 621 (2003). 50 Id. 51 Id. Also, see Hill, supra note 52 at 623. 52 Hill, supra note 52. 53 Federle, Looking for Rights supra note 8 at 1539.
64 WULR Vol VII, Issue II Winter 2014
children are people with independent views and concerns54 and,
as such, have the right to be heard and represented.
Proponents of client-directed attorneys believe that those who
support the best interests model overstate the incompetence of
children.55 They argue that children, on the whole, are able to
formulate reasonable views and aims, and that they can direct
an attorney sufficiently.56 Moreover, they argue that giving a
child a traditional, client-directed attorney effectively gives the
child a meaningful voice in proceedings, whereas the best
interests model does not.57 Proponents point out that best
interests, in practice, are often ascertained without reference
to a child’s expressed preferences.58 It is also important to note
that giving a child a voice does not mean that he or she plays
the most decisive role in any case. Instead, their voice is taken
into account like any other party’s.59 Still, many proponents
view the appointment of a client-directed attorney as a way to
empower children and ensure that their needs and desires are
taken into account.60 Another benefit of a judge hearing
directly from a child is that the child can be considered an
expert on his/her family. The child has a unique perspective on
the relationships that he or she has with both parents, the
qualities of both parents, and so on. This information can help
a judge determine what arrangement would be in that child’s
best interest. In terms of negative arguments, proponents of
54 Elrod, Right Thing to Do, supra note 44 at 905. 55 Katherine Federle, Children’s Rights and the Need for Protection, 34 Fam. L. Qtrly. 421, 440 (2000) (Herineafter Children’s Rights). 56 Id. (“The concern that young children make bad decisions also seems misplaced. In my experience representing children, I cannot say that young children make bad decisions. Rather, they have expressed their hopes and desires clearly and, usually, quite sensibly.”). 57 Katherine Federle, Righting Wrongs: A Reply to the Uniform Law Commission’s Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act, 42 Fam. L. Qtrly. 103, 104 (2008). 58 Federle, Children’s Rights, supra note 59 at 427. Also, see SHEPHERD & ENGLAND, supra note 26 at 1925 (“Problems involving attorney performance have also been characterized to be…lack of contact with the child contact.”) 59 Id. at 440. 60 Katherine Federle, Looking Ahead: An Empowerment Perspective on the Rights of Children, 68 Temple L. Rev. 1585 (1995).
Sadowski 65
the client-directed attorney model also argue that “best
interests” are more of a myth than a guide.61 That is, it is
impossible to determine what is in a child’s best interest.
Instead, having an attorney advocate for a child’s best interest
opens the door for the lawyers to advocate for their subjective
values and views.62 For example, a homosexual mother or
father might be denied custody of his/her children under the
pretense of “best interests.”63 Overall, proponents of client-
directed attorneys believe that under the best interests model
of representation, children are not taken seriously, are done a
disservice by not being taken seriously, and are having their
rights violated by not being heard by the court.
PART III: PATERNALISM AND AUTONOMY
IIIa. Understanding Our Intuitions
Rather than arguing for one side or another, I hold that
both models of child representation have important virtues
and faults. In order to understand how to settle the issue, it is
important to understand the fundamental intuitions
underpinning each model of child representation and to also
understand that both of these intuitions are acceptable in
certain situations. I will argue that the best interest model and
the client-directed model are fundamentally motivated by
paternalistic impulses and a value or respect for autonomy,
respectively.
61 See Raven Lidman & Betsy Hollingsworth, The Guadian Ad Litem in Child Custody Cases: The Contours of our Judicial System Stretched Beyond Recognition, 6 Geo. Mason L. Rev. 255 (1998). 62 SOBIE, supra 44 at 806. 63 There is sizable debate regarding whether homosexual behavior of a parent ought to be considered when determining the best interests of a child. There is obvious room for guardian ad litems to insert their personal views through situations like this. For a discussion of how homosexual parenting has factored in on courts’ decision-making see Lynn Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833 (1997); Steve Susoeff, Assessing Children’s Best Interests When a Parent is Gay or Lesbian: Toward a Rational Custody Standard, 32 UCLA L. Rev. 852 (1985).
66 WULR Vol VII, Issue II Winter 2014
Paternalism can be defined as interference with a person’s
freedom in order to ensure the welfare or happiness of that
person.64 Although paternalism often has a negative
connotation,65 it is clear that some paternalistic behavior and
laws are generally accepted by society. For example, people
seem to accept seatbelt laws, anti-drug laws, or anti-suicide
laws. It is generally held that people should not be able to use
heroin or sell themselves into slavery.66
However, it is clear that some acts of paternalism are
considered less acceptable. The restriction of junk food,
alcohol, and gay marriage67 are more controversial examples of
paternalism. The key source of objection to paternalistic
behavior seems to be the value of autonomy, or freedom. It
seems that the belief that a person is capable of rational
decision-making also plays a key role in the debate. For
example, even the most adamant anti-paternalist might think
that society should not let a person engage in harmful behavior
while he or she is intoxicated. The idea seems to be it is
justifiable to engage in paternalistic behavior if someone is not
able to make rational decisions on his or her own. This factor is
important in the child representation debate.
The debate concerning child representation is a practical
application of the theoretical conflict between paternalism and
self-determination. Best interest model proponents are
motivated by the idea that that children are not mature or
competent enough to direct an attorney in a way that will be
64 Gerald Dworkin, Paternalism, 56 The Monist 65 (1972). 65 David Shapiro, Courts, Legislatures, and Paternalism, 74 Va. L. Rev. 519, 519 (1988). 66 FEINBERG, supra note 69. 67 Gay marriage seems to be a paternalistic restriction on a constitutional right we have, the right to marry. See M.L.B v. S.L.J., 519 U.S. 102 (1996) (“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance to our society’…sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”).
Sadowski 67
ensure their well-being.68 The Supreme Court showed this
concern in Belotti v. Baird by noting “the peculiar vulnerability
of children and their inability to make critical decisions in an
informed, mature manner.”69 This explains the widespread use
of best-interest attorneys over client-directed attorneys for
children.70 Proponents of the best interest model propose that
children should not make very important decisions on their
own because they are incapable of fully understanding what
will ensure their safety and well-being. Accordingly,
proponents of the best interest model believe that children
should be given an attorney to advocate for what their best
interests really are, even if they are incapable of understanding
those interests. The paternalistic impulse in this reasoning is
clear: children’s autonomy must be restricted in order to
protect them. Paternalism seems to be justified by the idea that
children are not autonomous agents capable of rational or
sensible deliberation.
On the other hand, those who support the appointment of
client-directed attorneys for children think that the
incompetence of children is overstated and that the best
interests model infringes on a child’s ability to make their own
choices and let those choices be heard by the court. Katherine
Federle, for instance, states, “The concern that young children
make bad decisions also seems misplaced. In my experience
representing children, I cannot say that young children make
bad decisions. Rather, they have expressed their hopes and
desires clearly and, usually, quite sensibly.”71 The resulting
intuition is that children do have the right to make their own
68 Thaddeus Pope, Balancing Public Health Against Individual Liberty: The Ethics of Smoking Regulations, 61 U. Pitt. L. Rev. 419, 464-466 (Discussion of paternalism with regard to children). 69 Belotti v. Baird, 443 U.S. 622, 634 (1979). 70 For a discussion concerning what courts have held with regard to children’s competence, see Richard Redding, Children’s Competence to Provide Informed Consent for Mental Health Treatment, 50 Wash. & Lee L. Rev. 695, 704-708 (1993). Redding points out that courts have long held that children are incompetent and not able to make sound decisions themselves. 71 Fedlere, Children’s Rights supra note 58.
68 WULR Vol VII, Issue II Winter 2014 choices and a right to be heard in divorce proceedings. Denying
them this right is an infringement on their liberties.
IIIb. Competence
In order to progress the debate on child representation,
it must be determined whether children are sufficiently
competent to make decisions. If children are not competent
enough to make decisions regarding the matters being handled
in divorce, then it seems that there is good reason to appoint a
best interest attorney. Thus violating their autonomy may be
justified. If children are capable of making reasonable decisions
regarding the matters involved in divorce, then it seems that
there is good reason to appoint a client-directed attorney. If
this is true, not doing so would infringe on their autonomy.
Practical experience tells us that at least some children
are not capable of establishing and formulating opinions about
certain matters. For example, a two-year-old cannot be
expected to meaningfully participate in divorce hearings or
direct an attorney.72 Some children in their teens, on the other
hand, are clearly able to form preferences and engage in
rational decision-making.73 Evidence shows that adolescents
become increasingly self-reliant and more able to make
decisions on their own.74 Justice William Douglas, in Wisconsin
v. Yoder, cited a number of studies from which he concluded,
“There is substantial agreement among child psychologists and
sociologists that the moral and intellectual maturity of the 14-
year-old approaches that of an adult.”75
72 Jessica Cherry, The Child as Apprentice: Enhancing the Child’s Ability to Participate in Custody Decisionmaking by Providing Scaffolded Instruction, 72 S. Cal. L. Rev. 811, 830 (1999). 73 Id. 74 Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 L. & Hum. Behav. 249, 254 (1996). 75 Wisconsin v. Yoder, 406 U.S. 205 (1972). Justice Douglas cited the following studies: J. Piaget, The Moral Judgment of the Child (1948); D. Elkind, Children and
Sadowski 69
However, these findings have been questioned76 and
there is evidence that some adolescents differ from adults.
They are unwilling to seek advice, 77 impulsive,78 influenced by
others easily,79 prone to engaging in dangerous or risky
behavior,80 and have other tendencies that can impede their
ability to make rational decisions. The Supreme Court in
Graham v. Florida also noted important differences between
adolescents and adults, citing research that suggests that brain
development occurs until a person’s mid-twenties.81 However,
some studies suggest that children as young as nine are
competent enough to make meaningful decisions regarding
their future.82 Given the substantial disagreement over the
competence of adolescents, it is no wonder that there is no
“definitive psychological, sociological, or legal statement about
children’s competence” altogether.83
Another important issue to consider is that there is
clearly great variation among the mental capacities of children
that are the same age.84 It seems to be a hopeless endeavor to
determine a specific age at which children become sound,
Adolescents (1970); Kohlberg, Moral Education in the Schools: A Developmental View; R. Muuss, Adolescent Behavior and Society (1971); W. Kay, Moral Development (1968); A. Gesell & F. Youth, The Years from Ten to Sixteen (1956). 76 Many studies that report that adolescents show similar competence as adults focus on informed medical consent studies. For a summary of studies that conclude that children are competent and also a critical response to those studies, see Elizabeth Scott, Judgment and Reasoning in Adolescent Decisionmaking, 37 Vill. L. Rev. 1607, 1627 (1992). 77 STEINBERG & CAUFFMAN, supra note 82. 78 Id. at 262. 79 See Elizabeth Scott et al., Adolescent Decision Making in Legal Contexts, 19 L. & Hum. Behav. 221, 230 (1995). 80 Id. Also, see Academic Academy of Child and Adolescent Psychology, The Teen Brain: Behavior, Problem Solving, and Decision Making (2011). 81 Graham v. Florida, 560 U.S., 21-26 (2010). 82 See Lois Weithorn & Susan Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53 Child Development 1589 (1982) (Discussing the competence of children to make decisions concerning their health care.). This research has been extended to other legal debates concerning the competence of children. 83 See Federle, Looking for Rights, supra note 8 at 1529 (Federle lists literature which display the substantial disagreement over the competence of children). 84 Karen Saywitz, The Credibility of Child Witnesses, 10 Fam. Advocate 38, 39 (1988).
70 WULR Vol VII, Issue II Winter 2014 autonomous agents since children develop at different rates.
There is no easy answer concerning whether children, at a
certain point, should be given a client-directed attorney rather
than a best interest attorney. As such, the debate regarding
child representation cannot be settled by empirical studies
that determine competence. Rather, it is necessary to create a
method of representation that can handle the inability to
determine a general age at which children become competent.
IV. POSSIBLE MODELS OF CHILD REPRESENTATION
It has already been established that there are
limitations to both the client directed and best interest models.
So, what are the other options? One way to both protect and
empower children in a reasonable manner would be to begin
with a determination of competence.85 From that point, if a
child is determined to be sufficiently competent, he or she
would be given a client-directed attorney. If the child is
determined to be incapable of meaningfully participating in
the proceedings, he or she would be given a best interest
attorney. However, determining competence is a difficult
task.86 Moreover, it is doubtful that people would be able to
agree on any test or measure of “sufficient competence.”
Another possibility is a hybrid model, which both
respects children’s rights and protects children’s interests. In a
hybrid model, the attorney would advocate for a child’s
expressed wishes if they are able to express their wishes, while
still presenting facts objectively to the court. Accomplishing
both of these tasks would necessitate investigating a child’s
circumstances and meeting with the child to determine the
child’s wishes.
85 See Gerald Koocher, Different Lenses: Psycho-Legal Perspectives on Children’s Rights, 16 Nova L. Rev. 711 (1992) for a discussion about methods that are can be used to assess child competency. 86 CHERRY, supra note 80 at 835.
Sadowski 71
In a practical situation, the hybrid attorney, could
advocate for split custody on behalf of the child, while still
noting the child’s mother has been his primary caregiver
throughout the child’s life and that his father has a higher
income. The attorney in this example advocates for a child’s
wishes while still noting facts relevant to the child’s best
interests. A situation where this might be pertinent would be a
case where a child wants to live with an abusive parent. An
attorney could advocate for the child’s wishes while still
presenting the fact, objectively, that the parent is abusive.
Since the standard of judicial decision-making with regard to
children is already the best interests standard, the judge will
ultimately do what he/she believes is in the child’s best
interests. However, if a child’s wishes are acknowledged, the
judge’s decision might be more equitable. Rather than
completely denying visitation to the abusive father, the court
may be able to establish a legitimate legal avenue for that child
to safely visit the parent. It is important to remember that the
child’s wishes do not force any arrangement to be made; the
advocacy of a child’s wishes ensures that the child is being
heard and that his/her rights are not being violated.
An objection to the hybrid model, is that attorneys
could be placed in situations that would be ethically suspect.87
Hybrid attorneys may be unable to follow the Rules of
Professional Conduct.88 For example, an adult client might not
want his or her attorney to mention a detail in court that is
damaging to his reputation or is humiliating. As a client-
directed attorney, the attorney would be obligated to grant the
client his wish. However, under the hybrid model, the attorney
would be required to share information with the court if that
87 The ABA rejected a hybrid model of representation because of the “confusion and ethical tensions inherent in the blended professional roles.” Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (2006). See Aditi Kotheka, Refocusing the Lens of Child Advocacy Reform on the Child, 86 Wash. U. L. Rev. 481, f.n. 52 (2008). 88 For a fleshing out of this worry see e.g. Barbara Fines, Pressures Toward Mediocrity in the Representation of Children, 37 Cap. U. L. Rev. 411, 444 (2008).
72 WULR Vol VII, Issue II Winter 2014 information is relevant to the client’s best interests. Attorneys
dealing with different types of clients ought to be held to
different ethical and professional standards. The
confidentiality requirement that a traditional attorney faces
should not apply to a child’s hybrid attorney, since the court
needs the attorney to present all the relevant evidence. There is
no ethical dilemma as long as the child is aware that the
attorney has this obligation.
Another concern is that the hybrid model is confusing
and could place attorneys in conflicting roles.89 This belief may
have been formed due to the indeterminate hybrid models that
some states currently use. Many states lack a clear suggestion
of what role a child attorney should play. This leads to courts
asking attorneys to play many roles at the same time, some of
which may be conflicting. These problems can be solved be
carefully laying out the responsibilities of the hybrid attorney.
Additional worries that may arise concern the cost of
hybrid representation and the ability of attorneys to play both
of the roles involved in the hybrid model. As far as cost goes,
some argue that having a better model of child representation
would actually lower the costs of proceedings have to do with
children.90 Regardless, the cost of adequate representation
should not deter us from doing what is right for children.
There are several other methods that might also
reasonably respect children’s rights while still accounting for
their interests. For example, children could be represented by a
client-directed attorney and an expert who would present
facts to the court concerning children’s best interests. Perhaps
a psychologist would be better suited to determine factors that
might be relevant in a decision of a child’s best interest. The
hybrid model that I have proposed is a model that respects
both our paternalistic impulses and our value for autonomy –
and has other valuable features. Ultimately, any model of child
89 Id. 90 HUSAIN, supra note 97 at 256-258.
Sadowski 73
representation must respect both these two basic intuitions in
order to create an adequate model of child representation.
CONCLUSION
In this article, I have considered a number of issues
associated with child representation in divorce proceedings. It
seems clear that attorneys should be appointed for children in
divorce proceedings in order to ensure that the court is
considering their needs and desires. When it comes to
providing a representative to children, I have argued that both
our paternalistic impulses and our respect for autonomy seem
to be reasonable intuitions that need to be accounted for in
order to create an acceptable model of child representation. A
hybrid model of representation in which the hybrid attorney
serves as a presenter of facts while also advocating for their
client’s wishes would account for both intuitions. Overall, I
hope to have called attention to the need to change our current
practices regarding child representation in divorce proceedings.
Arrested for Experiencing Homelessness:
The Criminalization of Homelessness in the United States and the Revolution of
the Rhode Island Homeless Bill of Rights
By Cristina M. Semi*
Public order laws that criminalize life-sustaining behaviors when performed in public systematically disadvantage unsheltered individuals experiencing homelessness because they are compelled by their situation to necessarily perform such conduct in public. Historically, vagrancy laws were used to legally eliminate the presence of individuals experiencing homelessness from the public streets. Since courts have largely overturned these unconstitutional laws, many cities have resorted to criminalizing basic, life-sustaining behaviors, such as sleeping, sitting, lying, and camping. Though these laws utilize neutral language that applies to all citizens, the punitive value of the laws is truly only endured by unsheltered individuals experiencing homelessness.
In early 2012, Rhode Island codified a solution to this epidemic. The Rhode Island Homeless Bill of Rights confers upon all individuals experiencing homelessness the right to move around in and freely use public spaces, but the statute’s inclusion of the phrase “…in the same manner as any other person…” does not confront the current discrimination against individuals experiencing homelessness in relevant criminal law. Essentially, the Rhode Island law does not acknowledge the fact that “any
Semi 75
other person” is not systematically disadvantaged by public order laws.
While the Homeless Bill of Rights is certainly a step in the right direction towards legally addressing the criminalization of homelessness, the law does not go far enough. All states should look to Rhode Island’s law as a legislative model, but should further develop this concept to explicitly challenge and eradicate the discrimination against individuals experiencing homelessness currently within many cities’ ordinance codes.
*Cristina M. Semi is a native of River Falls, Wisconsin. She is a member of the Class of 2014 at Hamline University in St. Paul, Minnesota, majoring in Legal Studies, with a triple minor in Communication Studies, Philosophy, and Russian Studies. She is also completing her Paralegal Certificate. She is the Student Leader of the Homelessness in the Heart of Our Country Washington, D.C. reflective service-learning spring break trip program. She has volunteered with the Project Homeless Connect program in Hennepin County, Minnesota, and is a student member of the National Coalition for the Homeless. Cristina has recently received the national Newman Civic Fellows Award for civic engagement from Campus Compact, as well as the Alison M. Durfey Memorial Scholarship for hunger and homelessness alleviation from Hamline University. Cristina hopes to become a public defender after graduating law school. In her spare time, she enjoys exercising, reading, and spending time with her friends and family.
Table of Contents
INTRODUCTION 76 I: HOMELESSNESS IN THE UNITED STATES 78 II: PROBLEM: CRIMINALIZATION 81 IIa. Discriminatory Laws 82 IIb. Constitutionality of Laws 83 III: SOLUTION: CRIMINALIZATION TERMINATION &
HOMELESSNESS ERADICATION 91 IIIa. Homeless Bill of Rights: 92 IIIb. Additional, Extra-Legislative Measures: 96 IV: OBJECTIONS: REASONS FOR PUBLIC ORDER LAWS 98
76 WULR Vol VII, Issue II Winter 2014
V: CONCLUSION 101
INTRODUCTION
Jill and her two children are currently experiencing
homelessness in Atlantic City, New Jersey.1 After sweeping the
floors of a local coffee shop in exchange for the ten dollars she
needed to purchase diapers for her youngest child, Jill applied
for ten jobs and continued her search for more affordable
childcare so she may work longer hours, all to no avail. Jill has
not slept for two days, and she and her children are exhausted.
They were unable to find an open bed in a shelter and cannot
afford a hotel room. They have no choice but to sleep on a
patch of grass underneath a large tree in a local park. Jill
knows that her behavior is illegal, but also knows that her
family needs sleep to face the search for housing the next day.2
Jill and her children fall asleep under the tree, and are woken a
few hours later by local law enforcement. Jill is cited for the
ordinance violation and fined one thousand dollars, equivalent
to one month of childcare. 3,4
Ordinances that criminalize life-sustaining activities
necessary for individuals experiencing homelessness, like Jill
and her family, disproportionately advantage such individuals
when they have no other accommodation but the public
streets.5 Traditional measures aimed at driving the homeless
1 Throughout this paper, the phrase “people experiencing homelessness” or “homeless community” will be used in opposition to the phrase “the homeless,” “homeless people” or “homeless person.” The “experiencing homelessness” wording semantically separates the experience of homelessness from a person’s identity, as homelessness is not an identity but a period of time in a person’s life. 2 Sleeping in streets, parks, or public places prohibited, Article VII: Prohibited/Illegal Conduct Generally, N.J. MUN. CODE § 204-29 (2012). 3 Violations and Penalties, Article VII: Prohibited/Illegal Conduct Generally, N.J. MUN. CODE §204-301.1 (2012). 4 National Association of Realtors, Atlantic City, NJ, New Jersey – Living Costs Index, REALTORMAG, http://living-costs.realtor.org/l/376/Atlantic-City-NJ (last visited May 8, 2013). 5 The focus of this paper will be on the plight of individuals experiencing homelessness on the public streets, without any other means of shelter (i.e. transient accommodation). Therefore, when individuals experiencing
Semi 77
community from public sight included prohibitions on the
state of being vagrant, but these were largely declared
unconstitutional in the 1970s and 1980s.6,7 More current
policies to address (prevent) the presence of individuals
experiencing homelessness in public take the form of
criminalizing activities necessary for them to perform. Such
measures include enacting public order laws that make it
unlawful to “sleep, sit, or store belongings in public spaces.”8
Making these specific activities unlawful only when performed
in public makes it unavoidable for individuals experiencing
homelessness to commit a crime every time they must perform
such activities. Such laws criminalize the status of
experiencing homelessness.9 Moreover, the criminalization of
homelessness violates several constitutional rights.10
Despite the substantial backdrop of increasing
municipal criminalization measures, in 2012, Rhode Island
became the first state in the United States to codify a
Homeless Bill of Rights that specifically addresses the rights of
individuals experiencing homelessness in public.11,12 The Rhode
Island Homeless Bill of Rights is a critical and significant step
towards protection from unlawful criminalization measures.
The Rhode Island law aims to prevent unnecessary
disadvantage on the basis of housing status for individuals
homelessness are referenced, the individuals referred to are the individuals who experience homelessness unsheltered on the public streets. 6 See John B. Mitchell, Crimes of Misery and Theories of Punishment, 15 NEW CRIM. L. REV. 465, 468-471 (2012). 7 Juliette Smith, Arresting the Homeless for Sleeping in Public: A Paradigm for Expanding the Robinson Doctrine, 29 COLUM. J.L. & SOC. PROBS. 293, 301 (1996). 8 Mitchell, supra note 6, at 467. 9 Smith, supra note 7, at 293-95. 10 Maria Foscarinis et al., Out of Sight—Out of Mind?: The Continuing Trend Toward the Criminalization of Homelessness, 6 GEO. J. ON POVERTY L. & POL’Y 145, 156-157 (1999).
11 See National Law Center on Homelessness & Poverty, CRIMINALIZING CRISIS: ADVOCACY MANUAL 46 (2011).
12 R.I. Gen. Laws § 34-37.1-3 (2012).
78 WULR Vol VII, Issue II Winter 2014
experiencing homelessness.13 The Homeless Bill of Rights
states that a person experiencing homelessness “[h]as the right
to use and move freely in public spaces . . . in the same manner
as any other person.”14 Despite the law’s revolutionary
challenge to the current anti-homeless paradigm, the inclusion
of the phrase “in the same manner as any other person” only
sustains the unequal treatment currently enforced and does
not appropriately acknowledge, or challenge, the
discrimination against those who must live on the public
streets. States should look to the Rhode Island Homeless Bill of
Rights and its accompanying laws as model legislation and
adopt similar measures to combat the unlawful and
discriminatory criminalization of life-sustaining activities.
This article will address the criminalization of
homelessness and will analyze the Rhode Island Homeless Bill
of Rights as a solution. Part II will explore the history of laws
that criminalize homelessness, and will survey the creation of
current laws that disadvantage individuals experiencing
homelessness. Part III will examine the criminalization of
homelessness in more detail and will explain how such public
order laws disproportionately disadvantage those experiencing
homelessness. Part III will also illustrate how courts have
addressed these issues. Finally, Part IV will evaluate the Rhode
Island Homeless Bill of Rights and its accompanying
legislation as a solution to the current criminalization
paradigm, and will inquire what else must be done for states to
appropriately challenge criminalization measures.
PART 1: HOMELESSNESS IN THE UNITED STATES
The experience of homelessness in the United States
first gained significant public attention in the 1970s and
13 Id. 14 Id.
Semi 79
1980s.15 In the late 1970s, “Americans began noticing more
people sleeping in public places, wandering the streets with
their possessions in shopping bags . . . . By January 1981 . . . a
small group of activists led by Robert Hayes and Mitch Snyder
had given these people a new name—‘the homeless’.”16
Unfortunate systematic socioeconomic circumstances caused
by reductions in federal housing assistance programs largely
made homelessness more widespread in the 1980s.17 Prior to
the 1980s, homelessness often followed national upheaval.18 For
example, during the Great Depression, homelessness was the
result of nation-wide economic distress.19 As the current
epidemic of homelessness seems resistant to national economic,
social, and cultural trends, homelessness today is a
phenomenon characterized by its “transience, instability, and
flux.”20,21 The “skid row” epidemic as it is perceived today by
the housed population as derived from the culmination of
increasing public exposure to the homeless experience,
combined with a growing sense of animosity towards those
experiencing homelessness.22,23
Today’s homelessness epidemic is also characterized
by and defined as a spectrum of experience; homelessness is no
longer homogenous.24 The legal definition of homelessness can
be found in the first federal legislation to specifically construe
homelessness as a national crisis, the Stewart B. McKinney
15 Maria Foscarinis, Homelessness in America: A Human Rights Crisis, 13 J. L. & Soc'y 515, 517 (2012). 16 CHRISTOPHER JENCKS, THE HOMELESS, v (1994). 17 Foscarinis, supra note 15, at 517. 18 HENNEPIN COUNTY & CITY OF MINNEAPOLIS COMMISSION TO END
HOMELESSNESS, HEADING HOME HENNEPIN: THE TEN-YEAR PLAN TO END
HOMELESSNESS IN MINNEAPOLIS AND HENNEPIN COUNTY 53 (2006). 19 Id. 20 Id. 21 MARTHA BURT ET AL., HELPING AMERICA’S HOMELESS 2 (2001). 22 BRUCE G. LINK ET AL., Public Attitudes and Beliefs about Homeless People, in HOMELESSNESS IN AMERICA 143, 143 (Jim Baumohl ed., 1996). 23 Harry Simon, Towns Without Pity, A Constitutional and Historical Analysis of Official Efforts to Drive Homeless Persons From American Cities, 66 TUL. L. REV. 631, 647 (1992). 24 Donald Saelinger, Note and Comment, Nowhere to Go: The Impacts of City Ordinances Criminalizing Homelessness, 13 GEO. J. ON POVERTY L. & POL’Y 545, 547 (2007).
80 WULR Vol VII, Issue II Winter 2014
Homeless Assistance Act of 1987.25 The Act utilizes a more
expansive definition of homelessness which includes: those
physically on the street, those living in facilities not intended
for human habitation, and those who have shelter but are at
risk of immediately losing whatever shelter they have.26 The
definition of homeless children and youth also includes those
“who are sharing the housing of other persons due to loss of
housing, economic hardship, or a similar reason.”27
Historically, loitering and vagrancy laws have been
used to exile individuals experiencing homelessness from the
public streets.28 Individuals experiencing homelessness could
violate vagrancy laws simply by appearing “vagrant” in public, or
as vagrancy laws generally expressed, by being unemployed
when one had the capacity to be employed.29 Courts have since
largely overturned vagrancy laws, finding that they punish the
status or condition of being vagrant.30
Measures to extirpate poverty-stricken individuals
from public sight date back to the fourteenth century,31 but
“criminalization” as it is used today refers to practices
developed in the 1970s and 1980s.32 The invalidation of
vagrancy laws during this time consequently proscribed
localities from explicitly prohibiting the unwelcome poor.33
Today, the “criminalization of homelessness” refers to enacting
legislation that prohibits specific life-sustaining activities such
as “sleeping, sitting, or storing personal belongings in places
25 This legislation is now known as the McKinney-Vento Homeless Assistance Act of 1987. Foscarinis, supra note 14, at 518. 26 42 U.S.C. § 11302 (2006). 27 42 U.S.C. § 11434a (2) (B) (i) (2006). 28 Smith, supra note 7, at 301. 29 Id. at 302. 30 Pottinger v. City of Miami, 810 F. Supp. 1551, 1562 (S.D. Fla. 1992) (discussing the subsequent judicial ramifications of Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962)). 31 Casey Garth Jarvis, Homelessness: Critical Solutions to a Dire Problem; Escaping Punitive Approaches by Using a Human Rights Foundation in the Construction and Enactment of Comprehensive Legislation, 35 W. ST. U. L. REV. 407, 413 (2008). 32 See Simon, supra note 24, at 645-47. 33 See id.
Semi 81
where people are forced to exist without shelter.”34 As the
definition of criminalization suggests, these city-level
ordinances include prohibitions on sleeping, camping, sitting,
lying, loafing, and obstruction of public
thoroughfares.35,36,37,38,39,40,41
PART 2: PROBLEM: CRIMINALIZATION
Criminalization measures raise several social and legal
concerns. First, public order laws disproportionately apply to
individuals experiencing homelessness.42,43 While they restrict
behavior that is merely optional for housed citizens to perform
in public, anti-homeless laws criminalize behavior that is
necessary for individuals experiencing homelessness to
perform in public.44 The criminalization of homelessness also
violates several constitutional rights.45 Criminalization
measures in the form of police sweeps violate the Fourth
Amendment’s protection against unlawful searches and
34 NAT’L LAW CTR. ON HOMELESSNESS AND POVERTY, COMBATING THE
CRIMINALIZATION OF HOMELESSNESS: A GUIDE TO UNDERSTAND AND PREVENT
LEGISLATION THAT CRIMINALIZES LIFE-SUSTAINING ACTIVITIES 3 (2002). 35 See e.g., ATLANTIC CITY, N.J., MUN. CODE § 204-29 (2012), http://www.ecode360.com/AT0848. 36 See e.g., PORTLAND, OR., MUN. CODE § 14A.50.020 (2012), http://www.portlandonline.com/auditor/index.cfm? c=28148. 37 See e.g., SEATTLE, WASH., MUN. CODE § 15.48.040 (A) (2012), http://library.municode.com/index.aspx?clientId= 13857. 38 See e.g., HOUS., TEX., MUN. CODE § 40-352 (2012), http://library.municode.com/index.aspx?clientId=10123. 39 See e.g., BOISE, IDAHO, MUN. CODE § 9-10-05 (2012), http://cityclerk.cityofboise.org/city-code/. 40 See e.g., LAS VEGAS, NEV., MUN. CODE § 10.47.020 (2012), http://library.municode.com/index.aspx?clientId= 14787. 41 NAT'L LAW CTR. ON HOMELESSNESS & POVERTY & NAT'L COAL. FOR THE
HOMELESS, HOMES NOT HANDCUFFS: THE CRIMINALIZATION OF HOMELESSNESS IN
U.S. CITIES 165 (2009). 42 These discriminatory laws, manifestations of the criminalization of homelessness, will often be referred to as “anti-homeless laws” or “public order laws.” 43 JUDITH LYNN FAILER, Homelessness in the Criminal Law, in FROM SOCIAL JUSTICE TO
CRIMINAL JUSTICE: POVERTY AND THE ADMINISTRATION OF CRIMINAL LAW 248, 253-55 (William C. Heffernan & John Kleinig eds., 2000). 44 Id. 45 Foscarinis, supra note 10, at 156-157.
82 WULR Vol VII, Issue II Winter 2014
seizures when law enforcement unreasonably interferes with
homeless individuals’ expectation of privacy.46 Furthermore,
vague and overbroad anti-homeless laws violate the
individuals’ due process rights under the Fifth and Fourteenth
Amendments when they encourage punishment of inherently
innocent and inoffensive conduct.47 Public order laws such as
prohibitions against sleeping, sitting, lying, and camping in
public spaces also violate the Fifth and Fourteenth
Amendments because they encourage selective, therefore
arbitrary and discriminatory, police enforcement.48 Public
order laws essentially grant police greater, often unnecessary
power, to determine what is lawful and what is not, thereby
violating individuals’ rights to due process of the law.49 Finally,
anti-homeless laws criminalize conduct inseparable from the
status of being homeless in violation of the Eighth
Amendment’s protection from cruel and unusual
punishment.50
IIa. Discriminatory Laws
Criminalization measures burden individuals
experiencing homelessness by denying them the full capacity
to live their lives on the basis of their status of experiencing
homelessness. Anti-homeless laws prohibit behavior
performed in public that would otherwise be lawful if
performed in the comfort of one’s own home.51 As individuals
46 Pottinger v. City of Miami, 810 F. Supp. 1551, 1570-73 (S.D. Fla. 1992). 47 Id. at 1575. 48 Maya Nordberg, Jails Not Homes: Quality of Life on the Streets of San Francisco, 13 HASTINGS WOMEN’S L.J. 261, 279-80 (2002). 49 See Pottinger, 810 F. Supp. at 1576. 50 Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2006). 51 See infra note 107 and accompanying text regarding the implications of consuming alcohol in one’s own home compared to individuals who lack private accommodation. Under a paradigm of criminalization, housed individuals may legally consume alcohol in their home. Unsheltered individuals experiencing homelessness, however, have no such accommodation and are forced to drink in public. Suddenly, the otherwise legal practice of consuming alcohol becomes unlawful simply because an individual is experiencing homelessness.
Semi 83
experiencing homelessness have no home in which to perform
such acts, they are forced to perform them in the street, where
the actions are suddenly unlawful. 52,53 Housed individuals can
choose whether to perform such acts as sleeping, sitting, and
lying in public, but individuals experiencing homelessness
have no such choice.54,55
In response to augmenting challenges to the unequal
application of anti-homeless laws, cities have amended
existing ordinances or have enacted new “litigation proof” laws
meant to apply to a broader population.56 Such measures
include only enforcing certain laws, specifically sleeping and
camping in public spaces, during certain hours of the day or in
certain places of the city.57 Cities and states have also
broadened the language of loitering and begging laws to
include prohibitions against many forms of solicitation,
focusing on the conduct versus status aspect of such laws’
applicability.58 Though the broader language of anti-homeless
laws has increased their apparent legality by refraining from
explicitly targeting specific social groups, the laws’ application
still disproportionately disadvantages individuals experiencing
homelessness.59,60
IIb. Constitutionality of Laws
52 Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 300-01 (1991). 53 Id. at 315. 54 Moreover, a housed individual’s choice to sleep, sit, or lie in a public space is not based on a need to survive, whereas individuals experiencing homelessness must necessarily perform these unlawful but life-sustaining behaviors in public in order to survive. 55 Failer, supra note 43, at 255. 56 Maria Foscarinis, Homelessness and Human Rights: Towards an Integrated Strategy, 19 ST. LOUIS U. PUB. L. REV. 327, 340 (2000). 57 Id. 58 Id. 59 Failer, supra note 43, at 253. 60 Though anti-homeless laws theoretically apply to and restrict the behavior of all citizens alike, the enforcement of anti-homeless laws truly disadvantages only the homeless community. Id. at 254-55.
84 WULR Vol VII, Issue II Winter 2014
In addition to being inherently discriminatory and
prejudicial, criminalization measures are also legally
problematic.61,62 Over the past few decades, suits have been
brought against municipalities, appealing to various legal
theories, including status and vagueness, and on various
constitutional grounds, including the Fourth Amendment, the
Fifth Amendment, the Eighth Amendment, and the Fourteenth
Amendment.63, 64, 65, 66, 67,68 Taken together, these conclusions
show that both the enactment and enforcement of anti-
homeless laws are suspect because they violate several
constitutional rights.69
Fourth Amendment
Though anti-homeless laws themselves do not
explicitly delegate search and seize practices, the enforcement
of such laws often results in unlawful searches and seizures.70
The seizure and subsequent destruction of individuals’
61 Jennifer E. Watson, Notes, When No Place is Home: Why the Homeless Deserve Suspect Classification, 88 IOWA L. REV. 501, 519-20 (2003). 62 See Tami Iwamoto, Adding Insult to Injury: Criminalization of Homelessness in Los Angeles, 29 WHITTIER L. REV. 515, 529-30 (2007). 63 Robinson v. California, 370 U.S. 660, 82 (1962). See Anderson v. City of Portland, No. 08-1447-AA, WL 2386056 (D. Or. July 31, 2009). See also Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd, 61 F.3d 442 (5th Cir. 1995). See also In re Eichorn, 81 Cal. Rptr. 2d 525 (Cal. Ct. App. 1998). 64 Kolender v. Lawson, 461 U.S. 352, 103 (1983). See also Grayned v. City of Rockford, 408 U.S. 104, 92 (1972). 65 Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger v. City of Miami, 810 F. Supp. 1551 (1992). 66 Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000). See Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger, 810 F. Supp. 1551. 67 Ingraham v. Wright, 430 U.S. 651, 97 (1977). See also Robinson, 370 U.S. 660. See also Joel, 232 F.3d 1353; Anderson, No. 08-1447-AA. See also Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd, 61 F.3d 442 (5th Cir. 1995). See also Pottinger, 810 F. Supp. 1551. See also Eichorn, 81 Cal. Rptr. 2d 525. 68 Robinson, 370 U.S. 660. See also Joel, 232 F.3d 1353. See also Anderson, No. 08-1447-AA. See also Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger, 810 F. Supp. 1551. 69 Foscarinis et al., supra note 10, at 156. 70 See Simon, supra note 24, at 634.
Semi 85
experiencing homelessness personal property is, unfortunately,
too common a practice under the criminalization of
homelessness.71 For example, in 2008, two individuals
experiencing homelessness stored their belongings on a public
street, taking precaution not to obstruct the public
thoroughfare.72 When the individuals went to retrieve their
belongings one day, they found a “notice of illegal camping,”
listing the address of the location wherein their property was
held.73 When they went to the address, several clothing items
and family photographs, among other personal possessions,
including ashes of a deceased parent, were missing.74 The only
belongings that remained were a few items of wet and moldy
clothing.75
Because individuals experiencing homelessness must
live in public, their property is at a significantly greater risk of
public exposure than individuals who are able to store their
belongings in the comfort of their home. Due to public
exposure, individuals experiencing homelessness often mark
their property with signs of possession, such as covering their
property with a blanket, or organizing it and leaning it against
a tree.76 Such measures distinguish their property from
property that is truly abandoned.77 However, because their
property is necessarily in public, it is more likely to be
mistaken for abandoned property, and is often confiscated
during police property sweeps that enforce anti-homeless
laws.78,79 Anti-homeless laws therefore make it more likely that
71 Shirley D. Howell, Please Don’t Feed the Homeless: Pottinger Revisited, 3 MOD. AM. 15, 16 (2007). 72 Anderson v. City of Portland, No. 08-1447-AA, WL 2386056, *2-*3 (D. Or. July 31, 2009). 73 Id. 74 Id. 75 Id. 76 See Pottinger v. City of Miami, 810 F. Supp. 1551, 1571 (S.D. Fla. 1992). 77 Id. 78 Id. 79 See Maria Foscarinis, Advocating for the Human Right to Housing: Notes From the United States, 30 N.Y.U. REV. L. & SOC. CHANGE 447, 469-70 (2006). During such sweeps,
86 WULR Vol VII, Issue II Winter 2014
homeless individuals’ property will be unlawfully taken during
an enforcement sweep.
Property seizures are lawful, provided that they do not
violate the Fourth Amendment by interfering with individuals’
possessory interests.80 Though their property is axiomatically
always in public, individuals experiencing homelessness
nonetheless have a reasonable and substantial privacy interest
in their property.81 The property of individuals experiencing
homelessness typically exhibits possessory characteristics by
its organization, containment, and arrangement.82 Such
characteristics distinguish the individuals’ property from
dispossessed and abandoned property, thereby establishing
the necessary possessory interest of individuals experiencing
homelessness.83 Cities that allow property sweeps in order to
maintain aesthetic standards do not have a substantially
greater interest in seizing the property of individuals
experiencing homelessness than the possessory interest
homeless individuals have in retaining their property.84
Measures to search and seize homeless individuals’ property in
order to maintain aesthetic standards therefore violate the
Fourth Amendment.85
Fifth & Fourteenth Amendments
The criminalization of homelessness also occurs when
anti-homeless laws punish inherently innocent and inoffensive
conduct.86 These laws violate homeless individuals’ due
process rights under the Fifth and Fourteenth Amendments.87
police often “destroy not only the inhabitants’ temporary shelters, but also much of their personal property.” Lisa M. Kline, Comment. 80 Pottinger, 810 F. Supp. at 1570-71. 81 Id. at 1571. 82 See id. at 1571. 83 Id. at 1571. 84 See id. at 1571-72. 85 Id. at 1573.
86 Id. at 1575. 87 Id.
Semi 87
Conduct such as sleeping, sitting, and lying is inherently
innocent and inoffensive, violating no others’ rights, when
performed in the comfort of one’s own home.88 Though
individuals experiencing homelessness must necessarily
perform such conduct in public, this fact does not make the
conduct any less innocent.89 Unconstitutionally vague and
overbroad anti-homeless laws that prohibit such inherently
innocent conduct thus violate the due process rights of
individuals experiencing homelessness.90
Vague and overbroad anti-homeless laws also violate
due process rights because they allow and encourage selective
and arbitrary police enforcement.91 In 1972, the Supreme Court
invalidated a city vagrancy ordinance because it prohibited
inherently innocent and inoffensive conduct, and thereby
“encourage[d] arbitrary and erratic arrests and convictions.”92
Under such a vague ordinance that only “increase[d] the
arsenal of the police,” …“those convicted [could] be punished
for no more than vindicating affronts to police
authority . . . .”93,94 Furthermore, vague anti-homeless laws that
prohibit broad and general conduct performed in public may
encourage police discretion in determining what constitutes
minor street disorder. 95 This may therefore promote selective
and discriminatory enforcement upon marginalized ‘others’.96
Eighth Amendment
88 See id. at 1577. 89 See id. 90 Municipalities overstep their constitutional power when they enact overbroad laws that punish essentially innocent and inoffensive conduct, such as sleeping, sitting, and lying in public. Id. at 1575-76; see also State v. Penley, 276 So.2d 180, 181 (Fla. Dist. Ct. App. 1973). 91 Nordberg, supra note 49, at 279-80. 92 Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843 (1972). 93 Id. at 165. 94 Id. at 166-67. 95 Nordberg, supra note 49, at 280. 96 Id.
88 WULR Vol VII, Issue II Winter 2014
Anti-homeless laws that criminalize the status of
experiencing homelessness violate the Eighth Amendment’s
protection from cruel and unusual punishment.97 By
prohibiting conduct that is inseparable from the status of
experiencing homelessness, such as sleeping, sitting, lying, and
camping in public, anti-homeless laws criminalize the status
from which such conduct is derived.98 Anti-homeless laws
therefore criminalize the status of experiencing homelessness
when there are no other adequate alternatives, violating the
Eighth Amendment’s Cruel and Unusual Punishment
Clause.99,100
The protection from criminalizing status has
manifested into what is now known as the “Robinson
Doctrine,” a principle that arose in Robinson v. California
(1962).101,102 In Robinson, the Supreme Court deemed
unconstitutional a state statute outlawing narcotic addiction.
The decision held that the statute criminalized the “status” of
addiction.103 The Robinson Court equated addiction with illness,
ruling that “a state law which imprisons a person thus afflicted
as a criminal, even though he has never . . . been guilty of any
irregular behavior . . . inflicts a cruel and unusual
punishment . . . . Even one day in prison would be a cruel and
unusual punishment for the ‘crime’ of having a common
cold.”104 Accordingly, the criminalization of homelessness
criminalizes the status of experiencing homelessness by
criminalizing conduct inextricably linked to this status. The
United States Supreme Court has not yet ruled on the
applicability of conduct when it is inextricably linked to status,
97 Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2006), vacated on other grounds, 505 F.3d 1006 (9th Cir. 2007). 98 Id. 99 Id. 100 Id. 101 Smith, supra note 7, at 294. 102 Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962)
103 Id. at 666-67. 104 Robinson, 370 U.S. at 667.
Semi 89
but several courts have discussed the issue in dicta, ruling that
conduct inextricably linked to status is at least significant for
Eighth Amendment analysis.105
In Powell v. Texas, a case similar to Robinson, the Court upheld
a statute prohibiting drunkenness in public. The Powell Court
reasoned that the law in question was constitutional because it
punished conduct separate from status.106 However, the Court
did not address the implications of the law if applied to
individuals without shelter, but Justice White addresses the
act of being drunk in public as it would apply to individuals
experiencing homelessness in his concurring opinion:
“The fact remains that some chronic alcoholics must drink and hence must drink somewhere. Although many chronics have homes, many others do not. For all practical purposes the public streets may be home for these unfortunates, not because their disease [alcoholism] compels them to be there, but because, drunk or sober, they have no place to go and no place else to be when they are drinking . . . . For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. As applied to them this statute is in effect a law that which bans a single act for which they may not be convicted under the Eighth Amendment—the act of getting drunk.”107
Justice White’s concurring opinion illustrates the
connection between conduct and status in the case of
homelessness: though laws may prohibit certain conduct, not
status, anti-homeless public order laws categorically apply to
individuals experiencing homelessness only because of their
105 See Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated on other grounds, 505 F.3d 1006 (9th Cir. 2007); Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992). See also, cf. Powell v. Texas, 392 U.S. 514 (1968) (White, J., concurring). 106 Powell v. Texas, 392 U.S. 514, 531-33, 88 S. Ct. 2145, 2154-55 (1968). 107 Powell, 392 U.S. at 551 (White, J., concurring).
90 WULR Vol VII, Issue II Winter 2014
status (the status of experiencing homelessness). In any other
case, the law in question is otherwise valid, but when applied
to individuals who must live on the street because they have
nowhere else they can be, the laws criminalize their inability to
perform the conduct anywhere else but in public. Some courts
have found that sleeping, sitting, lying, and camping are acts
distinct from the status of experiencing homelessness.108 Such
courts, however, have not addressed the factor that
distinguishes the plight of homelessness from the privilege of
secure housing: the fact that individuals experiencing
homelessness “have no realistic choice but to live in public
places.”109
Individuals who are unavoidably criminalized are
often afforded eighth amendment protection if they pass a
“three-part test,” established in Pottinger v. City of Miami
(1992).110 In Pottinger, U.S. District Court for the Southern
District of Florida ruled, inter alia, that the city of Miami’s
practice of arresting individuals experiencing homelessness for
sleeping, standing, and congregating violated the Eighth
Amendment.111 The “three-part test” determines whether
homelessness is appropriately deemed a status in any given
case. 112 First, courts must ask, are plaintiffs involuntarily
experiencing homelessness? Second, do plaintiffs have
available to them nonpublic places to carry out the punished
activities? Third, are the activities being punished
involuntary?113 If, according to the Pottinger court findings, the
composite answer is yes, then the law in question violates the
Eighth Amendment.114
108 Pottinger v. City of Miami, 810 F. Supp. 1551, 1563 (S.D. Fla. 1992). 109 Id. 110 Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992). 111 Pottinger, 810 F. Supp. 1551. 112 Maria Foscarinis, Downward Spiral: Homelessness and its Criminalization, 14 YALE L. &
POL’Y REV. 1, 43 (1996). 113 Id. 114 Id.
Semi 91
Typically, however, Eighth Amendment protection
only extends to individuals experiencing homelessness when
city resources such as attainable and affordable low-income
housing or reasonable alternative forms of shelter are deficient
or inadequate.115 This is because the lack of affordable or
attainable alternatives prevents individuals experiencing
homelessness from performing such prohibited acts in any
place except the public streets.116 In these instances when
cities lack adequate alternatives, individuals experiencing
homelessness have no choice but to perform the prohibited
actions in public and risk the probability of criminalization.117
The criminalization of homelessness is a pervasive
practice of criminalizing innocent, life-sustaining behaviors
necessary for unsheltered individuals experiencing
homelessness to perform. Anti-homeless laws discriminatorily
apply only to those experiencing homelessness despite the
claim that they have been enacted to regulate the collective
population. In addition, the implementation and enforcement
of anti-homeless laws violate the protections under the Fourth,
Fifth, Eighth, and Fourteenth Amendments when individuals
experiencing homelessness have no choice but to perform
prohibited conduct in public due to lack of adequate
alternatives.
PART 3: SOLUTION: CRIMINALIZATION TERMINATION &
HOMELESSNESS ERADICATION
States should not only enact legislation similar to the
Rhode Island Homeless Bill of Rights and its accompanying
legislation, but should go farther to acknowledge and combat
the discriminatory nature of criminalization measures through
legislation. States should also employ additional, extra-
legislative efforts that would develop community-based
115 Pottinger,, 810 F. Supp. at 1564. 116 Id. 117 Id. at 1564-65.
92 WULR Vol VII, Issue II Winter 2014
solutions to end homelessness. As a solution to the
criminalization of homelessness, the Rhode Island Homeless
Bill of Rights and its accompanying legislation appropriately
challenge and provide protection from unlawful searches and
seizures, due process deprivations, as well as issues revolving
around the criminalization of the status of experiencing
homelessness. However, the Rhode Island law does not
effectively address the discriminatory nature of criminalization
measures, nor does it explicitly address the potential for
selective and discriminatory police enforcement.
IIIa. Homeless Bill of Rights
States should enact Homeless Bills of Rights that
follow the inclusive and solution-orientated approach modeled
in Rhode Island’s Homeless Bill of Rights. Within the
Homeless Bills of Rights, states should also include legislation
similar to that of Rhode Island’s Homeless Bill of Rights.
Enacting Homeless Bills of Rights and accompanying
legislation will reduce the probability of violating the
constitutional rights of individuals experiencing homelessness,
and will also exhibit an attitude of non-tolerance to
municipalities towards selective and discriminatory
enforcement of anti-homeless municipal laws.
The Rhode Island Homeless Bill of Rights (2012) is a
significant advancement in the area of homelessness legislation,
and substantially challenges discriminatory criminalization
measures. Apart from the McKinney-Vento Homeless
Assistance Act of 1987, few other legislative acts have
addressed the issue of homelessness so explicitly and
comprehensively.118 Until the Rhode Island law, the purposes
of these acts had been to predominantly address housing issues,
and few to none had addressed the rights of the homeless
118 Foscarinis, supra note 54, at 331.
Semi 93
community in public.119 The Rhode Island Bill of Rights is the
first major legislative action on the state level to explicitly
address the comprehensive rights of the homeless community,
including rights in public as well as in obtaining housing and
employment.
The Rhode Island Homeless Bill of Rights is an
important advancement in the way a community responds to
homelessness because it acknowledges the vulnerability of
individuals experiencing homelessness who must live in public.
Specifically, the Rhode Island law declares, “no person should
suffer unnecessarily or be subject to unfair discrimination
based on his or her homeless status.”120 According to the
Homeless Bill of Rights,
“A person experiencing homelessness . . . has the right to
use and move freely in public spaces, including, but not limited to, public sidewalks, public parks, public transportation and public buildings, in the same manner as any other person, and without discrimination on the
basis of his or her housing status . . . ; has the right to equal treatment by all state and municipal agencies,
without discrimination on the basis of housing status . . . ; has the right to a reasonable expectation of
privacy in his or her personal property to the same extent as personal property in a permanent residence.”121
Rhode Island has enacted additional legislation
regarding rights in public places that simultaneously support
these rights affirmed to the homeless community. Generally,
“[a]ll persons . . . shall be entitled to the full and equal
accommodations, advantages, facilities, and privileges of any
place of public accommodation . . . .”122 Furthermore, “[n]o
119 Id. 120 R.I. Gen. Laws § 34-37.1-3 (2012). 121 Id. at 316 (1). 122 R.I. Gen. Laws § 11-24-1 (2012).
94 WULR Vol VII, Issue II Winter 2014
person . . . shall directly or indirectly refuse, withhold from, or
deny to any person . . . any of the accommodations, advantages,
facilities, or privileges of that public place.”123 Finally, the
phrase “places of public accommodation” as it is construed in
Rhode Island state law includes but is not limited to “rest
rooms, bath houses, . . . amusement and recreation parks, . . .
boardwalks, and public libraries; . . . public halls and public
elevators . . . ; and . . . public housing projects.”124 Taken
together, these laws indicate that individuals experiencing
homelessness are guaranteed various protections against
discrimination on the basis of their housing status. Specifically,
individuals experiencing homelessness have several explicit
rights to freely be in public spaces, use public facilities, and
enjoy public accommodations free from civilian interference.
Rhode Island’s accompanying legislation further confirms the
legitimacy of the presence of individuals experiencing
homelessness in public spaces. The legislation prohibits any
other person from denying an individual, experiencing
homelessness or not, the accommodations and benefits of any
public space.125 The legislation also affirms that individuals
experiencing homelessness are allowed to be in public spaces
that housed citizens might deny to homeless individuals, such
as recreational parks, libraries, and boardwalks.126 This
accompanying legislation serves as a supplementary guarantee
that individuals experiencing homelessness have the freedom
to be in public spaces that is equal to the freedom granted to
housed individuals.
The Rhode Island Homeless Bill of Rights and its
accompanying legislation effectively address and solve several
problems created by the criminalization of homelessness. First,
the legislation assures that individuals experiencing
homelessness have a possessory interest in their personal
123 R.I. Gen. Laws § 11-24-2 (2012). 124 R.I. Gen. Laws § 11-24-3 (2012). 125 § 11-24-2. 126 R.I. Gen. Laws § 11-24-1. See also R.I. Gen. Laws § 11-24-3.
Semi 95
property that is equal to the possessory interests of those who
are housed in a permanent home.127 This measure protects
individuals experiencing homelessness from unlawful searches
and seizures simply because their possessions necessarily must
always be in public.
The Rhode Island Homeless Bill of Rights and its
accompanying legislation also protects individuals
experiencing homelessness from vaguely worded laws that
collectively disadvantage individuals experiencing
homelessness. The Rhode Island law explicitly states that all
individuals experiencing homelessness are allowed to be in
public to the same extent that all others are allowed to be in
public.128 This language thereby protecting individuals
experiencing homelessness from vaguely worded public order
laws that that prohibit conduct inseparable from the status of
experiencing homelessness such as general presence in public
and innocently roaming public streets. Laws prohibiting
sleeping, sitting, lying, and camping are thereby either limited
or invalidated to allow individuals experiencing homelessness
to freely use public space without discrimination on the basis
of their housing status.
States should therefore enact Bill of Rights legislation
that models the inclusive humanitarian attitude written into
the Rhode Island Homeless Bill of Rights and its
accompanying legislation. By enacting state statutes that
explicitly allow homeless individuals to use public spaces like
housed members of society, states can reduce the potential to
violate the civil rights of the homeless community. Moreover,
prohibiting discrimination on the basis of housing status,
specifically regarding the use of public accommodations, states
can demonstrate a policy of non-tolerance towards prejudicial
enforcement of anti-homeless laws.
127 R.I. Gen. Laws § 34-37, 1-3 (7) (2012). 128 R.I. Gen. Laws § 34-37, 1-3 (1) (2012).
96 WULR Vol VII, Issue II Winter 2014
Enacting a Homeless Bill of Rights will challenge the
criminalization of homelessness by actively combating
discriminatory legislation to prevent civil rights violations.
More importantly, however, enacting Homeless Bills of Rights
will allow states and municipalities to more effectively address
homelessness in general. Under the current anti-homeless
paradigm, the resources used to enforce laws that perpetuate
the cycle of criminalization for committing crimes that only
sustain a homeless individual’s life, such as sleeping, sitting,
and lying in public, waste energy that could be used for more
meaningful purposes.129 Current anti-homeless laws thus
divert the attention of authorities away from homelessness
elimination, preventing them from developing long-term
solutions to end homelessness. Homeless Bills of Rights would
limit or invalidate anti-homeless laws, allowing states and
municipalities to focus on developing solutions to end
homelessness that address both the imminent and permanent
needs of the homeless community.130 Ultimately, policing areas
of the city to maintain public health and order does not
contribute to what should be the overarching goal of
eliminating homelessness.
IIIb. Additional, Extra-Legislative Measures
In addition to a Homeless Bill of Rights that includes
provisions similar to Rhode Island’s accompanying legislation,
states should also enact additional social policies, including
increasing social services and transitional and permanent aid
efforts, to supplement legislation. Supplemental efforts will
not only acknowledge and combat the discrimination borne by
individuals experiencing homelessness, but will also
contribute to the focal goal of eliminating homelessness.
129 Nordberg, supra note 49, at 298. 130 See NAT’L LAW CTR. ON HOMELESSNESS & POVERTY, supra note 11, at 46.
Semi 97
While Rhode Island has made significant progress
regarding the ability of individuals experiencing homelessness
to live their lives in public without facing criminalization, the
Homeless Bill of Rights does not go far enough as to properly
challenge the discriminatory disadvantage the current anti-
homeless laws place on individuals experiencing homelessness.
Though the Rhode Island law states that such individuals have
the right to “use and move freely in public spaces,” the
inclusion of this phrase does not acknowledge the fact that any
other person (i.e., a person with permanent and adequate
housing) is not systematically and disproportionately
disadvantaged by laws prohibiting sleeping, camping, sitting,
lying, loafing, and obstruction of public thoroughfares.131
States therefore should go farther to extend Rhode
Island’s law by acknowledging the disadvantage that the
enforcement of selected public order laws place on the
community of unsheltered individuals experiencing
homelessness.132 This would involve minimizing police
regulation and emphasizing social services and permanent aid
efforts while at the same time providing an environment in
which housed citizens feel comfortable and safe. 133,134 One such
solution explored by the Pottinger court involved keeping the
anti-sleeping laws, but allowing individuals experiencing
homelessness “to remain in a limited area instead of banishing
them from the park entirely.”135 This measure would have
maintained the city’s interest in preventing crime in public
parks while removing the disadvantage to individuals
experiencing homelessness of risking arrest for being in a
park.136 By employing such policies, cities can maintain their
interest in public health and order, whilst preserving the rights
131 R.I. Gen. Laws § 34-37,1-3 (2012). 132 Such as sleeping, camping, sitting, lying, loafing, and obstruction. 133 Nordberg, supra note 49, at 301; see also id. 134 See Andrew J. Liese, Note, We Can Do Better: Anti-Homeless Ordinances as Violations of State Substantive Due Process Law, 59 VAND. L. REV. 1413, 1449 (2006). 135 Pottinger v. City of Miami, supra note 76, at 1551, 1583. 136 Id.
98 WULR Vol VII, Issue II Winter 2014
of individuals experiencing homelessness who have no other
alternative.137
Some laudable jurisdictions have enacted these types
of socially-rooted efforts and have developed concrete plans to
end homelessness. The federal government created the
Interagency Council on Homelessness, which in 2010
published the National Plan to Prevent and End
Homelessness.138 The Plan prescribes an increase in leadership,
collaboration, and civic engagement. It also calls for increasing
to stable and affordable housing, increasing economic security,
improving health and stability, and “retooling” the homeless
crisis response system.139 States and municipalities should
implement plans on local levels similar to the comprehensive
federal plan to supplement Homeless Bills of Rights. One
notable example of such implementation is the city of
Minneapolis and Hennepin County, Minnesota. Hennepin
County’s ten-year plan includes an Outreach Collaborative
system that connects homeless individuals to social services in
order to eliminate involvement with the police and the
criminal justice system.140 Efforts such as those of the federal
government and Hennepin County remove the emphasis from
policing practices and place it on meeting the needs of
individuals experiencing homelessness. Moreover, such efforts
would beneficially supplement states’ enactment of Homeless
Bills of Rights to terminate criminalization and eradicate
homelessness.
PART 4: OBJECTIONS: REASONS FOR “PUBLIC ORDER” LAWS
137 See id. 138 National Law Center on Homelessness & Poverty, CRIMINALIZING CRISIS: ADVOCACY MANUAL 8 (2011). 139 UNITED STATES INTERAGENCY COUNCIL ON HOMELESSNESS, OPENING DOORS: FEDERAL STRATEGIC PLAN TO PREVENT AND END HOMELESSNESS 26 (2010). 140 HENNEPIN COUNTY & CITY OF MINNEAPOLIS COMMISSION TO END
HOMELESSNESS, HEADING HOME HENNEPIN: THE TEN-YEAR PLAN TO END
HOMELESSNESS IN MINNEAPOLIS AND HENNEPIN COUNTY 21-22 (2006), available at http://www.co.hennepin.mn.us/.
Semi 99
Those in favor of retaining anti-homeless laws appeal
to several justifications for the practice, including maintaining
a community’s quality of life, promoting a community’s
economic flourishing, and preserving a community’s public
health and safety.141 While these may be laudable and desirable
community aspirations, criminalizing homelessness does not
actualize these goals.142
Crimes that fall under the “quality-of-life” category
typically prohibit nuisance-type behaviors and are commonly
in the form of sleeping ordinances.143 Efforts to police these
activities aim to deter “street crime.”144 Criminalizing sleeping,
sitting, lying, and camping in public does not deter individuals
experiencing homelessness from committing the acts in the
future if those individuals have absolutely nowhere private to
sleep, sit, lie, or camp.145 Moreover, quality-of-life ordinances
do not eliminate such “criminal” behavior from the streets.146,147
After the individuals are cited, and often jailed for failure to
pay the fine, they have no choice but to return to the street
where they will continue to violate the law until they acquire
private, permanent shelter in which they can perform the
behaviors legally.148
Another reason to regulate behavior in public spaces is
to maintain and promote a community’s economic success,
measured by business revenue and tourism.149 Businesses argue
that homelessness disturbs residents and visitors alike, and
that businesses and the community suffer economic harm from
141 Iwamoto, supra note 59, at 522; see also HARRY SIMON, Municipal Regulation of the Homeless in Public Spaces, in HOMELESSNESS IN AMERICA 149, 150-51 (Jim Baumohl ed., 1996). 142 Iwamoto, supra note 59, at 522. 143 Id. 144 Nordberg, supra note 49, at 269. 145 Iwamoto, supra note 59, at 522-23. 146 Such inherently natural and innocent behavior is only made criminal by anti-homeless laws. 147 Iwamoto, supra note 59, at 523. 148 Id. 149 Id.at 524.
100 WULR Vol VII, Issue II Winter 2014
decreasing tourist consumerism.150 For this reason, businesses
are often a significant voice in a community’s desire to increase
police power—efforts that often culminate into widespread
police sweeps and selective enforcement of public order laws.
However, police sweeps that attempt to eliminate the sight of
homelessness from the public only shift it from one place to
another.151,152 Sweeps that result in the constant migration of
individuals experiencing homelessness neither solves nor
addresses the underlying causes of homelessness.153 Attention
to the underlying causes of homelessness would more
efficiently eliminate its existence from a given community.154
Communities also appeal to the preservation of public
health and welfare in order to justify criminalization
measures.155 For example, an Eau Claire, Wisconsin ordinance
prohibiting camping in public places states that “[camping in
public] create[s] unsafe and unsanitary living situations which
pose[s] a threat to the peace, health, or safety of those persons
and other citizens of the city.”156 However, criminalizing these
behaviors will not deter nor prevent individuals living on the
streets from performing them. Instead of criminalizing such
behaviors, cities should address the lack of public
accommodation in order to legally perform these actions and
develop permanent solutions to fulfill these needs.157
Less explicit, but still an argument in support of anti-homeless
legislation, is the concern for community aesthetics.158 As one
scholar notes,
150 Id. 151 Id. 152 Id. 153 Id. 154 Id. 155 Id. 156 EAU CLAIRE, WIS., MUN. CODE § 9.74.010 (2012), http://www.eauclairewi.gov/index.aspx?page=70. 157 Iwamoto, supra note 59, at 525. 158 Foscarinis et al., supra note 10, at 155; William M. Berg, Note, Roulette v. City of Seattle: A City Lives With its Homeless, 18 SEATTLE U. L. REV. 147, 152 (1994).
Semi 101
“The crimes of misery [quality of life laws] reflect the visceral reactions of the working, middle, and upper classes. The affluent and economically comfortable simply do not want to have to encounter [homeless] people . . . . After all, most people are uncomfortable seeing acts in public that middle-class conventions dictate should remain in the private sphere . . . .”159
While public order, health, safety, and economic flourishing
may be meritorious policy goals, they do not justify
systematically disadvantaging an entire class of people simply
because they are compelled by their housing status to live on
the streets.160 As the Pottinger court found, “although the idea of
homeless people sleeping in public parks may disturb or offend
some portion of society, the answer is not in arresting
individuals who have arguably only committed the offense of
being without shelter.”161
PART 5: CONCLUSION
The criminalization of homelessness is a pervasive
practice that systematically and unconstitutionally
disadvantages individuals experiencing homelessness.
Criminalization makes ill-use of limited public resources and
furthermore diverts states and municipalities from developing
plans to effectively eliminate homelessness. Instead of
targeting individuals experiencing homelessness, states should
follow the inclusive and humanitarian model provided by
Rhode Island’s Homeless Bill of Rights and its accompanying
legislation to combat unlawful and discriminatory
criminalization.
Rights are a revolutionary law that affirms the civil
rights of individuals experiencing homelessness. In order to
more appropriately challenge the discriminatory nature of
159 Mitchell, supra note 6, at 509-10. 160 See Foscarinis et al., supra note 10, at 151. 161 See Pottinger, supra note 65, at 1583.
102 WULR Vol VII, Issue II Winter 2014
current anti-homeless laws, however, states should explicitly
acknowledge the disadvantage individuals experiencing
homelessness currently face in their Homeless Bills of Rights.
States should also employ additional social efforts, such as
collaborative policies, ten-year plans, and community-based
resource support, to supplement Homeless Bills of Rights.
Such additions would engender the social, solution-focused
mentality needed for effective community action. A focus on
transitional and permanent solutions will contribute to a more
adequate and effective framework in which to challenge
criminalization. Collectively, with the enactment of Homeless
Bills of Rights and supplemental policies and efforts, states can
begin to end homelessness in U.S. cities. By enacting these
rights-oriented solutions that recognize the personhood and
autonomy of all individuals, communities can transform the
dominant narrative surrounding homelessness from one of
prejudice and intolerance to one of respect and understanding.