i

Contents

A CHECK ON PRESIDENTIAL POWER AND A FLAWED

RULING Nathan Brickman, University of Michigan 1 JUDGMENT WITHOUT JUSTICE: THE EVOLUTION OF

CIVILIAN TRIALS UNDER MILITARY COMMISSIONS John Moreland, University of Illinois Urbana-Champaign 17

INSTITUTIONALIZED SILENCE: THE PROBLEM OF CHILD

VOICELESSNESS IN DIVORCE PROCEEDINGS Brandon Sadowsky, The Ohio State University 52

ARRESTED FOR EXPERIENCING HOMELESSNESS: THE

CRIMINALIZATION OF HOMELESSNESS IN THE UNITED

STATES AND THE REVOLUTION OF THE RHODE ISLAND

HOMELESS BILL OF RIGHTS Cristina Semi, Hamline University 74

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Volume VII Winter 2014 Issue II

ARTICLES

A Check on Presidential Power and a Flawed Ruling

By Nathan Brickman*

This paper will examine presidential power in the context of President Harry Truman’s steel mill seizure in 1952. The purpose is to show the key factors surrounding this incident and explore the various reasons for the Supreme Court’s decision to rule the seizure unconstitutional. This case is a critical lesson in understanding the importance of presidential authority, and this article disagrees with the Court’s ruling and will explain what went wrong during the President’s defense. Additionally, this paper will analyze and redevelop Justice Jackson’s three-tiered system explaining presidential power in his concurring opinion to create a more concise guideline.

*Nathan Brickman is a native of suburban Detroit and is currently a junior at the University of Michigan. He is a political science major and hopes to attend law school after he obtains his undergraduate degree. In pursuit of a more globalized education, he plans on traveling to the Czech Republic in the spring of 2014. The inspiration for this paper came after taking a political science course about the American Chief Executive.

2 WULR Vol VII, Issue II Winter 2014

Table of Contents INTRODUCTION 2 I: YOUNGSTOWN EXPLAINED 4 Ia. The Majority Opinion 4 Ib. Jackson’s Three-Tier Framework 4 II: WHY DID YOUNGSTOWN GET IT WRONG? 5 IIa. Inherent Authority 5 IIb. The Justice Department 7 IIc. Relevant Statutes 9 III: YOUNGSTOWN REVISITED 12 IIIa. Supreme Court Ruling 12 IIIb. Justice Jackson’s Three Levels of Presidential Authority 14 IV: CONCLUSION 15

INTRODUCTION

On April 8th, 1952, President Harry Truman issued Executive

Order 10340: “Directing the Secretary of Commerce, Charles Sawyer,

to Take Possession of and Operate the Plants and Facilities of

Certain Steel Companies.”1 Truman issued this order to avert a

nationwide strike of steel workers that he felt would threaten the

United States’ steel supply. At the time, the nation was engaged in

an ongoing conflict in Korea, and Truman believed that a stoppage

in steel production would jeopardize the war effort as well as the

United States’ economic health.

The country’s response to the action was one of shock and

the Order triggered a national debate over the scope of presidential

war powers. Presidents had seized plants before, but never based

solely on the inherent executive powers granted under Article II of

the Constitution.2 While the Constitution may not expressly give

the President additional war powers during a national emergency,

many scholars believe that the Framers implied these powers due to

1 MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF PRESIDENTIAL POWER (Columbia UP 1977) at 83. 2 Id. at xxi.

Brickman 3

the structure of the Executive Branch.3 Previously in 1950, President

Truman declared a national emergency. Later, he used the state of

national emergency to assert broad inherent authority under Article

II to justify his seizure of the steel mills and trigger a number of

statutory provisions giving him additional powers to face the crisis

in Korea.4 The steel companies sued Secretary of Commerce Charles

Sawyer, pleading for injunctive relief and declaratory judgment.5

In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court roundly

rejected Truman’s broad claim of executive power. Eight justices

held that Truman’s decision to seize the mills was unconstitutional

on the basis that he was exercising legislative power and thus lacked

authority to seize the mills. Writing for the majority, Justice Black

rejected the administration’s claim that the steel stoppage

constituted a national emergency. Rather, he asserted that the

situation was a labor dispute and Congress had provided ample

guidelines to the President to address the strike without seizure.

However, Chief Justice Vinson, the lone dissenter, argued

that not only have presidents historically responded to emergencies

without legislative action, but that the steel mill seizure actually

advanced legislative precedents already enacted by Congress. This

paper disagrees with the majority conclusion and agrees with

Justice Vinson. While President Truman did not have the authority

to seize the steel mills based solely on his inherent authority, he did

have authority under the Take Care Clause based on various statutes

and precedents. This paper will also examine and apply Justice

Jackson’s three levels of presidential power and conclude that the

three-tier framework must be redeveloped into a two-pronged

guideline through eliminating the second tier. The steel mill seizure

was an appropriate action by Truman—but the action was justified

3 Emergency Powers, http://www.law.cornell.edu/wex/emergency_power (last visited Nov. 11, 2013). 4 Supra note 1, at 3. 5 Youngstown Sheet & Tube Co. v. Sawyer. 343 U.S. 579, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZS.html (last visited Nov. 4, 2013).

4 WULR Vol VII, Issue II Winter 2014 based upon statutes and precedent rather than inherent executive

authority.

PART 1: YOUNGSTOWN EXPLAINED

1a. The Majority Opinion

Justice Black delivered the majority opinion of the Supreme

Court, affirming that the seizure was unconstitutional. At the core

of the majority’s logic was their assertion that there was no statute

that expressly authorized the President to take possession of

property to resolve a labor dispute.6 Justice Black believed that the

seizure technique to solve labor disputes was not only unauthorized

by Congress, but that Congress opposed seizure as a method to

settle labor disputes. Lastly, Black found that the Executive Order

fell squarely under legislative power, stating: “The Founders of this

Nation entrusted the law making power to the Congress alone in

both good and bad times. It would do no good to recall the historical

events, the fears of power, and the hopes for freedom that lay behind

their choice.”7 Since Truman employed a method Congress opposed,

his seizure was tantamount to an exercise of legislative—not

executive—power.

1b. Jackson’s Three-Tier Framework

Justice Jackson’s concurring opinion is regarded as the

analytical framework for evaluating the validity of constitutional

authority. He describes the three tiers of presidential authority as

follows:

1. The President’s authority is at its maximum when he acts using Article II power, plus any expressed or implied power from Congress.8

6 Id. 7 Id. 8 Charles Adside, American Chief Executive, Lecture at University of Michigan, Ann Arbor Political Science 320 (Sept. 23 2013).

Brickman 5

2. The President’s authority is in a zone of twilight when he acts under Article II powers, but congressional intent is unclear.9

3. The President’s authority is at its lowest ebb when he acts against Congress’s intent and relies only on Article II powers.10

It is noteworthy to identify the distinction between expressed and

implied powers authorized by Congress. Expressed powers are

clearly identified in the text of the Constitution, while implied

powers are drawn from expressed powers and are not explicitly

enumerated.11 This distinction is necessary because Truman relied

primarily on implied powers to seize the steel mills as opposed to

expressed powers written in the constitution.

Justice Jackson believed that Truman’s seizure of the mills

fell under the third tier. He explained that the seizure could not fall

under tier one because he could not find any congressional

authorization. Thus, in Jackson’s estimation, “we can sustain the

President only by holding that seizure of such strike-bound

industries is within his domain and beyond control by Congress.”12

The President’s action falls under tier three, the least favorable of

constitutional postures, making it most vulnerable to attack.13

While Justice Jackson’s three-tier system attempts to explain

Truman’s presidential power in the case of the seizure, it is unclear if

his analysis is correct.

PART 2: WHY DID YOUNGSTOWN GET IT WRONG?

2a. Inherent Authority

9 Id. 10 Id. 11 Louis Fisher, Invoking Inherent Powers: A Primer, 37 PRESIDENTIAL STUDIES QUARTERLY. 1-22 (2007) at 1. 12 Supra note 5. 13 Id.

6 WULR Vol VII, Issue II Winter 2014

Inherent authority is by definition “a power that necessarily

derives from an office, position, or status.”14 Louis Fisher, a specialist

in constitutional law with the Law Library of the Library of

Congress, explains inherent authority as “powers over and above

those explicitly granted in the Constitution or reasonably to be

implied from express powers.”15 Article II of the U.S. Constitution

lays out the powers of the President, stating executive power shall

be vested in the President.16 This indicates that the President has a

reservoir of executive authority and broad discretion. Executive

power is referred to as inherent authority, indicating that the

President possesses implied or implicit powers that are independent

from Congressional authorization—any restriction on these powers

would be unconstitutional.

Article I of the Constitution states, “All legislative powers

herein granted shall be vested in a congress of the United States,”

while Article II claims, “The Executive Power shall be vested in a

President of the United States.” There is an important wording

distinction between these two phrases. Article I has the words

“herein granted,” meaning the Legislature’s powers are limited to a

list of guidelines. The enumeration in Article II is intended to specify

the article’s implied definition of inherent authority, “leaving the

rest to flow from the general grant of that power.”17 There is no

specific limitation on the Executive’s powers like there is on the

Legislature’s, notwithstanding specific exceptions embodied in the

Constitution.

In Justice Vinson’s dissent, he cites several statements in

Article II that give the President inherent authority. Specifically, he

mentions the Take Care Clause, which states: “The President shall

be Commander in Chief of the Army and Navy of the United States,

14 Black’s Law Dictionary (8th ed. 2004). 15 Neil Kinkopf. Inherent Presidential Power and Constitutional Structure, 37.1 Presidential Studies Quarterly 37-48 (2007). 16 “Article II.” Legal Information Institute. Jan. 23, 2014. 17 Saikrishna Bangalore Prakash. "Hail to The Chief Administrator: The Framers and The President's Administrative Powers." Yale Law Journal 2 991-1017 (1993).

Brickman 7

he shall have power to make treaties provided two thirds of the

senators present concur, and he shall take care that the laws be

faithfully executed.”18 The Take Care Clause maintains that the

President must execute the laws of the United States faithfully. In

order to accomplish this goal, the President must enforce previous

statutes and treaties that have been authorized by Congress and

signed into law. The specific treaties and statutes that apply to this

case will be explained later in the paper.

It is difficult to say whether the President’s seizure of the

steel mills would fall under inherent authority. One could argue that

the seizure was an exercise of the President’s inherent authority

under the Commander in Chief of the Army and Navy of the United

States Clause, but this could open the possibility to an abuse of the

President’s powers during wartime because the clause does not have

any self-limiting properties. For example, in 1941, President

Roosevelt used his inherent authority to seize the North American

Aviation plant in Inglewood, California in order to avert a strike and

ensure that orders would be fulfilled.19 Roosevelt invoked no specific

statute and relied primarily on his inherent authority to justify the

seizure. Nevertheless, inherent authority is not necessary because

Truman had Congressional approval through various enacted

statutes.

2b. The Justice Department

The Justice Department’s argument was an integral

contributor to the Supreme Court’s verdict of unconstitutionality.

In Court, the Justice Department argued that Truman had acted

solely on inherent authority without any statutory support.20

Assistant Attorney General Holmes Baldridge stated, “The

18 Supra note 5, at 7. 19 Patricia L Bellia, The Story of the Steel Seizure Case, (2008) http://www3.nd.edu/~ndlaw/faculty/belliap/SteelSeizureDraftSSRN.pdf (Last visited Mar. 2, 2013) 20 Supra note 11, at 5.

8 WULR Vol VII, Issue II Winter 2014 President’s power was based on Sections 1, 2 and 3 of Article II of the

Constitution, and whatever inherent, implied or residual powers

may flow therefrom.”21 Baldridge reasoned the Justice Department’s

theory that in an emergency, the Executive Branch has the

responsibility to protect the nation and any action the President

took in that respect was legal.22

This type of argument is unreasonable—the only

interpretation is that during emergency conditions, the President’s

power is essentially unlimited. Baldridge stated, “There is enough

residual power in the executive to meet an emergency situation of

this type when it comes up.”23 Baldridge also explained that once the

President determines that an emergency exists, the courts are unable

to review whether it is an emergency. This argument implies that

granting unlimited powers to the President during times of

emergency resembles the powers of a king.

This sparked the Court’s defense of separation of powers.

Had the Court ruled in favor of the steel mill seizure, it could have

set a precedent that the President holds unlimited power during

times of crisis. District Attorney Judge David A. Pine acknowledged

that a nationwide strike would cause damage to the nation. Pine

claimed that a strike would be “less injurious to the public than the

injury which would flow from a timorous judicial recognition that

there is some basis for this claim to unlimited and unrestrained

Executive power, which would be implicit in a failure to grant the

injunction.”24 The Justice Department doomed the President in this

case by arguing solely on inherent authority. Instead, they should

have based their argument on the Take Care Clause and how the

President is required to enforce statutes that have been previously

enacted. This would have given them a legitimate defense and the

potential to win the case.

21 Supra note 1, at 119. 22 Id. 23 Supra note 11, at 5. 24 Id. at 6.

Brickman 9

2c. Relevant Statutes 1. The Selective Service Act

While President Truman did not invoke these statutes as his

basis for seizing the steel mills, these congressional enactments

would have been the strongest grounds to justify the seizure. As

World War II broke out in Europe, Franklin Delano Roosevelt

signed the Selective Service Act into law in 1940. The main objective

of this statute was to require all males ages twenty-one to thirty-six

to register for the draft. It appeared that President Roosevelt was

afraid the situation in Europe might escalate and require American

intervention. Section 18 of the Selective Service Act describes how

the President can regulate industry in order to support the war

effort. It provides:

“Whenever the President…determines that it is in the interest of the national security to obtain prompt delivery of any articles or materials…required for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized to place with any person operating a plant, mine, or other facility…an order for such

quantity of such articles or materials as the President deems appropriate.”25

Additionally, the President is authorized to take immediate

possession of a facility should a plant operator refuse or fail to meet

the order placed. Had the steel workers’ strike ensued, the steel

mills would have been unable to fulfill government contracts, which

were dedicated to the war effort in Korea.26

Gordon Dean, Chairman of the Atomic Energy Commission,

informed President Truman that if there were a stoppage in

25 Selective Service Act of 1948, H.R. Rep. 2438, 80th Cong. S* 2(d) (1948) http://www.loc.gov/rr/frd/Military_Law/pdf/act-1948.pdf 26 Id.

10 WULR Vol VII, Issue II Winter 2014 production of steel, the atomic weapons project would be delayed.27

Section 18 of the Selective Service Act gave Truman seizure power

because the steel companies would have been unable to fulfill the

government’s contracts, thus impairing the Atomic Steel

Commission. Department of Justice lawyers agreed with this

conclusion in order to ensure the continuance of essential steel

production; therefore, the President would have been justified in

seizing the steel mills.28 While this indicates strong statutory

support pointing to the constitutionality of the President’s seizure,

there are several other important statutes to examine.

2. The Defense Production Act

The Defense Production Act of 1950 is another statute that

would have given President Truman the authority to seize the steel

mills. This act ensured the availability of the nation’s industrial

resources to meet national security needs by granting the President

powers to establish the supply and timely delivery of materials,

services, and products to military and civilian agencies.29 At the

outbreak of the Korean War, President Truman sent a message to

Congress stating the need to increase military materials and supplies

because the nation’s military and economic preparedness were

inseparable.30 The situation in Korea was escalating, which enabled

the President to propose this legislation and Congress to pass it.

The section of the Defense Production Act that pertains to

the President’s power to seize the steel mills can be found in Title II

Section 202. This part of the statute “authorizes the President to

requisition certain property which is needed for the national defense,

provided that such need is immediate and impending, and such as

will not admit of delay or resort to any other source of supply and

that all other means upon fair and reasonable terms have been

27 Supra note 1, at 71. 28 Id. at 76. 29 DANIEL H. ELSE, CONGRESSIONAL RESEARCH SERV., DEFENSE PRODUCTION ACT: PURPOSE AND SCOPE (2009). 30 Id. at 1.

Brickman 11

exhausted.”31 Secretary of State Robert Lovett stated that any

stoppage in steel production would seriously jeopardize the war

effort in Korea and the domestic economy. He asserted, “Our entire

combat technique in all three services depended on the fullest use of

our industrial resources.”32 Thus, there was clearly a national

emergency, allowing President Truman to invoke this statute and

thereby seize the steel mills in order to requisition materials for the

national defense.

3. The Mutual Security Act and The Marshall Plan Aside from statutes, the United States is obliged to honor

treaties that have been signed into law. It became clear to the

Truman administration and Congress that in order for the European

allies to stabilize, these countries needed assistance following the

devastation of World War II. Thus, the Mutual Security Act, which

emphasized an increase in military assistance to democratic nations,

and the Marshall Plan were enacted. In addition, “Congress

earmarked the monies for raw materials, guns, tanks, planes, and

medical supplies.”33 Congress and President Truman believed that

preventing the spread of communism required providing economic

aid to distressed nations.

The Marshall Plan generated a resurgence in the

industrialization of Western Europe and afforded investment to the

region. The Marshall Plan channeled over thirteen billion dollars to

Europe, successfully sparking an economic recovery.34 The provided

aid is said to have “solidified US leadership of the Western alliance,

buttressed moderate elements in Western European politics,

smoothed Europe’s labor-management relations, and checked the

31 Donald S. Frey, Maintaining Economic Freedom under the Defense Act of 1950, 18 U. Chi. L. Rev. 218 (1951). 32 Supra note 1, at 74. 33 Truman Signs Mutual Security Act, http://www.history.com/this-day-in-history/truman-signs-mutual-security-act (last visited Nov. 11, 2013) 34 Marshall Plan, http://www.history.com/topics/marshall-plan (last visted Nov. 11, 2013)

12 WULR Vol VII, Issue II Winter 2014 westward march of communism.”35 Had the steel mills stopped

production, the United States would have been unable to fulfill

these obligations and the intended gains brought about by the

Marshall Plan would have been reversed. Because the President is

required to “take care that the laws be faithfully executed,” he is

obligated to ensure that the resources and aid promised to foreign

nations are secure. Thus, Truman’s seizure of the mills was a

permissible means under the Take Care Clause of the Constitution

to enforce the United States’ treaty obligations.

PART 3: YOUNGSTOWN REVISITED

3a. Supreme Court Ruling

The Supreme Court majority ruled incorrectly for the

following reasons. First, the Court failed to appreciate that a steel

stoppage would create a national crisis. Had the steelworker strike

ensued as planned, the United States’ entire steel production effort

would have completely shut down. Domestically, this would have

had serious implications for the economy. As Secretary of

Commerce Charles Sawyer explained to President Truman, “a ten

day interruption of steel production would mean the loss of ninety

six thousand feet of bridge and fifteen hundred miles of highway.”36

Additionally, airplane and ship production would have been

curtailed; petroleum, gas, electric power plants, and coalmines were

all in some way dependent on steel.37 A decrease in production in

these areas would lead to serious unemployment.

The conflict in Korea required steel for ammunition as well

as other wartime necessities. Robert Lovett, Truman’s Secretary of

Defense, informed him that any stoppage of steel production would

dramatically increase the risk of a shortage in the armament

35 Barry Eichengreen & Mark Uzan, The Marshall Plan: Economic Effects and Implications for Eastern Europe and the Former USSR, in 7.14 Economic Policy 13, (1992) 36 Supra note 1, at 75. 37 Id.

Brickman 13

program.38 He explained that the entire war effort relied on the

industrial facilities producing steel at full capacity, stating: “We are

holding the line with ammunition, and not with the lives of our

troops.39” Henry H. Fowler, Administrator of the National

Production Authority, briefed Truman that the inventory of several

types of ammunition was already low.40 Considering these

statements by Truman’s staff, it is clear that any stoppage in steel

production would have jeopardized the nation domestically and in

the foreign theater.

Furthermore, the Court sided against Truman because

Congress never issued a formal declaration of war. Nevertheless,

Truman had declared a limited national emergency on Dec. 16, 1950.

This declaration triggered a number of statutory provisions, giving

him additional powers to face the crisis in Korea.41 Unfortunately,

the declaration was not enough to convince the nation that a serious

emergency existed. The administration was deprived of the

cooperation of Congress, many of whose members were unwilling to

act as if the United States was involved in an acute wartime

emergency.42

If there had been an official declaration of war, then it would

have been treated as a statute and the President would have received

certain authorities in order to execute the declaration faithfully.43

Additionally, Assistant Attorney General Baldridge derailed

Truman’s defense by claiming that the President has unlimited

powers during times of emergency. It is possible that, had

Baldridge’s arguments been based upon the statutes explained

previously in this paper, the Supreme Court would have upheld the

seizure. But it seems that the Supreme Court was more interested in

38 Id. at 74. 39 Id. 40 Id. 41 Id. at 3. 42 Id. 43 Id. at 222.

14 WULR Vol VII, Issue II Winter 2014 preserving the separation of powers than recognizing the real

emergency at hand.

3b. Justice Jackson’s Three Levels of Presidential Authority

After determining the facts of this case and establishing a

general understanding of presidential power, Justice Jackson’s

three-tiered approach to presidential authority is flawed. While the

first and third tiers are valid, the second tier must be eliminated. The

second tier describes the formation of a “twilight zone” when

Congressional intent is unclear. It is fair to argue that President

Truman’s seizure would fall under the second tier because he had

sent a message to Congress asking for approval or refusal of his

actions; there was never a response. However, this tier fails to

provide any direction for Presidential decision-making. Depending

on congressional inertia, the lack of a response could point to

acquiescence or approval of the President’s actions.

On the other hand, some may argue that lack of a response

from Congress points to disapproval of the President’s actions. It is

almost impossible to say which view is correct, and this second tier

does nothing to support or oppose the President’s inherent

authority. Additionally, the second tier could invite judicial mischief.

If congressional intent is unclear, then it is the Court’s responsibility

to decide whether the President’s action was constitutional. When

it is unclear whether Congress would approve or disapprove of an

action, judges are left to make the decision of which way

congressional inertia is leaning. When there is no clear direction

from Congress, the judge would have to rely on his or her own

beliefs and perspectives of the situation instead of enforcing the

laws neutrally. It is possible that the members of the Court could

take personal feelings into account because there is no clear

guideline regarding the President’s power in this tier.

The new two-pronged system of presidential power would

only require the use of the first and third tier. This would place the

Brickman 15

burden of a decision first on the President. After he or she acts, the

burden will be placed on Congress to decide whether it approves or

disapproves of the actions. This system is a more concise and

consistent way to determine the President’s authority in a situation.

PART 4 : CONCLUSION

While the President may not have been able to rely on his

inherent authority to seize the steel mills, various statutes and

precedents made the seizure constitutional. An array of treaties and

statutes required the President to ensure the United States’ security

by faithfully executing the defense program as authorized by

Congress. Had there been a stoppage in steel production, it would

be nearly impossible for the nation to meet these obligations.

Adhering to these requirements, the seizure was a necessary and

proper response to fulfill a constitutional duty.

While the opining Justices offered valid explanations as to

why the seizure was unconstitutional, they did not adequately

consider the emergency that was at hand. As opposed to properly

examining the current crisis and the various statutes, they took a

stand against presidential power. While it is important that the

President’s power remains in check, Truman properly executed his

authority and did not go beyond the constitutional realm of his

powers. One of the law clerks on the Supreme Court in 1952 was

William Rehnquist.44 Rehnquist described the impact of public

opinion on the judiciary in this case, stating: “I think that this is one

of those celebrated constitutional cases where what might be called

the tide of public opinion suddenly began to run against the

government, for a number of reasons, and that this tide of public

opinion had a considerable influence on the Court.”45 It seems that

44 Supra note 11, at 7. 45 Id. at 7.

16 WULR Vol VII, Issue II Winter 2014 the courts were influenced by the public and were unable to

consider all relevant factors.

Justice Jackson’s three-tier test for presidential power

should be revised before it is applied again. There is no use for the

second tier because it is impossible to define inaction by Congress.

It is possible that judicial mischief occurred in this case due to the

intense public scrutiny of Truman’s seizure of the steel mills. The

pressure by the public could have influenced the Court’s decision

because there was no clear way to determine whether Congress

approved or denounced the President’s actions. A two-tiered system

is a more functional and reliable way to evaluate the President’s

authority.

Judgment without Justice: The Evolution of Civilian Trials under

Military Commissions

By John Moreland*

Military commissions were first used in American history during the American Revolution by the Continental Army. They were again used in the War of 1812 and the Mexican-American War. Perhaps the most expansive use of military commissions was during the Civil War, including the famous trial of the Lincoln assassination conspirators. This article examines the use and change of trials of civilians by military commissions from the American Revolution to the post-9/11 United States. It does so by canvasing three landmark military commissions: the trial of the Lincoln assassination conspirators, ex parte Quirin (1942), and Hamdi v. Rumsfeld (2004). In each case, it examine the facts, the procedures used by the military tribunals, and the outcomes and precedent that each set for American jurisprudence. By studying this evolution of military commissions, not only do the violations of constitutional rights become apparent, but also the overreaching of constitutional powers by the Executive Branch.

While each of the three cases possesses distinct time periods, fact patterns, and outcomes, all of them resulted in the violation of the defendant’s constitutional rights, the overreaching of governmental power by one branch exercising the authority of another branch, and the use of military commissions as an instrument of expedient revenge for attacks against America. In all three cases, the jurisdiction of the Military Commission was challenged on the basis that the Executive did not have the constitutional authority to appoint commissions. Also, they violated the Fifth and Sixth Amendment rights of the accused by not providing for a Grand

18 WULR Vol VII, Issue II Winter 2014

Jury and having the trial proceedings in secret. The suspension of habeas corpus and martial law was also of issue. It is interesting to see the evolution of military commissions over the course of history and to consider their potential in the future. Even though several constitutional rights have been adopted and protected in these tribunals, the question of who is to establish them still remains. Is it expressly Congress? Is it the President, acting as Commander-in-Chief? The Supreme Court has yet to address these issues. Perhaps by not addressing these questions, the Supreme Court is giving the Executive tacit approval. However, it is during a time of war or national emergency when the president is most likely to make extralegal decisions and thus constitutional rights are most threatened.

*A life-long resident of central Illinois, John Moreland graduated in 2013 from the University of Illinois with a BA in history. He plans to start his PhD in Civil War history in the fall of 2014 and thus forth begin a career in academia.

Table of Contents INTRODUCTION 18 I: THE LINCOLN CONSPIRATORS 22 II: EX PARTE QUIRIN 33 III: HAMDI V RUMSFELD 40 VI: CONCLUSION 47

INTRODUCTION

In a post-9/11 world, “military commission” has become

a phrase that elicits either foreboding or patriotic zeal in

defense of our national security. While proponents have

deemed such tribunals a military necessity, opponents have

deemed them an assault on individual liberties and rights.

Unfortunately, the War on Terror, begun by the Bush

Administration, has second-guessed the laws of war. We no

longer contend with state enemies on a clear battlefield. The

enemies we face today fight with terror, targeting civilian

Moreland 19

populations and using other unconventional tactics in direct

violation of the internationally accepted laws of war. How do

we combat this new enemy and under which laws do we judge

them, especially when many are United States citizens? More

importantly, who is authorized to constitute military

commissions in order to try such offenders? Even though the

terrorist attacks were unique in American history, these legal

questions were not. By examining the evolution of military

commissions we can see not only the violation of

constitutional rights but also the overreaching of

constitutional powers by the Executive Branch.

The origins of military commissions in America extend

back to the early days of the country itself. In June of 1775, as

the American Revolution began to escalate, the Continental

Congress adopted 69 Articles of War, drawn largely from the

British Articles of War.1 These Articles of War were

administered exclusively by the legislature and framed the

procedures for courts-martial of soldiers, not civilians.2 In

1787, Samuel Carter, a citizen of New Jersey, was arrested for

delivering arms to the British. General George Washington

immediately ordered Carter to be transferred to a New Jersey

civilian court stating, “[I am] not fully satisfied of the legality

of trying an inhabitant of any State by Military Law, when the

Civil authority of that State has made provisions for the

punishment of persons taking Arms with the Enemy.”3

With the ratification of the United States

Constitution in 1787 and the subsequent creation of a new

American government, military power stemmed from

legislative authority as it did during the war. Pursuant to the

Constitution, the President was made Commander-in-Chief of

the army and navy but at the same time was made accountable

1 LOUIS FISHER, MILITARY TRIBUNALS & PRESIDENTIAL POWER: AMERICAN

REVOLUTION TO THE WAR ON TERRORISM 7 (The University Press of Kansas 2005). 2 Id. at 9. 3 FISHER, supra note 1, at 10.

20 WULR Vol VII, Issue II Winter 2014

and subordinate to civil law. Under Section 8 of Article I of the

Constitution, it was Congress who was given the power to

“make Rules for the Government and Regulation of the land

and naval Forces.” In 1789, legislation was passed that

essentially adopted the Articles of War that had been used

during the Revolutionary War. As time passed, the articles

were expanded and supplemented. In April 1806, Congress

enacted a bill that consisted of 101 Articles of War, many of

which, like the previous Articles of War, set forth the rules and

procedures for courts-martial. The articles would continue to

be restructured, and their boundaries tested, over the next

several years.4

One of the first instances in which military

commissions were used to try civilians was during the War of

1812 when General Andrew Jackson declared martial law

throughout the city of New Orleans. After the British were

defeated Jackson maintained the state of martial law. Louis

Louallier, a New Orleans resident, wrote an article in a local

newspaper declaring that citizens accused of a crime should be

tried before a civil court, not a military tribunal and stated that

Jackson’s order was “no longer compatible with our dignity

and our oath of making the Constitution respected.” On

March 5, 1815, General Jackson had Louallier arrested for

inciting mutiny and disaffection within the army. However,

when Federal District Judge Dominck Hall granted a writ of

habeas corpus for Louallier, Jackson arrested the Judge as well.

Jackson was later fined $1,000 for his actions, ironically by

Judge Hall himself.5

Military commissions were once again used on

civilians during the Mexican American War. When American

soldiers invaded Mexico, they did not have a stable legal

system to prosecute those who violated the law of war.

Therefore, General Winfield Scott declared a state of martial

4 LOUIS FISHER, MILITARY TRIBUNALS: HISTORICAL PATTERNS AND LESSON 3-6 (CRS 2004). 5 FISHER, supra note 4, at 5-8.

Moreland 21

law in Mexico for both American soldiers and Mexican

citizens. However, when Secretary of War William Marcy

submitted a bill that authorized these military tribunals,

Congress refused to consider it. In curbing the lack of

Congressional authority, Scott issued General Orders No. 20

on February 19, 1847. This order defined specific crimes

committed by civilians and American soldiers and declared

those crimes to be tried before military commissions. Scott

never did receive Congressional permission for his military

commissions and after the war the Supreme Court overturned

many of Scott’s actions and the actions of other officers who

ordered military trials of civilians.6

The most expansive use of military commissions,

however, occurred during the Civil War. These military

commissions did not come from Congress but rather from

President Lincoln himself. After declaring martial law and

establishing military commissions in areas such as Missouri

and Maryland, President Lincoln convinced Congress to

recognize and approve, retroactively, his Presidential acts. In

1863, one particular piece of legislation declared “all

persons…found lurking as spies…shall be triable by a general

court-martial or military commission.”7 Many federal judges

during the war attempted to maintain their authority but they

were either curtailed or simply ignored.8 Even as the Civil

War came to a close and both sides began to piece together a

war-torn nation, military commissions would continue to be

used to extract revenge for a war-torn nation.

This is a study into the evolution of military

commissions in America by examining three landmark cases:

the trial of the Lincoln conspirators, ex parte Quirin, and Hamdi v.

Rumsfeld. Each of these cases possesses distinct time periods,

fact patterns, and outcomes. At the same time however, they

6 Id. at 11-14. 7 12 Stat. 737, § 38 (1863). 8 Id. at §§ 16-20.

22 WULR Vol VII, Issue II Winter 2014

share similarities. All three resulted in the violation of the

defendant’s constitutional rights, the overreaching of

governmental power by one branch exercising the authority of

another branch, and the use of military commissions as an

instrument of expedient revenge for attacks against America.

By looking at these three cases, we can finally bring justice to a

so-called legal system that has deprived United States citizens

of their constitutional rights in the name of national security.

I: THE LINCOLN CONSPIRATORS

On the evening of April 14, 1865, a lean, well-dressed

gentleman with coal black hair and mustache entered

Taltavul’s Tavern located next to Ford’s Theatre. Despite the

fact that it was Good Friday, the war was over and

Washington D.C. had been in a state of intoxication for a

week. This gentleman, however, did not come to Taltavul’s to

join in the celebration. He walked across the dingy, noisy

room and up to the bar. Being a regular, he usually asked for

brandy, but on this particular night, he asked for whiskey. It

would be his last for a while. Further down the bar, a man,

already drunk, lifted his glass to the dark haired gentleman and

said, “You’ll never be the actor your father was.” John Wilkes

Booth smiled and replied, “When I leave the stage I will be the

most famous man in America.”9

Meanwhile, George Atzerodt rode to the Kirkwood

House to assassinate Vice-President Andrew Johnson. Upon

arriving, Atzerdodt decided, like Booth, to calm his nerves

with a drink before climbing the stairs to Johnson’s room.

However, one drink turned into several and Atzerodt never

made an attempt on Johnson’s life. He left the bar, stumbled

onto his horse, and fled the city.10 Four blocks to the

northwest Lewis Payne and David Herold arrived at Secretary

9 JIM BISHOP, THE DAY LINCOLN WAS SHOT 203 (Perennial Library 1955). 10 BISHOP, supra note 9, at 205.

Moreland 23

of State William Seward’s house at 10:10 p.m. Herold held the

horses as Payne went to the door. Pretending to be delivering

medicine from Seward’s doctor, Payne attempted to gain

access. When the servant refused him entrance, Payne forced

himself in and up the staircase. Making his way to the

bedroom, he made several attempts to stab Seward.

Unsuccessful, Payne ran out of the house and escaped down H

Street. Herold had already fled the scene.11

Shortly after 10 p.m., Booth left Taltavul’s and walked

through the front entrance of Ford’s Theatre where the

popular comedy Our American Cousin was being performed.

After waiting in the lobby a moment, he turned right, ascended

the dress circle stairs, and walked to the white door at the end

of the hallway leading to box number seven. Upon entering

the unguarded presidential box, Booth withdrew from his

pocket a Derringer pistol. At the very moment when the

audience exploded with laughter, John Wilkes Booth, the most

famous actor in America, fired a bullet into the back of

President Abraham Lincoln’s head. As the theatre erupted in

pandemonium, Booth leapt from the box onto the stage,

breaking his leg in the process. Hobbling off the stage, he

escaped out the back door, leapt onto his mare and galloped

into the darkness.12

After fleeing Secretary Seward’s home, Herold rode

down Pennsylvania Avenue, across the Navy Yard Bridge, and

into Maryland. Only a few minutes earlier, Booth had taken

the same route out of Washington.13 About eight miles out of

the city limits, Herold finally caught up with Lincoln’s

assassin. Five miles later, Booth and Herold arrived at the

Surratt Tavern where Mary Surratt, the owner, had placed

carbines, a set of field glasses, and a bottle of whiskey for their

escape. The two continued their flight until they reached the

11 Id. at 219-222. 12 Id. at 205-210. 13 JAMES L. SWANSON, MANHUNT: THE 12-DAY CHASE FOR LINCOLN’S KILLER 80 (HarperCollins 2006).

24 WULR Vol VII, Issue II Winter 2014

farmhouse of Dr. Samuel Mudd at around 4 a.m. Dr. Mudd set

Booth’s leg and allowed him and Herold to stay and rest before

they continued their flight south.14

At 7 p.m. the next evening, Booth and Herold left Dr.

Mudd’s house. Their escape south continued for another

twelve days. On April 26, while hiding out in a tobacco barn

on Richard Garret’s farm in Virginia, Booth and Herold were

finally caught and surrounded by Union soldiers. Herold

surrendered but Booth remained in the barn, refusing to give

himself up.15 Minutes later, Sergeant Boston Corbett found a

hole in the side of the barn, took aim with his revolver, and

fired a bullet into the back of Booth’s head, almost at the exact

same spot that the president had been shot. Dragging his

paralyzed body out of the barn that had been put ablaze in

order to smoke the two conspirators out, the soldiers placed

him on the front porch of the Garret farmhouse. A few hours

later, Booth, now the most infamous actor in America, died and

walked onto the stage of history.16

In the days after the assassination, pieces of the puzzle

began falling into place as authorities investigated anyone

connected with Booth. Finally, eight individuals were arrested

and taken into custody. After giving himself up at the Garret

farm, Herold was taken back to Washington. Five of the

suspected conspirators were arrested on April 17. Unsuccessful

in the assassination of Seward, Lewis Payne made his way to

the Surratt home. To his surprise, the residence was already

being searched by the authorities. Both Mary Surratt and

Payne were arrested on suspicion. Edward Spangler was

arrested upon being implicated by John Ford, the owner of

Ford’s Theatre. Like Herold, Michael O’Laughlin turned

himself in. Samuel Arnold was arrested in Baltimore when a

letter was found in Booth’s hotel room with Arnold’s name on

14 Id. at 87-124. 15 Id. at, 326. 16 SWANSON, supra note 13, at 335-342.

Moreland 25

it. George Atzerodt was arrested on April 20 in Germantown,

Maryland at his cousin’s house. Dr. Samuel Mudd was arrested

the next day. After being interrogated by authorities for a

second time, Dr. Mudd finally admitted to knowing Booth

before the assassination and harboring him during his escape.17

Seeking legal approval for the use of a military

commission to try the eight conspirators in custody, President

Johnson wrote a letter to Attorney General James Speed asking

for his legal opinion on the appropriate course of action.

Despite the fact that he admitted in his legal opinion that the

civil courts were open, functioning, and capable of trying the

conspirators, Speed responded, “[t]he conspirators not only

may but ought to be tried by a military tribunal.”18 With this

justification, President Johnson issued the following order on

May 1: “It is ordered that the Assistant Adjutant-General detail

nine competent military officers to serve as a Commission for

the trial of said parties, and that the Judge Advocate General

proceed to prefer charges against said parties for their alleged

offenses.”19

Nine days later, the eight accused were brought to the

Old Arsenal Penitentiary building in Washington D.C. before

the nine military officers that had been appointed to serve on

the Commission, none of which were lawyers. The eight were

asked if they had any objections to any member of the

Commission, to which they replied they had none. The Judge

Advocate General then swore in the members of the

Commission. Brigadier General Joseph Holt, John Bingham

and Colonel Henry Burnett were appointed as Assistant Judge

Advocates who would help prosecute the case for the

government. With the Commission and Judge Advocates

present, the accused were asked if they wanted to acquire legal

17 ROY Z. CHAMLEE, LINCOLN’S ASSASSINS: A COMPLETE ACCOUNT OF THEIR

CAPTURE, TRIAL, AND PUNISHMENT 142-155 (McFarland & Co. 1990). 18 Opinion on the Constitutional Power of the Military to Try and Execute the Assassins of the President, Op. Att’y Gen. 3 (1865). 19 Executive Order, Andrew Johnson, PUB. PAPERS (May 1, 1865).

26 WULR Vol VII, Issue II Winter 2014

counsel. All eight wished to do so. The Commission,

therefore, afforded the defendants time to retain counsel and

adjourned until the following morning.20

On May 10th, at 10 a.m., the eight conspirators were

once again brought up to the third story of the Old Arsenal

Penitentiary for arraignment. Standing before the appointed

Commission, the conspirators were charged with “combining,

confederating, and conspiring together with one…John Wilkes

Booth…to kill and murder…Abraham Lincoln…Andrew

Johnson…[and] William H. Seward…on the 14 day of April,

A.D. 1865.”21 All the defendants subsequently pled “not guilty.”

After the charges had been read and the pleas heard, the

Commission discussed and adopted their own rules of

proceeding that would govern the trial. The most notable rule

by the Commission was that the proceedings were to be held

in secret and the public barred from the trial. With their rules

agreed upon, the Commission adjourned in order to give the

accused additional time to secure and communicate with their

attorneys.22

By May 12, all eight defendants had successfully

acquired counsel. On that day, each attorney was introduced

and approved by the Commission as required by the Commission’s

own rules. Upon the conclusion of these preliminary matters,

Reverdy Johnson, attorney for Mary Surratt, and Thomas

Ewing, attorney for Samuel Arnold, rose to challenge the

jurisdiction of the Military Commission over the civilian

defendants. After arguments were heard, the members of the

Commission ruled on their own jurisdiction and denied the

defendants’ motion. Over the next 49 days, 366 witnesses

testified during secret hearings in which irrelevant evidence

was admitted and constitutional rights were violated. The

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

Moreland 27

controversy over the Commission’s jurisdiction, however,

remained.23

On June 16, Johnson arose and again challenged the

jurisdiction of the Commission on the basis that there was no

constitutional foundation for it. The Executive possessed no

authority to make rules for governing or regulating the army or

navy. These powers belonged exclusively to Congress and

such rules could not have been passed except by Congress. He

argued that in order to protect citizens from the Executive

overreaching its power, the founding fathers adopted certain

protections and therefore the Military Commission lacked

jurisdiction to try the eight individuals based on the fact that it

did not provide for their Fifth and Six Amendment rights

under the United States Constitution.24 The Fifth Amendment

states, “no person shall be held to answer for a capital crime or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury…”25 The accused, therefore, were

within the jurisdiction of the civil courts and entitled to the

protection of indictment.

For a majority of the trial, the proceedings were held in

secret and the press barred from the courtroom. Johnson

argued that this violated the Sixth Amendment which states

that “in all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial” and the right “to be

confronted with the witnesses against him.”26 Johnson

questioned, “If the names of witnesses, and their evidence, are

not published, what obstacles does it not interpose to establish

their innocence?” He reasoned, “A public trial, therefore, by

which the names of witnesses and the testimony are given,

even in monarchical and despotic Governments, is now

esteemed and amply adequate to the punishment of guilt, and

23 JOHNSON, supra note 19, at 22-23. 24 BENN PITMAN, THE TRIAL: THE ASSASSINATION OF PRESIDENT LINCOLN AND THE

TRIAL OF THE CONSPIRATORS 252-253 (Edward Steers Jr. ed., The University Press of Kentucky 2003). 25 U.S. CONST. amend. V. 26 Id. at amend. VI.

28 WULR Vol VII, Issue II Winter 2014

essential to the protection of innocence.”27 Johnson

acknowledged that every American had the right to expect the

punishment of the guilty, but that punishment had to be

administered according to the law of civil courts that were

governed by the Constitution.

He also pointed out that in the Articles of War, the

very same laws that the Commission members were

sanctioned under, if a defendant is not subject to military

jurisdiction when he commits the alleged offense the military

authorities must turn him over to the civilian courts for proper

trial.28 This, of course, the Military Commission did not do

and therefore violated the same laws through which they

assumed jurisdiction. Furthermore, the accused were also

charged with “military treason.” Article III of the United

States Constitution provides that “no person shall be

convicted of treason, except on the testimony of two witnesses

to the same overt act, or on confession in open court.”29

Nowhere did the term “military treason” exist prior to the Civil

War and the only definition of “treason” rested solely within

the Constitution. Therefore, the offense of treason could only

be tried and punished as prescribed by the Constitution, not

the Articles of War.

Johnson continued his argument by addressing the

government’s claim that the Commission possessed

jurisdiction on the basis that it was an incident of the

president’s war power. Johnson’s contention, as mentioned

before, was that the war powers lay exclusively with Congress

who maintained the authority to raise armies, govern those

armies by rules, and confer powers to the president as

commander-in-chief. “He is impotent to that end as a private

soldier.”30 Therefore, if military commissions were an “incident

to the president’s war power,” it had to have been authorized

27 PITMAN, supra note 24, at 255. 28 Id. at 254. 29 U.S. CONST. art. III, § 3. 30 PITMAN, supra note 24, at 253.

Moreland 29

by Congress. No such military commissions had been

authorized by the legislature, nor did the Articles of War

themselves mention such tribunals except for courts-martial

and courts of inquiry which were strictly limited to the

prosecution of uniformed soldiers.31

The government also asserted its jurisdiction to try the

eight conspirators under the suspension of habeas corpus and the

declaration of martial law. Johnson correctly contended that

the purpose of the writ of habeas corpus was simply to determine

the legality of the detention. Even if this writ had been

suspended by Congress, which it had not, the only right that

would have been suspended was the right of the accused to be

brought before a civil court.32 It was also argued that martial

law necessitated a military commission since martial law is

enacted when civil law fails to maintain order, thus military

tribunals take the place of civil courts. The Government relied

on the precedent of General Scott in Mexico when he

established military commissions under his declaration of

martial law. Johnson, however, argued that during both the

Mexican-American War and the Civil War, martial law had

not been declared by the proper authority and the civil courts

were open and functioning, thus negating the two

requirements for the existence of martial law.33

Additionally, the court proceedings of the Military

Commission were far from being impartial. Not only were the

members of the Commission trying the individuals who were

being accused of being accomplices in the assassination of

President Lincoln, but they were also weeding out alleged

Confederate conspiracies throughout the recent Civil War.

Testimony about infecting Washington D.C. with smallpox,

plotting to burn New York City, and starving Union prisoners

were actually admitted into evidence, but would have been

31 Id. at 253-254. 32 Id. at 257. 33 Id. at 261.

30 WULR Vol VII, Issue II Winter 2014

totally irrelevant and never admitted into a civil court. Even

the relevant testimony that was given would have been thrown

out in a civil court due to the fact that much of it was simply

hearsay. The Military Commission was obviously seeking

convictions and blatantly ignored the flaws in the evidence.34

As noted previously, the proceedings were held in

secret. To this, Johnson stated, “[i]t partakes more of the

character of the Inquisition.”35 Interestingly, there was more

public criticism to the closed proceedings than to the use of a

military commission. While Americans wanted to follow the

trial of the ones who murdered their president, the

newspapers, of course, feared that the lack of coverage to their

readers would in turn lower revenue. Eventually public outcry

increased so much that the court proceedings were opened up

to the public and the press. Along with this public pressure,

there was also the concern among the government that if the

accused were convicted in secret it might appear that the

prosecution’s case was too weak to try in open court.36

Another flaw in the court proceedings was the

character of the pleadings themselves. According to the

government it charged the eight conspirators with aiding the

rebellion in murdering President Lincoln, Vice-President

Johnson, Secretary of State Seward, and General Grant, thus

disrupting the line of succession and preventing a “lawful

election” and overthrowing the Constitution and the laws of

the United States. Johnson argued that this pleading would

not have been tolerated in a civil court, as the survival of the

government was not contingent on the lives of any or all of its

leaders. In fact, the government and its necessary functions

continued just as they had before the assassination of President

Lincoln. Unfortunately, the Commission, for a second time,

34 THOMAS REED TURNER, The Military Trial, in THE TRIAL: THE ASSASSINATION OF

PRESIDENT LINCOLN AND THE TRIAL OF THE CONSPIRATORS 25 (Edward Steers Jr. ed., The University Press of Kentucky 2003). 35 PITMAN, supra note 24, at 255. 36 TURNER, supra note 34, at 12.

Moreland 31

dismissed Johnson’s arguments against their jurisdiction and

the trial continued. 37

Finally, after 49 days of trial, the Commission

published their findings. David Herold, Lewis Payne, George

Atzerodt, and Mary Surratt were all found guilty and

sentenced to hang. Michael O’Laughlin, Samuel Arnold, and

Dr. Samuel Mudd were found guilty and sentenced to hard

labor for life. Edward Spangler was also found guilty but was

sentenced to only six years of hard labor.38 On July 7, Mary

Surratt’s attorney obtained a writ of habeas corpus from a federal

judge ordering the army to release her and bring her before a

civil court. However, in the same hour, President Johnson

suspended her writ.39

On July 7, 1865, Herold, Payne, Atzerodt, and Surratt

climbed the scaffolding of the gallows in the courtyard of the

Old Arsenal Penitentiary. At 1:26 p.m. the four conspirators

were hung by the neck until dead.40 John Surratt Jr., Mary

Surratt’s son who was also involved in the assassination plot,

escaped into Canada. After his mother’s hanging, John sailed

for Europe and joined the Papal Zouaves under the alias “John

Watson.” On a tip from a fellow Zouave, Surratt was captured

in 1866 and taken back to Washington D.C. for trial. Unlike

his mother, John was tried before a civil court from June to

August 1867. The jury was unable to reach a verdict and he

was released. If he had been captured in 1865 and tried before

the military commission, he likely would have been convicted

and executed.41

Most voices of criticism against the Military

Commission were lost in the wave of revenge for the martyred

president. The following year, Americans began to see that

their longing for a quick trial and execution may not have been

37 PITMAN, supra note 24, at 259. 38 Id. at 247-249. 39 Id. at 250. 40 SWANSON, supra note 13, at 365. 41 Id. at 375-376.

32 WULR Vol VII, Issue II Winter 2014

the best course of action and that perhaps the jurisdiction of

military commissions needed to be limited in order to protect

against another act of revenge. The landmark case ex parte

Milligan, which originally began a year before President

Lincoln’s assassination, seemed to render the conviction of the

eight conspirators null and void even though, for the four

executed, their sentence was certainly final and irreversible.

This Supreme Court decision would set a precedent for the

legality of military commissions for the next several

generations.

On October 5, 1864, Lambdin Milligan was arrested

and charged in Indiana with conspiracy on the grounds of

planning to steal weapons held by the Union Army, liberate

prisoner of war camps, and overthrow the United States

government. On October 21, Milligan was put on trial by a

military commission in Indianapolis. He was found guilty and

sentenced to hang in May of 1865. Like the Lincoln

conspirators, Milligan argued against the jurisdiction of the

Military Commission that tried him. Nine days before he was

scheduled to be executed, Milligan petitioned for a writ of

habeas corpus, arguing that the Military Commission’s

assumption of jurisdiction was unconstitutional and that he

possessed a right to a trial by jury.42

This was the first time that the Supreme Court faced

the question of whether the military could try civilians in place

of civil courts in areas outside the actual field of military

operations. The Court found that civilians could not be tried

by military commissions when civilian courts were open and

functioning and that neither Congress nor the President

possessed the power to authorize such tribunals.43 This

decision was really the first significant judicial protection

against military and executive invasion of individual

constitutional rights for future generations of Americans. The

42 Ex parte Milligan, 71 U.S. 218 (1866). 43 Ex parte Milligan, 71 U.S. 218.

Moreland 33

critics, of course, condemned the decision, as it looked as

though the Court was trying to prevent the execution of

congressional policy.44 Congress asserted that this ruling

would restrict the ability to carry out their harsh policy of

Reconstruction. Therefore, in 1867, it passed a statute

declaring, “… no civil court of the United States, or of any State,

or of the District of Columbia, or of any district or territory of

the United States, shall have or take jurisdiction of, or in any

manner reverse any of the proceedings had or acts done as

aforesaid.”45 In other words, Congress limited the Court’s

jurisdiction to hear cases involving military law. Despite the

Milligan decision, military commissions continued throughout

Reconstruction. From the end of April 1865 to January 1, 1869,

there were 1,435 military trials of civilians.46

PART II: EX PARTE QUIRIN

After the Civil War and Reconstruction, the United

States military established very few commissions until World

War II. In 1913, a revision of the Articles of War, attempting to

limit the power of military commissions, stated that general

courts-martial possessed the power not only to try persons

subject to the Articles of War, but also those persons subject

to trial by military commissions. Later, language was added to

ensure that the jurisdiction of courts-martial and military

commissions were coherent and possessed the same

procedures. In 1920, Congress declared that the regulations for

military commissions were to follow the rules of evidence

recognized by the district courts of the United States. Despite

Congress’ attempts at curtailing the use of military

commissions, the military and specifically the Executive

overreached their constitutionally-given powers and assumed

44 ROBERT F. CUSHMAN, CASES IN CONSTITUTIONAL LAW 74 (Prentice Hall, INC. 1979). 45 14 Stat. 432, 437 (1868). 46 FISHER, supra note 4, at 25.

34 WULR Vol VII, Issue II Winter 2014

jurisdiction over civilians by establishing such commissions to

try them for offenses that should have been tried in civil

court.47

The defendants in ex parte Quirin, Ernest Peter Burger,

George John Dasch, Herbert Hans Haupt, Heinrich Heinck,

Edward Kerling, Herman Neubauer, Richard Quirin and

Werner Thiel all were German-born United States citizens.

Between 1933 and 1941, they returned to Germany.48 After the

United States had declared war on Nazi Germany, the eight

conspirators attended a sabotage school near Berlin, where

they were trained to use explosives and secret inscriptions.

Upon completion of their training, the accused left Germany

for France where Burger, Heinck, Quirin, and Dasch boarded a

submarine headed for the United States. On June 13, 1942, the

four, dressed in German uniforms, landed on Long Island with

explosives, fuses, and incendiary and timing devises. After

burying their uniforms, the men continued on to New York

City in civilian attire.49

The other four conspirators, Kerling, Neubauer, Thiel,

and Haupt boarded another German submarine at the same

French port. However, this submarine carried them to Ponte

Vedra Beach, Florida. They landed on June 17 wearing German

uniforms and carrying the same equipment as the other group.

These four also replaced their uniforms for civilian clothes and

proceeded to Jacksonville, Florida. Thiel went to Cincinnati,

Haupt and Neubauer went to Chicago, and Kerling went to

New York. All eight conspirators had received orders from the

German High Command to destroy railroads, factories,

bridges, and other strategic targets. Among the weapons they

carried were lumps of TNT disguised as pieces of coal that

could be thrown into furnaces of locomotives or factories.

47 Id. at 32-35. 48 Ex parte Quirin, 317 U.S. 163 (1942). 49 FISHER, supra note 1, at 91-92.

Moreland 35

However, their plan quickly unraveled the minute they set foot

on American soil.50

When the first group, led by Dasch, reached the coast

of Long Island in the early morning hours of June 13, they

emerged from the submarine and paddled to shore. As the four

began to unload the explosives from the raft, an unarmed

coastguardsman stumbled upon them during his patrol. Dasch

attempted to give him money in order to keep him quiet.

Taking the money, the coastguardsman returned to his station

and alerted the FBI. By the time the federal agents reached the

beachhead and found the discarded uniforms, the saboteurs

were gone. Soon thereafter, Dasch, in a moment of panic,

decided to turn himself in by making an anonymous call to the

FBI in New York City and then taking a train to Washington

D.C. to unveil their whole mission. With Dasch’s help, the FBI

quickly found and arrested the remaining seven conspirators.51

During interrogation, the eight conspirators assumed

they would be tried before a civil court; initially the federal

authorities had every intention of doing so since all eight were

United States citizens. In fact, the FBI told Dasch that if he

testified against the others, they would get a Presidential

pardon for him. The only provision was that the FBI would

keep his confession quiet from the public as it would endanger

Dasch’s family in Germany and diminish the FBI’s daring

capture and uncovering of the plot. However, on June 28,

Dasch, through his cell door, saw an agent reading a

newspaper with Dasch’s face on the front page. Having been

betrayed, Dasch was now prepared to make a full explanation

of the capture and plot to a civil court.52

A civilian trial was now not an option for the

government. President Roosevelt and FBI Director J. Edgar

Hoover were heralded for capturing all eight conspirators.

50 FISHER, supra note 1, at 92-93. 51 Id. at 92-93. 52 FISHER, supra note 4, at 94-95.

36 WULR Vol VII, Issue II Winter 2014

They certainly did not want the public to find out that Dasch

actually turned the others in or that two German U-boats

reached American soil undetected. Furthermore the

government was concerned that the 30-year prison sentence

for sabotage would not stick in civil court simply because the

eight men had not actually carried out the act of sabotage. A

military court, however, would accomplish several things: it

could carry out the trial in secret, reach a quick verdict, allow

for the adoption of its own procedural rules, and decide on a

maximum sentence, most likely the death penalty.53

On June 29, Secretary of War Henry L. Stimson and

Attorney General Francis Biddle met to discuss whether to try

the saboteurs in a civil or military court. A military

commission was quickly decided upon.54 The next day, Biddle

wrote a memo to President Roosevelt outlining the advantages

of a military commission. He recommended that Roosevelt

deny the conspirators access to civil courts so there was no

review of the Commission.55 On July 2, President Roosevelt

issued Proclamation 2561 entitled, “Denying Certain Enemies

Access to the Courts of the United States.” It began with the

following language, “…all enemies who have entered upon the

territory of the United States…in order to commit

sabotage…should be promptly tried in accordance with the law

of war.”56

On July 2, 1942, President Roosevelt appointed the

members of the Military Commission, the prosecution, and the

defense counsel. Comprising the Commission were three

brigadier generals and four major generals. Attorney General

Biddle and Judge Advocate General Myron Cramer would

serve as the prosecutors while Colonel Cassius M. Dowell and

53 Id. at 95. 54 Id. at 96. 55 Memorandum from Att’y Gen. Biddle to President Roosevelt (June 30, 1942) (on file with FDR Library). 56 Amending Executive Order No. 8197 of July 11, 1939, Prescribing Regulations Pertaining to the Administration of the Act of May 3, 1939, 7 Fed. Reg. 5101 (July 7,1942).

Moreland 37

Colonel Kenneth Royall would serve as the defense attorneys

for the eight defendants. As with the military trial of the

Lincoln conspirators, this particular commission possessed the

freedom to “make rules for the conduct of the proceedings,

consistent with the powers of military commissions.”57 In

regards to evidence, it could admit anything that could, “in the

opinion of the President of the Commission, have probative

value to a reasonable man.”58 The defense, of course, had to

grapple with the question of how one measures or defines

what is valuable to a reasonable man.

Among these rules were: “No peremptory challenge.

Challenge of members of the Commission for cause may be

permitted. The Commission, by a two-thirds vote of those

voting-the challenged members not voting-may pass on any

challenge.”59 The Commission was also allowed to use

procedures from the Manual for Courts-Martial at anytime.

Therefore, it was almost impossible for the defense to have

before it a set list of rules. Following the model of the Lincoln

conspirator’s trial, the eight German conspirators’ trial was

held in secret from July 8 to August 1. On arraignment, the

eight were charged with violating the law of war, two charges

of violating the Articles of War, and one charge of conspiracy.60

Not only would these procedures be questioned, but also the

jurisdiction and constitutionality of the Military Commission

itself.

Thirteen days into the trial, defense counsel Colonel

Royall met ex parte with Justice Owen Roberts. After hearing

about the situation, Justice Roberts told Royall that this case

most certainly needed to be reviewed. Oral argument began on

July 29 in Special Term. Because the Articles of War and the

law of war, issues rarely considered by the Supreme Court,

57 7 Fed. Reg. 5103 (June 2, 1942). 58 Id. 59 Rules Established by the Military Commission Appointed by Order of the President of July 2, 1942 (on file with Papers of Frank Ross McCoy). 60 PITMAN, supra note 24, at 991.

38 WULR Vol VII, Issue II Winter 2014

were being questioned, and given the fact that the Justices

were not very well prepared, the Court waived the one hour

argument limit for each side.61 However, there were problems

with the composition of the Court. Justice Frank Murphy had

already recused himself due to his position as an officer in the

reserves. Chief Justice Stone’s son was part of the defense.

Justice Frankfurter, on a regular basis, had been visiting the

White House to talk with President Roosevelt regarding the

German saboteurs and Justice James F. Byrnes was one of

Roosevelt’s advisors on the war effort.62

Despite the Court’s personal involvement or bias

regarding the case, all continued to hear the central legal issue

of whether the President was authorized to constitute a

military trial of civilians when the civilian courts were open

and functional. Royall and Dowell argued that even the 81st

and 82nd Articles of War, which provided for the military trial

of spies, could not have been applied to this case. None of the

eight individuals committed any act of spying in or around a

military installation or zone of military operations. In regards

to the charge of violating the law of war, this was a class of

international law, equivalent to common law. Royall and

Dowell argued there was no common law crime against the

United States. Instead this violation was specified as sabotage

which was covered by the United States Code and therefore

triable by a civil court.63

Furthermore, the Military Commission did not have

jurisdiction under the President’s declaration of martial law.

Counsel argued that the President’s order of martial law did

not cover the entire eastern shoreline of the United States.

There was no sufficient reason why anyone in that area should

have been deprived of their constitutional rights. Additionally,

the establishment of a military commission violated the Fifth

61 FISHER, supra note 1, at 106-107. 62 Id. at 107-108. 63 Ex parte Quirin, 317 U.S.

Moreland 39

and Sixth Amendments of the United States Constitution by

not providing for a grand jury or a public trial. The very same

Articles of War that constituted the Commission were

violated as well. Articles 46 and 50 contained the provisions of

appeal for individuals tried before military commissions. This

particular Military Commission deprived the accused of a

process of appeal.64

Oral argument before the Supreme Court ended on

July 30. The following day, the justices issued their per curium

decision upholding the jurisdiction of the Military

Commission. It would take an additional three months for a

full opinion to be written, but in the meantime, the Military

Commission had the go ahead to finish the trial. On August 1,

the Military Commission rendered a verdict and all eight

defendants were found guilty and sentenced to death. Based

on the Commission’s own rules, President Roosevelt approved

the death penalty for six of the conspirators while Dasch and

Burger received prison sentences. The six sentenced to death

were electrocuted on August 8.65 With the military trial of the

conspirators over, the members of the Supreme Court had to

finish their full opinion on why they decided to stand on the

side of the President and uphold the jurisdiction of the

Commission.

On October 29, the full opinion of ex parte Quirin was

released. In this opinion, the Supreme Court stated that due to

the secret nature and closed proceedings of the Commission, it

was impossible to evaluate whether the President had

jurisdiction to convene it or not. It did define United States

citizens, who commit acts of hostility against the United

States under an enemy government, as “enemy belligerents.”

These “enemy belligerents” were therefore subject to trial by

military commissions, which were provided for by the Articles

of War. In essence, the Supreme Court side-stepped the issue

64 Id. 65 Id.

40 WULR Vol VII, Issue II Winter 2014

of whether President Roosevelt possessed the authority to

convene the Military Commission or not by stating that it was

unnecessary to do so.66 Five decades later, the issue of military

commissions and the definition of “enemy belligerents” would

once again be debated.

Other military commissions were used during and

after World War II, all involving the President exercising

powers not given to him by the Constitution and the violation

of individuals’ constitutional rights, including the right to be

tried in a civil court. From 1952 to 1960, the Supreme Court

made additional rulings on military commissions and their

jurisdiction. In the 1955 case, Toth v. Quarles, the Supreme

Court, attempting to limit the jurisdiction of the military over

civilians, established that military commissions had no

standing to be considered among the Article III courts defined

in the Constitution simply because they infringed upon the

jurisdiction of federal courts which provide civilians

constitutional safeguards. United States District Judge Stern,

ruling in the 1979 case United States v. Tiede, stated his fear of

military commission as allowing the government “to arrest any

person without cause, to hold a person incommunicado, to

deny an accused the benefit of counsel, to try a person

summarily and to impose sentence — all as a part of the

unreviewable exercise of foreign policy.”67 Little did Judge

Stern know that twenty-two years later, the United States

would actually adopt the same “unreviewable foreign policy.”68

PART III: HAMDI V RUMSFELD

During the weeks and months after the terrorist

attacks of September 11, 2001 that took the lives of thousands

of Americans in the World Trade Center, in the Pentagon, and

66 Id. 67 United States v. Tiede, 86 F.R.D. 227, 228 (U.S. Court of Berlin 1979). 68 FISHER, supra note 4, at 47-67.

Moreland 41

in the fields of Pennsylvania, the United States government

began to put into place the “tools” it saw necessary to combat

the threat of organizations such as al Qaeda and the Taliban.

On September 14, Congress passed a resolution entitled

“Authorization for Use of Military Force.69 In effect, this

resolution authorized the President “to use all necessary and

appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11,

2001.”70 This was the first time in the history of the United

States that the government was permitted to hold and

prosecute by military commission non-state members of an

organization in an undeclared war. Two months later,

President Bush would not only use this authorization, but also

test its legal boundaries.

On November 13, 2001, the Bush Administration issued

a military order entitled, “Detention, Treatment, and Trial of

Certain Non-Citizens in the War Against Terrorism.”

Included in his order, Bush established that, “any individual

subject to this order, shall, when tried, be tried by military

commission.”71 The term “any individual subject to this order”

was defined by the administration as any individual who was

not a United States citizen and who was a member of al Qaeda,

engaged in acts of terrorism, or assisted such a terrorist.72 This

exclusion of United States citizens, however, was not strictly

obeyed. United States citizens, such as Yaser Hamdi, quickly

became victims of Bush’s order, in which they were arrested,

detained by the military, and denied their constitutional rights

before a military commission.

Yaser Esam Hamdi was born in Louisiana in 1980.

Sometime during his early childhood, Hamdi and his family

69 Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (Sept. 18, 2001) [hereinafter Authorization]. 70 See Authorization, supra note 69. 71 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 222 (November 16, 2001). 72 Id.

42 WULR Vol VII, Issue II Winter 2014

moved to Saudi Arabia. In 2001, Hamdi relocated to

Afghanistan, allegedly to receive military training from the

Taliban. Hamdi’s father continually maintained that his son

was in Afghanistan doing relief work. Shortly after September

11, he was captured in Afghanistan by the Northern Alliance

and turned over to American military forces. After being

interrogated in Afghanistan, Hamdi was transferred to

Guantanamo Bay in January of 2002. In April, after learning

that he was a United States citizen, Hamdi was transferred

two more times, first to Norfolk, Virginia and then to

Charleston, South Carolina where he was detained indefinitely

without access to an attorney.73

Finally in June of 2002, Hamdi’s father, acting as “next

friend,” filed for writ of habeas corpus with the federal district

court under 28 U.S.C. §2241 in the Eastern District of Virginia,

alleging that his son was being unlawfully detained, in

violation of the Fifth and Fourteenth Amendments to the

United States Constitution. The petition stated that he had

had no contact with his son since he was taken into custody in

2001, and that the Government was holding him “without

access to legal counsel or notice of any charges pending against

him.” The habeas corpus petition asked the court to appoint

counsel for Hamdi, ordered the government to halt all

interrogations, schedule an evidentiary hearing, and order his

immediate release. In response, the District Court ordered that

a public defender be appointed for Mr. Hamdi.74

The Government appealed to the Fourth Circuit,

where the lower court’s decision was rejected. The Appellate

Court stated that there was a need for limited judicial review

during times of war and that war-time decisions should be

deferred to the President and Congress. In its opinion, the

Court stated that, “if Hamdi is indeed an ‘enemy combatant’

who was captured during hostilities in Afghanistan, the

73 Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) rev’d, 542 U.S. 507 (2004).. 74 Hamdi, 316 F.3d 450.

Moreland 43

government’s present detention of him is a lawful one.”75 After

the opinion was issued, the government filed a motion to

dismiss the habeas corpus petition. Attached to the petition was

an affidavit from Michael Mobbs, the Special Advisor to the

Under Secretary of Defense for Policy, testifying that Hamdi

was captured in Afghanistan with a Taliban unit and an AK-47

in his hands.76

The District Court found that Mobbs’s affidavit, or

more popularly referred to as the “Mobbs Declaration,” fell “far

short” of supporting Hamdi’s arrest and detention, calling it

“little more than the government’s ‘say-so.’”77 The Court then

immediately ordered the government to turn over all

statements, notes, names and addresses of Hamdi’s

interrogators, dates and locations of interrogations, and his

detention for in camera review. Once again, the case went to the

4th Circuit when the government tried to have the production

order halted. The Appellate Court reversed the decision,

saying that it was “undisputed that Hamdi was captured in a

zone of active combat in a foreign theatre of conflict.”78

Therefore, according to the Court, an evidentiary hearing was

not necessary and improper. The habeas corpus petition was

likewise dismissed.79

The U.S. Supreme Court granted certiorari and

considered the question of whether the Executive branch had

the authority to detain citizens who qualify as “enemy

combatants.” Justice O’Conner gave the opinion of the Court,

in which Chief Justice Rehnquist, Justice Kennedy, and Justice

Breyer joined. The majority held that “although Congress

authorized the detention of combatants…due process demands

that citizens held in the United States as enemy combatants be

given a meaningful opportunity to contest the factual basis for

75 Id. 76 Id. 77 Id. 78 Id. 79 Id.

44 WULR Vol VII, Issue II Winter 2014

that detention.”80 Much like the Supreme Court that presided

over ex parte Quirin, this Court side-stepped the issue and did

not address whether the President was authorized by Article II

to detain United States citizens deemed enemy combatants.

In their reasoning, the Court acknowledged that the

capture and detention of both lawful and unlawful combatants

by “universal agreement and practice” are “important

incident[s] of war.”81 However, the Court concluded that

“there is no bar to this Nation’s holding one of its own citizens

as an enemy combatant.”82 Therefore, even in situations in

which enemy combatants are legally detained, there remains

the question of what the constitutional process is for a citizen

who disputes his status as an enemy combatant. Hamdi

argued that his detention based on an affidavit, containing

third-hand testimony, did not comply with the Fifth and

Fourteenth Amendments. The Court agreed stating, “The

threats to military operations posed by a basic system of

independent review are not so weighty as to trump a citizen’s

core rights to challenge meaningfully the Government’s case.”83

The Court further acknowledged that there were

significant interests on both sides of the case. Hamdi’s “private

interest is the most elemental of liberty interest-the interest in

being free from physical detention by one’s own

government.”84 In a time of ongoing conflict or war, the

government does have an interest in detaining those who do

pose a threat to national security. However, an unchecked

system of detention may lead to an oppressive and abusive

system of detention on those who do not pose that kind of

threat. In other words, the District Court and Appellate Court

took a constitutional risk. “That is, ‘the risk of erroneous

deprivation’ of a detainee’s liberty interest” was “unacceptably

80 Id. 81 Id. 82 Id. 83 Hamdi, 316 F.3d 450. 84 Id.

Moreland 45

high under the Government’s proposed rule.”85 The Court,

therefore, reaffirmed the weighing of government interests

against the restriction of liberty on citizens.

Additionally, the Court stressed the importance of

striking a balance of the Constitution between maintaining

national security and upholding due process and that during

times of conflict and war, the commitment of due process is

tested the most. Justice O’Conner wrote, “It is in those times

that we must preserve our commitment at home to the

principles for which we fight abroad.”86 It was decided that

the detention of Yaser Hamdi, a United States citizen, as an

enemy combatant did not strike that constitutional balance.

The Court reiterated the meaning of due process: “Parties

whose rights are to be affected are entitled to be heard; and in

order that they may enjoy that right they must first be

notified.”87 Hamdi was not notified of the charges against him

and was not allowed to be heard until his father brought his

case before a civil court. In this case, national security was of

concern, first and foremost, while Hamdi’s 6th Amendment

rights were entirely disregarded. The government thus failed

in balancing the Constitution.

In its final comments, the Supreme Court established

that due process requires some system in which a United

States citizen, who is being detained as an enemy combatant,

can rebut his classification. The “some evidence” standard as

provided in the Mobbs Declaration was highly inadequate;

furthermore, being subjected to military interrogations hardly

constituted, “a constitutionally adequate fact finding before a

neutral decision maker.”88 However, the Supreme Court did

state that due process could be “met by an appropriately

authorized and properly constituted military tribunal.”89 The

85 Id. 86 Id. 87 Id. 88 Id. 89 Id.

46 WULR Vol VII, Issue II Winter 2014

Court did not elaborate on this last statement but simply

vacated the judgment of the Fourth Circuit Court of Appeals

and remanded the case for further proceedings.90

Because of the Supreme Court ruling, there was no

military trial of Yaser Esam Hamdi. However, if there had been

a trial, it would have been established by President Bush’s

Military Order and the rules and procedures set forth by the

Department of Defense’s Military Commission Order No. 1.

Despite the fact that these military commissions do not

completely follow constitutional provisions, they have made

remarkable progress since the trial of the Lincoln conspirators.

Today, military commissions are open to the public (except

when classified information is being heard), evidence for the

prosecution is made accessible to the defendants, defendants

have the right to testify on their own behalf, and defendants

have the right to present evidence for their case.91

Military Commission Order No. 1 also sets forth trial

procedures. A panel of three to seven military officers, all of

whom are appointed by the Secretary of Defense, tries the

defendants. As stated before, hearsay evidence is admissible if

it contains “probative value to a reasonable person.” A

conviction of the accused requires a two-thirds vote by the

Commission members. Unlike the Lincoln conspirators,

defendants now enjoy the right of appeal. However, the appeal

panel is also appointed by the Secretary of Defense and is only

allowed to review the Commission’s rules, not federal law or

constitutional issues. Despite the seemingly progressive

elements of today’s military commissions, there are a few rights

that still do not exist within such tribunals. Military

Commission Order No. 1 does not contain any provision for

90 Id. 91 Military Commission Order No. 1: Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism, U.S. D.O.D. (March 21, 2002) [hereinafter Commission].

Moreland 47

habeas corpus or any other means of challenging the accused

detention or classification as an enemy combatant.92

PART VI: CONCLUSION

Military commissions have evolved considerably over

the course of American history. General Washington

attempted to establish a precedent when he turned over

Samuel Carter to a civilian court because he believed that a

military trial was inappropriate. It is safe to say that

Washington would have been disappointed to see how

military commissions have been used since. These tribunals do

not violate only individual constitutional rights, but also

separation of powers. The drafters of the Constitution put

into place certain safeguards in order to avoid the very

situation that has occurred with the establishment of military

commissions and their assumption of jurisdiction over

civilians.

The problem lies with the Executive Branch

overreaching its constitutional boundaries and exercising the

powers of Congress. This played out in the trial of the Lincoln

assassination conspirators, ex parte Quirin, and Hamdi v. Rumsfeld.

All three cases occurred during different time periods and

possessed varying fact patterns and outcomes. They all arose,

however, during a time of national emergency. This, according

to the presidents, gave them special executive privilege in the

role of Commander-in-Chief which did not require

authorization from Congress. In all three cases, the Supreme

Court continually rejected this argument. Federal courts even

stated their fear that the presidents exercised the powers of

the executive, legislative, and judicial branches through the use

of military commissions, violating not only individual rights

and liberties but also their constitutional powers and

boundaries.

92 See Commission, supra note 92.

48 WULR Vol VII, Issue II Winter 2014

I would suggest that the Founding Fathers never

envisioned the possibility of a civil war in America. President

Lincoln was therefore faced with an unprecedented event in

which he not only had to fight in order to protect and defend

the nation, but also the Constitution of the United States.

Unfortunately, in the process, he suspended habeas corpus,

declared martial law, and allowed for the establishment of

military commissions to try certain civilians. Lincoln made

these decisions without the express permission of Congress

and when the Supreme Court ruled these decisions

unconstitutional, he simply ignored its admonishments.

When Lincoln argued that the secession of the southern states

required immediate action and could not wait on Congress to

make a decision, Congress retroactively approved these

actions. Having Congress retroactively approve something, of

course, does not equate to Congress making the original

action, especially when that action is expressly given to the

Legislative Branch, such as making rules for the governance of

the military.

In the aftermath of the Civil War and President

Lincoln’s assassination, the Executive continued to exercise

powers outside of its constitutional boundaries. Despite the

fact that President Johnson was advised that the civil courts

were open and functioning, he established a military

commission to try the eight civilian conspirators. As argued by

Reverdy Johnson, this establishment of the commission was

not a part of the president’s war powers. The war powers

were conferred to the president and thus required

authorization from Congress. No such tribunals had been

authorized by Congress. Congress had only retroactively

authorized Lincoln’s decision to establish military

commissions, it had never authorized any such commission

that Johnson had established. Even if it had, a retroactive

authorization of a presidential action does not constitute a

legal action on the part of the president.

Moreland 49

President Roosevelt, like President Johnson, obtained

“legal” permission from his Attorney General to establish a

military commission to try the eight German-Americans. In

his proclamation, Roosevelt insisted that because the accused

had attempted to commit acts of sabotage, they had to be tried

by the law of war and not by the laws of the United States.

Roosevelt also, like Lincoln, derived his authority to establish

the Commission through his war powers as Commander-in-

Chief. Not expressly stating so, he also suspended habeas corpus

so that the accused would not have the opportunity to have a

civil court review their case. Also in his proclamation,

Roosevelt authorized the Commission itself to adopt rules for

the proceeding which bypassed the procedures that Congress

had previously enacted for military tribunals. The President’s

proclamation also directed the court record, judgment, and

sentence to be sent directly to him for approval. According to

the 46th and 50th Articles of War, drafted by Congress, a

conviction and sentence had to be reviewed and approved by

the Judge Advocate General’s office.93

When the full opinion was published in ex parte Quirin,

the Supreme Court concluded that the secrecy of the trial

proceedings made it impossible to decide whether President

Roosevelt’s proclamation establishing the Military

Commission was legal and within his constitutional bounds.

However, in one of his memos, Justice Frankfurter wrote that

he had no doubt that Roosevelt violated Articles of War 46

through 53. If this evasion of the issue was not clear enough,

the Court went one step further and clearly stated that it was

not necessary to decide to what extent the President, acting as

Commander-in-Chief, has the authority to create military

commissions, yet they upheld the jurisdiction of the

Commission. As time passed and the record of the

Commission became public record, doubts were cast as to the

Court’s decision. The question as to the President’s

93 Fisher, supra note 1, at 98-100.

50 WULR Vol VII, Issue II Winter 2014

constitutional powers and military commissions were once

again put off to another date and case.94

Unfortunately, when another date and case did come,

in Hamdi v. Rumsfeld, the Supreme Court once again punted on

the question of the President and Military Commissions.

However, it did admonish the president harder than it ever had

before. Justice O’Conner stated that the Court had long

expressed that a state of war does not give the President a free

pass in regards to individual liberties and rights. The plurality

agreed that the “Use of Force Act” did indeed constitute

congressional authorization for the President to detain certain

individuals. However, it clearly stated that nothing in the act

made mention of the President being authorized to detain

United States citizens. The Supreme Court also agreed that

Hamdi was entitled to rebut his status as an “enemy

combatant” by a “neutral decisionmaker [sic]” such as “an

appropriately authorized and properly constituted military

tribunal.” However, it was the President who classified Hamdi

an “enemy combatant” in the first place. How could a review

process within the Executive Branch, like a military tribunal,

provide for a neutral, impartial decision?95

It is interesting to see the evolution of military

commissions over the course of history and to think that they

still remain a very vague and shady instrument of military law.

Even though a few constitutional rights have somewhat been

adopted and protected in these tribunals, the question of who

is to establish them still remains. Is it expressly Congress? Is

it the President, acting as Commander-in-Chief? The Supreme

Court has yet to address these issues. Perhaps the Court

believes that to rule in favor of Congress would appear to be

treading on the President’s war powers and ruling in favor of

the President would appear to be giving him additional,

unilateral authority. Perhaps by not addressing the question of

94 Fisher, supra note 4, at 42-43. 95 Fisher, supra note 1, at 226-229.

Moreland 51

Presidential authority in establishing military commissions,

the Supreme Court is giving the Executive tacit approval.

Presidents Lincoln, Roosevelt, and Bush all argued that during

a state of war or national emergency, certain constitutional

provisions must be set aside in order to protect and defend the

Constitution itself and the nation. This included the

overreaching of their constitutional boundaries and exercising

the powers of Congress in establishing military commissions.

However, it is during a time of war and national emergency

when the president is most likely to make extralegal decisions

and constitutional rights are most threatened. It is during this

time that the separation of powers is most necessary. This we

must strive to do not only to preserve our country’s

government but to preserve the ideals of liberty for future

generations.

Institutionalized Silence: The Problem of Child Voicelessness in

Divorce Proceedings

By Brandon Sadowski*

By and large, children are not represented in divorce proceedings. Moreover, when children do receive a representative, this person tends to be bound by that child’s best interests rather than being bound by that child’s expressed wishes. The question is, why are we so hesitant to give children a meaningful voice in the legal proceedings that so greatly affect their lives? This paper argues that issues concerning child representation are fundamentally underpinned by two conflicting intuitions: our paternalistic impulses and our value, or respect for autonomy. By understanding both of these intuitions, we can create a model of child representation that gets everything we want and need. This paper contends that a hybrid model of representation, which incorporates both a child’s voice and a way to ensure a child’s best interests fits the aforementioned criteria. In all, this paper is a contribution toward remedying the issue of institutionalized silence of children in divorce.

*Brandon Sadowski is a junior philosophy major at Ohio State. He is from Long Island, New York. He was inspired to write this paper by my past experience in the court system. When he was younger, he witnessed firsthand the way children are treated in divorce cases. This paper is a way to call attention to the main issue that he noticed: the lack of child representation. Having three younger brothers, ages three, eight, and sixteen has also played a role in sparking his interest for children’s rights issues. It is his hope that this paper can contribute to the ongoing debate concerning child representation and offer a unique defense of a hybrid model of representation.

Sadowski 53

Table of Contents INTRODUCTION 53 I: REPRESENTATION FOR CHILDREN IN DIVORCE CASES 55 IA. OVERVIEW OF CHILD REPRESENTATION PRACTICE……….… 55 IB. SHOULD CHILDREN BE REPRESENTED IN DIVORCE CASES?......................................................................56 II: BEST INTEREST ATTORNEY V. CLIENT DIRECTED

ATTORNEY……………………………………………………………………………61 IIA. THE ISSUE……………………………………………………………………….61 IIB. THE DEBATE……………………………………………………………………62 III: PATERNALISM AND AUTONOMY……………………………….65 IIIA. UNDERSTANDING OUR INTUITIONS…………………………….65 IIIB. COMPETENCE………………………………………………………………..68 IV: POSSIBLE MODELS OF CHILD REPRESENTATION………………………………………………………………70 V: CONCLUSION 73

INTRODUCTION

The United States judicial system hardly recognized

any children’s rights until the late 1960’s, when the Supreme

Court finally declared that “neither the Fourteenth

Amendment nor Bill of Rights is for adults alone.”1 Since then,

the courts have stated that children have procedural due

process rights,2 the freedom of speech (to a certain extent),3

the right to an education,4 and other constitutionally protected

rights.5 Although great strides have been made through the

recognition of these rights and others, children largely still lack

1 In re Gault, 387 U.S. 1, 87 (1967); Also, for summaries of the history of children’s rights see: Laurence D. Houlgate, Three Concepts of Children’s Constitutional Rights: Reflections on the Enjoyment Theory, 2 U. Pa. J. Const. L. 77; Homer H. Clark Jr., Children and the Constitution, 1992 U. Ill. L. Rev. 1. 2 Goss v. Lopez, 419 U.S. 565, 42 (1975); In re Gault supra note 2; HOULGATE supra note 2. 3 Tinker Et Al. v. Des Moines Independent Community School District Et. Al., 393 U.S. 503 (1969). 4 Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 5 For discussions of the constitutional rights of children see Homer Clark Jr., Children and the Constitution, U. Ill. L. Rev. 1 (1992).

54 WULR Vol VII, Issue II Winter 2014 many of the rights that adults are afforded.6 This is particularly

the case in the context of divorce and custody law. One such

right that children have not been given in divorce proceedings

is the unconditional right to representation.7 Instead of

granting children the right to an attorney, most states give

courts discretion to appoint a child attorney when a judge

deems that doing so is necessary.8 It turns out that judges

rarely exercise this power.9 Furthermore, when an advocate or

attorney is appointed for a child, that person usually advocates

for the child’s “best interests,” rather than the child’s expressed

wishes.10

The question is: why are the courts so hesitant to grant

children the right to a voice in custody cases? By providing a

clear answer to this question, important conclusions can be

made regarding which rights to representation children should

be afforded. In order to answer this question, I will begin by

explaining the current state of child representation in divorce

proceedings in greater depth. Then, I will argue that children

ought to be provided representation in divorce cases . The

question then becomes, how should children be represented?

In section two, I will characterize the debate between those

who believe that children ought to be represented by best

interest attorneys and those who believe children ought to be

represented by traditional client-directed attorneys.11 I will

6 See Emily Buss, Constitutional Fidelity Through Children’s Rights, 355 Sup. Ct. Rev. 355 (2004) 7 Rebecca Hinton, Giving Children a Right to Be Heard: Suggested Reforms to Provide Louisiana Children a Voice in Child Custody Disputes, 65 La. L. Rev. 1539 (2005); Katherine Federle, Looking for Rights in All the Wrong Places: Resolving Custody Disputes in Divorce Proceedings, 15 Cardozo L. Rev. 1523, 1552 (1993) (Hereinafter Looking for Rights). 8 John Meyer, The Best Interest of the Child Requires Independent Representation of Children in Divorce Proceedings, 36 Brandeis J. Fam. L. 445 (1997). 9 Id. 10 Federle, Looking for Rights, supra note 8 at 1554. 11 A best interests attorney advocates for a child’s best interests, rather than the child’s expressed wishes. A client-directed attorney establishes a normal client-attorney relationship with the child in which the attorney advocates for the child’s wishes.

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argue that these models are underpinned by two conflicting

values. The first is what I call our paternalistic impulse, which

drives our belief that we should help people make “good”

decisions, or prevent people from making decisions that might

harm themselves. The second is the value placed on autonomy,

or self-determination, which motivates the belief that people

should not infringe on another person’s “right” to make his or

her own decisions. Finally, I will consider different methods of

child representation that may satisfy both of the

aforementioned appeals. I do this with the beliefs that both

views have legitimate virtues and that, by maintaining their

most valuable considerations, an acceptable and satisfying

remedy for child voicelessness can be found.

PART I: REPRESENTATION FOR CHILDREN IN DIVORCE CASES

IA. Overview of Child Representation Practice

By and large, children do not receive representation in

divorce proceedings. According to a 200712 American Bar

Association survey13, thirty-nine states give complete

discretion to judges to appoint representation for children.14 In

other words, judges have total control over whether a child

will receive representation, regardless of the circumstances of

the divorce. In twelve states, the appointment of

representation for the child is required under certain

12 From reviewing the statutes cited in ABA’s study, it appears that the statutes were still current as of 2013. 13 ABA Child Custody and Pro Bono Project (2001-2008) http://www.americanbar.org/content/dam/aba/ migrated/legalservices/probono/childcustody/divorce_chart_with_role.authcheckdam.pdf (Hereinafter ABA Survery). 14 See e.g. Oh. Revised Code § 3109.04 (“The court, in its discretion, may and upon the motion of either parent, shall appoint a guardian ad litem for the child”); Cal. Codes § 3150 (“If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel…”); N.J. Stat. § 9:2-4 (“The court…upon its own motion…may appoint a guardian ad litem or an attorney or both to represent the minor child’s interests.”).

56 WULR Vol VII, Issue II Winter 2014 circumstances.15 In eight out of those twelve states,

representation is required when there is an allegation or

founding of abuse.16 The other four require representation in

other circumstances.17 Oregon, for example, requires that a

child receive representation if he/she requests it.18 Wisconsin is

the only state that requires that representation be provided in

cases where custody is disputed.19 In states where the

appointment of representation is discretionary, there are few

guidelines as to when judges should appoint counsel and what

their role should be.20 Moreover, judges tend to not use their

discretionary power to appoint representation for children.21

Finally, over ninety percent of cases are settled before going to

trial and the court rarely challenges custody decisions that

parents agree to before reaching litigation.22 This leads to an

even greater concern about lack of representation in cases

where custody is uncontested since children are generally not

directly represented in divorce proceedings.

Ib. Should Children Be Represented in Divorce Cases?

15 ABA Survey, supra note 14. The twelve states are as follows: Florida, Louisiana, Minnesota, Mississippi, Missouri, Oregon, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. 16 Id. (Florida, Louisiana, Minnesota, Mississippi, Missouri, Virginia, West Virginia, and Wyoming). 17 Id. 18 ORS § 107.425 (“The court…may appoint cousel for the children. However, if requested by one or more of the children, the court shall appoint counsel for the child or children.”). 19 Wis. Stat. § 767.407 (“The court shall appoint a guardian ad litem…[when]…the legal custody or physical placement of the child is contested.”). 20 American Bar Association Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases 1 (August 2003) (Hereinafter ABA Standards). 21 MEYER, supra note 9; Linda Elrod, Counsel for the Child in Custody Disputes: The Times is Now, 26 Fam. L. Qtrly. 53, 55 (1992); Linda Rio & Amy Bouchard, Representing Children in Custody Cases: Where We Are Now and Where We Should go, 23 Children’s Rights J. 2, 3 (2003). 22 Robert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law, 88 Yale L. J. 950 (1979).

Sadowski 57

One of the most consistently relied upon canons in

family law is the best interests standard,23 which holds that a

judge’s decision on matters relating to a child must be

governed by the child’s best interest.24 Historically, courts have

operated with the presumption that parents represent and

serve the best interests of their children.25 Under that

assumption, there is little reason for the courts to provide

independent representation for children. However, it is clear

that this presumption does not always hold true.26 Especially

in divorce, where money, homes, custody, pride, and more are

at stake, a child can be at risk to having their wishes and

interests put aside.27 Children, for example, are often used in

divorce as a bargaining chip; a means of extorting monetary

gains.28 Giving children a voice can discourage the practice of

using children as a bargaining chip.29 This could also aid in

preventing custody disputes from growing out of hand, as the

child’s best interests and personal wishes would be readily

available for everyone to hear. The court would have a better

idea of what would be best for the child and what the child

wants, so custody battles would not be solely between parents.

As such, child attorneys could reduce the time it takes to settle

23 Lynne Kohm, Tracing the Foundations of the Best Interests of the Child Standard in American Jurisprudence, 10 J. L. Fam. Stud. 337 (2008). 24 Id. 25 See Parham v. J.R., 442 U.S. 584, 602 (1979). Also, for the history of child representation in the U.S., see Robert Shepherd & Sharon England, I Know the Child is My Client, But Who am I?, 64 Fordham L. Rev. 1917, 1919-1925 (1996). 26 See e.g. Jenifer Troxel v. Tommie Granville 530 U.S. 57 (2004) (Justice Paul Stevens Dissenting) (“The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent's interest is paramount. But even a fit parent is capable of treating a child like a mere possession”); U.S. Children’s Bureau & Dept. of Health and Human Services, Child Maltreatment 2011, 1, 19 (2012) (reported incidents of child abuse and neglect reach nearly 700,000 children). 27 See MEYER, supra note 9 at 448; Alan Eidsness & Lisa Spencer, Confronting Ethical Issues in Practice: The Trial Lawyer’s Dilemma, 45 Fam. L. Qtrly. 21 (2011) (“The very subject matter of family law cases…are of such great importance to our clients, that clients often lose sight of their better judgment”). 28 MEYER, supra note 9 at 450. 29 For more information on how parents use their children as a bargaining tool see Federle, Looking for Rights, supra note 8 at 1560

58 WULR Vol VII, Issue II Winter 2014 the small number of high conflict divorce cases that consume

much of the family court’s time and resources.30

In addition, children should be viewed as the third party

in every divorce case. Their interests and well-being are as

jeopardized in divorce hearings as their parents’.31 Divorce

often means significant changes for a child32 – even outside the

fact that they will no longer live with both of their parents. For

a child, divorce can mean a new house, new school, new

financial situation and lifestyle, etc. It is important to ensure

that children are not being forgotten about in the divorce

process and that their needs are being taken into account

sufficiently. I contend that children deserve the right to an

attorney in divorce cases and all cases concerning their custody

and wellbeing.

Another benefit of giving children representation in

divorce proceedings, especially if it is done early in the process,

is that doing so can mitigate parental alienation syndrome

(PAS) and issues that result from allegations of PAS.33 Parental

alienation syndrome is when a parent behaves in a way that

alienates a child from the other parent. Alienated children

often express irrational fear of or opposition to the parent from

whom they are alienated. Parental alienation has caused courts

30 For a discussion concerning high-conflict divorce, see Tonya Inman et al., High-Conflict Divorce: Legal and Psychological Challenges, 45 Houston Lawyer 24 (2008); Janet Johnston, High-Conflict Divorce, 4 Future of Children 165 (1994) (explaining the effects of high-conflict divorce on children). 31 A lot of research suggests that children of divorce fare worse than children with married parents. For example, they tend to be placed in a worse economic situation than children with married parents. For more information concerning how divorce affects children, see Judith Wallerstein, The Overburdened Child: Some Long Term Consequences of Divorce, 19 Columbia J. L. & Soc. Probs. 165 (1985); Elizabeth Scott, Divorce, Children’s Welfare, and the Culture Wars, 9 Va. J. Social Policy & L. 95, 98-99 (2001) (“A large body of social science research demonstrates clearly that children whose parents divorce generally fare poorly compared to children who grow up in intact families.”); Andrew Collins et al., The Case for Nature and Nurture, 55 American Psychologist 218 (2000) (Parenting affects the temperament and behavior of children). 32 Id. Also, see e.g. Vijender Kumar, Impact of Divorce on Children: A Socio-Economic and Legal Study, 6 NALSAR L. Rev. 124 (2011); MEYER, supra note 9. 33 ELROD, infra note 44 at 900.

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and legal professionals to become skeptical of allegations of

abuse.34 Additionally, threatening to allege PAS has become a

tactic that abusive parents may use in order to encourage their

ex-partners to remain silent about abuse, since a finding of

PAS can lead to a loss of custody. Giving a child an attorney

immediately will require a qualified representative to take

account of the child’s preferences before the conflict that

accompanies divorce has an effect – thereby mitigating the

occurrence and effects of PAS. Also, giving children

representation ensures that they will have the opportunity to

express any concerns about abusive behavior, allowing the

court to hear such issues. Some might contend that giving a

child an attorney will perpetuate the effects of PAS. However,

if a child is given an attorney early in the divorce process, there

is a slimmer chance that the child will have already become

alienated. In addition, many have questioned the hypothesis of

PAS35 and have argued that allegations of PAS are merely a tool

for abusive parents in custody battles. If PAS is a legitimate

issue, then child representation will help by accounting for

children’s views early in the process. However, if PAS is not a

legitimate issue, then child representation will help by giving

children the opportunity to alert the courts of abuse.

Finally, children involved in divorce want to be

heard.36 They sense that their voices and concerns are

disregarded and want to participate. Giving children

representation would foster confidence and lead to a lasting

respect for the judicial system. The following anecdote

illustrates these points: An elderly woman, recounting her

34 Joan Meier, Getting Real About Abuse and Alienation: A Critique of Drozd and Olesen’s Decision Tree, 7 J. of Child Custody 219 (2010). 35 For a critique of PAS, see Janet Johnston, Children of Divorce Who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child, 38 Fam. L. Qtly. 757 (2005). 36 See Karen Saywitz et al., Interviewing Children in Custody Cases: Implications of Research and Policy for Practice, 28 Behav. Sci. L. 542, 544-545 (2010); Joan Kelly, Psychological and Legal Interventions for Parents and Children in Custody and Access Disputes: Current Research and Practice, 10 Va. Soc. Pol. & L. 129, 150-152 (2002).

60 WULR Vol VII, Issue II Winter 2014 experience of her parents’ divorce, recalls that she was crying

while at the county court house. She was upset, because she

did not know what was going to happen to her following her

parents’ divorce. The judge put her on his lap and asked, “Do

you want to live with your mother or your father?” She told

him that she wanted to live with her mother. The judge

responded, “Then you will.”37 The old woman enjoyed

recounting this story and recalled her pride in being able to

state her opinion. The judge who listened, Harry S. Truman,

later became the President of the United States.38 Providing

children with an attorney will ensure that judges must listen

to children in divorce proceedings.

Although there is a longstanding legal tenet that

parents have the constitutional right to raise their children

with minimal government interference,39 the children’s

interests at stake in divorce deserve to be represented by an

attorney, instead of solely by parents. Divorce creates an

extremely tense and adversarial environment, in which a

child’s interests may be ignored. Moreover, the idea that

children should be given the right to an attorney in cases that

concern their interests is not unprecedented from a legal

standpoint. In dependency and delinquency cases, for example,

children are given the right to counsel.40 Providing a child with

an attorney ensures that their interests are accounted for, will

reduce custody conflicts in divorces, and can help mitigate

issues associated with PAS, It can also encourage abusive

behavior to be brought forth to the court, will inspire children

to appreciate the courts, and promote a feeling that they are a

legitimate party in a process that greatly impacts their lives. As

such, children should receive representation the moment that

37 Note that the woman was five years old at the time of her parents’ divorce. 38 I found this excellent story in Randy Kandel, Just Ask the Kid! Towards a Rule of Children’s Choice in Custody Determinations, 49 U. Miami. L. Rev. 299 (1994). 39 For more on parent’s rights, see Emily Buss, Parental Rights, 88 Va. L. Rev. (2002). 40 In re Gault, supra note 2 (children have the right to representation in delinquency cases); 42 U.S.C. § 5106a(b) (2013) (children have the right to a guardian ad litem in abuse and neglect cases).

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divorce is filed, so that they can be represented even during

settlement.

PART 2: BEST INTEREST ATTORNEY V. CLIENT-DIRECTED

ATTORNEY

IIa. The Issues

Since children should be afforded the right to counsel

in divorce cases, the question becomes, “how should they be

represented?” There are two main models of child

representation: the best interest approach41 and the client-

directed approach. For simplicity, I’ll refer to representatives

who work under the best interest approach “best interest

attorneys” and those who work under the client-directed

approach “client-directed attorneys.” A best interest attorney’s

role is to advocate for a child’s best interest and is not bound

by the child’s wishes.42 Client-directed attorneys act as

traditional attorneys and advocate for the child’s wishes.43 The

most popular model of child representation is the best interest

approach.44 About thirty states require that the person

representing a child in a divorce case be a guardian ad litem, or

an advocate for a child’s best interests.45 Less than ten states,

however, require the appointment of a client-directed attorney

in divorce cases.46 In many cases, the role of a child

representative is unclear.47 In the next section, I will discuss

41 A guardian ad litem is a person who advocates for a child’s best interest and is not legally bound by the child’s expressed wishes. A guardian ad litem can be an attorney or a non-attorney. A best interest attorney is another term, which is used to describe attorneys who represent the child’s best interest. 42 See ABA Standards, supra note 21 at 2. 43 See Elrod, Right thing to Do, supra note 44 at 869. 44 Barbara Atwood, The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between Pragmatism and Idealism, 42 Fam. L. Qtrly. 63, 73-75 (2008). 45 ABA Survey, supra note 14. 46 Id. 47 It is not always clear whether a child’s representative is supposed to act as a best interest attorney or a client-directed attorney. Not all states have clear

62 WULR Vol VII, Issue II Winter 2014 some of the arguments that have been given on behalf or

against each form of representation. My goal is to seek out

their underlying motivations.

IIb. The Debate

In what follows, I will present the arguments that

proponents of each view of child representation use to justify

their respective positions. Both views have important virtues

and weaknesses. By clarifying both arguments, I hope to

explain the underlying intuitions that support each model. In

order to decide how children should be represented, there are

several related factors to consider: how much weight should be

given to a child’s expressed preferences? Are children able to

direct an attorney? How can it be ensured that children are

placed in a good situation? Following a discussion of these

questions, I will present arguments on behalf of the both types

of representation, attempting to motivate each viewpoint, and

make the issues in the debate clearer.

Proponents of the best interest attorney are driven by

the idea that the decisions made in custody disputes and other

matters concerning children require an investigation into a

child’s life, a report of those investigations, and a suggestion of

what would be best for the child. Best interest model

proponents argue that their position is consistent with the

assumption that children have not reached the competence

and maturity that is needed for autonomous decision-

making.48 It also is a more reasonable model when it comes to

children who are not yet able to express their views and

desires (e.g. infants or mentally handicapped children).

Moreover, best interest attorney proponents argue that a

guidelines and the role of the representative is not always clearly determined when they are appointed. 48 Frances Gall Hill, Clinical Education and the “Best Interest” Representation of Children in Custody Disputes: Challenges and Opportunities in Lawyering and Pedagogy, 73 Ind. L. J. 605, 620-625 (1998).

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child’s voice is not irrelevant, but that it would be

overburdening for a child to have to make decisions concerning

something like their custody.49 Children don’t want to be put

in that spot.50 And at least some child representatives ensure

that the child’s voice is listened to and taken into account,

even if it is not dispositive.51 Another advantage of the best

interest model is that the representative would not be

obligated to the same attorney-client confidentiality that is

required under traditional representation. As such, a lawyer

could report abuse, even against their child client’s wishes.52

This is an obvious asset to the best interest model in cases like

the one described. Additionally, the best interest attorney

aligns well with the best interest standard – the judge’s

method to deciding matters concerning children. Having an

attorney objectively and accurately present a child’s best

interests would greatly aid judges in satisfying the best

interests standard. As Katherine Federle points out, judges

cannot know with a large degree of certainty that their

decisions will be in the child’s best interest and express “great

discomfort” when making custody decisions.53 Having a

representative support a certain decision based on a thorough

investigation seems to mitigate that difficulty and make judge’s

decision easier. At the end of the day, proponents of the best

interest model want the best interest attorney to discern what

would be in a child’s best interest and advocate that to the

court, so that a good outcome for the child can be reached.

They are getting at something that seems to really matter in

the end: that a child is safe, happy, and in a good place.

Those who support the appointment of client-directed

attorneys for children seem to be motivated by the idea that

49 Robert Emery, Hearing Children’s Voices: Listening and Deciding is an Adult Responsibility, 45 Ariz. L. Rev. 621 (2003). 50 Id. 51 Id. Also, see Hill, supra note 52 at 623. 52 Hill, supra note 52. 53 Federle, Looking for Rights supra note 8 at 1539.

64 WULR Vol VII, Issue II Winter 2014

children are people with independent views and concerns54 and,

as such, have the right to be heard and represented.

Proponents of client-directed attorneys believe that those who

support the best interests model overstate the incompetence of

children.55 They argue that children, on the whole, are able to

formulate reasonable views and aims, and that they can direct

an attorney sufficiently.56 Moreover, they argue that giving a

child a traditional, client-directed attorney effectively gives the

child a meaningful voice in proceedings, whereas the best

interests model does not.57 Proponents point out that best

interests, in practice, are often ascertained without reference

to a child’s expressed preferences.58 It is also important to note

that giving a child a voice does not mean that he or she plays

the most decisive role in any case. Instead, their voice is taken

into account like any other party’s.59 Still, many proponents

view the appointment of a client-directed attorney as a way to

empower children and ensure that their needs and desires are

taken into account.60 Another benefit of a judge hearing

directly from a child is that the child can be considered an

expert on his/her family. The child has a unique perspective on

the relationships that he or she has with both parents, the

qualities of both parents, and so on. This information can help

a judge determine what arrangement would be in that child’s

best interest. In terms of negative arguments, proponents of

54 Elrod, Right Thing to Do, supra note 44 at 905. 55 Katherine Federle, Children’s Rights and the Need for Protection, 34 Fam. L. Qtrly. 421, 440 (2000) (Herineafter Children’s Rights). 56 Id. (“The concern that young children make bad decisions also seems misplaced. In my experience representing children, I cannot say that young children make bad decisions. Rather, they have expressed their hopes and desires clearly and, usually, quite sensibly.”). 57 Katherine Federle, Righting Wrongs: A Reply to the Uniform Law Commission’s Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act, 42 Fam. L. Qtrly. 103, 104 (2008). 58 Federle, Children’s Rights, supra note 59 at 427. Also, see SHEPHERD & ENGLAND, supra note 26 at 1925 (“Problems involving attorney performance have also been characterized to be…lack of contact with the child contact.”) 59 Id. at 440. 60 Katherine Federle, Looking Ahead: An Empowerment Perspective on the Rights of Children, 68 Temple L. Rev. 1585 (1995).

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the client-directed attorney model also argue that “best

interests” are more of a myth than a guide.61 That is, it is

impossible to determine what is in a child’s best interest.

Instead, having an attorney advocate for a child’s best interest

opens the door for the lawyers to advocate for their subjective

values and views.62 For example, a homosexual mother or

father might be denied custody of his/her children under the

pretense of “best interests.”63 Overall, proponents of client-

directed attorneys believe that under the best interests model

of representation, children are not taken seriously, are done a

disservice by not being taken seriously, and are having their

rights violated by not being heard by the court.

PART III: PATERNALISM AND AUTONOMY

IIIa. Understanding Our Intuitions

Rather than arguing for one side or another, I hold that

both models of child representation have important virtues

and faults. In order to understand how to settle the issue, it is

important to understand the fundamental intuitions

underpinning each model of child representation and to also

understand that both of these intuitions are acceptable in

certain situations. I will argue that the best interest model and

the client-directed model are fundamentally motivated by

paternalistic impulses and a value or respect for autonomy,

respectively.

61 See Raven Lidman & Betsy Hollingsworth, The Guadian Ad Litem in Child Custody Cases: The Contours of our Judicial System Stretched Beyond Recognition, 6 Geo. Mason L. Rev. 255 (1998). 62 SOBIE, supra 44 at 806. 63 There is sizable debate regarding whether homosexual behavior of a parent ought to be considered when determining the best interests of a child. There is obvious room for guardian ad litems to insert their personal views through situations like this. For a discussion of how homosexual parenting has factored in on courts’ decision-making see Lynn Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833 (1997); Steve Susoeff, Assessing Children’s Best Interests When a Parent is Gay or Lesbian: Toward a Rational Custody Standard, 32 UCLA L. Rev. 852 (1985).

66 WULR Vol VII, Issue II Winter 2014

Paternalism can be defined as interference with a person’s

freedom in order to ensure the welfare or happiness of that

person.64 Although paternalism often has a negative

connotation,65 it is clear that some paternalistic behavior and

laws are generally accepted by society. For example, people

seem to accept seatbelt laws, anti-drug laws, or anti-suicide

laws. It is generally held that people should not be able to use

heroin or sell themselves into slavery.66

However, it is clear that some acts of paternalism are

considered less acceptable. The restriction of junk food,

alcohol, and gay marriage67 are more controversial examples of

paternalism. The key source of objection to paternalistic

behavior seems to be the value of autonomy, or freedom. It

seems that the belief that a person is capable of rational

decision-making also plays a key role in the debate. For

example, even the most adamant anti-paternalist might think

that society should not let a person engage in harmful behavior

while he or she is intoxicated. The idea seems to be it is

justifiable to engage in paternalistic behavior if someone is not

able to make rational decisions on his or her own. This factor is

important in the child representation debate.

The debate concerning child representation is a practical

application of the theoretical conflict between paternalism and

self-determination. Best interest model proponents are

motivated by the idea that that children are not mature or

competent enough to direct an attorney in a way that will be

64 Gerald Dworkin, Paternalism, 56 The Monist 65 (1972). 65 David Shapiro, Courts, Legislatures, and Paternalism, 74 Va. L. Rev. 519, 519 (1988). 66 FEINBERG, supra note 69. 67 Gay marriage seems to be a paternalistic restriction on a constitutional right we have, the right to marry. See M.L.B v. S.L.J., 519 U.S. 102 (1996) (“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance to our society’…sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”).

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ensure their well-being.68 The Supreme Court showed this

concern in Belotti v. Baird by noting “the peculiar vulnerability

of children and their inability to make critical decisions in an

informed, mature manner.”69 This explains the widespread use

of best-interest attorneys over client-directed attorneys for

children.70 Proponents of the best interest model propose that

children should not make very important decisions on their

own because they are incapable of fully understanding what

will ensure their safety and well-being. Accordingly,

proponents of the best interest model believe that children

should be given an attorney to advocate for what their best

interests really are, even if they are incapable of understanding

those interests. The paternalistic impulse in this reasoning is

clear: children’s autonomy must be restricted in order to

protect them. Paternalism seems to be justified by the idea that

children are not autonomous agents capable of rational or

sensible deliberation.

On the other hand, those who support the appointment of

client-directed attorneys for children think that the

incompetence of children is overstated and that the best

interests model infringes on a child’s ability to make their own

choices and let those choices be heard by the court. Katherine

Federle, for instance, states, “The concern that young children

make bad decisions also seems misplaced. In my experience

representing children, I cannot say that young children make

bad decisions. Rather, they have expressed their hopes and

desires clearly and, usually, quite sensibly.”71 The resulting

intuition is that children do have the right to make their own

68 Thaddeus Pope, Balancing Public Health Against Individual Liberty: The Ethics of Smoking Regulations, 61 U. Pitt. L. Rev. 419, 464-466 (Discussion of paternalism with regard to children). 69 Belotti v. Baird, 443 U.S. 622, 634 (1979). 70 For a discussion concerning what courts have held with regard to children’s competence, see Richard Redding, Children’s Competence to Provide Informed Consent for Mental Health Treatment, 50 Wash. & Lee L. Rev. 695, 704-708 (1993). Redding points out that courts have long held that children are incompetent and not able to make sound decisions themselves. 71 Fedlere, Children’s Rights supra note 58.

68 WULR Vol VII, Issue II Winter 2014 choices and a right to be heard in divorce proceedings. Denying

them this right is an infringement on their liberties.

IIIb. Competence

In order to progress the debate on child representation,

it must be determined whether children are sufficiently

competent to make decisions. If children are not competent

enough to make decisions regarding the matters being handled

in divorce, then it seems that there is good reason to appoint a

best interest attorney. Thus violating their autonomy may be

justified. If children are capable of making reasonable decisions

regarding the matters involved in divorce, then it seems that

there is good reason to appoint a client-directed attorney. If

this is true, not doing so would infringe on their autonomy.

Practical experience tells us that at least some children

are not capable of establishing and formulating opinions about

certain matters. For example, a two-year-old cannot be

expected to meaningfully participate in divorce hearings or

direct an attorney.72 Some children in their teens, on the other

hand, are clearly able to form preferences and engage in

rational decision-making.73 Evidence shows that adolescents

become increasingly self-reliant and more able to make

decisions on their own.74 Justice William Douglas, in Wisconsin

v. Yoder, cited a number of studies from which he concluded,

“There is substantial agreement among child psychologists and

sociologists that the moral and intellectual maturity of the 14-

year-old approaches that of an adult.”75

72 Jessica Cherry, The Child as Apprentice: Enhancing the Child’s Ability to Participate in Custody Decisionmaking by Providing Scaffolded Instruction, 72 S. Cal. L. Rev. 811, 830 (1999). 73 Id. 74 Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 L. & Hum. Behav. 249, 254 (1996). 75 Wisconsin v. Yoder, 406 U.S. 205 (1972). Justice Douglas cited the following studies: J. Piaget, The Moral Judgment of the Child (1948); D. Elkind, Children and

Sadowski 69

However, these findings have been questioned76 and

there is evidence that some adolescents differ from adults.

They are unwilling to seek advice, 77 impulsive,78 influenced by

others easily,79 prone to engaging in dangerous or risky

behavior,80 and have other tendencies that can impede their

ability to make rational decisions. The Supreme Court in

Graham v. Florida also noted important differences between

adolescents and adults, citing research that suggests that brain

development occurs until a person’s mid-twenties.81 However,

some studies suggest that children as young as nine are

competent enough to make meaningful decisions regarding

their future.82 Given the substantial disagreement over the

competence of adolescents, it is no wonder that there is no

“definitive psychological, sociological, or legal statement about

children’s competence” altogether.83

Another important issue to consider is that there is

clearly great variation among the mental capacities of children

that are the same age.84 It seems to be a hopeless endeavor to

determine a specific age at which children become sound,

Adolescents (1970); Kohlberg, Moral Education in the Schools: A Developmental View; R. Muuss, Adolescent Behavior and Society (1971); W. Kay, Moral Development (1968); A. Gesell & F. Youth, The Years from Ten to Sixteen (1956). 76 Many studies that report that adolescents show similar competence as adults focus on informed medical consent studies. For a summary of studies that conclude that children are competent and also a critical response to those studies, see Elizabeth Scott, Judgment and Reasoning in Adolescent Decisionmaking, 37 Vill. L. Rev. 1607, 1627 (1992). 77 STEINBERG & CAUFFMAN, supra note 82. 78 Id. at 262. 79 See Elizabeth Scott et al., Adolescent Decision Making in Legal Contexts, 19 L. & Hum. Behav. 221, 230 (1995). 80 Id. Also, see Academic Academy of Child and Adolescent Psychology, The Teen Brain: Behavior, Problem Solving, and Decision Making (2011). 81 Graham v. Florida, 560 U.S., 21-26 (2010). 82 See Lois Weithorn & Susan Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53 Child Development 1589 (1982) (Discussing the competence of children to make decisions concerning their health care.). This research has been extended to other legal debates concerning the competence of children. 83 See Federle, Looking for Rights, supra note 8 at 1529 (Federle lists literature which display the substantial disagreement over the competence of children). 84 Karen Saywitz, The Credibility of Child Witnesses, 10 Fam. Advocate 38, 39 (1988).

70 WULR Vol VII, Issue II Winter 2014 autonomous agents since children develop at different rates.

There is no easy answer concerning whether children, at a

certain point, should be given a client-directed attorney rather

than a best interest attorney. As such, the debate regarding

child representation cannot be settled by empirical studies

that determine competence. Rather, it is necessary to create a

method of representation that can handle the inability to

determine a general age at which children become competent.

IV. POSSIBLE MODELS OF CHILD REPRESENTATION

It has already been established that there are

limitations to both the client directed and best interest models.

So, what are the other options? One way to both protect and

empower children in a reasonable manner would be to begin

with a determination of competence.85 From that point, if a

child is determined to be sufficiently competent, he or she

would be given a client-directed attorney. If the child is

determined to be incapable of meaningfully participating in

the proceedings, he or she would be given a best interest

attorney. However, determining competence is a difficult

task.86 Moreover, it is doubtful that people would be able to

agree on any test or measure of “sufficient competence.”

Another possibility is a hybrid model, which both

respects children’s rights and protects children’s interests. In a

hybrid model, the attorney would advocate for a child’s

expressed wishes if they are able to express their wishes, while

still presenting facts objectively to the court. Accomplishing

both of these tasks would necessitate investigating a child’s

circumstances and meeting with the child to determine the

child’s wishes.

85 See Gerald Koocher, Different Lenses: Psycho-Legal Perspectives on Children’s Rights, 16 Nova L. Rev. 711 (1992) for a discussion about methods that are can be used to assess child competency. 86 CHERRY, supra note 80 at 835.

Sadowski 71

In a practical situation, the hybrid attorney, could

advocate for split custody on behalf of the child, while still

noting the child’s mother has been his primary caregiver

throughout the child’s life and that his father has a higher

income. The attorney in this example advocates for a child’s

wishes while still noting facts relevant to the child’s best

interests. A situation where this might be pertinent would be a

case where a child wants to live with an abusive parent. An

attorney could advocate for the child’s wishes while still

presenting the fact, objectively, that the parent is abusive.

Since the standard of judicial decision-making with regard to

children is already the best interests standard, the judge will

ultimately do what he/she believes is in the child’s best

interests. However, if a child’s wishes are acknowledged, the

judge’s decision might be more equitable. Rather than

completely denying visitation to the abusive father, the court

may be able to establish a legitimate legal avenue for that child

to safely visit the parent. It is important to remember that the

child’s wishes do not force any arrangement to be made; the

advocacy of a child’s wishes ensures that the child is being

heard and that his/her rights are not being violated.

An objection to the hybrid model, is that attorneys

could be placed in situations that would be ethically suspect.87

Hybrid attorneys may be unable to follow the Rules of

Professional Conduct.88 For example, an adult client might not

want his or her attorney to mention a detail in court that is

damaging to his reputation or is humiliating. As a client-

directed attorney, the attorney would be obligated to grant the

client his wish. However, under the hybrid model, the attorney

would be required to share information with the court if that

87 The ABA rejected a hybrid model of representation because of the “confusion and ethical tensions inherent in the blended professional roles.” Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (2006). See Aditi Kotheka, Refocusing the Lens of Child Advocacy Reform on the Child, 86 Wash. U. L. Rev. 481, f.n. 52 (2008). 88 For a fleshing out of this worry see e.g. Barbara Fines, Pressures Toward Mediocrity in the Representation of Children, 37 Cap. U. L. Rev. 411, 444 (2008).

72 WULR Vol VII, Issue II Winter 2014 information is relevant to the client’s best interests. Attorneys

dealing with different types of clients ought to be held to

different ethical and professional standards. The

confidentiality requirement that a traditional attorney faces

should not apply to a child’s hybrid attorney, since the court

needs the attorney to present all the relevant evidence. There is

no ethical dilemma as long as the child is aware that the

attorney has this obligation.

Another concern is that the hybrid model is confusing

and could place attorneys in conflicting roles.89 This belief may

have been formed due to the indeterminate hybrid models that

some states currently use. Many states lack a clear suggestion

of what role a child attorney should play. This leads to courts

asking attorneys to play many roles at the same time, some of

which may be conflicting. These problems can be solved be

carefully laying out the responsibilities of the hybrid attorney.

Additional worries that may arise concern the cost of

hybrid representation and the ability of attorneys to play both

of the roles involved in the hybrid model. As far as cost goes,

some argue that having a better model of child representation

would actually lower the costs of proceedings have to do with

children.90 Regardless, the cost of adequate representation

should not deter us from doing what is right for children.

There are several other methods that might also

reasonably respect children’s rights while still accounting for

their interests. For example, children could be represented by a

client-directed attorney and an expert who would present

facts to the court concerning children’s best interests. Perhaps

a psychologist would be better suited to determine factors that

might be relevant in a decision of a child’s best interest. The

hybrid model that I have proposed is a model that respects

both our paternalistic impulses and our value for autonomy –

and has other valuable features. Ultimately, any model of child

89 Id. 90 HUSAIN, supra note 97 at 256-258.

Sadowski 73

representation must respect both these two basic intuitions in

order to create an adequate model of child representation.

CONCLUSION

In this article, I have considered a number of issues

associated with child representation in divorce proceedings. It

seems clear that attorneys should be appointed for children in

divorce proceedings in order to ensure that the court is

considering their needs and desires. When it comes to

providing a representative to children, I have argued that both

our paternalistic impulses and our respect for autonomy seem

to be reasonable intuitions that need to be accounted for in

order to create an acceptable model of child representation. A

hybrid model of representation in which the hybrid attorney

serves as a presenter of facts while also advocating for their

client’s wishes would account for both intuitions. Overall, I

hope to have called attention to the need to change our current

practices regarding child representation in divorce proceedings.

Arrested for Experiencing Homelessness:

The Criminalization of Homelessness in the United States and the Revolution of

the Rhode Island Homeless Bill of Rights

By Cristina M. Semi*

Public order laws that criminalize life-sustaining behaviors when performed in public systematically disadvantage unsheltered individuals experiencing homelessness because they are compelled by their situation to necessarily perform such conduct in public. Historically, vagrancy laws were used to legally eliminate the presence of individuals experiencing homelessness from the public streets. Since courts have largely overturned these unconstitutional laws, many cities have resorted to criminalizing basic, life-sustaining behaviors, such as sleeping, sitting, lying, and camping. Though these laws utilize neutral language that applies to all citizens, the punitive value of the laws is truly only endured by unsheltered individuals experiencing homelessness.

In early 2012, Rhode Island codified a solution to this epidemic. The Rhode Island Homeless Bill of Rights confers upon all individuals experiencing homelessness the right to move around in and freely use public spaces, but the statute’s inclusion of the phrase “…in the same manner as any other person…” does not confront the current discrimination against individuals experiencing homelessness in relevant criminal law. Essentially, the Rhode Island law does not acknowledge the fact that “any

Semi 75

other person” is not systematically disadvantaged by public order laws.

While the Homeless Bill of Rights is certainly a step in the right direction towards legally addressing the criminalization of homelessness, the law does not go far enough. All states should look to Rhode Island’s law as a legislative model, but should further develop this concept to explicitly challenge and eradicate the discrimination against individuals experiencing homelessness currently within many cities’ ordinance codes.

*Cristina M. Semi is a native of River Falls, Wisconsin. She is a member of the Class of 2014 at Hamline University in St. Paul, Minnesota, majoring in Legal Studies, with a triple minor in Communication Studies, Philosophy, and Russian Studies. She is also completing her Paralegal Certificate. She is the Student Leader of the Homelessness in the Heart of Our Country Washington, D.C. reflective service-learning spring break trip program. She has volunteered with the Project Homeless Connect program in Hennepin County, Minnesota, and is a student member of the National Coalition for the Homeless. Cristina has recently received the national Newman Civic Fellows Award for civic engagement from Campus Compact, as well as the Alison M. Durfey Memorial Scholarship for hunger and homelessness alleviation from Hamline University. Cristina hopes to become a public defender after graduating law school. In her spare time, she enjoys exercising, reading, and spending time with her friends and family.

Table of Contents

INTRODUCTION 76 I: HOMELESSNESS IN THE UNITED STATES 78 II: PROBLEM: CRIMINALIZATION 81 IIa. Discriminatory Laws 82 IIb. Constitutionality of Laws 83 III: SOLUTION: CRIMINALIZATION TERMINATION &

HOMELESSNESS ERADICATION 91 IIIa. Homeless Bill of Rights: 92 IIIb. Additional, Extra-Legislative Measures: 96 IV: OBJECTIONS: REASONS FOR PUBLIC ORDER LAWS 98

76 WULR Vol VII, Issue II Winter 2014

V: CONCLUSION 101

INTRODUCTION

Jill and her two children are currently experiencing

homelessness in Atlantic City, New Jersey.1 After sweeping the

floors of a local coffee shop in exchange for the ten dollars she

needed to purchase diapers for her youngest child, Jill applied

for ten jobs and continued her search for more affordable

childcare so she may work longer hours, all to no avail. Jill has

not slept for two days, and she and her children are exhausted.

They were unable to find an open bed in a shelter and cannot

afford a hotel room. They have no choice but to sleep on a

patch of grass underneath a large tree in a local park. Jill

knows that her behavior is illegal, but also knows that her

family needs sleep to face the search for housing the next day.2

Jill and her children fall asleep under the tree, and are woken a

few hours later by local law enforcement. Jill is cited for the

ordinance violation and fined one thousand dollars, equivalent

to one month of childcare. 3,4

Ordinances that criminalize life-sustaining activities

necessary for individuals experiencing homelessness, like Jill

and her family, disproportionately advantage such individuals

when they have no other accommodation but the public

streets.5 Traditional measures aimed at driving the homeless

1 Throughout this paper, the phrase “people experiencing homelessness” or “homeless community” will be used in opposition to the phrase “the homeless,” “homeless people” or “homeless person.” The “experiencing homelessness” wording semantically separates the experience of homelessness from a person’s identity, as homelessness is not an identity but a period of time in a person’s life. 2 Sleeping in streets, parks, or public places prohibited, Article VII: Prohibited/Illegal Conduct Generally, N.J. MUN. CODE § 204-29 (2012). 3 Violations and Penalties, Article VII: Prohibited/Illegal Conduct Generally, N.J. MUN. CODE §204-301.1 (2012). 4 National Association of Realtors, Atlantic City, NJ, New Jersey – Living Costs Index, REALTORMAG, http://living-costs.realtor.org/l/376/Atlantic-City-NJ (last visited May 8, 2013). 5 The focus of this paper will be on the plight of individuals experiencing homelessness on the public streets, without any other means of shelter (i.e. transient accommodation). Therefore, when individuals experiencing

Semi 77

community from public sight included prohibitions on the

state of being vagrant, but these were largely declared

unconstitutional in the 1970s and 1980s.6,7 More current

policies to address (prevent) the presence of individuals

experiencing homelessness in public take the form of

criminalizing activities necessary for them to perform. Such

measures include enacting public order laws that make it

unlawful to “sleep, sit, or store belongings in public spaces.”8

Making these specific activities unlawful only when performed

in public makes it unavoidable for individuals experiencing

homelessness to commit a crime every time they must perform

such activities. Such laws criminalize the status of

experiencing homelessness.9 Moreover, the criminalization of

homelessness violates several constitutional rights.10

Despite the substantial backdrop of increasing

municipal criminalization measures, in 2012, Rhode Island

became the first state in the United States to codify a

Homeless Bill of Rights that specifically addresses the rights of

individuals experiencing homelessness in public.11,12 The Rhode

Island Homeless Bill of Rights is a critical and significant step

towards protection from unlawful criminalization measures.

The Rhode Island law aims to prevent unnecessary

disadvantage on the basis of housing status for individuals

homelessness are referenced, the individuals referred to are the individuals who experience homelessness unsheltered on the public streets. 6 See John B. Mitchell, Crimes of Misery and Theories of Punishment, 15 NEW CRIM. L. REV. 465, 468-471 (2012). 7 Juliette Smith, Arresting the Homeless for Sleeping in Public: A Paradigm for Expanding the Robinson Doctrine, 29 COLUM. J.L. & SOC. PROBS. 293, 301 (1996). 8 Mitchell, supra note 6, at 467. 9 Smith, supra note 7, at 293-95. 10 Maria Foscarinis et al., Out of Sight—Out of Mind?: The Continuing Trend Toward the Criminalization of Homelessness, 6 GEO. J. ON POVERTY L. & POL’Y 145, 156-157 (1999).

11 See National Law Center on Homelessness & Poverty, CRIMINALIZING CRISIS: ADVOCACY MANUAL 46 (2011).

12 R.I. Gen. Laws § 34-37.1-3 (2012).

78 WULR Vol VII, Issue II Winter 2014

experiencing homelessness.13 The Homeless Bill of Rights

states that a person experiencing homelessness “[h]as the right

to use and move freely in public spaces . . . in the same manner

as any other person.”14 Despite the law’s revolutionary

challenge to the current anti-homeless paradigm, the inclusion

of the phrase “in the same manner as any other person” only

sustains the unequal treatment currently enforced and does

not appropriately acknowledge, or challenge, the

discrimination against those who must live on the public

streets. States should look to the Rhode Island Homeless Bill of

Rights and its accompanying laws as model legislation and

adopt similar measures to combat the unlawful and

discriminatory criminalization of life-sustaining activities.

This article will address the criminalization of

homelessness and will analyze the Rhode Island Homeless Bill

of Rights as a solution. Part II will explore the history of laws

that criminalize homelessness, and will survey the creation of

current laws that disadvantage individuals experiencing

homelessness. Part III will examine the criminalization of

homelessness in more detail and will explain how such public

order laws disproportionately disadvantage those experiencing

homelessness. Part III will also illustrate how courts have

addressed these issues. Finally, Part IV will evaluate the Rhode

Island Homeless Bill of Rights and its accompanying

legislation as a solution to the current criminalization

paradigm, and will inquire what else must be done for states to

appropriately challenge criminalization measures.

PART 1: HOMELESSNESS IN THE UNITED STATES

The experience of homelessness in the United States

first gained significant public attention in the 1970s and

13 Id. 14 Id.

Semi 79

1980s.15 In the late 1970s, “Americans began noticing more

people sleeping in public places, wandering the streets with

their possessions in shopping bags . . . . By January 1981 . . . a

small group of activists led by Robert Hayes and Mitch Snyder

had given these people a new name—‘the homeless’.”16

Unfortunate systematic socioeconomic circumstances caused

by reductions in federal housing assistance programs largely

made homelessness more widespread in the 1980s.17 Prior to

the 1980s, homelessness often followed national upheaval.18 For

example, during the Great Depression, homelessness was the

result of nation-wide economic distress.19 As the current

epidemic of homelessness seems resistant to national economic,

social, and cultural trends, homelessness today is a

phenomenon characterized by its “transience, instability, and

flux.”20,21 The “skid row” epidemic as it is perceived today by

the housed population as derived from the culmination of

increasing public exposure to the homeless experience,

combined with a growing sense of animosity towards those

experiencing homelessness.22,23

Today’s homelessness epidemic is also characterized

by and defined as a spectrum of experience; homelessness is no

longer homogenous.24 The legal definition of homelessness can

be found in the first federal legislation to specifically construe

homelessness as a national crisis, the Stewart B. McKinney

15 Maria Foscarinis, Homelessness in America: A Human Rights Crisis, 13 J. L. & Soc'y 515, 517 (2012). 16 CHRISTOPHER JENCKS, THE HOMELESS, v (1994). 17 Foscarinis, supra note 15, at 517. 18 HENNEPIN COUNTY & CITY OF MINNEAPOLIS COMMISSION TO END

HOMELESSNESS, HEADING HOME HENNEPIN: THE TEN-YEAR PLAN TO END

HOMELESSNESS IN MINNEAPOLIS AND HENNEPIN COUNTY 53 (2006). 19 Id. 20 Id. 21 MARTHA BURT ET AL., HELPING AMERICA’S HOMELESS 2 (2001). 22 BRUCE G. LINK ET AL., Public Attitudes and Beliefs about Homeless People, in HOMELESSNESS IN AMERICA 143, 143 (Jim Baumohl ed., 1996). 23 Harry Simon, Towns Without Pity, A Constitutional and Historical Analysis of Official Efforts to Drive Homeless Persons From American Cities, 66 TUL. L. REV. 631, 647 (1992). 24 Donald Saelinger, Note and Comment, Nowhere to Go: The Impacts of City Ordinances Criminalizing Homelessness, 13 GEO. J. ON POVERTY L. & POL’Y 545, 547 (2007).

80 WULR Vol VII, Issue II Winter 2014

Homeless Assistance Act of 1987.25 The Act utilizes a more

expansive definition of homelessness which includes: those

physically on the street, those living in facilities not intended

for human habitation, and those who have shelter but are at

risk of immediately losing whatever shelter they have.26 The

definition of homeless children and youth also includes those

“who are sharing the housing of other persons due to loss of

housing, economic hardship, or a similar reason.”27

Historically, loitering and vagrancy laws have been

used to exile individuals experiencing homelessness from the

public streets.28 Individuals experiencing homelessness could

violate vagrancy laws simply by appearing “vagrant” in public, or

as vagrancy laws generally expressed, by being unemployed

when one had the capacity to be employed.29 Courts have since

largely overturned vagrancy laws, finding that they punish the

status or condition of being vagrant.30

Measures to extirpate poverty-stricken individuals

from public sight date back to the fourteenth century,31 but

“criminalization” as it is used today refers to practices

developed in the 1970s and 1980s.32 The invalidation of

vagrancy laws during this time consequently proscribed

localities from explicitly prohibiting the unwelcome poor.33

Today, the “criminalization of homelessness” refers to enacting

legislation that prohibits specific life-sustaining activities such

as “sleeping, sitting, or storing personal belongings in places

25 This legislation is now known as the McKinney-Vento Homeless Assistance Act of 1987. Foscarinis, supra note 14, at 518. 26 42 U.S.C. § 11302 (2006). 27 42 U.S.C. § 11434a (2) (B) (i) (2006). 28 Smith, supra note 7, at 301. 29 Id. at 302. 30 Pottinger v. City of Miami, 810 F. Supp. 1551, 1562 (S.D. Fla. 1992) (discussing the subsequent judicial ramifications of Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962)). 31 Casey Garth Jarvis, Homelessness: Critical Solutions to a Dire Problem; Escaping Punitive Approaches by Using a Human Rights Foundation in the Construction and Enactment of Comprehensive Legislation, 35 W. ST. U. L. REV. 407, 413 (2008). 32 See Simon, supra note 24, at 645-47. 33 See id.

Semi 81

where people are forced to exist without shelter.”34 As the

definition of criminalization suggests, these city-level

ordinances include prohibitions on sleeping, camping, sitting,

lying, loafing, and obstruction of public

thoroughfares.35,36,37,38,39,40,41

PART 2: PROBLEM: CRIMINALIZATION

Criminalization measures raise several social and legal

concerns. First, public order laws disproportionately apply to

individuals experiencing homelessness.42,43 While they restrict

behavior that is merely optional for housed citizens to perform

in public, anti-homeless laws criminalize behavior that is

necessary for individuals experiencing homelessness to

perform in public.44 The criminalization of homelessness also

violates several constitutional rights.45 Criminalization

measures in the form of police sweeps violate the Fourth

Amendment’s protection against unlawful searches and

34 NAT’L LAW CTR. ON HOMELESSNESS AND POVERTY, COMBATING THE

CRIMINALIZATION OF HOMELESSNESS: A GUIDE TO UNDERSTAND AND PREVENT

LEGISLATION THAT CRIMINALIZES LIFE-SUSTAINING ACTIVITIES 3 (2002). 35 See e.g., ATLANTIC CITY, N.J., MUN. CODE § 204-29 (2012), http://www.ecode360.com/AT0848. 36 See e.g., PORTLAND, OR., MUN. CODE § 14A.50.020 (2012), http://www.portlandonline.com/auditor/index.cfm? c=28148. 37 See e.g., SEATTLE, WASH., MUN. CODE § 15.48.040 (A) (2012), http://library.municode.com/index.aspx?clientId= 13857. 38 See e.g., HOUS., TEX., MUN. CODE § 40-352 (2012), http://library.municode.com/index.aspx?clientId=10123. 39 See e.g., BOISE, IDAHO, MUN. CODE § 9-10-05 (2012), http://cityclerk.cityofboise.org/city-code/. 40 See e.g., LAS VEGAS, NEV., MUN. CODE § 10.47.020 (2012), http://library.municode.com/index.aspx?clientId= 14787. 41 NAT'L LAW CTR. ON HOMELESSNESS & POVERTY & NAT'L COAL. FOR THE

HOMELESS, HOMES NOT HANDCUFFS: THE CRIMINALIZATION OF HOMELESSNESS IN

U.S. CITIES 165 (2009). 42 These discriminatory laws, manifestations of the criminalization of homelessness, will often be referred to as “anti-homeless laws” or “public order laws.” 43 JUDITH LYNN FAILER, Homelessness in the Criminal Law, in FROM SOCIAL JUSTICE TO

CRIMINAL JUSTICE: POVERTY AND THE ADMINISTRATION OF CRIMINAL LAW 248, 253-55 (William C. Heffernan & John Kleinig eds., 2000). 44 Id. 45 Foscarinis, supra note 10, at 156-157.

82 WULR Vol VII, Issue II Winter 2014

seizures when law enforcement unreasonably interferes with

homeless individuals’ expectation of privacy.46 Furthermore,

vague and overbroad anti-homeless laws violate the

individuals’ due process rights under the Fifth and Fourteenth

Amendments when they encourage punishment of inherently

innocent and inoffensive conduct.47 Public order laws such as

prohibitions against sleeping, sitting, lying, and camping in

public spaces also violate the Fifth and Fourteenth

Amendments because they encourage selective, therefore

arbitrary and discriminatory, police enforcement.48 Public

order laws essentially grant police greater, often unnecessary

power, to determine what is lawful and what is not, thereby

violating individuals’ rights to due process of the law.49 Finally,

anti-homeless laws criminalize conduct inseparable from the

status of being homeless in violation of the Eighth

Amendment’s protection from cruel and unusual

punishment.50

IIa. Discriminatory Laws

Criminalization measures burden individuals

experiencing homelessness by denying them the full capacity

to live their lives on the basis of their status of experiencing

homelessness. Anti-homeless laws prohibit behavior

performed in public that would otherwise be lawful if

performed in the comfort of one’s own home.51 As individuals

46 Pottinger v. City of Miami, 810 F. Supp. 1551, 1570-73 (S.D. Fla. 1992). 47 Id. at 1575. 48 Maya Nordberg, Jails Not Homes: Quality of Life on the Streets of San Francisco, 13 HASTINGS WOMEN’S L.J. 261, 279-80 (2002). 49 See Pottinger, 810 F. Supp. at 1576. 50 Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2006). 51 See infra note 107 and accompanying text regarding the implications of consuming alcohol in one’s own home compared to individuals who lack private accommodation. Under a paradigm of criminalization, housed individuals may legally consume alcohol in their home. Unsheltered individuals experiencing homelessness, however, have no such accommodation and are forced to drink in public. Suddenly, the otherwise legal practice of consuming alcohol becomes unlawful simply because an individual is experiencing homelessness.

Semi 83

experiencing homelessness have no home in which to perform

such acts, they are forced to perform them in the street, where

the actions are suddenly unlawful. 52,53 Housed individuals can

choose whether to perform such acts as sleeping, sitting, and

lying in public, but individuals experiencing homelessness

have no such choice.54,55

In response to augmenting challenges to the unequal

application of anti-homeless laws, cities have amended

existing ordinances or have enacted new “litigation proof” laws

meant to apply to a broader population.56 Such measures

include only enforcing certain laws, specifically sleeping and

camping in public spaces, during certain hours of the day or in

certain places of the city.57 Cities and states have also

broadened the language of loitering and begging laws to

include prohibitions against many forms of solicitation,

focusing on the conduct versus status aspect of such laws’

applicability.58 Though the broader language of anti-homeless

laws has increased their apparent legality by refraining from

explicitly targeting specific social groups, the laws’ application

still disproportionately disadvantages individuals experiencing

homelessness.59,60

IIb. Constitutionality of Laws

52 Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. REV. 295, 300-01 (1991). 53 Id. at 315. 54 Moreover, a housed individual’s choice to sleep, sit, or lie in a public space is not based on a need to survive, whereas individuals experiencing homelessness must necessarily perform these unlawful but life-sustaining behaviors in public in order to survive. 55 Failer, supra note 43, at 255. 56 Maria Foscarinis, Homelessness and Human Rights: Towards an Integrated Strategy, 19 ST. LOUIS U. PUB. L. REV. 327, 340 (2000). 57 Id. 58 Id. 59 Failer, supra note 43, at 253. 60 Though anti-homeless laws theoretically apply to and restrict the behavior of all citizens alike, the enforcement of anti-homeless laws truly disadvantages only the homeless community. Id. at 254-55.

84 WULR Vol VII, Issue II Winter 2014

In addition to being inherently discriminatory and

prejudicial, criminalization measures are also legally

problematic.61,62 Over the past few decades, suits have been

brought against municipalities, appealing to various legal

theories, including status and vagueness, and on various

constitutional grounds, including the Fourth Amendment, the

Fifth Amendment, the Eighth Amendment, and the Fourteenth

Amendment.63, 64, 65, 66, 67,68 Taken together, these conclusions

show that both the enactment and enforcement of anti-

homeless laws are suspect because they violate several

constitutional rights.69

Fourth Amendment

Though anti-homeless laws themselves do not

explicitly delegate search and seize practices, the enforcement

of such laws often results in unlawful searches and seizures.70

The seizure and subsequent destruction of individuals’

61 Jennifer E. Watson, Notes, When No Place is Home: Why the Homeless Deserve Suspect Classification, 88 IOWA L. REV. 501, 519-20 (2003). 62 See Tami Iwamoto, Adding Insult to Injury: Criminalization of Homelessness in Los Angeles, 29 WHITTIER L. REV. 515, 529-30 (2007). 63 Robinson v. California, 370 U.S. 660, 82 (1962). See Anderson v. City of Portland, No. 08-1447-AA, WL 2386056 (D. Or. July 31, 2009). See also Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd, 61 F.3d 442 (5th Cir. 1995). See also In re Eichorn, 81 Cal. Rptr. 2d 525 (Cal. Ct. App. 1998). 64 Kolender v. Lawson, 461 U.S. 352, 103 (1983). See also Grayned v. City of Rockford, 408 U.S. 104, 92 (1972). 65 Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger v. City of Miami, 810 F. Supp. 1551 (1992). 66 Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000). See Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger, 810 F. Supp. 1551. 67 Ingraham v. Wright, 430 U.S. 651, 97 (1977). See also Robinson, 370 U.S. 660. See also Joel, 232 F.3d 1353; Anderson, No. 08-1447-AA. See also Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev'd, 61 F.3d 442 (5th Cir. 1995). See also Pottinger, 810 F. Supp. 1551. See also Eichorn, 81 Cal. Rptr. 2d 525. 68 Robinson, 370 U.S. 660. See also Joel, 232 F.3d 1353. See also Anderson, No. 08-1447-AA. See also Johnson v. Bd. of Police Comm'rs, 351 F. Supp. 2d 929 (E.D. Mo. 2004). See also Pottinger, 810 F. Supp. 1551. 69 Foscarinis et al., supra note 10, at 156. 70 See Simon, supra note 24, at 634.

Semi 85

experiencing homelessness personal property is, unfortunately,

too common a practice under the criminalization of

homelessness.71 For example, in 2008, two individuals

experiencing homelessness stored their belongings on a public

street, taking precaution not to obstruct the public

thoroughfare.72 When the individuals went to retrieve their

belongings one day, they found a “notice of illegal camping,”

listing the address of the location wherein their property was

held.73 When they went to the address, several clothing items

and family photographs, among other personal possessions,

including ashes of a deceased parent, were missing.74 The only

belongings that remained were a few items of wet and moldy

clothing.75

Because individuals experiencing homelessness must

live in public, their property is at a significantly greater risk of

public exposure than individuals who are able to store their

belongings in the comfort of their home. Due to public

exposure, individuals experiencing homelessness often mark

their property with signs of possession, such as covering their

property with a blanket, or organizing it and leaning it against

a tree.76 Such measures distinguish their property from

property that is truly abandoned.77 However, because their

property is necessarily in public, it is more likely to be

mistaken for abandoned property, and is often confiscated

during police property sweeps that enforce anti-homeless

laws.78,79 Anti-homeless laws therefore make it more likely that

71 Shirley D. Howell, Please Don’t Feed the Homeless: Pottinger Revisited, 3 MOD. AM. 15, 16 (2007). 72 Anderson v. City of Portland, No. 08-1447-AA, WL 2386056, *2-*3 (D. Or. July 31, 2009). 73 Id. 74 Id. 75 Id. 76 See Pottinger v. City of Miami, 810 F. Supp. 1551, 1571 (S.D. Fla. 1992). 77 Id. 78 Id. 79 See Maria Foscarinis, Advocating for the Human Right to Housing: Notes From the United States, 30 N.Y.U. REV. L. & SOC. CHANGE 447, 469-70 (2006). During such sweeps,

86 WULR Vol VII, Issue II Winter 2014

homeless individuals’ property will be unlawfully taken during

an enforcement sweep.

Property seizures are lawful, provided that they do not

violate the Fourth Amendment by interfering with individuals’

possessory interests.80 Though their property is axiomatically

always in public, individuals experiencing homelessness

nonetheless have a reasonable and substantial privacy interest

in their property.81 The property of individuals experiencing

homelessness typically exhibits possessory characteristics by

its organization, containment, and arrangement.82 Such

characteristics distinguish the individuals’ property from

dispossessed and abandoned property, thereby establishing

the necessary possessory interest of individuals experiencing

homelessness.83 Cities that allow property sweeps in order to

maintain aesthetic standards do not have a substantially

greater interest in seizing the property of individuals

experiencing homelessness than the possessory interest

homeless individuals have in retaining their property.84

Measures to search and seize homeless individuals’ property in

order to maintain aesthetic standards therefore violate the

Fourth Amendment.85

Fifth & Fourteenth Amendments

The criminalization of homelessness also occurs when

anti-homeless laws punish inherently innocent and inoffensive

conduct.86 These laws violate homeless individuals’ due

process rights under the Fifth and Fourteenth Amendments.87

police often “destroy not only the inhabitants’ temporary shelters, but also much of their personal property.” Lisa M. Kline, Comment. 80 Pottinger, 810 F. Supp. at 1570-71. 81 Id. at 1571. 82 See id. at 1571. 83 Id. at 1571. 84 See id. at 1571-72. 85 Id. at 1573.

86 Id. at 1575. 87 Id.

Semi 87

Conduct such as sleeping, sitting, and lying is inherently

innocent and inoffensive, violating no others’ rights, when

performed in the comfort of one’s own home.88 Though

individuals experiencing homelessness must necessarily

perform such conduct in public, this fact does not make the

conduct any less innocent.89 Unconstitutionally vague and

overbroad anti-homeless laws that prohibit such inherently

innocent conduct thus violate the due process rights of

individuals experiencing homelessness.90

Vague and overbroad anti-homeless laws also violate

due process rights because they allow and encourage selective

and arbitrary police enforcement.91 In 1972, the Supreme Court

invalidated a city vagrancy ordinance because it prohibited

inherently innocent and inoffensive conduct, and thereby

“encourage[d] arbitrary and erratic arrests and convictions.”92

Under such a vague ordinance that only “increase[d] the

arsenal of the police,” …“those convicted [could] be punished

for no more than vindicating affronts to police

authority . . . .”93,94 Furthermore, vague anti-homeless laws that

prohibit broad and general conduct performed in public may

encourage police discretion in determining what constitutes

minor street disorder. 95 This may therefore promote selective

and discriminatory enforcement upon marginalized ‘others’.96

Eighth Amendment

88 See id. at 1577. 89 See id. 90 Municipalities overstep their constitutional power when they enact overbroad laws that punish essentially innocent and inoffensive conduct, such as sleeping, sitting, and lying in public. Id. at 1575-76; see also State v. Penley, 276 So.2d 180, 181 (Fla. Dist. Ct. App. 1973). 91 Nordberg, supra note 49, at 279-80. 92 Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843 (1972). 93 Id. at 165. 94 Id. at 166-67. 95 Nordberg, supra note 49, at 280. 96 Id.

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Anti-homeless laws that criminalize the status of

experiencing homelessness violate the Eighth Amendment’s

protection from cruel and unusual punishment.97 By

prohibiting conduct that is inseparable from the status of

experiencing homelessness, such as sleeping, sitting, lying, and

camping in public, anti-homeless laws criminalize the status

from which such conduct is derived.98 Anti-homeless laws

therefore criminalize the status of experiencing homelessness

when there are no other adequate alternatives, violating the

Eighth Amendment’s Cruel and Unusual Punishment

Clause.99,100

The protection from criminalizing status has

manifested into what is now known as the “Robinson

Doctrine,” a principle that arose in Robinson v. California

(1962).101,102 In Robinson, the Supreme Court deemed

unconstitutional a state statute outlawing narcotic addiction.

The decision held that the statute criminalized the “status” of

addiction.103 The Robinson Court equated addiction with illness,

ruling that “a state law which imprisons a person thus afflicted

as a criminal, even though he has never . . . been guilty of any

irregular behavior . . . inflicts a cruel and unusual

punishment . . . . Even one day in prison would be a cruel and

unusual punishment for the ‘crime’ of having a common

cold.”104 Accordingly, the criminalization of homelessness

criminalizes the status of experiencing homelessness by

criminalizing conduct inextricably linked to this status. The

United States Supreme Court has not yet ruled on the

applicability of conduct when it is inextricably linked to status,

97 Jones v. City of Los Angeles, 444 F.3d 1118, 1136 (9th Cir. 2006), vacated on other grounds, 505 F.3d 1006 (9th Cir. 2007). 98 Id. 99 Id. 100 Id. 101 Smith, supra note 7, at 294. 102 Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417 (1962)

103 Id. at 666-67. 104 Robinson, 370 U.S. at 667.

Semi 89

but several courts have discussed the issue in dicta, ruling that

conduct inextricably linked to status is at least significant for

Eighth Amendment analysis.105

In Powell v. Texas, a case similar to Robinson, the Court upheld

a statute prohibiting drunkenness in public. The Powell Court

reasoned that the law in question was constitutional because it

punished conduct separate from status.106 However, the Court

did not address the implications of the law if applied to

individuals without shelter, but Justice White addresses the

act of being drunk in public as it would apply to individuals

experiencing homelessness in his concurring opinion:

“The fact remains that some chronic alcoholics must drink and hence must drink somewhere. Although many chronics have homes, many others do not. For all practical purposes the public streets may be home for these unfortunates, not because their disease [alcoholism] compels them to be there, but because, drunk or sober, they have no place to go and no place else to be when they are drinking . . . . For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. As applied to them this statute is in effect a law that which bans a single act for which they may not be convicted under the Eighth Amendment—the act of getting drunk.”107

Justice White’s concurring opinion illustrates the

connection between conduct and status in the case of

homelessness: though laws may prohibit certain conduct, not

status, anti-homeless public order laws categorically apply to

individuals experiencing homelessness only because of their

105 See Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated on other grounds, 505 F.3d 1006 (9th Cir. 2007); Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992). See also, cf. Powell v. Texas, 392 U.S. 514 (1968) (White, J., concurring). 106 Powell v. Texas, 392 U.S. 514, 531-33, 88 S. Ct. 2145, 2154-55 (1968). 107 Powell, 392 U.S. at 551 (White, J., concurring).

90 WULR Vol VII, Issue II Winter 2014

status (the status of experiencing homelessness). In any other

case, the law in question is otherwise valid, but when applied

to individuals who must live on the street because they have

nowhere else they can be, the laws criminalize their inability to

perform the conduct anywhere else but in public. Some courts

have found that sleeping, sitting, lying, and camping are acts

distinct from the status of experiencing homelessness.108 Such

courts, however, have not addressed the factor that

distinguishes the plight of homelessness from the privilege of

secure housing: the fact that individuals experiencing

homelessness “have no realistic choice but to live in public

places.”109

Individuals who are unavoidably criminalized are

often afforded eighth amendment protection if they pass a

“three-part test,” established in Pottinger v. City of Miami

(1992).110 In Pottinger, U.S. District Court for the Southern

District of Florida ruled, inter alia, that the city of Miami’s

practice of arresting individuals experiencing homelessness for

sleeping, standing, and congregating violated the Eighth

Amendment.111 The “three-part test” determines whether

homelessness is appropriately deemed a status in any given

case. 112 First, courts must ask, are plaintiffs involuntarily

experiencing homelessness? Second, do plaintiffs have

available to them nonpublic places to carry out the punished

activities? Third, are the activities being punished

involuntary?113 If, according to the Pottinger court findings, the

composite answer is yes, then the law in question violates the

Eighth Amendment.114

108 Pottinger v. City of Miami, 810 F. Supp. 1551, 1563 (S.D. Fla. 1992). 109 Id. 110 Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992). 111 Pottinger, 810 F. Supp. 1551. 112 Maria Foscarinis, Downward Spiral: Homelessness and its Criminalization, 14 YALE L. &

POL’Y REV. 1, 43 (1996). 113 Id. 114 Id.

Semi 91

Typically, however, Eighth Amendment protection

only extends to individuals experiencing homelessness when

city resources such as attainable and affordable low-income

housing or reasonable alternative forms of shelter are deficient

or inadequate.115 This is because the lack of affordable or

attainable alternatives prevents individuals experiencing

homelessness from performing such prohibited acts in any

place except the public streets.116 In these instances when

cities lack adequate alternatives, individuals experiencing

homelessness have no choice but to perform the prohibited

actions in public and risk the probability of criminalization.117

The criminalization of homelessness is a pervasive

practice of criminalizing innocent, life-sustaining behaviors

necessary for unsheltered individuals experiencing

homelessness to perform. Anti-homeless laws discriminatorily

apply only to those experiencing homelessness despite the

claim that they have been enacted to regulate the collective

population. In addition, the implementation and enforcement

of anti-homeless laws violate the protections under the Fourth,

Fifth, Eighth, and Fourteenth Amendments when individuals

experiencing homelessness have no choice but to perform

prohibited conduct in public due to lack of adequate

alternatives.

PART 3: SOLUTION: CRIMINALIZATION TERMINATION &

HOMELESSNESS ERADICATION

States should not only enact legislation similar to the

Rhode Island Homeless Bill of Rights and its accompanying

legislation, but should go farther to acknowledge and combat

the discriminatory nature of criminalization measures through

legislation. States should also employ additional, extra-

legislative efforts that would develop community-based

115 Pottinger,, 810 F. Supp. at 1564. 116 Id. 117 Id. at 1564-65.

92 WULR Vol VII, Issue II Winter 2014

solutions to end homelessness. As a solution to the

criminalization of homelessness, the Rhode Island Homeless

Bill of Rights and its accompanying legislation appropriately

challenge and provide protection from unlawful searches and

seizures, due process deprivations, as well as issues revolving

around the criminalization of the status of experiencing

homelessness. However, the Rhode Island law does not

effectively address the discriminatory nature of criminalization

measures, nor does it explicitly address the potential for

selective and discriminatory police enforcement.

IIIa. Homeless Bill of Rights

States should enact Homeless Bills of Rights that

follow the inclusive and solution-orientated approach modeled

in Rhode Island’s Homeless Bill of Rights. Within the

Homeless Bills of Rights, states should also include legislation

similar to that of Rhode Island’s Homeless Bill of Rights.

Enacting Homeless Bills of Rights and accompanying

legislation will reduce the probability of violating the

constitutional rights of individuals experiencing homelessness,

and will also exhibit an attitude of non-tolerance to

municipalities towards selective and discriminatory

enforcement of anti-homeless municipal laws.

The Rhode Island Homeless Bill of Rights (2012) is a

significant advancement in the area of homelessness legislation,

and substantially challenges discriminatory criminalization

measures. Apart from the McKinney-Vento Homeless

Assistance Act of 1987, few other legislative acts have

addressed the issue of homelessness so explicitly and

comprehensively.118 Until the Rhode Island law, the purposes

of these acts had been to predominantly address housing issues,

and few to none had addressed the rights of the homeless

118 Foscarinis, supra note 54, at 331.

Semi 93

community in public.119 The Rhode Island Bill of Rights is the

first major legislative action on the state level to explicitly

address the comprehensive rights of the homeless community,

including rights in public as well as in obtaining housing and

employment.

The Rhode Island Homeless Bill of Rights is an

important advancement in the way a community responds to

homelessness because it acknowledges the vulnerability of

individuals experiencing homelessness who must live in public.

Specifically, the Rhode Island law declares, “no person should

suffer unnecessarily or be subject to unfair discrimination

based on his or her homeless status.”120 According to the

Homeless Bill of Rights,

“A person experiencing homelessness . . . has the right to

use and move freely in public spaces, including, but not limited to, public sidewalks, public parks, public transportation and public buildings, in the same manner as any other person, and without discrimination on the

basis of his or her housing status . . . ; has the right to equal treatment by all state and municipal agencies,

without discrimination on the basis of housing status . . . ; has the right to a reasonable expectation of

privacy in his or her personal property to the same extent as personal property in a permanent residence.”121

Rhode Island has enacted additional legislation

regarding rights in public places that simultaneously support

these rights affirmed to the homeless community. Generally,

“[a]ll persons . . . shall be entitled to the full and equal

accommodations, advantages, facilities, and privileges of any

place of public accommodation . . . .”122 Furthermore, “[n]o

119 Id. 120 R.I. Gen. Laws § 34-37.1-3 (2012). 121 Id. at 316 (1). 122 R.I. Gen. Laws § 11-24-1 (2012).

94 WULR Vol VII, Issue II Winter 2014

person . . . shall directly or indirectly refuse, withhold from, or

deny to any person . . . any of the accommodations, advantages,

facilities, or privileges of that public place.”123 Finally, the

phrase “places of public accommodation” as it is construed in

Rhode Island state law includes but is not limited to “rest

rooms, bath houses, . . . amusement and recreation parks, . . .

boardwalks, and public libraries; . . . public halls and public

elevators . . . ; and . . . public housing projects.”124 Taken

together, these laws indicate that individuals experiencing

homelessness are guaranteed various protections against

discrimination on the basis of their housing status. Specifically,

individuals experiencing homelessness have several explicit

rights to freely be in public spaces, use public facilities, and

enjoy public accommodations free from civilian interference.

Rhode Island’s accompanying legislation further confirms the

legitimacy of the presence of individuals experiencing

homelessness in public spaces. The legislation prohibits any

other person from denying an individual, experiencing

homelessness or not, the accommodations and benefits of any

public space.125 The legislation also affirms that individuals

experiencing homelessness are allowed to be in public spaces

that housed citizens might deny to homeless individuals, such

as recreational parks, libraries, and boardwalks.126 This

accompanying legislation serves as a supplementary guarantee

that individuals experiencing homelessness have the freedom

to be in public spaces that is equal to the freedom granted to

housed individuals.

The Rhode Island Homeless Bill of Rights and its

accompanying legislation effectively address and solve several

problems created by the criminalization of homelessness. First,

the legislation assures that individuals experiencing

homelessness have a possessory interest in their personal

123 R.I. Gen. Laws § 11-24-2 (2012). 124 R.I. Gen. Laws § 11-24-3 (2012). 125 § 11-24-2. 126 R.I. Gen. Laws § 11-24-1. See also R.I. Gen. Laws § 11-24-3.

Semi 95

property that is equal to the possessory interests of those who

are housed in a permanent home.127 This measure protects

individuals experiencing homelessness from unlawful searches

and seizures simply because their possessions necessarily must

always be in public.

The Rhode Island Homeless Bill of Rights and its

accompanying legislation also protects individuals

experiencing homelessness from vaguely worded laws that

collectively disadvantage individuals experiencing

homelessness. The Rhode Island law explicitly states that all

individuals experiencing homelessness are allowed to be in

public to the same extent that all others are allowed to be in

public.128 This language thereby protecting individuals

experiencing homelessness from vaguely worded public order

laws that that prohibit conduct inseparable from the status of

experiencing homelessness such as general presence in public

and innocently roaming public streets. Laws prohibiting

sleeping, sitting, lying, and camping are thereby either limited

or invalidated to allow individuals experiencing homelessness

to freely use public space without discrimination on the basis

of their housing status.

States should therefore enact Bill of Rights legislation

that models the inclusive humanitarian attitude written into

the Rhode Island Homeless Bill of Rights and its

accompanying legislation. By enacting state statutes that

explicitly allow homeless individuals to use public spaces like

housed members of society, states can reduce the potential to

violate the civil rights of the homeless community. Moreover,

prohibiting discrimination on the basis of housing status,

specifically regarding the use of public accommodations, states

can demonstrate a policy of non-tolerance towards prejudicial

enforcement of anti-homeless laws.

127 R.I. Gen. Laws § 34-37, 1-3 (7) (2012). 128 R.I. Gen. Laws § 34-37, 1-3 (1) (2012).

96 WULR Vol VII, Issue II Winter 2014

Enacting a Homeless Bill of Rights will challenge the

criminalization of homelessness by actively combating

discriminatory legislation to prevent civil rights violations.

More importantly, however, enacting Homeless Bills of Rights

will allow states and municipalities to more effectively address

homelessness in general. Under the current anti-homeless

paradigm, the resources used to enforce laws that perpetuate

the cycle of criminalization for committing crimes that only

sustain a homeless individual’s life, such as sleeping, sitting,

and lying in public, waste energy that could be used for more

meaningful purposes.129 Current anti-homeless laws thus

divert the attention of authorities away from homelessness

elimination, preventing them from developing long-term

solutions to end homelessness. Homeless Bills of Rights would

limit or invalidate anti-homeless laws, allowing states and

municipalities to focus on developing solutions to end

homelessness that address both the imminent and permanent

needs of the homeless community.130 Ultimately, policing areas

of the city to maintain public health and order does not

contribute to what should be the overarching goal of

eliminating homelessness.

IIIb. Additional, Extra-Legislative Measures

In addition to a Homeless Bill of Rights that includes

provisions similar to Rhode Island’s accompanying legislation,

states should also enact additional social policies, including

increasing social services and transitional and permanent aid

efforts, to supplement legislation. Supplemental efforts will

not only acknowledge and combat the discrimination borne by

individuals experiencing homelessness, but will also

contribute to the focal goal of eliminating homelessness.

129 Nordberg, supra note 49, at 298. 130 See NAT’L LAW CTR. ON HOMELESSNESS & POVERTY, supra note 11, at 46.

Semi 97

While Rhode Island has made significant progress

regarding the ability of individuals experiencing homelessness

to live their lives in public without facing criminalization, the

Homeless Bill of Rights does not go far enough as to properly

challenge the discriminatory disadvantage the current anti-

homeless laws place on individuals experiencing homelessness.

Though the Rhode Island law states that such individuals have

the right to “use and move freely in public spaces,” the

inclusion of this phrase does not acknowledge the fact that any

other person (i.e., a person with permanent and adequate

housing) is not systematically and disproportionately

disadvantaged by laws prohibiting sleeping, camping, sitting,

lying, loafing, and obstruction of public thoroughfares.131

States therefore should go farther to extend Rhode

Island’s law by acknowledging the disadvantage that the

enforcement of selected public order laws place on the

community of unsheltered individuals experiencing

homelessness.132 This would involve minimizing police

regulation and emphasizing social services and permanent aid

efforts while at the same time providing an environment in

which housed citizens feel comfortable and safe. 133,134 One such

solution explored by the Pottinger court involved keeping the

anti-sleeping laws, but allowing individuals experiencing

homelessness “to remain in a limited area instead of banishing

them from the park entirely.”135 This measure would have

maintained the city’s interest in preventing crime in public

parks while removing the disadvantage to individuals

experiencing homelessness of risking arrest for being in a

park.136 By employing such policies, cities can maintain their

interest in public health and order, whilst preserving the rights

131 R.I. Gen. Laws § 34-37,1-3 (2012). 132 Such as sleeping, camping, sitting, lying, loafing, and obstruction. 133 Nordberg, supra note 49, at 301; see also id. 134 See Andrew J. Liese, Note, We Can Do Better: Anti-Homeless Ordinances as Violations of State Substantive Due Process Law, 59 VAND. L. REV. 1413, 1449 (2006). 135 Pottinger v. City of Miami, supra note 76, at 1551, 1583. 136 Id.

98 WULR Vol VII, Issue II Winter 2014

of individuals experiencing homelessness who have no other

alternative.137

Some laudable jurisdictions have enacted these types

of socially-rooted efforts and have developed concrete plans to

end homelessness. The federal government created the

Interagency Council on Homelessness, which in 2010

published the National Plan to Prevent and End

Homelessness.138 The Plan prescribes an increase in leadership,

collaboration, and civic engagement. It also calls for increasing

to stable and affordable housing, increasing economic security,

improving health and stability, and “retooling” the homeless

crisis response system.139 States and municipalities should

implement plans on local levels similar to the comprehensive

federal plan to supplement Homeless Bills of Rights. One

notable example of such implementation is the city of

Minneapolis and Hennepin County, Minnesota. Hennepin

County’s ten-year plan includes an Outreach Collaborative

system that connects homeless individuals to social services in

order to eliminate involvement with the police and the

criminal justice system.140 Efforts such as those of the federal

government and Hennepin County remove the emphasis from

policing practices and place it on meeting the needs of

individuals experiencing homelessness. Moreover, such efforts

would beneficially supplement states’ enactment of Homeless

Bills of Rights to terminate criminalization and eradicate

homelessness.

PART 4: OBJECTIONS: REASONS FOR “PUBLIC ORDER” LAWS

137 See id. 138 National Law Center on Homelessness & Poverty, CRIMINALIZING CRISIS: ADVOCACY MANUAL 8 (2011). 139 UNITED STATES INTERAGENCY COUNCIL ON HOMELESSNESS, OPENING DOORS: FEDERAL STRATEGIC PLAN TO PREVENT AND END HOMELESSNESS 26 (2010). 140 HENNEPIN COUNTY & CITY OF MINNEAPOLIS COMMISSION TO END

HOMELESSNESS, HEADING HOME HENNEPIN: THE TEN-YEAR PLAN TO END

HOMELESSNESS IN MINNEAPOLIS AND HENNEPIN COUNTY 21-22 (2006), available at http://www.co.hennepin.mn.us/.

Semi 99

Those in favor of retaining anti-homeless laws appeal

to several justifications for the practice, including maintaining

a community’s quality of life, promoting a community’s

economic flourishing, and preserving a community’s public

health and safety.141 While these may be laudable and desirable

community aspirations, criminalizing homelessness does not

actualize these goals.142

Crimes that fall under the “quality-of-life” category

typically prohibit nuisance-type behaviors and are commonly

in the form of sleeping ordinances.143 Efforts to police these

activities aim to deter “street crime.”144 Criminalizing sleeping,

sitting, lying, and camping in public does not deter individuals

experiencing homelessness from committing the acts in the

future if those individuals have absolutely nowhere private to

sleep, sit, lie, or camp.145 Moreover, quality-of-life ordinances

do not eliminate such “criminal” behavior from the streets.146,147

After the individuals are cited, and often jailed for failure to

pay the fine, they have no choice but to return to the street

where they will continue to violate the law until they acquire

private, permanent shelter in which they can perform the

behaviors legally.148

Another reason to regulate behavior in public spaces is

to maintain and promote a community’s economic success,

measured by business revenue and tourism.149 Businesses argue

that homelessness disturbs residents and visitors alike, and

that businesses and the community suffer economic harm from

141 Iwamoto, supra note 59, at 522; see also HARRY SIMON, Municipal Regulation of the Homeless in Public Spaces, in HOMELESSNESS IN AMERICA 149, 150-51 (Jim Baumohl ed., 1996). 142 Iwamoto, supra note 59, at 522. 143 Id. 144 Nordberg, supra note 49, at 269. 145 Iwamoto, supra note 59, at 522-23. 146 Such inherently natural and innocent behavior is only made criminal by anti-homeless laws. 147 Iwamoto, supra note 59, at 523. 148 Id. 149 Id.at 524.

100 WULR Vol VII, Issue II Winter 2014

decreasing tourist consumerism.150 For this reason, businesses

are often a significant voice in a community’s desire to increase

police power—efforts that often culminate into widespread

police sweeps and selective enforcement of public order laws.

However, police sweeps that attempt to eliminate the sight of

homelessness from the public only shift it from one place to

another.151,152 Sweeps that result in the constant migration of

individuals experiencing homelessness neither solves nor

addresses the underlying causes of homelessness.153 Attention

to the underlying causes of homelessness would more

efficiently eliminate its existence from a given community.154

Communities also appeal to the preservation of public

health and welfare in order to justify criminalization

measures.155 For example, an Eau Claire, Wisconsin ordinance

prohibiting camping in public places states that “[camping in

public] create[s] unsafe and unsanitary living situations which

pose[s] a threat to the peace, health, or safety of those persons

and other citizens of the city.”156 However, criminalizing these

behaviors will not deter nor prevent individuals living on the

streets from performing them. Instead of criminalizing such

behaviors, cities should address the lack of public

accommodation in order to legally perform these actions and

develop permanent solutions to fulfill these needs.157

Less explicit, but still an argument in support of anti-homeless

legislation, is the concern for community aesthetics.158 As one

scholar notes,

150 Id. 151 Id. 152 Id. 153 Id. 154 Id. 155 Id. 156 EAU CLAIRE, WIS., MUN. CODE § 9.74.010 (2012), http://www.eauclairewi.gov/index.aspx?page=70. 157 Iwamoto, supra note 59, at 525. 158 Foscarinis et al., supra note 10, at 155; William M. Berg, Note, Roulette v. City of Seattle: A City Lives With its Homeless, 18 SEATTLE U. L. REV. 147, 152 (1994).

Semi 101

“The crimes of misery [quality of life laws] reflect the visceral reactions of the working, middle, and upper classes. The affluent and economically comfortable simply do not want to have to encounter [homeless] people . . . . After all, most people are uncomfortable seeing acts in public that middle-class conventions dictate should remain in the private sphere . . . .”159

While public order, health, safety, and economic flourishing

may be meritorious policy goals, they do not justify

systematically disadvantaging an entire class of people simply

because they are compelled by their housing status to live on

the streets.160 As the Pottinger court found, “although the idea of

homeless people sleeping in public parks may disturb or offend

some portion of society, the answer is not in arresting

individuals who have arguably only committed the offense of

being without shelter.”161

PART 5: CONCLUSION

The criminalization of homelessness is a pervasive

practice that systematically and unconstitutionally

disadvantages individuals experiencing homelessness.

Criminalization makes ill-use of limited public resources and

furthermore diverts states and municipalities from developing

plans to effectively eliminate homelessness. Instead of

targeting individuals experiencing homelessness, states should

follow the inclusive and humanitarian model provided by

Rhode Island’s Homeless Bill of Rights and its accompanying

legislation to combat unlawful and discriminatory

criminalization.

Rights are a revolutionary law that affirms the civil

rights of individuals experiencing homelessness. In order to

more appropriately challenge the discriminatory nature of

159 Mitchell, supra note 6, at 509-10. 160 See Foscarinis et al., supra note 10, at 151. 161 See Pottinger, supra note 65, at 1583.

102 WULR Vol VII, Issue II Winter 2014

current anti-homeless laws, however, states should explicitly

acknowledge the disadvantage individuals experiencing

homelessness currently face in their Homeless Bills of Rights.

States should also employ additional social efforts, such as

collaborative policies, ten-year plans, and community-based

resource support, to supplement Homeless Bills of Rights.

Such additions would engender the social, solution-focused

mentality needed for effective community action. A focus on

transitional and permanent solutions will contribute to a more

adequate and effective framework in which to challenge

criminalization. Collectively, with the enactment of Homeless

Bills of Rights and supplemental policies and efforts, states can

begin to end homelessness in U.S. cities. By enacting these

rights-oriented solutions that recognize the personhood and

autonomy of all individuals, communities can transform the

dominant narrative surrounding homelessness from one of

prejudice and intolerance to one of respect and understanding.