Pandemics, Risks, and Remedies

Introduction

The coronavirus (“COVID”) pandemic exposed America’s brittle reliance on incarceration as means of promoting justice and social welfare. For each criminal detention site, a single prisoner infection ultimately threatened the entire institutional community. The risk of COVID infection in jails and prisons was, for that reason, more than just pervasive; it was also lethally systemic.1.For a longer explanation of what I mean by “systemic risk,” see infra Part I.Show More Prisoners were sardined behind bars, and the contagion’s presence at any single facility produced rates of infection many times higher than they were in the free world.2.The Marshall Project collects state-by-state data about infection and mortality in state and federal prisons, and it presents comparisons between in-prison and out-of-prison rates. SeeA State-by-State Look at Coronavirus in Prisons, Marshall Project [hereinafter State-by-State Data], https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/DAW8-T26Q] (last updated June 4, 2020); see also, e.g., COVID-19 Infection Tracking in NYC Jails, Legal Aid Soc’y (May 27, 2020), https://legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ [https://perma.cc/8MNR-RQ 7U] (observing that the coronavirus infection rates for inmates and staff of New York’s Department of Corrections, at 8.72% and 12.66%, respectively, vastly exceed the infection rate for the general population of the state of New York, which is 1.90%) (data accurate as of June 9, 2020).Show More

The American legal system had a flat-footed response to COVID’s unique threat.3.I am deliberately omitting from this discussion the efforts of lawyers who represent non-citizens detained by U.S. Immigration and Customs Enforcement (“ICE”). The critique of such detention differs in meaningful ways from the critiques of mass incarceration that relate to my thesis here—although COVID presents a similar threat in ICE facilities.Show More Lawyers and advocacy groups fought furiously for legal remedies,4.See, e.g., Press Release: ACLU Sues Oakdale Federal Prison for Release of Those Most at Risk from COVID-19, ACLU (Apr. 6, 2020), https://www.aclu.org/press-releases/aclu-sues-oakdale-federal-prison-release-those-most-risk-covid-19 [https://perma.cc/8WY8-ZSCL] (announcing lawsuit to secure discharge of prisoners from Oakdale federal penitentiary in Louisiana).Show More but their efforts largely failed to prevent infection and death on a massive scale.5.SeeRadley Balko, Stopping Covid-19 Behind Bars Was an Achievable Moral Imperative. We Failed., Wash. Post (May 1, 2020), https://www.washingtonpost.com/opinions/­2020/05/01/stopping-covid-19-behind-bars-was-an-achievable-moral-imperative-we-failed/ [https://perma.cc/45CG-5GLQ]; see also infranotes 8–11 and accompanying text (setting forth representative failures). As of June 9, 2020, there were at least 40,656 cases of coronavirus reported for people in prisons (not jails) and 496 deaths. SeeState-by-State Data, supranote 2. There were an additional 8,471 cases among prison staff and 34 deaths. See id.Show More The boogeyman of violent recidivism frustrated efforts to secure wholesale remedies, and already over-taxed criminal justice institutions were unable to provide case-by-case relief at the speed and scale necessary to protect detained populations.6.SeeSandra E. Garcia, U.S. Prison Population Remained Stable as Pandemic Grew, N.Y. Times (May 14, 2020), https://nyti.ms/3cu58Xc [https://perma.cc/Y4R4-NAC8] (“The United States prison population remained stable in the early months of the year, decreasing by just 1.6 percent from January through March even as prisons emerged as incubators for the spread of Covid-19 . . . .”).Show More

There is a temptation to view the COVID-prisoner spectacle primarily as a failure of political and bureaucratic will—exaggerated fear of released offenders swamping the social returns on wholesale discharge. That account is not wrong so much as it is incomplete. I argue that the failure to adequately release criminal detainees also reflected a deficit in the deep structure of American discharge remedies. Specifically, COVID exposed a mismatch between pandemic risks that were systemic and remedies that were not. A single infection could decimate an entire facility, but jurisdictions lacked discharge mechanisms capable of effectuating speedy release at sufficient scale.7.Speedy discharge is especially important during a pandemic because, among other things, an earlier discharge means that a discharged prisoner is less likely to bring an infection from a facility into the broader community.Show More

I proceed in five Parts. In Part I, I specify the grounds for characterizing COVID as a systemic risk to prisoners and their adjacent communities. In Parts II through IV, I demonstrate the remedial deficit—systemic health risk without systemic remedies—by showing that existing discharge mechanisms are too slow, require too much multilateral unanimity, and vest discharge powers in the wrong institutions. In Part V, I suggest that the key to closing the remedial deficit tracks a broader intuition about decarceration, and that it requires jurisdictions to concentrate discharge powers in decision makers closer to acutely affected localities.

I. COVID Risk and Criminal Detention

American criminal detention was ground zero for COVID outbreaks. By early May 2020, of the ten biggest U.S. COVID clusters—meaning outbreaks connected to a particular institution—seven were in jails or prisons.8.SeeCoronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html [https://perma.cc/­FJ8G-YRMR] (screen capture on file with author).Show More Over eighty percent of the 2500 prisoners at the Marion Correctional Institution in central Ohio tested positive, giving it the morbid distinction as the country’s single biggest COVID hot spot.9.SeeEditorial: Prison COVID Outbreak Aided by Crowding, Columbus Dispatch (May 3, 2020), https://www.dispatch.com/opinion/20200503/editorial-prison-covid-outbreak-aided-by-crowding [https://perma.cc/5TYF-6X98].Show More The infection rate at New York City’s Rikers Island facility was over six times the rate in the surrounding community, which was itself the early metropolitan epicenter of the U.S. outbreak.10 10.See Josiah Bates, Campaigns, Fundraisers Work To Bail New York City Inmates amid COVID-19 Outbreaks in Jails and Detention Centers, Time (Apr. 17, 2020), https://time.com/5821512/bail-campaigns-new-york-inmates-coronavirus/ [https://perma.cc/­RHQ4-XCP3].Show More Two months after American outbreaks began, seventy percent of the federal prison inmates taking tests were COVID-positive.11 11.See Michael Balsamo, Over 70% of Tested Inmates in Federal Prisons Have COVID-19, Associated Press (Apr. 29, 2020), https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f.Show More Because of limitations on detection and testing, moreover, the topline numbers undercount the crisis.12 12.SeePeter Eisler et al., Across U.S., COVID-19 Takes a Hidden Toll Behind Bars, Reuters (May 18, 2020), https://www.reuters.com/investigates/special-report/health-coronavirus-usa-jails/ [https://perma.cc/9MWB-H49J].Show More

The reasons why COVID infection was so acute inside criminal detention facilities are intuitive. Jails and prisons are under-funded, over-crowded, and populated by detainees who are disproportionately susceptible to illness.13 13.See Laura Hawks et al., COVID-19 in Prisons and Jails in the United States, JAMA Internal Medicine, JAMA Network (Apr. 28, 2020), https://jamanetwork.com/journals/­jamainternalmedicine/fullarticle/2765271 [https://perma.cc/Z6Z6-T82S]; Weihua Li & Nicole Lewis, This Chart Shows Why the Prison Population Is So Vulnerable to COVID-19, Marshall Project (Mar. 19, 2020), https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-population-is-so-vulnerable-to-covid-19 [https://perma.cc/4ZRQ-TMT2]; Michael Tonry, From Policing to Parole: Reconfiguring American Criminal Justice, 46 Crime & Just. 1, 2 (2017).Show More These are places that house older, sicker people with complex medical needs,14 14.SeeEmily Widra, Since You Asked: How Many People Aged 55 or Older Are in Prison, by State?, Prison Pol’y Initiative (May 11, 2020), https://www.prisonpolicy.org/­blog/2020/05/11/55plus/ [https://perma.cc/K3VR-7UN7].Show More and where “social distancing” is impossible, yet the facilities typically have dismal sanitation and ventilation, and otherwise inferior health infrastructure.15 15.SeeClark Neily, Decarceration in the Face of a Pandemic, Cato Inst. (Apr. 30, 2020), https://www.cato.org/blog/decarceration-face-pandemic [https://perma.cc/8TW5-W9E4]; Megan Wallace et al., COVID-19 in Correctional and Detention Facilities—United States, February–April 2020, CDC (May 15, 2020), https://www.cdc.gov/mmwr/volumes/69/­wr/mm6919e1.htm [https://perma.cc/5CBB-N5SP]. For example, even in late April 2020, the Metropolitan Detention Center in New York still lacked simple procedures to identify prisoners with COVID, prevent spread, and provide care. Facility Evaluation: Metropolitan Detention Center COVID-19 Response, Chunn v. Edge, No. 20-cv-01590, at 1–2 (E.D.N.Y. Apr. 30, 2020).Show More Once the infection arrives at a criminal detention facility, it rips through the population like a tornado.

Many of the same circumstances that facilitate prisoner-to-prisoner transmission also facilitate transmission to staff and visitors,16 16.Because of the risk of visitor transmission, prisons across the country have restricted visitor access. SeeBrenna Ehrlich, Are Prisons Doing Enough To Prevent Coronavirus Outbreaks?, Rolling Stone (Mar. 12, 2020), https://www.rollingstone.com/culture/culture-features/prisons-covid-19-966251/.Show More who then carry it into the free world.17 17.See Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/upshot/­coronavirus-jails-prisons.html [https://perma.cc/HT3W-UA5W].Show More The prison towns where the correctional staff live are disproportionately rural, and the “rural mortality penalty” attributable to poorer health infrastructure in such areas makes these communities particularly vulnerable to the pandemic.18 18.SeeArthur G. Cosby et al., Growth and Persistence of Place-Based Mortality in the United States: The Rural Mortality Penalty, Am. J. Pub. Health (Dec. 19, 2018), https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304787 [https://perma.cc/X4T6-R5BT]; Jonathan Ben-Menachem, Coronavirus Exposes Precarity of Prison Towns, Appeal (Apr. 21, 2020), https://theappeal.org/coronavirus-prison-towns/ [https://perma.cc/R45Q-WW58].Show More The incidence of contagion in America’s criminal detention facilities therefore threatens not just the prisoners but also the fragile rural ecosystems that house them.

In the financial context, “systemic risk” describes the threat to an economic system from a chain reaction in which a single adverse economic event causes substantial, cumulative loss across the entire system.19 19.SeeAdam J. Levitin, In Defense of Bailouts, 99 Geo. L.J. 435, 443 n.20 (2011) (collecting definitions); Steven L. Schwarcz, Systemic Risk, 97 Geo. L.J. 193, 197 (2008)(identifying the inclusion of a chain reaction as a commonality across definitions).Show More The finance literature uses the term “contagion” to describe whatever phenomenon transmits knock-on effects across the system.20 20.See, e.g.,David A. Skeel Jr., States of Bankruptcy, 79 U. Chi. L. Rev. 677, 718 (2012) (describing three different types of market contagion).Show More In the COVID context, however, the public health terminology is not a metaphor. For my purposes, the systems are the detention facilities and the local communities to which their staff and visitors belong, and the contagion is COVID transmission. Because of (1) how aggressively COVID moves across these systems, (2) the unique vulnerability of a population ravaged by chronic diseases, substance abuse, and age-related complications, and (3) the third-rate remedial health infrastructure, the systemic risk is enormous. The entire community (the system) shares the extraordinary risks associated with a single infection. As I explain in Parts II through IV, existing mechanisms for prisoner discharge are remarkably ill-equipped to meet the scale and timing of these systemic risks.

Systemic risk also justifies a normative assumption I make in the balance of this Essay—that there is moral value in substantial prisoner discharge during the COVID pandemic. Before COVID, political debates over the wisdom of mass incarceration raged, even if the pertinent empirical work rather lopsidedly demonstrated its senselessness. That data generally came down in favor of familiar arguments: that longer sentences did not meaningfully deter future offending,21 21.See Rachel E. Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration 42–43 (2019); Council of Econ. Advisors, Economic Perspectives on Incarceration and the Criminal Justice System 37 (2016); Nat’l Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences 139–140 (Jeremy Travis et al. eds., 2014).Show More that well-run treatment programs are better at reducing recidivism risk,22 22.SeeFrancis T. Cullen, Rehabilitation: Beyond Nothing Works, in 42 Crime & Just., Crime & Justice in America, 1975–2025, at 299 (Michael Tonry ed., 2013); Francis T. Cullen et al., Reinventing Community Corrections, in 46 Crime & Just., Reinventing American Criminal Justice 27 (Michael Tonry & Daniel S. Nagin eds., 2017).Show More that longer incarceration is often criminogenic,23 23.SeeBarkow, supranote 21, at 46.Show More that prison time imposes huge costs on innocent family members and affected communities,24 24.See Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation, 111 Q.J. Econ.319, 347 (1996); see also, generally, Donald Braman, Doing Time on the Outside: Incarceration and Family Life in Urban America (2007) (comprehensively exploring the effect of incarceration on families and affected communities).Show More that mass incarceration shatters budgets,25 25.SeePeter Wagner & Bernadette Rabuy, Following the Money of Mass Incarceration, Prison Pol’y Initiative (Jan. 25, 2017), https://www.prisonpolicy.org/reports/money.html [https://perma.cc/WJ45-SD2U]Show More that states over-sentence because of moral hazards,26 26.See Franklin E. Zimring & Gordon Hawkins, The Scale of Imprisonment 140 (1991).Show More that the social costs disproportionately burden communities of color,27 27.SeeBruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621 Annals Am. Acad. Pol. & Soc. Sci. 221, 233–41 (2009).Show More and so forth.

Because COVID presents systemic risks on top of all of the other evidence favoring decarceration,28 28.The literature arguing in favor of decarceration is massive, and I join the basic view that mass incarceration has been an economic and social disaster. See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 127–59 (2010) (arguing that mass incarceration functions as a means of racial control); Barkow, supranote 21 (urging a more evidence-based, technocratic treatment of incarceration, typical of the cost-benefit approach taken by administrative agencies); John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How To Achieve Real Reform (2017) (scrutinizing the role of prosecutors in mass incarceration).Show More I assume for the purposes of this Essay that decarcerating during the COVID outbreak is normatively desirable.29 29.Cf., e.g., Neily, supra note 15 (characterizing the position of COVID decarceration as being supported by “all but the most obtuse proponents of mass incarceration”).Show More I do not, for example, answer empirically unsupported arguments about how the social cost of incremental recidivism might exceed the social benefit of COVID-based discharge.30 30.See, e.g., Sean Kennedy, Maryland Should Not Release Prisoners. It’s Safer for Everyone, Wash. Post (Apr. 27, 2020), https://www.washingtonpost.com/opinions/­2020/04/27/­maryland-should-not-release-prisoners-its-safer-everyone/ [https://perma.cc/MM2M-UTPZ]; Craig McCarthy, Dozens of Rikers Inmates Arrested Again After Coronavirus Release, N.Y. Post (May 12, 2020), https://nypost.com/2020/05/12/over-100-inmates-rearrested-after-their-coronavirus-release/ [https://perma.cc/E5Y4-BALJ].Show More Individual acts of violent reoffending might be evocative political arguments,31 31.See, e.g., Zachary A. Siegel & Leo Beletsky, Why We Shouldn’t Reward Fearmongering in Criminal Justice Reporting, Appeal (May 19, 2020), https://theappeal.org/pulitzer-prize-matt-bevin-commutations/ [https://perma.cc/E5M2-SC5Y] (discussing how sensationalistic reporting produced political blowback).Show More but the actual risks are simply too lopsided.32 32.See generallyJ.J. Prescott et al., Understanding Violent-Crime Recidivism, 95 Notre Dame L. Rev. 1643, 1647 (2020) (reporting extensive data analysis of recidivism rates for those convicted of violent crimes and concluding that, in a social welfare calculation, early release is usually an appropriate policy response).Show More Instead, and assuming that there is social value in speedy, scalable discharge during a pandemic, I train my focus on the remedial deficit.

II. Civil Rights Litigation

The systemic remedy that jumps to most minds is class action relief under federal civil rights statutes—specifically, under the federal habeas corpus provisions33 33.See28 U.S.C. §§ 2241, 2254, 2255 (2012).Show More and 42 U.S.C. § 1983. Such litigation was indeed widespread,34 34.SeeUCLA Covid-19 Behind Bars Data Project, UCLA Law, https://law.ucla.edu/­centers/criminal-justice/criminal-justice-program/related-programs/covid-19-behind-bars-data-project/ [https://perma.cc/FT5W-7V8E] (last visited May 6, 2020) (tracking such litigation).Show More and the complaints sometimes subclassed the plaintiffs into pre-trial and post-conviction detainees.35 35.See, e.g., Class Action Complaint for Declaratory and Injunctive Relief and Petition for Writs of Habeas Corpus, Banks v. Booth, No. 1:20-cv-00849, at 29–30 (D.D.C. Mar. 30, 2020).Show More Additionally, the plaintiff class often included a medically vulnerable subclass that sought relief above and beyond the relief sought by the remainder, usually discharge or some other time-bounded physical removal from the vulnerable facility.36 36.See, e.g., Class Action Complaint, Money v. Pritzker, No. 1:20-cv-02093, at 40–42 (N.D. Ill. Apr. 2, 2020).Show More The Section 1983 claim was usually the vehicle for seeking changed conditions, and the habeas claim was usually the vehicle for seeking release.37 37.See, e.g., Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief, Livas v. Myers, No. 2:20-cv-00422, at 27–29 (W.D. La. Apr. 6, 2020) (seeking discharge under 28 U.S.C. § 2241); Class Action Complaint and Application for Temporary Restraining Order and Other Injunctive Relief, Valentine v. Collier, No. 4:20-cv-01115, at 32–34 (S.D. Tex. Mar. 30, 2020) (seeking changed conditions under 42 U.S.C. § 1983).Show More

As COVID-discharge litigation unfolded,38 38.As of May 19, there were over 100 lawsuits nationwide seeking discharge or other ways to “reduce overcrowding and infection risks in jails.” Eisler et al., supra note 12.Show More however, the limits of the civil rights remedies became apparent. First, because both involved adversarial judicial process, they simply took too long. Second, the standard of care linked to the underlying Eighth and Fourteenth Amendment claims—that facility operators not be “deliberately indifferent”—proved exceptionally easy for the government to meet. Third, there were serious doctrinal problems with each remedy, including exhaustion requirements, that reduced the value of the federal forum.

A. Habeas Corpus

The result of a successful habeas class action would be a declaration that a particular custody category is unlawful, and an order that class-member-prisoners be discharged.39 39.The use of the class action mechanism in habeas cases is rare, and the Supreme Court has never formally approved it. SeeJennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (2018) (Thomas, J., concurring in part and concurring in the judgment) (citing Schall v. Martin, 467 U.S. 253, 256 n.10 (1984)).Show More Most plaintiff classes seeking a habeas remedy nevertheless encountered obstacles that were insurmountable: the showing necessary to prove the underlying constitutional violation was too high, the habeas vehicle too closely resembled conditions-of-confinement litigation that courts prefer to funnel through Section 1983, and exhaustion requirements forced plaintiffs to spend precious time seeking inferior state and administrative remedies. Even if plaintiffs could prevail on the most expedited litigation calendar conceivable, moreover, they would spend weeks or months waiting for the ultimate discharge order.40 40.In the COVID litigation over conditions at the Elkton Federal Correctional Institution, initially considered one of the very biggest prisoner successes, and which resulted in a later-reversed order to release medically vulnerable detainees, there was still significant lag. The emergency action was filed on April 13. SeeEmergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief, Wilson v. Williams, No. 4:20-cv-00794 (N.D. Ohio Apr. 13, 2020). Even though the district court ordered relief nine days later, the order gave the facility two weeks to comply. SeeWilson v. Williams, No. 20-3447 (6th Cir. May 4, 2020). There was considerable litigation in which the plaintiffs sought more aggressive compliance with the district court’s preliminary order, and the Sixth Circuit did not finally rule on the preliminary injunction until June 9—when it vacated the lower court order. See Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). Had the plaintiffs won in the Sixth Circuit, there would have been a two-month lag.Show More

First, habeas class plaintiffs seeking COVID-based discharge must show an egregious custodial defect amounting to a constitutional violation,41 41.See28 U.S.C. §§ 2241(c)(3) & 2254(a) (2012). Section 2255(a) cognizability is slightly different, but not in ways that implicate my discussion here.Show More and the decisional law on the underlying constitutional question is steep terrain. (Section 1983 plaintiffs must show the same thing.) The Eighth Amendment protects post-conviction detainees from unlawful conditions of confinement,42 42.SeeFarmer v. Brennan, 511 U.S. 825, 832 (1994).Show More and the Fourteenth Amendment provides parallel protection to pre-trial detainees.43 43.SeeCity of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).Show More For these challenges, a claimant must usually prove that corrections officials were “deliberate[ly] indifferent” to a particular risk that jeopardized the health and safety of a prisoner.44 44.SeeWilson v. Seiter, 501 U.S. 294, 303 (1991). At least one federal court, however, has determined that a pre-trial Fourteenth Amendment claimant need not prove deliberate indifference, because pre-trial detention cannot be conceptualized as punishment. See Banks v. Booth, No. 1:20-cv-00849, at 8–9 (D.D.C. June 18, 2020).Show More Supreme Court precedent makes clear that deliberate indifference to serious medical needs violates the Federal Constitution.45 45.SeeEstelle v. Gamble, 429 U.S. 97, 104 (1976).Show More

Historically, winning under the deliberate indifference standard is difficult,46 46.SeegenerallyJoel H. Thompson, Today’s Deliberate Indifference: Providing Attention Without Providing Treatment to Prisoners with Serious Medical Needs, 45 Harv. C.R.-C.L. L. Rev. 635, 637 (2010) (discussing the inability of prisoner claimants to meet the deliberate indifference standard).Show More and the early signs for those seeking COVID-based discharge are consistent with that history.47 47.But see Ruling on Motion for Temporary Restraining Order and Motion To Dismiss, Martinez-Brooks v. Carvajal, No. 3:20-cv-00569, at 42–57 (D. Conn. May 12, 2020)[hereinafter FCI Danbury Order] (awarding temporary restraining order (“TRO”) in part based on the expectation that plaintiffs would prevail on deliberate indifference theory).Show More In class litigation seeking improved COVID-era conditions in a Texas-based facility, for example, the Fifth Circuit held that it would not assess liability when a facility took some steps to address health concerns,48 48.See Valentine v. Collier, No. 20-20207, at 6–7 (5th Cir. Apr. 22, 2020).Show More and that there was not deliberate indifference just because the measures taken failed to “reasonably abate[]” the infection.49 49.Id. at 7.Show More Instead, the Fifth Circuit explained, the deliberate indifference standard requires COVID plaintiffs to show some subjective intent that is greater than or equal to recklessness—there could be no deliberate indifference finding when the state officials “subjectively believe the measures they are taking are []adequate” and the facility “continues to take [medically informed] measures . . . to abate and control the spread of the virus.”50 50.Id. at 8. I do not mean to suggest that a thick subjective prong is correct. A minority of circuits differ from the Fifth insofar as they do not apply a stringent subjective prong in cases where pre-trial plaintiffs seek prospective relief. See, e.g., Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). Indeed, the leading Supreme Court case indicates that a defendant refusing to address an excessive risk necessarily meets the subjective prong when it resists relief. SeeFarmer v. Brennan, 511 U.S. 825, 846 n.9 (1994).Show More Recent Sixth and Eleventh Circuit opinions reached the same conclusion for roughly the same reasons.51 51.SeeWilson v. Williams, 961 F.3d 829 (6th Cir. 2020); Swain v. Junior, 958 F.3d 1081, 1089–90 (11th Cir. 2020); see also Order, Hallinan v. Scarantino, No. 5:20-hc-02088, at 28–34 (E.D.N.C. June 11, 2020) (district court decision finding against prisoner-plaintiffs on deliberate indifference); Order, Lucero-Gonzalez v. Kline, No. 2:20-cv-00901, at 14 (D. Ariz. June 2, 2020) (same).Show More

Second, there is some dissonance between, on the one hand, the habeas remedy, and on the other, the Eighth and Fourteenth Amendment rights to adequate detention conditions. Conditions-of-confinement plaintiffs usually seek changed conditions under Section 1983, and not discharge under the habeas statutes. Indeed, a well-known thread of Supreme Court precedent reinforces the idea that habeas is for discharge, and Section 1983 is for conditions.52 52.See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that a prisoner seeking “release” must use the habeas remedy). But see Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (holding that conditions-of-confinement litigation can proceed under habeas provisions as long as the plaintiffs seek discharge).Show More Even though such precedent should pose few problems for habeas plaintiff classes in COVID-discharge litigation,53 53.There are, however, meaningful questions about whether convicted prisoners seeking COVID discharge were supposed to proceed under the generally applicable post-conviction provisions in §§ 2254 and 2255,or under the failsafe provisions in § 2241.Show More the boundary has been a salient obstacle to relief.54 54.Cf. Wilborn v. Mansukhani, 795 F. App’x 157, 163 (4th Cir. 2019) (remarking that seven of ten “circuits that have addressed the issue in a published decision have concluded that claims challenging the conditions of confinement cannot be brought in a habeas petition”).Show More

The confusion arises from the fact that conditions-of-confinement litigation ordinarily seeks a change in the condition, rather than discharge. That class plaintiffs seek discharge on the basis of an unconstitutional condition has nonetheless caused defendants to frame the class action complaints as typical Section 1983 conditions-of-confinement litigation in disguise. Specifically, government defendants often argued that the Prison Litigation Reform Act (“PLRA”) requires special processing of conditions-of-confinement claims in any discharge-seeking litigation.55 55.See, e.g., Answer, Return of Writ, and Response in Opposition to Petition for Writ of Habeas Corpus, Injunctive and Declaratory Relief, Wilson v. Williams, No. 4:20-cv-00794, at 15–18 (N.D. Ohio Apr. 17, 2020).Show More At least two federal courts have expressly refused to subject habeas class plaintiffs to the PLRA provisions,56 56.See, e.g., Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (“The BOP’s attempts to classify petitioners’ claims as ‘conditions of confinement’ claims, subject to the PLRA, are unavailing.”); FCI Danbury Order, supranote 47, at 33–36.Show More but many others have simply dismissed habeas challenges as impermissible shortcuts through Section 1983 litigation that the PLRA restricts.57 57.See, e.g., Order, Hallinan v. Scarantino, No. 5:20-hc-02088, at 21–26 (E.D.N.C. June 11, 2020); Amended Order Denying Ex Parte Application for Temporary Restraining Order and Order To Show Cause Re: Preliminary Injunction, Wilson v. Ponce, No. 2:20-cv-04451, at 18 (C.D. Cal. June 10, 2020); Order Denying Motion for Preliminary Injunction, Victor Alvarez v. Larose, No. 20-cv-00782, 2020 WL 3053193, at *4 (S.D. Cal. June 7, 2020); Wragg v. Ortiz, No. 2:20-cv-05496, 2020 WL 2745247, at *20 (D.N.J. May 27, 2020); Ruling, Livas v. Myers, No. 2:20-cv-00422, at 19 (W.D. La. Apr. 22, 2020). More recently, the Federal District for the District of Columbia simply ducked the question, determining that a habeas claim was sufficiently unlikely to succeed on the merits that the court need not resolve the habeas vehicle question. See Banks v. Booth, No. 1:20-cv-00849, at 30 n.4 (D.D.C. June 18, 2020).Show More

Third, remedy-specific doctrine often obstructed timely relief at scale.58 58.I focus on exhaustion here, but there were other doctrinal snags. For example, the severe restrictions on successive post-conviction litigation appearing in 28 U.S.C. §§ 2244(b) and 2255(h) reduced the potential plaintiff pool, as some prisoners were probably unwilling to reduce the expected return on future post-conviction litigation.Show More Consider the thick exhaustion requirements that some courts imposed on both pre-trial and post-conviction detainees. In some of these cases, the named plaintiffs sued on behalf of other class members and may have sought some sort of collective relief in state courts beforehand.59 59.See, e.g., Petitioners’ Reply in Support of Their Petition for Writs of Habeas Corpus, Money v. Jeffreys, No. 1:20-cv-02094, at 39–41 (N.D. Ill. Apr. 8, 2020).Show More Because exhaustion is typically regarded as a property of individual claims, however, most courts confronted with the question determined that claimants had to exhaust remedies individually—including, for example, a holding that pre-trial class members had to challenge their custody during individual bond hearings.60 60.See, e.g., Memorandum Opinion and Order, Mays v. Dart, No. 1:20-cv-02134, at 12–14 (N.D. Ill. Apr. 9, 2020); cf. Memorandum Opinion and Order, Money v. Jeffreys, No. 1:20-cv-02094, at 46–47 (N.D. Ill. Apr. 10, 2020) (in post-conviction claimant class action brought under 28 U.S.C. § 2254, finding non-exhaustion because there was “no effort to establish that the trial courts in the numerous other counties where they are housed are [or were] unavailable”).Show More Requiring individualized exhaustion both disables the systemic scope of the remedies and slows them down.

B. 42 U.S.C. § 1983

42 U.S.C. § 1983 is the federal civil rights statute that permits a plaintiff to obtain damages or injunctions against state officials who violate federal law, and the state officials are usually just a stand-in for the state itself. Section 1983 class action plaintiffs seeking COVID-based discharge experience many of the same problems encountered by prisoners in the parallel habeas litigation, as well as some unique problems of their own.61 61.The so-called “Heck bar” precludes prisoners from using § 1983 to mount challenges that necessarily imply the invalidity of their convictions or sentences. SeeHeck v. Humphrey, 512 U.S. 477, 487 (1994). To the extent a § 1983 claimant is seeking release without necessarily invalidating the conviction or sentence, the Heck bar poses less of a problem than it might initially seem.Show More

First, demonstrating the underlying Eighth and Fourteenth Amendment violations in Section 1983 litigation involves the same hurdles that it does in habeas litigation. As explained in Section II.A, many jurisdictions have elevated the standard for deliberate indifference beyond what Farmer v. Brennan62 62.511 U.S. 825 (1994).Show More appears to have contemplated—requiring plaintiffs seeking prospective relief to prove something more than the fact that a defendant is resisting “reasonable measures to abate an intolerable risk of which they are aware.”63 63.Id.at 846 n.9; see also supranotes 48–50 and accompanying text (explaining use of subjective prong of deliberate indifference inquiry in prospective relief requests).Show More

Second, Section 1983 plaintiffs seeking discharge run headlong into the PLRA. For these plaintiff classes, courts generally subject the litigation to 18 U.S.C. § 3626(a)(2)–(3), the PLRA’s restrictions on prisoner release.64 64.See, e.g., Ruling, Livas v. Myers, No. 2:20-cv-00422, at 19 (W.D. La. Apr. 22, 2020). The PLRA exhaustion requirements apply to any prisoner release orders issued in a civil proceeding, excepting those issuing by way of a habeas corpus writ. See18 U.S.C. § 3626(g)(1) (2012).Show More For example, courts have turned back wholesale relief under Section 1983 because there was no showing of non-compliance with a prior remedial order, and because only a specially convened three-judge panel can order prisoner release after finding both (1) that crowding is the primary cause of the federal rights violation and (2) that no other relief helps.65 65.See, e.g., Memorandum Opinion and Order, Money v. Pritzker, No. 1:20-cv-02093, at 29 (N.D. Ill. Apr. 10, 2020); cf., e.g., Coleman v. Newsom, No. 01-cv-01351, 2020 WL 1675775, at *7 (E.D. Cal. Apr. 4, 2020) (“If a single-judge court finds a constitutional violation, it may order Defendants to take steps short of release necessary to remedy that violation. And if that less intrusive relief proves inadequate, Plaintiffs may request, or the district court may order sua sponte, the convening of a three-judge court to determine whether a release order is appropriate.”).Show More These PLRA restrictions cripple collective discharge as a meaningful Section 1983 remedy because of how long it takes to comply with the PLRA procedure; the leading PLRA prisoner release litigation took ten years to wind its way through the federal courts.66 66.SeeBrown v. Plata, 563 U.S. 493, 507 (2011).Show More

*  *  *

Ultimately, both Section 1983 and the federal habeas statutes are inadequate responses to the systemic risk that COVID creates. The necessary Eighth and Fourteenth Amendment thresholds can be quite difficult for class plaintiffs to clear, and both remedies delay and fragment litigation that should be speedy and collectivized. In fact, any adversarial litigation—with its complex discovery, motion practice, briefing, and appeals—consumes time that is crucial for avoiding systemic loss that grows daily.

III. Administrative Remedies

What about the many state and federal discharge mechanisms that turn on things other than constitutional violations? What I call “administrative remedies”67 67.SeeUCLA Law Builds Databases on Prisons and COVID-19, UCLA Law (Mar. 25, 2020), https://newsroom.ucla.edu/releases/prisons-databases-covid-19 [https://perma.cc/­2BUW-CWWN] (housing list of administrative remedies, which site links as “Statutory Release Powers”).Show More include discretionary pre-trial release;68 68.See, e.g., Minn. R. Crim. P. 6.01 (setting forth authority for pre-trial release).Show More familiar sentence-remission mechanisms such as discharge for good time, work, home detention, facility overcrowding, and terminal illness;69 69.See, e.g., Ariz. Rev. Stat. § 11-459 (2020) (work release and home detention); Ga. Code Ann. § 42-9-60 (2020) (overcrowding-based parole); N.C. Gen. Stat. § 15A-1369 (2020) (compassionate release); Okla. Stat. tit. 57, § 20 (2020) (good-time credit).Show More outbreak-related release orders for infected and non-infected prisoners;70 70.See, e.g., Mass. Gen. Laws ch. 126, § 26 (2020) (providing for broader removal to a separate facility in the event of a sufficiently dangerous disease); Mont. Code § 50-2-121 (2019) (providing for removal of sick prisoners).Show More and emergency authority to remove people from certain criminal detention sites.71 71.See, e.g., Cal. Gov’t Code § 8658 (2020) (empowering wardens to remove endangered prisoners from detention facilities with strong preference for alternate sites of detention).Show More A mix of administrative remedies might look like viable means of securing discharge at the necessary scale, but a peek beneath the hood discloses insurmountable problems with wholesale strategies reliant on such a process.

A. Obstacles

First, there is an eligibility problem: administrative remedies are simply unavailable to most prisoners convicted of crimes. Good-behavior discharge requires the accumulation of good-behavior credits, expedited parole requires parole eligibility, compassionate release requires that a person be severely ill, and so forth. Most high-profile COVID success stories, in which American jurisdictions have quickly and non-trivially reduced prisoner populations, involve jails72 72.See Responses to the COVID-19 Pandemic, Prison Pol’y Initiative, https://www.prisonpolicy.org/virus/virusresponse.html [https://perma.cc/S45B-F94T] (up­dated continuously).Show More—which are less constrained by eligibility restrictions than are prisons. Police and custodians can reduce the jailed pre-trial population by booking less and by exercising more flexible discharge powers, and jails are disproportionately home to offenders convicted for low-level crimes and technical parole violations.73 73.SeeAnalise Pruni, Hennepin County Jail Population Cut by 44% in Light of COVID-19, Minn. Spokesman-Recorder (Apr. 22, 2020), https://spokesman-recorder.com/­2020/04/22/hennepin-county-jail-population-cut-by-44-in-light-of-covid-19/ [https://perma.cc/37FM-ERVY] (reduced booking); David Sachs, Denver’s Jail Population Is Drastically Shrinking, But That Alone Can’t Stop Deputies and Inmates from Getting Coronavirus, Denverite (Apr. 20, 2020), https://denverite.com/2020/04/20/denvers-jail-population-is-drastically-shrinking-but-inmates-and-deputies-are-far-from-immune-to-cor­onavirus/ [https://perma.cc/WS63-C7QP] (pre-trial release and short sentence balances).Show More

A much larger fraction of American detention occurs in prisons.74 74.See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/9G6D-X42F].Show More Prison discharge at appropriate scale is much harder to find,75 75.See Sachs, supranote 73.Show More in part because a much smaller slice of the prison pie meets the eligibility requirements for administrative remedies.76 76.For example, Iowa’s decision to release 800 prisoners nearing the end of their sentences produced a net prisoner population drop of only three percent. SeeEmily Widra & Peter Wagner, While Jails Drastically Cut Populations, State Prisons Have Released Almost No One, Prison Pol’y Initiative (May 1, 2020), https://www.prisonpolicy.org/­blog/2020/05/01/jails-vs-prisons/ [https://perma.cc/V3GV-Y54J].Show More Most people who secured COVID-based discharge from prisons were those whose sentences were within several months of completion,77 77.See, e.g., Nick Swartsell, DeWine Authorizes Release of 105 Inmates as Coronavirus Cases in Ohio Prisons Swell into the Hundreds, CityBeat (Apr. 16, 2020), https://www.citybeat.com/news/blog/21128810/dewine-authorizes-release-of-105-inmates-as-coronavirus-cases-in-ohio-prisons-swell-into-the-hundreds (prisoners approaching the ends of sentences).Show More who had already been designated as non-violent and parole eligible,78 78.See, e.g., Linh Ta, Iowa’s Prisons Will Accelerate Release of Approved Inmates To Mitigate COVID-19, Times-Republican (Mar. 23, 2020), https://www.timesrepublican.com/­news/todays-news/2020/03/iowas-prisons-will-accelerate-release-of-approved-inmates-to-mitigate-covid-19/ [https://perma.cc/S3CX-BT4V] (parole-eligible prisoners); Heather Walker, Coronavirus Prompts Prisons To Parole Inmates More Quickly, Wood TV (Apr. 14, 2020), https://www.woodtv.com/health/coronavirus/coronavirus-prompts-prisons-to-parole-some-early/ [https://perma.cc/YXA9-AEW6] (parole-eligible prisoners convicted of non-violent offenses).Show More or who were serving sentences for minor technical infractions.79 79.See, e.g.,Leslie Rubin, W.Va. Taking Steps To Reduce Inmate Population amid COVID-19 Pandemic, WCHS-ABC 8 (Apr. 1, 2020), https://wchstv.com/news/coronavirus/wva-taking-steps-to-reduce-inmate-population-amid-covid-19-pandemic [https://perma.cc/VM87-G5PG] (prisoners detained for parole violations).Show More A recent analysis of discharged prisoners concluded that “state prisons have released almost no one.”80 80.Widra & Wagner, supranote .Show More

Second, most of the post-conviction discharge mechanisms are individualized, meaning that they require case-by-case determinations of risk and reward—for example, what sort of social risk does a prisoner present, how have they behaved in a detention setting, and is there a community support system sufficient to support furlough or reentry?81 81.For example, upon reentry, those who reoffend tend to recidivate in their home communities. See Barkow, supra note 21, at 46, 48. The sources of information necessary to make discharge decisions also tend to reside with local institutions. SeeMargaret Colgate Love, Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest, 47 U. Tol. L. Rev. 89, 105–06 (2015).Show More For many of these mechanisms, sufficiently scaled discharge would require decision makers to resolve cases, considered individually, in the same direction.82 82.The more cases are funneled through common decision makers, the higher the likelihood of correlated decision making.Show More Case-by-case decision making, however, is uncoordinated and time consuming—consider victim notification requirements—and therefore ill-equipped to redress systemic risk. (Perhaps the biggest impediment to even greater relief for jailed prisoners is that, in many jurisdictions, judges must do case-by-case consideration of administrative remedies.83 83.See, e.g., Ashley Paredez, Officials Release 1,000 Inmates To Ease Crowding, Slow Spread of COVID-19 at Dallas County Jail, Fox 4 News (Apr. 16, 2020), https://www.fox4news.com/news/officials-release-1000-inmates-to-ease-crowding-slow-spread-of-covid-19-at-dallas-county-jail [https://perma.cc/3HDS-VEZN] (with respect to discharges in Dallas County, “a judge must sign off on each case”).Show More)

Third, many administrative remedies present what one might call “multiple-veto” problems that reduce the scale of discharge. A multiple-veto problem exists when more than one entity must concur in order to produce an outcome, such that each decision maker can unilaterally prevent that outcome from materializing. Because administrative discharge often requires several moments of bureaucratic initiative and judicial approval, it is beset by multiple-veto problems.84 84.To take Alabama as an illustrative example, restoration of good-time credits necessary to generate an early discharge must be recommended initially by a facility official, pass through a centralized records process, and be adopted by a Department of Corrections commissioner. See Ala. Code§ 14-9-41(f)(2) (2020). In North Carolina, a medical release requires a formal request or petition, a referral from the Department of Public Safety based on a medical evaluation and risk assessment, and a favorable determination from a post-release and parole commission. See N.C. Gen. Stat. § 15A-1369 (2020). In Louisiana, the state promulgated rules declaring a prisoner category eligible for furlough, only to see discharge activity slashed by a review panel vested with veto power. SeeLea Skene, Release Denied for Most Louisiana Inmates Considered Under New Coronavirus Furlough Program, Advocate (Apr. 30, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_151f6068-8b04-11ea-9319-17978dff7507.html.Show More Overcoming those problems requires exceptional political and institutional will that is typically exercised only in favor of prisoners convicted of non-violent, non-sexual, and other non-serious offenses. Jurisdictions were generally unwilling to touch the huge population of “violent offenders,” no matter how old or under what circumstances the offense took place.85 85.SeeBrandon Garrett, Five Takeaways from Prison Actions During COVID-19, Duke L. Ctr. for Sci. & Just. Blog (May 22, 2020), https://sites.law.duke.edu/csj-blog/2020/05/22/five-takeaways-from-prison-actions-during-covid-19/ [https://perma.cc/S8NU-AW7Q]; J.J. Prescott et al., It’s Time To Start Releasing Some Prisoners with Violent Records, Slate (Apr. 13, 2020), https://slate.com/news-and-politics/2020/04/combat-covid-release-prisoners-violent-cook.html [https://perma.cc/3A7F-73RV].Show More

Finally, the administrative remedies for illness and disease outbreaks do not account for the systemic risk of a pandemic. Individualized discharge orders for sick prisoners were not sufficient to address the systemic risk of COVID contagion,86 86.See, e.g., Mass. Gen. Laws ch. 111, § 108 (2020) (“If a prisoner . . . has a disease which . . . is dangerous to the safety and health of other prisoners or of the inhabitants of the town, the board shall . . . direct his removal to a hospital or other place of safety, there to be provided for and securely kept until its further order.”); Mont. Code Ann. § 50-2-121 (2019) (“On written order of a local health officer, a diseased prisoner who is held in a jail and who is considered dangerous to the health of other prisoners may be removed to a hospital or other place of safety.”).Show More which required preventative release and involved substantial asymptomatic transmission.87 87.I use “asymptomatic” colloquially here, because I technically mean to include both asymptomatic and pre-symptomatic transmission.Show More Most wholesale remedies reaching not-yet-infected prisoners, moreover, contemplate removal to some other facility.88 88.See, e.g., N.M. Stat. Ann. § 33-2-29 (2020); N.Y. Correct. Law § 141 (2020).Show More During a pandemic, however, there is systemic risk at every facility that houses prisoners in a confined space. Moving potential infection vectors from old populations to new ones is perhaps the last thing jurisdictions should be doing during a nationwide pandemic. The appropriate response to systemic risk is isolation, not shifting the site of contagion.89 89.SeeCDC, Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/­coronavirus/2019-ncov/prevent-getting-sick/social-distanc­ing.html [https://perma.cc/N8S9-4TFH] (last visited May 4, 2020).Show More

B. The Federal Example

Section III.A sets forth the problems conceptually, but illustrations help too. The federal attempt to use home confinement, compassionate release, and furloughs to quickly reduce the federal prison population failed rather spectacularly, and those failures were consistent with struggles across state jurisdictions.

Pursuant to March 2020 federal legislation vesting the Justice Department with broad discharge powers,90 90.See Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, § 12003(b)(2) (2020).Show More the U.S. Attorney General (“AG”) issued a directive to the Bureau of Prisons (“BOP”) to increase the use of home confinement for older federal prisoners having pre-existing medical conditions.91 91.SeeClare Hymes, Barr Tells Federal Prisons To Send Inmates Home in Response to Coronavirus Outbreak, CBS News (Mar. 27, 2020), https://www.cbsnews.com/news/attorney-general-william-barr-bureau-of-prisons-send-inmates-home-coronavirus-covid-19/ [https://perma.cc/5ZFC-H8YQ].Show More In an April 3 memo memorializing the directive, the AG singled out three Federal Correctional Institutions (“FCIs”): Oakdale (Louisiana), Danbury (Connecticut), and Elkton (Ohio).92 92.SeeAttorney General William Barr, Memorandum for Director of Bureau of Prisons (Apr. 3, 2020), https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1-c6d51b810000 [https://perma.cc/VXN2-SF8A].Show More The BOP, however, quickly scaled back the scope of the AG mandate—which itself covered only those who were convicted of non-violent, non-sexual offenses—to include only the subset of those who either (1) had served at least half their sentences or (2) had served at least a quarter of their sentences but had fewer than eighteen months left.93 93.SeeClare Hymes, Amid COVID-19 Threat, Inmates and Families Confused by Federal Guidance on Home Confinement Release, CBS News, (Apr. 24, 2020), https://www.cbsnews.com/news/amid-covid-19-threat-inmates-and-families-confused-by-federal-guidance-on-home-confinement-release/ [https://perma.cc/XV3N-4SBQ].Show More

Even within the narrowed eligibility band, the AG and BOP still needed the operational compliance of the wardens at individual facilities—and such cooperation was frequently lacking. For example, a month and a half after Congress vested the AG with elevated authority to order federal prison clearance, and a month and a half after the AG exercised it, a federal judge still had to issue a temporary restraining order against FCI Danbury, which failed “to take [the AG’s order and corresponding legislation] seriously.”94 94.See FCI Danbury Order, supra note 47, at 1.Show More Partly due to warden non-compliance, the AG’s home-confinement order reduced the federal prison population, across all facilities, by only one-and-a-half percent in the two months following the emergency legislation.95 95.SeeJoseph Neff & Keri Blakinger, Michael Cohen and Paul Manafort Got To Leave Federal Prison due to COVID-19. They’re the Exception, Marshall Project (May 21, 2020), https://www.themarshallproject.org/2020/05/21/michael-cohen-and-paul-manafort-got-to-leave-federal-prison-due-to-covid-19-they-re-the-exception [https://perma.cc/EZ3S-KUBJ].Show More

Compassionate release was beset with similar problems. The federal statute also authorized the BOP to reduce a prison sentence upon a showing, by motion of either the Director or the prisoner, that “extraordinary and compelling reasons warrant such a reduction.”96 96.18 U.S.C. § 3582(c)(1)(A)(i) (2012).Show More The BOP, however, issued no updated guidance as to how the compassionate release standard applied to COVID-based proceedings.97 97.SeeFCI Danbury Order, supranote 47, at 25.Show More Prisoner-initiated relief still required exhaustion of individual claims or a month-long wait, and the incumbent compassionate release criteria focused on outlier health conditions affecting elderly inmates—which made prisoner-initiated relief quite difficult to obtain, even in sound procedural postures.98 98.Seeid. at 24–25.Show More Director-initiated relief was subject to an acute multiple-veto problem, with administrative vetoes given to subordinate prison staff, the warden, the BOP General Counsel, and a senior medical officer from the Correctional Programs Division.99 99.See id. at 25–26.Show More At FCI Danbury, there were 241 outbreak-related applications for compassionate release in the first six weeks of the emergency, and none were granted.100 100.Id. at 53.Show More

A federal judge called the BOP’s process for discharging prisoners “Kafkaesque.”101 101.See Opinion & Order, U.S. v. Scparta, No. 18-cr-00578, at 2 (S.D.N.Y. Apr. 19, 2020).Show More Even when subject to a judicial order to expeditiously implement the AG directive, crucial facilities simply “made only minimal effort to get at-risk inmates out of harm’s way.”102 102.Order, Wilson v. Williams, No. 4:20-cv-00794, at 4 (N.D. Ohio May 19, 2020). In vacating the Wilson preliminary injunction, the Sixth Circuit did not dispute the failure to clear prisoners from facilities, but it nonetheless held that the BOP’s changed facility policies were sufficiently reasonable responses to the COVID risk. See Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020).Show More A month after a federal judge issued a preliminary injunction against FCI Elkton, the warden had still failed to discharge a single offender.103 103.See Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020).Show More

*  *  *

The federal spectacle was typical. With respect to administrative remedies, empowered decision makers were generally unwilling to spend bureaucratic capital in favor of most prisoners, and the presence of any multiple-veto problem was sufficient to tank discharge for a person convicted of a serious offense. Administrative remedies for infection also under-performed their superficial appeal, because all criminal detention facilities were subject to systemic risk simultaneously. Whatever theoretical combination of administrative remedies might have been used to productively respond, jurisdictions failed to mix and match them to that effect.

IV. Clemency

Clemency has fallen into desuetude in most American jurisdictions.104 104.See Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law, 90 N.Y.U. L. Rev. 802, 807 (2015) (federal power); Cara H. Drinan, Clemency in a Time of Crisis, 28 Ga. St. U. L. Rev. 1123, 1124 (2012) (state power).Show More Detainees nonetheless sought COVID-based discharge through pardons, commutations, reprieves, or other relief associated with clemency power.105 105.The best collection of information about executive action taken in response to COVID, including clemency activity, is maintained by the NYU Center on the Administration of Criminal Law. SeeA Survey of Executive Action Concerning the Spread of COVID-19 in State Correctional Facilities, NYU Ctr. on Admin. Crim. L., https://docs.google.com/document/d/1ZOs8LtiPajxjAiKDn4VwDnhng0AkDrMi/edit (last visited May 5, 2020) [hereinafter Executive Action Survey].Show More Despite calls from high-profile organizations to dust the power off and use it aggressively,106 106.See, e.g., Courtney Oliva & Ben Notterman, Governors Must Use Clemency Powers To Slow the Pandemic, Justice Collaborative Inst. 2 (April 2020), http://filesforprogress.org/memos/governors-must-use-clemency-powers-to-slow-the-pandemic.pdf [https://perma.cc/97ZJ-WG6D] (urging states capable of efficiently invoking clemency powers to do so).Show More clemency was largely unable to reduce criminal detention during the peak of the COVID crisis.107 107.See supranote 5.Show More There was scattered usage across several state jurisdictions,108 108.The leading exception was Kentucky, where the governor used his clemency power to implement a system of review necessary to release over 900 prisoners in its correctional system. SeeBrian Planalp, Nearly1,000 Kentucky Prison Sentences To Be Commuted, Beshear Says, Fox19 Now (Apr. 2, 2020), https://www.fox19.com/2020/04/02/watch-live-gov-beshear-provides-update-covid-kentucky/ [https://perma.cc/PNK3-ARWY]. The Oklahoma governor used his clemency power on a smaller but still substantial scale. SeeHicham Raache, Gov. Stitt Approves Hundreds of Prison Commutations To Mitigate Coronavirus Spread, KFOR (Apr. 10 2020), https://kfor.com/health/coronavirus/gov-stitt-approves-hundreds-of-prison-commutations-to-mitigate-coronavirus-spread/ [https://perma.cc/MGJ9-EN5S].Show More but nothing at the scale sufficient to meaningfully address systemic risk. That jurisdictions did not lean heavily into clemency power as a wholesale discharge mechanism is unsurprising, given its structure, political economy, and history. Even when they did, the results were underwhelming.109 109.For example, with respect to the Kentucky initiative described above, the state was able to reduce the prison population by only 4.35 percent. SeeWidra & Wagner, supranote .Show More

With respect to structure, clemency power is not nearly as nimble as some imagine. At the federal level, although the power is formally vested in the President,110 110.See U.S. Const.art. II, § 2, cl. 1.Show More the clemency process is almost always passed through the DOJ Pardon Attorney’s office,111 111.SeeBarkow, supra note 104, at 824. The process proceeds less reliably through that channel under President Donald Trump. SeePaul Callan, Trump Should Pick Kim Kardashian West as His Pardon Advisor, CNN (Feb. 19, 2020), https://www.cnn.com/2020/02/19/opinions/trump-new-pardon-adviser-kim-kardashian-west-callan/index.html [https://perma.cc/NEN4-DU7M].Show More which is a sparsely staffed site of prosecutor resistance to clemency power.112 112.SeePaul J. Larkin, Jr., Revitalizing the Clemency Process, 39 Harv. J.L. & Pub. Pol’y 833, 900 (2016).Show More Less than half the states vest clemency power in a single official capable of acting without consultation with a board.113 113.SeeModels for Pardon Administration, 50-State Comparison: Pardon Policy and Practice, Restoration of Rts. Project, http://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities-2/ [https://perma.cc/5AQ4-MC6L] (last visited Apr. 19, 2020) (listing only three states as permitting no consultation with a board and twenty more as being permitted to consult with a board).Show More Even when state officials are permitted to act alone, they will often decline to do so because they rely on consultation and delegation for political cover.114 114.There are twenty-one states where a governor must share power and twenty-three states where she may. See Margaret Colgate Love et al., Collateral Consequences of Criminal Convictions: Law, Policy and Practice §§ 7:8, 7:10 & 7:11 (2013).Show More For both state and federal processes then, there are some subtle multiple-veto problems that prevent speedy, broad discharge.115 115.As another example, the Texas governor cannot issue a pardon or commutation without a recommendation from a legislatively appointed board. See Tex. Const.art. IV, § 11.Show More

Unfortunately, the political economy of clemency power frustrates wholesale discharge under precisely the circumstances where those multiple-veto problems recede. Although the state of empirical study is imperfect, clemency is generally less robust in jurisdictions where leaders cannot share power—and political blame—with a board or some other bearer of institutional responsibility.116 116.SeeMargaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. St. Thomas L.J. 730, 743–751 (2012); Mark Osler, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System, 41 Vt. L. Rev. 465, 493 (2017).Show More Even in a public health environment where the need for discharge seemed pressing, the risk associated with a violent recidivist episode still presented formidable political costs to heads of state and national governments who were not focused on local safety risks and public health benefits. This dynamic probably explains why gubernatorial reprieve mechanisms—which tend to face fewer vetoes than other forms of clemency117 117.The NYU Center on the Administration of Criminal Law has compiled a state-by-state list of clemency power, with special notation for reprieve power. See NYU Law, https://www.law.nyu.edu/sites/default/files/reprieve%20power%207.pdf [https://perma.cc/FC3S-48QW] (last visited May 8, 2020).Show More—have been used in exactly one state (Pennsylvania) during the COVID pandemic.118 118.SeeExecutive Action Survey, supra note 105.Show More

Finally, the historic vision of clemency power does not align with a model of pandemic risk response. James Madison and James Iredell were the two leading exponents of the pardon (clemency) power at the Constitutional Convention.119 119.See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 590–92 (1991).Show More Their influential framing presents clemency as (1) a device for remitting unjust punishment (“justice function”) and (2) a political tool for avoiding various types of social unrest or rebellion (“statecraft function”).120 120.See, e.g., The Federalist No. 74 (Alexander Hamilton).Show More Neither the justice function nor the statecraft function aligned responsively with the problems that COVID presented. Whether a detention site presents systemic risk is a far cry from a question about whether a single individual “deserves” punishment, so the justice function fits poorly. And although the President has sometimes used the statecraft function to grant wholesale amnesty, the existential imperative for such matters has been political (not for public health).

In sum, clemency power might seem—with enough squinting—like a viable way to discharge prisoners at the speed and scale sufficient to confront systemic risk, but things did not work out that way. Clemency’s legacy does not include a public health function, and jurisdictions distribute clemency power in ways that are uniquely ill-suited to speedy discharge of prisoner tranches. As a result, the relief that did materialize was more targeted and curative than prophylactic and preventative, which is a bad skew in the teeth of a pandemic.

V. Looking Forward

COVID not only exposed the systemic risk that pandemics pose to detainees and adjacent communities, but it also underscored the senselessness of mass incarceration as a justice-and-social-welfare strategy. COVID requires that American jurisdictions rethink the alignment between pandemic risks and criminal justice remedies—and that reassessment should double as a deeper reflection on the set of social, political, and bureaucratic reforms necessary to deal with the 2.3 million people in American criminal detention facilities.

In Part V, I explore basic principles for correcting the remedial deficit that pandemics create, on the premise that the obstacle to sufficiently scaled discharge is not just a shortage of political and bureaucratic resolve. Officials make decisions within a broader system of institutionally divided authority, and the current distribution of discharge power is not conducive to speedy, wholesale relief. Consistent with a broader institutional revision I suggest elsewhere,121 121.See, e.g., Lee Kovarsky, Mercy, Localism, and the American Prosecutor (unpublished manuscript) (on file with author) (arguing that increased discharge power should be given to locally elected prosecutors); Lee Kovarsky, The Negative Pardon Power, New Crim. L. Rev. (forthcoming 2021) (on file with author) (arguing that constitutionally specified power often does not, and should not, exclude other means of reducing lawfully imposed sentences). Show More jurisdictions should respond by concentrating discharge powers in decision makers that are closer to acutely affected localities.

A. Concentrating and Localizing

The presence of multiple-veto problems throttles the production of legal outcomes that require unanimous agreement. And so it is with respect to speedy discharge at scale—especially during pandemics. For class actions under Section 1983 or the habeas statutes, class-wide discharge requires adversarial litigation and multi-tiered judicial approval.122 122.Seesupra Part II.Show More With respect to administrative remedies, most discharge mechanisms require institutional coordination, have a discharge process that is too individuated to achieve scale, or assume excess detention capacity that does not exist during a pandemic.123 123.Seesupra Part III.Show More

One puzzle is why clemency is not a more effective response to systemic risk. After all, the relatively greater tendency to concentrate clemency power in a single institution decreases friction and multiple-veto problems, thereby increasing the likelihood that fixed amounts of political will should be able to overcome opposition. Concentrated clemency power, it turns out, has a different problem. The reason that concentrated clemency power underperforms discharge expectations is that it tends to be concentrated in the wrong entities. Clemency power presents an institutional competence problem that is particularly acute during a pandemic response.

Specifically, jurisdictions concentrate clemency power in national or statewide officials who are at significant institutional and geographic distance from the localities that experience the social costs and benefits of discharge.124 124.Seesupranotes 110–15 and accompanying text.Show More In most instances, that distance systematically favors continued incarceration.125 125.I discuss political costs and benefits below, but the fiscal cost of prison incarceration is borne by the state. SeeRobert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 719–20 (1996).Show More The discharging clemency institution—a president, a governor, or some centralized board—bears all the political costs of visible discharge but captures little political benefit. To put the situation in economic terms, the mismatch between political costs and benefits causes central leadership to skimp on prisoner release.126 126.SeeGarcia, supra note 6 (quoting Professor John Pfaff on gubernatorial behavior); see also, e.g., Siegel & Beletsky, supra note 31 (describing phenomenon in context of eleventh-hour Kentucky clemency).Show More

Closing the remedial deficit requires jurisdictions to address the multiple-veto and institutional competence problems simultaneously. In order to address multiple-veto problems, the state should avoid needless delay and detention by concentrating discharge powers in fewer decision makers. And in order to solve the institutional competence problem, a decision maker closer to the site of systemic risk should own discharge authority.

Decision makers that are maximally sensitive to local costs and benefits of pandemic discharge—that is, local decision makers—will probably make better decisions when confronted with systemic risk. Concentrating discharge power in those institutions increases the speed and systemic responsiveness of a discharge remedy. During the pandemic, the systemic risk is to a particular site of detention and its surrounding community. The officials that best reflect the needs and preferences of that population should make the discharge decisions. In fact, similar logic also applies in non-pandemic scenarios, because the social costs and benefits of such incarceration are disproportionately local127 127.The local costs and benefits I have in mind include the fiscal cost of jails, the social costs to innocent families and local communities of having a member incarcerated, the support systems for and costs of reentry, the risk of recidivism, and the impact on victims. See Kovarsky, Mercy, Localism, and the American Prosecutor, supra note 121 (manuscript at 22–23).Show More and because the best information for evaluating risk is available to local networks.128 128.See id.(manuscript at 23).Show More

There are also broader dialogic benefits to localized discharge determinations, whether against a pandemic backdrop or not. Professor Heather Gerken has written extensively about the value of localism in generating meaningful policy dialogue—insofar as it facilitates noisy dissent from the carceral orthodoxy of senior political units.129 129.See, e.g., Heather K. Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 10 (2010); Heather K. Gerken, Our Federalism(s), 53 Wm. & Mary L. Rev. 1549, 1556–60 (2012); Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1265–71 (2009).Show More I argue elsewhere, and at much greater length than I do here, that such dialogue would be a particularly useful catalyst for criminal justice reform.130 130.Seesupra note 121.Show More In fact, thick unilateral discharge power was once a powerful way of introducing innovative criminal justice practices to the broader policy landscape.131 131.SeeStanley Grupp, Some Historical Aspects of the Pardon in England, 7 Am. J. Legal Hist. 51, 60–61 (1963).Show More

Finally, and wholly separate from its usefulness as a pandemic response, localized discharge power better reflects the changing theory of American punishment. During the last forty years of the twentieth century and the first decade of the twenty-first, America’s dominant penal orientation was retributivist—punishment was harsh, morally just, and deserved in proportion to the transgression against the state.132 132.SeeGuyora Binder & Robert Weisberg, Response: What Is Criminal Law About?, 114 Mich. L. Rev. 1173, 1199–1200 (2016); Carol S. Steiker & Jordan M. Steiker, Lessons for Law Reform from the American Experiment with Capital Punishment, 87 S. Cal. L. Rev. 733, 781 (2014).Show More There was little place for local mercy giving when punishment was the stuff of abstract moral justice. Retributivism’s vice-like hold on American punishment is, however, relaxing, and reformist punishment practices are gaining support across the political spectrum.133 133.SeeLauren M. Ouziel,Democracy, Bureaucracy, and Criminal Justice Reform, 61 B.C. L. Rev. 523, 525–26 (2020);see also, e.g., First Step Act of 2018, Pub. L. No. 115-391, §§ 401–05, 132 Stat. 5194 (2018) (landmark federal legislation with bipartisan support permitting sentence reductions for certain drug sentences).Show More As American punishment paradigms drift in more consequentialist directions, previously unexplored strategies for promoting social welfare—including locally differentiated punishment practices—become increasingly viable.

In the interest of candor, I believe local prosecutors to be among the best institutional owners of local discharge power, but I omit a lengthy discussion of that position here because I make that argument comprehensively in another Article.134 134.See Kovarsky, Mercy, Localism, and the American Prosecutor, supra note 121.Show More Of all local officials, prosecutors are likely to be most sensitive to shifts in a community’s criminal justice preferences, are most likely to possess or are best positioned to acquire critical information about the costs and benefits of discharge in specific cases, and are unaccountable to the very statewide entities that have let clemency power wither on the vine.135 135.See id.; cf. Adam M. Gershowitz, Consolidating Local Criminal Justice: Should Prosecutors Control the Jails?, 51 Wake Forest L. Rev. 677, 680–81 (2016) (arguing in favor of aligning incentives and power to decarcerate jails by giving prosecutors some “skin in the game” after convictions are entered).Show More I harbor no delusions about the attitudes of most prosecutors towards discharge. The point is to create the power so that the growing cohort of reformist district attorneys have something to use, if they so choose.

B. Clemency Exclusivity

I want to answer one doctrinal objection to the concentration-and-localization strategy. One of the greatest obstacles to the restructuring of discharge power is the belief that clemency power is exclusive—that the existence of constitutionally specified clemency power bars other discharge mechanisms.136 136.When I use the phrase “lawfully imposed punishment,” I do so in order to avoid confusion with habeas remedies, which are directed to punishment that was unlawfully imposed.Show More North Dakota, for example, has interpreted its constitutionally specified pardon power to exclude legislative attempts to remit criminal sentences.137 137.SeeState v. Shafer-Imhoff, 632 N.W.2d 825, 838 (N.D. 2001); State v. Cummings, 386 N.W.2d 468, 472 n.2 (N.D. 1986).Show More That concept of exclusivity, however, is reduced to less judicial doctrine than one might think, and jurisdictions have a long history of navigating the issue effectively.

First, the model clemency power—the federal pardon power—is in many respects non-exclusive. Mirroring a British power, Congress almost immediately gave the U.S. Treasury Secretary authority to remit penalties for customs violations.138 138.See Act of March 3, 1797, Pub. L. No. 4-13, 1 Stat. 506 (assigning Treasury Secretary power with sunset provisions); see alsoAct of February 11, 1800, Pub. L. No. 6-10, 2 Stat. 7 (extending prior act in perpetuity).Show More Over a century later, in The Laura,139 139.114 U.S. 411 (1885).Show More the Supreme Court rejected a clemency-exclusivity challenge to such remittitur practice, which had been “observed and acquiesced in for nearly a century.”140 140.Id.at 414.Show More A few years later, in Brown v. Walker,141 141.161 U.S. 591 (1896).Show More the Court upheld legislation that effectively permitted pardons for witnesses willing to provide federal investigative cooperation.142 142.See id.at 593–94.Show More Equating the federal pardon power with the more general power to displace lawfully imposed sentences, Brown held that the former “has never been held to take from Congress the power to pass acts of general amnesty.”143 143.Id.at 601.Show More The non-judicial branches have certainly acquiesced; in 2018, Congress confronted no exclusivity challenge when it passed the First Step Act, empowering judges to reduce sentences that were lawfully imposed for narcotics offenses.144 144.SeeFirst Step Act of 2018, Pub. L. No. 115-391, §§ 401–05, 132 Stat. 5194 (2018).Show More

Second, most states have been fairly creative in narrowing the scope of non-exclusive clemency power—especially when the purpose of discharge is something other than an expression that a lawfully imposed punishment was too harsh. Take Michigan. Its Constitution states that the “governor shall have power to grant reprieves, commutations and pardons,”145 145.Mich. Const. art. V, §14.Show More and it uses a strict separation-of-powers rule under which the pardon power would ordinarily be treated as exclusive.146 146.See Kent Cty. Prosecutor v. Kent Cty. Sheriff, 409 N.W.2d 202, 205 (Mich. 1987).Show More The Michigan Supreme Court nevertheless rejected a separation-of-powers challenge to a statute that permitted a sheriff to address overcrowding through discharge.147 147.See id. at 203.Show More Indeed, states must find ways around clemency exclusivity if they want to preserve judicial authority to modify sentences.148 148.See, e.g., State v. Stenklyft, 697 N.W.2d 769, 785 (Wis. 2005) (affirming the constitutionality of multiple categories of judicial power to reduce or amend sentences). The logic often tracks that expressed in a federal case, United States v. Benz, 282 U.S. 304 (1931).Show More The same is true for the powers to parole or to order compassionate release. One way or another, most states simply find a way around the idea that a clemency power precludes other institutions from remitting lawfully imposed punishment. Circumnavigating exclusivity rules should be particularly easy when justified as a public health response.

Conclusion

There are lessons in every catastrophe, and COVID’s impact on America’s prisoner population has been especially catastrophic. Jails and prisons present systemic risks because the health infrastructure is deplorable, social distancing is impossible, and the prisoner community has heightened medical vulnerabilities. Those facilities were pandemic tinderboxes, and COVID was more than enough to kindle the blaze.

There is a tendency to view the staggering infection rates at these facilities as a failure of political and bureaucratic will. And it is that, but not only that. The inability to quickly discharge prisoners at the scale necessary to address systemic risk was also a result of a deeper structural deficit. Existing discharge mechanisms are too slow, require too much multilateral unanimity, and concentrate discharge powers in the wrong institutions. To address future waves of pandemic infection, and to accelerate decarceration more generally, American jurisdictions should concentrate discharge powers in decision makers who are closer to acutely affected localities—decision makers who are better equipped to treat discharge as part of a broader public health response.

  1. * Bryant Smith Chair in Law, University of Texas School of Law. For their helpful comments and feedback, I thank Rachel Barkow, Jeff Bellin, Doug Berman, John Blevins, Brandon Garrett, Adam Gershowitz, Leigh Goodmark, Tara Mikkilineni, Mike Pappas, Eve Primus, and Aaron Litman. For their research assistance, I thank Natalie Lucas and Victoria Trocchia.
  2. For a longer explanation of what I mean by “systemic risk,” see infra Part I.
  3. The Marshall Project collects state-by-state data about infection and mortality in state and federal prisons, and it presents comparisons between in-prison and out-of-prison rates. See A State-by-State Look at Coronavirus in Prisons, Marshall Project [hereinafter State-by-State Data], https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/DAW8-T26Q] (last updated June 4, 2020); see also, e.g.,
    COVID-19 Infection Tracking in NYC Jails, Legal Aid Soc’y (May 27, 2020), https://legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ [https://perma.cc/8MNR-RQ 7U] (observing that the coronavirus infection rates for inmates and staff of New York’s Department of Corrections, at 8.72% and 12.66%, respectively, vastly exceed the infection rate for the general population of the state of New York, which is 1.90%) (data accurate as of June 9, 2020).
  4. I am deliberately omitting from this discussion the efforts of lawyers who represent non-citizens detained by U.S. Immigration and Customs Enforcement (“ICE”). The critique of such detention differs in meaningful ways from the critiques of mass incarceration that relate to my thesis here—although COVID presents a similar threat in ICE facilities.
  5. See, e.g., Press Release: ACLU Sues Oakdale Federal Prison for Release of Those Most at Risk from COVID-19, ACLU (Apr. 6, 2020), https://www.aclu.org/press-releases/aclu-sues-oakdale-federal-prison-release-those-most-risk-covid-19 [https://perma.cc/8WY8-ZSCL] (announcing lawsuit to secure discharge of prisoners from Oakdale federal penitentiary in Louisiana).
  6. See Radley Balko, Stopping Covid-19 Behind Bars Was an Achievable Moral Imperative. We Failed., Wash. Post (May 1, 2020), https://www.washingtonpost.com/opinions/­2020/05/01/stopping-covid-19-behind-bars-was-an-achievable-moral-imperative-we-failed/ [https://perma.cc/45CG-5GLQ]; see also infra notes 8–11 and accompanying text (setting forth representative failures). As of June 9, 2020, there were at least 40,656 cases of coronavirus reported for people in prisons (not jails) and 496 deaths. See State-by-State Data, supra note 2. There were an additional 8,471 cases among prison staff and 34 deaths. See id.
  7. See Sandra E. Garcia, U.S. Prison Population Remained Stable as Pandemic Grew, N.Y. Times (May 14, 2020), https://nyti.ms/3cu58Xc [https://perma.cc/Y4R4-NAC8] (“The United States prison population remained stable in the early months of the year, decreasing by just 1.6 percent from January through March even as prisons emerged as incubators for the spread of Covid-19 . . . .”).
  8. Speedy discharge is especially important during a pandemic because, among other things, an earlier discharge means that a discharged prisoner is less likely to bring an infection from a facility into the broader community.
  9. See Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html [https://perma.cc/­FJ8G-YRMR] (screen capture on file with author).
  10. See Editorial: Prison COVID Outbreak Aided by Crowding, Columbus Dispatch (May 3, 2020), https://www.dispatch.com/opinion/20200503/editorial-prison-covid-outbreak-aided-by-crowding [https://perma.cc/5TYF-6X98].
  11. See Josiah Bates, Campaigns, Fundraisers Work To Bail New York City Inmates amid COVID-19 Outbreaks in Jails and Detention Centers, Time (Apr. 17, 2020), https://time.com/5821512/bail-campaigns-new-york-inmates-coronavirus/ [https://perma.cc/­RHQ4-XCP3].
  12. See Michael Balsamo, Over 70% of Tested Inmates in Federal Prisons Have COVID-19, Associated Press (Apr. 29, 2020), https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f.
  13. See Peter Eisler et al., Across U.S., COVID-19 Takes a Hidden Toll Behind Bars, Reuters (May 18, 2020), https://www.reuters.com/investigates/special-report/health-coronavirus-usa-jails/ [https://perma.cc/9MWB-H49J].
  14. See Laura Hawks et al., COVID-19 in Prisons and Jails in the United States, JAMA Internal Medicine, JAMA Network (Apr. 28, 2020), https://jamanetwork.com/journals/­jamainternalmedicine/fullarticle/2765271 [https://perma.cc/Z6Z6-T82S]; Weihua Li & Nicole Lewis, This Chart Shows Why the Prison Population Is So Vulnerable to COVID-19, Marshall Project (Mar. 19, 2020), https://www.themarshallproject.org/2020/03/19/this-chart-shows-why-the-prison-population-is-so-vulnerable-to-covid-19 [https://perma.cc/4ZRQ-TMT2]; Michael Tonry, From Policing to Parole: Reconfiguring American Criminal Justice, 46 Crime & Just. 1, 2 (2017).
  15. See Emily Widra, Since You Asked: How Many People Aged 55 or Older Are in Prison, by State?, Prison Pol’y Initiative (May 11, 2020), https://www.prisonpolicy.org/­blog/2020/05/11/55plus/ [https://perma.cc/K3VR-7UN7].
  16. See Clark Neily, Decarceration in the Face of a Pandemic, Cato Inst. (Apr. 30, 2020), https://www.cato.org/blog/decarceration-face-pandemic [https://perma.cc/8TW5-W9E4]; Megan Wallace et al., COVID-19 in Correctional and Detention Facilities—United States, February–April 2020, CDC (May 15, 2020), https://www.cdc.gov/mmwr/volumes/69/­wr/mm6919e1.htm [https://perma.cc/5CBB-N5SP]. For example, even in late April 2020, the Metropolitan Detention Center in New York still lacked simple procedures to identify prisoners with COVID, prevent spread, and provide care. Facility Evaluation: Metropolitan Detention Center COVID-19 Response, Chunn v. Edge, No. 20-cv-01590, at 1–2 (E.D.N.Y. Apr. 30, 2020).
  17. Because of the risk of visitor transmission, prisons across the country have restricted visitor access. See Brenna Ehrlich, Are Prisons Doing Enough To Prevent Coronavirus Outbreaks?, Rolling Stone (Mar. 12, 2020), https://www.rollingstone.com/culture/culture-features/prisons-covid-19-966251/.
  18. See Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/upshot/­coronavirus-jails-prisons.html [https://perma.cc/HT3W-UA5W].
  19. See Arthur G. Cosby et al., Growth and Persistence of Place-Based Mortality in the United States: The Rural Mortality Penalty, Am. J. Pub. Health (Dec. 19, 2018), https://ajph.aphapublications.org/doi/10.2105/AJPH.2018.304787 [https://perma.cc/X4T6-R5BT]; Jonathan Ben-Menachem, Coronavirus Exposes Precarity of Prison Towns, Appeal (Apr. 21, 2020), https://theappeal.org/coronavirus-prison-towns/ [https://perma.cc/R45Q-WW58].
  20. See Adam J. Levitin, In Defense of Bailouts, 99 Geo. L.J. 435, 443 n.20 (2011) (collecting definitions); Steven L. Schwarcz, Systemic Risk, 97 Geo. L.J. 193, 197 (2008) (identifying the inclusion of a chain reaction as a commonality across definitions).
  21. See, e.g., David A. Skeel Jr., States of Bankruptcy, 79 U. Chi. L. Rev. 677, 718 (2012) (describing three different types of market contagion).
  22. See Rachel E. Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration 42–43 (2019); Council of Econ. Advisors, Economic Perspectives on Incarceration and the Criminal Justice System 37 (2016); Nat’l Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences 139–140 (Jeremy Travis et al. eds., 2014).
  23. See Francis T. Cullen, Rehabilitation: Beyond Nothing Works, in 42 Crime & Just., Crime & Justice in America, 1975–2025, at 299 (Michael Tonry ed., 2013); Francis T. Cullen et al., Reinventing Community Corrections, in 46 Crime & Just., Reinventing American Criminal Justice 27 (Michael Tonry & Daniel S. Nagin eds., 2017).
  24. See Barkow, supra note 21, at 46.
  25. See Steven D. Levitt, The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding Litigation, 111 Q.J. Econ.

    319, 347 (1996); see also, generally, Donald Braman, Doing Time on the Outside: Incarceration and Family Life in Urban America (2007) (comprehensively exploring the effect of incarceration on families and affected communities).

  26. See Peter Wagner & Bernadette Rabuy, Following the Money of Mass Incarceration, Prison Pol’y Initiative (Jan. 25, 2017), https://www.prisonpolicy.org/reports/money.html [https://perma.cc/WJ45-SD2U]
  27. See Franklin E. Zimring & Gordon Hawkins, The Scale of Imprisonment 140 (1991).
  28. See Bruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621 Annals Am. Acad. Pol. & Soc. Sci. 221, 233–41 (2009).
  29. The literature arguing in favor of decarceration is massive, and I join the basic view that mass incarceration has been an economic and social disaster. See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 127–59 (2010) (arguing that mass incarceration functions as a means of racial control); Barkow, supra note 21 (urging a more evidence-based, technocratic treatment of incarceration, typical of the cost-benefit approach taken by administrative agencies); John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How To Achieve Real Reform (2017) (scrutinizing the role of prosecutors in mass incarceration).
  30. Cf., e.g., Neily, supra note 15 (characterizing the position of COVID decarceration as being supported by “all but the most obtuse proponents of mass incarceration”).
  31. See, e.g., Sean Kennedy, Maryland Should Not Release Prisoners. It’s Safer for Everyone, Wash. Post (Apr. 27, 2020), https://www.washingtonpost.com/opinions/­2020/04/27/­maryland-should-not-release-prisoners-its-safer-everyone/ [https://perma.cc/MM2M-UTPZ]; Craig McCarthy, Dozens of Rikers Inmates Arrested Again After Coronavirus Release, N.Y. Post (May 12, 2020), https://nypost.com/2020/05/12/over-100-inmates-rearrested-after-their-coronavirus-release/ [https://perma.cc/E5Y4-BALJ].
  32. See, e.g., Zachary A. Siegel & Leo Beletsky, Why We Shouldn’t Reward Fearmongering in Criminal Justice Reporting, Appeal (May 19, 2020), https://theappeal.org/pulitzer-prize-matt-bevin-commutations/ [https://perma.cc/E5M2-SC5Y] (discussing how sensationalistic reporting produced political blowback).
  33. See generally J.J. Prescott et al., Understanding Violent-Crime Recidivism, 95 Notre Dame L. Rev. 1643, 1647 (2020) (reporting extensive data analysis of recidivism rates for those convicted of violent crimes and concluding that, in a social welfare calculation, early release is usually an appropriate policy response).
  34. See 28 U.S.C. §§ 2241, 2254, 2255 (2012).
  35. See UCLA Covid-19 Behind Bars Data Project, UCLA Law, https://law.ucla.edu/­centers/criminal-justice/criminal-justice-program/related-programs/covid-19-behind-bars-data-project/ [https://perma.cc/FT5W-7V8E] (last visited May 6, 2020) (tracking such litigation).
  36. See, e.g., Class Action Complaint for Declaratory and Injunctive Relief and Petition for Writs of Habeas Corpus, Banks v. Booth, No. 1:20-cv-00849, at 29–30 (D.D.C. Mar. 30, 2020).
  37. See, e.g., Class Action Complaint, Money v. Pritzker, No. 1:20-cv-02093, at 40–42 (N.D. Ill. Apr. 2, 2020).
  38. See, e.g., Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief, Livas v. Myers, No. 2:20-cv-00422, at 27–29 (W.D. La. Apr. 6, 2020) (seeking discharge under 28 U.S.C. § 2241); Class Action Complaint and Application for Temporary Restraining Order and Other Injunctive Relief, Valentine v. Collier, No. 4:20-cv-01115, at 32–34 (S.D. Tex. Mar. 30, 2020) (seeking changed conditions under 42 U.S.C. § 1983).
  39. As of May 19, there were over 100 lawsuits nationwide seeking discharge or other ways to “reduce overcrowding and infection risks in jails.” Eisler et al., supra note 12.
  40. The use of the class action mechanism in habeas cases is rare, and the Supreme Court has never formally approved it. See Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (2018) (Thomas, J., concurring in part and concurring in the judgment) (citing Schall v. Martin, 467 U.S. 253, 256 n.10 (1984)).
  41. In the COVID litigation over conditions at the Elkton Federal Correctional Institution, initially considered one of the very biggest prisoner successes, and which resulted in a later-reversed order to release medically vulnerable detainees, there was still significant lag. The emergency action was filed on April 13. See Emergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief, Wilson v. Williams, No. 4:20-cv-00794 (N.D. Ohio Apr. 13, 2020). Even though the district court ordered relief nine days later, the order gave the facility two weeks to comply. See Wilson v. Williams, No. 20-3447 (6th Cir. May 4, 2020). There was considerable litigation in which the plaintiffs sought more aggressive compliance with the district court’s preliminary order, and the Sixth Circuit did not finally rule on the preliminary injunction until June 9—when it vacated the lower court order. See Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). Had the plaintiffs won in the Sixth Circuit, there would have been a two-month lag.
  42. See 28 U.S.C. §§ 2241(c)(3) & 2254(a) (2012). Section 2255(a) cognizability is slightly different, but not in ways that implicate my discussion here.
  43. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
  44. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
  45. See Wilson v. Seiter, 501 U.S. 294, 303 (1991). At least one federal court, however, has determined that a pre-trial Fourteenth Amendment claimant need not prove deliberate indifference, because pre-trial detention cannot be conceptualized as punishment. See Banks v. Booth, No. 1:20-cv-00849, at 8–9 (D.D.C. June 18, 2020).
  46. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
  47. See generally Joel H. Thompson, Today’s Deliberate Indifference: Providing Attention Without Providing Treatment to Prisoners with Serious Medical Needs, 45 Harv. C.R.-C.L. L. Rev. 635, 637 (2010) (discussing the inability of prisoner claimants to meet the deliberate indifference standard).
  48. But see Ruling on Motion for Temporary Restraining Order and Motion To Dismiss, Martinez-Brooks v. Carvajal, No. 3:20-cv-00569, at 42–57 (D. Conn. May 12, 2020) [hereinafter FCI Danbury Order] (awarding temporary restraining order (“TRO”) in part based on the expectation that plaintiffs would prevail on deliberate indifference theory).
  49. See Valentine v. Collier, No. 20-20207, at 6–7 (5th Cir. Apr. 22, 2020).
  50. Id. at 7.
  51. Id. at 8. I do not mean to suggest that a thick subjective prong is correct. A minority of circuits differ from the Fifth insofar as they do not apply a stringent subjective prong in cases where pre-trial plaintiffs seek prospective relief. See, e.g., Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). Indeed, the leading Supreme Court case indicates that a defendant refusing to address an excessive risk necessarily meets the subjective prong when it resists relief. See Farmer v. Brennan, 511 U.S. 825, 846 n.9 (1994).
  52. See Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020); Swain v. Junior, 958 F.3d 1081, 1089–90 (11th Cir. 2020); see also Order, Hallinan v. Scarantino, No. 5:20-hc-02088, at 28–34 (E.D.N.C. June 11, 2020) (district court decision finding against prisoner-plaintiffs on deliberate indifference); Order, Lucero-Gonzalez v. Kline, No. 2:20-cv-00901, at 14 (D. Ariz. June 2, 2020) (same).
  53. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that a prisoner seeking “release” must use the habeas remedy). But see Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (holding that conditions-of-confinement litigation can proceed under habeas provisions as long as the plaintiffs seek discharge).
  54. There are, however, meaningful questions about whether convicted prisoners seeking COVID discharge were supposed to proceed under the generally applicable post-conviction provisions in §§ 2254 and 2255, or under the failsafe provisions in § 2241.
  55. Cf. Wilborn v. Mansukhani, 795 F. App’x 157, 163 (4th Cir. 2019) (remarking that seven of ten “circuits that have addressed the issue in a published decision have concluded that claims challenging the conditions of confinement cannot be brought in a habeas petition”).
  56. See, e.g., Answer, Return of Writ, and Response in Opposition to Petition for Writ of Habeas Corpus, Injunctive and Declaratory Relief, Wilson v. Williams, No. 4:20-cv-00794, at 15–18 (N.D. Ohio Apr. 17, 2020).
  57. See, e.g., Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020) (“The BOP’s attempts to classify petitioners’ claims as ‘conditions of confinement’ claims, subject to the PLRA, are unavailing.”); FCI Danbury Order, supra note 47, at 33–36.
  58. See, e.g., Order, Hallinan v. Scarantino, No. 5:20-hc-02088, at 21–26 (E.D.N.C. June 11, 2020); Amended Order Denying Ex Parte Application for Temporary Restraining Order and Order To Show Cause Re: Preliminary Injunction, Wilson v. Ponce, No. 2:20-cv-04451, at 18 (C.D. Cal. June 10, 2020); Order Denying Motion for Preliminary Injunction, Victor Alvarez v. Larose, No. 20-cv-00782, 2020 WL 3053193, at *4 (S.D. Cal. June 7, 2020); Wragg v. Ortiz, No. 2:20-cv-05496, 2020 WL 2745247, at *20 (D.N.J. May 27, 2020); Ruling, Livas v. Myers, No. 2:20-cv-00422, at 19 (W.D. La. Apr. 22, 2020). More recently, the Federal District for the District of Columbia simply ducked the question, determining that a habeas claim was sufficiently unlikely to succeed on the merits that the court need not resolve the habeas vehicle question. See Banks v. Booth, No. 1:20-cv-00849, at 30 n.4 (D.D.C. June 18, 2020).
  59. I focus on exhaustion here, but there were other doctrinal snags. For example, the severe restrictions on successive post-conviction litigation appearing in 28 U.S.C. §§ 2244(b) and 2255(h) reduced the potential plaintiff pool, as some prisoners were probably unwilling to reduce the expected return on future post-conviction litigation.
  60. See, e.g., Petitioners’ Reply in Support of Their Petition for Writs of Habeas Corpus, Money v. Jeffreys, No. 1:20-cv-02094, at 39–41 (N.D. Ill. Apr. 8, 2020).
  61. See, e.g., Memorandum Opinion and Order, Mays v. Dart, No. 1:20-cv-02134, at 12–14 (N.D. Ill. Apr. 9, 2020); cf. Memorandum Opinion and Order, Money v. Jeffreys, No. 1:20-cv-02094, at 46–47 (N.D. Ill. Apr. 10, 2020) (in post-conviction claimant class action brought under 28 U.S.C. § 2254, finding non-exhaustion because there was “no effort to establish that the trial courts in the numerous other counties where they are housed are [or were] unavailable”).
  62. The so-called “Heck bar” precludes prisoners from using § 1983 to mount challenges that necessarily imply the invalidity of their convictions or sentences. See Heck v. Humphrey, 512 U.S. 477, 487 (1994). To the extent a § 1983 claimant is seeking release without necessarily invalidating the conviction or sentence, the Heck bar poses less of a problem than it might initially seem.
  63. 511 U.S. 825 (1994).
  64. Id. at 846 n.9; see also supra notes 48–50 and accompanying text (explaining use of subjective prong of deliberate indifference inquiry in prospective relief requests).
  65. See, e.g., Ruling, Livas v. Myers, No. 2:20-cv-00422, at 19 (W.D. La. Apr. 22, 2020). The PLRA exhaustion requirements apply to any prisoner release orders issued in a civil proceeding, excepting those issuing by way of a habeas corpus writ. See 18 U.S.C. § 3626(g)(1) (2012).
  66. See, e.g., Memorandum Opinion and Order, Money v. Pritzker, No. 1:20-cv-02093, at 29 (N.D. Ill. Apr. 10, 2020); cf., e.g., Coleman v. Newsom, No. 01-cv-01351, 2020 WL 1675775, at *7 (E.D. Cal. Apr. 4, 2020) (“If a single-judge court finds a constitutional violation, it may order Defendants to take steps short of release necessary to remedy that violation. And if that less intrusive relief proves inadequate, Plaintiffs may request, or the district court may order sua sponte, the convening of a three-judge court to determine whether a release order is appropriate.”).
  67. See Brown v. Plata, 563 U.S. 493, 507 (2011).
  68. See UCLA Law Builds Databases on Prisons and COVID-19, UCLA Law (Mar. 25, 2020), https://newsroom.ucla.edu/releases/prisons-databases-covid-19 [https://perma.cc/­2BUW-CWWN] (housing list of administrative remedies, which site links as “Statutory Release Powers”).
  69. See, e.g., Minn. R. Crim. P. 6.01 (setting forth authority for pre-trial release).
  70. See, e.g., Ariz. Rev. Stat. § 11-459 (2020) (work release and home detention); Ga. Code Ann. § 42-9-60 (2020) (overcrowding-based parole); N.C. Gen. Stat. § 15A-1369 (2020) (compassionate release); Okla. Stat. tit. 57, § 20 (2020) (good-time credit).
  71. See, e.g., Mass. Gen. Laws ch. 126, § 26 (2020) (providing for broader removal to a separate facility in the event of a sufficiently dangerous disease); Mont. Code § 50-2-121 (2019) (providing for removal of sick prisoners).
  72. See, e.g., Cal. Gov’t Code § 8658 (2020) (empowering wardens to remove endangered prisoners from detention facilities with strong preference for alternate sites of detention).
  73. See Responses to the COVID-19 Pandemic, Prison Pol’y Initiative, https://www.prisonpolicy.org/virus/virusresponse.html [https://perma.cc/S45B-F94T] (up­dated continuously).
  74. See Analise Pruni, Hennepin County Jail Population Cut by 44% in Light of COVID-19, Minn. Spokesman-Recorder (Apr. 22, 2020), https://spokesman-recorder.com/­2020/04/22/hennepin-county-jail-population-cut-by-44-in-light-of-covid-19/ [https://perma.cc/37FM-ERVY] (reduced booking); David Sachs, Denver’s Jail Population Is Drastically Shrinking, But That Alone Can’t Stop Deputies and Inmates from Getting Coronavirus, Denverite (Apr. 20, 2020), https://denverite.com/2020/04/20/denvers-jail-population-is-drastically-shrinking-but-inmates-and-deputies-are-far-from-immune-to-cor­onavirus/ [https://perma.cc/WS63-C7QP] (pre-trial release and short sentence balances).
  75. See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/9G6D-X42F].
  76. See Sachs, supra note 73.
  77. For example, Iowa’s decision to release 800 prisoners nearing the end of their sentences produced a net prisoner population drop of only three percent. See Emily Widra & Peter Wagner, While Jails Drastically Cut Populations, State Prisons Have Released Almost No One, Prison Pol’y Initiative (May 1, 2020), https://www.prisonpolicy.org/­blog/2020/05/01/jails-vs-prisons/ [https://perma.cc/V3GV-Y54J].
  78. See, e.g., Nick Swartsell, DeWine Authorizes Release of 105 Inmates as Coronavirus Cases in Ohio Prisons Swell into the Hundreds, CityBeat (Apr. 16, 2020), https://www.citybeat.com/news/blog/21128810/dewine-authorizes-release-of-105-inmates-as-coronavirus-cases-in-ohio-prisons-swell-into-the-hundreds (prisoners approaching the ends of sentences).
  79. See, e.g., Linh Ta, Iowa’s Prisons Will Accelerate Release of Approved Inmates To Mitigate COVID-19, Times-Republican (Mar. 23, 2020), https://www.timesrepublican.com/­news/todays-news/2020/03/iowas-prisons-will-accelerate-release-of-approved-inmates-to-mitigate-covid-19/ [https://perma.cc/S3CX-BT4V] (parole-eligible prisoners); Heather Walker, Coronavirus Prompts Prisons To Parole Inmates More Quickly, Wood TV (Apr. 14, 2020), https://www.woodtv.com/health/coronavirus/coronavirus-prompts-prisons-to-parole-some-early/ [https://perma.cc/YXA9-AEW6] (parole-eligible prisoners convicted of non-violent offenses).
  80. See, e.g., Leslie Rubin, W.Va. Taking Steps To Reduce Inmate Population amid COVID-19 Pandemic, WCHS-ABC 8 (Apr. 1, 2020), https://wchstv.com/news/coronavirus/wva-taking-steps-to-reduce-inmate-population-amid-covid-19-pandemic [https://perma.cc/VM87-G5PG] (prisoners detained for parole violations).
  81. Widra & Wagner, supra note .
  82. For example, upon reentry, those who reoffend tend to recidivate in their home communities. See Barkow, supra note 21, at 46, 48. The sources of information necessary to make discharge decisions also tend to reside with local institutions. See Margaret Colgate Love, Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest, 47 U. Tol. L. Rev. 89, 105–06 (2015).
  83. The more cases are funneled through common decision makers, the higher the likelihood of correlated decision making.
  84. See, e.g., Ashley Paredez, Officials Release 1,000 Inmates To Ease Crowding, Slow Spread of COVID-19 at Dallas County Jail, Fox 4 News (Apr. 16, 2020), https://www.fox4news.com/news/officials-release-1000-inmates-to-ease-crowding-slow-spread-of-covid-19-at-dallas-county-jail [https://perma.cc/3HDS-VEZN] (with respect to discharges in Dallas County, “a judge must sign off on each case”).
  85. To take Alabama as an illustrative example, restoration of good-time credits necessary to generate an early discharge must be recommended initially by a facility official, pass through a centralized records process, and be adopted by a Department of Corrections commissioner. See Ala. Code

    § 14-9-41(f)(2) (2020). In North Carolina, a medical release requires a formal request or petition, a referral from the Department of Public Safety based on a medical evaluation and risk assessment, and a favorable determination from a post-release and parole commission. See N.C. Gen. Stat. § 15A-1369 (2020). In Louisiana, the state promulgated rules declaring a prisoner category eligible for furlough, only to see discharge activity slashed by a review panel vested with veto power. See Lea Skene, Release Denied for Most Louisiana Inmates Considered Under New Coronavirus Furlough Program, Advocate (Apr. 30, 2020), https://www.theadvocate.com/baton_rouge/news/coronavirus/article_151f6068-8b04-11ea-9319-17978dff7507.html.

  86. See Brandon Garrett, Five Takeaways from Prison Actions During COVID-19, Duke L. Ctr. for Sci. & Just. Blog (May 22, 2020), https://sites.law.duke.edu/csj-blog/2020/05/22/five-takeaways-from-prison-actions-during-covid-19/ [https://perma.cc/S8NU-AW7Q]; J.J. Prescott et al., It’s Time To Start Releasing Some Prisoners with Violent Records, Slate (Apr. 13, 2020), https://slate.com/news-and-politics/2020/04/combat-covid-release-prisoners-violent-cook.html [https://perma.cc/3A7F-73RV].
  87. See, e.g., Mass. Gen. Laws ch. 111, § 108 (2020) (“If a prisoner . . . has a disease which . . . is dangerous to the safety and health of other prisoners or of the inhabitants of the town, the board shall . . . direct his removal to a hospital or other place of safety, there to be provided for and securely kept until its further order.”); Mont. Code Ann. § 50-2-121 (2019) (“On written order of a local health officer, a diseased prisoner who is held in a jail and who is considered dangerous to the health of other prisoners may be removed to a hospital or other place of safety.”).
  88. I use “asymptomatic” colloquially here, because I technically mean to include both asymptomatic and pre-symptomatic transmission.
  89. See, e.g., N.M. Stat. Ann. § 33-2-29 (2020); N.Y. Correct. Law § 141 (2020).
  90. See CDC, Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/­coronavirus/2019-ncov/prevent-getting-sick/social-distanc­ing.html [https://perma.cc/N8S9-4TFH] (last visited May 4, 2020).
  91. See Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, § 12003(b)(2) (2020).
  92. See Clare Hymes, Barr Tells Federal Prisons To Send Inmates Home in Response to Coronavirus Outbreak, CBS News (Mar. 27, 2020), https://www.cbsnews.com/news/attorney-general-william-barr-bureau-of-prisons-send-inmates-home-coronavirus-covid-19/ [https://perma.cc/5ZFC-H8YQ].
  93. See Attorney General William Barr, Memorandum for Director of Bureau of Prisons
    (Apr. 3, 2020), https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1-c6d51b810000 [https://perma.cc/VXN2-SF8A].
  94. See Clare Hymes, Amid COVID-19 Threat, Inmates and Families Confused by
    Federal Guidance on Home Confinement Release, CBS News, (Apr. 24, 2020), https://www.cbsnews.com/news/amid-covid-19-threat-inmates-and-families-confused-by-federal-guidance-on-home-confinement-release/ [https://perma.cc/XV3N-4SBQ].
  95. See FCI Danbury Order, supra note 47, at 1.
  96. See Joseph Neff & Keri Blakinger, Michael Cohen and Paul Manafort Got To Leave Federal Prison due to COVID-19. They’re the Exception, Marshall Project (May 21, 2020), https://www.themarshallproject.org/2020/05/21/michael-cohen-and-paul-manafort-got-to-leave-federal-prison-due-to-covid-19-they-re-the-exception [https://perma.cc/EZ3S-KUBJ].
  97. 18 U.S.C. § 3582(c)(1)(A)(i) (2012).
  98. See FCI Danbury Order, supra note 47, at 25.
  99. See id. at 24–25.
  100. See id. at 25–26.
  101. Id. at 53.
  102. See Opinion & Order, U.S. v. Scparta, No. 18-cr-00578, at 2 (S.D.N.Y. Apr. 19, 2020).
  103. Order, Wilson v. Williams, No. 4:20-cv-00794, at 4 (N.D. Ohio May 19, 2020). In vacating the Wilson preliminary injunction, the Sixth Circuit did not dispute the failure to clear prisoners from facilities, but it nonetheless held that the BOP’s changed facility policies were sufficiently reasonable responses to the COVID risk. See Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020).
  104. See Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020).
  105. See Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law, 90 N.Y.U. L. Rev. 802, 807 (2015) (federal power); Cara H. Drinan, Clemency in a Time of Crisis, 28 Ga. St. U. L. Rev. 1123, 1124 (2012) (state power).
  106. The best collection of information about executive action taken in response to COVID, including clemency activity, is maintained by the NYU Center on the Administration of Criminal Law. See A Survey of Executive Action Concerning the Spread of COVID-19 in State Correctional Facilities, NYU Ctr. on Admin. Crim. L., https://docs.google.com/document/d/1ZOs8LtiPajxjAiKDn4VwDnhng0AkDrMi/edit (last visited May 5, 2020) [hereinafter Executive Action Survey].
  107. See, e.g., Courtney Oliva & Ben Notterman, Governors Must Use Clemency Powers
    To Slow the Pandemic, Justice Collaborative Inst. 2 (April 2020), http://filesforprogress.org/memos/governors-must-use-clemency-powers-to-slow-the-pandemic.pdf [https://perma.cc/97ZJ-WG6D] (urging states capable of efficiently invoking clemency powers to do so).
  108. See supra note 5.
  109. The leading exception was Kentucky, where the governor used his clemency power to implement a system of review necessary to release over 900 prisoners in its correctional system. See Brian Planalp, Nearly 1,000 Kentucky Prison Sentences To Be Commuted, Beshear Says, Fox19 Now (Apr. 2, 2020), https://www.fox19.com/2020/04/02/watch-live-gov-beshear-provides-update-covid-kentucky/ [https://perma.cc/PNK3-ARWY]. The Oklahoma governor used his clemency power on a smaller but still substantial scale. See Hicham Raache, Gov. Stitt Approves Hundreds of Prison Commutations To Mitigate Coronavirus Spread, KFOR (Apr. 10 2020), https://kfor.com/health/coronavirus/gov-stitt-approves-hundreds-of-prison-commutations-to-mitigate-coronavirus-spread/ [https://perma.cc/MGJ9-EN5S].
  110. For example, with respect to the Kentucky initiative described above, the state was able to reduce the prison population by only 4.35 percent. See Widra & Wagner, supra note .
  111. See U.S. Const. art. II, § 2, cl. 1.
  112. See Barkow, supra note 104, at 824. The process proceeds less reliably through that channel under President Donald Trump. See Paul Callan, Trump Should Pick Kim Kardashian West as His Pardon Advisor, CNN (Feb. 19, 2020), https://www.cnn.com/2020/02/19/opinions/trump-new-pardon-adviser-kim-kardashian-west-callan/index.html [https://perma.cc/NEN4-DU7M].
  113. See Paul J. Larkin, Jr., Revitalizing the Clemency Process, 39 Harv. J.L. & Pub. Pol’y 833, 900 (2016).
  114. See Models for Pardon Administration, 50-State Comparison: Pardon Policy and Practice, Restoration of Rts. Project, http://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities-2/ [https://perma.cc/5AQ4-MC6L] (last visited Apr. 19, 2020) (listing only three states as permitting no consultation with a board and twenty more as being permitted to consult with a board).
  115. There are twenty-one states where a governor must share power and twenty-three states where she may. See Margaret Colgate Love et al., Collateral Consequences of Criminal Convictions: Law, Policy and Practice §§ 7:8, 7:10 & 7:11 (2013).
  116. As another example, the Texas governor cannot issue a pardon or commutation without a recommendation from a legislatively appointed board. See Tex. Const. art. IV, § 11.
  117. See Margaret Colgate Love, Reinvigorating the Federal Pardon Process: What the President Can Learn from the States, 9 U. St. Thomas L.J. 730, 743–751 (2012); Mark Osler, Fewer Hands, More Mercy: A Plea for a Better Federal Clemency System, 41 Vt. L. Rev. 465, 493 (2017).
  118. The NYU Center on the Administration of Criminal Law has compiled a state-by-state list of clemency power, with special notation for reprieve power. See NYU Law, https://www.law.nyu.edu/sites/default/files/reprieve%20power%207.pdf [https://perma.cc/FC3S-48QW] (last visited May 8, 2020).
  119. See Executive Action Survey, supra note 105.
  120. See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 590–92 (1991).
  121. See, e.g., The Federalist No. 74 (Alexander Hamilton).
  122. See, e.g., Lee Kovarsky, Mercy, Localism, and the American Prosecutor (unpublished manuscript) (on file with author) (arguing that increased discharge power should be given to locally elected prosecutors); Lee Kovarsky, The Negative Pardon Power, New Crim. L. Rev. (forthcoming 2021) (on file with author) (arguing that constitutionally specified power often does not, and should not, exclude other means of reducing lawfully imposed sentences).
  123. See supra Part II.
  124. See supra Part III.
  125. See supra notes 110–15 and accompanying text.
  126. I discuss political costs and benefits below, but the fiscal cost of prison incarceration is borne by the state. See Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 719–20 (1996).
  127. See Garcia, supra note 6 (quoting Professor John Pfaff on gubernatorial behavior); see also, e.g., Siegel & Beletsky, supra note 31 (describing phenomenon in context of eleventh-hour Kentucky clemency).
  128. The local costs and benefits I have in mind include the fiscal cost of jails, the social costs to innocent families and local communities of having a member incarcerated, the support systems for and costs of reentry, the risk of recidivism, and the impact on victims. See Kovarsky, Mercy, Localism, and the American Prosecutor, supra note 121 (manuscript at 22–23).
  129. See id. (manuscript at 23).
  130. See, e.g., Heather K. Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 10 (2010); Heather K. Gerken, Our Federalism(s), 53 Wm. & Mary L. Rev. 1549, 1556–60 (2012); Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256, 1265–71 (2009).
  131. See supra note 121.
  132. See Stanley Grupp, Some Historical Aspects of the Pardon in England, 7 Am. J. Legal Hist. 51, 60–61 (1963).
  133. See Guyora Binder & Robert Weisberg, Response: What Is Criminal Law About?, 114 Mich. L. Rev. 1173, 1199–1200 (2016); Carol S. Steiker & Jordan M. Steiker, Lessons for Law Reform from the American Experiment with Capital Punishment, 87 S. Cal. L. Rev. 733, 781 (2014).
  134. See Lauren M. Ouziel, Democracy, Bureaucracy, and Criminal Justice Reform, 61 B.C. L. Rev. 523, 525–26 (2020); see also, e.g., First Step Act of 2018, Pub. L. No. 115-391, §§ 401–05, 132 Stat. 5194 (2018) (landmark federal legislation with bipartisan support permitting sentence reductions for certain drug sentences).
  135. See Kovarsky, Mercy, Localism, and the American Prosecutor, supra note 121.
  136. See id.; cf. Adam M. Gershowitz, Consolidating Local Criminal Justice: Should Prosecutors Control the Jails?, 51 Wake Forest L. Rev. 677, 680–81 (2016) (arguing in favor of aligning incentives and power to decarcerate jails by giving prosecutors some “skin in the game” after convictions are entered).
  137. When I use the phrase “lawfully imposed punishment,” I do so in order to avoid confusion with habeas remedies, which are directed to punishment that was unlawfully imposed.
  138. See State v. Shafer-Imhoff, 632 N.W.2d 825, 838 (N.D. 2001); State v. Cummings, 386 N.W.2d 468, 472 n.2 (N.D. 1986).
  139. See Act of March 3, 1797, Pub. L. No. 4-13, 1 Stat. 506 (assigning Treasury Secretary power with sunset provisions); see also Act of February 11, 1800, Pub. L. No. 6-10, 2 Stat. 7 (extending prior act in perpetuity).
  140. 114 U.S. 411 (1885).
  141. Id. at 414.
  142. 161 U.S. 591 (1896).
  143. See id. at 593–94.
  144. Id. at 601.
  145. See First Step Act of 2018, Pub. L. No. 115-391, §§ 401–05, 132 Stat. 5194 (2018).
  146. Mich. Const. art. V, §14.
  147. See Kent Cty. Prosecutor v. Kent Cty. Sheriff, 409 N.W.2d 202, 205 (Mich. 1987).
  148. See id. at 203.
  149. See, e.g., State v. Stenklyft, 697 N.W.2d 769, 785 (Wis. 2005) (affirming the constitutionality of multiple categories of judicial power to reduce or amend sentences). The logic often tracks that expressed in a federal case, United States v. Benz, 282 U.S. 304 (1931).

Restoring Honor: Ending Racial Disparities in University Honor Systems

Introduction

In student-led academic honor systems, students establish policies governing lying, cheating, or stealing (referred to as “academic misconduct”); adjudicate reports of academic misconduct among their peers; and determine appropriate sanctions.1.David A. Rettinger & Douglas Searcy, Student-Led Honor Codes as a Method for Reducing University Cheating, 12 Econ. & Envtl. Stud. 223, 225 (2012) (discussing the features of student-led honor systems).Show More These systems have been a common feature of American universities since the early eighteenth century,2.Id. at 224.Show More and they are growing in popularity.3.Id. (finding that student-led honor systems are “growing in popularity”).Show More Today, student-led honor systems are already in use at five of the top six public universities, as ranked by U.S. News and World Report in 20204.SeeUVA Honor Comm., Honor Audit Commission 2017–2018 Report 16–17 (2018), https://honor.virginia.edu/sites/honor.virginia.edu/files/HAC%20Report_Final.pdf [https://perma.cc/X99A-M3RN] (providing additional detail about the level of faculty and administrator involvement in each system). The only top public university that does not have an honor system is the Georgia Institute of Technology. Top Public Schools 2020, U.S. News, https://www.usnews.com/best-colleges/rankings/national-universities/top-public [https://perma.cc/QS5Y-35FP] (last visited May 27, 2020).Show More: the University of California (Los Angeles), the University of California (Berkeley), the University of Michigan, the University of Virginia, and the University of North Carolina at Chapel Hill. Student-led honor systems are also in place at George Mason University, James Madison University, Virginia Tech, William & Mary, Indiana University, and The Ohio State University, among others.5.SeeUVA Honor Comm., supra note 4, at 16 (identifying UVA’s peer schools with honor systems).Show More

Universities have chosen to adopt student-led honor systems in part because of a correlation between low levels of academic dishonesty and the use of a student-led honor system.6.E.g., Donald L. McCabe, Linda Klebe Treviño & Kenneth D. Butterfield, Honor Codes and Other Contextual Influences on Academic Integrity: A Replication and Extension to Modified Honor Code Settings, 43 Res. Higher Educ. 357, 368 (2002) (finding a statistically significant correlation between the use of a student-led honor system and lower levels of cheating).Show More Student-led honor systems also reflect a preference for students enforcing community norms in peer-to-peer settings, free from the influence of faculty and administrators.7.SeeLarry A. DiMatteo & Don Wiesner, Academic Honor Codes: A Legal and Ethical Analysis, 19 S. Ill. U. L.J. 49, 62 (1994) (discussing the history of honor codes and their legal and ethical purposes).Show More Despite many universities’ beliefs that honor systems are effective and enhance community values, however, student-led honor systems are not immune from the racial discrimination that pervades the administration of public elementary and secondary school disciplinary policies and the criminal justice system.8.Seeinfra Section I.A.Show More

The experience of Johnathan Perkins, a Black student in his final year at the University of Virginia (“UVA”) School of Law, serves as an example of the racial discrimination present in university, student-led honor systems. In the spring of his graduating year, Perkins wrote an editorial about having been racially profiled and harassed by campus police.9.Johnathan Perkins, Editorial, Re-examining Honor, Cavalier Daily (Oct. 2, 2018) [hereinafter Re-examining Honor], https://www.cavalierdaily.com/article/2018/10/perkins-re-examining-honor [https://perma.cc/HA6F-C7SN] (explaining how the editorial he wrote in 2011 led to him being reported to the Honor System).Show More Shortly thereafter, an FBI agent used “high-pressure interrogation tactics” to force him to recant.10 10.Id.Show More The campus newspaper called him a “race hoax hustler,” and a community member reported him to UVA’s student-led honor system for lying.11 11.Denise Lavoie, Man Says FBI Pressured Him To Recant Racial Profiling Claim, U.S. News(Mar. 28, 2018), https://www.usnews.com/news/us/articles/2018-03-28/man-says-fbi-pressured-him-to-recant-racial-profiling-claim [https://perma.cc/LA3Y-3M74].Show More Because the charges hinged on Perkins’s credibility in alleging that he had been the victim of racially discriminatory policing, during his trial, the student jury was “confronted with their own potential [racial] biases.”12 12.Re-examining Honor, supranote 9.Show More According to Perkins, the jurors “struggled to understand how their biases may have been influencing their evaluation” of the charges and asked questions that “clearly indicated a lack of thoughtful perspective on race.”13 13.Johnathan S. Perkins, Justice in America Has Never Been Colorblind: U.Va.’s Honor System Is No Different, in Honor Bicentennial Report (Feb. 11, 2019) [hereinafter Justice in America Has Never Been Colorblind], https://report.honor.virginia.edu/implicit-bias-spotlighting-and-dimming [https://perma.cc/6SQL-6Q8V].Show More

The jury exonerated Perkins in the summer of 2011, but Perkins did not feel free to speak of his experience until 2018, when the statute of limitations for criminal charges for making a false statement had passed.14 14.Lavoie,supranote 11.Show More His freedom to speak coincided with the February 2019 release of the UVA Honor Committee’s Bicentennial Analysis report,15 15.Honor Assessment & Data Mgmt. Working Grp., Bicentennial Analysis (2019) https://report.honor.virginia.edu/sites/report.honor/files/honor-bicentennial-analysis.pdf [https://perma.cc/UQU3-53YP].Show More which confirmed what Perkins alleged: racial disparities in the administration of the UVA Honor System.16 16.See discussion infra Section I.A.Show More

Perkins’s experience and the data from UVA are not anomalies: other universities’ student-led academic honor systems likely discriminate against students of color, but most universities do not collect or publicize data about their honor systems. This lack of data, combined with legal obstacles, prevents students who have experienced racial discrimination in their university’s honor system from taking advantage of legal remedies that protect their educational rights. External pressure, however, can mitigate these obstacles by bolstering the evidence available to litigants and compelling universities to adopt procedural protections that better protect students’ rights. This issue takes on heightened importance as students of color, who are historically underrepresented at universities, have begun enrolling in increasing numbers,17 17.Black and Hispanic students comprised 13.6% and 18.9% of the college population, respectively, in 2017, as compared to 11.7% and 9.9%, respectively, in 2000. Nat’l Ctr. for Educ. Statistics, Fall Enrollment of U.S. Residents in Degree-Granting Postsecondary Institutions, by Race/Ethnicity,https://nces.ed.gov/programs/digest/d18/tables/dt18_­306.30.asp [https://perma.cc/96HR-3T59] (last visited May 27, 2020).Show More and as student-led honor systems have grown in popularity.18 18.Rettinger & Searcy, supranote 1, at 224 (finding that student-led honor systems are “growing in popularity”).Show More The U.S. Department of Education should use its regulatory authority to compel universities to publish data about racial disparities in university honor systems and promulgate regulations mandating the minimum procedural protections that honor systems must provide. Honor systems should also amend their policies in ways that will make racial disparities less likely to occur.

Part I discusses what is known about racial disparities in student-led honor systems and institutional obstacles preventing a deeper understanding of these disparities. Part II examines the claims students can bring under federal law in response to discrimination in honor systems and the difficulties associated with prevailing on these claims. Part III presents solutions for how the federal government and universities can mitigate these disparities.

Given the prevalence of student-led honor systems at leading public universities and the specific legal remedies available to address discrimination by state actors,19 19.Although administered by students, honor systems are state actors under the Fourteenth Amendment because universities ratify honor systems’ decisions as their own for the purposes of altering students’ grades and student status. E.g., Thompson v. Ohio State Univ., 92 F. Supp. 3d 719, 729 (S.D. Ohio 2015) (allowing an Equal Protection claim against Ohio State’s student-led honor system), aff’d 639 F. App’x 333 (6th Cir. 2016); Cobb v. Rector & Visitors of Univ. of Va., 69 F. Supp. 2d 815, 830 (W.D. Va. 1999) (allowing an Equal Protection claim against UVA’s student-led honor system).Show More this Essay is limited to the discussion of public universities20 20.Private universities are not state actors. E.g., Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 157–58 (5th Cir. 1961) (holding that a private university was not a state actor where a student alleged due process claims from his dismissal from an academic program); Althiabat v. Howard Univ., 76 F. Supp. 3d 194, 197 (D.D.C. 2014) (same).Show More where students21 21.Additional research is needed to examine university-led models.Show More adjudicate issues of academic misconduct. This Essay does not address procedures used to adjudicate behavioral misconduct, which includes sexual, drug, or alcohol offenses.22 22.Because universities must report annually on the frequency of behavioral offenses, 20 U.S.C. § 1092(f)–(m) (2018), behavioral misconduct falls outside the forces that prevent public understanding of racial disparities in honor systems.Show More

I. Racial Disparities in Honor Systems

A. Documented Racial Disparities in Honor System Outcomes

The best information available about racial disparities in university honor systems comes from UVA, which has maintained a student honor code since 1825.23 23.Coy Barefoot, The Evolution of Honor: Enduring Principle, Changing Times, UVA Magazine (Spring 2008), http://uvamagazine.org/articles/the_evolution_of_honor/%20 [https://perma.cc/2Z8F-JGBR] (discussing the history of the UVA Honor System).Show More At UVA, cases originate when a faculty member, student, or community member reports suspected academic misconduct to the Honor Committee.24 24.See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 2.Show More After a student Support Officer investigates,25 25.Id. at 3.Show More the accused student may plead guilty to the violation and complete a two-semester leave of absence,26 26.Id.Show More or their case will be heard before a jury of students drawn from across the University.27 27.Frequently Asked Questions, UVA Honor Comm., https://honor.virginia.edu/frequently-asked-questions [https://perma.cc/LLA2-8YWE] (last visited May 25, 2020).Show More Since the first recorded trial in 1851, expulsion from UVA has been the only punishment available if the jury finds the student guilty.28 28.Barefoot, supra note 23; see Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 1.Show More

UVA began tracking the demographics of students reported for and found guilty of honor offenses after the University became racially integrated in the 1960s.29 29.Barefoot, supra note 23.Show More From that time to the present, the Honor Committee has observed racial disparities in the students reported to the Honor System.30 30.Id.Show More According to the UVA Honor Committee’s 2019 Bicentennial Analysis report, its most recent and comprehensive effort to analyze system outcomes over the past thirty years, White students are underrepresented among students reported to the Honor Committee.31 31.Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 25.Show More White students constituted 58% of all enrolled UVA students in 2017, but they comprised only 29.7% of reported students that year.32 32.Id.Show More Asian and Asian-American students were over-represented among reported students in 2017, making up only 12% of the UVA domestic student population but constituting at least 27.1% of reported students, a difference of 15.1 percentage points.33 33.Id.Show More Similarly, Black students were over-represented by 2.7 percentage points in 2017, at 6% of the UVA student body but 8.7% of reported students.34 34.Id.Show More

The Honor Committee attributes these disparities in reporting to the effects of what it calls “spotlighting” and “dimming.”35 35.Id. at 29.Show More Spotlighting occurs when a student becomes more visible because they are part of a minority group, thus watched more closely, and, as a result, more likely to be reported.36 36.Id.Show More By contrast, dimming occurs when a student is less visible because their identity falls within the majority, making the student less likely to be reported.37 37.Id.Show More

The Bicentennial Report also revealed racial disparities in sanctioning.38 38.Id. at 12–13.Show More From 1987 to 2009, Black students faced sanctions “at a rate that was significantly disproportionate to their population at the University.”39 39.Id. at 12.Show More From 1987 to 1989, Black students made up at least 41% of all students dismissed from UVA,40 40.Id.Show More but they were only 9% of the UVA student body in 1991, the earliest year for which the Honor Committee could find demographic data.41 41.Id.Show More From 2010 to 2016, Black students made up at least 12% of sanctioned students,42 42.Id. at 13.Show More but they were only 6% of the university population in 2016.43 43.Enrollment Details,UVA Office Institutional Research & Analytics, https://ira.­virginia.edu/university-stats-facts/enrollment [https://perma.cc/X7B2-JJ7X] (last visited May 27, 2020).Show More

The proportion of sanctioned students who are Asian or Asian-American has increased over the past thirty years, and they are now over-represented among sanctioned students.44 44.Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 13.Show More Asian and Asian-American students comprised at least 6% of sanctioned students from 1987 to 1989 and were 6% of the UVA student body in 1991.45 45.Id. at 12–13 (the earliest year for which data were available).Show More Yet, from 2010 to 2016, Asian and Asian-American students comprised at least 50% of sanctioned students,46 46.Id. at 13.Show More but they were only 11% of the student body in 2016.47 47.UVA Office Institutional Research & Analytics, supra note 43.Show More

The Honor Committee recognized that these racial disparities “could be more significant than they appear” due to “significant unknown proportions in [its] race data, reaching up to 20% of sanctioned students in some time periods.”48 48.Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 16.Show More The Committee said that the percentages should be regarded as a “floor” and the racial disparities might be even higher than observed.49 49.Id. at 17.Show More

The UVA Honor System is unique in that it has conducted and publicized in-depth analysis about racial disparities exhibited in its system. Of the aforementioned public universities that have student-led honor systems,50 50.Seesupranotes 4–5 and accompanying text.Show More only UVA, the University of North Carolina at Chapel Hill (“UNC”), and The Ohio State University (“Ohio State”) have published any reports about the number of students reported for and found guilty of honor offenses,51 51.See Committee on Academic Misconduct Annual Report: Summer Semester 2018Spring Semester 2019, at 2–3 (2019) [hereinafter Ohio State Annual Report 2018–2019],https://senate.osu.edu/sites/­default/files/links_files/AcademicMisconduct_Annual_report_­2018-19.pdf [https://perma.cc/G6RJ-8GRE] (providing analysis about the outcomes of Ohio State’s honor system); UNC-Chapel Hill Undergraduate Honor System, Annual Report 2017–2018, at 6–7 (2018) [hereinafter UNC Annual Report 2017–2018], https://studentconduct.unc.edu/sites/studentconduct.unc.edu/files/documents/2017-2018%­20Undergraduate%20Annual%20Report.pdf [https://perma.cc/B8WP-DRDJ] (analyzing UNC’s outcomes). A search of each university’s honor system website and student newspaper archives demonstrates that no other named universities have publicly released information about honor system outcomes.Show More and only UVA has provided a public report analyzing the number of students reported to and sanctioned by the university honor system broken down by race and ethnicity.52 52.Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 12–13, 16–17.Show More Ohio State and UNC’s reports do not provide information about students’ race or ethnicity.53 53.See Ohio State Annual Report 2018–2019, supra note 51; UNC Annual Report 2017–2018, supra note 51.Show More

The only other information about racial disparities in university honor systems comes from unofficial data reported by a student-leader in the UNC Honor System. During a February 2016 meeting of UNC’s Faculty Council, the student told faculty that 56% of UNC’s academic misconduct cases concerned students of color,54 54.Meeting of the General Faculty & Faculty Council, UNC Office of Faculty Governance (Feb. 19, 2016), https://facultygov.unc.edu/faculty-council/meeting-materials-past-years/­meeting-materials-2015-16/february-19-2016/ [https://perma.cc/3VNW-WYQZ] (document­ing the report).Show More while the UNC student body was only 37% non-White.55 55.Kelly Jasiura, More than Half of Honor Court Academic Cases Are Students of Color, Daily Tar Heel (Apr. 26, 2016), https://www.dailytarheel.com/article/2016/04/more-than-half-of-honor-court-academic-cases-are-students-of-color [https://perma.cc/AA7W-XJNK] (discussing the meeting).Show More The student-leader declined to provide additional detail to UNC’s student newspaper when asked for comment,56 56.Id.Show More and UNC has never officially reported these data.

B. Institutional Forces Prevent a Deeper Understanding of These Disparities

The absence of data, however, does not mean racial disparities do not occur in other universities’ honor systems. The racial disparities in reporting and sanctioning identified by the UVA Honor Committee have also been documented for many years in other similar institutions, such as the criminal justice57 57.Individuals of color are significantly over-represented in the prison population, compared to the population at large. E.g., E. Ann Carson, U.S. Dep’t of Justice, Bureau of Justice Statistics, Prisoners in 2016, at 13 (2018), https://www.bjs.gov/content/pub/pdf/p16.pdf [https://perma.cc/P3JW-EZF3]; Jennifer L. Eberhardt, Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do 78 (2019) (finding racial disparities in police stops, searches, handcuffs, and arrests).Show More and public school disciplinary systems.58 58.Black, Latino, and Native American students are disciplined at higher rates and receive harsher and longer punishments than their White peers, even when controlling for other variables. E.g., U.S. Dep’t of Educ. Office for Civil Rights, Civil Rights Data Collection, Data Snapshot: School Discipline 1 (Mar. 2014), https://ocrdata.ed.gov/Downloads/CRDC-School-Discipline-Snapshot.pdf [https://perma.cc/23FW-7L67] (finding that “[b]lack students are suspended and expelled at a rate three times greater than white students [and] [o]n average, 5% of white students are suspended, compared to 16% of black students”).Show More Racial disparities likely exist in other universities’ honor systems, and the absence of information reflects two institutional obstacles that prevent publication of these data.

First, it is not in universities’ or honor systems’ self-interests to voluntarily make honor system data public because information about widespread racial disparities might expose them to litigation or bad press.59 59.See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 1 (“Too often, the Honor System’s available data has been guarded, a disservice to the University seeking to improve its most revered tradition.”).Show More For example, in the public school system, where the U.S. Department of Education’s Office for Civil Rights (“OCR”) requires public elementary and secondary schools to annually report data about the outcomes of school discipline proceedings broken down by race,60 60.See U.S. Dep’t of Educ. Office for Civil Rights, 2017–18 Civil Rights Data Collection: List of CRDC Data Elements for School Year 2017–18, at 2–3 (2018), https://www2.ed.gov/about/offices/list/ocr/docs/2017-18-crdc-data-elements.pdf [https://perma.cc/3R3T-V4UR] (last visited May 24, 2020).Show More parents and non-profits regularly use these data to challenge the schools’ policies.61 61.E.g., Nirvi Shah, Uneven Discipline Yields Civil Rights Complaint Against Texas District, Educ. Week (Feb. 20, 2013), http://blogs.edweek.org/edweek/rulesforengagement/­2013/02/groups_say_texas_district_tickets_black_students_disproportionately.html [https://­perma.cc/UEH3-M32D] (discussing a complaint filed using discipline data from a Texas school district); Press Release, ACLU of Va., Federal Civil Rights Complaint Challenges Discrimination in City of Richmond Public Schools (Aug. 24, 2016), https://acluva.org/en/press-releases/federal-civil-rights-complaint-challenges-discrimination-city-richmond-public-schools [https://perma.cc/WF3N-5HUD] (using data to support claim that Black students with disabilities were 12.91 times more likely than White students without disabilities to receive short-term suspensions).Show More OCR also uses these data to investigate complaints of alleged discrimination under Title VI of the Civil Rights Act of 1964.62 62.U.S. Dep’t of Educ. Office for Civil Rights, Civil Rights Data Collection: Frequently Asked Questions, https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/­crdc.html [https://perma.cc/YJ49-DEP9] (last visited May 24, 2020) (explaining the purpose and statutory authority for OCR to collect CRDC information).Show More OCR does not require honor systems to submit similar data about academic misconduct, but honor systems are not legally prevented from voluntarily releasing data.63 63.Although the Family Educational Rights and Privacy Act (“FERPA”) protects students’ disciplinary records from unauthorized disclosure to third parties, universities do not violate FERPA by releasing generalized, aggregate information about disciplinary proceeding outcomes that does not personally identify students. 20 U.S.C. § 1232g(b)(1) (2018) (FERPA statutory requirements); 34 C.F.R. § 99.1 et seq. (2019) (implementing regulations). UVA, UNC, and Ohio State’s reports demonstrate how honor systems can report data without violating FERPA. See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 1 (“No personal information, aside from aggregated and de-identified case data, has been disclosed from otherwise confidential Honor files.”); Ohio State Annual Report 2018–2019, supranote 51, at 2–3 (providing aggregate data that would not identify students); UNC Annual Report 2017–2018, supranote , at 6 (declining to provide information where there were five or fewer cases of a hearing type, so as not to identify students).Show More

Second, the organizational structure of student-led honor systems does not lend itself to robust data collection and analysis procedures. Honor systems experience constant personnel turnover because students attend universities for only a few years, which may affect efforts to maintain consistent data. Students work in honor systems in addition to taking classes and participating in other extracurricular activities, so they have less time than full-time university administrators to develop detailed reports that could be helpful to outside parties seeking to challenge discrimination.

Even UVA, which periodically releases reports analyzing Honor System outcomes,64 64.See UVA Honor Comm., History of Reports and Commissions, Honor Bicentennial Report,https://report.honor.virginia.edu/history-reports-and-commissions [https://perma.cc/­F843-D959] (last visited May 20, 2020) (listing these reports).Show More has struggled with these institutional capacity issues. Until the Honor Committee’s Bicentennial Report,65 65.Id.Show More Honor System outcome data were available only by searching the UVA student newspaper’s online archives for stories about historical reports.66 66.See, e.g., Cameron Feller, Honor Committee Statistics Reveal Racial Inconsistency in Cases Reported, Cavalier Daily (Apr. 6, 2009), http://www.cavalierdaily.com/­article/2009/04/honor-committee-statistics-reveal-racial-inconsist [https://perma.cc/GT97-Z5CY]; Annie O’Brien, Under-Represented and Over-Reported, Cavalier Daily (Mar. 5, 2014), http://www.cavalierdaily.com/article/2014/03/under-represented-and-over-reported [https://perma.cc/TUU3-94N6]; Cavalier Daily Staff , Editorial, Pinpointing Bias, Cavalier Daily (Apr. 10, 2001), http://www.cavalierdaily.com/article/2001/04/lead-editorial16276 [https://perma.cc/C2WH-2Q2M]. In addition, at the time of this writing, the historical case reports referenced in these articles were not available on the UVA Honor Committee website. See UVA Honor Comm., Public Summaries, https://honor.virginia.edu/public-summaries [https://perma.cc/J45Y-YTD4] (last visited June 1, 2020). As of this writing, the only way to see historical Honor System data is to look at the new analysis performed for the Bicentennial Report or past Cavalier Daily articles.Show More Moreover, the Honor Committee acknowledged in its Bicentennial Report that there were “significant” gaps in their records about students’ race, preventing them from conducting additional analysis to further explain the racial disparities they observed. 67 67.Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 16.Show More

II. Institutional and Legal Obstacles Prevent Students from Receiving Relief Through Traditional Legal Remedies

Over the past sixty years, students, parents, and their families have turned to federal courts seeking remedies for racial discrimination within educational institutions.68 68.E.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 302 (2013) (challenging affirmative action policies on Equal Protection grounds); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 6, 35 (1973) (challenging Texas’s public education funding system on substantive due process and Equal Protection grounds); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (holding that racially segregated public schools violate the Equal Protection Clause).Show More Students who believe they have been subjected to discrimination within their university honor system may bring claims under (1) the Fourteenth Amendment’s Equal Protection Clause; (2) Title VI of the Civil Rights Act of 1964; or (3) the Fourteenth Amendment’s Due Process Clause. However, students are unlikely to find relief in the federal courts due to the legal standards associated with these claims and the lack of data available about racial disparities, crystallizing the need for regulatory oversight.69 69.Seediscussioninfra Part III.Show More

A. Equal Protection Claims

The Fourteenth Amendment’s Equal Protection Clause70 70.U.S. Const. amend. XIV, § 1.Show More has been the traditional vehicle through which students have challenged discrimination in public educational institutions.71 71.See, e.g., Gratz v. Bollinger, 539 U.S. 244, 250 (2003) (challenge to affirmative action policies on Equal Protection and statutory grounds); Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (challenge to the use of race in public university admissions under the Equal Protection Clause); Brown, 347 U.S. at 495 (challenge to school segregation).Show More In an Equal Protection challenge, a student must show that the honor system (1) has a discriminatory effect and (2) that it was motivated by discriminatory intent.72 72.Hunter v. Underwood, 471 U.S. 222, 227–28 (1985) (holding that a facially neutral law must have a discriminatory effect and a discriminatory intent in order to violate the Equal Protection Clause); see alsoUnited States v. Armstrong, 517 U.S. 456, 465 (1996) (holding that selective-prosecution claims use “ordinary equal protection standards” (citation omitted)).Show More

Under the first prong, students must prove that the honor system subjected them to differential treatment based on their race.73 73.See Hunter, 471 U.S. at 227 (explaining differential treatment).Show More Examples of differential treatment might include a jury that found a minority student guilty when, presented with similar evidence, they would not have found a White student guilty; a jury that gave a minority student a harsher punishment than they would have given a similarly situated White student; or a professor who reported a minority student to the honor system when they would not have reported a White student.

In all three examples, students would face challenges obtaining evidence necessary to prove differential treatment. Because these proceedings are confidential,74 74.Seediscussion supranote 63 regarding federal privacy law.Show More it would be difficult for minority students to identify a White student to serve as a comparator. Statistically significant evidence of disparities can demonstrate differential treatment,75 75.SeeTasby v. Estes, 643 F.2d 1103, 1108 (5th Cir. 1981) (“[A]bsent a showing of arbitrary disciplinary practices, undeserved or unreasonable punishment of black students, or failure to discipline white students for similar misconduct, the plaintiffs have not satisfied their burden . . . .”); Sweet v. Childs, 507 F.2d 675, 681 (5th Cir. 1975) (“There was no showing of arbitrary suspensions or expulsions of black students nor of a failure to suspend or expel white students for similar conduct.”); Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist. 61, 78 F. Supp. 2d 812, 815 (C.D. Ill. 2000) (“[Plaintiffs’] statistics failed to establish that any similarly situated Caucasian students were treated less harshly.”), aff’d on other grounds, 251 F.3d 662 (7th Cir. 2001).Show More but honor systems do not publish and may not maintain data regarding findings of guilt and sanctions assigned, correlated with the race of each student, which would be necessary to prove differential treatment during trial or sanctioning.76 76.Seediscussion supraSection I.B.Show More Moreover, for claims of selective reporting, even if an honor system had data showing that students of color were reported at disparate rates, these data would only capture disparities among students who were reported to the honor system and would not capture instances where professors did not report students. As a result, data would not be comprehensive enough to show that a particular student was subject to differential treatment in reporting.77 77.See Armstrong, 517 U.S. at 459, 470 (finding that defendants’ “study” listing twenty-four defendants by race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case, did not prove elements of selective-prosecution claim).Show More

Second, a lack of data would also make it difficult for a student to meet the discriminatory intent prong, in which a student must prove that race was a motivating factor in disciplinary action taken against the student.78 78.Hunter, 471 U.S. at 228 (defining element of discriminatory intent); Tasby, 643 F.2d at 1108 (applying this standard to discriminatory discipline cases).Show More Discriminatory intent is most easily proven using direct evidence,79 79.Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).Show More such as discriminatory statements made by a juror, honor system representative, or reporting faculty member. A student is unlikely to have such ‘smoking gun’ evidence, however, as discrimination is often subtle,80 80.Eberhardt, supranote 57, at 11–43 (arguing that racial discrimination often ends up being more subtle or implicit); Emily Chiang, The New Racial Justice: Moving Beyond the Equal Protection Clause To Achieve Equal Protection, 41 Fla. St. U. L. Rev. 835, 842 (2014) (“[M]ost of the racism that remains in America is of the subconscious variety, as opposed to the explicit state-driven Jim Crow variety.”).Show More and these statements may be made during confidential jury deliberations when the student or other potential witnesses are not present to hear them.

Circumstantial evidence, such as data about widespread and longstanding racial disparities in honor system outcomes, can also be used to prove discriminatory purpose,81 81.Circumstantial evidence includes the racial “impact of the official action,” the “historical background of the decision,” the “specific sequence of events leading up to the challenged decision,” procedural or substantive “[d]epartures from the normal . . . sequence,” and “legislative or administrative history.” Arlington Heights, 429 U.S. at 266–68.Show More but subsequent cases show that statistical evidence is rarely stark enough to be sufficient on its own.82 82.Id. at 266 (finding that it will be “rare” that circumstantial evidence provides a “stark” and “clear pattern, unexplainable on grounds other than race” that the action was motivated by discriminatory intent); Mario L. Barnes & Erwin Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 Conn. L. Rev. 1059, 1066 (2011) (“[T]he Court has . . . created a framework for equal protection analysis that all but ensures only a narrow group of discrimination claims will be actionable or succeed.”).Show More In particular, when a system of punishment explicitly allows for discretion based “on the particularized nature of the crime and the particularized characteristics of the individual defendant,”83 83.McCleskey v. Kemp, 481 U.S. 279, 308 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 206 (1976) (Stewart, J., plurality opinion)) (denying a Black prisoner’s challenge to his death penalty sentence).Show More as some honor systems do,84 84.UNC allows jurors to consider the “gravity of the offense,” the “value of learning through experience,” and “[o]ther compelling circumstances” when determining an appropriate sanction. Univ. of N.C. at Chapel Hill, The Instrument of Student Judicial Governance 9 (Amended July 25, 2017) https://studentconduct.unc.edu/sites/studentconduct.unc.edu/­files/documents/Instrument.pdf [https://perma.cc/4DNP-N43P].Show More the Supreme Court has said it is lawful to presume that the sentence was imposed appropriately.85 85.McCleskey, 481 U.S. at 306–08.Show More Thus, absent direct evidence of discriminatory intent that would overcome this presumption, statistical evidence of an honor system’s disparate impact on minority students is typically insufficient to prove discriminatory intent.86 86.E.g., Thompson v. Ohio State Univ., 92 F. Supp. 3d 719, 729–32 (S.D. Ohio 2015) (finding a professor’s reasons for reporting a Black student to the honor system were not pretextual even though there was evidence that the professor had “singled out” African Americans for discipline), aff’d 639 F. App’x 333 (6th Cir. 2016); Cobb v. Rector & Visitors of Univ. of Va., 84 F. Supp. 2d 740, 747 (W.D. Va. 2000) (finding the “plaintiff relie[d] on raw statistics to argue that a greater number of minority students are charged with and convicted of honor violations. However, . . . statistics, standing alone, do not create a constitutional violation”).Show More

B. Claims Under Title VI of the Civil Rights Act of 1964

Students may also bring claims under Title VI of the Civil Rights Act of 1964. Title VI prohibits recipients of federal financial assistance, including public universities, from discriminating on the basis of race, color, and national origin.87 87.42 U.S.C. § 2000d (2018) (prohibiting recipients of federal financial assistance, including public universities, from discriminating on the basis of race, color, and national origin).Show More Under Title VI, litigants may bring both disparate treatment88 88.Id.Show More and disparate impact89 89.28 C.F.R. § 42.104(b)(2) (2019).Show More claims.

Litigants bringing Title VI disparate treatment claims will face the same evidentiary challenges as they would with Equal Protection claims, as the elements for Title VI disparate treatment claims are identical to those for Equal Protection.90 90.Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause . . . .” (citation omitted)).Show More Accordingly, Title VI’s disparate treatment provisions are not a viable legal remedy for discrimination in university honor systems.

Under Title VI’s disparate impact regulations, universities are liable for administering programs in ways that subject individuals to discrimination.91 91.28 C.F.R. § 42.104(b)(2).Show More In a case involving an honor system, relevant evidence may include reliable statistical evidence about the honor system’s outcomes, broken down by race.92 92.U.S. Dep’t of Justice, Civil Rights Div., Title VI Legal Manual Section VII, at 11 (2019) [hereinafter Title VI Manual], https://www.justice.gov/crt/case-document/file/923556/­download [https://perma.cc/Q8WG-GQ24] (explaining elements of Title VI disparate impact claims); see alsoWatson v. Fort Worth Bank & Tr., 487 U.S. 977, 996 (1988) (“[C]ourts . . . [are not] obliged to assume that plaintiffs’ statistical evidence is reliable.”); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977) (holding that statistics can be used to prove disparate impact, but they must be contextualized).Show More The university can rebut this evidence by demonstrating a legitimate and non-discriminatory justification for the policy or practice.93 93.SeeTitle VI Legal Manual, supranote 92, at 9.Show More

Two obstacles would hinder disparate impact litigation. First, most honor systems do not publish or maintain reliable statistical evidence about system outcomes that would establish that an honor system has a racially disparate impact.94 94.Seediscussion supra Section I.B (discussing the lack of data about university student-led honor systems).Show More Second, only the U.S. Department of Justice’s Civil Rights Division (“CRT”), not private litigants, may bring Title VI disparate impact claims.95 95.Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding Title VI does not create a private right of action to enforce disparate impact regulations).Show More Students may file complaints with CRT to bring litigation on their behalf, 96 96.U.S. Dep’t of Justice, Civil Rights Div., How Does the Division Find Out About Possible Civil Rights Violations?, https://www.justice.gov/crt/how-does-division-find-out-about-possible-civil-rights-violations [https://perma.cc/4LVU-TD6B] (last visited May 20, 2020).Show More but CRT’s enforcement is discretionary; it is not obligated to investigate every complaint.97 97.U.S. Comm’n on Civil Rights, Are Rights a Reality? Evaluating Federal Civil Rights Enforcement 87 (2019), https://www.usccr.gov/pubs/2019/11-21-Are-Rights-a-Reality.pdf [https://perma.cc/TH9M-LPAJ] (“With the exception of [Americans with Disabilities Act] complaints, CRT is not under any obligation to investigate each complaint it receives.”); see also 28 C.F.R. § 35.171 (2019) (obligations under the Americans with Disabilities Act).Show More Under the Trump Administration, CRT has opened 60% fewer civil rights cases (including all civil rights cases, not just complaints regarding discriminatory school discipline) than under the Obama Administration, and 50% fewer than under the Bush Administration.98 98.Rob Arthur, Trump’s Justice Department Is Investigating 60% Fewer Civil Rights Cases than Obama’s, Vice News (Mar. 6, 2019), https://www.vice.com/en_us/article/bjq37m/­exclusive-trumps-justice-department-is-investigating-60-fewer-civil-rights-cases-than-obamas [https://perma.cc/C9EZ-PSJL].Show More Among the complaints that CRT has pursued, CRT has prioritized enforcement of religious liberty violations, while decreasing enforcement in other areas of civil rights law.99 99.Id.; see alsoU.S. Comm’n on Civil Rights, supra note 97, at 83 (finding CRT had a 30% increase in the number of religious liberty cases in fiscal year 2018 over fiscal year 2017).Show More Given these priorities, CRT may choose not to litigate disparate impact claims arising out of discrimination in university honor systems.

C. Due Process Claims

Students can also seek relief under the Fourteenth Amendment’s Due Process Clause.100 100.U.S. Const. amend. XIV, § 1.Show More Unlike Title VI or Equal Protection claims, which would directly challenge university honor system actions as being racially discriminatory, Due Process Clause claims would allege that an honor system’s disciplinary policies are unfair, in the hope that relief would incidentally mitigate racial disparities. Within Due Process Clause jurisprudence, the Supreme Court distinguishes between procedural due process—the right to be heard at a “meaningful time and in a meaningful manner” before the government can deprive a citizen of life, liberty, or property101 101.Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted); see also id. at 349 (holding that, under the Due Process Clause, an evidentiary hearing is not required prior to termination of disability benefits).Show More—and substantive due process—the right to be free from governmental deprivation of a fundamental right.102 102.E.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973) (claim alleging a fundamental right to public education).Show More

University students should not expect to prevail on substantive due process claims. Although the Supreme Court has never addressed the issue of a fundamental right to higher education, it has explicitly rejected a fundamental right to public elementary and secondary education.103 103.Id.at 35 (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”).Show More If compulsory public elementary and secondary education is not fundamental, it is unlikely that a court would find that university students have a fundamental right to optional public higher education.104 104.Several federal courts have explicitly rejected a constitutional right to higher education. See, e.g., Press v. State Univ. of N.Y. at Stony Brook, 388 F. Supp. 2d. 127, 134 (E.D.N.Y. 2005) (“[I]t is well-settled that access to education is not a constitutional or fundamental right.”); Cady v. S. Suburban Coll., 310 F. Supp. 2d 997, 1000 (N.D. Ill. 2004) (“There is no general constitutional right to higher education.”), aff’d as modified, 152 F. App’x 531 (7th Cir. 2005).Show More Moreover, even if a court recognized a fundamental right to higher education, it might still find that students who committed academic misconduct forfeit that right through their conduct.105 105.This has been true in state court cases where the state constitution recognizes a fundamental right to education.E.g., In re RM v. Washakie Cty. Sch. Dist.No. 1, 102 P.3d 868, 874 (Wyo. 2004) (finding that, although there is a fundamental right to education under Wyoming’s constitution, “[t]he actual receipt of educational services is accordingly contingent upon appropriate conduct in conformity with state law and school rules”); Doe v. Superintendent of Sch., 653 N.E.2d 1088, 1096 (Mass. 1995) (“[A] student’s interest in a public education [under Massachusetts’s constitution] can be forfeited by violating school rules.”).Show More

University students may have more success alleging a violation of their procedural due process rights, although they would still face significant hurdles. In procedural due process claims, students must show (1) they were deprived of a protected interest (2) without due process.106 106.Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (establishing these elements).Show More

First, it is unclear if students have procedural due process interests in higher education. Although the Supreme Court recognized in Goss v. Lopez that public elementary and secondary school students have these interests,107 107.419 U.S. 565, 576 (1975).Show More the Court has avoided deciding whether Goss extends to public higher education.108 108.James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L.J. 2132, 2133 (1987) (finding that the Supreme Court “has carefully avoided any further definition of the scope or extent of due process protections in university disciplinary actions”).Show More In two cases involving university discipline, the Court assumed the existence of a property or liberty interest to higher education, but it held the processes provided would satisfy the Fourteenth Amendment.109 109.See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 79, 84–85 (1978) (in a case in which a medical student who had been dismissed for poor academic performance without a hearing, “[a]ssuming the existence of a liberty or property interest,” the university “awarded at least as much due process as the Fourteenth Amendment requires”); see also Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 222–23 (1985) (assuming that although a student who had been dismissed from a university program for failing a required licensing exam had a constitutionally protected property interest, he had not been denied due process).Show More The lower courts are split on this issue. The First, Sixth, and Tenth Circuits have explicitly held that university students have procedural due process interests,110 110.Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 633 (6th Cir. 2005) (“[W]e have held that the Due Process Clause is implicated by higher education disciplinary decisions.”); Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1181 (10th Cir. 2001) (“Mr. Gossett had a property interest in his place in the Nursing School program that is entitled to due process protection.”); Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988) (“[A] student facing expulsion or suspension from a public [university] is entitled to the protections of due process.”).Show More while the Seventh Circuit has held that university students do not.111 111.Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir. 2013) (“[O]ur circuit has rejected the proposition that an individual has a stand-alone property interest in an education at a state university . . . .”).Show More The Third, Fourth, Eighth, and Ninth Circuits have followed the Supreme Court’s lead and, assuming arguendo a property or liberty interest in higher education, have held that challenged university procedures satisfied any due process requirements.112 112.Austin v. Univ. of Or., 925 F.3d 1133, 1139 (9th Cir. 2019) (“We assume, without deciding, that the student athletes have property and liberty interests in their education . . . . Nonetheless, they received ‘the hallmarks of procedural due process[.]’” (citation omitted)); Richmond v. Fowlkes, 228 F.3d 854, 859 (8th Cir. 2000) (assuming that a due process right exists, holding based on the facts that the student received the process that would be due); Mauriello v. Univ. of Med. & Dentistry of N.J., 781 F.2d 46, 52 (3d Cir. 1986) (“[F]ollowing the lead of the Supreme Court, we will assume arguendo that a constitutional right is implicated.”); Henson v. Honor Comm. of U. Va., 719 F.2d 69, 73 (4th Cir. 1983) (“Assuming Henson had a protected liberty or property interest in the Honor Code proceeding, we conclude that the procedural protections afforded him were sufficient . . . .”).Show More If Goss applies to public universities or a court assumes arguendo that a property or liberty interest exists, students must then prove that the honor system deprived the student of the process due to them. Students will face two hurdles.

First, procedural due process applies only to disciplinary proceedings for behavioral matters, not academic matters.113 113.Horowitz, 435 U.S. at 92 (“Courts are particularly ill-equipped to evaluate academic performance.”).Show More A disciplined student would need to distinguish an honor system’s finding that the student engaged in academic misconduct from a professor’s subjective determination that the student’s academic performance is unsatisfactory. One scholar has suggested that cheating and plagiarism are more “disciplinary” than “academic” because they are “more of a matter of misconduct than failure to attain a standard of excellence” and “in many situations proof of academic wrongdoing will not require an instructor’s singular expertise.”114 114.Perry A. Zirkel, Are Procedural and Substantive Student Challenges to Disciplinary Sanctions at Public Institutions of Higher Education Judicially More Successful than Those at Private Institutions?, 41 J.C. & U.L. 423, 429–31 (2015) (internal quotation marks and citations omitted).Show More Accordingly, some lower courts have found academic misconduct sufficiently disciplinary such that procedural due process protections apply.115 115.E.g., Henson, 719 F.2d at 74 (concluding that cheating was disciplinary, rather than “evaluating the academic fitness of a student”); Slaughter v. Brigham Young Univ., 514 F.2d 622, 624 (10th Cir. 1975) (finding that academic dishonesty is “on the conduct or ethical side rather than an academic deficiency”); Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1248 n.2 (E.D. Mich. 1984) (“[C]heating should be treated as a disciplinary matter.”), aff’d mem., 787 F.2d 590 (6th Cir. 1986); Lightsey v. King, 567 F. Supp. 645, 648 (E.D.N.Y. 1983) (“This is a disciplinary matter, rather than an academic one.”).Show More

Second, courts allow universities significant deference to determine appropriate procedures.116 116.E.g., Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 639 (6th Cir. 2005) (“All that is required by the Due Process Clause, which sets a floor or lower limit on what is constitutionally adequate, is ‘sufficient notice of the charges . . . and a meaningful opportunity to prepare for the hearing.’” (citation omitted)); Gorman v. Univ of R.I., 837 F.2d 7, 16 (1st Cir. 1988) (explaining the need for flexibility because the court was reluctant to lessen a university’s ability to use these hearings as a learning tool); Seals v. Mississippi, 998 F. Supp. 2d 509, 526 (N.D. Miss. 2014) (denying the university student’s due process claim because “judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint” (citation omitted)).Show More The Court said in Goss that students facing suspensions of ten or fewer days must receive “some kind of notice” of the charges against them and “some kind of hearing” to present their side of the story and hear evidence against them.117 117.Goss v. Lopez, 419 U.S. 565, 579 (1975).Show More Suspensions longer than ten days or expulsions “may require more formal procedures,”118 118.Id.at 584.Show More although due process requirements from criminal and civil trials are unnecessary in university disciplinary proceedings.119 119.SeeElizabeth Ledgerwood Pendlay, Note, Procedure for Pupils: What Constitutes Due Process in a University Disciplinary Hearing?, 82 N.D. L. Rev. 967,974–76 (2006); see also Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987) (citing Goss, 419 U.S. at 583) (explaining that due process in universities does not rise to the same level of rights and protections at stake in civil or criminal trials).Show More Given this deference, students are unlikely to prove the university denied them procedural due process rights as long as they received some version of a hearing.

III. Regulatory Oversight and Procedural Protections Can Mitigate Racial Disparities

Viable legal options to address racial disparities in university honor systems may not exist, but regulatory and procedural changes can mitigate the institutional obstacles that block public understanding of these disparities and can provide procedural checks against the effects of racial bias.

A. New Data Reporting Requirements

The U.S. Department of Education through OCR is authorized to enforce Title VI,120 120.34 C.F.R. § 100.1 et seq.(2019).Show More including by requiring educational institutions to report on disciplinary proceeding outcomes. Although OCR historically has been hands-off with regard to university academic misconduct policies,121 121.See U.S. Dep’t of Educ. Office for Civil Rights, Office for Civil Rights Recent Resolution Search, https://ocrcas.ed.gov/ocr-search [https://perma.cc/H8AH-PR2L] (last visited June 1, 2020) (filtering searches by “Post Secondary Institutions,” “Race and National Origin Discrimination,” “Discipline” and “Post Secondary Institutions,” “Race and National Origin Discrimination” and “Not Listed Above” demonstrates that there have not been any investigations of university honor systems for racial discrimination in the past five years); U.S. Dep’t of Educ. Office for Civil Rights, Pending Cases Currently Under Investigation at Elementary-Secondary and Post-Secondary Schools, https://www2.ed.gov/about/offices/­list/ocr/docs/investigations/open-investigations/tvi.html [https://perma.cc/JXF8-A9YD] (last visited May 25, 2020) (demonstrating that there are not any open investigations categorized as being against university honor systems).Show More OCR regularly exercises its Title VI enforcement power to collect data about the outcomes of public elementary and secondary school disciplinary proceedings.122 122.SeeU.S. Dep’t of Educ. Office of Civil Rights, Education and Title VI, https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html [https://perma.cc/QC2V-W3AK] (last visited May 25, 2020); School/District Search,Civil Rights Data Collection, https://ocrdata.ed.gov/DistrictSchoolSearch [https://perma.cc/GL96-3Q9P] (last visited May 20, 2020).Show More

OCR should likewise require public universities to annually report on the outcomes of honor system proceedings and to make these data publicly available. External reporting requirements would remove the institutional incentives that prevent honor systems from collecting or publicizing data about honor system outcomes. Access to this information may bolster Equal Protection or Title VI claims brought by students and the CRT,123 123.Seediscussion supraPart II regarding the evidentiary burden for these claims.Show More as well as empower student activists to lobby honor system leaders and university administrators to adopt policy changes.124 124.Seediscussion infraSection III.C regarding university-initiated changes.Show More The UVA Honor Committee’s Bicentennial Report provides an example of the data OCR could collect from university honor systems,125 125.See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 16.Show More including the race and ethnicity of each student found guilty of an honor offense compared to the student body at large, as well as the punishment awarded for each offense broken down by race and ethnicity.

Universities have demonstrated their institutional capacity to comply with OCR reporting requirements, as they annually report information about violations of their behavioral misconduct policies to the U.S. Department of Education under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.126 126.20 U.S.C. § 1092(f) et seq. (2018); see also Campus Safety and Security Data Analysis Cutting Tool, U.S. Dep’t of Educ., https://ope.ed.gov/campussafety/#/ [https://perma.cc/S5CB-NEAT] (last accessed May 25, 2020) (database compiling university reports).Show More Additionally, universities could use their Student Information Systems127 127.Universities are increasing data collection efforts to improve student outcomes and save money. See Meghan Bogardus Cortez, Universities Make Positive Changes Through Data Collection, EdTech (Sept. 16, 2016), https://edtechmagazine.com/higher/article/2016/09/­universities-make-positive-changes-through-data-collection [https://perma.cc/9N4N-8LAZ]; Ashley A. Smith, Push for Student-Level Data the Feds Don’t Collect, Inside HigherEd (Dec. 21, 2018), https://www.insidehighered.com/news/2018/12/21/student-data-system-advocat­es-want-more-colleges-and-universities-join-them [https://perma.cc/3MG7-EZG2].Show More to run reports about students whose student status reflects an honor code sanction and determine how many students, by race, are sanctioned for academic misconduct.128 128.This is, in part, how the UVA Honor System conducted its analysis for its Bicentennial Report.Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 5. These data reports would not eliminate the need for honor system leaders to maintain records about the type of violation for which each student was reported and found guilty, but they would be a starting point for compliance with OCR reporting requirements.Show More

Student-leaders in the honor system likely lack the capacity to collect and report these data without the support of university administrators.129 129.Seediscussion supra Section I.B regarding the issues with student leaders’ capacity to collect and publish data.Show More Working with university administrators to compile these data reports would not, however, alter the principles that define student-led honor systems: students would still be responsible for adjudicating reports of academic misconduct among their peers and determining appropriate sanctions.130 130.Seediscussion supraIntroduction regarding defining features of student-led honor systems.Show More

B. Administrative Rules Specifying Minimum Procedural Protections

OCR should also adopt administrative rules specifying the minimum procedural guarantees honor systems must provide. OCR already provides this oversight for public elementary and secondary schools through administrative guidance about schools’ obligations to prevent racial discrimination in public school discipline.131 131.SeeU.S. Dep’t of Educ. Office for Civil Rights, Policy Guidance, https://www2.ed.gov/­about/offices/list/ocr/frontpage/faq/rr/policyguidance/index.html [https://perma.cc/7C7M-D­6KC] (last visited May 25, 2020) (historical policy guidance under Title VI).Show More And since 2011, OCR has provided requirements regarding the minimum procedural guarantees universities must provide in sexual misconduct proceedings.132 132.Id. (historical guidance and rulemaking on sexual violence disciplinary proceedings under Title IX). The Trump Administration recently completed a notice and comment period regarding a replacement set of Title IX rules. Press Release, U.S. Dep’t of Educ., Secretary DeVos Takes Historic Action To Strengthen Title IX Protections for All Students (May 6, 2020) https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students [https://perma.cc/FPQ6-YNWV].Show More In the context of university academic misconduct proceedings, OCR should consider adopting rules regarding the evidentiary standards, the ability of accused students to present and cross-examine witnesses, provisions for assistance of student or legal counsel, and rights of appeal. Improved procedural checks will help protect students’ educational interests and may help mitigate issues of bias, including racial bias, within honor systems.

Political obstacles may prevent OCR from adopting administrative rules to this effect. Under the Trump Administration and Secretary of Education Betsy DeVos, OCR rescinded policy guidance for discriminatory elementary and secondary school discipline, sexual violence on college campuses, and protections for transgender students,133 133.U.S. Dep’t of Educ. Office for Civil Rights, Policy Guidance, supra note 131.Show More instead adopting policies that reflect the enforcement priorities of their administration.134 134.Id. (showing changes to policy guidance over time).Show More It seems unlikely, given these recent policy changes, that the current administration would take on a new area of policy enforcement related to racial discrimination in university honor systems.

C. Honor System-Initiated Policy Changes

In addition to, or in the absence of, external oversight from OCR, honor systems should amend their policies in ways that seek to eliminate racial disparities. If honor systems are not internally motivated to make these policy changes, external pressure from student activists may be necessary.

Honor system leaders should begin by addressing racial disparities in the reporting rates of minority students. University employees, particularly professors, are often the parties who report students to honor systems.135 135.At UVA, faculty, teaching assistants, and university administrators accounted for approximately 73% of all reports from 2012–2017. Justice in America Has Never Been Colorblind, supra note 13.Show More Honor systems, in coordination with university administrators, could implement implicit bias training as a method to address issues of spotlighting by faculty. While there are limitations to the effectiveness of implicit bias training,136 136.E.g., Gregory Mitchell, An Implicit Bias Primer, 25 Va. J. Soc. Pol’y & L. 27, 28 (2018) (“Consensus now exists among implicit bias researchers that current measures of implicit bias cannot reliably identify who will or will not discriminate in any given situation and that programs aimed at changing implicit bias produce very limited effects.”).Show More this training might help faculty become more self-aware of their biases.137 137.E.g., Eberhardt, supranote 57, at 279 (arguing that implicit bias training’s purpose is to make individuals “aware of how our minds work and how knee-jerk choices can be driven by stereotypes that cloud what we see and perceive,” not to “magically wipe out prejudice”); Elizabeth Levy Paluck & Donald P. Green, Prejudice Reduction: What Works? A Review and Assessment of Research and Practice, 60 Ann. Rev. Psychol. 339, 357–58 (2009) (finding that evidence-based diversity training efforts “succeed because they break down stereotypes and encourage empathy”).Show More

To mitigate the effect of racial bias during the trial phase, honor systems should ensure that the hearing panel is racially mixed.138 138.See, e.g., Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Q.J. Econ.1017, 1017 (2012) (finding that, in the criminal justice system, “juries formed from all-white pools convict black defendants significantly (16 percentage points) more often than white defendants” but that “this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member”).Show More The method by which honor systems select jurors affects each jury’s composition. Honor systems that use a standing jury pool, like UNC,139 139.The Instrument of Student Judicial Governance, supra note 84, at 21.Show More must recruit students of color to apply to join the pool to help ensure that selected jurors, on the whole, represent the racial demographics of the student body. Honor systems that randomly select jurors from the student body, like UVA,140 140.Frequently Asked Questions, UVA Honor Comm., https://honor.virginia.edu/frequently-asked-questions [https://perma.cc/XU4Y-94QK] (last visited May 25, 2020).Show More must monitor the composition of selected juries to ensure adequate representation of the student body at large, rather than waiting for accused students to raise objections.141 141.During Johnathan Perkins’s trial, he formally requested that the jury “not be all-white.” Justice in America Has Never Been Colorblind, supra note 13.Show More

Honor systems could also provide implicit bias training to help jurors be more aware of their racial biases during honor system proceedings.142 142.Seediscussion supranotes 136–37 regarding the purpose and efficacy of implicit bias training.Show More During Johnathan Perkins’s honor trial, for example, the jury panel asked questions that Perkins believed “indicated a lack of thoughtful perspective on race,”143 143.Justice in America Has Never Been Colorblind, supra note 13.Show More including “why didn’t you just tell the police to leave you alone?” and “why would the police have stopped you, if you weren’t doing anything wrong?”144 144.Id.Show More At his trial, a law school professor testified to the history of racially discriminatory policing,145 145.Id.Show More which Perkins described as “vital” to his exoneration.146 146.Id.Show More

Jury selection methods will affect honor systems’ ability to implement this training. For example, with a standing jury pool, system leaders can provide training once and know that every selected juror will have received it. In a system where jurors are randomly selected, it may not be possible to conduct the same level of training with every juror, and thus potential benefits from this training may be more limited.

Finally, if universities allow jurors to consider particularized, subjective factors during sanctioning, like at UNC,147 147.See The Instrument of Student Judicial Governance, supra note 84, at 9.Show More honor system policies should provide clear guidance on what constitutes mitigating factors, as racial bias can affect the sanctioning phase.148 148.In the criminal justice system, Black prisoners are more likely than White prisoners to receive harsher sentences, even when controlling for non-racial factors that could influence sentencing. SeeEberhardt, supranote 57, at 128; David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1727–29 (1998).Show More Honor system leaders should also regularly review sanctioning decisions to see if hearing panels consistently apply sanctions across ethnic and racial groups. This issue may be less salient at UVA, where expulsion is the only punishment available for students found guilty at trial.149 149.Seediscussion supraSection I.A.Show More

Conclusion

Many universities have adopted student-led honor systems because they believe they are effective and foster values like integrity and student self-governance. If universities intend to maintain student-led honor systems, change is necessary to prevent and remedy racial discrimination. External oversight from OCR will bolster the evidence available to litigants in Title VI and Equal Protection litigation and compel universities to adopt procedural protections that better guarantee students’ rights. Additionally, more data and improved public understanding of racial disparities in university honor systems would assist campus activists in advocating for honor system policy changes.

  1. * J.D., University of Virginia, 2020. Thank you to Professor Kim Forde-Mazrui, for encouraging me to examine the experiences that brought me to law school using a legal lens; to Abbey, Conor, Dana, Katharine, Mariette, Manal, and the editors of the Virginia Law Review, for invaluable editing assistance; to my parents, Karen and Barry, and my brothers, Jacob and Sheldon, for the dinner table debates that shaped my interest in public service and for supporting me at every turn; and to Johnathan Perkins, in recognition of the injustices you experienced, and with gratitude for your courage to speak out. All errors are my own.
  2.  David A. Rettinger & Douglas Searcy, Student-Led Honor Codes as a Method for Reducing University Cheating, 12 Econ. & Envtl. Stud. 223, 225 (2012) (discussing the features of student-led honor systems).
  3. Id. at 224.
  4. Id. (finding that student-led honor systems are “growing in popularity”).
  5. See UVA Honor Comm., Honor Audit Commission 2017–2018 Report 16–17 (2018), https://honor.virginia.edu/sites/honor.virginia.edu/files/HAC%20Report_Final.pdf [https://perma.cc/X99A-M3RN] (providing additional detail about the level of faculty and administrator involvement in each system). The only top public university that does not
    have an honor system is the Georgia Institute of Technology. Top Public Schools
    2020, U.S. News, https://www.usnews.com/best-colleges/rankings/national-universities/top-public [https://perma.cc/QS5Y-35FP] (last visited May 27, 2020).
  6. See UVA Honor Comm., supra note 4, at 16 (identifying UVA’s peer schools with honor systems).
  7. E.g., Donald L. McCabe, Linda Klebe Treviño & Kenneth D. Butterfield, Honor Codes and Other Contextual Influences on Academic Integrity: A Replication and Extension to Modified Honor Code Settings, 43 Res. Higher Educ. 357, 368 (2002) (finding a statistically significant correlation between the use of a student-led honor system and lower levels of cheating).
  8. See Larry A. DiMatteo & Don Wiesner, Academic Honor Codes: A Legal and Ethical Analysis, 19 S. Ill. U. L.J. 49, 62 (1994) (discussing the history of honor codes and their legal and ethical purposes).
  9. See infra Section I.A.
  10. Johnathan Perkins, Editorial, Re-examining Honor, Cavalier Daily (Oct. 2, 2018) [hereinafter Re-examining Honor], https://www.cavalierdaily.com/article/2018/10/perkins-re-examining-honor [https://perma.cc/HA6F-C7SN] (explaining how the editorial he wrote in 2011 led to him being reported to the Honor System).
  11. Id.
  12. Denise Lavoie, Man Says FBI Pressured Him To Recant Racial Profiling Claim, U.S. News

    (Mar. 28, 2018), https://www.usnews.com/news/us/articles/2018-03-28/man-says-fbi-pressured-him-to-recant-racial-profiling-claim [https://perma.cc/LA3Y-3M74].

  13. Re-examining Honor, supra note 9.
  14. Johnathan S. Perkins, Justice in America Has Never Been Colorblind: U.Va.’s Honor System Is No Different, in Honor Bicentennial Report (Feb. 11, 2019) [hereinafter Justice in America Has Never Been Colorblind], https://report.honor.virginia.edu/implicit-bias-spotlighting-and-dimming [https://perma.cc/6SQL-6Q8V].
  15. Lavoie, supra note 11.
  16.  Honor Assessment & Data Mgmt. Working Grp., Bicentennial Analysis (2019) https://report.honor.virginia.edu/sites/report.honor/files/honor-bicentennial-analysis.pdf [https://perma.cc/UQU3-53YP].
  17. See discussion infra Section I.A.
  18. Black and Hispanic students comprised 13.6% and 18.9% of the college population, respectively, in 2017, as compared to 11.7% and 9.9%, respectively, in 2000. Nat’l Ctr. for Educ. Statistics
    ,

    Fall Enrollment of U.S. Residents in Degree-Granting Postsecondary Institutions, by Race/Ethnicity,

    https://nces.ed.gov/programs/digest/d18/tables/dt18_­306.30.asp [https://perma.cc/96HR-3T59] (last visited May 27, 2020).

  19. Rettinger & Searcy, supra note 1, at 224 (finding that student-led honor systems are “growing in popularity”).
  20. Although administered by students, honor systems are state actors under the Fourteenth Amendment because universities ratify honor systems’ decisions as their own for the purposes of altering students’ grades and student status. E.g., Thompson v. Ohio State Univ., 92 F. Supp. 3d 719, 729 (S.D. Ohio 2015) (allowing an Equal Protection claim against Ohio State’s student-led honor system), aff’d 639 F. App’x 333 (6th Cir. 2016); Cobb v. Rector & Visitors of Univ. of Va., 69 F. Supp. 2d 815, 830 (W.D. Va. 1999) (allowing an Equal Protection claim against UVA’s student-led honor system).
  21. Private universities are not state actors. E.g., Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 157–58 (5th Cir. 1961) (holding that a private university was not a state actor where a student alleged due process claims from his dismissal from an academic program); Althiabat v. Howard Univ., 76 F. Supp. 3d 194, 197 (D.D.C. 2014) (same).
  22. Additional research is needed to examine university-led models.
  23. Because universities must report annually on the frequency of behavioral offenses, 20 U.S.C. § 1092(f)–(m) (2018), behavioral misconduct falls outside the forces that prevent public understanding of racial disparities in honor systems.
  24. Coy Barefoot, The Evolution of Honor: Enduring Principle, Changing Times, UVA Magazine (Spring 2008), http://uvamagazine.org/articles/the_evolution_of_honor/%20 [https://perma.cc/2Z8F-JGBR] (discussing the history of the UVA Honor System).
  25. See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 2.
  26. Id. at 3.
  27. Id.
  28. Frequently Asked Questions, UVA Honor Comm., https://honor.virginia.edu/frequently-asked-questions [https://perma.cc/LLA2-8YWE] (last visited May 25, 2020).
  29. Barefoot, supra note 23; see Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 1.
  30. Barefoot, supra note 23.
  31. Id.
  32. Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 25.
  33. Id.
  34. Id.
  35. Id.
  36. Id. at 29.
  37. Id.
  38. Id.
  39. Id. at 12–13.
  40. Id. at 12.
  41. Id.
  42. Id.
  43. Id. at 13.
  44. Enrollment Details, UVA Office Institutional Research & Analytics, https://ira.­virginia.edu/university-stats-facts/enrollment [https://perma.cc/X7B2-JJ7X] (last visited May 27, 2020).
  45. Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 13.
  46. Id. at 12–13 (the earliest year for which data were available).
  47. Id. at 13.
  48. UVA Office Institutional Research & Analytics
    ,

    supra note 43.

  49. Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 16.
  50. Id. at 17.
  51. See supra notes 4–5 and accompanying text.
  52. See Committee on Academic Misconduct Annual Report: Summer Semester
    2018 –

    Spring Semester 2019, at

    2–3 (2019)

    [hereinafter Ohio State Annual Report

    2018–2019

    ]

    ,

    https://senate.osu.edu/sites/­default/files/links_files/AcademicMisconduct_Annual_report_­2018-19.pdf [https://perma.cc/G6RJ-8GRE] (providing analysis about the outcomes of Ohio State’s honor system); UNC-Chapel Hill Undergraduate Honor System, Annual
    Report

    2017–2018,

    at 6

    –7

    (2018) [hereinafter UNC Annual Report

    2017–2018

    ], https://studentconduct.unc.edu/sites/studentconduct.unc.edu/files/documents/2017-2018%­20Undergraduate%20Annual%20Report.pdf [https://perma.cc/B8WP-DRDJ] (analyzing UNC’s outcomes). A search of each university’s honor system website and student newspaper archives demonstrates that no other named universities have publicly released information about honor system outcomes.

  53. Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 12–13, 16–17.
  54. See Ohio State Annual Report
    2018–20

    19, supra note 51; UNC Annual Report 2017–2018, supra note 51

    .

  55. Meeting of the General Faculty & Faculty Council, UNC Office of Faculty Governance (Feb. 19, 2016), https://facultygov.unc.edu/faculty-council/meeting-materials-past-years/­meeting-materials-2015-16/february-19-2016/ [https://perma.cc/3VNW-WYQZ] (document­ing the report).
  56. Kelly Jasiura, More than Half of Honor Court Academic Cases Are Students of Color, Daily Tar Heel (Apr. 26, 2016), https://www.dailytarheel.com/article/2016/04/more-than-half-of-honor-court-academic-cases-are-students-of-color [https://perma.cc/AA7W-XJNK] (discussing the meeting).
  57. Id.
  58. Individuals of color are significantly over-represented in the prison population, compared to the population at large. E.g., E. Ann Carson, U.S. Dep’t of Justice, Bureau of Justice Statistics, Prisoners in 2016, at 13 (2018), https://www.bjs.gov/content/pub/pdf/p16.pdf [https://perma.cc/P3JW-EZF3]; Jennifer L. Eberhardt, Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do
    78

    (2019) (finding racial disparities in police stops, searches, handcuffs, and arrests).

  59. Black, Latino, and Native American students are disciplined at higher rates and receive harsher and longer punishments than their White peers, even when controlling for other variables. E.g., U.S. Dep’t of Educ. Office for Civil Rights, Civil Rights Data Collection, Data Snapshot: School Discipline 1 (Mar. 2014), https://ocrdata.ed.gov/Downloads/CRDC-School-Discipline-Snapshot.pdf [https://perma.cc/23FW-7L67] (finding that “[b]lack students are suspended and expelled at a rate three times greater than white students [and] [o]n average, 5% of white students are suspended, compared to 16% of black students”).
  60. See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 1 (“Too often, the Honor System’s available data has been guarded, a disservice to the University seeking to improve its most revered tradition.”).
  61. See U.S. Dep’t of Educ. Office for Civil Rights, 2017–18 Civil Rights
    Data Collection: List of CRDC Data Elements for School Year 2017–18, at
    2–3 (2018), https://www2.ed.gov/about/offices/list/ocr/docs/2017-18-crdc-data-elements.pdf [https://perma.cc/3R3T-V4UR] (last visited May 24, 2020).
  62. E.g., Nirvi Shah, Uneven Discipline Yields Civil Rights Complaint Against Texas District, Educ. Week (Feb. 20, 2013), http://blogs.edweek.org/edweek/rulesforengagement/­2013/02/groups_say_texas_district_tickets_black_students_disproportionately.html [https://­perma.cc/UEH3-M32D] (discussing a complaint filed using discipline data from a Texas school district); Press Release, ACLU of Va., Federal Civil Rights Complaint
    Challenges Discrimination in City of Richmond Public Schools (Aug. 24, 2016), https://acluva.org/en/press-releases/federal-civil-rights-complaint-challenges-discrimination-city-richmond-public-schools [https://perma.cc/WF3N-5HUD] (using data to support claim that Black students with disabilities were 12.91 times more likely than White students without disabilities to receive short-term suspensions).
  63. U.S. Dep’t of Educ. Office for Civil Rights, Civil Rights Data Collection:
    Frequently Asked Questions, https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/­crdc.html [https://perma.cc/YJ49-DEP9] (last visited May 24, 2020) (explaining the purpose and statutory authority for OCR to collect CRDC information).
  64. Although the Family Educational Rights and Privacy Act (“FERPA”) protects students’ disciplinary records from unauthorized disclosure to third parties, universities do not violate FERPA by releasing generalized, aggregate information about disciplinary proceeding outcomes that does not personally identify students. 20 U.S.C. § 1232g(b)(1) (2018) (FERPA statutory requirements); 34 C.F.R. § 99.1 et seq. (2019) (implementing regulations). UVA, UNC, and Ohio State’s reports demonstrate how honor systems can report data without violating FERPA. See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 1 (“No personal information, aside from aggregated and de-identified case data, has been disclosed from otherwise confidential Honor files.”); Ohio State Annual Report
    2018–2019,

    supra note 51, at 2–3 (providing aggregate data that would not identify students)

    ;

    UNC Annual Report

    2017–2018,

    supra note , at 6 (declining to provide information where there were five or fewer cases of a hearing type, so as not to identify students).

  65. See UVA Honor Comm., History of Reports and Commissions, Honor Bicentennial Report
    ,

    https://report.honor.virginia.edu/history-reports-and-commissions [https://perma.cc/­F843-D959] (last visited May 20, 2020) (listing these reports).

  66. Id.
  67. See, e.g., Cameron Feller, Honor Committee Statistics Reveal Racial Inconsistency in Cases Reported, Cavalier Daily (Apr. 6, 2009), http://www.cavalierdaily.com/­article/2009/04/honor-committee-statistics-reveal-racial-inconsist [https://perma.cc/GT97-Z5CY]; Annie O’Brien, Under-Represented and Over-Reported, Cavalier Daily (Mar. 5, 2014), http://www.cavalierdaily.com/article/2014/03/under-represented-and-over-reported [https://perma.cc/TUU3-94N6]; Cavalier Daily Staff , Editorial, Pinpointing Bias, Cavalier Daily (Apr. 10, 2001), http://www.cavalierdaily.com/article/2001/04/lead-editorial16276 [https://perma.cc/C2WH-2Q2M]. In addition, at the time of this writing, the historical case reports referenced in these articles were not available on the UVA Honor Committee website. See UVA Honor Comm., Public Summaries, https://honor.virginia.edu/public-summaries [https://perma.cc/J45Y-YTD4] (last visited June 1, 2020). As of this writing, the only way to see historical Honor System data is to look at the new analysis performed for the Bicentennial Report or past Cavalier Daily articles.
  68. Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 16.
  69. E.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 302 (2013) (challenging affirmative action policies on Equal Protection grounds); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 6, 35 (1973) (challenging Texas’s public education funding system on substantive due process and Equal Protection grounds); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (holding that racially segregated public schools violate the Equal Protection Clause).
  70. See discussion infra Part III.
  71. U.S. Const. amend. XIV, § 1.
  72. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 250 (2003) (challenge to affirmative action policies on Equal Protection and statutory grounds); Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (challenge to the use of race in public university admissions under the Equal Protection Clause); Brown, 347 U.S. at 495 (challenge to school segregation).
  73. Hunter v. Underwood, 471 U.S. 222, 227–28 (1985) (holding that a facially neutral law must have a discriminatory effect and a discriminatory intent in order to violate the Equal Protection Clause); see also United States v. Armstrong, 517 U.S. 456, 465 (1996) (holding that selective-prosecution claims use “ordinary equal protection standards” (citation omitted)).
  74. See Hunter, 471 U.S. at 227 (explaining differential treatment).
  75. See discussion supra note 63 regarding federal privacy law.
  76. See Tasby v. Estes, 643 F.2d 1103, 1108 (5th Cir. 1981) (“[A]bsent a showing of arbitrary disciplinary practices, undeserved or unreasonable punishment of black students, or failure to discipline white students for similar misconduct, the plaintiffs have not satisfied their burden . . . .”); Sweet v. Childs, 507 F.2d 675, 681 (5th Cir. 1975) (“There was no showing of arbitrary suspensions or expulsions of black students nor of a failure to suspend or expel white students for similar conduct.”); Fuller v. Decatur Pub. Sch. Bd. of Educ. Sch. Dist. 61, 78 F. Supp. 2d 812, 815 (C.D. Ill. 2000) (“[Plaintiffs’] statistics failed to establish that any similarly situated Caucasian students were treated less harshly.”), aff’d on other grounds, 251 F.3d 662 (7th Cir. 2001).
  77. See discussion supra Section I.B.
  78. See Armstrong, 517 U.S. at 459, 470 (finding that defendants’ “study” listing twenty-four defendants by race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case, did not prove elements of selective-prosecution claim).
  79. Hunter, 471 U.S. at 228 (defining element of discriminatory intent); Tasby, 643 F.2d at 1108 (applying this standard to discriminatory discipline cases).
  80. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).
  81. Eberhardt, supra note 57, at 11–43 (arguing that racial discrimination often ends up being more subtle or implicit); Emily Chiang, The New Racial Justice: Moving Beyond the Equal Protection Clause To Achieve Equal Protection, 41 Fla. St. U. L. Rev. 835, 842 (2014) (“[M]ost of the racism that remains in America is of the subconscious variety, as opposed to the explicit state-driven Jim Crow variety.”).
  82. Circumstantial evidence includes the racial “impact of the official action,” the “historical background of the decision,” the “specific sequence of events leading up to the challenged decision,” procedural or substantive “[d]epartures from the normal . . . sequence,” and “legislative or administrative history.” Arlington Heights, 429 U.S. at 266–68.
  83. Id. at 266 (finding that it will be “rare” that circumstantial evidence provides a “stark” and “clear pattern, unexplainable on grounds other than race” that the action was motivated by discriminatory intent); Mario L. Barnes & Erwin Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 Conn. L. Rev. 1059, 1066 (2011) (“[T]he Court has . . . created a framework for equal protection analysis that all but ensures only a narrow group of discrimination claims will be actionable or succeed.”).
  84. McCleskey v. Kemp, 481 U.S. 279, 308 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 206 (1976) (Stewart, J., plurality opinion)) (denying a Black prisoner’s challenge to his death penalty sentence).
  85. UNC allows jurors to consider the “gravity of the offense,” the “value of learning through experience,” and “[o]ther compelling circumstances” when determining an appropriate sanction. Univ. of N.C. at Chapel Hill, The Instrument of Student Judicial Governance 9 (Amended July 25, 2017) https://studentconduct.unc.edu/sites/studentconduct.unc.edu/­files/documents/Instrument.pdf [https://perma.cc/4DNP-N43P].
  86. McCleskey, 481 U.S. at 306–08.
  87. E.g., Thompson v. Ohio State Univ., 92 F. Supp. 3d 719, 729–32 (S.D. Ohio 2015) (finding a professor’s reasons for reporting a Black student to the honor system were not pretextual even though there was evidence that the professor had “singled out” African Americans for discipline), aff’d 639 F. App’x 333 (6th Cir. 2016); Cobb v. Rector & Visitors of Univ. of Va., 84 F. Supp. 2d 740, 747 (W.D. Va. 2000) (finding the “plaintiff relie[d] on raw statistics to argue that a greater number of minority students are charged with and convicted of honor violations. However, . . . statistics, standing alone, do not create a constitutional violation”).
  88. 42 U.S.C. § 2000d (2018) (prohibiting recipients of federal financial assistance, including public universities, from discriminating on the basis of race, color, and national origin).
  89. Id.
  90. 28 C.F.R. § 42.104(b)(2) (2019).
  91. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause . . . .” (citation omitted)).
  92. 28 C.F.R. § 42.104(b)(2).
  93. U.S. Dep’t of Justice, Civil Rights Div.
    ,

    Title VI Legal Manual Section VII, at 11 (2019) [hereinafter Title VI Manual], https://www.justice.gov/crt/case-document/file/923556/­download [https://perma.cc/Q8WG-GQ24] (explaining elements of Title VI disparate impact claims); see also Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 996 (1988) (“[C]ourts . . . [are not] obliged to assume that plaintiffs’ statistical evidence is reliable.”); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977) (holding that statistics can be used to prove disparate impact, but they must be contextualized).

  94. See Title VI Legal Manual
    ,

    supra note 92, at 9.

  95. See discussion supra Section I.B (discussing the lack of data about university student-led honor systems).
  96. Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding Title VI does not create a private right of action to enforce disparate impact regulations).
  97. U.S. Dep’t of Justice, Civil Rights Div., How Does the Division Find Out About Possible Civil Rights Violations?
    ,

    https://www.justice.gov/crt/how-does-division-find-out-about-possible-civil-rights-violations [https://perma.cc/4LVU-TD6B] (last visited May 20, 2020).

  98. U.S. Comm’n on Civil Rights, Are Rights a Reality? Evaluating Federal Civil Rights Enforcement 87 (2019), https://www.usccr.gov/pubs/2019/11-21-Are-Rights-a-Reality.pdf [https://perma.cc/TH9M-LPAJ] (“With the exception of [Americans with Disabilities Act] complaints, CRT is not under any obligation to investigate each complaint it receives.”); see also 28 C.F.R. § 35.171 (2019) (obligations under the Americans with Disabilities Act).
  99. Rob Arthur, Trump’s Justice Department Is Investigating 60% Fewer Civil Rights Cases than Obama’s, Vice News (Mar. 6, 2019), https://www.vice.com/en_us/article/bjq37m/­exclusive-trumps-justice-department-is-investigating-60-fewer-civil-rights-cases-than-obamas [https://perma.cc/C9EZ-PSJL].
  100. Id.; see also U.S. Comm’n on Civil Rights, supra note 97, at 83 (finding CRT had a 30% increase in the number of religious liberty cases in fiscal year 2018 over fiscal year 2017).
  101. U.S. Const. amend. XIV, § 1.
  102. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted); see also id. at 349 (holding that, under the Due Process Clause, an evidentiary hearing is not required prior to termination of disability benefits).
  103. E.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973) (claim alleging a fundamental right to public education).
  104. Id. at 35 (“Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.”).
  105. Several federal courts have explicitly rejected a constitutional right to higher education. See, e.g., Press v. State Univ. of N.Y. at Stony Brook, 388 F. Supp. 2d. 127, 134 (E.D.N.Y. 2005) (“[I]t is well-settled that access to education is not a constitutional or fundamental right.”); Cady v. S. Suburban Coll., 310 F. Supp. 2d 997, 1000 (N.D. Ill. 2004) (“There is no general constitutional right to higher education.”), aff’d as modified, 152 F. App’x 531 (7th Cir. 2005).
  106. This has been true in state court cases where the state constitution recognizes a fundamental right to education. E.g., In re RM v. Washakie Cty. Sch. Dist. No. 1, 102 P.3d 868, 874 (Wyo. 2004) (finding that, although there is a fundamental right to education under Wyoming’s constitution, “[t]he actual receipt of educational services is accordingly contingent upon appropriate conduct in conformity with state law and school rules”); Doe v. Superintendent of Sch., 653 N.E.2d 1088, 1096 (Mass. 1995) (“[A] student’s interest in a public education [under Massachusetts’s constitution] can be forfeited by violating school rules.”).
  107. Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (establishing these elements).
  108. 419 U.S. 565, 576 (1975).
  109. James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L.J. 2132, 2133 (1987) (finding that the Supreme Court “has carefully avoided any further definition of the scope or extent of due process protections in university disciplinary actions”).
  110. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 79, 84–85 (1978) (in a case in which a medical student who had been dismissed for poor academic performance without a hearing, “[a]ssuming the existence of a liberty or property interest,” the university “awarded at least as much due process as the Fourteenth Amendment requires”); see also Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 222–23 (1985) (assuming that although a student who had been dismissed from a university program for failing a required licensing exam had a constitutionally protected property interest, he had not been denied due process).
  111. Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 633 (6th Cir. 2005) (“[W]e have held that the Due Process Clause is implicated by higher education disciplinary decisions.”); Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1181 (10th Cir. 2001) (“Mr. Gossett had a property interest in his place in the Nursing School program that is entitled to due process protection.”); Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988) (“[A] student facing expulsion or suspension from a public [university] is entitled to the protections of due process.”).
  112. Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 772 (7th Cir. 2013) (“[O]ur circuit has rejected the proposition that an individual has a stand-alone property interest in an education at a state university . . . .”).
  113. Austin v. Univ. of Or., 925 F.3d 1133, 1139 (9th Cir. 2019) (“We assume, without deciding, that the student athletes have property and liberty interests in their education . . . . Nonetheless, they received ‘the hallmarks of procedural due process[.]’” (citation omitted)); Richmond v. Fowlkes, 228 F.3d 854, 859 (8th Cir. 2000) (assuming that a due process right exists, holding based on the facts that the student received the process that would be due); Mauriello v. Univ. of Med. & Dentistry of N.J., 781 F.2d 46, 52 (3d Cir. 1986) (“[F]ollowing the lead of the Supreme Court, we will assume arguendo that a constitutional right is implicated.”); Henson v. Honor Comm. of U. Va., 719 F.2d 69, 73 (4th Cir. 1983) (“Assuming Henson had a protected liberty or property interest in the Honor Code proceeding, we conclude that the procedural protections afforded him were sufficient . . . .”).
  114. Horowitz, 435 U.S. at 92 (“Courts are particularly ill-equipped to evaluate academic performance.”).
  115. Perry A. Zirkel, Are Procedural and Substantive Student Challenges to Disciplinary Sanctions at Public Institutions of Higher Education Judicially More Successful than Those at Private Institutions?, 41 J.C. & U.L. 423, 429–31 (2015) (internal quotation marks and citations omitted).
  116. E.g., Henson, 719 F.2d at 74 (concluding that cheating was disciplinary, rather than “evaluating the academic fitness of a student”); Slaughter v. Brigham Young Univ., 514 F.2d 622, 624 (10th Cir. 1975) (finding that academic dishonesty is “on the conduct or ethical side rather than an academic deficiency”); Jaksa v. Regents of Univ. of Mich., 597 F. Supp. 1245, 1248 n.2 (E.D. Mich. 1984) (“[C]heating should be treated as a disciplinary matter.”), aff’d mem., 787 F.2d 590 (6th Cir. 1986); Lightsey v. King, 567 F. Supp. 645, 648 (E.D.N.Y. 1983) (“This is a disciplinary matter, rather than an academic one.”).
  117. E.g., Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 639 (6th Cir. 2005) (“All that is required by the Due Process Clause, which sets a floor or lower limit on what is constitutionally adequate, is ‘sufficient notice of the charges . . . and a meaningful opportunity to prepare for the hearing.’” (citation omitted)); Gorman v. Univ of R.I., 837 F.2d 7, 16 (1st Cir. 1988) (explaining the need for flexibility because the court was reluctant to lessen a university’s ability to use these hearings as a learning tool); Seals v. Mississippi, 998 F. Supp. 2d 509, 526 (N.D. Miss. 2014) (denying the university student’s due process claim because “judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint” (citation omitted)).
  118. Goss v. Lopez, 419 U.S. 565, 579 (1975).
  119. Id. at 584.
  120. See Elizabeth Ledgerwood Pendlay, Note, Procedure for Pupils: What Constitutes Due Process in a University Disciplinary Hearing?, 82 N.D. L. Rev. 967, 974–76 (2006); see also Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987) (citing Goss, 419 U.S. at 583) (explaining that due process in universities does not rise to the same level of rights and protections at stake in civil or criminal trials).
  121. 34 C.F.R. § 100.1 et seq. (2019).
  122. See U.S. Dep’t of Educ. Office for Civil Rights, Office for Civil Rights Recent Resolution Search, https://ocrcas.ed.gov/ocr-search [https://perma.cc/H8AH-PR2L] (last visited June 1, 2020) (filtering searches by “Post Secondary Institutions,” “Race and National Origin Discrimination,” “Discipline” and “Post Secondary Institutions,” “Race and National Origin Discrimination” and “Not Listed Above” demonstrates that there have not been any investigations of university honor systems for racial discrimination in the past five years); U.S. Dep’t of Educ. Office for Civil Rights, Pending Cases Currently Under Investigation at Elementary-Secondary and Post-Secondary Schools, https://www2.ed.gov/about/offices/­list/ocr/docs/investigations/open-investigations/tvi.html [https://perma.cc/JXF8-A9YD] (last visited May 25, 2020) (demonstrating that there are not any open investigations categorized as being against university honor systems).
  123. SeeU.S. Dep’t of Educ. Office of Civil Rights, Education and Title
    VI, https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html [https://perma.cc/QC2V-W3AK] (last visited May 25, 2020); School/District Search, Civil Rights Data Collection, https://ocrdata.ed.gov/DistrictSchoolSearch [https://perma.cc/GL96-3Q9P] (last visited May 20, 2020).
  124. See discussion supra Part II regarding the evidentiary burden for these claims.
  125. See discussion infra Section III.C regarding university-initiated changes.
  126. See Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 16.
  127. 20 U.S.C. § 1092(f) et seq. (2018); see also Campus Safety and Security Data
    Analysis Cutting Tool, U.S. Dep’t of Educ., https://ope.ed.gov/campussafety/#/ [https://perma.cc/S5CB-NEAT] (last accessed May 25, 2020) (database compiling university reports).
  128. Universities are increasing data collection efforts to improve student outcomes and save money. See Meghan Bogardus Cortez, Universities Make Positive Changes Through Data Collection, EdTech (Sept. 16, 2016), https://edtechmagazine.com/higher/article/2016/09/­universities-make-positive-changes-through-data-collection [https://perma.cc/9N4N-8LAZ]; Ashley A. Smith, Push for Student-Level Data the Feds Don’t Collect, Inside HigherEd (Dec. 21, 2018), https://www.insidehighered.com/news/2018/12/21/student-data-system-advocat­es-want-more-colleges-and-universities-join-them [https://perma.cc/3MG7-EZG2].
  129. This is, in part, how the UVA Honor System conducted its analysis for its Bicentennial Report. Honor Assessment & Data Mgmt. Working Grp., supra note 15, at 5. These data reports would not eliminate the need for honor system leaders to maintain records about the type of violation for which each student was reported and found guilty, but they would be a starting point for compliance with OCR reporting requirements.
  130. See discussion supra Section I.B regarding the issues with student leaders’ capacity to collect and publish data.
  131. See discussion supra Introduction regarding defining features of student-led honor systems.
  132.  See U.S. Dep’t of Educ. Office for Civil Rights, Policy Guidance, https://www2.ed.gov/­about/offices/list/ocr/frontpage/faq/rr/policyguidance/index.html [https://perma.cc/7C7M-D­6KC] (last visited May 25, 2020) (historical policy guidance under Title VI).
  133. Id. (historical guidance and rulemaking on sexual violence disciplinary proceedings under Title IX). The Trump Administration recently completed a notice and comment period regarding a replacement set of Title IX rules. Press Release, U.S. Dep’t of Educ., Secretary DeVos Takes Historic Action To Strengthen Title IX Protections for All Students
    (May 6, 2020) https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students [https://perma.cc/FPQ6-YNWV].
  134. U.S. Dep’t of Educ. Office for Civil Rights, Policy Guidance, supra note 131.
  135. Id. (showing changes to policy guidance over time).
  136. At UVA, faculty, teaching assistants, and university administrators accounted for approximately 73% of all reports from 2012–2017. Justice in America Has Never Been Colorblind, supra note 13.
  137. E.g., Gregory Mitchell, An Implicit Bias Primer, 25 Va. J. Soc. Pol’y & L. 27, 28 (2018) (“Consensus now exists among implicit bias researchers that current measures of implicit bias cannot reliably identify who will or will not discriminate in any given situation and that programs aimed at changing implicit bias produce very limited effects.”).
  138. E.g., Eberhardt, supra note 57, at 279 (arguing that implicit bias training’s purpose is to make individuals “aware of how our minds work and how knee-jerk choices can be driven by stereotypes that cloud what we see and perceive,” not to “magically wipe out prejudice”); Elizabeth Levy Paluck & Donald P. Green, Prejudice Reduction: What Works? A Review and Assessment of Research and Practice, 60 Ann. Rev. Psychol. 339, 357–58 (2009) (finding that evidence-based diversity training efforts “succeed because they break down stereotypes and encourage empathy”).
  139. See, e.g., Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Q.J. Econ.

    1017, 1017 (2012) (finding that, in the criminal justice system, “juries formed from all-white pools convict black defendants significantly (16 percentage points) more often than white defendants” but that “this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member”).

  140. The Instrument of Student Judicial Governance
    ,

    supra note 84, at 21.

  141. Frequently Asked Questions, UVA Honor Comm., https://honor.virginia.edu/frequently-asked-questions [https://perma.cc/XU4Y-94QK] (last visited May 25, 2020).
  142. During Johnathan Perkins’s trial, he formally requested that the jury “not be all-white.” Justice in America Has Never Been Colorblind, supra note 13.
  143. See discussion supra notes 136–37 regarding the purpose and efficacy of implicit bias training.
  144. Justice in America Has Never Been Colorblind, supra note 13.
  145. Id.
  146. Id.
  147. Id.
  148. See The Instrument of Student Judicial Governance
    ,

    supra note 84, at 9.

  149. In the criminal justice system, Black prisoners are more likely than White prisoners to receive harsher sentences, even when controlling for non-racial factors that could influence sentencing. See Eberhardt, supra note 57, at 128; David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1727–29 (1998).
  150. See discussion supra Section I.A.

Self-Portrait in a Complex Mirror: Reflections on The Making of a Justice: Reflections on My First 94 Years by John Paul Stevens

Immediately after his death last year, Justice John Paul Stevens received a number of moving eulogies, several by former law clerks published in the Harvard Law Review, along with a tribute from Chief Justice Roberts.1.Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020).Show More Former law clerks—and I am one myself—must be given the latitude to reminisce about what they learned from their judge and what the judge’s contributions were. This Essay takes up a different task: to reflect on the man, the lawyer, and the judge as portrayed in his memoirs, The Making of a Justice: Reflections on My First 94 Years, published only months before he died at age ninety-nine. If the reflections in this Essay suffer from the distortions of hagiography, I hope they do so only to this extent: in observing that Justice Stevens does not need hagiography and would not have wanted it. On the contrary, he thought he could win any argument without fear or favor of any kind. And by the same token, he would have been completely confident of his account of his life and career. A comment by Paul Clement, a leading member of the Supreme Court bar, sets the tone for these reflections: Justice Stevens’s questions at oral argument were “[o]ften fatal; always kind.”2.Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27].Show More

Such paradoxes lie at the center of Justice Stevens’s character and his career as a lawyer and a judge. He showed extraordinary independence in a branch of government and a profession immersed in rules. He had a keen sense of competition, evident outside of court in his pursuit of golf, tennis, and bridge. In his memoirs, he confesses to only a few errors in his many opinions as a judge, and he points repeatedly to cases in which the Supreme Court eventually came around to the position he first took in dissent.3.John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases).Show More Yet he was known to be genial as well as generous in victory (which he much preferred) and in defeat (which he would rarely concede).4.Id. at 143 (conceding a mistake in one of five capital cases decided the same term).Show More He also had a fine sense of irony and a sharp sense of humor, notable for its telling and understated delivery. In a personal jurisdiction case, familiar mainly to experts in the arcana of civil procedure, the Court reached a unanimous result by way of several separate opinions. Justice Stevens agreed with the judgment in the case but not with the separate opinions, making clear his reservations in this footnote: “Perhaps the adage about hard cases making bad law should be revised to cover easy cases.”5.Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment).Show More

Justice Stevens’s independence raises pointed questions: Independence from what? And with allegiance to what principles? No individual, let alone a lawyer or a judge, would admit to a lack of independence. So does Justice Stevens’s independence really distinguish him from others in the same profession? The answer is a matter of both degree and kind: in degree, in his enthusiasm for the back-and-forth of legal argument, and in kind, in his skill and affinity for “the artificial reason and judgment of law,” as Lord Chief Justice Coke put it in confronting James I over his royal prerogative to act as a judge.6.12 Edward Coke, Reports of Sir Edward Coke 65 (1738).Show More Justice Stevens was a lawyer’s lawyer in his facility and engagement with the dialectic of legal discourse. This accords with both his competitiveness and his genial irony. Legal advocacy is a winner-take-all sport. It requires a truly competitive spirit, yet at the same time a willingness to graciously accept defeat.

In genuinely hard cases, the kind that make it to the Supreme Court, lawyers and judges must accept something like a major league batter’s average—ideally .500, but realistically .300. They prevail in hard cases or on difficult issues about a third of the time. This figure holds for Justice Stevens, as assessed through his opinions. He wrote a record-breaking 628 dissents as compared to 398 opinions for a majority or a prevailing plurality, and for good measure, he also wrote 375 concurring opinions.7.Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015).Show More It follows that a certain degree of humility is in order. This attitude might be hard to miss in Justice Stevens’s memoirs, which can be read as a history of arguments he won—or thought he should have won. To take this view, however, would be to discount Justice Stevens’s love of legal argument. As one of his former clerks, now Judge David Barron, observed: “Have you ever seen someone chuckle while reading a brief in a difficult case?”8.David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020).Show More

This Essay proceeds in three parts: first, in examining Justice Stevens’s personal and professional background and how that might have influenced his decisions as a judge; second, in accounting for the growing salience of the positions he took over his career; and third, in assessing the lessons from his long tenure as a Justice.

I. Individual and Family

Looking back over a life that extends to nearly a century, and over a career that was only a few decades shorter, requires continued adjustment of focus. Justice Stevens grew up in another era, one in which he could see Babe Ruth’s “called shot” before he hit a home run in the World Series.9.The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id.at 18.Show More He served with distinction in World War II and graduated from Northwestern University School of Law shortly after the war.10 10.Id.at 35–41, 53–59.Show More He then served as a law clerk for Justice Wiley Rutledge in the 1947 term of the Supreme Court.11 11.Id.at 61–68.Show More He returned to Chicago to practice law, focused upon antitrust cases, and returned only briefly to Washington to serve on the staff of the House Judiciary Committee.12 12.Id.at 69–92.Show More He was appointed to the U.S. Court of Appeals for the Seventh Circuit in 1970 and then to the Supreme Court in 1975.13 13.Id.at 107–10, 124–32.Show More

Justice Stevens established his reputation outside the antitrust field when he volunteered to serve, pro bono, as the general counsel to a commission investigating corruption in the Illinois Supreme Court.14 14.Id.at 101–06.Show More The commission, composed of practicing lawyers, was widely expected to exonerate the justices on the court, but Justice Stevens’s vigorous investigation corroborated the charges against two justices, who promptly resigned after the commission recommended that they do so. The investigation made Justice Stevens a prominent member of the Chicago bar, and soon after it concluded, Senator Charles Percy approached Justice Stevens about the possibility of appointment to the Seventh Circuit.15 15.Id.at 107–08.Show More The rest is history.

The smooth upward rise in his legal career might lead an observer to conclude that his personal life exemplified a similarly tranquil progression. This partly results from the illusion of a retrospective account of his career and partly from the evident satisfaction that Justice Stevens took in both his professional and his personal life. This mistake is understandable, but still a mistake. In his youth, his father was tried and convicted of financial fraud relating to the operation of the Stevens Hotel, which Justice Stevens’s family owned and managed. His father succeeded in having his conviction reversed on appeal a year after it was entered, but the entire process took a toll on the family, apparently contributing to a stroke suffered by Justice Stevens’s grandfather and the suicide of one of his uncles.16 16.Id.at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned).Show More Justice Stevens’s father never recovered his financial position, experienced failure as a restaurateur, and later had only limited success as the owner of a resort in Wisconsin.

After he reached the Supreme Court, Justice Stevens faced other personal trials. His adopted son, John Joseph Stevens, served in Vietnam and then encountered difficulties in civilian life. He died prematurely from a brain tumor in 1996.17 17.Barnhart & Schlickman, supra note 16, at 139, 193, 252.Show More Earlier, in 1979, Justice Stevens divorced his first wife, Elizabeth, and immediately married his second wife, Maryan. She had been the wife in a couple who lived near the Stevens family in Chicago and socialized with them, including with the children.18 18.Id. at 220–22.Show More The lessons from his personal life do not yield determinate implications for his judicial career or, indeed, for his life as a whole. What they do show, along with his service in World War II, is that he was someone acquainted with the crises in human affairs and their profound effects on individual lives, including his own.

His practice as a lawyer in Chicago, and a Republican in the era of the Democratic Daley machine, also reveals his ambivalent status as an establishment figure who was nevertheless, in some respects, an outsider. He notes in his memoirs, with characteristic irony, that when he entered the practice of law, “the Republican Party was still the party of Abraham Lincoln.”19 19.The Making of a Justice, supra note 3, at 81.Show More Now, of course, Republicans of this persuasion are as scarce nationally as all Republicans were in Chicago during his time there. After he became a judge, Justice Stevens refused to reveal his political affiliation, and several of his former law clerks speculate that he would have resisted the label that he was the leader of the liberal wing of the Supreme Court.20 20.He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican).Show More An accurate account of his judicial philosophy is so elusive partly because he was temperamentally averse to anything that resembled the party line.

II. The Evolution of a Justice

It is only a slight exaggeration to say that Justice Stevens moved from the center to the liberal wing of the Supreme Court without ever changing position. He did change position on issues such as affirmative action and capital punishment, moving away from disapproval of the first and approval of the second.21 21.He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id.at 141–44, 476–77.Show More But as Justice Stevens himself has noted, the Court changed around him more than he changed within it. Every Justice appointed during his time at the Court was more conservative than the Justice he or she replaced.22 22.Peñalver, supra note 20, at 765.Show More That change brought into greater relief the distinctiveness of his opinions and reasoning. When he challenged the old orthodoxy of the Warren and Burger Courts early in his career, his arguments mattered less to observers because that orthodoxy seemed so firmly established. As it has been systematically dismantled by the Rehnquist and Roberts Courts, the positions that he took appeared to be far more consequential. He ended his career challenging the emerging orthodoxy of originalism, textualism, and the primacy of rules over standards, and he invoked precedent more frequently to defend established doctrine as he saw it.

Tracing continuous themes in his career is a daunting task, made more daunting as his judicial record expanded over more than thirty-four years on the Court, and it has been augmented by the books he has published in retirement. The overall contours of his jurisprudence threaten to dissolve into a pointillist array of particular decisions and case-specific reasoning. General observations remain subject to qualifications, exceptions, and even refutation from the imposing number of opinions that he wrote, more than any other Justice in history. Hence, any attempt to identify principles and methods characteristic of his decisions has to be selective and by way of example rather than by an attempt to be comprehensive and definitive. This Essay therefore focuses on three opinions in which he took distinctive and noteworthy positions: Craig v. Boren,23 23.429 U.S. 190 (1976).Show More on sex discrimination and equal protection; Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,24 24.467 U.S. 837 (1984).Show More on judicial review of administrative action; and District of Columbia v. Heller,25 25.554 U.S. 570 (2008).Show More on the right to bear arms under the Second Amendment.

Each of these opinions comes from a different era in Justice Stevens’s tenure as a Justice—early, middle, and late—and each has had varying degrees of influence—from indirect and implicit, to significant and canonical, to oppositional and dissenting. The following discussion takes them up in chronological order.

A. Craig v. Boren

This case concerned two Oklahoma statutes that prohibited the sale of 3.2% beer to young men aged eighteen to twenty, but not to women of the same age. The majority opinion, by Justice Brennan, applied a form of “intermediate scrutiny” to hold the statutes unconstitutional because they did not “serve important governmental objectives” and were not “substantially related to achievement of those objectives.”26 26.Craig, 429 U.S. at 197.Show More The statistical evidence marshalled by the state did not establish a sufficient relation between the discrimination against young men and the state’s legitimate interest in traffic safety. Several separate opinions, either concurring or dissenting, raised issues about the appropriate standard of review.27 27.Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting).Show More Justice Stevens wrote another concurring opinion where he roundly declared: “There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases.”28 28.Id.at 211–12 (Stevens, J., concurring).Show More The Equal Protection Clause, as he read it, did not divide cases into those triggering strict scrutiny, rational basis review, and intermediate scrutiny.

Adherents to the orthodox view of judicial review would find this claim to be heresy, as it was then and still is now. The only difference in constitutional doctrine since then has been the shift towards increased scrutiny of sex-based classifications from the standard applied in Craig v. Boren to the more exacting standard of United States v. Virginia, requiring “an exceedingly persuasive justification” for government action based on gender.29 29.518 U.S. 515, 531 (1996) (internal quotation marks omitted).Show More While Justice Stevens concurred in these later opinions, he never retreated from his skepticism over “tiers of scrutiny.” He was “still convinced that carefully analyzing in each case the reasons why a state enacts legislation treating different classes of its citizens differently is far wiser than applying a different level of scrutiny based on the class of persons subject to disparate treatment.”30 30.The Making of a Justice, supra note 3, at 155.Show More The reason for his skepticism has as much to do with the logic of equality as with text of the Constitution. Assuring equal treatment among persons does not obviously require different standards of review and, as Justice Stevens suggests, seems to preclude it.

Whatever the merits of this argument, it certainly has not proved to be persuasive. It has not attracted the agreement of any other Justice. The debate among the other Justices over standards of judicial review has, instead, taken place within the framework of different levels of scrutiny. Yet the paradox he has noted has not been resolved, and it reappears whenever a new basis of classification, such as sexual orientation, comes under constitutional attack.31 31.Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review).Show More Justice Stevens’s failure to address such questions in terms of strict scrutiny might lead one to conclude that he was unsympathetic to novel claims of discrimination. The reverse, however, is true. On the particular issue of sexual orientation, in his very first term at the Court, he dissented from a summary affirmance of a decision upholding a criminal prohibition against sodomy,32 32.Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument).Show More as he did years later from a decision of the Court reaching the same conclusion on the merits,33 33.Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting).Show More and when the Court eventually overruled the latter decision, he joined the opinion doing so.34 34.Lawrence, 539 U.S. at 561.Show More

On the general issue of sex discrimination, as in Craig v. Boren, Justice Stevens nearly always voted to hold government action on the basis of sex unconstitutional. He did so in dissent from a decision upholding sex-based distinctions in defining statutory rape,35 35.Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting).Show More as he did in joining the opinions for the Court that established an elevated standard of scrutiny for sex-based classifications.36 36.United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982).Show More His refusal to frame the issue in terms of standards of review did not prevent him from reaching largely the same results. Occasional departures from this trend, as in his early vote to join in an opinion upholding a statute requiring only men to register for the draft37 37.Rostker v. Goldberg, 453 U.S. 57, 58 (1981).Show More or a late vote to join in an opinion upholding different standards for proof of paternity, rather than maternity, in immigration cases,38 38.Nguyen v. INS, 533 U.S. 53, 56 (2001).Show More stand out as exceptions based on very narrow grounds. These are, in the case of the draft, entirely superseded by the subsequent integration of women into all parts of the armed forces.39 39.Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military).Show More

More prominent and more immediately influential was Justice Stevens’s insistence on a unitary approach to claims of sex discrimination under Title VII of the Civil Rights Act of 1964.40 40.Codified at 42 U.S.C. §§ 2000e et seq. (2012).Show More He treated these claims just like claims of race discrimination, subject only to the narrow exceptions in the statute for employment discrimination on grounds other than race. In an early decision, City of Los Angeles Department of Water & Power v. Manhart,41 41.435 U.S. 702 (1978).Show More he established what would soon become the dominant approach to sex discrimination under Title VII. His opinion held that an employer violated Title VII whenever it made a classification on the basis of sex that fell outside the exceptions found in the statute.42 42.Id. at 708–10.Show More In a dissent from an earlier decision, he had already applied this principle to classifications on the basis of pregnancy,43 43.Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting).Show More and Congress soon amended Title VII to reach the result for which he had advocated.44 44.Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012).Show More He then elaborated upon it in an opinion that held, paradoxically, that male employees could be victims of pregnancy discrimination that restricted medical coverage for their wives.45 45.Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983).Show More This opinion was then further extended by the Court to exclusions from employment based on a woman’s capacity to become pregnant.46 46.UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991).Show More The Court’s position became identical to his own.

Is there a contrast between the standard “to govern impartially” that Justice Stevens found in the Equal Protection Clause and the rule prohibiting almost all classifications on the basis of sex under Title VII? If any exists, it arises from the more specific and less abstract terms of the statute, which lends itself to interpretation as a rule. Even so, this rule of statutory interpretation admitted some classifications on the basis of sex beyond those covered by exceptions in the statute itself. For instance, Justice Stevens found a California statute requiring paid leave for pregnant employees, but not for prospective fathers, to be consistent with Title VII. He reasoned that it was “consistent with ‘accomplishing the goal that Congress designed Title VII to achieve.’”47 47.Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)).Show More Justice Stevens’s interpretation of Title VII did not have to overcome any established orthodoxy, unlike the different standards of judicial review under the Constitution. Justice Stevens took issue with the latter orthodoxy and continued to do so throughout his career and in his memoirs,48 48.The Making of a Justice, supra note 3, at 155.Show More even if he could not persuade his colleagues explicitly to depart from it.

B. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

Justice Stevens’s opinion for the Court in Chevron has likely received more citations than any other of his opinions. It is cited in nearly 17,000 judicial opinions and over 20,000 secondary sources.49 49.WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations)(last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006).Show More By way of comparison, his decision upholding the exercise of the eminent domain power in Kelo v. City of New London,50 50.545 U.S. 469 (2005).Show More which he regards as the most unpopular of his career,51 51.The Making of a Justice, supra note 3, at 431.Show More has been cited in opinions just over 500 times and in secondary sources just under 6000 times.52 52.WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020).Show More In administrative law, Chevron has become something of a world unto itself. Its holding appears in a paragraph that has been endlessly interpreted by courts and commentators:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.53 53.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted).Show More

In his memoirs, as in his opinions after Chevron, Justice Stevens went to some length to downplay its significance, emphasizing its continuity with prior decisions deferring to agency expertise and reserving to the courts the power to decide “pure question[s] of statutory construction.”54 54.Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)).Show More For him, there was no “Chevron revolution.”55 55.Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”).Show More To the consternation of Justice Scalia, he departed from the orthodoxy that would have elevated the significance of his own opinion.56 56.Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment).Show More In its place, Justice Stevens relied on a disputable distinction between pure questions of law for the courts and questions of application of law to fact for the agencies, complicating the seemingly simple procedure endorsed in Chevron itself.57 57.Id. at 445–46 & n.29 (majority opinion).Show More As a consequence, he appears to have minimized the implications of one of his most influential decisions—and to be one of the few Justices in history to do so. His aversion to rigid rules of decision extended even to those derived from his own opinions.

The most fundamental objection to a broad view of Chevron goes to its deference to administrative agencies on questions of law. Under current doctrine, administrative agencies can essentially “say what the law is.”58 58.City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting).Show More This question has been, since Marbury v. Madison, traditionally thought to be “emphatically the province and duty of the judicial department.”59 59.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).Show More A further objection follows from the provision in the Administrative Procedure Act that authorizes judicial review of “all relevant questions of law”60 60.5 U.S.C. § 706 (2012).Show More and from the historical practice of review of agency action by writ of mandamus.61 61.Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017).Show More Justice Stevens’s view of Chevron reduces the force of those objections, as compared to the usual understanding of the decision, by opening the door at the outset of the inquiry to judicial resolution of “pure question[s] of statutory construction.”62 62.Cardoza-Fonseca, 480 U.S. at 445–46 & n.29.Show More Still, if Chevron means anything, it leaves some questions of law for agency determination. Justice Stevens’s view of the decision does not eliminate all objections to it or put an end to the seemingly endless disputes over its proper interpretation.63 63.Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46.Show More What it does illustrate is Justice Stevens’s preference for continuity and common sense over radical restructuring and formal inquiry.

In a revealing aside in his memoirs, Justice Stevens identifies Chevron as the only case in which he visited the chambers of another Justice to secure agreement with his draft opinion. He visited Justice Brennan to convince him to join the opinion for the Court, which made it unanimous.64 64.The Making of a Justice, supra note 3, at 205.Show More The need to secure another vote, when Justice Stevens already had a majority of five, does not seem obvious based on considerations internal to the opinion itself. Yet as an institutional matter, the Supreme Court was handicapped in deciding Chevron by the recusal of three Justices,65 65.Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision).Show More making any bare majority a fragile basis for guiding lower courts and administrative agencies. Concerns over continuity of precedent influenced both the opinion itself and the method of securing support for it.

Scholars of administrative law might well find Justice Stevens’s attempt to generate consensus ironic, as it resulted in a precedent that has since become an occasion for proliferating disputes. In addition to the issues mentioned earlier, it has generated disputes over the deference accorded to an agency’s interpretation of its own regulations66 66.Auer v. Robbins, 519 U.S. 452, 461–63 (1997).Show More and over the forms of agency interpretations, from regulations to positions taken in litigation, that deserve deference.67 67.United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”).Show More A further limitation on the decision puts “question[s] of deep economic and political significance” beyond its scope.68 68.King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges).Show More It also does not apply to purely interpretive rules promulgated by an agency that Congress did not intend to have the force of law69 69.Gonzales v. Oregon, 546 U.S. 243, 268 (2006).Show More or when settled judicial interpretation has eliminated any ambiguity in a statute.70 70.United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment).Show More Instead of simplifying judicial review of administrative action, Chevron has resulted in the multiplication of doctrinal issues that limit or trigger its application. Perhaps the vast scale of the administrative state would have resulted in disputes over similar issues under different headings, but they now come under the heading of Chevron, limiting its scope and significance. If so, in another ironic twist, this development tends to support Justice Stevens’s view of the decision as a modest innovation on existing precedents.

C. District of Columbia v. Heller

Precedent figured far more prominently in Justice Stevens’s dissent from the Supreme Court’s reinvigoration of the Second Amendment as the source of individual rights to gun ownership, possession, and use. His opinion relied primarily on the authority of United States v. Miller,71 71.307 U.S. 174 (1939).Show More a decision from the 1930s that upheld a federal prohibition applicable to sawed-off shotguns. He fully endorsed the reasoning of that decision requiring that firearms protected by the Second Amendment must have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”72 72.Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178).Show More Justice Scalia, writing for the Court, took issue with the breadth and soundness of Miller because that opinion says “[n]ot a word (not a word) about the history of the Second Amendment.”73 73.Heller, 554 U.S. at 624.Show More After his own lengthy review of the historical record, Justice Stevens found that Scalia offered “insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.”74 74.Id. at 679 (Stevens, J., dissenting).Show More

Debate has ensued over whether the difference between the two opinions arose from applying a common originalist methodology75 75.Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”).Show More or from contrasting originalism with adherence to precedent.76 76.Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”).Show More To be sure, Justice Stevens felt the need to meet Scalia’s arguments from the historical record on their own terms, even though he believed Miller to provide an entirely sufficient basis for his dissent.77 77.The Making of a Justice, supra note 3, at 485.Show More He did not become an originalist by taking on originalist arguments. Indeed, his appeal to the historical record appears to be confirmed on a crucial issue in Heller: whether “the right to bear arms” in the Second Amendment was primarily understood at the time of its ratification in a military context. Scalia conceded that the phrase took on that meaning when it was used with the preposition “against,”78 78.Heller, 554 U.S. at 586.Show More as in “the right to bear arms against a foreign enemy.” More recent and more extensive searches of eighteenth-century texts reveal that the phrase was used most commonly in a military context.79 79.Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019).Show More A rigorous originalist, who would overrule precedents contrary to the common public meaning of constitutional language at the time of enactment, might well have doubts about the continued force of Heller itself as a precedent.80 80.Id.at 10–15.Show More

In his dissent, Justice Stevens did not appeal directly to public policy but to the need to give elected officials the power to make the policy judgments inherent in gun control legislation.81 81.Heller, 554 U.S. at 679–80 (Stevens, J., dissenting).Show More His memoirs, like his previous book, Six Amendments, are another matter. He “find[s] it incredible that policymakers in a democratic society have failed to impose more effective regulations on the ownership and use of firearms than they have.”82 82.The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground).Show More He also regrets that he did not emphasize the human costs of the decision in his conversations with fellow Justices.83 83.The Making of a Justice, supra note 3, at 485.Show More While the coincidence of his views on the policy issue and the constitutional issue is not surprising, the framing of his legal argument to turn decisively on precedent is revealing. His heavy reliance upon Miller was not an instance of looking into a crowd and seeing his friends. Miller was the only decision on point from the Supreme Court. His faith in precedent went hand-in-hand with his emphasis upon case-by-case adjudication.84 84.William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10.Show More

In this respect, he was a Burkean conservative, who could depart from precedent only if he understood all features of the past decision and all features of the present case. Incremental change for Edmund Burke was far superior to revolutionary transformations. As Burke said, “I must see with my own eyes, I must, in a manner, touch with my own hands, not only the fixed but the momentary circumstances, before I could venture to suggest any political project whatsoever.”85 85.Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901).Show More So too, Justice Stevens had to see and handle all the dimensions of a case or a precedent. This can prove maddening to anyone trying to extract general principles from his opinions, but it is an undeniable characteristic of his jurisprudence.86 86.Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”).Show More

While Justice Stevens was reluctant to overrule past decisions, he could readily distinguish them. For instance, in a case on sovereign immunity, Seminole Tribe v. Florida,87 87.517 U.S. 44, 84 (1996) (Stevens, J., dissenting).Show More he questioned the scope of a precedent that extended the Eleventh Amendment to suits by a citizen of a state against that citizen’s own state. He did not, however, see any need to overrule it because it did not, like Seminole Tribe, concern a claim under a federal statute.88 88.Id.at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute).Show More Justice Stevens took the same position on the scope of the Eleventh Amendment in his book, Six Amendments, urging that the Amendment itself should be amended to make clear that it does not apply to claims under federal statutes or the Constitution.89 89.Six Amendments, supra note 82, at 146–47.Show More In a later case, Kimel v. Florida Board of Regents,90 90.528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part).Show More he would have overruled Seminole Tribe, but on the ground that that decision itself did not respect precedent.91 91.Id. at 97–99 (Stevens, J., dissenting in part and concurring in part).Show More Whether or not one finds this intricate reasoning persuasive, it indicates the lengths to which he would go in order to preserve a semblance of continuity in the Court’s rulings.

This strategy had untoward consequences in Heller and in the ensuing decision in McDonald v. City of Chicago,92 92.561 U.S. 742 (2010).Show More which applied the Second Amendment to the states. The majority opinions in both cases have a decidedly anti-precedential undertone, arguing that the Second Amendment has not received the respect it deserves. The majority opinion in Heller concluded that “it is not the role of this Court to pronounce the Second Amendment extinct,”93 93.District of Columbia v. Heller, 554 U.S. 570, 636 (2008).Show More and the majority opinion in McDonald decided “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty.”94 94.561 U.S. at 767.Show More The Court in McDonald also noted that a number of decisions selectively incorporating the Bill of Rights in the Fourteenth Amendment also overruled prior precedents.95 95.Id. at 763–66.Show More When overruling is the order of the day, an appeal to precedent can seem to be both futile and self-defeating.

That still leaves open the question of how a nonconformist, like Justice Stevens, could genuinely follow precedent. The answer goes back to an opinion early in his career. In Runyon v. McCrary,96 96.427 U.S. 160, 173 (1976).Show More the Supreme Court applied the Civil Rights Act of 186697 97.Codified at 42 U.S.C. § 1981 (2012).Show More to private discrimination, based on its earlier decision in Jones v. Alfred H. Mayer Co.98 98.392 U.S. 409, 420–21 (1968).Show More In a concurring opinion, Justice Stevens stated that his “conviction that Jones was wrongly decided is firm,” but that Jones accorded with the “policy of the Nation as formulated by the Congress in recent years.”99 99.Runyon, 427 U.S.at 190–91 (Stevens, J., concurring).Show More The statutory context favored the continued vitality of Jones even if it was wrongly decided in the first instance. By contrast, when the statutory or constitutional context of a prior decision had changed to its disadvantage, Justice Stevens favored overruling or drastically narrowing its scope, as he said in opinions in areas as different as maritime law and habeas corpus.100 100.Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district).Show More Precedent for him, perhaps more so than for most judges, enabled as much as it constrained his decision making. It provided the language of the law in which he framed his argument rather than dictating his decisions.

III. The Influence of an Iconoclast

Memoirs necessarily are a retrospective genre, looking back over an entire life and career. They invite the nostalgic thought that the author’s like will not be seen again. Of course, this is true. No veteran of World War II or a graduate from law school in the 1940s will be seen again on the Supreme Court. The more urgent question is whether conditions have so greatly changed that they leave no room for a Justice with the independence of mind that Justice Stevens displayed. It is, however, a question for the long term. It is not one that can be answered by a search for the acceptance of his views by a majority of Justices before his death. His memoirs could be read in this way, but scorekeeping along this dimension alone misses what was essential to his style of reasoning.

The justification for what he wrote in his many opinions was internal to the arguments he advanced, not external and dependent upon acceptance by others. An iconoclast, as he was in an insistent and understated way, does not expect to gain immediate agreement. Justice Stevens was not searching for the median position that would attract a majority of Justices. Anyone who spoke out against the established tiers of judicial review, as Justice Stevens did in Craig v. Boren, was not seeking consensus support for his views. Chevron might be taken to be an exceptional case in which Justice Stevens did seek consensus, but his minimalist interpretation of that decision represents a minority view. His attempt to confront originalism on its own terms in District of Columbia v. Heller hardly constitutes a concession to this influential method of constitutional interpretation. It instead rests on his refusal to depart from established precedent.

In offering his many separate dissents and concurrences, Justice Stevens did not expect to be vindicated by agreement. It is not that he was indifferent to the outcome in those cases. Even a cursory look at his dissents, for instance, in the cases in which he would have denied First Amendment protection for flag burning,101 101.United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting).Show More demonstrates this conclusion to be deeply erroneous. He was by nature too serious and competitive to be indifferent. Otherwise, he would not have written his book, Six Amendments,102 102.Six Amendments, supra note 82, at 15–17.Show More arguing for changes to the Constitution to overrule several decisions, from most of which he dissented. The question elided by that book is whether he would have overruled those precedents once they had been handed down. Proposing amendments finessed this question and relieved him of the need to reveal how far he would depart from his general respect for precedent.

The hazards of a purely effects-based test for influence put skeptics of the reigning orthodoxy at a systematic disadvantage. It also invites a premature historical inquiry into the legacy of a Justice’s tenure at the Supreme Court. The evidence is not all in, even after a tenure and life as long as his. The vicissitudes of historical understanding, with each generation of historians offering an account that might be at odds with its predecessors, adds another dimension of uncertainty to the assessment of effects. Is Justice Story now regarded as highly as he was in the early nineteenth century, when he was well known as a prolific treatise writer and an influential professor at Harvard Law School, in addition to his role as a Justice of the Supreme Court?103 103.See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”).Show More One hesitates to offer any simple, formulaic answer to such questions.

Our assessment now must be based on the integrity, originality, and soundness of Justice Stevens’s judicial record. Members of the legal profession would admire all these attributes of his decisions, even as they disagreed with him on the merits. One suspects that he would demand as much independence of judgment from them as he expected of himself. As Professor Olatunde Johnson wryly recounts of her clerkship with him: “We discussed the cases vigorously. He listened to us carefully and graciously; it often seemed hard to change his mind.”104 104.Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020).Show More His legacy rests for the present on the example he set. It offers, within the legal profession, an alternative to the divisive politics that mark the current era. Whether it is an alternative that will be embraced or forsaken in American public life remains to be seen. His memoirs demonstrate exactly what is at stake in this choice.

  1. * John Barbee Minor Professor of Law, University of Virginia. I clerked for Justice Stevens in the 1975 term of the Supreme Court.

  2. Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747 (2020).
  3. Paul Clement, Justice Stevens at Oral Argument: Often Fatal; Always Kind, SCOTUSblog (July 19, 2019, 1:18 PM), https://www.scotusblog.com/2019/07/justice-stevens-at-oral-argument-often-fatal-always-kind/ [https://perma.cc/6ZBF-KH27].
  4. John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years 147, 153–54, 199–200 (2019) [hereinafter The Making of a Justice] (decisions on gay rights, pregnancy discrimination, and sentencing in death penalty cases).
  5. Id. at 143 (conceding a mistake in one of five capital cases decided the same term).
  6. Burnham v. Superior Court, 495 U.S. 604, 640 n.* (1990) (Stevens, J., concurring in the judgment).
  7. 12 Edward Coke, Reports of Sir Edward Coke 65 (1738).
  8. Lee Epstein et al., The Supreme Court Compendium: Data, Decisions, and Developments 634 (6th ed. 2015).
  9. David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 749 (2020).
  10. The Making of a Justice, supra note 3, at 17–18. He does admit to some uncertainty over where Ruth’s home run landed, which he resolved in favor of his initial recollection by looking at the box score for the game. Id. at 18.
  11. Id. at 35–41, 53–59.
  12. Id. at 61–68.
  13. Id. at 69–92.
  14. Id. at 107–10, 124–32.
  15. Id. at 101–06.
  16. Id. at 107–08.
  17. Id. at 19–20, 24–25; see also Bill Barnhart & Gene Schlickman, John Paul Stevens: An Independent Life 34–35 (2010) (describing the “fresh humiliation” faced by the Stevens family even after their father’s verdict was overturned).
  18. Barnhart & Schlickman, supra note 16, at 139, 193, 252.
  19. Id. at 220–22.
  20. The Making of a Justice, supra note 3, at 81.
  21. He is reported to have said, when asked about his political affiliation, “[t]hat’s the kind of issue I shouldn’t comment on, either in private or in public!” Jeffrey Rosen, The Dissenter, Justice John Paul Stevens, N.Y. Times Mag., Sept. 23, 2007, at 50; see also Christopher L. Eisgruber, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 757–60 (2020) (commenting on Stevens’s possible reaction to being identified as “[l]eader of the Court’s liberal wing”); Eduardo M. Peñalver, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 765 (2020) (discussing how Stevens identified as a Republican).
  22. He changed his mind about affirmative action, or at least his general attitude, if not his position on particular cases. The Making of a Justice, supra note 3, at 160–61, 175–76, 218–19, 259–60, 398–401. With respect to the death penalty, his position evolved from approval in some cases to disapproval in all. Id. at 141–44, 476–77.
  23. Peñalver, supra note 20, at 765.
  24. 429 U.S. 190 (1976).
  25. 467 U.S. 837 (1984).
  26. 554 U.S. 570 (2008).
  27. Craig, 429 U.S. at 197.
  28. Id. at 210 (Powell, J., concurring); id. at 215 (Stewart, J., concurring in the judgment); id. at 217 (Burger, C.J., dissenting); id. at 218–21 (Rehnquist, J., dissenting).
  29. Id. at 211–12 (Stevens, J., concurring).
  30. 518 U.S. 515, 531 (1996) (internal quotation marks omitted).
  31. The Making of a Justice, supra note 3, at 155.
  32. Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (criticizing the majority’s holding that homosexual sodomy was protected by the Constitution without identifying the standard of review).
  33. Doe v. Commonwealth’s Attorney, 425 U.S. 901 (1976) (voting to note probable jurisdiction for full briefing and oral argument).
  34. Bowers v. Hardwick, 478 U.S. 186, 218–20 (1986) (Stevens, J., dissenting).
  35. Lawrence, 539 U.S. at 561.
  36. Michael M. v. Superior Court, 450 U.S. 464, 496–502 (1981) (Stevens, J., dissenting).
  37. United States v. Virginia, 518 U.S. 515, 518, 531 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 127, 136–37 (1994); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 719, 724 (1982).
  38. Rostker v. Goldberg, 453 U.S. 57, 58 (1981).
  39. Nguyen v. INS, 533 U.S. 53, 56 (2001).
  40. Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568, 576–77 (S.D. Tex. 2019) (holding Rostker v. Goldberg not binding because of the expansion of women’s opportunities in the military).
  41. Codified at 42 U.S.C. §§ 2000e et seq. (2012).
  42. 435 U.S. 702 (1978).
  43. Id. at 708–10.
  44. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 161–62 (1976) (Stevens, J., dissenting).
  45. Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified at 42 U.S.C. § 2000e(k) (2012).
  46. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682–85 (1983).
  47. UAW v. Johnson Controls, Inc., 499 U.S. 187, 197–200 (1991).
  48. Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 294–95 (1987) (Stevens, J., concurring in part and concurring in the judgment) (quoting Steelworkers v. Weber, 443 U.S. 193, 204 (1979)).
  49. The Making of a Justice, supra note 3, at 155.
  50. WestLaw Search for Citations to Chevron, WestLaw, https://1.next.westlaw.com/Search­/Home.html?transitionType=Default&contextData=(sc.Default) (enter “Chevron” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020). Professor Thomas W. Merrill regards Chevron as “his most famous opinion.” Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in Administrative Law Stories 398, 420 (Peter L. Strauss ed., 2006).
  51. 545 U.S. 469 (2005).
  52. The Making of a Justice, supra note 3, at 431.
  53. WestLaw Search for Citations to Kelo, WestLaw, https://1.next.westlaw.com/Search/­Home.html?transitionType=Default&contextData=(sc.Default) (enter “Kelo” into the search bar and select the “search” button; then inspect the “Content types” column on the left for the numbers of citations) (last visited Feb. 2020).
  54. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (footnotes omitted).
  55. Negusie v. Holder, 555 U.S. 511, 529–31 (2009) (Stevens, J., concurring in part and dissenting in part); INS v. Cardoza-Fonseca, 480 U.S. 421, 445–46 & n.29 (1987); see also The Making of a Justice, supra note 3, at 228 (“[T]he judiciary ‘must reject administrative constructions which are contrary to clear congressional intent.’” (quoting Chevron, 467 U.S. at 843 n.9)).
  56. Gary Lawson, Federal Administrative Law 601 (8th ed. 2019) (“Was the Chevron revolution over before it actually began?”).
  57. Cardoza-Fonseca, 480 U.S. at 453–55 (Scalia, J., concurring in the judgment).
  58. Id. at 445–46 & n.29 (majority opinion).
  59. City of Arlington v. FCC, 133 S. Ct. 1863, 1880 (2013) (Roberts, C.J., dissenting).
  60. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
  61. 5 U.S.C. § 706 (2012).
  62. Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930–97 (2017).
  63. Cardoza-Fonseca, 480 U.S. at 445–46 & n.29.
  64. Gary Lawson, supra note 55, at 659, 689–92, 718–19, 735–46.
  65. The Making of a Justice, supra note 3, at 205.
  66. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 866 (1984) (Justices Marshall and Rehnquist took no part in the case. Justice O’Connor heard oral argument but took no part in the decision).
  67. Auer v. Robbins, 519 U.S. 452, 461–63 (1997).
  68. United States v. Mead Corp., 533 U.S. 218, 229–34 (2001) (excluding deference to classification rulings by the Customs Service); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (excluding deference to “interpretations contained in policy statements, agency manuals, and enforcement guidelines”).
  69. King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (internal quotation marks omitted) (definition of allowable subsidies in health insurance exchanges).
  70. Gonzales v. Oregon, 546 U.S. 243, 268 (2006).
  71. United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (opinion of Breyer, J.); id. at 496 (Scalia, J., concurring in part and concurring in the judgment).
  72. 307 U.S. 174 (1939).
  73. Id. at 178; see also District of Columbia v. Heller, 554 U.S. 570, 637 (2008) (Stevens, J., dissenting) (quoting language from Miller, 307 U.S. at 178).
  74. Heller, 554 U.S. at 624.
  75. Id. at 679 (Stevens, J., dissenting).
  76. Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1346 (2009) (“All nine members of the Heller Court began by accepting the foundation of originalist theory . . . .”).
  77. Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 686 (2009) (interpreting the majority opinion as giving priority to originalism over precedent); J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 272–73 (2009) (criticizing the majority opinion for relying on originalist reasoning to create “a new substantive constitutional right that had not been recognized in over 200 years”).
  78. The Making of a Justice, supra note 3, at 485.
  79. Heller, 554 U.S. at 586.
  80. Darrell A.H. Miller, Owning Heller, 1 U. Fla. J.L. & Pub. Pol’y F. 1, 7–9 (2019).
  81. Id. at 10–15.
  82. Heller, 554 U.S. at 679–80 (Stevens, J., dissenting).
  83. The Making of a Justice, supra note 3, at 484; see also John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 174 (2014) [hereinafter Six Amendments] (proposing an amendment to the Second Amendment partly on this ground).
  84. The Making of a Justice, supra note 3, at 485.
  85. William D. Popkin, A Common Law Lawyer on the Supreme Court: The Opinions of Justice Stevens, 1989 Duke L.J. 1087, 1105–10.
  86. Edmund Burke, Letter to a Member of the National Assembly, in IV The Writings and Speeches of Edmund Burke 43 (1901).
  87. Judge Alison J. Nathan, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 753 (2020) (“[H]is judicial philosophy fundamentally defies categorization.”).
  88. 517 U.S. 44, 84 (1996) (Stevens, J., dissenting).
  89. Id. at 84–93 (Stevens, J., dissenting) (refusing to apply immunity under Hans v. Louisiana, 134 U.S. 1 (1890), to claims under a federal statute).
  90. Six Amendments, supra note 82, at 146–47.
  91. 528 U.S. 62, 92 (2000) (Stevens, J., dissenting in part and concurring in part).
  92. Id. at 97–99 (Stevens, J., dissenting in part and concurring in part).
  93. 561 U.S. 742 (2010).
  94. District of Columbia v. Heller, 554 U.S. 570, 636 (2008).
  95. 561 U.S. at 767.
  96. Id. at 763–66.
  97. 427 U.S. 160, 173 (1976).
  98. Codified at 42 U.S.C. § 1981 (2012).
  99. 392 U.S. 409, 420–21 (1968).
  100. Runyon, 427 U.S. at 190–91 (Stevens, J., concurring).
  101. Compare American Dredging Co. v. Miller, 510 U.S. 443, 458–62 (1994) (Stevens, J., concurring in part and concurring in the judgment) (preemption of state remedies for maritime workers), with Rasul v. Bush, 542 U.S. 466, 478–79 (2004) (jurisdiction of federal district court to issue writ of habeas corpus on behalf of prisoners held outside territory of district).
  102. United States v. Eichman, 496 U.S. 310, 323–24 (1990) (Stevens, J., dissenting); Texas v. Johnson, 491 U.S. 397, 438–39 (1989) (Stevens, J., dissenting).
  103. Six Amendments, supra note 82, at 15–17.
  104. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 385 (1985) (“Even at Harvard Law School, the judge’s stature and relevancy declined with an uncharitable swiftness.”).
  105. Olatunde C.A. Johnson, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 747, 762 (2020).