Abortion Laws and Civil Unrest: A Peek into Modern Abortion Legislation

By: Camille Nooney

Edited by: Anna Westfall and Dheven Unni

Abortion has been a divisive issue for generations. After Roe v. Wade made it legal, without excessive government restrictions, on a national level, many thought this debate about the government's place in determining abortion morality or legality had come to somewhat of an end. However, in recent years state legislatures have continued to move towards more and more abortion restrictions. These state laws culminated recently into Texas Senate Bill 8, which prevents physicians from providing any abortion care once, "cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac".[1] This can happen as early as 5-6 weeks into pregnancy: often, people are not even aware that they are pregnant at this point. 

Though many cases surrounding the legality of the bill have been taken to the courts and some have made it to the Supreme Court, Senate Bill 8 has been able to escape a lot of judicial review because of how it is enforced. This bill is not enforced by state officials; state officials are not allowed to enforce the bill. Instead, private citizens must sue those who violate the bill. This has made it difficult to determine whether the law is unconstitutional because when the Supreme Court deems a law unconstitutional, the Court blocks its enforcement as opposed to the law itself.[2] Even conservative judges who voted against the temporary blocking of Senate Bill 8 on September 2 have critiqued the interesting manner of enforcing Senate Bill 8. For example, Brett Kavanaugh, a conservative justice appointed by President Donald J. Trump, spoke out on Senate Bill 8, stating: "There's a loophole that's been exploited here or used here”.[3] Kavanaugh further criticized this "loophole" by stating that it could be used to take away other constitutional rights such as freedom of speech or religion.[3] Elena Kagan also critiqued the “loop hole” the law utilizes by speaking on the dangerous precedent it could set for other controversial issues she states, “There's nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don't like, go ahead”.[8] This statement by Justice Kagan further emphasizes the dangerous nature of Senate Bill 8. On September 2, 2021, in a tight 4-5 vote, the Supreme Court rejected the blocking of Senate Bill 8. Yet, this rejection was based on technical aspects of the law and not on whether the law is constitutional.[3] 

As tensions are rising surrounding Texas's legislation, Ohio has recently proposed an even harsher abortion bill that goes further than Senate Bill 8, titled House Bill 480. Similarly, House Bill 480 also specifies that state officials will not enforce it. The bill allows for civil penalties of at least $10,000 for anyone who performs or attempts an abortion. Unlike Texas's bill, however, Ohio's bill does not allow abortions before six weeks: it is a total abortion ban.[4] Whether or not the bill will pass the state House and Senate is still up for debate. 

However, the implications of a bill like this being proposed and the amount of support it has already received are severe. As these stricter laws bring up the legality of abortion bans and the possible reevaluation of Roe v. Wade, they could completely alter the landscape of abortion access. If Roe v. Wade were to be overturned, many abortion restrictions that were in place before Roe v. Wade could go back into effect. Many states also have trigger laws or bans that cannot be currently enforced but will come into effect if circumstances change, such as the overturning of Roe V. Wade.[4] For example, even if Ohio House Bill 480 is not passed, Ohio has a proposed trigger ban entitled Senate Bill 123 that, if passed, would go into effect if Roe v. Wade was overturned.[5] Eleven states currently have trigger laws that would ban abortions in the first and second trimester if Roe v. Wade was to be overturned.[6]

This December, the Supreme Court is going to hear a case concerning a Mississippi abortion law. This case has the potential to overturn Roe v. Wade and completely alter the ability of women to get an abortion in the United States. Abortion activists and anti-abortion activists alike are waiting to see what unfolds during this hearing on December 1, 2021.[7]

Notes:

1. “The College of Liberal Arts the University of Texas at Austin.” UT College of Liberal Arts: TxPEP. Accessed November 7, 2021. https://liberalarts.utexas.edu/txpep/research-briefs/senate-bill-8.php. 

2. Reese Oxner, “Key U.S. Supreme Court Justices Express Concern about Texas Abortion Law's Enforcement,” The Texas Tribune (The Texas Tribune, November 1, 2021), https://www.texastribune.org/2021/11/01/texas-abortion-law-supreme-court/.

3. Oma Seddiq, “Supreme Court Seems Skeptical of Texas' 6-Week Abortion Ban, with Justice Brett Kavanaugh Saying 'There's a Loophole That's Been Exploited',” Business Insider (Business Insider, November 1, 2021), https://www.businessinsider.com/supreme-court-considers-texas-anti-abortion-law-2021-11.

4. “HB 480: Ohio's Proposed Total Abortion Ban,” Ohio Policy Evaluation Network , n.d., https://open.osu.edu/wp-content/uploads/2021/11/HB480-PolicyBrief.pdf.

5. “S.B. No.123.” The ohio senate. Accessed November 7, 2021. https://ohiosenate.gov/legislation/GA134-SB-123. 

6. “Abortion Policy in the Absence of Roe,” Guttmacher Institute, October 6, 2021, https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe.

7. Ariane de Vogue, “Supreme Court to Hear Restrictive Mississippi Abortion Law on December 1,” CNN (Cable News Network, September 21, 2021), https://www.cnn.com/2021/09/20/politics/supreme-court-mississippi-abortion-law/index.html.

8. Oxner, R. (2021, November 2). Here's what U.S. Supreme Court justices had to say about Texas' abortion law. The Texas Tribune. Retrieved December 22, 2021, from https://www.texastribune.org/2021/11/01/supreme-court-texas-abortion-quotes/

How the Supreme Court Should Rule in Carson v. Makin

By: Daniel Wolf

Edited by: Michael Crystal and Patrick Ales

Introduction

On December 8, 2021, the US Supreme Court will hear oral arguments in the case of Carson v. Makin. The case involves a challenge to §2951(2) of Maine state law, which prohibits providing state funds for tuition purposes to “sectarian” schools that use those funds for religious instruction and proselytization.[1] Most of Maine’s school districts--formally called “administrative units”--lack their own public schools. Hence, one state law allows families in such districts to use state funds to send their children to public or private schools within or outside of the state. Three families attempted to utilize this statute to send their children to two separate Christian private schools within the state. However, Maine denied their request because it classified these schools as sectarian. After losing their case in the First Circuit Court of Appeals, the three families filed a writ of certiorari to the Supreme Court. On July 2, 2021, the Supreme Court granted the families’ petition.[2] The Court will be considering whether §2951 (2) of Maine state law violates the Fourteenth Amendment’s Equal Protection Clause or the First Amendment’s Religious Clauses. 

Precedent

An examination of Court precedent and the laws underpinning the case demonstrates that Maine’s law does not violate either the Equal Protection Clause or the Religious Clauses. Numerous past Supreme Court cases serve as precedent for Makin, primarily Locke v. Davey (2004), Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), and Espinoza v. Department of Revenue (2020). 

In Locke, Joshua Davey challenged the constitutionality of the Washington State Promise Scholarship, which provided talented students with scholarship money for college but stipulated that students could not use the funds to obtain a theology degree. Davey argued that the stipulation which prevented an eligible student from obtaining a theology degree violated the First Amendment’s Free Exercise clause. The Court disagreed, ruling that Washington’s program was constitutional because it did not discriminate against religious institutions but rather “a distinct category of instruction.”[3] Furthermore, the Court argued, states have a “historic and substantial interest” in withholding public funds for religious activities, and Washington’s program did not “suggest animus toward religion.”[4] In Locke, the Court began to make a meaningful distinction between institutions’ religious status and their use of public funds for religious purposes. The Court’s ruling implied that it would be unconstitutional for a state to withhold public funding from an institution because it is religious. However, it would be constitutional for a state to withhold public funding if an institution planned on using those funds for religious activities that the state did not want to endorse.[5] 

Comer revolved around a Missouri state law prohibiting the public treasury from providing money “in aid of any church, section or denomination of religion.”[6] The Trinity Lutheran Church of Columbia, Inc. applied for a Missouri state grant that provided money to organizations to assist them in rebuilding playgrounds. However, Missouri denied Trinity’s application based on its law about providing money to religious groups. Trinity argued that this law violated their First Amendment rights. The Court agreed, ruling that it was unconstitutional for a state to exclude churches from an “otherwise neutral and secular aid program.”[7] The program discriminated against recipients based “solely on account of religious identity.”[8] Thus, it was unconstitutional. Here, the Court further solidified the importance of status vs. use regarding the constitutionality of a state’s prohibition on funding religious organizations or activities. 

In Espinoza, the Court made the distinction between status and use even more essential. The case involved a Montana scholarship program that prohibited scholarship recipients from attending religious schools because of a state law that forbids Montana from funding religious schools.[9] Kendra Espinoza filed suit against the law, claiming that it violated the First Amendment’s Religious Clauses. The court concurred, citing Trinity, and again declaring that Montana’s law was unconstitutional because it “impose[d] special disabilities on the basis of religious status.”[10] 

Analysis 

The Court will have to decide what level of scrutiny to apply in Makin. In both Trinity and Espinoza, the Court applied the standard of strict scrutiny. Strict scrutiny is the most rigorous standard of review a court can use when determining the constitutionality of a law that seemingly violates a fundamental right, such as the right to practice one’s religion freely. To pass the strict scrutiny test, a law must “further a compelling government interest” and be “narrowly tailored” to achieve that interest.[11] The Court applied strict scrutiny in Trinity and Espinoza because those cases involved discrimination against an institution based on its religious status.[12] However, the discrimination in Makin is not status-based. Maine’s law does not exclude schools from its free tuition program based on their status as religious institutions. Instead, the law excludes schools that use state funds for religious instruction and proselytization.[13] Consequently, strict scrutiny should not apply in Makin; instead, the rational basis standard should apply. The rational basis test allows a law that seemingly restricts liberty so long as that law furthers a “legitimate state interest” and is “rational.”[14] 

The plaintiffs in Makin argue that Maine’s law violates the Equal Protection Clause of the Fourteenth Amendment because the law unfairly targets religious families, but this is not the case. Maine’s aim to restrict the use of state funds for religious education is “rational” and furthers a “legitimate government interest” because the state has historically excluded religious schools from programs that provide state funds to other public/private schools for a multitude of reasons, including “concentrating…on its goal of providing secular education, avoiding entanglement, and allaying concerns about accountability that…would accompany state oversight of parochial schools.”[15] Because of America’s federalist system of government, states are allowed to determine their own education policies, and, as the First Circuit Court wrote, Maine “has permissibly concluded that the benefit of a free public education is tied to the secular nature of the institution.”[16] 

Maine’s law also does not violate the Religious Clauses of the First Amendment. The plaintiffs argue that Trinity and Espinoza set new precedents that the Court must now follow, but these two cases are easily distinguishable from Makin. The Court sided with the plaintiffs in Trinity and Espinoza because states discriminated against organizations solely based on their religious status in both of those cases. In Makin, however, Maine is only discriminating against schools that use state funds for explicitly religious instruction. Thus, Makin is more akin to Locke than Trinity or Espinoza because of the similarities between the cases. They both relate to the use of state funds for religious purposes, and, as in Locke, Maine’s law does not “suggest animus toward religion.” Instead, it suggests a legitimate state interest in keeping the government disentangled from religion. Since Locke bears far more similarity to Makin than either Trinity or Espinoza, the Court should pay the most attention to the precedent it outlined in Locke.

Conclusion

Maine’s law regarding the use of state funds for religious instruction is constitutional. The law serves a “legitimate state interest” in that it disentangles the state from the church, and it is “rational” because it achieves this interest by preventing state-sponsored religious instruction. Since Makin is distinguishable from Trinity and Espinoza, the Court must focus on Locke. Locke demonstrates that Maine’s law is constitutional because it excludes religious institutions based on their use of state funds and not on their status, and because Maine’s law does not “suggest animus toward religion.” Consequently, Maine’s law does not violate the Establishment Clause or the Religion Clauses.

If the Court were to rule in favor of the plaintiffs, the results could be devastating. The schools where the families involved in Makin wanted to send their children teach its students a thoroughly Christian and Biblical worldview ”[17] Moreover, one of the schools requires teachers to acknowledge that “God recognize[s] homosexuals and other deviants as perverted” and refuses to admit gay children or children who come “from homes with serious differences with the school’s biblical curriculum.” A ruling in favor of the plaintiffs would violate the principle of separation of church and state because it would allow a state to sponsor education promoting religion.[18] Any ruling that erodes the principle of separation of church and state begs a certain question: if a government can pay for students to attend schools that teach religion, why can’t a government eventually start incentivizing religious education? Additionally, a ruling in favor of the plaintiffs could have practical effects on the social justice progress that activists have made in recent decades.[19] A state paying for a student to learn a “Biblical world view” could very well mean a state is funding the teaching of discrimination against people in the LGBTQ community or others. The Court must uphold Maine’s law to affirm the separation of church and state and to prevent state-sponsored discriminatory education.  

Notes:

1. Title 20-A, Maine Revised Statutes, §2951: Approval for Tuition Purposes (1981).

2. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.” The Atlantic. Atlantic Media Company, October 14, 2021. https://www.theatlantic.com/ideas/archive/2021/10/how-carson-v-makin-could-unravel-freedom-religion/620386/

3. Locke v. Davey, 540 U. S. 2 (2004)

4. "Locke v. Davey." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2003/02-1315.

5. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

6. "Trinity Lutheran Church of Columbia, Inc. v. Comer." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2016/15-577.

7. “Trinity Lutheran v. Comer” Oyez.

8. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 25 (2017)

9. "Espinoza v. Montana Department of Revenue." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2019/18-1195.

10. Espinoza v. Montana Dept. of Revenue, 591 U. S. 2 (2020)

11. “Strict Scrutiny.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/strict_scrutiny.

12. Carson v. Makin, No. 19-1746, 26, (1st Cir. 2020).

13. Carson v. Makin, 37.

14. “Rational Basis Test.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/rational_basis_test.

15. Carson v. Makin, 58.

16. Carson v. Makin, 49. 

17. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

18. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”

19. Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.”
    

Bibliography:

Carson v. Makin, No. 19-1746, 26, (1st Cir. 2020).

Espinoza v. Montana Dept. of Revenue, 591 U. S. 2 (2020).

"Espinoza v. Montana Department of Revenue." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2019/18-1195.

Locke v. Davey, 540 U. S. 2 (2004).

“Locke v. Davey." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2003/02-1315.

“Rational Basis Test.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/rational_basis_test.

“Strict Scrutiny.” Legal Information Institute. Accessed November 7, 2021. https://www.law.cornell.edu/wex/strict_scrutiny.

Title 20-A, Maine Revised Statutes, §2951: Approval for Tuition Purposes (1981).

Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 25 (2017).

"Trinity Lutheran Church of Columbia, Inc. v. Comer." Oyez. Accessed November 7, 2021. https://www.oyez.org/cases/2016/15-577.

Wehle, Kimberly. “The Sleeper Scotus Case That Threatens the Separation of Church and State.” The Atlantic. Atlantic Media Company, October 14, 2021. https://www.theatlantic.com/ideas/archive/2021/10/how-carson-v-makin-could-unravel-freedom-religion/620386/

Antitrust Litigation Has Yet to Effectively Protect Small Businesses and Consumers From Modern-Day Monopolies

By: Oliver Goldman

Edited by: Alexandre Brunet and Sophia Chang

The passage of the Sherman Antitrust Act in 1890 marked the beginning of antitrust law in the United States. This law was enacted in direct response to monopolistic business practices that emerged in the late nineteenth century. As a way to solidify market control in the new industrialized world, firms within the same industry began to organize themselves into trusts –– for example, The Standard Oil Trust formed in 1882 –– wherein a single group of trustees was placed in charge of all the component companies, which then enabled one monopolistic entity, the trust, to dominate entire industries.[1]

Besides the Sherman Act, there are currently two other major federal antitrust laws: the Clayton Antitrust Act of 1914 and the Federal Trade Commission (FTC) Act of 1914. Together, these three laws are supposed to function to protect a freely competitive market and ensure that consumers have access to low prices and new and better products.[2] Today, however, these century-old regulations are failing to adequately protect small businesses and consumers from the monopolies of the twenty-first century. Big businesses, such as Amazon, Google, Meta, and AT&T, exert control over and collectively possess an outsized share of the American economy. Three companies control close to 80 percent of the mobile telecommunications industry.[3] Amazon alone controls more than 40 percent of e-commerce sales.[4] Meanwhile, Apple controls more than 50 percent of the US smartphone market share.[5]

As Nobel Prize-winning economist and Columbia University professor Joseph Stiglitz wrote in 2017, “[s]ome century and a quarter ago, America was, in some ways, at a similar juncture.” The current landscape, though, is importantly different and precarious. 

In recent decades, antitrust litigation has centered around consumer harm, “with strong presumptions that the market was in fact naturally competitive,” Stiglitz wrote. These presumptions have made it “almost impossible” to bring successful predatory pricing cases, as the theory went that new firms would inevitably enter the marketplace if existing firms attempted to raise prices above costs, thus restoring competition. In practice, this has not been the case. Big firms have been successful in concentrating their market power, as well as in raising their prices relative to costs, in turn lowering consumers’ standard of living, decreasing workers’ wages, and creating difficult terrain for new and small businesses. 

These dynamics are due to what Stiglitz describes as “new antitrust standards that made the creation, abuse, and leveraging of market power easier” in the evolving modern economy.[6] These standards can be seen by looking at the history of American antitrust policy over the course of four cycles, as explained by Maurice Stucke and Ariel Ezrachi in The Harvard Business Review. 

The first cycle was the previously-discussed period from 1900-1920, characterized by the creation of antitrust law and the promise of reform to break up and prevent future versions of monopolistic trusts like Standard Oil. 

Stucke and Ezrachi define the second cycle as the period from the 1920s to the 1930s, during the early New Deal, when “antitrust activity was rare since administrations generally preferred industry-government cooperation over robust antitrust enforcement.” In other words, the US government relaxed antitrust laws in order to facilitate industrial and commercial cooperation to serve the interest of public welfare. 

The third cycle––”the golden era of antitrust”––was marked by antitrust becoming closely associated with the ideals of economic and political freedom. In response to fascism and communism abroad, the United States believed in the power of competition in “dispersing economic and political power from the hands of a few” and creating “greater opportunities to compete, improve, and win.” During this period, between the 1940s and the late 1970s, robust antitrust policy became seen as a condition necessary for effective competition. In creating these conditions, Congress amended the Clayton Act of 1914 to enable government agencies and courts the power to break the dynamic force of concentration “before it gathered momentum.” The Supreme Court upheld this change in 1962, when it ruled in Brown Shoe Co., Inc. v. United States that the merger of two shoe companies tended to “create a monopoly in the production, distribution and sale of shoes” and stood in violation of the Clayton Act.[7]

During the third cycle, the Department of Justice (DOJ) also wielded the Sherman Act to prosecute “unreasonable restraints of trade and monopolistic abuses.” In 1958, in Northern Pacific R. Co. v. United States, a district judge ruled that the Northern Pacific Railroad Company’s “preferential routing” agreements constituted “unreasonable restraints of trade” under Section 1 of the Act.[8] These litigation efforts signaled the “shaking off [of antitrust enforcement] inactivity that had characterized the early New Deal period.” 

According to Stucke and Ezrachi, however, the fourth cycle, the period they identify as the late-1970s to the mid-2010s, saw the re-contraction of antitrust enforcement due to the emergence of the Chicago and post-Chicago Schools’ neoclassical economic theories. These theories assumed that markets would “self-correct” and concerned themselves less with antitrust enforcement as a necessary condition to make competition effective. Instead, they side-stepped historic concerns about thwarting concentration in industries in favor of the “prospect of future efficiencies and innovation.” In general, the fourth cycle was defined by the ideology of letting market forces naturally correct themselves and letting antitrust take a backseat role in regulating markets.[9]

Over the last few decades, the anti-monopoly movement has been renewed in litigation efforts, but with little success given the inefficacy of the enforcement mechanisms in place. There have been numerous cases brought to confront certain companies’ monopolistic market behavior, starting with The United States of America v. Microsoft Corporation in 1998. In the case, the DOJ and the attorneys general of 20 other states charged that Microsoft’s “bundling of additional programs into its operating system constituted monopolistic actions” and stood in violation of antitrust law.[10] The suit was brought in the aftermath of the downfall of Microsoft’s top competitor, Netscape, as well as the beginning of Microsoft giving away access to its browser services for free. In the end, after a long appeals process, Microsoft reached a settlement with the DOJ that included the DOJ abandoning their goal to break up the company. 

This case set an important precedent in antitrust litigation, showing how long, arduous, and unsuccessful lawsuits against modern-day tech monopolies can be. Since then, the DOJ has experienced bouts of success in litigating firms, such as Visa in November 2020.[11] But the problem remains that the current American antitrust framework is simply not equipped to check the structure and scope of modern-day behemoths. 

Particularly when it comes to dismantling tech firms, existing antitrust proves to be antiquated. Current statutes, even with their evolution during parts of the twentieth century, view antitrust through the narrow lens of harm to the consumer. As Zachary Karabell notes, that creates a problem for litigation efforts “because the companies give away many of their products for free and can argue in other cases they lower prices.”[12] 

It is clear that the American antitrust framework needs to be updated and expanded according to the still-evolving modern economy. For the sake of protecting small businesses and consumers, as well as protecting the general democratic ideal of free and competitive markets, the rules of the American economy need to be rewritten, starting with antitrust law. 

Notes:

1. “Our Documents - Sherman Anti-Trust Act (1890)” (U.S. Department of Justice), 6.

2. “Antitrust Enforcement and the Consumer” (Justice Department, 2021). 

3. John Mauldin, “America Has A Monopoly Problem” (2019). 

4. Blake Droesch, “Amazon Dominates US Ecommerce, Though Its Market Share Varies by Category” (2021). 

5. “US Smartphone Market Share: By Quarter” (Counterpoint Research, 2021). 

6. Joseph Stiglitz, “America Has a Monopoly Problem—and It’s Huge” (Roosevelt Institute, 2017). 

7. “Brown Shoe Co., Inc. v. United States, 370 U.S. 294 (1962)” (Justia Law).

8. “Northern Pacific R. Co. v. United States , 356 U.S. 1 (1958)” (Justia Law). 

9. Maurice E. Stucke, and Ariel Ezrachi, “The Rise, Fall, and Rebirth of the U.S. Antitrust Movement” (Harvard Business Review, 2017). 

10. Andrew Beattie, “Why Did Microsoft Face Antitrust Charges in 1998?” (Investopedia, 2021). 

11. Kelly Anne Smith, “What’s Going On With The Facebook Antitrust Lawsuit?” (Forbes Advisor, 2021). 

12. Zachary Karabell, “What the EU Gets Right—and the US Gets Wrong—About Antitrust.” (Wired, 2020).

Bibliography:

Beattie, Andrew. 2021. “Why Did Microsoft Face Antitrust Charges in 1998?” Investopedia. October 25, 2021. https://www.investopedia.com/ask/answers/08/microsoft-antitrust.asp.

“Brown Shoe Co., Inc. v. United States, 370 U.S. 294 (1962).” n.d. Justia Law. Accessed November 16, 2021. https://supreme.justia.com/cases/federal/us/370/294/.

Droesch, Blake. 2021. “Amazon Dominates US Ecommerce, Though Its Market Share Varies by Category.” Insider Intelligence. April 27, 2021. https://www.emarketer.com/content/amazon-dominates-us-ecommerce-though-its-market-share-varies-by-category.

Karabell, Zachary. 2020. “What the EU Gets Right—and the US Gets Wrong—About Antitrust.” Wired. November 21, 2020. https://www.wired.com/story/what-eu-gets-right-us-wrong-antitrust/.

Mauldin, John. 2019. “America Has A Monopoly Problem.” Forbes. April 11, 2019. https://www.forbes.com/sites/johnmauldin/2019/04/11/america-has-a-monopoly-problem/?sh=2eac8d212972.

“Northern Pacific R. Co. v. United States :: 356 U.S. 1 (1958).” n.d. Justia Law. Accessed November 16, 2021. https://supreme.justia.com/cases/federal/us/356/1/.

“Our Documents - Sherman Anti-Trust Act (1890).” n.d. https://www.ourdocuments.gov/doc.php?flash=false&doc=51.

Smith, Kelly Anne. 2021. “What’s Going On With The Facebook Antitrust Lawsuit?” Forbes Advisor. May 17, 2021. https://www.forbes.com/advisor/investing/update-facebook-antitrust-lawsuit/.

Stiglitz, Joseph. 2017. “America Has a Monopoly Problem—and It’s Huge.” Roosevelt Institute. October 26, 2017. http://rooseveltwec.wpengine.com/2017/10/26/america-has-a-monopoly-problem-and-its-huge/.

Stucke, Maurice E., and Ariel Ezrachi. 2017. “The Rise, Fall, and Rebirth of the U.S. Antitrust Movement.” Harvard Business Review, December 15, 2017. https://hbr.org/2017/12/the-rise-fall-and-rebirth-of-the-u-s-antitrust-movement

U.S. Department of Justice. n.d. “Antitrust Enforcement and the Consumer.”https://www.justice.gov/atr/file/800691/download.

“US Smartphone Market Share: By Quarter.” 2021. Counterpoint Research (blog). August 16, 2021. https://www.counterpointresearch.com/us-market-smartphone-share/.

The Impact of Inadequate Representation on Death Row

By: Anna Dellit

Edited by: Rayyana Hassan and Renan Dennig

The death penalty is most commonly discussed as a moral debate, and the right of the government to take a human being’s life. However, another element to be considered is the lack of procedural justice and structure in the court system for those unable to represent themselves effectively considering the labyrinth-like structure of the law and the courts. In accordance with the Sixth Amendment, all criminal defendants are guaranteed access to a defense attorney. However, the Sixth Amendment does not guarantee the qualification level of the defendant’s legal team, even for death penalty cases, resulting in discrimination based on racial, socioeconomic, and mental differences.

The case of Walter “Johnny D'' McMillian exemplifies the effects of neglected procedure and racial inequity within the system. Mr. McMillian was born and raised in a majority-Black settlement on the outskirts of Monroeville, Alabama. After the death of a young white woman, Ronda Morrison, in 1986, Monroeville detectives arrested a Black man by the name of Walter McMillian. A local law enforcement officer, Sheriff Tate, stopped Mr. McMillian on the road, accused him of the murder, and promptly confined him to a cell on death row for 15 months prior to his trial. The jury then deemed Mr. McMillian guilty of capital murder, even with dozens of members of his community willing to testify to his whereabouts at the time the crime occurred. Due to a mix of witness perjury, falsified information, coercion of witnesses by law enforcement, and inadequate support for his legal team, Mr. McMillian served an additional six years for a crime he did not commit, witnessed seven executions, developed early onset dementia, and remains traumatized by his experience. Mr. Mcmillian’s conviction was overturned by the Alabama Court of Criminal Appeals in 1993 with the help of the Equal Justice Initiative. Still, Sheriff Tate, who did not act in accordance with legal procedure, was granted immunity and retired decades later in 2019.[1] While Mr. McMillan was exonerated, meaning absolved from their blame or previous convicted crime, he lost years of his life and still faces serious health ramifications. In response to the increasing rate of exonerations of death penalty sentencing, the legal system needs to reform its careless treatment of death row cases, as preventative action is the only way to save the innocent from a corrupt system. 

Since 1989, with the start of the Equal Justice Initiative, there have been over 2,500 exonerations throughout the entire legal system, 367 of them being exonerated through existing DNA evidence.[2] Unfortunately, illegal and unprofessional behavior by attorneys and officials of the law, exemplified in the case of Walter McMillian, is common. In the case of Mississippi citizen Curtis Flower, the prosecutor was found to have intentionally stricken Black jurors from the panel to create an all-white jury.[3]

The current public defender infrastructure lacks incentive and the foundation to fully represent the accused due to the overwhelming number of cases assigned to competent lawyers. Public defenders lack the motivation to win when the government and court system encourage fast-moving cases. For example, the Texas Defender Service found that judges often appoint defense attorneys based on reputation for speed rather than competency or experience.[4] Late Supreme Court Justice Ruth Bader Ginsberg corroborates this claim, asserting, "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. People who are well represented at trial do not get the death penalty.”[4] This detrimental issue of inadequate representation also manifests itself in a defendant facing the alarming possibility of only meeting in person with their attorneys once or twice briefly before entering the trial. This was the reality in the case of Landon Quinn, a Black man convicted in New Orleans of robbery and murder in 2011. While there was no forensic evidence linking him to the case, the conviction was based on cross-racial eyewitness identification and resulted in a life sentence. He was granted the legal minimum of two defense attorneys, but both lawyers each had over 500 other felony cases and an additional critical death penalty case to manage simultaneously. This directly violates the recommendations of the National Advisory Commission on Criminal Justice Standards and Goals, which state that public defense attorneys are to take a maximum of 150 cases per year.[5] Furthermore, without proper funding for public defense attorneys, many death row cases are put on hold or indicted without ever being given a proper defense team. This is a “warning that the chronic underfunding of public defense was causing unmanageable caseloads to the point of abrogating the Sixth Amendment rights of defendants.''[5] There are a multitude of issues that result in the violation of the Sixth Amendment's intent: underfunding, overworking lawyers, and a lack of attorney competency. Ben Cohen, an attorney for The Promise of Justice Initiative, agrees with the claims and describes the system with an analogy: “Imagine a conveyer belt of [murder cases], and we’re grabbing them off as they come. But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor.”[6]

The burden of addressing wrongful convictions does not rely solely on the defense attorneys. It can equally be placed on Conviction Integrity Units (CIU), specialized offices within some prosecution or state attorney general offices, that have the goal of preventing and identifying false convictions and evidence, and moreover to hold prosecution teams and law enforcement accountable. Unfortunately, their effectiveness is up for debate. Supporters of the current CIU system believe they add an overall benefit to the community, as seen by leaders of the organization Fair and Just Prosecution urging Kansas City Board of Commissioners to allow the foundation of a CIU office; “victims are safer—and we prevent further victimization—when communities trust that their law enforcement officials seek the truth rather than a ‘win.’ This essential starting point of trust encourages community members to come forward and cooperate when crimes occur. And in cases of actual innocence, communities are clearly safer when we focus on identifying and prosecuting the actual culprit, and when our justice system can recognize and learn from past mistakes.”[7] Furthermore, proponents of CIUs find the offices' independence uninhibited by close connection with fellow prosecutors and law enforcement. Brandon Hamburg, a researcher and analyzer of the effectiveness of post-conviction review units, further elaborates on the importance and efficiency of CIU offices by determining that they have “a much easier time accessing files from prosecutors outside their jurisdiction, in case an innocence claim, for example, involves a similar case in a neighboring county. Prosecutors also enjoy a close working relationship with experienced police officers; these seasoned investigators possess the skills and information networks necessary to investigate claims.”[8] 

However, critics of CIUs claim the offices are merely a device to win public support and are internally dissuaded from seeking real justice. The Equal Justice Initiative found that out of all of the CIU offices, four units account for 85% of all CIU exonerations and CIU offices only secure 40% of all exonerations.[2] To explain this low success rate of the majority of current CIU offices, Josie Duffy Rice, the President of The Appeal, a news publication that publishes original journalism about the criminal justice system, writes that “because CIUs are part of the DA’s office, they are often incentivized to protect their own. Most of these units are staffed by career prosecutors, who are given the task of investigating their colleagues and their superiors — so even when they do identify misconduct, they may be hesitant to accuse those around them of wrongdoing.”[9] Rachel Barkow, a law professor and member of the United States Sentencing Commission, corroborates this assertion. She believes the units function merely to claim pursuit of justice and equity; “For a fair number of offices, they are often no more than cosmetics.”[10]

Even with CIU offices, proper procedure must be followed by appealing a case in hopes of an exoneration verdict. The current legal system fails to address the importance of the appeals process by providing insufficient support to defendants after their conviction. To have a verdict overturned or a retrial given, an appeal must be filed by a defense attorney with new evidence for consideration, meaning the defense lawyer must continue work past conviction and be familiar with the depth of each case. An incompetant original public defense lawyer violates the accused’s constitutional right to effective counsel. According to the California Supreme Court’s automatic appeals monitor, Robert Reichman, out of California’s 600 inmates on death row, over 160 have no lawyers to handle their mandatory direct appeals, and 72 inmates have no new counsel for their habeas corpus petitions, which directly violates the Sixth Amendment.[11] This leads to blockage in the system and directly explains why some inmates from the 1990’s have yet to even start their rightful appeal process. Not only is the system not improving, but Alabama took a step backwards in 2017 with the passage of the Fair Justice Act. Governor Kay Ivey claimed that the bill would expedite the appeal process and continue to be thorough, but Birmingham civil-rights attorney Lisa Borden believes it does the opposite. She asserts that prior to the act, Alabama’s handling of cases usually lacked “detailed investigation” and cutting the time for post-conviction investigation would only create more injustice; “You are going to have people whose valid claims, whose important claims [are] cut off forever and people are going to die[...] If Alabama really wants to fix the process [it should] … provide competent representation and resources to people from the beginning.”[12] American Bar Association President Linda Klein further condemns the passage of the bill by stating, “While the ABA respects the importance of finality and judicial efficiency, quicker resolution of cases where a life is at stake should not take priority over ensuring the fundamental fairness and accuracy of those convictions.”[13] 

Opponents of mandatory appeals argue that inmates who waive their rights to due process act of their own accord and have the right to do so. John Blume, Associate Professor of Law at Cornell Law School and director of the Cornell Death Penalty Project, concedes that “[The] decision [is one] that a client is entitled to make for himself, regardless of the opinion of his lawyer.”[14] This belief is the one adopted by the federal legal system by their allowance of “volunteers” on death row. “Volunteers” consist of inmates who willingly waive their right to ordinary appeals or who terminate further proceedings resulting in a definitive date of execution for them. In her research paper about the topic, Kristen M. Dama, lawyer and research expert, continually compares death row “volunteerism” to the act of assisted suicide as she believes both should continue to be legal.[15] To counter this claim, Blume conducted an audit on past volunteers and questioned their mental fitness. Blume found that most inmates had significant histories of mental illness and substance abuse, and “that 39% of [Blume’s] respondents cited hopelessness as a factor in the volunteers’ decision to abandon appeals.”[16] As highlighted by the Equal Justice Initiative, executing people with mental illness is cruel and inhumane, and 75% of all “volunteers” document mental illness.[17] The evidence and outcry amongst experts demonstrate the need for mental competency screenings to be required before an inmate waives their appeals rights to protect the lives of the mentally vulnerable.

The issue of mental competency emerges in the case of Ford v Wainwright when Alvin Ford’s attorneys pleaded he was mentally incompetant. Following the case, the Supreme Court ruled that inmates are not competent to be executed if they are “unaware of the punishment they are about to suffer and why they are to suffer it,”[18] which refers to their competency at the time of execution after years of imprisonment and not at the time of original trial. The Equal Justice Initiative found that approximately 20% of all inmates on death row exhibit significant mental illness, 10% are military veterans with trauma disorders, and out of all the prisoners who have waived their right to due process, 75% have documented mental illness.[17] Moreover, it is not only attorneys who find that the current system completely neglects human rights and dignity. Mental Health America (MHA), a non-profit organization dedicated to protecting and addressing the needs of Americans affected by mental illness, has adopted the stance of a death penalty moratorium until the system is corrected. They assert that “individuals with serious mental illness are threatened and coerced into false confessions, have difficulty understanding their rights, and have less access, because of their mental illness, to safeguards designed to protect fundamental rights, including the right to effective assistance of legal counsel. The criminal justice system’s failure to guarantee due process for people with mental illnesses makes discriminatory application of the death penalty more likely.”[19] Attorneys and the judicial system are not equipped to understand the complexity of the medical field. This leads to the mentally ill being taken advantage of as highlighted by the MHA. Furthermore, many states, unaware of the implications of mental illness, use the vague verdict of “Guilty but Mentally Ill” to account for mental insanity. But MHA found these verdicts do little to protect the rights of the mentally insane and fail to place the mentally ill in equitable, appropriate conditions; “[Guilty but Mentally Ill] verdict provides no benefit to society or to criminal defendants because it has the same consequences as a guilty verdict.[...] Virtually every person found GBMI is sent to prison. Persons found GBMI are entitled to mental health services while imprisoned.”[20] 

Intentionally taking a life requires considerate deliberation, and holds both tremendous responsibility and consequence. This process, if continued, must be meticulous and concrete in its procedure to prevent any infringement upon the rights of the innocent. Of the 2,500 exonerations of death penalty charges or lesser crimes, each person averaged nine years imprisoned for a crime they did not commit.[2] This amounts to roughly 22,500 years lost or over 260 lifetimes. Between overwhelmed public defense attorneys, partial CIU offices, inadequate mental support or evaluations, and unrepresented racial groups positions of legal power, the margin of error is too great to ignore. With the current system, a defendant’s verdict does not solely come down to the most just outcome, but is influenced by outside factors beyond their control. To fail on such a drastic and flagrant scale only furthers the dire need for reform.

Notes:

1. Walter McMillian (Equal Justice Initiative, 2020)

2. Wrongful Convictions (Equal Justice Initiative, 2021) 

3. Mississippi Judge Frees Curtis Flowers on Bail after Six Trials and 23 Years in Jail (Death Penalty Information Center, 2019) 

4. Inadequate Representation (American Civil Liberties Union) 

5. Radley Balko, Opinion | How Two Overworked Public Defenders and Six Judges Left a New Orleans Man with a Life Sentence (The Washington Post, 2019)

6. Eli Hager, Where the Poor Face the Death Penalty without a Lawyer (The Marshall Project, 2017) 

7. The Value and Importance of Conviction Integrity Units (Fair and Just Prosecution, 2018) 

8. Brandon Hamburg, Legally Guilty, Factually Innocent: An Analysis of Post Conviction Review Units (University of Southern California Gould School of Law, 2016) 

9. Jose D. Rice, Do Conviction Integrity Units Work? (The Appeal, 2018) 

10. Richard A. Oppel and Farah Stockman, Prosecutors Usually Send People to Prison. These Are Getting Them Out (New York Times, 2019) 

11. Crystal N. Hines, Lack of Lawyers Hinders Appeals in Capital Cases (New York Times, 2001) 

12. Alabama Governor Signs Law Shortening Death-Penalty Appeals (Death Penalty Information Center, 2017) 

13. Brian Lyman, Alabama Speeds Death Penalty Appeals Process (2017) 

14. John H. Blume Killing the Willing: “Volunteers,” Suicide and Competency (Cornell Law Library, Cornell Law Faculty Publications, 2004) 

15. Kristen M. Dama, Redefining a Final Act: The Fourteenth Amendment and States’ Obligation to Prevent Death Row Inmates From Volunteering to be put to Death (University of Pennsylvania Law School, 2007) 

16. Meredith M. Rountree, Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures (Northwestern University School of Law, 2014) 

17. Death Penalty (Equal Justice Initiative, 2021)

18. Shaila Dewan, Does the U.S. Execute People with Mental Illness? It's Complicated (The New York Times, 2017) 

19. Death Penalty and People With Mental Illnesses (Mental Health America 2016) 

20. In Support of the Insanity Defense (Mental Health America, 2019)  

Bibliography:

Balko, Radley. “Opinion | How Two Overworked Public Defenders and Six Judges Left a New Orleans Man with a Life Sentence.” The Washington Post, WP Company, 29 Aug. 2019, http://www.washingtonpost.com/opinions/2019/08/28/how-two-overworked-public-defenders-six-judges-left-new-orleans-man-with-life-sentence/. 

Blume, John H. "Killing the Willing: “Volunteers,” Suicide and Competency." Cornell Law Library, Cornell Law Faculty Publications, 15 Sept. 2004, scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1015&context=lsrp_papers.

Dama, Kristen M. "Redefining a Final Act: The Fourteenth Amendment and States’ Obligation to Prevent Death Row Inmates From Volunteering to be put to Death." University of Pennsylvania Law School, 2007, scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1258&context=jcl.

Death Penalty Information Center. "Alabama Governor Signs Law Shortening Death-Penalty Appeals." DPIC, 30 May 2017, deathpenaltyinfo.org/news/alabama-governor-signs-law-shortening-death-penalty-appeal,deathpenaltyinfo.org/news/alabama-governor-signs-law-shortening-death-penalty-appeals

Dewan, Shaila. “Does the U.S. Execute People with Mental Illness? It's Complicated.” The New York Times. The New York Times, March 21, 2017. https://www.nytimes.com/interactive/2017/us/mental-illness-death-penalty.html. 

Equal Justice Initiative. "Death Penalty." EJI, eji.org/issues/death-penalty/. Accessed 4 Nov. 2021.

Hager, Eli. “Where the Poor Face the Death Penalty without a Lawyer.” The Marshall Project. The Marshall Project, November 29, 2017. http://www.themarshallproject.org/2017/11/28/where-the-poor-face-the-death-penalty-without-a-lawyer. 

Hamburg, Brandon. "Legally Guilty, Factually Innocent: An Analysis of Post Conviction Review Units." University of Southern California Gould School of Law, 20 Apr. 2016, gould.usc.edu/students/journals/rlsj/issues/assets/docs/volume25/Spring2016/2.Hamburg.pdf.

Hines,Crystal N. "Lack of Lawyers Hinders Appeals in Capital Cases." New York Times, 5 July 2001, www.nytimes.com/2001/07/05/us/lack-of-lawyers-hinders-appeals-in-capital-cases .html.

“Inadequate Representation.” American Civil Liberties Union, http://www.aclu.org/other/inadequate-representation. 

Mental Health America. "Death Penalty and People With Mental Illnesses." Mental Health America, 14 June 2016, www.mhanational.org/issues/position-statement-54-death-penalty-and-people-mental-illnesses.

Mental Health America. "In Support of the Insanity Defense." Mental Health America, 13 June 2019, www.mhanational.org/issues/position-statement-57-support-insanity-defense#_edn1.

 “Mississippi Judge Frees Curtis Flowers on Bail after Six Trials and 23 Years in Jail.” Death Penalty Information Center, 16 Dec. 2019, https://deathpenaltyinfo.org/news/mississippi-judge-frees-curtis-flowers-on-bail-after-six-trials-and-23-years-in-jail. 

Lyman, Brian. "Alabama Speeds Death Penalty Appeals Process." Governing, 31 May 2017, www.governing.com/topics/public-justice-safety/tns-alabama-death-penalty-ivey.html.

Oppel, Richard A., and Farah Stockman. "Prosecutors Usually Send People to Prison. These Are Getting Them Out." New York Times, 28 Nov. 2019, www.nytimes.com/2019/11/28/us/conviction-integrity-unit-innocence.html. 

Rice, Josie D. "Do Conviction Integrity Units Work?" The Appeal, 22 Mar. 2018, theappeal.org/do-conviction-integrity-units-work-a718bbc75bc7/.

Rountree, Meredith M. "Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures." Northwestern University School of Law, 2014, files.deathpenaltyinfo.org/legacy/documents/VolunteersForExecution.pdf.

“The Value and Importance of Conviction Integrity Units ...” Fair and Just Prosecution, August 8, 2018. https://fairandjustprosecution.org/wp-content/uploads/2018/08/KCK-CIU-SIGN-ON-LETTER-FINAL.pdf. 

Walter McMillian, Equal Justice Initiative, 23 Jan. 2020, https://eji.org/cases/walter-mcmillian/. 

“Wrongful Convictions.” Equal Justice Initiative, 23 Feb. 2021, https://eji.org/issues/wrongful-convictions/.