Labeling GM Foods: Democracy and Autonomy

Labeling GM Foods: Democracy and Autonomy

by Alex G. Leone, JD ’16 

I. Introduction

A bipartisan majority of Americans asserts a right to know what it is eating and wants mandatory labeling of genetically modified (“GM”) foods:[1] a simple, on-label statement of whether a food or food ingredient is the product of genetic engineering.[2] A miniscule minority opposes such labeling,[3] and sixty-four countries, including the majority of the developed world, already require it.[4] Yet proposed legislation pending in the Senate would preempt state and local efforts to require labeling of GM foods and would not create a federal labeling requirement.[5] Given that our democracy “rests upon the principles of majority rule and individual rights,”[6] this proposed legislation is puzzling.[7] What could explain it?

II. A Popular Argument and a Simple Response

The most popular and most purportedly powerful argument against labeling GM foods[8] takes the following form:

Premise One: GM foods are generally safe to eat.[9]

Premise Two: Labeling of GM foods would lead consumers to believe that genetically modified foods are not generally safe to eat.[10]

Conclusion: Therefore, GM foods should not be labeled.[11]

Sympathetic to this argument, renowned Harvard Law Professor Cass Sunstein writes that “[a]ny such [labeling] requirement would inevitably lead many consumers to suspect that public officials, including scientists, believe that something is wrong with GM foods.”[12] The Washington Post Editorial Board echoes Professor Sunstein when it writes that labeling requirements “imply[] a strong government safety concern where one does not exist.”[13]

However, there is a simple structural solution to that possible problem: a voluntary or mandatory disclaimer to the effect that F.D.A. does not believe there is a significant difference between the food safety risks of GM and non-GM foods.[14] If labels on GM foods appeared with that disclaimer, the labels, of course, would not “inevitably lead” consumers to conclude that “public officials . . . believe something is wrong with GM foods.”[15]

Analogous disclaimers are already required in several food-purchasing contexts; and the GM food labeling scenario would not be relevantly different. For example, F.D.A. requires disclaimers for descriptive claims on dietary supplements, clarifying that the supplements are “not intended to diagnose, treat, cure, or prevent any disease.”[16] Labeling GM foods, furthermore, presents a particularly tight analogue to labeling milk “rBST-free.”[17] F.D.A. requires such a label to include a disclaimer to the effect that “no significant difference has been shown between milk derived from rBST-treated and non-treated cows.”[18] Just as a “no significant difference” disclaimer is sufficient to assuage concerns that an “rBST-free” label could mislead consumers, it would be sufficient to assuage concerns that labeling GM foods could mislead consumers.

Moreover, it is not necessary that every food labeling requirement reflect the safety of the labeled food products;[19] this fact is so obvious that it often goes unnoticed.[20] F.D.A. requires that orange juice from concentrate, for example, be labeled as such.[21] Yet clearly the “from concentrate” label does not mean, and is not meant to imply, that orange juice from concentrate is unsafe to drink—even in the absence of a disclaimer.[22] F.D.A. also requires that food manufacturers that apply ionizing radiation to their foods label those foods as “treated with [or by] irradiation”[23]—even though F.D.A. believes that “irradiation can make food safer for the consumer” and that it does not compromise nutritional quality.[24] Another example of this principle, of which there is no shortage,[25] is the federal regulatory requirement that imported foods be labeled with their countries of origin:[26] Although olive oil from Italy needs to be labeled as such,[27] the label does not, and is not meant to, make a claim about the safety—or even the nutritional or organoleptic qualities—of the oil.[28]

Finally, and perhaps most importantly, after F.D.A. recently approved for human consumption genetically engineered salmon,[29] Congress has required F.D.A. to “implement a program to disclose to consumers whether a salmon offered for sale to consumers is a genetically engineered variety.”[30] Indeed, Congress has imposed this requirement despite F.D.A.’s determination that genetically engineered salmon is “as safe to eat as any non-genetically engineered . . . salmon, and also as nutritious.”[31]

III. Autonomy

But the argument deployed by Professor Sunstein and the Washington Post Editorial Board fails for a more fundamental reason: Paternalistically,[32] it contends that uncontroversially factual information should be withheld from American adults, even though a majority of those adults express a clear preference for the disclosure of the information.[33] It is for this reason that one of the world’s leading bioethicists has stated: “[T]he opponents of labeling need to end their opposition to letting people know what they want to know about their food.”[34] And in the words of the New York Times Editorial Board, “Consumers deserve to know what they are eating.”[35]

The disclosure of such information is essential if autonomous adults are to make informed choices about their own lives—generally, a morally valuable circumstance.[36] “[C]ontemporary moral and political philosophy [thus] work from a strong presumption against paternalis[m],”[37] and with good reason. Paternalism “bypasses the agent’s capacity to be self-directing and ignores the agent’s wishes regarding the way she would like to live her own life;”[38] and paternalism “restrict[s] individuals’ liberties and treat[s] them as less than fully capable of making decisions that are in their own best interest.”[39] Thus, paternalism is “generally considered impermissible, barring very exceptional circumstances.”[40] Some experts consider such “very exceptional circumstances” to include withholding of information by a medical provider that would lead to the harm or suffering of her patient,[41] or withholding of information from the populace in public health emergencies[42]—i.e., only “when the possible related consequences are severe enough.”[43] Yet withholding information from autonomous adults in even some of those circumstances is contentious.[44]

Indeed, the argument that autonomous adults cannot be provided factual information about their food, simply because opponents of labeling claim they “lack [] education” or are too ignorant to understand it, treats adults as less than fully capable of making decisions that are in their own best interest.[45] And if we suppose that consumers can read a “no significant difference” disclaimer, the argument no longer passes even the straight-face test—it is, as leading bioethicist Arthur Caplan suggests, “pathetic.”[46]

IV. Beyond General Food Safety Per Se

Even if genetic modification does not itself make the modified plants or animals less safe to eat, there are many reasons why consumers could rationally desire to be aware of whether they are consuming GM foods.[47] Consider, for example, the ecological and biological implications of glyphosate, the most frequently used herbicide in the United States and the main ingredient in Monsanto’s “Roundup,” a chemical compound that genetically modified (or “Roundup Ready”) corn and soy are engineered to resist.[48]

On one hand, glyphosate has been declared a probable human carcinogen by the World Health Organization’s International Agency for Research on Cancer;[49] has been linked to the proliferation of antibiotic-resistant bacteria, including e. coli and salmonella,[50] and to the destruction of beneficial gut bacteria;[51] and has been associated with a variety of other health problems in both human beings and animals, such as reproductive impairment and neurobehavioral complications.[52] On the other hand, Roundup Ready crops currently comprise the vast majority of the corn and soy planted in the United States;[53] and GM agriculture, consequently, has caused increases in glyphosate use[54]—from 1992 to 2013, glyphosate usage increased from under twenty-five million pounds to over two-hundred and fifty million pounds[55]—and glyphosate residue on GM foods.[56]

But the presence of glyphosate is not limited to our food; it’s also in our water and air.[57] A recent United States Geological Survey study, for example, found glyphosate in the majority of “rivers, streams, ditches, and wastewater treatment plant outfalls tested” in thirty-eight different states and in seventy percent of rainfall samples.[58] These alarming facts have led researchers to call for further study and government regulation of glyphosate.[59] Unsurprisingly, several countries have banned, or initiated efforts to ban, the dubious chemical;[60] and the United States Environmental Protection Agency expects to release a report on its health risks.[61]

Glyphosate and other pesticides used in the cultivation of GM crops, moreover, are linked to the proliferation of superweeds,[62] plants that have evolved to resist herbicides, and superbugs,[63] insects that have similarly evolved—as well as to the demise of insects essential to pollination, such a bees and butterflies.[64] The health of pollinator insects is an issue of national concern:[65] President Obama has issued a memorandum “creating a federal strategy to promote the health of honey bees and other pollinators.”[66] And the United States Environmental Protection Agency will soon study the effects of pesticides—including glyphosate in particular—on endangered species.[67] The threats that GM agriculture may pose to ecology and biodiversity, therefore, merit consumer attention.

Labeling GM foods “is [also] essential for tracking emergence of novel food allergies.”[68] Allergies and other similar concerns have led the Harvard T.H. Chan School of Public Health to warn of “potentially large, and often not well understood, risks from GM technologies”[69] and the State of Vermont to recognize in its legislation “potential ‘unintended’ consequences from G[M] food production to non-G[M] crops and the environment.”[70] The threat of contamination of non-GM crop fields by the genetic material of GM crops is another clear example of such unintended consequences.[71] Accordingly, these facts, especially if considered together, uncontroversially lead to the conclusion that a reasonable consumer could—or perhaps should—wish to know whether his or her food is the product of genetically modified agriculture.

But the list of reasons why Americans may wish to know whether their food has been genetically modified does not end with the concerns described above. For example, food has spiritual dimensions as well. The Vermont General Assembly, in an act requiring the labeling of GM foods, declared labeling essential if individuals are to “conform to religious beliefs and comply with dietary restrictions.”[72] (Notably, the genetically engineered salmon recently approved for consumption by F.D.A. grows more than twice as fast as natural salmon due to hormone-regulating genes spliced into its genome, including one from the ocean pout—an eel-like, bottom-dwelling fish that is not kosher.[73]) Pope Francis, furthermore, has recognized some of the “significant difficulties” presented by GM agriculture.[74] Such difficulties include questions of economic justice, like those arising from GM agriculture’s tendency to cause “productive land [to] concentrate[] in the hands of a few owners” and to engender poverty in regions where GM agriculture leaves laborers with fewer occupational options.[75] Some authors have insightfully argued that the risks of GM crop monoculture are analogous to those that caused the financial crisis—and its resulting preponderance of economic injustice—in the late 2000’s.[76] And, finally, consumers may object to, and wish not to support, what they perceive to be downright deceptive behavior by GM food manufacturers or their lobbyists.[77]

V. Conclusion

The cost of labeling GM foods would likely be de minimis.[78] Several States,[79] millions and millions of Americans,[80] over 700 chefs and restaurant owners,[81] and over 400 companies[82]—even Campbell Soup Company, which previously opposed labeling[83]—want to join the majority of the developed world:[84] They want simple, on-package labeling of GM foods.[85] The fundamental principles of adult autonomy and democratic rule militate strongly against some legislators’ moves to contravene the will of most Americans. The Senate, therefore, should reject any proposed piece of legislation that would preempt states’ rights to label GM foods and that would not impose a federal labeling requirement. Senators, after all, should not “substitute their will to that of their constituents.”[86] And on the contrary, the Senate should strongly consider mandatory labeling of GM foods. But in the event that the Senate does not reject the proposed legislation, I would implore President Obama to keep his 2007 campaign promise: “Here’s what I’ll do as president[:] . . . We’ll let folks know whether their food has been genetically modified, because Americans should know what they’re buying.”[87]

“Genetically modified . . . foods are foods derived from organisms whose genetic material (DNA) has been modified in a way that does not occur naturally, e.g. through the introduction of a gene from a different organism.” Food, Genetically modified, World Health Org., []. “[U]nlike traditional selective breeding, genetic engineering vastly expands the range of traits that can be moved into [food crops and animals] and enables breeders to import DNA from virtually anywhere in the biosphere.” Phillip J. Landrigan & Charles Benbrook, GMOs, Herbicides, and Public Health, 373 New Eng. J. Med. 693, 694 (2015), []; see also Mark Spitznagel & Nassim N. Taleb, Another ‘Too Big to Fail’ System in G.M.O.s, N.Y. Times (July 13, 2015), [] (“[W]e are told that a modified tomato is not different from a naturally occurring tomato. That is wrong: The statistical mechanism by which a tomato was built by nature is bottom-up, by tinkering in small steps . . . . In nature, errors stay confined and, critically, isolated.”).

The F.D.A. recently clarified that “[m]ost foods do not contain entire organisms.” Stephanie Strom, F.D.A. Takes Issue With the Term ‘Non-G.M.O.’, N.Y. Times (Nov. 20, 2015), []. Accordingly, it would be more accurate to label so-called “genetically modified foods” as foods “containing ingredients that have been genetically engineered” or, for example, foods “containing oil derived from genetically engineered soybeans,” as opposed to “G.M.O.” See id. That clarification is helpful, but this Article proceeds for simplicity’s sake by referring both to entire organisms that can be consumed as food—such as genetically engineered salmon—and to foods or food products containing ingredients derived from such organisms—such as corn chips fried in oil derived from genetically engineered soybeans—as “GM foods.” After all, F.D.A. itself sometimes subordinates linguistic accuracy to other goals. See, e.g., 21 C.F.R. § 101.62(c)(1)(i) (noting that the term “‘zero [trans] fat,’ . . . may be used on the label or in the labeling of food[],” despite the fact that “[t]he food contains [0.4]g trans fatty acid per reference amount customarily consumed [or] per labeled serving . . . .”).

[2] See, e.g., Chris Morran, Poll: 9-In-10 Americans Support GMO Labeling, The Consumerist (Dec. 2, 2015), []; Allison Kopicki, Strong Support for Labeling Modified Foods, N.Y. Times (July 27, 2013), []; Michelle Yee Hee Lee, Would GMO labeling requirement cost $500 more in groceries per family a year?, Wash. Post (Apr. 6, 2015), [] (“Those who want labeling say they want a nonjudgmental, back-of-package wording.”).

[3] Mary Clare Jalonick, Poll finds most Americans want GMO food labels, PBS Newshour (Jan. 13, 2015, 3:18 PM), [].

[4] See Landrigan & Benbrook, supra note 1, at 693 (“[U]nlike regulatory bodies in 64 other countries, the Food and Drug Administration (FDA) does not require labeling of GM foods”). For a list of countries that require labeling, see International Labeling Laws, Ctr. for Food Safety, [].

[5] Safe and Accurate Food Labeling Act of 2015, H.R. 1599, 114th Cong. (2015), []; Carey Gillam, Senate committee set to examine GMO labeling law, Reuters (Oct. 21, 2015, 7:15 AM), []. Senator Pat Roberts, a Republican from Kansas, is reputed to be currently drafting a functionally equivalent piece of proposed legislation that will be unveiled shortly. See Jenny Hopkinson, Morning Agriculture, Politico (Feb. 16, 2016, 10:00 AM), [].

[6] Bureau Int’l Info. Programs, U.S. Dep’t State, Democracy in Brief 4, []. Generally, producers and advertisers of GM foods have rights under the First Amendment. But the “constitutionally protected interest in not providing . . . factual information [on a label] is ‘minimal.’” See Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249–50 (2010) (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985)); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005) (“The idea that . . . thousands of routine regulations require an extensive First Amendment analysis is mistaken.”). It is partially for that reason that a District Court for the District of Vermont recently refused to strike down a Vermont statute that requires labeling of genetically modified foods. See generally Grocery Mfrs. Ass’n v. Sorrell, 102 F. Supp. 3d 583 (D. Vt. Apr. 27, 2015), appeal docketed, No 15-1504 (2d Cir. Mar. 6, 2015) (argued Oct. 8, 2015). The court reviewed the Grocery Manufacturers Association’s First Amendment challenge to the statute’s GM food labeling requirement under the lowest level of constitutional scrutiny, id. at 632–36, a ruling which is currently on appeal.

[7] The proposed legislation is even more puzzling in light of the fact that a majority of those polled in Kansas—the state from which Representative Pompeo, who introduced the “Safe and Accurate Food Labeling Act of 2015,” and Senator Roberts hail—reports being “confused and disappointed” by a federal effort to preempt their right to label GM foods. See Monday Poll results: Many show support for GMO labeling, Kan. City Star (July 28, 2015), [].

Most Americans may be thankful, on the other hand, that a contrary piece of federal legislation that would “provid[e] consumers with knowledge of how their food is produced” was at least proposed. See Genetically Engineered Food Right-to-Know Act, S. 51, 114th Cong. (2015), []. Further, after F.D.A. recently approved for human consumption genetically engineered salmon, a disappointed Congress passed a spending bill that requires F.D.A. to “implement a program to disclose to consumers whether a salmon offered for sale to consumers is a genetically engineered variety.” Consolidated Appropriations Act, 2016, Pub. L. 114-113, § 761 (2015),

[8] A fallacious but nonetheless popular argument often deployed against labeling GM foods depends on the assumption that labeling GM foods in the United States would prevent or defund research on different GM foods that could benefit the developing world. The Washington Post Editorial Board, for example, writes that “GM crops . . . can play an important role in alleviating hunger and food stress in the developing world—if researchers in developed countries are allowed to continue advancing the field.” Editorial, We don’t need labels on genetically modified foods, Wash. Post (Mar. 29, 2015), []. And the Scientific American Editorial Board writes that the decision whether to label GM food in the United States is, “[u]ltimately,” a decision about “whether we will continue to develop an immensely beneficial technology.” Editorial, Labels for GMO Foods Are a Bad Idea, Sci. Am. (Aug. 20, 2013), []; see also Tony Dokoupil, Sorry, Gwyneth Paltrow, GMO labels won’t tell you what you want to know, MSNBC (Aug. 5, 2015, 5:56 PM), [] (stating without explanation that by advocating against the preemption of states’ rights to label GM foods, “Gwyneth Paltrow is . . . standing in the way of crop innovations that could fight world hunger and combat nutrient deficiencies”). The assumption is especially unreasonable in light of the fact that the GM foods that would be most useful in the developing world—“Golden Rice” or super-nutritive cassava, for example—are not even on the market in the United States. See Labels for GMO Foods Are a Bad Idea, supra note 8.

On the other hand, a charitable critic could interpret the argument to presume that research on those beneficial GM foods depends on unwitting subsidy by developed-world consumers, whose purchasing decisions indirectly fund the relevant research. After all, the Scientific American Editorial Board writes that “only with public support and funding will [GM foods that are beneficial in the developing world] make their way to people’s plates.” Id. But, first, the source of “support” and “funding” the argument advocates—unwitting subsidy by American consumers—seems unethical, for it depends on misleading those consumers into purchasing GM foods. Cf. Fraud, Black’s Law Dictionary (10th ed. 2014) (defining fraud as “concealment of a material fact made to induce another to act to his or her detriment” and consumer fraud as “[a]ny intentional . . . deceptive act or practice . . . made by a seller or advertiser of goods or services to induce a person or people in general to buy”). Second, from an economic perspective, such research should not depend on unwitting consumer subsidy; the market should not run on deception. See, e.g., Peter A. Ubel, Free Market Madness: Why Human Nature is at Odds with Economics—and Why it Matters 216 (2008) (noting that food labeling requirements “have made the food market more like a true free market, because they have armed consumers with information that they can use to make [free] purchasing choices”). And, third, the fact that most American consumers would object to funding research on GM foods by unwitting subsidy strongly suggests that the argument has no purchase in the democratic context of this political discussion. Cf. John Stuart Mill, On Liberty 175 (David Bromwich & George Kateb eds., Yale University Press 2003) (1869) (“A state which dwarfs its men . . . even for beneficial purposes—will find that with small men no great thing can really be accomplished.”).

[9] See, e.g., European Comm’n, A decade of EU-funded GMO research 133 (2010), []; Cary Funk & Lee Raine, Public and Scientists’ Views on Science and Society, Pew Res. Ctr. (Jan. 29, 2015), []. But see Statement: No scientific consensus on GMO safety, European Network Scientists for Soc. & Envtl. Resp. (Oct. 21, 2013), []; Richard Dahl, To Label or Not to Label: California Prepares to Vote on Genetically Engineered Foods, Envtl. Health Persps., [] (describing studies that may call the safety of GM foods into question and noting the lack of premarket safety testing of GM foods in the United States).

[10] See We don’t need labels on genetically modified foods, supra note 8; Labels for GMO Foods Are a Bad Idea, supra note 8; Sunstein, infra note 11. Recent research has casted doubt on this empirical proposition. See Jon C. Reidel, New Study: Consumers Don’t View GMO Labels as Negative ‘Warnings’, U. Vt. (July 27, 2015), [].

[11] See Cass R. Sunstein, Don’t Mandate Labeling for Gene-Altered Foods, Bloomberg Bus. (May 12, 2013, 6:00 PM), []; We don’t need labels on genetically modified foods, supra note 8 (“[M]andatory labeling would be extremely misleading to consumers.”); Labels for GMO Foods Are a Bad Idea, supra note 8.

[12] Sunstein, supra note 11.

[13] We don’t need labels on genetically modified foods, supra note 8.

[14] Such a disclaimer would reflect the F.D.A.’s general position on the issue. See U.S. Food & Drug Admin., Voluntary Labeling Indicating Whether Foods Have or Have Not Been Derived from Genetically Engineered Plants: Guidance for Industry (2015), [] (affirming that F.D.A. is “not aware of any information showing that bioengineered foods differ from other foods in any meaningful or uniform way”).

[15] See Sunstein, supra note 11; We don’t need labels on genetically modified foods, supra note 8 (“[M]andatory labeling would be extremely misleading to consumers.”); Labels for GMO Foods Are a Bad Idea, supra note 8.

It is probable that at least some people believe that the Government lies to them and that the Government would require the dissemination of information it knows to be false. Perhaps those people would not be convinced by a disclaimer. See generally Cass R. Sunstein & Adrian Vermeule, Conspiracy Theories: Causes and Cures, 17 J. Pol. Phil. 202 (2009).

[16] See 21 C.F.R. § 101.93(c).

[17] See Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 639 (6th Cir. 2010) (“We agree with the Processors that the potential consumer confusion created by the composition claim ‘rbST free’ could be alleviated by accompanying the claim with a disclaimer informing consumers that rbST has yet to be detected in conventional milk.”). “rBST” is an acronym for “recombinant bovine somatotropin,” an artificial growth hormone administered to dairy cows to force them to produce more milk.

[18] See Interim Guidance on the Voluntary Labeling of Milk and Milk Products From Cows That Have Not Been Treated With Recombinant Bovine Somatotropin, 59 Fed. Reg. 6279, 6280 (Feb. 10, 1994); Dale E. Bauman, Facts about Recombinant Bovine Somatotropin 5, []. The Court of Appeals for the Sixth Circuit has concluded, on the contrary, that “a compositional difference does exist between milk from untreated cows and conventional milk,” which is produced with rBST. International Dairy Foods, supra note 17, at 636. For further research, see generally Laurie J. Beyranevand, Milking It: Reconsidering the FDA’s Refusal to Require Labeling of Dairy Products Produced from rBST Treated Cows in Light of International Dairy Foods Association v. Boggs (Vt. L. Sch., Sept. 9, 2011), []; Christina Cusimano, Rbst, It Does A Body Good?: Rbst Labeling and the Federal Denial of Consumers’ Right to Know, 48 Santa Clara L. Rev. 1095 (2008).

Interestingly, Monsanto opposed voluntary labeling of milk as “rBST-free,” calling it “misleading,” see Monsanto urges FDA to stop “misleading” rBST-free labeling, Organic & Non-GMO Report (May 2007), [], as it opposes mandatory labeling GM foods on the same basis, see Labeling Food and Ingredients Developed from GM Seed, Monsanto (March 2013), [].

[19] The Food and Drug Administration arguably lacks authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., to require labels on all GM foods. See U.S. Food & Drug Admin., supra note 14. But see Emily M. Lanza, Cong. Research Serv., R43705, Legal Issues with Federal Labeling of Genetically Engineered Food: In Brief 3 (2015), [] (“In the past, the FDA has required specific labeling on the basis of it being ‘material’ information if the absence of such information would . . . pose special health or environmental risks.” (internal quotation marks omitted)); Food Labeling; Declaration of Ingredients, 56 Fed. Reg. 28592, 28599 (1991) (finding that the source of a protein—i.e., whether it is from milk—can be “information of material importance for a person who desires to avoid certain foods for religious or cultural reasons” and should for that reason appear on food labels). But even if it is the case that F.D.A. lacks such authority, it is Congress that should heed its constituents, irrespective of the contours of F.D.A.’s current power. See generally supra text accompanying notes 2 & 3; infra text accompanying note 86.

[20] See Arthur Caplan, GMO Foods Should be Labeled, But Not for Safety: Bioethicist, NBC News (Sept. 8, 2013, 4:06 PM), [] (“Think about the words that go onto food products now that have nothing to do with safety, or for that matter any proven facts about nutrition . . . .”). Contrast the questionable foundation of a common argument as to why GM foods should not be labeled: “[T]his is not a food safety or a nutritional issue—it’s not like allergens or trans fats—[so] . . . it should[n’t] be mandated on labels that foods are produced with GM crops.” Elaine Watson, CSPI: There are legitimate concerns about GMOs, but not around food safety, and labeling would be misleading, Food Navigator USA (July 3, 2013), [].

[21] See 21 C.F.R. § 146.145(c).

[22] See Pat Thomas, Behind the Label: orange juice, Ecologist (July 13, 2009), []; Ali Weinberg, Why Gwyneth Paltrow Is Joining a Congressional Food Fight Over GMO Labeling, ABC News (Aug. 5, 2015, 4:19 PMs), [] (quoting Gwyneth Paltrow as stating, “Much the way I want to know if my food is farm-raised, or wild, or if my orange juice is fresh or from concentrate[,] I also believe I have the right, and we as Americans all have the right to know what’s in our food.”).

[23] See 21 C.F.R. § 179.26(c) (emphasis added). F.D.A. even requires that the Radura Symbol, a logo that indicates that the food has been irradiated, “be placed prominently and conspicuously in conjunction with the required statement.” 21 C.F.R. § 179.26(c)(1).

[24] Food Irradiation: What You Need to Know, U.S. Food & Drug Admin. (Sept. 3, 2015) (emphasis added), [].

[25] Consider, for example, the requirement that foods be labeled with their net weights. See 21 C.F.R. § 101.105.

[26] See 19 C.F.R. § 134.11; cf. American Meat Inst. v. U.S. Dep’t Agric., 760 F.3d 18, 20 (D.C. Cir. 2014) (upholding a U.S.D.A. regulation that mandates disclosure of country-of-origin information about meat products).

[27] To see an image of a country of origin label on a bottle of extra virgin olive oil purchased at Trader Joe’s, visit Steveo, Trader Joe’s Sicilian Extra Virgin Olive Oil – Food Review, WordPress: Ain’t Found a Good Title Blog (Aug. 13, 2011), [].

[28] See supra text accompanying note 26.

[29] See Andrew Pollack, Genetically Engineered Salmon Approved for Consumption, N.Y. Times (Nov. 19, 2015), [].

[30] Consolidated Appropriations Act, 2016, Pub. L. 114-113, § 761 (2015),; see also Alaska Stat. § 17.20.040(14)(A)–(B) (2005) (requiring genetically modified fish, if it is to be sold without being “misbranded,” to be “conspicuously labeled” or “conspicuously identified”); Tamar Haspel, If the GMO salmon is as good as its maker says, why not label it?, Wash. Post (Nov. 19, 2015), [].

[31] FDA Has Determined That the AquAdvantage Salmon is as Safe to Eat as Non-GE Salmon, U.S. Food & Drug Admin. (Nov. 19, 2015), [].

[32] See, e.g., Hearing to Consider the Societal Benefits of Biotechnology Before the Subcomm. on Horticulture, Research, Biotech., and Foreign Agric. of the H. Comm. on Agric., 113th Cong. 43 (2014); Michael McAuliff, Americans Are Too Stupid For GMO Labeling, Congressional Panel Says, Huffington Post (July 10, 2014), [] (streaming a video of testimony before a congressional panel in which congressmen and those testifying before them discuss the supposed “ignorance” and “lack of education” of American food consumers).

[33] See supra text accompanying notes 2 & 3.

[34] See Caplan, supra note 20.

[35] Editorial, Tell Consumers What They Are Eating, N.Y. Times (Dec. 1, 2015), [].

[36] See generally Immanuel Kant, Groundwork on the Metaphysics of Morals (1785); John Stuart Mill, supra note 8.

That disclosure is also essential to the vitality of the marketplace of ideas exalted by the First Amendment, see, e.g., Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 114 (2d Cir. 2001), and to the libertarian ideal of a true free market, see, e.g., Ubel, supra note 8, at 216. “[L]ibertarian philosophy is based in large part on the moral value of letting people make informed choices about their lives. And how can people make such choices if companies aren’t willing to give them information about their products?” Id. F.D.A. food labeling requirements, after all, “have made the food market more like a true free market, because they have armed consumers with information that they can use to make [free] purchasing choices.” Id. (footnote omitted). Therefore, “the value of that information”—whether food is the product of genetic engineering—“should be left to consumers to decide.” See Tell Consumers What They Are Eating, supra note 35.

[37] See Kristin Voigt, Paternalism and Equality, in New Perspectives on Paternalism and Health Care 87, 87 (Thomas Schramme ed., 2015), [].

[38] Autonomy: Normative, Internet Encyclopedia Phil., []; see also John Stuart Mill, supra note 8, at 124 (“He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties.”).

[39] See Voigt, supra note 37, at 87.

[40] Id.

[41] See A.K. Edwin, Don’t Lie but Don’t Tell the Whole Truth: The Therapeutic Privilege—Is it Ever Justified?, 42 Ghana Med. J. 156, 156 (2008), [] (noting the “therapeutic privilege” exception to the norm that medical information about a patient be disclosed to him).

[42] See generally P. O’Malley et al., Transparency during public health emergencies: from rhetoric to reality, 87 Bull. World Health Org. 614 (2009), [].

[43] Autonomy: Normative, supra note 38.

[44] See, e.g., Mary S. McCabe et al., When the Family Requests Withholding the Diagnosis: Who Owns the Truth?, 6 J. Oncology Practice 94, 95 (2010) (“It is the patient and not the physician or the family who ultimately owns the right to decide how he or she wants to exercise autonomy with respect to his or her own illness.”), []. See generally Jukka Varelius, The value of autonomy in medical ethics, 9 Med. Health Care. Phil. 377 (2006), [].

As then-Judge Cardozo put it: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . .” Schloendorff v. Soc’y of N.Y. Hosp., 211 N.Y. 125, 129 (1914); see also John Stuart Mill, supra note 8, at 81 (“Over himself, over his own body and mind, the individual is sovereign.”)

[45] See Hearing to Consider the Societal Benefits of Biotechnology, supra note 32; McAuliff, supra note 32; cf. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (“There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that . . . information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.”).

[46] See Caplan, supra note 20 (“Seeing the pro-GMO food industry fight labeling on the grounds that GMO food is safe is pathetic.”).

[47] Cf. Maine v. Taylor, 477 U.S. 131, 148 (1986) (identifying a state’s “legitimate interest in guarding against imperfectly understood environmental risks, despite the possibility that they may ultimately prove to be negligible”).

[48] See Maggie Delano, Roundup Ready Crops, Mass. Inst. Tech. (2009), []; Nathanael Johnson, Roundup-ready, aim, spray: How GM crops lead to herbicide addiction, Grist (Oct. 14, 2013) []. See generally John Peterson Myers et al., Concerns over use of glyphosate-based herbicides and risks associated with exposures: a consensus statement, 15 Envtl. Health 1 (2016), [].

[49] See Int’l Agency for Research on Cancer, World Health Org., IARC Monographs Vol. 112: evaluation of five organophosphate insecticides and herbicides 1 (Mar. 20, 2015), []; Kathryn Z. Guyton et al., Carcinogenicity of tetrachlorvinphos, parathion, malathion, diazinon, and glyphosate, 16 Lancet Oncology 490, 490 (May 2015); Carey Gillam, U.S. lawsuits build against Monsanto over alleged Roundup cancer link, Reuters (Oct. 15, 2015, 2:31 PM), [].

[50] See Brigitta Kurenbach et al., Sublethal Exposure to Commercial Formulations of the Herbicides Dicamba, 2,4-Dichlorophenoxyacetic Acid, and Glyphosate Cause Changes in Antibiotic Susceptibility in Escherichia coli and Salmonella enterica serovar Typhimurium, mBio, Mar.–Apr. 2015, at 1, [].

[51] See Monika Krüger et al., Glyphosate suppresses the antagonistic effect of Enterococcus spp. on Clostridium botulinum, 20 Anaerobe 74, 76 (2013).

[52] See, e.g., Myers et al., supra note 48, at 3; Vincent F. Garry et al., Birth defects, season of conception, and sex of children born to pesticide applicators living in the Red River Valley of Minnesota, USA, 110 Envtl. Health Persps. 441, 441 (2002), []; Monika Krüger et al., Detection of Glyphosate Residues in Animals and Humans, J. Envtl. & Analytic Toxicology, 2014, at 1, []; U.S. Envl. Prot. Agency, Technical Fact Sheet on: Glyphosate 1, []; cf. Elizabeth Grossman, What Do We Really Know About Roundup Weed Killer?, Nat’l Geographic (Apr. 23, 2015), [].

[53] See Genetically engineered (GE) corn varieties by State and United States, 2000-2015, Econ. Res. Serv, U.S. Dep’t Agric., [] (last updated July 7, 2015).

Some opponents of labeling contend that premising an argument for labels on the fact that problematic pesticides were used in the cultivation of the labeled foods “confuse[s] GM with a particular application for GM, namely herbicide tolerance.” See Expert reaction to ‘GMOs, Herbicides, and Public Health’, Sci. Media Ctr. (Aug. 19, 2015), []. But that “particular application for GM” tightly correlates with cultivation of GM corn and soy generally, for the vast majority of corn and soy is engineered to be herbicide tolerant. See Adoption of genetically engineered crops in the U.S., Econ. Res. Serv, U.S. Dep’t Agric., [] (last updated July 7, 2015). Moreover, the constitutional standard governing a federal labeling law would not require a perfect match between each end of a label—for example, to alert consumers to glyphosate’s probable hand, and its corresponding ecological significance, in a foods’ production—and the chosen means to that end—a food label. See Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1671 (2015) (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992)) (reiterating that even strict scrutiny requires only that a law “be narrowly tailored, not that it be ‘perfectly tailored’”); Grocery Mfrs. Ass’n v. Sorrell, 102 F. Supp. 3d 583, 622 (D. Vt. Apr. 27, 2015), appeal docketed, No 15-1504 (2d Cir. Mar. 6, 2015) (argued Oct. 8, 2015); cf. Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 116 (2d Cir. 2001) (“Innumerable federal and state regulatory programs require the disclosure of product and other commercial information.”); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005); Nat’l Ass’n of Mfrs. v. Sec. & Exch. Comm’n, 800 F.3d 518, 531 (D.C. Cir. 2015) (Srinivasan, J., dissenting) (“Issuers of securities must make all sorts of disclosures about their products for the benefit of the investing public. No one thinks that garden-variety disclosure obligations of that ilk raise a significant First Amendment problem.”).

[54] See Food & Water Watch, Superweeds: How Biotech Crops Bolster the Pesticide Industry 4 (2013) []; Beth Hoffman, GMO Crops Mean More Herbicide, Not Less, Forbes (July 2, 2013), [].

[55] See United States Geological Survey, Pesticide National Synthesis Project, Glyphosate, [] (last updated Jan. 5, 2016); cf. Charles M. Benbrook, Impacts of genetically engineered crops on pesticide use in the U.S. — the first sixteen years, 24 Envtl. Sci. Europe 1 (2012), []. But see Tamar Haspel, It’s the chemical Monsanto depends on. How dangerous is it?, Wash. Post (Oct. 4, 2015), [] (noting that glyphosate has displaced use of other herbicides).

[56] See, e.g., Myers et al., supra note 48, at 3; Thomas Bøhn et al., Compositional differences in soybeans on the market: Glyphosate accumulates in Roundup Ready GM soybeans, 153 J. Food Chemistry 207, 207 (2014); European Food Safety Authority, Modification of the residue definition of glyphosate in genetically modified maize grain and soybeans, and in products of animal origin, EFSA J., July 2009, at 17, []. Glyphosate can penetrate plant surfaces and enter plant tissue, making it difficult or impossible to wash the chemical from food. See Bob Hartzler et al., Glyphosate, Weeds, & Crops Grp., Understanding Glyphosate To Increase Performance 4, []; Mark Longstroth, Be careful using RoundUp and other glyphosate herbicides, Mich. St. U. Extension (July 8, 2011), []; Friends of the Earth Europe, Human Contamination by Glyphosate 3 (2013), [] (citing European Food Safety Authority, Opinion on the Modification of the Existing MRL for Lentils, European Food Safety Authority, EFSA J., Oct. 2012, at 2, []). Glyphosate can also accumulate in foods such as meat and eggs derived from animals that were fed corn or soy treated with glyphosate. See World Health Org., Food & Agric. Org. of the U.N., Pesticide Residues in food – 2005, at 138–44, []. After rebuke from the Government Accountability Office, it appears that F.D.A. will begin to test foods—such as GM corn and soy—for glyphosate residue. Carey Gillam, FDA to Start Testing for Glyphosate in Food, Civil Eats (Feb. 17, 2016), [].

[57] See Carey Gillam, U.S. researchers find Roundup chemical in water, air, Reuters (Aug. 31, 2011, 4:01 PM), [].

[58] Grossman, supra note 52 (citing William A. Battaglin et al., Glyphosate and Its Degradation Product AMPA Occur Frequently and Widely in U.S. Soils, Surface Water, Groundwater, and Precipitation, 50 J. Am. Water Res. Ass’n 275, 275 (2014)). Glyphosate can also be found in human urine. See Dirk Brändli & Sara Reinacher, Herbicides found in Human Urine,

2012 Ithaka J. 270, 270–72, (2012), []; Brian D. Curwin et al., Urinary Pesticide Concentrations Among Children, Mothers and Fathers Living in Farm and Non-Farm Households in Iowa, 51 Annals Occupational Hygiene 53, 53–64 (2007), []; John F. Acquavella et al., Glyphosate biomonitoring for farmers and their families: results from the Farm Family Exposure Study, 112 Envtl. Health Persps. 321, 321–25 (2004), []. Our bodies, unfortunately, are not “Roundup Ready.” See Marta Kwiatkowska et al., The effect of metabolites and impurities of glyphosate on human erythrocytes (in vitro), 109 Pesticide Biochemistry & Physiology 34, 36–39 (2014). Could the rise of synthetic chemical-based agriculture be connected to the rise of cancer? Cf. Rising Global Cancer Epidemic, Am. Cancer Soc’y (2013), [].

[59] Myers et al., supra note 48, at 10; See EPA’s Risk Assessment is Too Flawed to Proceed: Comments from Environmental Working Group on the EPA’s Proposed Decision to Register EnlistTM Herbicide Containing 2,4-D and Glyphosate, Envtl. Working Grp. (June 4, 2014), []; Landrigan & Benbrook, supra note 1, at 694 (clarifying that studies on “low-dose, endocrine-mediated, and epigenetic effects” and “health effects in infants and children” are essential, but absent from the process that approved use of certain herbicides in cultivation of GM crops); see also Robin Mesnage et al., Transcriptome profile analysis reflects rat liver and kidney damage following chronic ultra-low dose Roundup exposure, 14 Envtl. Health 70, 82 (2015), [] (documenting that glyphosate-based herbicides at an “ultra-low, environmental dose can result in liver and kidney damage with potential significant health implications for animal and human populations”). But see Barbara Lewis, European scientists say weedkiller glyphosate unlikely to cause cancer, Reuters (Nov. 12, 2015), [].

[60] See, e.g., John Deike, Brazil Seeks Ban on Monsanto Herbicide Due to Alarming Toxicity Risks, EcoWatch (Mar. 27, 2014), [] (noting efforts or bans in Brazil, El Salvador, and Sri Lanka); Sarah, Dutch Ban Roundup, France and Brazil to Follow, Healthy Home Economist, []; Grossman, supra note 52 (noting efforts or bans in Canada, Mexico, and the Netherlands).

[61] Grossman, supra note 52. Many of the same concerns that apply to glyphosate apply to a combination of glyphosate and 2,4-Dichlorophenoxyacetic acid—a Dow chemical cocktail called “Enlist Duo,” which EPA approved last year for use in cultivation of GM corn and soy. Rebecca Trager, EPA under pressure over Enlist Duo herbicide, Chemistry World (June 26, 2015), []. But additional concerns abound as well. “2,4-D,” as it’s called, has been declared a possible carcinogen by the World Health Organization, has been linked to many-fold increases in non-Hodgkins lymphoma, and was one of several active ingredients in Agent Orange (though probably not the worst of them). See Shelia H. Zahm & Aaron Blair, Pesticides and non-Hodgkin’s lymphoma, 52 Cancer Res. 5485s, 5485s–88s (1992) []; Press Release, Int’l Agency for Research on Cancer, World Health Org., IARC Monographs evaluate DDT, lindane, and 2,4-D (June 23, 2015), []; Registration of Enlist Duo, U.S. Envtl. Prot. Agency, []. Accordingly, E.P.A. has since attempted to revoke its approval of Enlist Duo. See Karl Plume, CORRECTED-UPDATE 2-EPA asks court to withdraw registration of Dow herbicide, Reuters (Nov. 25, 2015), [].

[62] See, e.g., Stephen O. Duke, Perspectives on transgenic, herbicide-resistant crops in the United States almost 20 years after introduction, 71 Pest Mgmt. Sci. 652, 652 (2015); Natasha Gilbert, Case studies: A hard look at GM crops, Nature: News Features (May 1, 2013), []; Econ. Res. Serv., U.S Dep’t of Agric., Genetically Engineered Crops in the United States, Economic Research Report No. 162 (2014), []; Carey Gillam, Pesticide use ramping up as GMO crop technology backfires: study, Reuters (Oct. 1, 2012), []; Food & Water Watch, supra note 54, at 2. See generally Comm. on the Impact of Biotechnology on Farm-Level Econ. and Sustainability, Impact of Genetically Engineered Crops on Farm Sustainability in the United States, 72–83 (2010), [].

[63] See, e.g., Gillam, supra note 62; Jack Kaskey, ‘Mounting Evidence’ of Bug-Resistant Corn Seen by EPA, Bloomberg Bus. (Sept. 5, 2012), [].

[64] See Lucila T. Herbert et al., Effects of field-realistic doses of glyphosate on honeybee appetitive behaviour, 217 J. Experimental Biology 3457, 3461 (2014), []; John M. Pleasants & Karen S. Oberhauser, Milkweed loss in agricultural fields because of herbicide use: effect on the monarch butterfly population, 6 Insect Conservation & Diversity 135, 142 (2013), []; Letter from Earl Blumenauer et al., U.S. House of Representatives, to Gina McCarthy, Administrator of the Envtl. Prot. Agency (Sept. 30, 2014), []; cf. Francisco Sánchez-Bayo, Insights: The trouble with neonicotinoids, 346 Sci. 806, 806–07 (2014); GMO Crops, Neonicotinoids Will Be Weeded out of U.S. Wildlife Refuges, NBC News (Aug. 6, 2014), []; Hannah Hoag, How to Help Stop Industrial Agriculture From Killing the Monarch Butterfly, TakePart (July 31, 2014), []; Christina Sarich, 37 Million Bees Found Dead in Canada After Large GMO Crop Planting, Nat. Soc’y (Nov. 9, 2014), [].

[65] See Insects and Pollinators, Nat. Res. Conservation Serv., U.S. Dep’t of Agric., [] (“Some scientists estimate that one out of every three bites of food we eat exists because of animal pollinators like bees, butterflies and moths, birds and bats, and beetles and other insects.”).

[66] Presidential Memorandum, Creating a Federal Strategy to Promote the Health of Honey Bees and Other Pollinators (June 20, 2014), [].

[67] See Press Release, U.S. Envtl. Prot. Agency, San Francisco Bay Area Endangered Species Litigation Revised Settlement Agreement – Center for Biological Diversity v. EPA (June 23, 2015), [].

[68] Landrigan & Benbrook, supra note 1, at 695; see also Genetically Modified Foods, Harvard T.H. Chan Sch. of Pub. Health, [] (“The decrease in glutelin levels in rice [through genetic modification], for example, was associated with an unintended increase in levels of compounds called prolamines, which can affect the nutritional quality of rice and increase its potential to induce an allergic response.”); Genetic Engineering in Agriculture, Union of Concerned Scientists, [] (noting that GM crops “may spread undesirable traits to weeds and non-GE crops, produce new allergens and toxins, or harm animals that consume them”); cf. Jonathan A. Bernstein et al., Clinical and laboratory investigation of allergy to genetically modified foods, 111 Envtl. Health Persps. 1114, 1120 (2003), [] (“The experiences with StarLink corn and in occupational cohorts exposed to grain dusts suggest that the development of methods to be used for postmarket consumer and occupational health surveillance may be useful.”); Julie A. Nordlee et al., Identification of a Brazil-Nut Allergen in Transgenic Soybeans, 334 New Eng. J. Med. 688, 688 (1996), [] (showing that “that an allergen from a food known to be allergenic can be transferred into another food by genetic engineering”); Belinda Martineau, When Food Is Genetically Modified, N.Y. Times (Oct. 20, 2015), [] (“[B]ecause each product [of crop genetic engineering] is different — not only in the ways genetic engineers design and expect them to be, but also by potentially containing unique unintended and unexpected changes — the safety of each one must be assessed individually.”).

Starlink corn is a genetically engineered variety that was approved only for industrial and industrial animal agriculture uses but which contaminated the human food supply by cross-pollination, leading to litigation and food recalls. See Negligence Suit Is Filed Over Altered Corn, N.Y. Times (Dec. 4, 2000), []; Comm. on the Impact of Biotechnology on Farm-Level Econ. and Sustainability, supra note 62, at 171.

[69] See Genetically Modified Foods, supra note 68.

[70] Grocery Mfrs. Ass’n v. Sorrell, 102 F. Supp. 3d 583, 634 (D. Vt. Apr. 27, 2015), appeal docketed, No 15-1504 (2d Cir. Mar. 6, 2015) (argued Oct. 8, 2015).

[71] See, e.g., Meredith G. Schafer et al., The Establishment of Genetically Engineered Canola Populations in the U.S., PLoS ONE, Oct. 2011, at 3, []; Stephanie E. Cox, Genetically Modified Organisms: Who Should Pay the Price for Pollen Drift Contamination?, 13 Drake J. Agric. L. 401, 405–09 (2008), []; Dorothy Du, Rethinking Risks: Should Socioeconomic and Ethical Considerations be Incorporated Into the Regulation of Genetically Modified Crops?, 26 Harv. J.L. & Tech. 376, 381 (2012), [] (“Gene flow through pollen drift and the movement of seeds can devastate conventional and organic farmers whose crops may be devalued or rendered unmarketable by the presence of [genetically modified] recombinant DNA.” (citations omitted)); cf. Negligence Suit Is Filed Over Altered Corn, supra note 68.

[72] H.R. 112, Gen. Assemb., 2013-2014 Sess. (Vt. 2014), []; see also Food Labeling: Declaration of Ingredients, 56 Fed. Reg. 28592, 28592, 28597, 28600, 28616 (July 21, 1991) (discussing the importance of food labeling to the practice of religion).

[73] See Pollack, supra note 29; Kosher Fish List,, []; cf. Leviticus 19:19 (forbidding certain kinds of genetic mixing); Deuteronomy 22:9–11.

“[Three hundred] environmental, consumer, health and animal welfare organizations, salmon and fishing groups and associations, food companies, chefs and restaurants” have all expressed concerns about the fish’s approval. FDA Approves First Genetically Engineered Animal for Human Consumption Over the Objections of Millions, Ctr. for Food Safety (Nov. 19, 2015), []. Given such concerns—ranging from ecological or environmental, to ethical or religious—more than sixty supermarket chains, including some of the largest in the country, are refusing to sell the so-called “Frankenfish” when it does come to market. See Nicole Mormann, Costco Joins a Host of Retailers Refusing to Sell GMO Salmon, TakePart (Nov. 25, 2015), []; Tim Schwab, GMO Salmon Declared Safe to Eat, But Not Grow, in U.S. Here’s Why, Food & Water Watch, (Dec. 4, 2015), [].

[74] Pope Francis, Laudato Si’: On Care for Our Common Home 99 (May 24, 2015), [].

[75] Id.

[76] See Spitznagel & Taleb, supra note 1; cf. Comm. on the Impact of Biotechnology on Farm-Level Econ. and Sustainability, supra note 62, at 169–70 (2010) (“Gene flow of GE traits could jeopardize the economic value of the entire harvest of non-GE-crop farmers by rendering their output unsuitable for high-value markets. They could also have unfavorable effects on the levels of trust that exist between market participants.” (citation omitted)); Roberto A. Ferdman, Bye, bye, bananas, Wash. Post: Wonkblog (Dec. 4, 2015), [].

[77] See, e.g., Carey Gillam, Washington state sues lobbyists over campaign against GMO labeling (Oct. 16, 2015), Reuters,; cf. Leviticus 19:11 (“Do not lie.”).

[78] See Andrew Dyke & Robert Whelan, ECONorthwest, GE Foods Labeling Cost Study Findings 7 (2014), [] (concluding that labeling of GM foods in the United States would cause a median cost of an additional $2.30 per person per year). Everyone “largely agree[s] that simply adding the wording would not drive up consumer costs.” Lee, supra note 2. A different article that estimated a much higher cost increase was flawed because it assumed that “all cost increases [would] be passed along to food consumers, as opposed to being absorbed by . . . companies or supermarkets.” See id. The Washington Post’s Fact Checker blog rated a statement based on the article worthy of “Three Pinocchios.” See id.

Importantly, the possible substantial price increase predicted by the “Three Pinocchios” article would come, if at all, as a result of food company choice: For many reasons, consumers would prefer non-GM foods, so “[t]o remain competitive, companies would then need to create new products without GMO ingredients.” Id. The argument advanced by food companies that GM foods should not be labeled because food costs would increase is thus hypocritical and misleading. The argument is hypocritical because the cost increase would be a result of those companies’ own choices: first, the rational choice to meet consumer demand—demand that will shift once consumers are empowered by more information about their food; and, second, the questionable choice to pass the costs of meeting that demand onto consumers. See id. The argument is misleading because it assumes that consumers would make different purchasing decisions if they had more information about their food, yet concludes that consumers should not be provided that information: it assumes that the lack of labeling, which the argument defends, misleads consumers. Cf. Fraud, Black’s Law Dictionary (10th ed. 2014) (defining consumer fraud as “[a]ny intentional . . . false pretense . . . made by a seller or advertiser of goods or services to induce a person or people in general to buy”).

[79] See Lanza, supra note 19, at 4–5; Me. Rev. Stat. tit. 22, § 2591 et seq.; Conn. Gen. Stat. Ann. § 21a-92c.

Lawmakers in approximately thirty states have proposed legislation that would require labeling of GM foods. See State Labeling Initiatives, Ctr. for Food Safety, [].

[80] See One Million Strong: Record-Breaking Comments Delivered to FDA to Label GE Foods, Just Label It (Mar. 27, 2012), [].

[81] See More than 700 Chefs and Restaurant Owners Push Congress to Label Genetically Modified Foods, AllGov (Dec. 5, 2014), [].

[82] See Labeling Supporters, Just Label It (June 10, 2014), []. And don’t forget Neil Young. See Lorraine Chow, Neil Young, Willie Nelson, Dave Matthews, John Mellencamp: Help Us Stop the DARK Act, EcoWatch (Dec. 14, 2015, 10:29 AM), []; Neil Young, The Monsanto Years (Reprise Records, 2015). All four of the famous musicians mentioned in Help Us Stop the DARK Act are board members of Farm Aid. See Chow, supra note 82.

[83] Stephanie Strom, Campbell Labels Will Disclose G.M.O. Ingredients, N.Y. Times (Jan. 7, 2016), [].

[84] See Landrigan & Benbrook, supra note 1; International Labeling Laws, supra note 4.

[85] See Landrigan & Benbrook, supra note 1; International Labeling Laws, supra note 4. And although they have been advanced as a “compromise” by food industry groups, QR code labels—“Quick Response,” two-dimensional barcodes that are readable by smartphones and when scanned would indicate on a smartphone whether a food is GM—are almost certainly not a satisfactory solution. See Mary E. Kustin, Nothing Smart About “Smart Label”, Envtl. Working Grp.: AgMag Blog (Dec. 2, 2015), []. Approximately “88% of American shoppers would prefer to not have to scan a barcode just to find out whether their food contains GMOs” and more than 40% of consumers—especially elderly, low-income, or otherwise disadvantaged consumers—do not even have smartphones. See id.; Morran, supra note 2.

[86] The Federalist No. 78, at 381 (Lawrence Goldman ed., 2008).

[87] See Jenny Hopkinson, Pols ask Obama to keep GMO pledge, Politico (Jan. 16, 2014), []. That Politico article appears to misquote President Obama by one word, substituting an “if” for the “whether.” See fooddemocracynow, Obama Promises to Label GMOs, Youtube (Oct. 6, 2011), [] (streaming a video in which Obama speaks the promise); SunfoodTV, Bill Maher Talks Monsanto, Genetically Modified Food (GMOs) – HD, Youtube (June 28, 2012) [].

For-Profit, Anti-Student

For-Profit, Anti-Student

by Nino C. Monea, JD ’17

The legal job market is notoriously rocky. Virtually all law schools have trouble securing full-time jobs for their students. However, not all schools are equal in this regard, and many use deceptive techniques. Some of the worst cases involve private, for-profit law schools. One particularly troubling example is the Charleston School of Law (“CSOL”)—a for-profit law school in South Carolina with a poor track record of helping its graduates find gainful employment.

Annual tuition is nearly $40,000 (not counting the $12,600 for room and board)—only a little less than the median private sector salary of $47,000 for its graduates.[1] Of course, this median only includes graduates who have a job. According to Law School Transparency, 21.4% of CSOL’s graduates in 2014 are non-employed.[2] Hit by declining enrollment, the school considered not admitting any students for the new school year. It has since decided to keep its doors open, and instead laid off faculty members to stay afloat.[3]

For all the school’s woes, at least one group has done well: its owners. Over the institution’s twelve years of operation, the five original owners paid themselves more than $25 million.[4] Two of them sold their shares for an additional $6 million and retired, and a third resigned in disgust. Despite this windfall, the remaining owners announced last year that they would not pay for graduation ceremonies.[5]

Sadly, CSOL is not an aberration. These kinds of low employment statistics are par-for-the-course in the for-profit education sector. This is true not only in law schools, but for universities in general. Although not all for-profit schools use deceptive tactics, the industry overall has used numerous questionable tactics.

For-profit schools charge substantially higher tuition, on average, than nonprofit schools. An average university student will pay $13,000 to $16,000 per year for their for-profit education.[6] For comparison, the average student at a public, in-state four-year university pays $8,000 annually.[7] To make matters worse, for-profit schools target vulnerable populations, including high school dropouts, non-traditional students, the learning disabled, and even the homeless.[8] As a result, students in poverty are nearly four times as likely to be at a for-profit institution in spite of the higher tuition.[9]

Unsurprisingly, these low-income students need assistance to finance the costly education. Much of this assistance comes in the form of government grants and loans. For-profit schools have collectively taken $22 billion in Pell Grants in 2014.[10] The result is taxpayers effectively footing the tuition bill and lining the pockets of the owners of for-profit corporations.

If low-income students ultimately received remunerative employment, there would be nothing wrong with this picture. Low-income students are undoubtedly worthy recipients of public help, and the government frequently works with the private sector to achieve better outcomes.

Sadly, graduates of for-profit schools have grim job prospects, and the high tuition costs do not have a correspondingly high return on investment. There have been reports of employers saying that degrees from for-profit schools are not credible.[11] Even though students at for-profit institutions are more likely to earn certificates and associate degrees than those in community college, they reported less satisfaction with their education, were more likely to experience long-term unemployment, and have lower earnings six years after finishing.[12]

Some schools have been accused of offering misleading information about tuition and job placement. Students at one for-profit law school brought a lawsuit, claiming that their school wrongfully inflated its employment statistics.[13] A Senate investigation revealed that for-profit schools employed aggressive tactics to enroll veterans, going so far as to recruit at veteran hospitals and wounded warrior centers and misleading them about the costs of tuition.[14] Students recruited deceptively face a combination of high debt coupled with anemic job prospects.

Because of poor job prospects for graduates of for-profit schools, they commonly default on their debt. Only eleven percent of students nationwide are enrolled in a for-profit educational institution. Yet these students account for nearly half of all federal student loan defaults.[15] A quarter of all students in for-profit institutions will default within three years, nearly triple the rate of students in nonprofit schools.[16]

Legislative solutions have been proposed, but not enacted. Senators Dick Durbin, Tom Carper, and Richard Blumenthal introduced a bill that would bar for-profit colleges from getting more than ninety percent of their revenue from federal student loan funding.[17] Corinthian Colleges, Inc., a for-profit education company, alone received $180 million in GI dollars from enrolling veterans, and for-profit institutions have been accused of predatory lending and rigging job placement rates.[18] Senators Jeff Merkley and Tom Harkin also recently introduced legislation to close the loophole that allows institutions to accept federal funds even when their programs are not accredited.[19]

Efforts to enact accountability standards for these programs have met fierce opposition. Lobbying groups representing for-profit education are naturally opposed, and have deployed lobbyists to try to stymie reforms and flood regulators with form letters arguing against any new rules.[20] Members of Congress from both parties have also tried to block plans to take on for-profit educational institutions.[21]

Prospects for passage thus look dim in the current Congress. Given that we are in throes of the 2016 presidential election, it would be optimism to the point of foolishness to expect lawmakers to tackle such a contentious issue.

Fortunately, until new legislation is passed, there is an immediate solution: utilizing existing laws.

Federal agencies can utilize existing laws to crack down on deceptive industry practices. In 2014, the Consumer Financial Protection Bureau (“CFPB”) brought suit against ITT Educational Services (“ITT”), a for-profit corporation, under the Consumer Financial Protection Act of 2010 (“CFPA”). The CFPB charged ITT with employing a bait-and-switch model of education. Specifically, ITT offers students short-term loans that are zero-interest for the first nine months. If students could not pay off these loans by the end of the academic year, which exceedingly few students do, ITT coerced them into taking out high-interest, high-fee private loans to pay off the “zero-interest” loans from before.[22]

A similar suit by the CFPB against Corinthian yielded significant gains. Corinthian will forgive nearly half a billion dollars in loans, and sold half of its campuses to a company called ECMC. The new owner is working to change some of the worst practices so that future students do not face the same predatory tactics. For instance, ECMC will no longer use binding arbitration clauses, which can limit students’ ability to enforce their rights in court, in enrollment contracts.[23]

The Federal Trade Commission (“FTC”) has issued new warnings consumers about the dangers of deceptive educational institutions.[24] More recently, the FTC has demanded information on enrollment, recruitment, financial aid, and tuition from Apollo Education Group, Inc., owner of a for-profit chain.[25]

The Department of Education has promulgated rules that impose sanctions on schools where graduates’ annual loan payments exceed 20% of their discretionary income, or 8% of their total earnings.[26] Modest as these rules are, roughly 1,400 educational programs, virtually all of which are for-profit, would not make the cut.[27] The Department of Education relies upon a line in the Higher Education Act of 1965 for this rule-making authority. The law states that federal aid decisions can be given to programs that “lead to gainful employment in a recognized occupation.”[28] Over the summer, the Department of Education announced that it would fine Corinthian $30 million for misleading students about job placement opportunities and loan repayment rates.[29]

Efforts to police deceptive institutions should continue so that students are not left out to dry. There have been calls from consumer groups for the FTC to go further in policing for-profit education, as the agency has stronger enforcement powers than the Department of Education.[30] Due to industry pushback, the Department of Education had to water down sanctions on for-profit schools in its final proposed regulation.[31] The CFPB deal with ECMC was great progress, but the school is still allowed to restrict student class-action lawsuits.

All of these efforts are worth fighting for in subsequent enforcement actions. Comprehensive legislation in the mold of bills that have already been introduced would be the best long-term solution to the problem. But with Congress on cruise control, it’s up to agencies to ensure that low-income students don’t get thrown under the bus.



[1] Charleston School of Law, U.S. News & World Report, [].

[2] Charleston School of Law Profile, Law School Transparency, [].

[3] See Debra Cassens Weiss, Charleston School of Law lays off seven more faculty members, plans to enroll fall class, ABA J. (May 26, 2015, 7:00 AM), [].

[4] John M. Burbage, A legal maneuver to save the Charleston School of Law, Post & Courier (May 17, 2015 12:01 AM), [].

[5] Id.

[6] Kayla Webley, For-Profit Schools: ‘Agile Predators’ or Just Business Savvy?, Time (Jan. 9, 2012), [].

[7] Id.

[8] See Kayla Webley, Are For-Profit Colleges Targeting Low-Income Students?, Time (June 15, 2011), [].

[9] Inst. for Higher Educ. Policy, Initial College Attendance of Low-Income Young Adults 3 (June 2011), [].

[10] Allie Grasgreen, Obama retreats on college crackdown, Politico (Oct. 30, 2014 6:16 AM), [].

[11] See, e.g., Blake Ellis, My college degree is worthless, CNN Money (Dec. 2, 2015, 6:11 PM), [].

[12] See Georgia West Stacey, For-Profit College Students Less Likely to Be Employed After Graduation and Have Lower Earnings, New Study Finds, Center for Analysis of Postsecondary Education and Employment, [].

[13] See William Browning, Florida Coastal School of Law grads file suit against school, allege deceptive practices, (Mar. 7, 2012 12:06 AM), [].

[14] See Danielle Douglas-Gabriel, For-profit colleges aggressively target veterans for enrollment. These Democrats want it to stop., Wash. Post: Wonkblog (June 25, 2015), [].

[15] Emily Fox, White House crackdown on for-profit colleges begins today, CNN Money (July 1, 2015, 2:34 PM), [].

[16] Webley, supra note 6.

[17] See id.

[18] See Julia Glum, For-Profit Colleges’ 90/10 Loophole Latest Target For Democrats With Military And Veterans Education Protection Act, Int’l Bus. Times (June 24, 2015, 3:07 PM), [].

[19] See Ellis, supra note 11.

[20] See Grasgreen, supra note 10.

[21] See id.

[22] See CFPB Sues For-Profit College Chain ITT for Predatory Lending, Consumer Fin. Protection Bureau (Feb. 26, 2014), [].

[23] See Alan Pyke, $480 Million in For-Profit College Debts Are Actually Worth Less Than $8 Million, ThinkProgress (Feb. 4, 2015, 11:10 AM), [].

[24] See Paul Fain, FTC Joins For-Profit Fight, Inside Higher Ed (Nov. 14, 2013), [].

[25] See John Lauerman, Regulators Investigate For-Profit College Chain Apollo for ‘Deceptive’ Marketing, Bloomberg Bus. (July 29, 2015, 10:07 AM), [].

[26] Fox, supra note 15.

[27] Id.

[28] Grasgreen, supra note 10.

[29] See Alec Covington & Jodie Herrmann Lawson, CFPB Pursues Recovery Against For-Profit College Corinthian and Relief for Its Students, Subject to Inquiry (June 5, 2015), [].

[30] See Fain, supra note 24.

[31] See Grasgreen, supra note 10.

Faithfully Executed? The Legal and Rational Imperative of Declining to Seek the Federal Death Penalty in Abolitionist States

Faithfully Executed? The Legal and Rational Imperative of Declining to Seek the Federal Death Penalty in Abolitionist States

by Francesca Procaccini, JD ’15

I. Introduction

Prosecutorial discretion bestows both a power and a duty—it confers control, and demands restraint. In the federal system, this discretion derives from the prosecutor’s role as an Executive officer, charged with the responsibility and the authority to faithfully execute the law. The power element permits the prosecutor to make choices about when, where, and how to execute the law, while the duty element confines that range of choice to rational, legal, and ethical options. In the context of capital punishment, the choice to impose the death penalty for a federal capital offense must be constrained by the relative value and efficacy of seeking the death penalty, as well as the degree to which that choice comports with the purposes of criminal prosecution and the fundamental rights of the accused. In other words, the prosecutor may execute, but only in faithful conformity with law and reason.

This Article argues that the choice to seek the death penalty for federal crimes prosecuted in states that have abolished capital punishment does not accord with either law or reason. First, it is an inefficient and ineffective strategy that imposes unnecessary burdens and costs on the criminal justice system without achieving any unique law-enforcement benefits. Second, the federal death penalty, as currently authorized and applied, is constitutionally problematic, which imposes a special duty on the Justice Department to curtail its use whenever it has rational and legitimate reasons to do so. The Department of Justice should, therefore, adopt a policy against seeking the death penalty when prosecuting capital cases[1] in abolitionist[2] states.

II. The Federal Death Penalty

This country’s very first law establishing federal crimes and their punishments authorized the use of capital punishment,[3] immediately launching the federal government on a long, controversial, and sometimes tortuous path to the execution of 343 federal defendants.[4] Although public and political opposition to the federal death penalty existed from the beginning, it was not until the mid-twentieth century that the Supreme Court established precedents casting doubt on its constitutionality, including a novel interpretation that the Eighth Amendment’s prohibition on cruel and unusual punishment is measured against an “evolving standard of decency that marks the progress of a maturing society.”[5] Throughout the 1960s, lawyers for the abolitionist cause argued that the United States had progressed to a point where the national “standard of decency” no longer tolerates capital punishment,[6] and that allowing jurors unfettered discretion to impose a death sentence violates due process.[7]

In the 1972 landmark case of Furman v. Georgia, the Supreme Court held that granting jurors unlimited discretion results in arbitrary capital sentences, in violation of the Eighth Amendment.[8] The Court did not declare the death penalty per se unconstitutional, but established its constitutional contours by declaring the death penalty “cruel and unusual” whenever the punishment is disproportionately severe, inflicted arbitrarily, offensive to society’s sense of justice, or not more effective than a less severe penalty.[9] With its decision, the Court effectively invalidated all forty death penalty statutes in the United States, including the federal death penalty.

Furman’s holding left open the possibility for states to rewrite their death penalty statutes to eliminate arbitrariness in capital sentencing; and within the next three years alone, twenty-seven states did just that.[10] The revised death penalty statutes generally required judges and juries to follow established capital sentencing guidelines that accounted for aggravating and mitigating factors. The Supreme Court upheld guided-discretion death penalty statutes in the 1976 case of Gregg v. Georgia, thereby reestablishing a constitutional method for administering capital punishment.[11] The sweeping trend to restore the death penalty—which reached an all-time high of thirty-five states—tapered around 1980, and there was little change in the number of abolitionist and retentionist states for the next twenty years.[12] Since the turn of the century, however, support for the death penalty has markedly and rapidly declined. At this point, a total of thirty-three states have abolished or practically abandoned capital punishment.[13]

It was precisely during the post-1980 lull in the movement to restore capital punishment at the state level, caused in part by the political failure of certain states to pass the necessary legislation, that Congress voted to resurrect the federal death penalty. The Anti-Drug Abuse Act of 1988 made murders committed in the course of a drug enterprise a capital offense, terminating a sixteen-year moratorium on the federal death penalty.[14] In 1994, Congress passed the Federal Death Penalty Act, which expanded the number of capital crimes to sixty, including three that do not involve murder.[15] Finally, in the wake of the Oklahoma City bombing, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which attempted to streamline and quicken death penalty appeals and petitions for habeas relief.[16] Among other restrictions, AEDPA constrains post-conviction federal court review of death sentences by establishing tighter deadlines, minimizing opportunities for evidentiary hearings, and permitting the filing of only one habeas corpus petition.[17] All federal death penalty cases are subject to AEDPA, raising the concern that the current review process denies defendants adequate opportunity to prove innocence or show their conviction was constitutionally defective.[18]

A. The Numbers

Since the reinstatement of the federal death penalty in 1988, the Department of Justice has initiated capital prosecutions against 498 defendants.[19] One hundred of these cases arose in non-death penalty states.[20] Juries have been called upon to decide whether to impose the death penalty in 232 of these cases, and have sentenced 78 defendants to death.[21] After only 3 executions and 13 reversed or withdrawn sentences, 62 defendants remain on federal death row.[22] Federal prosecutors have won about ten percent of the death verdicts they have sought in abolitionist states, and more than half of those sentences were overturned at some point on appeal.[23] Today, seven defendants tried and sentenced in non-death penalty states reside on federal death row and await execution.[24]

B. The Department of Justice Federal Death Penalty Protocol

The passage of the Federal Death Penalty Act of 1994 prompted Attorney General Janet Reno to promulgate the Department of Justice Death Penalty Guidelines and Procedures (“the protocol”), establishing a uniform process and set of criteria for determining when the federal government will seek the death penalty.[25] The protocol directs U.S. Attorneys to submit all death penalty-eligible cases to a Capital Review Committee in Washington D.C. with a recommendation for or against seeking the death penalty; the committee reviews the case and makes a determination for the Attorney General’s final approval.[26]

The protocol requires the committee to make an individualized assessment of the facts and law applicable to each case and to assess how substantial the federal interest in the prosecution is, especially as compared to the interests of state or local authorities.[27] The degree of federal interest in a case depends largely on two measures. The first concerns whether the underlying crime substantively implicates national law enforcement prerogatives, such as national security, interstate criminal conduct, the integrity of the federal justice system, or the security of federal property.[28] The second measure is whether a federal trial will advance the core purposes of federal prosecution: effective punishment, protection of the American public, specific and general deterrence, and rehabilitation,[29] while ensuring the rights of individuals are scrupulously upheld.[30] Once a sufficient federal interest is established, the standards governing the determination of whether to seek the death penalty are “fairness, national consistency, adherence to statutory requirements, and law-enforcement objectives.”[31]

The protocol has undergone very few substantive changes since it was first promulgated. One notable revision during the George W. Bush Administration instructed all U.S. Attorneys to consider the inability or unwillingness of the State to seek the death penalty as a factor militating in favor of federal capital charges.[32] The change resulted in more federal death penalty prosecutions in abolitionist states, and a higher frequency of capital cases ordered over the objection of local Assistant United States Attorneys (AUSAs). The Obama Administration changed course by deleting this instruction and by adding the direction to consider a defendant’s “willingness to plead guilty and accept a life or near-life sentence.”[34]

These guidelines should be applied in light of DOJ’s institutional mission to “promote the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the Federal criminal laws.”[35] The purpose of implementing policies to regulate prosecutorial decision-making is not simply to achieve organizational effectiveness, but also to inspire “confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.”[36] Without a reasoned and fair policy regulating the use of capital punishment, the prosecution of the most serious offenses will be neither effective nor legitimate.

III. Imposing the Federal Death Penalty in Non-Death Penalty States is Contrary to the Duties and Priorities of the Justice Department.

The decision to seek the death penalty in a federal case prosecuted in a state that has abolished capital punishment is not a fair or cogent decision, nor is it consistent with the Justice Department’s own stated objectives and criteria for pursuing capital prosecutions. Part A of this section shows how the federal death penalty belies the Department of Justice’s fundamental interest in advancing the core purposes of federal prosecution by sacrificing law-enforcement objectives and the reasoned exercise of prosecutorial authority without achieving any more effective punishment or greater protection of the public than a life sentence would accomplish. The federal death penalty hinders democratic governance and accountability and is administered inconsistently across the country. Part B explains how the decision to seek the death penalty, especially in non-death penalty states, perpetuates a system of punishment that tarnishes the constitutional rights of defendants. It has become clear that the death penalty creates an unacceptable risk of executing innocent people and results in intolerable levels of racial discrimination, both of which dangerously confound the government’s duty to ensure public confidence in the criminal justice system.

A. Seeking the Federal Death Penalty in Abolitionist States is Neither Smart nor Effective Prosecution.

Prosecutors face uniquely burdensome obstacles when trying a capital case in a non-death penalty state. The time, effort, and resources needed to secure a final capital sentence are inordinate, imposing great costs on the Department of Justice and on the public. Moreover, the challenges and expenses of seeking the death penalty do not yield any net law-enforcement advantage or substantially advance a federal interest. Current policy is therefore antithetical to the Department of Justice’s commitment to smart, effective, and just law enforcement.

1. It is Unduly Burdensome to Secure a Capital Conviction in an Abolitionist State.

Prosecuting a capital case in a non-death penalty state presents distinctive challenges due to the higher degree of opposition to the case from key actors and institutions.

Local Support. Prosecutors rely heavily on local law enforcement officers and witnesses to establish their case and present it successfully to a jury. Yet it has been state and local officials from non-death penalty states and territories who have complained most about decisions to seek the federal death penalty in their jurisdictions. For example, the governor of Puerto Rico openly protested the decision to try a capital case in his territory, even filing an amicus brief on behalf of the Puerto Rican government in support of the defendants, all while local officials and the public angrily resisted offering the federal government any support to prosecute the case.[37] A similar issue arose in Massachusetts when federal prosecutors sought cooperation from local law enforcement during the ongoing appeal of Gary Sampson’s death sentence. A spokesperson for the Suffolk County District Attorney stated: “For many of our citizens here in Boston, the death penalty is unacceptable. For us to cooperate with a federal investigation that could potentially lead to the execution of the perpetrators could have a chilling effect on the cooperation of the community.”[38]

The Judge. The presiding judge may influence and disrupt a capital trial even more than the non-cooperation of local law enforcement and witnesses. The judge will set the trial schedule, determine how many defense motions to hear and to grant, adjudge evidentiary questions, impose procedural safeguards, and review the weight of the evidence throughout the trial with the power to dismiss charges. Some federal judges sitting in non-death penalty districts have used their position to severely inhibit or at least discourage prosecutors from seeking the death penalty. Judge José Fusté in Puerto Rico declined to continue a trial against three defendants accused of a drug-related homicide when the government submitted its notice of intent to seek the death penalty, notwithstanding a proper showing of aggravating factors.[39] Some judges exert more informal pressure, including issuing harsh and embarrassing criticisms of the decision to seek the death penalty. While presiding over the capital trial of “the last Don” Joseph Massino when Attorney General John Ashcroft resigned, Judge Nicholas Garaufis halted proceedings and ordered the government “to resubmit the matter to the new Attorney General for his consideration.”[40]

The Prosecutor. Most important to the smooth operation of any federal trial is the ability and resolve of the AUSA to vigorously prosecute the case. There are several reasons why AUSAs in non-death penalty states often refuse or are deeply opposed to working on a capital case, besides possibly sharing their community’s prevailing stance on the issue. Professionally, the AUSA may fear ostracization or believe that violating a community norm may damage his or her career. These cases attract high levels of attention, yet enjoy a very poor track record of success. For example, federal prosecutors in New York failed 14 consecutive times to win a death sentence before securing the first one in over 50 years in 2007.[41] The low success rate of death penalty cases is one reason why many AUSAs are reluctant to try them: “One thing about U.S. attorneys is that they don’t like to lose . . . [and] if you’re going to ask the kind of case a U.S. attorney would least like to lose, it would be an expensive, long and high-visibility trial.”[42] AUSAs are also reasonably confident that they know their case and the wisdom of seeking the death penalty better than attorneys in Washington. No prosecutor aspires to partake in a prosecution strategy they view as jeopardizing their ability to perform their job effectively or as contrary to the interests of justice.[43]

The choice by AUSAs to oppose or refuse to work on capital cases in non-death penalty states can create serious problems, including a shortage of capable AUSAs to prosecute a case. In the Boston U.S. Attorney’s Office, for example, over half of the AUSAs refused to work on the Boston Marathon Bombing case, including the chief of the Criminal Division and the chief of the Anti-Terrorism and National Security Unit.[44] Reluctance to seek the death penalty also contributed to the publicly controversial purge of U.S. Attorneys under Attorney General Ashcroft.[45] Reportedly, several of the deposed U.S. Attorneys were not meeting the Administration’s expectations for recommending the death penalty.[46] One fired U.S. Attorney, Paul Charlton of Arizona, testified before the Senate Judiciary Committee that he was dismissed for objecting to the Attorney General’s insistence that he seek the death penalty in a murder case based solely on circumstantial evidence.[47] The controversy caused the DOJ to implement a rule forbidding prosecutors from making public complaints about internal disputes over seeking the death penalty.[48]

Ultimately, the Department of Justice depends on its AUSAs to largely agree with the policies they must operate under. As death penalty scholar Rory Little has observed: “People don’t mind being told what they can’t do, but they really resent being told what they have to do. Lawyering is an art, and if your heart’s not in it, juries figure that out pretty quickly.”[49] And juries hold all the power in capital cases. Statistics confirm what common sense would suggest: “the death penalty is a much harder sell in New York or Minneapolis or Boston than in Houston or Dallas or Montgomery.”[50] Notwithstanding the goal of imposing the death penalty uniformly, most federal death sentences are still handed down in retentionist states.[51]

A counterargument offered against the proposal to instate a blanket ban on seeking the death penalty in abolitionist states is that the option of bringing capital charges helps prosecutors secure cooperation agreements and plea deals for life-without-parole sentences. Removing the death penalty from the equation does not jeopardize either of these functions, however. The best data indicates that a prosecutor’s probability of securing a plea for a life sentence has no correlation to the availability of the death penalty.[52] In fact, many abolitionist states boast some of the highest percentages of life-without-parole prisoners.[53] There is good reason to believe that federal prosecutors do not use the death penalty as a plea bargaining tool anyway, as the DOJ Death Penalty Guidelines and Procedures explicitly prohibits such conduct. While a defendant’s willingness to plead guilty is a factor the Department of Justice considers in determining whether to pursue a capital case, the protocol remains clear that “[t]he death penalty may not be sought, and no attorney for the Government may threaten to seek it, solely for the purpose of obtaining a more desirable negotiating position.”[54] Prosecutors are also well aware that leveraging the death penalty to secure a life sentence presents constitutional issues[55] and serious ethical dilemmas regarding the adequacy of defense counsel’s representation and the heightened risk of wrongful convictions and false confessions.[56]

As for securing cooperation agreements from defendants facing capital charges, prosecutors agree that the key to good cooperation is timeliness.[57] Yet “absent the authorization of the Attorney General, the [AUSA] may not enter into a binding plea agreement that precludes the United States from seeking the death penalty.”[58] Such authorization, sought by submitting the case to the DOJ Capital Review Committee, takes time, and no defense counsel would advise cooperating before knowing whether the government plans to seek the death penalty.[59] Additionally, the current ability of the Attorney General to change course and pursue the death penalty after a cooperation agreement has been signed fosters a level of uncertainty that encourages defendants not to cooperate at any point, for fear the government will initiate a capital case against them after they have already provided their full use.[60] A blanket policy against seeking the death penalty would encourage cooperation by assuring defendants that they need not “save” their cooperation to later stave off a capital trial.

The State. Imposing the death penalty in abolitionist states may also present the more practical problem that these states are unable or unwilling to perform an execution. For example, then-Governor Mitt Romney denied the federal government consent to execute Gary Sampson in Massachusetts after a Massachusetts jury sentenced Sampson to death. Romney cited both the state’s technical inability and moral unwillingness to participate in the execution. The Governor of New Hampshire agreed to allow the execution to occur in his state, where one of Sampson’s carjacking murders had taken place; however, the state was wholly unprepared to carry this burden. Although New Hampshire allows the death penalty, and so performing the execution there did not present the same moral dilemma as in Massachusetts, like many retentionist states New Hampshire has not actually executed anyone in decades. The state has no lethal injection chamber and the gallows New Hampshire may legally use to hang convicted persons when lethal injection is unavailable were dismantled in 1992. State officials are also often unwilling to participate in the execution process: state-employed doctors refuse to administer the drugs[62] and, even in retentionist states, corrections officers who work on death row are increasingly resigning due to work-related trauma and depression.[63]

Unlike New Hampshire, most retentionist states only permit lethal injection as the method of execution, which has also caused significant problems in states’ ability to carry out the death penalty. First, a series of botched executions raised significant concerns about the constitutionality of lethal injection, prompting judges and state lawmakers in fifteen states to indefinitely suspend the death penalty until a more reliable lethal injection protocol could be established.[64] Although the Supreme Court affirmed that the use of midazolam to sedate the condemned is constitutional,[65] notwithstanding the risk that the drug may not induce unconsciousness, states continue to review their lethal injection protocols to ensure the condemned is fully insensate to pain at the time the lethal drug is injected.[66] Second, the drugs used for lethal injections are becoming increasingly unavailable, as the countries in Europe that manufacture these drugs ban their exportation to the United States.[67] To continue executions despite this shortage, at least four states have procured lethal concoctions from compounding pharmacies, having promised to protect the anonymity of the pharmacies involved and the drugs produced.[68] This censorship is also attracting judicial scrutiny, however, and moratoriums on all executions have been ordered in four more states until the laws shielding the manufacturers of these drugs are more fully examined.[69]

The Victims. Finally, death penalty litigation exerts an awful toll on victims and their families. Many victims in non-death penalty states do not support seeking the death penalty from the beginning, and many more become tremendously frustrated and resentful of the process as it drags on.[70] The post-conviction relief process is exceedingly long and arduous, often lasting over a decade, and many times it never results in the actual execution of the perpetrator.[71] This wait wears on victims, exacerbating divisions within victims’ families over the death penalty and compounding the difficulty of healing from the loss of a loved one.[72]

2. Capital Cases Require Outsized Expenditure of Costs and Resources.

The average cost of a federal capital trial is $620,932—about eight times the average cost of a federal murder trial in which prosecutors decline to seek the death penalty.[73] For this disparity in cost, however, prosecutors nationwide have won a death sentence in only about one-quarter of federal death penalty cases[74]—and in only about one-tenth of capital cases in abolitionist states. The bulk of this enormous cost is spent providing the defendant an adequate defense. Reducing the cost of a death penalty trial by decreasing defense costs is not a solution, however, as defendants who receive the least amount of attorney services are more than twice as likely to be sentenced to death.[75]

The cost of a capital trial is not only measured in money and resources, but is also reflected in cases not brought and crime-prevention initiatives not funded.[76] Mary Jo White, U.S. Attorney for the Southern District of New York from 1993–2002, reported that her office prosecuted up to ten death-eligible racketeering cases a year as non-capital cases. Had she sought the death penalty, her office would only have had the resources to bring one or two such cases a year.[77] The other major cost of death penalty litigation is the foregone “time, money, and energy spent trying to secure the death [penalty, which] would have been better spent improving this country’s mental-health and educational institutions, which may help prevent crimes such as the ones presented [in capital cases].”[78]

The first person to receive the death penalty since the reinstatement of federal capital punishment was sentenced in 1993 and remains on death row today.[79] Nearly half of all federal death row inmates have spent over a decade awaiting execution, with seventy percent having been sentenced seven or more years ago.[80] The cost of confining and providing for these defendants is borne entirely by taxpayers.[81] The average length of time spent on federal death row—and thus the cost of confinement—is only likely to increase as the DOJ continues to direct prosecutors to seek the death penalty while simultaneously enforcing a moratorium on all federal executions due to concerns about lethal injection.[82]

3. The Death Penalty Does Not Achieve Deterrence, Incapacitation, Rehabilitation or Retribution Beyond What a Life Sentence Accomplishes.

 The death penalty is an exceptional criminal punishment not only because death is different,[83] but because it either flouts or fails to achieve the core purposes of criminal punishment: rehabilitation, incapacitation, retribution, and deterrence.[84] By its very nature, the death penalty is “unique in its rejection of rehabilitation . . . unique . . . in its absolute renunciation of all that is embodied in our concept of humanity.”[85] And while at first it may appear that death is the epitome of incapacitation, in truth death incapacitates a dangerous person from harming the public no more effectively than a life sentence in a maximum-security prison.[86]

In one view, death is the strongest form of retribution available to revenge the most odious offenses; however, the extreme delays, costs, and uncertainties attending the actual execution of one sentenced to death dampen this assertion.[87] Indeed, there is little certainty that any inmate currently on federal death row will actually face execution, as only three out of seventy-eight condemned prisoners have been executed since the reinstatement of the federal death penalty in 1988.[88] Arguably, a death sentence inflicts extra psychological and emotional stress on a prisoner, above what a life sentence would cause, and the incarceration conditions on death row are often worse than those imposed on prisoners serving life sentences. However, the sad reality is that most prisoners incarcerated in super-max prisons suffer the exact same conditions as death row inmates, enduring dehumanizing existences rife with deprivation, humiliation, and alienation.[89] In these conditions, any additional suffering that a death sentence might inflict is likely negligible—that is, if the prospect of death doesn’t actually provide a sense of relief by affording the hope of ending a degraded existence.[90]

Finally, many believe incorrectly that the extreme nature of death makes for an extremely effective deterrent against the worst crimes.[91] FBI data shows, however, that every state without capital punishment in 2008 had a homicide rate at or below the national average.[92] Additionally, eighty-eight percent of expert criminologists now conclude that the death penalty does not act as a deterrent to homicide.[93] Three-quarters of these same experts also agree that, “debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems.”[94] This statement rings especially true in light of the success the federal government has had in developing far more accurate and effective tools to combat drug and gang-related crime in the last five years,[95] which comprise the majority of death-eligible federal offenses and result in a significant percentage of federal death sentences.[96]

4. The Federal Death Penalty Has Not Served a Sufficiently Federal Interest in Non-Death Penalty States.

The Department of Justice routinely measures the degree of its federal interest in preventing a certain type of crime when allocating prosecutorial resources. A state’s law-enforcement priorities factor into this analysis, as does a state’s disagreement with the federal government over whether certain conduct constitutes a crime. For example, the Justice Department has determined that it is often imprudent to enforce the federal drug laws prohibiting the use and sale of marijuana in states that have legalized the practice. The analysis that led to this policy decision involved the recognition that the local and innocuous use of marijuana does not implicate a distinctly federal interest and that enforcing the federal marijuana laws would not substantially advance any federal law enforcement priorities.[97] The DOJ should apply the same policy-making reasoning to its stance on seeking the death penalty in abolitionist states. Such an analysis would inevitably lead to the conclusion that too often the underlying crime prosecuted as a federal death penalty case does not implicate a distinctly federal interest and that seeking the death penalty unnecessarily disrupts the balance between state and federal law enforcement. Accordingly, a policy refraining from allocating resources to capital prosecutions in non-death penalty states would be a sound rule, in line with federal interests and respectful of the traditional power of states to define and impose punishment for violent offenses. As Chief Justice Rehnquist recognized for a majority of the Supreme Court:

“The Constitution requires a distinction between what is truly national and what is truly local . . . . In recognizing this fact we preserve one of the few principles that has been consistent since the [Constitution] was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States . . . . Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”[98]

Current law permits almost every murder committed in the United States to be tried as a federal death penalty case.[99] An analysis of the 100 capital prosecutions pursued in non-death penalty states reveals that fewer than one-sixth of these cases actually involved crimes of a distinctly federal nature, such as terrorism or murders of federal officers, witnesses, informants, or inmates.[100] The vast majority of cases involved murders whose only distinguishing feature (apart from the ultra-gruesome and depraved nature of the crime) is a connection to drugs or interstate activity.[101] While the federal government certainly has an interest in preventing and punishing drug-related and interstate violence, the affected states have at least an equal stake in this interest. Finally, nearly one-eighth of these cases involved non-distinct homicides that only fell within the federal government’s jurisdiction because part of the crime fatefully occurred on federal land or involved the use of the postal service.[102]

This federalization of the death penalty concerns even some prominent proponents of capital punishment. Professor Robert Blecker of New York Law School, who espouses an unapologetic advocacy for the retributivist use of capital punishment, has objected that, “Federal criminal law is only supposed to apply in those rare instances where there is truly a national crime. The federal government is moving in with what are, to be generous, tenuous reasons. It’s the wrong government prosecuting.”[103] Because most federal capital offenses involve crimes that historically were competently prosecuted by the state, a prominent federal judge has argued that, “as a general rule, U.S. attorneys who choose to leave the prosecution and punishment of murderers to the states do not offend any legitimate federal interest.”[104]

Beyond not serving a substantial federal interest, the use of the federal death penalty is detrimental to the values of democratic governance and accountability. The origin of the modern federal death penalty actually has its roots in the usurpation of the state democratic process. After the Supreme Court’s decision in Gregg, the New York State Legislature voted to reinstate capital punishment. Governors Carey and Cuomo vetoed all such bills for sixteen consecutive years, however, with the state legislature unable to muster the necessary votes for an override.[105] Intolerant of the democratic deadlock, U.S. Senator Alfonse D’Amato of New York introduced legislation in Congress to make drug-related killings a federal capital offense, for the stated purpose of combatting drug violence within New York.[106] In effect, therefore, the federal death penalty was established to circumvent a state’s democratic judgment and prerogative for dealing with a quintessentially state problem.[107]

State prosecutors in New York later followed Senator D’Amato’s example. New York voters eventually approved the reinstatement of the death penalty by electing Governor Pataki, who prominently campaigned on the issue and signed the legislature’s bill upon entering office.[108] Support among voters and elected officials waned quickly, however, and when the New York Court of Appeals struck down a part of the law in 2004, the legislature voted against restoring the state’s death penalty.[109] It was at this point that the Staten Island District Attorney turned to the federal government for a workaround in an effort to still secure a death sentence against a man who was then undergoing a state capital prosecution for killing two NYPD officers.[110] The U.S. Attorney for the Eastern District of New York agreed to prosecute the case as a gang-related murder under the RICO statute, eventually securing a death sentence for the same crime in the same state that had just rejected that very outcome.[111]

This pattern repeats itself across non-death penalty states,[112] and it is antithetical to the core principles upon which our federalist system is built. The continuous insistence since the Founding era on local control of criminal law—an insistence that was a necessary predicate to the drafting and ratification of the Constitution—is steeped in the belief that a close proximity between the people and their representative lawmakers increases political accountability and the opportunity for self-governance.[113] Localizing the promulgation and enforcement of criminal justice bestows on each individual citizen a comparatively larger influence over the legal regime they must live under, abide by, and contribute to as jurors and taxpayers. That influence results in the criminal law better reflecting local priorities, norms, and values, thereby increasing the democratic legitimacy and responsibility for choices made about crime and punishment. When these decisions are made by a distant and proportionately less representative government, both political accountability and civic responsibility suffer. Now, local politicians and citizens alike are free of the burden of making consequential decisions about whether death is a moral, effective, and appropriate remedy to extract from those who commit the worst offenses. When it is possible for the people of Massachusetts to enjoy the moral satisfaction of having rejected the death penalty and have the retributivist satisfaction of sentencing Dzhokhar Tsarnaev to death for the Boston Marathon Bombings, then the people and the state abdicate the privileges and duties of a federalist system of government.

5. The National Application of the Federal Death Penalty Does Not Achieve Nationally Uniform Punishment.

The death penalty is so integrally shaped by local culture and custom that the federal government is not able to administer capital punishment consistently across the country. To begin, not all cases in places where it is legally possible to seek the death penalty are reviewed by the DOJ Capital Review Committee, either because local AUSAs do not view the case as falling under a death-eligible offense or because these cases are deferred for state prosecution.[115] Achieving true national uniformity, including the elimination of unconscious racial bias in the decision not to seek the death penalty, “is not possible so long as many exercises of prosecutorial discretion continue to go unreviewed.”[116] Moreover, the likelihood of convincing a jury to unanimously recommend a death sentence, as federal law requires,[117] will also vary widely across the country and depend significantly on whether a region’s “cultural milieu opposes capital punishment and has undergone no (or little) local implementation of the death penalty.”[118]

In addition to the futility of achieving true national uniformity, the virtue of attempting to apply the death penalty evenly is not necessarily worth the attendant risks and consequences. Some prosecutors in districts with strong opposition to the death penalty believe that their ability to win a guilty verdict in a capital case is jeopardized by the decision to seek the death penalty because jurors “know that one way to avoid sitting through gut-wrenching victim impact testimony and having to decide whether a defendant lives or dies is to acquit on the capital charge.”[119] Even if the jury convicts and returns a sentence of life without parole, the real costs of having tried the case as a capital prosecution—costs in time, money, resources, and cases forgone or understaffed—may outweigh the theoretical value of national consistency.[120]

B. The Federal Death Penalty Tarnishes the Rights of Defendants and Erodes the Integrity of the Criminal Justice System. 

The Department of Justice is committed to vigorously enforcing federal law while vehemently protecting the constitutional rights of the accused, thereby promoting public confidence in the criminal justice system. Although the Constitution contemplates the availability of the death penalty (through the Fifth Amendment), and the Supreme Court has repeatedly held that capital punishment itself is not unconstitutional,[121] emerging data suggests that the federal death penalty, as currently applied, impinges a defendant’s Fifth, Sixth, and Eighth Amendment rights. Two U.S. Supreme Court Justices seriously called the constitutionality of the death penalty into question just last Term,[122] and several district court judges have ruled that the Federal Death Penalty Act is unconstitutional based on studies purporting to show inherent fallibility and bias in the system. The fact that the federal death penalty is increasingly viewed as a constitutionally tenuous and deleterious punishment, which shakes public confidence in our justice system, militates in favor of the Justice Department finding rational and legitimate ways of curtailing its use.

1. Due Process of Law

The federal death penalty operates in tension with procedural and substantive due process by depriving a meaningful number of innocent people the opportunity to prove their innocence and by creating an intolerable risk of executing an innocent person. The Constitution mandates that no person shall be deprived of life without due process of law in order “to protect the individual from erroneous or mistaken punishment that the government would not have inflicted had it found the facts in a more reliable way.”[123] Accordingly, what process is due correlates with “the risk of an erroneous deprivation of [life] through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.”[124] Procedural rules that “[tend] to diminish the reliability of the [capital] sentencing determination” may, therefore, violate due process.[125] Yet current federal capital-sentencing procedures allow for substantial, outcome-determinative error. For example, federal law permits conviction based solely on circumstantial evidence,[126] on the uncorroborated testimony of an accomplice,[127] and on eyewitness testimony, which data and experience have shown is the single greatest cause of wrongful convictions in both capital and non-capital cases.[128] Not only are factual errors common, but appeals courts have detected reversible legal errors in nearly 7 out of every 10 capital convictions—an unusually high rate of error suggesting that death penalty trials are particularly fallible.[129] Disconcertingly, the rate of legal error is thought to be less than the probable rate of factual errors in capital convictions.[130] The problem may be further compounded by the degree to which prosecutorial misconduct infects capital cases; the exonerations of eleven death row inmates who were wrongfully convicted after prosecutors in their cases failed to turn over exculpatory evidence[131] gives credence in the death penalty context to the suggestion by one judge that there is an “epidemic of Brady violations abroad in the land.”[132] In total, 156 death row inmates from the state and federal systems have been exonerated of the capital crimes they were convicted of since the reinstatement of the death penalty.[133] These exonerations confirm that the procedural safeguards built into capital sentencing—including stringent standards of proof and numerous opportunities for appellate and habeas review—still produce a substantial risk of unreliable determinations of guilt and erroneous deprivations of life.[134] For this reason, even former-Attorney General Eric Holder strongly disagrees with the notion that the government has never executed an innocent person, leading him personally to oppose the death penalty.[135]

The stark fallibility of capital sentencing procedures also suggests that executions will deny a significant number of innocent defendants the necessary time to discover and present conclusive proof of their innocence. DNA exonerations alone prove three truths about capital punishment: first, traditional trial processes and appellate review do not prevent numerous innocent people from being convicted and sentenced to death; second, it is possible for new, conclusive evidence of innocence to emerge long after trial and appellate processes conclude; and third, new tools capable of illuminating wrongful convictions can and likely will be developed. Thus, while it is certain that proof of innocence often exists, it is impossible to know when that proof will become available. In fact, the best evidence indicates that convincing proof of innocence most often does not emerge until more than a decade after conviction.[136] Eliminating the opportunity to collect and present that proof through execution unduly burdens the right to procedural due process.

Criminal procedures that result in a high rate of wrongful capital convictions also risk the state-sponsored execution of innocent persons, which the Supreme Court has suggested may violate substantive due process[137] by contravening a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”[138] Under this analysis, the federal death penalty infringes substantive due process by creating a constitutionally intolerable risk of the government violating a meaningful number of innocent peoples’ fundamental right not to be executed.

2. Cruel and Unusual Punishment

The Supreme Court’s decision in Furman v. Georgia still supplies the governing standard for evaluating the constitutionality of the death penalty under the Eighth Amendment—criminal penalties and procedures that produce arbitrary punishments or offend society’s sense of justice, as measured against an “evolving [standard] of decency that marks the progress of a maturing society,” violate the prohibition against cruel and unusual punishment.[139] In response to a steady stream of evidence showing a breadth of error and racial bias in the capital punishment system, and in recognition of the nation’s growing rejection of the death penalty, the Supreme Court may soon declare the death penalty unconstitutional.[140]

Furman and its subsequent precedents establish that a death penalty system that carries “a substantial risk that [the punishment will be] inflicted in an arbitrary and capricious manner”[141] or “a significant probability that [the decision is] influenced by impermissible considerations” is constitutionally intolerable.[142] It is unnecessary under the Eighth Amendment to prove individual discrimination; a “pattern of arbitrary and capricious sentencing” within “the sentencing system as a whole” suffices to establish a constitutional violation.[143] Successive studies reveal that the federal death penalty is plagued by irrational and impermissible racial bias. A DOJ review of the federal death penalty as it was administered between 1995–2000 shows that 80% of the 682 defendants who faced capital charges were minorities, as were 74% of the 183 defendants who U.S. Attorneys recommended receive the death penalty.[144] More recent analyses confirm the overwhelming bias and arbitrariness in the system, including a finding that those who kill whites are over three times more likely to be sentenced to death than those who kill blacks and over four times more likely than those who kill Latinos.[145] The uneven application of the death penalty, where the ratio of those who are executed to those who are eligible for execution is 1:326, suggests “that the death penalty is still as arbitrary and unpredictable as being struck by lightning.”[146]

Moreover, over the past two decades not a single state has adopted the death penalty, while nine states have legally or effectively stopped the practice within the past seven years alone. This change shows that nearly a fourth of all states that reinstated the death penalty post-Gregg have now rejected it, bringing the number of states where capital punishment is outlawed to twenty-two.[147] Likely, state legislators and governors are responding in part to the dramatic decrease in popular support for the death penalty. For the first time in recent history, a national poll found that a majority of Americans (52%) prefer life without parole as punishment for convicted murderers, with just 42% preferring the death penalty.[148] Other polls confirm that support for the death penalty is at a historic low, having fallen over 20% since it peaked in 1994—the year Congress passed the Federal Death Penalty Act.[149] These statistics are only compounded by the widespread international condemnation of capital punishment in the United States, which a majority of the Supreme Court has deemed relevant to the determination of whether a punishment is cruel or unusual.[150]

One scholar has argued that the Eighth Amendment specifically prohibits the federal government from imposing the death penalty for crimes committed in non-death penalty states.[151] Reading the Bill of Rights from an originalist and Anti-Federalist perspective, Professor Mannheimer argues that the Eighth Amendment is not only a direct restraint on the federal government’s power over the people, but also a preservation of the states’ sphere of autonomy over the administration of criminal justice.[152] The imposition of a federal punishment that a state rejects, therefore, violates the structural protections embodied in the Eighth Amendment and constitutes cruel and unusual punishment.

3. Sixth Amendment Protections

Lastly, the federal death penalty flouts the fair-trial guarantees of the Sixth Amendment to confront and cross-examine adverse witnesses and have all elements of a criminal offense proven by admissible evidence.[153] The Federal Death Penalty Act requires imposition of the death penalty on a finding of mental culpability and statutory aggravating factors, which the Supreme Court has held are the functional equivalents of elements of a capital offense.[154] As such, a defendant is entitled to cross-examine adverse witnesses and require that all facts are proven by admissible evidence during capital sentencing. Yet the Federal Death Penalty Act permits imposition of the death penalty based on potentially unreliable and untested evidence “that is not subject to the Sixth Amendment’s guarantees of confrontation and cross-examination, nor to rules of evidentiary admissibility guaranteed by the Due Process Clause to fact-finding involving offense elements.”[155] This apparent relaxation of constitutional rights and standards “invites abuse, and significantly undermines the reliability of decisions to impose the death penalty.”[156]

IV. Conclusion

A fair administration of the laws has never entailed blind adherence to statutory directives, but consists of the rational and legitimate use of discretion to faithfully execute the law. That discretion is most appropriately used to ensure the effective and just enforcement of the criminal laws. As such, the faithful execution of the federal death penalty requires a revision of the Department of Justice’s current death penalty protocol to bar capital prosecutions in non-death penalty states.



[1] See generally 18 U.S.C. 1324 (murder related to the smuggling of aliens); 18 U.S.C. 32–34 (destruction of aircraft, motor vehicles, or related facilities resulting in death); 18 U.S.C. 36 (murder committed during a drug-related drive-by shooting); 18 U.S.C. 37 (murder committed at an airport serving international civil aviation); 18 U.S.C. 115(b)(3) [by cross-reference to 18 U.S.C. 1111] (retaliatory murder of a member of the immediate family of law enforcement officials); 18 U.S.C. 241, 242, 245, 247 (civil rights offenses resulting in death); 18 U.S.C. 351 [by cross-reference to 18 U.S.C. 1111] (murder of a member of Congress, an important executive official, or a Supreme Court Justice); 18 U.S.C. 794 (espionage); 18 U.S.C. 844(d), (f), (i) (death resulting from offenses involving transportation of explosives, destruction of government property, or destruction of property related to foreign or interstate commerce); 18 U.S.C. 924(i) (murder committed by the use of a firearm during a crime of violence or a drug-trafficking crime); 18 U.S.C. 930 [by cross-reference to 18 U.S.C. 1111] (murder committed in a federal government facility); 18 U.S.C. 1091 (genocide); 18 U.S.C. 1111 (first-degree murder); 18 U.S.C. 1114 [by cross-reference to 18 U.S.C. 1111] (murder of a federal judge or law enforcement official); 18 U.S.C. 1116 [by cross-reference to 18 U.S.C. 1111] (murder of a foreign official); 18 U.S.C. 1118 (murder by a federal prisoner); 18 U.S.C. 1119 [by cross-reference to 18 U.S.C. 1111] (murder of a U.S. national in a foreign country); 18 U.S.C. 1120 [by cross-reference to 18 U.S.C. 1111] (murder by an escaped federal prisoner already sentenced to life imprisonment); 18 U.S.C. 1121 (murder of a state or local law enforcement official or other person aiding in a federal investigation; murder of a state correctional officer); 18 U.S.C. 1201 (murder during a kidnapping); 18 U.S.C. 1203 (murder during a hostage taking); 18 U.S.C. 1503 [by cross-reference to 18 U.S.C. 1111] (murder of a court officer or juror); 18 U.S.C. 1512 [by cross-reference to 18 U.S.C. 1111] (murder with the intent of preventing testimony by a witness, victim, or informant); 18 U.S.C. 1513 [by cross-reference to 18 U.S.C. 1111] (retaliatory murder of a witness, victim, or informant); 18 U.S.C. 1716 (mailing of injurious articles with intent to kill or resulting in death); 18 U.S.C. 1751 [by cross-reference to 18 U.S.C. 1111] (assassination or kidnapping resulting in the death of the President or Vice President); 18 U.S.C. 1958 (murder for hire); 18 U.S.C. 1959 (murder involved in a racketeering offense); 18 U.S.C. 1992 (willful wrecking of a train resulting in death); 18 U.S.C. 2113 (bank-robbery-related murder or kidnapping); 18 U.S.C. 2119 (murder related to a carjacking); 18 U.S.C. 2245 (murder related to rape or child molestation); 18 U.S.C. 2251 (murder related to sexual exploitation of children); 18 U.S.C. 2280 (murder committed during an offense against maritime navigation); 18 U.S.C. 2281 (murder committed during an offense against a maritime fixed platform); 18 U.S.C. 2332 (terrorist murder of a U.S. national in another country); 18 U.S.C. 2332a (murder by the use of a weapon of mass destruction); 18 U.S.C. 2340 (murder involving torture); 18 U.S.C. 2381 (treason); 21 U.S.C. 848(e) (murder related to a continuing criminal enterprise or related murder of a federal, state, or local law enforcement officer); 49 U.S.C. 1410 (death resulting from aircraft hijacking).

[2] States that have abolished the death penalty are referred to as “abolitionist” states; states that retain the death penalty are referred to as “retentionist” states.

[3] See generally Crimes Act of 1790, ch. 9, 1 Stat. 112.

[4] See The Federal Death Penalty: An Overview, Death Penalty Focus (Feb. 2011), [].

[5] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[6] See generally Robert Bohm, DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States (1999).

[7] See generally McGautha v. California, 402 U.S. 183 (1971).

[8] 408 U.S. 238 (1972).

[9] Id. at 282.

[10] See State Death Penalty Laws, ProCon, [] (last updated Aug. 13, 2015).

[11] See generally Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976),  collectively referred to as Gregg v. Georgia or the Gregg decision.

[12] See State Death Penalty Laws, supra note 10.

[13] Michigan, Wisconsin, Maine, Minnesota, Hawaii, Alaska, Vermont, Iowa, West Virginia, North Dakota, Massachusetts, Rhode Island, New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland, and Nebraska have abolished the death penalty; Kansas, New Hampshire, Colorado, Wyoming, and Oregon have executed between zero and two people since 1976; Pennsylvania, Montana, Kentucky, Idaho, and South Dakota have executed three people since 1976; Arkansas, California, Nevada, and North Carolina have not carried out an execution in over eight years. Number of Executions by State and Region Since 1976, Death Penalty Information Center, [] (last updated Dec. 9, 2015).

[14] See Anti-Drug Abuse Act of 1988, 21 U.S.C. §§ 848(e), (g)–(r). Since its enactment, six people have been sentenced to death under the Anti-Drug Abuse Act, though none has been executed. Bohm, supra note 6.

[15] See generally 18 U.S.C. §§ 3591–3598.

[16] See generally 28 U.S.C. §§ 2241–2266.

[17] See 28 U.S.C. §§ 2255.

[18] See Bohm, supra note 6.

[19] Federal Death Penalty, Federal Death Penalty Resource Counsel (Sept. 22, 2015), [].

[20] Federal Capital Prosecutions Arising in Non-Death Penalty States, Federal Death Penalty Resource Counsel (June 23, 2015), [].

[21] Juries imposed 151 life sentences and 81 death sentences out of 232 possible death penalty verdicts—three defendants received a death sentence twice and three defendants received death verdicts, but new trials were granted and life sentences resulted. Between 1995 and 2000, federal juries chose life sentences over death sentences by a ratio of 5:4. Federal Death Penalty, supra note 19. In the first decade of the 21st century, that ratio increased to more than two life sentences for every death sentence. The Federal Death Penalty: An Overview, supra note 4.

[22] See List of Federal Death Row Prisoners, Death Penalty Information Center (June 26, 2015), [].

[23] Death penalty: States say no but feds say yes, SFGate (Apr. 24, 2013, 4:00 AM), [].

[24] Federal Death Row: State Where Crime was Committed, Death Penalty Information Center, [].

[25] See U.S. Attorney’s Manual  § 9-10.000 et seq, [].

[26] Capital Review Committee, U.S. Attorney’s Manual  § 9-10.130, [] (last updated Apr. 2011).

[27] See DOJ Memorandum Regarding Federal Prosecution Priorities (Aug. 12, 2013), [].

[28] See Substantial Federal Interest, U.S. Attorney’s Manual  § 9-10.110, [] (last updated Apr. 2014).

[29] See Selecting Charges—Charging Most Serious Offenses, U.S. Attorney’s Manual  § 9-27.300, []; Consideration to be Weighed in Determining Sentencing Recommendations, U.S. Attorney’s Manual  § 9-27.740 [].

[30] See Purpose, U.S. Attorney’s Manual  § 9-27.110, [].

[31] Standards for Determination, U.S. Attorney’s Manual  § 9-10.140, [] (last updated Apr. 2011).

[32] See Substantial Federal Interest, U.S. Attorney’s Manual  § 9-10.090(C) (June 25, 2007), [] (“Relevant to this analysis are the ability and willingness of the authorities in each jurisdiction . . . conditions, attitudes, relationships, and other circumstances that enhance the ability to prosecute effectively . . .”).

[33] Ashcroft overruled the recommendation of prosecutors not to seek the death penalty twelve times in his first year as Attorney General, and directed the government to seek the death penalty in half of all cases in which it was legal to do so. Attorney General Gonzales followed suit, ordering prosecutors to seek the death penalty over their objections twenty-one times in 2006 alone. See Margaret E. Ross, The Federal Death Penalty in Massachusetts, Massachusetts Citizens Against the Death Penalty Newsletter (Oct. 2002); Amy Goldstein, Fired Prosecutor Says Gonzales Pushed Death Penalty, Washington Post (June 28, 2007), [].

[34] See DOJ Memorandum Regarding 2011 Protocol Revisions (July 27, 2011), [].

[35] Preface, U.S. Attorney’s Manual  § 9-27.001, []; see also Holder Memorandum Announcing DOJ Protocol Revisions (Apr. 7, 2014), [] (“[The protocol] will ensure that decisions whether to seek capital punishment continue to be made in a deliberative, even-handed and consistent manner, with proper individualized consideration of the appropriate factors relevant to each case, and that the Department’s resources are appropriately focused on those cases that require the most attention and deliberation.”).

[36] Preface, U.S. Attorney’s Manual  § 9-27.001, supra note 35.

[37] See J.J. Gass, It’s Not About Federalism #10: The Death Penalty, Brennan Center for Justice at NYU School of Law (July 2013), [].

[38] Alan Greenblatt, Death From Washington, Governing (May 2007), [].

[39] United States v. Colon-Miranda, 985 F. Supp. 36, 39–40 (D.P.R. 1997).

[40] David Hechler, U.S. death penalty in wake of Ashcroft, Nat’l L.J. (Nov. 29, 2004), [].

[41] Greenblatt, supra note 38.

[42] Id. (quoting Franklin Zimring, Professor of Law, U.C. Berkeley School of Law).

[43] See generally John Gleeson, Supervising Federal Capital Punishment: Why The Attorney General Should Defer When U.S. Attorneys Recommend Against The Death Penalty, 89 Va. L. Rev. 1697 (2003).

[44] Interviews with two Assistant U.S. Attorneys in the Appeals Unit, U.S. Attorney’s Office for the District of Massachusetts, in Boston, Mass. (Dec. 5, 2014).

[45] See Greenblatt, supra note 38.

[46] See Stuart M. Gerson, Inside the Justice Department and the U.S. Attorneys Controversy, Washington Post (Mar. 14, 2007), [].

[47] Ari Shapiro, Fired U.S. Attorney Testifies on Death Penalty, NPR (June 27, 2007), [].

[48] See U.S. Attorney’s Manual  § 9-10.040 (June 25, 2007), [].

[49] Hechler, supra note 40.

[50] Greenblatt, supra note 38 (quoting Franklin Zimring, Professor of Law, U.C. Berkeley School of Law).

[51] See id.

[52] See Death Penalty Not Needed to Secure Plea Bargains, Death Penalty Focus, [].

[53] See id.

[54] Conditional Plea Agreements, U.S. Attorney’s Manual § 9-10.120, [] (last updated Apr. 2014).

[55] See generally United States v. Jackson, 390 U.S. 570 (1968) (holding that compelling defendants to waive their rights not to plead guilty and to a jury trial through threat of having the death penalty imposed is unconstitutional).

[56] See generally Michael L. Radelet et al., In Spite of Innocence: Erroneous Convictions in Capital Cases (1992) (compiling evidence that innocent defendants plead guilty to avoid death).

[57] See Hechler, supra note 40.

[58] Conditional Plea Agreements, U.S. Attorney’s Manual § 9-10.120, supra note 54.

[59] See Hechler, supra note 40.

[60] Gleeson, supra note 43, at 1727; see also Karen Branch-Brioso, Ashcroft Takes Active Stance on Death Penalty; Critics Say It Undermines Local Judgment, St. Louis Post-Dispatch, Feb. 7, 2003, at A1 (“With the cooperators, the obvious problems are that one, the local prosecutor signs these people up and once they’ve signed that deal, they’ve got real problems if the deal doesn’t go through because now they can’t go back to the street. . . . So what that means is, fewer people will take the risk of exploring the cooperation, because they know there’s a much greater risk now of it falling through.”)

[61] See The Social History of Crime and Punishment in America: An Encyclopedia 1216 (Wilbur R. Miller ed., 2012).

[62] See Bill Keller & Tim Golden, Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty, The Marshall Project (Nov. 17, 2014), [].

[63] See Alex Hannaford, Inmates Aren’t the Only Victims of the Prison-Industrial Complex, The Nation (Sept. 16, 2014), [].

[64] See Death Penalty in Flux, Death Penalty Information Center, [].

[65] See generally Glossip v. Gross, 135 S. Ct. 2726 (2015).

[66] See Death Penalty in Flux, supra note 64.

[67] See Matt Ford, Can Europe End the Death Penalty in America?, The Atlantic (Feb. 18, 2014), [].

[68] The Death Penalty in 2013: Year End Report, Death Penalty Information Center, [].

[69] Id.; see also Death Penalty in Flux, supra note 64.

[70] See Maura Kelly, Capital punishment: an offence against victims’ relatives, The Guardian (Apr. 7, 2011), [].

[71] See Greenblatt, supra note 38.

[72] See, e.g., Aundre Harron, Murder Victims’ Families Say Death Penalty Does More Harm than Good, Casetext (Aug. 31, 2015), []; State braces for Tsarnaev, Sampson death penalty trials, 7 News WHDH (Nov. 8, 2014), [].

[73] Jon B. Gould & Lisa Greenman, Report to the Committee on Defender Services, Judicial Conference of the United States, Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases, at 25 (Sept. 2010), www. [].

[74] Id. at 10.

[75] Id. at 44.

[76] See William Glaberson, Prosecutors Seek Fewer Executions, Signaling New Wariness, N.Y. Times (Sept. 21, 2003), [].

[77] Hechler, supra note 40.

[78] Nichols v. Heidle, 725 F.3d 516, 559 (6th Cir. 2013) (Martin, J., concurring).

[79] See List of Federal Death Row Prisoners, supra note 22.

[80] Id.

[81] See generally Richard Dieter, Death Penalty Information Center, Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis (Oct. 2009), [].

[82] See Keller & Golden, supra note 62.

[83] See, e.g., Ford v. Wainwright, 477 U.S. 399, 411 (1986); Harmelin v. Michigan, 501 U.S. 957, 994 (1991).

[84] See Ring v. Arizona, 536 U.S. 584, 614–15 (2002) (Breyer, J., concurring) (noting “the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to incapacitate offenders, or to rehabilitate criminals”).

[85] Furman, 408 U.S. at 306 (Stewart, J., concurring).

[86] See, e.g., Jonathan R. Sorensen & Rocky L. Pilgrim, An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. Crim. L. & Criminology 1251, 1256 (2000) (finding an average repeat murder rate of .002% among murderers whose death sentences were commuted).

[87] See Glossip v. Gross, 135 S. Ct. 2726, 2764–69 (2015) (Breyer, J., dissenting).

[88] List of Federal Death Row Prisoners, supra note 22.

[89] See, e.g., Helon Redmond, Supermax prisons: 21st century asylums, Al Jazeera (Aug. 5, 2011), []; Sal Rodriguez, FAQ, Solitary Watch, [].

[90] See Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J. Psychiatry 1450, 1453–54 (1983); ACLU, A Living Death: Life Without Parole for Nonviolent Offenses 8 (2013), [].

[91] See, e.g., Glossip, 135 S. Ct. at 2748–49 (Scalia, J., concurring).

[92] See Death Penalty Facts, Amnesty International (July 2011), [].

[93] Michael L. Radelet & Traci L. Lacock, Do Executions Lower Homicide Rates?: The Views of Leading Criminologists, 99 J. Crim. L. & Criminology 489, 501 (2009).

[94] Id. at 502.

[95] See, e.g., U.S. Department of Justice’s Violence Reduction Network, Bureau of Justice Assistance, U.S. Department of Justice, [].

[96] See Federal Capital Prosecutions with Current Death Sentences, Federal Death Penalty Resource Counsel (Oct. 2014), [].

[97]See Cole Memorandum on Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), [].

[98] United States v. Morrison, 529 U.S. 598, 599 (2000).

[99] See The Federal Death Penalty: An Overview, supra note 4.

[100] Federal Capital Prosecutions Arising in Non-Death Penalty States, supra note 20.

[101] Id.

[102] Id.

[103] Greenblatt, supra note 38.

[104] Gleeson, supra note 43, at 1722.

[105] See Greenblatt, supra note 38.

[106] Id.; see Anti-Drug Abuse Act of 1988, Pub.L. 100–690, 102 Stat. 4181.

[107] See Greenblatt, supra note 38.

[108] James Dao, Death Penalty in New York Reinstated After 18 Years; Pataki Sees Justice Served, N.Y. Times (Mar. 8, 1995), [].

[109] See Michael Powell, In N.Y., Lawmakers Vote Not to Reinstate Capital Punishment, Washington Post (Apr. 13, 2005), [].

[110] See Shaila K. Dewan, U.S. Indicts Man in Death of Detectives in Gun Buy, N.Y. Times (Nov. 23, 2004), [].

[111] Mosi Secret, Decade Later, Still Seeking a Rare New York Execution, N.Y. Times (July 11, 2013), [].

[112] See Federal Capital Prosecutions Arising in Non-Death Penalty States, supra note 20.

[113] See generally Michael J. Zydney Mannheimer, Self-Government, The Federal Death Penalty, and the Unusual Case of Michael Jacques, 36 Vt. L. Rev. 131 (2011–2012).

[114] See The Death Penalty in 2013, supra note 68 (reporting that three-fourths of all state and federal executions in 2013 occurred in three states and 82% took place in southern states).

[115] See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice’s Role, 26 Fordham Urb. L.J. 347, 354 (1999).

[116] Id.

[117] See 18 U.S.C. § 3593(d) (2006).

[118] Little, supra note 115, at 469.

[119] Gleeson, supra note 43, at 1719.

[120] See id. at 1720.

[121] See, e.g., Herrera v. Collins, 506 U.S. 390 (1993); Glossip v. Gross, 135 S. Ct. 2726 (2015).

[122] See Glossip, 135 S. Ct. at 2776–77 (Breyer, J., dissenting) (finding “it highly likely that the death penalty violates the Eighth Amendment.”).

[123] Ingraham v. Wright, 430 U.S. 651, 692 (1977).

[124] Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

[125] Beck v. Alabama, 447 U.S. 625, 638 (1980).

[126] United States v. Russell, 971 F.2d 1098, 1108–09 (4th Cir. 1992).

[127] United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993).

[128] See Jon O. Newman, Make Judges Certify Guilt In Capital Cases, Newsday, July 5, 2000, at A25.

[129] See James S. Liebman et al., A Broken System: Error Rates In Capital Cases, 1973–1995, Colum. L. Sch., June 12, 2000, at 32, []; see also Nancy J. King, Fred L. Cheesman & Brian J. Ostrom, Final Technical Report: Habeas Litigation in U.S. District Courts, National Center for State Courts, Aug. 21, 2007, at 51–52, [] (noting that the rate at which capital petitioners obtained habeas relief was thirty times higher than the rate for non-capital cases).

[130] See James S. Liebman et al., A Broken System, Part II: Why There Is So Much Error In Capital Cases, And What Can Be Done About It, Colum. L. Sch., Feb. 11, 2002, at 25, [].

[131] Innocence Cases, Death Penalty Information Center (Dec. 2014), [].

[132] United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013).

[133] Innocence: List of Those Freed From Death Row, Death Penalty Information Center (Oct. 12, 2015), [].

[134] See United States v. Quinones, 196 F. Supp. 2d 416, 417 (S.D.N.Y. 2002), rev’d, 313 F.3d 49 (2d Cir. 2002).

[135] Keller & Golden, supra note 62. Justices Breyer and Ginsburg argue that this lack of reliability is “cruel” in violation of the Eighth Amendment, rather than the Due Process Clause. Glossip v. Gross, 135 S. Ct. 2726, 2756–59 (2015) (Breyer, J., dissenting).

[136] Innocence: List of Those Freed From Death Row, supra note 133 (calculating the average number of years between being sentenced to death and exoneration to be 11.3 years).

[137] See Herrera v. Collins, 506 U.S. 390, 419 (1993) (O’Connor, J., concurring).

[138] Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[139] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[140] The Supreme Court reversed itself on the constitutionality of executing the mentally retarded in only 13 years (Penry v. Lynaugh, 492 U.S. 302 (1989) to Atkins v. Virginia, 536 U.S. 304 (2002)) and on executing juveniles in only 16 years (Sanford v. Kentucky, 492 U.S. 361 (1989) to Roper v. Simmons, 543 U.S. 551 (2005)).

[141] Gregg, 428 U.S. at 188.

[142] McCleskey v. Kemp, 481 U.S. 279, 322–23 (1987).

[143] Gregg, 428 U.S. at 200.

[144] Marc Lacey & Raymond Bonner, Reno Troubled by Death Penalty Statistics, N.Y. Times (Sept. 13, 2000), [].

[145] Glenn Pierce & Michael Radelet, Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, The Empirical Analysis, 46 Santa Clara L. Rev. 1, 22 ( 2005).

[146] Richard C. Dieter, Death Penalty Information Center, Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976 (July 2011),

[147] Nineteen states have legally abolished the death penalty and three states (OR, WA, and PA) have instituted moratoriums on its use. State Death Penalty Laws, supra note 10.

[148] Damla Ergun, New Low in Preference for the Death Penalty, ABC News (June 5, 2014), [].

[149] National Polls and Studies, Death Penalty Information Center (Nov. 2015),;CBS [].

[150] See Roper v. Simmons, 543 U.S. 551, 575–76 (2005) (“The laws of other countries and [] international authorities [are] instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.'”). The U.S. is fifth worldwide in the number of executions it carries out, behind China, Iran, Iraq, and Saudi Arabia, while just outnumbering Somalia. Death penalty 2013: Small number of countries trigger global spike in executions, Amnesty International (Mar. 26, 2014), [].

[151] See generally Michael J. Zydney Mannheimer, When the Federal Death Penalty Is “Cruel and Unusual”, 74 U. Cin. L. Rev. 819 (2006).

[152] See id.

[153] See Apprendi v. New Jersey, 530 U.S. 466, 466–67 (2000).

[154] See Ring v. Arizona, 536 U.S. 584, 614 (2002) (Breyer, J., concurring).

[155] United States v. Fell, 217 F. Supp. 2d 469, 489 (D. Vt. 2002), vacated, 360 F.3d 135 (2d Cir. 2004).

[156] Id. at 489–91.

The Apprentice(ship)

The Apprentice(ship) 

by Nino C. Monea, JD ’17


When the Great Recession hit, the economy was devastated. In early 2008, unemployment, previously hovering at around 5%, shot up to 10.0% by October 2009.[1] The number of job openings plummeted from 4.5 million in December 2007 to fewer than 2.5 million in July 2009.[2] Average consumer spending fell from $49,638 in 2007[3] to $48,109 in 2010.[4] The impacts were felt across a wide spectrum of industries, from manufacturing, to retail and finance, with construction taking the biggest hit of all.[5] Clearly, the damage was far reaching.

But few groups were as badly hit as the young. Young workers are those within the 16–24 age cohort, and they oftentimes face much tougher employment prospects than their older peers. Because they possess fewer skills and less experience, they are usually the first to go when hard times fall upon businesses. They also have a harder time getting their foot in the door in the first place. For these reasons, youth unemployment is higher than the national average, even years after the recession has ended.[6]

As of July 2015, while 5.3% of the workforce as a whole were unemployed,[7] 12.2% of young workers were.[8] In total, there are about three million young workers who are looking for work and cannot find it. Certain groups are hit even worse than the average. For young Hispanics, the unemployment rate is 12.7%, and for African American youth, it is an alarming high of 20.7%.[9] For those aged 16–19, the unemployment rate is 16.9%.[10] Although the economy continues to improve, job growth for young workers remains sluggish, particularly in certain communities.

There are a myriad of adverse effects of joblessness among young workers. Young, unemployed workers may become “scarred”, meaning they receive lower wages over the course of their career. [11] If they cannot find jobs, they may take positions below their qualifications, or accept lower wages. This scarring effect can have long term repercussions. A study from the U.K. found that workers who experienced unemployment before age 22 were making 12–15% less twenty years later than those who did not.[12]

There are also negative health effects. Those who experience unemployment are less happy, more stressed, and have a higher chance of heart attacks, hypertension, constant headaches, and even suicide.[13] Mental health suffers as well. Unemployed workers experience heightened rates of anxiety, loss of self-esteem, and depression. These effects are greater on younger workers than on older ones.[14]

Perhaps worst of all, the toll unemployment has on life expectancy. In the year immediately following a layoff, there is a 75% increase in the mortality rate of laid off workers. Over the years, this moderates to a 10–15% increase. This means that over the course of 25 years, life expectancy is shortened by 1–1.5 years for a person without a job. Once again, the impact is more profound among younger workers.[15] Unfortunately, it is also a vicious cycle, as the biggest predictor for a person’s future unemployment is past unemployment. A person who is out of a job before age 23 for only three months will, on average, experience longer spells of unemployment later in life.[16]

To try to forestall unemployment, many young people go to college with the hopes that a degree will ensure them a well-paying job. Sadly, for many, they also graduate with a mountain of debt. Two-thirds of college graduates bear student loan debt, with an average of more than $25,000. The total value of student loan debt now exceeds one trillion dollars.[17] However, if young people cannot get jobs, repaying these loans is a daunting challenge.

Though part of unemployment is cyclical, or due to fluctuations in the economy, much of the problem is structural, meaning that there is a mismatch between skills and jobs. More than half of employers had trouble finding qualified workers for technical positions.[18] Improving education can help bridge this gap, but education is a long-term solution. Improving early childhood programs would do little to help today’s jobless. They need something in the present.

Apprenticeships offer an attractive option. They are way to provide skills to young, inexperienced workers, which can help lead to higher earnings and employment. And there is already an agency that in charge of apprenticeships. The Department of Labor runs the Registered Apprenticeship program, first established in 1937 by the Fitzgerald Act, and works with states to administer the program.[19] Apprenticeships offer workers a salary while performing a remunerative job and receiving hands-on training with supplemental instruction and education. Eventually, the program leads to professional credentials.[20]

Current programs show a great deal of promise. A survey of ten states found that workers that participated in apprenticeships earned, on average, $6,000 more in the short term. Over the course of a career, benefits could range from $96,000 to $162,000. Those that completed the program saw an estimated career earnings increase of $240,000. The government cost of running the program is comparatively small, only about $700 per worker over the course of nine years, so there is a large net benefit for workers and taxpayers alike.[21] A separate study by the State of Washington found that over the course of a lifetime, earnings increased by more than $325,000, and total costs were only $22,000.[22]

Businesses that sponsored registered apprenticeships for the workers also reported favorably on the program. A survey of nearly 1,000 participating companies, consisting of firms in construction, utilities, and retail, found that 97% would recommend the program. They found it to include a wide array of benefits, including helping meet demand for skilled workers, raising productivity, and improving morale, safety, and retention. Costs of the program were not viewed to be a major problem.[23]

The success of the Registered Apprenticeship program sets it apart from other governmental efforts that failed to produce meaningful and broad based job growth. Hiring credits, which provide either tax incentives or subsidies to businesses that hire unemployed workers, have a spotty track record. While companies receive extra revenue, there is little evidence that the program improves job prospects for disadvantaged youths or raises incomes for low-income families.[24]

There are still significant areas for improvement in the Registered Apprenticeship program. Foremost among them, due to the fact that many apprentice jobs are in fields such as construction, the program consists of 90% men. As a result, benefits of participation are less pronounced for women. Their increase in short term earnings is only $2,000, less than half of men’s. Women in the program have voiced concerns about sexual harassment and the need for child care.[25] On the employer side, businesses have also had complaints. Employers in the Registered Apprenticeship program grumbled about the fact that it increased “poaching” from competitors, wanted a simpler registration process, and asked for more help finding and screening applicants.[26]

Problems notwithstanding, for young workers seeking an alternative to a four-year college degree, apprenticeships offer a path to stable, high paying careers. This could be a great program not only to boost youth employment, but offer a path to students whose career does not require a bachelor’s degree.

But for all of its benefits, the program is still relatively small. Total government spending is only a few hundred dollars per apprentice, on average, and less than $30 million to supervise and publicize the program. Many businesses do not even know about it. In 2011, 130,000 individuals nationwide became apprentices, and 55,000 graduated from a Registered Apprenticeship program.[27] These figures represent only 0.2% of the U.S. labor force.[28] Given that there are still 3.4 million unemployed youths,[29] to say nothing of all the older unemployed, the current size is far from adequate.

But how could it be expanded? Some methods for enlarging the program could be offering a tax credit to businesses that participate, supported by Senators Tim Scott (R-SC) and Cory Booker (D-NJ); increasing funding for the program, as President Obama has proposed in his 2015 budget; and offering wage subsidizes to incentivize students to sign up. Initiatives such as these are already in place in several states, and in some foreign countries.[30]

To make sure that young workers in particular benefit, high schools and community colleges should make a greater effort to connect employers with students. Currently, only 35% of sponsors got apprentices from high schools or post-secondary institutions, but they were cited as effective means of recruitment.[31] Increasing the role of schools in the program could help bring in more young workers.

Any effort to expand the program must also include diversifying it to reduce the heavy slant towards male-dominated industries and address the needs of female employees. For example, in 2013, the Department of Labor awarded a two million dollar grant to help train women in apprenticeships in high-skill occupations such as energy, IT, and transportation.[32] Bringing more women into the program would help highlight the issues of the gender pay gap, inadequate child care, and sexual harassment – and increase the impetus to solve them.

Democratic presidential candidate Senator Bernie Sanders (I-VT) has called for making public universities tuition free.[33] Former Secretary of State Hillary Clinton (D) has proposed increasing federal funding to make college more affordable.[34] Both of these ideas have their merits. They are an important piece of addressing youth unemployment and reducing the crushing burden of student loan debt.

But not everyone needs or desires a college degree. Apprenticeships offer a viable option for those seeking an alternative to a bachelor’s degree. The benefits far exceed the costs, and the program enjoys high levels of approval among both workers and employers. Although some policymakers are beginning to pay attention to this issue, it deserves a spot in the economic platform of any of the 2016 presidential hopefuls.


[1] Labor Force Statistics from the Current Population Survey, Bureau of Lab. Stats., []

[2] Mark deWolf & Katherine Klemmer, Job Openings, Hires, and Separations Fall During the Recession, Monthly Labor Rev. 36, 38 (May 2010), [].

[3] Consumer Expenditures in 2007, Bureau of Lab. Stats., (Apr. 2009), [].

[4] Consumer Expenditures in 2010: Lingering Effects of the Great Recession, Bureau of Lab. Stats. (2012), [].

[5] The Recession of 2007-2009, Bureau of Lab. Stats. (2012), [].

[6] See Labor Force Statistics from the Current Population Survey, Bureau of Lab. Stats. (2015), []; Employment and Unemployment Among Youth Summary, Bureau of Lab. Stats (2015), [].

[7] Labor Force Statistics from the Current Population Survey, Bureau of Lab. Stats., supra note 6.

[8] Employment and Unemployment Among Youth Summary, Bureau of Lab. Stats., supra note 6.

[9] Id.

[10] Unemployment Rate – 16-19 yrs., Bureau of Lab. Stats. (2015), [].

[11] See generally David Bell & David Blanchflower,Youth Unemployment in Europe and the United States (IZA, Discussion Paper No. 5673, 2011), [].

[12] Reed Karaim, Youth Unemployment, 6 CQ Researcher 110 (2012), [].

[13] Susi Fidan Frauenfelder, The Cost of British Youth Unemployment, at 32 (Spring 2012) (unpublished Bachelor Thesis, Aarhus University), [].

[14] Id.

[15] Daniel Sullivan & Till von Wacher, Job Displacement and Mortality: An Analysis using Administration Data 1 (Nat’l Bureau of Econ. Research, Working Paper No. 13626, 2009), []. The study did not examine workers in the 16–24 year old age cohort, but it did find that the younger the workers, the more profound the impact. Id.

[16] The jobless young: Left behind, The Economist (Sept. 10, 2011), [].

[17] Scott Gerber, 43 Troubling Facts about the Youth Unemployment Crisis, Business Insider (May 15, 2012, 1:51 PM), [].

[18] See Manpower Group, 2012 Talent Shortage Survey: Research Results 2 (2012), [].

[19] What is Registered Apprenticeship?, Dep’t of Lab., [] (last updated Nov. 21, 2014).

[21] See Debbie Reed et al., Mathematica Policy Research, An Effectiveness Assessment and Cost-Benefit Analysis of Registered Apprenticeship in 10 States, at xvi–xvii (2012), [].

[22] See Workforce Training & Educ. Coordinating Bd., 2014 Workforce Training Results 21 (2014), [].

[23] See Robert Lerman et al., The Urban Inst. Ctr. on Labor, Human Servs., & Population, The Benefits and Challenges of Registered Apprenticeship: The Sponsors’ Perspective, at ii, 16 (2009), [].

[24] See generally David Neumark, Spurring Job Creation in Response to Severe Recessions: Reconsidering Hiring Credits (Nat’l Bureau Econ. Research, Working Paper No. 16866, 2011), [].

[25] Reed et al., supra note 21.

[26] Lerman et al., supra note 23.

[27] What is Registered Apprenticeship?, supra note 19.

[28] Robert I. Lerman, Proposal 7: Expanding Apprenticeship Opportunities in the United States, The Hamilton Project, [].

[29] Employment and Unemployment Among Youth Summary, Bureau of Lab. Stats. (Aug. 18, 2015), [].

[30] Jobs for Youth, Org. for Econ. Cooperation & Dev. (2009), [].

[31] Lerman et al., supra note 23.

[32] Grants, Workforce Dev. Council, [].

[33] Brent Budowsky, Bernie Sanders’s great idea: Free public college education, The Hill (June 09, 2015, 5:00 pm), [].

[34] Hannah Franser-Chanpong, Hillary Clinton avoids email controversy, fleshes out college affordability plan, CBS News (Aug. 14, 2015), [].



Physician Self-Referral: Back on the Agenda or Out for Good?

Physician Self-Referral: Back on the Agenda or Out for Good?

by Amanda Bakowski JD ’17


I. Introduction

On June 25, 2015, the Supreme Court decided King v. Burwell, holding that the tax credits established by the Patient Protection and Affordable Care Act (“ACA”) are available to individuals purchasing health insurance on exchanges created by the federal government.[1] Although the subsidies were saved, other portions of the ACA may still be in jeopardy. Some lawmakers have their eye on Section 6001, for example. Section 6001, titled “Limitation on Medicare Exception to the Prohibition on Certain Physician Referrals for Hospitals,” amended Section 1877 of the Social Security Act (commonly known as the “Stark Law”).[2] Enacted in 1989 and expanded throughout the 1990s, the Stark Law limits physician referrals for designated health services funded by Medicare: physicians are prohibited from referring patients to facilities with which they have a financial relationship if the needed health services are payable by Medicare.[3] Such financial relationships may take the form of an ownership interest, investment, or a structured compensation arrangement.[4] But several exceptions have allowed self-referral relationships to continue in limited circumstances, including when physician investment is in the whole hospital rather than a department (“whole hospital exception”) or when the services are furnished in a rural area (“rural provider exception”).[5]

Section 6001 of the ACA placed substantial new restrictions on the ability of physicians to refer Medicare patients to facilities in which they have a financial interest.[6] Under the Stark Law’s whole hospital exception, physicians were previously free to own hospitals and self-refer as long as the ownership interest was in the whole hospital rather than just a department.[7] 42 U.S.C. 1395nn, as amended by Section 6001, now prohibits physicians from filing self-referred Medicare claims if an ownership interest—regardless of the stake—was granted after December 31, 2010.[8] Those facilities with physician ownership as of December 31, 2010 were grandfathered in, thus allowing physicians to maintain the same ownership interest they had on March 23, 2010.[9] However, grandfathered hospitals that qualify for the whole hospital or rural provider exceptions are now prohibited from expanding their facility capacity—the number of operating rooms, procedure rooms, and beds for which the hospital was licensed as of March 23, 2010—unless an exception is granted by the Secretary of Health and Human Services.[10]

Many see these new restrictions as effectively eliminating opportunities for new physician-owned hospital arrangements, as most physician-owned facilities rely to some extent on self-referrals in their operation.[11] Additionally, the limitations on expansion have halted the growth of physician-owned hospitals and caused confusion for those under construction when the ACA was passed.[12] Physician-owned hospitals can still operate and expand some services within the confines of the law.[13] But these workarounds may not be enough.

In 2015, Representative Sam Johnson (R-TX) introduced two bills seeking to pull back these limitations on physician self-referral. H.R. 976 (the Patient Access to Higher Quality Health Care Act of 2015) would repeal the moratorium on self-referrals to physician-owned facilities completely, and H.R. 2513 (the Promoting Access, Competition, and Equity Act of 2015) would significantly loosen the restrictions imposed by Section 6001. At a hearing held by the Ways and Means Committee’s Health Subcommittee, “Improving Competition in Medicare: Removing Moratoria and Expanding Access,” H.R. 976 was presented as a proposal for improved competition by expanding access to physician-owned hospitals. Many Republican lawmakers supported easing restrictions on self-referral and agreed that the current restrictions reduce competition in health care.[14] The testimony provided by the American Hospital Association defiantly stated quite the opposite: “Physician self-referral represents the antithesis of competition.”[15]

Some physicians have grounded their opposition to the self-referral restriction in concerns related to both professional autonomy and the community benefits that they believe result when physicians invest in hospitals.[16] Yet many other medical groups have publicly supported self-referral restriction, including the American Clinical Laboratory Association, the American Physical Therapy Association, the American Society of Clinical Pathologists, the American Society for Medical Technology, and the Blue Cross and Blue Shield Association.[17]

While politicians and members of the medical community continue to discuss this issue, many questions remain unresolved. Are physician-owned facilities good for competition? Should regulations restrict physicians from having a financial investment in medical facilities at all? These very questions have provoked intense debate for several decades. In fact, physician self-referral has been referred to as “one of the most divisive issues confronting American medicine.”[18]

II. The Problem with Self-Referral

Lawmakers, scholars, and health care experts have identified several problems associated with physician self-referral arrangements. The primary concern over self-referral is that it leads to overutilization of services because physicians are incentivized to prescribe more, often unnecessary, services.[19] Studies have consistently shown that when self-referrals occur, the amount of services performed increases substantially.[20] Overutilization in self-referral is a natural temptation of the arrangement: the return on the investment depends on the number of patients that receive services at that facility, which is in part determined by the number of patients referred from the investing physician.[21] This setup may encourage the physician to increase not only the number of patients he or she refers but also the number of tests ordered for each patient. Overutilization becomes a public problem because of the reliance on third party payers, such as Medicare and Medicaid, and the way these programs are funded. For example, the Medicare Trust Funds are funded through payroll taxes and general revenue, including income taxes and Medicare premium taxes,[22] while Medicaid is jointly funded through the federal and state governments.[23] When overutilization occurs with Medicare and Medicaid patients, the costs incurred fall to the government and the taxpayers.

Numerous studies have documented the overutilization caused by self-referral practices. One of the most egregious cases of increased utilization occurs in self-referral for diagnostic imaging. A comprehensive report of Medicare expenditures for advanced imaging services found that from 2004 to 2010, the number of self-referred MRI services increased by more than eighty percent, while MRI services completed without self-referrals increased only twelve percent.[24] This report also showed that providers’ referrals of imaging services substantially increased the year after they started self-referring, and that this was not due to a general increase in the use of these imaging services among all providers.[25] Earlier reviews of the empirical literature found that sixty to ninety percent of nonhospital radiography and sonography services were self-referred.[26] This phenomenon is not limited to imaging services. One study found that “self-referring urologists billed Medicare for 72 percent more specimens per prostate biopsy than non-self-referring urologists, yet the cancer detection rate was 12 percent higher for men treated by urologists who did not self-refer.”[27] Studies have found that not only are self-referring providers ordering more care, but often unnecessary care. One such study found that in the California Workers Compensation System, thirty-eight percent of MRI scans ordered by self-referring physicians were deemed medically inappropriate compared to twenty-eight percent of those ordered by non-referring physicians.[28] Therefore, the financial incentives that motivate physicians to self-refer can lead to excessive testing and treatment that are costly to the patient and the government without necessarily providing any immediate additional health benefits.

Physician self-referral arrangements also present an ethical issue. Information asymmetry is a common phenomenon in health care: physicians know more than their patients, and patients must often rely on their physicians in decision-making.[29] Adding a financial incentive to self-refer patients in light of this asymmetry raises ethical questions. Some suggest that self-referral arrangements are unethical in that they incentivize physicians to not only overutilize services by taking advantage of the information asymmetry but also to cherry-pick patients.[30] The possibility that a patient may have benefitted more from receiving services at a different facility, but was referred to a physician-owned facility because it was financially beneficial for the referring physician, raises disturbing ethical questions.

Finally, physician self-referral arrangements may, as the American Hospital Association suggests, actually be bad for competition.[31] Self-referral arrangements can distort the market when physicians cherry-pick more profitable patients and rely on procedures with higher reimbursement, leaving other hospitals unable to subsidize the care needed by the community for less profitable services like infectious diseases and emergency room care.[32] Community hospitals “rely on cross-subsidies from the well-reimbursed services targeted by physician-owned hospitals to support . . . essential but under-reimbursed health services. Revenue lost to specialty hospitals can lead to staff cuts and reductions in subsidized services such as inpatient psychiatric care.”[33] Therefore, self-referral to physician-owned hospitals may have seriously negative competitive consequences for community hospitals and their patients.

III. The Case for Self-Referral 

Many lawmakers, scholars, and practitioners support physician-ownership and physician self-referral. As the legislation introduced by Representative Johnson indicates, the debate is not over. In light of recently released data, self-referral advocates have gained much needed support.

Some argue that physicians have sought to invest in medical facilities to supplement their decreasing income and that declining income itself has been a result of third-party payers’ emphasis on cost containment and prospective payment introduced during the 1980s.[34] Certainly physicians benefit by increasing their revenue through self-referral arrangements, which may be significant to general practitioners who typically make less than their specialist counterparts but are relied upon for referrals.[35] This point is especially relevant given that the demand for physicians is currently greater than the supply, and the Association of American Medical Colleges predicts that by 2025, demand for physicians will exceed supply by a range of 46,000 to 90,000.[36]

The potential benefits of physician ownership are not limited to physicians themselves. Physician investment can provide additional community benefits. Physicians are often the first to see what services or technologies are needed in their community, so they may be more willing to invest in those services.[37] Physicians are more familiar with health care goods and services than the average investor and therefore could be more likely to make “good” investments.[38] The facilities themselves may become more efficient through the procurement of medical technologies and devices by physicians with expertise in how to use them.[39] Finally, when physicians are able to refer to facilities that they have invested in and know well, the continuity of service for patients increases; the physician and specialists may work together and communicate more easily, making both practices more efficient.[40]

Interestingly, the very law that promised the demise of physician-owned hospitals also presented these hospitals with new opportunities for success. One program established by the ACA, the Hospital Value-based Purchasing Program, provides rewards (called “value-based incentive payments”) to hospitals that meet certain quality and performance standards.[41] In 2013, Kaiser Health News reported that “[o]f 161 physician-owned hospitals eligible to participate in the health law’s quality programs, 122 are getting extra money and 39 are losing funds. . . . That’s a stark contrast with other hospitals—74 percent of which are being penalized.”[42] Another portion of the law rewards hospitals with low readmission rates. Physician-owned hospitals again were successful in this arena, although some in the healthcare community highlighted that this may be an “unfair” result of cherry-picking healthier patients.[43] While the value-based rewards are often not substantial, they serve as evidence of the quality services these hospitals provide.[44]

Additionally, the 2015 Hospital Consumer Assessment of Healthcare Providers and Systems Survey indicated that sixty-seven percent of the participating physician-owned hospitals received a four- or five-star rating.[45] Physician-owned hospitals represented 84 of the 251 hospitals (33%) that received 5-star ratings even though they represent only 5 percent of U.S. hospitals.[46] The Physician Hospitals of America stated that this result was “not altogether unexpected given that hospitals with physician ownership comprised seven of the top ten and forty-three of the top 100 hospitals in the country in the Hospital Value-Based Purchasing Program.”[47] Many physician-owners view these results as affirming their beliefs that physician-owned hospitals are providing some of the best medical care in the country and should not be limited in their ability to expand.[48] 

IV. Conclusion

The studies and reports of physician self-referral highlight a familiar struggle present in the American health care system: cost versus quality. A balance of these considerations is admittedly difficult to achieve, but for many years, opponents of self-referral seemed to have the upper hand by relying on data that self-referring physicians used more (and often unnecessary) services. Now, supporters of self-referral are striking back with evidence of the strong quality of services physician-owned hospitals provide, with the help of legislators like Representative Johnson who frame the debate in terms of competition. In light of the strides in quality made by physician-owned hospitals, Congress should consider scaling back the harsh restrictions on expansion of physician-owned hospitals and funding studies to determine which elements of the physician-owned hospitals have led to the increase in quality.


[1] See King v. Burwell, 135 S. Ct. 2480, 2497 (2015).

[2] See Centers for Medicare & Medicaid Services, Physician Self Referral, (last updated Jan. 5, 2015, []).

[3] See id.

[4] See id.

[5] See 42 U.S.C. § 1395nn(a)(1) (2012).

[6] See id. § 1395nn(a)(1).

[7] See id. § 1395nn(d)(3).

[8] See id. § 1395nn(i)(1)(A).

[9] See id. § 1395nn(i)(1)(D).

[10] See id. § 1395nn(i)(1)(B).

[11] See, e.g., Mark T. Morrell & Alex T. Krouse, Accountability Partners: Legislated Collaboration for Health Reform, 11 Ind. Health L. Rev. 225, 281 (2014); Michael O. Leavitt, Study of Physician-Owned Specialty Hospitals Required in Section 507(c)(2) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Centers for Medicare & Medicaid Services ii (2005), [] (“The proportion of all Medicare cardiac cases in three cardiac specialty hospitals visited that were referred by physician-owners ranged from 61% to 82%. In the five orthopedic hospitals visited, physician-owners referred between 48% and 98% of the orthopedic cases, and in one surgery hospital, physician-owners referred 90% of the cases.”).

[12] See Joshua E. Perry, An Obituary for Physician-Owned Specialty Hospitals, 23 Health Law. 24, 28–29 (2010).

[13] See Victor L. Moldovan, The Future of Physician-Owned Hospitals, Bloomberg L. (Aug. 8, 2011), [] (“[Hospitals can] add new services, joint venture for non-hospital based services such as outpatient imaging, radiation therapy, chemotherapy, and dialysis. They can also use their existing physical structures to meet new business opportunities as long as they don’t increase the aggregate number of beds, operating rooms or procedure rooms.”).

[14] See Andrea L. Impicciche, John F. Williams III & Alyssa C. James, Health subcommittee holds hearing on physician-owned hospital expansion moratorium, Lexology (May 22, 2015), [].

[15] Improving Competition in Medicare: Removing Moratoria and Expanding Access: Hearing Before the Subcomm. On Health of the H. Comm. on Ways and Means, 114th Cong. (2015) (statement of Rich Umbdenstock, President and CEO, American Hospital Association).

[16] See id. (statement of Joe Minissale, President, Methodist McKinney Hospital).

[17] See John K. Iglehart, The Debate over Physician Ownership of Health Care Facilities, 321 New Eng. J. Med. 198, 203–204 (1989).

[18] Id. at 199.

[19] Paula Tironi, The “Stark” Reality: Is the Federal Physician Self-Referral Law Bad for the Health Care Industry?, 19 Annals of Health Law 235, 236 (2010).

[20] See, e.g., U.S. Gov’t Accountability Office, GAO-14-270, GAO Report: Medicare Physical Therapy (2014); U.S. Gov’t Accountability Office, GAO-12-966, GAO Report: Medicare (2012).

[21] See Theodore N. McDowell, Physician Self Referral Arrangements: Legitimate Business or Unethical ‘Entrepreneurialism, 15 Am. J.L. & Med. 61, 65 (1989).

[22] See How is Medicare Funded?,, (last visited Nov. 1, 2015) [].

[23] See Financing and Reimbursement,, (last visited Nov. 1, 2015) [].

[24] GAO-12-966, supra note 20.

[25] Id.

[26] See, e.g., Brian E. Kouri, R. Gregory Parsons & Hillel R. Alpert, Physician Self-Referral for Diagnostic Imaging: Review of the Empiric Literature, 179 Am. J. Roentgenology 843, 843 (2002).

[27] Jean M. Mitchell, Urologists’ Self-Referral For Pathology Of Biopsy Specimens Linked To Increased Use And Lower Prostate Cancer Detection, 31 Health Aff. 741, 741 (2012).

[28]See Alex Swedlow et al., Increased Costs and Rates of Use in the California Workers’ Compensation System as a Result of Self-referral by Physicians, 327 New Eng. J. Med. 1502, 1502–1506 (1992).

[29]See Gerald Bloom, Hilary Standing, and Robert Lloyd, Markets, information asymmetry and health care: Towards new social contracts, 55 Social Science and Med 2076, 2077 (2008).

[30] See Ways and Means Committee Holds Hearing on Competition in Medicare, Association of American Medical Colleges (May 22, 2015), [].

[31] See Improving Competition in Medicare, supra note 15 (statement of Rich Umbdenstock, President and CEO, American Hospital Association).

[32] See David Zientek, Physician Entrepreneurs, Self-Referral, and Conflicts of Interest: An Overview, 15 HEC F. 111, 125 (2003).

[33] See Improving Competition in Medicare, supra note 15 (statement of Rich Umbdenstock, President and CEO, American Hospital Association).

[34] See, e.g., Morgan R. Baumgartner, Physician Self-Referral and Joint Ventures Prohibitions: Necessary Shield Against Abusive Practices or Overregulation?, 19 J. Corp. L. 313, 319 (1993).

[35] Chris Conover, Are U.S. Doctors Paid Too Much?, (May 28, 2013),

[36] Physician Supply and Demand Through 2025: Key Findings, Ass’n Am. Med. Colleges (2015), [].

[37] See Zientek, supra note 32, at 121, 124; Steven D. Wales, The Stark Law: Boon or Boondoggle? An Analysis of the Prohibition on Physician Self-Referrals, 27 Law & Psychol. Rev. 1, 3 (2003).

[38] See Zientek, supra note 32, at 124.

[39] See McDowell, supra note 21, at 64.

[40] See Zientek, supra note 32, at 116.

[41] See Centers for Medicare & Medicaid Services, Hospital Value-Based Purchasing, (last updated Oct. 30, 2015, 2:33 PM), [].

[42] Jordan Rau, Doctor-Owned Hospitals Prosper Under Health Law, Kaiser Health News (Apr. 12, 2013), [].

[43] See id.

[44] See id. (“It’s more of a recognition that we are a facility that is doing things right.”).

[45] See Physician-Owned Hospitals Excel in CMS Star Ratings, Physician Hospitals Am. (Apr. 23, 2015), []. See also Patient Survey (HCAHPS) – Hospital, Data.Medicare.Gov, [] (full survey results).

[46] Leslie Fossey, Hospitals with Physician Ownership Once Again Lead the Way in New CMS Quality Ratings, PR Newswire (Apr. 20, 2015), [].

[47] See id.

[48] See, e.g., The Spine Hospital of Louisiana Leading the Way in New CMS Quality Rating, NeuroMedical Ctr. (Apr. 24, 2015), [].

Prosecutorial Discretion and the Expansion of Executive Power: An Analysis of the Holder Memorandum

Prosecutorial Discretion and the Expansion of Executive Power:

An Analysis of the Holder Memorandum

by Erin Cady, JD ’16

Scales of Justice  

I. Introduction

President Obama has used executive power to advance policymaking on issues from immigration to national security throughout his Administration, particularly since the Republican Party won a majority of seats in the House of Representatives in 2010. Through the use of executive orders and, more commonly, directives to the numerous federal agencies under his control, President Obama can continue to advance the policies of the government in accordance with his vision while bypassing a hostile Congress.[1]

One such use of executive power was an August 2013 Memorandum from Attorney General Eric Holder instructing Assistant United States Attorneys (“AUSAs”) across the country to decline to impose criminal charges that would trigger mandatory minimum sentences for non-violent, low-level drug offenders (hereinafter referred to as the “Holder Memorandum”).[2] This article argues that this directive was an abuse of prosecutorial discretion because the categorical nonenforcement of a duly enacted law violates the Take Care Clause of the Constitution, effectively constituting an impermissible second veto by the President. Further, categorical nonenforcement of laws creates systemic problems within the government, leading to policy bargaining with the president rather than among members of Congress, and an eventual erosion of legislative power in favor of the Executive.

Although the Holder Memorandum was sharply criticized by the National Association of Assistant United States Attorneys,[3] it has largely escaped the forceful political and legal debate that has surrounded President Obama’s use of executive power. Certainly, the President’s nonenforcement of immigration laws for “DREAMers” brought to the United States illegally as children, and the Administration’s intervention in Libya, for instance, are more exciting, controversial topics. In fact, the curtailment of mandatory minimum sentences for low-level drug offenders is hardly controversial at all—there is both public and bipartisan support in Congress to change the criminal code.[4]

The fact that there is consensus for change in this policy area, however, makes the use of executive power in this instance even more troubling—it suggests that executive power is being used, not because America cannot wait for congressional gridlock to be resolved, but because it is easier to make the change through executive power than through the legislative process set out in the Constitution. Although Speaker of the House John Boehner’s lawsuit against the President appears to be more bluster than a realistic attempt to require the President to enforce the laws, it indicates a major dilemma with the overuse and abuse of executive power: Congress can do very little, save drastic actions, to stop the Executive from gaining power at its expense.

II. The Holder Memorandum

In early 2013, the Department of Justice under Attorney General Eric Holder conducted a “comprehensive review” of the criminal justice system and identified five “Smart on Crime” goals to reform the system:

  • “To ensure finite resources are devoted to the most important law enforcement priorities;
  • To promote fairer enforcement of the laws and alleviate disparate impacts of the criminal justice system;
  • To ensure just punishments for low-level, nonviolent convictions;
  • To bolster prevention and re-entry efforts to deter crime and reduce recidivism; and
  • To strengthen protections for vulnerable populations.”[5]

The second goal of alleviating disparate impacts included “meaningful sentencing reform” and changing charging policies so that low-level, nonviolent drug offenders without significant criminal histories or ties to drug organizations would no longer be charged with offenses that mandate “draconian mandatory minimum sentences,” but would instead receive “sentences better suited to their individual conduct rather than the excessive prison terms more appropriate for violent criminals or drug kingpins.”[6]

Consistent with the “Smart on Crime” initiative, on August 12, 2013, the Attorney General issued a memorandum to the United States Attorneys and Assistant Attorneys General for the Criminal Division directing prosecutors to decline to charge the quantity of drug that would trigger a mandatory minimum sentence if the defendant met the following criteria:

  • “The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;
  • The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization;
  • The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and
  • The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.”[7]

The memorandum cited the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that facts such as the quantity of drug that triggers a mandatory minimum sentence must be pled in the indictment and proved beyond a reasonable doubt.[8] The Department took the stance that Alleyne gave prosecutors control over the application of mandatory minimums, as they can “elect not to plead or prove the trigger amount, even in a case where the facts plainly support it.”[9]

The tone of the memorandum was respectful and cautious, though the Obama Administration’s disdain for mandatory minimums came through in the rationale for the change: “[l]ong sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.”[10] On the same day that the memorandum was issued, Attorney General Holder gave a speech to the House of Delegates of the American Bar Association (“ABA”) during which he championed the Department’s effort to “recalibrate America’s federal criminal justice system.”[11] Attorney General Holder denounced mandatory minimums as failing to serve public safety “[w]hen applied indiscriminately,” “reduc[ing] the discretion available to prosecutors, judges, and juries,” and “breed[ing] disrespect for the system” by generating “unfairly long sentences.”[12] When mandatory minimums are “applied inappropriately,” Holder continued, “they are ultimately counterproductive.”[13] Almost as an afterthought, Holder mentioned that he and the President planned to work with Congress to pass legislation to reform mandatory minimums for certain drug offenders (despite the fact that his directive had already shifted the policy).[14]

III. The Holder Memorandum in Context

The Holder Memorandum is one example of the Obama Administration’s use of “prosecutorial discretion” to refuse to enforce statutes with which the Administration disagrees. Despite the fact that the President denounced the Bush Administration’s executive overreach, and promised, unlike his predecessor, to work closely with Congress,[15] within months after his inauguration, President Obama began refusing to enforce certain federal laws through announcements by his cabinet members and their staff.[16]

In 2009, for instance, Deputy Attorney General David Ogden announced that the Administration would no longer enforce federal drug law against individuals whose actions complied with state medical marijuana laws.[17] Additionally, after the Senate rejected the DREAM Act in December 2010 and the Republican Party took control of the House of Representatives in January 2011, the President announced that he would use “prosecutorial discretion” to achieve a portion of his policy goals on immigration[18]: a path to citizenship for “dreamers,” or foreign-born children who came to the Unites States illegally as children.[19] A year later, Secretary of Homeland Security Janet Napolitano announced a broader program under the same banner of “deferred action” for “young people who are low enforcement priorities.”[20] Republicans have also criticized the President for his abuse of executive power in delaying enforcement of certain provisions under the Affordable Care Act (“ACA”), altering a congressional mandate for work requirements under the 1996 welfare reform act, and changing compliance requirements in the No Child Left Behind education reform law.[21] A determination of whether the Holder Memorandum can be “reconciled with an appropriate understanding of executive-branch responsibility,” or constitutes a violation of executive power, first requires an examination of the law of prosecutorial discretion.[22]

IV. The Law of Prosecutorial Discretion

The presidential power of prosecutorial discretion is based on several Article II provisions, including the Executive Power Clause, the Take Care Clause, the Oath of Office Clause, and the Pardon Clause.[23] Under Article II, the president may decline to prosecute or pardon certain violators of federal law.[24] The Supreme Court has repeatedly affirmed the broad discretion of the Executive Branch, holding that the decision “[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”[25] The Court has recognized that “the decision to prosecute is particularly ill-suited to judicial review,” as “[e]xamining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”[26] There is a distinction, however, between prosecutorial discretion in the narrow context of a defendant suing the government for unjust prosecution (the issue these precedents consider), and the president’s refusal to prosecute specific classes of lawbreakers. Accordingly, it is necessary to examine the Executive’s power in the broader context of the lawmaking scheme to determine if a constitutional issue arises in this case.

Under Article II of the Constitution, the President must “take Care that the Laws [are] faithfully executed”[27] and follow statutory mandates and prohibitions, “absent a lack of funds or a claim of unconstitutionality that has not been rejected by a final court order.”[28] The Take Care Clause is “naturally read as an instruction or command to the President to put the laws into effect, or at least see that they are put into effect, ‘without failure’ and ‘exactly.’”[29] “[T]he President may not decline to follow a statutory mandate or prohibition simply because of policy objections,”[30] as the Framers of the Constitution believed that the separation of the prosecutorial power from the power to legislate was essential to preserve liberty.[31] Accordingly, the Constitution grants to Congress primacy in lawmaking. Although the President may “recommend to [Congress] Consideration [of] such Measures as he shall judge necessary and expedient,”[32] the President’s role in the legislative process is merely to sign or veto bills that both houses of Congress have approved; with enough votes, Congress can even override the president’s veto.[33]

V. Prosecutorial Discretion and the Holder Memorandum

From the text of the Constitution, it seems clear that the Take Care Clause imposes a duty on the president. While other members of the executive branch may “execute” the laws, the “President’s role is to see to it that they do so ‘faithfully.’”[34] In the words of one member of the Constitutional Convention, the Take Care Clause means that the President has the “authority, not to make, or alter, or dispense with the laws, but to execute and act the laws, which [are] established.”[35]

Just as the Constitution provides that the executive power is vested in the President,[36] the Constitution also makes clear that “all legislative [p]owers . . . shall be vested in a Congress.”[37] In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“Steel Seizure”), Justice Jackson, concurring, articulated the formula that courts now use to regulate the interactions between Congress and the President. The President’s executive actions receive: (1) greatest deference when he acts consistently with Congress’s authorization; (2) some deference when executive action occurs in the “zone of twilight” in which he and Congress may have concurrent authority; and (3) little or no deference when he takes action contradicting the expressed or implied will of Congress.[38] In the case of the Holder Memorandum, the President’s actions fall under the third category: Congress has clearly expressed its will on the issue, as it passed a statute imposing mandatory minimum sentences on drug offenders. Under this framework, the Executive’s action not to enforce the statute should receive little deference. Indeed, suspending the enforcement of a statute passed by Congress strips the law of practical effect for a certain period of time, violating the principle of legislative supremacy.[39]

Allowing the President to disregard the framework of the Constitution and ignore statutes duly enacted by Congress in directing his prosecutorial power would “upend [the Constitutional] scheme by giving the President a form of second veto over laws, whenever enacted, that he does not wish to see enforced during his presidency.”[40] Similar to the line-item veto declared unconstitutional by the Supreme Court in Clinton v. City of New York, 524 U.S. 417 (1998), a second veto would gift the President additional bargaining power at the expense of Congress.[41] Consistent with this interpretation, the Supreme Court has held that the idea that the Take Care Clause “implies a power to forbid” the execution of the laws is “a novel construction of the constitution, and is entirely inadmissible.” [42]

In fact, the situation in this case is potentially even more problematic than the line-item veto. President Clinton was involved in the debates and negotiations for the Balanced Budget Act of 1997 and the Taxpayer Relief Act of 1997, the two acts he altered via the line-item veto.[43] Here, the President was not simply cutting an appropriation from the year’s budget act, but was effectively replacing a statute that was negotiated, passed, and signed into law by a prior government with his own, narrower prohibition.[44] As is the case with all unilateral actions, the President need not consult, debate, or even inform any branch of government or constituency prior to taking action.

The major counterargument to this position is that the policy directive laid out in the Holder memorandum is not an express promise of nonenforcement, but a valid decision by the Executive to allocate scarce resources. Congress and the executive branch alike have long recognized that not every violation of federal law can be prosecuted, and federal prosecutors must set policies for enforcement, even if it means failing to prosecute certain crimes or offenders.[45] Leadership from the Justice Department seems appropriate in these circumstances, as the President and Attorney General can better set comprehensive, nationwide law enforcement priorities than can U.S. Attorneys and Assistant United States Attorneys.[46]

This argument fails for two reasons. First, the Obama Administration has not presented the Holder Memorandum as a calculated resource allocation. Attorney General Holder’s comments to the ABA, that the Department will “fundamentally rethink the notion of mandatory minimum sentences for drug-related crimes,” suggests that the shift to nonenforcement of mandatory minimums was a policy or value-based decision.[47] Second, there is a distinction between focusing resources on specific crimes ex ante and promising nonenforcement for a certain category of offenders ex post.[48] The Holder Memorandum does not set out a new vision for fighting drug and gang-related crime. Rather, it sets out a new policy for AUSAs to follow after ascertaining whether a defendant is eligible to be charged under a mandatory minimum statute. Further, the Holder Memorandum’s directive is potentially more resource-intensive than the previous policy. It requires AUSAs to determine what the charge would be under the previous policy and then determine if the defendant meets four additional criteria that warrant departure from a mandatory minimum charge.[49]

    a. Consequences of Nonenforcement

Categorical nonenforcement of duly enacted laws creates systemic problems within the government that are not easily rectified. Categorical nonenforcement both creates an incentive for open policy bargaining with the executive branch rather than policy bargaining within the legislative branch, and fails to hold Congress accountable for its actions. Rather than building consensus within the legislature itself, nonenforcement actually stalls the legislative process by creating incentives for members of Congress to policy bargain directly with the President to create legislation. In the context of immigration reform and the DREAM Act, once President Obama made it clear that he would use executive power to limit immigration actions against “DREAMers,” some senators curtailed their negotiations within the Senate and began bargaining with the President instead. [50] Given the public’s frustration with gridlock in Washington, it is likely that the last thing the public wants is more legislative dysfunction,[51] particularly since there is widespread, non-partisan public support for the elimination of mandatory minimum sentences for non-violent offenders.[52] Furthermore, critics of mandatory minimums should note that nonenforcement fails to hold Congress accountable for passing broad, sweeping statutes. Despite Holder’s claims that he will work with Congress to pass new laws restricting the use of mandatory minimum sentences,[53] by eliminating them by decree, he has quashed any legislative inertia for reform.[54]

Over time, policies such as the nonenforcement of mandatory minimums will lead to an erosion of legislative power in favor of the Executive, a significant and dangerous violation of the separation of powers. The problem is particularly acute since the executive branch already has a policy-making advantage over Congress. As Alexander Hamilton stated, “the Executive in the exercise of its constitutional powers may establish the antecedent state of things,” or the policy atmosphere that the legislature must work with.[55] Accordingly, the Executive can pressure Congress into legislating in particular areas by “making the status quo undesirable.”[56] If prosecutorial discretion of the sort embodied in the Holder Memorandum becomes commonplace, Congress will not only be pressured by the Executive to legislate in certain policy areas, but will also be encouraged to overregulate under the expectation that the executive branch will step in to counterbalance the regulation with forgiving enforcement policies.[57]

Overregulation is particularly worrisome in the area of criminal penalties, as Congress has little, if any incentive to retain congressional power. Some commentators argue that Congress actually desires broad prosecutorial discretion to counteract the overcriminalization that occurs when they are pressured into adding or increasing sentences after particularly troubling or gruesome crimes are reported extensively in the media.[58] Collective action problems also make it difficult to enact formal, complex legislation such as criminal penalties. [59] Further, individual members of Congress generally identify more strongly with their political party than with Congress as an institution, and accordingly are likely to support prosecutorial discretion when their party is in the White House, and oppose it when their party is not.[60]

The congressional predisposition to cede lawmaking power to the executive branch in this area should be concerning to both supporters and opponents of the Obama Administration. Unlimited prosecutorial discretion at the expense (or perhaps even at the behest) of Congress severely restricts the accountability of policy actors from all 535 members of Congress to the sole executive.[61] Indeed, “[u]nlimited discretion in enforcement policy can become a greater threat to personal liberty and security than the mechanical enforcement of the law,”[62] as the President can use his considerable power to veil the extent of his control, making public accountability nearly impossible.[63]

   b. Enforcing Enforcement

“As far back as Thomas Jefferson’s refusal to grant William Marbury his judicial commission, presidents have resisted carrying out the letter of the law.”[64] The question, then, is how to pressure the Executive into enforcing the laws that Congress has passed. Traditional congressional methods to constrain the Executive have included passing statutes that provide less prosecutorial discretion, withholding confirmation for executive branch nominees, and failing to appropriate funds for the affected agencies until a compromise between the branches can be made.[65]

For Republicans in the House of Representatives, these methods have proved insufficient to rein in President Obama’s abuse of prosecutorial discretion.[66] Representative Trey Gowdy, Oversight Chairman Darrell Issa, and Judiciary Chairman Bob Goodlatte introduced the Executive Needs to Faithfully Observe and Respect Congressional Enactments (“ENFORCE”) the Law Act of 2014 to provide Congress with the ability to sue the President for using his power of prosecutorial discretion to disregard the law.[67] Although the ENFORCE the Law Act passed the House on March 12, 2014, it was stalled in the Democrat-controlled Senate.[68] A similar bill, the Faithful Execution of the Law Act of 2014, which was meant to extend the requirement that the Attorney General report to Congress all laws he declines to enforce because he believes them to be unconstitutional “to include any Federal officer who implements a formal or informal policy of non-enforcement, regardless of whether it is being done on constitutional or policy grounds,”[69] passed the House the next day but met a similar fate.[70]

On July 7, 2014, Speaker of the House John Boehner announced that the House would bring a lawsuit against the President to compel him to follow the Take Care Clause, and the House voted to authorize the lawsuit on July 30, 2014. The biggest hurdle for the lawsuit is whether there is standing to sue,[72] though the House as an institution can argue that it was injured, since its “legislative powers have been nullified” by the President’s actions.[73]

If a federal court considered the case on its merits, it would set up a significant clash among the three branches, “with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.”[74] The courts have generally read their powers narrowly so as to avoid declaring executive actions unconstitutional.[75] The Supreme Court’s prosecutorial discretion precedents of Batchelder and Wayte did leave open the possibility, however, that a federal court might cite “constitutional constraints” such as the separation of powers to limit the Executive’s discretion.[76]

At least in terms of the mandatory minimum policy articulated in this paper,[77] the Wayte Court’s concerns in applying judicial review of the exercise of prosecutorial discretion[78] should not be implicated here, because the Holder Memorandum already revealed the Executive’s enforcement policy for mandatory minimums. Accordingly, judicial intervention would not undermine prosecutorial effectiveness, chill law enforcement, or change the deterrence value of the criminal law.[79] Further, as the Holder Memorandum does not change the amount of investigation or prosecution costs for these cases—the directive still requires prosecutors to calculate whether defendants are eligible for statutory mandatory minimums and then decline to charge the statutory mandate—a court might find the Executive’s nonenforcement of these laws to be particularly egregious.[80] That said, it seems unlikely that a court would rule in favor of the legislative branch in Boehner’s lawsuit, if only because “a decision allowing [such a] lawsuit to proceed would open the floodgates for Congress and the president to take their political disputes to court—something the Supreme Court has actively tried to avoid.”[81]

VI. Conclusion

Throughout this analysis, it has become clear that the President can exercise significant, unchecked nonenforcement power—and President Obama and Attorney General Holder have done so in the case of the nonenforcement of mandatory minimum sentences for non-violent drug offenders. Even if one supports the President’s policies, his actions have created a dangerous precedent for nonenforcement that will exacerbate legislative dysfunction, lead to severe fluctuations in governmental policies between administrations, and create a system in which Congress attacks executive branch policies by suing the President and making its case to the courts.[82]



[1] See Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. Times, April 22, 2012, available at

[2] Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division, Re: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013) [hereinafter Holder Memorandum], 2, available at

[3] Memorandum to the Judiciary Committee, Re: Mandatory Minimum Sentencing 3 (January 31, 2014), available at

[4] See, e.g., Christopher Ingram, Americans Overwhelmingly Agree it’s Time to End Mandatory Minimum Sentencing, Wash. Post, Oct. 10, 2014, available at (“Support for ending mandatory minimums is widespread among people of different races, genders, income levels, ages. Democrats (81 percent) are slightly more likely to favor ending mandatory minimums than Republicans (73 percent).”); Smarter Sentencing Act of 2013, S.1410, 103th Cong. § 1 (2013). The Smarter Sentencing Act was jointly sponsored by Sens. Dick Durbin (D-IL) and Mike Lee (R-UT), and a companion bill in the House also has bipartisan support from Reps. Raul Labrador (R-ID) and Bobby Scott (D-VA). According to Sen. Durbin’s office, the bill would “modernize [] drug sentencing policies by giving federal judges more discretion in sentencing those convicted of non-violent offenses.” Durbin and Lee Introduce Smarter Sentencing Act, U.S. Senate: Dick Durbin, (August 1, 2013),

[5] Smart on Crime: Reforming The Criminal Justice System for the 21st Century 2 (August 2013), available at,

[6] Id. at 2–3.

[7] Holder Memorandum, supra note 2, at 2. In a footnote, the memorandum went further, suggesting that, “n some cases, satisfaction of the above criteria meant for low-level, nonviolent drug offenders may indicate that prosecution would not serve a substantial federal interest and that the case should not be brought federally.” Id. at 2 n.3.

[8] 133 S. Ct. at 2162–63.

[9] See Frank O. Bowman, III, Dead Law Walking: The Surprising Tenacity of the Federal Sentencing Guidelines, 51 Hous. L. Rev. 1227, 1259 (2014). Others might argue that prosecutors controlled the imposition of mandatory minimums prior to Alleyne by “fact bargaining,” or bargaining with the defense over which facts would be included in the sentencing determination (and which would not). See id. at 1259; William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548, 2559–60 (2004).

[10] Holder Memorandum, supra note 2, at 1.

[11] Eric Holder, U.S. Attorney General, Address at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013) [hereinafter Holder ABA Speech], available at

[12] Id.

[13] Id.

[14] See id. at 5–6.

[15] Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws Before the H. Comm. on the Judiciary, 113th Cong. 2, at 14 (2014) [hereinafter Hearings] (testimony of Rep. Rice).

[16] See, e.g., Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration’s Nonenforcement of Immigration Laws, The DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781, 781–83 (2013); George F. Will, Obama’s Extreme Use of Executive Discretion, Wash. Post, Dec. 18, 2013, available at; Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws Before the H. Comm. on the Judiciary, 113th Cong. 2 (2014) [hereinafter Hearings] (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary). Even Justice Scalia joined in the debate. In his dissenting opinion in Arizona v. United States, 132 S.Ct. 2492 (2012), he referenced the DREAM Act and criticized the executive branch for selectively invoking “enforcement priorities” and resource scarcity to change policy. Id. at 2521 (Scalia, J., dissenting).

[17] Memorandum for Selected United States Attorneys, Re: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana 1–2 (October 19, 2009), available at

[18] Memorandum for All Field Office Directors, Special Agents in Charge, and Chief Counsel, Re: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens 4 (June 17, 2011), available at

[19] Julia Preston, Students Press for Action on Immigration, N.Y. Times, May 30, 2012, available at

[20] Memorandum for David Aguilar, Alejandro Mayorkas, and John Morton, Re: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 1–2 (June 15, 2012), available at

[21] See, e.g., Hearings, supra note 15, at 2 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary); George F. Will, Obama’s Extreme Use of Executive Discretion, Wash. Post, Dec. 18, 2013, available at

[22] Zachary S. Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. 671, 757 (2014) (footnotes omitted).

[23] See U.S. Const. art. II, § 1, cl. 1 (Executive Power Clause) (“The executive Power shall be vested in a President of the United States of America”); U.S. Const. art. II, § 1, cl. 8 (Oath of Office Clause) (“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”); U.S. Const. art II. § 2 cl. 1 (Pardon Clause) (“The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”); U.S. Const. art. II § 3 (Take Care Clause) (“he shall take Care that the Laws be faithfully executed”).

[24] U.S. Const. art II. § 2 cl. 1; U.S. Const. art. II § 3.

[25] United States v. Batchelder, 442 U.S. 114, 124 (1979); see Wayte v. United States, 470 U.S. 598, 607–08 (1985); see also United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”).

[26] Wayte, 470 U.S. at 607–08. Prosecutorial discretion is not “unfettered,” however, and is subject to constitutional constraints such as the Fourteenth Amendment’s Equal Protection Clause. See id. at 608; Batchelder, 442 U.S. at 125 n.9.

[27] U.S. Const. art. II § 3 (Take Care Clause). The Clause appears to at least charge the President with the supervision of executive branch members who enforce the laws. See Delahunty & Yoo, supra note 16, at 799.

[28] In re Aiken Cnty, 725 F.3d 255, 259 (D.C. Cir. 2013).

[29] Delahunty & Yoo, supra note 16, at 799.

[30] In re Aiken Cnty, 725 F.3d at 259.

[31] See The Federalist No. 47, at 269 (James Madison) (Clinton Rossiter ed., 1961).

[32] U.S. Const. art. II, § 3.

[33] U.S. Const. art. I, § 7, cl. 2; see also Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 655 (1952) (Jackson, J. concurring) (“The Executive, except for recommendation and veto, has no legislative power.”).

[34] Delahunty & Yoo, supra note 16, at 800.

[35] Id. at 802 (quoting 2 James Wilson, Lectures on Law Part 2, in Collected Works of James Wilson 829, 878 (Kermit L. Hall and Mark David Hall, eds., 2007).

[36] U.S. Const. art. II, § 1.

[37] U.S. Const. art. I, § 1.

[38] See Steel Seizure, 343 U.S. at 635–38; cf. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 693–94 (2008) (analyzing Steel Seizure’s implications).

[39] Cf. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265, 274 (2013) (nonenforcement “renders the underlying legal requirement effectively void for all cases within the ambit of the policy for as long as the policy remains in effect.”).

[40] Price, supra note 22, at 690. But cf. In re Aiken Cnty, 725 F.3d at 265 n.10 (stating that the President may exercise prosecutorial discretion and the pardon power on any ground, including constitutionality and policy considerations.).

[41] 524 U.S. at 447; see Delahunty & Yoo, supra note 16, at 795 (footnotes omitted).

[42] Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 525 (1838).

[43] Clinton v. City of New York, 524 U.S. at 421.

[44] Price, supra note 22 at 705.

[45] See, e.g., id. at 758.

[46] See id.

[47] Holder ABA Speech, supra note 11.

[48] See Andrew Rudalevige, The Letter of the Law: Administrative Discretion and Obama’s Domestic Unilateralism, 12 The Forum 29, 52 (2014).

[49] Holder Memorandum, supra note 2, at 2.

[50] Delahunty & Yoo, supra note 16, at 795 (footnotes omitted).

[51] See, e.g., Unprecedently Dysfunctional, The Economist, Sep. 22, 2014, available at (“Even discussions about congressional gridlock have come to resemble the gridlock itself, static and tired.”); Jonathan Martin, Voters’ Second Thoughts on Hope and Change, N.Y. Times, Nov. 4, 2014, available at (quoting Republican strategist Karl Rove as saying that the 2014 midterm election showed that “[t]he American people . . . sent the message that they really want to get things done” and “[t]hey really do want us to work together.”).

[52] Ingram, supra note 4.

[53] Holder ABA Speech, supra note 11.

[54] Price, supra note 22, at 758–59.

[55] Alexander Hamilton, Article 2, Section 2, Clauses 2 and 3, in 4 Pacifius-Helvidius Debates, 63, 65 (1793) available at

[56] Rudalevige, supra note 48, at 53–54.

[57] See Delahunty & Yoo, supra note 16, at 795 (footnotes omitted).

[58] See William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 546–47 (2001).

[59] See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 414–15 (2012).

[60] See id.

[61] See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 499 (2003).

[62] Delahunty & Yoo, supra note 16, at 794.

[63] See Bressman, supra note 61, at 506.

[64] See Rudalevige, supra note 48, at 52.

[65] See id. at 55; Hearings, supra note 15, at 2 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary).

[66] Hearings, supra note 15, at 2 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary).

[67] Id. at 8 (testimony of Rep. Gerlach); ENFORCE the Law Act of 2014, H.R. 4138, 113th Cong. (2014).

[68] ENFORCE the Law Act of 2014, H.R. 4138, 113th Cong. (2014).

[69] Hearings, supra note 15, at 25 (testimony of Rep. DeSantis).

[70] Faithful Execution of the Law Act of 2014, H.R. 3973, 113th Cong. (2014). It remains to be seen if Republicans will attempt to pass the bill again in 2015 once they have control of both Houses. See Jerry Markon, Robert Costa & David Nakamura, Republicans Win Senate Control as Polls Show Dissatisfaction with Obama, Wash. Post, Nov. 4, 2014, available at

[71] See John Boehner, Why We Must Now Sue the President, CNN Opinion, Jul. 7, 2014, available at; Michael R. Crittenden & Colleen McCain Nelson, House Votes to Authorize Boehner to Sue Obama, Wall St. J., Jul. 30, 2014, available at The lawsuit was stripped down to include only the “clearest instance[] of executive branch overreach,” the delays of the ACA’s employer mandate. Accordingly, it does not include any mention of the Holder Memorandum or the failure to enforce mandatory minimums. Peter Suderman, John Boehner’s Lawsuit Against President Obama Probably Won’t Succeed in Court—But it Doesn’t Have To, Reason, Jul. 16, 2014, available at

[72] See Daniel Newhauser, Boehner Planning House Lawsuit Against Obama Executive Actions, Roll Call, June 24, 2014, available at

[73] Id.

[74] Id.

[75] See Hearings, supra note 15, at 3 (statement of Rep. Goodlatte, Chairman, H. Comm. on the Judiciary).

[76] Vijay Sekhon, Highly Uncertain Times: An Analysis of the Executive Branch’s Decision to Not Investigate or Prosecute Individuals in Compliance with State Medical Marijuana Laws, 37 Hastings Const. L.Q. 553, 558 (2010).

[77] As mentioned previously, the Boehner lawsuit does not mention executive overreach in terms of criminal law or mandatory minimums, see Suderman, supra note 71, though if the lawsuit proves successful, it could have an impact on criminal law and the discretion of Attorney Generals and AUSAs in the future.

[78] See Sekhon, supra note 76, at 559.

[79] See id.

[80] See Holder Memorandum, supra note 2, at 2.

[81] Sam Baker, What Happens if Boehner’s Lawsuit Succeeds?, Nat’l J., Jul. 17, 2014, available at

[82] See Michael Sant’Ambrogio, The Extra-Legislative Veto, 102 Geo. L.J. 351, 409–11 (2014).