Influencing Behavior

by Jacob Oldaker

The theory of mechanism design is used to the influence the behavior to increase the social preferences of a population to pursue a solution that will increase the well-being for an entire group of people in comparison to maximizing one’s individual material payoff. Bowles, Samuel, and Sandra Polanía-Reyes. “Economic Incentives and Social Preferences: Substitutes or Complements?” Journal of Economic Literature 50.12 (2012): 368-425. Economist and policy-makers (principal) use the assumption that all individuals act in the best interest of oneself, making the design of this mechanism difficult in achieving the best scenario for the entire group (agent). Id. The way policy is introduced impacts how people interpret it determining whether the influence will have either a marginal or categorical effect on social preferences. Id. I will begin this article by explaining why the assumption in economics that people are rational actors is not always the best indicator to use when predicting the agent’s decisions. In coordination with these theories, I will use examples to show how these theories have helped mold the process that principals use to devise their influences which they use on their respected agents.

The theory of fairness presented in Ernest Fehr and Klaus Schmidt article, “A Theory of Fairness, Competition, and Cooperation,” suggests that in contrast with most economic models, the way an individual views the fairness of the outcome from their decision, has a larger affect on their decision then acting in their own material-self interest. Fehr, Ernst, and Klaus Schimdt. “A Theory of Fairness, Competition, and Cooperation.” The Quarterly Journal of Economics 114.3 (1999): 817-78. Web. 12 Dec. 2015. For example, an individual A, Adam, is working with individual B, Bob, on a live game show to accumulate an earnings of $20. Adam wins the contest and now has the choice to keep the $20 or split it equally with Bob. Under the assumption that individuals act in their own material interest, Adam will gain more utility by keeping the $20 for himself compared to the utility he would gain by choosing to split the $20 with Bob.   Using the Fehr-Schmidt Utility Function, Adam will choose to split the $20 with Bob, but why? Id. Adam understands that he and Bob had cooperated with one another to achieve the pot of $20. In the presence of the live-audience, the guilt of associated with keeping the $20, outweighs the utility he receives from keeping the $20. In this example, Adam receives a higher utility by choosing to be “fair,” splitting the earnings equally with Bob.

Understanding that individuals will act in a way that they deem fair, not solely in their own-material interest, allows policy-makers to take the next step in developing their economic incentive that will influence a larger group of agents. Let’s assume there is a policy-maker that is worried about the depletion of fish among the state’s local fisheries. To prevent further depletion of the fishery, the policy maker may introduce a fine that is used to incentivize those using the fishery to abide by regulations that are put into place to help save the fishery.  Rather than decreasing the rate of depletion, the fishery begins to deplete at a higher rate. Although the fine seems both rational and fair in the eyes of the rational actor model and Fehr-Schmidt utility function, what causes those individuals in the community to continue making the irrational decision of depleting their common resource pool? Id. The agents are concerned with more than the costs and benefits that are associated with the economic incentive. Id. There are three additional factors that influence the agent’s decisions that the rational actor model and Fehr-Schmidt utility function fail to include: moral disengagement, “bad news,” and control aversion. Bowles, Samuel, and Sandra Polanía-Reyes. 50.12 (2012): 368-425.

It is plausible that the agents who use the fisheries do not understand why the incentive by the policy-maker has been put in place. The agents may not understand the threat to their fisheries, so instead of taking the measures to prevent further depletion, they continue to over-fish. This is when the agents become morally disengaged; they feel that in the end, they are better off paying for the fine because by in one way or another they will pay for it anyway. Some individuals may feel that the incentive is “bad news,” in which the money the state receives from the fines does not help towards the prevention of depletion of their common resource pool, but is instead put towards the support of another issue that is on the policy-makers agenda. According to the theory of self-determination, some individuals will have acted on their own will to help prevent further depletion of the fishery before the introduction of the incentive. Id. In turn, the new regulations the agents must abide by make the individuals feel like they have to do something that they otherwise would have done anyway. Each of these three factors will negatively affect the agent’s social preferences by producing a categorical effect. Id. at 372. A categorical effect happens when the economic incentive introduced, crowds-out, or substitutes the agent’s social preferences for the economic incentive. There are ways however, to use economic incentives in order to gain a positive effect on the fishery problem.

By using the framing mechanism, the policy-maker can rearrange the proposed economic incentive to receive a marginal effect the agents that use the fishery. Id. at 374. When using the framing mechanism, the policy-maker can design the incentive to guide individuals to act with more appropriate behavior. In the last example, I said the policy maker would fine anyone who does not abide by the regulations when using the fishery. Instead the incentive can be framed as follow: By increasing taxes on fishing license, boat permits, and safety checks for those that use the fishery, we can better ensure that individuals in our community are abiding to the new regulations put in place to stop the depletion of the fishery; we can work together to better save our natural resources, ensure consistent economic usage of our fishery, and guarantee safer recreational use of the fishery for our younger generation. In doing so, we can expect more cooperation by the agents with the new fishery regulations because the correct information was provided to help the agents understand the mission of the incentive that provides benefits both socially and economically to the agents that use the fishery. The individuals are likely to change their social preferences in support of the saving of the fisheries because they are now morally engaged. The consequences of not following the incentive to the agent’s family and friends not being able to receive continued usage of the fishery for both economic and recreational benefits are now prevalent. The positive impact on the social preferences results in a marginal effect, where the incentive and social preferences of the agents work together as compliments to increase the protection their common pool resource. Id. at 373.

In addition to the framing mechanism, when using the fishery example, the policy maker can induce another marginal effect through the conformist mechanism. The conformist mechanism focuses on upgrading the preferences of the agents in the long run. Id. If the incentive that used when using the framing mechanism were to stay in place, the younger generation (generation X) will have greater social preferences than the previous generation (generation Y). Id. Generation X will successfully be able to observe the positive impact that incentive has had from a young age into adulthood. Id. Cooperation from generation Y and the increased benefits gained through cooperation will allow generation X to notice a crowding out effect in which their social preferences increase in coordination with the economic incentive. Id. at 374.

An alternate solution to public policy issues like the fishery example is offered through the work by authors Thomas Dietz, Elinor Ostrom, and Paul Stan in their article, “The Struggle to Govern Commons.” The author’s proposed the idea of self-governance, in which the agents in the community actively participate and become engaged in the policy that will be introduced to the community. Fehr, Ernst, and Klaus Schimdt. “A Theory of Fairness, Competition, and Cooperation.” The Quarterly Journal of Economics 114.3 (1999): 817-78. Web. 12 Dec. 2015. Since the community members collectively agree on the policy, the social-costs associated with breaking the policy outweigh are greater than any cost associated through a purely economic incentive.

In order to instill the cost of social pressures cognitively into the agents of the community, the agents need to first be presented with information that they can relate to. A national statistic that states the depletion of fisheries has eliminated 1% of fish species along with 2.5% jobs nationwide will barely affect the way people in the community look at the issue. Id. If the policy-maker were to use a statistic in the agent’s community that stated 34% of fish species in our species have become extinct, as a result 25% of individuals who were employed in the maritime industry have lost their job, that policy-maker would see a much larger increase in participation to help save the fishery. Id. After providing the agents with hometown examples of how their affecting their community, the agents need to meet to work out a set of rules they agree they can all abide by. Id. There will always be a one individual who will disagree with another individual when trying to negotiate the policy. To ensure compliance, it would beneficial to make an incremental system of warnings and fines for those who break the policy. A first time offender will receive a warning while a second time offender will receive a small fine. The fine will then increase after the second offense. Id. at 615.

To achieve a complete adaptive governance, the agents in the community may suggest that policy makers use money from those who broke the policy anyway or some other form of funding to create technologies that ensure the safety of the common pool resource. Returning to the issue of the fisheries, the policy maker make choose to invest in more cost guards that will ensure all boats meet regulation, all fisherman use proper tackle and are registered to fish the fishery. Id. at 614-6201.

After all rules, compliance measures, and sufficient technologies are in place, an agent in the community that decides to breaks the new policy will socially become an outlier. These individuals will be looked down upon because everyone in the community is now aware of the threats to their common pool of resources without proper cooperation of policy. The social pressure associated with the need to follow the policy, becomes much greater than the cost associate with trying to further take advantage of the common pool resource. Id. at 611-618.

In conclusion, the use of pure-economic incentives suggested by neoclassical economists is not the most viable option when deciding public policy. The complexity of the representative agent goes far beyond the rational actor model in which economists assume that all individuals act in their own interest. This idea is can be a great base for a starting point, but this idea alone will not achieve cooperation. Combining the theory behind the rational actor model with theories in the social sciences will allows us to develop models to create public policy that increase the benefits to a broader group of individuals.


Purposefully Struck

By: Liana Stinson

Batson, an African American, was indicted in the state of Kentucky on charges of “second-degree burglary and receipt of stolen goods.” Batson v. Kentucky, 476 U.S. 79, 82 (1986). The case proceeded to trial where the judge conducted voir dire excusing potential jurors for cause. Id. at 82. Then, the judge allowed both the defense and state to exercise their peremptory challenges. Id. at 82-83.

Of all the potential jurors, only four were African American. Id. at 83. The state used its peremptory challenges to get all four of those African American jurors stuck. Id. The jury was then only composed of white persons. Id. Before the newly-elected jury was sworn in, the defense moved to discharge the jury because the removal of all of those of African American descent violated Batson’s “Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws.” Id. The judge denied this motion reasoning that both the defense and state can utilize their peremptory challenges to “strike anybody they want to.” Id. As to the question of a jury drawn from a cross section of the community, the judge reasoned that that only applies to selection of the potential jurors themselves not selection of the actual jury. Id.

Batson was convicted on both counts, the burglary and the receipt of stolen goods. Id. Then on appeal, Batson urged that the state’s use of peremptory challenges was wrongful and displayed a “pattern” of discriminatory challenges. Id. at 83-84. The Supreme Court of Kentucky then affirmed the trial’s court’s ruling and reliance on Swain which held that the defendant “alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.” Id. at 84. Batson then appealed to the United States Supreme Court which granted certiorari. Id.

The Court first looked at the underlying principle of Swain which reasoned that a “State’s purposeful or deliberate denial to [African Americans] on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” Id. However, the holding in Swain makes it a high burden for defendants to meet to prove “systematic exclusion.” That is why the Court reversed the reliance on Swain but affirmed the principle behind it. Id.

Since 1880, the Court has held that when members of a defendant’s particular race are purposefully excluded from a jury, the defendant is denied equal protection of the laws. Id. at 85. That decision was the first of many in the Court’s efforts to abolish discrimination in the selection of the jury. Id. In that, the Court reasoned that the Fourteenth Amendment was created to end governmental discrimination on the basis of race. Id. While a defendant does not have the right to a jury composed of all persons of his race, a defendant does have the right to a jury selected pursuant to nondiscriminatory criteria. Id. at 85-86.

“The equal Protection Clause guarantees the defendant that the State will not exclude member of his race form the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors.” Id. at 86.

Denying a defendant’s right to equal protection of the laws denies him of the protection that affording defendant’s a trial by jury is mean to protect. Id. The Court reasoned in Strauder that “[t]he very idea of a trial by jury is a body composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Id. This provides a sense of security to defendants that the state cannot have use this power against them to make the trial unfair.

The Court ruled in this case that the defendant must first show that he is a member of a racial group that is capable of being singled out for differential treatment. Id. at 94. Then, the defendant can make a prima facie case by showing that members of his race have not been summoned for jury duty over a period of time which can show systematic discrimination. Id. The defendant can also establish a prima facie case by showing evidence of continued, unexplained absence of members of his race from the jury. Id. at 95.

The case of Batson v. Kentucky took place in 1986. The Court has been repeatedly striking down cases exactly like Batson since 1880. But my question is: how can this still be happening more than 100 years later? And when will it end?

Slavery was abolished in 1865. The first case to come before the Supreme Court of the United States where African American jurors were purposefully eliminated from the jury pool in 1880. The Court has had to consistently from then on strike down courts’ decisions in each state in which the state upheld the discrimination. In some areas of the nation in which are rural and uninhabited, it may be more difficult to obtain a fair jury selection pool from randomly selecting individuals from the area. However, peremptory challenges do not need a reason. So if there is one member of a protected class selected from a jury pool from a rural area, how can it be known that it is purposeful discrimination? How can it be known if it is not purposeful discrimination?

The fact that excluding jurors based on their race is still prevalent today amazes me. How can we not have moved past eliminating someone solely based on the color of their skin?

How Culture Affects the Negotiation Process

By Thomas F. Lovecchio

To understand how Culture impacts the negotiation process it is important to understand what culture exactly is. Culture “is the cumulative result of experience, values, religion, beliefs, attitudes, meanings, knowledge, social organizations, procedures, timing, roles, spatial relations, concepts of the universe and material objects and possessions acquired or created by groups of people, in the course of generations, through individual and group effort and interactions.” Chris Moore, Mapping Cultures- Strategies for Effective Intercultural Negotiations, (March 2004), Negotiation tactics not only affect several different industries and professions, they also affect how one should approach cross-cultural negotiations. Given the diversity of the United States, many of these principles can be utilized even domestically. Culture plays a big role in the negotiation process and negotiation tactics. Culture determines whether and how negotiations occur; what is negotiable; determines the importance of personal relationships, affects the responses of the parties, and governs the overall flow and style of the negotiation. The ability to overcome cultural obstacles and barriers can result in more successful business deals, and improve overall business operations.

There are several things that I will explore that differ across cultures such as; time orientations, communication styles, space orientations, power distance, and risk avoidance. I will provide some general examples of these differences are apparent in American culture, African culture, and Japanese culture. Finally, I will discuss how law schools can include culture within negotiations into its curriculum.

Time Orientations

How a culture perceives time orientation can impact the negotiation process. Two different approaches to time orientation exist; monochronic time and polychromic time. Michelle LeBaron, Culture-Based Negotiation Styles, Beyond Intractability (July 2003), Polychronic time orientation involves simultaneous occurrences of various things and the participation of various people. Id. Negotiators from polychronic cultures tend to begin and finish meetings at flexible times; take breaks whenever they feel it is needed; enjoy a high flow of information; sometimes speak over one another; and do not take lateness personally. Id. European influenced cultures like the United States, Switzerland, and Germany tend to be polychronic cultures. Id. While negotiators from monochronic time orientations prefer, meetings with prompt start and end times; scheduled breaks; discuss one piece of information at a time; prefer to take turns speaking; and consider lateness as a lack of respect. Id. Examples of Monochronic cultures are France, Italy, Greece, and Mexico. Id.

Other aspects of time also differ depending on the culture. Negotiators of different cultures have different perspectives on the amount of time that is devoted to a negotiation. In the United States the goal is often to close the deal as quickly as possible. Thus, Americans tend to skip all of the formalities and get straight down to business. Jeswald W. Sallacuse, Negotiating: The Top Ten Ways That Culture Can Affect Your Negotiation, Ivey Business Journal (September/October 2004), In contrast to many Asian cultures, whose primary goal is to build and create good business relationships, and there is no rush to get straight down to business and sign the contract. Id. They believe that the parties need to truly invest in the negotiation process so the parties have an opportunity to get to know each other well enough to determine if they can operate in a long-term business relationship. Id. If a party is obviously trying to shorten the meeting these cultures may assume that the other party is attempting to hide something. Id.

Communication Style

The methods and styles of communication also differ among cultures. Specifically cultures may engage in a high context communication style or a low context communication style. Jeanne M. Brett, Culture and Negotiation, 35 INTERNATIONAL JOURNAL OF PSYCHOLOGY, 97, 101 (2000). High context versus low context refers to the degree to which the people within a certain culture communicate directly or indirectly. Id. In high-context cultures the meaning is to be inferred, and is not conveyed by direct communication between the parties. Id. Examples of high context cultures are the United States and Israel. Id. In contrast low-context cultures exchange information more explicitly and the meaning of a message will not have to be inferred. Id. Low context cultures include those such as the Japanese and the Egyptians. Sallacuse, supra.

Communication is a very important part of the negotiation process. In order for the parties to reach an optimal agreement they must exchange information to figure out the other party’s interests, goals, preferences, and priorities. Brett, supra. Exchanging information about interests, goals, preferences, and priorities is a direct communication tactic. Id. This usually involves the asking of direct questions, and in response there are direct answers. Id. During this “give and take” exchange of questioning the parties are working to develop an understanding of the other party’s interests, determine if there are commonalities, and gauge how important or irrelevant each interest is for the other party. Id.

A more indirect communication tactic involves a heuristic trial and error approach. Id. This is the process of parties exchanging settlement offers or proposals back and forth. Id. When an offer is rejected and a counter-offer is made the party who offered the initial offer uses this as a way to try and infer what was wrong with their proposal by how the party responds in their counter-offer. Id. All of the information regarding the interests and priorities of the parties is conveyed indirectly when each party makes their proposal or counter-offers. Id.

Space Orientations and Power Distances

Space orientations are another component of negotiations that differ among cultures. Space orientations relate to territory, differences between public and private, personal distance, and comfort with physical contact. LeBaron, supra. Certain cultures allow more touching or physical contact than others. Mediterranean, Latin American, and Arab cultures allow more touching than Asian, Canadian, and U.S. cultures. Id.

Space orientations also relate to how comfortable someone is with eye contact. In many Arab cultures, Canada, and the United States eye contact is perceived as a sign of honesty, respect, and trustworthiness. Id. However, in some North American indigenous cultures, eye contact may be taken as inappropriate or even disrespectful. Id. Also in many Asian cultures looking downward is interpreted as a sign of respect, and in Central America movement of the eyes may indicate that someone is embarrassed, showing respect, or disagreement. Id.

Power distance is the “degree of deference or acceptance of unequal power between people.” Id. Cultures that utilize a high degree of power distance are those cultures where certain people are classified as superior because of their education, age, social class, gender birth origin, family background, or other personal achievements. Id. Cultures that have a low power distance believe in equality among all people, and believe that status is earned. Id. Usually if there is a large difference is the distribution of wealth, the higher the power distance will be in that culture. Cultures with high power distances include: Arab countries, Mexico, Indonesia, and India. Id. Negotiators from high power-distance cultures are more comfortable with defined authority figures, the right to use power, and hierarchical structures. Id. Cultures with a low degree of power distance include: New Zealand, Norway, Germany, Ireland and Israel. Negotiators from low power distance cultures are more comfortable with shared authority, the right to use power in only limited situations, and democratic structures. Id. How a culture perceives the differences in power can affect their positions on various issues, and how they may perceive the other party during the negotiation.

Risk Taking or Risk Avoidance?

The final aspect of negotiation differences among cultures is how risk averse a culture is. This factor plays a big role in the negotiation process, because it will play a significant role in whether a party from a certain culture will take risks or avoid risks in the entire negotiation process. A negotiators culture can determine whether or not they take risks in divulging information, trying new approaches, and acceptance of uncertainties in proposed agreements. Sallacuse, supra. Americans, the French, and the British often consider themselves high-risk takers. Id.  How risk averse a culture is also ties into how well they adapt to ambiguity and uncertainty. Countries that are not comfortable with ambiguity and uncertainty place a high value on risk avoidance, safety, and reliance on rules and rituals. LeBaron, supra. In these cultures it may be harder for outsiders to build trusting relationships with members of these high-risk averse cultures. Id. Cultures that tend to be highly risk adverse include the Japanese, Muslim, and traditional African cultures. Id.

Some Examples

In the United States negotiators tend to be more competitive in their approaches. They often begin with an unrealistic offer, but always have a back-up plan. Id.  U.S. negotiators are energetic, confident, persistent, and enjoy arguing their positions. Id. They tend to focus on one problem at a time, and focus on points of disagreement as opposed to commonality. Id. Finally, U.S. negotiators like closure at the end of the negotiation process. Id.  Which easily relates back to their philosophy that, “time is money.” If you picture any type of negotiation depicted in film or television of the legal system it can be seen as more of a straight forward, hardball type of negotiation, which fits with the high risk taking and is much different from a risk adverse negotiation.

In African cultures the approach to negotiation is quite different. Many African cultures rely on indigenous systems of conflict resolution. Id.  These systems pay particular attention to kinship, age, and the structure of the local community. Id. Thus, these cultures will likely have a high degree of power distances.

Over time there have been several conflicts between the United States and Japan because of the different approaches to negotiation. Id. The Japanese usually focus on interdependence and group goals. Id. The Japanese often show an awareness to group objectives and desires, and show more deference to individuals with a higher status. Id.  As a result they are known for their politeness and their desire to build long-lasting relationships. Id.

These are only a few examples of how different cultures are in the negotiation process. Each culture will have different principles, value different things, and have different goals in a negotiation process.

For Law Schools

It is important that law schools include culture into its curriculum, so that students can become better negotiators. “Yet despite the importance of culture in dispute resolution, the reality is that the subject receives scant mention in the law curriculum.” Ilyhung Lee, In re Culture: The Cross-Cultural Negotiations Course in the Law School Curriculum, 20 Ohio St. J. on Disp. Resol. 376 (2005). Law schools should include this in its curriculum because many areas of the law are being internationalized. Id. at 380. Even laws that are not internationalized. Teaching about different cultures would help students negotiating or practicing at any level in the United States because students will presumably come across many different cultures while practicing law.

By studying culture in negotiations it would be encroaching students to understand the difference in cultures. 388. Some students may not know of the differences or even if they do, gaining a deeper understanding would only help those students to become better negotiators. Even if, as some will argue that this is based more in anthropology or management rather than law, cross-cultural negotiations involve many different areas. Id. at 409. Due to the complexity of the law and the factors that effect it, “cultural differences can contribute to competition interests and desires, tension, and dispute, all of which relate to legal rights.” Id. at 410. If lawyers can “identify the ‘cultural cues,’ so that the necessary adjustments can be made and the process be allowed to pursue more constructively.” Id. This identification can be compared to the classic issue spotting that law schools teach. Id. “Without cultural recognition and issue spotting, it may be impossible to proceed to a fruitful result: toward dispute resolution in the former and application of the law in the latter.” Id. This can be taught in a similar way that issues are taught, such as practice problems with more of a description of the clients’ background, power distance and time orientation. Id. at 411.


As time goes on Cross-cultural negotiation becomes more and more prevalent in every industry.  As detailed above time orientations, space orientations, power distances, communication styles, and risk avoidance are just some of the factors that play a role in cross-cultural negotiations. There are several others and, preparing for these negotiations and learning all of these intricacies will be crucial to the result of the negotiation process. It is important to keep these factors in mind during any negotiation process because some cultures are more risk adverse than others and place a high level of importance on certain factors. Law schools should teach this because a negotiator who familiarizes themselves with the other party’s culture will ultimately be more successful in reaching a favorable outcome, and building trustworthy business relationships.

“Two Types”

By Liana Stinson

A no-contact order was issued against Keith Tharpe by Migrisus, Tharpe’s wife. Tharpe v. Sellers, 138 S. Ct. 545, 547 (2018) (Dissent). Regardless of the order, Tharpe told his wife that if she wanted to “’play dirty’ he would show her ‘what dirty was.’” Id. The next morning, Tharpe ambushed his wife and her sister, Jaquelin Freeman, by pulling his vehicle in front of the car they were in to force them to stop. Id. Once they were stopped, Tharpe pulled out a shotgun from his vehicle, aimed it at their car, and order his wife to get into his truck. Id. Tharpe then told Freeman that he was going to “f– [her] up” and then took her to the back of his vehicle, shot her, “rolled her body into a ditch, reloaded, and shot her again, killing her.” Id. Tharpe next both kidnapped and raped his wife, leaving behind Freeman’s body in the ditch to be later found by her husband while driving their children to school. Id.

Subsequently, Tharpe was convicted by a jury of malice murder and two counts of aggravated kidnapping. Id. The jury only needed two hours to return the unanimous death sentence after hearing all of the evidence. Id. The jury noted that not only did Tharpe commit a murder that was “outrageously or wantonly vile, horrible, or inhuman,” he also committed two other capital offenses at the same time: the aggravated kidnappings of Ms. Freeman and his own wife. Id. at 547-548.

Fast forward to seven years after Tharpe’s trial, Tharpe’s attorneys interviewed one of the jurors in his trial, Barney Gattie, and drew up an affidavit. Id. at 548. During the interview, Gattie stated that he knew Freeman and that her family was “what [he] would call a nice [b]lack family.” Id. Gattie then stated that “there are two types of black people: 1. Black folks and 2. N******.” Id. Thereafter, the affidavit included that Gattie thought Tharpe “wasn’t in the ‘good’ black folks category’” and if Freeman had be “‘the type Tharpe is, then picking between life and death for Tharpe wouldn’t have mattered so much.’” Id. Gattie then stated that because Freeman, along with her family, were “good black folks,” Tharpe “should get the electric chair for what he did.” Id. The affidavit even included a statement by Gattie that “[a]fter studying the Bible, “he had “wondered if black people even have souls.” Id. In regards to the other jurors, Gattie noted that some of them “wanted blacks to know they weren’t goin to get away with killing each other.” Id.

Two days later, Gattie presented an affidavit to the State saying that he “did not vote to impose the death penalty because [T]harpe was a black man,” but because “the evidence presented at trial justified it and because Tharpe showed no remorse.” Id. Gattie explained in the affidavit that although the previous affidavit through Tharpe’s attorneys was signed by Gattie, he “never swore to [it] nor was [he] ever asked if [the] statement was true and accurate” and also that he had consumed “seven or more beers” when he signed the first affidavit. Id. In regards to the statements in the first affidavit, Gattie stated that they “were taken out of context and simply not accurate.” Id. He also mentioned how he felt that Tharpe’s attorneys who took the affidavit “were deceiving and misrepresented what they stood for.” Id.

Thereafter, Tharpe moved to reopen his federal habeas corpus proceedings and claimed that the jury that convicted him of murder included a juror, Gattie, whom was biased against Tharpe simply because he was black. Id. at 545. The state court made a factual determination that Tharpe failed to show “prejudice in connection with his procedurally defaulted claim. Id. Tharpe then appealed to the District Court. Id. The District Court denied his claim because it was “procedurally defaulted in state court.” Id. Also, the District Court noted that Tharpe “failed to produce any clear and convincing evidence contradicting the state court’s determination that Gattie’s presence on the jury did not prejudice him.” Id. Tharpe then appealed to the Eleventh Circuit which agreed with the state court’s factual determination and concluded that Tharpe had “failed to demonstrate that Barney Gattie’s behavior ‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Id. Tharpe then appealed to the Supreme Court of the United States which granted certiorari.

Although the state court, before the District Court, concluded that Gattie’s vote to impose the death penalty on Tharpe was not based on race, that finding, absent “clear and convincing evidence to the contrary, is binding on the Supreme Court. However, the Court found that there was clear and convincing evidence to the contrary in this case. Id.

The affidavit produced by Tharpe was signed by Gattie which explicitly expressed his view that “there are two types of black people” and that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did.” Id. These statements, among all of Gattie’s other statements in the affidavit, would at least allow jurors to debate whether Tharpe did meet his burden by showing clear and convincing evidence to show that the state court’s factual determination was wrong. Id. Therefore, the Court concluded that the Eleventh Circuit erred when it concluded that Tharpe had failed to produce evidence to the contrary. Id.

The dissent argued that the second affidavit submitted by Gattie was significant and that, because none of the other jurors corroborated his story that they “wanted blacks to know they weren’t going to get away with killing each other,” the dissent argues that Gattie’s second affidavit was credible. Id. at 548. The dissent is however, mislead.

Regardless of whether it was true that Gattie had consumed alcoholic beverages prior to the meeting with Tharpe’s lawyers, he signed the affidavit. His signature on the affidavit affirms that those statements were told by him in response to the lawyer’s questions. There was no sign of duress in this case, being that this affidavit was taken seven years after the death sentence was imposed on Tharpe. Therefore, Gattie’s statements reflected what he truly felt, intoxicated or not.

I am extremely pleased with the Court’s holding in this case. Had the dissent become the majority, there would have been an injustice to Tharpe as well as any proceeding case where a defendant finds out later that there was any sort of bias against him by a juror which might have cause his harsh sentence and possibly subjected him/her to the death penalty. A slippery slope may have been created if the majority did not rule that the question of juror bias should be left to the finder of fact; jurors then would be free to hide their true feelings towards defendants to obtain a favorable conviction to them and then subsequently unveil those true feelings after the trial. Jurors would then intentionally try to convict those defendants that they have harsh feelings towards.

This outcome in this case, however, may have an impact on the court system. Because this case needs to now be remanded to have a jury decide whether Tharpe produced clear and convincing evidence, the case is not final. It will now be another case in the court system. If every death penalty conviction or conviction in general is found to have a possibility of bias jurors, while fairness and justice dictates they be remanded, the court system may become bogged down with all of the remands. However, because we should look at the element of fairness and justice to all persons, the jury should decide whether Tharpe met his burden of showing the jury pool was bias against him. If that is found to be the case, he has the right to a fair and just trial.

Gerrymandering in Pennsylvania

By Jacob Oldaker

In February of 2018, the Pennsylvania Supreme Court released a decision in League of Women Voters v. Commonwealth that bound Pennsylvania to a new congressional district map. League of Women Voters v. Commonwealth, No. 159 MM 2017, 2018 Pa. LEXIS 927 (Feb. 19, 2018).  This decision will upend familiar bounders and the renumbering of districts across the state may give the Democratic party a boost in the 2018 House elections.  Jonathan Lai, In Gerrymandering Case, Pennsylvania Supreme Court Releases New Map for 2018 Elections,, (last visited Apr. 12, 2018).  The new plan splits only 13 counties which is vastly reduced to when contrasted with the most recent map in 2011 that split 28 counties. Id.

“The Remedial Plan is superior or comparable to all plans submitted by the parties, the intervenors, and amici, by whichever Census-provided definition one employs,” the court wrote in its order. It also wrote that the plan is “superior or comparable” to the various map proposals on the average compactness of districts and that each district in the map has an equal population, plus or minus one person.


Much concern is brought from these changes because they appear to be favorable to the Democrats. Id.  Under the new plan, President Donald Trump would have won 10 congressional districts which is two fewer than he won in 2016 under the current map. Id.  These changes are not going unnoticed within the Republican party and they are pushing back, and have further pushed towards the Supreme Court of the United states.  Id.  The Republicans believe this has become a Constitutional issue because by taking mapmaking into the court’s own hands, they are overstepping the line drawing power that the U.S. Constitution gives to state legislature. Id.  In the mindset of the Republican party

“This Court recognized that the primary responsibility for drawing congressional districts rested squarely with the legislature, but we also acknowledged that, in the eventuality of the General Assembly not submitting a plan to the Governor, or the Governor not approving the General Assembly’s plan within the time specified, it would fall to this Court expeditiously to adopt a plan based upon the evidentiary record developed in the Commonwealth Court,” the per curiam order reads, adding that drawing a map is “a role which our Court has full constitutional authority and responsibility to assume.”  

Id.  This belief is not entirely true because the court notes that all participants in the case had opportunity to submit proposals and feedback, and those submissions guided the redrawing. Id.

This decision could have a significant impact going forward in not only local elections but in presidential elections in the future.  Pennsylvania is a key battleground state for major elections because the number of voters per political party is close to an even split. Id.  These new district lines may not only affect presidential elections but can impact politics at the state and national level as the Democratic party attempts to capitalize on favorable political trends to regain control of the U.S. House of Representatives.

Personally, I believe these new lines could add a level of competition to the districts.  New, completive districts, in the eyes of the Democrats allows the lines to be fairly drawn based on population to create an equal opportunity in each election period.  The Supreme Court of Pennsylvania needs to be conscientious in their decisions around redrawing district lines to avoid accounts of gerrymandering from either party.  There is a fine line when it comes to matters that involve elections, and the courts and political parties need to work together to avoid gerrymandering claims in the future.

Lamar, Archer & Cofrin, LLP v. Appling

by Thomas F. Lovecchio

The Supreme Court heard arguments on April 17th, 2018 in Lamar, Archer & Cofrin, LLP v. Appling. This case involves a circuit split regarding the Bankruptcy Code. Mr. Appling hired Lamar, Archer & Cofrin “Lamar” to represent him against the former owners of his business. Lamar, Archer & Cofrin, LLP v. Appling, Oyez, (last visited Apr 18, 2018). Mr. Appling had some substantial legal fees and he told Lamar that once he received his tax return, which he was expecting to be a decent amount, he would be able to pay Lamar. Id. Based on this Lamar continued representing Mr. Appling. Id. Mr. Appling’s tax refund was less than what he was expecting and told Lamar this but did not pay Lamar and instead put the money into his business. Id. “Lamar obtained a judgment against Appling and Appling subsequently filed for bankruptcy.” Id. When “Lamar initiated an adversary proceeding to collect the debt, and the bankruptcy court ruled that the amount was not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) because Lamar had justifiably relied upon Appling’s fraudulent statements. The district court affirmed.” Id.

On appeal the 11th Circuit reversed and remanded. Id. The 11th Circuit cited a split in the Circuit Court of appeals with how it construes 11 U.S.C. § 523(a)(2)(A). Id. The issue for the Supreme Court is “Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor’s … financial condition” within Section 523(a)(2) of the Bankruptcy Code. Lamar, Archer & Cofrin, LLP v. Appling, SCOTUS blog, (last visited Apr 18, 2018).

Lamar argues that a statement concerning a specific asset are not be a “statement respecting the debtor’s … financial condition within Section 523(a)(2) of the Bankruptcy Code. Lamar’s argument follows along with the 5th, 8th, and 10th Circuits.  Danielle D’Onfro, Argument preview: Court to decide whether Bankruptcy Code protects dishonest debtors (April 10, 2018 2:01 PM), Based off of this argument, Appling’s statements would be the exception to the exception and not be discharged under the Bankruptcy code. Id. Appling argues that his statements were based off of his overall financial condition, thus it would meet the exception in the Bankruptcy Code. Id.

Two key points of this case are how the Court is going to construe statement and financial condition. Statement could be narrowly construed to mean financial statements and financial documents or it could be expanded to include any statement, such as something a person says.

Next is financial condition. The statements made by Appling were about his financial condition but were ultimately about his tax return and as Lamar argues, a specific asset. I would find in favor of Lamar because Appling’s a statement about a specific asset is not about the debtor’s financial decision. First, a statement about a specific asset would only pertain to that asset. Even if it could be reasoned that one asset is indicative about a debtor’s financial condition that would require a search into the debtor’s assets as to how many assets he has. Second, while cash is often the first asset listed on a balance sheet, at the time of the statement the debtor did not have the cash he was speaking about. Since the debtor would be unable to list the tax refund as cash at the time he made the statement it should not be considered a statement about a specific asset.

DACA Changes and Implications for the Future

by Alyssa Hicks

On June 15, 2012, the Secretary of Homeland Security, Janet Napolitano issued a memorandum titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” This memorandum, also known as DACA, was a non-legislative directive instructing the Department of Homeland Security (“DHS”), more specifically Immigration Customs and Enforcement (“ICE”), Customs and Border Patrol (“CBP”), and United States Citizenship and Immigration Services (“USCIS”), that certain eligible individuals who arrived in the United States as children were able to request consideration for deferred action. These individuals would also be eligible for work authorization, but it did not grant any type of conditional citizenship or path to citizenship.

In the memo, Napolitano stated the following: “As a general matter, theses individuals lacked the intent to violate the law . . . . However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are appropriately focused on people who meet our enforcement priorities.” Not only did DACA further the interests of inculpable undocumented immigrants, but it also was a means to execute a cost-effective deportation system by focusing on individuals with bad moral character or who posed a threat to national security. President Obama supported Napolitano’s contention when he gave his remarks about DACA:  “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.”

Deferred action is a use of prosecutorial discretion to postpone a removal action against an individual for a certain period of time. Generally, “it is an administrative tool that allows an enforcement agency to prioritize who they prosecute . . . to ‘conserve limited enforcement resources’ and also ‘protect core American values of humanitarianism and fairness.’” It is not a new tool, but one that DHS has utilized for over sixty years. It is often first attributed to the deportation case of former Beatle, John Lennon. To fight for Lennon to stay, his attorney requested information under the Freedom of Information Act (“FOIA”) and found examples of individuals who were “dubbed non-priority” status. This is credited to be the first time deferred action became public. The initiative was titled “Operations Instruction,” with its purpose to identify vulnerable, long-time present, individuals who would suffer greatly if deported. This tool has even been utilized to help undocumented children, and other vulnerable individuals, who would experience extreme hardship way before DACA even existed.

An individual qualified for DACA if they could satisfy a variety of criteria including: when they arrived in the United States, how long they had lived here, and that they did not have lawful status at the time DACA would begin. There is an exception for age if the individual is currently in removal proceedings or have a final removal or voluntary departure order. Continually, DACA qualifications ensured that only the “most deserving” received such this status. Eligible applicants were required to currently be in school, have graduated, are working towards receiving a GED, or were honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Continually, the applicants must have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Applications must have entered without inspection or have expired status prior to June 15, 2012. DACA requests were reviewed on a case-by-case basis, and meeting all the requirements did not necessarily guarantee approval. DACA also granted work authorization, if that individual is able to show an economic necessity, and those who are able to show economic necessity were issued a social security number.

One of the most significant benefits for DACA recipients is that they do not accrue unlawful presence once approved. Undocumented minors receive almost no benefits from current immigration law—arguably one of biggest flaws in the Immigration and Nationality Act (“INA”). One exception benefitting minors under the INA and that is they do not accrue unlawful presence while under the age of eighteen. Despite the benefit of this exception, it starts holding children accountable for their parents’ actions the day they turn eighteen. At this point they have no way to prevent the time bars that come into effect that greatly hinder their ability to beginning citizens. Individuals who have been unlawfully present for more than 180 days but less than on year who voluntarily departs cannot return for three years. Anyone that is present for a year or more is barred from returning for ten years. Consequently, it is significant for those who receive DACA before their initial 180 days time bar begins because it will strengthen their ability to become a legally permanent resident (LPR) if they become eligible. Individuals do accrue unlawful presence time during the application process if they are over the age of eighteen.

Another benefit is that if you are denied DACA status, USCIS will not report you to ICE for being unlawfully present. Many individuals were hesitant to apply because they feared they or their family would be reported. The only circumstance that would trigger such an inquiry is if an applicant is denied because of a criminal offense, a fraudulent application, is found to be a threat to national security or public safety, or other exception circumstances. Only then, and with actual evidence, will USCIS refer the case to ICE.

DACA has awarded exceptional benefits to qualifying individuals and to our economy. Almost 800,000 individuals have received DACA status. It allows children who received education, courtesy of Plyler, to continue their educations and to rise above the poverty line that many were destined to remain. According to a survey conducted by the Center for American Process, ninety-six percent of recipients are currently employed or in school. Sixty-nine percent have higher paying jobs, eighty-nine percent have received driver’s licenses or state identifications, and twenty-one percent have bought their first car. There is an overall forty-five percent increase in the average wage, which translates to more tax revenue.

Notwithstanding, the issues with DACA are not immeasurable; with significant benefits come significant disadvantages. Even though eighty-six percent of individuals support DACA, there are many who not only take issue with this alleged form of amnesty, but also many believe the non-legislative directive is unconstitutional. DACA has also created a political division on how to best help undocumented children. Generally, Democrats believe that deferred action is an appropriate means for effectively and efficiently managing institutional resources while promoting humanitarian values. While Republicans generally view DACA as an unconstitutional use of executive authority that bypasses Congress’s role as the ultimate lawmaker. Although a majority of Republicans do not support DACA, they are willing to provide Dreamers other type of relief, but one that is discussed and executed through the legislative branch. Because of this political turmoil, legislators are currently struggling to find a solution in the midst of the revocation of DACA. My recommendation is that Congress comes together to find a permanent solution via the DREAM Act.



  1. Memorandum from Janet Napolitano, Sec’y, DHS, to David V. Aguilar, Acting Comm’r, CBP, Alejandro Mayorkas, Dir., USCIS, and John Morton, Dir., ICE, on Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children (June 15, 2012)
  2. Cobb, Naomi. Deferred Action for Childhood Arrivals (DACA): A Non-Legislative Means to an End that Misses the Bull’s-Eye, 15 Scholar 651, 661-62 (2013).
  4. Speech by President Obama June 15, 2012 at 2:09 P.M.
  5. David W. Leopold, What Legal Authority Does President Obama Have to Act on Immigration?, Bloomberg Law Reports (May 16, 2011),
  7. Michael A. Olivas, Dreams Deferred: Deferred Action, Prosecutorial Discretion, and the Vexing Cases of Dream Act Students, 21 WM. & Mary bill rts. J. 463, 519 (2013).
  8. Instructions for Consideration of Deferred Action for Childhood Arrivals, USCIS form I-821D,
  9. Consideration for Deferred Action for Childhood Arrivals Process: Frequently Asked Questions, (Oct. 23, 2014),
  10. Bono, Marisa. When A Rose is Not A Rose: DACA, The DREAM Act, and The Need for More Comprehensive Immigration Reform, 40 T. Marshall L. Rev. 193, 205-06 (2015)  
  11. Immigration and Nationality Act § 212(a)(9)(B)
  14. WONG/NILC/CAP survey of DACA recipients.

Sustainability and Poverty

by Jennifer Breneman

“Everything that we need for our survival and well-being depends, either directly or indirectly, on our natural environment.”  Preserving and conserving our environment for the current and future generations has become a hot topic.  The way to do this is through the concept of sustainability.  The Environmental Protection Agency describes the concept of sustainability with the following, “To pursue sustainability is to create and maintain the conditions under which humans and nature can exist in productive harmony to support present and future generations.” Sustainability efforts have taken off in many areas of the United States.  San Francisco, California, for example, has been a pioneer in the sustainability movement, reducing waste, reducing air emissions, and conserving water.  Interestingly, San Franciscans earning in the top 95% of the residents’ income, earn well over $400,000 a year. Two examples of sustainability initiatives seen implemented around the United States are parklets and complete streets movements.  

Parklets are typically small, temporary platforms that take up two or more street-parking spaces. They convert those parking spaces into a type of mini-park that the public can use for recreational activities.  Parklets encourage less reliance on vehicles, which cut down on emissions.  Cities such as San Francisco, Philadelphia, Sacramento, Fort Lauderdale, and Seattle, are just a few of the many cities that have been pioneers in the Parklet Program Movement.  Not surprisingly, some of the wealthiest earners reside in these cities.  For example, Seattle recently surpassed Washington, D.C., to rank among the top-three high-income cities.

Complete street movements have also taken off. Complete street ordinances promote  streets that safely accommodate pedestrians, bicyclists, children, and people with disabilities.  Chester County, Pennsylvania, adopted a complete streets ordinance for Baltimore Pike, a main roadway in the county.  The ordinance provides accommodation for people biking, people walking, people using the […] bus, and people using any other form of non-motorized transportation while still maintaining the roadway’s efficiency to move motorized vehicle traffic. Chester County,comprised of a predominantly white population with a median family income of over $100,000, is far from a poverty stricken county. These movements are formidable efforts at combating environmental degradation in this country.  The problem is that not enough efforts are being targeted toward lower-income, racially diverse areas.  Sustainable efforts must be undertaken everywhere, not just the affluent areas of the United States.

Chronic poverty creates hardships for residents in areas of employment and housing and leaves them lacking basic necessities. The poor are often exposed to pollution and environmental degradation which causes a higher incidence of health problems.  For example, Appalachia, a poverty stricken region, is home to mountaintop removal coal mining.  This coal mining uses explosives to expose coal seams under the surfaces of mountains.  Some of the health problems seen in this impoverished area include significant higher rates of birth defects.

Urban areas of poverty also see negative health consequences among their residents. A recent study that found “low-income and minority groups — in particular, poor children of color — tend to be most exposed to air pollution. As a result, these children may be more likely to suffer from chronic respiratory conditions. In fact, almost one in four impoverished Hispanic and Puerto Rican children in the U.S. have asthma, compared to “about one in 13 middle-class or wealthy white children.”” Activists in New York City have also alleged a connection between  the exhaust fumes from garbage trucks and a higher incidence of asthma among the poor children in the city.

Hazardous waste sites, municipal landfills, incinerators, and other hazardous facilities are disproportionately located in poor and minority neighborhoods. Proving the idea that poor urban areas and minorities suffer the most environmental injustice, the Commission for Racial Justice conducted a study in 1987 regarding toxic waste and race, and found “a strong link between race and location of hazardous waste facilities.” This study found that of 27 hazardous-waste landfills nationwide, a third (which represent almost 60 percent of the total hazardous waste landfill capacity) were located in Alabama, Louisiana, Oklahoma, South Carolina, and Texas. Of these, three of the largest sites were located in predominantly black-populated areas, and these three “accounted for about 40 percent of the total estimated hazardous-waste landfill capacity in the entire United States.” It appears that race was the most prominent factor in the location of commercial hazardous-waste landfills, even more prominent than household income and home values.  

More recent studies have found similar results. For example, a Massachusetts study of the locations of hazardous sites and polluting facilities in the state found that communities of color and working-class communities housed significantly more hazardous sites and facilities than wealthier communities and those with a small minority population.  Poor and colored-populations also tend to live in areas where high lead exposure is likely, due either to soil contamination or to lead paint. It seems that there is a disparity between the poor and ethnically dense areas of the United States that are in great need of sustainable efforts and the wealthy areas in which the efforts are being made.  Low-income areas which suffer most from environmental ill-effects need the sustainable efforts the most.   

Thankfully, there seems to be a growing trend among sustainability directors in U.S. cities, who are planning environmental improvements, on focusing on the most deprived areas of their cities.  These directors are working on efforts such as bikeways, community gardens and energy efficiency retrofits. One such city is Chicago. Chicago conducted a study and determined where the energy inefficient buildings were located.  It targeted low-income areas where the opportunity to help people retrofit their homes or install other energy efficiency measures was present.  Chicago then connected homeowners with utility and nonprofit retrofit programs, and set up a new call center to direct residents to the right programs, resulting in the retrofits of thousands of homes.

Ideally, the trend will continue and more cities will follow Chicago’s initiatives in remedying environmental concerns in the low-income and racially dense areas that are most affected by the problem.  Sustainability must be an ongoing effort undertaken by all for the maximization of Earth’s resources and human health, safety and welfare.




  1. Learn about Sustainability, United States Department of Environmental Protection
  2. Hasmik Djoulakian, The Top 5 Reasons Why San Francisco is California’s Sustainable City, (Dec 16, 2016)
  3. Heather Knight, S.F.’s Richest are wealthiest in the land, The San Francisco Chronicle (Mar 28, 2015)
  4. Parklet Application,
  5. Reclaiming the Right of Way: A Toolkit for Creating and Implementing Parklets, UCLA Luskin School of Public Affairs (Sep 2012)
  6. San Francisco Parklet Manual Version 2.2, San Franscisco Planning Department (Spring 2015)
  7. City of Sacramento Parklets Program Manual, City of Sacramento Department of Public Works (Mar 18, 2014),
  8. Parklet Program Application, City of Fort Lauderdale Department of Sustainable Development, (last visited Sep 20, 2017)
  9. Parklet Handbook, Seattle Department of Transportation (last visited Sep 20, 2017)
  10. Gene Balk, As Seattle incomes soar, gap grows between rich and poor, Seattle Times (Oct 6, 2014), available at
  11. Akifa Khattak, Complete Street Draft Ordinance Narrative
  12. Race/Ethnicity, Chester County Pennsylvania, available at
  13. Gerken, James. Impoverished Americans Face Environmental Health Problems, Huffington Post (Aug 29, 2012)
  14. Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality, (1st ed, 1990)
  15. Rachel Massey, Environmental Justice: Income, Race, and Health, Global Development and Environment Institute, Tufts University(2004) available at
  16. Jacob Scherr, Sustainability moves low-income neighborhoods from the fringe, (May 14, 2014, 4:30 a.m.),

American Corrections Problems: Causes and Solutions

by Coulter Ebbert

It is widely known that while the United States represents approximately 4.4% of the world’s population, it houses roughly 22% of the world’s prisoners. Within the past 30 years, the inmate population within the United States has skyrocketed from numbers in the hundreds of thousands to a population well into the millions. With roughly 70,000 or 37.8% of the nearly 185,500 inmates in the federal prison system alone being African American, 2,707 or 1.5% being Asian, 4,096 or 2.2% being Native American, and 108,410 or 58.4% being White, it is clear that the races of inmates in the Federal System alone do not accurately represent their proportions within the overall population. While some may explain this phenomenon by citing to statistics suggesting that the rates of incarceration are proportionate to the breakdown of crimes committed by members of particular race classifications, it still remains clear that regardless of the reason, the United States has a lot of people in prison.

Avlana K. Eisenberg, author of Incarceration Incentives in the Decarceration Era does an excellent job in recounting the increase in the United States’ prison population:

The United States prison population experienced an explosion beginning in the 1970s, and the United States currently incarcerates a higher percentage of its population than any other country in the world. There were approximately 200,000 people incarcerated in the  [*81]  United States in 1973, and the prison population surpassed 2 million in 2002. During this time, the per capita incarceration rate soared from 100 per 100,000 to more than 750 per 100,000. At its peak in 2009, the U.S. prison population exceeded 2.4 million, with more than 1% of the country’s adult population behind bars. The phenomenon of mass incarceration has disproportionately affected men and people of color, with black males experiencing the highest rates of incarceration; approximately one in nine black men age twenty to thirty-four is currently incarcerated, and one in three black men will at some point spend time in jail or prison.


In reflecting on the prison population rising throughout the 1970’s, 1980’s, and 1990’s, commentators and scholarly figures hypothesis as to the cause of the increase. As Carl Takei discussed in his article, changes in law enforcement priorities and sentencing policies resulted in more convictions and longer sentences. Takei accounts for the increased incarceration rate:

At both state and federal levels, legislators responded [to the perceived urgency of the War on Drugs] by approving increasingly harsh sentencing laws, including mandatory minimum sentences, “Truth in Sentencing,” Three Strikes laws, and stiff sentencing guidelines. The same dynamics led legislators to ramp up the size and aggressiveness of the police presence in cities – particularly in Black and Brown neighborhoods. Both liberals and conservatives supported many of these changes – including the shift from indeterminate sentencing to the use of sentencing guidelines, which liberals incorrectly believed would reduce racial disparities and biases in sentencing.

The war on drugs, the “tough on crime” mindset, and changes in criminal law such as mandatory minimums and three strike policies seem to be common factors in explaining the increase of the United States’ prison populations. Other experts blame the increased population of prisons on profit driven incentives, as Avlana K. Eisenberg explains:

It is common to attribute the rise of mass incarceration in the United States to the profit-seeking private sector and the emergence of a “prison-industrial complex.” As the AFL-CIO, the largest federation of trade unions in the United States, has suggested: “Our nation’s profit-driven justice system is producing a level of mass incarceration that is anything but just.” Some private corporations do advocate for pro-incarceration policies, even describing prisons as a kind of “product” to be sold like “selling cars or real estate or hamburgers.” But suggesting that mass incarceration is solely the result of corporate greed paints an incomplete picture.

Although private prisons have, in the past, played a role in housing inmates on behalf of federal and state prison systems for a profit, the private prison industry has been on a steady decline within recent years. The Federal prison system has enacted plans which seek to reduce and ultimately phase out the federal government’s use of private prison companies to house federal inmates. A result of this plan being enacted to phase out private prison companies would be a decrease on lobbying in favor of strict sentencing guidelines more emphasis on reducing the amount of those imprisoned. A further driving factor for lowering the amount of those Americans incarcerated are the fiscal reproductions and demands of housing millions of men and women within these facilities.

While identifying causal factors in retrospect is important, it is much more difficult to develop solutions which will address the issues within the United States correctional system. Currently, the Federal Bureau of Prisons (“BOP”) maintains programs and classes within their facilities in the hopes that they may reduce recidivism and ultimately lower the population of inmates within the Prison system. The Federal Bureau of Prisons requires those incarcerated within the federal system who do not have a high school diploma, or an equivalent thereof, to complete an adult literacy program for a minimum of 240 instructional hours or until they receive their GED. Furthermore, the BOP requires non-English speaking inmates to take English classes so they may successfully speak English as a second language. The BOP also provides opportunities for inmates to learn trade skills through occupational training in the hopes that these marketable skills will aid inmates in finding work upon their release from prison, thus reducing their chances of reoffending. Reports indicate that those inmates who worked within prison industries or occupational training were 24% less likely to recidivate and 14% more likely to be gainfully employed after release from prison than other inmates. The BOP also has plans to revitalize and reform their Federal Halfway House programs, phase out the use of private prisons in the housing of federal inmates, and enact procedures which would help inmates maintain family connections while they are incarcerated and address mental health issues for inmates.   

While, as discussed above, the population of those incarcerated had been on the rise within the recent decades, the BOP reports decrease within the Federal prison population. With the BOP reporting nearly 13,000 fewer inmates at the end of the 2016 fiscal year, one must wonder if the decrease is a result of the above-mentioned programs, or rather a change in the public perception of incarceration within our society. While there is little doubt that a plethora of Americans still abide by the “tough on crime” approach, many within the United States recognize and understand the fallacies of the War on Drugs and the idea of mandatory sentencing for such offenses in the least.  As of 2017. Almost half, 80,585 or 46%, of the Federal Bureau of Prisons’ inmates are incarcerated because of drug related offenses. Many of those inmates locked up on drug related offenses may be classified as non-violent offenders who have received their sentences due to mandatory minimums passed by state and federal legislatures that judges must abide by.

It is important to note, that while it is absolutely vital to discuss and appreciate those steps which are taken to improve the lives of those already convicted and imprisoned, and to decrease recidivism rates, it is imperative that prevention measures are discussed and considered so as to prevent persons convicted of lesser crimes from being disproportionately sentenced and imprisoned. Two bills were introduced to Congress in October of 2017: S. 1917 – Sentencing Reform and Corrections Act of 2017; and S. 1933 – Smarter Sentencing Act. Both bills have received bipartisan support and aim to reform particular sentencing practices as well as provide necessary funding to programs in hopes to reduce recidivism rates.

The Sentencing Reform and Corrections Act of 2017 was introduced on October 4, 2017 by Republican Senator for Iowa, Charles Grassley. The Bill proposes provisions which would reduce mandatory minimum sentences for those convicted of nonviolent drug offenses, increase funding for BOP programs which seek to lower recidivism rates, and other such provisions which aim to challenge the corrections and sentencing issues we face in the United States.

The Smarter Sentencing Act of 2017 was introduced on October 5, 2017 by Republican Senator for Utah, Mike Lee. The Smarter Sentencing Act proposes to revitalize the manner in which Federal Judges may sentence those convicted of non-violent drug offences. This act will allow for these experienced judges to differentiate between those offenders who commit minor drug offenses and those offenders who commit serious drug offenses and sentence them accordingly without being constrained by outrageous or excessive required sentencing guidelines. Id.

Both of these bills were proposed in hopes of correcting the wrongs that plague the corrections system and the criminal justice system as a whole. Measures taken by the Federal Bureau of Prisons and the legislature give those who see the disparities within the corrections system hope that they may be addressed. If the current plateau and steady decrease of the prison population persists, it may be foreseeable that further action from the proper authorities may cause the population to continue to decrease.



  1. Michelle Ye Hee Lee, Does the United States really have 5 percent of the world’s population and one quarter of the world’s prisoners?, The Washington Post (Apr 30, 2015)
  2. Offenses Statistics, Federal Bureau of Prisons (Sep 23, 2017)
  3. Avlana K. Eisenberg, Incarceration Incentives in the Decarceration Era, 69 Vanderbilt L. Rev. 71, 80-81 (2016).
  4. Carl Takei, From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to A For-Profit Nightmare, 20 U. Pa. J. L & Soc. Change 125, 131 (2017).
  5. Prison Reform: Reducing Recidivism by Strengthening the Federal Bureau of Prisons, United States Department of Archives (Mar 6, 2017)
  6. Federal Bureau of Prisons Program Fact Sheet, Federal Bureau of Prisons, (Oct 2017)
  7. Sentencing Reform and Corrections Act of 2017, H.R. 1917, 115th Cong. (2017).
  8. Smarter Sentencing Act of 2017, H.R. 1933, 115th Cong. (2017).

The Forgotten People

by Terry Davis

The United States faces many issues today and we are bombarded with them through news and social media outlets. However, we no longer hear about the plights and struggles of the Native Americans in our country.  They are the forgotten ones of our society. You hear the words Native American today and many of us liken that to history or sport’s mascots. It is almost as if we forgot that they are reservations of Native Americans throughout this country. They should not be remembered for failed assimilation attempts or even their forced journey to undesirable land in the Midwest. They should be seen as an important cog in what makes the country great and not some group that we read about in history books.

Growing up as a kid, my initial introduction to who Native Americans are was through playing cowboy and Indians and through old western films that portrayed them as the uncivilized savages. After that, in grade school we learned how peaceful early Pilgrims were to the Natives during the first American Thanksgiving, and how great of a gesture it was for these people to invite “friends of the wilderness” to a meal. Later on in school you begin to learn of early Native American conflicts with settlers: siding with the British based on promises to keep their land, the Trail of Tears, assimilation, The Indian Wars ending the late 19th century. Beyond this, Native American history ends for most of us. History does not end there for Native Americans. Since that time they continue to push for further recognition and sovereignty in a country where they’ve lived longer than those who seek to control their rights.

The best place to start in understanding the state of the Native American race in relation to the rest of the United States and where they stand in our society today is to look at their history briefly. The Native Americans were in the United States long before settlers arrived from Europe. They interacted with settlers creating a variety of alliances with some countries and opposed by others. Diseases massively decimating their numbers ravaged much of the population in the 17th and 18th century. With the conclusion of American independence, many Native American tribes attempted to assimilate into American culture while others sought to remain secluded. Their decision of seclusion would ultimately be made for them with Andrew Jackson’s Indian Removal Act of 1830. This allowed him to send all Native Americans East of the Mississippi to territory in the West by giving up their lands. Native Americans had went through this ever since Europeans set foot in the United States where they were slowly shoved further away from the coast.

Native Americans had simply been given land that no other settler currently wanted.  As time progressed into the middle of the 19th century land was being claimed more and more in the west as settlers made their great exodus. This created tension as settlers wanted land Native Americans now possessed. Once again the Indian Wars would resume where Native Americans battled for freedom and protection of their property. These skirmishes only slowly decimated the Native Americans who were once again succumbed by defeat. This led to many Native Americans living on reservations that are still in existence today.

Native Americans yet were still not done with the United States government intervening in their lives. Throughout the late 19th century and early 20th century many youths would be taken from their reservation lives to be sent to trade and industrial schools to be educated like Americans at the time. Notably an Indian industrial school was opened up in Carlisle, Pennsylvania to serve this purpose where the current Barracks is located. Many of these children were successful in becoming “Americanized,” but many would never see their parents from the reservation again. It was the United States intervening based on what they found to be the right thing to do.

Today, Native American reservations consist of 22% of our country’s 5.2 million Native Americans. The rest live amongst us. They are in the same boat as other minorities in the United States who typically struggle with economic issues. The conditions on reservations are even worse. There is a large scarcity of economic opportunity and jobs for citizens of these tribal lands. While they seek self-sufficiency, they are also reliant on government assistance that may never come. Four of ten Native Americans on reservations are unemployed.  Of those who are employed, many are making below poverty wages. Coupled with that is the frequency of drug and alcohol addictions that many suffer from to cope with their lives. These people are in no better condition than the homeless in our streets.

With these harsh living conditions and limited success of reservation life, why are these individuals forgotten? They are forgotten because America has already wiped their hands clean of them. People struggle to relate to someone that they have seldom if any interaction with. How often do we come across Native American’s on a daily basis? I am willing to bet the number is very little. How much news representation do Native Americans receive? The only story I can remotely remember are the protests of Native Americans who were being removed from their reservations or suffering poor drinking water due to oil drilling on reservations. Beyond this story, Native Americans receive very little media attention. We know that they exist on some remote areas of the United States, but we do not necessarily relate to their plight. They are very similar to the homeless we witness in our cities on a daily basis that we view, but turn a blind eye to. The only difference between the two is they are not in our face. We are confronted with the homeless routinely so we are always reminded that they are there. However, unless you live close to a reservation you are unlikely to be confronted with their struggle.

How do we then make a difference and better the lives of our Native Americans? First, we educate the masses regarding their struggles and understanding of their culture. This is not easy, as America today suffers from the same hatred towards other minorities that continues to get attention in our society. An open forum does not change the lives of the Native Americans, but it changes the lives of us as outsiders who become just a little bit more accepting of others even if they differ from us.

The largest change must come within our Federal government to address the problems within the reservation life of their citizens. The economy of these tribal lands is the first issue that needs to be reviewed. The United States has made efforts in many geographical regions of the country to provide economic relief. For instance inner cities have received additional funds in efforts to rebuild homes, bring back businesses, and improved the visual appearance. These are things that reservations have been neglected from receiving by the federal or local governments. This decision must be based on the fact that outsiders do not visit reservations and the only ones who see them are Native Americans unlike cities that are seen by all. This again indicates my earlier point that America has turned a blind eye to the plight of Native Americans to the point that there is no concern to help reservations succeed. This is the worst kind of attitude to have because it prolongs a barrier between Native Americans and success. More importantly it prolongs a barrier between Native Americans of reservations and the rest of the United States citizenry.

Native American reservations are in need of economic growth in order to succeed in today’s civilization. As indicated, the unemployment rate shows that the lives of these people suffer greatly as a result. Many may argue that Native Americans have lavish casinos that help their reservations prosper. This is an inaccurate statement. Casinos are not a fact of life on every reservation. Those reservations that do have them are ones that are relatively close to other economic markets or larger populations. Even these casinos fail to employ many members of the reservation and those that are employed only benefit greatly if they are at the top of the company’s hierarchy. Finally, often times the presence of casinos results in outside investors who are granted access to reservations and are the ones who truly profit from the creation of casinos.

For an economy to grow, banking institutions must be available to help provide individuals with standard loans, and provide small businesses and industries with the necessary amount capital to page for wages, materials, and other developmental costs. These are simple things that a small business owner outside of a reservation takes for granted, but is a barrier to those on a reservation. Banks must be made available to help Native Americans begin any successful business venture that can improve life standards.

In order to help reservations succeed financially, direct capital investments into reservation businesses, housing, and infrastructure. Lending standards from banks must be based on tribal needs and conditions and not the bank shareholder demands. It is not feasible for reservations to meet this requirement without lending institutions willingness to be adaptable to tribal needs. We must embrace a culture of creativity and innovation in financial products and technology the same way other parts of the United States are embraced. Allowing and supporting a culture of economic development and funding by the government and lending institutions is a pivotal way for the forgotten to become members of the known.



  1. G. Guedel, Capital, Inequality, and Self-Determination: Creating a Sovereign Financial System for Native American Nations, 41 Am. Indian L. Rev.1 (2016).
  2. Danielle Delaney, The Master’s Tools: Tribal Sovereignty and Tribal Self-Governance Contracting/Compacting, 5 Am. Indian L. J. 2 (2017).