Williams College Law Journal, Volume III, Issue I

WILLIAMS COLLEGE LAW JOURNAL VOLUME III, ISSUE I FALL 2013

The WILLIAMS COLLEGE LAW JOURNAL is an interdisciplinary undergraduate publication comprised of student essays that is devoted to the scholarly discussion of legal subjects. The mission of this publication is to provide a place where undergraduate students can discuss and examine the law, its role, the effects of law and policy, and the relationships of law and justice, as well as their experiences preparing for law school, a legal education, or their involvement in a legal field.

We accept submissions covering a wide range of topics related to law, from any current undergraduate student around the nation, regardless of academic division, major, minor or year. If you are an alum, professor, or lawyer, you can also submit a short piece that is aimed at educating undergraduate students about careers, educations, or experiences in the legal field.

Essays can be submitted via email or our website http://williamscollegelawsociety.com/lawjournal/submit/

The Law Journal Committee would like to graciously acknowledge the following organizations for their generous support.

Williams College Law Society Williams College Council Williams College Dean’s Office Williams College Law Society Law Journal Committee c/o Office of Student Life 39 Chapin Hall Drive Williamstown, MA 01267 WilliamsCollegeLawJournal@gmail.com www.WilliamsCollegeLawSociety.com/lawjournal

COVER: Design by Gloria Joo i

WILLIAMS COLLEGE LAW JOURNAL Volume III Issue I Fall 2013

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Letter from the Editor

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Commercial Surrogacy and Social Norms: On the Legal and Moral Limits of the Free Market Joshua Halpern

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On Banning Pornography Kalina Yingnan Deng

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The Legal Implications of Behavioral Genetics Research Zachary L. Stewart

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War of the Wombs: The Trade-off between Safety and Accessibility in California’s New Abortion Law Robin Yi Jung Park

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A Tribute To Reason? Terrorism, Miranda, and the Public Safety Exception Joe Bianco

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Interview with Edward Johnson: Civil Litigator, Sullivan & Cromwell LLP Lily Hye Rin Lee

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Book Review: Legal Accents, Legal Borrowing Roya Huang

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LETTER FROM THE EDITOR Dear Reader, Law Journal Editorial Board Editor-in-Chief Corbin Chu Layout Editor Feixue Gong Managing Editors Yogeeta Chatoredussy Binh Duong Associate Editors Joseph Bianco Roya Huang Lily Lee Robin Park Andrei Sarabia Marisol Sierra Williams College Law Society Executive Board CO-PRESIDENTS Emanuel McMiller Dan Zhao VICE PRESIDENT Narah Moon SECRETARY Yogeeta Chatoredussy TREASURER Nick Kraus

Two years with the Journal have flown by; however, its ascent has seen a deep metamorphosis in its board’s organization, as well as its evolving design and content. I am proud to have been a part of this young publication’s beginning stages to make for a more attractive, approachable, readerfriendly law journal. And though editorial boards in recent memory have shifted quickly, I have worked with industrious, creative Williams students who have shaped a strong foundation for the Journal. We have learned together how to produce an attractive, stimulating publication. Naturally, we continually seek different ways to increase campus engagement with the Journal.

And so, the Journal this year has benefited from the guidance of a newly formed faculty review board that includes many dedicated professors from the College who graciously provide their support. Reviewing the Journal’s evolution has been a rewarding, yet humbling, practice. But as all good things must ultimately end, my chapter with serving as an editor with the Journal, too, has come to its close.

Many ideas surrounding the Journal have finally have had a chance to cross-pollinate and set root. Soon we shall see it flower into its fuller potential. It has been a pleasure learning about the law with you.

All my best, Corbin Chu ‘15 Editor­-in-­Chief

PUBLIC RELATIONS Chase Hicks EVENTS Shanice Scantlebury EDITOR-in-CHIEF Corbin Chu LAW TEAMS Yazmine Nichols

The Williams College Law Journal is published at least twice a year. Previous editions of the Law Journal can be found online on our website. The contents of this volume represent the opinions of the authors and not necessarily those of the editors, the Journal, the Williams College Law Society, or Williams College.

All rights reserved. No parts of this publication may be reproduced or transmitted without the Law Society’s written consent.

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Commercial Surrogacy and Social Norms On the Legal and Moral Limits of the Free Market

By Joshua Halpern Yeshiva University

Abstract Advances in reproductive technology raise new and interesting questions for legislators about what should and should not be for sale. For some, commercial surrogacy extends beyond the acceptable legal and moral limits of the marketplace. Such critics often claim that the practice should be banned on the grounds that it engenders harmful social norms like patriarchy and the pricing of human attributes. Through legal and moral arguments, I demonstrate that these claims rest on empirical and normative assumptions too tenuous to warrant a constriction of the free-market’s scope. Although I do not provide exhaustive solutions to the legal and moral problems surrounding the enforceability and regulation of CS contracts, my argument aims to lay the philosophical and legal groundwork for its legalization.

I: Introduction Advances in reproductive technology raise new and interesting questions for legislators about what should and should not be for sale. In 1988, the state of Michigan determined that commercial surrogacy—the commodification of infants and women’s reproductive labor—extends beyond the free-market’s acceptable moral and legal limits.1 According to Section 7:2 of Michigan’s Surrogate Parenting Act, “a person […] who enters into, induces, arranges, procures, or otherwise assists in the formation of a [surrogacy] contract […] is guilty of a felony punishable by a fine of not more than $50,000.00 or imprisonment for not more than 5 years, or both.”

In an effort to justify Michigan’s ban, some argue that commercial surrogacy (CS) promotes harmful social norms like patriarchy and the pricing 1

of human attributes. This paper defends CS from these claims by showing that they rest on highly tenuous normative and empirical assumptions.

It first considers CS’s legality and its apparent benefits—the satisfied preferences of the contracting parties—and then turns to debunk the above criticisms. Although the paper does not provide exhaustive solutions to the legal and moral problems surrounding the enforceability and regulation of CS contracts, its argument aims to lay the philosophical and legal groundwork for CS’s legalization.

II: What is CS? CS arrangements take one of two forms: a “traditional” surrogate contributes her own egg and is implanted with a donor’s sperm cells, whereas a “gestational” surrogate is implanted with sperm and egg cells that have been fertilized in vitro. In either case, the surrogate enters into an agreement in which she commits to forfeit her parental rights for a fee so that the contracting parents can adopt the baby. CS, therefore, presents legislators and judges with two critical questions: (a) the legal question of whether such agreements are valid and (b) the social policy question of whether such agreements ought to be considered valid. While my interest lies primarily in the latter, I appeal to some key judicial decisions and legal arguments to substantiate my position.

III: The Benefits of Voluntary Exchange and the Legal Right to Procreate Like any voluntary exchange, CS’s most obvious benefit lies in the function it serves for the contracting parties—the parents who desire a biological child and the surrogate drawn to CS’s financial and/or moral benefits. For homosexuals, infertile couples, and women for whom pregnancy poses a medical risk, CS may serve as the exclusive means by which they can enrich their lives with their own biological children. Likewise, CS may be one

Throughout the paper, I refer to commercial surrogacy in the shorthand as CS.

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Commercial Surrogacy and Social Norms of the few, and perhaps the most lucrative, financial opportunities available to surrogacy candidates facing trying financial circumstances. Some poor women may even wish to engage in altruistic, i.e., pro bono, surrogacy but lack the financial stability to do so. Thus, wages not only incentivize surrogacy but also enable surrogates to act upon their altruistic motives. Taken together, the satisfied preferences of the contracting parties generate a powerful prima facie argument in favor of legalizing CS.2 Furthermore, some legal theorists make the compelling case that a ban on CS violates the contracting parents’ legal right to procreate. In Skinner v. Oklahoma (1942), for example, the court identified marriage and procreation as “basic civil liberties of man.”3 Seemingly, by enabling infertile and homosexual couples to reproduce, reproductive technology extends the scope of the procreative rights established in Skinner v. Oklahoma to include CS agreements. Thus, in the absence of compelling state interests, the law requires that judges protect CS agreements as expressions of the contracting parties’ basic civil liberties.4 IV: CS and Social Norms: Patriarchy Critics of CS, however, attempt to locate a compelling state interest in sorts of social norms engendered by the laws governing CS agreements.

One of the most creative, albeit conjectural, arguments in favor of a ban on CS appeals to the harmful patriarchal norms and attitudes promoted by the practice.

Championing this line of argument is feminist political theorist Debra Satz who believes that legalized CS promotes bigotry in three ways. First, “contract pregnancy gives others increased access to and control over women’s bodies and sexuality.”5 Second, CS reinforces the notion that women serve men as “baby machines.”6 And third, by dismissing the women’s “gestational contributions,” courts 2 3

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“reinforce an old stereotype of women as merely the incubators of men’s seed.”7 In Johnson v. Calvert (1993), for example, Judge Richard N. Parslow Jr. of the Orange County Superior court rejected the gestational surrogate’s plea for parental rights and likened her to a home rather than a mother vis-à-vis the fetus.8 Hence, Satz concludes that CS indirectly perpetuates female oppression and ought to be banned.

“[Commercial surrogacy] may be one of the few, and perhaps the most lucrative, financial opportunities available to surrogacy candidates facing trying financial circumstances.”

Before assessing the merits of Satz’s argument, we first have to unearth its central premises. For her argument to succeed, she requires the twofold empirical assumption that (a) CS engenders patriarchy and (b) that a ban on CS is the most effective means of combating patriarchy. Second, she requires the normative assumption that legislators ought to ban practices that indirectly promote social inequality. However, none of Satz’s three core premises stand up to close scrutiny.

Satz’s second empirical assumption fails to consider the potentially patriarchal messages expressed by paternalistic legislation that curtails women’s contractual and reproductive freedoms.

By denying women the right to enter into CS agreements, the law communicates the sort of condescension that lies at the foundation of patriarchy: lacking foresight and rationality, women must rely on the state to adjudicate between CS and their economic alternatives. Thus, even if CS

Richard J. Arneson, “Commodification and Commercial Surrogacy,” Philosophy & Public Affairs, Vol. 21, No. 2 (Spring, 1992): 145.

Skinner v. Oklahoma, 316 U.S. 535 (1942) quoted in John A. Robertson, “Procreative Liberty and The Control of Conception, Pregnancy, and Childbirth,” Virginia Law Review, Vol. 69, No. 3 (Spring, 1983): 414-415.

Robertson, “Procreative Liberty,” 420.

Debra Satz, Why Some Things Should Not Be for Sale: The Moral Limits of Markets. (New York, 2010): 128.

Satz, Why Some Things Should Not Be for Sale, 130.

Satz, Why Some Things Should Not Be for Sale, 131.

Johnson v. Calvert, 851 P.2d 776 (1993) quoted in Satz, Why Some Things Should Not Be for Sale, 223, fn 19.

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Joshua Halpern engenders patriarchy, Satz’s alternative may achieve a similarly undesirable result. This pessimistic conclusion effectively neutralizes the role that feminist considerations about bad social norms should play in a legislator’s assessment of CS. Seemingly, Satz’s normative assumption—that legislators ought to ban practices that indirectly promote social inequality—fares no better and is easily reduced to the absurd. Two untenable positions can easily be extrapolated from the assumption.

First, if practices that reinforce patriarchal norms warrant coercion, then the law should block women’s entry to typically gender-segregated professions like housecleaning or nursing. Second, the government should combat social inequality by censoring popular television shows, movies, and novels that play a decisive role in shaping the social norms that promote inequality. In its quest to combat patriarchy, perhaps the state should ban AMC’s hit TV series Mad Men—a show about the advertising industry in Manhattan depicting the bigotry of the 1960’s—on the grounds that it might reinforce viewers’ latent gender biases. Because, in the name of egalitarianism, Satz’s government will exercise its coercive license to censor speech and invade women’s personal-professional lives, those committed to free speech and the right to privacy must reject Satz’s normative assumption.

The difficulty with the above reductio arguments is that they wrongly commit Satz to the view that equality categorically trumps liberty. But before banning a particular inequality promoting practice, Satz might make the following calculation: (a) she could determine which liberties are violated by the ban, (b) rank the different liberties, (c) quantify the amount of inequality promoted by the practice, (d) weigh the inequality lost against the liberty lost, and lastly (e) determine whether there are less coercive means available for rectifying the inequality.

In developing a contrast between housecleaning and CS, Satz can appeal to step (c) in her calculation process: the view of women as human incubators expressed by CS promotes more inequality than

housecleaning and, therefore, warrants more coercion. Alternatively, Satz can appeal to step (e): while male entry can degender professions like housecleaning, it cannot modify the message expressed by intrinsically gendered professions like CS. The lack of a viable alternative, therefore, justifies Satz’s coercive ban on CS. Additionally, the second reductio from censored speech fails to consider that while the inequality promoted by CS justifies an encroachment on freedom of contract, the inequality promoted by media and literature does not justify an encroachment on the higher ranking constitutional right to freedom of speech. Although none of the above calculations rest upon comprehensive empirical information, they demonstrate that one cannot run a reductio against Satz’s normative assumption without referring to the relevant data and Satz’s schedule of liberties.

“Even if Satz is right that presently a nation-wide ban on CS combats patriarchy, a shift in social attitudes might render the ban subversive.”

Still, the complexity involved with running a reductio against Satz’s normative assumption points to the “knowledge problem” underlying her first empirical assumption: that CS, in fact, perpetuates patriarchy.9 In order to assess the degree to which CS promotes patriarchy, the legislator who employs Satz’s calculation method must gather information about citizens’ attitudes toward gender. But the fact that information of this sort is neither fixed nor uniform undermines Satz’s legislative efforts.10 Even if Satz is right that presently a nation-wide ban on CS combats patriarchy, a shift in social attitudes might render the ban subversive.

In short, while Satz’s normative assumption— legislators ought to ban practices that indirectly

Friedrich Hayek, “The Use of Knowledge in Society,” American Economic Review, Vol. 35, No. 4 (Fall, 1945): 519 (“[T]he knowledge of the circumstances of which we must make use never exists in concentrated or integrated form, but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess.”)

10 Friedrich Hayek, The Constitution of Liberty (Chicago, 2011): 87.

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Commercial Surrogacy and Social Norms promote social inequality—may prove defensible, her feminist argument fails to show that CS actually promotes patriarchy. Until feminist theorists can support Satz’s claim empirically, it lacks tenability and fails to topple the legislator’s legal and moral presumption in favor of CS agreements.

V: CS and Social Norms Continued: The Pricing of Human Attributes While feminist theorists like Satz attempt to curb the scope of the free-market by appealing to a particular concern for female oppression, other theorists worry that commoditizing women’s reproductive labor will engender more universal forms of degradation. Law professors Alexander Capron and Margaret Jane Radin, for example, go so far as to claim that were we to legalize CS, “all personal attributes of ourselves […] would be given a dollar value by the market.”11 In other words, because CS rewards surrogates for certain naturally endowed qualities, it empowers the market to quantify the worth of particular human attributes.

Like Satz’s argument, Capron and Radin’s argument requires both an empirical prediction that surrogacy will, in fact, yield the pricing of human attributes and an implied normative judgment that such harmful pricing warrants a ban on CS. And like Satz’s premises, neither of their presumptions stands up to close sustain scrutiny.

Capron and Radin, along with their critics,12 implicitly accept that explicit pricing poses a normative problem. But why make such an assumption? Perhaps, Capron and Radin worry that explicit pricing causes psychological harm by shattering the self-esteem of those human beings with low market value. But social norms and expectations perform this function perfectly without the help of explicit pricing. Inevitably, society’s aesthetic, moral, and other evaluative judgments permeate its citizens’ psychologies and offer criteria for self-evaluation. The government might even 11

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regulate “attribute pricing” in the surrogacy market in order to promote its citizenry’s physical and psychological health.13 In short, if communal life inevitably yields implicit criteria by which citizen’s are ranked, then explicit pricing simply introduces transparency and a responsible means of regulating social values and expectations.

Still, Capron and Radin might insist that this response entirely misses their main point: the problem with explicit pricing is not simply that it makes people with low market value feel bad, but that it tarnishes our humanity by reminding us that, regardless of how deeply and profoundly we value our skills and attributes, any and all of our natural endowments can be quantified in terms of dollars and cents.

“Because CS rewards surrogates for certain naturally endowed qualities, it empowers the market to quantify the worth of particular human attributes.”

This claim, however, falls victim to an obvious counterexample: a professional ballerina’s dancing ability or a standup comedian’s sense of humor is probably invaluable to his or her self-conceptions.

Yet, none would propose to ban these professions simply because the market monetizes a dancer’s or a comedian’s skill level. In order for the argument from explicit pricing to succeed, its proponents need to draw a morally relevant distinction between the way in which the CS market might price surrogates’ characteristics and the way in which the free-market already prices the attributes that enable us to do our jobs well. Unless Capron and Radin can demonstrate that such a distinction exists, their moral condemnation of explicit pricing rests on tenuous grounds.

A. M. Capron and M. J. Radin, “Choosing Family Law over Contract Law as a Paradigm for Surrogate Motherhood,” Law, Medicine, and Health Care, Vol. 16, No. 1-2 (1988): 36.

Arneson, “Commodification,” 142.

Alternatively, free-market libertarians might launch a parallel argument but replace government intervention with spontaneous free-market order: by allowing for the market to explicitly price human attributes, the state incentivizes the most socially beneficial attributes. For, the best socio-economic outcomes lie in allowing the marketplace, even of human attributes, to take its course.

Williams College Law Journal

Joshua Halpern But even if critics of CS succeed in showing that explicit pricing is harmful, they cannot demonstrate the required empirical premise: that CS will inevitably result in explicit pricing. Because explicit pricing is not intrinsic to CS, it might be easily circumvented by regulations governing the CS market. For example, a state might legalize the surrogacy market but simply ban explicit pricing.14 Hence, Capron and Radin’s argument lacks the thrust necessary to challenge the morality of CS agreements.

VI: Conclusion In short, a legalized CS market both respects citizens’ procreative rights and satisfies their deep desire to reproduce. Additionally, the above objections to CS from patriarchy and explicit pricing rest upon highly questionable normative and empirical assumptions and, therefore, fail to justify a ban on CS. Hence, states have good reason to legalize the CS market.

Certainly, critics of CS will argue that this conclusion has been drawn prematurely, for the above argument fails to consider the most obvious and powerful objection to CS: in certain cases, it invariably harms one of the two contracting parties.

In cases like Johnson v. Calvert, for example, where the surrogate forges a maternal bond with the fetus, the court’s enforcement of specific performance degrades the surrogate and her relationship to the baby. Yet, were the court to allow the surrogate to opt-out of the agreement and maintain custody, it would then degrade the contracting parents in precisely the same way.15 Thus, in the event that both the surrogate and the parents forge a deep emotional bond with the fetus, CS agreements inevitably result in some profound psychological harm.

This objection, however, fails to consider that legislators cannot deliberate in a moral vacuum,

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but must reason counterfactually and weigh the consequences of every available course of legal action against one another. The morally attuned legislator must ask him or herself: “If CS were made illegal, what consequences would ensue?” Present research about the phenomenon of surrogacy outsourcing suggests that it is unlikely that a legal ban on CS will prevent people from satisfying their fundamental, evolutionary desire to have their own biological children. Lacking recourse to a legally regulated market, prospective parents will enter into contracts that might lack the governmental regulation critical for minimizing harm.16 Ultimately, even if surrogacy agreements harm one of the two parties to the contract, the counterfactual, coupled with the contracting parties’ legal rights, demonstrates that a regulated CS market proves to be the best available course of action.

It is worth noting that Satz’s argument from patriarchy is a particularly powerful tool for curbing the free-market’s scope precisely because it circumvents the above counterfactual. Although regulations might protect particular surrogates and contracting parents, regulatory details are far less likely to fundamentally alter the law’s expressive content. And if Satz is right that legalizing CS will certainly reinforce bigotry, then nothing short of a ban on CS can safeguard social equality.

But Satz’s claim is simply too far-reaching to provide a sound legal and philosophical foundation from which to criticize particular social practices.

Murky and speculative judgments about the causal connection between a particular social practice and the social inequality that it might engender will not shake the legislator’s commitment to citizens’ well-founded moral and legal rights. The wide reach of Satz’s argument makes it seem so powerful, yet ultimately condemns it to legal and philosophical obsolescence.

Arneson, “Commodification,” 142.

Anton van Niekerk and Liezl van Zyl, “The Ethics of Surrogacy: Women’s Reproductive Labour,” Journal of Medical Ethics, Vol. 21, No. 6 (Winter, 1995): 348 (“The contracting parents “were ‘pregnant’ in the social and psychological sense of ‘expecting a child’[…]. To deny their desire to raise the child would thus be to deny the legitimacy of their perspective on ‘their’ pregnancy, to alienate them from their evolving emotions concerning the child.”)

Satz, Why Some Things Should Not Be for Sale, 132 (“[B]anning [CS] drive[s] such contracts underground, leaving the parties more vulnerable to one another.”)

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On Banning Pornography

By Kalina Yingnan Deng Wellesley College

Abstract Pornography is speech. To that end, should all pornography be protected as free speech? Ronald Dworkin gives one liberal perspective for why pornography should be protected. Specifically, Dworkin asserts a rights-based argument (or argument of principle) and a goal-based argument (or argument of policy) against banning pornography through his analysis of Sweatt v.

Painter and DeFunis v. Odegaard. Using Dworkin’s own views, Rae Langton contends that rather than protecting pornography, his liberal argument should support the banning of pornography for the sake of his principle of equality. However, Langton is not committed to the view that all pornography should be banned. She simply shows that Dworkin has fouled his own grounding liberal principles.

This paper presents Dworkin and Langton in dialogue with each other. Though Langton successfully shows that by Dworkin’s own lights, pornography should be banned, this paper shows how, in one sense, Langton and Dworkin are talking past one another. Whereas Dworkin argues that all P pornography should not be banned, Langton asserts that P1 pornography that is sexually degrading to women and perpetuates gender inequality must be banned in a liberal society that is committed to equality.

On Banning Pornography Pornography is speech. To that end, should all pornography be protected as free speech? Legal scholar Ronald Dworkin gives one liberal perspective for why pornography should be protected. Using Dworkin’s own views, philosopher Rae Langton 1

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contends that rather than protecting pornography, his liberal argument should support the banning of pornography for the sake of his principle of equality.

However, Langton is not committed to the view that all pornography should be banned. She simply shows that Dworkin has fouled his own grounding liberal principles.

This paper presents Dworkin and Langton in dialogue with another. Though Langton successfully shows that by Dworkin’s own lights, pornography should be banned, this paper shows how, in one sense, Langton and Dworkin are talking past one another. This paper ultimately argues that not all but some pornography should be banned.

Dworkin v. Langton Dworkin’s principle of equality is such that (1) the state treats all of its citizens equally and (2) the state treats all of its citizens’ ideas of the good life with equal respect.1 To maintain equality, the law should not dictate public morality and thus, should allow every citizen to have ‘moral independence.’2 To that end, the moral attitudes of the majority should not determine what laws are enacted. To allow for all citizens’ moral independence, Dworkin claims that ‘external preferences’ such as the moral attitudes of the majority should not dictate policy.

With the case of pornography, while a utilitarian could argue that satisfying the majority’s preference against pornography with a pornography ban results in greater net social welfare, Dworkin maintains that such a preference against pornography is ‘external.’3 Dworkin distinguishes between two broad kinds of external preferences: (1) ones that rank other citizens as inferior so that such citizens should receive fewer and lesser goods and (2) ones that view other citizens’ conception of the good life as inferior.4 By these two distinctions,

Rae Langton, “Whose Right? Ronald Dworkin, Women, and Pornographers,” Philosophy & Public Affairs, 19.4 (1990): 330 and 358.

Ronald Dworkin, “Is There a Right to Pornography?” Oxford Journal of Legal Studies, 1.2 (1981): 199.

Dworkin, “Is There a Right to Pornography?,” 205.

Langton, “Whose Right?,” 330.

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Kalina Yingnan Deng moralists either believe that pornographers and pornography consumers are lesser than them or that pornographers and pornography consumers’ view of a life with pornography is inferior to theirs. Either way, moralists have an external preference against pornography that violates the principle of equality and are not justified to establish a pornography ban.

“The objective feature in a permissive pornography policy is grounded in sexism and women have a right against the policy.”

Using this rights-based argument or argument of principle, Dworkin explains why the ruling in Sweatt v. Painter fulfills the principle of equality. In the Sweatt case, an African American man Heman Sweatt was denied admission to the University of Texas Law School on the basis of its ‘whites only’ policy. In this case, the discriminatory practices and policies were created and reinforced by a white administration who wanted to maintain the racial homogeneity of its institution. These external preferences are of Dworkin’s first kind because they rank African Americans as inherently inferior and not deserving of the same goods (in this case, quality law school education) as do whites, violating the principle of equal concern and respect. The crucial feature in the discriminatory policy is not that segregation is offensive to African Americans, but that the policy has an ‘objective feature’ rooted in racism and therefore, external preferences.5 Using Dworkin’s views on the Sweatt case, Langton draws the analogy of a permissive pornography policy to the law school’s discriminatory policy and provides a rights-based argument against the permissive pornography policy. In both the Sweatt case and the pornography case, there is a utilitarian argument for segregation

and for permitting pornography. Here, the producers and consumers of pornography, rather than the moralists in Dworkin’s argument, have their preferences fulfilled. In both cases, African Americans and women are prima facie disadvantaged by the ‘whites only’ and pornography permitting policies, respectively. Moreover, just as the objective feature in the policy was rooted in racism and Sweatt had a right against the ‘whites only’ policy, the objective feature in a permissive pornography policy is grounded in sexism, and women have a right against the policy.6 Dworkin could reply that whereas the law school’s policy sought to maintain public racial segregation, pornography is a private matter. Policy should not inhibit how people enjoy their private lives and liberties.7 Pornography is only consumed privately and voluntarily, and the voluntary, private consumption of pornography has not been shown to cause harm to others. As legislation currently stands, pornography is not publicly shown in order to protect and respect those who are underage or are otherwise non-consenting to viewing pornography.

However, that does not mean private consumption should be banned. If it were the case that the private consumption of pornography exhibits external harm such as absenteeism from work, then there may be legitimate concern for banning private consumption.8 But because pornography is privately consumed for sexual satisfaction, people should be able to satisfy their personal needs.

However, as Langton demonstrates with the analogy to the Sweatt case, pornographers have a personal preference that is, as Dworkin would say, “parasitic upon external preferences” of the first kind–of treating women as a class as inferior to men.9 To reiterate, it may very well be that men produce and consume “pornography of this kind because [they] have macho social and political convictions, or because [they] have contempt for women as a group.”10 Just as Dworkin did not advance a public/

Ibid, 320.

Langton, “Whose Right?,” 340-346.

7 Dworkin, “Is There a Right to Pornography?,”194.

8 Ibid, 199.

9 Langton, “Whose Right?,” 345.

10 Ibid, 345.

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On Banning Pornography private argument for permitting pornography but a rights-based argument for the moral independence of pornographers, Langton dismisses the private/ public objection on grounds that Dworkin himself argues from an argument of principle.11

“And if equality is the goal of policies, achieving gender equality entails not protecting pornography as free speech. ” Langton further contends that by Dworkin’s explanation of DeFunis v. Odegaard, he should support a goal-based argument or argument of policy against pornography. In the DeFunis case, a white applicant Marco DeFunis was denied admission to the University of Washington Law School due to his low grades and test scores though the school’s affirmative action policy admitted minority applicants with similar grades and scores. Regarding DeFunis, Dworkin used a goal-based argument, showing that though DeFunis was disadvantaged, the school’s affirmative action policy ideally leads to an overall more equal society by producing more African American lawyers. And since there are no countervailing rights-based arguments against the policy and the practice is not grounded in any external preferences, DeFunis had no rights against the affirmative action policy.12 Similarly, Langton claims that our society may be more equal sans pornography. Prohibition of pornography is not a policy rooted in external preferences though it does disadvantage pornographers in the same fashion that the law school’s affirmative action policy disadvantaged

DeFunis. But given that there are no countervailing rights-based arguments for permitting pornography (aside from considering the rights of pornographers, which she has already argued to be grounded in external preferences of misogyny), pornographers have no rights against a pornography ban just as DeFunis had no rights against the law school’s affirmative action.13 Thus, Langton demonstrates that by Dworkin’s own views, pornographers and consumers of pornography have sexist, external preferences in producing and consuming pornography. Therefore, via the rights-based approach, the rights of women as a class are violated. And if equality is the goal of policies, achieving gender equality entails not protecting pornography as free speech. Nonetheless, as Langton stresses, this does not show that pornography should be banned. However, this does show that Dworkin’s views on civil liberties are inconsistent and weak and that despite his assertions, there may be fundamental friction between liberty and equality.14 A New Start In another light, to say that Langton fully proves that Dworkin’s own view on pornography is inconsistent with his other liberal views on civil liberties is a bit of a stretch. To an extent, Dworkin and Langton are talking past one another.15 The kind of pornography that Dworkin is talking about is all pornography. Let us call this P pornography, meaning every kind of pornography that exists, excluding any kind that is unprotected under other sanctions (i.e. child pornography). On the other hand, Langton is talking about sexually violent and demeaning pornography, as defined by Catherine MacKinnon and Andrea Dworkin in the

Ibid, 348.

Ibid, 350.

13 Langton, “Whose Right?,” 350-53.

14 Ibid, 358-60.

15 I owe this P, P1, and P2 distinction largely to a helpful discussion of this matter with Jerome Hodges, a PhD candidate in Philosophy at MIT. 16 “We define pornography as the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised or hurt in a context which makes these conditions sexual.” In Langton, “Whose Right?,” 332.

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Kalina Yingnan Deng Indianapolis ordinance.16 This P1 pornography, as this paper will term MacKinnon-A. Dworkin’s kind, does not include erotica or sexually stimulating pornography. To that end, P1 is a subset of P.

“Langston claims that P1 pornography ranks women as inferior while endorsingand ligitimating sexually degrading acts, which effectively deprives women of their rights and can silence their speech.”

The inconsistency is that the justifications that Dworkin gives for why the liberal state should protect pornography as free speech largely applies to what this paper considers as P2 pornography, meaning P minus P1. In other words, he claims that people should have sexual liberty and the freedom to privately consume sexually arousing P2 pornography. On that point, MacKinnon and would agree with him. But problematically, his overall claim is that all P pornography should be protected, which would include protections for MacKinnon’s P1 pornography. Given that Langton argues from the standpoint of P1 pornography and that Dworkin argues from the standpoint of P2 pornography, it may just be that Dworkin and Langton are talking past each other. To that end, sexually arousing P2 pornography does align with Dworkin’s liberal view that people should have sexual liberties, but women-subordinating P1 pornography does not.

Therefore, in the feminist liberal view, not all P pornography should be banned. P2 pornography

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is fine. However, P1 pornography is not fine and should be banned.

This raises a further question: Does P1 pornography constitute the subordination of women? This question has high stakes. If P1 pornography constitutes the subordination of women and reflects the inherent gender inequality between men and women, then the good liberal state should ban P1 pornography. If P1 pornography does not constitute the subordination of women, then all P pornography, as Dworkin claims, should be protected under the First Amendment.

To the end that pornography is speech, this paper provides a very condensed reply to this question: in “Speech Acts and Unspeakable Acts,” Langton uses speech act theory to show how P1 pornography could have the illocutionary force of subordinating women c that ‘saying makes it so.’17 One example of an illocutionary act that Langton gives is how the utterance “I do,” under the right circumstances, constitutes marrying. Pornographers may have ‘authority’ in the relevant sense to perform this illocutionary act because most pornographers are men and have the proverbial upper hand in our patriarchal society.18 In short, Langton claims that P1 pornography ranks women as inferior while endorsing and legitimating sexually degrading acts, which effectively deprives women of their rights and can silence their speech (i.e. refusal of sex acts).19 Dworkin would counter that there is no substantive empirical evidence to back up the claim that P pornography constitutes the subordination of women. Dworkin is also unconvinced that P pornography causes more violent general and/or sexual crimes against women.20 In fact, he thinks this ‘frightening principle’ easily becomes a slippery slope by which a commitment to equality turns

Rae Langton, “Speech Acts and Unspeakable Acts,” in The Problem of Pornography, ed. Susan Dwyer (Belmont, CA: Wadsworth, 1995), 206.

Langton is not committed to the view that pornographers (speakers of pornography) have this ability to make saying so the case because of the troubling question of authority. Philosophers elsewhere have hotly debated over what kind of authority is needed (perhaps, not the Austinian kind of official authority) and whether pornography has the illocutionary force to subordinate women. As I have already stated, this is a very truncated version of Langton’s account. I provide this reply to show her further view that pornography can subordinate women in the ways that MacKinnon describes.

Langton, “Speech Acts and Unspeakable Acts,” 214-216.

Dworkin, “Is There a Right to Pornography?,” 195.

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On Banning Pornography into censorship of anything emotionally charged or graphically violent. Shakespeare’s Hamlet and The Invisible War, a documentary about sexual assault in the U.S. military, would have to be outlawed.21 Dworkin argues that Hamlet and The Invisible War are contributions to the cultural enrichment of our citizenry, and it would be a shame to ban them.

But Langton would reply that P1 pornography is not merely ‘offensive’ to women but perpetuates gender inequality and that by Dworkin’s own treatment of Sweatt and DeFunis, such empirical evidence of sexism is not necessary. Regarding Sweatt, Brown v. Board would later state that the “separate-but-equal” doctrine is “inherently unequal.”22 A similar argument could be made that women’s position in society is inherently unequal to that of men’s. Like racism, sexism does not need to be substantiated by empirical evidence.23 Women’s rights are also civil rights, and the onus is on Dworkin to show that the case of pornography is somehow dissimilar in this respect to other civil rights cases.

Responding to the stronger feminist argument that pornography can silence women, Dworkin claims that though freedom of speech should allow everyone to voice their ideas and thoughts, it does not guarantee that everyone’s voices will be heard equally. In other words, his principle of equality is not that we have a right to equal treatment but that we have a right to equal concern and respect.24 However, Langton would claim that Dworkin misses the point. It is not just that pornography diminishes women’s voices. It is also that women’s voices are misconstrued by men (non-consent to sexual acts is taken as consent) or are not heard at all.25 By this manner, women’s voices are systematically discounted in a patriarchal society and P1 pornography fosters that silencing.

Conclusion As Langton points out, there is inherent friction between liberty and equality in the United States.

Banning P1 pornography will not necessarily make society any less patriarchal nor will it make those pornographers and consumers of pornography any less misogynistic. Pornographers and consumers of pornography can still go through loopholes and produce and consume P1 pornography by other means.

However, at the very least, a ban on misogynistic, sexually violent P1 pornography shows the nation’s commitment to equality. It shows that the nation is formally opposed to external preferences of ranking women as inferior. In the same way, Sweatt did not stop racism, but it did demonstrate our commitment to equality. Langton shows that by Dworkin’s own principle of equality, we should strive to achieve gender equality and that by speech act theory, some pornography can subordinate women. If Langton is correct, a ban on sexually violent pornography is necessary to uphold our commitment to equality.

Dworkin, “Is There a Right to Pornography?,” 195.

347 U.S. 483 (1954).

23 Langton, “Whose Right?,” 354.16 347 U.S. 483 (1954).

24 Ibid, 325.

25 Langton, “Speech Acts and Unspeakable Acts,” 216.

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The Legal Implications of Behavior Genetics Research

By Zachary L. Stewart Williams College

Abstract Behavioral genetics research has attempted to link behavior and personality to genes since at least 1965. This link, and the idea that human behavior may be wholly or in part predetermined, suggests that we may not have free will. One underpinning of many legal systems is the assumption that free will exists: a criminal makes the choice to commit a crime and is punished for making that choice.

If behavior is predetermined, though, the idea of punishment appears immoral – we cannot punish people for things they have no control over.

Lawyers occasionally take advantage of this idea and present behavioral genetics research in court in an effort to provide mitigating factors and reduce the punishment of their clients. I have reviewed three genetic traits that have been used in court: XYY syndrome, the MAOA gene, and Huntington’s disease. Generally, these types of defenses are not successful, and it appears unlikely that behavioral genetics will have a significant impact on the legal system in the near future. ~~~ The general population, having been raised on a diet of unrealistic television shows of detectives, criminals, and lawyers, and high profile, sensationalistic crimes and trials, may think of solving crimes using DNA when asked about genetics’ impact on the legal system. But genetics research has the potential to have a more important and far-reaching impact, particularly as further research is done. Research on the roles genes play in the development of behavior, particularly criminal and antisocial behavior, threatens to challenge some of the fundamental theoretical and philosophical

underpinnings of the United States’ legal system. Yet, despite the appearance of a serious challenge to the legal system, the practical aspects of using behavioral genetics in court, the difficulties of determining the genetic basis of complex behavioral traits, and the paucity of successful genetics-based defenses show that such a challenge appears more threatening than it really is. Nonetheless, genetics defenses may become important in the future and the issues behavioral genetics research raises about crime and punishment are important to discuss and debate.

“Research on the roles genes play in the development of behavior... threathens to challenge some of the fundamental theoretical and philosophical underpinnings of the United States’ legal system.”

The broadest and most approachable idea that is threatened by behavioral genetics research is that of free will, a tenet of legal systems – whether formally acknowledged or not – for as long as modern legal systems have existed. The idea of free will is that every person has control over his or her actions. This is the assumption that underlies criminal punishment – the criminal chooses to commit the crime and is punished for making that choice. In the United States, at least, a well-known exception to this assumption is the insanity plea, which occurs when the defense attempts to prove that the criminal was insane at the time of the crime and so did not realize that the crime was wrong or lacked control over him or herself. The insanity defense is notoriously difficult to successfully deploy, possibly because of the skepticism of jurors, who

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The Implications of Behavioral Genetics Research view the evidence presented by psychiatrists as ‘soft’ science that has an indefinite, imprecise answer.1 It is estimated that one percent of felony cases in the United States seek an insanity verdict, and that one quarter of those cases receive one,2 meaning that 0.25% of felony cases end with an insanity acquittal. Behavioral genetics research threatens the assumption of free will by suggesting that some people are genetically predisposed to act antisocially and allowing attorneys to advance the defense that their clients committed crimes but could not be reasonably expected to control themselves because of the physiological impact of their genomes.

“Behavioral genetics research threatens the assumption of free will by suggesting that some people are predisposed to act antisocially...”

This challenge to free will, the idea that genetic influences may not allow people to act of their own volition, is called determinism, and comes in two flavors: hard determinism and soft determinism.

Jonathan Glover, an English ethicist, nicely frames hard determinism as resembling Newtonian physics in that people can only do one thing, which is prescribed by their particular mix of environment and genes.3 If scientists knew everything about someone, then hard determinism says that they would be able to predict exactly what that person will do in the future given a particular situation.

This philosophy does not accept the existence of free will, and under hard determinism a criminal is guilty of the act but not psychologically guilty

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because he or she could not have done anything but commit the crime. According to hard determinists, the criminal who hits someone in the head is no more morally responsible that an apple is for falling from a tree, plummeting towards the Earth, and hitting Isaac Newton on the head. What would the world look like if hard determinism were true, one must wonder? It would look exactly as it does now – this implication of hard determinism is highly ironic, and it shows that it does not matter if hard determinism is true, but it does matter if we believe it is. Soft determinists, on the other hand, argue that our actions may be strongly affected by genetics, but that we still retain some control and, given sufficient self discipline, can make decisions.

In this manner, soft determinism retains an aspect of morality so the criminal can still be condemned for not resisting psychological pressures and the urge to commit a crime. Soft determinism’s retention of morality makes it a practical and hopeful stance. Determinism is among the issues raised by behavioral genetics research, and though it does not appear that the determinist debate will be resolved soon, if it is eventually reasoned that hard determinism is accurate there will be serious implications for the legal system.

In court, the guilt of the defendant can be separated into two distinct aspects: actus reus, or guilty act, and mens rea, or guilty mind.4 Genetics, particularly DNA ‘fingerprinting,’ is already used to establish or disprove the former, but the impact of genetics on the latter – an ethically complex issue – is what this essay is concerned with. Occasionally genetic evidence is used in the first part of the trial in an effort to obtain an insanity verdict, but this is uncommon and behavioral genetics research is almost always introduced in the penalty phase of the trial, after the criminal has been found guilty

M. Crossley, “The ‘Genetics Defense’: Hurdles and Pressures,” in Genetics and Criminality: The Potential Misuse of Scientific Information in Court, ed. Jeffrey R. Botkin, William M. McMahon, and Leslie Pickering Francis (Washington D.C.: American Psychological Association, 1999).

Katie Conner, “Factors in a Successful Use of the Insanity Defense,” Internet Journal of Criminology, 2006.

Jonathan Glover, “The Implications for Responsibility of Possible Genetic Factors in the Explanation of Violence,” in Genetics of Criminal and Antisocial Behavior, ed. Gregory R. Bock and Jamie A. Goode (New York: John Wiley and Sons, 1995).

Lori B. Andrews, “Predicting and Punishing Antisocial Acts: How the Criminal Justice System Might Use Behavioral Genetics,” in Behavioral Genetics: The Clash of Culture and Biology, ed. Ronald A. Carson and Mark A. Rothstein (Baltimore, Maryland: The Johns Hopkins University Press, 1999).

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Zachary L. Stewart of the crime. In the penalty phase, the evidence is used by the defense in an attempt to show the judge or jury that there are mitigating factors at work – namely, that their client was either the victim of an overwhelming psychological urge to commit the crime or that their client did not know that the action was wrong at the time.5 The object of such a defense is to show the absence of a mens rea, which can then be transformed into either an acquittal or a lesser sentence, such as life in prison rather than death, a shorter term in prison, or a move to a less secure prison or even a psychiatric institution. When behavioral genetics evidence is used, the object is a lesser sentence, not an acquittal.6

“What are we to do with criminals who commit violent crimes but who do not deserve to go to jail because they could not resist the impulse to commit the crime?”

The moral guilt of criminals rather than the physical guilt of criminals is the field in which behavioral genetics research is usually used, in an odd marriage of science and philosophy. If judges and jurors are convinced by such defenses, then an ethical dilemma arises: what are we to do with criminals who commit violent crimes but who do not deserve to go to jail because they could not resist the impulse to commit the crime? This is where theoretical matters meet practical ones, and where we must examine why society punishes criminals.

One reason is to set an example and deter other potential criminals; another is to offset the crime, in a

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retributive ‘eye for an eye’ approach; and a third is to prevent the criminal from committing further crimes via incapacitation.7 If we punish people to deter others, then we ought to let the genetically impaired criminal go – incarcerating someone because he or she is blind, for instance, will not dissuade other people from going blind. But this is in essence a shifting of the punishment from the criminal to society, because the criminal – who cannot control him or herself – may commit additional crimes, and may even not struggle against such impulses anymore because of the lack of consequences for his or her actions. If we adopt the second approach – retribution – then we are freeing society from the burden of living with a criminal who may commit future crimes and fulfilling our need for revenge, but we also betray our sense of morality and infringe on the rights of the criminal who could not control him or herself. The third reason, incapacitation, would lead to the incarceration of the criminal. It lifts the burden of living with people who cannot control their criminal tendencies from society, but still leaves us on the immoral end of the spectrum. But if we follow moral standards and let the criminals live freely then we are – again – punishing society.

There is a diametric opposition here between the rights of people who cannot control themselves and the rights of others to live in a safe and peaceful society. Eric Parens, a researcher who investigates the impact of technological and scientific innovations on society, frames the quandary well: “How can we simultaneously accept the respect in which our behaviors are not freely chosen, and also insist that, as members of communities, we must act as if they were?”8 This is, as Parens dryly notes, a difficult question.

A balance of idealism and pragmatism in determining punishments is necessary. Balanced

C. M. Berryessa and M. K. Cho, “Ethical, Legal, Social, and Policy Implications of Behavioral Genetics,” Annual Review of Genomics and Human Genetics, 14 (2013): 1.1-1.20 (Pre-print version posted online on 28 February 2013).

FD. A. Summer, “The Use of Human Genome Research in Criminal Defense and Mitigation of Punishment,” in Genetics and Criminality: The Potential Misuse of Scientific Information in Court, ed. Jeffrey R. Botkin, William M. McMahon, and Leslie Pickering Francis (Washington D.C.: American Psychological Association, 1999).

R. Dresser, “Criminal Responsibility and the ‘Genetics Defense,’” in Genetics and Criminality: The Potential Misuse of Scientific Information in Court, ed. Jeffrey R. Botkin, William M. McMahon, and Leslie Pickering Francis (Washington D.C.: American Psychological Association, 1999).

Erik Parens, “Taking Behavioral Genetics Seriously,” Hastings Center Report 26, no. 4 (1996): 13-18.

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The Implications of Behavioral Genetics Research solutions might include incarceration in institutions like mental hospitals or requirements that the criminal undergo therapy or take a drug to counteract the effects of his or her genes. It is vital that the public discuss the redefinition of consequences for criminals in light of behavioral genetics research and debate the proper balance of morally appropriate consequences and the public good.

“It is all too easy to imagine jurors being bamboozled by findings that they can barely understand, let alone critically examine.”

Some of the earliest genetics-based defenses involved the XYY chromosome syndrome, in which a male has a duplicate Y chromosome. This was observed in 1965 to be associated with lower levels of intelligence and greater height, and it was implicitly suggested that aggressive behavior was also associated with the syndrome.9 The data were gathered from prisoners, and, partly because of this, the XYY studies were criticized for having poor methodology and have now been discredited.10 Nonetheless, lawyers have used, or tried to use, the syndrome in court at least five times in the United States, beginning in 1969, but never successfully.11 In some cases, the defense was not allowed to present the evidence to the jury because there was insufficient proof that the XYY syndrome either caused “a physiological capacity or impulsion”12 – meaning that the defendant had not proved that he had no free will – or because there was insufficient proof that the defendant was incapable of understanding the concepts of right and wrong. In short, attorneys

were not able to prove the absence of a mens rea. In other cases, the genetic evidence was found to not meet standards for scientific evidence. But in the case of Regina v. Hannell, a murder trial in Australia, the XYY syndrome of the murderer was introduced and the murderer was found to be insane, though it is unclear how much of an impact the XYY syndrome had on the verdict.13 Additionally, in a French case, a man who strangled a prostitute was given a reduced sentence based on his XYY syndrome.14 These results bring to light the court’s important role in determining what evidence is scientific enough to use. The French case in particular is disturbing given that the link between XYY syndrome and aggression was subsequently discredited, but the trial cannot be re-held, and the guilty man is not being punished as he would have been otherwise. It is clearly vital that courts exercise lively skepticism with regard to defenses based on behavioral genetics, which is at best a murky field.

In large part judges – whose job it is to determine the admissibility of evidence – seem to be filling this role well, as shown by the ruled inadmissibility of XXY syndrome in four of the five United States cases. This skepticism continues today – a survey of judges found that only seventeen of ninety-two state judges and two out of thirteen federal judges would “compel tests for [a genetic] condition leading to bouts of rage.”15 Such weeding-out appears to be even more necessary now because of the increasing complexity of the studies performed, which could make genetics-based defenses incomprehensible to jurors, who are usually not trained in genetics or science. The public may be well disposed to accept less-than-certain behavioral genetics findings given the abundance of exaggerated news articles about the finding of a gene that causes this or that trait, and the

Patricia A. Jacobs, Muriel Brunton, Marie M. Melville, R. P. Brittain, and W. F. McClemont, “Aggressive Behavior, Mental Subnormality and the XYY Male,” Nature 208 (1965): 1351-1352.

10 Deborah W. Denno, “Legal Implications of Genetics and Crime Research,” in Genetics of Criminal and Antisocial Behavior, ed.

Gregory R. Bock and Jamie A. Goode (New York: John Wiley and Sons, 1995); Andrews, “Predicting and Punishing”; Crossley, “The ‘Genetics Defense’.”

11 Denno, “Legal Implications.”

12 Dresser, “Criminal Responsibility.”

13 Denno, “Legal Implications.”

14 Ibid.

15 Diane E. Hofmann and Karen H. Rothenberg, “When Should Judges Admit or Compel Genetic Tests?” Science 310 (2005): 241-242.

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Zachary L. Stewart perception that genetics is a ‘hard’ science that has definite answers, unlike psychology, for instance.16 It is all too easy to imagine jurors being bamboozled by findings that they can barely understand, let alone critically examine. Judges – who are often not scientifically trained – may also have these weaknesses, and the job ultimately falls back onto the scientific community. Scientists can help solve this problem by publishing criticism of others’ work, working to provide the legal community with understandable and accurate information, and considering behavioral genetics research in context.

Wensley and King, two bioethicists, advocate that behavioral genetics studies be “reported [not] in isolation, but presented alongside other environmental, cultural, and socio-economic influences that may also contribute to the studied behavior.”17 The use of XYY syndrome in court shows that judicial defenses against misreported and misinterpreted information are vital, particularly given the increasing complexity of genetics studies.

Perhaps the most well-known examples of behavioral genetics in the legal system involved the monoamine oxidase type A (MAOA) gene, which was first detected as being a possible cause of antisocial behavior in 1993 by a team led by H. G. Brunner.18 Some males in a single Dutch family exhibited a constellation of connected characteristics, including mild mental retardation and aggressive behavior, but the females and other males in the family were normal, suggesting a genetic trait carried on the X chromosome. The aggressive behaviors included attempted murder and arson, as well as sexual abuse and attempted rape of females

of the family. Affected males were found to have a defect in the MAOA gene, and the media quickly reported that the aggression gene had been found, despite protestations from Brunner himself that this was untrue.19 The study examined only the afflicted Dutch family, and neither had controls, “nor was an epidemiological study done to determine whether people with that genetic mutation in the general population have aggressive tendencies.”20 Nonetheless, defense attorneys rushed to have their violent clients tested, a testament to the fact that attorneys are obligated to get their clients off in any way possible.21

“The aggressive behaviors included attempted murder and arson, as well as sexual abuse and attempted rape of females of the family.”

The most prominent case involving the MAOA gene was that of Stephan A. Mobley, who murdered the manager of a Georgia Domino’s Pizza restaurant, a man who was – as Mobley later said – pleading for his life.22 Mobley had a history of serious crime, had been diagnosed with antisocial personality disorder, and came from a family with a long history of very aggressive and violent males and females.23 Mobley’s attorney requested in 1994 that Mobley be tested for MAOA deficiency, as well as other neurological disorders. The judge denied this request on the grounds that Mobley did not exhibit

Crossley, “The ‘Genetics Defense’”; Berryessa and Cho, “Implications.”

Dana Wensley and M. King, “Responsibility for the Dissemination and Interpretation of Genetic Research: Lessons for the ‘Warrior Gene’ Controversy,” Journal of Medical Ethics 34, no. 6 (2008): 507-509.

18 Han G. Brunner, M. R. Nelen, P. van Zandvoort, N. G. G. M. Abeling, A. H. Gennip, E. C. Wolters, M. A. Kuiper, H. H. Ropers, and B. A. van Oost, “X-Linked Borderline Mental Retardation with Prominent Behavioral Disturbance: Phenotype, Genetic Localization, and Evidence for Disturbed Monoamine Metabolism,” American Journal of Human Genetics, 52 (1993): 1032-1039.

19 V. Morell, “Evidence Found for a Possible ‘Aggression Gene’,” Science 260 (1993): 1722-1723; Gregory Carey and Irving I. Gottesman, “Genes and Antisocial Behavior: Perceived versus Real Threats to Jurisprudence,” Journal of Law, Medicine, and Ethics Summer 2006: 341-352.

20 Andrews, “Predicting and Punishing,” 116.

21 Carey and Gottesman, “Genes and Antisocial Behavior.”

22 Summer, “Use of Human Genetics Research.”

23 Denno, “Legal Implications.” Denno’s chapter includes a fascinating family tree.

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The Implications of Behavioral Genetics Research any mental retardation, which was one of the most characteristic features of the affected Dutch males – Mobley actually appeared to be quite intelligent.24 Furthermore, Carey and Gottesman, who work at the intersection at psychology and genetics, point out that Mobley’s family history shows that the MAOA gene could not be affecting Mobley in the same way as the Dutch males because their trait was X-linked, while Mobley clearly inherited his aggression from his father’s side of the family, from which he would have received a Y chromosome.25 Mobley was found guilty, sentenced to death, and executed by lethal injection in 2005.26 Since 1993 no person outside of the Dutch family has been found to have this precise defect,27 which suggests that this exact point mutation is unique and therefore not widely applicable in court.

It would be incorrect to say that the link between MAOA and aggression28 has been discredited, not only because the researchers who discovered the link indicated that it could not be generalized to the general population, but also because variance in MAOA expression has been linked to variance in aggression. Unlike with the Dutch family, where the mutation seemed to be a sort of on and off switch, Caspi et al. and Brunner found merely a statistical correlation between MAOA expression and aggression, suggesting that rather than being the single ‘aggression gene,’ it is probable that MAOA is one of many genetic and environmental factors.

This revised version of the MAOA-aggression link has been used successfully in court: Abdelmalek Bayout, a murderer, received a reduced sentence from an Italian court because of his particular variant of the MAOA gene, despite the fact that

30% of ‘Caucasian’ men carry this variant.29 Presentation of the prevalence of this genetic trait in the general population may have affected the trial by putting the defendant’s claim in context, and this may help in many situations in which behavioral genetics is introduced in court. Like the XYY syndrome defenses, the defenses of Mobley and Bayout show that a healthy dose of skepticism is necessary when using behavioral genetic research in court and emphasize the importance of basic scientific training and advising for judges who have to evaluate behavioral genetics in court.

Huntington’s disease occasionally appears as part of behavioral genetics-based defenses. Huntington’s is an inherited disorder of the nervous system that becomes symptomatic sometime after adolescence and gets progressively worse over time. Sufferers are characterized by reduced mental function and an inability to control their physical movements, and can experience uncontrollable emotions – depression, impulsiveness, and irritability – as well as episodes of violence.30 The gene for Huntington’s disease has been tracked down and a test with 100% accuracy is available.31 Surprisingly, Huntington’s disease has been successfully used as a mitigating factor in court, for instance in the case of State of Georgia v. Glenda Sue Caldwell.32 Caldwell shot and killed her son and attempted to kill her daughter, without an apparent reason. At her trial she claimed that she had intended to kill both her children and herself because of her fear of developing Huntington’s and getting divorced, and thus was insane. Psychiatrists and her daughter testified that she was sane and Caldwell was initially sentenced to life in prison. But

Denno, “Legal Implications”; Summer, “Use of Human Genetics Research.”25 Carey and Gottesman, “Genes and Antisocial Behavior.”

26 Anjana Ahuja, “The Get Out of Jail Early Gene: The sentence of on killer in Italy has been reduced as he possesses a ‘violent gene’,” The Times (London; 17 Nov. 2009): 32-33.

27 Carey and Gottesman, “Genes and Antisocial Behavior.”

28 Avshalom Caspi, Joseph McClay, Terrie E. Moffitt, Jonathan Mill, Judy Martin, Ian W. Craig, Alan Taylor, and Richie Poulton, “Role of Genotype in the Cycle of Violence in Maltreated Children,” Science 297 (2002): 851-854; Han G. Brunner, “MAOA Deficiency and Abnormal Behavior: Perspectives on an Association,” in Genetics of Criminal and Antisocial Behavior, ed. Gregory R. Bock and Jamie A. Goode (New York: John Wiley and Sons, 1995).

29 Ahuja, “Get Out of Jail Early.”

30 Summer, “Use of Human Genetics Research.”

31 M. Murray, “Nancy Wexler,” The New York Times Magazine (13 February 1994).

32 Summer, “Use of Human Genetics Research.”

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Zachary L. Stewart in prison she showed signs of Huntington’s and the presence of the Huntington’s gene was confirmed.

Summer claims that Caldwell, during the retrial, was found to have been symptomatic at the time of the murder, and that on this basis she was freed, but Andrews contests that Caldwell was found to be sane at the time of the murder and stresses of the verdict of insanity that “such a verdict stretches credulity.”33 Several other interesting instances of Huntington’s defenses are covered by Andrews, but they apply the disease in ways that are not relevant to this paper. Yet all the cases have in common the justification of crimes by using Huntington’s disease, and this use has the side effect of stigmatizing all Huntington’s sufferers, regardless of whether they are violent. Such stigmatization is a serious problem with using genetics as a legal defense. Huntington’s in particular – unlike XYY syndrome and the MAOA gene – is apparent without genetic testing, and has symptoms besides violence. Indeed, in the popular eye, Huntington’s disease is not particularly connected to violence. But such defenses could change this, with the result that people with the disease have to live with the consequences of a serious social stigma.34 These three examples, together with the complexity of determining the many factors that interact to produce personality and social tendencies, suggest that it will be some time before genetic defenses are used with consistent success in court, if ever. This may lead to the idea that the ethical issues involved, such as those involving punishment, can be ignored or considered in a purely theoretical environment. Yet although no single genetic trait has been definitively shown to be an overwhelming contributor to aggression or criminal tendencies (except for, unhelpfully, the Y chromosome) there is no doubt that antisocial behavior is at least in part inherited. For example, Caspi et al. show that while MAOA activity is correlated to aggression, it does not determine aggression by itself.35 Caspi et al. also 33 34 35 36 37

point out that “although maltreatment increases the risk of later criminality by about 50%, most maltreated children do not become delinquents or adult criminals.”36 The effect of genetics on behavior cannot be discounted, but environment has a large impact, too, and this should not be ignored in favor of the perceived concreteness and specificity of genetics.

“Yet all the cases have in common the justification of crimes by using Hungtington’s disease, and this has the side effect of stigmatizing all Huntington’s sufferers.”

The impact of behavioral genetics research on the legal system has so far been examined only as a tool for the defense. This is how behavioral genetics is being used today, but as our understanding of the formation of complex psychological traits develops, and if genetic evidence becomes more accepted in courtrooms, there may be other consequences, many of which are rather frightening. One possible consequence is that behavioral genetics may eventually become a tool of the prosecutor as well as the defender, and juries may be convinced that the defendant must have committed the crime because he or she was predisposed to commit it and was in a situation where the commission of the crime is predicted by genetic and environmental factors.

The blood curdling case of Ward Weaver III and his father Ward Weaver Jr. appears to be an excellent case for exactly this sort of prosecution.37 Both men killed several people and both buried at least one body each under concrete pads in their backyards, among an alarming number of additional shared traits. Prosecutors might have argued that Weaver III was likely to be guilty because both his environment

Andrews, “Predicting and Punishing,” 126.

Ibid.

Caspi et al., “Cycle of Violence.”

Ibid., 851.

Robert Lee Hotz and John Johnson, “Murdera Family Affair: When detectives investigated Ward Weaver, they were reminded of the case that put Weaver’s dad on death row. Could genes be to blame?” The Gazette (Montreal, Quebec, 5 July 2003).

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The Implications of Behavioral Genetics Research and genetics predisposed him to commit exactly this type of crime. Other ominous possibilities include the preemptive gathering of people predisposed to criminal behavior in concentration camps or institutions, or the screening of fetuses for ‘criminal genes’ before birth and termination of fetuses that exhibit such genes – in short, predictions of criminal behavior, not actual criminal behavior, may suffice for action to be taken.

The prosecution could also use behavioral genetics, by pointing out the permanency of behavior implied by behavioral genetics to argue that the criminal should be incarcerated for longer than he or she otherwise would be in order to prevent him or her from being a danger to the public. This writer is not familiar with cases in which prison sentences have been lengthened by such evidence, but this could conceivably happen: one risk of the insanity defense is that the criminal, if deemed insane, might be permanently sent to a mental institution rather than temporarily sent to a jail.

Interestingly, this scenario has been quantitatively tested in a survey in which state trial court judges were presented with different variations of a scenario modeled after Stephen A. Mobley’s crime.38 In some versions, the prosecution presented the genetic evidence to argue that the defendant was liable to re-offend and so should be jailed for longer, while in others the defense argued that the genetics provided a mitigating factor. Some versions did not have genetic evidence presented by either side, but all versions included testimony from a psychiatrist.

Alarmingly, the judges’ sentences varied from one to forty-one years for the same physical crime (the sample responses in the supplementary material do not inspire confidence in the impartiality of the judicial system). When genetics-based evidence was not presented, 29.7% of judges listed mitigating factors; when it was presented, 47.8% did. The average sentence when genetic information was not presented was 13.93 years compared to 12.83 years when the information was presented. This is not an overwhelming difference, but it is significant.

The absence of any well-known cases in which the

38

prosecution presented genetic evidence (opposed to the several in which the defense did) suggests that behavioral genetics research is not seen by prosecutors as a useful tool, at least not yet. The study also shows that behavioral genetic evidence has an effect in court, though it’s not a dramatic one – less than half of the judges listed genetics as a mitigating factor even when it was presented. Like any one gene’s influence on behavior, genetic evidence is just one of many factors in the courtroom.

“One risk of the insanity defense is that the criminal, if deemed insane, might be permanently sent to a mental institution rather than temporarily sent to jail.”

Behavioral genetics is a field subject to much misinterpretation and blind excitement, particularly in the media, where it seems that every day the gene for something or other is discovered.

Such media coverage emphasizes the impact that genes have on behavior, at the expense of environmental impacts, and thus encourages views like determinism. Determinism, particularly hard determinism’s elimination of free will, is a potent idea which appears to undermine the foundation of the legal system of the United States. But the danger posed to the legal system by determinism is actually not considerable: behavioral traits like antisocial behavior or aggression are difficult even to objectively define, let alone track to specific genes, and success in court using genetic defenses is almost unknown. The genes that have been implicated affect behavior, but do not determine it. But even unsuccessful genetics defenses may contribute to a stigmatization of certain groups, like people who suffer from Huntington’s. And although behavioral genetics is not poised to have a significant impact on the legal system in the short term, in the long term research may impact our understanding of free will

Lisa G. Aspinwall, Teneille R. Brown, and James Tabery, “The Double Edged-Sword,” Science 337 (2012): 846-849. See article and supplementary information.

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Zachary L. Stewart and moral responsibility. In light of this possibility, it may be beneficial to begin discussing existing ideas about crime and punishment now. Morally suitable punishments must be balanced with the basic role of the law to provide a safe society and individuals’ right to live peacefully and without fear.

Achieving such a balance will require much debate and collective introspection.

Behavioral genetics research will almost certainly have an impact on society beyond the legal system, but that impact may be different from what is expected in discussions about determinism.

(Parens discusses these issues well). It is interesting to note that Stephan Mobley’s family is almost uniformly aggressive, but several of his relatives – including his father, Steve Mobley, from whom Stephen A. Mobley inherited his aggression – are spectacularly successful in business and lead peaceful lives at home,39 suggesting that these relatives are aggressive, but that they use this tendency in a productive way.

Similarly, partisanship has been associated with a specific gene, but the gene has no bearing on which party the partisan belongs to – this appears to be determined by the environment.40 These are rather hopeful conclusions because they emphasize the vital interaction of genetics and the environment and raise the possibility that given similar genes, the environment can make the difference

39

40

41

between a murderer like Stephen A. Mobley and a multimillionaire like Steve Mobley, his father.

The results of behavioral genetics research may be far from deterministic expectations in that they may not point at genetically predetermined behaviors, but at environmentally influenced ones, and suggest that the socioeconomic system, not the legal system, is in need of reformation. Behavioral genetics offers – among other things – an abdication of moral responsibility: Sarah Boseley, an English journalist, speculates that “Americans, weary with liberal quests for social and economic causes of spiralling crime, are intrigued by the simple notion that some people are born to be bad.”41 This is a disturbing possibility; a reversal of responsibility back onto society and a realization that science may not solve all of society’s ills will not be easy to come to terms with, but it must be achieved. ~~~ Acknowledgement The author would like to thank Marsha Altschuler, Professor of Biology at Williams College, for whose course on human genetic diversity this paper was prepared, and who provided several of the articles cited: Berryessa and Cho, Dawes and Fowler, Morell, Murray, and Wensley and King.

Denno, “Legal Implications.” Denno notes that Steve Mobley is “A good person and kind man. Worked hard and was a good father and family man. Now a multimillionaire” (family tree facing p. 252).

C. T. Dawes and J. H. Fowler, “Partisanship, Voting, and the Dopamine D2 Receptor Gene,” Journal of Law and Politics 71 (2008): 117-171.

Sarah Boseley, “Second Front: Genes in the Dock,” The Guardian (London, 13 March 1995): T2.

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War of the Wombs The Trade-Off between Safety and Accessibility in California’s New Abortion Law

By Robin Yi Jung Park Williams College

I. Introduction California boasts one of the least constrictive abortion laws in the country. As a result, the state claims 17.7% of all abortions performed in the United States.1 With the recent changes in state legislation, its reputation as the abortion capital of America seems likely to continue. While courts in Alabama, Mississippi, North Dakota, and most recently Texas have implemented more stringent abortion laws,2 Governor Jerry Brown of California went against the current national trend of abortion restrictions and signed a bill expanding the state’s abortion laws. The bill, which allows nurse practitioners (NP), certified nurse midwives (CNM), and physician assistants (PA) to perform aspiration abortions3 during the first trimester of pregnancy,4 carries serious possible health repercussions for women throughout the state. Though the bill’s proponents claim that the new law will support women’s reproductive health by increasing access to abortions,5 this slackening of current law may undermine the safety of the surgical procedure.

1 2 3

4 5 6 7 8 9 10 11

II. Access to Abortion California Assemblywoman Toni Atkins claims that she “introduced the measure because of concern that there are not enough physicians, especially in rural areas, to meet the needs of women who desire an abortion.”6 There are two main goals behind her initiative: first, to facilitate geographical access to abortion clinics, and second, to ensure timely care given to women facing the decision to abort.7 However, in the status quo, it does not seem that California is suffering from a lack of clinics or struggling to provide women with timely assistance.

According to the Guttmacher Institute, 22% of California counties did not have an abortion provider in 2008,8 but only 1% of all Californian women lived in these counties.9 In addition, the number of abortion providers in the state rose from 424 in 2005 to 522 in 2008 (an increase of 23%).10 Thus, it is not the shortage of abortion providers that hinders Californian women from receiving the proper care they need. Rather, finances and lack of health literacy are the chief suspects that lead to delays in receiving abortion care.11 According to the American Journal of Public Health, “privately insured women…face relatively few barriers in

Guttmacher Institute. State Facts about Abortion: California. http://www.guttmacher.org/pubs/sfaa/california.html.

Eckholm, Erik. “In Reversal, Court Allows Texas Law on Abortion.” The New York Times, 10/31/13.

Also known as vacuum abortion, a surgical process by which tools are inserted into the cervix and the pregnancy tissue is suctioned out. It is performed within the first twelve weeks of pregnancy (UCSF Medical Center. http://www.ucsfhealth.org/treatments/ surgical_abortion_first_trimester/) California AB 154, Atkins. Abortion.

Lovett, Ian. California expands Availibility of Abortions. The New York Times. 10/9/13.

McGreevy, Patrick. “Brown signs bill to let nurse-practitioners, others perform abortions.” The Los Angeles Times.

Ibid.

Guttmacher Institute. State Facts about Abortion: California.

Ibid.

Ibid.

Natavio, Melissa F, MD, MPH. “The Provision of Comprehensive Reproductive Health Services in Los Angeles: A Physician’s Perspective.” American Journal of Public Health 103.4 (April 2013): 596-598.

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Robin Yi Jung Park obtaining an abortion” while “the uninsured and publicly insured patients…face barriers related to difficulty accessing care through the public health care system.”12 Moreover, women marginalized by their social, cultural, and economic status may be less knowledgeable about the options available to them.13 The temporal delays in obtaining an abortion may be minimized by increasing health literacy among at-risk women and educating them on the “locally available reproductive health services.”14

The real reform that Californian women need is improvement in insurance policies and education programs that increase their awareness of the reproductive health options available to them. The added power bestowed to NPs, CNMs, and PAs to perform surgical abortions will surely increase the number of abortion providers within the state.

However, it is not the numerical deficiency of abortion providers that are at the root of current inefficiencies, but rather the difficulty of publicly insured and uninsured women in accessing proper care, as well as a general lack of healthcare literacy.

Moreover, the serious health risks that result from the deregulation override the potential benefits it may produce.

performed by non-physicians, a pilot study was conducted. Newly trained NPs, CNMs, and PAs in California were permitted to perform abortions within the state “with a predetermined risk difference of 2%.”16 The results showed that 0.9% of physician-performed aspiration abortions resulted in complications while 1.8% of non-physician aspiration abortions resulted in complications.17 Though the complication rate falls underneath the risk difference, the non-physician abortion aspirations resulted in twice as many complications as did the procedures performed by physicians.

Moreover, the study was performed in a controlled environment in which experimenters carefully supervised the non-physicians, thus minimizing potential complications. The increase in risk, however miniscule, cannot be ignored. The stated goal of the law is to improve women’s reproductive health by increasing accessibility to abortion providers.18 However, by allowing non-physicians to perform abortions, the quality of care given is undermined.

As stated in the American Journal of Public Health, low income and minority women are “more likely to be cared for by nurse practitioners (NPs) and physician assistants (PAs) than by obstetricians and gynecologists.”19 In effect, the inequities between care provided to low-income, marginalized women and those with higher incomes will increase. As abortion regulation continues to grow more lenient, the state government may be permitting unsafe practices, rather than maintaining safe options for women who seek abortions.

II. Increased Health Risks It is true that aspiration abortion is one of the safest surgical procedures,15 but to gauge whether the procedure could safely and successfully be

III. Measuring Up Against Federal Standards – Constitutionality of the Law In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court essentially

“By allowing non-physicians to perform abortions, the quality of care given is undermined.”

12 13 14

15

16

17 18 19

Ibid.

Ibid.

Natavio, Melissa F, MD, MPH. “The Provision of Comprehensive Reproductive Health Services in Los Angeles: A Physician’s Perspective.” American Journal of Public Health 103.4 (April 2013): 596-598.

Less than 1% complication rate (Section IV: Abortion. Columbia University Reproductive Health Module. http://www.columbia.edu/ itc/hs/pubhealth/modules/reproductiveHealth/abortion.html) Weitz et al. “Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants Under a California Legal Waiver.” American Journal of Public Health.

Ibid.

McGreevy, Patrick. “Brown signs bill to let nurse-practitioners, others perform abortions.” The Los Angeles Times.

Ibid.

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War of the Wombs affirmed its decision in Roe v. Wade, once again establishing the right to abortion. However, rather than upholding abortion as a fundamental right, the Court veered from a strict scrutiny standard in Roe v. Wade to an “undue burden standard” in Planned Parenthood v. Casey, dictating that a law is unconstitutional only if it places an undue burden, or “substantial obstacles in path of a woman seeking an abortion before the fetus attains viability.”20 Under this “undue burden test,” the Court ruled in Mazurek v. Armstrong that the physician-only requirement in Montana “was not an undue burden on the right to abortion.”21

“A true interest in women’s health would have prompted an improvement in access to abortion coverage for those in poor socioeconomic situations...”

IV. Conclusion For the aforementioned reasons, California’s expansion of abortion law is unwarranted and potentially dangerous. A true interest in women’s health would have prompted an improvement in access to abortion coverage for those in poor socioeconomic situations and an initiative to better educate such women with the reproductive health services currently available to them. By degrading the quality of reproductive care, the law unjustly widens the rift between services available to economically stable women and those that are marginalized by financial and social circumstances.

Moreover, by setting such a precedent in deregulation of abortion laws, the government is opening the door to increasing unsafe abortion practices in the future – endangering the health of women it so claims to protect.

While in the case of California, the elimination of the physician-only requirement corresponds with an increased accessibility to abortion, the previous rulings of the Court dictates that its implementation is neither necessary nor beneficial. The physicianonly requirement does not impose an unreasonable obstacle for a woman seeking an abortion as does poverty or poor health literacy, and its annulation may in fact increase health risks by lowering the quality of care.

20 21

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992, Nos. 91-744, 91-902).

Mazurek v. Armstrong – 520 U.S. 968 (1997).

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A Tribute to Reason?

Terrorism, Miranda, and the Public Safety Exception

By Joe Bianco Williams College

The grounds crew wheels a huge, star-shaped stage into the center of MetLife Stadium for the halftime show of Super Bowl XLVIII. Just as the music begins, a huge cloud of smoke rises out of the middle of the crowd. At first it seems as if the smoke is part of the performance, but as swaths of fans sprint from the field, it becomes apparent to the millions watching on TV that something is amiss.

Stadium security surrounds the source of the smoke, a lone man, and apprehends him as he tries to flee.

A few minutes later, Troy Aikman announces from the booth that the suspect has been brought into custody after his vest, packed with TATP and nails, failed to detonate. Although that the area is being secured so that the game can continue, police have yet to determine whether the suspect acted alone or whether other targets exist. Fox’s legal analyst at the game insists that the subject will likely be subject to immediate interrogation. Joe Buck is in favor of it – after all, this man is a terrorist.

In 1966 with Miranda v. Arizona, the Supreme Court established a system of warnings that guaranteed every suspect, even those society finds most deplorable, would at least have knowledge of the protections afforded by the Constitution before any custodial questioning began. Later, in New York v. Quarles, the Court established an exception to its formerly universal rule – law enforcement officers need not administer Miranda warnings if their questioning related to “public safety.”

The so called “public safety exception” (PSE) has become particularly controversial in its application to terrorism cases, in which what constitutes an

1 2 3 4

immediate threat to public safety is often indefinite and arbitrary. The question remains whether the Quarles exception, as applied in terrorism cases, undermines the purpose and intent of Miranda as a prophylactic rule against unjust government interrogation.

“The so called ‘public safety exception’ has become particularly controversial in its application to terrorism cases...”

Before Miranda, courts had excluded nonvoluntary confessions on a case-by-case basis, often evaluating many factors in their determination of whether a confession was coerced. In Bram v. U.S., Justice White articulates this pre-Miranda standard well, saying that “in order to be admissible, [a confession] must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the extension of any improper influence.”1 This method worked fine at the Supreme Court level, but throughout the 1930s and 40s, blacks in the Deep South faced extreme brutality at the hands of police officers and received no relief from the judicial system.2 The state courts upheld convictions based on confessions given after suspects were whipped, beaten, burned, and threatened with mob violence.3 Between 1957 and 1963, the Warren Court overturned eight of ten cases it heard involving “voluntary” confessions – a clear demonstration of its dissatisfaction with the application of the voluntariness standards.4 By the

Bram v. United States, 168 U.S. 532 , Case No. 340, U.S. Supreme Court, 1897.

Amos Guiora, “Relearning Lessons of History: Miranda and Counterterrorism.” Louisiana Law Review, (2011), 1155.

See Brown v. Mississippi and Ward v. Texas.

Guiora, 1155.

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Joe Bianco 1960s, the Court had also become increasingly skeptical of the lower courts’ ability to protect suspects against new methods of psychological coercion. Chief Justice Warren’s observation “that blood of the accused is not the only hallmark of an unconstitutional inquisition” highlights this growing concern that “sophisticated methods of ‘persuasion’” could easily match “the efficacy of the rack and the thumbscrew” in extracting confessions.5 In response to what it perceived to be an endemic deprivation of Fifth and Sixth Amendment rights, the Supreme Court implemented the now-famous Miranda warnings. Chief Justice Warren, writing for a 5-4 majority, insisted that every suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to presence of an attorney, either retained or appointed.”6 Though critics often point to this specific enumeration as an example of the judiciary overstepping its bounds, the Court sought to establish a prophylactic rule precisely because the states were ineffective in upholding these rights on their own.

“...over 83% of cases in which prosecutors invoke the PSE concern missing firearms...”

The now-controversial PSE exception, on the other hand, originated in a fairly mundane case.

Upon arresting Benjamin Quarles in a convenience store, Officer Frank Kraft noticed Quarles’s empty shoulder holster. Logically, Kraft asked him where the gun was, to which Quarles responded, “the gun is over there.”7 Quarles moved to suppress that statement in court because he had not first been read his Miranda rights, and both the trial judge and New

5 6 7 8 9 10 11 12

York Court of Appeals sided with him, preventing the testimony, and the gun found as a result, from being admitted into evidence. The Supreme Court, however, reversed the holding, finding that in cases like this one, the “need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”8 Justice Rehnquist characterized this exception as a necessary concession to the difficult situations that police officers may find themselves in. The majority refused to place police officers “in the untenable position of having to consider, often in the matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings” and possibly endanger the public.9 An important distinction is made in Quarles to differentiate it from an earlier case, in which four officers, several hours after a homicide was committed, stormed into the suspect’s house, woke him, and interrogated him, asking whether he had been at the scene of the crime and where the gun was.10 In that case, the Court found that the questions were “clearly investigatory,” whereas in Quarles the questions related “to an objectively reasonable need to protect the police or the public from any immediate danger.”11 The typical PSE case resembles Quarles itself.

An empirical study of both state and federal cases found that over 83% of cases in which prosecutors invoke the PSE concern missing firearms and over 97% concern missing weapons or a suspected accomplice.12 When loaded weapons or criminal accomplices cannot be located, the “immediate danger” to the public is obvious, and law enforcement has not only an interest in, but moreover a duty to, protect the public, even if that means infringing

Blackburn v. Alabama, 361 U.S. 199, Case No. 50, U.S. Supreme Court, 1960.

Miranda v. Arizona, 384 U.S. 436, Case No. 759, U.S. Supreme Court, 1966..

New York v. Quarles, 467 U.S. 649, Case No. 82-1213, U.S. Supreme Court, 1984.

New York v. Quarles.

New York v. Quarles.

Orozco v. Texas, 394 U.S. 324, Case No. 641 (1969).

New York v. Quarles.

Joanna Wright, “Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception,” Colombia Law Review, (2012), 1316.

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A Tribute to Reason? on the Constitutional protection against selfincrimination. In cases of terrorism, however, what legally constitutes an “immediate danger” is far less clear. When individual criminals like Quarles are arrested, law enforcement has already addressed the most pressing public danger, and must deal with residual threats like guns or other weapons.

The arrest of an individual terrorist, however, does nothing to deter other terrorists, nor does it ensure that other, simultaneous attacks can be prevented.

The “simplest” case of domestic terrorism and the PSE demonstrates a close adherence to the original decision in Quarles. In the attempted Brooklyn Bombing of 1997, police officers received a tip regarding several pipe bombs and two suspects in a Brooklyn apartment. After the men were treated for the gunshot wounds they received while resisting arrest, officers asked questions “as to how many bombs there were...which wire should be cut to disarm the bombs and whether there were any timers.”13 One of the suspects, Abu Mezer, answered all these questions. Even in this case, with an apparent ticking time bomb, there was a wrinkle. An agent asked whether or not Mezer intended to kill himself with the bombs, to which he replied, “Poof.”14 He disputed the admission of this into evidence at trial, because it created a negative impression of him to the jury and had little to do with public safety. The trial judge, however, agreed with the government that the answer to the question gave some hint as to the power and stability of the bomb. The appellate court affirmed this decision, saying that the admission was at worst a harmless error.

Although there were concerns about possible synchronous attacks, the broad scope of the interrogation in the case of Umar Farouk Abdulmutallab illustrates how malleable the public safety exception can be. Abdulmutallab was arrested in Detroit after an explosive device in his underwear malfunctioned. Following treatment of his burns, FBI special agents questioned Abdulmutallab

13

14 15 16

about the attempted attack. Because the “agents feared that there would be additional, imminent aircraft attacks in the United States and elsewhere in the world,” they declined to read Abdulmutallab his Miranda warnings before questioning him.15 Because his bomb had already failed, none of the questions the agents could ask would satisfy the PSE in the traditional sense. Adherence to that precedent in the most literal sense, however, would be absurd, and the courts rightfully allow questioning regarding simultaneous or impending attacks. The agents asked questions, however, not only about “his intention in attacking Flight 253, and who else might be planning an attack,” but also about others that he “lived with, or attended the same mosque with…who had a similar mindset… about jihad, martyrdom, support for al-Qaeda, and a desire to attack the United States by using a similar explosive device on a plane.”16 While the questions determining likelihood of any other immediate attacks clearly warrants protection of the PSE, perhaps the other questions should as well.

After all, any question that gathers information about possible attacks or generally dangerous individuals also serves the “public interest” in a broader sense. Miranda warnings exist, however, to protect defendants like Abdulmutallab from having answers given during an unfair interrogation used against them in a court of law. If the warnings are only given after the FBI has questioned the suspect extensively and learned everything, they do little to guard against self-incrimination. Unfortunately, in cases where the defendants are alleged terrorists rather than ordinary criminals, the public has shown little interest in the protection of their rights.

The case of Dzhokhar Tsarnaev, the suspect accused with planning the bombing of the Boston Marathon that wounded over 260 people, bears striking resemblance to that of Abdulmutallab.

Though the FBI had no evidence Tsarnaev acted in coordination with any organized terrorist group,17

United States v. Lafi Khalil, Gazi Ibrahim Abu Mezer, Case No. 214 F.3d 111, United States Court of Appeals for the Second Circuit, 2000.

U.S. v. Mezer.

United States v. Umar Farouk Abdulmutallab, Case No. 10-20005, 2011.

U.S. v. Abdulmutallab.

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Joe Bianco and was instead “radicalized through jihadist materials on the Internet,”18 they insisted that he still presented a threat which warranted a sixteenhour interrogation without Miranda rights.19 In sixteen hours of unwarned interrogation, however, it seems the FBI must have questioned Tsarnaev more for intelligence purposes than for fear of immediate danger to public safety, especially since several days had passed since the actual attack.

As of writing, the questions FBI agents posed to Tsarnaev are unavailable. Nonetheless, because he stopped cooperating after being read his rights by a federal judge, any information the FBI has released that comes from Tsarnaev himself offer a clue as to what types of questions were posed to him. The New York Times reported that Tsarnaev and his brother planned the attack for the Fourth of July, a response that seems unrelated to any pressing manners of public safety since the attack had already happened.20 The FBI also discovered that the sermons of Anwar al-Aulaqi played a role in his radicalization, but that the two had never actually communicated. Because al-Aulaqi was killed in a 2011 drone strike, and the FBI certainly had knowledge that his sermons remained available on the Internet, it seems reasonable to speculate that this question, also lacked a substantial relationship to any immediate public danger.

As previously mentioned, Tsarnaev, a naturalized citizen, immediately stopped cooperating after the FBI read him his rights. This speaks to the consequences, for better or for worse, that alerting a suspect of his rights may have. On the one hand, obtaining valuable information from seemingly uncooperative suspects seems advantageous. If any of the intelligence extracted from Abdulmutallab or Tsarnaev saves even a single citizen’s life, then the benefit to the public outweighs their right against self-incrimination. On the other hand, as Justice Goldberg pointed out over fifty years ago, 17 18 19 20 21 22 22

“no system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise [his Constitutional] rights.”21

“Tsarnaev, a naturalized citizen, immediately stopped cooperating after the FBI read him his rights.

This speaks to the consequences... that alerting a suspect of his rights may have.”

In theory, the judicial branch exists to protect these Constitutional rights, especially when they are unpopular with the public at large. Nonetheless, the only time any court has rejected a an explosivedevice-related PSE claim was when an officer asked a defendant questions even though he had already identified the explosive device in the suspect’s car.

However, even Hawaii v. Kane can be considered an outlier, as the suspect was not a terrorist, but simply had a makeshift bomb he claimed he needed for self-defense.22 Excluding Kane then, in all nine cases involving an explosive device, a terrorist, and the PSE, the courts have permitted inclusion of all unwarned testimony. The courts have not only failed to reject extraneous testimony, but by their acquiescence they have perpetuated the unfair practices of the FBI. The FBI was not always so quick to dismiss defendant’s constitutional rights. Ironically, before Miranda, they had already started giving codified warnings similar to those stipulated by Chief Justice Warren.23 This commitment to civil liberties remains their public position, though practices behind closed doors have changed. In response to an initiative by Senator Mitch McConnell which

Gregory Smith, “Should Boston bombing suspect get a Miranda warning? Debate follows Friday capture,” CNN.com, April 20, 2013.

Associated Press, “Boston Marathon bombing suspect Dzhokhar Tsarnaev silent after read Miranda rights,” CBS.com, April 25, 2013.

See note 18 above.

Eric Schmitt et. al., “Boston Plotters Said to Initially Target July 4 for Attack,” New York Times, May 2, 2013.

Escobedo v. Illinois, 378 U.S. 478, Case No. 615, U.S. Supreme Court, 1964 State of Hawaii v. Dayton Kane, No. 96-2258, Court of the State of Hawaii, 1998.

Miranda v. Arizona.

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A Tribute to Reason? regulated treatment of detainees at Guantanamo, Attorney General Holder points to the Domestic Investigations and Operations Guide, which advises agents to give Miranda rights before questioning as evidence of the executive branch’s dedication to proper treatment.24 Similarly, the Legal Handbook for Special Agents states, “whether an accused or suspect will cooperate is left entirely to the individual.”25 Even in that same manual, however, the FBI reminds its agents that “certain questions such as standard booking questions and public safety questions, do not amount to interrogation for purposes of Miranda.”26 The legal handbook explains the safety exception by giving the example of arresting a suspect for an “armed offense” and making an “inquiry to determine the location of the weapon.”27 Terrorism is not mentioned because far from the “kaleidoscopic” world of the agent in the field, where timely decisions can alleviate imminent threats to the public, in terrorism cases the FBI can consider how exactly it wishes to go about interrogating suspects, and to what extent it can stretch or ignore the PSE.

“The FBI can collect valuable, yet incriminating information completely unrelated to the present crime as long as they do not use it at trial.”

Of more pressing concern than its manual, however, is a 2010 memo that specifically addresses custodial interrogation of terrorist suspects. In it, the FBI suggests that “any and all questions that

are reasonably prompted by an immediate concern for the public” are permitted.28 Because the courts have ruled consistently in their favor, the language around the PSE has broadened, but the idea, especially of immediacy, here remains consistent with the PSE’s original purpose. The FBI also reminds agents that cases of operational terrorists “may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.”29 This quote further illustrates the FBI’s awareness of judicial leniency. The last option the FBI gives its agents is to forego Miranda warnings altogether and “continue unwarned interrogation” if “necessary to collect valuable and timely intelligence not related to any immediate threat.”30 By encouraging its agents to sometimes go beyond public safety questions, it seems the FBI places its personnel in the untenable situation the Court in Quarles specifically sought to resolve. This may be included simply because it could conceiveable happen and as the FBI recommends that agents consult with FBIHQ and the DOJ before pursing this path seems, suggests that there are few scenarios that would place agents themselves in this difficult position.31 Furthermore, citing several cases, the FBI memo reminds agents that the Fifth Amendment rights are only violated “if and when the government introduces an unwarned statement in a criminal proceeding against the defendant.”32 This seems a reasonable compromise. The FBI can collect valuable, yet incriminating information completely unrelated to the present crime as long as they do not use it at trial. Unfortunately, history has shown the willingness of the FBI to use all statements given before Miranda at trial, and the willingness of the courts to admit it all under a broadened PSE.

Eric Holder, Letter to the Honorable Mitch McConnell, February 3, 2010.

Legal Handbook for Special Agents, Federal Bureau of Investigation, 2003.

26 See note above.

27 See note above.

28 F.B.I Memorandum, “Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States,” October 21, 2010.

29 See note 28 above.

30 See note 28 above.

31 See note 28 above.

32 See note 28 above.

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Joe Bianco Miranda warnings may not even deter suspects from responding. Both anecdotally and empirically, the results are inconclusive. The testimony of four retired NYPD detectives seemed to indicate that the Miranda warnings, as applied, never made a difference in obtaining a confession or other information from suspects.33 Additionally, three FBI agents, in a letter to President Obama, urged that current Miranda and PSE polices remain in place, because they found that in “decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases.”34 The cases of Mezer, Abdulmatuallab, and the suspect in the attempted Times Square Bombing, support this claim, as all the suspects cooperated with law enforcement even after being read their Miranda rights.35 Conversely, Tsarnaev’s case points to the possible repercussions of Miranda warnings. A study by the National Center for Policy Analysis indicates a significant decrease in confessions (approximately 14%) across several cities following the original 1966 decision.36 FBI Uniform Crime Reports showed a national decline of almost 15% in clearance rates for violent crimes.37 This evidence only demonstrates that there is a reduction in cooperation when suspects become generally aware of these rights for the first time, now more or less irrelevant, as both criminals and law enforcement have acclimated to the new standards.

Because terrorists may be unfamiliar with American law (and perhaps law enforcement with them) they may resemble average criminals before 1966.

No one seems to have asked any of these suspects if they were aware of their Miranda rights prior to arrest, but it seems reasonable to assume that they might not be familiar with the popular warnings.

Tsarnaev’s actions, at least, indicate that it is possible for terrorist suspects to be unaware of their right to remain silent. If accurate, this observation can 33 34 35

36 37 37

support either position. It may highlight the need to read these suspects their Miranda rights because their lack of familiarity with the legal system and their rights makes them particularly vulnerable to unfair police practices. On the other hand, one could argue that precisely that lack of familiarity ought to be exploited by law enforcement, rather than remediated. Better to use that large hole to break down any barrier between the government and valuable intelligence than to patch it up and take the risk, an empirically significant risk, of never knowing what information could have been discovered.

“....Miranda rights never interfered with [FBI agents’] ability to obtain useful information or make prosecutable cases.”

In that latter scenario, however, we risk losing the ground that the Court gained for criminal defendants over half a century ago. Though law enforcement has taken enough leeway in interpreting or disregarding the PSE, the courts can be blamed for systematically enabling this approach.

Eight cases have allowed for questions on topics from methamphetamine laboratories to an explosive device given to the suspects by the government (in a sting operation) to enter into evidence.38 The information unrelated to immediate danger that the FBI obtains could still be used to protect the public or even prosecute other criminals. The Court allows, however, for the government to use this evidence in trial, thereby violating the defendant’s Fifth Amendment rights without real justification.

In his opening statement at the Nuremburg Trials, (future Justice) Robert Jackson declared that:

Tim Muldoon et. al., Lecture, Williams College, April 1, 2013.

Jim Clemente, Jack Cloonan, and Joe Navarro, Letter to President Barack Obama, May 13, 2010.

Elizabeth Nielsen, “The Quarles Public Safety Exception in Terrorism Cases. Reviewing the Marshall Dissent,” American University Criminal Law Brief, (2012), 29.

Paul Cassell, “Handcuffing the Cops: Miranda’s Harmful Effects on Law Enforcement,” National Center for Policy Analysis (1998), 2.

Cassell, 10.

Wright, 1331.

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Williams College Law Journal

A Tribute to Reason?

The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

It is easy to protect civil liberties in times of peace, but as Jackson suggests, a nation ought to be judged on how it judges in times of crisis. While the argument can be made that the intelligence gathered in unwarned interrogations outweighs the harms to constitutional liberties, especially those of terrorists, the extent to which the PSE has been expanded seems to have eroded the usefulness of the Miranda warnings altogether. Because information unrelated to immediate public safety risks is repeatedly admitted to courts, the FBI offends Fifth Amendment rights when a viable middle ground exists. After Osama bin Laden was killed in May 2011, President Obama said that our nation “will be relentless in defense of our citizens and our friends and allies” and that “we will be true to the values that make us who we are.” These two goals need not be at odds. As President Obama suggested, they can go hand in hand. If domestic terrorists continue to be denied their rights and the PSE continues to be expanded, however, the two objectives will become increasingly dissociated. While the exception does not seem to have swallowed the rule yet, we, as a nation, must tread carefully in our treatment of those who have wronged us in the worst ways.

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Interview with Edward Johnson Civil Litigator, Sullivan & Cromwell LLP

By Lily Hye Rin Lee Williams College

Edward Johnson grew up in Norman, Oklahoma.

He graduated from Williams College with a degree in mathematics in 1998. After graduating, he spent three years as a management consultant in Cambridge, MA and then worked as a lending analyst for a year.

He attended Harvard Law School and graduated magna cum laude in 2005. He has been an Associate in the Los Angeles office of Sullivan & Cromwell LLP ever since. ~~~ How did your experience at Williams influence your decision to attend law school? How was your experience at Harvard Law School different and enjoyable compared to that of Williams?

I didn’t really consider law school while I was at Williams (I spent four years as a management consultant before going to law school) but the great thing about a liberal arts education is that it prepares you to do just about anything. I majored in math at Williams, which I think actually was very helpful to me in law school, because it teaches you to think analytically and logically, which is how you have to approach legal issues. My experience in law school was very different than my college experience, maybe partly because I worked for several years in between. In law school I was much more focused on preparing for an occupation; in college, I never really focused on a job or a career, at least until being faced with on-campus interviews as a senior. My experience in law school was also very different socially – I got married and had my first child while in law school, so I was just at a different stage of my life.

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What field of law do you practice and has it changed over the arc of your career?

I’m a civil litigator. At my firm, litigators generally do not specialize in a specific area, so I’ve worked on a variety of types of cases, including patent cases, trade secret cases, securities class actions, and M&A class actions.

Do you have any recommendations or comments for undergraduates at Williams (or in general) who are interested in law school or pursuing a career in the law field?

I find practicing law to be interesting and challenging, and for many people it’s a very rewarding career.

But it’s not for everyone—plenty of people dislike law school and don’t enjoy practicing law. Given the cost of law school and the three years it takes, undergraduates should do whatever they can to be sure it’s really what they want to pursue before they sign up for it. I would encourage students to consider working for a couple years before applying to law school, whether in a law firm (some firms, including mine, hire paralegals out of college, which gives people a chance to see first-hand what it’s like to work in a firm) or in another field they are considering. I think working for a few years after college helped me determine that law school would be a good fit for me.

4. How did you select your law school, law practice, and law firm?

I chose Harvard Law partly because I love Cambridge and partly because of its reputation—going to a top law school opens up opportunities that aren’t

Williams College Law Journal

Lily Hye Rin Lee available, or at least are more difficult to attain, from less highly-regarded schools. I decided to be a litigator because I find it incredibly intellectually stimulating. We handle large cases, often with millions of documents and dozens of witnesses, and you have to take this huge set of facts and weave them into a compelling story about why your client should prevail. I chose Sullivan & Cromwell because of its reputation for handling complex cases and doing high-quality work, and because the firm is committed to giving attorneys the chance to do substantive work—taking depositions, arguing motions, etc.—relatively early in their careers.

Anything you would like to add as a Williams alumnus?

Go Ephs!

How did you choose your law profession (what made you become a lawyer as opposed to a consultant, professor, etc.)?

I tried consulting, but for me it was a little too intangible. At the end of a project we would give a presentation, but we wouldn’t necessarily know whether the client took our advice or what the result was. With litigation, you have tangible outcomes—your motion is granted or denied, you win or lose the trial—and that’s more satisfying for me. I’m competitive and for me part of the appeal of litigation is that there is a winner and a loser.

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Book Review: Legal Accents, Legal Borrowing

By Roya Huang Williams College

In Legal Accents, Legal Borrowing, James Nolan gives a fascinating account of the international spreading of the American problem-solving court system. Through detailed descriptions of his visits to over fifty problem-solving courts (including those established for drugs, mental health, domestic violence and community issues), Nolan paints a picture of a legal system interested more in the betterment of the criminal and the community than the delivery of traditional punishment, and he examines the cultural differences that influence nations in accepting, changing and rejecting this relatively new American invention.

For readers unfamiliar with sociology, Nolan very clearly introduces several key concepts that lay the foundation for his entire book: First, the idea that law and culture are inextricably linked and that, no matter which influences the other, they will always mirror each other. Second, Nolan explores differing views on globalization: Lawrence’s Fridman’s claim that homogenous globalization toward western culture is the reason for the expansion of American legal ideas, Alan Watson’s claim that localized culture allows for greater ease in borrowing and adapting American legal ideas, and Gunther Teubner’s claim that a foreign influence is a “trigger” that can lead to a variety of consequences.

After laying a firm foundation, Nolan takes the reader through an exploration of different cultures and their reactions to American problem-solving courts. He highlights key differences between magistrates and high-powered judges, “buttoned up” culture and American emotionalism, reverence

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of legislature and judicial independence, devolution and grassroots movements, judicial formality and activism, harm reduction and abstinence, and countless other cultural comparisons. Throughout his entire discussion are underlying themes about American imperialism, the movement to establish problem-solving as an international rather than American movement, the ultimate goal of building confidence in legal systems, and the balance between problem-solving and values of due process, precedent and neutrality. By the end the book, he has presented crucial questions and stunning answers, and he has created a poignant image of a world that is more influenced by American legal ideals than it knows. This book is a must-read for anyone who wants to understand the importance of individual cultures in the shaping of a worldwide phenomenon.

Williams College Law Journal