i

Contents
WHATS SPRAY PAINT GOT TO DO WITH IT?
P. Anthony Arias, Columbia University 1

AMERICAN ADVERSARIAL TRANSPLANTS IN THE ITALIAN CRIMINAL JUSTICE SYSTEM: AN ANALYSIS OF ITALIAN AND AMERICAN CRIMINAL PROCEDURE THROUGH THE AMANDA KNOX TRIAL
Claire Callahan, American University 23

IN SEARCH OF A PRACTICAL PHILOSOPHY OF PUNISHMENT

Samuel Datlof, Brandeis University 56

THE RIGHT TO SEXT: ANALYZING THE CONSTITUTIONALITY OF JUVENILE PRODUCTION AND TRANSMISSION OF SEXUALLY EXPLICIT MATERIALS
Melissa Duncan, Ohio State University 75

THE REGULATION OF FIREARMS AFTER HELLER

Alexander Fullman, University of Southern California 87

DETERRENCE AND CAPITAL PUNISHMENT: THE GREAT DEBATE

Alana Joyce, Loyola University Chicago 103

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 wulr@uw.edu. For exact pricing, please refer to the Washington Undergraduate Law Review web page. The Washington Undergraduate Law Review web page is located at http://students.washington.edu/wulr/.

iii

Masthead
Editor-in-Chief
Amanda C. Lui

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

Moe Aoki William Aspelin Lucas Barash-David Conor Bronsdon Max Burnham Christopher Garlock Jacob Garner Danny Gibson Hanna Giuntini Alyssa Harkins Nicole Hill

Editors

Stephanie Hsieh Katelyn Karcher Michael Magee Erika Murdoch Haley Peterson Michael Rebagliati Henry Seeley Hannah Weaver Austin Wolfe Leo (Yexuan) Zhang

Michael Fulwiler Morgan Fiander

Members

Volume V

Spring 2012

Issue III

ARTICLES

What's Spray Paint Got to Do With It?

An Analysis of Graffiti as Symbolic Speech
By P. Anthony Arias*
There have been a multitude of cases on the validity of graffiti as a protected source of expression in the United States. These various cases are suitable for analyzing the debate surrounding the legality of graffiti. This paper demonstrates the distinction between free speech and vandalism as it applies to graffiti as symbolic speech in the United States. In particular, it shows that artists have a first amendment right to produce graffiti under certain circumstances. This paper argues that graffiti should not be considered purely vandalism. This analysis is in no way intended to promote more relaxed laws against graffiti or create a potential legal framework for graffiti. Instead, it seeks to understand graffiti in the context of symbolic speech. The history of graffiti is rich, valuable, and deserves better understanding in a larger constitutional context. By analyzing the factors contributing to the success of the most important Supreme Court cases involving symbolic speech, this paper applies the Court's logic of protected symbolic speech to graffiti.

WULRVol V, Issue IIISpring 2012

*Paul Anthony Arias is a senior at Columbia University in the City of New York where he majored in Political Science with a concentration in Latin American and Caribbean Studies. In his free time he is a member of the Undergraduate Recruitment Committee, a head SAT instructor for the Double Discovery Center, an executive board member of the Columbia Child Rights Group, and an avid user of Netflix. After graduation, he has plans to work for a New York City law firm for two years, before eventually applying to law school.

Table of Contents INTRODUCTION I: THE ORIGINS, TYPES, AND MODERN DAY PERSPECTIVES OF GRAFFITI Ia. History of Graffiti Ib. Proponents and Opponents of Graffiti II: GRAFFITI'S PLACE IN THE LEGAL SYSTEM III: COURT CASES INVOLVING GRAFFITI IV: SUPREME COURT CASES AND GRAFFITI IVa. Supreme Court Cases IVb. Supreme Court Cases Applied to Graffiti INTRODUCTION

2 5 4 7 9 13 16 16 19

Driving down the seawall that lines the city of Montevideo, Uruguay, it is difficult not to be drawn to the abundance of colorful illustrations and simple "tags"1 that are scattered across the citys infrastructure. Indeed, from Montevideos outskirts to its downtown city, graffiti ranging from slogans of political parties to names of Uruguayan soccer teams can be found on statues, park benches, city dumpsters, and even the exteriors of houses throughout this South American city. Not all of it is political, nor is it all pretty by any means. Outside of the many political or sportsrelated expressions, the graffiti may beand often isnothing more than a poorly scribbled word or two. It can often be obscene or disrespectful, with curse words and verbal attacks on institutions such as the police or the government. However, no matter how
1

The act of scribbling ones name, nickname, or some other identifying symbol.

Arias

insolent, libelous, or downright unsightly the tags may look, they are legal by Uruguayan standards of free speech. This concept of free speech as written in the Uruguayan constitution does not differ much from that of the U.S. Constitution. The Uruguayan constitution, in line with United States of Americas First Amendment, explicitly provides for the freedom of speech.2

Photos of graffiti in the capital of Uruguay. All photos are the property of Paul Anthony Arias, 2011. Translations from the top: El Bolso runs it, and Encouragement, my friends, for the life can be more!

Yet, when examining an American equivalent such as New York, it is nearly impossible not to wonder why graffiti is still so criminalized in the U.S. when it can also serve as a powerful and effective tool for symbolic expression as it does in Montevideo. Even companies have used graffiti to advertise for their products. As recently as 2005, SONY used a series of graffiti drawings in a marketing campaign for its handheld PSP video game console.3 There have been a multitude of cases on the validity of graffiti as a protected source of expression in the United States. By examining
2

URUGUAYAN CONST. art. 29. "It is entirely free in all matters the communication of thoughts through words, written privately or published in the pres swithout previous censorship." 3 Graffiti ads spark debate in US, BBC (Dec. 29, 2005), http://news.bbc.co.uk/2/hi/americas/4567236.stm.

WULRVol V, Issue IIISpring 2012

specific court cases that have pertained to symbolic speech, as well as recent cases pertaining to graffiti, this paper analyzes the distinction between free speech and vandalism as it applies to graffiti as symbolic speech in the United States. In particular, it asks: do citizens have a constitutional right to produce graffiti under the First Amendment of the United States Constitution, and if so, under what circumstances? The study of graffiti is useful in the designation between where free expression ends and vandalism begins. Graffiti itself has garnered the attention of courts all across the United States in response to the significant amounts of money spent on reducing its presence in society. However, should municipal governments be successful in their fight to eradicate graffiti, it is quite possible that an important source of symbolic speech would be eliminated. This paper proceeds as follows: in part one, the origins and types of graffiti are examined, and arguments for and against graffiti are introduced. Part two contains a discussion of current laws regarding graffiti usage and its place in the legal system. In part three, prior court cases pertaining to graffiti are described. Part four provides an overview of several pertinent Supreme Court cases in order to identify which aspects contributed to the plaintiffs successful (or unsuccessful) protection under the First Amendment. These various examples will illustrate that graffiti should not be looked at purely as vandalism. When one acknowledges the specific differences between speech and vandalism, then there exists a definite reason for the protection of graffiti under the First Amendment. In particular, when graffiti is legally4 placed on a property, contains expressive political messages, and has sustained public support, it becomes clear that individuals have a constitutional right to create graffiti.

For graffiti to be legally placed, it must be done so with the permission of the owner.

Arias

PART I: THE ORIGINS, TYPES, AND MODERN DAY PERSPECTIVES OF GRAFFITI Ia. History of Graffiti Graffiti as a concept and practice has outlasted civilizations. The Mayans displayed street art dating back to 100 B.C.E.5 Evidence of graffiti was also found on the preserved walls in Pompeii.6 Graffiti as we know and observe it today in urban surroundings dates back to a more recent decade when artists such as Steven Ogburn began their endeavors on subway trains during the 1970s and 80s.7 The graffiti that Ogburn, also known as Blade, created was known as New York Style graffiti writing.8 This type of writing was defined originally as the act of stylizing ones name in a brand-like way.9 Due to this emphasis on the name, writing itself did not originally focus so much on forming a background or scene so much as a brand. In addition, throughout the same time period, much of this style of graffiti that took place was not removed. The fame of a writer, the person doing the graffiti, became based upon the circulation of their graffiti. As Blade describes, You could be in the middle of a fullcourt game, running up and down, but when you heard the train coming, everybody stopped to see what pieces go by.10 The more frequently the community saw the writings, the more popular that graffitist became. The tools available for graffiti have evolved throughout the decades; modern styles such as New York-style graffiti originated from teenagers with access to no more than permanent markers. In the 1970s, when aerosol technology became environmentally safer,
5

Marisa A. Gomez, Note, The Writing on Our Walls: Finding Solutions Through Distinguishing Graffiti Art From Graffiti Vandalism, 26 U. OF MICH. J.L. REF. 633, 636-37 (1993). 6 George C. Stowers, Graffiti Art: An Essay Concerning the Recognition of Some Forms of Graffiti as Art, U. OF MIAMI (1997), available at http://www.graffiti.org/faq/stowers.html. 7 Richard S. Chang, An Artists Career Writ Large, with Spray Cans on Subway Trains, N. Y. TIMES, Apr. 29, 2011 at 1. 8 STOWERS, supra note 7, at 1. 9 Id. 10 Id. at 3.

WULRVol V, Issue IIISpring 2012

the sale of spray-paint became more popular. The increased availability of spray-paint to teenagers led to a more advanced graffiti movement where writers could focus on the size and color of the artwork.11 No longer was it enough to have ones name scrawled over any available and visible surface because everyone was doing this.12 This technique of scribbling ones name or nickname, known as tagging, became embodied in the overall movement of New York City graffiti in more functional ways. These tags were not meant to be aesthetically pleasing by any means. Instead, they were utilized as markers of ones presence in an area and have been estimated to account for more than eighty-five percent of a citys graffiti.13 These tags could also be taken to form another style of graffiti often employed by gangs to signal territorial distribution or the neighborhood news. This gang graffiti, as scholar Lori L. Hanesworth categorizes it, could be used to mark territory, to insult other gangs, to warn away intruders, and to eulogize their dead.14 This form, like tags, is not considered a form of more advanced graffiti art because it does not attempt to produce any aesthetic effects on viewers and is often not created by experienced artists.15 A third type of graffiti is known as a piece. A piece is typically the size of a mural, multi-colored, and it involves original or familiar cartoon characters in addition to the writer or graffiti artists name.16 For these kinds of pieces the main goal is not simply to get ones name in an area, but rather to aim for a unique style and display of artistic talent. Graduate student George Stowers of the University of Miami states that The goal was and is to create
11

Id. at 2. Id. 13 Lori L. Hanesworth, Are They Graffiti Artists or Vandals? Should They Be Able or Caned?: A Look at the Latest Legislative Attempts to Eradicate Graffiti, 6 DEPAUL J. ART & ENT. LAW, 225, 226 (1996). 14 Id. 15 Stphanie Giry, An Odd Bird, Legal Affairs Magazine, Sept. 2002, available at http://www.legalaffairs.org/issues/September-October2002/story_giry_sepoct2002.msp. 16 STOWERS, supra note 7, at 2.
12

Arias

pieces that stand out because of creativity, color, vibrancy, crisp outlines and overall artistic appeal.17 Piece graffiti is employed by graffitists who seek to create an outlet for the expression of political or societal commentary, and who view graffiti as something that aims to beautify what would otherwise be a desolate and neglected sight. The essence of pieces, which aim to express and deliver messages, is different from tags because they require a high skill set and artistic experience. In fact, due to their general rarity, it is estimated that pieces only account for five percent of all graffiti.18 Those who became well known for their pieces became acknowledged as "kings and queens" of local graffiti crews.19 A critical component of all types of graffiti is its location. One graffitist writes of the visibility of the work and about the originality or history of the space.20 For instance, a piece that is done on a bridge overpass is more valuable than one done on the blacktop of an empty parking lot due to the higher volume of observers that an overpass would have relative to the parking lot. When graffiti is done within locations that carry a special connotation or history such as the Freedom Tunnels in New York City,21 it can also increase the value of the graffiti. Thus, as graffitists pursue high visibility or historic spaces, a large portion of the problems surrounding graffiti, regardless of how expressive or artistic it is, becomes its placement on public and private properties. As noted by Tomasz Rychlicki, a legal scholar on international intellectual property law, The basic problem in the case of illegal graffiti is the conflict between the rights of the owner of the object and the creator himself.22 In fact, Blade himself had to confront such
17

Id. HANESWORTH, supra note 14, at 227. 19 STOWERS, supra note 7, at 2. 20 Caleb Neelon, Critical Terms for Graffiti Study (2003), http://www.graffiti.org/ faq/critical_terms_sonik.html. 21 Located beneath Riverside Park, the Freedom Tunnel is an abandoned train tunnel whose walls are nearly covered in notable works of graffiti. 22 Tomasz Rychlicki, Legal Questions About Illegal Art, 3 J. OF INTELL. PROP. L. & PRAC. 399 (2008).
18

WULRVol V, Issue IIISpring 2012

a reality. He describes his transition from a graffiti artist to a gallery artist: once he began to sell his pieces to art collectors, he was told to not write on public property again. That was [the art collectors] way of saying, Grow up, Blade states.23 1b. Proponents and Opponents of Graffiti Walking through the subway station at Times Square in New York City, and indeed any public domain, it is easy to notice the abundance of private advertising that now occupies public spaces of society. For instance, the station at Times Square is filled with advertisements for television channels, liquor, Hollywood movies, and many other products. Such public areas prime locations for sending messages to society have been rented, which prevents other individuals from utilizing them. Such an observation is also pointed out by Sonia K. Katyal, a law professor at Fordham University, who states that public spaces have become converted into vehicles for corporate advertising.24 People are surrounded by a market place in which only those who can pay, such as large corporations, can participate while others, like graffiti artists, have limited access to certain areas that are prime locations for the expression of ideas. Graffitists seek the same coveted spaces as private companies, and it is along these walls and subway halls that they often face charges of vandalism when utilizing them for graffiti. Billboards are a prime example of a purchased area in the public domain used for sending messages. A group, known as the Billboard Liberation Front, seeks out billboards to alter and vandalize in an attempt to democratize such advertisements. Although this group does not use conventional modes of graffiti, they do seek to express messages in the public domain much like graffitists do.25
23

CHANG, supra note 8, at 1. Sonia K. Katyal, Semiotic Disobedience, 84 WASH U. L. REV. 3, 491 (2006). 25 Id. at 494.
24

Arias

Criticism of mainstream advertising is not limited to actions by the Billboard Liberation Front. One proponent of graffiti writes, It is, for instance, perfectly legal for Calvin Klein to install billboards of a rail-thin female model who is adolescent in either age or appearance. That such displays encourage anorexia, bulimia, and statutory rape is well-documented. Cigarette and alcohol companies can advertise their products. Their products can kill people and can destroy families.26 Other supporters of graffiti have noted the benefits of graffiti art as a vehicle for expression. Graffiti art, particularly in Los Angeles, has been documented as something to promote anti-drug sentiment in communities and to celebrate cultural heritage, among other purposes.27 One contemporary artist, David Choe, has utilized graffiti murals for purposes as diverse as decorating the interior of the Facebook headquarters28 to honoring those who have suffered abuse, such as a seventeen year old Chinese student who was brutally beaten by six individuals in Chicago.29 To certain graffitists, such as Blade, graffiti contributed to their ability to gain recognition as artists.30 Opponents of graffiti cite negative consequences that occur as a result of its usage. For instance, they suggest that the costs of graffiti are not limited to cleaning public and private property that has been tagged.31 Marisa Gomez of the University of Michigan Law School, writes that in the early 1990s millions of dollars were spent by both private and public companies in order to not only clean graffiti, but to expand security presence in the area and purchasing more cameras for increased surveillance.32 Many have also stated that graffiti causes an increase in gang activity and is a sign of urban
26 27

NEELON, supra note 21, at 2. GOMEZ, supra note 6, at 639. 28 See Katie Kindelan, Facebook IPO Turns Graffiti Artist David Choe into Multi-Millionaire, ABC NEWS (Feb. 2, 2012). 29 See Alex Maeland, David Choe Immortalizes Beat Up Chicago Teenager, HYPEBEAST (Jan. 18, 2012). 30 CHANG, supra note 8, at 3. 31 GOMEZ, supra note 3, at 653. 32 Id. at 654.

10

WULRVol V, Issue IIISpring 2012

decay.33 Opponents of graffiti also state that promoting such a form of art only increases its misuse and therefore it should be banned entirely, regardless of the writer's influence.34 Such an effect occurred in April 2011 when a museum in Los Angeles promoted an Art in the Streets exhibition, which sought to provide one of the largest museum surveys of graffiti art.35 The exhibition led to an influx of tagging and graffiti vandalism in the surrounding neighborhood.36 Thus, to some opponents, such as Jack Richter of the Los Angeles Police Department, the only way to manage the increased cost of not only clean-up but also preemptive anti-graffiti measures, is to stop street graffiti altogether. "As former Chief [William J.] Bratton was fond of saying, he quoted, "'if you want to be an artist, buy a canvas.'"37 PART II: GRAFFITI'S PLACE IN THE LEGAL SYSTEM Blade had been warned by his agent not to place pieces on public or private property. If he had continued to place pieces on public property, the question remains: would there be any circumstance under which his actions would be constitutionally protected? The Supreme Court case of Texas v. Johnson ruled that an individual who had broken the law by burning a flag was protected under relevant precedent.38 The issue of graffiti is parallel to this case. Works of graffiti on public and private property are illegal under state laws. However, such pieces can be considered symbolic in terms of expression just as the burning of the flag was in Johnson, despite breaking pertinent laws. A counterargument can be made that the Johnson case is an illogical comparison. In Johnson, the
33

Id. Id. at 651. 35 Randy Kennedy, Street Art Show in Los Angeles Attracts Graffiti Nearby, N. Y. TIMES, April 15, 2011. 36 Id. 37 Martha Neil, Graffiti Exhibit in LA is Magnet for Taggers and Cops; At Least One Artist Detained, A.B.A JOURNAL (Apr. 20, 2011). 38 Texas v. Johnson, 491 U.S. 397, 402-420 (1989).
34

Arias

11

plaintiff had used his own flag in order to undertake his intended action. In graffiti cases, many of the situations are not only illegal, but on someone elses property. In order to better understand the implication of graffiti on private and public property, it is necessary to be familiar with graffiti and its place in the legal context. There are a variety of tactics used by law officials in response to graffiti vandalism. One method is punitive action, such as criminal prosecution and penalties, including jail time for the individuals caught trespassing or intentionally destroying property.39 In fact, California nearly passed a paddling bill in the early 1990s, which would have mandated that individuals caught writing were to be subject to ten strikes by a thick, wooden paddle.40 It never came into effect due to a separate legislative counsel finding the action of paddling as cruel and unusual punishment.41 Yet, as noted by Gomez, criminal prosecution is difficult as the judicial system may often be crowded with more serious crimes, overcrowded jails, and a belief in the moral goodness of the young violators.42 Therefore, graffitists are not commonly incarcerated. An alternative penalty for combating graffiti is community service in the form of graffiti clean-up.43 Community service is beneficial to the state because it lessens the financial burden of antigraffiti enforcement because a perpetrator handles the responsibility of cleaning.44 It is also more useful as a legal resource as judges are more likely to impose this type of sentence on violators. Municipal governments may also resort to a third measure: passing laws that would prohibit the sale of spray paint to minors, or determining where felt tip markers can be located within a store, such as

39

GOMEZ, supra note 6, at 658. HANESWORTH, supra note 14, at 232. 41 Conroy Wants Paddle Opinion Reconsidered, 1994 LOS ANGELES TIMES [SACRAMENTO], June 28, 1994. 42 GOMEZ, supra note 6, 659. 43 Id. at 666. 44 Id. at 667.
40

12

WULRVol V, Issue IIISpring 2012

whether these items are behind locked glass or in open view.45 Governments have not exclusively taken these measures, but they are the most common.46 Regardless of the methods used in an anti-graffiti campaign, the question of whether graffiti has any source of protection under the current legal system can be addressed. Michelle Bougdanos, an associate at the United States Security and Exchange Commission in Florida, attempts to address this question by creating a hypothetical case involving a complex scenario.47 In this scenario, a highly talented graffiti artist, John Sol, has taken it upon himself to create a piece on an abandoned building. After seeking out the records for the owner of the building to receive permission for the mural, Sol cannot find any records for the owner of the site. Despite this setback, Sol continues with the graffiti mural, which depicts an image emphasizing the importance of education and an anti-drug statement. The mural, after being completed, is highly praised by the community. However, after several years have passed, the building becomes part of the governments reurbanization project and thus the government intends to destroy the building as well as the mural. After Sol raises a complaint, the local officials refuse to preserve the art, and threaten him with charges of vandalism for illegally placing graffiti on the building. Sol sues the government under the Visual Artists Rights Act (VARA) to protect his work. To receive the protection of VARA, Sol must demonstrate that his mural is both a work of visual art, and that it has recognized stature.48 According to US copyright law, visual art as defined by United States Code in Title 17 Chapter 1 101 is a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer numbered by the author and bear the

45

Id. at 675. Id. at 668. 47 Michelle Boudagnos, Note, The Visual Rights Act and Its Application to Graffiti Murals: Whose Wall Is It Anyway, 18 N.Y.L. SCH. J. HUM. RTS. 549-550 (2002). 48 Subject Matter and Scope of Copyright 101-106, 17 U.S.C. (1991).
46

Arias

13

signature or other identifying mark of the author.49 To fill the second requirement of recognized stature, a piece must be considered worthy of merit and recognized by surrounding community individuals as a qualitative contribution to society. The other significant factor in regards to whether Sols graffiti warrants protection is its location. Due to the oftencontroversial locations that graffitists choose for their art, the divide between vandalism and artistic expression becomes difficult to distinguish. However, VARA technically classifies a graffiti mural as visual art and can override the constitutional rights of a property owner to a certain extent. As explained by Bougdanos, VARA requires that "the owner of a building which contains visual art must respect the moral rights of the artists; the VARA infringes upon the constitutionally granted property rights of the owner.50 These moral rights, which make damage to the artwork the equivalent of damage to the individuals reputation, prevent a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.51 Yet, this protection only applies for works that were commissioned and not illegally placed without the knowledge or consent of the owner of the property. Such a requirement is explicitly highlighted under New York administrative law as written: "No person shall write, paint or draw any inscription, figure or mark or affix, attach or place by whatever means a sticker or decal of any type on any public or private building unless the express permission of the owner or operator of the property has been obtained."52 Indeed, the definition of visual art in the US Code may be construed to extend to graffiti art, such as that of Sols, especially when such an emphasis is put on the requirement that the work be signed and claimed by the author of the piece. The second

Id. BOUGDANOS, supra note 48, at 557. 51 Id. at 556. 52 N.Y. ADC. LAW 10-117: NY Code - Section 10-117 [hereinafter N.Y. ADC LAW].
50

49

14

WULRVol V, Issue IIISpring 2012

requirement of recognized stature is not a difficult test for Sol to pass either, since his work was highly appreciated in the community. However, Sols actual trouble in guaranteeing protection for his graffiti mural begins with the location of the piece. In his case, since his work was placed illegally on the building, it is highly unlikely that the courts would rule in his favor.53 In fact, he is fortunate that the local law enforcement officials have not gone through with their charges of vandalism. Although Sols scenario is hypothetical, there are a variety of cases that can be analyzed in order to verify whether his case translates from theory to practice. PART III: COURT CASES INVOLVING GRAFFITI Recently, the case of Vincenty v. Bloomberg considered graffiti's place in society in the context of freedom of speech.54 In this case, a group of high school and college students sued New York City for its Administrative Code 10-117(c) and (c-1).55 Under this legislative action, the sale of aerosol spray paint containers and broad-tipped indelible markers would be banned to anyone between the ages of eighteen and twenty-one.56 Under the provision, violators would have been given: A misdemeanor punishable by a fine of up to $500 and/or imprisonment for up to three months; a second or successive violation of the provision is a Class A misdemeanor punishable by a fine of up to $1,000 and/or imprisonment for up to one year.57 The defendant, New York City, admitted to enacting such legislation in an effort to continue its anti-graffiti campaign and to combat the widespread problem of the unauthorized placement
53

Id. Vincenty v. Bloomberg, 476 F.3d 74, 89 (2d Cir. 2007). 55 N.Y. ADC. LAW, supra note 53. 56 Vincenty, 476 F.3d at 89. 57 Id. at 15.
54

Arias

15

of graffiti on the property of another.58 The plaintiffs argued that such a provision was unconstitutional because it both restricted their first amendment rights to free expression, and also violated the right to equal protection of the individuals because it targeted a specific age group in its provision. During the testimony, the defendants argued that the legislation was narrowly tailored" in that it aimed at only certain part of the population, and content neutral because it did not proscribe any freedom of expression, but only the unlawful graffiti itself.59 They then expressed that graffiti was a substantial problem, supported by the fact that six thousand individuals were arrested for graffiti vandalism between 2003 and 2006.60 Furthermore, they stated that between 2002 and 2005 the city had cleaned graffiti from 67 million square feet of property.61 By enacting this legislation, the city only aimed to reduce the amount of crime in the city and therefore it was in the government's interest to enact such a provision. One of the plaintiffs, Lindsey Vincenty, then a college student studying the visual arts, remarked that not being able to use such instruments limited his ability to express herself in her classes. She emphasized the distinct qualities of spray paint as a tool and contended, Spray paint covers differently than other paints applied with a brush, such as mists, fades and blends. It dries faster, so I can layer more quickly.62 The plaintiffs also argued that even illegalizing the possession of certain artistic tools would cause art students or individuals interested in art to be at risk of violating the law since they would have to be in possession of the items to and from school and home.63
58

Id. at 1. Id. at 31. Defendants argued that 10-117(c) and (c-1) are content neutral, do not proscribe any First Amendment activity, and are narrowly tailored responses to the problem of unlawful graffiti and to the experience that 15-20% of the persons violating the anti-graffiti provisions were 18-20 years of age." 60 Id. at 30. 61 Id. at 29. 62 Id. at 19. 63 Id. at 7.
59

16

WULRVol V, Issue IIISpring 2012

Ultimately, the judge sided with the plaintiffs, ruling that the law did indeed violate the first amendment rights of Vincenty et al.64 Shortly after, New York City appealed, contending that the court had not developed a valid explanation in regard to how the plaintiffs had established a likelihood of success on the merits of their first amendment and equal protection claims. The successive judgment in the appeals case sought to further scrutinize the narrow tailoring dynamic of the court case. The Court of Appeals wrote, Narrow tailoring in this context requires, in other words, that the means chosen do not burden substantially more speech than is necessary to further the government's legitimate interests. 65 On these grounds, the original ruling was affirmed in the Court of Appeals, because the court maintained that the regulation would restrict the first amendment freedoms of too many individuals in the effort to stop an isolated group of perpetrators. Additionally, English v B.F.C. & R. East 11th Street LLC is a case that directly involves a graffiti piece placed on the walls of a privately owned building.66 The English case involved five separate graffiti murals done by six different artists surrounding an emptied community garden. After the graffiti was created, the garden lot soon became commissioned as the new spot for the construction of a building for the city. The artists petitioned under the Visual Artists Rights Act of 1990 and declared that construction in the area would be illegal because it would result in the obstruction of a work that the artist had the moral rights to.67 Moral rights are defined under the requirement that the art is personal to the authors, and as such, viable, separate, and apart from the proprietary aspects. 68 Under that definition, even if the author was not entitled to the economic rights of the art, any damage to it would be prejudicial to the artists
64 65

Id. at 35. Id. at 19. 66 English v. CFC & R East 11th Street LLC, No. 97 Civ. 7446, 1997 WL 746444 (S.D.N.Y. 1997), affd, 198 F.3d 233 (2d Cir. 1999). 67 See 17 U.S.C. 101, 106A (1991). 68 BOUGDANOS, supra note 48, at 555.

Arias

17

reputation. Ultimately, despite the protection of the graffiti murals under VARA, the Court still found that VARA was inapplicable because the murals had been illegally placed without the knowledge or consent of the owners of the buildings. This case highlights the importance of property ownership and obtaining the respective owners permission before pursuing an act of graffiti, regardless of how expressive or symbolic it may be under the First Amendment.69 Another case that directly involves the placement of a graffiti mural is that of Hanrahan v. Ramirez.70 In this case, a liquor store owner was sued for painting over a mural done by Hanrahan and several children in the neighborhood. The owner painted over the display in order to create an advertisement for the store.71 Hanrahan sued under the auspices of VARA, stating that the artwork, which had received an award and considerable community support, was of recognized stature, a necessary requirement for VARAs protection. He argued that the mural therefore could not be damaged without the artists consent. The judge ruled in favor of Hanrahan and the mural was soon restored. Permission of the owner is crucial when seeking protection under VARA as confirmed English v. B.F.C. & R. East 11th Street LLC. However, Hanrahan v. Ramirez illustrates the potential for community support and approval to override such a requirement through garnering recognized stature. PART IV: SUPREME COURT CASES AND GRAFFITI IVa. Supreme Court Cases Although the hypothetical case of Sol and the actual case of English did not successfully receive protection through VARA, it could still be considered whether the outcomes would have been different if the individuals had sought protection through the First Amendment. Under the First Amendment of the United States,
69 70

Id. at 563. Hanrahan v. Ramirez, No. 97-CV-7470 (C.D. Cal. June 3 1998). 71 Id. at 564.

18

WULRVol V, Issue IIISpring 2012

Congress cannot pass any law that restricts or abridges freedom of speech,72 but that does not mean that any individual's speech or actions are completely unrestricted. This principle has been aptly demonstrated in the Supreme Court case of United States v. O'Brien.73 OBrien, after burning his draft card in an attempt to speak out against the Vietnam War, was still found to have committed a criminal act despite the Court's acknowledgment that he engaged in symbolic speech by burning the draft card. Similarly, graffiti, which is a form of expression in which writers choose to express themselves through actions rather than words falls under the same classification of symbolic speech as burning the draft card in United States v. OBrien.74 The majority opinion in the O'Brien case, wary of putting limitations on symbolic speech, stated that such speech could be regulated under the conditions that: the regulations were promoting a vital government interest, the regulation was not done to directly limit free speech, and most importantly, that the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.75 In Spence v. Washington, the appellant was a college student who had been arrested for improper use of the United States flag after hanging it upside down from the window of his home with a peace symbol taped to it.76 Spence fought the states conviction, contending that he was protesting the invasion of Cambodia and the killings at Kent State University, which had occurred only a few days before.77 The Supreme Court applied and modified the precedent from the OBrien case. They did so by developing certain criteria to determine more specifically which instances of symbolic speech were to be afforded protection under the First Amendment, a
72 73

U.S. CONST. amend. I. United States v. OBrien, 391 U.S. 367 (1968). 74 HANESWORTH, supra note 14, at 229. 75 OBrien, 391 U.S. 367. 76 Spence v. Washington, 418 U.S. 405 (1974). 77 Id. at 9.

Arias

19

set of guidelines ultimately becoming known as the "Spence test."78 As Hanesworth explains in regards to the standards of such a test, the conduct must have (1) the intent to convey a particularized message and (2) the likelihood must be great that this message would be understood by those who viewed it.79 In addition to clarifying what motivations or intent might constitute graffiti as symbolic speech under the First Amendment, the Spence case also provides an understanding of graffitis place in the context of the First Amendment, especially in regards to its location on public or private property. In Spence, the appellant had placed a flag upside down with a peace symbol taped to it outside of his property. The flag was his private property and he only chose to display his symbol directly outside of his apartment.80 When arriving at a decision on whether or not his speech was protected under the First Amendment, the Court stated the following: A number of factors are important in the instant case. First, this was a privately owned flag. In a technical property sense, it was not the property of any government. We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property. But this is a different case. Second, appellant displayed his flag on private property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed in terms of reasonable time, place, or manner restraints on access to a public area. 81 This aspect of privately owned versus publicly owned is raised again as an issue in another Supreme Court case, United States v.

78

Id. at 13. HANESWORTH, supra note 14, at 229. 80 Spence, 418 U.S. 405. 81 Id.
79

20

WULRVol V, Issue IIISpring 2012

Eichman. 82 In this case, the defendant had burned an American flag in Washington after the passage of the Flag Protection Act of 1989, which prohibited such behavior even as a means of expression. The Court found the appellees prosecution of the defendant inconsistent with the First Amendment. However, it specifically acknowledged the importance of the property used for expression being privately owned when it mentioned, in reference to Spence, that a governments interest in protecting publicly owned flags might justify special measures on their behalf.83 In public realms, these special measures include, but are not limited to, government property being constitutionally protected or the need of the government to prevent disorderly conduct or trespassing. Thus, the restrictions of expression in public are more severe than when symbolic expression occurs with or on private property. As both Spence and Eichman demonstrate, judges have placed a strong emphasis on the fact that the form of expression was done on ones own private property and with his or her own flag. This focus indicates that had Spence or Eichman chosen to express themselves on public property or with a publicly owned flag, then the Supreme Court may not have ruled in their favor. By focusing on such a distinction in these cases, the Court has repeatedly made it clear that when a person expresses his or herself in a public setting using his or her own private property, then such acts of expression have a higher likelihood of protection under the First Amendment. Furthermore, the content of the plaintiffs' message is also pivotal in determining whether expression is protected or not. A deeper analysis of Spence leads to the conclusion that political expression is a crucial component in gaining the support of the majority of Supreme Court judges. In Spence, the appellant had specifically altered the flag not in order to beautify it, but to express his concern with Americas invasion of Cambodia and the Chicago82 83

United States v. Eichman, 496 U.S. 310 (1990). Id.

Arias

21

Kent killings. Spence is not the only case in which political expression was crucial to the acts protection as symbolic speech. In Texas v. Johnson, Johnson had burned the flag in order to protest to the policies of the Reagan administration and several corporations in the Dallas area.84 Such an emphasis on political speech indicates that political expression is an integral factor in ascertaining First Amendment protection. IVb. Supreme Court Cases Applied to Graffiti As seen in the above cases, free speech is not absolute, and contextual circumstances are essential in determining the outcomes of rulings. This necessitates that the protection of an individuals right to produce graffiti is carefully balanced against existing criminal laws. Hanesworth estimates that nearly five percent of all graffiti are pieces, which have an immense potential to serve as outlets for expression or community enrichment.85 The law should ensure that these categories of graffiti that might be seeking to create forums for political issues are not prosecuted and eliminated under the singular category of graffiti vandalism. This specific type of expression, especially if political, is protected under the First Amendments guarantee of symbolic speech. Although the Vincenty case does not directly involve a case of graffiti, it provides useful insight into graffitis place in the context of the guidelines established by the Supreme Court cases discussed. In Vincenty, the Court continuously upheld the importance of expression that graffiti allows. In line with the OBrien ruling, Vincenty also established a basis for the regulation of the visual arts in that a law cannot substantially restrict symbolic speech for the sake of a governmental interest.
84

Texas v. Johnson, 491 U.S. 397 (1989). "Johnson burned an American flag as partindeed, as the culminationof a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President." 85 HANESWORTH, supra note 14, at 227.

22

WULRVol V, Issue IIISpring 2012

As demonstrated by the Hanrahan case, the recognition of graffiti as a form of expression has the ability to infringe on the property rights of another owner. However, Hanrahan is different from English because the artist in Hanrahan had specifically been given permission by the owner of the property to create a graffiti piece on the side of the building, whereas in English, the artist was not. Furthermore, the graffiti mural in Hanrahan had recognized stature; it had been given an award and was largely supported by the community. In such a case, the graffiti piece as a message becomes more valuable to the community than the physical worth of any property.86 With such a concept in mind, there are instances when graffiti has the right to be kept on a property that is not the artists. However, it must fulfill the requirements that it was legally placed on the property, that it has recognized stature, and possibly that it is political in nature. Thus, graffiti in and of itself, since it has the potential to be political with recognized stature in the community, is a form of expression that individuals have the constitutional right to engage in.

86

BOUGDANOS, supra note 48, at 564.

American Adversarial Transplants in the Italian Criminal Justice System:

An Analysis of Italian and American Criminal Procedure through the Amanda Knox Trial
By Claire Callahan*
Throughout the past century, the Italian criminal justice system has been accused of corruption namely from excessive uses of judicial power. This article analyzes the current Italian criminal code enacted in 1988 vis vis American criminal procedure focusing on the role of the judge. This comparison is valuable because the new Italian code of criminal procedure incorporated several adversarial procedures modeled after the American adversarial model. The current Italian criminal code marks the first time in history that adversarial procedure and has been incorporated into a traditionally inquisitorial justice system. Despite these recent reforms, however, the conviction of American exchange student, Amanda Knox, in 2009 invited the western world to scrutinize the state of the Italian criminal justice system more than ever before. In order to provide an understanding of Italian law and the complexities of the Knox trials, this article investigates the differences between the American adversarial model and the reformed Italian criminal procedure. The culmination of this analysis reveals that despite Italy's efforts to model the new code off of the American system, Italy's inquisitorial roots are still firmly implanted in its

24

WULRVol V, Issue IIISpring 2012

criminal procedure which is evident through the powers the judges have retained.
*Claire Callahan is an award-winning honors scholar and a senior majoring in Law and Society at American University. Originally from Mukilteo, Washington, Claire first discovered her interest for European civil law while studying abroad in France in 2007, during which time Amanda Knox was arrested in Perugia, Italy. She presented her research on the Knox trials at the School of Public Affairs fifth annual Undergraduate Research Symposium in April at American University. Claire currently resides in Washington, DC and plans to work as a paralegal upon graduation before attending law school.

INTRODUCTION I: THE ITALIAN CRIMINAL JUSTICE PROCEDURE Ia. Fallout of the Rocco Code Ib. The Preliminary Investigation Ic. The Preliminary Hearing Id. Pretrial Preparation: Plea Bargaining and Fast Track Trial Ie. The Trial Phase: Jury Selection If. Admissibility of Evidence Ig. The Trial Ih. The Appeals Process: Trial de novo Ii. The Adversarial Reforms II: THE AMANDA KNOX TRIAL AND THE INFLUENCE OF JUDICIAL POWER IIa. Background of the Trial IIb. Criticisms of the Trial IIbi. Preliminary Hearing: Plea Bargaining IIbii. Preparing for Trial: Jury Selection IIbiii. Admissibility of Evidence IIbiv. The Trial CONCLUSION

Table of Contents

24 26 26 28 31 34 37 39 42 44 46 47 49 49 50 51 51 51 52

Callahan

25

INTRODUCTION The Amanda Knox trial captured the attention of the Western world when the young college exchange student was accused of murder in Perugia, Italy in 2008. What makes this case fascinating is not the grisly details of her roommate Meredith Kerchers death; but rather the differences in law and procedure Knox encountered in the Italian criminal court system. Surprisingly, although the current Italian code of criminal procedure, known as the Codice di procedura penale (hereinafter referred to as the CPP), has many adversarial components, it is hardly identical to American criminal procedure in practice. This is largely due to the impressive power Italian judges have traditionally enjoyed under Italian law. In order to understand the friction between the Italian and American systems regarding judicial powers, this essay will divide the analysis of the Italian criminal justice system into two parts: Part I will analyze the history of the Italian criminal justice procedure and the rise of the CPP out of the former Rocco Code of 1930. It will then critique some of the changes the CPP has made to improve the image of the Italian justice system focusing on the rights granted to the defendant in the preliminary hearing, the new responsibilities bestowed upon the prosecution and defense in the pretrial phase (including jury selection and the rules of admissibility of evidence), the judges role during the trial, and finally the appeals process. It is here that the problems, which arise from the judicial powers that persist from the Rocco Code, will be discussed in detail. Part II will investigate the Amanda Knox trial as an example of the miscarriages of justice that may result from the powers that Italian judges still retain from the former criminal code. The culmination of this analysis will reveal how differently Knoxs case was handled in the Italian system and how that difference is due in large part to the greater powers the judge possesses under Italian law. As the purpose of these adversarial procedures is in many ways inconsistent with Italys

26

WULRVol V, Issue IIISpring 2012

traditional civil law values, the reforms only result in superficial regulations that are not always respected in practice in cases such as the Knox trial. The application of these aforementioned procedures in both criminal justice systems will reveal that Italy has purposely adopted many American adversarial procedures to remedy judicial corruption. However, it will also prove that the nations attachment to greater judicial power through its civil law tradition impedes Italian courts from performing these procedures as they were designed to operate in the American system. PART I: THE ITALIAN CRIMINAL JUSTICE PROCEDURE Ia. Fallout of the Rocco Code Before delving into an analysis of the Knox trials, it is first critical to assess the different applications of criminal justice procedure between Italy and the United States. This analysis will provide a necessary foundation to understanding the complex elements of the way the courts handled Knoxs case in Italy. The strongest influence over Italys justice system that makes it so different from the American adversarial model is its unique historical background that stems from the Rocco Code of 1930. The current Italian criminal code is relatively young compared to the American criminal justice system. Before the Italian parliament adopted the CPP in 1988, the Rocco Code prevailed for over fifty years. While not overtly fascist,1 the Rocco Code did bestow greater powers on the judiciary rather than the opposing parties or the defendant on trial. In fact, the Rocco Code did not provide defendants many rights at all, least of all the right to counsel or the ability to question evidence brought against him. Minister of
1

Peter Neville, Mussolini (Historical Biographies) 74 (2003) (Alfred Rocco was appointed the Minister of Justice under Benito Mussolinis fascist leadership. While Rocco drafted many repressive pieces of legislation that undercut individual liberties in order to strengthen state authority during Mussolinis regime; the Rocco Code left most legal provisions intact. Still, the spirit of state power over the individual persisted in the Rocco Code, leaving many defendants defenseless against abuses of judicial power.).

Callahan

27

Justice Alfred Rocco, the drafter, rationalized that justice could best be preserved by those deemed most knowledgeable and trustworthy by the state the judges.2 However, many people considered the trials conducted under the Rocco Code to be mere confirmations of the judges suspicions raised during the investigation instead of an impartial quest to discover the truth.3 Not surprisingly, the European Court of Human Rights denounced the Rocco Code for its abuses of judicial power. The Court specifically criticized the provisions in the code that resulted in excessive delays in scheduling preliminary hearings, the powerless position in which it placed the defendant, and the unchecked power of Italian judges. These judges wielded great influence over cases in their dual post as fact finders and the sole triers of fact in each case. Therefore, with no provisions in place to check judicial power or provide the defendant adequate protection, corruption flourished under the Rocco Code. Influenced by this sustained international criticism, the Italian parliament enacted the New Criminal Code4 (CPP) into law on September 22nd, 1988. A series of cases5 led the justices of the Italian Constitutional Court to finally rule that defendants require more protections in court, including the right to counsel.6 Italian
2 3

NEVILLE, supra note 1, at 74. Elisabetta Grande, Italian Criminal Justice, 48.2 AM. J. COMP. L. 227, 227-259 (2000) (Historically, the European Court of Human Rights has adamantly critiqued the Italian justice system calling it dysfunctional and corrupted by superficial reforms. Legal scholar, Elisabetta Grande, provides an excellent detailed analysis of the criticisms and reforms of the Italian criminal justice system in her article, Italian Criminal Justice.). 4 Alassandra Gualazzi, Notes on the Italian Criminal Procedure Code, Urbino University (Oct. 12 2011), http://www.law.cam.ac.uk/faculty-resources/summary/notes-on-the-italiancriminal-procedure-code/6369 (Due to the fall of the fascist regime, it became necessary to make certain changes to the criminal code. The current code of criminal procedure also adopted many adversarial qualities in order to grant defendants more rights and representation that were not made available in the previous inquisitorial system). 5 See GRANDE, supra note 3, at 227-259 (Before the adoption of the CPP, the public prosecutor and the trial judge held substantial power over the fate of the defendant under the Rocco Code of 1930. It was not until the Italian Constitutional Court ruled that the defendant should have the right to participate in the pretrial procedure in a series of cases between 1965 and 1972 that the defendant finally emerged from the shadows of the prison cell into the courtroom). 6 See id. (However at this stage it was mostly just during the pretrial procedure).

28

WULRVol V, Issue IIISpring 2012

legislatures spent the next thirty years drafting the CPP to fully resolve the problems that plagued the Rocco Code. During this time, legislatures looked to the American criminal justice system as a model for their reforms.7 But because aspects of the Rocco Code are still so deeply embedded into their judicial structure, modern day Italian judges struggle to maintain their power while attempting to conform to the new regulations. Ib. The Preliminary Investigation Among the transplants that the Italian parliament incorporated from the American adversarial model was the shortened length of the preliminary investigation process.8 In an attempt to remedy the imbalance of power between the judge and the defendant under the Rocco Code the CPP now restricts the freedom judges have to extend these investigations. In the US, the sixth amendment of the Constitution stipulates that a defendant will enjoy the right to a speedy and public trial.9 As such, there are time constraints in place for preliminary investigations so that a suspect is not held too long before being formally charged at the preliminary hearing or arraignment. This time constraint, though able to be extended in some cases, insures that the judge does not have limitless power to delay a defendants case, which could be detrimental to the preservation of invaluable exculpatory evidence. Under the Rocco Code, suspects were not afforded this privilege. Instead, the code left scheduling preliminary hearings to
7

William T. Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. INTL. 1, 3 (1992); See generally INTRODUCTION TO ITALIAN LAW (Jeffrey S. Lena & Ugo Mattei eds., 2002); THOMAS GLYN WATKINS, THE ITALIAN LEGAL TRADITION (1997). 8 Alan Watson, Legal Transplants: An Approach to Comparative Law 14 (2003) (Legal transplants are procedures of law that aremoved from one legal system to another. In this instance, I use the term to refer to those legal procedures that Italy adopted from the American model into the CPP). 9 U.S. CONST. amend. VI. (Professor Amar has criticized violations of speedy trial and argues for violation remedies); See Akhil Reed Amar, Foreword: Sixth Amendment First Principles, 84 GEO. L.J. 641, 674-77 (1996).

Callahan

29

judicial discretion. This practice originated from Italys civil law tradition that required the judge to compile all relevant information in a case into a case dossier for judicial review. The judge would spend long periods of time compiling the evidence alongside the prosecutor before reviewing the case at the preliminary hearing. Consequently, suspects notoriously endured up to a ten-year delay before they were finally given a preliminary hearing. And despite attempts to reform this procedure, it is clear that judges still have considerable discretion under the new CPP. The current code stipulates that the public prosecutor must finish the preliminary investigation within six months after the initial arrest. The goal of this reform is to improve the efficiency of the case review process because the Italians learned that too long of a wait resulted in unmanageable case backup and the loss of valuable testimony. As such, the CPP attempts to emulate the American speedy trial procedure for criminals with this pretrial investigatory time limit. However, the prosecutor may file for an extension of up to eighteen months to two years, particularly in extreme cases.10 While this is a far cry from the decade long delays defendants endured under the Rocco Code, defendants today still risk having to wait over a year to be formally charged. Once the preliminary investigation is closed, a decision must be made about whether there is enough evidence to proceed to press charges against the suspect. It is in this stage that the Italian and American systems differ greatly in terms of who has the power to proceed with these charges. While the American prosecutor has discretion over whether or not to move forward with a case, it is the supervising judge (gip) who makes this decision under Italian law. This is a prime example of how much more power judges have in the Italian system. The prosecution still spearheads the effort to

10

See GRANDE, supra note 3, at 233 (All evidence obtained after the preliminary investigation is terminated is excluded from the case and cannot be used in trial).

30

WULRVol V, Issue IIISpring 2012

collect evidence into a case dossier, but the gip may intervene11 during the investigation and compel the prosecutor to continue an investigation even if the prosecutor does not believe there is enough credible evidence to support the charges.12 Conversely, American prosecutors have much more flexibility over which cases they will pursue. The fact that the prosecution has the power to proceed with or terminate an investigation is characteristic of the partydriven accusatorial system. As the American prosecution has the sole burden of proof in criminal cases, they must be absolutely certain that there is enough evidence to substantiate their claims in court. If they cannot meet the demands of this burden, they have no other option but to release the accused and pursue other suspects. But since it is the gip, not the Italian prosecutor who makes this decision in the Italian system, the supervising judge assumes greater power over the decision to continue a case. The practice of judicial intervention demonstrates the residual power that the judge still retains from the Italian inquisitorial tradition. Under the old code, the gip (then known as the instructor judge13) and the prosecutor worked together to collect evidence against a suspect. The two parties actually had to collect both incriminating and exculpatory evidence because the suspect did not enjoy the right to his own defense counsel. Clearly, Italian judges are having a difficult time completely abandoning their previous post as fact-finders alongside the prosecution under the new code. The fact that gips retain the power to command the prosecution to continue an investigation or press formal charges against a suspect shows that although Italian and American
11

GRANDE, supra note 3, at 234 (Sometimes the judge may intervene on behalf of the victim or the victims family to order the prosecutor to continue investigating a suspect even if the prosecutor does not believe there is enough evidence to substantiate the charges). 12 Id. 13 GRANDE, supra note 3, at 241 (At the preliminary hearing, the supervisory gip no longer rules on the case. The case is reviewed by the giudice delludienza preliminare or gup. This judge actually presides over the preliminary hearing and decides whether or not to send the case to trial).

Callahan

31

prosecutors are charged with similar duties, in practice American prosecutors have more discretion over preliminary investigations than do Italian prosecutors. Similarly, Italian judges reserve more control over the prosecution than American judges who have no power to order the prosecution to continue an investigation. Ic. The Preliminary Hearing The subsequent stage of criminal justice procedure that the CPP reformed was the preliminary hearing. The preliminary hearing was formerly a unilateral procedure under the Rocco Code wherein only the judge (gup) and the prosecutor were allowed to present evidence. The current Italian preliminary hearing, however, takes the form of an adversarial structure. Much like the American preliminary hearing, the CPP provides the defendant the right to counsel and grants him the opportunity to counter the prosecutions arguments and question evidence. The goal of this reform was to give greater protection to the defendant which would make him less vulnerable to excessive judicial power. At face value, the preliminary hearing phase of the criminal justice system in the US and Italy appears to be similar, however, the problem is that Italian preliminary hearings are quite different in practice. Under the U.S. Federal Rules of Criminal Procedure, defendants have the right to waive the preliminary hearing or to be heard before a judge14 or, in some cases, to be heard before a grand jury15 of sixteen to twenty-three of their peers. This body of jurors
14 15

This process is also known as an arraignment in some jurisdictions. See Federal Rules Criminal Procedure Rule 6. The Grand Jury, CORNELL UNIVERSITY LAW SCHOOL, www.law.cornell.edu/rules/frcrmp/rule_6 (According to Rule 6 of the Federal Rules of Criminal Procedure. Twelve jurors must come to an agreement in order for an indictment to be issued. Currently, only about half of the states within the US practice grand jury indictment hearings while the rest of the states retain provisions but do not regularly employ them. This is because grand juries or are only required for federal criminal cases pursuant to the Fifth Amendment and they have not been incorporated into the Fourteenth Amendment to apply uniformly to all of the states [U.S. CONST. amend. V]. And although the judge instructs the grand jury about the laws at hand, the decision to issue an indictment is made by the jury alone. This, many believe, gives

32

WULRVol V, Issue IIISpring 2012

is like a peoples panel which redistributes the traditional power the judge and the government have back to the community. The prosecution then presents the evidence and it is up to the judge or grand jury to decide whether there is enough evidence to proceed with a trial. In order for the judge or jury to make this decision, the prosecution must present the evidence collected to give the judge or grand jury reasonable suspicion that the defendant committed the crime. At this stage, the prosecutor does not need to prove the defendants guilt beyond a reasonable doubt as he is charged to do in an actual trial. He need only convince the judge or grand jury that there is enough evidence against the accused to prove probable cause. The accused then has the right to a defense counsel to respond to the prosecutions evidence. It is important to note, however, that while the accused enjoys this right to counsel at hearings before a judge in the US, he does not have a right to counsel before a grand jury.16 This means that in preliminary hearings the prosecution may present all incriminating evidence to a grand jury without defense counsel present. If after all of the evidence has been presented the judge or grand jury decides there is enough evidence to support the prosecutions claims, the suspect becomes a defendant and is officially charged.17 The Italian preliminary hearing procedure has a similar adversarial party structure. The prosecution presents all of the evidence in the form of a case dossier. In turn, the defense is given a copy to review before the hearing. At the actual hearing the gup reviews the prosecutions evidence and the defense counsels
more power to the average citizen than the judge, resulting in a procedure that is exemplary of the spirit of American individualism and the publics historical distrust of government control. In Knoxs case, her pretrial hearing was ruled upon by a judge, Paolo Micheli, instead of a grand jury, which would have been available to her in the US. The absence of a grand jury in her case exemplifies Italys resistance to relinquish t he judges power to the people). 16 Coleman v. Alabama, 399 U.S. 1 (1970). 17 Provisions of the Code of Criminal Procedure will be cited in the Article using the standard Italian reference for the Code which is C.p.p. (an abbreviation for Codice di Procedura Penale) followed by the article number of the Code being discussed. C.P.P. art. 405.

Callahan

33

counter arguments. At this time the defendant may request an interrogation to challenge each of the prosecutions arguments. If the case goes to trial, the interrogation at the preliminary hearing can be submitted as evidence pursuant to Article 514 of the CPP. A debate thus ensues between the two parties resulting in the gups ultimate decision to continue or drop the case. This judicial power, unchecked by a community body like the grand jury in the US, demonstrates the greater capacities the Italian criminal justice system allots its judges. Because of this difference in judicial power, it is clear that the Italian and American preliminary proceedings are not truly as identical as they would appear. For one, the Italian preliminary hearing is primarily based on documents18 rather than the prosecutions oral testimony. This is a definite nod to the inquisitorial tradition wherein all information in a case is compiled into a dossier for final judicial review at trial. This is an important representation of judicial power as the judges reliance on this written testimony does not provide the parties much room to expand and interpret the evidence for the court. Oral testimony is essential to the adversarial system because it allows the parties to describe their stories in their own words to clarify the meaning of case evidence. Without importance placed on the spoken word, witnesses and defendants are somewhat silenced as the judge reviews written evidence. The case dossier upon which the judge relies, while factually comprehensive, is arguably only two dimensional relative to oral testimony which, when encouraged, can give added dimension to a defendants story. An additional difference between the two systems is that the Italian courts do not provide any sort of grand jury hearing at the preliminary stage. The gup decides independently whether or not there is enough evidence to carry a case to trial. This is another similarity to the old inquisitorial system wherein the judges decisions dictate the course of the case rather than a decision by a jury. In this respect,
18

See GRANDE, supra note 3, at 242.

34

WULRVol V, Issue IIISpring 2012

the judges have not transitioned out of the role they held from the oppressive days of the Rocco Code. It is evident that although the CPP carves out roles for the opposing parties in a criminal case, their responsibilities are often overshadowed by the dossier and judge oriented inquisitorial model. Id. Pretrial Preparation: Plea Bargaining and Fast Track Trials Another one of the essential features that the Italians did not fully incorporate from the American system was plea bargaining. Due to the cost and the risks involved, most defendants in the US accept plea bargains instead of proceeding to a full trial.19 Oftentimes both the defendant and the prosecutor benefit from this arrangement because the defendants charges are reduced and the prosecutor is no longer burdened by the task of proving the defendants guilt beyond a reasonable doubt. In the adversarial system where the prosecution has the sole responsibility of proving the defendants guilt, a plea bargain can be an effective means of saving time and resources. However, plea bargaining is not as widely accepted in Italy as it is in the US. In Italy, plea bargains (patteggiamento) are used sparingly and only for lesser crimes. While American defendants submit plea bargains for the majority of criminal cases, the Italian system does not encourage their defendants to do the same. Italians explain their hesitancy to accept plea bargains in place of searching for the truth because they believe the system is fundamentally inconsistent with their sacred civil law tradition. As a result: A system of plea bargaining like that existing in the Unites States is viewed as fundamentally inconsistent with the sacrosanct civil law values of uniformity and truth.20
19

Albert W. Aschuler, Plea Bargaining and Its History, 79.1 COLUM. L. REV. 1-43 (1979) (Plea bargains are an extremely popular option. They are so common that ninety percent of defendants plead guilty to the charges against them in lieu of going to trial.). 20 William T. Pizzi and Luca Marafioti, The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. INT'L L. 10, (1992) (Discussing the difficulties of

Callahan

35

Because Italians cannot reconcile plea bargains and their civil law system, plea bargains are rarely granted in Italian criminal courts. The few crimes that are eligible for plea bargains under the CPP are crimes warranting no more than five years in prison or those punishable by fine.21 Higher crimes such as murder do not qualify for plea bargaining because Italians believe it undercuts the search for truth and execution of justice. This is also because Italian prosecutors are charged with the duty to prosecute the crimes that they encounter, especially if they are as severe as the Knox case. Despite Italys restrictions on plea-bargaining, defendants still have other options to reduce their sentences. The option that is the closest Italian equivalent to the American plea bargain system is a fast-track trial. The key difference between the two procedures is that plea bargains in the US are based on reducing the charge while the fast-track trial only reduces the sentence. According to the CPP, defendants are allowed to waive their right to a full trial in exchange for a reduced sentence. The defendant must voluntarily choose this option so that the court does not violate his right to representation and due process without his explicit consent. After the defendant agrees to a fast-track trial, the defense is not allowed to question witnesses or submit any evidence other than the preliminary investigation file to the court. In exchange for these sacrifices, the court grants the defendant a reduction in his sentence of one third. Still, the defendant may appeal his sentence to a higher court to further reduce his sentence. For example, Rudy Hermann Guede, a key suspect in the murder of Meredith Kercher, opted for the fast track trial. While a murder conviction in Italy typically renders a verdict of life imprisonment, Guede received a
implementing adversarial trial systems in Italy. Italy and many other European countries have a doctrine of mandatory prosecution whereby the prosecuting authority must bring a criminal complaint against someone if they have reason to believe that person has committed a crime. This, of course, does not mean that the case must proceed to the filing of formal charges and then to trial, but rather that a file has to be opened up and the matter investigated if a police officer or a member of the public gives evidence of a crime to the public prosecutor.). 21 C.P.P. art. 444-448.

36

WULRVol V, Issue IIISpring 2012

sentence of only thirty years imprisonment after he accepted a fasttrack trial. This sentence was subsequently reduced by nearly half on appeal. Although these systems share some of the same characteristics, they are hardly alike in practice. Fast track trials and plea-bargains differ greatly in respect to who has the bargaining power in these negotiations. Within the American plea bargain system, defendants have control over declaring their own guilt (instead of the judge or jury) in exchange for lesser charges and jail time. This process is clearly linked to the adversarial system because it mandates that the prosecution, the defense and the defendant work to create the most favorable outcome for their respective sides. Conversely, fast-track trials are reminiscent of the civil law tradition because the judge still determines the defendants guilt without negotiating with the opposing parties.22 This, an American judge could not do without cooperation from the parties involved. Therefore, Italys tendency towards fast-track trial instead of plea bargains reveals that although Italy has adopted many adversarial procedures, it is more of a hybrid system23 because it is still faithful to judicial discretion when bargaining with defendants. Because the judge has the power to assign guilt with plea bargains and fast track trials in Italy, the defendant remains under the judges control as opposed to a defendant in the American system who has the power to admit his own guilt and negotiate his charges and prison sentence.

22

PIZZI, supra note 20, at 9 (In Italy, so important is the heritage of mandatory prosecution that there is a provision in the Italian Constitution that enshrines the principle of mandatory prosecution; The public prosecutor is required to file a criminal complaint if he or she has reason to believe that a crime has been committed. This mandatory prosecution is considered a protective measure for citizens, as it requires prosecutors to treat all offenders equally. Italian lawmakers fear that without mandatory prosecution, prosecutors might be corrupted by political pressure to prosecute some offenders but not those who are protected by their political connections.). 23 Studio Legale Canestrini, The Italian Criminal Trial, STUDIO LEGALE CANESTRINI LAW FIRM (May 20, 2012), http://www.hg.org/article.asp?id=26794 (The Italian criminal system is very much a hybrid system today. In 1988, a new code was enactedThe resulting system could be considered to be somewhere in between the two.).

Callahan

37

Ie. The Trial Phase: Jury Selection This selective implementation of adversarial procedure is further apparent through the different methods of jury selection that each country uses. In the American adversarial system, jury selection is crucial to establishing a bifurcated trial wherein the jury decides on issues of fact and the judge presides over issues of law. In this selection process, also called voir dire,24 the prosecuting attorney and the defense counsel handpick the jury that will hear the defendants case instead of presenting their arguments to a panel of professional judges. Since each party has the ability to select their jurors, the prosecution and the defense have the opportunity to select the most receptive jury possible for the arguments they plan to use in trial.25 And each side has a set number of peremptory and cause challenges26 to use to excuse clearly biased jurors from serving in the trial. Since the jury is only supposed to decide on issues of fact, the goal behind the voir dire process is to reduce the number of biased jurors from deciding the case based on reasons unrelated to the facts provided in the trial. Voir dire is therefore used to further the goals of the adversarial structure granting more power to the parties in an effort to leave less room for judicial discretion.

24

This French term, meaning to see and to speak, originates from the Latin expression, to tell the truth. 25 LEE EPSTEIN & THOMAS G. WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA: RIGHTS, LIBERTIES, AND JUSTICE (7th ed. 2010) (There are, however, certain restrictions to voir dire. If one party believes that the other struck a juror from serving in the trial for an unprotected, discriminatory reason [e.g. race or in some cases gender], that party might issue a Batson challenge to restore the juror to the jury. The judge uses the strict scrutiny rule when deciding if a juror was struck for racial reasons and intermediate scrutiny for gender discrimination.). 26 EPSTEIN & WALKER, supra note 25 (A peremptory challenge refers to the act of striking jurors from serving in a trial for almost any reason whatsoever. Although there are not unlimited peremptory challenges, each side retains the right to strike a certain number of jurors using this challenge depending on jurisdiction. Cause challenges are slightly different. Parties use this challenge to strike persons that they believe cannot be fair or impartial. Peremptory challenges need not be used in these cases.).

38

WULRVol V, Issue IIISpring 2012

Interestingly, the Italian courts are not comfortable with this process and do not employ it. Contrary to the bifurcated American adversarial structure, Italian judges decide on both issues of fact and law. This is one of the strongest examples of how much more power Italian judges have over criminal cases than American judges who cannot decide on the facts of a case. In extreme cases such as murder trials, however, the Italian judges are assisted by a panel of layperson judges who also decide on the facts and are advised by the two professional judges on the laws related to the case. This team of six laypersons constitutes the loose equivalent of an American jury. These laypersons are not selected through voir dire but instead at random. This means that any juror between the ages of thirty-five and sixty-four within the jurisdiction of the Italian court may be called to judge a trial.27 The goal of this random selection process is to prevent the opposing parties from selecting jurors who could potentially be biased in their favor when weighing the facts of the case. But the reality of the randomly selected structure of this judging panel can actually result in just as much bias by the professional judges on the panel who have the ability to guide and persuade the layperson judges who are often trusting of judicial authority and less knowledgeable about the law. The absence of a party lead voir dire selection process under the CPP is proof that Italian courts are still hesitant to grant adversarial parties too much freedom in criminal cases. The random selection of laypersons prevents the parties from engaging in the adversarial designed process of jury selection. Therefore, the implementation of random jury selection is a clear rejection of the American adversarial tradition. The Italians are wary of embracing the voir dire process because they still believe in granting more power to impartial bodies such as the judge and a randomly selected layperson jury. This desire is apparent in the CPP reforms, which seek to establish the fairest, most impartial criminal justice
27

The only other discriminating factor when selecting these laypersons is that each juror must have at least completed a junior high school education.

Callahan

39

system possible. Although many criticized the old Rocco code for its abuses of judicial power, the drafters of the CPP still had great confidence in the judges ability to review a case impartially, surely a persisting belief from Italys inquisitorial legal tradition. As such, the Italian parliament excluded voir dire proceedings when transplanting American adversarial measures into their judicial system in order to avoid jurors from being selected by biased parties. The fact that the CPP opts instead for randomly selected layperson juries demonstrates that Italians believe that the parties could abuse their privileges when selecting jurors. Through voir dire, opposing parties in the American adversarial system put their confidence in the common man and take the opportunity to select the jurors that will sympathize with their case the most. This, the Italians fear, can result in an imbalanced jury that does not decide facts impartially but rather through their biases for either party. The result is that the Italians still cling steadfastly to their inquisitorial based belief that, despite past instances of corruption, the judge is more capable of rendering an impartial verdict on a case than a jury of peers selected by warring parties. If. Admissibility of Evidence A key practice that both the American and Italian judicial systems employ to ensure the defendant an impartial, unbiased trial is the exclusion of certain types of misleading evidence. The exclusionary rule attempts to achieve this by excluding hearsay evidence,28 leading questions in cross-examination, illegally obtained evidence, and character evidence from the trial as much as possible. American courts must adhere to this strict rule because the consequence of admitting these types of evidence could do irreparable damage to a defendants otherwise fair trial. Without the ability to cross-examine people who submit hearsay evidence or
28

See GRANDE, supra note 3, at 248 (Hearsay evidence, if admitted, would disadvantage the defendant by not allowing the defendant to cross-examine his accuser.).

40

WULRVol V, Issue IIISpring 2012

object to leading lines of questioning, the defense would be at a significant disadvantage. In the American adversarial system, the judge has the duty to review all of the evidence to be submitted to trial from each party. After careful consideration, if the judge finds that any evidence was unlawfully obtained or of questionable authenticity, he must exclude it from the trial to preserve the pursuit of the truth.29 30 Since the judge only decides on issues of law in the American bifurcated trial system, there is no risk that he will be biased by the information he reviews. The jury, which weighs the facts and establishes guilt or innocence, does not take part in this pretrial review of evidence and is therefore shielded from being biased by potentially misleading evidence. Although the Italian courts attempt to employ the exclusionary rule to achieve the same end as the American criminal justice system, it is not well enforced in actual practice. The Italian courts resistance to this rule stems from regulations under the old Rocco Code which provided the trial judge with the sole power to review admissibility of evidence and subsequently make his decision based on the evidence he admitted to the trial. This practice encouraged Italian judges to admit evidence according to its probative value rather than its legal admissibility.31 Judges did this, as triers of fact, because they believed they needed to be able to evaluate all relevant evidence in order to best uncover the truth.32 Today, the CPP provides for a more formal review of the evidence before going to trial. However, many of the American exclusionary rules are still ignored because, as in the inquisitorial model, judges still believe they must uncover all of the facts available in order to discover the truth.33 Italian legal scholar,
29

EPSTEIN & WALKER, supra note 25, at 689 (There are exceptions to the exclusionary rule in the United States. For instance, the rule is not enforced in grand jury cases. Evidence may also be included under the good-faith of police intent rule in select cases.). 30 GRANDE, supra note 3, at 248. 31 Id. 32 Id. at 238. 33 C.P.P art. 190.

Callahan

41

Professor Elisabetta Grande, affirms this point arguing that, The great bulk of the American exclusionary rules in the search and seizure area [have] been rejected in the Italian model. Evidence obtained by way of an illegal search or as a by-product of an illegal interception is consequently admissible in Italian court.34 According to Grande, the Italian court system has not abandoned its old practice of admitting illegally obtained evidence contrary to the American exclusionary rule. For instance, the lead prosecutor for the Amanda Knox Trial, Giuliano Mingini, was recently found guilty of illegally obtaining and submitting evidence during past investigations through wiretapping. While we do not know if Mingini obtained any evidence illegally in the Knox case, his prior conviction provides evidence that the traditional Rocco Code practice of admitting questionable evidence is still supported even under the CPP.35 The appeal of the probative value of the illegally obtained evidence Mingini submitted in his prior cases outweighed the courts interest in upholding the exclusionary rule. Minginis case indicates that despite the new clauses in the CPP, Italian courts do not enforce the exclusionary rule as much as American courts do. There are two main concerns with Italys selective enforcement of the exclusionary rule; first, Italys current practice could allow for hearsay and illegally obtained evidence to condemn the defendant to a punishment he does not deserve. The goal of a trial is to give the prosecution and the defense a fair chance at proving their respective cases, but without the rules of exclusion, the defense has to bear the burden of making the judge or layperson jury forget the questionable evidence. This is nearly impossible for the defense counsel to do once the judge and jury has come into contact with the evidence. The second problem is that in the Italian system, the same judges who review evidence for admissibility to trial also decide on the facts of the case. Since the Italian courts are
34 35

See GRANDE, supra note 3, at 249. Id.

42

WULRVol V, Issue IIISpring 2012

not set up in the American bifurcated structure, judges who come into contact with inadmissible but incriminating evidence could ultimately be biased when making their decision. If a judge decides that there is enough probative value to an otherwise inadmissible piece of evidence, he may admit it, knowing it will help to support his verdict. And even if a judge excludes the evidence from trial, he cannot as effectively exclude it from his mind, which could ultimately bias his decision. While the judges must affirm their verdict based on issues unrelated to the evidence excluded from trial, there is still room for the evidence to influence their decision in a case. The consequences of Italys resistance to the exclusionary rule could therefore be disastrous to the defense. Ig. The Trial Another distinct area of difference in judicial power between the American and Italian systems is the trial phase wherein the Italian judge enjoys a relatively more active role than an American judge. Once the jury has been selected and the evidence has been admitted, the case proceeds to trial before a panel of judges. In Italy, the court with the jurisdiction to try the most severe crimes is the Court dAssise which is overseen by one presiding judge along with another empanelled judge and six layperson judges.36 What makes the Italian trial phase so different from the American system is that the judges are in charge of trying the facts of a case which is a task usually reserved to the jury in the American system. This panel of judges not only determines guilt or innocence based on the facts but also the punishment sentence.37 Conversely, the American model divides these tasks into two distinctly separate phases wherein the initial jury first decides on
36

These layperson judges are not considered the equivalent of American jurors because they decide on both the facts of the case and the sentencing alongside the empanelled judges. Their presence balances out the two professional judges but is still not as unsupervised as the American jury. 37 See GRANDE, supra note 3, at 228.

Callahan

43

the facts and then the judge or a new jury decides on the sentence. In these cases in Italy, only a majority vote is needed to convict a defendant instead of a unanimous vote which is required in the American system. Despite this difference in judicial power, the CPP does allow for more participation from the parties during the trial. Inspired by the adversarial model, the CPP reassigned the task of presenting the evidence to the court to the prosecution and defense. This reform gives the parties more control over the presentation of the evidence than they had during the Rocco Code which only allowed the judge to review written evidence produced by the prosecution in a case dossier.38 However, the judge still reserves certain privileges from the old system that American judges do not possess. These include the judges ability to notify the parties of issues that need to be addressed that they missed during cross examination and the judges right to present and examine evidence suasponte.39 Commonplace in the Rocco Code, this measure allowed a judge to call and examine his own witnesses and now allows him to directly question the parties evidence and bring in his own witnesses. Although the drafters of the CPP only incorporated this measure to be used sparingly so as to prevent the judge from overstepping his arbitrative role, it now occurs frequently. Critics fear that granting the judge these powers effectively undermines his neutrality.40 The result of this power is that the judge plays a much more active role in the Italian system than his American counterpart who is only permitted to regulate matters of law, not fact.

38

See GRANDE, supra note 3, at 246. Suasponte, a Latin term meaning of his or her own accord, is used to describe the legal practice of someone taking the authority to act without formal prompting from another party, in this case the prosecution or the defense. 40 See GRANDE, supra note 3, at 245.
39

44

WULRVol V, Issue IIISpring 2012

Ih. The Appeals Process: Trial de novo The Italian and American criminal court systems differ yet again in the appeals process. While both systems have a similar three tier judicial hierarchy, the content of the appeal in each appellate court is significantly different in practice. In the US, appeals typically focus on issues of law instead of fact. When a higher court agrees to review a partys appeal, the court will first order a record from the court of original jurisdiction. This practice is called a writ of certiorari wherein a higher court, such as the Supreme Court, orders the records from the lower court in order to review the appeal. State courts commonly conduct the same procedure when reviewing an appeal, but the term varies from writ of certiorari to writ review or certification for appeal.41 After reviewing the original trial records, the appellate court is better able to understand the underlying foundation of the case without a retrial. Instead, the court proceeds to examine questions of due process of law. Reviewing records from the lower courts thus enables judges to proceed with the more technical legal issues in a case. The Italian appeals courts, however, allow appeals trials that revisit issues of fact and law. This procedure is called trial de novo. In a trial de novo, the parties essentially receive a brand new trial. And in this new trial, all of the evidence is reexamined in front of a new panel of judges. This judging panel consists of two high ranking judges and six layperson judges.42 Amanda Knox was granted a trial de novo when she appealed her guilty conviction from 2009. Fortunately for Knox, the trial de novo reopened the facts of her case and allowed outside specialists to reexamine the damning DNA evidence from the first trial. The results of this reexamination revealed that the murder weapon and Kerchers
41

Andrew F. Daughety, and Jennifer F. Reinganum, Speaking Up: A Model of Judicial Dissent and Discretionary Review (Oct. 2011), http://www.vanderbilt.edu/Econ/faculty/Daughety/SpeakingUp.pdf. 42 The six-layperson judges must complete at least a high school education in order to be eligible to judge a case.

Callahan

45

clothing had been mishandled when collected from the crime scene.43 The court was therefore forced to throw the evidence out of consideration. This left the court with little else but circumstantial evidence to uphold Knoxs conviction. Had Knox been tried in the US, it is highly unlikely that she would have received a trial de novo. This is because the trial de novo process is rarely seen in U.S. courts except in special cases and jurisdictions. The reasoning behind this is anchored in the American common law tradition that upholds precedent before granting a new trial. Still, a case may warrant a trial de novo in the US if, for example, crucial evidence arose after the first trial ended or the initial jury did not appreciate the original facts. The defendant always retains the right to petition for a trial de novo, but it is up to the court that receives the petition to decide whether or not to actually grant the trial as it is so taxing on the already finite resources of the court. Thus these instances are quite uncommon. It is clear that the American common law and the Italian inquisitorial traditions influence criminal appeal proceedings in very opposite ways. Finally on Monday, October 3rd, 2011, Amanda Knox was cleared of the murder of Meredith Kercher. In the United States, this verdict would put an end to her case. As the fifth amendment of the Constitution states, [no person shall] be subject for the same offense to be twice put in jeopardy of life or limb.44 These provisions ensure that once a defendant is found innocent, he cannot be retried in what is considered double jeopardy. Doing so would be a direct violation of his constitutional rights. Interestingly, in Italy and other civil law states,45 the laws of double
43

Elisabetta Povoledo, Amanda Knox Freed After Appeal in Italian Court, N.Y. TIMES, (Oct. 4, 2011), http://www.nytimes.com/2011/10/04/world/europe/amanda-knox-defendsherself-in-italian-court.html?_r=1&pagewanted=all. 44 U.S. CONST. amend. V. 45 See PIZZI, supra note 20, at 3 (Similar to Italy, many civil law countries including France and Germany apply appeals in a like manner. Appeals for both sides are so widely accepted in European civil law jurisdictions that the European Union endorses them, believing that they do not violate the EU bylaws that prohibit double jeopardy.).

46

WULRVol V, Issue IIISpring 2012

jeopardy operate differently. The provisions of the Italian code of criminal procedure ensure that each losing party has its own appeal.46 In practice, this means that both the defense and the prosecution are entitled to separate appeals. The Italian prosecution team is therefore legally entitled to one more appeal against Knox despite her acquittal. And Chief Prosecutor Mignini does plan to pursue this final appeal. We will appeal, Giuliano Mignini told Reuters. The [higher] court will decide whether to confirm the first sentence or the second sentence.47 Ii. The Adversarial Reforms It is evident that the legislators who crafted the CPP incorporated several American adversarial party driven procedures into the Italian criminal justice system. The preliminary hearing and trial phases have been reorganized to fit the adversarial structure which offers the defendant more opportunities to defend himself than he had in the Rocco Code. Defendants are also now protected by the exclusionary rule taken from the U.S. Federal Rules of Criminal Procedure. However, the system still does not fully relinquish judicial powers to provide the parties the same freedoms they have in the American system. The Italian judge still reserves the majority of the power when it comes to determining if a case should continue to trial and assessing the facts of a case to determine guilt or innocence. Likewise judges also tend to admit evidence based on its probative value that American courts would normally consider inadmissible. Finally the judge also exercises
46

This evolution of the Italian appeals system would surely constitute as a violation of the Fifth Amendment in the United States. But by Italian standards, this second appeal does not violate double jeopardy laws. On the contrary, Italians consider it the fairest solution for both parties involved because the appeals give both the defendant and the prosecutor equal opportunity to present their cases. 47 Knox heads home from Italy; prosecutor to appeal verdict, THE ASSOCIATED PRESS AND REUTERS. (Aug. 4, 2011, 5:31 AM), http://www.msnbc.msn.com/id/44767938/ns/ world_news-europe/t/knox-heads-home-italy-prosecutor-appeal-verdict (In this statement, Mingini indicates that he plans to appeal to the highest court in Italy, the Supreme Court of Cassation. Reuters is a London based international news agency.).

Callahan

47

greater sentencing power because he determines both guilt and the punishment for each defendant, even if the entire panel of judges does not agree. With knowledge of the critical elements of the Italian criminal procedure, we can now investigate how the incomplete reforms in the CPP affected the outcome of the Amanda Knox trial. PART II: THE AMANDA KNOX TRIAL AND THE INFLUENCE OF JUDICIAL POWER IIa. Background of the Trial Amanda Knox and boyfriend Raffaele Sollecito were charged with the sexual assault and murder of Knoxs roommate, Meredith Kercher in November 2007. The Supreme Court of Cassation, Italys highest court, refused Knox and Sollecitos release requests and ordered the two to remain in jail.48 Meanwhile, prosecutor Giuliano Mingini was assigned to their case, despite the fact that he was under indictment for abuse of office at the time.49 Critics criticized Minginis assignment to the case, citing it as a prime example of corruption in the Italian justice system that likely would not have been permitted by American judges. Notwithstanding appeals from both Knox and Sollecitos defense counsel, the presiding judge at the preliminary hearing, Judge Paolo Micheli, still allowed Mingini to lead the prosecutions case against
48

Judge Denies Bail for American in Italian Slaying, ASSOCIATED PRESS (Aug. 29, 2008, 6:55 PM), http://www.msnbc.msn.com/id/27415436/ns/world_news-europe/t/judge-denies-bailamerican-italy-slaying (The Court of Cassation issued this ruling on April 1st, 2008). 49 Amanda Knox Described as 'Victim of Tragic Case, BBC NEWS (Sep. 29, 2011, 8:20 PM), http://www.bbc.co.uk/news/worldEurope-15103820 (Giuliano Mingini was charged with abuse of office for the illegal investigations he conducted and the evidence he altered during his investigation of the Monster of Florence, an infamous serial killer murder investigation that has never been solved. Mingini reportedly planted evidence to incriminate a list of his suspects, tapped phone lines to investigate journalists who criticized him, and illegally investigated suspects to harass and intimidate his critics. A judge sentenced Mingini to sixteen months in prison [severe since the prosecutor only asked for 10 months] as well as his indefinite suspension from public office. Still, the judges for Amanda Knox permitted Mingini to prosecute Knox.).

48

WULRVol V, Issue IIISpring 2012

Knox and ordered the two suspects to stand trial. After several delays,50 their joint trial began over a year later on January 16th, 2009 before presiding judge Giancalo Massei. Judge Massei was assisted by one other official judge and six layperson judges. After a roughly year long trial, the panel found Knox guilty of both charges and sentenced her to twenty-six years in prison. While Knox primarily attributes her conviction to the abuse and manipulation of the prosecution and mishandled forensic evidence by the Italian police, it is clear that the judges played a major role in her conviction. Lead judge, Micheli could have ended the investigation at the preliminary hearing stage on the grounds that the case was mishandled by Prosecutor Mingini who was suspected to have grossly abused his power as a public official. The fact that Prosecutor Mingini stayed on the case in spite of the charges against him is evidence of the judges residual tendency from the Rocco Code to side with the prosecution. Additionally, the presiding judge at Knoxs initial trial could have refused to admit the mishandled DNA evidence and normally inadmissible confessions and character witness testimony. Their refusal to admit such questionable evidence would have effectively left Prosecutor Mingini with no case against Knox and the charges against her would have likely been dropped. Still, Judge Massei admitted this evidence and did not call it into question during the trial. In his written explanation,51 he and his fellow judges acknowledged that although Knox had no criminal record and the crime appeared to be committed due to
50

Amanda Knox Described as 'Victim of Tragic Case, supra note 49 (Knox was brought in for questioning on November 6th, 2007 and was arrested soon thereafter. Judge Paolo Micheli ordered the two suspects to stand trial in October 2008 shortly after fellow suspect Rude Guede plead guilty and was sentenced to thirty years in prison.). 51 The CPP, like the Rocco Code, requires judges to write an explanation for their decision on each case. The CPP attempts to make judges more accountable through this process by making these written explanations open to the public to review. This is quite different from the American system, which does not require juries to give written explanations of their findings. In Knoxs case, the court issued its understanding in a lengthy document called The Massei Report which was led by Judge Giancarlo Massei.

Callahan

49

merely random circumstances without motive, premeditation or maliciousness to Ms. Kercher, the court believed that Knox and Sollecito aided Rude Guede out of a possibly drug induced excitement.52 The elaborate hypothesis that the judges described in their 400 page explanation and the judges refusal to drop the case and the corrupt prosecutor, Guliano Mingini, indicate that the adversarial reforms that the Italians incorporated into the CPP can still leave defendants vulnerable to the whims of a powerful panel of judges. IIb. Criticisms of the Trial IIbi. Preliminary Hearing: Plea Bargaining Amanda Knox could not submit a plea bargain to chief prosecutor Mignini, because murder in Italy warrants more than five years of imprisonment. Additionally, due to prosecutorial requirements, Mignini had a duty to prosecute Knox once he decided she was a definite suspect.53 As the murder was quite gruesome, Mignini sought a life imprisonment sentence for Knox. Had she been tried in America, Knox could have accepted a plea bargain to reduce her charges from murder to manslaughter. This would have left the judge largely out of the process of determining Knoxs punishment, who would have only approved54 and enforced the terms that the prosecution and defense created. However, this
52

Sentence of the Court of Assizes of Perugia in the Murder of Meredith Kurcher, (2011) (An English translation of The Massei Report authored by Judge Giancarlo Massei supporting the convictions of Amanda Knox and Raffelle Sollecito). 53 According to the 1948 Italian Constitution, the prosecutor is compelled to prosecute all crimes he encounters. However the prosecution does not always abide by this duty due to the absence of resources or credible evidence. However in this case, prosecutor Mignini followed his duty and pursued charges against Knox. 54 See Plea Bargain, CORNELL UNIVERSITY LAW SCHOOL (Aug. 19, 2010, 5:21 PM), http://www.law.cornell.edu/wex/plea_bargain (In the US, judges use their discretion to approve or reject plea bargains, except in federal cases where their direct involvement is not allowed. However, the judges role in plea bargaining is m inor and they typically approvepleas unless they suspect the defendant is not pleading knowingly and intelligently. This is not common place so prosecutors are usually confident that judges will accept these bargains.).

50

WULRVol V, Issue IIISpring 2012

was not an option for Knox due to the highly political nature of her case as a foreigner abroad and her insistence of her innocence. As Amanda Knoxs case clearly demonstrates, the Italian system lacks the proper provisions to utilize the plea bargaining system to the same extent as it is used in the US. This is largely due to the fact that the adversarial system is not as deeply entrenched in Italian civil law as it is in American common law. With the prosecutor automatically obligated (and sometimes compelled) by the gup under the CPP to investigate and press charges against all crimes they encounter, defendants have little other choice other than a fast-track-trial to negotiate with the court. As such, prosecutor Mingini and Knoxs defense were unable to carry out their adversarial roles because of the restrictions the CPP sets on plea bargains. While this hesitancy to approve plea bargaining may be beneficial to the pursuit of truth (which plea bargains effectively cut short) it nevertheless deprives defendants the ability to negotiate with the prosecution which often benefits both parties. The result of this difference leaves the gup and the prosecutor with greater responsibilities and the defendants with much less power to decide their own fate. IIbii. Preparing for Trial: Jury Selection In Knoxs case, it is difficult to prove whether the voir dire process would have significantly altered the outcome of her case. The Italian media vilified her well before the trial began.55 So much negative press circulated around the country that Knox quickly became unpopular, especially amongst the locals in Perugia, Italy where she was living.56 If Italian courts did practice voir dire, lead prosecutor Mignini could have potentially selected jurors predisposed to dislike Knox. Conversely, Knoxs defense could have
55

American Girl: Italian Nightmare (NBC Television 4/11/2009). Television.http://www.youtube.com/watch?v=oPKopufVAsM&feature=related. 56 Amanda Knox Described as 'Victim of Tragic Case, supra note 50, at 49.

Callahan

51

weeded out groups of jurors who did not like foreigners or were otherwise clearly biased against Knox. Furthermore, the defense could have petitioned the court to change the venue of the trial to a less biased part of the country. But since neither party had the privilege to select the layperson jury, neither side was able to choose jurors who could have altered Knoxs final verdict. IIbiii. Admissibility of Evidence Italys opposition to the exclusionary rule proved to be problematic for Knoxs defense in her initial trial in 2009. Much of the testimony regarding Knoxs character and her problematically obtained confessions would likely have been excluded from the trial had the exclusionary rule been more strictly enforced. For example, Knoxs roommates were asked to testify to Knoxs irresponsible character during the trial. Additionally, a false confession allegedly extracted under duress during Knoxs interrogation was admitted as evidence.57 Furthermore there was little oversight over the improper procedures the Italian police employed to handle the DNA evidence that was used to convict Knox. It is difficult to tell whether or not this evidence (which Knoxs defense tried to suppress) was valid or not before its legal admissibility came into question. But the fact that the evidence was nevertheless submitted to trial shows that the new Italian system has not embraced the exclusionary rule, preferring instead to admit questionable evidence of probative value. IIbiv. The Trial As the charges against Amanda Knox were so severe, (murder and sexual violence) her trial was held in the Court dAssise. The prosecution, led by Mingini, and Knoxs defense
57

See American Girl: Italian Nightmare, supra note 55.

52

WULRVol V, Issue IIISpring 2012

presented all of the evidence to the panel of judges instead of simply compiling it into a case dossier for the judges to review. The same panel of judges that reviewed the facts of Knoxs case also unanimously issued her twenty-six year prison sentence. During the trial, the judges allowed the prosecution to submit evidence of Knoxs conniving character and sexual promiscuity despite the defenses protests. Furthermore, the judges rejected the defenses claims that the DNA evidence was contaminated. In their written report, presiding judge Massei argued that the evidence was valid because Knoxs defense did not object to Dr. Stefanonis method of testing the forensic evidence despite being present for the testing. Massei further argued that the Perugian police did not contaminate the evidence while collecting it even though the defense presented pictures that proved that the police left Meredith Kerchers room in disarray before collecting and preserving the bra clasp that had trace amounts of Knoxs DNA. There is no record of the judges calling their own witnesses suasponte in this case. Nonetheless, the judges acceptance of the prosecutions hearsay evidence and their emphatic support of the DNA evidence reveal that the judges in Knoxs case actively exercised their power to shape her case differently than most American judges or juries could. CONCLUSION The current Italian code of criminal procedure is only twenty-four years old. Its relative youth could explain why the courts have not yet fully embraced the adversarial transplants from American criminal procedure. But more likely, the friction could be the result of the inquisitorial and adversarial systems colliding for the first time in history in a civil law country.58 This is an attempt to apply the American rules without an underlying acceptance of their philosophical basis. Without a complete understanding of the
58

See GRANDE, supra note 3, at 232.

Callahan

53

American legal system, the adversarial transplants Italy incorporated into the CPP do not achieve their aims for fairness and justice in the law. Although each system allegedly carries out similar preliminary investigation duties along adversarial party lines, in Italy, the actual power often lies in the hands of the supervising judge (gip). Likewise during the preliminary hearing process, the US often displaces judicial power with the use of a grand jury for federal cases while the Italian courts rely exclusively on the gups decision. Furthermore, the USs open acceptance of plea bargains for crimes of any degree starkly opposes Italys limited application of the bargains in favor of conducting a full trial. The result gives greater power to the judge rather than the prosecution and defense parties in Italian law. The two systems diverge again due to Italys fast-track trial system which is absent in the U.S. Federal Rules of Criminal Procedure. This difference gives the court more control over the charges to which the defendant pleads guilty. Additionally, the practice of random jury selection in place of voir dire completely disables the prosecution and defense from engaging in their adversarial roles through the jury selection process. More diversions arise in the rules of admissibility of evidence. While U.S. courts enforce the strict exclusionary rule, Italian courts all but reject the rule in favor of evidence with probative value as the presiding judge deems appropriate. Differences continue to appear in the appeals process as Italy more often grants trials de novo while U.S. courts typically shy away from this practice, preferring to grant cert to review legal issues in a case to separate the judges from deciding issues of fact versus issues of law. Finally, the Italian system allows for each party to file its own appeal even if the defendant has been found innocent. With so many differences between the Italian and American criminal justice systems, particularly in terms of who has greater power in the courtroom, it

54

WULRVol V, Issue IIISpring 2012

is clear that the two systems do not belong in the same adversarial category. The Italian criminal court system is therefore less of an adversarial system and more of a hybrid of the two legal traditions. The Amanda Knox trial provides an interesting backdrop to this hybrid system of sorts. The result of the Knox case is proof that while the new Italian code is backed by a similar adversarial structure to the American system, it hardly treats cases in the same manner as they are treated in the United States. It is evident that Knox would have received a much different trial had she been a defendant under U.S. jurisdiction. Her case likely would not have even proceeded to trial at all had her case been presented before a grand jury during the preliminary stages or had the presiding judge more effectively enforced the exclusionary rule. However, Knoxs exoneration on appeal proves how beneficial the American adversarial regulations can be to preserve the rights of the accused and limit judicial power when they are applied as they were meant to function in the US. Therefore, her legal struggles in Italy did achieve an invaluable end; the public was given a chance to learn about how differently adversarial legal procedures are practiced in different justice systems throughout the western world. There is no denying that Italians wanted to reform their criminal justice system after an era of widespread corruption under the Rocco Code. Even American judges commend the strides Italy has made in its criminal justice system and acknowledge that it is hardly the only judicial system with problems.59 However, the CPP still grants the judge more control over the outcome of a case than the adversarial parties.
59

Cindy Adams, Amanda Knox case: US Judge says convicted killer 100 percent innocent, EXAMINER (Apr. 9, 2011), http://www.examiner.com/article/amanda-knox-case-us-judge-says-convicted-killer100-percent-innocent (U.S. Superior Court Judge Mike Heavy Sr. confirmed this soon after Knoxs initial conviction; Their justice system is great, but like o ur justice system, it is run by people and can be abused, mistakes can be made, said Heavy. They took a good person [Amanda Knox] and they demonized her. The difference between Heavys concession and the American justice system, however, is that the judges who run the Italian justice system have greater powers than most American judges. And with greater powers comes greater potential for mistakes to be made.).

Callahan

55

True, American judges exercise a great deal of control over the outcome of a case. But the difference is that there are more safeguards in place to counteract abuses of judicial power in the American system (such as the exclusionary rule, separation of judge and jury responsibilities and the overall party driven system) while there are relatively few in the Italian system. Therefore, after analyzing how these procedural reforms were carried out during the Knox trials, it is clear that Italians are still too attached to their civil law roots and their reliance on greater judicial power to use the American transplants as they were designed to operate in the American system.

In Search of a Practical Philosophy of Punishment

By Samuel Datlof*
This essay defends a retributivist understanding of punishment from a philosophical standpoint by utilizing Rawls veil of ignorance. However, it ultimately concludes that despite the philosophical appeal of retributivism, a punishment regime built solely on retribution would be untenable due to the imperfect nature of modern societies. The essay concludes by suggesting a variety of mechanisms to address the gap between pragmatics and philosophy.
*Samuel Datlof is a graduating senior at Brandeis University, majoring in International Studies and Politics, with a minor in Hispanic Studies.

Justifying state-sanctioned use of force as punishment has understandably evoked discussion and disagreement among politicians, academics, and jurists for centuries. At stake is nothing less than the fundamental liberties of all members of a society. Yet despite continuous debate, little common ground has been found between the two major dueling sides: retributivists and utilitarians. Immanuel Kant, the patron saint of the retributivist school of punishment, believed that the underlying humanity of all people conferred upon them an inalienable right to respect. Thus, he claimed, The penal law is a categorical imperative; and woe to him who creeps through the serpent-windings of utilitarianism to discover some advantage that may discharge him from the justice of punishment.1 Kant believed that punishment could only be used
1

IMMANUEL K ANT, The Right of Punishing, in The SCIENCE OF RIGHT, philosophy.eserver.org/kant/science-of-right.txt (last visited Nov. 18, 2011).

Datlof

57

insofar as it respected the rights of individual. To punish a man for the punishments effect on society rather than for the mans personal responsibility for a crime would be to deny the fundamental respect due to all men by using him as a means to achieve some external end. On the other side of the debate are the utilitarians, championed by Jeremy Bentham. Bentham disagrees with Kant, claiming, General prevention ought to be the chief end of punishment, thus denying Kantian appeals to respect for all individuals and claiming that persons should be punished exclusively as means to the end of a safer society. This essay will defend the retributivist position on punishment from a philosophical standpoint through analysis of Rawls original position. Ultimately despite the theoretical appeal of retributivism, a perfect implementation of retributivist punishment would be impossible given the imperfect nature of modern societies. After determining that modern punishment regimes could not be entirely overhauled so as to conform to retributivist principles, both abstract and concrete ways to address their philosophical incoherence will be suggested. In his seminal work, A Theory of Justice, John Rawls attempts to imagine a truly just society. While the vast majority of his work applies to justness in a broad sense as considered through distributive justice and social institutions, his underlying analysis applies directly to questions of the justification of punishment. Rawls begins by explaining the idea of the original position: a situation in which no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like . . . parties do not know their conceptions of the good or their special psychological propensities.2 Thus, the original position creates a veil of ignorance behind which one can better ascertain the justness of the distribution of rights, wealth, power, etc. Quite intuitively,
2

JOHN RAWLS, A THEORY OF JUSTICE (1971).

58

WULRVol V, Issue IIISpring 2012

governments recognize that laws should be crafted with this idea in mind, so as to avoid providing an arbitrary and unjust advantage to one group within a society over another group. For example, an old man would likely consider social security and Medicare to be just, whereas a young person might consider such governmental services to be an undue burden on the tax base. Clearly, views of justice and injustice are filtered through our unique social position, and this is exactly what an analysis of the original position attempts to solve. Of course, the tricky part is determining which specific rights, social institutions and protections a rational person might deem necessary behind the veil of ignorance. Rawls believes that a rational person behind the veil would allow us to come to several related conclusions, including the determination that certain rights such as freedom of speech, freedom of association, and freedom from arbitrary arrest, ought to be inalienable. Furthermore, he makes the logical claim that stepping behind the veil tells us no one should be advantaged or disadvantaged by natural fortune or social circumstances.3 This final declaration, although not applied to a theory of punishment in its original stating, has powerful implications for the justness of punishment. Utilitarian punishment theory is, almost by definition, the punishment of individuals based on social circumstances. Bentham makes this clear: If we could consider an offense which has been committed as an isolated fact, the like of which would never recur, punishment would be useless.4 Taking general deterrence as the prime motive for punishment as Bentham does, the propensity of others to commit crime, not individual culpability, determines punishment. Therefore, if someone acts upon the unique desire to break into a university library late at night in order to write a term paper, and the judge sentencing him or her for breaking the law happens to know that no other person will ever again feel such a
3

Id. JEREMY BENTHAM, THE RATIONALE OF PUNISHMENT, CLASSICAL UTILITARIANISM WEBSITE, http://www.laits.utexas.edu/poltheory/bentham/rp/index.html (last visited Nov. 16, 2011).
4

Datlof

59

desire, then according to Benthams logic, he or she should not be punished. Additionally, if an individual commits said crime and no other students hear of his or her exploits, and furthermore the judge believes that the crime will never be committed again, according to Bentham this person should be spared punishment. While these examples appear as benign as they are bizarre, their converses are not so. Now, imagine that this same individual trespassed into a university library, but that instead of the crime being an isolated incident, it is actually the most recent part of an onslaught of petty crime that the police cannot control. This person was one of the few unlucky students to be caught red-handed. According to Bentham, the police could justify on utilitarian grounds hanging him next to the library for all to see. By doing this, crime would be powerfully deterred. Although he would end up much worse off than he started, society as a whole would see crime disappear, thus making the remaining members of society safer and happier. To be fair, it is possible Bentham would argue that this example does not fit his standard of profitabilitythat punishment should not be used where the mischief it would produce would be greater than what is prevented.5 However, it seems at a certain point he would need to admit his punishments profit; if an execution deterred thousands or millions of crimes, even petty crimes, then the mischief prevented would exceed the mischief produced. Despite the profitability of his public execution, it smacks of absurdity that any rational actor behind the veil of ignorance would describe the society that killed him as just. It was clearly social circumstance and bad fortune that allowed his death. However, the ludicrous nature of the above example only begs the question, who actually deserves punishment? The examination of two fictional, yet contentious, case studies can bring us closer to the answer.
5

JEREMY BENTHAM, An Introduction to the Principles of Morals and Legislation, in FOUNDATIONS OF CRIMINAL LAW 70-72 (1999).

60

WULRVol V, Issue IIISpring 2012

First, the story of the proverbial Jean valJean: a man who purposefully steals a loaf of bread in order to save a starving family member. While Bentham would argue that there is a need to deter all crime, the lack of culpability here is obvious; Jean valJean had no real choice. It is unreasonable to ask someone to respect a law when doing so causes himself or someone he cares for to suffer an easily preventable death. Both Kant and Rawls would agree that Jean valJean should not have been punished. Kant would come to this conclusion because, based on the lack of choice, there was no culpability in this instance. Rawls would concur, but on the grounds that the law itself was unjust in this instance. A less clear example is the case of Danny Bailor, from Peter Arenellas A Dialogue on the Ghetto Defense.6 Bailor was caught committing armed robbery and had no way to deny the fact. He attempted to make the ghetto defense, claiming that due to his upbringing, his background, his neighborhood, and various other facets of his personal situation, he did not have any meaningful choice in the action he committed. The case of Danny Bailor provides a far more difficult test for retributivist theory because the question of what punishment Bailor deserves is anything but clear. The central argument that Bailor makes is that he is not morally responsible for the conditions that generated [his] character. [His] defense is that [he] cannot be fairly blamed for becoming the sort of person who robs stores for a living.7 Although the example causes us to hesitate and question the intuitive belief that armed robbery is always a choice, especially if the perpetrator is not starving, Bailors ghetto defense eventually loses some of its credibility, providing Kant with reasonable grounds for punishing him. Bailor argues that his internal character, which caused him to rob a convenience store, was the inevitable product of the cultural deprivation [he has] suffered. This is an unreasonable standard to hold for several reasons. First, his decision to commit
6 7

PETER ARENELLA. A Dialogue on the Ghetto Defense. Id.

Datlof

61

armed robbery was not inevitable insofar as he had abstained from doing so for twenty-three years and because the vast majority of his neighbors who had suffered similar cultural deprivation had also made the conscious decision not to commit armed robbery. Furthermore, the defense is entirely based on probabilitythat is, according to Bailors defense, a somewhat elevated chance of making the wrong decision would exculpate him from any responsibility. If a mans father was a money-launderer and he had been exposed to such practices at a young age, thus elevating his chances of committing similar crime, it would not be a reasonable excuse to appeal to the fact that his father had exposed him to bad values. Growing up with different values and different propensities to commit crime does not mean that the choices individuals make do not have value, and does not mean that the law can assign culpability solely based on upbringing and experience. Moreover, the legal system would not be capable of functioning if it took up this extreme deterministic view. However, the difficulty of the case does not end here. Although Kant could argue for some punishment, he would have trouble arguing for the full sentence because although Bailor did technically have a choice, his choice was not the same as that of most citizens. Although not starving, he was truly disadvantaged, and in a meaningful sense less culpable for his actions than an average citizen would be, thus meriting a mitigated degree of punishment. If Jean valJeans complete lack of choice exonerated him of all culpability, then Bailors reduction of choice logically should at least mitigate his culpability. However, punishing the disadvantaged less severely raises issues of applicability and coherence of the law. The examples of both Jean valJean and Danny Bailor raise important questions about consent to a social contract and the veil of ignorance. A general stating of social contract theory says that individuals give up certain freedoms and rights to the authority of the state in exchange for protection against both external and internal threats. Thus both individuals and states are subjected to

62

WULRVol V, Issue IIISpring 2012

certain obligations, such as citizens following the law and states respecting the protected liberties of individuals, and certain rights, such citizens being protected and states receiving tax dollars. The idea of a social contract is latent in much of Rawls writing. In his theory of justice he searches for a social contract that rational people would willingly contract themselves into from behind the veil of ignorance. However, as Jeffrie Murphy suggests, even in the United States and Western Europe there are significant sections of the population for whom it is unclear that they would accept the proverbial social contract if given the choice: the Jean valJeans and the Danny Bailors of the world. One reason for this is that in many cases it is questionable whether or not the government is upholding its end of the bargain. As the social contract is an imaginary tool with no specific values or tenets, it is difficult to definitively say what constitutes an abrogation of a governments duties. However, when police forces refuse to enter certain disadvantaged neighborhoods, or when the economic prospects for some children can be said to be virtually nonexistent simply based on where they are born and the deficient public education that they received, it can reasonably be claimed that the governments obligation to protect its citizens has gone unmet. Thus, it is possible to question whether or not a government has the right to punish these members of society. If the obligation to protect and provide its citizens some reasonable opportunity for success or at least subsistence goes unmet, then the right to punish these citizens should also disappear. Furthermore, according to Murphy, (and Bonger, to whom Murphy is referring) these unmet rights and responsibilities create a vicious cycle, because criminality is economically based.8 Poverty leads to crime, since it decreases the number of choices people have available to them, making crime a relatively more appealing choice. Crime, in turn, leads to poverty, by sending members of poor families to jail, decreasing income, and increasing general risk within a community.
8

Jeffrie Murphy, Marxism and Retribution, 2 PHIL. & PUB. AFF. 217-243 (1973).

Datlof

63

This criticism of our traditional conceptions of justice forces consideration of difficult questions about the justifiability of current punishment regimes. One way to address these concerns would be to step behind Rawlss veil of ignorance and, with knowledge of the ghetto defense, look to what a rational actor would value. However, even this is not an easy task, given that our belief of what constitutes rationality can vary greatly. For instance, Rawls believes that individual greed characterizes the rational actor, with each person attempting to accumulate as much wealth as possible. Murphy questions whether or not such a simple accounting for rationality can suffice, asking Why, to take just one example, is a desire for wealth a rational trait whereas envy is not?9 The implication is that the characteristics by which Rawls defines rationality are in fact subjective, and perhaps designed to allow Rawls to come to his desired conclusions about what a just society looks like, consequently allowing him to defend large swaths of western liberal democracies in the status quo. Thus, while Rawls might defend punishment of individuals in a society where everyone is granted a basic level of rights and opportunities, and an upper class receives additional rights and opportunities, Murphy believes that this is too great a leap of faith. In any case, such a hypothetical society where all individuals are born with the same basic rights and opportunities does not exist and will not exist in the foreseeable future, and therefore policies that assume this theoretical society will always be flawed. The punishment regime that exists in the United States tries to put this assumption into practice, and as a result is not fair based on its utilitarian concerns that unjustly condemn the poor to a cycle of criminality. Frustratingly, reconciling theory and reality cannot be done in broad strokes. Another way of coming to terms with the problems of applying theoretical frameworks to reality is to examine a broad cross-section of existing societies. Of course, in some societies the
9

Id.

64

WULRVol V, Issue IIISpring 2012

types of punishment that are applied are unjust according to any of the common justifications, be they utilitarian or retributivist. For instance, when Robert Mugabe of Zimbabwe punishes someone based on a whim, the punishment serves neither retributivist aims nor utilitarian ends. If the punishment were arbitrary, the offender certainly did not deserve to be punished because he had no moral culpability and had caused no harm. Furthermore, arbitrary punishment does not serve to deter crime in the future, since it wasnt necessarily crime that was being punishedit only serves to engender fear within the society, which is a utilitarian loss for everyone. When proceeding to examine regimes more generally accepted as legitimate, the difficulty becomes clear. In the United States, as of October of 2011, the unemployment rate hovered around nine percent.10 Among the eighteen to twenty-four year old population, unemployment was even worse. Furthermore, about fifteen percent of the population was below the poverty line (set in 2011 at $22,350/year).11 These numbers have powerful implications for individuals and for the choices that they must make on a daily basis. Even if a young person in an inner-city defies the odds and graduates from high school, the dual facts that they are likely to be impoverished and that their chances of finding employment are appallingly low force difficult choices upon them. Through no fault of their own, some must consider the prospects of unemployment against criminal activity to be able to provide for themselves. While this may not be a situation akin to that of Jean valJean where someone will starve if the crime is not committed, for the state to tell an individual that she cannot be employed despite her desire to do so, and furthermore she must live in poverty because of this, is an unacceptable, yet common, burden for the state to put upon its
10

U.S. BUREAU OF LAB. STATISTICS, EMPLOYMENT SITUATION SUMMARY (2011), http://www.bls.gov/news.release/empsit.nr0.htm. 11 CARMEN DENAVAS. INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2010, U.S. BUREAU OF LAB. STATISTICS (2011), http://www.census.gov/prod/2011pubs/p60-239.pdf.

Datlof

65

constituents. This burden undermines the legitimacy of any punishment the state inflicts upon these individuals, at least from a retributivist standpoint. This is even the case in the societies closest to the ideal professed by Rawls. Norway, the country with the second-highest GDP per capita in the world, has thousands of homeless citizens.12 Yet it is hard to imagine a liberal democracy that more successfully cares for its disadvantaged, with stringent work laws, comprehensive universal healthcare, and equal rights to education among all citizens.13 Even in a case like Norway, living in the real rather than theoretical world means that there will always be some people who slip through the cracks and are unaccounted for by social safety nets. There will always be people who are without opportunities and prospects for self-improvement. The fact that even in societies where the greatest efforts are taken to protect the disadvantaged fall short of perfection and allow some individuals to be unaccounted for renders the retributivist system of punishment inadequate outside of the realm of pure theory. In the United States, homeless and impoverished people do not have the same range of choices as the rest of society and therefore should not be saddled with the same burdens and obligations. Therefore, their culpability must be at least somewhat, if not entirely, mitigated. But imagine a state, like the United States or Norway, that decided to only punish citizens based on desert; they decide they want to uphold a strict Kantian standard of ethics. This undertaking would prove absolutely unsustainable. If the poorest of the poor could commit any crime but have their culpability mitigated down to zero because they had neither
12 13

LIV KRISTENSEN, HOMELESSNESS IN NORWAY (2010). Norway's welfare model 'helps birthrate' BBC 28 Mar. 28 2006, http://news.bbc.co.uk/2/hi/europe/4786160.stm; See also Jason Shafrin, Health Care Around the World: Norway, HEALTHCARE ECONOMIST (2008), http://healthcareeconomist.com/2008/04/18/health-care-around-the-world-norway; NOR. MINISTRY OF EDUC. & RES., Norway, EDUCATION POLICY, http://www.norway.org/aboutnorway/society/welfare/mariannetest.

66

WULRVol V, Issue IIISpring 2012

meaningful choice in acting nor opportunities to raise themselves from their poverty before the fact, then there would be no legally protected interests in society. A person with property, earned through legal means, could not expect the state to protect his property because he would know that if a very poor person happened to steal from him, there would be little or no legal consequences. Even if the goods were to be returned to the owner upon the thiefs capture, the lack of punishment creates no deterrent and thus no reason for the thief not to try repeatedly until he evaded capture by the police. This too provides a problem, even behind the veil of ignorance. To understand this problem, a modified form of Rawls original position thought experiment can be examined. If one imagines him or herself behind the veil of ignorance, unaware of where he or she will end up in society, but with one piece of knowledge that did not exist in Rawlss original conception of the idea: the individual behind the veil knows that there will be some small number of people in society that the government is unable to provide for, cursed by chance to begin life at a severe disadvantage. Some of these people will be so poor as to be perpetually on the brink of survival. This is to say that any governmental scheme of wealth distribution would either not be forthcoming or simply be ineffective. With this knowledge, would a rational actor want private property to be protected? Or would a rational actor think that utility gained from the poors ability to steal outweighs the utility gained from the rest of societys knowledge that they can make stable investments and predictions about the future based on the knowledge that property is protected by the government? Of course, on the one hand, a rational actor would want the poor to be provided for at least up to some minimum standard. But at the same time, it is difficult to imagine a functional economy and a functional society without the protection of property; this protection is often considered one of the fundamental purposes of the social contract between the state and individuals. Though the question does not

Datlof

67

have a clear answer, one should not cede to temptation and dismiss it as pure philosophical abstraction. Many governments are incapable or unwilling to provide this minimal standard of living to their poor, and yet they do protect the property rights of those who hold wealth. This leaves the impoverished with no legal way to provide for themselves. The rest of this essay will analyze various possible grounds on which to deal with this dilemma. Rawls proposes one fascinating manner of thinking about a more legitimate conception of punishment, attempting to reconcile the conflict between retributivism and utilitarianism in his essay, Two Concepts of Rules. His overarching suggestion is that there is a fundamental difference between justifying a practice and justifying a particular action falling under it.14 In the instance of punishment, this would mean that a justification for the institution of punishment (the practice) could be different from the justification for individual punishments (actions falling under punishment) sentenced to offenders by judges and juries. Rawls believes that this distinction accounts for the intent of both the retributivist and utilitarian theories of punishment. With regard to the retributivists, his concepts of rules prevent the punishment of innocents even for the public gain because individual cases are dealt with on a retributivist basis. This point is greatly strengthened by Rawls deconstruction of the classic critique of utilitarian punishment theory explicated in the writing of Carritt: The utilitarian must hold that actors are justified in inflicting pain always and only to prevent worse pain or bring about greater happiness. This, then, is all they need to consider in so-called punishment, which must be purely preventive. But if some kind of cruel crime becomes common, and none of the criminals can be caught, it might be highly expedient, as an

14

John Rawls, Two Concepts of Rules, 64 THE PHIL. REV. 3-32 (1955), http://www.ditext.com/rawls/rules.html.

68

WULRVol V, Issue IIISpring 2012

example, to hang an innocent person, if a charge against him or her could be so framed that he or she were universally thought guilty.15 Rawls shows that in all likelihood even a utilitarian would not be able to justify this sort of action by drawing attention to the ambiguous nature of the actor in Carritts passage. Upon realizing that the actor must be an institution of some sort, it becomes more apparent that this sort of power would be unlikely to benefit society in the long run. The most important reason for this is that the institution would necessarily be required to operate in absolute secrecy. Otherwise, its deceptive actions would not fool anyone. However, this secrecy would undermine the democratic checks on institutionalized power that liberal societies hold dear. Rawls concludes, A utilitarian justification for this institution is most unlikely.16 Meanwhile, his concepts of rules also account for the intent of utilitarian punishment theorists. They do this by allowing the institution itself to be forward looking, just as the traditional utilitarians such as Bentham and Mill advocated. The state apparatus for punishment therefore ignores the logical extension of retributivist thought, that its essential purpose is to set up and preserve a correspondence between moral turpitude and suffering, and rather adopts utilitarian ends, while maintaining retributivist means.17 Although Rawls provides a compelling defense of the reconcilability of the two theories in a broad sense, Two Concepts of Rules falls short at the margins, and this shortcoming unravels the larger idea. By applying retributivist logic to individual cases and individual criminals, the case of the homeless thief remains unresolved. There is still a lack accountability for those who, based on personal circumstances, are less culpable of crimes they commit than the average person would. Therefore, it must be decided whether or not to utilize retributivist and utilitarian theories in
15

Id. Id. 17 Id.

16

Datlof

69

these instances. One might say that in order to maintain a sense of law and order, utilitarian logic must be applied in these instances, so that property may be protected. If this is the case, then Rawls distinction between justifying a practice and justifying cause by the practice is severely damaged insofar as it cannot be applied universally. However, one might also say that in order to treat individuals justly, retributivist logic must be applied, which would damage the utilitarian justification for the practice itself. According to Rawls, utilitarianism says, punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of the social order and that it must promote effectively the interest of society.18 The necessary degradation of property rights in this scenario would undoubtedly undermine social order and the general interest of society. While it is impossible to ascertain whether the gains to the poor would outweigh the harms to the rest of society, two considerations make this prospect unlikely. First, as mentioned previously, the benefits of strong protections of property rights can hardly be overestimated. They allow for more accurate predictions about the future, grounds for stable investment, a sense of security for individuals and for groups, an incentive to work-hard, and a sense of individual dignity and autonomy. The second consideration is that it would undermine the idea that similar cases should be treated alike. Although this principle is neither universally applicable nor accepted, it is generally seen as a way of promoting fairness and reducing arbitrary decisions within the judicial system.19 A legal determination that certain individuals would not be held responsible for their actions, even when their actions clearly broke the letter of the law, while other individuals would still be held
18

Id. David A. Strauss, Must Like Cases Be Treated Alike? 24 U. CHI. PUB. L. RES. (2002), http://ssrn.com/abstract=312180 or doi:10.2139/ssrn.312180; Andrei Marmor, Should Like Cases be Treated Alike? 4 U.S. CAL. L. & PUB. POL. RES. (2004), http://ssrn.com/abstract=618382 or doi:10.2139/ssrn.618382.
19

70

WULRVol V, Issue IIISpring 2012

responsible, fundamentally undercuts the ideal of treating like cases alike. Thus, while the distinction between the institution of punishment and specific instances of punishment does provide some degree of reconciliation between retributivist and utilitarian theories of punishment, it does not solve for the problem this paper seeks to address: how to deal with those who truly do not deserve punishment. Instead of attempting to bring the two theories of punishment together in order to justify current practices and situations within society, perhaps a more apt way to minimize the tension between them is to address the situations and practices themselves in order to minimize tension, rather than attempting to twist the theories to fit the world as we see it. One way to do this would be to reduce the number of people who can claim such a level of indigence that they might not be culpable for crimes they commit. However, it bears keeping in mind that even one homeless and sufficiently poor member of society causes philosophical inconsistency. Despite the fact that a perfectly coherent system is difficult imagine let alone create, this is not a reason to remain satisfied with the status quo. There are two potential paths toward creating a system that has less of a need to punish people for utilitarian, rather than retributivist, ends. The first is relatively straightforward: implement policies that increase social welfare in the United States, thus providing more equality of opportunity. If we can prevent people from starting in destitution and give everyone a reasonable chance at maintaining a life with self-dignity and economic stability. People then truly could be said to owe a debt to society when they break the social contract. Furthermore, people would be willing to contract into our society from behind the veil of ignorance. Policies that could be included in this progression toward a society more strongly based on social welfare include increased income and estate taxes on the rich, an improved healthcare system, stronger protection of labor rights, a reformed

Datlof

71

and functional social security program, and the availability of a useful education to all. The second way to move toward a more coherent regime of punishment is somewhat less concrete, and relies heavily on ideas and arguments put forward in the United States Supreme Court case San Antonio Independent School District v. Rodriguez (1973). The plaintiffs in the case, Demetrio Rodriguez and several other citizens of his school district, claimed, Texass system for financing public schools violated the equal protection clause of the Fourteenth Amendment because it discriminated on the basis of wealth.20 The decision issued by the Supreme Court would focus on two initial questions: how to define a suspect class, and whether education could be considered a fundamental right. A suspect class is a group of people that the courts recognize as particularly likely to be subject to discrimination and thus deserving of special protection in the eyes of the law.21 When granted the protection of suspect classification, the courts apply a standard of strict scrutiny in judging discrimination against the group. Strict scrutiny also is applied in any case where a fundamental right, particularly those enumerated in the Constitution, is violated. Applying a standard of strict scrutiny means that in order for a policy to be constitutional while treating the suspect class differently from other groups, it must be justified by a compelling governmental interest, be as narrowly tailored as possible toward achieving that interest, and use the least restrictive means available.22 In San Antonio Independent School District v. Rodriguez, the majority opinion of the Supreme Court written by Justice Lewis F. Powell decided that the poor were not a suspect class and that economic rights were not fundamental rights. The determination that the poor could not be considered a suspect class was based on
20 21

DAVID M. O'BRIEN, CONSTITUTIONAL LAW AND POLITICS. (7th ed. 2008). SUSPECT CLASSIFICATION Legal Information Institute. CORNELL L. SCH. (2010), http://www.law.cornell.edu/wex/suspect_classification. 22 Daniel Breen, The Fourteenth Amendment, Civil Liberties in America Lecture. Waltham, Mass. (Feb 8, 2010).

72

WULRVol V, Issue IIISpring 2012

the fact that there was no definitive description of the classifying facts or delineation of the disfavored class. Justice Powell additionally determined that education was not a fundamental right, stating, education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected . . .23 While the logic behind the decision is sound, there could also reasonably have been a decision in favor of Rodriguez. Had a majority of justices accepted Justice Byron Whites claim that it is not enough that the Texas system before us seeks to achieve the valid, rational purpose of maximizing local initiative; the means chosen by the State must also be rationally related to the end sought to be achieved, then the situations of the poor could be seen as far more legitimate based on a degree of equality of opportunity, and thus our punishment regime could be more defensible. There were indeed grounds for the justices to have come to the opposite decision, as evidenced by the four dissenting judges. First, Justice White showed that there was no meaningful choice for poor districts. He said, the Texas system utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable.24 Thus, the members of the disadvantaged school districts were discriminated against because there was no other way for them to obtain an acceptable education, the likes of which that would be on par with the education their peers were receiving in neighboring districts. Additionally, although the idea of what is a fundamental right is often unclear, there are strong grounds for saying education ought to be considered one. This is because education serves as a means to access other important rights. Justice William Brennan explains: Here, there can be no doubt that education is inextricably linked to the right to participated in the electoral process and to the rights
23 24

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Id.

Datlof

73

of free speech and association guaranteed by the First Amendment.25 If Americans value these rights, then all citizens should be provided with the meansan adequate educationto access those rights. Finally, although Justice Powell believed that classifying the poor as a suspect class was impossible, there are grounds to believe that it could and should have been done. The difficulty, Justice Powell suggests, stems from the fact that the group is large, diverse and amorphous.26 However, applying strict scrutiny to any class is difficult. There could be a minimum standard of wealth or access to education or living conditions that could be used as a proxy for severe and entrenched lack of opportunity that would afford certain individuals access to an additional level of legal protection. Just because fair treatment is difficult to administer does not make it justifiable to renege on a duty to provide it. Moreover, the specific reasons Justice Powell puts forth for refusing suspect classification to the poor are of questionable accuracy. He claims, [the class of the poor] have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.27 The Rodriguez case, along with Murphy essay Marxism and Retribution, Rawlss Theory of Justice, and endless empirical evidence show this to be false. Those born into poor households are less able to access their fundamental rights and therefore exercise less political power than the average citizens. They receive unequal treatment that can be seen from the type of education they receive to the expertise of the lawyers that defend them in a court of law. Most importantly, this is an historical inequity. Just as AfricanAmericans, Hispanics and women have been deprived of equal
25

Id. Id. 27 Id.

26

74

WULRVol V, Issue IIISpring 2012

treatment throughout long periods of American history, so too have those white Americans born into situations of financial destitution. While offering the poor the protection of a suspect class would be an imperfect solution, it would alleviate some of the philosophical inconsistencies of applying retributive punishment in a capitalistic society. Although both retributive and utilitarian punishment theories have powerful arguments in their favor, both become difficult to defend at the margins. In their purest forms, utilitarians must defend an exclusively forward-looking system without any regard for desert of punishment whereas retributivists must defend an exclusively backward-looking system without any regard for the practical outcome. It is telling that while Bentham and Kant may have defended these extremes, modern policymakers do not speak in such universal terms. They recognize that, given the realities of the world that we live in and the inadequacies of even the best laid plans, the goal of creating an efficient and happy society for the majority does not outweigh the sacrifices that would be required of those who are left behind. Therefore, it is best to attempt to prevent individuals from falling behind in the first place, provide for those who have fallen behind, and in the meantime realize that in the marginal cases a balance of the theories of punishment is necessary in order to achieve acceptable outcomes.

The Right to Sext:

Analyzing the Constitutionality of Juvenile Production and Transmission of Sexually Explicit Materials
By Melissa Danielle Duncan*
There has been a great dissonance in the legal approach to teen sexting. This paper argues that teen sexting should be encompassed and protected under the right to privacy as indicated by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The use of child pornography laws to address juvenile sexting is inappropriate when addressing the legality of juvenile sexting and often leads to a huge disparity in the ways in which juveniles are treated under the law. This paper interprets minors prerogative to legally sext as within the scope of their right to privacy as well as their freedom of expression under the First Amendment. This paper considers the advent of cellular phone and social media technology and how these influences directly alter the way in which todays juveniles interact and express themselves within society. Instead of prosecuting juveniles under inadequate child pornography laws, this paper advocates for comprehensive sex education that includes a discussion of the potential repercussions of sexting and enacting an age-gap provision in order to protect juveniles from real exploitation.
*Melissa Duncan is a rank four at The Ohio State University. She is majoring in English with a concentration in Pre-Law and a minor in Classical Humanities. She is expected to receive her B.A. in English by June 2012. After graduation, she plans to attend law school. While this is Melissas first law review she intends to further her research and understanding of the issue of sexting, in addition to other areas of concern.

76

WULRVol V, Issue IIISpring 2012

Table of Contents INTRODUCTION 76 I: THE RIGHT TO PRIVACY 77 Ia. Privacy, Legal Guardians Rights, and Juvenile Sexting 77 Ib. Child Pornography, Virtual Pornography, and Juvenile Sexting 79 II: TECHNOLOGY AND SOCIAL MEDIA 81 IIa. Social Influences of Texting and Other Social Media 81 IIb. Juveniles Understanding of Sexting 82 III: THE LEGAL CONSEQUENCE OF SEXTING 83 CONCLUSION 85 INTRODUCTION Since the growth in popularity of mobile technology, juveniles1 have been constrained, condemned, and restricted by laws that are neither explicitly focused on sexting,2 which is the act of sending sexually explicit messages, nor is it sufficient for addressing the issue. These laws have been used to punish behavior that has been deemed inappropriate for individuals under the age of eighteen. A common consequence is sentencing minors with felony charges under child pornography laws3 and requiring juveniles to register as sex offenders.4 Due to the extremely detrimental effects of the rulings, new policies must advocate for the acceptance of sexting among juveniles as a part of their right to privacy, under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.5 Currently, the discussion surrounding juvenile sexting focuses
1

For the purposes of this article, juveniles are categorized as males and females ages 12 to 17. 2 The term sext is a compilation of two words: sex and text (also seen as sexter and sexting). Sexting is the sending of sexually explicit videos, images, and/or text when using a mobile device. However, the main form of sexting dealt with in this article is the sexually explicit images sent through mobile devices. 3 New York v. Ferber, 458 U.S. 747, 764-65 (1982). See also, Miller v. California, 413 U.S. 15, 24 (1973). 4 Glen A. Kercher & Brittany Logino Smith, Adolescent Sexual Behavior and the Law, CRIME VICTIMS INSTITUTE, CRIMINAL JUSTICE CENTER, & SAM HUSTON STATE UNIVERSITY, http://www.crimevictimsinstitute.org/documents/Adolescent_Behavior_3.1.11.pdf. 5 Griswold v. Connecticut, 381 U.S. 479 (1964).

Duncan

77

primarily on inconsistencies in sentencing, the methodology of those sending sexually explicit messages, as well as the pursuit of remedies, that will provide consistent resolutions to the issue of sexting for juveniles.6 While a small portion of this article will discuss the disparity in sentencing among juvenile offenders, the goal of this paper is to shift the discussion away from why juvenile sexting is injurious or inappropriate. Instead, it will place the act of sexting for minors within their right to sexual privacya right that juveniles currently hold in the United States.7 In order to substantiate the claim that sexting should lie within the right to privacy, this paper will examine how texting and social media have infiltrated teen culture as a burgeoning method by which to express oneself. The new technologies of texting and social media are used as avenues to send sexually explicit media and thus should also be included under the first amendment right to freedom of speech.8 PART I: THE RIGHT TO PRIVACY Ia. Privacy, Legal Guardians Rights, and Juvenile Sexting Crucial to advocating for juveniles legal right to sexting is an understanding of the right to privacy. While the right to privacy is not explicitly stated in the United States Constitution, it is a fundamental right held by citizens.9 It is understood that no state can violate the liberties, including the right to privacy, of any person without due process of the law. This concept can be applied to sexting. To begin, the landmark case Griswold v. Connecticut sets

Julia H. McLaughlin, Crime and Punishment: Teen Sexting in Context, 1 PENN ST. L. REV. 115 (2010). See also, Jordan J. Szymialis, Sexting: A Response To Prosecuting Those Growing Up With A Growing Trend, 1 IND. L. REV. 44 (2010). See also, Stephanie G. Forbes, Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases, 1 WILL AND MARY. L. REV. 52 (2010). 7 U.S. CONST. amend. XIV. 8 U.S. CONST. amend. I. See also, U.S. CONST. amend XIV 1. 9 Id.

78

WULRVol V, Issue IIISpring 2012

the precedent of an implicit right to privacy.10 Griswold v. Connecticut established that there are certain aspects of private relationships, such as contraception, that are outside of governmental regulation and interference. This ruling can be applied to juveniles who send sexually explicit material. Due to the fact that sexual privacy is considered an extension of a citizens right to privacy, sexting could legitimately be considered a sexual right that should be protected for juveniles. The secondary importance of this case lies in the rationale behind substantive due process.11 While the majority of the public may deem juvenile sexting inappropriate or unlawful, the Court can find that the widely held belief that it is necessary to hold juveniles accountable for sexting is "not law," as Justice Harlan expresses in his concurrence in Griswold.12 Therefore, sexting cannot be ruled as illegal or unconstitutional based solely on public opinion deciding that juvenile sexting is unlawful. Juvenile sexting could be regarded as either a public action that must be regulated by the government for the welfare of minors, or as an action that falls outside of governmental regulation under substantive due process protection against majoritarian policy. This paper argues for the latter view. Despite certain limitations, there have been instances where juveniles access to constitutional rights has been further codified. In Tinker v. Des Moines, it was held that students do not shed their constitutional rights when on school grounds. This decision confirms that minors are protected under the First and Fifth Amendments.13 Thus, it can be recognized that juveniles have
10

Griswold v. Connecticut, 381 U.S. 479 (1964). See also, Eisenstadt v. Baird, 405 U.S. 438 (1972). 11 Substantive due process is a theory of the law in which the courts have the ability to enforce limits on legislative and executive powers and authority. This can most directly be seen in the due process clause of the fifth and fourteenth amendments. Substantive due process establishes boundaries between actions that are subject to regulations and those actions that are not subject to regulations. 12 Griswold, 381 U.S. 479. 13 Tinker v. Des Moines, 393 U.S. 503 (1969).

Duncan

79

the right to express themselves. Juveniles who freely choose to express themselves by sending sexually explicit material should be afforded the same privileges as a function of their constitutional rights.14 In this way, the precedent set by both Griswold v. Connecticut and Tinker v. Des Moines can be applied to sexting. When juveniles freely decide to send explicit or suggestive material, the consequences of sending that material should apply solely to the juvenile15 and should be protected. Additionally, guardians have a significant role in terms of deciding what influences their children are exposed to. When sexting occurs, precedent demonstrates that legal guardians and not the state should decide the minors consequences. In Philadelphia, the Third Circuit Court affirmed that the role of the legal guardian is greater than the role of the state regarding appropriate punishments for sending sexually explicit text messages, in saying that an individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles.16 In this case, a District Attorney had chosen the punishment for the girl in question, similarly to the sentencing in many other sexting cases. This ruling was not upheld, setting a precedent that decisions regarding appropriate punishment should be the responsibility of the legal guardian and not the state.17 Ib. Child Pornography, Virtual Pornography, and Juvenile Sexting In order to recognize why child pornography laws are applied to juveniles who send sexually explicit material, it is critical to understand child pornography laws in relation to the U.S.
14

See Miranda Jolicoeur & Edwin Zedlewski, Much Ado About Sexting, NATIONAL INSTITUTE OF JUSTICE, (2010), https://www.ncjrs.gov/pdffiles1/nij/230795.pdf. 15 Id. 16 Appeals Court Rejects Prosecution Threat in "Sexting" Case, CRIME REPORT (2010), http://thecrimereport.org/2010/03/18/appeals-court-rejects-prosecution-threat-insexting- case/. 17 Id.

80

WULRVol V, Issue IIISpring 2012

Constitution. In New York v. Ferber, the Court ruled that child pornography is outside of the range of protections afforded by the First Amendment due to child pornography's harmful effect on juveniles.18 Even if the images of the child depicted are not categorized as obscene within the guidelines of New York v. Ferber, any image of a juvenile engaging in a sexual act must be confiscated.19 These laws also attempt to curtail the dissemination and distribution of pornographic videos featuring children.20 While child pornography is not protected by the First Amendment, these laws are still held accountable constitutionally due to the fact that these laws must have a narrow scope and cannot be catch-alls.21 Child pornography laws were not meant to be applied in sexting cases and thus represent exceptions to the rule of the First Amendment. While child pornography laws are useful for punishing those who exploit children, applying these laws to juveniles who choose to sext is a violation of their constitutional rights. It is important to consider the influence of virtual pornography digitally created images of minors engaging in sexually explicit actson child pornography's legal status.22 In Ashcroft v. Free Speech Coalition, the Child Pornography Prevention Action was deemed unconstitutional due to its broad terms and attempts to restrict virtual child pornography.23 This demonstrates that the real issue lies within direct abuse caused to non-virtual minors. Virtual pornography lies within the boundaries of a citizens first amendment right to freedom of speech because the image does not
18

New York v. Ferber, 458 U.S. 747 (1982). Id. 20 Id. at 759. 21 Id. at 758; JOLICOEUR & ZEDLEWSKI, supra note 14. 22 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). 23 This act added two categories of speech to the definition of child pornography. The first referenced any visual depiction, as well as computer-generated images, which depict a minor appearing to engage in pornography. The second category prohibited any sexually explicit image that advertised, promoted, presented, described, or distributed that promotes the impression of a minor depicted in a sexually explicit act. The CPPA was denied as illegitimate in Ashcroft v. Free Speech Coalition.
19

Duncan

81

depict an actual child.24 If a juvenile freely chooses to send a sext of him or herself, no abuse or coercion has taken place. Teens that choose to send sexually explicit material absent of coercion should fall under a similar legal category as virtual pornography. Producing a sexually explicit image of oneself meets a sufficient condition in order to be protected under the First Amendment. Another difference lies within the representation of minors in virtual pornography versus when sexting. While virtual pornography does not depict an actual juvenile, sexting does. Due to this fact, juveniles are prosecuted using child pornography laws. However, one of the reasons disseminating and distributing child pornography is illegal is due to the profit gained from the exploitation of a child.25 Juveniles receive no financial gain when sending or resending a sexually explicit image, leaving this point as a broad inclusion under child pornography laws. Due to the unconstitutionality of broad terms in child pornography laws, sexting must be assigned within a juveniles freedom of speech. PART II: TECHNOLOGY AND SOCIAL MEDIA IIa. Social Influences of Texting and Other Social Media Technology plays an undeniably large role in todays society. According to The Pew Research Center, seventy-five percent of teenagers own cell phones and eighty-eight percent of teen cell phone users text.26 Text messaging is the primary way that teens contact friends on a daily basis, with phone calls being a close second.27 As the number of teens who text rises, the amount of texts they send rises as well. Researcher Amanda Lenhart explains that one in three teens sends more than one hundred text
24 25

Id. at 241-242; JOLICOEUR & ZEDLEWSKI, supra note 14. Ashcroft, 535 U.S. 234, 757 (2002). 26 AMANDA LENHART, Teens, Cell Phones and Texting, PEW RESEARCH CENTER PUBLICATIONS (2010), http://pewresearch.org/pubs/1572/teens-cell-phones-text-messages. 27 Id. (Fifty-eight percent of all teens use text messaging as either sole or a combination of communication on a daily basis.).

82

WULRVol V, Issue IIISpring 2012

messages a day, or three thousand texts a month.28 On the University of New Hampshire website, Alexia Corbett, a researcher, explains interaction with cell phones: people will use their cell phones at appropriate and inappropriate times, simply to satisfy a social urge/want/need.29 The University of Utah conducted a study on how many people in the US either text or email while driving. Teens text the most while driving, at a staggering fifty-one percent.30 While driving can be categorized as an inappropriate time to text, the action of texting has become ingrained into societal culture in a way that the urge to text overrides the inappropriate context of texting while driving. As the use of social media becomes part of teens lives alongside cell phones and texting, it becomes clear how these factors will play an almost inescapable role in teens emerging sexuality, since communication is key in establishing connections. IIb. Juveniles Understanding of Sexting With this understanding of the extent to which juveniles are connected to technology and social media, it is important to consider how many juveniles allow these factors to influence their decisions concerning sexting. In 2008, Cosmogirl.com31 began collecting research with the National Campaign to Prevent Teen and Unplanned Pregnancy.32 According to their study, twenty percent of teens overall have sent or posted nude or semi-nude
28

Id. ALEXIA CORBET, Cellular Phones Influence(s) and Impact(s) On Social Interactions and Interpersonal Relationships, UNIVERSITY OF NEW HAMPSHIRE (2009), http://www.unh.edu/sociology/media/pdfs-journal2009/Corbett2009.pdf. 30 Texting While Driving Statistics Infographic, THE INFOGRAPHICS SHOWCASE (2012), http://www.infographicsshowcase.com/driving-while-texting-infographic/. 31 Cosmogirl.com is a magazine published as a spin off on Cosmopolitan. Cosmogirl.com worked alongside The National Campaign to publish the first study of its kind to quantify the number of teens and young adults that were sending sexually suggestive texts and images. 32 National Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech: Results From a Survey of Teens and Young Adults (2008), http://www. thenationalcampaign.org/sextech/PDF/SexTech_Summary.pdf.
29

Duncan

83

pictures or videos of themselves. Moreover, thirty-nine percent of all teens are sending or posting sexually suggestive messages.33 In order to better understand why teens are sexting, researchers asked the participants the reasons behind sending a sext.34 While a few answers were discussed, the most popular response among teens involved sending a sext to accompany an existing relationship. When asked if they understood the consequences of sending a sexually explicit message, forty-four percent of both juvenile males and females understood that the sext might be "shared with someone other than the intended recipient.35 Cosmo Girl and the National Campaign suggest that in fact, teens do recognize the repercussions of sexting.36 Instead of sending sexually explicit content from one juvenile to another on a whim, it appears that juveniles are weighing their options. As juveniles are making informed decisions about their choice to send sexually explicit material, it seems that juveniles who send such material are aware of the consequences involved. PART III: THE LEGAL CONSEQUENCES OF SEXTING During the past two decades there have been several court cases aimed at deterring juvenile sexting. These cases impose harsh penalties on juveniles who are caught transmitting sexually explicit materials. In order to understand these cases, it is important to examine how courts are charging juveniles regarding sexting. In the application of child pornography laws to sexting, it is important to remember that the First Amendment does not protect child pornography.37 Currently, even if the juvenile has taken a picture of him or herself, the ability to send that picture is within the scope of

33

Id. (Messages include the content of a text message well). Id. 35 Id. 36 Id. 37 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002).
34

84

WULRVol V, Issue IIISpring 2012

child pornography laws.38 Sentencing minors in sexting cases often results in minors being charged as adults. Despite the juveniles intent and use of informed decision-making, his or her actions often result in severe punishments. In State v. A.R.S.,39 a case involving minors, it is clear that the court was willing to ignore the intended purpose of child pornography laws, which is to protect minors, by instead choosing to prosecute the minors as adults.40 Similarly, in Miller v. Mitchell, the District Attorney of Wyoming County in Pennsylvania presented teens suspected of sexting with a choice: either attend an education program designed by the District Attorney in conjunction with two other agencies or face felony child pornography charges.41 These are two drastically different options and effectively illustrate the unfair and reprehensible nature of the current treatment of juveniles who engage in sexting. It appears that the district attorneys as well as the courts are unable to decide whether the plaintiffs in sexting cases are minors or adults. If convicted under child pornography laws, the three plaintiffs in Miller would have to register as sex offenders for at least ten years.42 There is an inconsistency that reoccurs throughout the prosecution of juveniles in sexting cases. These juveniles must be protected from the exploitation of predatory adults. However, it is the minors who are creating and sending sexually explicit images. The courts cannot consider the plaintiffs in sexting cases to be both simultaneously minors and adults. If minors can be prosecuted as adults in the courtroom, they should be afforded their legal rights as adults in society as well. This legal ambiguity cannot be tolerated and only serves to harm the minors charged under child pornography laws, directly opposite of the laws intended effect. Thus, instead of working within the strict
38

Id. at 249. State v. A.R.S., 684 So.2d 1383, 1387 (Fla. Dist. Ct. App. 1996). 40 Id. at 1384. 41 Miller v. Mitchell, 598 F.3d 139, 142 (3rd Cir. 2010). 42 Miller v. Skumanick, 605 F. Supp. 2d 634, 63739 (M.D. Pa. 2009).
39

Duncan

85

confines of a binary between minor and adult, juveniles should be afforded the ability to sext without legal recourse based on their innate right to privacy. CONCLUSION The real issue that lies within juvenile sexting is the denial of rights to those teens who choose to transmit sexually explicit material. In adapting and applying child pornography laws to fit the context of sexting, these laws are used inappropriately and infringe on minors right to privacy. Due to this misuse of child pornography laws, the net effect upon minors is harmful, which is the opposite of the original intent of these laws. Alternatively to how sexting cases are being handled currently, juveniles should be afforded their legal rights. In order to protect those juveniles who choose to exercise their right to privacy through sexting, a possible solution may be implementing a system akin to age-gap provisions.43 While it is acceptable for juveniles ages twelve to seventeen to sext one another, it becomes unacceptable when one party is within this age range and the other party is outside. This age range is appropriate because it places safeguards on the protection of juveniles from exploitation, but simultaneously preserves their right to privacy. It is important to protect the minors of America from exploitation, yet limiting their freedoms based on speculative outcomes is unconstitutional. When teens sext other teens within the proposed age-range, their choice and their rights to privacy and free speech should be respected.
43

KERCHER & SMITH, supra note 4, at 9 (If the victim is at least 14 but less than 16 years of age and the person convicted of child molestation is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2. In using age-gap provisions, which are based off of statutory rape laws, instead of enforcing lesser punishments on those who are within four years of age to the underage party, the idea of placing in age ranges of acceptability should be adapted to sexting. Therefore, instead of lessening penalties for those who sext in the age range of 12-17, this age-range should be informed of their risk when sexting and be allowed to express themselves.).

86

WULRVol V, Issue IIISpring 2012

In order to assure that every teen who chooses to sext understands that the image they send can be shared with a third party, we need to educate our juveniles through methods such as comprehensive sex education. Punishing minors with consequences that are detrimental to their future is neither an intelligent nor constitutional approach to sexting. By giving juveniles the information they need to understand sexting before they choose to do so, we can insure that minors understand the consequences of their actions and will be placed into proper legal categories.

The Regulation of Firearms After Heller

By Alexander Fullman*
This short paper examines the impact of the Supreme Court decision in the case District of Columbia v. Heller, which held that the Second Amendment contains a fundamental right to bear arms irrespective of militia service. Although some have predicted that the case would have a profound impact on gun control laws throughout the United States, the decision has contributed to the downfall of the only the most stringent of gun regulations. This minimal impact to gun regulations is primarily the result of the decision which declined to specify a level of scrutiny for analyzing gun control laws, and which listed multiple state interests for regulating firearms. Accordingly, the majority of gun control laws in the United States appear safe despite this ruling.
*Alexander Fullman studies at the University of Southern California, and is expected to graduate with a Bachelor of Arts in Political Science and Phi Beta Kappa in 2013. He is currently the Editor-in-Chief of the USC Journal of Law and Society and past president of the USC Blackstonians Pre-Law Honor Society. Alex was also chosen to represent the University of Southern California as a 2011 - 2012 Presidential Fellow at the Center for the Study of the Presidency and Congress. He has received grants to research the Supreme Courts campaign finance ruling Citizens United v. Federal Election Commission, and he is currently researching the impact of Citizens United and social media on small donations to political campaigns.

88

WULRVol V, Issue IIISpring 2012

Table of Contents INTRODUCTION I: THE PRE-HELLER JURISPRUDENCE II: COMPETING INTERPRETATIONS OF THE SECOND AMENDMENT III: HELLER AND ITS CONSEQUENCES IV: CONCLUSION

88 89 94 95 101

INTRODUCTION
In his seminal 1970 piece America as a Gun Culture, the famous American historian Richard Hofstadter noted that the United States has a tradition and culture of gun ownership that continues to this day.1 A large number of Americans own guns: indeed, a 2001 survey found that thirty-one percent of Americans own some form of firearm.2 Due to the huge gun presence in American society, significant debate exists over the constitutionality of regulating firearms in the United States. The heart of the debate lies in differing interpretations of the Second Amendment to the United States Constitution. The Amendment states, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.3 Proponents of gun ownership assert that the Second Amendment prohibits the government from passing legislation that limits the ownership and possession of firearms. On the other hand, supporters of firearm regulation argue that the Second Amendment limits the constitutional right to bear arms only in conjunction with militia service, and that the government is therefore constitutionally permitted to enact gun
1

RICHARD HOFSTADTER, AMERICA AS A GUN CULTURE (Lee Nisbet ed., New York: Prometheus Books 2001). 2 Gun Ownership by State, THE WASH. POST, May 26, 2006 at A12, http://www.washingtonpost.com/wpdyn/content/article/2006/05/29/AR2006052900755.html. 3 Sarah Perkins, District of Columbia v. Heller: The Second Amendment Shoots One Down, 70 LA. L. REV. (2010).

Fullman

89

control legislation given the absence of militias in the United States in the twenty-first century. Until recently, the Supreme Court had never explicitly resolved this constitutional question. However, in 2008, the Supreme Court decided the case District of Columbia v. Heller, which held that the Second Amendment contains a fundamental right to bear arms irrespective of militia service.4 Although some believe that this decision will have profound consequences for gun control legislation, the decision is unlikely to substantially impact existing gun control laws in the United States. This paper begins by discussing the unique structure of the Second Amendment and the three Second Amendment cases decided by the Supreme Court before the 2008 Heller decision. The second part describes competing interpretations of the Second Amendment that emerged in seventy years preceding the Heller decision. Part III discusses the Heller decision, and suggests that the case is unlikely to lead directly to the downfall of large numbers of gun control regulations. Part IV concludes by noting that future cases expounding upon the principles in Heller are far more likely to impact gun control measures in the United States.

PART I: THE PRE-HELLER JURISPRUDENCE

The British Army was viewed with distrust during colonial times, and many colonists believed that the British had infringed upon their personal liberties, especially through military force. Accordingly, early Americans feared that the new national government might create a standing army that, like the British forces, would infringe upon their individual liberties. Because state militias were thought to be a means of protecting the rights of citizens, the Second Amendment was created to safeguard the militia system and thereby provide a check on the powers of a
4

District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

90

WULRVol V, Issue IIISpring 2012

standing army.5 Accordingly, most colonies (and states after the separation from England) required virtually all white men to keep arms and serve in the local militia.6 However, as the militia system deteriorated during the nineteenth century and began to be replaced by the National Guard, questions as to the meaning of the Second Amendment and its application in a militia-less country began to emerge.7 As Justice Antonin Scalia has observed, the structure of the Second Amendment is unique in our Constitution.8 Unlike the other amendments in the Bill of Rights, the Second Amendment contains a prefatory clause, A well-regulated Militia, being necessary to the security of a free State, in addition to the operative clause, the right of the people to keep and bear Arms, shall not be infringed. The unique presence of the non-operative prefatory clause and its impact on the operative clause has generated significant debate and fostered conflicting interpretations as to the meaning of the Second Amendment. When various levels of government began to implement legislation impacting gun ownership over the course of the twentieth century, debate arose as to whether or not these laws were permitted by the Second Amendment. The overarching question became: Does the Second Amendment limit the right to keep and bear arms to militia service, or does the right to bear arms exist irrespective of militia service? The answer to this question directly affects whether or not the government may pass legislation regulating and restricting firearm possession and ownership in the United States. When there are constitutional ambiguities, it is the role of the judiciary to resolve them and interpret the Constitution. Yet Second Amendment challenges have rarely appeared on the
5

Madisons Mistake? Judicial Construction of the Second Amendment, in KAREN O'CONNOR & GRAHAM BARRON, THE CHANGING POLITICS OF GUN CONTROL (John M. Bruce & Clyde Wilcox eds., Lanham, Maryland: Rowman & Littlefield Publishers 1998) [hereinafter OCONNOR]. 6 Id. at 75. 7 SAUL CORNELL, A WELL-REGULATED MILITIA (Oxford Univ. Press, USA 2006). 8 Heller, 128 S. Ct. at 2789.

Fullman

91

Supreme Courts docket. Before 2008, the Supreme Court had only heard three cases that directly involved the interpretation of the Second Amendment.9 However, none of these three cases extensively addressed the overarching question of the relationship between militia service and the right to bear arms in the Second Amendment, thereby leaving the jurisprudential debate unresolved. The first case to involve the interpretation of the Second Amendment did not come until eighty-four years after the Second Amendments passage. In 1875, the Supreme Court heard the case United States v. Cruikshank, which involved a conspiracy indictment against several white defendants accused of preventing two African-American men from exercising their right to bear arms.10 The Courts decision, however, gave little guidance as to the meaning of the Second Amendment. Although the Court found that the Amendment protected gun ownership for lawful purposes, the Court held that the Second Amendment would apply only to the federal government, explicitly stating, This is one of the amendments that has no other effect than to restrict the powers of the national government.11 The Courts narrow decision was focused largely on the power of the federal government to enact gun control regulations and whether or not the Second Amendment applied to the states, and avoided the broader constitutional question of whether the right to bear arms was contingent upon a militia service. Thus, individuals on both sides of the debate could point to Cruikshank to support their particular view of the relationship between the right to bear arms and militia service, and the decision provided little clarity towards the meaning of the Second Amendment.
9

Other cases have mentioned or involved gun control laws without ruling on the interpretation of the Second Amendment. For example, in the 1995 case United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court ruled that the Gun-Free School Zones Act of 1990, which prohibited individuals from carrying arms in school zones (defined as the area within 1000 feet of a school), exceeded Congresss power under the Commerce Clause and was therefore unconstitutional. 10 United States v. Cruikshank, 92 U.S. 542 (1875). 11 Id. at 553.

92

WULRVol V, Issue IIISpring 2012

The second case, Presser v. Illinois was decided in 1886. Herman Presser was convicted of violating a section of the Illinois Military Code that forbade citizens without a license from forming armed groups outside of the official state militia.12 Presser challenged the statute as an unconstitutional violation of the Second Amendment. The Supreme Court, however, held that the challenged section of the Illinois Military Code did not violate the Second Amendment because the law did not prevent individuals from joining the Illinois militia.13 The Courts decision was consistent with Cruikshank in finding that the Second Amendment did not apply to the states; however, the Presser decision went on to hold that the Second Amendment was intended to ensure that the government could not prevent individuals from participating in militia service. This pronouncement, however, was frivolous: Presser had never been denied the right to join the militia, and as militias gradually disappeared, the right to join a militia became correspondingly less useful. Moreover, even if the Second Amendment prohibits the government from preventing participation in militia service, the ruling failed to discuss whether or not the right to bear arms exists for individuals unconnected to a militia. Thus, Presser did little to settle the debate over the interpretation of the Second Amendment in the absence of militias. The third and final case was United States v. Miller, which was decided in 1939 and involved a challenge to the National Firearms Act of 1934.14 Jack Miller had been convicted of violating the Act by transporting a shotgun with a barrel measuring less than eighteen inches in length across state lines.15 Miller challenged his conviction on the grounds that the Act violated his Second Amendment right to bear arms. The Supreme Court disagreed with Miller, holding the Act in question did not violate the Second
12 13

Presser v. Illinois, 116 U.S. 252 (1868). Id. at 264. 14 United States v. Miller, 307 U.S. 174 (1939). 15 Id. at 178.

Fullman

93

Amendment as it did not prevent citizens from participating in militia service. Because Millers shotgun was not considered a weapon that would be used for service in the militia, but rather a modified shotgun that could only be used for nefarious purposes, the Court held that the Second Amendment did not protect Millers right to possess the shotgun. The Courts decision again sidestepped a direct ruling on the meaning of the Second Amendment, indicating only that it was not likely to protect weapons clearly designed for unlawful purposes.16 Miller, however, offered one innovation to the Courts Second Amendment jurisprudence. Rather than distinguishing between which individuals were entitled to bear arms under the Second Amendment, as Cruikshank and Presser had done, the Miller decision focused on the type of weapon in question. The Miller opinion thus implied that the Second Amendment afforded protection only to those weapons associated with militia service (thereby excluding protection to weapons not associated with militia service, such as handguns), but did not find that the Second Amendments protection was limited to individuals serving in the militia. Because the Supreme Court had failed to rule directly on the relationship of the right to bear arms and militia service under the Second Amendment in Cruikshank, Presser, or Miller, when the Supreme Court heard oral arguments in District of Columbia v. Heller on March 18, 2008, the meaning of the Second Amendment was ambiguous and largely unsettled. Cruikshank, Presser, and Miller had left the Courts Second Amendment jurisprudence in a murky state with respect to the relationship between militia service and the right to bear arms. By directly answering this question, the Supreme Court was set to resolve the significant debate that emerged over the meaning of the Second Amendment.

16

OCONNOR, supra note 5, at 80.

94

WULRVol V, Issue IIISpring 2012

PART II: COMPETING INTERPRETATIONS OF THE SECOND AMENDMENT

In the seventy years between Miller and Heller, a sea of legal scholarship devoted to the Second Amendment emerged, particularly during the second half of the twentieth century, as the political debate over gun control became increasingly prevalent.17 Two basic theories emerged, with scholars and judges divided as to the meaning of the Second Amendment in light of the Supreme Courts limited and muddled jurisprudence. Each theory arrives at a different conclusion and carries separate implications for the right to bear arms. The first theory is the collective right model, where the right to keep and bear arms is tied to militia service. This theory, which characterizes the Second Amendment as the right to have militias,maintains that the prefatory clause limits the scope of the operative clause to the maintenance of a well regulated Militia.18 The collective rights theory maintains that in the absence of militias in the United States, the Second Amendment has become anachronistic and is no longer applicable to modern society and does not prevent the government from regulating the use and possession of firearms. Proponents of the collective right approach point particularly to the portion of the Presser decision that held that the Second Amendment was intended to ensure that the government could not prevent individuals from participating in militia service for support, and vehemently deny the existence of any individual right to bear arms in the Second Amendment outside of the context of militia service.19 The second theory is the individual right model, where the right to bear arms exists irrespective of militia service.
17

PERKINS, supra note 3, at 1063. WILLIAM WEIR, A WELL REGULATED MILITIA: THE BATTLE OVER GUN CONTROL (New Haven, Connecticut: ArchonBooks 1997). 19 PERKINS, supra note 3, at 1064.
18

Fullman

95

Proponents of this interpretation maintain that the Second Amendment contains a fundamental and individual right to keep and bear arms irrespective of militia service. Individual right theorists believe that while the prefatory clause announces a purpose for the Second Amendments operative clause, it does not limit the scope or function of the operative clause. For individual right proponents, the operative clause unequivocally grants all individuals the right to keep and bear arms, and government attempts to restrict gun ownership or use are unconstitutional violations of the Second Amendment.

PART III: HELLER AND ITS CONSEQUENCES

Without definitive judicial guidance from the Supreme Court, the meaning of the Second Amendment remained unclear for nearly seventy years. In 2008, however, the Supreme Court finally rendered a decision on the proper interpretation of the Second Amendment in the case District of Columbia v. Heller, which held that the Second Amendment involves a right to bear arms irrespective of militia service. Heller arose as a result of a challenge to a series of District of Columbia statutes. A first statute required tha t all firearms be registered but imposed a blanket prohibition on the registration of handguns unless a license had been issued by the chief of police.20 Another restriction required that any lawfully owned firearm be kept disassembled or bound by a trigger lock unless the firearm was kept in a place of business or used for lawful recreational purposes, thereby rendering most firearms inoperable and leading the Supreme Court to render the regulations a ban on firearms. The plaintiff in the case, Dick Heller, was a licensed police officer for the District of Columbia, and was thereby authorized to carry a gun while on duty. However, under the District of Columbia
20

Id. at 1066.

96

WULRVol V, Issue IIISpring 2012

Firearms Control Regulation Act of 1975, he was prohibited from keeping a handgun in his home for self-defense purposes. Heller applied for a registration certificate for a handgun he wished to keep at his home, but the District refused due to the prohibition on the registration of handguns. Heller filed suit in federal court, seeking to enjoin the city from enforcing the ban on the registration of handguns. The federal district court dismissed the lawsuit and denied Heller injunctive relief, as the court did not recognize an individual right to bear arms outside the context of militia service.21 On appeal to the D.C. Circuit Court of Appeals, the district courts decision was reversed in a two-to-one decision that held that the Second Amendment does protect the individuals right to keep and bear arms, and that the D.C. statute violated the Second Amendment.22 The District of Columbia appealed the decision to the Supreme Court, which granted certiorari to decide the question, Whether [provisions of the D.C. code] violate the second amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?23 The Supreme Court issued a ruling affirming the D.C. Circuit Court of Appeals decision, thereby selecting the individual right model over the collective right interpretation and ruling that the Second Amendment contained a fundamental right to keep and bear arms. As Justice Scalias majority opinion held, There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.24 Justice Scalias opinion stressed that this individual right to possess a

21

Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C. 2004). Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). 23 UNITED STATES SUPREME COURT, DISTRICT OF COLUMBIA V. HELLER: QUESTIONS PRESENTED (2007), http://www.supremecourt.gov/Search.aspx ?FileName=/docketfiles/07-290.htm. 24 District of Columbia v. Heller, 128 S. Ct. 2799 (2008).
22

Fullman

97

firearm exists irrespective of militia service, thereby continuing to provide protection to gun owners in the post-militia world. In a dissenting opinion joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg, Justice Stephen Breyer envisioned unfortunate consequences that todays decision is likely to spawn. Not least of theseis the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States.25 Contrary to this belief, the downfall of firearm regulations in the United States as a result of Heller is unlikely to occur, since the Heller decision left unsettled many issues related to the newly declared fundamental right to bear arms. Admittedly, the Heller decision carries symbolic significance. After seventy years without a definitive answer from the Cruikshank, Presser, and Miller decisions, the Court had explicitly ruled that individuals have the right to bear arms outside of the context of militia service, and that the fundamental nature of this right prohibits the government from enacting sweeping legislation banning the possession of firearms. Heller was instantly hailed as a landmark decision and attracted significant media attention.26 Yet despite the symbolic significance of the decision and Justice Breyers prediction, the case alone has not had and is unlikely to have a significant impact on existing gun control regulations in the country. The Supreme Courts decision in Heller explicitly declined to settle all of the jurisprudential questions that arise when the Court identifies a fundamental right. Justice Scalias majority opinion for the Court held, Since this case represents this Courts first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.27 The Court declined to establish a standard of judicial scrutiny for lower courts to employ
25

Id. at 2780. Robert Barnes, Justices Reject D.C. Ban on Handgun Ownership, 2008 Wash. Post, June 27, 2008, http://www.washingtonpost.com/wpdyn/content/article/2008/06/26/AR2008062600615.html?sid=ST2008070500624. 27 District of Columbia v. Heller, 128 S. Ct. 2821 (2008).
26

98

WULRVol V, Issue IIISpring 2012

when evaluating the constitutionality of gun regulations. When facing constitutional judicial scrutiny, most laws are evaluated under the rational basis standard, under which the government needs only to demonstrate a legitimate interestor rational basisfor passing the law. When laws are challenged as violations of fundamental rights, courts typically employ a heightened level of judicial scrutiny that leaves laws more susceptible to being struck down. Under these heightened tests, the government must prove that laws or actions challenged as violations of a fundamental right serve a compelling state interest, are narrowly tailored to achieve the compelling interest, and are the least restrictive means of achieving the compelling interest in order for the law to pass constitutional muster. Although the Supreme Court struck down the District of Columbia statutes, unusually, it did so without specifying a particular level of judicial scrutiny. Instead, the Court held that the D.C. statute was unconstitutional under any standard of judicial scrutiny: Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of ones home and family would fail constitutional muster.28 Although the Heller Court did reject the rational basis standard, the lowest level of judicial scrutiny, as a means for evaluating Second Amendment challenges, the justices deliberately declined to specify which heightened level of judicial scrutiny should be employed when evaluating gun regulations.29 By choosing not to identify which standard of judicial review lower courts should employ, the Court deprives lower court judges of a specific standard to use when considering firearm regulations. Because the state interests in enacting firearm regulations generally remain consistent public safety and crime prevention the interests will generally pass intermediate scrutiny if declared an
28 29

Id. at 2817 Id. at 2818.

Fullman

99

important government interest. A greater number of laws could be potentially struck down under strict scrutiny analysis, as the regulations would have to be both narrowly tailored and the least restrictive means of achieving these ends.30 Without specifying which heightened level of scrutiny ought to be employed, the Heller decision fails to uniformly specify whether laws less sweeping than the D.C. statutes ought to pass constitutional muster. Without a specified level of judicial scrutiny, only the most stringent of lawssuch as the D.C. law banning possession and registration of all handgunsmight be struck down as unconstitutional. Although the Court classified the right to keep and bear arms a fundamental right, it readily acknowledges that the right is not absolute. Justice Scalias majority opinion explicitly identified instances where the government could limit the right to bear arms: Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.31 Beyond identifying certain classes of individuals that could be barred from possessing firearms, like the Miller decision, Heller distinguished between the types of weapons protected by the Second Amendment, finding that only those arms that were in common use at the time of the Second Amendments adoption are protected under the Amendment, further limiting the scope of the right to bear arms.32 As it turns out, most gun control laws do not provide blanket bans on firearms, but rather fall within the listed exceptions of particular firearm.33 As the Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III noted, Heller struck down a draconian law, one that completely banned handgun possession at
30 31

Adam Winkler, Scrutinizing the Second Amendment,105 MICH. L. REV. 683 (2007). District of Columbia v. Heller, 128 S. Ct. 2816 (2008). 32 Id. at 2817. 33 FINDLAW, STATE GUN CONTROL LAWS (2010), http://law.findlaw.com/statelaws/gun-control.

100

WULRVol V, Issue IIISpring 2012

home. That law was one of the strictest in the nation.34 In the first seven months after Heller was decided, over sixty gun control laws were challenged in federal court, and not a single law was found unconstitutional, a trend which continued into 2010.35 For example, United States v. Rozier, was decided on March 4, 2010by the Court of Appeals for the Eleventh Circuit.36 Under federal law, convicted felons are prohibited from possessing handguns. Christopher Rozier, a man with several previous felony convictions, was charged with possessing a handgun in violation of federal law. Rozier challenged his conviction on the grounds that the law was a violation of his Second Amendment right to keep and bear arms, and he relied on Heller to support his claims. Ultimately, the Court of Appeals ultimately held that the law was constitutional and fell within the Heller exception allowing the government to ban felons from possessing firearms. Finally, because the law in question emerged from the District of Columbia, a federal enclave, the Court did not rule on whether or not the Second Amendment applies to the States or only to the federal government, as the Court had suggested in Cruikshank. Because the Court did not incorporate the right to bear arms to apply to the states, only federal laws could be susceptible under Heller.37 Since most gun regulations are state and local laws, the Heller decision left no basis for judges to strike down state and local gun control laws however sweeping on the basis of the Heller ruling.

34

J. Harvie Wilkinson, III., Of Guns, Abortions, and the Unraveling Rule of Law., 95 VA. L. REV 253 (2009). 35 Adam Winkler, The New Second Amendment: A Bark Worse Than Its Right, THE HUFFINGTON POST, Jan. 2, 2009. http://www.huffingtonpost.com/adam-winkler/the-new-secondamendment_b_154783.html. 36 United States v. Rozier, 598 F.3d 768 (11th Cir. 2010). 37 Devallis Rutledge, Second Amendment v. Gun Control, POLICE MAG., Oct. 1, 2010. http://www.policemag.com/Channel/Weapons/Articles/Print / Story/2010/10/SecondAmendment-v-Gun-Control.aspx.

Fullman

101

CONCLUSION
Heller declined to settle all of the jurisprudential questions raised by the Courts declaration of a fundamental right, but the Supreme Court anticipated that the unanswered questions on the nature of the Second Amendment would be resolved in future cases. The Court began the process of developing its post-Heller Second Amendment jurisprudence in the 2010 case McDonald v. Chicago, which involved a Chicago statute that, like the D.C. statute involved in Heller, banned both the possession and registration of all handguns and other firearms.38 The Supreme Courts decision, written by Justice Samuel Alito, struck down the Chicago law as a violation of the Second Amendment and held that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller, thereby prohibiting state and local governments from violating the individual right to bear arms and opening state and local gun control regulations to Second Amendment challenges, which Heller had left sheltered from such challenges.39 As a result of McDonald v. Chicago, state and local governments can no enact sweeping legislation that bans gun ownership. By incorporating the Second Amendment, McDonald is likely to have a far greater impact on gun control legislation than Hellers more symbolic but less practical declaration of a fundamental right. While Heller alone did not have a substantial impact on gun regulations in the United States, it remains to be seen how McDonald and future cases will impact gun control legislation as more of Hellers ambiguities are resolved. While Heller may lead directly to the downfall of only the small number of draconian gun control measures with blanket prohibitions against the possession and registration of handguns for self-defense purposes by
38 39

McDonald v. Chicago, 130 S. Ct. 3020 (2010). Id. at 3050.

102

WULRVol V, Issue IIISpring 2012

individuals in their homes, the small number of such laws in the United States coupled with the wide exceptions to the right to bear arms suggests that Heller will continue to have few practical effects on gun control legislation. Hellers impact on the demise of gun control legislation in the United States is likely to be indirect, as other cases channel Hellers declaration of a fundamental right to bear arms and begin to sculpt Second Amendment jurisprudence, for instance, by specifying a level of judicial review by which to evaluate gun control legislation. If gun control measures are to fall in large numbers in the future, they are more likely to fall on the sword of a future case than on Hellers dagger.

Deterrence and Capital Punishment:

The Great Debate
By Alana Joyce*
This paper will present the results of research on the deterrent value of capital punishment, including past studies and more recent new deterrence studies. The research on deterrence represents a widely contested forty-year-old debate. A review of these studies will enhance our understanding of the conflicting evidence surrounding the deterrence argument and substantiate the inconclusive nature of the research as well as the entire debate. The paper will also illustrate how the deterrence argument has played a role in the United States Supreme Courts ruling on capital punishment and demonstrate how the assumption of the deterrent effect in some research has served as the basis for justifying the continued practice of capital punishment in the United States.
*Alana is a born and raised Mainer double majoring in International Studies and Political Science with a minor in Italian Language and Literature at Loyola University Chicago. Next fall she will be attending the University of California Davis School of Law. In her spare time, Alana loves being outdoors, drinking craft beer, and going to Bikram yoga classes.

Table of Contents INTRODUCTION I: ASSERTING THE DETERRENT VALUE OF CAPITAL PUNISHMENT II: OBJECTIONS TO THE DETERRENT VALUE OF CAPITAL PUNISHMENT III: THE U.S. SUPREME COURTS USES AND ABUSES OF DETERRENCE IV: PROBLEMS WITH CONCLUDING THE INCONCLUSIVE CONCLUSION

104 105 110 115 118 120

104

WULRVol V, Issue IIISpring 2012

INTRODUCTION
Since the 1970s, scholars have remained divided concerning the possibility that capital punishment has a deterrent effect. In the past decade, new deterrence studies have been published using advanced econometric techniques and enhanced data sources. However, the research on deterrence is widely contested and has been an ongoing debate for more than four decades. A review of these new deterrence studies will enhance understanding of the conflicting evidence surrounding the deterrence argument. It will also substantiate the inconclusive nature of the research and the entire debate. Last, the paper will illustrate how the deterrence argument, although inconclusive, has played a role in the United States Supreme Courts rulings on capital punishment. Evidence shows that the assumed deterrent effect, though inconclusive, has also been used as a basis for justifying the continued practice of capital punishment in the United States. In 1972, the U.S. Supreme Court ruled in Furman v. Georgia that capital punishment was unconstitutional, resulting in a moratorium on the death penalty for the following four years. 1 This ruling was based on the justices finding that the death penalty was administered arbitrarily and capriciously, constituting a violation of the Eighth and Fourteenth Amendments of the Constitution. However, this ruling did not make capital punishment inherently unconstitutional, as was the opinion of Justices Brennan and Marshall, but unconstitutional in the manner in which it was being carried out. State legislatures rushed to change death penalty statutes. In 1976, the U.S. Supreme Court ruled in Gregg v. Georgia, a 7-to-2 decision, that the death penalty under the revised Georgia statute did not violate the Eighth and Fourteenth Amendments as cruel and unusual punishment.2 Georgia had revised its death
1 2

Furman v. Georgia, 408 U.S. 238 (1972). Gregg v. Georgia, 428 U.S. 153 (1976).

Joyce

105

penalty statute to include a bifurcated trial, where guilt and sentencing were rendered in two separate stages. It also allowed for the inclusion of aggravating and mitigating circumstances, arguably negating the arbitrariness found in Furman. Georgias death penalty statute became the model for other states that wished to reinstate the death penalty in accordance with the Supreme Courts rulings. From that point on, the Supreme Court has generally continued to rule in favor of capital punishments constitutionality. Since Gregg there have been several additional justifications made for capital punishment, thus legitimating its practice in the US. These justifications include the retributive effect, the constitutionality of the punishment, and the proportionality of the crime to the punishment. Yet, the most prevalent justification for capital punishment is its value as a deterrent to further homicides. It is the driving force behind pro-death penalty arguments and one of the main reasons that politics and policy in the United States criminal justice system continue to support and exercise capital punishment. The pro-deterrence side of the debate tends to receive much popular attention, perhaps because it supports such a longlasting assumption that policymakers are not ready to challenge. Because of the contentious nature of the debate, it is clear that there are no conclusive findings.

PART I: ASSERTING THE DETERRENT VALUE OF CAPITAL PUNISHMENT

In 1975, Isaac Ehrlich, a professor of economics at the University at Buffalo, conducted the first empirical analysis of the deterrent effect of capital punishment. Ehrlich claimed that each execution saved the lives of eight potential victims.3 His research was inspired by Gary Becker, a professor at the University of Chicago and Nobel Prize winner in economics, who theorized that
3

Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 AM. ECON.REV. 397 (1975).

106

WULRVol V, Issue IIISpring 2012

would-be murderers would choose between illegal and legal behavior based on the threat of execution.4 Today, the standard economic model of crime, used in new deterrence studies, reflects Beckers original assumption. The model assumes that a rational offender would respond to perceived costs and benefits of committing [a] crime.5 Economists using this model for new deterrence studies conduct multiple regression analyses to analyze rates of homicide. A multiple regression analysis is a statistical procedure that attempts to identify relationships between two or more independent variables and a dependent variable. Within the criminal justice system, economists assume that capital punishment represents the ultimate cost for committing the ultimate crime: murder. According to most economists, the deterrence hypothesis argues that the high cost associated with capital punishment should deter homicide. New deterrence studies seek to empirically demonstrate the relationship between capital punishment and preventing future homicides. H. Naci Mocan and R. Kaj Gittings, both economists at Louisiana State University, published a new deterrence study, the results of which demonstrate the existence of the deterrent effect of capital punishment. They described the relationship between rates of execution and rates of homicide as statistically significant. From the data, which included 6,143 death sentences between 1977 and 1997, Mocan and Gittings concluded that each execution deterred five homicides.6 In 2005, Cass R. Sunstein, a professor of law at the University of Chicago known for frequently taking liberal positions and Adrian Vermeule, a professor of law at Harvard Law School, published another new deterrence study. The study
4

James M. Galliher & John F. Galliher, A Commonsense Theory of Deterrence and the Ideology of Science: The New York State Death Penalty Debate, 92 J. OF CRIM. L. & CRIMINOLOGY 311 (2002). 5 Nanci H. Mocan & Kaj R. Gittings, Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment,46 J.L. & ECON. 453, 455 (2003). 6 Id. at 474.

Joyce

107

employed a multiple regression analysis and assessed that capital punishment did have a deterrent effect on the rate of homicide. Sunstein and Vermeule founded their analysis on a significant body of recent evidence that suggests the death penalty has a quite powerful deterrent effect.7 At the conclusion of their research, Sunstein admitted a shift in his personal convictions from being against the death penalty to thinking that if it has a significant deterrent effect its probably justified.8 Furthermore, Sunstein and Vermeule assert their opinion that capital punishmentbe morally requiredto prevent the taking of innocent lives.9 They posit that the refusal to mandate capital punishment effectively condemns numerous innocent people to death.10 Over the past decade, the leading national pro-deterrent studies argue that each execution prevents three to eighteen additional homicides. The Sunstein and Vermeule study is unique in that they make a moral argument for the death penalty, an argument that many pro-death penalty proponents have clung to since the study was published. Sunstein and Vermeule asserted that we are morally obligated to save innocent lives by taking the lives of those sentenced to death, and that the potential to save even one life justifies the execution of another. They insist that it is a serious moral wrong to condemn a potential future victim, to death.11 Additionally, the moral argument posits that the regulation of the death penalty should depend on its overall effecton human well-being and not simply the number of lives saved per execution.12 Convinced that their study, along with other recent studies, demonstrates an impressive deterrent effect of capital
7

Cass R. Sunstein & Adrian Vermeule, The Ethics and Empirics of Capital Punishment: Is Capital Punishment Morally Required? Acts, Omissions and Life-Life Tradeoffs, 58 STAN. L. REV. 703, 706 (2005). 8 Adam Liptak, Does Death Penalty Save Lives? A New Debate, N.Y. TIMES, Nov. 18, 2007, at A11. 9 SUNSTEIN & VERMEULE, supra note 7, at 705. 10 Id. at 706. 11 Id. 12 Id. at 708.

108

WULRVol V, Issue IIISpring 2012

punishment, Sunstein and Vermeule assert that prospective murderers may be receiving a clear signal from the criminal justice system.13 However, the fluctuating results of these new deterrence studies fail to demonstrate any conclusive relationship between capital punishment and a deterrent effect. Thus, the research remains inconclusive on the pro-deterrent side of the debate. There are numerous other studies that claim strong empirical evidence for the deterrent effect of capital punishment. In 2006, Hashem Dezhbakhsh, a professor of economics at Emory University, and Joanna Shepherd, an assistant professor of law at Emory University with a Ph.D. in economics, conducted a regression analysis that indicated capital punishment had a deterrent effect.14 In a separate study, Shepherd found that each execution results in, on average, three fewer murders.15 In addition, capital punishment was found to deter murders of passion and murders by inmates, which were previously believed to be undeterrable because the first is carried out by an irrational actor and the second occurs outside the public sphere.16Another study, by Dezhbakhsh and Shepherd, claimed that each execution results, on average, in eighteen fewer murders, with a margin of error of plus or minus ten, which is considered a substantial margin of error.17 The results of these new deterrence studies vary in exactly how many additional homicides are deterred as a result of the death penalty but none of them deny the deterrent value of capital punishment. However, some of these studies, although they do not deny the deterrent effect, warn of possible misgivings about the
13

Id. at 713, 749. Hashem Dezhbakhsh & Joanna M. Shepherd, The Deterrent Effect of Capital Punishment: Evidence from a Judicial Experiment, 44 ECON. INQUIRY 512, 517 (2006). 15 Joanna Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. OF LEGAL STUD. 283, 309 (2004). 16 Joanna Shepherd, Deterrence Versus Brutalization: Capital Punishments Differing Impacts Among States, 104 MICH. L. REV. 203, 238 (2005). 17 Hashem Dezhbakhsh, et. al., Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5(2) AM. L. & ECON.REV. 334, 374 (2003).
14

Joyce

109

empirical data, demonstrating that even the proponents of the death penalty raise questions about the robustness of their findings. Mocan and Gittings, considering recent research on racial discrimination and the imposition of the death penalty, make their conclusion with caution. They note, there is evidence indicating that there is discrimination regarding who gets executed and whose sentences gets executed.18 Mocan and Gittings also admit that it is difficultto identify the impact of capital punishment on homicide simply because there is not much variation in the execution ratesover time.19 However, even after admitting that the criminal justice system, in dealing with homicide, is replete with problems of discrimination, injustice, and arbitrariness, the proponents of deterrence argue that if deterrence does exist, any government that refuses to implement capital punishment in its criminal justice policies would be violating the rights and reducing the welfare of its citizens.20 Even amongst scholars who agree upon the existence of the deterrent effect, there still exists differences in the methodology employed. The greatest difference between Ehrlichs original study and the studies conducted by Mocan and Gittings, Sunstein and Vermuele, Dezhbakhsh and Shepherd, and others, is that these new deterrence studies utilize newly available panel data, which uses information as sets of units over an extended period of time.21 Ehrlichs study encompassed the period of 1933 to 1967; Mocan and Gittings covered 1977-1997; and Dezhbakhsh and Shepherd stretched farthest, from 1960 to 2000. Thus, the most recent studies encompass a larger data set on the number of homicides and the number of executions over a greater period of time than Ehrlichs study. Although each study argues the presence of some sort of relationship that supports the deterrence argument, the question remains: why there is such significant variation in the
18

MOCAN & GITTINGS, supra note 5, at 474. Id. at 456. 20 SUNSTEIN & VERMEULE, supra note 7, at 749. 21 Id. at 711.
19

110

WULRVol V, Issue IIISpring 2012

number of additional homicides that capital punishment may deter. Therein lies the other side of the debate.

PART II: OBJECTIONS TO THE DETERRENT VALUE OF CAPITAL PUNISHMENT

Despite the effort to control a range of trends and variables over time, there is an exhaustive number of possible omitted factorspreventing the relationship between executions and homicides from being correctly captured by empirical research.22 Ehrlichs 1975 analysis has since been discredited by glaring errors in both technique and data, which prevent the study from being replicated for robustness, meaning it has characteristics that persist consistently under certain specified conditions.23 Moreover, the National Academy of Science formed a panel headed by Nobel Laureate Lawrence R. Klein, an economist at the University of Pennsylvania, who examined Ehrlichs studyand concluded that it provided no useful evidence on the deterrent effect of capital punishment.24 The time frame of the data was skewed and his variables failed to encompass many possible factors. Furthermore, Ehrlichs study prompted the National Academy of Sciences to issue a report in 1978, which contended that the existing evidence in support of a deterrent effect of capital punishment was unpersuasive, because there was not enough evidence to prove a deterrent effect.25 John J. Donohue, a law professor at Yale with a Ph.D. in economics, and Justin Wolfers, an economist at the University of Pennsylvania, were unconvinced of the deterrent effect of capital punishment. In light of new deterrence studies that
22

John J. Donohue & Justin Wolfers, The Ethics and Empirics of Capital Punishment: Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 STAN . L. REV. 791, 795 (2005). 23 Jeffrey Fagan, Death and Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment, 4 OHIO ST. J. CRIM. L. 255, 256 (2006). 24 Michael L. Radelet & Traci L. Lacock, Recent Development: Do Executions Lower Homicide Rates?: The Views of Leading Criminologists, 99 J. CRIM. L. & CRIMINOLOGY, 489, 493 (2009). 25 DONOHUE & WOLFERS, supra note 22, at 792.

Joyce

111

were published in the past decade, they sought to better understand past conflicting empirical evidence on the deterrent effect of capital punishment. Moreover, Donohue and Wolfers are two of the only economists involved in this debate who remain unconvinced of the deterrent effect of capital punishment. Their research attempts to point out the errors of their colleagues findings. In 2005, Donohue and Wolfers published an article analyzing the findings of fellow economists, including: Mocan and Gittings, Sunstein and Vermuele, Dezhbakhsh and Shepherd, and others. They were highly critical of the strong language these studies have used to describe the certainty of their conclusions. According to Donohue and Wolfers, the existing evidence for deterrence provided by these studies, is surprisingly fragile, and even the smallest adjustments in econometric specifications yield dramatically different results.26 They conclude that the studys fundamental assumptions, such as that murderers are rational beings making rational cost-benefit calculations, are surrounded by profound uncertainty.27 They posit that it is impossible to find a reliable and robust correlation between executions and homicides because the models are extremely sensitive and often render inconsistent findings. Additionally, the complexity of the statistical issue at hand is one of extreme sensitivity and asserting an unproven conclusion is frowned upon in the scientific community. One of the main concerns with the practical implications of the research is that the death penaltyis applied so rarely that the number of homicides it can plausibly[deter] cannot be reliably disentangled from the large year-to-year changes in the homicide rate, which are caused by a number of other factors.28 According to the economic model of crime, the price for committing murder needs to be significant enough to produce less murder, that is, to
26 27

Id. at 794. Id. at 792. 28 Id. at 792.

112

WULRVol V, Issue IIISpring 2012

produce a deterrent effect. In 2011, there were 3,251 inmates on death row in the United States, 78 were sentenced that year, and 43 were executed.29 In the modern era of capital punishment, or post Gregg, this is the first time the number of new inmates sentenced to death has dropped below 100 in a year. In 2010, the most recent year for which there is complete homicide and execution data, there were 12,996 homicides and 46 executions.30 This demonstrates that few homicides lead to a death sentence. Given the low ratio of executions to homicides, it is hard to believe that in modern America the fear of execution would be a driving force in a rational criminals calculus.31 Based on the sensitivity of new deterrence studies, or the uncertainty of the results a model will produce depending of the variables inputted, and trends among homicide and execution rates, scholars argue that the deterrent effect of capital punishment is either impossible to estimate or not a deterrent at all. The only conclusion that Donohue and Wolfers made with clarity and certainty was that execution policy [in the US] drives little of the year-to-year variation in homicide rates. Additionally, it is entirely unclear whether the death penalty causes homicide rates to rise, lower, or produce no effect at all.32 Economists are not the only scholars involved in the research on the deterrent effect of capital punishment. In 1996, sociologists Michael Radelet and Ronald L. Akers surveyed leading American criminologists and found widespread consensus that the death penalty doeslittle to reduce rates of criminal violence33 and could [never] be superior to long-term prison sentences.34 In
29

DEATH PENALTY INFO. CENTER, Facts About the Death Penalty (Updated: May 30, 2012), http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (last visited Feb. 6, 2012). 30 FED. BUREAU OF INVESTIGATION, Uniform Crime Report: Crime in the United States (2010), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.2010/offenses-known-to-law-enforcement/expanded/expandhomicidemain.pdf (last visited Feb. 6, 2012). 31 DONOHUE & WOLFERS, supra note 23, at 795. 32 Id. at 843. 33 Michael L. Radelet & Ronald L. Akers, Deterrence and the Death Penalty: The Views of Experts, 87 J. CRIM. L. & CRIMINOLOGY 1, 5 (1996). 34 RADELET & LACOCK, supra note 25, at 490.

Joyce

113

2009, Radelet, a professor of sociology at the University of Colorado-Boulder, and Traci L. Lacock, a second-year student in the Ph.D. program of sociology at the University of ColoradoBoulder, published an updated version of the 1996 study to assess if any of the recent deterrence studies have changed the views of leading criminologists. The changes responses are not statistically significant, meaning the opinions of experts in 2008 were remarkably similar to those in 1996. In short, the consensus as of 2008 indicates that 88.2 percent of leading criminologists agree, that the death penalty does not add any significant deterrent effect above that of long-term imprisonment, slightly up from 83.6 percent in 1996.35 Additionally, criminologists agree that abolishing the death penalty would not have any significant effects on murder rates.36 When asked specifically about a belief in the deterrence hypothesis, 89.6 percent of respondents agreed that executing people who commit murder does not deter others from committing murder.37 Radelet and Lacock also agree with Donohue and Wolfers that minor changes in specifications and assumptions of the variables easily produce wild fluctuations in their deterrence estimates, causing results to fluctuate from positive, negative, and no correlation at all.38 Jeffrey Fagan, a professor of law and public health at Columbia University, also asserts that simple averages of executions, either by state or the entire nation, would be deceptive because the distribution [of executions and homicides are] highly skewed by extreme values in the data sets. For example, a stateby-state analysis would be skewed by those that execute more often than others, while a national analysis would be skewed by the fact that not all states have consistently exercised the death penalty. The example given most often is that of Texas. According to the economic models of pro-deterrence studies, once Texas is removed
35

Id. at 504. Id. at 505. 37 RADELET & LACOCK, supra note 25, at 495, 508. 38 DONOHUE & WOLFERS, supra note 23, at 265.
36

114

WULRVol V, Issue IIISpring 2012

from the analysis, all deterrent effects disappear.39 Fagan cautions against the undue leverage and influence these extremes can have on the data, reinforcing the illusion of a statistical relationship that does not actually exist.40 The social sciences set a high bar for causal inference that new deterrence studies do not meet. All research must be substantiated by peer review, rigorous reapplication, and factor in delicacies of data sets and variables. Fagan asserts that recent claims of deterrence are volatile and inconsistent[and new deterrence studies] fail the tests of rigorous replication and robustness analysis, hallmarks of good science.41 Another shortcoming of the research on deterrence is the omission of the effect of other legal interventions, most specifically life without parole. The assumption of new deterrence studies is that if there is a deterrent it must be caused by capital punishment since the economic model of crime assumes that capital punishment is the greatest cost of committing murder.42 However, other variables besides capital punishment could deter homicide. Fagans research attempts to address this: of the thirty-eight states with the death penalty, thirty-seven have life without parole statutes; whereas eleven other states without the death penalty also have life without parole statutes.43 Fagan asks if life without parole could also have a deterrent effect on homicide, which would have a confounding effect on the conclusion of deterrence studies on capital punishment. It is a potentially biasing omission on the research surrounding new deterrence studies that support the deterrence argument. Sentences of life without parole are issued far more frequently than capital punishment sentences, thus potentially confounding the findings of capital punishment deterrence studies. For example, since 1996, South Carolina has sentenced 485
39

FAGAN, supra note 24, at 267. Id. 41 Id. at 315. 42 Id. at 269. 43 Id. at 269.
40

Joyce

115

defendants to life without parole, compared to carrying out 27 executions.44 Georgia also shows a similar trend. Since Georgia passed its life without parole statute in 1993, the state has sentenced 369 persons to death, while death sentencing has declined from ten per year to four per year.45 In addition to Fagans research, Mocan and Gittings findings empirically corroborated larger regression coefficients for life without parole than executions.46 This analysis demonstrates that if there is a deterrent effect, it should not be assumed that the effect is solely the result of the threat of execution. According to Fagan, the literature on deterrence has failed to consider how the threat of apprehension and punishment that is apprehension by police and incarceration prior to execution may factor into variations in crime rates.47 Fagan concludes that deterrence cannot be embraced as a cure for murder as there are strong reasonable doubts about the reliability of recent studies that claim the existence of a deterrent effect resulting from capital punishment.48 Ultimately, these new deterrence studies have not been robustly and reliably validated to scientific standards.

PART III: THE U.S. SUPREME COURTS USES AND ABUSES OF DETERRENCE
In the 1970s, two landmark Supreme Court cases, Furman and Gregg, respectively abolished the death penalty and then reinstated it. These swift changes were prompted by the publication of a series of scientific based articles, most popularly
44

S.C. DEPARTMENT OF CORRECTIONS, Inmate Population Statistics and Trends: Sentence Length Distribution (2005), http://www.doc.sc.gov/PublicInformation/StatisticalReports/InmatePopulationStatsTr end/AsOfTrendSentenceLengthDistributionFY01-05.pdf (last accessed Feb. 6, 2012). 45 GA. DEPARTMENT OF CORRECTIONS, Inmate Statistical Profile (2004), http://www.dcor.state.ga.us/pdf/lwop04-10.pdf (last accessed Feb. 6, 2012). 46 MOCAN & GITTINGS, supra note 5 at 464. 47 FAGAN, supra note 23, at 273. 48 Id. at 319.

116

WULRVol V, Issue IIISpring 2012

Ehrlichs article, which claimed to corroborate the deterrence hypothesis. In Furman, the justices seemed unconvinced about the deterrent value of capital punishment. Justice White, in concurrence with the majority opinion, argued, seldom-enforced laws [like the death penalty] become ineffective measures for controlling human conductthe death penaltywill make little contribution to deterring those crimes for which it may be exacted.49 In the opinion of Justice Brennan, who also concurred with the majority opinion to oppose the death penalty, the threat of death has no greater deterrent efficacy than the threat of imprisonment.50 The majority concluded that in Furman the deterrence argument did not suffice as justification for capital punishment. The unique severity and permanence of the death penalty combined with the lack of concrete empirical evidence of a deterrent effect, led the justices to find in favor of Furman. Soon after the courts decision in Furman, Ehrlichs study was published. In light of the new study, the justices reconsidered the moratorium on the death penalty when deciding Gregg. In Gregg, the deterrence argument was made in reverse. Justice Stewart, joined by Justice Powell, reasoned that the death penalty undoubtedly is a significant deterrent for many murderers in which the possible penalty of death may well enter into the cold calculus that precedes the act.51 The justices reasoned that the possibility of a deterrent value of capital punishment was sufficient to play a role in justifying the reinstatement of capital punishment. Since the 1970s, and the first series of landmark Supreme Court rulings that used the deterrence argument, the Supreme Court justices have continued to reexamine the efficacy of deterrence. Moreover, the past decade of new deterrence studies, in which both sides of the debate report inconclusive findings, have made it difficult to suggest that the deterrence argument is
49 50

Furman v. Georgia, 408 U.S. 238, 312 (1972). Furman, 408 U.S. at 386. 51 Gregg v. Georgia, 428 U.S. 153, 185-186 (1976).

Joyce

117

anything more than an inconclusive assumption. However, the justices have paid close attention to the new deterrence studies, utilizing specific findings in their opinions, demonstrating that deterrence still remains a consideration in capital punishment rulings. Supreme Court justices are not experts in economics or criminology, but they remain well informed on the results of recent studies. In 2008, Justice Scalia was prompted to write a separate concurring opinion in response to Justice Stevens opinion in Baze v. Rees, a case that dealt with the constitutionality of lethal injection drug mixture.52 According to Justice Stevens policy analysis of the constitutionality of capital punishment, the death penalty is excessive punishment because it does not prevent more crimes than an alternative measure.53 He argued that evidence of this was shown by a recent rise in statutes providing for life imprisonment without the possibility of parole rather than the death penalty.54 Justice Scalia defended the deterrent value of capital punishment. He posited that Justice Stevens conclusions are not supported by available empirical data. Justice Scalia chose to cite the research of Sunstein and Vermeule, who note that their research, along with half a dozen others research forms a significant body of recent evidence that capital punishment may well have a deterrent effecta quite powerful one.55 In addition, Justice Scalia cited another study, which found that an average of 18 murders were deterred per execution.56 Among recent studies, this figure is one of the higher estimates of the deterrent value of capital punishment. Justice Scalias further argues that regardless of the studies validity, it is not our [the judiciarys] place to choose one set of responsible empirical studies over another in interpreting the Constitutionnor is it our [the judiciarys] place to demand that
52 53

Baze v. Reevs, 553 U.S. 35 (2008). Baze, 553 U.S. at 78. 54 Baze, 553 U.S. at 79. 55 SUNSTEIN & VERMEULE, supra note 7, at 706. 56 DEZHBAKHSH, ET AL., supra note 17, at 344.

118

WULRVol V, Issue IIISpring 2012

state legislatures support their criminal sanctions with foolproof empirical studies, rather than commonsense predictions about human behavior.57 However, by utilizing Sunstein and Vermeules research, Justice Scalia ironically chose to rely on one set of empirical findings over another. Justice Stevens also utilizes an alternative set of empirical findings to support the argument that there is no deterrent value in capital punishment. Additionally, both Justice Scalia and Justice Stevens suggested appropriate substitutions if their original arguments of deterrence should fail: the retributive argument and the life without parole argument, respectively.

PART IV: PROBLEMS WITH CONCLUDING THE INCONCLUSIVE

The disagreement between Justice Stevens and Justice Scalia illustrates the inconclusive nature of the debate on the deterrent effect of capital punishment. It is a debate that began in the 1970s and heated up in the 2000s, but there is nothing new about the debate itself. According to Fagan history is now repeating itself and going well beyond the findings of Ehrlich.58 Half of the scientific community, most notably economists argue that capital punishment is indeed deterring murders and thus saving lives, whereas criminologists and other social scientists tend to conclude there is no deterrent effect of capital punishment. The latter group often argues that it is simply impossible to calculate deterrence, which is highly sensitive to changes in empirical technique and data. The debate is truly inconclusive, although the deterrence argument is heavily favored in the media and by policymakers. Radelet and Lacock contend there is not a shred of evidence that suggests there is a new debate, but that it is simply an old debate left unresolved for the past forty years being examined by new
57 58

Baze, 553 U.S. at 90. FAGAN, supra note 23, at 257.

Joyce

119

minds.59 The studies that report a deterrent effect of capital punishment have been reported more favorably and uncritically by newspapers such as the Washington Post and the New York Times, often overshadowing the other side of the debate.60 However, new deterrence studies present a wide range of results, and the sensitivity of the findings, to even the most minor tweaks, introduces model uncertainty.61 When the more publicized part of the debate is examined, it seems unlikely that the government would deny the possibility that a pro-death penalty policy may save a large number of innocent lives.62 However, capital punishment is the ultimate punishment, uniquely severe, and irrevocable. Its justification in U.S. policy is warranted by the assumption that the death penalty has a deterrent effect, which has not been empirically proven. In 2004, Shepherd, co-author of many new deterrence studies, testified at the federal House Judiciary Committee claiming that there is sound scientific evidence that each execution deters between three and eighteen murders.63 The consequence of such publicity is that the deterrence argument is being cited without challenge, skewing the reality that the deterrent argument is still inconclusive and surrounded by uncertainty in the academic community. The new deterrence studies were also cited in an amicus brief in a certiorari petition to the US Court of Appeals for the Ninth Circuit in the 2004 Schirro v. Summerlin case.64 Although amicus briefs typically have little influence upon the court, the reference to new deterrence studies demonstrates that at least some view this as legally admissible evidence. The potential impact on criminal justice politics and policies seems as though it is influencing the substance of policy in the US. From Furman to Baze,
59

RADELET & LACOCK, supra note 24, at 504. FAGAN, supra note 23, at 258. 61 Id. at 315. 62 SUNSTEIN & VERMEULE, supra note 7, at 715. 63 FAGAN, supra note 23, at 259. 64 FAGAN, supra note 23, at 261.
60

120

WULRVol V, Issue IIISpring 2012

the weight of legal cases and academic studies support the continued use of capital punishment. Surprisingly, public opinion on the deterrence argument has shifted against the popular narrative, despite the medias fixation with deterrence. During a 1985 Gallop poll, 62 percent of people surveyed answered yes when asked if the death penalty deters homicides; yet, when asked again in 2004, 62 percent answered the death penalty does not deter homicides.65 Shepherd, who testified that as many as eighteen homicides are deterred per execution, conducted another study, which was published in 2005. She analyzed the deterrent effect of capital punishment and its impact in individual states. Shepherd found that the deterrent effect of capital punishment differs substantially among states.66 Her research indicated that capital punishment deterred murder in six states[while] in thirteen statescapital punishment actually increased murder. Additionally, in eight states capital punishment had no effect on the murder rate.67 This study highlights the complexity, uncertainty, and sensitivity of the empirical data when analyzed using different techniques, illustrating among the academic community is no closer to a resolution than they were forty years ago. If anything should be taken from the empirical evidence, or the debate itself, the only conclusion about the deterrent value of capital punishment is that it is inconclusive.

CONCLUSION
The aforementioned studies emphasize the importance of interplay between crime research and policymaking. In the 1970s, the pro-death penalty movement leapt at the chance to use Ehrlichs evaluation on deterrence as a tool to advance the goal of
65

RADELET & LACOCK, supra note 24, at 492. SHEPHERD, supra note 16, at 247. 67 Id.
66

Joyce

121

reinstating capital punishment. Now, legislators, policy makers, and jurists rely on Ehrlichs study as well as new deterrence studies before they are substantiated or corroborated by the scientific community.68 The validity and reliability of these studies has not been fully explained, nor will it until the academic community can reach a consensus on a framework for the debate. The current limitations, contradictions, and instability surrounding the deterrence hypothesis cannot be ignored. Scholars such as Fagan warn that stylized econometrics should not be held superior to substantive social theory.69 After Furman, many state legislatures reinstated death penalty policies. Ehrlichs study was the vehicle for both the U.S. Supreme Court and state legislatures to support a favored policy position.70 Sunstein and Vermeule suggest, capital punishment should not be permitted if other means for producing the same level of deterrence are available.71 The inconclusive nature of the debate allows policymakers to leverage different studies to either exercise caution and retain the death penalty because it deters homicides or substitute the death penalty with life imprisonment without parole, under the assumption that there is no greater deterrent effect than capital punishment. Research on the deterrent value of capital punishment is worthy of attention because it has historically impacted the opinions of policymakers and Supreme Court justices. Correlation does not imply causation and until a valid and reliable causal relationship between executions and homicides can be made, the debate on the deterrent value of capital punishment will remain inconclusive, divided, and controversial.

68

DONOHUE & WOLFERS, supra note 22, at 844. FAGAN, supra note 23, at 317. 70 DONOHUE & WOLFERS, supra note 22, at 845. 71 SUNSTEIN & VERMEULE, supra note 7, at 709.
69