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Amanda Bakowski, University of Pennsylvania 1

Habib Olapade, Stanford University 25

Michael Payne, College of William & Mary 48

Emily Tenenbom, University of Washington 60

Jong Yoon, Columbia University 94


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Negheen Kamkar

Executive Editors
Lucas Barash-David
Hanna Giuntini
Henry Seeley
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Joseph Rebagliati
Ben Lennon
Shweta Jayawardhan
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Lindsey Townsend

Volume VII Spring 2014 Issue III


Throwing Stones at a Glass House:
A Consideration of Methamphetamine
Addiction, Psychosis, and Treatment in
Criminal Contexts

By Amanda Bakowski*

Advances in neurological and psychological research as well as in
brain imaging techniques allow for groundbreaking analysis into
the brain and its connection to behavior. For example,
researchers are able to identify complex structural changes
brought about by psychological disorders, including substance
abuse and addiction. However, this greater insight into a person’s
neurobiological conditions at the time a crime is committed has
created debate in the legal community. Deciding how to properly
incorporate such information into legal proceedings, determining
responsibility and competency when substances are involved,
identifying how psychosis and psychotic symptoms of substance
use affect criminal behavior, and treating addicted offenders are
all necessary facets of this debate. One of the most addictive
substances, methamphetamine, has seen a surge in use in both the
general and criminal populations. This paper argues that as the
epidemic of addiction and rate of methamphetamine use in

2 WULR  Vol VII, Issue III  Spring 2014

conjunction with criminal activity has increased, the legal system
must continue to address the issue with a more sophisticated
understanding of the neurological properties of the substance and
of the addicted brain. To make this argument, this paper
addresses the properties, psychological classification, legal
considerations, and currents debates surrounding
methamphetamine use in criminal contexts.

*Amanda Bakowski is an undergraduate Psychology student at the
University of Pennsylvania attending Harvard Law School in Fall 2014.
Through research in psychology centers and work in psychiatric hospitals
and community clinics, she has developed an interest in mental health law
and treatment.

Table of Contents


Methamphetamine was outlawed as a part of the U.S. Drug
Abuse and Regulation Control Act of 1970.
methamphetamine use has been implicated in a variety of criminal
acts, specifically violent crime. When methamphetamine users are
brought into the legal system—whether they committed their crime
under the influence or while experiencing symptoms of
withdrawal—controversial issues arise. Although the maladaptive
effects of methamphetamine abuse create vulnerabilities for the
defendant, the voluntary consumption of an illegal substance
presents an ethical dilemma for the courts.
http://www.cesar.umd.edu/cesar/drugs/meth.asp (last visited May 13, 2014).

Bakowski 3

Many methamphetamine users qualify as addicts– those
who suffer from drug abuse or dependency. The nature of addiction
complicates the traditional assessment of legal defendants. Are
addicts responsible for the crimes they commit while under the
influence? Should the acceptance of addiction as a disease change
the way we treat addicted offenders? The effects of
methamphetamine can impair the user’s abilities to adequately
function during legal proceedings, including examinations of
“competency to waive Miranda rights, competency to stand trial,
mental state at the time of the offense, diminished capacity,
mitigation at sentencing, and competency to waive mitigation and
Questions also arise after an offender is found guilty of a
crime. We must ask: is today’s criminal justice system equipped to
handle the unique needs of addicted offenders? Because the epidemic
of addiction and rate of methamphetamine use in conjunction with
criminal activity has increased, the legal system must continue to
address the issue with a more sophisticated understanding of the
neurological properties of the substance and of the addicted brain.


Methamphetamine, popularly known as “meth,” “ice,” “crystal,”
“crank,” and “glass,” is a member of the amphetamine group of
sympathomimetic amines
and is considered a Schedule II
Methamphetamine is typically produced through a
reduction of ephedrine or pseudoephedrine.
After being smoked,
injected, inhaled, or taken orally, methamphetamine use involves the
release of both the neurotransmitters dopamine and serotonin,
producing an intense feeling of rush for the user. The user’s brain
remains in an alert state after the initial effects have worn off. Once
this surge of dopamine subsides and is depleted in the brain, the
John Matthew Fabian, Methamphetmine Motivated Murder: Forensic Psychological/Psychiatric &
Legal Applications in Criminal Contexts, 35 J PSYCHIATRY AND LAW, 443-74 (2007).
Metamphetamine - Substance Summary, PUBCHEMSUBSTANCE,
http://pubchem.ncbi.nlm.nih.gov/summary/summary.cgi?sid=134337864&loc=es_rss (last
visited May 13, 2014).
Jerome Cartier et al., Methamphetamine Use, Self-Reported Violent Crime, and Recidivism Among
Offenders in California Who Abuse Substances, 21 J INTERPERS VIOLENCE, 435-45 (2006).
Fabian, supra note 2.

4 WULR  Vol VII, Issue III  Spring 2014

user is likely to enter a state of depression.
This cycling between a
euphoric high and depression is known as “tweaking” and is one of
the most common adverse effects of repeated methamphetamine

Methamphetamine is exceptionally addictive due to the
extreme highs and lows, and users often employ any method,
including illegal and dangerous actions, to secure a supply of the
drug. Over time, an addict will require increasingly larger doses to
remedy his or her withdrawal symptoms and experience the desired
Withdrawal has its own behavioral effects, including
psychomotor retardation, depressed mood, anxiety, irritability and
cravings for the drug.
Methamphetamine use is associated with
high rates of psychosis, cognitive deficits, paranoia, memory loss,
and violent behaviors.
These effects are long-lasting, keeping users
awake for days on “binges,”
which add additional cognitive and
behavioral deficits due to lack of sleep and adequate care-taking.
While methamphetamine use has behavioral effects including
positive symptoms of increased concentration and euphoria,
increased sexual arousal and physical stamina, it also entails
extreme negative symptoms.
Most severely, methamphetamine use
can result in mortality, typically caused by seizures, cardiac
arrhythmias, or respiratory failures from rapid breathing and
elevated heartbeat.

Violent behaviors appear to be common among users, with
experimental evidence from mice showing that chronic use increases
CESAR, supra note 1.
http://www.nlm.nih.gov/medlineplus/methamphetamine.html (last visited May 13, 2014).
Shane Darke et al., Major Physical and Psychological Harms of Methamphetamine Use, 27 DRUG
ALCOHOL REV. 253-62 (2008).
Diagnostic and Statistical Manual of Mental disorders, American Psychiatric Association (5 ed.
[hereinafter DSM-V]
Darke, supra note 9.
CESAR, supra note 1.
Mary Holley, How Reversible is Methamphetamine Related Brain Damage? 82 NORTH DAKOTA L.
REV. 1135-1151 (2006).
Darke, supra note 9.

Bakowski 5

aggressive actions.
Acute intoxication may also increase aggressive
response in someone who is threatened or provoked.
An absolute
causal relationship has not been firmly established, but many
studies have illustrated correlations and self-reports of the effects of
methamphetamine use on personal violent urges and behaviors.

Meta-analyses point out the high prevalence of violent acts and
criminal behavior reported in methamphetamine users. A study by
Mcketin et al. in 2006 reported twelve percent of users had
committed a violent crime the prior year.
Concurrently, Sommers
et al. demonstrated that more than one third of the users in their
reports had assaulted another individual while under the influence
of methamphetamine.
Additionally, David Smith and colleagues
argue, “methamphetamine abuse contributes directly to violence in a
variety of ways, but in fact, epidemiological studies have indicated
that this contribution occurs most commonly in the Caucasian
Finally, Cartier et al. tested the hypothesis that
methamphetamine use would predict violent crime and recidivism
in a population of parolees during the twelve-month post-
incarceration period. The authors found that those inmates who
used methamphetamine were significantly more likely to be
incarcerated again or to report any violent acts in the month prior to
follow-up than those who did not.
This evidence, taken together,
points to the severe nature of the cognitive and behavioral effects of
methamphetamine use. These effects are likely to impair the
rationality and control of aggression in users.
Research has shown that many brain structures are
implicated in the pathways targeted by methamphetamine. These
structures include the fasciculus retroflexus and ventral tegmental
areas involved in self-control, the nucleus accumbens or “pleasure
Boris Sokolov et al., Methamphetamine Causes Alteration in the MAP Kinase-related Pathways in
the Brains of Mice that Display Increased Aggression, 31 NEUROPSYCHOPHARMACOLOGY 956-66
Darke, supra note 9.
Cartier, supra note 4.
Rebecca McKetin et al., The Prevalence of Psychotic Symptoms Among Methamphetamine Users,
101 ADDICTION 1473-8 (2006).
Ira Sommers et al., Methamphetamine Use Among Young Adults: Health and Social Consequences,
31 ADDICT BEHAV. 1469 – 76 (2006).
David Smith, Drugs: Methamphetamine Abuse, Violence and Appropriate Treatment, 31 VAL. U.
L. REV. 661-7 (1997).
Cartier, supra note 4.

6 WULR  Vol VII, Issue III  Spring 2014

center,” the striatum involved in motivation and motor capabilities,
the amygdala involved in emotional regulation, the frontal lobe
responsible for judgment, and the hippocampus, the structure
utilized in memory.
Methamphetamine addiction has effects on
neurotransmitter receptors, which are reversible with detoxification
processes. Such an addiction also affects the reward circuit, causing
permanent changes that contribute to relapse in addicted
23, 24
The damage to the neurotransmission regions in the
emotional centers of the brain can contribute to the increased
violence seen in users, along with the symptoms of anxiety,
depression, rage and aggression.

Chronic use is associated with brain damage to the cells that
involve dopamine and serotonin
as well as “cerebral metabolic
Using magnetic resonance imaging (MRI),
Thompson et al. were able to construct patterns of abnormalities in
a study of the brains of methamphetamine users compared with
healthy controls. Their results showed “a broad cingulate and limbic
deficit in gray-matter concentration…prominently in the right
hemisphere…7.8% smaller hippocampal volumes than control
subjects…and significant white-matter hypertrophy.” These deficits
were also correlated with memory performance after testing.

Another related study by Volkow et al. suggests that
substance addiction is probably a result of neurobiological changes
occurring from chronic abuse, including changes to the brain’s
dopaminergic system. Drugs including methamphetamine have been
proven to alter the expression of genes and proteins involved in the
neurotransmission system.
Adaptations of these neural pathways
are involved in the development of the addiction and play a role in
relapse of addicted individuals during attempted sobriety. An
Holley, supra note 13.
http://www.drugabuse.gov/publications/drugfacts/methamphetamine (revised January
2014) [hereinafter NIDA] (last visited May 13, 2014).
Paul Thomson et al., Structural Abnormalities in the Brains of Human Subjects Who Use
Methamphetamine, 24 J. NEUROSCIENCE 6031-3 (2004).
Nora Volkow et al., Higher Cortical and Lower Subcortical Metabolism in Detoxified
Methamphetamine Abusers, 158 AM. J. PSYCHIATRY 383-86 (2001).

Bakowski 7

individual’s vulnerability to addiction is determined by a
combination of genetic and environmental factors, including
socioeconomic status, support status, drug availability, and stress

Beyond its highly addictive nature, methamphetamine is
particularly dangerous due to its production of psychosis in the user.
The ability of psychostimulants such as methamphetamine to
induce psychosis is one factor that separates this class from other
controlled substances.
The cell death in the reward and self-
control circuits of the brain associated with methamphetamine
abuse can leave the user with permanent damage to the frontal lobe,
caudate nucleus, and hippocampus – brain areas involved in the
development of schizophrenia and dementia.
Psychosis can occur
after chronic methamphetamine use or even after one dose.

Symptoms of methamphetamine-induced psychosis involve
delusions and visual and auditory hallucinations similar to paranoid
as well as increased agitation and “seemingly
irrational hostile behaviour.”
The experience of these delusions
can lead users to become violent to those around them.
symptoms can last between a number of hours and days, and larger
doses tend to produce more intense hallucinations and persecutory
Users are at an increased risk of experiencing psychosis
if they already suffer from schizophrenia or other manic disorders;
drugs can precipitate or worsen psychotic episodes in such
The McKetin study demonstrates that thirty-one
percent of dependent methamphetamine users experienced
psychotic symptoms, while longer periods of use exacerbated these
Results from a study by Fasihpour et al. found high
prevalence of psychotic symptoms after methamphetamine use,
Darke, supra note 9.
Holley, supra note 13.
Fabian, supra note 2.
Darke, supra note 9.
NIDA, supra note 24.
Holley, supra note 13.
Fabian, supra note 2.
Darke, supra note 9.
Mcketin, supra note 18.
Fabian, supra note 2.

8 WULR  Vol VII, Issue III  Spring 2014

including persecutory delusions, auditory and visual hallucinations,
reference delusions, and delusions of grandiosity or jealousy.


The Diagnostic and Statistical Manual of Mental
Disorders (DSM-V) classifies methamphetamine use,
intoxication, and withdrawal as stimulant-related disorders.

Stimulant use disorder combines the previous DSM-IV
categories of substance abuse and substance dependence into a
single diagnosis. Stimulant use is measured on a continuum
from mild to severe, based on the number of presenting
symptoms from the diagnostic criteria. These criteria include
persistent desire or unsuccessful efforts to control stimulant
use, continued use despite recurrent social or interpersonal
problems caused by the stimulant, and recurrent use in
situations in which it is physically hazardous, among others.
The presence of two to three symptoms indicates a mild
disorder, four to five symptoms a moderate disorder, and six or
more symptoms a severe disorder. DSM-V notes that violent
behavior as well as intense anxiety and paranoid ideation and
psychotic episodes are “common when high doses are smoked,
ingested, or administered intravenously.”

DSM-V also includes the diagnosis “stimulant-induced
psychotic disorder.”
Substance-induced psychotic disorder is
identified by the presence of hallucinations or delusions
occurring within one month of the substance use or
withdrawal and not better explained by psychotic disorder.

These symptoms are representative of the acute substance
induced psychotic states experienced by many
methamphetamine users.
Bahareh Fasihpour, Clinical Features of Inpatients with Methamphetamine-induced Psychosis, J
MENT HEALTH (2013) Epub ahead of print [PMID: 23323572].
DSM-V, supra note 10.

Bakowski 9


While methamphetamine addicts may be brought to trial for
any criminal acts committed under the influence, precedent set
under Robinson v. California mandates that drug addicts cannot
be legally punished for their status of being an addict.
primary legal criteria of addiction are “behavioral, namely,
persistent drug seeking and using, especially compulsively, in
the face of negative consequences.”
Justice Stewart stated in
Robinson, “It is unlikely that any State at this moment in history
would attempt to make it a criminal offense for a person to be
mentally ill, or a leper, or to be afflicted with a venereal
disease… We cannot but consider the statute before us as of
the same category.”
Counsel recognized that narcotic
addiction is an illness.
Justice Douglas held that under the
Eighth Amendment, “it is ‘cruel and unusual’ punishment… to
treat as a criminal a person who is a drug addict.”
Justices further agreed that it was unconstitutional to consider
drug addiction a criminal offense—the California statute in
question was one of punishment (not treatment) and was
based on the status of being addicted (not the purchasing or
selling of a substance). This was clarified in the decision of
Powell v. Texas.
Powell attempted to apply the Robinson
decision to his arrest for public drunkenness, arguing that he
was being prosecuted for a symptom of his disease, his
addiction to alcohol. However, the court ruled that punishing
a defendant for his or her conduct related to a drug or alcoholic
Robinson v. California, 370 U.S. 660 (1962).
Stephen Morse, Legal Regulation of Addictive Substances and Addiction in ADDICTION
261-276 (A. Carter, W. Hall & J. Illes eds., 2012).
Robinson, supra note 47 at 666.
Id. at 667.
Id. at 764.
Powell v. Texas, 392 U.S. 514 (1968).

10 WULR  Vol VII, Issue III  Spring 2014

substance, including possession or use, was consistent with
the Robinson decision.

In United States v. Moore, the defendant attempted to
utilize an “addiction defense” for his arrest for heroin
Moore introduced psychiatric testimony, arguing
that because of his heroin addiction he lacked capacity to
conform his behavior to the standards of law. Nonetheless, his
attempt was unsuccessful and his case was rejected. The
majority of the judges agreed that even heroin addicts have
some degree of behavioral control. Because criminal
responsibility involves an act and a mental state, the majority
found that these criteria were fulfilled by Moore’s offense of
knowingly possessing heroin.
Judge Wilkey, in strong
support of this decision, asserted that addiction itself is the
result of voluntary action and therefore cannot be considered
to fulfill the same standards of the insanity defense.

Beyond addiction, methamphetamine induced
psychosis can also be considered as a basis for an insanity
defense. The efficacy of such a claim may depend on the
wording of statutes for the insanity defense in the individual
Claims of insanity typically involve terms such
as “mental defect” or “mental disease.” Many substance
disorders are defined in DSM-V, however the courts have
varied in their considerations of substance disorders as
qualifications for an insanity defense. A defendant’s insanity
defense could argue that the offender was unable to
understand the wrongful nature of his or her action,
addressing the cognitive criterion, or that the offender was
unable to control or conform his or her actions to legal norms
due to the effects of the psychosis, addressing the volitional
Id. at 530.
United States v. Moore, 486 F.2d 1139, 1140 (1973).
Id. at 127.
Id. at 1196.
Fabian, supra note 2.

Bakowski 11

criterion. However, the debate over initial responsibility of
consumption arises again in such circumstances.
Over time, federal and state courts have typically ruled
out the insanity defense when voluntary intoxication is a
contributing factor.
For example, the state of Connecticut
posits that the insanity defense is only valid if the mental
disease or defect necessary for the defense was not caused by
voluntary substance use.
In response to crimes committed by
drug-addicted offenders, some jurisdictions have introduced
the term “settled insanity.”
Settled insanity refers to a state
in which substance use triggers exacerbated psychotic
symptoms for a prolonged period of time that become
“independent of acute intoxication” and are not a temporary
effect of the substance use.

However, there are inconsistencies in the application
and acceptance of settled insanity. In California for instance,
People v. Kelly presented a crime in which the defendant, a drug
addict who was accused of murdering his mother, was initially
found sane at the time of the crime even though he asserted he
was temporarily insane due to the effects of substance use.

The court first denied this defense, as the insanity was due to
voluntary intoxication and did not provide proof of permanent
On appeal, the court found that temporary psychosis
was not limited merely to nonpermanent periods of
intoxication. Instead, it was immaterial that the insanity was
induced by voluntary intoxication if it was of a settled
If the defendant passed the California M'Naghten
test – which determines whether or not a person is incapable
of knowing or understanding the nature and quality of his act
Jeff Feix, Intoxication and Settled Insanity: A Finding of Not Guilty by Reason of Insanity, 35 J AM
ACAD PSYCHIATRY LAW, 172-82 (2007).
Fabian, supra note 2.
Feix, supra note 58.
People v. Kelly, 10 Cal. 3d 565 (1973).
Id. at 882.

12 WULR  Vol VII, Issue III  Spring 2014

or incapable of distinguishing right from wrong in relation to
that act - a settled insanity defense would be considered
Yet, in California’s People v. Skinner, Skinner
appealed his second degree murder conviction, claiming that
he experienced a “toxic psychosis” at the time of the murder
due to cocaine use and was experiencing delusions.
agreed that his delusional state was one of an “insane” person
and that the effects of cocaine can last two to five days after
the drug itself leaves the system.
Despite this testimony, the
court found that the evidence suggested he was able to
distinguish right from wrong and understand his action. The
court also found that even if the conditions were applicable to
insanity, his psychosis was brought about by the voluntary
ingestion of drugs and thus not a case of “settled” insanity.

This highlights once again the importance of the responsibility
debate in legal cases regarding the voluntary consumption of
In Bieber v. People, the appellant filed for a mishearing
after a Colorado court denied the request for jury instruction
on the settled insanity defense.
Although the defense claimed
Bieber suffered from an “amphetamine delusional disorder” at
the time of the murder, his settled insanity was the result of
the amphetamine use and would be regarded as “self-induced
The Colorado court defined intoxication as “a
disturbance of mental or physical capacities resulting from the
introduction of any substance into the body.”
In this case, the
court made the distinction that settled insanity was not a valid
defense when the insanity was a direct result of the substance
voluntarily consumed.
Id. at 578.
People v. Skinner, 185 Cal. App. 3d 1050 (1986).
Id. at 1063.
Id. at 1059.
Bieber v. People, 856 P.2d 811 (1993).
Id. at 818.
Id. at 816.

Bakowski 13

Methamphetamine induced psychosis can also become
relevant in cases where the “legal issues of voluntary
intoxication and both diminished capacity and criminal
responsibility” are raised.
Proof of diminished capacity – an
impaired mental condition that can reduce the criminal
responsibility of a defendant – can lead to a reduced sentence
for an offender found guilty.

In the case of State v. Bush, the judge

Voluntary drunkenness is generally never an excuse for
a crime, but where a defendant is charged with murder,
and it appears that the defendant was too drunk to be
capable of deliberating and premeditating, in that
instant intoxication may reduce murder in the first
degree to murder in the second degree, as long as the
specific intent did not antedate the intoxication.

A methamphetamine-induced psychosis can impair the
processes of premeditation, planning, and design inherent in
first-degree murder and could act as the cause of such
diminished capacity, alleviating some of the criminal
responsibility. In such a case, diminished capacity may be used
to bring a murder case to voluntary manslaughter, for example,
if the offender’s psychosis led him or her to believe they were
in imminent danger.
This is not an unlikely case, as
persecutory delusions are a common feature reported during
methamphetamine psychosis. However, this type of argument
for methamphetamine users would not act as a complete
insanity defense, but rather as a partial defense to reduce a
In the voluntary intoxication debate, the “jury” is still
out regarding addiction and substance-induced psychosis as
mitigating factors for sentencing. While these arguments for
Fabian, supra note 2, at 452.
State v. Bush, 191 W. Va. 8 (1994).
Fabian, supra note 2.

14 WULR  Vol VII, Issue III  Spring 2014

excusing and mitigating conditions are under discussion, the
opposite arguments can be made for such situations to be
presented as aggravating, depending on how much
responsibility is placed on the individual for both consuming
the drug and performing the act. A study by Barnett, Brodsky,
and Price surveyed a group of undergraduate students, seeking
their opinions on what they would find mitigating or
aggravating factors if they were jurors in a criminal case.
Mental retardation, mental illness, lack of criminal record,
head injuries, schizophrenia, and history of childhood physical
or sexual abuse were on average considered mitigating factors,
whereas alcohol and drug dependence and intoxication were
considered aggravating.
Some, such as Stephen Morse, reject
entirely the notion of the contribution of effects of substance
addiction or abuse to legal treatment. Morse argues that the
discovery of genetic, physical, or psychosocial causes of an
action raise no new issues surrounding criminal responsibility
and that such a discovery does not create an excuse or
mitigating factor for criminal conduct.


Once convicted of a crime, methamphetamine users
and addicts enter the criminal justice system. According to
2002 reports from the Bureau of Justice, stimulants such as
methamphetamine were used in the month before the offense
in 11.4% of cases and at the time of the offense in 5.2% of
More generally, the effects of drug abuse and addiction
have played a role in the offenders’ actions. A 2002 survey of
men and women in local jails reported that sixty-eight percent
of local jail inmates were found to be dependent on or abusing
Michelle Barnett et al., Differential Impact of Mitigating Evidence in Capital Case Sentencing. 7 J
Stephen Morse, Addiction, Genetics and Criminal Responsibility, 69 Law & Contemp.
Probs.165 (2006).
Drug and Crime Facts, BUREAU OF JUSTICE STATISTICS, http://bjs.gov/content/dcf/duc.cfm
(last visited May 16, 2014).

Bakowski 15

drugs or alcohol.
The Bureau of Justice also reported that in
2004, seventeen percent of state prisoners and eighteen
percent of federal inmates claimed to have committed their
current offense to obtain money for drugs.
The Uniform
Crime Reporting Program of the Federal Bureau of
Investigation also claimed that in 2007, 3.9% of that year’s
homicides included narcotics-related circumstances.

Reports have also demonstrated high rates of comorbid
mental disorders in drug users in the criminal justice system.
Volkow et al. explain that this high comorbidity “probably
reflect[s] overlapping environmental, genetic and
neurobiological factors that influence drug abuse and mental
McLellan et al. support this hypothesis, citing
evidence from twin studies that indicate both genetic
heritability and “personal choice and environmental factors” as
elements of contribution to dependence.
Within the criminal
justice system, the National Institute of Health reports that
co-occurring substance use and other mental disorders are
common: about forty-five percent of inmates in local and state
prisons have a dual diagnosis of substance abuse and another
In addition, about seventy-five percent of inmates
with a mental illness also meet criteria for substance abuse.

Compared to fifty-three percent of inmates without a mental
health problem, seventy-six percent of inmates who had a
mental health problem were dependent on or abused alcohol
Nora Volkow & Ting-Kai Li, Drug Addiction: The Neurobiology Of Behavior Gone Awry, 5 NAT.
Thomas McLellan et al., Drug Dependence, A Chronic Medical Illness Implications forTreatment,
Insurance, and Outcomes Evaluation, 284 J AMA. 1689 (2000).
Addiction and the Criminal Justice System, NIH REPORT,
http://report.nih.gov/nihfactsheets/ViewFactSheet.aspx?csid=22 (last visited May 16,

16 WULR  Vol VII, Issue III  Spring 2014

or drugs.
In fact, over one-third of state prisoners who had a
mental health problem said they had used drugs at the time of
the offense, the highest rate of substance dependence or abuse
among all inmates.

As methamphetamine users experience severe
symptoms, including prolonged and permanent brain damage
and deficits, and often have comorbid mental disorders, many
professionals advocate for treatment options for all users,
including those who are convicted of crimes. However, there
has been much debate over how this treatment should be
administered and whether it should be voluntary or
involuntary. Recent research has been conducted to assist
legal professionals in determining the appropriate routes for
treatment of methamphetamine addicts who are admitted into
the criminal justice system. The efficacy of treatment for
substance addiction has been heavily studied in the medical
and scientific communities. An analysis by McLellan et al.
found that over 100 randomized controlled trials of addiction
treatments, most showed “significant reductions in drug use,
improved personal health, and reduced social pathology but
not cure.”
Efficacious treatment also involves maintenance
services, such as methadone regulation or group management

Additionally, researchers have focused on the effects of
treatment on criminal activity and behavior. The PREMOS
study conducted by Soyka et al. addressed the long-term
impact of opioid maintenance therapy on convictions and
criminal behavior.
The authors reported convictions and
criminal behavior at baseline and after six years of treatment
Drug and Crime Facts, supra note 77.
Mclellan et al., supra note 82.
Michael Soyka et al., Criminal Behavior in Opioid-Dependent Patients Before and During
Maintenance Therapy: 6-year Follow-Up of a Nationally Representative Cohort Sample, 57 J. OF

Bakowski 17

and maintenance. The results indicate that while 84.5% had
been charged or convicted at any time before baseline
assessment due to drug-related offenses, acquisitive crimes, or
acts of violence, the charges and convictions had declined to
17.9% for the last year prior to follow-up.
A significant
decrease in “legal problems” was also reported. Overall, the
data showed a significant reduction in criminal behavior in
these substance dependent patients after their long-term
treatment and maintenance.

The California Drug and Alcohol Treatment
Assessment outcomes study showed dramatic effects of
treatment for stimulant abusers, for which treatment had been
thought to be less efficacious than for alcohol abuse.

Specifically for methamphetamine abusers, the study utilized
methadone programs, including eighteen outpatient
methadone maintenance programs and nineteen detoxification
programs. Significant improvement was noted in the level of
criminal activity, including declines in use, a one-third
reduction in hospitalizations and significant improvement in
other health indicators.”
Overall, significant decreases were
demonstrated in drug sales (68.3%), performing sexual acts for
drugs (53.3%), breaking into houses and vehicles (61.5%), and
violent crimes with the use of a weapon or physical force

Considered separately from general efficacy of
treatment for substance addiction is the efficacy of treatment
for criminal offenders. The dilemma regarding treatment for
addicted inmates is not a recent matter, although it has gained
great attention in recent decades. According to the National
Institutes of Health, in 1939, the Assistant Surgeon General
California Drug and Alcohol Treatment Assessment (CALDATA), 1991-1993 Methodology Report,
California Department of Alcohol and Drug Programs, http://sociology-
data.sju.edu/2295/2295mr.pdf (last visited May 18, 2014).

18 WULR  Vol VII, Issue III  Spring 2014

commented on the country’s state of addiction treatment,
claiming that addicts were,

At first sent to prison, where their real needs were
neglected. They were treated there as prisoners
deserving punishment rather than as patients who
needed treatment. . . .The result was, too often, prompt
relapse on discharge, with a vicious circle of other
violations and prison confinements that continued the
ruin started by narcotics.

The adult population in the criminal justice system has
skyrocketed, due largely to increased prosecution of drug-
related crimes and drug-addicts.

Studies have indicated that successful treatment of
substance abusing and addicted inmates relies on various
factors. In a study of incarcerated males with substance
dependence, found that, “prison-initiated” methadone
treatment was effective.
Furthermore, in a study comparing
“counseling only” and “counseling + methadone” conditions,
the latter condition yielded more days in treatment and a
significantly lower rate of positive testing for opioid use at a
twelve month follow up.
Data from drug courts suggests that
coerced treatment is successful when the threat of
incarceration is added. Inpatient treatment, follow-up, group
programs, case management, and random drug testing have
been demonstrated as methods that achieve treatment success
and increase the accountability of offenders.
based outpatient treatment has also been proven an effective
treatment plan for offenders; however, completion rates are
Addiction and the Criminal Justice System, supra note 83.
Timothy Kinlock et al., A Randomized Clinical Trial of Methadone Maintenance for Prisoners:
Results at 12 Months Postrelease, 37 J SUBST ABUSE TREAT. 277-85 (2009).
Holley, supra note 13.

Bakowski 19

A study of 160 offenders who were known substance
abusers by hypothesized that mandating offenders to such
outpatient treatment would increase completion rates
compared with those who enter voluntarily. The authors
found that those with court-ordered treatment demonstrated
less motivation at the onset of treatment but were ten times
more likely to complete the program compared to those who
entered voluntarily.

This research has already been put into practice,
influencing state decisions on involuntary treatment for
offenders, abusers, and addicts. Current legal statutes and
practices vary widely. Some states have no statutes at all,
while thirty-eight states permit some form of involuntary
treatment in the absence of criminal conduct.
The courts
consider dangerousness of the individual, disability,
diminished decision-making capacity, incapability of
managing personal affairs, and addiction status when making
treatment related decisions.
A 2012 Ohio statute - part of
Senate Bill 117 - allows courts to agree to a petition or order an
offender to involuntary treatment if the offender is suffering
from drug or alcohol abuse.
The court decision requires a
mental health professional’s recommendation.
This Ohio
law requires family members to sign an agreement up front
that they will pay the cost of the treatment and give the court
a deposit for half of the amount. This statute has thus far only
Donna Coviello et al., Does Mandating Offenders to Treatment Improve Completion Rates? 44 J
Involuntary Commitment for Substance Abuse Comes to Ohio, Ohio Association of County
Behavioral Health Authorities (2012) http://oacbha.org/wp-
Rachel Dissell, New Law Allows Families to Force Addicts into Treatment, CLEVELAND.COM
NORTHEAST OHIO, July 08, 2012,
(last visited May 18, 2014).

20 WULR  Vol VII, Issue III  Spring 2014

been used once, in Cuyahoga County. The case involved a
woman with a history of severe alcohol abuse who was forced
into a treatment program. Kentucky has a similar law, entitled
“Casey’s Law.” Casey’s Law is almost identical to the Ohio
statute except that in Kentucky, the individual is not obligated
to any up-front payment and can utilize insurance to pay or
locate a free treatment program.


Despite the copious amounts of research into
methamphetamine’s physical and behavioral effects as well as
the presence of some legal precedent, debate still arises
regarding the responsibility of substance abusers who commit
criminal acts. When addressing the actions of addicted
individuals, a paradox is presented: If drugs cause harm, can
we blame the user? But if individual users are responsible for
their conduct, can we blame the drugs?
The debates
surrounding this paradox are extensive, largely unresolved,
and have serious implications for the treatment and
rehabilitation prospects of users as well as for future legal
The issue of responsibility is of primary importance
when considering possible future legal cases involving
offenders battling substance abuse or addiction. Part of this
problem arises from the debate over whether to consider
addiction a disease or a matter of personal responsibility. Brain
imaging and neurological research has introduced a new
dimension to the debate surrounding the responsibility of
offenders. Brain scans produce real time images of the brain
and can demonstrate deficits compared with normal controls.
Research suggests that although initial drug experimentation
Donald Dripps, Recreational Drug Regulation: A Plea for Responsibility, UTAH L. REV. 117-52

Bakowski 21

and recreational use might be volitional, brain-imaging
research shows “this control is markedly disrupted”
addiction develops.
Stephen Morse has written extensively on the nature of
responsibility of drug users and addicted offenders. He
suggests that all behavior has neurological causes, and one
would expect brain differences between any two groups that
exhibit different behavior.
Put simply, every difference in
behavior can potentially be related to brain differences
between individuals. Therefore, brain differences do not
necessarily excuse the actions of those with such differences.
If this were not the case, causality would be oversimplified and
the tenet of personal responsibility inherent in the foundation
of the legal system would be diminished.
Causality is indeed an important facet of the argument
to consider. There appears to be a relationship between drug
use and criminal action, but can a causal link be established?
Theoretical models have been established to present two
causal pathways that explain the correlation between drug use
and criminal behavior. One is labeled the
“psychopharmocological link,” which associates drug
intoxication with crime.
This model holds that crimes
committed are a direct result of the biological, chemical, and
psychological changes occurring in the user. There is some
evidence for this theory, but it is ultimately limited by the fact
that several drugs correlated with criminal behavior of violent
types do not appear to increase violent behavior in
experimental drug trials. A second model is called the
“economic compulsive model,” which suggests that users
commit crimes to finance their addiction.
There is evidence
Volkow and Li, supra note 81.
Morse, supra note 76.
Lynn Casavant & Chantal Collin, Illegal Drug Use and Crime: A Complex Relationship,
http://www.parl.gc.ca/Content/SEN/Committee/371/ille/library/collin-e.htm (last visited
May 18, 2014).

22 WULR  Vol VII, Issue III  Spring 2014

to support this claim as well. However, this model cannot
explain all criminal acts committed under the influence of
substances, as not all offenders committed their crime to
obtain funding for drugs. It is likely that if a causal
relationship can be established between drug use and criminal
behavior, it will involve elements of both of these models.
One objection to the responsibility argument is that it
presents an all or nothing approach. If we assume the offender
bears none of the responsibility, are we revoking their personal
autonomy? Alternatively, if we assume the person has full
responsibility, are we penalizing them for something not
completely under their control?
It is possible to sympathize
with both sides of this argument and come to a conclusion of
partial responsibility, raising the question of where to draw
the line of which actions addicts are responsible for and which
they are not. Are addicts responsible for the initial purchase
and consumption of substances but fully or partially absolved
for any actions occurring while under the influence or after the
addiction has been established? Such arguments present the
paradoxes inherent in legal consideration of addiction, and a
“slippery slope” for those who choose one side or another.
This question of responsibility is exemplified in the
proceedings of Powell v. Texas.
The Court considered the fact
that there are no available tools to adequately measure
whether or not impairment was volitional (whether or not a
defendant was “compelled” by his or her addictions to use
drugs or could just as reasonably have chosen not to commit
the criminal act). The Court also had to consider the effects of
such a decision on the relief of responsibility for criminal
addicts. How far reaching is the coverage of conduct that is
symptomatic of volitional impairment caused by a disorder?
Another argument against removing some legal
responsibility from drug users and addicts involves the
“slippery slope” approach. If we take brain imaging and
Richard Bonnie, Responsibility for Addiction, 30 J. AM. ACAD. PSYCHIATRY L. 405 (2002).
Powell, supra note 52.

Bakowski 23

scientific evidence of neurological deficits and abnormalities in
drug addicts as substantiation for diminished responsibility,
what will happen if scientific evidence arises for other
addictions? Research on behavioral “addictions” to sexual acts,
gambling, and even television or video games is being
conducted with researchers seeking evidence of physiological
and psychological changes, deficits, and abnormalities. If a
large enough body of strong evidence is collected to show that
these behaviors too are correlated with brain abnormalities,
will these types of addicted offenders be given the same
considerations as offenders addicted to drugs and alcohol?
Stimulants such as methamphetamine present another
dilemma for those engaged in the debate on criminal
responsibility. As illustrated previously, the psychosis
experienced by many methamphetamine users and addicts
involves severe hallucinations and delusions similar to those
experienced by schizophrenic patients and contributes to the
diagnosis of the DSM-IV classified condition of “substance-
induced psychotic disorder.”
As psychological diagnoses
have gained acceptance and validity over the years, this
classification system has begun to play a large role in the legal
system. The “guilty but mentally ill” plea or verdict relies on
the experience of forensic psychologists and psychiatrists, as
well as the classification system defined by DSM. For states
that accept “guilty but mentally ill,” substance-induced
psychotic disorder poses a unique situation. While the
symptoms involve uncontrollable hallucinations and delusions
that may impair the user’s ability to think logically, reason,
plan, and understand right from wrong in that moment, the
symptoms have been brought on by a substance taken by the
user. Thus, again we question whether addicted individuals
perform the act of using substances voluntarily, whether the
diminished capacity produced by the drug falls under the
DSM-V, supra note 10.

24 WULR  Vol VII, Issue III  Spring 2014

responsibility of the user, and whether causality can be firmly
One reason for the variability in the state statutes and
practices regarding involuntary treatment comes from the
implications of these debates. If states let the status of
addiction mitigate a sentence or act as proof of diminished
capacity, does this mean they have the power to require
addicts receive treatment? Additionally, if it is the obligation
of the courts to determine whether the danger is “pressing,”
what are appropriate measures for doing so? Is such mandated
treatment only appropriate when the addict has also been
found guilty of a criminal offense? Does this offense have to be
substance-induced or related? Such decisions carry heavy
ethical implications. For example, it has been argued that
using probation as a tool for treatment of addicts and for
extending abstinence appears ethically permissible because of
its intention – “to help the addict achieve personal
responsibility for managing the condition.”

While it is unlikely that these debates will be easily
settled, even with the advent of new technologies and brain
imaging techniques, it is becoming more essential to consider
their place in the legal and criminal justice system. The
preceding evidence suggests that many factors are correlated
with drug use including violent and criminal acts. If we are to
continue to pursue justice through the legal system, legal and
medical professionals will need to come together to address
these ethical, clinical, and legal issues surrounding
methamphetamine use and abuse in our society and among
criminal offenders.

Bonnie, supra note 112.

Legal Hypocrisy and Extravagant
Political Theatre:
Sovereign Immunity and its Effects on
Contemporary American Politics

By Habib Olapade*

When the founders revised their states’ legal codes, in the midst of the
revolution, several of them were content to retain the English common
law tradition as the foundation of their new republic’s historically novel
“empire of laws.” As conservative revolutionaries, who for the most part
did not want to upset the prevailing socio-economic order of their
provinces this cross-application was not unexpected. However, if one
believes that a society’s legal code should be a reflection of its beliefs or
social mores, then this move is problematic. The British and American
governmental systems were based on fundamentally dissimilar notions of
the relationship between the governors and governed and how this
relationship should display itself in judicial proceedings.

While British law dictated that the king or “sovereign” was not bound to
answer to law suits because he was the living embodiment of the national
will, the Americans had just finished fighting a seven year war refuting
those notions so that the people proper could be sovereign. Yet, as the
ratification debates of 1787-1788 demonstrated, the founders’ notions of
the relationship between the state and citizen were far from uniform. One
can track the progress of this disagreement throughout our nation’s
history by looking at how courts and politicians viewed this relationship
and this aspect is most salient when one turns their attention to the legal
and political evolution of the eleventh amendment’s sovereign immunity
clause. The draft attached below is an informative, terse, but by no means
exhaustive discussion of sovereign immunity’s history in American law
26 WULR  Vol VII, Issue III  Spring 2014

and its contemporary impact on a wide variety of pertinent issues, from
government mandated universal healthcare to the regulation of Native
American economic activities. It is my sincere hope that this unique
rendition of our judicial system will not only change the way the reader
looks at the federal court system but force us to ask more pressing
questions that challenge our judicial system’s stereotypes.

*Olapade is a freshman majoring in History and the Law at Stanford
University. Currently, he serves as a legislative intern for Senator Ted
Cruz and is an active member of the Stanford Debate Society where he
compete on the American Parliamentary Debate Circuit during weekends.

Table of Contents


The division of political power in the United States is
radically different from the division of political power in other
In addition to having legislative, executive, and judicial
branches, the United States uses a federal system of government in
which the national and state governments simultaneously govern
the people and represent them. However, what happens when
states transgress the limits of their delegated authority and start to
infringe on the federal rights of the very people from whom they
derive their authority? How would people seek redress for an
This is best explained with an example: in England there is a constitution that describes
how laws are passed but the British constitution does not manifest itself as a single
written document which serves as fundamental law. In England what is legal trumps
what is Constitutional because Parliament is the body charged with evaluating the
constitutionality of legislation and can change the English constitution by simply passing
a statue. However, in the United States what is Constitutional trumps what is legal
because the Supreme Court prioritizes the Constitution over other statues when the two

Olapade 27

alleged wrongdoing? At first, the obvious answer appears to be to
sue the state that committed the alleged infringement. Yet, insofar
as the people derive most of their rights from statues passed by
legislatures, how can an individual sue the legislatures that granted
them most of their rights, in courts that were established by those
Ironically, the popular support that gives the
government legitimacy in the minds of most can become a means by
which it is able to avoid the rule of law. This concept of sovereign
immunity is a judicial doctrine that prevents the government or its
political subdivisions, departments, and agencies (but not officials)
from being sued without its consent. The legal doctrine of
sovereign immunity was enshrined in the constitution in the
eleventh amendment which reads that: the Judicial power of the
United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any
Foreign State. In the past twenty years, sovereign immunity has
been used as a political tool by state governors and interest groups
to justify positions on issues as diverse as entitlement spending,
states’ rights, and marriage equality. By analyzing landmark
decisions in the past twenty years of Eleventh amendment case law,
this paper argues that the judiciary’s seemingly erroneous
construction of the sovereign immunity clause is a beneficial and
democratic adaptation of the doctrine to liberal and conservative
ideals of federalism within the current American political climate.
The average American may ask why it is that the
government is able to avoid legal sanction, especially when the
government was established to protect the people’s rights and
liberties. However, this seemingly intractable question assumes
that the government is predicated on the rule of law and not the
rule of men. One must remember that monarchy, not democracy,
prevailed as the leading form of government for the vast majority of
human history. This historical context is important for

A positive act of legislation grants a certain class of citizens the right to pursue a certain
action. For instance, the Patient Protection and Affordable Care Act grants citizens the
right to enlist in health care exchanges created by the states. The reader should note that
contrary to popular opinion, this right is positive because it gives citizens the ability to
do something. Negative rights are things that the government cannot restrict or should
refrain from regulating such as speech, the right to a fair trial, and religion.

28 WULR  Vol VII, Issue III  Spring 2014

understanding English and American law because our legal system
relies on precedent. Moreover, this same historical perspective is
critically important for understanding sovereign immunity. The
notion that a state can recuse itself from legal accountability seems
contradictory when we view this assertion from our contemporary
context. However, sovereign immunity becomes more
understandable when one considers the theory of divine right that
European kings used to legitimize their rule.
The history of authoritative political figures using
sovereign immunity for partisan purposes can be traced back to
seventeenth century Europe. In early modern Britain, monarchs like
Charles I and James II claimed the right to rule on the basis that
they were the living representation of God and, consequently, that
their policies were a direct manifestation of God’s will. This policy
made formal legal redress against the crown difficult because
seventeenth century ecclesiastical theory prevented a commoner
from suing a p prophet of God Hence, the crown’s religious use of
sovereign immunity acted as an overt political tool that increased
the king’s legitimacy and served to disenfranchise his opposition.
Yet, Dr. Clyde Jacobs is careful to qualify this assertion when he
writes that kings, nominally, were subject to punishment via the
rule of law but only when that punishment was administered
directly by God himself. “Sovereign immunity in English law was
premised upon the nature of kingship. And as the fountain of law
and justice the ruler, though under the law, was not subject
without his consent to the process of courts that were his creatures
and instruments.”
In essence, Jacobs argues that the seventeenth
century theory of sovereign immunity was not mutually exclusive
with the rule of law but often led to political outcomes that
suggested that it was.
However, several liberal jurists, such as Former Associate
Supreme Court Justice John Paul Stevens, vigorously question the
logic of applying outdated legal doctrines to societies that are based
on fundamentally different principles, solely for political purposes.
Justice Stevens persuasively argues in his memoir Five Chiefs, that
“These features of English legal ancestry are particularly unsuitable
IMMUNITY (Greenwood Pub Grp. 1972).

Olapade 29

for incorporation into the law of a democratic nation such as the
United States.”
Stevens feels that if a society’s legal code is a
reflection of its social mores, then it is intellectually and
philosophically incoherent to continue to apply the laws of a past
society to a living one, regardless of the rich history that a legal
concept may have. Stevens also insists that the doctrine of
sovereign immunity is particularly superfluous when its
application leads to the skewed political outcomes that Clyde
Jacobs warns about.
In modern societies where religious institutions are
separate from government and citizens are at least believed to be
equal to one another in terms of the rights they possess, what use is
there for sovereign immunity? The government is no longer
centralized with a single person professing the assent of God.
Society has collectively assembled to uphold the rule of law rather
than the arbitrary and capricious rule of men. Thus, if sovereign
immunity is no longer compatible with American democracy,
should it be used as a mechanism to advance political purposes
within American government? Even if sovereign immunity is a
useful political tool, do its values and assumptions contradict those
of American democracy?
This issue is too nuanced to command a simple yes or no
answer. In fact, sovereign immunity has retained a wide following
in contemporary politics because the doctrine has allowed state
governors, regardless of party, to avoid implementing national
programs that they do not agree with. For example, a major part of
the Republican Party’s platform argues that more autonomy should
be given to state and local governments. Republicans, on balance,
dislike government expansion and resent the notion that states
must comply with federal measures that may force them to increase
local spending or raise their state taxes. Accordingly, Republican
politicians have appointed more conservative justices that have
expressed a similar disillusionment with the expansion of federal
power at the expense of the states. As a result, these same
conservative justices in recent years have attempted to promote

30 WULR  Vol VII, Issue III  Spring 2014

states’ rights by changing their interpretation of the Eleventh
amendment’s sovereign immunity clause.
Sovereign immunity was integrated into American law
solely as a technicality to deny British creditors the right to sue
insolvent states after the American Revolution. Over the 19
centuries, sovereign immunity was modified to prevent
citizens from enforcing contracts against states and to allow
citizens to sue state officials.
Since the mid-1990s, however,
conservative justices have been claiming that sovereign immunity
prevents citizens from claiming federal statutory rights by suing
their states. This new interpretation of sovereign immunity has
allowed Republican governors to avoid expanding entitlement
programs such as Medicaid and food stamps. Conversely, this
concept has allowed Democratic governors to avoid federal
constriction of abortion and same-sex marriage in their states.
However, this issue came to a breaking point in 1995 when the
Supreme Court decided Seminole Tribe of Florida v. Florida.
In 1988 Congress, pursuant to its power under the
commerce clause of the United States Constitution passed the
Indian Regulatory Gaming Act, which allowed Native American
tribes to legally conduct gaming activities on their reservations.
The commerce clause of the United States constitution refers to
Article I Section 8 Clause 3, which provides that “congress shall
have power; to regulate commerce with foreign nations, and among
the several states, and with the Indian tribes.”
This grant of power
came under the condition that tribal reservations would negotiate a
working regulatory agreement with state governors before building
gambling facilities. Furthermore, Congress explicitly allowed tribes
to sue states if state governors refused to negotiate a deal in good
faith. This provision of the law was very problematic in the
American South, where conservative governors opposed legalized
gambling and other activities that were viewed as immoral by the
Christian community. Consequently, the Democratic Governor of
Florida, Lawton Chiles, refused to negotiate with the Seminole
tribe on the grounds that the harm to the community caused by
Native American gaming would outweigh any potential monetary
Hans v. Louisiana, 134 U.S. 1 (1890)
U.S. Const. art, I, § 8, cl. 3.

Olapade 31

benefits that the Seminole tribe stood to gain. In response, the
Seminole tribe filed a lawsuit against Florida in Federal District
Court, claiming that Congress could abrogate a state’s sovereign
immunity when acting pursuant to a valid grant of power.

After three years of appeals, the case reached the Supreme
Court. Writing for the court, Chief Justice William Rehnquist
ruled in favor of Florida by arguing that Article III Section 2 of the
Constitution, which enumerated the original and appellate
jurisdiction of the Supreme Court, formed an absolute limit on the
types of cases that federal courts could hear.
As a result, Rehnquist
asserted that “[T]he entire judicial power granted by Article III
Section 2 of Constitution did not embrace authority to entertain a
suit brought by private parties against a State without the State’s
consent . . .”
Conservative justices assert that the extension of the
Eleventh amendment’s sovereign immunity clause is not a
departure from established American Constitutional norms, as
Justice Stevens contends, but a reestablishment of the framers’
original intentions. Rehnquist reinforces this stance when he
argues in Blatchford v. Native Village of Noatak that the State’s
relationship to the federal government is not simply one of
subordination, but one “that must be understood to stand not so
much for what the constitution says, but for the presupposition . . .
which it confirms.”
Conservatives feel that sovereign immunity is
part of a broader set of suppositions that illustrate the true
relationship the framers intended the national and state
governments to have with one another. Consequently, in the minds
of conservative judges, a loose interpretation of sovereign immunity
is not simply a political tool for Republicans or an antiquated relic
of the divine right to rule, but a Constitutional context clue that
A valid grant of power in this instance is an enumerated or implied power contained in
Article I Section 8 of the Constitution.

This is a difficult concept. Because the Constitution explicitly lays out the jurisdiction
of federal courts in Article III Section 2 conservative judges feel that any attempts by
Congress to expand this jurisdiction are unconstitutional. To conservatives, the Indian
Regulatory Gaming Act is defective because the law allows a citizen of a state to sue a
state in federal court even though Article III Section 2 does not mention that federal
courts can hear lawsuits of this kind.

Seminole Tribe of Fla. v. Florida, 517 US. 44 (1995).
Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991).

32 WULR  Vol VII, Issue III  Spring 2014

reaffirms and supports conservative ideals of small government and
limited national action.

Nonetheless, liberal justices argue that the conservative
revival of sovereign immunity is not only impractical but harmful to
the effective implementation of national programs. The Supreme
Court’s refusal to waive sovereign immunity in the Seminole case has
far reaching consequences for other groups seeking to claim rights
from state governments that refuse to comply with federal law.
Justice John Paul Stevens expresses this same view in his dissenting
Seminole opinion by asserting that “The majority’s opinion does not
simply preclude Congress from establishing the rather curious
statutory scheme under which Indian tribes may seek the aid of a
federal court to secure a State’s good-faith negotiations over gaming
regulations. Rather, it prevents Congress from providing a federal
forum for a broad range of actions against States, from those
sounding in copyright and patent law, to those concerning
bankruptcy, environmental law, and the regulation of our vast
national economy.”

This interpretation becomes more suspect when
one considers that the Eleventh amendment’s sovereign immunity
clause is virtually silent about citizens suing their state officials.
Liberals Justices and legal scholars argue that the majority’s openly
political reading of the Constitution appears to be more of a means
by which conservative justices can advance their own political
views of federalism, rather than an “impartial” interpretation of the
Constitution. Furthermore, liberal justices insist that previous
courts have always assumed, in the words of Justice Stevens, “that
Congress has the power to create a private federal cause of action
against a State, or its Governor, for the violation of a federal right.”

Because past courts have recognized that states were liable to be
sued in federal court if Congress made a clear and explicit attempt to
waive a state’s sovereign immunity, liberals believe that the history
of the Eleventh amendment clearly indicates that Congress has the
power to waive a state’s Eleventh amendment rights.

This is very ironic given the fact that sovereign immunity was originally used to justify
the expansive and limitless political power of the British Crown.
supra note 9.
supra note 9.
This requirement may seem superfluous but the fact that Congress creates a private
cause of action against a state does not necessarily mean that it also waives all defenses

Olapade 33

On the other hand, the manipulation of sovereign immunity
is not exclusively a conservative endeavor. Liberal justices have
used a broad interpretation of the Eleventh amendment’s sovereign
immunity clause to justify progressive measures on the state level
ranging from abortion to economic regulation. This mode of
interpretation by liberal justices is especially apparent with same-
sex marriage. Since marriage is an issue that has been traditionally
regulated by the states, several Democratic governors have claimed
that the Defense of Marriage Act (DOMA) is unconstitutional
because it forces states to legally accept marriage as an institution
characterized by a union between a man and a woman. Such
definitions matter because states receive monetary benefits from
the federal government and a state can lose funding for Medicaid
and veteran programs if its definition of marriage is not in line with
its federal counterpart.
In 2011, Massachusetts received a letter from the United
States Department of Veteran’s Affairs claiming that the state
would lose nineteen million dollars in subsides if it allowed the
spouses of gay veterans to be buried with their partners in Agawam
federal cemetery. Consequently, the state of Massachusetts filed a
law suit against the Obama administration claiming that DOMA
violated Massachusetts’ sovereign right to regulate marriage under
the Tenth amendment. In Massachusetts v. United States Department of
Health and Human Services, a Federal District Court held that section
three of DOMA, which defines marriage as a union between a man
and a woman, was unconstitutional because it “plainly encroached
upon the firmly entrenched right of Massachusetts to regulate
Writing for the court, Judge Joseph L. Tauro argued
that federal lawmakers had always deferred to the judgment of
states when issues of marriage were concerned because the
institution often manifested itself in different ways in different
areas of the country.
For instance, during the 19
century, wives
to that action. Ergo Congress can stipulate that a state may be sued in federal court but if
it does not explicitly state that the state cannot claim sovereign immunity as a defense,
the state can claim that exemption.

Massachusetts v. United States Department of Health and Human Services , 682 F .3d
1 (2011).
J ustice Tauro also argued that this phenomenon had political sanction because federal
lawmakers had attempted three times to pass an amendment homogenizing marriage

34 WULR  Vol VII, Issue III  Spring 2014

in frontier western states such as California and Colorado were
allowed to inherit property while their counterparts in states such
as Virginia and New York were not. Frontier inheritance laws were
premised on the fact that pioneers out West often lived shorter
lives and needed to have more flexibility in bequeathing their
holdings, so that their loved ones would be taken care of in the
event that the primary breadwinner of the family passed away.
Another example is bans on interracial marriages in the south.
While several northern states legalized interracial marriage by the
1840s, eleven states made marriage between an African American
and Caucasian a felony until their laws were overturned by the
Supreme Court in 1967.
Of course, both of these scenarios were
the unique products of the social, cultural, and political norms of
their respective areas. However, Justice Tauro reasoned that liberal
states were entitled to recognize same-sex marriages because in the
past Congress had to respect the marriage regulations of states even
if they were discriminatory. Moreover, liberals assert that the mere
fact that an issue is morally contentious does not mean that the
federal government can intrude on the core sovereignty retained by
the states. The District Court ruled in favor of Massachusetts
because Justice Tauro felt that the imposition of moral norms in
society was not a compelling interest of the federal government,
much less the business of federal regulation.


In light of the contention surrounding the Eleventh
amendment it is important to note the distinction between
unrestricted sovereign immunity and the state immunity laid out in
the Eleventh amendment’s text. The “true” English common law
concept of sovereign immunity has the ability to function as a
regulations, only to have the measure defeated three times by lawmakers that wanted to
preserve their state’s sovereignty in marital affairs.
These states include Alabama, Arkansas, Delaware, Georgia, Kentucky, Louisiana,
Mississippi, Missouri, North Carolina, Oklahoma, Texas, South Carolina, Virginia, and
West Virginia. On an interesting side note while the Supreme Court invalidated
interracial marriage bans in 1967, Alabama retained an invalid version of a past
interracial marriage law until voters overturned the statute by a referendum in 2000.
Even then a resounding 41% of Alabamans voted to retain the measure.

Olapade 35

catchall legal defense that prevents any party from bringing an
action against a state without the state’s consent. However, the
Eleventh amendment only prohibits suits “in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Ironically, the substantial textual disparity between these two legal
principles may indicate that the framers did not condone or
sanction “true” sovereign immunity in the Constitution.
Historically speaking, while the Eleventh amendment’s
proponents did use abstract states’ rights theories to advance their
arguments, financial policy concerns were the main justification for
limiting federal jurisdiction over cases involving a state, and
citizens of other states or foreign citizens. In the late 1780s at least
six of the thirteen states were experiencing severe difficultly
servicing their Revolutionary war debt.
Consequently, there was a
widespread fear among state officials that states could go bankrupt
if their creditors were allowed to compel payment of these debts in
federal court. As a result, Congress and the State Conventions
ratified the Eleventh amendment in response to this fear and
several Federal District Court rulings ordering delinquent states to
honor their obligations.

This historical background explains the Eleventh
amendment’s unambiguous text, but does not justify the Supreme
Court’s broad reading of the Eleventh amendment’s sovereign
immunity clause in Seminole and Massachusetts. If Congress really
believed that states were absolutely sovereign and immune from
suit, then it should have articulated a broader limit on federal
jurisdiction in the Eleventh amendment. When viewed from this
perspective, we can conclude that the Eleventh amendment was a
narrowly tailored response to a narrowly defined problem, rather
than a broad statement changing the nature of federalism and
reorienting the relationship between the states and federal
government. However, justices have often ignored this strict
U.S. Const. amed. XI,

supra note 3.
Chisholm v. Georgia, 2 U.S. 419 (1793).

36 WULR  Vol VII, Issue III  Spring 2014

textual approach for a more activist interpretation. As a result,
sovereign immunity has been absorbed into the wider debate
surrounding federalism and in some cases, has become a means by
which justices have been able to rationalize partisan verdicts. For
proponents of The Patient Protection and Affordable Care Act, this
reality became all too real when Justice John Roberts casted the
deciding vote in National Federation of Independent Business v. Sebelius.


Congress passed The Patient Protection and Affordable
Care Act (ACA) in 2010 in order to increase the number of
Americans covered by health insurance and decrease the cost of
health care. One key provision of the Act was the Medicaid
expansion, which offered federal funding to states to assist the
disabled, the elderly, the blind, needy families, pregnant women,
and children in obtaining medical care. However, while the ACA
provided increased federal funding to cover the states’ Medicaid
expansion costs, states could lose all of their existing Medicaid
funding if they chose not to comply with the ACA’s coverage
requirements. This provision raised two significant issues
concerning federalism. 1) Although the Social Security
Amendments of 1965 gives Congress the right to alter, amend, or
repeal a Medicaid provision, the federal government cannot force a
state to participate in an entitlement program. While states take
directions from the national government and follow federal
regulations when they administer programs like Medicaid,
Medicare, and Social Security they do so only after they consent to
participate in the program. Thus, even if states did consent to
participate in Medicaid there was reasonable doubt concerning
whether the ACA’s Medicaid provisions could be a forced upon the
states retroactively given that the states could not have known that
the bill would someday encompass universal health coverage. 2)
Medicaid costs constitute up to twenty percent of most state
budgets and withholding twenty percent of a state’s budget would
have be akin to an economic Armageddon. Furthermore, after
accepting Medicaid funds several states developed intricate
statutory and administrative legal systems to implement their
Olapade 37

objectives under the existing Medicaid program. Hence, financially,
to many states, the ACA’s Medicaid provision was a choice in name
only. In light of these objections, the state of Florida filed a lawsuit
against the United States Department of Health and Human
Services in Federal District Court. Florida claimed that the ACA
was unconstitutional in part because Congress could withhold a
state’s Medicaid funding if a state chose not to participate in the
ACA’s Medicaid expansion. The case reached the Supreme Court
on March 28, 2012 and was primarily concerned with whether
Congress could violate a state’s sovereignty and force it to
participate in the Medicaid expansion program by withholding all
of its previous Medicaid funding. In a bitterly divided 5-4 decision
Chief Justice John Roberts upheld the overall constitutionality of
the ACA but struck down the Act’s Medicaid expansion provision.
Writing for the majority, Roberts acknowledged that the Spending
clause “allowed Congress to grant federal funds to the States upon
the condition that states take certain actions that Congress
normally could not require them to take.”
Essentially, the majority
recognized that Congress could force states to perform certain
actions when administering entitlement programs only if the states
agreed to participate in the program and the federal government’s
deal with the states did not exert “a power akin to undue influence
on the states.”
However, in reaffirming the states’ sovereign right
to opt-out of the Medicaid expansion, Roberts relied on the dictum
that “Spending Clause legislation was a contract in nature [and
that] the legitimacy of Congress’s exercise of the spending power
thus rested on whether the states voluntarily and knowingly
accepted the terms of the contract.”
Conservative justices argue
that Spending Clause legislation should be treated as a contract
because they believe that states are sovereign entities. Accordingly,
conservative jurists believe that states can only be compelled to
perform actions when they explicitly agree to participate in a
program and waive their sovereign privileges. Furthermore,
Roberts asserted that “respecting this limitation is critical to
ensuring that Spending Clause legislation does not undermine the
National Federation of Independent Business v. Sebelius, 567 U.S. (2012).

38 WULR  Vol VII, Issue III  Spring 2014

status of the states as independent sovereigns in our federal
Thus, Roberts concluded that the Medicaid expansion
ran contrary to federalist principles because “permitting the federal
government to force the states to implement a federal program
would threaten the political accountability key to our federal
system. Because where the federal government directs the states to
regulate, it may be state officials who will bear brunt of public
disapproval, while federal officials who devised the regulatory
program may remain insulated from the electoral ramifications of
their decisions.”
The court’s objection to the ACA’s Medicaid
provision can be best explained with an example. As of 2013, in
Texas the ACA has a 36 percent approval rating. Thus, it would not
make political sense for Rick Perry (Governor of Texas) to
participate in the program. However, Medicaid constituted 20.2%
of the 224.5 billion that Texas spent in 2012. Under the existing
system, the federal government would cover 80% of these costs. But,
if Texas simply followed majority rule and chose to opt-out of the
ACA’s Medicaid expansion then the state would have to raise taxes
to compensate for the 36.28 billion dollars it would lose in federal
funding. To complicate these matters like many states, Texas ran a
budget deficit in the same fiscal year and most likely would not
have had a rational or fair choice regarding whether or not it would
participate in the ACA’s Medicaid expansion. Furthermore, the
majority argued that the ACA’s Medicaid expansion violated state
sovereignty because it allows Congress to force state governors to
expand Medicaid under the threat of financial ruin, even if a
majority of the voters in the governor’s state disapprove of the
provision. Furthermore, conservative justices argued that the
ACA’s Medicaid provision would insulate federal lawmakers while
state officials faced the electoral and political consequences of the
program’s expansion. Consequently, the Court determined that the
ACA’s Medicaid expansion was unconstitutional because the
provision infringed on the states’ sovereign rights and violated the
balance power between the federal government and the states.
The nature of legal interpretation makes it very difficult for
judges to become routine political actors. Judges can only impose
their political beliefs on verdicts when statutory clauses are

Olapade 39

sufficiently vague because there is a general academic and
professional bias towards strict textual interpretation. For instance,
when Congress acts pursuant to a valid grant of power and clearly
defines the states’ responsibilities in administering federal
programs, then judges, regardless of partisan affiliation, become
very deferential to a statute’s literal meaning because the law is
clear. This is particularly true for environmental and consumer
protection laws because Courts have recognized Congress’
exclusive prerogative in regulating environmental and consumer
issues. Most judges are hostile to assertions of state sovereignty
when environmental issues are concerned because many of the laws
regulating environmental protection clearly indicate national
supremacy. Thus, in certain cases strict textualism has the ability
to produce “impartial” judicial decisions. To the delight of
environmentalists, the Court displayed this strict impartiality in
Alaska Department of Environmental Conservation v. EPA.
In 1963 Congress passed the Clean Air Act in order to
implement national air pollution control standards. A key provision
of the Act allowed state environmental agencies to issue Prevention
of Significant Deterioration permits. State environmental agencies
issue Prevention of Significant Deterioration permits in order to
restrict emissions from new or modified sources in places where air
quality already meets or exceeds ambient air quality standards. A
Prevention of Significant Deterioration permit contains a best
available control technology designation, an air quality analysis,
and an additional impact analysis. State officials use their own
judgment when determining the impact a certain venture may have
on an area’s air quality and then they determine which pollution
control technology is the best. Moreover, under the permit program
no major air pollutant emitting facility may be constructed unless
the facility is equipped with the best available control technology.
In 1996 Cominco, with funding from the state of Alaska,
initiated a project to expand zinc production by forty percent in
the Red Dog mine. The Red Dog mine is located approximately 100
miles north of the Arctic Circle and is the region’s largest employer
supplying a quarter of the area’s wages. Cominco estimated that
building a new generator to facilitate the expansion would increase
Red Dog’s nitrogen oxide emissions by more than forty tons per
year. Accordingly, Cominco filed a permit request, and after
40 WULR  Vol VII, Issue III  Spring 2014

preliminary evaluation, state officials decided that selective
catalytic reduction was the most appropriate control technology
because it would reduce nitrogen oxide emissions by ninety
percent. In the process of making a control technology
determination, state officials supposedly analyzed the unique and
local circumstances of the zinc expansion taking into account
energy, environmental, and economic impacts as well as other costs.
However, Cominco objected to the Alaska Department of
Environmental Conservation’s proposal on the grounds that
selective catalytic reduction would cost the company $33,696 in
increased expenses and might force Cominco to lay off employees.
Cominco officials based this figure on a projection that estimated
$936 in extra expenses for every ton of nitrogen oxides removed.
This estimate was presented despite the fact that Clean Air Act
regulations allowed Best Available Control Technology to be
implemented so long as the constructing company did not incur
expenses exceeding 2,279 dollars for every ton of nitrogen oxide
removed. In spite of this, Alaska revised its original control
technology assessment using the top-down methodology
recommended by the EPA and allowed Cominco to use an
alternative control technology that would only achieve a thirty
percent reduction in nitrogen oxide emissions. The Alaska
Department of Environmental Conservation’s change of heart was
very questionable because the agency declined to provide a
compelling rationale for the technology switch and cited nebulous
claims of selective catalytic reduction’s negative impact on
Cominco’s world competiveness as a justification.
Consequently, pursuant to section 7477 of the
Clean Air Act, which requires the EPA to “take measures, including
issuance of an order or injunction, to prevent the construction of a
major emitting facility that does not conform to the company’s
Prevention of Significant Deterioration permit, ”the EPA issued an
injunction stopping construction of Cominco’s mine expansion in
response to what appeared to be an arbitrary administrative
The Alaska Department of Environmental Conservation
filed a civil suit against the EPA in the Ninth Circuit Court of
Appeals claiming in part that the EPA did not have a statutory right
Alaska Dept. of Envt’l Conservation v. EPA, 540 U.S. 461 (2004).

Olapade 41

to determine whether a state’s technology assessments were
reasonable. The case reached the Supreme Court on October 8,
2003, and the justices were asked whether the EPA could block
construction of a new major pollutant emitting facility permitted
by a state environmental regulator, when the EPA found the state's
determination to be unreasonable.

Writing for a majority that included liberals and
conservatives, Justice Ruth Bader Ginsberg answered in the
affirmative by adopting an “objective and literal interpretation of
the Clean Air Act.”
Ginsburg argued that Congress clearly knew
that there could not be one single objectively correct technology
determination because state agencies had to make subjective
judgments that depended upon the projected “energy,
environmental, and economic impacts of a company’s actions.”

Therefore, Ginsburg asserted that the EPA could intervene in
Alaska’s assessments since the very nature of control technology
determinations allowed states to err and make unreasonable
estimates. Moreover, the justices emphatically rejected Alaska’s
state sovereignty plea by asserting that it would be more than
“unusual for Congress to remit a federal agency enforcing an
injunction sanctioned by federal law solely to state courts” given
that the Supreme Court has recognized Congress’ exclusive right to
regulate environmental issues.
Thus, the majority argued that
sovereign immunity is not a persuasive or appropriate defense
when legal statues and precedents clearly give the national
government authority to regulate and oversee a certain policy area.
However, while Cominco’s economic argument may not have had
legal force as far as the Clean Air Act was concerned, the Court’s
decision also had wider implications for federalism. For example,
while the justices acknowledged that allowing Cominco to expand
without onerous economic costs might temporarily boost
northwestern Alaska’s economic situation, they asserted that it
would lead to a metaphorical “race to the bottom” among the states
in the long run.
This phenomenon occurs when issues like
environmental and consumer protection standards are regulated by

42 WULR  Vol VII, Issue III  Spring 2014

states rather than the national government. For instance, imagine
that California requires auto manufacturers to install fifty-dollar
seat belts, whereas Oregon only requires the same companies to
install, cheaper but lower quality, thirty-dollar seat belts. All things
being equal (Ceteris paribus) this would result in car manufactures
moving to Oregon and California would lose business. However, if
California decided to respond by mandating that auto
manufacturers install even lower quality ten-dollar seat belts, then
it would attract more business but the overall quality of cars would
decline. Thus, states would be competing with one another to see
who could regulate industry less, in a metaphorical race to the
bottom. The only way to fix this problem is by having the national
government set standards that all states must follow so that
legislatures do not try to under regulate one another. The practical
effect of Alaska and other environmental cases has been the
development of a case-by-case test in which the justices have
attempted to strike a balance between strictly impartial textual
interpretations and judicial activism when evaluating state
sovereignty pleas.
As one can tell from the four different cases and
four different legal rationales that have been examined, the Court
has yet to devise a coherent test for applying the sovereign
immunity doctrine that does not produce contradictory or overtly
political outcomes. If sovereign immunity gives power to the states
and strengthens the states’ governing role, then we would expect
states to always side with justices that are willing to use the
Eleventh amendment’s sovereign immunity clause to overturn
federal legislation that forces the states to do anything. Yet, when
reading the amicus curiae briefs that states submit to cases like
National Federation of Independent Business and Alaska we can see that
states are not interested in simply increasing their power for
power’s sake.
Rather, states support federal laws that efficiently
administer national programs and oppose laws that do not. When
viewed from this perspective, the states are not concerned with an
antiquated notion of sovereign immunity but with ensuring that
government programs are designed to promote the outcomes that
Congress intended. Thus, with so many competing rationales for
COMMENTARY (Oxford University Press 2004).

Olapade 43

applying the sovereign immunity clause some jurists have declared
that it is a folly for the Court to try to work out a sound legal
reasoning for the doctrine. Associate Supreme Court Justices
Antonin Scalia and Clarence Thomas have voiced repeated
opposition to the court’s attempts to make sense of its
contradictory and politically charged rulings by asserting that their
“applications of the doctrine have made no sense.”
But, even these
two Justices have not hesitated to use the sovereign immunity
doctrine to advance their own conservative policy preferences
when they have been given the chance.
Moreover, these rulings leave several lingering ideological
questions. If liberals are willing to accept government regulation of
agribusiness, automobiles, banking, industrial processing,
insurance, pharmaceuticals, telecommunications, and health care
then why do they suddenly argue that the government should play
a minimal role in regulating social norms and behavior? If
conservatives believe that the government should play a limited
role in regulating business, then why do they assert that the
government should regulate personal social issues?
Not surprisingly, no party objects to the use of sovereign
immunity when it is being used to uphold their policy preferences.
So, if Republicans and Democrats both agree that the doctrine can
be used in certain cases to uphold the original intent of the framers,
why then do they disagree about when to apply the doctrine? This
can most likely be attributed to the fact that both groups have
differing interpretations about the original meaning of the
Constitution. Furthermore, this issue exposes the very subtle but
important distinctions that can arise between what most
Americans conceive states’ rights to mean in modern American
politics and how states’ rights doctrines are actually used in our
current political system.
The nuanced views and stances of political parties and
groups have been oversimplified to accommodate an electorate that
is losing interest in public affairs. As a general rule, when most
Americans hear the word Republican they automatically associate
this term with a set of policies such as low taxes, less economic
regulation, and small government while the term Democratic is
University Press 2012).

44 WULR  Vol VII, Issue III  Spring 2014

often associated with the opposite. However, this fast and loose
rule often ignores the fact that Republicans are not categorically
opposed to big government. In fact, many conservatives feel that
government should play a strong role by establishing moral norms
in society and promoting military preparedness. Likewise,
Democrats do not always support government expansion and
regulation. Most liberals feel that government should not regulate
personal moral habits or spend excessive amounts of money on
military projects. These same distinctions explain why Republicans
are so willing to use sovereign immunity to undermine federal
economic regulation but not legislation that targets same sex
couples, and why Democrats are predisposed to doing just the
opposite. Thus, the Seminole, Massachusetts, and National Federation of
Independent Business rulings all had the practical effect of advancing
the political goals and policies of the two groups, through the
seemingly impartial medium of the court system.
This raises serious ethical and political questions regarding
how we should approach Constitutional construction. For instance,
the concerned citizen may wonder why partisan groups are able to
take legal doctrines like sovereign immunity and twist them for
their own ends. If judges are supposed to be objective and protect
the Constitution from misinterpretation, how can they approve
these openly political decisions? Furthermore, why should we as
citizens accord respect to a judicial system that does not even
purport to be impartial when deciding issues of equity and fairness?
Is judicial independence a hoax? Are our courts simply an extension
of the political sphere? However, these questions ignore the greater
context in which the federal judiciary operates and the pressures
that this environment can put on unbiased interpretations of the
Constitution. Because federal judges must be nominated by a
partisan President and have their nomination confirmed by a
partisan Senate, the appointment process for federal judges ensures
that the judiciary will not only have political views, but also allow
those views to influence its decisions. Ironically, the one branch of
government that most Americans trust to be independent arbiters
of fact and law is in actuality a political institution that is capable
of and expected to reflect the views of their partisan colleagues
when handing down decisions in polarizing cases. When viewing
the judiciary in such an unorthodox manner, it can be easily
Olapade 45

understood why sovereign immunity has become a legal means to
advance conflicting views of federalism in contemporary
jurisprudence. Thus, we should ask not whether the court has
made sovereign immunity a politically charged issue, but whether
the federal judiciary’s political manipulation of sovereign immunity
is good for American democracy.
Many Constitutional scholars, such as former
Stanford Law School Dean Larry Kramer and Yale Law School
professor Bruce Ackerman, have taken issue with the argument
that a politically sensitive interpretation of the Eleventh
Amendment is undesirable. In fact, these changing political
interpretations are thought to stem from what legal scholars call
Popular Constitutionalism. Popular Constitutionalism describes
how shifts in a population’s political beliefs can change how judges
interpret the Constitution. For example, in the 1980 presidential
election the Conservative Revolution swept America
demographically, politically, and socially. Over the span of three
decades, this resulted in the election of three Republican Presidents:
Ronald Regan, George H.W. Bush, and George W. Bush. While in
office, these Presidents collectively appointed eight Supreme Court
justices who interpreted the Eleventh Amendment differently than
the liberal justices they replaced.
This resulted in a dramatic
change in how lawmakers and subordinate federal judges perceived
the relationship between the national government and the state.
For instance, it is not a coincidence that the five justices who
decided the Seminole case (Rehnquist, O’Conner, Scalia, Kennedy,
and Thomas) were all appointed by either Ronald Reagan or
George H.W. Bush. Furthermore until George H.W. Bush
appointed Clarence Thomas on the court, a majority of the justices
had already ruled seven years prior in Pennsylvania v. Union Gas Co.
that Congress could override a state’s sovereign immunity by
exercising an enumerated power in Article 1 Section 8 of the
But, as we saw earlier, the Seminole court overruled
Sandra Day O’Connor replaced Potter Stewart, William Rehnquist replaced Warren
Burger, David Souter replaced William Brennan, Clarence Thomas replaced Thurgood
Marshall, Samuel Alito replaced Sandra Day O’Conner and J ohn Roberts replaced
William Rehnquist.
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).

46 WULR  Vol VII, Issue III  Spring 2014

Pennsylvania in 1995 and the only apparent change was the
composition of the court. Thus, changes in the American
population’s political preferences lead to the election of more
conservative politicians. As a result, these same politicians then
appointed more conservative Supreme Court justices who
interpreted the Constitution differently than their liberal
colleagues. This instance of the court’s jurisprudence is significant
because it provides a tangible of example of popular
constitutionalism in action and exposes the raw political character
that the court can assume in certain cases.


If one accepts the premise that the people are truly
supreme in American democracy, then it follows that laws and
doctrines like sovereign immunity are only legitimate to
contemporary society insofar as they agree with the political, social,
cultural and economic views of the people. There should be no
inhibitions about political interpretations that change the meaning
of Constitutional clauses because the founders could not have
possibly anticipated the political conflicts that future generations
would have to grapple with. In fact, it would be a tragic folly to
always insist on following the original intent of the framers because
the political, social, and economic situation that gave force to the
Constitution of 1787 is completely dissimilar from the dynamic that
gives the Constitution of 2014 force. When viewed in this light the
Eleventh Amendment’s sovereign immunity clause is not an end in
itself that solely serves the purpose for which it was created, but it
becomes a means by which future generations can adapt the clause
to serve their own political ends. Metaphorically speaking, under
popular constitutionalism, the Eleventh Amendment is simply a
“puppet” for liberals and conservatives in the grand “ventriloquist
show” that is the American political system. However, instead of
this metaphorical “show” being a zero-sum affair between political
parties, the political manipulation of sovereign immunity is just a
microcosm of the bigger debate surrounding federalism. Moreover,
unlike most political debates, the parties engaged in the federalism
debate are incredibly heterogeneous and are constantly switching
sides in an effort to bring their political goals to fruition. Yet
Olapade 47

ironically, the net result of this battle over sovereign immunity is
not partisan gridlock, but a more democratic legal code that is truly
responsive to the people’s political wishes.
In short, sovereign immunity has been Americanized. It no
longer prevents citizens from seeking redress from the government,
but has become integrated into American politics as a form of states’
rights, where Republican or Democratic states can defend their
rights and interests against federal measures. Remarkably, the same
principle that once rendered the people helpless to resist the
encroachments of the king has become a means by which states can
check the power of the national government. This phenomenon is
just another drop in the river of transformative legal change that
adapts the precedents and traditions of the past to the present.

Integration and Interests:
The Forgotten Role of Judge Walter
Hoffman in Ending Massive Resistance in

By Michael Payne*

In the aftermath of Brown v. Board, the Supreme Court left it to
school authorities to solve the logistical problems of integrating
schools. Virginia subverted the aims of the Supreme Court and
instead used local school authorities to delay integration,
ultimately resulting in the closure of Norfolk’s public schools. As
such, the burden of desegregating schools fell onto lower federal
courts and local citizens’ groups. Norfolk serves as an
instructive case study. District Judge Walter E. Hoffman and
local business, student, and church groups were powerful
advocates for desegregation. Together, they pressured Norfolk’s
school board into reopening schools. This broke the will of
segregationists, ultimately resulting in the end of massive
resistance and the integration of Virginia schools.

* Michael is a junior studying Government at the College of William &
Mary. Originally from Charlottesville Virginia, Michael has lived in
Virginia all his life and is interested in the intersection of law and the civil
rights movement within Virginia history.

The landmark ruling in 1954’s Brown v. Board of Education
signaled the demise of Virginia’s sordid era of racially segregated
public schools. However, enforcing the Supreme Court’s decision
proved an arduous battle, both within Virginia and across the
nation. Southern politicians feared the dissolution of a white
Payne 49

political coalition, which looked upon the Civil Rights Movement
with a mix of skepticism and outright hatred.
In Norfolk the battle was uniquely intense. Segregationists
shut down public schools in order to prevent the matriculation of
black students. Despite the initial successes of segregationists,
activists desiring integration were able to apply a dual stress of
litigation and political pressure to influence public opinion and
force local officials — in particular Norfolk’s local school board —
to acquiesce to the public’s demands and integrate Norfolk schools.
This strategy was only able to work, however, due to the existence
of a sympathetic federal judge —namely, Eastern District of
Virginia Judge Walter Hoffman. In this sense, Norfolk serves as a
synecdoche for the struggle to integrate schools in spite of the
Supreme Court’s inability to enforce its own decisions.
Chief Justice Warren was exceptionally vague when he
wrote in Brown II that “school authorities [had] the primary
responsibility for elucidating, assessing, and solving” the logistical
problems of desegregation.
In the absence of any formal method to
enforce its decision, the Supreme Court depended on extrajudicial
actors to integrate schools; as such, local politics tended to
determine how schools dealt with the issue of segregation more so
than any universal legal principle.
The political group most
effective in lobbying the local government would control the
progression of desegregation.
In the years immediately following Brown, segregationists
were the most effective lobbyists in Norfolk. This outcome was not
fated. Norfolk’s school board, once lukewarm to the idea of massive
resistance, only came out in full support of stopping integration
once segregationist interest groups such as The Defenders of States’
Rights and Individual Sovereignty applied intense political

Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).
Vanessa Baird, The Effect of Politically Salient Decisions on the U.S. Supreme Court's Agenda, 66
Journal of Politics, 758 (2004).
50 WULR Vol VII, Issue III Spring 2014

pressure to local officials.
Opposition to integration was
becoming increasingly politically popular elsewhere in Virginia.
Powerful Virginia Senator Harry F. Byrd declared Brown “the most
serious blow that has been struck against the rights of the states”
and dedicated the full energies of his seemingly omnipotent
political machine, the Byrd Organization, to blocking integration.

Governors Thomas B. Stanley and J. Lindsay Almond
ascended to power by giving rousing speeches before the Virginia
General Assembly that assailed Brown for subjecting Virginia to
“pressures more relentless, brutish, and formidable than that
applied to any other state”.
In response the General Assembly
passed the legally dubious Public Placement Act, a law that
allowed the Virginia government to individually place black
students in separate schools.
The lesson for the General Assembly
and other elected officials was clear: opposing segregation and
supporting Harry F. Byrd’s political machine would reap enormous
political benefits.
It fostered an environment that both encouraged
massive resistance and allowed policies that clearly violated federal
law to continue unabated. As a result, Norfolk’s school board
openly violated federal law by enforcing Virginia’s discriminatory
Pupil Placement Act and stalling African American plaintiffs’

Forrest White, Pride and Prejudice: School Desegregation and Urban Renewal in Norfolk, 1950-
1959, 81-84 (1992).
Mary Doyle, From Desegregation to Resegregation: Public Schools in Norfolk, Virginia 1954-2002,
Id. at 5.
Digital Library of Georgia and Walter J. Brown Media Archives and Peabody Awards
Collection, WSB-TV Newsfilm Clip of Governor J. Lindsay Almond Speaking to the General
Assembly, Spoken by Governor J. Lindsay Almond, January 28, 1959 (30 Jan. 2014),
available at http://crdl.usg.edu/cgi/crdl?format=_video;query=id:ugabma_wsbn_40495.
Arthur Krock, Virginia Seeks Ways to Limit Integration: Federal and State Rulings Interfere with
Massive Resistance to Mixed Public Schools, N.Y. TIMES,
February 1, 1959, at E3.
James Sweeney, Whispers in the Golden Silence: Harry F. Byrd, Sr., John F. Kennedy, and Virginia
Democrats in the 1960 Presidential Election, 99 Virginia Magazine of History and Biography 5
Payne 51

Despite the extreme and illegal nature of these policies, the
school board initially faced few consequences for their actions.

Local courts and politicians had neither the litigating power nor
political incentive to challenge Norfolk’s segregationist policies,
thus making Norfolk’s barriers to desegregation enormously
These barriers were not impermeable. Brown had created a
broad legal precedent for lower courts to follow, thus providing
integrationists with an invaluable tool for dismantling
segregationist policies. If litigation could get through district
courts, there would be greater pressure for desegregation to be
implemented at the local level. The initial legal challenge to
Norfolk’s policies came when African American high school
student Leola Beckett, with the assistance of the NAACP, filed suit
against the Norfolk school board. She claimed that Virginia’s entire
Pupil Placement Act, as well as Norfolk’s bussing of African
American children, were in direct violation of the Constitution.

The Pupil Placement Act, however, seemingly rested on
firmer legal ground than outright segregation. Brown did not
necessarily prevent localities from assigning children to specific
schools, so long as they were reviewed individually and race was
not a consideration.
In addition, multiple pupil placement acts
had been found to be constitutional in states such as North
Carolina despite clearly being an implicit method of delaying
As such, Norfolk segregationists believed Virginia’s
Pupil Placement Act was a constitutional method of preventing

Antonio Bly, The Thunder during the Storm-Sch. Desegregation in Norfolk, Va., 1957-1959: A
Local History, 67 Journal of Negro Educ., 107-111 (1998).
Id. at 108-111.
Constitutional Law. Segregation. Pupil Assignment. Exhaustion of Pupil Assignment Law Remedies
Unnecessary in Fifth Circuit, Required in Eighth, If Local Segregation Policy Exists, 46.2 VIRGINIA
L. REV. 338 (1960).
Id. at 337-340.
52 WULR Vol VII, Issue III Spring 2014

integration and believed Beckett’s challenge would prove
The Norfolk school board further claimed that they were
not capable of integrating Norfolk schools, as it would be in
violation of §129 of Virginia’s constitution which mandates that
localities, “maintain an efficient system of public free schools
throughout the State.”
Given the supremacy of federal law over
state law, the school board’s argument was dubious. It relied on the
flawed judicial philosophies of nullification and interposition, two
legal regimes that are both predicated on a reading of the
Constitution that chooses to entirely ignore Article Six, Section 2
of the Constitution — otherwise known as the Supremacy Clause
— which clearly states that the Constitution and federal law are
“the supreme law of the land.”

But segregationist’s political fortunes were fading. While
several pupil placement acts had previously been upheld by federal
courts, the precedent of Brown had caused district judges in Florida
and Arkansas to rule that their states’ respective pupil placement
acts were unconstitutional attempts to segregate public schools.

Litigation was proving a powerful threat to segregation; with Brown
as precedent, it was a matter of when, not if, desegregation would
occur. Fearful, segregationists turned to politics to preemptively
eliminate legal challenges to segregation. Norfolk residents called
on a special committee of the General Assembly that forced African
American plaintiffs to testify before the Virginia legislature in an
effort to intimidate plaintiffs into dropping their cases.
actions of this “Virginia Inquisition” were insufficient to deter

V.A. Const. art VIII, §1.
James H. Read & Neal Allen, Living, Dead, and Undead: Nullification Past and Present, 1
AMER. POL. THOUGHT, 263-297 (2012).
CONSTITUTIONAL LAW, supra note 12, at 337-340.
Library of Virginia, Lester Banks, executive secretary of the Virginia NAACP, testifies at the
General Assembly’s hearing on public school integration, (5 Sept. 1956), available at
Payne 53

litigation in the courts, and the Eastern District Court of Virginia
would soon rule on Beckett.

District Judge Walter E. Hoffman had lived in the Norfolk
community for years.
Many of his closest associates and friends
were ardent supporters of segregation. In addition, there existed
broad public support for segregation.
As such, there was great
public pressure for Hoffman to rule in favor of the segregationists.

Given that district judges tend to be sympathetic to local
prejudices and reluctant to enforce rapid social change within their
community, Hoffman was thought to be a reliable vote for
segregation in the Beckett case.
Hoffman, however, believed he was
bound by the law, declaring that “I will do my duty if it costs me
my last friend on Earth.”
Brown had clearly stated that children
attending segregated schools were “deprived of the equal
protection of the laws guaranteed by the Fourteenth
A cursory analysis of the General Assembly’s
actions showed that the purpose of the Pupil Placement Act was to
maintain segregation; the Assembly had stated itself that “an
efficient system of elementary public schools means…no elementary
school consists of a student body in which white and colored
children are taught.”
Hoffman could not in good faith uphold the
law and declared it his “firm conviction that Chapter 70, known as
the Pupil Placement Plan, is unconstitutional on its face.”

Hoffman’s decision dealt a devastating blow to the political
goals of segregationist Norfolk citizens. The unanimity of Virginia’s

BLY, supra note 9, at 108.
Guy Friddell, Judge Walter E. Hoffman: A Final Tribute, THE VIRGINIAN-PILOT (25 Nov.
SWEENEY, supra note 8, at 5.
Conrad M. Shumadine, A Tribute to Walter E. Hoffman, 54 WASH. & LEE L. REV. 1334
The Federal Courts and Integration of Southern Schools: Troubled Status of the Pupil Placement
Acts, 62 COLUM L. REV. 1448 (1962).
SHUMADINE, supra note 21, at 1334.
Brown v. Board of Education of Topeka, 347 U.S. 483, 1954.
Beckett v. The Sch. Bd of the City of Norfolk, 246 F.2d 325 (4th Cir. 1957).
54 WULR Vol VII, Issue III Spring 2014

massive resistance policy had been broken. The local school board
could no longer get away with segregating schools without
consequence due to Hoffman’s enforcement of Brown. Were the
school board to continue its policies, Norfolk would find itself
facing a constitutional crisis akin to what occurred in Little Rock
— a political and policy disaster that no one wanted.
The hand of
massive resistance had been forced; if segregation was to be
maintained, increasingly drastic and unpopular policies would have
to be enacted. The result would be a fissure of support among
whites for massive resistance which would open up a political
space for moderates to implement integration.
The school board responded by having an attorney file an
appeal on Judge Hoffman’s decision that argued that African
American students had not yet exhausted all administrative means
available to them and thus should not have pursued litigation.

Hoffman struck down their appeal, finding the school board’s
actions to be nothing more than a roundabout way of achieving
segregation as well as a direct challenge to the authority of the
district court.
Having exhausted all legal means of preventing
desegregation, the school board shifted its focus to slowly
implementing integration as opposed to outright fighting it.
had perhaps been the Norfolk school board’s preference all along —
the school board had always been willing to operate integrated
schools, it was primarily high-profile Virginia politicians who had
staked their careers on unwavering support of massive resistance.

Hoffman had set no clear deadline for integrating Norfolk
Even though integrationists had won the legal battle,

Cabell Phillips, Norfolk Schools Aim to Avoid 'Little Rock': City Feels It Can Avert Friction
When Integrated, N.Y. TIMES, 1959, at E6.
BLY, supra note 9, at 109.
DOYLE, supra note 4, at 65-68.
Carl Tobias, Public School Segregation in Virginia During the Post-Brown Decade, 3 WILLIAM
& MARY L. REV. 1261-1306 (1996).
WHITE, supra note 3, at 167.
Id. at 164.
Payne 55

they still had to successfully navigate local politics were they to
achieve their aims. It appeared that segregationists, at least for the
moment, maintained the upper hand; the school board purposefully
slowed segregation by setting up a Pupil Placement Board to review
each individual African American applicant to all-white schools.

The policy was open to legal challenge — the statewide Pupil
Placement Act had already been found to be in violation of Brown,
therefore the local law would likely follow suit.
The school board
found that no African American candidate to an all-white school
matched their rigid criteria, taking great care to only deny
candidates on the basis of their “health and safety, their social
adaptability, and their place of residence.”
Judge Hoffman found
this decision to be another method of denying African American
applicants entry into all-white schools and struck down the school
board’s decision.
In addition, Hoffman ordered the Board to
review the applicants again. The result was that seventeen African
American students — otherwise known as the “Norfolk Seventeen”
— were subsequently deemed fit to attend Norfolk public

The school board feigned fury; its chairman Paul
Schweitzer publically declared the decision to be “contrary to what
all of the members of the school board…believe is in the best
interests” of Norfolk schoolchildren.
Despite their opposition, the
school board had no choice but to acquiesce to the court’s orders.
Powerful images of federal intervention in Little Rock — as well as
the concrete fear that the school board might go to federal prison if
they ignored Judge Hoffman’s decisions — forced the board into

BLY, supra note 9, at 109.
Adkins v. School Board of Newport News, 148 F. Supp. 430 (1957).
Thomas Parramore, Peter Stewart & Tommy Bogger, Norfolk: The First Four Centuries,
362 (U. of V.A. Press 1994).
WHITE, supra note 3, at 164.
Robert Baker, Virginia's Desegregation is Peaceful as 21 Negroes Enter 7 White Schools: Arlington,
Norfolk Students Helpful to New Classmates; Ike Applauds Orderliness, THE WASH. POST AND
TIMES HERALD, Feb. 3, 1959.
DOYLE, supra note 4, at 66.
56 WULR Vol VII, Issue III Spring 2014

Norfolk schools seemed poised to be integrated by
the start of the school year; if segregation was to be maintained,
drastic measures would have to be taken. Powerful men, such as
Governor Almond, feared a loss of power. His 1957 gubernatorial
campaign had been centrally focused on ardent opposition to
integration. Almond was worried about losing political support, so
he ordered the closure of all public Norfolk schools.

The closing of Norfolk schools created a political divide
and aligned the interests of the school board with those of
integrationists. No adequate system of private schooling existed,
meaning that most Norfolk children would not be able to receive an
education while public schools were closed. Attendance at Norfolk
schools dwindled as students were sent into surrounding school
districts to avoid a lost year of schooling.
The school board feared
the impact the resulting drop in education quality would have on
Norfolk schools — as well as their political careers.
The city
council and segregationist Mayor W. Fred Duckworth, however,
were more concerned with maintaining loyalty to Governor
Almond and the Byrd political machine. As such, they continued
their unfaltering opposition to integration while the school board
was pressuring officials to reopen schools.
The situation was so
dire that school board members were deliberating over whether or
not to implement a new tax to compensate for the complete loss of
state funds that would occur if Norfolk dared to operate integrated
A broad coalition of citizens opposed to massive
resistance was coalescing. The traditional political logic had been
upended as politicians increasingly found it in their self-interest to
end the crisis and integrate schools.

WHITE, supra note 3, at 165.
James H. Hershman Jr., Massive Resistance, ENCYCLOPEDIA VIRGINIA, (2011),
DOYLE, supra note 4, at 67-68.
WHITE, supra note 3, at 167-168.
DOYLE, supra note 4, at 67.
WHITE, supra note 3, at 141.
Payne 57

A new political coalition, consisting of white business
leaders and military personnel, saw the school closings as a threat
to their economic wellbeing. At one point, a group of top Virginian
business leaders personally met with Governor Almond to inform
him of how the school closings were depressing economic
Public protests from high school students worried about
the impact of not receiving an education attracted large media
attention and the school closings became an embarrassment for
local politicians.
Likewise, the League of Women Voters was
dismayed over children’s lack of education and heavily petitioned
local politicians to allow integration so that schools could be

At the same time, protest from African American churches
— which had long fought segregation within Norfolk — increased
and churches joined forces across racial and denominational lines
to pressure politicians into opening local schools. The Norfolk
Ministerial Association set up interracial preaching sessions with
Protestant and Catholic churches to decry the “blight of racism”
which had infected Norfolk.
In the past, African Americans had
been an ignored political group. Even modest requests for more
police to protect against racial violence had gone ignored by the
city council and mayor of Norfolk.
For organizations like the
Black Baptist United Front to suddenly have influence over local
politics marked a dramatic shift in the political dynamics of
Local leaders quickly recognized that backlash to
massive resistance had forever changed politics in Norfolk.
The result of this new political landscape was an increasing
unpopularity for massive resistance. Military, education, and

HERSHMAN, supra note 40.
BLY, supra note 9, at 111.
Id. at 110.

Kansas Whip [Topeka Kansas], Church Groups Push Efforts Against Racial Segregation
WHITE, supra note 3, at 49.
BLY, supra note 9, at 110.
58 WULR Vol VII, Issue III Spring 2014

business interest groups which had previously been indifferent to
the moral issue of segregation began to oppose massive resistance
as it began to directly affect their own economic interests. White
voters were less likely to lend their support to candidates who
promised to maintain segregated schools. The lesson was
reinforced for elected officials when a local referendum with low
turnout and biased wording resulted in 41% of Norfolk residents
voting to reopen schools, a number much higher than previous
levels of support for integration.
The political power of massive
resistance proponents was fading —Mayor W. Fred Duckworth
had tried in vain to postpone the referendum out of fear that it
would successfully lead to integration.
The school board soon
made the decision to defy the state’s orders to resist integration.
They had come to value their local community’s interests more than
any potential government contracts or favors from the Byrd

Politicians had been forced to backtrack on massive
resistance. What had once been a politically winning issue had
turned toxic after it began hurting the very constituents it was
purported to help. Governor Almond was content to abandon his
position and let the courts settle the issue. On January 19
, 1959,
the United States District Court for the Eastern District of Virginia
ruled in James v. Almond that Virginia’s closing of public schools
violated the equal protection clause of the 14
amendment and §129
of Virginia’s constitution; that same day, the Supreme Court of
Virginia likewise ruled in Harrison v. Day that Governor Almond’s
decision to close public schools violated Virginia’s constitution.

Segregation had come full circle; the same legal arguments used to
justify massive resistance had been used to reopen schools and
begin integration. Almond retreated and formally declared an end

DOYLE, supra note 4, at 67.
Bob Dodson, Public Opinion Not Ready for Vote Now, Says Mayor: Referendum on Schools Seen
Possible, Ledger-Star (1958).
WHITE, supra note 3, at 168.
HERSHMAN, supra note 40.
Payne 59

to massive resistance, finally putting an end to Norfolk’s protracted
political crisis.

Politicians and citizens of Norfolk were intent on
maintaining segregation because of the strong political and
economic benefits it conferred to them. Even after Brown, they
continued to successfully defend segregation but this could only be
maintained for so long. An onslaught of litigation inevitably forced
district courts into enforcing the precedent Brown created. Judge
Walter Hoffman did just this when he ordered the integration of
Norfolk schools. By doing so, Hoffman fractured support for
massive resistance by forcing segregationists to enact gradually
more radical methods of avoiding integration. The resulting
political decisions, which culminated in the closure of Virginia
public schools, turned the public against massive resistance and
made it politically advantageous to support gradual integration.
Segregation, once a system of white supremacy which seemed
impenetrable, had, through a synthesis of political action and
litigation, been dismantled and a semblance of equality was
bestowed upon Norfolk schools.

Almond Hails State Court School Rule, THE WASH. POST & TIMES HERALD, September 27,
1959, at B18.
Vacating Convictions:
The Efficacy of One Form of Relief from the
Consequences of Conviction

By Emily Tenenbom*

This piece is an in-depth exploration of the implications of
Washington State’s vacate statute, which allows ex-offenders to
retroactively state that they were not convicted of that crime
should they meet particular conditions. Despite exhaustive
sociological work and legal scholarship investigating the various
“collateral consequences” of criminal convictions, few in
academia have pursued an in-depth analysis of the efficacy of
existing legal modes of relief. This study is significant in that it
closely examines a specific and widely-utilized legal remedy; it
seeks to answer whether, and in what ways, vacating a
conviction in Washington State operates as an effective post-
conviction mode of relief from the stigma associated with a
criminal conviction. The results of this study indicate that the
mitigating impact of vacating on the stigma of conviction is
often temporary and is inconsistent at best, its potential
inhibited in large part by the increasing presence of material
criminal records. However, according to qualitative data from
ten respondents, vacating is worthwhile in that it can increase
self-confidence and communicate positive self-understandings to
individuals who have been perpetually misrepresented and

*Emily Tenenbom will be graduating from the University of Washington
in June 2014 with degrees in Political Science (Honors), and the
Comparative History of Ideas. Her undergraduate interests include: social
justice, race, gender, and identity studies, American legal institutions,
public policy, criminal justice, education, public and global health, and
film and media studies. Emily serves on the judicial committee for the
Tenenbom 61

Associated Students of the University of Washington, and is a member of
SARVA (Sexual Assault and Relationship Violence Activism). In her spare
time she enjoys playing basketball, eating interesting food, snowboarding,
watching documentaries and cartoons, and traveling as much as possible.

Table of Contents
IIa. National Figures and Scope 67
IIb. Legal Forms of Relief in Washington 71
IIC. Historical Overview: Vacating within the Context of Shifting
Penal Ideologies 73
IIIa. Perpetuation of Stigma and Collateral Consequences 76
IIIb. Interdisciplinary Analyses of Consequences of
Conviction 79
IIIC. Measures to Catalogue, Limit, and Prohibit Consequences of
Conviction 81
IVa. Indicators of Potential Efficacy 84
IVb. Indicators of Potential Non-Efficacy 86


Imprisonment has become the response of first resort to
far too many of the social problems that burden people who
are ensconced in poverty. These problems often are veiled by
being conveniently grouped together under the category
“crime”… Homelessness, unemployment, drug addiction,
mental illness, and illiteracy are only a few of the problems
that disappear from public view when the human beings
contending with them are relegated to cages. Prisons thus
62 WULR  Vol VII, Issue III  Spring 2014

perform a feat of magic… But prisons do not disappear
problems, they disappear human beings.

Angela Davis, renowned political scholar and equal rights
activist, speaks about the act of disappearing human beings; yet,
this “feat of magic” is performed not only by material prisons.
Numerous components of the American criminal justice system,
including less visible laws, regulations, and underlying ideologies,
substantially diminish the rights and privileges of persons
previously convicted of crimes.
The stigmatization of an individual,
the reduction of a human to a ‘non-citizen’ or a ‘criminal’, is
facilitated by a set of textual documents and regularly exacerbated
by the proliferation of records-keeping technologies and industries.
Whether or not an individual was at some point relegated to a cage,
and despite whether he or she has completed all the terms of
sentence, the material records documenting his or her past and
involvement in the criminal justice system exist. These records act
as a perpetual signifier which carries with it a set of unprecedented
and nearly inescapable ‘collateral consequences’.
In the last 30 years, the legal status of criminal has
exploded into a unique category of marginalization. Dichotomies of
inclusion and exclusion have continuously functioned to structure
and maintain the social order and delineate “boundaries of the body
politic”. At various historical moments, race, sex, nationality,
religion, (dis)ability, literacy, and socio-economic status have
served this purpose.
These classifications continue to work in
substantial, although generally covert, ways to influence political
participation and social engagement. The many intersections and
Angela Davis, Masked Racism: Reflections on the Prison Industrial Complexi, Sept. 1998.
Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE
Mauer and Meda Chesney-Lind eds., 2002).
Alec Ewald, ‘Civil Death’: The Ideological Paradox of Criminal Disenfranchisement Law in the
United States WISCONSIN L. REV. 1045 (Jan. 2002).

Tenenbom 63

synapses between ascriptive
discrimination and criminality have
become strikingly significant and relevant phenomena. Yet unlike
many of these subjugated groups, to be ‘criminal’ is neither an
immutable characteristic nor an inherited position, but a label
created by laws and norms and assigned to those who have acted
outside the construct of legality.
Furthermore, although stigma has always been affixed to
criminal behavior, the rapidly advancing technology of criminal
records databases has revolutionized the processes by which the
stigma associated with a criminal record produces a material
These innovations in information technology, as well as
the growth of the criminal records reporting industry, have
expanded the reach of background checks and significantly
increased public dissemination of this information, thereby
aggravating the stigma and collateral consequences of conviction.
These ‘collateral consequences’ are penalties and disabilities that
work to diminish the rights and privileges of citizenship and social
engagement of people with criminal records; they take the form of
automatic legal sanctions and of discretionary civil disadvantages.

In sociological literature, ascription, as opposed to achievement, is widely understood
as discrimination or social stratification based solely upon those qualities which are
either hereditary or are beyond the control of the individual; primarily, race, sex,
ethnicity, religion, and geographical location.
Eric Dunn and Marina Grabchuk, Background Checks and Social Effects: Contemporary
Residential Tenant-Screening Problems in Washington State, 9, 1 SEATTLE JOURNAL FOR SOCIAL
SCIENCE 320 (2012). Dunn and Grabchuk’s article details current residential screening
industry practices and the social problems that they often cause. Many of their findings
apply to employee screening industry practices as well; Cf. James Jacobs, Mass
Incarceration and the Proliferation of Criminal Records, 3 UNIVERSITY OF ST. THOMAS LAW
JOURNAL 3 (2006).
http://ir.stthomas.edu/cgi/viewcontent.cgi?article=1090&context=ustlj [hereinafter
Jacobs, Proliferation]. This article investigates the impact of the proliferation of criminal
records as a phenomenon separate from “de jure discrimination,” and explicates the
challenges that “de facto discrimination based on criminal records” presents. It provides
an in-depth overview of the extent and variety of material criminal records databases,
and accounts for how advancing information technology contributes to the increased
public availability and dissemination of criminal background information.
Collateral Sanctions and Discretionary Disqualifications of Convicted Persons, A.B.A. STANDARDS
ed. 2004). These Standards, which are widely observed in the
literature, distinguish between collateral sanctions and discretionary disqualifications.

64 WULR  Vol VII, Issue III  Spring 2014

They differ from the direct consequences of a criminal conviction;
first, in that they are not imposed, nor regularly or necessarily
contemplated, during the sentencing process.
Second, they are
experienced predominantly outside of the judicial realm. Third,
such consequences often continue to occur long after all terms of
the sentence have been completed. While the imposition of
collateral consequences has long been engendered by the stigma of
criminal behavior, the transformation of the criminal records
industry and the increasing availability of criminal background
information have greatly amplified the impact of the stigma
associated with conviction.
A diverse body of literature meticulously examines the
collateral consequences of conviction, and demonstrates the
destructive impact of the stigma of conviction on individuals,
families, and communities.
Studies specifically assess the effect of
conviction on employment, economic mobility, and social
the ways race and a criminal record interact to
The former are imposed automatically upon a person's conviction; the latter are
authorized but not required to be imposed by a civil jurisdiction.
Recently, specific collateral consequences of conviction, particularly on immigration,
have begun to be increasingly considered in the sentencing process especially by the
defense. Padilla v. Kentucky (2010) found that defense attorneys must advise their non-
citizen clients about the risks of deportation that arise from a guilty plea or conviction.
This case instigated further, ongoing debate about whether and to what extent Counsel
should advise their clients about other collateral consequences of conviction.
Solomon, and Michelle Waul From Prison to Home: The Dimensions and Consequences of Prisoner
Reentry, THE URBAN INSTITUTE (2001), available at
www.urban.org/pdfs/from_prison_to_home.pdf. Travis, Solomon, and Waul offer a
useful comprehensive overview of the implications of release decisions, substance abuse,
mental and physical health, and other conviction-related issues on individuals, children
and communities.
Cf. Michelle Rodriguez and Maurice Emsellem, 65 Million ‘Need Not Apply’, NATIONAL
EMPLOYMENT LAW PROJECT (Mar. 2011). This publication provides a valuable
description of the harms caused by overbroad restrictions and unlawful use of criminal
background checks in hiring decisions. See “Collateral Costs: Incarceration’s Effect on
Economic Mobility” THE PEW CHARITABLE TRUSTS (2010).; Becky Pettit and Bruce
Western, Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration
69, 2 AMERICAN SOCIOLOGICAL REVIEW 151-169 (2004).; Sara Wakefield and
Christopher Uggen, Incarceration and Stratification, 36 ANNUAL REVIEW OF SOCIOLOGY 387-
406 (2010).

Tenenbom 65

produce new forms of labor market inequalities,
and the
disproportionate impact of a criminal record on people of color.

The depth and variety of perspectives employed by these studies
indicates that there is a general, albeit recent, consensus in
academia that the implications of conviction are unjust and
detrimental to the societal goals of rehabilitation and preventing
recidivism. Efforts have been made to identify and expand the
available modes of relief,
and non-profit organizations in many
states devote resources attempting to mitigate the effects of these
indirect consequences through both legal and social means.

This paper attempts to isolate the label of ‘criminal’, in
particular that which lingers post-conviction. It asks how such an
identifier, not immediately evident on a person’s body (but tangible
nonetheless), works to structure their experience. Legal
mechanisms and social resources exist which attempt to shed the
stigma of criminality and thereby mitigate certain lasting
consequences of a criminal conviction. What perceptible difference,
if any, does it make to utilize the available legal remedies? Despite
exhaustive sociological work and legal scholarship investigating
the various residual effects of conviction, few in academia have
pursued an in-depth analysis of the efficacy of existing modes of
relief. This study closely examines a specific and widely-utilized
legal remedy. This is significant, because it seeks to answer
whether, and in what ways, vacating a conviction in Washington
State operates as an effective post-conviction mode of relief from
Devah Pager, The Mark of a Criminal Record, 108, 5 AMERICAN JOURNAL OF SOCIOLOGY
937-75 (2003). Available at http://www.princeton.edu/~pager/pager_ajs.pdf.
Michael Pinard, Confronting Consequences of Criminal Convictions: Confronting Issues of Race
and Dignity, 85 N.Y.U. L. REV 457-534 (2010).; MICHELLE ALEXANDER, THE NEW JIM
See Margaret Love and April Frazier, Certificates of Rehabilitation and Other Forms of Relief
from the Collateral Consequences of Conviction: A Survey of State Laws, A.B.A. COMMISSION ON
EFFECTIVE CRIMINAL SANCTIONS, (Oct. 2006).; Margaret Love, Relief from the Collateral
Consequences of a Criminal Conviction: A State-By-State Resource Guide, OPEN SOCIETY
http://aclu-wa.org/secondchances.; Get Legal Help, NORTHWEST JUSTICE PROJECT,
Available at http://nwjustice.org/get-legal-help.

66 WULR  Vol VII, Issue III  Spring 2014

the stigma associated with a criminal conviction. It asks whether
those who have taken every available measure to regain their rights
and privileges as contributing citizens can successfully alleviate the
stigma of a criminal conviction and thereby mitigate the
consequences of conviction on employment, housing, relationships,
and identity.
The rest of this paper proceeds in six sections. Part II
presents the context for this study though both a historical and
contemporary lens. Part III develops the conceptual framework
from which the premise for this study is derived, emphasizing the
multitudinous and intersecting consequences of conviction. It
discusses the existing scholarship on this matter in greater detail,
highlighting the predominant issues and theoretical perspectives.
Part IV deals specifically with the potential impact of
Washington’s vacate statute, suggesting that a critical
interrogation of the efficacy of this particular relief mechanism is
necessary. Part V outlines the methodology of the study, including
its limitations and its advantages. Part VI provides analysis of the
findings, using qualitative data from ten semi-structured interviews.
Finally, Part VII summarizes the results, framing them as a
preliminary report that intends to draw more attention to the
question of post-conviction relief and incite further systematic and
analytic research. It synthesizes the findings with the previous
sections, and offers a brief discussion concerning the broader
philosophical and practical aspects of vacating a criminal


This section will provide relevant statistical data
illustrating the scope of consequences of conviction, followed by an
overview of the legal forms of relief from the consequences of
conviction in Washington State. Last, the section will present a
historical account of Washington’s current vacate statutes.
Tenenbom 67

IIa. National Figures and Scope

It is widely acknowledged that the United States has the highest
incarceration rate in the world, with roughly one in every 100
American adults currently imprisoned.14 This rate far surpasses that
of other similarly situated nations. It is widely acknowledged that the
United States has the highest incarceration rate in the world, with
roughly one in every 100 American adults currently imprisoned.

This rate far surpasses that of other similarly situated nations.

Approximately 2.2 million individuals are currently incarcerated, and
a total of 7 million individuals are under some form of state or federal
correctional supervision.
Although limited empirical data has been
produced regarding the number of former offenders in the United
States, one study estimates that there are about 11.7 million “ex-felons”
and 4.4 million felons currently incarcerated or under community
supervision, resulting in a class of over 16 million total individuals
with felonies.
This calculation does not include individuals with
misdemeanors. In addition, nearly one in three Americans will be
arrested at least once by age 23.
This rudimentary algorithm reveals
that between 47 and 65 million Americans, or roughly one quarter of
the adult U.S. population, has some form of criminal record on file
with state or federal criminal justice agencies.
The implications of
Jenifer Warren et. al., One in 100: Behind Bars in America 2008, 3 THE PEW CHARITABLE
TRUSTS (2008).
Jenifer Warren et. al., One in 100: Behind Bars in America 2008, 3 THE PEW CHARITABLE
TRUSTS (2008).
Id. 5
Christopher Uggen, Jeff Manza, and Melissa Thompson, Citizenship, Democracy, and the
Civic Reintegration of Criminal Offenders, 605 THE ANNALS OF THE AMERICAN ACADEMY 285
Supra at 288. “Ex-felons” are individuals with felonies who are no longer under
correctional supervision.
Marc Mauer, RE: Comment in Support of EEOC’s Enforcement Guidance on Criminal Background
Id.; Travis, supra note 2, at 18; Rodriguez, supra note 9, at 3; AM. CIVIL LIBERTIES UNION
OF WASH. FOUND., Introduction to Clearing Criminal Records in Washington State:
Guide for Criminal Records Project Volunteers, in CRIMINAL RECORDS PROJECT 3 (2012).

68 WULR  Vol VII, Issue III  Spring 2014

these data are wide-ranging and extend far beyond the scope of this
paper. Of central importance, however, are the millions of Americans
confronted with impediments to employment, housing, and other
necessary elements for successful reentry into civic life.
Federal anti-discrimination guidelines prohibit
discrimination against individuals exclusively on the basis of having a
criminal record. According to the U.S. Equal Employment
Opportunity Commission, when making decisions employers are
required to consider the nature of the crime, the length of time since
the criminal conduct occurred, and the nature of the job in question.

However, a survey by the Society for Human Resources Management
found that over 90 percent of companies use criminal background
checks to screen potential employees during the hiring process, and
over 70 percent find even a non-violent misdemeanor influential in
the decision to not extend a job offer.
Many housing providers are
equally reluctant to rent to individuals with criminal histories.

Commercial criminal background checks are provided inexpensively
to employers and landlords by a burgeoning industry of private
Consumer Reporting Agencies (CRAs), companies who subscribe to
national and statewide court databases for such information.
However, background reports have been found to be in violation of
the Fair Credit Reporting Act due to inaccurate reporting, false
positives, and over-reporting offenses. Even FBI background checks
report outdated information 50 percent of the time.
Title VII of the Civil Rights Act of 1964 prohibits employment
discrimination based on disparate impact, so exclusion based on
RIGHTS ACT OF 1964 (2005), available at eeoc.gov/laws/guidance/arrest_conviction.cfm.

Tenenbom 69

criminal records must not operate to disproportionately exclude
people of a protected class, such as race, religion, sex, or national
origin. However, since proving violation of these guidelines is
arduous and requires resources and exceptional circumstances,
bringing a discrimination claim is an ineffective if not wholly
unavailable mode of recourse for most individuals facing barriers to
employment and housing.
It is widely acknowledged that the United States has the
highest incarceration rate in the world, with roughly one in every 100
American adults currently imprisoned.
This rate far surpasses that
of other similarly situated nations.
Approximately 2.2 million
individuals are currently incarcerated, and a total of 7 million
individuals are under some form of state or federal correctional
Although limited empirical data has been produced
regarding the number of former offenders in the United States, one
study estimates that there are about 11.7 million “ex-felons” and 4.4
million felons currently incarcerated or under community supervision,
resulting in a class of over 16 million total individuals with felonies.

This calculation does not include individuals with misdemeanors. In
addition, nearly one in three Americans will be arrested at least once
by age 23.
This rudimentary algorithm reveals that between 47 and
65 million Americans, or roughly one quarter of the adult U.S.
population, has some form of criminal record on file with state or
federal criminal justice agencies.
The implications of these data are
wide-ranging and extend far beyond the scope of this paper. Of
Jenifer Warren et. al., One in 100: Behind Bars in America 2008, 3 THE PEW CHARITABLE
TRUSTS (2008).
Id. 5
Christopher Uggen, Jeff Manza, and Melissa Thompson, Citizenship, Democracy, and the
Civic Reintegration of Criminal Offenders, 605 THE ANNALS OF THE AMERICAN ACADEMY 285
Supra at 288. “Ex-felons” are individuals with felonies who are no longer under
correctional supervision.
Marc Mauer, RE: Comment in Support of EEOC’s Enforcement Guidance on Criminal Background
Id.; Travis, supra note 2, at 18; Rodriguez, supra note 9, at 3; AM. CIVIL LIBERTIES UNION
OF WASH. FOUND., Introduction to Clearing Criminal Records in Washington State:
Guide for Criminal Records Project Volunteers, in CRIMINAL RECORDS PROJECT 3 (2012).

70 WULR  Vol VII, Issue III  Spring 2014

central importance, however, are the millions of Americans
confronted with impediments to employment, housing, and other
necessary elements for successful reentry into civic life.
Federal anti-discrimination guidelines prohibit
discrimination against individuals exclusively on the basis of having a
criminal record. According to the U.S. Equal Employment
Opportunity Commission, when making decisions employers are
required to consider the nature of the crime, the length of time since
the criminal conduct occurred, and the nature of the job in question.

However, a survey by the Society for Human Resources Management
found that over 90 percent of companies use criminal background
checks to screen potential employees during the hiring process, and
over 70 percent find even a non-violent misdemeanor influential in
the decision to not extend a job offer.
Many housing providers are
equally reluctant to rent to individuals with criminal histories.

Commercial criminal background checks are provided inexpensively
to employers and landlords by a burgeoning industry of private
Consumer Reporting Agencies (CRAs), companies who subscribe to
national and statewide court databases for such information.
However, background reports have been found to be in violation of
the Fair Credit Reporting Act due to inaccurate reporting, false
positives, and over-reporting offenses. Even FBI background checks
report outdated information 50 percent of the time.
Title VII of the Civil Rights Act of 1964 prohibits employment
discrimination based on disparate impact, so exclusion based on
criminal records must not operate to disproportionately exclude
RIGHTS ACT OF 1964 (2005), available at eeoc.gov/laws/guidance/arrest_conviction.cfm.

Tenenbom 71

people of a protected class, such as race, religion, sex, or national
origin. However, since proving violation of these guidelines is
arduous and requires resources and exceptional circumstances,
bringing a discrimination claim is an ineffective if not wholly
unavailable mode of recourse for most individuals facing barriers to
employment and housing.

IIb. Legal Forms of Relief in Washington

Yearend 2012 witnessed over 33,000 persons incarcerated or
under Department of Corrections’ community supervision in
Washington State alone.
In Washington, individuals can pursue
post-hoc relief from the collateral consequences of conviction
through a few different available legal and statutory means:
gubernatorial pardon, sealing, or vacating their criminal record.
Gubernatorial pardons are virtually impossible to attain; after 53
months as governor, Washington’s Chris Gregoire had only granted
26 pardons.
Sealing, which involves making entire court records
private and inaccessible to the public, has become quite complex and
exacting due to the normative ideological belief that all adult criminal
activity and court proceedings should be publicly available. Sealing is
thus rarely granted, and customarily only after a conviction has been
vacated or when the court finds that the public interest in access to
the record is outweighed by compelling safety or privacy concerns for
the offender.

Last, vacating a conviction retroactively changes a conviction
to a non-conviction if certain conditions are met. Once a person’s
JUSTICE, PUB. NO. 242467, PRISONERS IN 2012: ADVANCE COUNTS 7 (2012); The Use of
Criminal History in Employment Decisions, SEATTLE MUN. CODE § 124201.14.17 (2013).
Jonathan Martin, Gregoire, Other Governers Reluctant to Grant Clemency, 2010 THE SEATTLE
TIMES, June 20, 2010 at (2010),
(Wash. Courts 2010) [hereinafter GUIDE],

72 WULR  Vol VII, Issue III  Spring 2014

record is vacated, he or she may legally state for all purposes,
including on employment and housing applications, that he or she
has never been convicted of that crime.
Approximately 2,229
individuals vacated one or more misdemeanor or felony convictions in
Washington State in 2012, and less than a third of those were also
While vacating a conviction does not destroy the court file
nor fully eradicate an individual’s criminal history, it is nonetheless
the most accessible statutory means to attempt to reduce the stigma
and collateral consequences of a conviction, especially regarding the
barriers to employment and housing.
The Revised Code of Washington (RCW), the compilation of
permanent state laws in effect, contains two statutes concerning the
vacation of criminal convictions. RCW 9.94a.640 provides for the
vacation of an offender’s record of a felony conviction, and RCW
9.96.060 is the vacation of a misdemeanor conviction. In both cases,
certain crimes cannot be vacated, including violent offenses and
attempts, crimes against persons, Class A felonies and attempts, sex
offenses, and DUIs. Furthermore, both statutes include specific
conditions that the individual must meet in order to be eligible.
RCW 9.94a.640 states that in order to vacate a felony conviction, the
offender must have completed all terms of the sentence, paid all legal
financial obligations (LFOs), and obtained a Certificate of Discharge
stating so. At the date of discharge from correctional supervision, a
waiting period will commence until the offender is eligible to vacate;
for instance, ten years for a Class B felony. The offender cannot have
any subsequent convictions, nor can he or she have any charges
pending in any court.
RCW 9.96.060 outlines a similar set of
A.J. Rex, Summary: Case Count and Person Count of Vacated Convictions in Washington State in the
Past Three Years, 2013 ADMIN. OFF. OF THE COURTS, Sept. 3, 2013 at (2013) (this dataset is the result of
a Data Dissemination Request submitted to the AOC in August 2013, and includes only information
provided to AOC by each county. The AOC was unable to provide information regarding how many
motions to vacate were filed each year, per the researcher’s request, because that data is not kept by the
Court. See Appendix A.).

WASH. REV. CODE § 9.94a640.x (2012).

Tenenbom 73

necessary circumstances in order to vacate a misdemeanor conviction,
such as a three-to-five year waiting period since completion of the
terms of the sentence, and no previous domestic violence convictions.
Of particular significance are two provisions which state that a
misdemeanor cannot be vacated if: “(g) the offender has been
convicted of a new crime in this state, another state, or federal court
since the date of conviction; (h) the applicant has ever had the record
of another conviction vacated”.

Since vacating a felony changes the conviction to a non-
conviction, it is therefore possible to vacate multiple felonies in
reverse chronological order beginning with the most recent.
However, the two provisions aforementioned in RCW 9.96.060
prevent individuals with multiple offenses from vacating any
convictions prior to their most recent misdemeanor; thus, it is
significantly easier to vacate a felony than a misdemeanor despite
the fact that a misdemeanor is generally a less serious offense.
Furthermore, the statute sanctioning the vacation of a
misdemeanor also restricts the ability to vacate felony convictions.
Taken together, these provisions significantly limit the capacity
and applicability of vacating a criminal conviction.

IIC. Historical Overview: Vacating within the Context of Shifting Penal

The inconsistent and ad hoc legal treatment of collateral
as evidenced by the discrepancy between the felony
and misdemeanor vacate statutes, must be considered within a larger
historical and political context. Since the founding of the United
States’ judicial system, the dominant ideology surrounding crime and
punishment has fluctuated between a heavily punitive, retributive
approach and one more focused on rehabilitation. Historically, then,
there has been no consensus reached about what constitutes a
WASH. REV. CODE § 9.96.060.x (2012).

74 WULR  Vol VII, Issue III  Spring 2014

collateral consequence,
how to address the impact of the stigma
associated with conviction, nor about sufficient methods of
rectification. Post-hoc relief and the right to vacate a conviction have
thus been long struggled over within the broader vacillation of penal
ideology at both the state and federal level.
In the first half of the 1900s, the ideals of rehabilitation
permeated the political atmosphere, and the principles of judicial
discretion guided sentencing policies and practices.
in sentencing allowed for the consideration of individual
circumstances and personalized utilization of legal avenues of
rehabilitation. During this time period in Washington State, an
offender could motion the court to retroactively dismiss information
or indictment after he or she demonstrated rehabilitation and
completed probation. However, the 1950s would be the pinnacle of
this model of punishment;
thereafter, both liberal and conservative
reformers began to criticize this paradigm. They argued not only that
it allowed for too much leniency, but also that rehabilitation efforts
had proven relatively unsuccessful, indeterminacy in sentencing
caused disparities in punishment for similar offenses, and a system
based on judicial discretion was leading to detrimental racial
discrepancies. Thus, the late 1970s saw a bipartisan legislative effort
to move instead towards a uniform, nondiscretionary penal model
focused on competing principles of retribution, incapacitation, and

The reemergence of more punitive sentencing practices on
both the federal and state level occasioned the enactment of the 1981
Sentencing Reform Act (SRA) in Washington State. This was a move
Id. at 11
David Boerner & Roxanne Lieb, Sentencing Reform in the Other Washington, 2001 CRIME &
JUST. 28(2001) (the overview of the fluctuating penal atmosphere and federal sentencing
guidelines provided here is by no means comprehensive and does not do justice to the
complex and interwoven stories which have influenced this history; Boerner and Lieb’s
article, however, presents a detailed and comprehensive account of the legislative history
of federal sentencing reform.).
Kate Stith & Steve Koh, The Politics of Sentencing Reform: The Legislative History of the Federal
Sentencing Guidelines, 28 WAKE FOREST L. REV.240 (1993).

Tenenbom 75

which both reflected and informed the dominant penal ideology, one
that highly condemned and stigmatized criminal activity. Judicial
compliance with the SRA was high, and by 1986 “implementation
was complete and [it] was an accepted feature of the criminal justice
Under this model, the possibility of parole for felonies
was abolished. Remarkably, however, the previously existing mode of
relief from the impact of conviction (allowing for the retroactive
dismissal of information or indictment after completion of probation)
was not abolished; rather, it was effectively re-codified from its
original clause into the current felony vacate statute, RCW 9.94a.640,
with only slight differences. This provision endured because the
ability to vacate a conviction clearly provided only very limited post-
hoc relief, and thus did not threaten to destabilize an increasingly
punitive system.
However, a contentious debate emerged over the accurate
interpretation and implementation of the new felony vacate statute
and other existing relief mechanisms, and voices advocated for
further restoration of rights and adequate post-hoc avenues to
alleviate the stigma associated with conviction. For example, in State v.
Breazeale (2000), the Court found that existing statutes did sanction
the vacation of two respondents’ records of conviction, and that the
related criminal history record information could not be publicly
Furthermore, parties such as criminal defense
lawyers and civil rights activists applied the language of the SRA to
authorize the vacation of misdemeanors as well as felonies, despite
opposition from prosecuting attorneys.
In 2001, in an effort to
clarify the language and meaning of post-hoc relief laws, the
Washington State Legislature ratified a bill enacting RCW 9.96.060
(Chapter 140 of 2001 Washington State Session Laws) which
allowed for the vacation of an offender’s misdemeanor conviction.
However, the statute includes the aforementioned stipulation
State v. Breazeale, (nos.18159-6-III, 18160-0-III.).
ATTORNEY (interview by Emily Tenenbom, December 12, 2012).

76 WULR  Vol VII, Issue III  Spring 2014

limiting an applicant to the vacation of only one misdemeanor
Thus, RCW 9.96.060 was ultimately enacted as a
compromise, even a concession, in order to make the laws clear and
consistent without undercutting the dominant punitive practices of
the late twentieth century.


The struggle over the ability to vacate a conviction in
Washington reflects the contentious and ongoing debate concerning
the greater significance of mass involvement in the criminal justice
system. As the ideological pendulum swings uncertainly back
towards rehabilitation and indeterminate sentencing, we observe the
materialization of a robust body of literature exploring the collateral
consequences and the stigmas associated with a criminal record. This
part presents a theoretical framework for understanding the
aggregate impact of conviction. First, it discusses the processes by
which the indirect consequences of conviction have emerged and
solidified; its second section delineates interdisciplinary analyses of
the material impact of conviction; the part then concludes with an
overview of the measures that have been taken to address these issues.

IIIa. Perpetuation of Stigma and Collateral Consequences

The criminal justice system aims at avoiding recidivism and
promoting rehabilitation, yet collateral sanctions and
discretionary barriers to reentry may severely impede
offenders' ability for self-support in the legitimate economy
and perpetuate their alienation from the community. This is
not only a problem of fairness to offenders, but of public
safety and fiscal responsibility as well.

ABA, supra note 5, at 13.

Tenenbom 77

The American Bar Association’s “Standards for Criminal
Justice: Collateral Sanctions and Discretionary Disqualifications of
Convicted Persons” (2004) articulates the paradox that is intrinsic
to contemporary punishment. The retributive era influenced the
actualization of pertinent societal values and the emergence of
many collateral consequences; nevertheless, it would be insufficient
to attribute the continued perpetuation of these discretionary
barriers (stigma) and other collateral consequences exclusively to
the harsh general attitude towards crime at that time. Rather,
socio-legal discourse highlights several factors that have
contributed to the social construction of consequences of
One branch of this scholarship attributes the persistence of
collateral consequences in part to conceptual semantics as well as
compartmentalized legalistic definitions. Jeremy Travis, President
of John Jay College of Criminal Justice, contends that “through
judicial interpretation, legislative fiat, and legal classification, these
forms of punishment have been defined as ‘civil’ rather than
criminal in nature, as ‘disabilities’ rather than punishments, as the
‘collateral consequences’ of criminal convictions rather than the
direct results”.
He thus attributes these codified consequences to
the stigma ascribed to conviction, and their invisibility to the label
“collateral” itself. The 2004 ABA Standards, which outline uniform
legislative guidelines for categorizing, prohibiting, limiting, and
providing judicial or administrative relief mechanisms for certain
types of legal sanctions and civil disqualifications, second this
diagnosis. Its main premise is that “it is neither fair nor efficient for
the criminal justice system to label significant legal disabilities and
penalties as ‘collateral’ and thereby give permission to ignore them
in the process of criminal sentencing, when in reality those
disabilities and penalties can be the most important and permanent
results of a criminal conviction”.
The ABA Standards assert also
Travis, supra note 2, at 16.
ABA, supra note 6, at 11.

78 WULR  Vol VII, Issue III  Spring 2014

that the lack of consensus surrounding the designation of
“collateral” has resulted in the failure to address the related due
process violations.

Other perspectives concerning the perpetuation of
collateral consequences emphasize historical ontology. Michael
Pinard (2010), in an article which offers a detailed comparative
examination of the United States’ criminal justices practices
against similarly situated nations, reasons that the proliferation of
collateral consequences in this country cannot be explained merely
by the lasting implications of the retributive era’s harsh-on-crime
ideology. He argues instead that “these policies not only
disproportionately impact people of color, but were designed, at
least in part, specifically to do so, as their disproportionate impact
was quite foreseeable”
He thus grounds the inflation and
current severity of these invisible penalties and disabilities in
historical social- and market-based systems of racial discrimination.
Michelle Alexander’s provocative book The New Jim Crow: Mass
Incarceration in the Age of Colorblindness (2010) expands on this idea.
She contends that mass incarceration and the closely associated
stigma of conviction have specifically targeted and excluded
African Americans, not inadvertently creating a racialized,
marginalized underclass reminiscent of the Jim Crow era. Prior to
the passage of the Civil Rights Act, she reasons, attempts to
disguise the racial motivations for harsh criminal justice legislation
were minimal. After its passage, and as the acceptable discourse
shifted, explicitly racist punitive schemas were replaced by rhetoric
emphasizing law and order exclusively. However, Alexander
explains, “the battle lines…remained largely the same. Positions
taken on crime policies typically cohered along lines of racial
Id. at 10
Pinard, supra note 11, at 512.
DISADVANTAGED NEIGHBORHOODS WORSE 54 (2007), Clear also contributes to the
discussion of the ways in which incarceration and its effects impact different and
somewhat unexplored facets of communities.

Tenenbom 79

She purports that the criminal justice system in its
existing state is aimed principally at minorities, dubbing white
offenders the “collateral damage” of its practices.

IIIb. Interdisciplinary Analyses of Consequences of

Rooted in racial marginalization and prolonged by the
reluctance of a punitive system to reexamine sentencing practices,
the material impact of a criminal conviction cannot be extricated
from considerations of race, socio-economic hierarchies, and power.
As Shannon and Uggen et al. argue, “because the felon population is
drawn so heavily from the most disadvantaged groups in American
society…understanding this group’s historical growth and current
size is vitally important for understanding and addressing U.S.
social inequalities”.
Devah Pager is one leading scholar who
recognizes the futility of reducing the discussion to a single
dimension; she thus reconciles considerations of race with those of
economic mobility and employment prospects in her work. The
results of her inquiry in the renowned study The Mark of a Criminal
Record (2003) confirm the causal relationship between a criminal
record and employment outcomes, paying particular attention to
the differing outcomes for black and white men. Pager’s report
finds that ex-offenders are only one-half to one-third as likely as
non-offenders to be considered by employers; black non-offenders
fare even worse than whites with past felony convictions and may
be even more impacted by a criminal record than whites.
data reveal that, not only does a criminal record present a major
Alexander, supra note 11, at 42,139-60; See also Ewald “Civil Death: Criminal
Disenfranchisement,”; Marc Mauer, Felon Voting Disenfranchisement: A Growing Collateral
Consequence of Mass Incarceration, 12 Federal Sentencing Reporter 243, 248-51(2000), for
further philosophical and political critiques of felon disenfranchisement.
Alexander, supra note 11, at 202.
Sarah Shannon, et al., Growth in the U.S. Ex-Felon and Ex-Prisoner Population, 1948-2010 12
(Univ. of Ga., Demography, 2011).
Pager, supra note 10, at 960-1.

80 WULR  Vol VII, Issue III  Spring 2014

structural barrier to employment, but that the consequences of
such labor market outcomes are profoundly conducive to
perpetuating racial inequalities.
While the core of Pager’s work considers the direct
influence of criminal records on labor market disparities, other
studies focus more broadly on the lingering impact of the criminal
justice system on other forms of social stratification. A 2010 PEW
study analyzes and quantifies the effect of incarceration and
societal reintegration on economic mobility. The findings of the
report indicate that individual economic prospects are
substantially diminished by imprisonment and further
compounded by the stigma of conviction upon release. This is
evidenced by factors including reduced employment opportunities,
hours, and wages. It also takes into consideration the
intergenerational impact of involvement in the criminal justice
system, suggesting that parental conviction directly affects family
income and children’s educational attainment which in turn
diminishes children’s prospects for future upward economic
Wakefield and Uggen (2010) similarly emphasize the
processes by which punishment engenders, rather than merely
reflects, inequality and social stratification.
Furthermore, few
dispute that the post-conviction patterns and needs of women
differ from those of men, and are often inadequately addressed by
traditional social programs.
However, the literature regarding
these particular gender disparities is notably deficient. This study
thus hopes to draw attention to the intersection of criminal records,
employment, and gender-based labor-market outcomes as well.
Sara Wakefield & Christopher Uggen, Incarceration and Stratification, 36 ANN. REV. SOC.
387 (2010).
See generally Candace Kruttschnitt & Rosemary Garter, Women’s Imprisonment, 30 CRIME
AND JUST. 1, 1-81 (2003) (providing an overview of experiences and issues directly
impacting women in prison, treatment, and post-incarceration, and some limited
consideration of collateral consequences).

Tenenbom 81

Further interdisciplinary studies on the intergenerational
and multifaceted consequences of conviction abound. These studies
collectively argue that racially disproportionate parental conviction
operates as a mechanism of social exclusion of minority groups, the
loss of income-earning males further threatens the stability of
disadvantaged communities, and that the diminished human and
social capital of individuals with convictions and their families and
communities is potentially the most profound implication of
America’s heavy reliance on its criminal justice system (Hagan and
Ronit, 1999; Foster and Hagan, 2009).
A parallel body of literature
scrutinizes consequences of conviction from a different angle; this
corpus takes into account both the economic costs and public
safety concerns caused by barriers to successful societal
reintegration (PEW, “1 in 100”, 2008; Travis, Solomon, and Waul,
2001). Many of these and other studies primarily examine the
short-term impact of imprisonment. Nevertheless, the majority of
the conclusions are easily broadened and applied to arrest and
conviction records, which in many ways operate with comparable
force as instruments of social and civil exclusion.

IIIC. Measures to Catalogue, Limit, and Prohibit Consequences of

See, e.g., Jeremy Travis et al., From Prison to Home: The Dimensions and Consequences
of Prisoner Reentry (2001) (exploring collateral consequences of conviction); see also
John Hagan & Ronit Dinovitzer, Collateral Consequences of Imprisonment for Children,
Communities, and Prisoners, CRIME AND JUST. 26, 121(1999) (discussing the impact of the
imprisonment of young men on the development of their children and communities); see
also Holly Foster & John Hagan, The Mass Incarceration of Parents in America: Issues of
Race/Ethnicity, Collateral Damage to Children, and Prisoner Reentry, ANNALS AM. ACAD. POL. &
SOC. SCI. 623, 179 (May 2009) (investigating the effects of socialization and
stigmatization on intergenerational outcomes of parental incarceration across race and
ethnicity). Furthermore, I refer here to social capital as the general concept in the social
sciences which assigns beneficial value to social networks and social contracts for
individuals and communities. Human capital, on the other hand, is an economic term
that here refers to the concept that humans are active agents who, through intelligence,
creativity, energy, and other qualities, generate economic development, productivity,
and innovation.

82 WULR  Vol VII, Issue III  Spring 2014

This exhaustive and expanding corpus of statistical data,
sociological research, legal scholarship, and philosophical critique
demonstrates and analyzes both the micro and macro level
implications of the stigma and collateral consequences of a criminal
record. In addition, this awareness recently progressed beyond the
limited realm of academia into the public sphere; government
entities and non-profit organizations are initiating measures to
collect and address some of the post-conviction consequences. In
2000, the Department of Justice released a manual cataloging the
federal statutes that impose collateral consequences upon
The ABA’s National Inventory of the Collateral
Consequences has listed over 40,000 such federal, state, and local
In 2012, a collaboration of non-profit organizations
published a legislative update listing the recently introduced policy
reforms throughout the country that work to mitigate the effect of
post-conviction legal sanctions.
While the impact of the stigma of
conviction is more challenging to address than tangible statutory
exclusions, Ordinance SMC 14.17 in Washington State takes effect
in November 2013 and intends to reduce discretionary employment
discrimination by prohibiting the categorical exclusion of all
persons with criminal records in job advertisements and
Margaret Love is one of the foremost scholars and activists
on this matter. Love was an advisor to the Uniform Collateral
Consequences of Conviction Act (UCCCA), which was enacted by
all the states in 2010. The UCCCA, which incorporates many of the
ABA Standards’ recommendations, also applies the Standards’
definitions of collateral sanctions and discretionary
disqualifications throughout. The onslaught of advocacy for post-
Federal Statutes Imposing Collateral Consequences upon Conviction, U.S. DEP’T JUST. (2000),
Federal Statutes Imposing Collateral Consequences upon Conviction, U.S. DEP’T JUST. (2000),
National Inventory of the Collateral Consequences of Conviction, A.B.A. (forthcoming Apr.
2014), http://www.abacollateralconsequences.org/.

Tenenbom 83

hoc relief has naturally invited criticisms; McGregor Smyth (2005)
lends one such compelling critique against the ABA’s definitions.
He argues that the pernicious conflation of collateral and direct
consequences of conviction is reinforced, rather than successfully
deconstructed, by the false distinction between legal sanctions and
discretionary disqualifications.
This fallacy is amplified by the
fact that the Standards’ definitions apply only to consequences
directly resulting from conviction, and therefore overlook the effect
of other forms of criminal records. Together, these two limitations
“significantly reduce [the Standards’] impact and ignore the actual
experiences of those suffering under invisible punishments”.

Despite unresolved disputes over definitions, however, this
expanding body of both scholarship and legislation indicates that
the consensus in academia, and increasingly in the political sphere,
is that the stigma and consequences of conviction are often
unjustified. Such consequences frequently violate due process, are
detrimental to public safety and fiscal responsibility, and have great
implications for racial and economic inequality.


While efforts to mitigate the collateral consequences of
conviction focus on the categorization, limitation, and legalistic
integration of legal sanctions and civil disqualifications into the
bundle of direct consequences of conviction, the consequences of
the stigma of conviction are significantly more difficult to regulate.
One of the predominant approaches to reducing the impact of
stigma is retroactive, such as providing post-hoc administrative or
judicial modes of relief. In Washington State, the misdemeanor and
McGregor Smyth, Holistic is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using
Invisible Punishments as an Advocacy Strategy, 36 U. TOL. L. REV. 479, 492 (2005), available
at http://brennan.3cdn.net/3cd3ab51bb9ce5a245_8lm6bhs7c.pdf.
ACLU et al., State Reforms Reducing Collateral Consequences for People with Criminal Records:
2011-2012 Legislative Round-Up, LEGIS. UPDATE (Legal Action Center, New York, N.Y.) Sept.

84 WULR  Vol VII, Issue III  Spring 2014

felony vacate statutes are perceived and utilized as one such legal
remedy; however, it is unclear whether the statutes are effective in
substantially diminishing the consequences of the stigma
associated with conviction. It is important to note that as the
ubiquitous material records of an individual’s past involvement in
the criminal justice system continue to expand, vacating
convictions raises an ethical question as well as a practical one. To
vacate a conviction is to legally deny that a conviction ever
occurred, when in reality, it did; it thus attempts to legitimate a
However, this question of legal ethics is beyond the scope
of this paper; such a discussion is relevant only after the impact of
existing modes of relief have been thoroughly evaluated. This
section explores the indicators of potential efficacy and non-
efficacy of vacating a conviction in Washington, suggesting that its
influence is unclear and thus implying the requisite nature of this

IVa. Indicators of Potential Efficacy

The high volume of motions to vacate a criminal conviction
granted at all court levels, as well as the heavy utilization of the
vacate statute by individuals and pro-bono legal organizations, are
strong indicators that vacating is generally perceived as an effective
post-hoc mode of relief from the stigma of conviction. The
reasonable accuracy of Washington’s criminal justice databases
Cf. Bernard Kogon & Donald L. Jr. Loughery, Sealing and Expungement of Criminal Records--
The Big Lie, 61 J. CRIM. L. CRIMINOLOGY & POLICE SCI., 378 (1970) (purporting that, rather
than conceal or modify a conviction, a better strategy to relieve the consequences of
conviction would be to attempt to successfully reintegrate the offender by emphasizing
evidence of rehabilitation, and to work to reduce social stigma once the impact of
existing modes of relief have been thoroughly evaluated). While this article is quite
dated, it nonetheless remains relevant. Indeed, to vacate a conviction is to retroactively
erect a un-truth. While this practice is motivated by good intentions, it may have the
adverse effect of reinforcing the social stigma around criminality by denying conviction.
This study thus synthesizes Kogon and Loughery’s point by maintaining that vacating
may have no more tangible influence than not vacating; the purposes of this study are
thus not at odds with Kogon and Loughery’s argument.

Tenenbom 85

supports this expectation and implies that the expanding
availability of material criminal records may not detract from the
mitigating effect of vacating a conviction.
Last year in Washington State, 2,573 motions to vacate a
misdemeanor or felony conviction were granted in Courts of
Limited Jurisdiction and Superior Court; an average of 7 motions to
vacate a misdemeanor or felony conviction have been granted per
day for the last three years in Washington.
Furthermore, non-
profit organizations such as the Northwest Justice Project and the
ACLU of Washington’s Second Chances Project provide pro-bono
legal assistance to indigent clients hoping to minimize the barriers
to employment and housing by vacating records of conviction; the
ACLU in particular has permanent staff working exclusively on
this matter.
The fact that these organizations dedicate substantial
resources to this matter reveals that vacating is assumed to be
effective at alleviating the negative impacts of the stigma of
Vacating a conviction alters the material record of an
individual’s past involvement in the criminal justice system; RCW
9.94a.640 allows for the vacation of an offender’s record of felony
conviction by “(a) Permitting the offender to withdraw the
offender's plea of guilty and to enter a plea of not guilty; or (b) if the
offender has been convicted after a plea of not guilty, by the court
setting aside the verdict of guilty”.
Thus, an offender whose
conviction has been vacated may legally state for all purposes that
he or she has not been convicted of that crime; furthermore, the
related criminal history record information may not be
disseminated as public information although it does remain
available for criminal justice purposes.
The paper and electronic
documents of their involvement in the criminal justice system
should reflect this update and report the incident as a non-
Rex, supra note 28.
ACLU, supra note 19, at 4.
Supra note 29, at 2
See A Guide to Sealing Criminal Records, ADMIN. OFF. CT. (2010).

86 WULR  Vol VII, Issue III  Spring 2014

conviction. The “Washington State Criminal Records Audit for
Adult Felonies: Final Report” (2007) found that: “as an integrated
statewide database system, Washington’s criminal justice
databases are not 100 percent complete and accurate, but are
reasonably accurate—that is, accurate for the majority of cases”.

Thus, despite technological advances that have increased the
widespread availability of material records, the ‘reasonable
accuracy’ of Washington’s statewide criminal records system
should theoretically maintain the efficacy of vacating on reducing
the stigma of conviction.

IVb. Indicators of Potential Non-Efficacy

Conversely, there is strong evidence that vacating might
not realistically prove an effective mode of relief from the impact of
the stigma of conviction. Imperfect criminal records databases,
employer and landlord dependence on inaccurate background
checks, the general accessibility of criminal background
information to the public, and other reports that most legal post-
hoc forms of relief are inaccessible and inefficient all point instead
to this conclusion. The 2007 criminal records audit continued on to
report that “Washington State’s criminal justice databases are not
an integrated system but rely on the transmission of data, which
sometimes involves manual intervention and can result in
incomplete or missing information”, and suggested that certain
technical changes could improve the “accuracy, completeness, and
timeliness of information in these databases”.

Furthermore, Consumer Reporting Agencies and other
employee and tenant screening firms subscribe to these state and
federal databases and do not always update the information they
Elizabeth Drake, Laura Harmon, & Robert Barnoski, Washington State Criminal Records
Audit for Adult Felonies: Final Report, WASH. ST. INST. PUB. POL’Y 2 (Oct. 2007),

Tenenbom 87

download from the databases in a timely manner. Thus, even if
state databases are in fact “reasonably accurate,” the information
CRAs report to employers and landlords often violates the Fair
Credit Reporting Act. Aside from reporting outdated information
or incorrect case outcomes, violations include over-reporting,
listing the same case multiple times, mismatching offenders to
incidents, and failing to report case dispositions correctly if at all.

Additionally, “private-sector entrepreneurs have stepped forward
to meet the growing demand for background checks, and, for
business reasons, have purposefully sought to increase that
Since an SHRM study found that over 90 percent of
companies use criminal background checks to screen potential
employees during the hiring process, and over 70 percent find even
a non-violent misdemeanor influential in the decision to not extend
a job offer,
the implications of accidentally or deliberately
incorrect background checks are significant.
In sum, it is unclear whether vacating a conviction is an
effectual remedy to alleviate the negative impact of the stigma of
conviction. While evidence suggests that it is widely utilized and
normatively perceived as one effective judicial means of post-
conviction relief, further data suggests that the opposite might
prove true in practice. Love observes that “while every jurisdiction
provides at least one way that convicted persons can avoid or
mitigate the collateral consequences of conviction, the actual
mechanisms for relief are generally inaccessible and unreliable”.

Despite this acknowledgment, the existing literature neglects to
explore the efficacy of any existing solutions in meaningful depth.
This study, however, focuses exclusively on vacating as a widely-
utilized form of relief, and seeks to preliminarily discern the
Letter from Sharon Dietrich, Managing Att’y, Cmty. Legal Servs. & Maurice Emsellem,
Pol’y Co-Dir., Nat’l Emp’t L. Project, to Fed. Trade Comm’n, RE: Comments on FACTA
Notices, Project No. P105408, Request for Public Comments, (Sept. 20, 2010).
See Jacobs, Proliferation supra note 5, at 388.
Supra note 21.
Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal
Conviction A State-By-State Resource Guide 5 (2006).

88 WULR  Vol VII, Issue III  Spring 2014

strengths and weaknesses of this statutory mechanism. It intends
to incite further and more critical analyses on this matter, in hopes
to someday interrupt the politically and socially corrosive impact of
the stigma of conviction.


This study has traced the existing literature that
demonstrates the extensive array of implications of the stigma of
criminal conviction on the individual, the family, communities, and
society. It has established the emerging social, political, and legal
consensus surrounding the destructive impact of mass conviction.
Furthermore, it has provided a historical and contemporary context
for understanding ways in which ideology has influenced the
availability of legal avenues for relief from both these micro- and
macro-level consequences. It also points out the deficiency of
meaningful analyses of the efficacy of any existing remedies, and in
particular emphasizes the ambiguity of the success of Washington
State’s vacate statutes.
Supplementing this inquiry, a corresponding qualitative
study provides an in-depth analysis of the efficacy of vacating a
felony or misdemeanor conviction in Washington. Through data
from ten semi-structured interviews, it interrogates the manner
and degree of influence that utilizing this specific available legal
remedy exercises on employment opportunities, housing outcomes,
relationships, and identity. This study thus inhabits a unique and
constructive space in that it has evaluated how vacated convictions
in Washington have either mitigated or failed to mitigate
individuals’ negative experiences with the stigma and
consequences of conviction, and generates preliminary findings
that may inform future research.
The results of the inquiries into
these ten individuals’ experiences with this particular mechanism
of purported relief have ascertained the following trends:
Full study available online at http://students.washington.edu/wulr/

Tenenbom 89

First, vacating is a very limited post-hoc relief mechanism.
While it is commonly pursued, its statutory provisions significantly
restrict its application. Thus, many individuals were only able to
vacate a percentage of their multiple convictions, or only their less
severe convictions, thereby diminishing the comprehensive efficacy
of the statutes. Furthermore, advances in information technology
and the proliferation of material records documenting individuals’
past involvement in the criminal justice system also substantially
diminish the potential mitigating impact of vacating.
Second, the responses provided suggest that certain
immutable characteristics may play a significant role in the
mitigating impact of a vacating on the stigma associated with a
criminal record. While gender influences individual encounters
with the various implications of conviction, this study indicates
that gender also impacts the effect of vacating on these same areas
and on additional realms.
Particularly, results of the inquiry draw
attention to the previously-neglected effect that vacating a criminal
record may have on gender-disparate labor-market outcomes.
Furthermore, it proposes that age plays a role in the impact of
vacating on employment and housing outcomes. It suggests that
respondents’ successes may be a result of individuals reaching
circumstances in which they become eligible to vacate, rather than
the act of vacating itself. Also, variation in participants’ experiences
with the impact of their material record implicates the influential
effect of the recent proliferation of information technology,
reporting industries, and records-keeping and disseminating
Uggen, Manza, and Thompson, “Citizenship, Democracy, and Civic Reintegration,”
307. According to the estimates provided in this report, women have a significantly
lower recidivism rate than men; See also Kruttschnitt and Garter, “Women’s
Imprisonment,” 10, 54, This article emphasizes the differing and non-gender neutral
post-conviction policies; it also highlights the disparities in successful societal
reintegration and argues that women more than men tend to sustain and reinforce
crime-free lives through establishing conventional social networks and reestablishing
strong family bonds. Mothers are more likely than fathers to have dependent children
living with them (all of the women interviewed in this study have positive relationships
with their children).

90 WULR  Vol VII, Issue III  Spring 2014

Third, participants’ responses intimate that while
individual education level may not directly influence the aggregate
impact of vacating, level and field of occupation do have a tangible
effect on the effectiveness of vacating in producing positive
employment opportunities and outcomes. This study thus incites
further and more extensive research to expound upon the ways in
which these differences influence the efficacy of vacating.
Fourth, the evidence herein demonstrates that for most
individuals, vacating provides a legal channel for internal resolution
and self-validation; it allows individuals the understanding that
they have pursued every available avenue for relief from the stigma
of conviction. However, despite promises of justice, the lack of
substantial tangible relief brought by vacating shifts blame from
societal stigma to the state. This dissatisfaction with authoritative
bodies and their lack of accountability perpetuates civic exclusion
and undercuts the democratic purposes of citizenship.


The conclusion that the increase of material criminal
records inhibits the effectiveness of vacating a conviction highlights
an important incongruity. A profusion of legal scholars, sociologists,
and activists advocate for the elimination of collateral
consequences and other forms of de jure discrimination against
persons with criminal records. Simultaneously, advancing
information technology, transforming reporting industries, and
shifting public policy continue to push for an increase in public
accessibility and dissemination of criminal records, allowing for the
perpetuation of stigma and thus de facto discrimination.

James JACOBS, Mass Incarceration and the Proliferation of Criminal Records, 3 UNIVERSITY OF
ST. THOMAS LAW JOURNAL 419 (2006). Jacobs adds that “The criminal justice system
thrives on criminal history information. The forces driving the collection and storage of
criminal records are very strong. Criminal justice agencies collect more criminal history
information, and store it in ever more efficient and easily accessible databases.”

Tenenbom 91

This contention raises a theoretical question concerning
the categorization and social exclusion of persons with criminal
On one hand, relief from the stigma associated with
conviction is often beneficial; yet on the other, there are salient and
legitimate incentives to implement certain legal and discretionary
sanctions, particularly when the offense in question has direct
relevance to the safety, well-being, or fiscal good of the public. For
example, there is an undeniable and justifiable public interest in
preventing persons recently convicted of abuse from having
unbridled access to and authority over vulnerable populations.

However, considered only within the narrow context of
vacating a conviction, this assertion becomes extraneous. Vacating
is profoundly limited. Many offenses are automatically disqualified,
and the necessary systems and practices exist in other forms to
preserve the safety and well-being of the public from dangerous
offenders. Additionally, eligibility is contingent on successful
completion of all terms of the sentence and a waiting period.
Furthermore, as existing literature has demonstrated, the
indiscriminate imposition of barriers to participation in all areas of
civic life is functionally adverse to the public interest, is
inconsistent with policy goals, and is incompatible with the spirit
of democracy by limiting the rights and privileges of citizenship.

The results of this study indicate that the potential
mitigating impact of vacating on the stigma of conviction is
diminished in large part by the increasing presence of material
criminal records, rendering such theoretical considerations
Christopher Uggen, Jeff Manza, and Melissa Thompson, Citizenship, Democracy, and the
Civic Reintegration of Criminal Offenders, 605 THE ANNALS OF THE AMERICAN ACADEMY 303
(2006). The authors present three main schemas of categorization--caste, class, and
status group--for understanding the political and social place and citizenship status of
persons with criminal records.
ed. 2004).
Jeremy Travis, Amy Solomon, and Michelle Waul From Prison to Home: The Dimensions and
Consequences of Prisoner Reentry, THE URBAN INSTITUTE (2001). This report explicates the
consequences of inhibited offender registration. It maintains that obstacles to housing,
employment, and stability encourage recidivism, which negatively impacts public safety
and fiscal responsibility.

92 WULR  Vol VII, Issue III  Spring 2014

irrelevant. In response to this trend, existing strategies to
neutralize the damaging impact of stigma move away from utilizing
legal post-hoc relief mechanisms exclusively. General approaches
include encouraging the formation of public policy which restricts
government collection of criminal history, and restricting public
dissemination of and access to criminal background information.
Yet, both of these proposals are highly improbable in light of the
fact that information constitutes the very nucleus of our criminal
justice system.
Thus, pursuing strategies that aim to restrict
access to information is impractical. On the other hand, attempts to
further prohibit de facto and de jure discrimination based on
accurate and accessible criminal history, and to reduce the social
stigma of conviction by emphasizing evidence of rehabilitation, are
more viable approaches.

Modest policy changes have the potential to reconcile these
concerns and increase the aptitude of vacating to alleviate the
stigma associated with conviction. Criminal records databases and
Consumer Reporting Agencies must be held to a higher standard of
accuracy and consistency, and they must be held legally and
financially accountable for violations. Public education about
collateral consequences, the impact of stigma, and post-hoc relief
mechanisms would lend these policies and regulatory schemas the
necessary credibility with the public. Evidently, attempting to
legally deny or suppress criminal history is a futile effort in the
present technological context; thus, such policy changes would
allow vacating to fully realize one of its central purposes and
functions—certifying rehabilitation and reducing the negative
impact of the stigma of conviction. Based on the experiences of ten
respondents, the current mitigating impact of vacating is often
temporary and is inconsistent at best. Vacating is worthwhile,
however, in that it can increase individuals’ self-confidence and
James Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 UNIVERSITY OF
Supra at 418.

Tenenbom 93

communicate positive self-understandings to individuals who have
been perpetually misrepresented and stigmatized. Returning to the
words of Angela Davis, such individuals are disappeared by
conviction. “I don’t know how much good it has done me,” NS
muses, “I am still fighting an uphill battle.”

See the full study online at http://students.washington.edu/wulr/

Victory of the Minority:
The Jehovah’s Witnesses’ Fight for
Constitutional Rights

By Jong In Yoon*

The Jehovah’s Witnesses, despite their unpopularity with the public, were
able to defend their beliefs and the right to act on them due to their
willingness to go against mainstream ideals and opinions. While the most
famous Jehovah’s Witnesses’ Supreme Court case might be the
Minersville School District vs. Gobitis case regarding flag saluting in
public schools, this paper instead takes a closer look at a different set of
cases regarding religious solicitation, the most important one being
Murdock v. Commonwealth of Pennsylvania. In Murdock, the Jehovah’s
Witnesses garnered the right to pass out their own literature freely
without a license, and in the process, paved the way for other religious
groups to do so as well. In analysis of Murdock and other legal cases, one
can see that despite their marginal standing, the Jehovah’s Witnesses have
helped to redefine ideas about religious freedom while protecting their
liberties as a religious group. Ultimately, the case of the Jehovah’s
Witnesses illustrates that religious freedom is granted to all groups, and
the First Amendment keeps the promise of religious diversity alive

*Jong In (Jim) Yoon is currently a sophomore student at Columbia
University, intending to major in Political Science and East Asian
Languages and Cultures. He is originally from S. Korea, but has lived in
the United States since first grade and currently resides in New Jersey. He
plans on attending law school after college, and is a baseball fanatic.

Table of Contents
Yoon 95



The Jehovah’s Witnesses hold many unpopular beliefs,
including refusing to receive blood transfusions in surgery, refusing
to salute the flag, and refusing to support any war. With about one
million adherents today, it is the

twenty-fifth largest religious
denomination in the United States.
Despite their relatively small
size, the Jehovah’s Witnesses have been instrumental in expanding
the protections afforded by the First Amendment. The Jehovah’s
Witnesses’ efforts to gain the full protection of the First
Amendment were pivotal in transforming America’s understanding
and application of religious freedom. Several cases, culminating in
the decisive Murdock v. Commonwealth of Pennsylvania case, have
effectively set the benchmark for First Amendment rights in our
society. The success of the Witnesses was due in large measure to
their willingness and organizational ability to defend their beliefs
as a group.
In his seminal 1999 study, The Americanization of Religious
Minorities, Dr. Eric Michael Mazur, a preeminent scholar on
religious minorities, explains that the Constitution plays a role
analogous to that of the supreme being of organized religion. In the
quasi-religion of American government, “the power,” Mazur claims,
“has been taken from the realm of the gods and relocated in the U.S.
In this “cosmology” of the U.S. judicial system,
many religious minorities are looking in as outsiders. Mazur
expands, “…religious freedom in this country has always been
Hartford Institute for Religion Research, Fast Facts about American Religion, available at
http://hirr.hartsem.edu/research/fastfacts/fast_facts.html#denom (last visited May 18,
Eric Michael Mazur, The Americanization of Religious Minorities: Confronting the Constitutional
Order 27 (1999).

96 WULR  Vol VII, Issue III  Spring 2014

defined against the backdrop of protestant Christianity, and its
expansion has always been determined by the limits to which that
dominant culture was willing to go—or in other words, by how
much it would tolerate.”
In his analysis, protestant Christianity is
embodied in American culture through our legal framework. There
is an implicit dichotomy of accepted and excluded religions that
the courts maintain and uphold to avoid ceding too much authority
to perceived fringe groups, among them Seventh Day Adventists,
Mormons, and the Jehovah’s Witnesses. Mazur examines the
different strategies that minority religious groups use to integrate
with the majority culture without altogether submerging their
distinct identities. An important part of this engagement with the
dominant culture can be seen from the legal efforts taken by such
minority groups to expand their personal liberties. The Jehovah’s
Witnesses are a particularly active group in this regard. In fact,
they have been one of the most confrontational groups in American
legal history.


The Jehovah’s Witness religion was formally incorporated
by Charles Taze Russell in 1884 as the Zion Watch Tower Tract
Under the stewardship of various leaders, the religion
expanded. By World War I, the core beliefs of the group were
published, which resulted in charges of sedition against its
directors and mob violence against members of the religion.
In 1931,
the group formally changed its name to Jehovah’s Witnesses.
1930’s and 1940’s were a period of tremendous hardship and
persecution for the Jehovah’s Witnesses.

Id, at x.
Id, at 32.
See Id, at 33-34.
J.A.W., Religious Freedom and the Jehovah’s Witnesses, 34 VA. L. REV. 77-83, (1948).
See, American Civil Liberties Union, The Persecution of Jehovah’s Witnesses, available at
s_-_ACLU.pdf (last visited May 18, 2014).

Yoon 97

The Witnesses’ initial response to persecution was to
denounce the United States government as evil, claiming that:
“[t]he United States government is conducted by imperfect men
who are under the influence and control of the invisible ruler, Satan
the Devil.”
By the 1960’s, this position had softened considerably,
with the Jehovah’s Witnesses reasoning that since God gave all
men and women “consciences,” the government is capable of
achieving good ends.
This change of heart may have been a result
of the years of effort they had undertaken to use the judicial system
of the government to pursue their right to religious practice.
According to legal scholar Jennifer Jacobs Henderson, “It
was neither accidental nor coincidental that the Jehovah’s
Witnesses protected their religious practices. It was neither
accidental nor coincidental that the Jehovah’s Witnesses changed
the meaning of the First Amendment.”
They had, in short, a plan
to gain the protection needed to carry out their beliefs. As
recounted in Henderson’s study, the Jehovah’s Witnesses won
fourteen out of the nineteen cases that were heard in the Supreme
Court between 1939 and 1950.
Before analyzing the legal history of
the Jehovah’s Witnesses in the United States, however, it is
important to examine why the Jehovah’s Witnesses were so willing
to take their cases to the Supreme Court while other religious
minorities, such as the Seventh Day Adventists, were not. To
answer this dilemma, one must look deeper into the nature of a
group that became one of the most visible challengers to religious
discrimination in American history.
A plausible explanation for the willingness of the Jehovah’s
Witnesses to initiate litigation is offered by Andrew Holden, a
British sociologist. Holden suggests that although the Jehovah’s
Witnesses are secretive and private, they are also concerned with
disseminating their beliefs to the public. In the interest of
Joseph Franklin Rutherford, Do Men Govern Themselves?, THE WATCHTOWER, May 15,
1931, at 155.
Mazur, supra at 47.
Henderson, supra at 832.

98 WULR  Vol VII, Issue III  Spring 2014

successful evangelism, the Witnesses have shown some inclination
to conform to the wider culture: “If the [Witnesses] are to
demonstrate their worthiness to outsiders, they must be confident
that their behavior in a public world would meet the approval of a
movement that continually reminds them that they are in but not of
the world.”
Ultimately, if they are to proselytize successfully and
convert people to their religion, the Jehovah’s Witnesses must be
willing to conform to some of the rules of mainstream society, at
least insofar as they do not conflict with their most closely held
An alternative explanation for the Witnesses’ penchant to
litigate is explained by their system of beliefs. The Witnesses are
known for having, “a strict morality that rejects much of the
conventional world,”
and a belief that, “only a small righteous
remnant would survive the final cosmic battle between good and
evil and attain eternal life.”
In light of these views, the Witnesses
are motivated to challenge mainstream traditions and customs, for
the sake of protecting their beliefs and fulfilling their religious
obligations. More so than other religions, the Jehovah’s Witnesses
are obligated to strictly abide by their unique doctrine, which
involve pacifism and the refusal to receive blood transfusions.
Ultimately, one of the main ways that the Jehovah’s Witnesses seek
to protect their beliefs and to spread their message is through the
First Amendment and legal action in the highest court of the land,
the Supreme Court. Their participation in many landmark lawsuits
was driven by a religious need to fulfill certain obligations
previously prohibited by various local and state laws.


Andrew Holden, Jehovah’s Witnesses: Portrait of a Contemporary Religious Movement 105
Robert Booth Fowler et al., Religion and Politics in America: Faith, Culture, and Strategic
Choice 69 (2010).
Mazur, supra at 32.

Yoon 99

In a series of landmark decisions given from 1942 to 1946,
the Supreme Court heard an array of legal challenges from the
Jehovah’s Witnesses, among them the case Murdock v. Commonwealth
of Pennsylvania (1943). This case, which will be analyzed later,
represents a key turning point in a string of legal decisions
involving the Witnesses, including Lovell v. City of Griffin, Schneider v.
State of New Jersey, and Cantwell v. Connecticut. Some discussion of the
origin of the concept of religious liberty in American law is
warranted to better understand the relevant historical and legal
background of the case histories initiated by the Jehovah’s
One of the foundations of religious freedom in the West is
John Locke’s A Letter Concerning Toleration. Published in 1689 and
originally addressed to his dear friend Philipp van Limborch, this
letter and related Lockean documents provided an important
blueprint for religious freedom in the early American republic. In
his Letter, Locke offers freedom of religion as a remedy for problems
in government. He argues that the real problem of society lies in the
attempts of the civil magistrate to force a religion on its subjects; in
such cases, he claims, confrontation and chaos inevitably ensue. By
ensuring that “every man may enjoy the same rights that are
granted to others,” Locke believes that a more perfect
commonwealth can be formed.
Furthermore, Locke maintains
that the key role of government is to promote interests external to
the soul for the common good of the people (among others, life,
liberty, and the protection of property), not private interests
concerning religion and salvation.
Despite Locke’s reluctance to
advocate full toleration of all groups (atheists and Catholics were
possible exceptions), he nevertheless promoted the tradition of
liberty of conscience and heavily influenced the history of religious
freedom in the New World.
The Constitution itself was heavily influenced by Lockean
ideas and principles. When the state conventions voted to ratify
John Locke, A Letter Concerning Toleration and Other Writings 57 (2010).
Id. at 12-13.

100 WULR  Vol VII, Issue III  Spring 2014

the Constitution, the vote was dominated by Anglicans in the
South and Congregationalists in New England. Both groups
primarily wanted a central, powerful government that would
prevent religious minorities from gaining power. However,
religious dissenters, such as Methodists, Catholics, and Moravians,
showed more concern for the passing of a Bill of Rights to protect
themselves from government. Mazur notes, “It is not surprising
that the form of the national charter should reflect this
establishmentarian and nonestablishmentarian polarity.”
disparity in beliefs reflects the gradual expansion of religious
freedoms to minority groups that was made possible by the
Witnesses’ cases.
The concept of free exercise underwent long periods of
scrutiny and interpretation in the years following its expression in
the First Amendment, but its modern application was first given in
the landmark decision Reynolds v. United States (1879). In its decision,
the Court expressed an exception to free exercise which would
shape the understanding of that right throughout twentieth
century jurisprudence. Ruling on the constitutionality of marriage
laws enforced against Mormons, the Court ruled that, “It is within
the legitimate scope of the power of every civil government to
determine whether polygamy or monogamy shall be the law of
social life under its dominion.”
This case clearly emphasized that,
like other freedoms articulated in the Constitution, the freedom of
religion is not absolute.
An important criterion for determining the appropriate
judicial standard of review vis-à-vis proposed legislative limitations
on the right of free exercise was established in the case of United
States v. Carolene Products Company (1938). While the subject matter of
the case might seem trivial (it reviewed a federal law that
prohibited the shipping of a certain kind of processed milk to
different states), the corresponding decision was a significant
victory for individual rights. In his majority opinion, Chief Justice
Mazur, supra at 6.
Reynolds v. United States, 98 U.S. 145, 166 (1878).

Yoon 101

Stone proposed a division of economic policy cases from civil
liberty cases in terms of the level of judicial scrutiny applied:
“Statutes directed at particular religions…or national…or racial
minorities as well as prejudice against discrete and insular
minorities may be special condition…which may call for a
correspondingly more searching judicial inquiry.”
This insistence
on strict judicial scrutiny for proposed limitations on individual
liberties inaugurated a period of considerable discussion within the
Court concerning the constitutionality of many new laws.


With these ideas and precedents firmly in the minds of the
Supreme Court, the Jehovah’s Witnesses instigated litigation
frequently in federal courts until the 1960’s. The intent of the
Jehovah’s Witnesses in their legal campaign was to receive, at the
minimum, legal protection for their beliefs. This provided the
motivation for the series of major cases heard from 1942 to 1946
that the Jehovah’s Witnesses pursued and fought all the way up to
the Supreme Court. While there were other important cases during
this time, such as Minersville School District v. Gobitis, the three
religious solicitation cases Lovell, Schneider, and Cantwell set the
scene for the landmark Murdock case.
The decisions in these cases
materially affected the understanding of the meaning of the First
These cases, argued in the period immediately preceding
Murdock, utilized Justice Stone’s standard of dedicating more careful
attention to personal liberty cases, inquiring especially into the
legitimacy of proposed exceptions to the right of free exercise. The
first religious literature distribution case of the Jehovah’s
Witnesses brought before the Supreme Court was Lovell v. City of
United States v. Carolene Products Company, 304 U.S. 144, 155 (1938).
Minersville School District v. Gobitis, 310 U.S. 586 (1940). See also, Martha Nussbaum,
Liberty of Conscience: In Defense of America’s Tradition of Religious Equality 208-211 (2008).

102 WULR  Vol VII, Issue III  Spring 2014

Griffin (1938). In this case, the Court considered the conviction of
Jehovah’s Witness Alma Lovell for violating a municipal ordinance
requiring all distributors of literature to obtain written permission
from the city manager; the conviction was overturned by a
unanimous decision on religious freedom grounds.

Building on Lovell, in Schneider v. State of New Jersey (1939), the
Court further extended the right of religious groups to distribute
their literature without prosecution. In the late 1870s, the Jehovah’s
Witnesses had begun to proselytize in New Jersey, mainly in
Newark. For about three decades, the Witnesses experienced
hostility when members went door-to-door selling their literature
and trying to convince others to join their faith. This hostility
culminated in a series of laws designed to prevent the Jehovah’s
Witnesses from canvassing and distributing handbills. Indeed, in
the 1930’s, Mayor Hague of Jersey City jailed over one hundred
Jehovah’s Witnesses over the span of one year for distributing
material without a license.
In Schneider, the state of New Jersey
attempted to argue that its licensing laws served the purpose of
keeping city streets “clean” and “of good appearance.”
The Court
rejected this argument, stating that attempts to regulate the
distribution of literature by requiring a license placed
unconstitutional, “prior restraints on the Witness plaintiffs’
freedoms of speech and press,” in effect violating the First and
Fourteenth Amendments.
While religious freedom is not absolute,
Schneider established stricter rules regarding when and how it could
be curtailed.
In a related case, Cantwell v. Connecticut (1940), the Court
ruled that a statute requiring a license for religious solicitation
(again passed with the Jehovah’s Witnesses in mind) was
unconstitutional. According to the Court’s reasoning, the statute
gave too much power to the state to determine which groups were
Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the
Rights Revolution 183 (2000).
Wallace N. Jamison, Religion in New Jersey: a Brief History 141 (1964).
Schneider v. State of New Jersey, 308 U.S. 147, 162 (1939).
Peters, supra at 184.

Yoon 103

religious in nature and therefore had to obtain a license. The Court
insisted that the Fourteenth Amendment’s requirement of due
process demanded limitations on the manner in which states could
regulate free exercise.
As Jehovah’s Witnesses scholar Shawn
Francis Peters states, the process of “piecemeal incorporation of
First Amendment rights into the Fourteenth Amendment’s due
process clause” was continued deliberately in the Cantwell case by
Jehovah’s Witnesses’ attorney Hayden Covington.
The Witnesses’
religious obligation to proselytize motivated this campaign and
concurrently expanded freedoms for other religious groups wishing
to participate in similar activities.


The facts of Murdock v. Commonwealth of Pennsylvania (1943)
had much in common with those of earlier religious solicitation
cases. The borough of Jeannette, Pennsylvania had decided to
enforce an ordinance, “[t]hat all persons canvassing for or soliciting
within said Borough, orders for goods, paintings, pictures, wares, or
merchandise of any kind,” will be required to purchase a license.

Eight Jehovah’s Witnesses, among them Robert Murdock,
canvassed in Jeanette seeking contributions and donations in
return for books and pamphlets. As the Witnesses did not have
licenses, the ordinance was enforced against them; the Witnesses
refused to comply. Defending their conduct before the Court, the
Commonwealth of Pennsylvania argued that Murdock’s religious
material was being sold and that Murdock and other Jehovah’s
Witnesses should therefore obtain a license. The Witnesses, by
contrast, insisted that the requirement of obtaining a license
constituted a tax on their religious activity.
Justice William O. Douglas, who led the majority, was
assigned to write the decision in favor of Murdock, which declared
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Peters, supra at 184.
Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943).

104 WULR  Vol VII, Issue III  Spring 2014

the ordinance unconstitutional. Even prior to Murdock, Douglas had
long been known for his advocacy of civil liberties, reflecting his
deeply held belief that the First Amendment freedoms of speech,
press, and religion held a privileged position over other competing
interests. As one author observes: “Amongst all the Justices who
have sat on the United States Supreme Court, only one [Douglas]
has given his full support to the First Amendment’s guarantee of
freedom of speech as applied to the obscenity and symbolic
speech… and controversial religious and political speech.”

Therefore, it was hardly surprising that Douglas had been chosen to
lead the majority.
In his decision in Murdock, Douglas begins by giving some
background on the case and then proceeds to his first argument for
the unconstitutionality of the ordinance. According to Douglas,
Murdock essentially turns on, “a single issue — the constitutionality
of an ordinance which, as construed and applied, requires religious
colporteurs to pay a license tax as a condition to the pursuit of their
Douglas insists on drawing a clear distinction between
religious and commercial enterprise: “But an itinerant evangelist,
however misguided and intolerant he may be, does not become a
mere book agent by selling the Bible or religious tracts to help
defray his expenses or to sustain him.”
Douglas admits that this
distinction will not always be easy to make in practice and will
differ on a case-by-case basis. In Murdock, however, he finds the tax
on distribution to be tantamount to censorship: “the power to tax
the exercise of a privilege is the power to control or suppress its
In this way, Douglas claims that allowing such
ordinances would effectively create, “a new device for the
suppression of religious minorities…”
This would be especially
Haig Bosmajian, Justice Douglas and Freedom of Speech, by Justice William O. Douglas xiv
319 U.S. 105, 110 (1943).
Id. at 111.
Id. at 112.
Id. at 115.

Yoon 105

harmful in light of the highly privileged nature of the rights in
The language of Douglas’ decision makes it clear that he
attaches a high significance to the liberty to carry out public,
religious speech. Insofar as, he observes, “freedom of press, freedom
of speech, freedom of religion are in a preferred position,” any
proposed restriction on them should be subjected to the highest
level of scrutiny.
This is especially true, Douglas believes, when
the speech in question takes the form of itinerant preaching, for
which he clearly shows reverence. Since the Jehovah’s Witness’
practice of door-to-door preaching is “an age-old form of
missionary evangelism — as old as the history of the printing
presses,” Douglas finds all the more reason to exercise restraint in
placing limitations on it.

Douglas insists, however, that the, “Jehovah’s Witnesses
are not ‘above the law.’”
Determining the constitutionality of the
ordinance is not a matter of exemption from the law and, Douglas
states, is, “not directed to the problems with which the police
power of the state is free to deal.”
Moreover, Douglas disputes the
claim that the state is entitled to ask something in return for the
exemption of religious groups from the requirements of the
ordinance; he affirms that the guarantees of the First Amendment
are separate from state authority because they are guaranteed by
the federal constitution. The Jehovah’s Witnesses deserve their
freedom to proselytize because it is guaranteed by the Bill of Rights.
While the history of door-to-door evangelism is well-
documented, Douglas fails to mention the uniqueness of the
Jehovah’s Witnesses: at the time of Murdock, no other religious
group had as systematic a plan of disseminating their novel beliefs
in this manner. Douglas glosses over this singularity, vaguely
stating, “This form of evangelism is utilized today on a large scale
by various religious sects whose colporteurs carry the Gospel to
Id. at 121.
Id. at 116.

106 WULR  Vol VII, Issue III  Spring 2014

thousands upon thousands of homes and seek through personal
visitations to win adherents to their faith.”
He constantly
mentions this resemblance throughout the decision. For example,
he equates the Jehovah’s Witnesses’ itinerant preaching to the
practice of delivering sermons which he characterizes as “spreading
religious beliefs in this ancient and honorable manner.”
only allusion to the specific beliefs and practices of the Jehovah’s
Witnesses takes a form of a sneering aside: “…petitioners in their
religious beliefs and practices, however misguided they may be
thought to be.”

However, despite this rhetoric, Justice Douglas ultimately
ruled in favor of the Jehovah’s Witnesses. The Jehovah’s Witnesses,
through these religious solicitation cases, had secured another
specific protection for religious groups in general. Even though
Mazur identifies Murdock as the last case to make extensive use of
free exercise grounds, the almost interchangeable use of free speech
and free exercise arguments in the case also strengthened the legal
support for free speech.
One example of the interchangeable use
of free exercise and free speech arguments in the language of
Douglas’ decision is provided by the following line: “religious
beliefs through the spoken and printed word are not to be gauged
by standards governing retailers or wholesalers of books.”

Another example occurs when Douglas proclaims: “[Itinerant
preaching] has the same claim to protection as the more orthodox
and conventional exercises of religion. It also has the same claim as
the others to guarantees of freedom of speech and freedom of the
For the Jehovah’s Witnesses, although perhaps not the
court, it was crucial that through Murdock, they had gained to
Id. at 109.
Id. at 112.
Id. at 109. U.S. 105, 111 (1943).
Mazur, supra at 51.
319 U.S. 105, 111 (1943).
Id. at 109.

Yoon 107

proselytize and spread the message of Jehovah to the rest of the
world because they believe it is part of their duty to do so.

In analyzing Murdock, it is interesting to note the wide array
of philosophical doctrines motivating the decision of the several
other justices to join the majority. Chief Justice Harlan Stone,
reflected in his opinion United States v. Carolene Products (1938),
wanted to separate economic policy cases, in which he tended to
apply a low level of judicial scrutiny to existing legislation, from
civil liberties cases, in which he tended to apply a contrastingly
high standard of judicial scrutiny. Justice Hugo Black believed in a,
“clear reading of the constitutional text, limited judicial discretion,
the protection of individual rights, and the broad power of
government to address a wide range of economic and social
With few exceptions, Black held the rights provided
by the First Amendment above competing interests. Justice Frank
Murphy believed the objective of law should be, “justice and human
Accordingly, Murphy was a reliable supporter of
individual liberties, as illustrated perhaps most famously by his
decision in Thornhill v. Alabama (1940).
Justice Wiley Rutledge, Jr.
was a strong proponent of individual rights. In questions of due
process, “where Black believed the clause included just the
protections enunciated in the Bill of Rights and no more, Rutledge
tended to agree with Murphy and Douglas in arguing that it
included at least those protections and possibly more.”
Owen Roberts, to name the last justice to join the majority in
Murdock, was notable mostly for his inconsistency. His legal
expertise principally lay in criminal prosecution and practice, and
his decisions seem to have been often politically motivated.
Official Website of the Jehovah’s Witnesses, Why do Jehovah’s Witnesses Go From Door to
Door?, available at http://www.jw.org/en/jehovahs-witnesses/faq/door-to-door/ (last
visited May 18, 2014).
Melvin I. Urofsky, Division and Discord: The Supreme Court under Stone and Vinson, 1941-53 17
Id. at 24.
Id. at 25.
Id. at 29.
Id. at 13-14.

108 WULR  Vol VII, Issue III  Spring 2014

motives in deciding in favor of the Witnesses were somewhat
obscure. Ultimately, the backgrounds of the judges, who in their
own separate ways had emphasized individual rights in liberties in
past cases, turned out to be crucial in the Murdock ruling favoring
the Jehovah’s Witnesses.


The language and decision of the majority in Murdock clearly
illustrate the triumph of religious freedom for the Jehovah’s
Witnesses. Ultimately, the Jehovah’s Witnesses have managed
most successfully to improve their originally marginal legal
standing, although stigma and discrimination are still an issue.
They live, according to Melvin D. Curry, a scholar and professor on
the Bible at Florida College, “under a continual sense of urgency,
keeping close in mind the day of the Jehovah’s execution of the
satanic heavens and earth and his replacing these with righteous
new heavens and a new earth, new heavenly ruling powers and a
new organization of human society.”
This “sense of urgency”
ultimately explains the Jehovah’s Witnesses relentless drive and
fight for their religious rights. To them, pleasing Jehovah and
maintaining a good standing in their own religious community are
the most important earthly endeavors. This is why they chose to
fight so tirelessly for their rights to religious expression.
Freedom of religion has been and still is an important
principle of the United States. By reflecting on the history of the
Jehovah’s Witnesses, one can gain much insight into their influence
on the evolution of the First Amendment’s interpretation. In
addition to gaining protection to practice their own beliefs, the
Jehovah’s Witnesses achieved a victory for all religious minorities
through their legal battles and helped redefine the Court’s
understanding of the First Amendment.
Watchtower Bible and Tract Society, You may survive Armageddon into God’s new world
273 (1955). See also Melvin D. Curry, Jehovah’s Witnesses: The Millenarian World of the Watch
Tower (1992).

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