The Life Cycle of the Responsibility to Protect The Ongoing Emergence of R2P as a Norm in the International Community Maxine Dehavenon Brown University Author Fabienne Tarrant Tathyana Mello Amaral Harry Xie Editors Fall 2019 Download full text PDF (10 pages) Introduction The “life cycle of a norm,” as presented by Martha Finnemore and Kathryn Sikkink, holds that for a norm to become fully accepted and internalized as the rational action in a certain situation, it must travel through three phases of existence: norm emergence, norm cascade, and norm internalization. At this point in time, there is a norm of a responsibility to protect, referred to as R2P, manifesting itself in the international community. However, it is currently stuck in the second phase of its evolution. While the actions taken by the Security Council in Bosnia represent R2P’s emergence as a norm championed by “entrepreneurs,” and the US-led NATO intervention in Libya, as well as the passing of Resolution 1764 in 2005 prove R2P’s successful passage beyond the “tipping point” into the stage of “norm cascade,” the current inaction on the part of the international community in the case of the Syrian genocide reflects the fact that the responsibility to protect has not yet become a fully realized norm to the point where it is universally recognized as the appropriate response to all human rights violations. This is due in part simply to the precedent set by the “failure” in the eyes of the international community of past invocations of R2P – a fact which is not a shortcoming of the strength of the norm, but rather of its application - but also to the structural challenges associated with allowing the application and trial of a norm to be dictated by a body as politicized as the Security Council. As reflected in the case of Syria, the veto power accorded to the P5 on the Security Council provides outliers to the acceptance of R2P, such as Russia, to hijack its trial process and stagnate its chance to become fully internalized. This paper begins with a discussion of the theoretical process by which a norm comes into being as described by Finnemore and Sikkink, followed by an application of such a process to the emerging norm of responsibility to protect through the framework provided by the cases of Bosnia, Libya and Syria. It then tackles the question of why the norm has yet to be fully internalized in the international sphere, presenting an argument for the fact that this is due to the undue power over its application given to the permanent members of the Security Council, and finally in the conclusion, it goes on to make an argument for how to overcome the incommensurate, politicized sway of the Security Council over R2P’s evolution as a norm. Theoretical Framework A norm in international relations is most commonly defined by Martha Finnemore and Kathryn Sikkink in their article “International Norm Dynamics and Political Change” as a “standard of appropriate behavior for actors with a given identity.” Such a definition provides a succinct, yet comprehensive inclusion of the major characteristics of norms, namely, their status as an ideational standard of conduct given a particular circumstance, and the universality of acceptance on the part of a certain group with respect said conduct’s legitimacy and necessity. It is also important to note, that for a standard to be considered a fully formed norm, it can’t only be acted upon physically or rhetorically by states, it must essentially be a “foregone conclusion” in the eyes of those party to it as the appropriate behavior. This distinction, though subtle, is crucial, in that it separates an emerging norm from a fully formed one; while an emerging norm is represented as such by conspicuous, conscious efforts to fulfill a standard set forward by norm entrepreneurs, an absolute norm is such because “[it is] internalized by actors and achieve[s] a “taken for granted” quality that makes conformance with the norm almost automatic.” This distinction is what separates a norm from something like a law, or a resolution; states do not just comply with it because of a positive duty to a legally or politically binding force, they comply with it as part of a negative duty to follow a principle so embedded in code of behavior as correct, that no thought goes into its action whatsoever. Finnemore and Sikkink outline in their article what has come to be known as the “life cycle” of the emergence of such a norm, or the evolution of a standard of behavior must follow in order to become a fully formed norm within the international community. This cycle has three phases. Phase one, titled “norm emergence,” is characterized by the promotion of a certain standard by what Sikkink and Finnemore call “norm entrepreneurs,” or those within the international community who could be considered “thought leaders” with respect to normative formation, through “organizational platforms” such as international institutions, NGO’s or transnational advocacy networks. The goal of such entrepreneurs during this stage is to persuade the most powerful states within the international community to accept and promote the norms they set forth, a process that is characterized by their calling attention to issues “using language that names, interprets, and dramatizes them.” The second stage in this process is characterized as the “norm cascade,” and is catalyzed by a “tipping point” when “norm entrepreneurs have persuaded a critical mass of states to become norm leaders and adopt new norms.” After this point, all other states will follow in the footsteps of those that set precedents within the international community, and a norm’s legitimacy and reputation as a standard of behavior is strengthened through socialization, institutionalization and demonstration. As mentioned above, while this stage may appear to produce fully formed norms, the limiting factor of the complete integration of norms is the fact that many countries accept or act upon it not because they feel they must from an internalized need, but rather as a way to either extend their own legitimacy, or please the great powers. The full internalization of a norm is what distinguishes stage three, or the idea that at this point, a norm has acquired a “taken-for-granted quality, and [is] no longer a matter of broad public debate.” This phase is somewhat paradoxical, in that if a norm has reached this point, it has been so intrinsically embedded in the rational behavior of a state, that in many cases, it is not even considered a point of discussion when states engage in decision-making; it has been so imbued in the framework of the international community, that its employment is no longer even up for debate. Such a theory has elements of both constructivist and realist strains of thought. The idea that international norms dictate the proper (in both moral and legitimate terms) behavior of states is one rooted in constructivist ideology – namely that states act based on the “logic of appropriateness” rather than the “logic of consequences.” Such a difference holds that norms represent an international system of social construction in which states make choices based on how appropriately their actions will fit within the framework of legitimacy of the international system. This paradigm supports the concept of the “life cycle of the norm” through the idea that a norm is created not by one individual state or organization which imposes it on others, but rather by an engaged process through which all states (and independent actors) have at least some level of agency. However, the notion that in phase two of the process, much of the universal acceptance of a norm (the “tipping point”) is based on its acceptance by the most powerful state actors holds some of its roots in realist theory, predominantly in the idea that the most powerful states hold sway over the actions of other states given their belief that it is rational to cooperate with the global powers. In this sense, the constructivist paradigm of norms as presented by Fennimore and Sikkink exists atop a realist foundation, still based on the whims of the hegemon. The Norm of R2P in Action – Its Life Cycle Through Cases The emergence of the norm of the responsibility of the international community to protect the human rights of all citizens holds its origins in the program of transitional justice implemented following the horrors of the Holocaust and the Second World War. This feeling has evolved over time from one based in the allocation of aid and peacekeeping forces to civilians in conflict zones to the legitimation of military intervention as a method of quelling human rights violations, through the manifestation of the Responsibility to Protect (R2P) in 2005. This document - signed into action unanimously by all member states - outlined a radical program of duty on the part of the international community to place human rights at the utmost level of importance and gave them the rhetorical allowance to supersede the Westphalian tradition of state sovereignty in cases of mass atrocities. However, while this represented a theoretical acceptance on the part of the international community – a sort of “tipping point” - with regards to the potential for military intervention in defense of human rights, it can merely be regarded as a singular step in R2P’s process to become a fully formed norm, a process which is recognized to have been in phase one during the Bosnian War, phase two during the Libyan intervention, and is currently showing its inability to pass into phase three as evidenced in its lack of invocation with regards to the current human rights crisis in Syria. Through these three cases, R2P can clearly be seen to be in the midst of Sikkink and Fennimore’s norm life cycle. The case of UN intervention in the war in Yugoslavia represents R2P’s status as a norm in the first stage of internalization. Widely considered to be “too little too late,” the actions of the United Nations through the UNPROFOR did not adequately serve their purpose as a force defending the human rights of all citizens; rather, their lack of decisive action – especially in the case of the Srebrenica massacre – highlights how an international standard of responsibility to protect had not yet fully emerged on the global stage; its proponents were weak, and its application half-hearted and timid. It is true that peacekeeping forces were allocated by the United Nations protect Bosniak civilians, however, their inaction speaks to the fact that the United Nations, and the states controlling it, were not under the impression that the responsibility to protect civilians extended all the way to military intervention to the point that they felt obligated to break the norm of state sovereignty and engage directly with the Bosniak Serbs. As stated by Sikkink and Fennimore, norms “never enter a normative vacuum but instead emerge in a highly contested normative space where they must compete with other norms and perceptions of interest;” in this case, the norm in competition was state sovereignty. There were motions on the part of individuals who could be seen as “norm entrepreneurs,” like Shashi Tharoore, who is the US-based leader for peacekeeping operations in Yugoslavia. These motions called for more expanded intervention, “even if such actions entailed calling in NATO airstrikes.” However, the majority of those with the capabilities to pressure the UNSC to engage more directly in the conflict on behalf of the citizens being slaughtered had not yet been convinced that R2P should override the sovereignty of Bosnia. As stated by David Rieff in his article damning the inaction of the UN, the “firm and long-standing United Nations tradition of peacekeeping rooted in international law, impartiality and procedural objectivity,” turned out to be a tradition of peacekeeping so apolitical, it failed to uphold the key tenets of the UN Charter. Luckily, this disaster proved to hold some positive implications for the promotion of the norm of R2P. As part of the post-conflict reconciliation process, the UN itself released a report questioning if it could not have done more to protect the innocent civilians killed in Bosnia. They state “it is true that UNPROFOR troops in Srebrenica never fired at the attacking Serbs. Had they engaged the attacking Serbs directly it is possible that the events would have unfolded differently.” Here, an example of a shift in the position of a leading influence such as the UN with regards to a specific norm can be seen. The cries of outrage on the part of many in the international community serve to show how norm entrepreneurs were able to effectively re-characterize the UN’s action as an “inappropriate” response to the issue at hand and sow the seeds for a more comprehensive acceptance of the suppression of state sovereignty in the name of peacekeeping operations. This report, written in 1999, can be seen as something of a “first draft” of the “Responsibility to Protect” doctrine, signed unanimously by all UN member states in 2005. As stated by Sikkink and Fennimore, “in most cases, for an emergent norm to reach a threshold and move toward the second stage, it must become institutionalized in specific sets of rules and organizations,” and the R2P doctrine was just that. The fact that this document, in which state sovereignty was challenged for the first time as a conditional privilege, was signed unanimously proves it to be the symbolic, as well as rhetorical “tipping point” for the norm of R2P into its second phase: norm cascade. The first case that truly represented an attempt to implement the norm of responsibility to protect, as laid out in the 2005 doctrine, and was universally supported (at least at first) by much of the legitimized international community, was the case of Libya in 2011. As stated by Roland Paris, this effort to intervene “provided the first major test of R2P’s most coercive policy instrument: large-scale military intervention, against the wishes of the target state, in order to protect civilians from the threat of mass atrocities.” In March of 2011, after months of less invasive measures were attempted, the UN Security Council adopted Resolution 1793, calling for airstrikes to be carried out by NATO under the justification provided by R2P. Finally, the norm of R2P had reached the second phase of its life cycle: it’s application as supported by all members of the international community as a way to test out, legitimize, and institutionalize its status as a norm. However, as the mission quickly expanded into one more clearly resembling “regime-change” than humanitarian intervention, many important countries, namely China and Russia who had both abstained to vote on the Resolution, pulled their support, condemning NATO’s actions as “overreach.” While this mission may have been something of a failure on the part of the international community to successfully invoke R2P, it is not so much a failure of the inherent characteristics of the norm of R2P, but rather of its application. As stated above, a norm in phase two of its life cycle is still recognized for its potential to account legitimacy in the eyes of the global powers; at this time, “state leaders conform to norms in order to avoid the disapproval aroused by norm violation and thus enhance national self-esteem.” As it has not quite been internalized as a standard that must be followed in all circumstances – it is still a tool for states to mold and apply selectively as they see fit. Once its application no longer fits with their own interests (as was the case here), states still feel as though they are able to pull their support for it without receiving backlash from the international community for directly violating the norm themselves. Had R2P been in stage three of its normative life cycle, the states who withdrew support, regardless of whether that withdrawal was reasonable or not, would have been ostracized, maybe even punished, for going against what all states thought to be an inherent, morally incorruptible norm. Secondly, as stated above, in order to become a fully formed norm, R2P must supersede the other theories in its way. The fact that R2P must overcome the strength of the norm of state sovereignty – one that has existed for almost 500 years – posits a great challenge towards its success, and while states may have signed a doctrine labeling its status superior, in the same way that such a doctrine does not immediately represent the creation of a fully formed norm of R2P, it does not immediately confirm the collapse of the norm of sovereignty. According to Sikkink and Fennimore, “to challenge existing logics of appropriateness, activists may need to be explicitly “inappropriate.” While perhaps unethical, and extremely damaging, the drastic measures accorded by NATO in the case of Libya could be seen from one (albeit controversial) perspective, as simply a form of such “inappropriateness,” requisite to prove the extent of sacrifice made on the part of those involved to uphold the norm of R2P. In this way, although the Libya intervention is seen mostly as a failure, this is due for the most part to the fact that those critiquing it are not analyzing R2P as a norm still in its second phase, but rather as a fully formed one. That being said, the responsibility to protect does currently face a great obstacle with regards to its complete evolution into an internalized norm that again comes from the structural weaknesses that surround the norm of R2P, rather than from a failure of the norm itself. The fact that the implementation of R2P can decisively be enacted – or blocked – by the UN Security Council leaves its application up to an inherently politicized body. The veto power accorded to the permanent five (P5) members of the SC, Russia, China, UK, US and France, allows these five states an undue amount of influence over R2P’s future as a normative standard; they can choose when and where it can be executed, and have the power to block its use in cases where it does not fit with their goals. Fennimore and Sikkink define in their article what they call a critical state; “What constitutes a ‘critical state’ will vary from issue to issue, but one criterion is that critical states are those without which the achievement of the substantive norm is compromised.” In this case, the entire structure of R2P is in danger of being corrupted by the fact that all five states accorded the power to limit R2P’s applicability are critical states, and if even just one of them does not approve – for political as well as moral reasons – R2P is limited in its ability to prove itself as a norm worth internalizing to the international community. In order to cross over into the final phase of its life cycle, R2P must be free to be accepted as such by all, a process which rests on proof of its success, and any measure that puts roadblocks on such a process in the name of personal and political interests’ damages R2P’s chances of being fully accepted. Such a problem is currently being exhibited in the United Nation’s inability to invoke R2P in Syria. Although there is very clear evidence that a major violation of human rights is being executed by Bashar Al-Assad on his own citizens, the international community has yet to take any decisive action in the name of intervention, holding severe consequences not just morally in the name of the civilians being murdered, but also in R2P’s evolution towards its final phase. Since 2011, 8 draft resolutions calling for the SC to act in Syria have been vetoed; Russia and China voted no them all. Such a blatant display of politicized promotion of self-interests over the expansion of the norm of R2P underscores the problem with allowing the norm’s development to be controlled by a body that accords some states increasingly greater rights than others. Akbarzadeh and Sabah highlight how John Bellamy considers Russia’s invocation of the veto to stem from “Russia’s significant economic and strategic interests in Syria,” and that it is “these Syria-specific factors that underlie the Security Council’s paralysis over Syria, rather than more generalized concerns about R2P and the experience in Libya.” This argument supports the claim that it the Security Council, and not any structural problem with the norm of R2P itself that is preventing its invocation in Syria; Russia would block any measure putting its own interests in the region at risk, whether that is relating to R2P, or a nuclear proliferation resolution, or a trade agreement. However, while this theory takes the pressure off of R2P in terms of what is to blame, it also highlights the fact that R2P will not be able to enter its final stage until it is no longer reliant on a body such as the SC who is so greatly influenced by individual interests. While a norm is still in the norm cascade phase, critical states still have the ability to influence global perception of said norm, meaning that Russia’s continuous blockage of R2P’s use in Syria is slowly but surely convincing other states not to support it as well. In this sense, the case of Syria highlights the fact that in order for R2P to fully complete its evolution into a norm in international relations, it must separate its implementation from the politicized Security Council. Conclusion: Looking Forward Such a process of separation will be extremely difficult to complete: at this point in time, the Security Council is the only body accorded under international law with the ability to legitimately invoke the use of force, and is thus the only body in the position to spur military intervention in the name of R2P. A better solution would be not to remove R2P from the SC’s mandate altogether, but rather to nullify the P5’s veto power – at least when it comes to the responsibility to protect. While this is a drastic proposal, it is supported by the fact that if R2P were truly to become a completely internalized norm, theoretically, states would be willing to renounce their veto power in order to implement it, due to the fact that it would become such a “no-brainer” to support measures of R2P, that either they would not feel the need to have the veto power in the case of R2P, or political pressure from other countries existing within the normative framework of R2P to relinquish it would be so strong, they would have to. This would allow R2P to be invoked only in cases necessary; states would still be able to vote on it, and if it was decided R2P was unnecessary or inappropriate it would not be used, but if one state only did not support it for political reasons, they would not be able to hijack the entire process. Unfortunately, until the barrier imposed by the veto power on the Security Council is abolished, R2P will not be able to extend to its last phase of becoming a fully formed norm. As seen in the case of Syria, the power of critical states such as Russia through the veto power to hijack the ability of R2P to be implemented – and thus prove to the international community its worth as a norm – is the last major obstacle the responsibility to protect must overcome in order to complete its life cycle. Works Cited Akbarzadeh, Shahram, and Arif Saba. “UN Paralysis Over Syria: The Responsibility to Protect or Regime Change?” International Politics . 2018. Press, Associated. “Deaths of Venezuelan Protesters Appear to Be Targeted Killings, Rights Groups Say.” NBC News. February 20, 2019. www.nbcnews.com/news/latino/human-rights-groups-say-deaths-venezuelan-protesters-appear-be-targeted-n973651?icid=related Finnemore, Martha, and Kathryn Sikkink. “International Norm Dynamics and Political Change.” International Organization vol. 52, no. 4, 1998, pp. 887-917. “Nearly 900 Killed’ in DR Congo Clashes.” BBC World News, sec. Africa. December 7, 2019. www.bbc.com/news/av/embed/p06vwdrc/46896159 Paris, Roland. “The ‘Responsibility to Protect’ and the Structural Problems of Preventive Humanitarian Intervention.” International Peacekeeping , vol. 21, no. 5, 2014, pp. 569-603. Rieff, David. “The Institution That Saw No Evil.” The New Republic . 1996. UN General Assembly. “Report of the Secretary-General Pursuant to General Assembly Resolution 53/35 - The Fall of Srebrenica.” United Nations: United Nations General Assembly, 1999. “UN: Recent Myanmar Army Attack May Have Killed Dozens of Rohingya.” Al Jazeera . April 9, 2019. www.aljazeera.com/news/2019/04/myanmar-army-attack-killed-dozens-rohingya-190409062501653.html

Transparency and Compliance The Strength of EU Lobbying Regulations Abigail Borges Brown University Author Miles Campbell Audrey McDermott Sydney Munro Editors Fall 2018 This essay discusses the outright robustness of the European Union's lobbying regulations in comparison to the regulations in the EU countries, concluding that it is on par with or surpasses regulatory strength in the states. The interactions between politicians and lobbyists present a challenge to governments’ transparency and accountability, and affect supranational entities like the European Union. Before evaluating a lobby’s influence, it is necessary to understand what exactly defines these groups and how they interact with governments. ‘Lobbyists’, which will be used synonymously with ‘interest groups’, are defined as those seeking to influence the outputs of a given policy-making process. Lobbyists attempt to support their interests by affecting policy outputs through methods like maintenance of a status quo or the implementation of a new policy. In response to lobbyist manipulation, recent policy trends have been in favor of controlling lobbying by creating level playing fields for interest groups to operate. Such policy trends include an expansion of the European Union’s lobbying rules over time. In 1996, the European Parliament introduced provisions for simple yearly passes for lobbyists seeking access to the Parliament building. The European Commission implemented its own rules that likewise lacked teeth in 2008 by instituting a voluntary lobbyist register.[1] The bodies’ recent replacement regulation, the Joint Transparency Register (JTR), has prompted a re-evaluation of the EU’s robustness in terms of lobbying controls, especially when considering the precedents set by national governments. Scholars in the field take robustness to mean “the capacity of the regulation to increase transparency and accountability,” which reflects the rules’ level of usage and reliability.[2] Though there is certainly room to strengthen its provision of regulations regarding lobbyists, the EU is holistically and comparatively more robustly regulatory than EU member nations in managing interest groups. This lead is earned both by having regulations in the first place and by these rules’ ability to equal or surpass the robustness of lobbying regulations in the EU’s member states. First, a brief overview of the implications of the JTR for the EU and its lobbyists is necessary to more clearly understand how the regulations imposed by the JTR compare with the regulations enacted its constituent states. The JTR’s stated goal was to increase transparency, replacing regulatory structures in the Parliament and Commission for a joint registration for all lobbyists.[3] Transparency and accountability are the two main goals associated with lobbying regulation. These standards aim to let voters know who influences whom and allow them to see the degree to which a given politician or lobbyist is responsible for a policy. The EU’s definition of a lobbyist expanded “to include law firms, NGOs, think tanks - indeed any organization or self-employed individual engaged in influencing EU policy making and implementation.”[4] This expansion ensures that no agents seeking to affect policy can find a loophole or excuse to avoid the option of registering for the JTR. The most crucial detail about the JTR in this sense is its voluntary nature: since it allows the option for groups not to register, one can question the extent to which such a transparency register can be effective. Still, the JTR did strengthen disclosure provisions and data accessibility with measures such as necessitating yearly reports on personal and organization information and financial details at the time of register (though notably not in regular reports thereafter). All of this information was then made available to the public online. Finally, registration required compliance with a code of conduct that includes pledges against dishonesty, incentives for disclosure, and mechanisms to handle breaches of the code.[5] Scholars Chari and Crepaz maintain that interest groups have largely complied with the JTR system, suggesting that many of the goals the JTR had in its launch have proven successful.[6] In several ways, the regulations imposed by the JTR are on par with other European countries. In terms of the Centre for Public Integrity’s index of lobbying regulation robustness, the JTR’s regulations fall directly in the middle of the EU nations’ regulation ratings, with a score of 31. Slovenia, Hungary, Lithuania, and Austria received higher scores, and Poland, the UK, France, and Germany received lower.[7] This measure indicates that the JTR is indeed more robust than some, but falls short of others, with almost a twenty-point difference between it and the most regulated European lobby (Slovenia at 49). Notably, the JTR proposes more stringent regulations than the major constituent EU states, suggesting that the EU does more to control the actions of its lobbyists than the national entities that wield much of the power within it. This is especially true for Italy, who has no interest group regulation at all. Additionally, if judging instead by specific provisions of the JTR, the EU’s system again proves to be average in many dimensions. All states mentioned above in the CPI index have a register for lobbyists of some kind, which defines the substance of the JTR. Additionally, provisions like its code of conduct and voluntary nature are mirrored in countries like France and the UK.[8] Like the public lists of lobbyists found in Poland and Germany, the individuals and groups registered under JTR are openly accessible on the internet.[9] These measures all help establish the rules of the game and increase transparency and accountability in the overall process of lobbying. These aims are desirable because they give actors more information and require justification of one’s actions to the public. Thus, the EU and its JTR prove to be just as strong in a range of provisions as the other member states regulating interest groups. As much as the EU is on par with member nations that regulate lobbying, it is distinctly advanced among the other countries in Europe that do not have rules at all. Of the about fifty European nations, including the EU, only nine have enacted laws to regulate lobbying to speak of.[10] Thus, in its implementation of any regulations at all, the EU proves to be ahead of the curve. Some may argue that many of the states lacking lobbying rules do not need them because they do not have the same scope of lobbyists present as those systems with laws; this may be true, but not relevant to the question at hand evaluating outright robustness. Additionally, there have been many calls for increased regulation throughout Europe in general, to achieve the stated aims of increased transparency and accountability. Transparency International, a group centered on fighting corruption, released a 2015 report evaluating lobbying in Europe, its effectiveness, and its future. It concluded that the EU Commission’s rules are among one of only two of the nineteen European entities that score above 50% on its measures of transparency, integrity, and equality of access.[11] The authors also note that only seven of the entities feature any lobbyist-specific regulations, a fact which in the report it finds problematic and wishes to see changed.[12] Hence, the EU already surpasses many nations in its rule robustness simply by having regulations, regardless of what the regulations entail. Still, it becomes clear upon scrutiny that the details of the JTR’s regulation also prove more stringent than those of its European counterparts. This finding is true especially regarding the disclosure of financial information, the level of compliance, and the scope of lobbyists to which the rules apply. The JTR requires an initial submission of information concerning an organization’s spending and activity, and each type of lobbyist must disclose varying levels of financial information at this stage.[13] Though it does not require yearly spending reports, this documenting of finances is equivalent with, or stronger than, all other governments with registers. For comparison, Germany requests no information at all, nor does Poland.[14] Lithuania requires yearly spending and salary reports, which appears more robust than the EU, but compliance with its register is thought to be very low; 2004 estimates place the number of lobbyists registered at about one in seven of those who operate within the state.[15] Austria, too, requests yearly reports, but, similarly, this regulation does not effectively apply to many lobbyists.[16] By these terms, then, the manner in which the JTR requests financial information makes it stronger in interest group transparency, who cannot in theory spend considerable sums of money without at least some documentation. Money often captures influence in government, so it follows that financial disclosures are also significant in terms of accountability at the EU level. The JTR provides an effective medium for this disclosure, unlike most of its peers. Also related to this discussion are issues of compliance levels, for disclosures of any type do not matter if no one complies. In their recent comparative study of the JTR, Crepaz, and Chari found that based on the registration and spending disclosures of the largest corporations seeking to influence the EU, it can be concluded that firms are taking the JTR more seriously, with all examined firms registering and giving seemingly more accurate spending disclosures.[17] Comparatively, this is quite remarkable, as many other registration systems see low levels of compliance. Chari, Hogan, and Murphy find that in Lithuania, Hungary (whose 2003 regulations have been removed), and Poland, regulations are often ignored or maneuvered around, often because the term ‘lobbyist’ retains negative connotations.[18] The 2013 Venice Report on the Role of Lobbying puts forward a similar argument about Germany, explaining that “not being on the register is no real barrier to being in contact with Parliamentary committees or members of the Bundestag.”[19] With ability and ease to get around lobbying regulations, then, the regulations prove somewhat ineffective in Germany as well. Yet, as Crepaz and Chari point out, the JTR has in fact seen increased registration by EU interest groups since its adoption.[20] Low effectiveness in complying with registration could also be related to the scope of lobbyists to which the legislation applies, which in the EU is all activity, but in most other nations is narrowly defined. This scope and compliance indicates success on the part of the JTR in terms of transparency over the aforementioned countries, as it comes closer to the ideal of providing the most information about influence in political systems. Finally, the EU does feature less regulation for lobbyists in some dimensions of transparency and accountability that at first glance makes it seem like the JTR is not very robust, yet in practice this observation proves untrue. The first such category which the JTR lacks is a set of provisions regarding the so-called ‘revolving door’, preventing civil servants from immediately working as lobbyists and vice versa. The JTR fails to prevent such capacity for corruption. However, of the four European nations studied by Chari, Hogan, and Murphy, only Lithuania has these rules.[21] Further, Transparency International explains that most of the countries it studied have some sort of “cooling-off period” for officials, but Slovenia was the only one to implement the period for legislators. And yet, it also reports that none of these countries had “effective monitoring and enforcement of the revolving door provisions,” calling into question the effectiveness of the laws even where they exist.[22] Furthermore, Crepaz and Chari recognize that the EU Commission, top officials, and the EP all have internal revolving door regulations.[23] Therefore, even if the JTR itself does not provide cooling-off periods, the issue is effectively dealt with in other ways, which is not the case for the EU countries that on paper seem more regulated. Despite appearances, then, the EU still emerges with more robust and effective regulations than most, if not all, of its EU counterparts. For its strengths and advances, however, the JTR does have several other comparative drawbacks that leave room for improvement in relation to other European state entities. Primarily, it could make its law mandatory, as Austria and Slovenia have sought to do, to improve relative robustness. Transparency International analyzed the effective impact of Slovenia’s mandatory register and found that it operates on a “wholly inadequate scope covering only a small proportion of lobbyists,” because it defines interest groups so narrowly.[24] An analysis of the Austrian system found similar results.[25] In this way, the EU regulations are still arguably as strong as Slovenia’s and Austria’s laws, because they apply to a much broader scope of lobbyists and are complied with, as evidenced earlier by Chari and Crepaz. This engenders more compliance with and operation within the register in the EU. Aside from implementing a mandatory register, another way the JTR is comparatively less robust involves its sanctions and enforcements, of which it has few. Slovenia, Lithuania, and Austria score higher on the CPI index much for this reason.[26] For example, Slovenia has a Commission for the Prevention of Corruption (CPC) that provides oversight on many types of lobbyists, such as professional, in-house, and lobbyists from private sector interest organizations.[27] Though the JTR has a Secretariat intended to watch activity, its only effective power is naming and shaming, which Crepaz and Chari find especially problematic given the voluntary nature of the register.[28] As always, though, one must keep in mind that although the JTR is less regulated in oversight, its high compliance and the often low enrolment in other countries problematizes deeming the JTR less robust due to its less strict enforcement and sanction rules. Still, in these areas there is room for improvement of the JTR in comparison to other EU nations. Ultimately, on most dimensions the JTR proves generally stronger than, if not at least as strong as, its counterpart laws in EU member nations. In providing a voluntary register, public internet accessibility, and a code of conduct, the EU regulations are in line with the rules of its peers. In fact, in even having a register at all, EU lobbying laws are more robust than the lobbying regulations found in the majority of EU nations. When one examines precedents of financial disclosures, levels of compliance, scope of application, and even revolving door rules, the JTR is arguably strongest among its counterparts in effectively handling them. One must note that the voluntary nature of the JTR and its enforcement mechanisms could be improved considering the rules of countries scoring higher than the EU on the CPI index, even if these rules are not effectively followed. Overall, regardless of the diverse characteristics of distinct regimes, lobbying regulation systems seek to achieve the ideals of transparency and accountability. Considering the totality of the strengths mentioned above, by increasing public access to the entities and insight into their inner workings, the JTR moves the EU much closer to these goals than other regulating systems have proven to accomplish. Still, even if the EU is more regulated, it is not precluded from needing to further strengthen its provisions. A mandatory system of registration, for example, would ensure maximum transparency and accountability through behavioral regulation, as argued by Direnc Kanol.[29] In the realms of financial disclosures and sanctions, too, the JTR could seek improvement by strengthening its policies, further augmenting transparency and accountability. However, the aim of this study was to evaluate comparative, rather than outright, robustness, and by this measure the EU and its lobbying regulations prove decidedly strong. Endnotes [1] Michele Crepaz and Raj Chari, “The EU’s Initiatives to Regulate Lobbyists: Good or Bad Administration?,” Cuadernos Europeos de Deusto 82, no. 5 (2014): 77, accessed December 7, 2016, https://www.tcd.ie/Political_Science/assets/pdfs/eu_lobbyist_regulation_crepaz_ chari_2014.pdf. [2] Crepaz and Chari, “The EU’s Initiatives,” 81-82. [3] European Commission, Commission and European Parliament launch Joint Transparency Register to shed light on all those seeking to influence European policy, 2011, accessed December 7, 2016, http://europa.eu/rapid/press-release_IP-11-773_en.htm?locale=en . [4] European Commission, Commission and European launch Joint Transparency Register. [5] European Commission, Commission and European launch Joint Transparency Register. [6] Crepaz and Chari, “The EU’s Initiatives,” 89. [7] Crepaz and Chari, “The EU’s Initiatives,” 82. [8] Assemblée Nationale, "Interest Representatives in the National Assembly," Assemblée Nationale, accessed December 7, 2016, http://www2.assemblee-nationale.fr/14/representant-d-interets/repre_interet and UKLR, "About the Register," UK Lobbying Register, accessed December 7, 2016, http://www.lobbying-register.uk/about-.html. [9] Deutscher Bundestag, "Public List of Associations Registered with the Bundestag," Deutscher Bundestag, November 24, 2016, accessed December 10, 2016, http://www.bundestag.de/parlament/lobbyliste/ and OECD, Lobbyists, Governments and the Public Trust, Volume 2: Promoting Integrity through Self-Regulation (OECD Publishing, 2012), 62, accessed December 7, 2016, http://dx.doi.org/10.1787/9789264084940-en . [10] Crepaz and Chari, “The EU’s Initiatives,” 82. [11] Suzanne Mulcahy, Lobbying in Europe: Hidden Influence, Privileged Access (Berlin: Transparency International, 2015), 8, accessed December 7, 2016, http://www.transparencyinternational.eu/wp-content/uploads/2015/04/Lobbying_web.pdf . [12] Mulcahy, Lobbying in Europe, 8. [13] Crepaz and Chari, “The EU’s Initiatives,” 79. [14] Raj Chari, John Hogan and Gary Murphy, Regulating Lobbying: A Global Comparison (Manchester, UK: Manchester University Press, 2010), 61, 173. [15] Chari, Hogan, and Murphy, Regulating Lobbying, 75-76. [16] Peter Köppl and Julia Wippersberg, “The State of Public Affairs in Austria,” Journal of Public Affairs 14, no. 1 (2014): 35-36, accessed December 9, 2016, http://dx.doi.org/10.1002/pa.1503 . [17] Crepaz and Chari, “The EU’s Initiatives,” 88-89. [18] Chari, Hogan, and Murphy, Regulating Lobbying, 76, 80, 84. [19] Venice Commission, Report on the Role of Extra-Institutional Actors in the Democratic System (Strasbourg: Venice Commission, 2013), 16, accessed December 8, 2016, http://www.venice . coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2013)011-e. [20] Crepaz and Chari, “The EU’s Initiatives,” 90. [21] Chari, Hogan, and Murphy, Regulating Lobbying, 168, 177. [22] Mulcahy, Lobbying in Europe, 9. [23] Crepaz and Chari, “The EU’s Initiatives,” 80. [24] Transparency International Slovenia, Lifting the Lid on Lobbying - Call for Transparent and Ethical Lobbying (Ljubljana: Transparency International Slovenia, 2014), 35, accessed December 1, 2016, http://www.transparencyinternational.eu/wp-content/uploads/2014/12/TI_SLO_LLL_report_ANG_web.pdf . [25] Köppl and Wippersberg, “The State of Public Affairs in Austria,” 36. [26] Crepaz and Chari, “The EU’s Initiatives,” 90. [27] Transparency International Slovenia, Lifting the Lid, 14. [28] Crepaz and Chari, “The EU’s Initiatives,” 80. [29] Direnc Kanol, “Should the European Union Enact a Mandatory Lobby Register?,” Journal of Contemporary European Research 8, no. 4 (2012): 524, accessed December 8, 2016, http://www.jcer.net/index.php/jcer/article/view/460/371 . Works Cited Assemblée Nationale. "Interest Representatives in the National Assembly." Assemblée Nationale. Accessed December 7, 2016. http://www2.assemblee-nationale.fr/14/representant-d-interets/repre_interet. Chari, Raj, John Hogan and Gary Murphy. Regulating Lobbying: A Global Comparison. Manchester, UK: Manchester University Press, 2010. Crepaz, Michele and Raj Chari. “The EU’s Initiatives to Regulate Lobbyists: Good or Bad Administration?” Cuadernos Europeos de Deusto 82, no. 5 (2014): 71-97. Accessed December 7, 2016. https://www.tcd.ie/Political_Science/assets/pdfs/eu_lobbyist_ regulation_crepaz_ chari_2014.pdf . Deutscher Bundestag. "Public List of Associations Registered with the Bundestag," Deutscher Bundestag, November 24, 2016, accessed December 8, 2016. http://www.bundestag.de/parlament/lobbyliste/ European Commission. Commission and European Parliament launch Joint Transparency Register to shed light on all those seeking to influence European policy, 2011. Accessed December 7, 2016. http://europa.eu/rapid/press-release_IP-11-773_en.htm?locale=en . Kanol, Direnc. “Should the European Commission Enact a Mandatory Lobby Register?” Journal of Contemporary European Research 8, no. 4 (2012): 519-529. Accessed December 8, 2014. http://www.jcer.net/index.php/jcer/article/view/460/371. Köppl, Peter and Julia Wippersberg. “The State of Public Affairs in Austria.” Journal of Public Affairs 14, no. 1 (2014): 31-43. Accessed December 9, 2016. http://dx.doi.org/10.1002/pa.1503 . Mulcahy, Suzanne. Lobbying in Europe: Hidden Influence, Privileged Access. Berlin: Transparency International, 2015. Accessed December 7, 2016. http://www.transparencyinternational.eu/wp-content/uploads/2015/04/Lobbying_web.pdf OECD. Lobbyists, Governments and the Public Trust, Volume 2: Promoting Integrity through Self-Regulation. OECD Publishing, 2012. Accessed December 7, 2016. http://dx.doi.org/10.1787/9789264084940-en . Transparency International Slovenia. Lifting the Lid on Lobbying - Call for Transparent and Ethical Lobbying. Ljubljana: Transparency International Slovenia, 2014. Accessed December 8, 2016. http://www.transparencyinternational.eu/wp-content/uploads/2014/ 12/TI_SLO_LLL_report_ANG_web.pdf. UKLR. "About the Register." UK Lobbying Register. Accessed December 10, 2016. http://www.lobbying-register.uk/about-.html. Venice Commission. Report on the Role of Extra-Institutional Actors in the Democratic System. Strasbourg: Venice Commission, 2013. Accessed December 8, 2016. http://www.venice . coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2013)011-e.

Will Matheson Federal 5G Innovation Policy in the Context of Technological Competition between the United States and China Will Matheson Introduction Proponents of 5G pitch the technology as a societal panacea, leading to a ‘fourth Industrial Revolution’ complete with robotic surgeons and near-boundless economic growth (1). Such predictions are premature—the nascence of this technology makes impossible predictions of its economic, political, and societal implications (2). Nevertheless, just as each progression from 1G to 4G brought a greater impact than its predecessor, the transition to 5G holds substantial implications as the largest network overhaul in history, effectually causing tremendous innovation across facets of society. As such, beyond questions of bandwidth, spectrum allocation, and mobile capacity, questions of politics, cybersecurity, and national prestige have shaped the adoption of 5G. In particular, China and its “national champion” telecommunications company, Huawei, have become central to the political questions surrounding 5G. In 2020, Attorney General William Barr delivered a speech accusing China of having unfairly gained an advantage in 5G development through the Chinese Communist Party’s (CCP) market-distorting support of Huawei, seeming to imply the US is being cheated in this race and needs to begin playing by China’s rules (3). Similarly, US Secretary of State Mike Pompeo recently warned business leaders in Silicon Valley to be aware of intense technological competition with China, suggesting the CCP and Chinese companies have engaged in widespread cheating to steal from US companies and gain a technological advantage over the US (4). This rhetoric draws attention to a more interesting trend: a shift in US government technology policy, particularly in the 5G space, and particularly driven by the Trump administration. As China gains global attention for its technological innovation in 5G, the US has reacted with increased intervention and control in the sector. Traditionally, US economic orthodoxy is associated with a free-market system, in which innovation derives from competition among private firms. Proponents of American capitalism, representing the economic doctrine of both major political parties, embrace this innovation model as a great strength of the system. As the US has shifted towards a more interventionist approach in spaces like 5G in reaction to China’s successes, supporters of this economic approach such as The Economist have, predictably, reacted with surprise and disapproval (5). Of course, this free-market depiction oversimplifies the US economy—the government has played significant and varying roles in technological innovation throughout history—but the shift in strategy matters. It also contradicts historical responses to similar cases of national competition. In the 1980s, fears of Japanese technological innovation outpacing that of the US’s were rampant, leading credible voices to call for direct government involvement in capital allocation analogous to Japan’s system (6). However, such a shift from a free market economy to the interventionist Japanese-style “industrial policy” did not happen. The US never picked specific companies or industries to drive economic growth, did not develop a vast bureaucracy to direct technology adoption and dispersion, and did not adopt widespread protectionist measures. Today, the US government’s shift in technology strategy is not yet on the scale of true industrial policy. However, comments from key Trump administration officials asserting a need to pick “the ‘horse’ we are going to ride in this [5G] race” and the administration’s embrace of tariffs suggest that the reaction to China’s innovation surge differs from the re- action to Japan’s 40 years ago, begging the question, why might the US shift now, but not then? This paper begins to investigate the factors motivating the shift in the US federal government’s 5G innovation strategy. To understand why the government’s reaction to China’s technological rise differs from its reaction to Japan’s, the paper investigates the influence the US-China relationship has on federal 5G strategy, with emphasis on the relative influence of concerns of national security and concerns of economic growth and development. The US’s relationship with China differs greatly from that of the US with Japan in the 1980s; increasingly, policy- makers view the relationship through the lens of great power competition. This essay considers how the differing security relationship with the People’s Republic of China may motivate this shift and investigates the specific ways it may manifest. Economically, the Trump administration’s policies represent a shift in economic orthodoxy in the US as industrial policy has become more mainstream. This strategy results from a reaction to global trade, particularly with China. While these motivations are not necessarily mutually exclusive, this paper’s test of the perceived strength of each motivation illustrates the relative influence of perceived security and economic challenges from China on the US’s domestic innovation strategy. It concludes that while both factors likely play a role in motivating US 5G innovation strategy, the security aspect of the relationship holds a stronger sway over the federal approach to innovation than does the economic aspect. Literature Review The scope of academic research specifically focusing on the US government’s recent shift toward greater intervention in 5G innovation is limited, likely due to the recency of this trend, its ongoing evolution, and the specificity of this change. However, numerous schools of thought have provided useful frameworks for understanding this evolution, and in some cases, academics have applied these frameworks to questions of US technology policy oriented toward China. The following sections delineate these bodies of literature as they apply to this evolution in US tech policy. The “New Cold War” and the Role of Historical Analogy Today, popular discourse increasingly frames the US-China relationship as devolving into a “new Cold War” (7). One key parallel emerging from this discourse is the systematic differences between American democracy and Chinese autocracy (8). At the same time, many challenge these claims, illustrating the multiplicity of views of China in popular discourse and the ongoing use of history as a mechanism to understand the Sino-American relationship (9). Certainly, the Trump administration has seemed to adopt a more confrontational stance toward China that belies a belief in great power competition, perhaps best embodied by its depiction of China as “revisionist” in the 2017 National Security Strategy (10). This discourse holds key implications for US policy. Given its empirical nature and the difficulties of understanding the present and future, history often serves as a heuristic for national leaders. Analogizing the Sino-American relationship to the Cold War will shape how leaders view the relationship and the policies they enact (11). However, a smaller body of literature instead finds that analogies serve more as post hoc justifications for policies (12). Of course, the framing of China as a wholly “revisionist” power that serves as an ideological and geopolitical foe oversimplifies the Sino-American relationship and China’s own behavior on the international stage at the expense of empirical accuracy (13). Nevertheless, the belief in such a “new Cold War” likely influences US policy toward China. Interestingly, some research suggests less conceptually complex leaders—defined as the level of sensitivity to information and its nuances within, measured by relative usage of high and low complexity words—use less sophisticated, more simplistic, and universalizing historical analogies in foreign policy decision-making (14). Political psychology naturally involves significant issues with validity, and this study’s sample size is limited. However, its implication suggests that Trump (a less complex leader by its measure of complexity) is particularly inclined to universalizing analogies such as framing the US-China relationship as a second Cold War. Such analogizing implies that the perception of great power competition with China may be motivating the shift in US technology policy. Indeed, the connection between memory of the Cold War to technological competition with China is beginning to emerge in popular discussion (15). At a baseline level, research detailing government technology strategy during the Cold War provides a rough idea of the lessons leaders analogizing the present may draw. The Cold War national security apparatus routinely dictated innovation strategy and goals across sectors in a departure from market-driven innovation, instead being motivated by a greater focus on pre-eminence in key areas such as radar, jet propulsion, and telecommunications. In particular, the government drove innovation primarily via federal projects (rather than the creation of state- owned enterprises) organized in the constellation of a few critical government lab- oratories, a slightly larger group of independent labs and sources of expertise, and a large array of businesses fulfilling contracts. The sheer scope and size of government funding for these projects was exorbitant and focused on specific technological achievements rather than foundational research (16). The most powerful techno- logical Cold War analogy is the Space Race. This episode condenses the notions of technological competition between great powers and is still reflected today by Americans’ general fascination with space and support for “space leadership” (17). Securitization Another way the US security relationship with China may influence support for 5G technology development is the securitization of various facets of the relation- ship as a result of a rising perception of great power competition. Securitization theory refers to a politicization process in which leaders of states assert policy areas as issues of national security, redefining the way actors treat the issue (18). An array of scholars argue the aforementioned “new Cold War” framing creates depictions of China as a threat that leads to the securitization of the US-China relationship (19). Importantly, securitization is a phenomenon that describes how countries, leaders, media, and other political actors understand things as threats. The securitization of something—such as aspects of the US-China relationship—does not imply that said object does not genuinely constitute a security threat. Rather, the theory is useful for understanding discursive constructions of threats, but the determination of whether that construction is justified is a separate question. Recently, scholars of securitization theory have applied it to the realms of technology and cybersecurity. Hansen and Nissenbaum propose a three-pronged framework for the securitization of cyberspace useful for evaluating possible security constructions of 5G. First, securitization in cyberspace includes depictions of entire infrastructures at risk of devastating, irreversible attack. Second, emphasis on everyday security practice in cyberspace creates powerful links between people’s everyday experience with their personal electronic devices and the threat of devastating attack. Third, emphasis on the technical complexity of the security threats (“technification”) powerfully motivates the securitization of a cyber issue and lends credibility to those securitizing it (20). Given how recently the Huawei issue has risen to public prominence, only a small body of literature specifically argues US discourse securitizes Huawei (and ZTE, another key Chinese telecommunications company) (21). Of course, a wider body of scholarship investigates the ways cybersecurity and critical infrastructure are constructed or securitized, implying the potential securitization of specific Chinese companies like Huawei and ZTE (22). The securitization of technology has unique implications, such as substantial restrictions to trade (e.g. export controls, tariffs, localization requirements, restrictions on foreign direct investment). This immediate effect in turn leads to greater securitization of technology (creating a feedback loop), as well as tensions between nation-states (23). Industrial Policy Industrial policy connotes a specific economic intervention by the government. The economic strategy requires government intervention into the economy to tar- get the allocation of capital, alter production models, and provide protection for sectors deemed key drivers of economic growth and job production (that, absent said intervention, would perform significantly less well) (24). Japan’s rapid economic development in the mid- to late 20th century best exemplifies this strategy of a developmental state: a system closely coordinating government and business by limiting the entry of competitors, creating recessionary cartels, coordinating technology uptake and knowledge sharing in key industries, forcing and guiding mergers and industry exits, and providing subsidies through regulating pricing, government purchasing schemes, tax breaks, the use of tariffs, and low-interest rate loans (25). The process results in the “picking of winners and losers” where- by the government plays a key role in determining which companies become the conglomerate drivers of certain industries or sectors. While consensus generally assumed this process was almost entirely bureaucracy-driven (26), recent scholarship has suggested that elected leaders still played a key role in shaping Japanese industrial policy (27). China’s strategic plan, “Made in China 2025,” also reflects the core tenets of industrial policy. The strategy articulates China’s current industrial policy, serving as a ten-year guide to pivot the economy away from low-quality, labor-intensive goods to high-quality, technology-intensive goods and services. The plan provides the framework by which the Chinese government will coordinate massive subsidies, preferential market access, and technology uptake from other nations in or- der to promote specific companies in key industries as national champions (28). “Made in China 2025” identifies key industries including information technology, and Huawei is one of China’s most successful national champions. The multinational technology company Huawei provides a useful case study in Chinese industrial policy: the company benefits from large state subsidies, lucrative contracts with the military, and favorable tax breaks. As a result of its ability to consistently undercut all competitors on pricing, it has experienced massive global market growth (29). Much like how some American thinkers and leaders called for industrial policy in reaction to Japan’s industrial policy successes in the 1980s, today some call for the strategy in reaction to China’s policy (30). This sentiment may be grounded in states modeling their policy behavior off of the actions of one another, particularly in defense policy (31). Donald Trump, and key advisors in his administration such as Peter Navarro, have strong records of supporting industrial policy and have made attempts at enacting such an economic strategy both broadly and in relation to China over the previous three years (32). However, while the administration may have attempted to use strategies like a trade war as a protectionist reaction to China’s industrial policy, China’s recent behavior and industrial planning have continued to emphasize the industrial policy mentality of “Made in China 2025,” suggesting the influence of the administration’s policies on China’s behavior has been limited thus far (33). Nevertheless, this track record demonstrates that in the US, support for industrial policy empirically derives from interactivity with other nations’ economies and that it is reasonable to suggest that the orthodoxy of industrial policy may motivate the Trump administration’s economic strategies. Indeed, research is beginning to investigate how industrial policy motivated by economic competition with China specifically influences technology innovation strategies (34). Methodology Operationalization of the Dependent Variable Understanding the evolution of government policy toward greater intervention and control in technological innovation presents distinct challenges. Because this dependent variable is a recent trend that is continuing to develop, factors that indicate it are subtle. As a result, a composite of indicators best illustrates this change within the past few years. In particular, this shift has three components: protection of domestic technology firms from perceived risks, investment in technological innovation, and intervention specifically designed to support US-based semiconductor manufacturer Qualcomm as it competes with Huawei. The Committee on Foreign Investment in the United States (CFIUS) provides evidence of the protection of domestic technology firms from perceived risk. CFI- US is an interagency governmental body that was created in the 1970s to evaluate potential national security implications of various forms of foreign direct investment. Its powers have generally expanded over time, now focussing on the broader implications of specific investments and on the implications of aggregate investments from certain countries and investors in specific industries. Given this role, its record of enforcement illustrates the protection of domestic firms from foreign—and in particular, Chinese—firms. CFIUS’s scope has expanded significantly over the past 15 years as it increasingly scrutinized Chinese Foreign Direct Investment (FDI). In 2007, the Foreign Investment and National Security Act officially codified CFIUS (which had previously enjoyed the mandate of only an executive order) in a clear push by Congress to give it more sway in screening FDI. In 2015, Ralls Corporation v. CFIUS expanded the presidential powers to use the committee to prevent FDI on claims of national security. The Foreign Investment Risk Review Modernization Act of 2018 further expanded CFIUS’s purview, instruct- ing it to both consider the risks of cumulative investments in particular sectors and the broader economic implications of any single investment in national security terms. It also instructs the committee to take into account the country from which FDI originates, signaling its increasing focus on China. In the same year, CFI- US intervened in the hostile takeover of Qualcomm by then Singaporean-based Broadcom, marking the first instance of the committee intervening before a deal was finalized. The cumulative effect has turned CFIUS into a gatekeeper to the US economy, enjoying broad, unappealable power to dictate FDI (35). The data demonstrate this expansion of CFIUS intervention over the previous decade. Crucially, the threat of a CFIUS investigation is the most important way CFIUS influences businesses due to the high costs these entities must shoulder under an investigation (36). Over roughly the past decade, CFIUS has dramatically increased the number of notices it has received as its scope has broadened and has correspondingly pursued a greater number of investigations over time (see “Increasing CFIUS Enforcement and Deterrence, 2009–2017,” above) (37). Correspondingly, this increase in investigations has deterred companies from following through on their transactions, as the number that have withdrawn their notices during investigation or review has increased, as demonstrated by the same chart. This expansion of notices has specifically focused on China. Between 2005–2015, CFIUS dramatically increased the number of transactions originating from China that it covered, and Chinese transactions became a larger part of its port- folio (see “Chinese transactions covered by CFIUS,” next page) (38). In addition, be- tween 2016–17, China far outpaced any other country for the number of CFIUS cases explicitly concerned with acquisitions of critical US technology, totaling over 1/5th of all such cases (a total of 38 cases) (39). Two cases under the Trump administration demonstrate how the 5G/semiconductor fight has particularly shaped this growth in CFIUS’s power. In 2017, President Trump directly blocked the takeover of Lattice Semiconductor by a Chinese-backed investor on the basis of national security (40). In 2018, CFIUS intervened to prevent the hostile takeover of Qualcomm on the national security grounds that the deal could potentially undermine America’s ability to compete with Huawei (41). The application of the national security framework, citing the threat from China, for a case concerning a takeover by a non-Chinese firm underscores how seriously the government has taken 5G. Tracking government investment in 5G is more difficult—for as many times as the White House has had Infrastructure Week, the government still has not put substantial funding toward 5G. Nevertheless, the government has made a number of steps that collectively signal an increasing level of involvement in the 5G space. The FCC’s controversial approval of the T-Mobile and Sprint merger (given the substantial concerns regarding oligopoly among cellular network providers) was explicitly founded upon the reasoning that it would promote “United States leadership in 5G” and conditioned the deal on the company’s provision of 5G to 90% of rural Americans (42). Moreover, the FCC recently announced a $9 billion fund for 5G in rural areas (43). The Department of Labor additionally created and put $6 million toward a public-private partnership to support education and training for jobs considered key to accelerating 5G deployment (44). Most relevant, however, is the Networking and Information Technology Re- search and Development Program (NITRD). NITRD unites various federal agencies, serving as the primary source of direct government research and development for advanced technologies relating to information technology. The “NITRD Bud- get Data, FY2011–2020” graph below captures how the government has ramped up its investment in this area over the past decade (45). This graph demonstrates three important trends. First, from 2011 to 2018, NITRD’s budget increased by 43%, from $3.7 to $5.3 billion, illustrating the substantial shift in the importance the government has placed on its research. While the total amount of funding may seem small by the standards of the government budget, the strong growth rate illustrates the shift to place greater emphasis on the government’s role in technology innovation. Second, the executive branch has begun substantially increasing its requested budget amount every year since 2016, suggesting a concurrent increase in government investment in IT. Third, the actual budget has outpaced the re- quested budget for each year recorded since 2015, suggesting Congress has also played a key role in driving this shift toward more government investment. Finally, the government’s involvement with Qualcomm and Huawei illustrates how it is willing to take low-frequency, high-visibility actions to protect 5G technology innovation. The Trump administration’s 2018 intervention to prevent the Broadcom takeover of Qualcomm signaled the degree to which it will intervene to protect this 5G chip-making company it sees as crucial to national competitiveness. This year, the administration has doubled down on this emphasis on Qualcomm, using the Department of Justice (DOJ) to back Qualcomm in an anti- trust lawsuit. Interestingly, this lawsuit was first brought against Qualcomm by the Federal Trade Commission under the Obama administration, with a district court ruling in favor of the FTC (46). Now, the DOJ (with support from the Departments of Defense and Energy) has supported Qualcomm’s appeal, explicitly making the argument that the courts should allow the company to maintain its business model on grounds that the company itself is integral to the security of the nation (47,48). Similarly, the Trump administration has taken aim at Huawei. In 2019, President Trump issued Executive Order 13873, which dramatically expanded government protections for telecommunications on the basis that such networks faced serious threat from foreign companies and governments and that such threats constituted a national security risk. Though not mentioning Huawei by name, the move was universally regarded as a reaction to the company’s perceived threat in the 5G space. Indeed, at the same time, the Department of Commerce added Huawei to the Entity List, effectively banning Huawei from doing business in the US. The coordination of these actions demonstrates the US government’s specific targeting of Huawei as the face of the Chinese technological competition with the US (49). While other Trump administration officials have spoken on this subject as well, these statements will not be as useful for signaling the existence of a shift in government policy toward more intervention in 5G innovation (50). First, this administration’s statements have conflicted in this area. In 2019, administration officials openly disagreed on the right level of intervention in 5G policy, with Trump finally deciding to oppose a direct federal acquisition of Nokia or Ericsson. However, a year later Attorney General Barr’s aforementioned speech revisited the issue and suggested that acquisition remained on the table (51). Clearly, the statements by the Trump administration send too many conflicting signals to reliably capture the trend of increasing government intervention. Additionally, intervention in the tech space matters for its actual effects on innovation processes, so tracking actions is better than tracking words. However, the concrete actions by CFIUS and the DOJ regarding Qualcomm unequivocally show how the government is increasingly fa- voring an interventionist approach specific to 5G. Taken together, the data from CFIUS, NITRD, and the government’s specific focus on Qualcomm illustrate a growing tendency in the federal government to intervene in technology areas such as 5G in order to promote innovation. Hypotheses The emphasis on great power competition has emerged in the government at the same time this shift in innovation policy strategy has occurred. Especially under the Trump administration, key government documents reflect this shift, arguing that China and Russia present the greatest threats to the United States. These documents forward a collection of related ideas: that great power competition will define the coming decades, that China is a revisionist power, that this competition is not simply a military one but an ideological one, etc. (52). Interestingly, while most of these documents, including the most authoritative such as the 2017 National Security Strategy (NSS), have emerged during the years of the Trump presidency, the 2016 Design for Maintaining Maritime Superiority embraced the notion of great power competition between the US and China, showing how this trend is not necessarily exclusive to the Trump administration (53). Clearly, an emerging trend is the perception of great power competition between the US and China, which seems at first glance to motivate or be invoked in the interventions the government is making into the 5G and technology innovation space. As detailed in the literature review, this trend can motivate political behavior, including through the influence of historical analogy and securitization. Given this trend and the literature on technology as a realm of great power competition, an overarching hypothesis for this shift in government innovation policy follows: The perception in the US of great power competition with China has led it to embrace greater intervention in technology innovation. This hypothesis has two implications alluded to by the literature review. First, this perception of great power competition may lead to Cold War analogizing that in turn motivates the shift in government innovation policy. The body of literature on historical memory as a heuristic for policymakers suggests the Cold War analogizing of the US-China relationship may have distinct political effects. Such effects and the general discourse around a “new Cold War” imply that perceptions of great power competition could motivate changes to technological innovation policy. Second, the perception of great power competition may motivate the securitization of the 5G space. Literature on securitization suggests that the US may construct technological innovation as a front in a great power competition, there- by necessitating intervention on national security grounds. Both of these scenarios are particular manifestations of the great power competition hypothesis. Testing each of these possibilities, then, illustrates the ways in which the hypothesis may be true. The results of those tests will specifically highlight the mechanisms by which great power competition leads to the shift in technology policy, and will more broadly illuminate the dimensions of this new era of perceived great power competition. Note that these manifestations are neither mutually exclusive nor dependent. To test the potential for Cold War analogizing, I will track analogizing of 5G to the Space Race with the USSR. This test will examine rhetoric framing 5G as a “race,” including a specific focus on analogies to US and Soviet achievements in the 1960s, over time. Given the rich literature on historical analogies’ influence on political behavior, a trend of such comparisons increasing over time will demonstrate how the administration is framing technology innovation with great power competition. NASA and the race to the moon represent perhaps the most critical Cold War episode concerning technology innovation in competition with another great power. As such, these comparisons are the most likely to take place, given the importance of simplistic analogies in particular, and are thus most illustrative of the use of analogizing in viewing 5G. Because the space race represented a pivot toward greater government intervention in technology innovation, its analogy serves as a likely motivator for a similar shift today. Of course, the government’s intervention in support of 5G is nowhere close to the scale of involvement it took in the space race, but the analogy-driven change in policy matters more than the parity in magnitude between government involvement in innovation in the 1960s and 2010s. This data is admittedly correlational, though the body of literature on the use of historical memory suggests that the perpetuation of specific analogies influences decision making. This suggestion means the greater the use of the analogy, the more likely it is influencing the shift in innovation strategy. To test for securitization, I will examine critical documents to understand if a securitizing discourse is being deployed. Securitization is a discursive process, meaning this review of such wording is the most direct way to detect whether or not the government is constructing technology innovation as a realm of security risk. One key implication of securitization is that the national security apparatus absorbs securitized issues, so to test this hypothesis, I will look at key national security documents such as the NSS, National Military Strategy, and Nuclear Posture Review in order to see if national security discourses are intentionally incorporating questions of technological innovation, especially with explicit reference to or focus on 5G. The literature on the Trump administration’s affinity for industrial policy suggests a different explanation for this shift in innovation strategy. Rather than a reaction to China based on notions of great power security competition, this shift may derive from a reaction based on notions of economic vulnerability to China. In other words, this industrial policy in the 5G area stems from an economic em- brace of industrial policy more broadly, rather than from the security concerns borne out of great power competition. This literature thus suggests the following hypothesis: The Trump Administration’s belief in industrial policy has led it to embrace greater intervention in technology innovation. The strongest evidence that supports the industrial policy hypothesis is the DOJ’s intervention specifically protecting Qualcomm. By advocating for the preservation of an anticompetitive business model, the government is effectively signaling a policy of “picking winners and losers” that characterizes industrial policy. However, to understand if this strategy is industrial policy rather than security strategy, there must be a trend of similar uses of this courts-based strategy that seems to be “picking winners” in sectors beyond 5G. To test this hypothesis, I will track the appellate briefs filed by the DOJ’s Antitrust Division to determine if it is advocating for anticompetitive equilibria that pick winners and losers in other industries as well. The implication of the hypothesis is that the administration is actively embracing the economic orthodoxy of industrial policy, meaning its interventions extend beyond 5G. Observing such a trend would thus imply the economic motivation for the 5G intervention, rather than the security motivation. Of course, this tracking method is imprecise—the individual facts and nuances of each case likely shape the content of the DOJ’s appellate briefs. However, survey- ing all briefs over the previous four years will demonstrate broader trends in the frequency with which the DOJ supports anticompetitive behavior. Results Cold War Analogizing The data on the use of the phrase “race to 5G” demonstrate a dramatic in- crease in the use of the analogy beginning in 2018. Using an analysis of documents employing the phrase between 2014–2019 (accessed through Factiva), the graph at right demonstrates the dramatic adoption of this term as mentions of 5G in- creased from 97 in 2017 to 715 in 2018, a 637% increase. Additionally, when only including documents that specifically make mention of the United States Federal Government or Federal Communications Commission, the data still demonstrate a similar jump from 17 in 2017 to 271 in 2018, a 1,494% increase. This increase serves as a rough indicator of the prevalence of technology race analogizing. Factiva aggregates publications using specific keywords, meaning this data reflect the prevalence of this analogy in the media. However, given the influence of analogies on decision-makers’ thinking, a greater prevalence implies a greater likelihood of such an analogy shaping public policy. Additionally, isolating the publications that specify the FCC or USFG demonstrates the connection between government action and this perceived technology race. A random sampling of these publications also suggests the vast majority employed the analogy, rather than argued against using it. Admittedly, establishing causality between government action and prevalence of the analogy is difficult—the media could be ascribing the analogy to the actions of the government without policymakers ever having employed the analogy. Fortunately, the record demonstrates that policy- makers have adopted this analogy in recent years. Key figures in the government, including President Trump, FCC Chairman Ajit Pai, Chief Technology Officer of the United States Michael Kratsios, Chairman of the Senate Committee on Com- merce, Science, and Transportation Roger Wicker, House Energy and Commerce Ranking Member Greg Walden, and Communications and Technology Subcommittee Ranking Member Bob Latta, have all employed the analogy (54). Moreover, Attorney General Barr has explicitly argued the US has not yet had its “Sputnik moment” in this race, further underscoring the connection to the space race (55). Taken together, the aggregate data from Factiva and the specific examples from key elected officials provide compelling evidence for “Race to 5G” analogizing. Securitization The set of documents articulating national security priorities and assessments provides the best source to scour for the securitization of 5G technology. Because these documents articulate matters pertaining to the security of the United States, their inclusion of 5G specifically and the domestic technology innovation base more broadly indicates the securitization of these spaces. The most recent Worldwide Threat Assessment from the Director of National Intelligence directly addresses 5G, arguing that the creation and adoption of 5G networks by other countries directly implicates data security within the United States due to the interconnectedness of communications and information technology infrastructure. Additionally, the Assessment connects this data infrastructure to threats posed by decryption capabilities growth, underscoring the technical threats to sensitive data in particular (56). Similarly, the 2016 Design for Maintaining Maritime Superiority specifically connects great power competition with China and Russia to threats to US information technology systems and argues crucial outputs enabled by 5G such as better AI will dramatically influence the balance of power.57 These depictions conform to Hansen and Nissenbaum’s framework by emphasizing a threat to the broad data infrastructure in the US posed by foreign development of 5G technologies and engaging in technification by emphasizing aspects like decryption capabilities growth and complex 5G outputs. The 2017 NSS is particularly important given its reframing of technology issues in a national security framework. The document identifies the need for the nation to excel in technology and innovation domestically to ensure the security of the nation, which in and of itself may not represent a dramatic shift from previous security orthodoxies that emphasized US domestic innovation as a component of national power. However, the NSS also asserts a new idea of a National Security In- novation Base (NSIB), formalizing the notion that technological innovation across the economy (not simply for defense purposes) is crucial to the balance of power the US must maintain to survive inter-state strategic competition. The document directly confronts China for intellectual property theft that it argues undermines the NSIB, discursively creating the notion of a Chinese threat to the securitized domestic innovation base (58). The 2018 National Defense Strategy (NDS) builds on this idea of the NSIB, arguing that non-defense related innovation directly implicates the command of the commons: “The fact that many technological developments will come from the commercial sector means that state competitors and non-state actors will also have access to them, a fact that risks eroding the conventional overmatch to which our Nation has grown accustomed” (59). Crucially, what follows from this assessment that commercial innovation is a security issue is the absorption of non-defense technology development into the military’s purview: “A long-term strategic competition requires the seamless integration of multiple elements of national power—diplomacy, information, economics, finance, intelligence, law enforcement, and military. More than any other nation, America can expand the competitive space” (60). This absorption classically models the discursive securitization of a policy area and the following policy change as the national security apparatus begins to dictate policy in said area. The DOD has specifically applied this notion of commercial innovation as central to the command of the commons. A spokesperson for the DOD framed 5G as a question of ability to function on the battlefield, claiming: “That’s where we are with 5G...we are going to run our entire warfighting ecosystem though communications.” She directly connected this vulnerability to grand ideas of the balance of power, arguing: “If we don’t embrace it and apply it towards our goals, we could be overcome quickly with technical overmatch” (61). Clearly, by connecting 5G in- novation to the nation’s warfighting ability and conventional military superiority, and by directly echoing the phrase “technical overmatch” used in the 2018 NDS when it discusses the national security importance of the NSIB, the spokesperson frames technology innovation as a question of debilitating collapse of the nation’s military, securitizing the issue. This analysis of key national defense documents and statements by members of the national security state provides compelling evidence for the securitization of 5G. Industrial Policy A review of the roughly 80 appellate briefs filed by the DOJ’s Antitrust Divi- sion reveals a dramatically limited scope of interventions supporting specific companies’ anticompetitive practices analogous to the DOJ’s intervention to protect Qualcomm in 2019 (62). During this period, only seven briefs opposed antitrust enforcement. Of these, two related to Qualcomm (briefs for Federal Trade Commission v. Qualcomm, Incorporated and Karen Stromberg, et al. v. Qualcomm Incorporated ), excluding them from consideration as they pertain specifically to 5G. A third, for State of New York and Other Plaintiff States v. Deutsche Telekom AG, et al. , supported the merger of T-Mobile and Sprint conditioned on the company’s rollout of 5G infrastructure across America, excluding it from consideration as well. Among the four remaining briefs, Viamedia, Inc. v. Comcast Corp., et al. only weakly supports the notion that the government is supporting anticompetitive behavior in order to promote specific companies. In this case, the DOJ states that it takes no position on the merits of the plaintiff’s claims, only stating that proof of reduced competition in a market is necessary in addition to proof of the existence of agreements considered anticompetitive (arguing that behavior must be effectually anticompetitive to be subject to antitrust laws, not simply anticompetitive based on a company’s decisions on paper). Two briefs better demonstrate opposition to antitrust enforcement—those for Continental Automotive Systems, Inc. v. Avanci, LLC, et al. and Apple Inc. v. Robert Pepper, et al. The final brief, for Intel Corporation and Apple Inc. v. Fortress Investment Group LLC, et al. , also pushes back against the application of antitrust laws, though in favor of Fortress Investment Group; this behavior is puzzling for the “winners and losers” hypothesis because Apple and Intel would likely be considered American national champions of sorts, implying the government would intervene in their favor were it truly interested in promoting their market dominance. Put simply, too few briefs oppose antitrust enforcement to indicate a trend sup- porting the industrial policy hypothesis. Due to their limited number, it is not possible to discern a broader trend from the briefs that do oppose antitrust enforcement. The DOJ may take the position it does in these cases simply based on its reading of the law and understanding of the facts in each individual case. Because there is not a sufficiently discernible trend, it is not possible to confirm the hypothesis that the government is engaging in the picking of winners and losers. This finding complements previous findings that the effects of CFIUS investigations are non-discriminatory, implying their use is based on actual national security (their stated purpose), not protectionism of special interests (63). These findings thus imply the industrial policy hypothesis is less accurate than the great power competition one. However, watchdogs and journalists have noted that under the Trump Administration, the DOJ’s antitrust division has significantly reduced the application of cartel and merger enforcement (64), and the number of personnel working on antitrust cases has similarly declined (65). This trend may indicate an embrace of a permutation of industrial policy, whereby the Trump administration may not be “picking winners and losers” but, rather, allowing rapid consolidation such that the market picks national champions. This evidence thus lends some credence to the industrial policy hypothesis. However, given the observed behavior of the dependent variable includes active intervention to support Qualcomm, this de- cline in enforcement alone does not provide as good of an explanation for the motivation of the Trump administration’s 5G strategy as does the great power competition hypothesis. Conclusion The assessments from the previous section demonstrate stronger evidence for the great power competition hypothesis than for the industrial policy hypothesis. The assessment of aggregate data on publications by Factiva as well as statements by key administration officials demonstrates the substantial growth of rhetoric analogizing 5G to the Cold War space race. This trend demonstrates how US policymakers are employing historical thinking as they understand the US-China security relationship more broadly as well as competition in the 5G space specifically. The assessment of key national security documents and statements illustrates the securitization of 5G, also providing support for the great power competition hypothesis. In contrast, the assessment of the appellate briefs filed by the DOJ’s Antitrust Division reveals the government’s interventions in support of anticompetitive behavior are almost exclusively limited to the 5G space thus far, meaning evidence for the industrial policy hypothesis does not presently exist. The available evidence thus suggests the security relationship, manifested both in historical analogy and in securitization, more powerfully motivates the government’s shift toward greater intervention in 5G technology innovation than the economic relationship and derived inclinations toward industrial policy. As technological innovation appears to be growing into a key facet of the US-China relationship, the change in government policy represents a manifestation of how the Sino-American relationship is evolving. This change in the technology innovation space is particularly important for understanding the broader US-China relationship. Because technological developments like 5G and AI, which have emerged from interconnected economies and had impacts beyond borders, are being framed as areas of competition, the ways the US and China interact in this sphere will have implications for their broader relationship. Beyond speaking to the motivations behind the administration’s 5G strategy, the findings in this paper shed light on how the US more broadly perceives China’s economic and technological behaviors in a national security mindset. Finally, because this trend is relatively nascent, this paper is only a first step to- ward understanding changing government policy in technology spaces. Assessing motivations is difficult, and more research into the topic—particularly involving interviews with actual policymakers—will help better define this trend as it evolves over the coming years. More research is needed to understand the influence and limits of the emerging industrial policy mindset. In particular, the possibility dis- cussed in the previous section that the Trump administration may be “letting the market pick the winners and losers” in a permutation of traditional industrial policy merits attention. Additionally, given the implication that securitization of domestic technology innovation has led to a shift toward more government intervention in the 5G space, future research may seek to understand other manifestations of this securitization. Finally, scholars should explore the motivations behind securitization. While legitimate security threats may exist, proponents of industrial policy may see securitization as an effective means to achieve their ends; similarly, leaders of US technology companies may see securitization as a useful strategy to secure favorable government policies. These possibilities suggest a need for future research into the motivations for different actors deploying securitizing discourse of 5G. 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CFIUS Will Alter the FDI Landscape in the United States,” American University Business Law Review 4, no. 1 (2015): 125–52; Kevin Granville, “Cfius, Powerful and Unseen, Is a Gatekeeper on Major Deals,” New York Times, March 5, 2018, https://www.nytimes.com/2018/03/05/business/what-is-cfius.html. 36 Paul Connell and Tian Huang, “An Empirical Analysis of CFIUS: Examining Foreign Investment Regulation in the United States,” Yale Journal of International Law 39, no. 1 (2014): 131–64. 37 Data sourced from Jackson, “The Committee on Foreign Investment in the United States (CFIUS).” 38 Note – chart taken from Grindal, “Trade Regimes as a Tool for Cyber Policy.” 39 Jackson, “The Committee on Foreign Investment in the United States (CFIUS).” 40 Ana Swanson, “Trump Blocks China-Backed Bid to Buy U.S. Chip Maker,” The New York Times, September 13, 2017, https://www.nytimes.com/2017/09/13/business/trump-lattice-semiconductor-china.html. 41 Aimen N. Mir, “Letter From Treasury Department to Broadcom and Qualcomm Regarding CFIUS,” March 5, 2018, https://www.documentcloud.org/documents/4407490-Letter-From-Treasury-Department-to- Broadcom-and.html; Chris Sanders, “U.S. Sees National Security Risk from Broadcom’s Qualcomm Deal,” Reuters, March 7, 2018, https://www.reuters.com/article/us-qualcomm-m-a-broadcom-idUSKCN1GI1S8. 42 “FCC Approves Merger of T-Mobile and Sprint” (Federal Communications Commission, November 5, 2019), https://docs.fcc.gov/public/attachments/DOC-360637A1.pdf. 43 “FCC Proposes the 5G Fund for Rural America” (Federal Communications Commission, April 23, 2020), https://docs.fcc.gov/public/attachments/DOC-363946A1.pdf. 44 “WIA Awarded $6 Million DOL Grant to Train 5G Workforce” (Wireless Infrastructure Association, February 19, 2020), https://wia.org/wia-awarded-6-million-dol-grant-to-train-5g-workforce/. 45 Data sourced from the NITRD’s Supplement to the President’s Budgets for Fiscal Years 2012-2020. 46 “United States District Court Findings of Fact and Conclusions of Law (Public Redacted Version), Federal Trade Commission v. Qualcomm Incorporated” (UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION, May 21, 2019), https://www.ftc.gov/system/files/ documents/cases/qualcomm_findings_of_fact_and_conclusions_of_law.pdf. 47 “BRIEF OF THE UNITED STATES OF AMERICA AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND VACATUR” (US Department of Justice, August 30, 2019), https://www.justice.gov/atr/case- document/file/1199191/download; Kadhim Shubber, “US Regulators Face off in Court Tussle over Qualcomm,” Financial Times, February 9, 2020, https://www.ft.com/content/adbca366-49d3-11ea-aeb3-955839e06441. 48 Note – the government’s support for the T-Mobile-Sprint merger, which (as mentioned earlier) is explicitly premised on 5G rollout to be enabled by consolidated market power, is another example of government intervention supporting anticompetitive behavior in the 5G space. For more, see Thomas M Johnson et al., “Statement of Interest of the United States of America” (United States Department of Justice, December 20, 2019), https://www.justice.gov/atr/case-document/file/1230491/download. 49 Donald Trump, “Executive Order on Securing the Information and Communications Technology and Services Supply Chain, Executive Order 13873” (2019), https://www.whitehouse.gov/presidential-actions/ executive-order-securing-information-communications-technology-services-supply-chain/; “Department of Commerce Announces the Addition of Huawei Technologies Co. Ltd. to the Entity List” (US Department of Commerce, Office of Public Affairs, May 15, 2019), https://www.commerce.gov/news/press-releases/2019/05/department-commerce-announces-addition-huawei-technologies-co-ltd; Tamer Soliman et al., “US Commerce Department Proposes Sweeping New Rules for National Security Review of US Information and Communications Technology or Services Transactions,” Mayer Brown, December 2, 2019, https://www.mayerbrown.com/en/ perspectives-events/publications/2019/12/us-department-of-commerce-proposes-rule-for-securing-the-nations- information-and-communications-technology-and-services-supply-chain; Damian Paletta, Ellen Nakashima, and David Lynch, “Trump Administration Cracks Down on Giant Chinese Tech Firm, Escalating Clash with Beijing,” Washington Post, May 16, 2019, https://www.washingtonpost.com/world/national-security/trump- signs-order-to-protect-us-networks-from-foreign-espionage-a-move-that-appears-to-target-china/2019/05/15/d982ec50-7727-11e9-bd25-c989555e7766_story.html; Annie Fixler and Mathew Ha, “Washington’s Huawei Ban Combats Chinese Espionage Threat,” Foundation for Defense of Democracies, May 16, 2019, https://www.fdd. org/analysis/2019/05/16/washingtons-huawei-ban-combats-chinese-espionage-threat/. 50 For example, see Barr, “Attorney General William P. Barr Delivers the Keynote Address at the Department of Justice’s China Initiative Conference;” Michael Pompeo, U.S. States and the China Competition: Secretary Pompeo’s Remarks to the NGA, https://www.youtube.com/watch?v=g1BbswU3i10; and Pompeo, Silicon Valley and National Security. 51 Margaret Harding Mcgill, “Trump Rejects Government Intervention in 5G Wireless Networks,” POLITICO, April 12, 2019, https://politi.co/2P4erlI; Barr, “Attorney General William P. Barr Delivers the Keynote Address at the Department of Justice’s China Initiative Conference;” Peter Newman, “How the US Buying Ericsson or Nokia Would Impact Networking,” Business Insider, February 10, 2020, https://www.businessinsider.com/us-could-buy-ericsson-nokia-to-compete-against-huawei-report-2020-2. 52 Trump, “National Security Strategy of the United States of America 2017;” Jim Mattis, “Summary of the 2018 National Defense Strategy of the United States of America” (United States Department of Defense, 2018), https://dod.defense.gov/Portals/1/Documents/pubs/2018-National-Defense-Strategy-Summary.pdf; Jim Mattis, “Nuclear Posture Review 2018” (Office of the Secretary of Defense, February 2018), https://media. defense.gov/2018/Feb/02/2001872886/-1/-1/1/2018-NUCLEAR-POSTURE-REVIEW-FINAL-REPORT. PDF; Daniel R. Coats, “Worldwide Threat Assessment of the US Intelligence Community” (Senate Select Committee on Intelligence, January 29, 2019), https://www.dni.gov/files/ODNI/documents/2019-ATA-SFR--- SSCI.pdf; “Description of the National Military Strategy 2018” (US Joint Chiefs of Staff, 2018), https://www.jcs. mil/Portals/36/Documents/Publications/UNCLASS_2018_National_Military_Strategy_Description.pdf; John Richardson, “A Design for Maintaining Maritime Superiority: Version 2.0” (United States Navy, December 2018), https://www.navy.mil/navydata/people/cno/Richardson/Resource/Design_2.0.pdf. 53 John Richardson, “A Design for Maintaining Maritime Superiority: Version 1.0” (United States Navy, January 2016), https://www.navy.mil/cno/docs/cno_stg.pdf. 54 Todd Haselton, “President Trump Announces New 5G Initiatives: It’s a Race ‘America Must Win,’” CNBC, April 12, 2019, https://www.cnbc.com/2019/04/12/trump-on-5g-initiatives-a-race-america-must-win.html; Ajit Pai, “Remarks of FCC Chairman Ajit Pai at the White House” (Washington, D.C., April 12, 2019), https://docs. fcc.gov/public/attachments/DOC-356994A1.pdf; Michael Kratsios, “America Will Win the Global Race to 5G,” The White House, October 25, 2018, https://www.whitehouse.gov/articles/america-will-win-global-race-5g/; Roger Wicker, “Wicker Convenes Hearing on the Race to 5G” (Washington, D.C.: Senate Committee on Commerce, Science, and Transportation, February 6, 2019), https://www.commerce.senate.gov/2019/2/wicker-convenes- hearing-on-the-race-to-5g; Greg Walden and Bob Latta, “Walden and Latta Statement on Bipartisan Bills to Boost 5G” (Washington, D.C., January 8, 2020), https://republicans-energycommerce.house.gov/news/press- release/walden-and-latta-statement-on-bipartisan-bills-to-boost-5g/. To the extent that business leaders’ rhetoric on this issue matters as well, see Katie Lobosco, “AT&T Chief: China Isn’t Beating the United States on 5G — Yet,” CNN, March 20, 2019, https://www.cnn.com/2019/03/20/business/att-randall-stephenson-5g/index.html. 55 Barr, “Attorney General William P. Barr Delivers the Keynote Address at the Department of Justice’s China Initiative Conference.” 56 Coats, “Worldwide Threat Assessment of the US Intelligence Community.” 57 Richardson, “A Design for Maintaining Maritime Superiority: Version 1.0.” 58 Trump, Donald. “National Security Strategy of the United States of America 2017,” 20-22. 59 Mattis, “Summary of the 2018 National Defense Strategy of the United States of America.” 60 Ibid. 61 C. Todd Lopez, “Pentagon Official: U.S., Partners Must Lead in 5G Technology Development,” US Department of Defense, March 26, 2019, https://www.defense.gov/Explore/News/Article/Article/1796437/pentagon- official-us-partners-must-lead-in-5g-technology-development/. 62 To see these briefs, see “Appellate Briefs,” US Department of Justice, n.d., https://www.justice.gov/atr/ appellate-briefs. 63 Connell and Huang, “An Empirical Analysis of CFIUS: Examining Foreign Investment Regulation in the United States.” 64 “The State of Antitrust Enforcement and Competition Policy in the U.S.” (American Antitrust Institute, April 14, 2020), https://www.antitrustinstitute.org/work-product/antitrust-enforcement-report/; “FCC Proposes the 5G Fund for Rural America;” Kadhim Shubber, “US Antitrust Enforcement Falls to Slowest Rate since 1970s,” Financial Times, November 28, 2018, https://www.ft.com/content/27a0a34e-f2a0-11e8-9623-d7f9881e729f. 65 Kadhim Shubber, “Staffing at Antitrust Regulator Declines under Donald Trump,” Financial Times, February 7, 2019, https://www.ft.com/content/cf1ed2a6-2619-11e9-b329-c7e6ceb5ffdf. 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We the Prisoners Considering the Anti Drug Act of 1986, the War on Drugs and Mass Incarceration in the United States Sophia Scaglioni Boston University April 2021 Introduction America was founded upon the notions of equality of opportunity, success through perseverance, and the idea that anyone, if they are hard-working and driven, can ascend socially and economically. Currently, however, the United States finds itself diametrically opposed to these ideas. The prison system in the United States contradicts rights guaranteed in the Constitution along with the promise of social mobility and the American Dream. “Mass incarceration” is a phrase frequently thrown about the political arena. These two words, however, represent 2.3 million American citizens who are in jail or prison today. To contextualize the gravity of this statistic, consider this: while the US has about 5% of the world’s population, it has about 25% of the world’s prison population. The majority of the victims of mass incarceration are Black and Latino men, who, despite having been promised equal protection under the law and a right to life and liberty, find themselves trapped in a system marked by racial disparity. One out of every three black boys and one out of every six Latino boys born today will go to prison at some point in their life while white boys born today have a 1/17 chance to go to prison in their lives. Despite being subjected, on average, to lower living standards in terms of housing and schooling, minority men are held to higher standards in the criminal justice system. While African Americans and whites report using drugs at similar rates, there are six times more Black men serving time for drug possession charges. The United States, a country founded on the notion of opportunity, get to these gruesomely imbalanced statistics through a series of public policy decisions. The minorities who make up these statistics have been disproportionately targeted by one of the Reagan administration’s keystone programs: the War on Drugs. While the policy battle against drugs was certainly started during the Nixon years and Nixon’s policies certainly influenced the oppression of minorities, the most detrimental and consequential laws of the War on Drugs were enacted during the years of the next administration. The Reagan White House, which controlled the executive branch during the 1980s, pushed policies that attacked drug possession and use with stringent criminal punishment. The administration was able to do this by stimulating public support for the War on Drugs; this mobilized Congress to act. The public angst the White House strived to create was based on largely ungrounded facts meant to instill fear in the general public. Impacts of policies implemented through this formula of fear mongering are felt today in the form of racial disparities in the American Criminal Justice System and the institution of mass incarceration. The Anti-Drug Act of 1986 imposed mandatory minimum sentences on the possession and distribution of certain drugs, allocated $2 billion to the crusade against drugs, involved the military in narcotic control, allowed for the death penalty for certain-drug related crimes and bolstered the authority of law enforcement. This policy was only strengthened in the coming years, and parts of this legislation remain in place today. Going to prison in America as a minority male, even when the crime is minor, constitutes a figurative life sentence due to the punitive nature of the Criminal Justice system, which taints a permanent record, complicates employment, ruptures family units and removes voting clout for prisoners. One of the most detrimental legacies of the War on Drugs, however, is the ostracization of former prisoners by American society. The institution of mass-incarceration is the outcome of policies like The Anti-Drug Act of 1986; this paper will analyze how this policy was born, implemented and how its hateful roots permeate the American society today. The legacy of The War on Drugs today is seen in the racial-biases in every step of the American criminal justice system: from investigation to sentencing to serving time. The shameful condition of American Criminal Justice doesn’t need to exist. Hundreds of thousands of people do not need to be imprisoned for minor charges, namely drug possession. In fact, this essay will argue, the American conscience cannot be clear so long as the institution of mass incarceration and its suffocating consequences are allowed to continue. The pillars and promises of our democracy must be restored and the way to do this is found in Portugal. Portugal’s drug legislation took a completely opposite perspective than the United States’ did when faced with a similar drug crisis; this essay will try to answer why that is the case. On July 1st, 2001 the country chose to “decriminalize the use and possession of all illicit drugs” and has since successfully reduced “problematic use, drug-related harms, and criminal justice overcrowding.” The values promulgated by this public policy emphasize recovery, safety and above all else, human dignity. By passing similar legislation, America would ameliorate the shameful condition of our discriminatory prison system and thus hold true to the roots and morals it was founded upon and has now seemingly forgotten. The United States’ current social, economic, and political climate makes the passing of such legislation unlikely. The institutional and cultural factors which influenced the Anti-Drug Act of 1986 (and their contribution to mass incarceration in the United States), compared to the same institutional or cultural factor when applied to Portugal, makes American unwillingness to rectify its broken criminal justice system evident. Ultimately, this reflects a very deep inconsistency between the notions American was founded upon and the values its government actually promulgates. The vantage points through which this essay will consider the opposite policy reactions of the United States and Portugal to drug use and possession are (1) Party Systems, (2) Welfare States, and (3) the role of religion in politics in America and Portugal. This essay will compare America and Portugal within the scope of three lenses: party systems, welfare systems and religious foundations. The vantage points will reveal Portugal’s proportional representation system is more responsive than the American two-party system; its universal health-care system has stronger infrastructure with which to implement a widespread drug policy; the common Catholic faith brings communities together and unifies public opinion. These factors combine clearly when considering the policy decision Portugal implemented in June 2001. A morally-unified public saw a clear issue in the rise of heroin use and asked their coalition-style government for a solution. Legislators turned to and trusted technical expertise to find a creative solution: decriminalization of drug possession and use. The country’s National Health Service was readily prepared and built on pre-existing welfare infrastructure, to implement the policy’s prevention and recovery programs. Once implemented, the public supported it fully. Now, drugs have ceased to be a controversial issue in Portugal and any mention of returning to a War on Drugs style approach is shot down. Party Systems Literature Review Two common forms of party system structures are a proportional representation system and a two-party system. The names are rather self-explanatory: a proportional representation system awards political parties seats in a country’s representative body in proportion to how many votes they receive, while a two-party system has two dominant groups in a representative body. Historically, proportional representation systems are superior to the two-party system when it comes to creating credible commitments because, since more than two ideologies are represented in the legislature, creating a majority coalition requires compromise. The negotiation and communication this requires fosters trust and understanding that bypasses the pettiness often seen in two-party systems. A multiparty system suggests that the negotiation and deal-making involved in the country’s policy decisions are collaborative, balanced, and focused on long-term gains. Conversely, in a winner-take-all two-party system, a lack of openness and communication is expected, and policy is likely to be directed towards short-term gains. The United States’ government fits the mold of a winner-take-all two-party system; the polarizing, negotiation-adverse effects of the system are felt in the Anti-Drug Act of 1986. To understand the negotiation-adverse climate which the 100th Congress faced, circumstances of the political climate must be considered. Firstly, the House and Senate were divided: the House was controlled by Democrats and the Senate by Republicans. Divided government is a common feature of two-party systems which can obstruct meaningful cooperation. According to scholars, when two conflicting ideologies must cooperate it is much harder to reach win-win outcomes than if the negotiators held similar views. The state of the American Congress in 1986 was characterized by divided and increasingly competitive split party control. This made the starting point for negotiation on drug-policy already compromised. Further research on negotiation tells us that the entirety of the policy-making process is hampered by the two-party system, not just its starting point. Studies modeling two-party negotiations found that time pressures and power-projections are crucial in negotiation outcomes—especially when parties are already ideologically opposed. More time and a lack of feeling the need to establish dominance leads to more effective discussions due to a lessened sense of pressure. These factors impacted the internal negotiation climate of the American Congress in 1986. There was an intense pressure from both the executive branch and the public on the already-divided Congress for pivotal drug legislation. These two pressures largely worked hand in hand. Recall the formula of fear mongering used by the Reagan administration mentioned earlier, best exemplified by the executive decision to hire staff specifically to publicize the use of crack cocaine in inner-cities. This spurred intense media coverage, creating pressure from an anxious public for Congressional action. This combines with the final, most crucial circumstance impacting the 100th Congress and the Anti-Drug Act of 1986: 1986 was a midterm election year. Therefore, when the divided, two-party Congress sat down in September to discuss drug policy, they were influenced by both time-pressure from November midterms and power-pressure from the desire to project efficacy and strength to voters right before elections. A lack of meaningful discussion aimed at a long-term solution ensued. Both Republicans in the Senate and Democrats in the House tried to create the most severe laws to acquiesce public nervousness, prioritizing power-projections over a constructive drug policy. Both Republicans and Democrats were blinded by hopes of re-election and failed to act in a long-term-oriented, collaborative manner. This directly stems from a divided two-party system, which creates a hostile and negotiation-adverse starting point only worsened in 1986 by time and power pressures. Welfare State Literature Review The design of a country’s social protection system is a fundamental factor to consider when assessing a drug policy such as the Anti-Drug Act of 1986. A country’s welfare state has a variety of characteristics to be considered. For example: whether a country implements universal coverage healthcare or chooses to implement a means-tested coverage system or whether healthcare is funded through public taxes, payroll contributions or private funding. The Anti-Drug Act of 1986 is nearly 200 pages long and has 21 sections devoted to anti-drug policy measures. Of these sections, several appropriate resources to criminal law enforcement and outline explicit punishments for the use and possession of drugs. The words “penalty” and “enforcement” are included in almost every section title. What words are missing, however, are terms such as “health”, “prevention” and “recovery”. If dangerous drugs were really sweeping the nation in ways so horrendous the Reagan administration claimed merited a crusade as aggressive as the War on Drugs, then where is the mention of recovery and prevention techniques? There is no mention of implementing healthcare programs to assist those suffering from drug abuse in the list of the 21 sections devoted to anti-drug policy measures. None of these sections emphasize the importance of recovery treatment. To find mentions of such programs, one must delve deep into the document, past authorization for the death penalty for certain drug offenses or the use of illegally obtained evidence in drug trials. Only in the most obscured corners of this legislation is minimal policy for prevention found. It calls for a board to come together thrice annually to assess how drug abuse prevention measures are doing at a national and state level, as well as for an increase in drug education programs in public schools. Although the amount of spending allocated for this is unclear, while the $2 billion allocated to increasing policing is concrete. Prevention and recovery are not emphasized in the Anti-Drug Act of 1986 and this may be partly due to the American welfare state which is characterized by high private social spending supported by government tax subsidies for the upper and upper-middle classes. Also, there are hardly any large public social programs that benefit all United States citizens nationally. Instead, America uses means-tested social assistance programs for poor people and social insurance programs (Social Security) for the middle-class, while the richest members of society rely on private healthcare programs. This divided structure existed when the Anti-Drug Act of 1986 was implemented, the same time as America was suffering from an alleged crack-cocaine crisis. Whether or not this is actually true has been heavily disputed: research suggests the crack-epidemic that conservative figureheads preached about was nonexistent, that drug use in urban neighborhoods was actually declining. Regardless of how real the crack-crisis actually was, the intention of the American government was clearly not to aid its alleged victims in recovery, but rather target urban populations. There was little to no mention of a national health strategy to combat the alleged issue. Perhaps (and very concerning morally) this is because those promoting the policy knew the crack-cocaine crisis was fabricated. However, it is possible that the reason the focus was not on treatment but increased criminal sentencing was due to the divided and privatized healthcare system which provided no clear roadmap or infrastructure for a national drug strategy to combat the (supposed) drug epidemic. Role of Religion Literature Review While surprisingly little research has been done on how religion factored into the War on Drugs, it can be said with confidence that religion acts as a polarizing force in American politics when certain religious groups align themselves with political ideologies. That holds true when considering American drug policy during the 1980s: President Reagan was supported fervently by conservative religious groups of evangelical Christians trying to return America to “traditional values”. This alliance between conservative Christians and the Republican party became known as the Moral Majority, a political group which mobilized Christian voters who felt as though they had been overlooked by their government during the years of the 1960s and 1970s; the War on Drugs was popular among these voters and they became one of Ronald Reagan’s most dependable coalitions. The years that the Moral Majority claimed the government ignored their voices overlap, of course, were the years of the Civil Rights Movement. Many members of the Christian Right overlap with another constituency of Reagan’s: whites who resented civil rights progress such as affirmative action. Research found that racial attitudes were a key determinant of white support to “get tough on crime” and the people most likely to support criminal-punitiveness were rural, conservative whites. The people that constitute this demographic also comprise those most dedicated to the Moral Majority: evangelical Christians. It was none other than this religious coalition which, feeling threatened and overlooked by years of Civil Rights progress, saw the War on Drugs as an opportunity to halt racial reform without seeming explicitly racist. There was notable support from the Christian Right for the Anti-Drug Act of 1986. Party Systems Case Study The United States’ Party System is a winner-take-all two-party system. In stark contrast, Portugal’s government is a multiparty, proportional representation system. Recall that multiparty systems suggest collaborative, balanced, and long-term-oriented negotiation, while a winner-take-all two-party system is likely to lack openness, communication and long-term foresight. These expectations are completely met when comparing the Anti-Drug Act of 1986 and the 2001 Portuguese decriminalization policy. While the United States met its (alleged) drug crisis with a criminal offensive campaign, Portugal reacted to its similar drug crisis with a strategy that vowed to reintegrate drug-users into society; a strategy based on recovery, not revenge. Analyzing party systems shows why the countries moved in such different directions. The heroin crisis that struck Portugal from 1980-2000 saw the highest rate of HIV infection in the entire European Union plaguing the relatively small country. During the two decades prior to the decriminalization policy, the Portuguese government responded to the epidemic by implementing harsh policies administered by the criminal justice system. Conservative politicians who boisterously condemned drug use supported this approach despite its failure to produce results. The heroin crisis was escalating quickly and the coalition government (The Council of Ministers, Portugal’s Parliament) saw the need for innovative policy—and the need to act fast. Proportional-representation governments are known to use deliberative negotiation tactics (like relying on third-party expertise) to form creative credible commitments. In keeping with this standard, Portugal relied heavily on technical expertise in creating their decriminalization policy. A panel of experts (called The Commission for a National Drug Strategy) was assembled to analyze the efficacy of the American-inspired, criminally punitive approach Portugal was using to combat its heroin crisis. The panel stated the War-on Drugs-style approach was “squandering resources” and advised for a revolutionary new tactic. They suggested converting drug use and possession to an administrative offense, rather than a criminal one. The goal was to regard drug users as full members of society rather than outcasts and criminals. The Council of Ministers accepted almost the entirety of the expert report in October 2000 and has since seen a reduced burden on its criminal justice system, increased uptake of drug treatment, fewer deaths and diseases related to opioids and a reduction in retail prices of drugs. While the United States suffered a crack-cocaine crisis (or so the Reagan administration wanted Americans to believe) in the 1980s which directly paralleled Portugal's heroin crisis, there was little to no use of strategies like reliance on technical expertise to find a solution in Congress. Rather, the hyper-competitive, negotiation-adverse two-party system of the United States Congress went straight for power-projecting, shortsighted policies like the Anti-Drug Act of 1986, which drastically increased drug arrests, thus ostracizing thousands of Americans into the punitive criminal justice system. The harsh system created by the Anti-Drug Act of 1986 manifests itself today in the mass-incarceration of ethnic minorities. The permanence of this system is the divisive nature of our two-party system which did not end with the Reagan years. Up until very recently, no actor in the American federal sentencing system, including Congress, the President or the Attorney General, tried to propose innovative legislation to create a real shift in how the United States’ criminal justice system responds to drug use and possession. In fact, even the most significant policy developments have continued to rely upon the Anti-Drug Act of 1986 for federal sentencing structure. The lack of forward-thinking, creative policy in American drug strategy is caused by the divided two-party system which is just as unwilling to unite in the name of long-term collective gains today as it was in the 1980s. When Portugal noticed it had a heroin epidemic, its coalition-style government sought effective action to better its citizen’s health. Simultaneously, Ronald Reagan sought harsh retribution against drug users by targeting black men as criminal offenders over the possession of minor quantities of drugs. Policies from the War on Drugs, like the Anti-Drug Act of 1986, have deprived thousands of people of voting rights and has forced them to live in what some scholars have called an “under-caste” of society”. The United States’ two-party system facilitates the implementation and permanence of policies targeting ethnic minorities for the possession and use of drugs. Welfare State Case Study If the welfare state of a country matters in how drug policy is implemented, a difference is expected between the drug policy of a country with free, universal healthcare and the drug policy of a country with a system like that of the United States (few national programs for all citizens and a division along class lines of where one’s social safety net comes from). Portugal exemplifies the former of these two options: the country’s National Health Service provides free, universal coverage, protecting all citizens regardless of private wealth. For this reason, when the expert panel assessing the drug crisis proposed making drug use a health, rather than a criminal, concern, the Portuguese Council of Ministers was willing to listen. The 2001 decriminalization policy stresses a humane approach to drug abuse by providing resources in the areas of prevention, harm-reduction and treatment programs. The American healthcare system is marked by division between private and public healthcare sources and a lack of universal coverage programs. This resulted in no groundwork for a hypothetical national health strategy when American legislators were considering drug reform in the 1980s (though scholars question if their motivations were genuine enough to consider reform based on healthcare, rather than criminal punitiveness). This juxtaposes Portugal, where the National Health Service had been well-equipped for years to provide universal, free, public-sponsored health coverage and was able to adapt efficiently to the prevention and treatment programs set forth in the 2001 decriminalization policy. João Goulão, the architect of Portugal’s policy, reflected on the conclusions of the expert panel that was obtained to help the government find a long-term, creative solution to the drug issue. “It made much more sense for us to treat drug addicts as patients who needed help, not as criminals,” he said. This leads directly to the chief priority of Portuguese drug strategy: not to allow the marginalization of those using and possessing drugs. In complete antithesis, the marginalization of those using and possessing drugs was, some scholars have argued, the priority of the architects of American drug strategy. This may be partially due to the different welfare states in each country: the American welfare state lacks national unity and thus, promotes individualism while the Portuguese welfare state is quite literally defined by national cohesiveness and inclusivity. Role of Religion Case Study Religion matters when considering policies a country implements because a country with unified religious opinions will see a more broad public consensus over issues while a country where religion acts as a polarizing force will not. The latter of these two options represents the United States, where the Moral Majority supported the War on Drugs despite its racially divisive policies. In what is perhaps the most prominent contrast of this entire paper, Portugal has a public which is incredibly unified religiously. Although Portugal has no official national religion, almost 90% of its population identifies as Roman-Catholic. In keeping with regional trends (with culturally and geographically similar countries like Spain and Italy), regular mass attendance, is on the decline; while devout Catholicism may be fading, the deep-seeded roots of the religion are ingrained both in everyday life and in politics. One of the most important impacts which Catholicism has had on Portuguese society is rendering it rather socially conservative. As the heroin crisis of the 1980s and 1990s escalated, it cut across all classes, impacting those in the highest and lowest echelons of Portuguese society alike. This meant that drug use became unusually visible: from shady street corners to the most fancy of discotheques. This did not bode well with the socially conservative Catholic society and the unified public religion put pressure on public officials to act. Conversely, public religious sentiment in America during the years of the Anti-Drug Act of 1986 were the opposite of unified. Groups of the same religion, such as the Moral Majority and black churches across America, both Christian organizations, failed to see eye-to-eye on drug issues. One group supported the War on Drugs and the other denounced it. The Christian Right’s support for the War on Drugs and the subsequent legacy of mass incarceration it established, shows a fundamental divide between the policy Black Christians desire and what White Evangelicals push for. The lack of unified sentiment from Christians in the United States, both in the 1980s and now, starkly contrasts Portugal where unified religion lead to widespread public support for ethical principles which directly motivated politicians to act. For the thousands of Black and Latino men who face the dark realities of mass-incarceration in the United States, religious-based political arguments and movements have made little headway on aiding their struggles and religion seems to drive parties and their constituencies farther and farther apart on key issues rather than unite and mobilize them. In Portugal, religion unites; in America, it polarizes. Conclusion Fundamental American writings like the Declaration of Independence and the United States Constitution promise the right to life, liberty and equal protection under the law. It is grim to realize these rights and protections have been unjustly removed for millions of incarcerated citizens. Minorities in America, specifically African American men, have been historically discriminated against, and the United States’ prison system is a continuation of this marginalization, as mass-incarceration locks a large percentage of African Americans out of mainstream economy and society. The shameful condition of the United States’ prison system is a legacy of the War on Drugs and policies like the Anti-Drug Act of 1986 which called for mandatory minimum sentences on the possession of certain drugs and allocated $2 billion to the crusade against drugs. It is still the backbone of federal sentencing guidelines today. Policies like this are why the incarceration rate has skyrocketed since the 1980s despite violent crime rates falling. The persistence of racial-targeting and racial-biases in the American criminal justice system today, including the fact that legislation such as the Anti-Drug Act of 1986 is still referenced, is opposed to the fundamental values upon which America was founded. The right to equal protection under the law, and the right to life and liberty are all desecrated by the institution of mass-incarceration. How did policy like the Anti-Drug Act of 1986 become implemented? It was due to the Reagan White House’s formula of fear mongering: creating public angst over a crack-cocaine crisis (which scholars dispute even existed pre-War on Drugs) to push a punitive criminal agenda. But, if not criminal harshness, what other ways might an industrialized and modern country respond to an increasing drug problem, supposed or real, and protect the rights and liberties of its citizens while doing so? Portugal responded to growing concern over drug use by rejecting a War-on-Drugs-style approach and instead decriminalized drug possession and use. This essay compared America and Portugal within the scope of three lenses: party systems, welfare systems and religious foundations. The vantage points revealed Portugal’s proportional representation system is more responsive than the American two-party system; its universal health-care system has stronger infrastructure with which to implement a widespread drug policy; the common Catholic faith brings communities together and unifies public opinion. These factors combine clearly when considering the policy decision Portugal implemented in June 2001. A morally-unified public saw a clear issue in the rise of heroin use and asked their coalition-style government for a solution. Legislators turned to and trusted technical expertise to find a creative solution: decriminalization of drug possession and use. The country’s National Health Service was readily prepared and built on pre-existing welfare infrastructure, to implement the policy’s prevention and recovery programs. Once implemented, the public supported it fully. Now, drugs have ceased to be a controversial issue in Portugal and any mention of returning to a War on Drugs style approach is shot down. These differences between America and Portugal, revealed by the case studies, are marked by increased responsiveness and morality on the part of the Europeans. This difference is further amplified when considering the country’s similarities: both advanced and well-educated, both industrialized and marked by diversity. If Portugal is able to implement policies which respond to the needs of their citizens, both in terms of health-concerns and political demands, while ensuring human rights are emphasized, why can’t the United States? The observed phenomena emphasizes the United States’ unwillingness to address the flaws of its criminal justice system due to its polarized party-system, divisive welfare-state and religious-infighting. Where the Portuguese Parliament is willing to compromise, the United States Congress chooses to bash negotiation. Where Portuguese healthcare is universal and free, the American welfare state is divisive and lacks coordination. Where Portuguese society is unified socially, American society is only further polarized. All of these lenses show one underlying theme: Portugal values and promotes human dignity while the United States promotes marginalization of its minorities and the polarization of its citizens. It is not America, but rather Portugal which emphasizes the inalienable right to life and liberty and equal protection under the law. While this realization may seem pessimistic, it should be taken constructively. These are, ultimately, American ideals which are being instilled abroad. Before mass incarceration and racial-biases in our prison system can truly end America must do a few things. Some may say these are radical and impossible but rather, they are the only actions in keeping with the country’s founding values. It must strive to increase responsiveness in its party system which currently only provides two diametrically opposed and negotiation-adverse viewpoints. It must attempt to unify a national healthcare strategy to benefit all citizens, regardless of race or wealth. It must remove the use of religion as a political shield during times of policy discussion and use it as a tool for unity instead. Only then, once the American party, healthcare and religious systems are rectified in order to align with this country’s intended values, can the horrors of mass-incarceration be amended. Works Cited Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New Press, 2010. Bajekal, Naina. “Want to Win the War on Drugs? Portugal Might Have the Answer.” TIME, 1 Aug. 2018. Balakrishnan, P. V. (Sundar), and Jehoshua Eliashberg. “An Analytical Process Model of Two-Party Negotiations.” Management Science, vol. 41, no. 2, Feb. 1995, pp. 226–243. Berman, Douglas A. “Reflecting on the Latest Drug War Fronts.” Federal Sentencing Reporter, vol. 26, no. 4, Apr. 2014, pp. 213–216. “Criminal Justice Fact Sheet.” NAACP, 2019, www.naacp.org/criminal-justice-fact-sheet/. Hughes, Caitlin Elizabeth, et al. “What Can We Learn From The Portuguese Decriminalization of Illicit Drugs?”, The British Journal of Criminology, Volume 50, Issue 6, November 2010, Pages 999–1022. “Mass Incarceration.” American Civil Liberties Union, 2019, www.aclu.org/issues/smart-justice/mass-incarceration. Peffley, Mark, et al. “Racial Stereotypes and Whites' Political Views of Blacks in the Context of Welfare and Crime.” American Journal of Political Science, vol. 41, no. 1, 1997, p. 30. Roberts, Dorothy E. “The Social and Moral Cost of Mass Incarceration in African American Communities.” Stanford Law Review, vol. 56, no. 5, 2004 Stanford Law Review Symposium: Punishment and Its Purposes, 1 Apr. 2004, pp. 1271–1305. Robinson, Carin. “From Every Tribe and Nation? Blacks and the Christian Right.” Social Science Quarterly, vol. 87, no. 3, 2006, pp. 591–601. JSTOR. Smith, Catherine Delano, and Jose Shercliff. “Portugal: Government and Society.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 2019. United States. Cong. Anti-Drug Abuse Act of 1986. 99th Cong. Public Law 99-570. Washington: GPO, 1986. Van Het Loo, M., Van Beusekom, I., & Kahan, J. P. (2002). Decriminalization of Drug Use in Portugal: The Development of a Policy. The ANNALS of the American Academy of Political and Social Science, 582(1), 49–63. Williams, Daniel K. “Reagan’s Religious Right: The Unlikely Alliance between Southern Evangelicals and a California Conservative.” Ronald Reagan and the 1980s, 2008, pp. 135–149.

Editorial board Foreword Volume I Issue II Introducing the second issue of JPPE Technological disruption has been a fact of the post-industrial world, producing the growth in productivity and efficiency that led to nearly unfathomable increases in opulence, standards of living, and wealth. It may, as a consequence, seem perplexing why so many of today’s leaders seem concerned about something so seemingly vastly beneficial as technological innovation. And yet, few economic shifts produce more anxiety than those involving the introduction of labor saving technology into the economy. This was true in the 19th century Britain, when the Luddites stood in such abject fear of the permanent redundancy of their labor that they took to murdering machine innovators and destroying designs. It was also true in the early 20th century, as agricultural innovations and new industrial designs dramatically reshaped the US economy. And it’s true again today, as artificial intelligence and digital technology make a wide array of occupations largely or entirely automatable. This has potentially profound implications for the world. As globalization, outsourcing, and the presence of winner- take all markets exacerbate income inequality in many countries, labor automation stands to make possibly significant numbers of jobs redundant, increasing returns to capital, and hastening the growth in inequality as productivity increases faster than wages. It’s the presence of these alarming trends that has driven us to dedicate the second issue of the Journal of Philosophy, Politics, and Economics to the topic of technology and, specifically, technological disruption. We have done this by facilitating submissions from Scottish First Minister Nicola Sturgeon and Brookings Institution President John Allen, both of whom have emerged as contemporary leaders on the front line to develop a politics that confronts some of the more perverse effects of technological innovation. As questions surrounding the effects of labor automation continue to garner more attention, the most popular solutions tend to take on at least one of two forms: education or social security. Ms. Sturgeon and Mr. Allen’s suggestions are therefore an apt encapsulation of the nature of the debate about how best to address technological displacement; the former discusses social security and the latter, education. Mr. Allen argues for a revaluation of modern education and training programs for workers and youths. He proposes that America’s continued dominance requires a strong investment in education programs that emphasize, for example, artificial intelligence, big data analytics, and super-computing. Meanwhile Ms. Sturgeon provides a strong case for considering a universal basic income as a possible approach to curtail the effects of labor automation on inequality. She highlights Scotland’s experiments with such a proposal and underscores the need for bold leadership to develop a new approach to social security befitting of a modern and more technological advanced era. Although this semester’s issue of JPPE is centered on the question of technological disruption, it also features essays from undergraduates on a wide range of topics. One piece discusses the relationship between private companies and US cybersecurity policy. Another considers whether secession is a viable solution to the Georgian-South Ossetian conflict. And, in Moral Manipulation, a student considers the ethics of corporate advertising campaigns through a Kantian paradigm. The Brown University Journal of Philosophy, Politics, and Economics is deeply proud of both the feature articles and student essays published in this issue. As students— from Providence to Beijing— begin to grapple with a rapidly changing economy and socio-political climate, the number of novel challenges the rising generation faces is great. And in the Journal you are now reading, students and world leaders around the world provide a great number of equally novel solutions.

Sheldon Whitehouse is the junior United States Senator from Rhode Island. A Democrat, Sen. Whitehouse was elected in 2007, after having served as the Attorney General of Rhode Island between 1999 and 2003. He takes an active interest in environmental issues, advocating the need to find solutions to *Feature* Sheldon Whitehouse Sheldon Whitehouse is the junior United States Senator from Rhode Island. A Democrat, Sen. Whitehouse was elected in 2007, after having served as the Attorney General of Rhode Island between 1999 and 2003. He takes an active interest in environmental issues, advocating the need to find solutions to climate change. As of March 2018, Sen. Whitehouse gave over 200 speeches on the topic, urging his collogues to take concrete action. Spring 2019 Download full text PDF (3 pages) Every week that Congress is in session, I head to the Senate floor to urge my colleagues to take action on preventing climate change. In more than 225 of these speeches delivered since 2012, I have emphasized the mounting scientific evidence that our carbon pollution is driving dangerous changes in the atmosphere and oceans. I have also called out the powerful fossil fuel industry, which the International Monetary Fund reports enjoys a nearly $700 billion annual subsidy just in the United States. That immense conflict of interest—protecting that subsidy—is the reason the industry has marshalled its massive resources to promote climate change denial and prevent Congress from doing anything to reduce our dependence on dirty energy. Under President Donald Trump, former industry operatives fill executive branch posts, working to roll back climate protections. When the administration released its legally mandated National Climate Assessment in November, officials timed it for Black Friday during the Thanksgiving holiday, when it would be unlikely to get public attention. The report, written by 13 federal agencies, described the monumental damage the United States faces from climate change. It contradicted nearly every assertion Trump and his fossil-fuel-flunky Cabinet have made about climate change. Tellingly, the administration tried to bury the report, rather than contest it. That may be because the science of climate change is incontrovertible. (Back in 2009, even Donald Trump said it was “irrefutable.”) Damage from climate change is already occurring. There is no credible natural explanation. Human activity is the dominant cause. Future damage from further warming will be worse than we previously thought. Economies will suffer. And as the report declares, we are almost out of time to prevent the worst consequences of climate change. The effects of climate change are felt in every corner of the nation. From the Ocean State, we’re already seeing sea levels rise, as oceans warm and land ice melts. If fossil fuel emissions are not constrained, the National Climate Assessment says, “many coastal communities will be transformed by the latter part of this century.” Along coasts, fisheries, tourism, human health, even public safety are under threat from increasingly extreme weather events and rising seas. Out West, “more frequent and larger wildfires, combined with increasing development at the wildland-urban interface portend increasing risks to property and human life.” We need to look no further than the massive wildfires Californians battled last year for stark evidence. More than 100 million people in the U.S. live with poor air quality, and climate change will “worsen existing air pollution levels.” Increased wildfire smoke heightens respiratory and cardiovascular problems. With higher temperatures, asthma and hay fever rise. Groundwater supplies have declined over the last century, and the decrease is accelerating. “Significant changes in water quantity and quality are evident across the country,” the report finds. The government assessment finds that Midwest farmers take a big hit: warmer, wetter, and more humid conditions from climate change; greater incidence of crop disease, and more pests; worsened conditions for stored grain. During the growing season, the Midwest will see temperatures climb more than in any other region of the U.S. Climate change will “disrupt many areas of life,” the report concludes, hurting the U.S. economy, affecting trade, and exacerbating overseas conflicts for our military. Costs will be high: “With continued growth in emissions at historic rates, annual losses in some economic sectors are projected to reach hundreds of billions of dollars by the end of the century—more than the current gross domestic product of many U.S. states.” Danger warnings already flash in some economic sectors. The huge federal home loan corporation Freddie Mac has warned of a coastal property value crash, suggesting economic losses from climate change are likely to exceed those of the housing crisis and Great Recession. The Bank of England, as a financial regulator, is warning of a “carbon asset bubble.” The solution to climate change is to decarbonize, invest more in renewables, and broaden our national energy portfolio. A carbon price would allow this big shift to happen, all while generating revenues that could be cycled back to citizens, and help the hardest-hit areas of transition. The smart move we need to make does not have to be painful. It can actually be a big economic win. Nobel Prize winner Joseph Stiglitz has testified: “Retrofitting the global economy for climate change would help to restore aggregate demand and growth. Climate policies, if well designed and implemented, are consistent with growth, development, and poverty reduction. The transition to a low-carbon economy is potentially a powerful, attractive, and sustainable growth story, marked by higher resilience, more innovation, more livable cities, robust agriculture, and stronger ecosystems.” Or we could do it the hard way, continuing to do the fossil fuel industry’s bidding and racking up the dire economic consequences of flooding, drought, wildfires, and stronger storms. The status quo is not safe. Which way we now go depends on whether Congress can put the interests of our people ahead of the interests of the polluters. The record is not good, I’m afraid. Since the Supreme Court’s disastrous Citizens United decision, which unleashed unlimited corporate money into our elections, the politics of climate change is a tale of industry capture and control. So far, despite the industry’s massive conflict of interest and provable pattern of deception, and despite clear warnings from scientists and economists, the Republican Party has proven itself incapable of telling the fossil fuel industry “no.” So it doesn’t look good. But the climate report does say we still have time—if we act fast. There is one major development gives me great hope for the future. Survey after survey shows that the generation coming of political age today overwhelmingly supports taking action on climate change. They have longer to live on this planet than members of my generation, and they are determined to make it a better place. I expect they will. I’ll close with a reference to The Gathering Storm, Winston Churchill’s legendary book about a previous failure to heed warnings. Churchill quoted a poem, of a train bound for destruction, rushing through the night, the engineer asleep at the controls as disaster looms: “Who is in charge of the clattering train? The axles creak, and the couplings strain. . . . the pace is hot, and the points are near, [but] Sleep hath deadened the driver’s ear; And signals flash through the night in vain. Death is in charge of the clattering train!” We are that sleeping driver; the signals of a changing climate flash at us, so far in vain. It’s time to wake up.

John Taylor and Ben Bernanke on the Great Recession Who Was Right About What Went Wrong? Mikael Hemlin University of Gothenburg University of Oxford London School of Economics Author Hans Lei Leonardo Moraveg Neil Sehgal Editors Fall 2019 Download full text PDF (8 pages) In the autumn of 2007, the United States’ housing market collapsed, pushing the world economy to the brink of disaster. In the US, unemployment rates soared, trillions of dollars of wealth disappeared, and millions of Americans lost their homes in what is generally considered the most severe recession since the Great Depression of the 1930’s. In the aftermath, economists have diligently discussed the properties of the crisis, asking if it could have been prevented and if policymakers could have responded more prudently. The American economist John Taylor has accused US policymakers of paving the way for the housing bubble by conducting an excessively loose monetary policy in the years leading up to the crash, and of prolonging the crisis by responding with measures based on premises that were essentially misguided. Conversely, Ben Bernanke, then Chairman of the Federal Reserve and one of the main targets of Taylor’s critique, offers an opposing view. According to Bernanke, the low federal funds rates during the years 2002–2006 were sound, and did not contribute to the inflation of the housing market to the extent that Taylor describes. Rather, Bernanke claims, it was mainly regulatory flaws that caused the financial collapse, and the actions taken by policymakers prevented the financial system from imploding completely. This essay makes the argument that although monetary policy played a part in the build-up to the crash, it was by no means a defining factor. What sets the Great Recession apart from other economic downturns is the regulatory setting in which the housing bubble developed and the crisis unfolded. As such, the governors of the Federal Reserve are not culpable for the crisis’ occurrence. They, along with the US Treasury, are nevertheless culpable for the misguided policies that were enacted to resolve the situation. Much like Taylor suggests, the measures that were undertaken by the authorities rested on the false presumption that it was lack of liquidity rather than the persistence of counterparty risk that protracted the crisis. The situation could have been dealt with much more efficiently were it not for these misconceptions. Neither Taylor’s nor Bernanke’s argument is convincing on all counts. Rather, it is a combination of the two that offers the most accurate account of what happened. One of the main points of disagreement between Taylor and Bernanke is the role of the Federal Reserve’s loose monetary policy during the years 2002–2006 in inflating the housing market. While Taylor is right in claiming that excessively low interest rates generally accommodate the creation of bubbles, he wrongly alleges that his rule for monetary policy, the Taylor Rule, is detailed enough to work as a reference point for how monetary policy should be conducted, regardless of context. Indeed, as Bernanke argues, the monetary situation in the US in the period 2002–2006 was complex in ways that are unaccounted for in the Taylor Rule. For example, the recovery after the dot-com bubble burst in 2001 was rapid, but did not push down unemployment to the extent that conventional wisdom would suggest. The Taylor Rule does not explicitly account for unemployment, but instead expects it to follow inflation and output as described by Okun’s law and the Phillips curve. Taking into consideration the low inflation rates of the years in question, Bernanke’s argument that raising the FFR at that time would have been deflationary is hardly unfounded. Indeed, while mainstream economic theory would have predicted unemployment to diminish as the economy recovered after 2001, it would also have predicted inflation to fall to very low levels had the Federal Reserve raised the FFR over the period that Taylor suggests. Additionally, as Bernanke points out, the sharp increases in housing prices started in 1998, well before the period of the allegedly too loose monetary policy. Taken together, the evidence above indicates that while the low interest rates before the crisis played a role in inflating the housing market, it was not a major factor. The economic indicators of the time were ambiguous, and the Federal Reserve chose a policy path associated with avoiding the deflationary trap that had suppressed the Japanese economy over the past decades. Nevertheless, the Fed could have better appreciated the instability of the housing market and started raising interest rates in time to prevent the crash from turning into a worldwide financial disaster. If the FFR had been raised a couple of years earlier, the concealed risk in the securities markets could have been exposed without risking a system collapse. In such a scenario, it is plausible that the average creditworthiness of borrowers would have been higher, as lenders would not have had enough time to work their way down to the absolute bottom of the income/asset brackets. In Hyman Minsky’s words, financial practice would not yet have degenerated from “speculative finance” to “Ponzi finance.” As such, the mortgage default rates and banks’ leverage ratios would have been lower, and the recession more manageable. While monetary policy leading up to the crisis did contribute to its onset, the circumstances that magnified the crisis to a global collapse emerged as a result of the government’s exceedingly poor regulatory oversight. Taylor finds that the countries where housing prices rose the steepest were also the ones that deviated the most from his monetary policy rule. He argues that this serves as evidence that the Federal Reserve’s lax monetary policy played a significant role in setting the stage for the crisis. While this statement likely has some truth to it, it suffers from several shortcomings. As mentioned earlier, Bernanke underscores that the housing boom started in 1998 when the FFR was well over 5 percent. Against this background, it is more likely that the regulatory situation both in the US and elsewhere is to blame for the housing boom and subsequent crisis. In 1999, around the same time that Bernanke alleges the boom started, the Clinton administration partially repealed the Banking Act of 1933 (or the Glass-Steagall Act). The act was adopted after the Great Depression to improve financial stability, and essentially separated investment banks and hedge funds from commercial banks. After the repeal, it became legal for financial institutions of all types to merge, thereby making them “too big to fail” and allowing them to engage in larger-scale speculation. This paved the way for a moral hazard and exposed depositors to speculative risk in the process. In addition, the partial repeal failed to give the Securities and Exchange Commission authority to regulate and scrutinise financial institutions, thus allowing for the creation of riskier and ever-more opaque derivatives. As such, the abolishment of parts of the Glass-Steagall Act drastically increased the scale of speculative operations and weakened regulatory oversight, thus shrouding the securities markets in ignorance. Taylor elegantly compares the ensuing situation to a game of hearts, but with many queens of spades instead of just one. Everybody knew that most financial institutions’ balance sheets were riddled with queens of spades, i.e. toxic assets. The problem was that when the crisis hit, nobody could distinguish the toxic assets from the non-toxic ones, and thus, all assets of a kind sharply diminished in value. The indistinguishability of safe mortgage-backed securities from risky ones was in part due to the complexity of the financial instruments in question, and in part due to the failure of the rating agencies to accurately evaluate the risk of the constituent mortgages (Crotty, 2009). This is an issue of poor oversight as well; the rating agencies evaluated the riskiness of loans under the pressure of competition, and therefore consistently gave customers (e.g. banks) the ratings they required to sell off the loans as quickly as possible. Since there were no regulatory mechanisms in place to prevent this from becoming standard practice, it became hugely profitable for banks to grant loans to more or less anyone. The expansive access to credit led the housing market to boom. It is also worth mentioning that the expected future values of the homes that the mortgages financed were included as collateral in the risk evaluations. As such, the stability of the financial system was built on the premise that the US housing market could continue to boom indefinitely. This indicates that it was poor oversight, not lax monetary policy, that paved the way for the housing bubble and the subsequent crisis once the bubble burst. In the wake of the crisis, when the flow of financial transactions had frozen and market interest rates had skyrocketed due to the increased uncertainty and risk, the Federal Reserve and the US Treasury set out to stimulate the economy to prevent it from collapsing altogether. Based on what measures the policymakers chose to enact, it seems they diagnosed the problem to be insufficient liquidity. Taylor correctly claims that they were mistaken—it was excessive counterparty risk, not liquidity, that petrified the financial markets. Among other things, policymakers tried to stimulate aggregate demand by giving out over 100 billion USD in cash to US households. The effects of these cash infusions quickly subsided and had little to no effect in terms of economic recovery. Next, they tried to reduce the financial friction in the system by adopting the so-called Troubled Asset Relief Programme of around 700 billion USD. As the name suggests, the programme sought to relieve troubled financial institutions of bad assets. However, the legislative text lacked a predictable framework as to what kinds of assets would be bought up, at what prices, and what the targeted institutions should do with the money. The consequences were that uncertainty and counterparty risk persisted, and that most of the money was used to buy US Treasury bonds and other safe assets that did not reduce the financial friction in the system (Taylor, 2009). Essentially, the mistake that the policymakers made was to conceive of the crisis as one of liquidity rather than counterparty risk. If counterparty risk in the system is high, then financial friction is high, and if financial friction is high, then neither monetary policy nor fiscal stimulus can restart the economy. This is because the increased risk offsets the effects of any lowering of the FFR or an increase in aggregate demand. Had the problem been diagnosed as excessive counterparty risk from the outset, then predictable and targeted quantitative easing could have been used immediately to remove the toxic assets from the system, thereby decreasing risk and uncertainty. Eventually, quantitative easing was used, but it could have been done much earlier (Taylor, 2009). Neither Taylor nor Bernanke provides a satisfactory account of what went wrong before and during the Great Recession. Taylor is mistaken in claiming that the Federal Reserve’s lax monetary policy in the years leading up to the housing bust is to blame for the crisis. While this might have played a minor role, the fact that the boom began under rather strict monetary conditions and that the Federal Reserve had a strong rationale for its chosen policy path suggests that Bernanke is right that it was inadequate regulation that paved the way for the crash. Nevertheless, Taylor’s critique of the interventions that Bernanke’s Federal Reserve undertook to resolve the crisis is justified. Had it not been for Bernanke’s and other policymakers’ misconception of the crisis as a liquidity shortage rather than an issue of counterparty risk, the recession would have been much less painful. Thus, on a concluding note, future policymakers should enhance the discretion of regulatory authorities to prevent a similar situation from emerging again, and improve the targeting of interventions in the event of a crisis to ensure that they are potent enough to produce the desired effect. Works Cited Bernanke, Ben S. “Monetary Policy and the Housing Bubble.” Board of Governors of the Federal Reserve System, January 03, 2010. www.federalreserve.gov/newsevents/speech/bernanke20100103a.htm. Crotty, James. “Structural causes of the global financial crisis: a critical assessment of the ‘new financial architecture’,” Cambridge Journal of Economics 33, no. 4, 2009, pp. 563-580. doi.org/10.1093/cje/bep023. Dash, Eric. “A Stormy Decade for Citi Since Travelers Merge,” New York Times. April 03, 2008, www.nytimes.com/2008/04/03/business/03citi.html. FRED. “Effective Federal Funds Rate,” Last accessed November 15, 2018. fred.stlouisfed.org/series/FEDFUNDS. FRED. “S&P/Case-Shiller U.S. National Home Price Index,” fred.stlouisfed.org/series/CSUSHPINSA . Accessed November 15, 2018. Gorton, Gary, and Guillermo Ordoñez. "Collateral Crises." American Economic Review, vol. 104, no. 2, February 2014, pp. 343-78. dx.doi.org/10.1257/aer.104.2.343. Greenwood, Robin, and David Scharfstein. “The Growth of Finance.” Journal of Economic Perspectives 27, no. 2, Spring 2013, pp. 3–28. dx.doi.org/10.1257/jep.27.2.3. Jones, Charles I. Macroeconomics. 4th ed. New York, W.W. Norton & Company, 2018. Kaufman, George G. “Too big to fail in banking: What does it mean?” LSE Financial Markets Group Special Paper Series, Special paper 22, June 2013. www.lse.ac.uk/fmg/assets/documents/papers/special-papers/SP222.pdf. Krugman, Paul. The Return of Depression Economics and the Crisis of 2008. New York, W.W. Norton & Company, 2008. Maues, Julia. “Banking Act of 1933 (Glass-Steagall),” Federal Reserve History. November 22, 2013, https://www.federalreservehistory.org/essays/glass_steagall_act. Miller, Richard A. “Minsky’s financial instability hypothesis and the role of equity: The accounting behind hedge, speculative, and Ponzi finance.” Journal of Post-Keynesian Economics, vol. 41, no. 1, 2018, pp. 126–138. doi.org/10.1080/01603477.2017.1392870. Taylor, John B. “Economic policy and the financial crisis: An empirical analysis of what went wrong.” Critical Review, vol. 21, no. 2-3, January 2009, pp. 341–364. doi.org/10.1080/08913810902974865. Trading Economics. “United States Unemployment Rate,” tradingeconomics.com/united-states/unemployment-rate . Accessed November 15, 2018.

The Brown University Journal of Philosophy, Politics, and Economics (JPPE) is a peer reviewed academic journal for undergraduate and graduate students that is sponsored by the Political Theory Project and the Philosophy, Politics, and Economics Society Program at Brown University. The Brown Journal of Philosophy, Politics & Economics Volume IV, Issue I scroll to view articles Volume IV Issue I Philosophy Authenticating Authenticity Authenticity as Commitment, Temporally Extended Agency, and Practical Identity Kimberly Ramos Can Pascal Convert the Libertine? An Analysis of the Evaluative Commitment Entailed by Pascal’s Wager Neti Linzer The Growing Incoherence of Our Higher Values Aash Mukerji The Necessity of Perspective A Nietzschean Critique of Historical Materialism and Political Meta-Narratives Oliver Hicks Read More Politics The Unchurching of Black Lives Matter The Evolving Role of Faith in The Fight for Racial Justice Anna Savo-Matthews From Bowers to Obergefell The US Supreme Court’s Erratic, Yet Correct, Jurisprudence on Gay Rights Sydney White Predictive Algorithms in the Criminal Justice System Evaluating the Racial Bias Objection Rebecca Berman Read More Economics God Save the Fish The Abyss of Electoral Politics in Trade Talks––a Brexit Case Study Eleanor Ruscitti The Black Bourgeoisie The Chief Propagators of “Buy Black” and Black Capitalism Noah Tesfaye Breaking Big Ag Examining the Non-Consolidation of China’s Farms Noah Cohen Read More Applications for JPPE Now open! See Available Positions

A Death Sentence Beyond Death Row: Helling v. McKinney and the Constitutionality of Solitary Confinement Hallie Sternblitz Author Lachlan Edwards Aditi Bhattacharjya Editors Originally written for U.S. Magistrate Judge Zia M. Faruqui & Assistant U.S. Attorney Olivia B. Hinerfeld Abstract On any given day, there are 80,000 to 120,000 Americans living in solitary confinement. Restricted to their cells for twenty-two to twenty-four hours a day, these inmates are deprived of human interaction for days, weeks, years, or even decades. While the practice is intended as a means of protection for the general prison population or vulnerable inmates, researchers have found extreme and irreversible psychological damage in inmates who were placed in an isolated unit for both short and long periods of time. In fact, Dr. Grassian, a psychiatrist at Harvard Medical School, determined that there was a specific psychiatric disorder associated with solitary confinement, which is now referred to as Special Housing Unit (SHU) Syndrome. Others have since found higher rates of suicide, self-harm, violence, and premature death associated with this form of isolation. Though the practice has become a longstanding custom in American prisons, I argue that solitary confinement is unconstitutional, as it violates the Eighth Amendment’s prohibition of cruel and unusual punishment by subjecting inmates to serious and unreasonable dangers to their future health and safety. Through a two-pronged parallel with Helling v. McKinney , a SCOTUS case in which a former inmate successfully defended his freedom from cruel and unusual punishment after being subjected to secondhand smoke while incarcerated, I demonstrate that there is clear precedent for ruling the practice unconstitutional. Here, I employ the Deliberate Indifference Doctrine as well as the previous rulings that informed it to establish the application of Helling v. McKinney to the case of solitary confinement. Finally, I conclude with alternatives that better achieve solitary confinement’s intended outcomes. A timid Boy Scout with a knack for mathematics and writing, Benjamin van Zandt was sentenced to four years in prison for a property crime at age seventeen. While incarcerated, he sought out counseling, coursework, and several other opportunities to fulfill his intellectual potential. After being named valedictorian of his inmate GED program, he eventually enrolled in the Bard College Prison Initiative to begin his college degree. Despite his model behavior, he was caught bringing a piece of bread from the prison cafeteria back to his cell and was immediately transferred to New York’s Fishkill prison as a consequence. There, he was repeatedly harassed, beaten, and sexually assaulted by inmates twice his age, most of whom were seasoned criminals dominating the prison network. Still a reserved adolescent, Van Zandt was immediately preyed upon and coerced into being a carrier of contraband. As a result, he was placed in solitary confinement. Ten days later, he was found hanging from his sheets and shoelaces. Introduction: What is Solitary Confinement? On any given day, there are 80,000 to 120,000 Americans living in solitary confinement. Restricted to their cells for twenty-two to twenty-four hours a day, these inmates are deprived of human interaction for days, weeks, years, or even decades. They are often denied reading material, natural light, visitation, and participation in group activities. Though originally a pacifist Quaker initiative led by Benjamin Franklin the late 1700s meant to be an opportunity for spiritual reflection and moral contemplation, solitary confinement has quickly been weaponized in the U.S. as a disciplinary act meant to maintain order and deter violence within the general prison population. Today, it is common practice to move inmates to solitary confinement for three primary reasons: (1) discipline for nonviolent transgressions, such as possessing contraband or insolence toward a prison official, (2) protection of others due to an inmate exhibiting violent behavior or the threat of violent behavior, or (3) protection of an inmate who is in danger of being victimized by the violent behavior of inmates in the general prison population. Thus, any inmate regardless of their behavior while incarcerated could be subjected to solitary confinement, which is often the case for LGBTQ+, neurodivergent, or mentally ill inmates, as well as inmates of color. In fact, one study indicates that 11% of all black men born in the late 1980s experienced solitary confinement by their thirty-second birthday. This disproportionality partially stems from the bias of prison officials, who often allow an inmate’s race, mental illness, or other identifying factor to dictate their perception of the events. Despite its protective intent, solitary confinement has been shown to amplify rates of violent recidivism. This is a direct result of the mental health issues caused from extreme solitude. Thus, the motivations for placing inmates in Special Housing Units (SHU), a euphemistic title for solitary confinement, are void. However, in this paper, I will focus not on why the U.S. should terminate all solitary confinement units but why it must . Shown through a parallel analysis with Helling v. McKinney , I argue that solitary confinement is an unconstitutional practice, as it violates the Eighth Amendment’s prohibition of cruel and unusual punishment by subjecting inmates to serious and unreasonable dangers to their future health and safety. To support this argument, I will first provide an overview of the inadequacies of legal action taken against the extreme isolation in prisons thus far. Then, I will dive into the case of Helling v. McKinney and its two-pronged application to the practice of solitary confinement. Finally, I will introduce alternative methods of accomplishing the intended goals of SHUs that will facilitate the realization of ruling solitary confinement unconstitutional. Looking through a Legal Lens: Eighth Amendment Implications The Eighth Amendment to the U.S. Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Both the most controversial and most subjective clause, cruel and unusual punishment is at the forefront of modern debates on penitentiary justice. Originally, the phrase was intended to prevent torture as a technique of coerced confession or simply as a punishment. It was also meant to outlaw the use of barbaric instruments and public humiliation in formal sentencing. Today, the amendment is commonly employed for criminal defendants facing excessive bail or lengthy sentences at a young age. However, its use as a preventative measure against torture is often overlooked due to the lack of resources provided to victims subjected to torture during incarceration. However, the tide of Eighth Amendment cases may be shifting towards an inter-prison perspective, which has the potential to include solitary confinement. In the 2012 class action suit Ashker v. Governor of California , thousands of plaintiffs subjected to long periods of isolation in SHUs across the state due to alleged gang membership, 78 of whom spent over 20 years in solitude, sued the governor for violating their Eighth Amendment freedom from cruel and unusual punishment. They eventually agreed to a settlement that required the state to reduce their SHU population both by capacity and maximum sentence length, remove gang membership as a qualification to be placed there, and provide alternatives for those unable to serve their sentence in the general prison population. However, since this settlement, the state of California has repeatedly violated the terms and minimal change has emerged. Similarly, in Jensen v. Thornell (2012), Arizona inmates in isolation units sued for changes to the prison healthcare system, agreeing to a settlement by which the Arizona government had no intention of abiding. As such, the District Court judge rescinded approval of the settlement, bringing the parties back to trial in 2021 with new guidelines for managing medical care and health-related conditions in the state’s isolation units. Along with a handful of others, these two cases show the inadequacy of litigation over the constitutionality of solitary confinement in civil court. Though the plaintiffs may have won their cases, little has been done to reform SHUs, and tens of thousands of people remain subject to these abusive conditions daily. According to UN Special Reporter on Torture Juan Mendez, any time in forced isolation longer than fifteen days is considered abusive by UN standards. Thus, torture and abuse are commonplace within American prisons, as the average SHU inmate spends one to three months in solitude, with the longest remaining there for over forty years. As such, I argue that reform is insufficient; solitary confinement is unconstitutional and must be outlawed. Helling v. McKinney : A Potential Path Forward The Supreme Court has already laid the groundwork for ruling that solitary confinement is an unconstitutional practice under the cruel and unusual punishment clause of the Eighth Amendment. Helling v. McKinney questions whether future health risks imposed by prison officials is a form of cruel and unusual punishment, and thus a violation of an inmate’s Eighth Amendment rights. In a Nevada state prison, William McKinney was placed in a cell with an inmate who smoked five packs of cigarettes each day. As a result, McKinney inhaled unhealthy levels of second-hand smoke, which he argued posed a serious risk to his current and future health. He sued the warden of the prison as well as several other prison officials for violating his Eighth Amendment freedom from cruel and unusual punishment. The federal Magistrate Judge ruled that the Eighth Amendment did not guarantee McKinney’s right to a smoke-free environment, arguing that McKinney failed to prove any serious medical needs that the prison neglected to address. However, the Ninth Circuit Court of Appeals reversed the federal Magistrate Judge’s decision, holding that McKinney should be given a second opportunity to prove that the levels of second-hand smoke constituted an unreasonable danger to his future health. Yet, during the litigation of Helling v. McKinney , SCOTUS ruled on Wilson v. Seiter , a case in which a formerly incarcerated individual claimed he experienced cruel and unusual punishment and sought financial reparations from two prison officials but lost the case because he did not prove the officials had a “culpable state of mind.” The justices held that conditions of incarceration or confinement that are not explicitly outlined in an inmate’s sentencing require a subjective component that comes from the Deliberate Indifference Doctrine. This doctrine was created in Estelle v. Gamble in 1974 in which SCOTUS held, “Deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.” Exerting “deliberate indifference” has been characterized by SCOTUS as a transgression greater than negligence but less than omission with malintent. Thus, the doctrine is rather subjective in application. Nonetheless, a new dimension was added to McKinney’s case. Now, prison officials could be held accountable for a lack of adequate action with knowledge of a serious health or safety risk to an inmate. Appealing all the way to the Supreme Court, McKinney found himself in a battle with the government over whether the Deliberate Indifference Doctrine applied only to current health and safety risks or future risks alike, as his case emphasized the future health issues resulting from extreme inhalation of second-hand smoke. SCOTUS sided with McKinney, affirming his right to sue under the cruel and unusual punishment clause of the Eighth Amendment and the Deliberate Indifference Doctrine. In the majority opinion, Justice Byron White argued that the doctrine in no way specified that it only applied to current health risks and should thus include future health and safety risks as well. As such, McKinney, despite not being sick at the time, successfully demonstrated a violation of his Eighth Amendment freedom from cruel and unusual punishment, as prison officials acted indifferently to his future health. Drawing a Parallel: Helling v. McKinney and Solitary Confinement Helling v. McKinney greatly expanded the rights of vulnerable inmates, as they can now sue for damages that they are likely to experience post-release. When considering the constitutionality of solitary confinement, one can clearly draw a parallel between second-hand smoke and the mental illnesses that directly result from isolation. For one, solitary confinement aligns with the qualifications to employ the Deliberate Indifference Doctrine stated in Wilson v. Seiter ; it is a condition of incarceration not explicitly stated in judicial sentencing. Once eligibility has been established, there are two axioms of Helling v. McKinney that solitary confinement must satisfy in order to prove that victims of SHUs have a reasonable case to sue prison officials for violating their Eighth Amendment freedom from cruel and unusual punishment: (1) solitary confinement poses a serious and unreasonable danger to the future health of inmates and (2) those overseeing SHUs exhibit deliberate indifference to said danger. Future Health Effects of Solitary Confinement Initial research on the psychological dangers of extreme isolation was funded by the Canadian Defense Research Board and eventually the U.S.’s Central Intelligence Agency in the early 1950s to harness a psychological warfare defense to combat the Soviets, who were brainwashing prisoners of war. Led by Dr. Donald Hebb at McGill University, student volunteers were placed in isolation boxes meant to deprive them of all their senses. Each student was to remain in the box for as long as they felt they could, only leaving to use the restroom and eat meals, during which a facilitator of the experiment would guide them. Dr. Hebb expected to observe changes in their behavior over the course of six weeks; however, the experiment only lasted six days. The results were jarring: the students complained of vivid hallucinations, “blank” periods in their minds, inability to write or solve a basic math problem, hyperrealism of external stimuli, new fears, separation of mind and body, and even the sensation of being hit with pellets. Dr. Hebb’s findings have since been weaponized as a punitive practice for convicted criminals. Though, opponents of solitary confinement have reclaimed his work and used it to demonstrate that solitary confinement is in fact cruel and unusual punishment. Since then, more research has emerged specifically studying the correlation between solitary confinement in prisons and mental illness. For instance, a study on incarceration in New York found that inmates in solitary confinement for any length of time were five times more likely to die by suicide and 3.2 times more likely to self-harm than an inmate in the general prison population. Similarly, a California study found that hypertension was three times more common among SHU inmates. Across the U.S., those subjected to solitary confinement for any length of time were 24% more likely to die within the first year after release, including 78% more likely by suicide and 54% more likely by homicide, demonstrating an increase in violence as a result of the very practice that was meant to curb it. Furthermore, they were 127% more likely to fatally overdose on opioids in the first two weeks following release. Similar research has been conducted to determine if short stays in solitary confinement would fulfill the intended purposes while avoiding the detrimental effects; however, this was not the case. One study only included subjects that had spent less than a week in solitary confinement, yet this group had significantly higher death rates from unnatural causes such as suicide, violence, and vehicular accidents than those who had only spent time in the general prison population. Dr. Stuart Grassian, a psychiatrist at Harvard Medical School, concentrated his research on the set of traits emerging in formerly solitarily-confined inmates post-release. After conducting several series of interviews and experiments, Dr. Grassian determined that there was a specific psychiatric disorder associated with solitary confinement, which is now referred to as SHU Syndrome. In a 2006 publication, he outlines the seven key symptoms consistent among nearly every inmate he studied: (1) hyperresponsivity to external stimuli, (2) perceptual distortions, illusions, and hallucinations, (3) panic attacks, (4) difficulties with thinking, concentration, and memory, (5) intrusive obsessional thoughts, (6) overt paranoia, and (7) impulse control. These symptoms are remarkably similar to those found in Dr. Hebb’s isolation experiment in 1951. Moreover, Dr. Grassian notes that this combination of reactions is unique to SHU Syndrome and cannot be found in nearly any other psychiatric disorder. He characterizes the condition as a form of an acute organic brain syndrome. Confirming this research, neuroscientist Huda Akil suggests that solitary confinement can permanently alter the structure of an inmate’s brain, as the functioning and structure of the human brain changes in response to environmental stimuli. As such, solitary confinement for any length of time can cause a distinct health defect that often permanently affects the inmate, even after release. Therefore, solitary confinement fulfills the first axiom presented in Helling v. McKinney , as it poses a significant and unreasonable danger to the future health of inmates. Deliberate Indifference in the Case of Solitary Confinement Wilson v. Seiter , which established that the Deliberate Indifference Doctrine in Estelle v. Gamble applies to conditions of prison confinement, cites Whitley v. Albers in its holding, stating “the ‘wantonness’ of conduct depends not on its effect on the prisoner, but on the constraints facing the official.” Therefore, the second axiom of applying the Helling v. McKinney precedent to the case of solitary confinement, which requires deliberate indifference on the part of prison officials, relies on the ability of prison officials to inhibit the placement of inmates in solitary confinement, which, as shown, is a grave danger to their future health. This proposition is fulfilled in two parts: (1) by demonstrating that prison officials have the capability to terminate or avoid placements in solitary confinement but deliberately choose to place inmates in SHUs and (2) by demonstrating that prison officials are likely aware of the health effects of extreme isolation but choose to exercise indifference. The decision to place an inmate in solitary confinement is almost entirely up to the discretion of guards and prison officials. As stated previously, inmates are sent into SHUs for a vast range of reasons, including for unprohibited behavior like talking back to a guard. As a result, a large portion of inmates in solitary confinement were placed there at the subjective discretion of a prison employee, despite never engaging in malicious behavior that would make them a danger to the general prison population. Instead, many inmates in SHUs are victims rather than perpetrators and are thus subjected to the rights violations of solitary confinement due to no actions of their own. This issue has been especially rampant in New York state prisons, where investigations show that much of the SHU population is constituted by victims of prison guard abuse, which can either be physical abuse or a guard’s abuse of power over the inmate. In fact, one investigation found 160 lawsuits of inmates who were sentenced to solitary confinement by guards who fabricated assault allegations. Often, these inmates were subjected to physical abuse at the hands of prison guards, some even resulting in permanent injury or death. However, this abusive network of guards is largely protected by their membership in an officers’ union, with which the state signed an agreement to allow arbitrators from the union to be the final determinator of an officer’s employment status. This means that when an inmate accuses a guard of abuse or misplacement in solitary confinement, the guard’s peers have the right to reinstate them in their position even if higher prison officials chose to terminate their employment. Consequently, 88% of the guards accused of fabricating reports to conceal abuse in the 160 lawsuits were reinstated in their roles, as only a court can overrule the decision of the arbitrators. This leads to a demoralizing cycle in which inmates are subjected to abuse, isolated from the general prison population, and then denied the ability to hold their abuser accountable, often leading to further abuse if they try. Once a guard places their victim in an SHU, they are usually the only form of human contact the inmate receives, thus leaving the inmate in an increasingly vulnerable position with no resource but their abuser for help. As such, a prison official can exploit their position of authority over inmates and send anyone who threatens that authority, whether it be their victims or someone who simply verbally offended them, to solitary confinement. This is not to say that all guards or prison officials have malintent in their discretion over SHU placement; yet enough are malicious and are protected by the system that the issue must be addressed. Due to the structural nature of SHUs, inmates’ placement in solitary confinement and thus their future health is often in the hands of prison guards who are neither trained mental health professionals nor judges determining the inmate’s sentence. Nonetheless, they are left to use their discretion in a life-or-death matter. As a result, placements in solitary confinement are the deliberate decision of prison officials, satisfying the first criteria of exercising deliberate indifference: the ability to terminate or avoid placing an inmate in a SHU but instead choosing to send or keep them there. Secondly, prison officials must have the knowledge that an inmate’s health will suffer as a result of placing them in solitary confinement in order to show culpability of indifference. This can be addressed by providing evidence that a prison official was aware of a health or safety risk but failed to act to resolve it. As previously stated, every prison official is in the position to act, which in the case of solitary confinement means removing an inmate from an SHU or avoiding placing them there in the first place. However, their knowledge of the risks involved is somewhat more difficult to prove. One way to establish their awareness of the practice’s dangers is through their direct experience working in a correctional facility. Research shows that prison officials are also physically and mentally affected by working in a solitary confinement unit. One study found that SHU correctional staff witness “intense human suffering” such as “smearing feces, ingesting objects, self-injury, violent outbursts” which causes “vicarious trauma” to the official. As a firsthand witness to the deterioration of inmates subjected to solitary confinement, any competent prison guard can recognize that the health and safety of the inmate are in danger as a result of extreme isolation. Furthermore, reports show that prison officials experience significantly increased stress levels when working in solitary confinement, providing them with empirical indicators of the mental risks associated with spending time in an SHU. Additionally, corrections officials assigned to solitary confinement units are at higher risk of heart disease, hypertension, PTSD, and suicide, which are some of the same health risks for isolated inmates. These rates were found to be significantly higher than both the national average and among individuals with other stressful jobs, such as the military or police force. Thus, knowledge of these personal health effects coupled with the visual sight of inmates suffering from the seven symptoms outlined in Dr. Grassian’s research of SHU Syndrome are clear indicators to prison officials of the dangerous consequences of solitary confinement. Moreover, there is a consensus among the American public that extreme isolation can be a danger to one’s health, as 86% of voters support removing inmates from solitary confinement at the first sign of an adverse health effect. This demonstrates that knowledge of the risks of solitary confinement is prevalent throughout the nation’s people, who are largely in consensus about the dangers of the practice. The deliberate indifference doctrine requires that prison officials deliberately choose to place inmates in solitary confinement over other alternatives, which has already been established, and also requires that the officials know that placing an inmate in solitary confinement will have negative health effects. Thus, this common knowledge paired with being a firsthand witness to symptoms of SHU Syndrome establishes that prison officials know the health and safety risks associated with solitary confinement, are indifferent to them, and deliberately choose to not prevent them, therefore satisfying the Deliberate Indifference Doctrine. Motivations to Outlaw Solitary Confinement As shown, solitary confinement poses a serious and unreasonable danger to the mental health of inmates and is a practice in which a prison official must exercise deliberate indifference, thus making it unconstitutional under the cruel and unusual punishment clause of the Eighth Amendment. Helling v. McKinney implies that any condition of confinement that puts the future health and safety of an inmate at risk and that a prison official knowingly ignores is a violation of the rights of the inmate guaranteed by the Constitution of the United States. Helling v. McKinney set an important precedent in the litigation of prisoners’ rights; however, solitary confinement remains a common practice in each of the fifty states despite the parallel that has been established. Moreover, based on the research provided, the future health risks of solitary confinement are arguably much more extreme than those of second-hand smoke inhalation, with a disturbing portion of inmates like Ben van Zandt not even surviving their sentence. Yet, being subjected to second-hand smoke has been regarded as a violation of the Eighth Amendment for nearly three decades, and solitary confinement remains commonplace. As such, it is time that SHUs across the nation are put on the stand and examined for their compliance with the Constitution of this country. As Helling v. McKinney stands, solitary confinement should be unconstitutional and must be outlawed. Moreover, solitary confinement is not currently adding any benefit to the functioning of American prisons or the rehabilitation of subjected inmates. The practice is employed to protect the general prison population from violent inmates, protect vulnerable inmates who are common targets among others, or discipline inmates who disrespect the rules or officials that govern the prison. However, solitary confinement does not actually achieve any of its intended goals. Rather, it has been found to exacerbate the very issues it sets out to solve. The vast majority of studies on the effects of solitary confinement on future inmate behavior and inter-inmate violence within the general prison population has reached a consensus that there is no statistically significant correlation. This is true for both crime frequency and intensity. In fact, one study found that solitary confinement increased rates of recidivism post-release. An even stronger correlation was found between time spent in solitary confinement and violent re-offenses, indicating that the community was less safe than it would have been in the absence of the practice. As such, SHUs are not fulfilling their intended goals of reducing inter-prison violence. Instead, they are subjecting up to 120,000 people to irreversible psychological damage on any given day. Alternative Solutions to Solitary Confinement Rather than continue this practice, the precedent set by Helling v. McKinney must be employed to rule solitary confinement unconstitutional under the cruel and unusual punishment clause of the Eighth Amendment. However, I acknowledge that inter-prison violence and rule violations must be addressed. I propose three alternatives: specialized units for inmates with mental illnesses, de-escalation training for prison staff, and increased programming. The state of New York has already begun implementing these practices through its Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, which was passed in 2021 and went into full effect in 2022. Prior to the ratification of this bill, the state began to reform its solitary confinement units by introducing the Clinical Alternative to Punitive Segregation, or CAPS, program. Instead of being punished for violating prison rules with isolation, inmates who exhibit serious mental illnesses are directed to the CAPS program where they receive in depth counseling, treatment, and rehabilitative intervention. As a result, the rates of self-harm for inmates who otherwise would have been sent to SHUs decreased drastically. Hence, specialized units, whether it be for inmates with mental illnesses or other groups that may be targets in the general prison population and thus require isolation, provide a realistic alternative to solitary confinement that maintains an inmate’s humanity and sociability while providing them the rehabilitative resources necessary to reenter society. Secondly, Crisis Intervention Training (CIT) for prison staff is a crucial method for creating safer communities within correctional facilities. One study found that prison officials who were trained in crisis management had a significantly decreased bias in the distribution of reported incidents. Furthermore, CIT officials were more likely to seek out less common and less severe alternative punishments rather than choose to send an inmate into isolation. As a result, less inmates were subjected to the cruel and unusual punishment of solitary confinement and were instead given the opportunity to rehabilitate themselves and discuss their actions. As such, de-escalation training for prison staff has the ability to change both the inequitable discrepancies and frequency of use that are associated with placement in SHUs. Finally, educational and transitional programming is key to the rehabilitation of inmates, especially those who have spent time in isolation. In one Minnesota facility, there has been a transition away from the isolating nature of solitary confinement towards the rehabilitative intention of placing an inmate in an SHU. This was primarily achieved through three programs: the introduction of Prison To Community (PTC) specialists, a companion program, and accessible treatment resources. For instance, an inmate who needed to be placed in an SHU would be assigned a PTC specialist to meet with them and discuss a plan to re-enter both the general prison population and society. Similarly, they would be given a hired companion inmate from the general prison population who would be screened to sit outside of their cell and keep them company while in isolation. This is beneficial for the SHU inmate and provides employment to the general population of inmates. Lastly, the isolated inmate would be given a variety of reading, audiovisual materials, and assignments related to addressing emotional, psychological, or behavioral issues, prompting the inmate to self-rehabilitate throughout their time in an SHU. While these programs are still not ideal in the sense that they do not eliminate the use of solitary confinement completely, they are a valuable step in transitioning prisons across the country from relying heavily on the practice to maintain order as they do now to terminating the practice in its entirety. These three alternatives provide a realistic path forward in the aftermath of ruling solitary confinement unconstitutional. Though it may require a shift in public attitude on the rights of inmates, the road to ending extreme isolation in prisons is clear and necessary. The case of solitary confinement, though more dire, parallels McKinney’s battle for his future health. As shown through its future health effects, the presence of deliberate indifference, and the strong precedent set in Helling v. McKinney , solitary confinement is a clear violation of the Eighth Amendment. The practice has existed unrightfully in this country for far too long, and it is time to rule on it for what it is: it is cruel, it is unusual, it is unconstitutional, and the Supreme Court ought to act accordingly. [Prisoners subject to solitary confinement] fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community. It became evident that some changes must be made in the system. – SCOTUS, 1890 References ACLU Staff. “Ashker v. 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