See Rebecca R. Ruiz, Attorney General Orders Tougher Sentences, Rolling Back Obama Policy, New York Times (May 12, 2017).
The U.S. Supreme Court recently agreed to hear a challenge to President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and an expanded version of the Deferred Action for Childhood Arrivals program (DACA). Texas and twenty-five other states sued the administration to prevent DAPA’s implementation on three grounds.
Here are some initial thoughts from Vanessa H. Merton, Professor of Law and Director of the Immigration Justice Clinic at Pace Law School, about the relevance of this ruling to the criminal justice community. She notes:
If the plaintiff states were to prevail in this case, it should mean that a citizen could sue a local district attorney for 1) failing to take care to faithfully execute the law because s/he has not rounded up and prosecuted to the maximum extent of the law every single litterer whose lawless littering may have diminished the value of my property, or 2) failing to enforce to the maximum – no plea-bargaining – every single inspection sticker violation, noncompliant equipment violation, or moving violation that might conceivably cause excess traffic and the risk of unsafe vehicles. As much as prosecutorial discretion can be abused, a world without this kind of prosecutorial discretion would be absurd and dysfunctional.
Ironically, the temporary suspension of deportation available in these Presidential executive-order programs would not be available to most people who have any significant involvement with the criminal justice system. No one with either a felony conviction or a conviction for many misdemeanors can qualify.
The adversarial system may be the best way for a society to adjudicate criminal charges to a result that will warrant public trust. But sometimes it feels like the US culture of adversarialness is just that – a pervasive method of dealing with everything that comes our way, and not simply in the courtroom. Our current political scene is certainly a reflection of that, as is the political gridlock.
A recent op-ed in the New York Times, titled President Obama’s Department of Injustice by Alec Karakatsanis, raises the question of whether our historical reliance on adversarialness – its intentional use for a good societal purpose – may have become reflexive, or unthinking, or may have simply gone too far.
On a similar topic, another example of cultural over-reaction, take a moment to view the July 26th episode of Last Week Tonight with John Oliver, in which Mr. Oliver addresses the phenomenon of mandatory minimum sentencing and President Obama’s recent grants (and denials) of clemency to some low level offenders serving mandatory minimums. In doing so, he “explains why we treat some turkeys better than most low-level offenders.”
On Monday, April 13, 2015 Pace Law School hosted a Symposium entitled Foundations of International Criminal Law, which was well attended by faculty, students, and staff. The symposium offered three thought-provoking discussion panels:
- Sources of International Criminal Law featuring the work of Professors Luis Chiesa (SUNY Buffalo Law School), Sasha Greenawalt (Pace Law School), Kevin Jon Heller (SOAS University of London), and Jens David Ohlin (Cornell Law School);
- International Obligation and Domestic Justice featuring the work of Professors Frédéric Mégret (McGill University), Sarah Nouwen (University of Cambridge), and Laurel Fletcher (University of California, Berkley Law); and
- Critical and Historical Perspectives featuring the work of Professors Sara Kendall (University of Kent Law School), Samuel Moyn (Harvard Law School), and Darryl Robinson (Queen’s University at Kingston).
In addition, as part of this symposium, Prof. Jens David Ohlin delivered the 27th annual Blaine Sloan Lecture entitled The Assault on International Law based on his book of the same title. The following are two students’ reflections summarizing this riveting lecture.
Defection Isn’t Working Guys: Cooperation as the (First) Best Choice
REFLECTION WRITTEN BY: Cassandra Castorino (’17), Pace Law School
Why should nation-states cooperate with one another, what role does international law play in multinational cooperation, and why is it significant? This three-part question was the fulcrum of Prof. Ohlin’s annual Blaine Sloan lecture.
Ohlin’s lecture presented an outline of his latest book, The Assault on International Law, in which he argues that international law must be complied with because the incentives to do so are present and persuasive and the benefits to be accrued are manifold and far-reaching. He avers that while it may be tempting for states to defect to gain seeming advantage (truly only a myopic one), it is international cooperation that offers the advantage for states. Abiding by international law not only creates less risk, but it also provides for a greater reward both in the short and long term. International institutions, conventions, and multilateral treaties, such as GATT and WTO, have already incentivized cooperation among states by reducing both the monetary and opportunity costs of cooperating, eliminating potential barriers to cooperation, and encouraging reciprocity of cooperation between competing states.
It is the United States withdrawal from international cooperation after 9/11 that triggered the need for a reevaluation of how our nation responds to its self-interests, Ohlin argues. The war against al-Qaeda brought about U.S. noncompliance with international law, particularly the torture policies and the drifting away from compliance with the Geneva Conventions, International Criminal Court, and United Nations. Ohlin urges the United States to follow his plan in order to awaken a shift from a self-motivated, minimally-gaining society, to one that willingly recognizes the value of abiding by international law. Profitability with respect to compliance of international law knows no bounds, Ohlin maintains.
Ohlin’s plan to revive U.S. compliance with international law is his own unique modification to the New Realists’ rational actors’ model that already exists in international relations theory. The New Realists’ model posits that states are sovereign and adopt their own mode of rational decision-making but that such decisions are guided only by national interests defined in terms of state power. This model is a self-motivated one – it urges states to act only pursuant to their own personal gain. Ohlin takes this plan of rationality and turns it against them. He strikes down the New Realists’ notions that states only act as rational actors when pursuing their own self-interest by redefining the ‘actor’ in the model. Ohlin suggests that states should act, not as states, but as humans, in assessing and carrying out their goals. Humans, unlike states under Realist theories, exhibit the propensity to remain faithful to the goals they devise because they know how salutary the effects will be once fully consummated. Seldom do humans reassess their main goal at each intermittent step to see whether or not defecting from their overall plan would provide for a higher return. Instead, even when humans veer off the set-out path to accomplish their goals, they only think of the end long-term goal and the high yield it will bring once carried out. In effect, the end goal exemplifies the true self-interest of the human actor.
Self-interested motivations run our world. Thus, applying Ohlin’s theory, if the effectuation of a long-term beneficial goal is motivated by self-interest, his plan works and promises gains both in the short- and long-term. If the State is kept as the actor in the rational model, however, self-interest can only be viewed through myopic, temporary gains that are sure to fall short in the long-run. If States were to adopt beneficial, long-term plans and complete the plan, as humans do, respect for and adherence to international law would likely not find itself in the precarious position it assumes today.
After hearing Ohlin’s plan of ‘human’ rationality for states, game theory notions, particularly that of the prisoner’s dilemma, immediately came to mind. By the end of his lecture, however, Ohlin successfully challenged the application of prisoner’s dilemma theory to international cooperation – now, it no longer holds in that context. The theory of prisoner’s dilemma says that although it is less risky and more gainful to always cooperate, rational actors acting in their own self-interest are still dissuaded from cooperating because there is a chance, albeit slim, that defecting provides the highest return. Prisoner’s dilemma relates to a scenario of 2 prisoners being interrogated: if both prisoners decide to cooperate and both either confess or stay silent, their time in prison will be shortened appreciably and they will likely receive the same sentencing. Conversely, if the two prisoners fail to cooperate and one confesses while the other one remains silent, the one who confesses may walk away free while the other one has to serve longer jail-time. Thus, the incentive to defect, if you think you’ll be successful, is high – one can potentially be absolved of all wrongdoing and spend no time in jail.
However, this theory only holds true if the theory of rationality is viewed through the lens of the New Realist framework. Ohlin has refashioned the self-interested rational actor model to make prisoner’s dilemma not applicable to cooperation with international law. If we apply Ohlin’s human plan of rationality to States we are dissuaded by the chance of ‘walking away free’ because, both in the short- and long-run, the defection is not as incentivized as cooperation is under international law. The natural instinct when complying with international law is to act like the human and follow through with the end goal. International law already incorporates mechanisms to discourage States from viewing defecting as beneficial. International law should be respected for all the benefits it bestows on States who choose to comply with it and the U.S. needs to give it another chance. Ironically, defecting has proven not to bring about a higher yield for our nation, bar none. It has led us astray from beneficial foreign policy goals and has threatened our position at the apex of world influence. Defection from international law, very plainly, is not working for the United States.
My hope is that Ohlin’s cogently argued and laudably innovative thesis receives the attention, praise, and actual implementation it so merits because the potential effect it could have on our nation’s choice of which lens to view its foreign policy may bring our nation back to its heyday of exceptionalism – yet this time around, provide for a lasting exceptionalism, achieved by different, more globally salutary means.
A Look Into the Assault on International Law
REFLECTION WRITTEN BY: Joseph Moravec (’17), Pace Law School
Professor Ohlin focused on three points. First, following the attacks of 9/11, the Bush Administration (namely its various legal counsels) sought to discredit international law in order to circumvent certain obligations under international law and pursue courses of intelligence gathering, drone use in extra-judicial killing and surveillance, and the institution of torture. Second, the theoretical disillusionment with international law in academia by New Realist thinkers furthered skepticism of international law in deciding whether the United States should adhere to its international legal obligations. Professor Ohlin argues that in theory and application the Bush Administration found ways to re-write the interpretation of U.S. obligations so as to do “all that was necessary” to fight the War on Terror. Finally, Prof. Ohlin countered this thinking with the argument that, had the United States worked to adhere to international law and pursued multilateral courses of action during the initial stages of the War on Terror, we may have seen significantly greater success in both defeating Al-Qaeda, as well as preventing the rise of other terror groups such as Al-Shabab in Somalia, Boko Haram in West Africa, or more recently the Islamic State in Iraq and Syria.
While Professor Ohlin’s rebuttal of New Realist thinking is cogent, I find his argument incomplete. His argument rests on an interpretation of Rational Choice Theory, stating that the United States in the past 15 years has moved to a short-run view of rational decision making. By pursuing courses of action in short-term self-interest, the U.S. is both not winning the War on Terror, but also not obtaining the best future outcome. If the U.S. were to pursue a long-term strategy of national security, Prof. Ohlin argues, it would naturally include adherence to international law and would result in greater long-run prosperity and security.
However, the argument rests on two assumptions concerning the nature of rationality that were not fully addressed during his lecture. First, Prof. Ohlin’s argument that all international actors would follow international law because it is in their long-term rational self-interest presupposes that all international actors are interested in the same long-term ends, namely the “good of their people.” During the lecture, Prof. Ohlin examined the Netherlands and North Korea. The Netherlands have done quite well adhering to international law while North Korea is one of the poorest States in the world. Leaving aside alternative historical, geographical, and political explanations for the failures of North Korea and the success of the Netherlands, it cannot be said that the political players in the Netherlands and North Korea have the same rational framework. In the Netherlands, democracy in itself dictates the “good of the people” as the ultimate goal of political power. At least in theory, democratic elections ensure that a democratic government will act rationally toward this future interest. However, the situation in North Korea is quite different – a military oligarchy and hereditary dictatorship where elites personally choose a successor. Whatever we may think about political philosophy, we must consider the rationality of North Korean actions from the perspective of those who hold the power to make foreign policy and political decisions. From that perspective, North Korea has done quite well not adhering to international laws, which would long ago have undermined the dynasty of elites in political and military leadership, making it rational not to follow international law. It cannot be said that all international actors (States) are rationally interested in the same ends, and thus it is unlikely that all actors would pursue the same course to achieve those ends.
Second, Prof. Ohlin’s argument assumes that all international actors have the same capacity and ability for rational decision-making. A metaphor of two chess players is illustrative. When I play chess, I plan a strategy four or five moves ahead. However, Grandmaster players often calculate fifteen to twenty moves in advance. If I were to play against a Grandmaster, we would both be thinking and moving in our own long-term self-interest towards the same goal (winning), but I would likely lose because I lack the capacity to calculate far enough into the future. Thus, the capacity for rational decision making is not always equal among all actors. Rational Choice Theory presumes that both actors are capable of understanding the problem in order to reach the best possible outcome. However, as with chess players, States are unequal in their capacities for rational decision making. In the U.S., we have thousands of universities, think tanks, government institutions, free press, one of the strongest military and economy, a greater control of many vital natural resources, and the third largest population – we are, in a way, one of a few “Grandmasters” of international political actors, making us capable to rationally plan long-term. On the other hand, a State such as North Korea has limited economic and social power and thus significantly lower capacity for long-term planning. Thus, North Korea is less likely to rationally plan on the same scale as the U.S. Even if we assume that adherence to international law were the most rational course of action, North Korea may still pursue a course of action which ignores international law because North Korea may lack the resources and institutional capacity to accurately forecast the best long-term policies. In fact, it does not follow that either actor will ultimately succeed in reaching a “best” strategy. Both States have different resources and capabilities, and even the strongest State may lack the capacity to plan and execute the “right” plan.
Even if international actors are not equal, it is at least established that the U.S. is the State capable of pursuing a truly rational best strategy. If a complete adherence to international legal obligation is the most rational choice for such a strategy, as Prof. Ohlin argues, then the diversion of U.S. foreign policy from international law during the War on Terror has been a diversion from truly rational thinking. Perhaps even the U.S. with all of its resources has lost some of its capacity for long-term strategy. While the debate continues, it is a difficult task to scrutinize 15 years of U.S. foreign policy in hindsight. However, the very fact that we have an academic debate on this topic is itself a testament to the freedom to think rationally and the institutional capacity to do so that we all enjoy in the United States. We should not waste either one.