13 Wake Forest L. Rev. Online 14

I. Introduction

Though the use of marijuana has been a very fiercely debated and divisive issue in the United States for nearly a century, the evolution of culture and developments in science have led to rapid shifts in public opinion about the use of marijuana for both recreational and medicinal purposes in recent years.[1] Medical marijuana in particular has had a meteoric rise in the last two decades in both acceptance as an alternative treatment for a number of chronic issues, as well as popularity as a safer alternative to traditional pharmaceuticals.[2] Among the highly diverse base of support for medical marijuana are advocates for a wide variety of groups, including cancer patients, children with epilepsy, glaucoma sufferers, and veterans who suffer from chronic ailments such as post-traumatic stress disorder (“PTSD”) and pain.[3] However, despite the meteoric rise of acceptance and popularity of medical marijuana, veterans, who remain among the groups most in need of such alternative treatments, experience many additional barriers to medical marijuana—even in states where it is legalized—that thwart access to these safer alternatives for their service-related injuries.[4]

This Comment will review the history, merits, benefits, and shortcomings of Senate Bill 1184, the “Veteran’s Medical Marijuana Safe Harbor Act” (the “Safe Harbor Act”), which is currently pending before the 117th Congress and is intended as an entry level solution to this dilemma.[5] First, this Comment will chronicle the history of marijuana in the U.S., its legal status, medical uses, and the juxtaposition of marijuana, veterans, and the U.S. Department of Veterans Affairs (“VA”) to provide a backdrop for the pending legislation. Next, in Part III, this Comment will explore the specific case for medical marijuana as a safer and more effective alternative treatment for veterans with PTSD and chronic pain to emphasize the nontrivial importance of the Safe Harbor Act’s passage. Finally, Parts IV and V include analysis of whether the passage of the Safe Harbor Act provides a sufficient solution for veterans’ access to medical marijuana, recommendations for improvement, and other potential implications for veterans.

II. History and Background

A full discussion of the merits and benefits of passing legislation to increase veterans’ access to medical marijuana first requires exploring how the current legal landscape of medical marijuana came to be. Though the road to understanding the full context of this conversation is a long and winding one, it starts with exploring the history of marijuana prohibition in the U.S.

Most Americans do not recall an America when marijuana was not prohibited. In fact, for most of our lifetimes, the media, government, and mainstream society has spent considerable capital demonizing marijuana, linking it with criminal activity, debauchery, and addiction.[6] The government campaigns evolved over time, but we all remember them from elementary, middle, and even high school. We remember vividly the “War on Drugs,” “McGruff the Crime Dog,” and every one of us, at some point, brought a “D.A.R.E.” sticker home from school after an impassioned lecture from a local police officer at school. Nearly all of us probably swore an oath to that officer, our teachers, our parents, and even our friends, that we would “never take drugs.” It is so engrained in our culture that it has practically become a rite of passage in America.

Nowadays, even in states where marijuana has been legalized, there is an aura of taboo that is still associated with its purchase and consumption.[7] Oddly enough, though, when the same individuals saunter across to street to the local bar and order a double pour of Jameson’s whiskey, no one gives it a second thought. The truth is, marijuana has been illegal and defamed for so long that many people who consume it legally probably still feel as though they are doing something forbidden when they do.

Moreover, few people have probably ever stopped to ask the question: “Why is marijuana illegal today?” The answer to that question is a surprising one, because, according to the most widely popular explanations, it did not even begin with marijuana.[8]

A. A Brief History of Marijuana Prohibition in the U.S.

There is no consensus about the exact development of marijuana prohibition, but one of the most popular theories about the history of marijuana prohibition is that it all began with industrial hemp.[9]

Now, one might rightfully wonder what hemp has to do with marijuana prohibition? It does seem an odd place to start. After all, hemp is a nonpsychoactive form of cannabis that contains practically nonexistent levels of THC, the ingredient responsible for the “high” feeling people get from marijuana.[10] Though it has no psychotropic effect, it has been a staple of cash crops in the U.S. from the time settlers first immigrated from Europe through the industrial revolution due to its suitability for a wide variety of uses.[11] Throughout history, hemp has been used for everything from paper and clothing manufacturing to construction and food products.[12] However, despite its popularity and suitability for these essential products, hemp’s competition with the powerful paper, pharmaceutical, textile, and gas and oil industries, fueled by bigotry and the political influence that comes with corporate America, was ultimately the catalyst that led to the campaign to criminalize marijuana.[13]

William Randolph Hearst was a newspaper mogul and well-known racist in the early 1900s, who best known for popularizing the “tabloid style” of sensational news reporting.[14] As a result of his natural dependance on paper to operate his empire, Hearst had a particular axe to grind with the hemp industry, and his access to his own personal newspaper gave him a prime “bully pulpit” from which to lobby.[15] By associating hemp with its THC-containing cousin cannabis, some creative marketing—renaming cannabis “marijuana”—capitalizing on the stereotypical association of marijuana with Mexican immigrants, and linking it to the racial undercurrent of immigrant crime, the opponents of hemp created a new public nemesis.[16] Examples of Hearst’s sensationalized and bigoted campaigns against marijuana, as a proxy for hemp, included, “Was it marijuana, the new Mexican drug, that nerved the murderous arm of Clara Phillips when she hammered out her victim’s life in Los Angeles? . . . THREE-FOURTHS OF THE CRIMES of violence in this country today are committed by DOPE SLAVES — that is a matter of cold record.”[17] Another article in one of Hearst’s papers proclaimed: “The fatal marihuana cigarette must be recognized as a DEADLY DRUG, and American children must be PROTECTED AGAINST IT.”[18]

The racist, anti-immigrant fueled campaign against marijuana—as a proxy for hemp—quickly spread across the country. Just a few years later, in 1936, forty-eight states had passed marijuana regulations.[19] In 1937, the federal government passed the Marijuana Tax Act of 1937, which did not ban marijuana outright but made it very difficult to legally possess or sell all forms of cannabis in the U.S.[20] The U.S. later included marijuana in the Narcotics Control Act of 1956 creating the first federal prohibition on marijuana, with penalties for first-time offenders ranging from two to ten years in prison and a fine of up to $20,000.[21] The escalation of marijuana prohibition continued until Congress passed the Controlled Substances Act of 1970 (“CSA”), which classified marijuana as a Schedule I drug with “no accepted medical use.”[22] This classification remains today as the primary barrier for not only legal consumption of marijuana in any state that has not legalized it, but also for scientists’ ability to freely research potential medical uses of cannabis.[23] Along the path to criminalizing marijuana, hemp, which has no psychotropic application whatsoever, also went “up in smoke” with its “wacky weed” cousin.[24]

B. Legal Status of Marijuana in the U.S.

In 1996, four decades after the paper industry’s campaign to stamp out its rural competition culminated in the “war on drugs,” the road to redemption for marijuana began in California.[25] The state’s Compassionate Use Act of 1996 was passed to allow the use of marijuana as an alternative treatment for patients with specific medical conditions, such as cancer.[26]

After California created the blueprint for legalized marijuana in 1996, albeit for the limited purpose of alternative medicine, the ensuing decades have witnessed dozens of other states following suit by legalizing or decriminalizing for both medical and recreational purposes.[27] Additionally, in December 2018, Congress passed a farm bill which officially paroled marijuana’s “vanilla” cousin (hemp) from the purgatory of federal prohibition.[28] The path to legalization, however, was not without many obstacles.

Despite the slow surge of legalization at the state level, the CSA remains the “supreme law of the land.”[29] Any constitutional scholar worth her salt knows that, under the Supremacy Clause, state laws that conflict with federal law are generally preempted and therefore void.[30] So, how does state legalization of marijuana square with the federal prohibition of it and the Supremacy Clause? The answer is surprisingly simple: Congress left a loophole in the CSA. According to Section 903, “Congress did not intend to entirely occupy the regulatory field concerning controlled substances or wholly supplant traditional state authority in the area.”[31] As a result, when adjudicating this particular provision, courts have consistently held it to mean that a state medical marijuana law is only in violation of the CSA if it is “physically impossible” to comply with both the state and federal law.[32] Because laws that exempt individuals from prosecution for possession of marijuana do not make it “impossible to comply” with both state and federal law or stand as an obstacle to Congress’s stated objectives, the “physically impossible” requirement is not met.[33]

Today, marijuana is still considered a Schedule I drug with “no accepted medical use” by the federal government.[34] However, the courts’ liberal statutory interpretation of the CSA has created a legal haven from the Supremacy Clause wherein states remain free to pass laws relating to marijuana, although they remain beholden to the clause under the majority of other federal laws.[35] As a result, marijuana is currently legal for adult use in eighteen states, and thirty-two states have decriminalized it.[36] Marijuana remains illegal in all forms in six states.[37] However, while just over one-third of the U.S. has fully embraced the legal use of recreational marijuana and fourteen states allow recreational marijuana to exist in the legal “grey area” of decriminalization, it is noteworthy that thirty-six states—almost three-quarters of the states—the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands have state-approved medical marijuana programs.[38]

When viewing the large disparity between the number of states where recreational marijuana has been explicitly legalized and the number of states and territories where medical marijuana has been explicitly legalized, it logically follows that, in general, the U.S. is markedly more accepting of medical marijuana than its recreational counterpart.[39] Though a polling of individuals, even those in states where marijuana remains illegal, would likely reveal much more liberal attitudes towards recreational marijuana than are reflected by the states’ legal statuses, the decidedly larger sovereign acceptance of medical marijuana is more significant.[40] While the threshold for individual acceptance of marijuana is quite low, the threshold for legislative acceptance of marijuana in general is high for a number of reasons, including decades of politicization, moral fearmongering, and antidrug campaigns.[41] Additionally, the inherent inefficiency of government makes passing any legislative change difficult, let alone legislation that counters fifty years of federal prohibition.[42] Thus, the fact that three-quarters of the country—including eighteen states that have not seen fit to accept legal recreational marijuana use—have legitimized medical marijuana says a lot of its use and place in society.

Having established the relative significance of medical marijuana in the U.S., it is under that umbrella of context from which the primary evaluation of this Comment—veterans and medical marijuana—will proceed.

C. Marijuana, Veterans, and the VA

With the chaotic withdrawal of the last troops and most citizens from Afghanistan in August 2021, the U.S. ended the longest war in American history.[43] Though the nearly twenty-year war, which served as the backdrop for the larger “Global War on Terror” and ushered in years of war in Iraq and conflict in many other countries, was a defining landscape for the “9/11 generation,” it was not a complete departure from historical norms.[44] The truth is, since its inception 245 years ago, the U.S. has only been at peace for a total of fifteen years.[45] Thus, for 230 years Americans have been fighting and dying in wars in places that many of us have only read about in books.[46] The human cost of war is often immeasurable, but it is quantifiable in many ways.

Since the start of war in Afghanistan in 2001, nearly 2.5 million Americans served in the wars on terror in Iraq and Afghanistan.[47] In total, there are more than seventeen million total veterans in the U.S., including veterans of previous conflicts.[48] Of those seventeen million veterans, nearly 4.7 million—approximately 28 percent—suffer from disabilities as a result of their military service.[49] Healing the wounds of war requires a substantial investment from the government. In 2019, the VA spent $218.39 billion on veterans’ benefits, including health care.[50]

For veterans with service-connected disabilities, the VA health care system is often their primary source of health care.[51] In fact, in 2016, 25.8 percent of working age veterans (732,000) did not have private health insurance and were solely dependent on the VA for all health care.[52] As a result, in 2016, 2.8 million working-age veterans used or were enrolled in VA health care systems,[53] and approximately 62 percent of all Iraq and Afghanistan veterans have used VA health care since October 1, 2001.[54] The most common diagnoses for treatment by the VA include musculoskeletal ailments and mental disorders, though most veterans have more than one diagnosis.[55] Though the physical toll that war takes is devastating, costs do not end there.

In 2019, 2.7 million veterans were either unemployed or not participating in the labor force.[56] For those who were employed, 1.14 million had an income at or below the poverty level.[57] Homelessness is also endemic amongst veterans, with nearly 40,000 homeless veterans on the street at any given time.[58] Veterans account for 11 percent of the homeless population in the U.S.,[59] though veterans only make up 7 percent of the population.[60] There is room for optimism on this front, though, as the number of veterans experiencing homelessness is down 40 percent since 2011.[61] That said, it must be noted that the leading causes of homelessness among veterans includes PTSD.[62] Most importantly, though, for indigent veterans, the VA health care system is often their only source of health care, mental health counseling, and addiction treatment, and veterans who rely solely on VA health care receive all of their prescription medications through the VA free of charge.[63]

In sum, it cannot be overstated that the U.S. has a large population of veterans who, by virtue of their personal choice to volunteer to support and defend the Constitution of the U.S., are hurt, disabled, aging, and in need of medical and mental health care to help heal the wounds they incurred in service to their country.[64] These wounds include physical ones that can be seen and often cause a lifetime of chronic pain and suffering.[65] Though these physical wounds can often be mended with surgery or other treatment, they still require daily medication to manage the pain and allow veterans to function.[66] Combat-related wounds also include invisible wounds that cannot be seen and more frequently result in a lifetime of emotional angst and suffering.[67] Of all the wounds that veterans suffer, invisible wounds are perhaps the worst type of wound because the etiology is complicated, and the treatment is even more so.[68] Veterans who are able and lucky enough to get help for their invisible wounds often require years of therapy and treatment, which typically requires a myriad of psychopharmaceuticals.[69]

While many of these veterans are at least partially dependent on the VA for their healthcare, it must be acknowledged that millions of veterans are solely dependent on the VA for healthcare, including hundreds of thousands without health insurance, millions who are unemployed or employed below the poverty level, and tens of thousands who are homeless due to conditions like PTSD.[70] Thus, by virtue of the large correlation between conditions like PTSD, unemployment, and poverty and being solely dependent on the VA for healthcare—including treatment, counseling, and medications—it must be noted that the veterans most in need are beholden to the VA and the rules by which the VA provides healthcare services.[71]

Against that backdrop, despite the relative acceptance of medical marijuana as an alternative medical treatment in the U.S. over the last several decades,[72] many veterans are trapped in a healthcare purgatory by the fact that they are beholden to the VA.[73] According to the VA’s official website, “The U.S. Department of Veterans Affairs is required to follow all federal laws including those regarding marijuana. As long as the Food and Drug Administration classifies marijuana as Schedule I VA health care providers may not recommend it or assist Veterans to obtain it.”[74] The VA clarifies further that, “VA clinicians may not complete paperwork/forms required for Veteran patients to participate in state-approved marijuana programs.”[75] Thus, even in a state where medical marijuana is legal, a veteran who is solely dependent on the VA for all of their healthcare and likely cannot afford to see a private physician, cannot even get assistance from their VA healthcare providers to obtain a legal prescription for medical marijuana.[76]

The VA goes on to explain that, though veterans are “encouraged to discuss marijuana use with their VA providers,” notably, VA providers “may not recommend medical marijuana” and may only prescribe medications that have been approved by the U.S. Food and Drug Administration (“FDA”) for medical use.[77] While the encouragement of veterans to “discuss marijuana use with their VA providers” does seem promising at first blush, the fact that VA clinicians cannot recommend medical marijuana serves as a substantial barrier to any meaningful conversation on the subject.[78] Thus, though well-meaning, the gesture ultimately rings very hollow for veterans in need.

Finally, the VA makes clear that, regardless of the legal status of medical marijuana in a particular state, it will not pay for medical marijuana prescriptions from any source, nor will VA pharmacies fill prescriptions for medical marijuana.[79] Based on the status of marijuana as a Schedule I substance under the CSA and the VA’s subsequent stance on medical marijuana, these seem like reasonable restrictions by a government agency. However, it is still worth noting that indigent veterans who might stand to benefit from medical marijuana and are solely dependent on the VA for their healthcare, including their prescriptions, have very few other viable legal options for obtaining or filling a medical marijuana prescription.[80]

On a positive note, the VA notes that “VA scientists may conduct research on marijuana benefits and risks, and potential for abuse, under regulatory approval.”[81] Additionally, the VA notes that veterans will not be denied benefits because of marijuana use.[82] This assurance likely serves as a good peace of mind for veterans who are able to obtain a medical marijuana prescription on their own or, regrettably, are self-medicating. However, anecdotal feedback from veterans shows that the VA’s directives and actual patient experiences sometimes differ with policies occasionally enforced more strictly or arbitrarily, depending on the location or the provider. [83]

Most importantly, though, while benefits cannot be denied, marijuana use—recreational or medical—can have other effects on veterans’ treatment by the VA.[84] Though the VA advertises a positive and accepting environment, it is worth noting that a veteran’s treatment plan is entirely at the discretion of the treating doctor.[85] In many cases, although doctors cannot deny treatment upon discovering that a veteran is using marijuana, they will taper patients off other scheduled substances, including painkillers, psychotropics, and sleeping medications, or even cut off the supply altogether.[86] This is often done out of a personal hostility and usually under the guise of guarding against “addictive behavior.”[87] Though the changes are not supposed to be punitive, they often have the look, feel, and effect of punishment, especially when the tapered or restricted medications were a necessary part of the veteran’s treatment.[88]

In some cases, the potential effects can extend beyond the veteran’s treatment. For example, veterans who use marijuana and even work within all of the rules of their state’s medical cannabis program, can suffer unintended consequences.[89] A veteran who works in the cannabis industry, such as a state-licensed dispensary, could be disqualified for a VA home loan, a valuable VA benefit.[90] Beyond that, marijuana use might also result in veterans’ disqualification for firearms permits or otherwise limit their ability to purchase a firearm.[91]

With so many veterans reliant on VA healthcare, the VA’s position poses several problems for veterans. First, veterans who rely solely on VA healthcare are also solely dependent on the VA for filling their prescriptions.[92] But even where medical marijuana is legal, a veteran cannot get medical marijuana—even if already prescribed for service-connected disabilities—through the VA, which means they cannot get a medical marijuana prescription at all.[93] Second, in cases where a prescription for medical marijuana is deemed medically necessary by a doctor, many veterans have to pay out of pocket for a prescription, while many of their civilian counterparts may not have to.[94] Moreover, this is particularly problematic if the medical marijuana is prescribed for a service-connected disability because any other prescriptions prescribed for a service-connected disability is paid for by the VA.[95]

Finally, even where legal, and even though the use of marijuana is not supposed to result in a loss of care or coverage, it can still result in indirect changes to treatment that have a detrimental effect on the veteran when physicians taper or cut off other medications because they view marijuana use as a risk factor for addiction or substance abuse issue.[96] And since individual doctors have absolute discretion over their patients’ treatment plans, veterans are often at the mercy of the whims and personal beliefs or biases of their treating physician.[97] Though the doctor’s mantra is to “do no harm,” some doctors may inadvertently do harm to their patients as a result of a misguided attempt to safeguard their patient from “harm” they subjectively perceive.[98] Though that harm is often in the form of changes to their treatment, the harm can take the form of other effects, such as losing eligibility for valuable benefits like the VA home loan program or the loss of Second Amendment rights.[99]

III. The Case for Medical Marijuana as an Alternative Treatment for Veterans

With all the talk of veterans and medical marijuana, it begs the question: why is it such a big deal? As we have already established, the last several decades of war has resulted in hundreds of thousands of veterans returning home carrying the visible and invisible wounds of war.[100] Victims of chronic pain and mental disorders, such as anxiety, depression, and PTSD, are beholden to a VA system that primarily treats their conditions with opioid drugs and powerful psychotropics as a result of a backlogged system that lacks the manpower or resources to treat many of these conditions with anything else.[101] Unfortunately, rather than accomplishing their intended purpose, the over-reliance on these powerful drugs often leads to addiction, to overdose, and to being a large contributing factor to the veteran suicide endemic.[102]

According to the FDA, there is increasing interest in the use of marijuana to treat a variety of medical conditions.[103] Most of the conditions include alleviation of chronic diseases, such as cancer and the associated symptoms.[104] However, many states that allow for medical marijuana prescribe it for several conditions that are highly relevant to veterans, including chronic pain, traumatic brain injury, and PTSD.[105] In fact, many veterans have found marijuana preferable to opioids in helping them cope with the nightmares, flashbacks, depression, and pain stemming from their wartime experiences.[106] However, the federal government’s unwillingness to allow veterans access to medical marijuana compounds tragedies such as veteran opioid addiction, overdose, and suicide by denying them access to a potentially safer and more effective alternative treatment.[107]

A. Veterans and the Opioid Crisis

Veterans are twice as likely to die from an opioid overdose than their civilian counterparts because they are more likely to suffer from chronic pain.[108] Additionally, complicating conditions like PTSD and other mental health problems exacerbate the risk by making them more likely to abuse drugs and self-medicate.[109] Risk factors for opioid addiction specific to veterans include multiple deployments, combat exposure and the resulting stress and trauma, and collateral injuries.[110] Particularly as it relates to collateral injuries, the frequency with which strong painkillers such as Vicodin and Oxycontin are prescribed for combat-related and chronic injuries post-service—often by the VA—contributes greatly to this risk of opioid addiction and overdose.[111]

Even the VA recognizes that “a mounting body of research detailing the lack of benefit and potentially severe harm of long-term opioid therapy,” and “there has been a growing epidemic of opioid misuse and opioid use disorder in America.”[112] To that end, the VA openly acknowledges that the opioid epidemic has forced them to explore better ways to manage veterans’ chronic pain in a way that minimizes the risk of opioids.[113] Yet, it refuses to actively pursue alternative treatments like medical marijuana.[114]

With the federal government’s primary agency for veterans’ advocacy asleep at the wheel while the veteran opioid crisis plows full steam ahead, other advocates, researchers, and “veterans are looking for alternatives to highly addictive and potentially dangerous opioid medications—like medical marijuana.”[115] These groups believe that legal access to medical marijuana could provide veterans with the much-needed reprieve to the opioid addiction crisis.[116]

While arguing in support of medical marijuana in lieu of opioids, Dr. Don Teater, medical advisor at the National Safety Council from 2013 to 2016 opined, “[c]ompared to marijuana, opioids are much riskier, much more dangerous.”[117] He explained further that the issue with prescribing opioids for pain is that they bring fast relief and an accompanying sense of calm.[118] However, as quickly as the relief comes, the relief wears off, and a higher dose becomes necessary and more frequent to maintain the same effects as the patient develops an increased tolerance to the drug.[119] As a result, while opioids are effective for short term pain relief, they are not a good choice for improving chronic pain.[120]

The real problem in the debate for medical marijuana as an alternative to opioids is that “officially” marijuana is more dangerous.[121] As already stated previously, the DEA classifies marijuana as a Schedule I drug with “no accepted medical use” and a high potential for abuse.[122] Other Schedule I drugs include LSD and heroin.[123] On the other hand, prescription opioids, which include morphine, Vicodin, and Oxycontin, are Schedule II drugs: legal when prescribed by medical personnel.[124] It is worth pointing out that crystal methamphetamine and cocaine are also Schedule II drugs with apparently accepted medical uses in the U.S., though it remains unclear what, if any, medical personnel are prescribing them.[125]

The disparity in these classifications accentuates the ridiculousness of the distinction between marijuana and opioids. It is even more absurd when you consider that thirty-six states widely accept marijuana as a valid medical treatment and eighteen have legalized it for recreational use.[126] Reality does not square with the law.

Since 1999, the CDC reports that overdose deaths from opioids have quadrupled.[127] In 2015, more than 15,000 Americans died from overdoses involving prescription opioids.[128] Prescription pill overdoses now account for nearly half of all U.S. overdoses from opioids, and 1,000 Americans are treated in emergency rooms every day for misusing prescription pills.[129] On the other hand, while marijuana can cause health problems if used in excess, there are no known cases of somebody dying from a marijuana overdose.[130] The same cannot be said for opioids, yet the use of prescription medication continues to outpace the use of marijuana even in states where it is legal for medical purposes.[131]

Research on marijuana as an alternative to opioids continues to show promise. The National Organization for the Reform of Marijuana Laws (“NORML”) touts two studies involving marijuana and opioids in support of their campaign for the therapeutic use of marijuana.[132] In the first study, reports revealed that states with legislation allowing the use of marijuana experienced a reduction in opioid-related hospitalizations.[133] Though correlation does not necessarily equal causation, the implication remains promising. The second study showed a bit more direct promise on the issue at hand, stating that “patients with legal access to medicinal marijuana reduce their use of opioids.”[134] Thus, Paul Armentano, deputy director of NORML, concluded that, “[t]he data is clear. Cannabis is effective at treating pain, including hard-to-treat pain conditions like neuropathy, and arguably represents a safer alternative to opioids.”[135]

In another article examining the efficacy of marijuana as a safer alternative to opioids, the author took a very scientific approach to the problem, comparing the lethal dose of each as well as the therapeutic index. The author cited three key findings before ultimately concluding, “[i]f anything, cannabis is a vitally important and incredibly safe medicine that could provide relief for thousands of people who currently risk addiction or death from overuse of opioids for pain control.”[136] Her key findings included: (1) no one has ever died from cannabis but tens of thousands of people die per year from opioids; (2) the lethal dose for cannabis is extremely high while the lethal dose for opioids is extremely low; and (3) the therapeutic index for cannabis is fourteen times higher than morphine.[137]

In conclusion, while studies are not determinative, the results are fairly clear on several key issues. First, the classification of marijuana as a Schedule I substance while opioids remain a Schedule II substance is undeserved.[138] Rather than a classification based on science and hard data, marijuana’s designation as a Schedule I substance under the CSA appears to stem more from historical and political motivations.[139] This seemingly unwarranted over-classification of marijuana is supremely ironic because the classification itself stands as a substantial barrier to the research needed to advance the data and science on it.[140] Dr. Marie McCormick, a professor of pediatrics at the Harvard Medical School, noted that it is hard to substantiate any negative effects of marijuana because “[t]he classification of cannabis as a Schedule I drug makes it very difficult to acquire research-grade samples,” which makes it hard to attain reliable data.[141]

Second, and perhaps most important, medical marijuana does not have the severe side effects that opioids have, such as severe risk of addiction and overdose, and its use as an alternative reduces those risks in opioid users.[142] At a minimum, it is no worse than opioids, and, at best, it is a safer alternative.[143] Thus, medical marijuana is an effective alternative therapeutic for use in treating issues like chronic pain and is likely a safer and equally effective alternative for veterans suffering from these ailments.[144]

Given the fact that veterans are more likely to suffer from chronic pain and, as a result, twice as likely to die from an opioid overdose than their civilian counterparts,[145] the debate over offering marijuana to veterans as an alternative to opioids should not be a difficult one. As the leading treatment provider and prescriber of opioids to veterans, the VA is acutely aware of the emerging need for the medical marijuana alternative and should be veterans’ biggest advocate.[146] But they are not. And while the VA’s current prohibitive position on medical marijuana remains plausibly justified by current federal law,[147] the science not only does not support this position, but practically begs for a different result.[148]

B. Veterans and the Mental Health Endemic

The wounds of war are not limited to the physical wounds that can be seen with the naked eye or identified by conventional understandings of pain. PTSD is the invisible wound of war.[149] The precise number of veterans with PTSD is truly unknown because veterans are likely to underreport their symptoms,[150] but what is known about the percentages of veterans who suffer from PTSD is staggering: “almost 31 percent of Vietnam veterans; as many as 10 percent of Gulf War veterans; 11 percent of veterans who fought in Afghanistan; and 20 percent of Iraq War veterans.”[151] Aside from the emotional torment that PTSD causes to the suffering veteran, veterans with PTSD are at high risk for a number of other problems, including many that have already been discussed: drug addiction, unemployment, and homelessness.[152] The most alarming risk to veterans as a result of PTSD, however, is suicide.[153]

In the last twenty years, the U.S. has lost more veterans to suicide than in war.[154] Since September 11, 2001, just over 30,000 veterans have committed suicide.[155] That number is four times more than the number of U.S. military personnel who died in the wars in Iraq and Afghanistan combined.[156] In 2019, the most recent year for which the VA has data, 6,261 veterans committed suicide.[157] Most alarming, the VA reports that veterans commit suicide at twice the rate of their civilian counterparts, but the rate for veterans aged 18-34—the core of the veteran population from our most recent wars—is three times higher.[158]

Among a variety of risk factors associated with veteran suicide, the VA cited mental health conditions like PTSD and high doses of opioid medications for pain control among the largest.[159] In support of the VA’s findings, there is a growing body of evidence that suggests veterans are being “bombarded with prescription drugs.”[160] In fact, a March 2012 study in the Journal of the American Medical Association concluded that veterans of the Iraq and Afghanistan conflicts who reported chronic pain and PTSD were significantly more likely to be prescribed opioids than veterans with chronic pain but without a diagnosis of PTSD.[161] The VA has already acknowledged this “growing epidemic” of opioid addiction and a need to find an alternative.[162] But, despite the answer staring them directly in the face, they remain handcuffed by federal law and the CSA.[163] Worse still, they remain handcuffed by their own internal policies and bureaucracy.[164]

Though multiple studies show marijuana has considerable potential to help veterans suffering from PTSD,[165] the VA has taken a much more contrary approach to marijuana as an alternative for PTSD than they have for pain.[166] In fact, the VA position actively denies the assertion that marijuana is a suitable—if not preferrable—treatment for marijuana, going so far as to state rather bluntly, “there is no evidence . . . that marijuana is an effective treatment for PTSD.”[167]

The VA goes on to acknowledge that though “[c]annabis use for medical conditions is an issue of growing interest and concern,” “research . . . does not support cannabis as an effective PTSD treatment, and . . . is not recommended for the treatment of PTSD.”[168] Unfortunately, despite the strong link between PTSD, opioids, and suicide, and evidence that marijuana is a suitable alternative for opioid use,[169] the VA does not see medical marijuana as a viable alternative for PTSD.[170] As disheartening as that is, the VA is not alone in its assessment regarding hesitancy to treat PTSD with marijuana.

One particular study revealed that 98 percent of medical practitioners never recommend cannabis as a treatment to patients suffering from PTSD or anxiety.[171] However, it is worth noting that the study primarily explored the “attitudes, knowledge, and practices of health care professionals concerning cannabis as a therapy for PTSD and anxiety sufferers” rather than a scientific evaluation of marijuana’s efficacy.[172] With 85 percent of practitioners stating that they felt “not at all” comfortable recommending or prescribing cannabis to patients, it is highly likely that these practitioners have never prescribed marijuana for their patients.[173] Thus, it is also highly likely that the results were based more on their personal biases than value of marijuana as a treatment, as they likely had little, if any, experience with the treatment of PTSD with marijuana.[174] However, one of the primary reasons why it is so hard to find any sort of empirical research with marijuana and test subjects is due to marijuana’s classification as a Schedule I substance under the CSA.[175]

While the study is hampered by obvious drawbacks and potential biases, the researchers did note that many individuals living with PTSD already use cannabis to help alleviate many common symptoms, such as sleep disturbances.[176] The researchers also noted that PTSD patients commonly noted marijuana’s efficacy in assisting sleep, reducing hypervigilance and hyperarousal, as well as decreasing aversive memories, fear, and anxiety.”[177] So, despite the hesitancy of “98 percent of medical practitioners” surveyed, it appears based on at least anecdotal evidence that marijuana is potentially effective at alleviating many symptoms of PTSD.[178] Moreover, this means much of the research involving human subjects and actual marijuana use stems from individuals who already suffer from PTSD and have either acquired a prescription by some other means or are self-medicating.[179] While this anecdotal evidence has the same potential for bias as the “98 percent of medical practitioners” that would never recommend medical marijuana as a treatment for PTSD, it is progress nonetheless and cannot be immediately disregarded.[180]

In addition to anecdotal evidence, there is a growing body of empirical research that supports the safety and efficacy of medical marijuana as a safer alternative for treatment of PTSD.[181] Though it should be noted that while the research method is empirical, the researchers are still reliant on subjects who meet their parameters and use marijuana, resulting in small sample populations.[182] In 2019, a group of Canadian researchers published a study in the Journal of Psychopharmacology that provided preliminary epidemiological evidence that marijuana use may reduce the depression and suicidal ideations in sufferers of PTSD.[183] The study compared the incidence of depression and suicidal ideations between respondents with PTSD who used marijuana and respondents with PTSD that did not use marijuana.[184] Using multivariable analyses, the respondents with PTSD who did not use marijuana had a significant association with recent major depressive episodes and suicidal ideations.[185] However, among the respondents that used marijuana, neither outcome was associated.[186] Though the results of this study are very promising, the researchers acknowledge that additional investigation is needed to further validate the efficacy of marijuana for the treatment of PTSD.[187]

Like the studies related to marijuana, opioids, and chronic pain, studies on the efficacy of marijuana as an alternative treatment for PTSD are not conclusive.[188] However, there is growing body of evidence that medical marijuana is an effective treatment for PTSD and conclusive evidence that medical marijuana is a safer treatment than opioids currently provide.[189] Moreover, these studies, for the most part, lack any substantial, scientific-based arguments against the use of marijuana due to overwhelming dangers, similar to the dangers associated with opioids.[190] It is noteworthy that the studies are subject to limitations, including anecdotal evidence and relies on self-reporting subjects who already use marijuana.[191] As a result, there is potential for bias. Though there is also a high probability for bias in studies against the use of medical marijuana as well.[192] As such, this factor alone should not be dispositive as meaning the studies are not credible or that medical marijuana is not effective or safe. Continued research is obviously needed to develop the science. For this to happen, however, marijuana must be removed from the CSA’s Schedule I table, for researchers to better study and research it.[193]

That said, there is enough promise in the studies indicating medical marijuana is an effective alternative for PTSD to justify continued progress.[194] If nothing else, there is very little evidence that marijuana will make things worse.[195] On the contrary, a body of evidence shows using marijuana could decrease issues like depression and suicidal ideations.[196] This in turn could have a marked upside effect on the suicide epidemic that plagues veterans. Particularly, since veterans with PTSD are at a higher likelihood of being prescribed opioids, which puts them at an increased risk for addiction and overdose, marijuana appears to offer a much safer and more effective alternative to treat their pain with definite potential for upside with their PTSD symptoms.[197] We know the risks of maintaining the status quo are devastatingly high for veterans, and we can easily discern that the risks of offering medical marijuana as an alternative treatment are relatively low, all while treating their pain effectively.[198] Therefore, it cannot be overstated that veterans deserve the option to be treated with medical marijuana. More importantly, they deserve the choice.

IV. The Veteran’s Medical Marijuana Safe Harbor Act

Senate Bill 1183— The Veteran’s Medical Marijuana Safe Harbor Act—was introduced in the Senate on April 15, 2021, and remains pending before the Senate Committee on the Judiciary (the “Judiciary Committee”).[199] The Safe Harbor Act was introduced by Democratic Senator Brian Schatz of Hawaii.[200] While the sheer fact that such a bill is even under consideration is cause for optimism, it is not yet cause for celebration. After all, this is Congress, and the only thing certain about Congress is uncertainty. In fact, this is not even the first time Congress has attempted comparable legislation. Several similar bills were introduced in the 116th Congress, including the VA Medicinal Cannabis Research Act of 2018 (H.R. 5520), the Veterans Medical Marijuana Safe Harbor Act (S. 3409), and the Veterans Equal Access Act (H.R. 1647), which all sought reforms concerning medical marijuana for veterans.[201] Unfortunately, though, all three bills “died on the vine” and did not ultimately make it into law.[202]

In the text of the Safe Harbor Act, the Judiciary Committee cites multiple findings in Section 2 in support of it. It is noteworthy that many of these findings mirror findings that have been expressed in this Comment. First, the Judiciary Committee acknowledges the chronic pain endemic among a veteran population with nearly 60 percent of Iraq and Afghanistan veterans and more than 50 percent of older veterans relying on the VA health care system for treatment of their pain.[203] The next finding is a stark reminder of the dangers of opioids, noting that opioids are responsible for nearly 70 percent of all drug overdose deaths in the U.S.[204] Further highlighting the danger of the opioid epidemic for veterans, Congress notes the already-cited statistic that veterans are twice as likely to die from opioid overdoses than their civilian counterparts.[205] So far, it seems the Judiciary Committee “gets it.” Next, the Judiciary Committee cites another statistic that has already been presented above: states with medical marijuana laws have significantly fewer opioid overdose deaths than states without.[206] And finally, the Judiciary Committee notes that, much like has already been stated, medical marijuana shows promise for treating a variety of conditions that afflict veterans, including chronic pain, and “may serve as a less harmful alternative to opioids in treating veterans.”[207]

Thus, with the exception of failing to explicitly address PTSD, it appears that the Judiciary Committee’s finding on the utility, safety, and efficacy of medical marijuana as an alternative treatment for veterans align with those that have already been laid out in this Comment.[208] Therefore, this should be a “slam dunk” for passing into law, right? Perhaps. But before we stray too far into the discussion of what Congress would or should do, we must examine what the Safe Harbor Act would actually accomplish and what it would not.

A. “High” Expectations

Though expectations for the Safe Harbor Act are expectedly high, it is important to first ascertain what the Safe Harbor Act will actually accomplish. Section 3 would authorize three specific actions under its Safe Harbor provision.[209] First, it would authorize veterans to use, possess, or transport medical marijuana, but only in states where medical—or ostensibly recreational—marijuana is legal.[210] Second, it would authorize VA physicians to discuss medical marijuana with veterans as a treatment option in states where the law permits its use.[211] Finally, it would authorize VA physicians to “recommend, complete forms for, or register veterans for participation in a treatment program involving medical marijuana” in states where marijuana is legal.[212] Thus, while the first provision simply authorizes veterans to do something they would already be entitled to do in a state where medical marijuana is legal—possess and transport it—the last two provisions do represent forward progress for veterans at the VA. First, rather than simply talking about medical marijuana with veterans in general terms, VA physicians would be permitted to discuss it as a treatment.[213] Second, VA physicians would be permitted to recommend, register, and provide meaningful assistance to veterans seeking to participate in a medical marijuana treatment plan.[214] This is particularly beneficial to veterans who are solely reliant on the VA for their healthcare for a myriad of reasons.

Section 4 of the Safe Harbor Act similarly gives good reason for optimism and progress as it directs the VA to conduct studies on the use of medical marijuana by veterans.[215] First, the Safe Harbor Act instructs the VA to “conduct a study on the effects of medical marijuana on veterans in pain” no later than two years from the date of enactment.[216] Second, the Safe Harbor Act instructs the VA to “conduct a study on the relationship between treatment programs involving medical marijuana that are approved by States, the access of veterans to such programs, and a reduction in opioid use and abuse among veterans.”[217] So, in addition to opening the door to medical marijuana as an alternative treatment, Congress appears to be taking a measured approach and learning as it goes.[218] All in all, it appears to be a step forward and gives reason for optimism. Or does it?

B. The Big Let Down

Though the Safe Harbor Act is a step forward, it should be worth noting that it is not the wholesale legalization that many veterans and advocates have been hoping for.[219] Moreover, once the casual observer gets past the initial optimism, its shortfalls start to become readily apparent. First and foremost, the Safe Harbor Act completely fails to expand access to medical marijuana to all veterans.[220] Under Section 3, every provision of the Safe Harbor Act contains a limiting construction that limits the applicability of the authorization to states where marijuana is already authorized by state law.[221] Thus, Congress—as the federal government’s steward of law—is passing the buck on veterans with a half-solution that accomplishes nothing for veterans who were already without the right to obtain medical marijuana.[222] And while the ability for the VA to provide some meaningful assistance to indigent veterans and veterans otherwise beholden to the states where medical marijuana is legal, it does nothing for millions of veterans who stand to benefit from medical marijuana but cannot because they are constrained by the laws of their state.[223] Thus, while Congress’s deference to the state legislatures is an admirable nod to state sovereignty, it is very disappointing that it missed the opportunity to make meaningful change and instead, by some accounts, opted to mail it in with a half-measure.

Second, the substance of the Safe Harbor Act in Section 3 starts with, “[n]otwithstanding the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or any other Federal law . . . .”[224] While this disclaimer is certainly not a death knell for veterans’ hopes of access to medical marijuana due to the legal loophole in which marijuana skirts by the Supremacy Clause, it certainly rings hollow the prospects of meaningful research by the VA.[225] So long as marijuana remains a Schedule I substance under the CSA, however, scientists will continue to struggle to do substantial research.[226] As it pertains to this bill in particular, the VA will be hampered in its endeavors to complete the instructed research, especially regarding marijuana’s efficacy against chronic pain.[227]

The next glaring issue with the Safe Harbor Act is that it is almost entirely focused on marijuana as an alternative to opioid use.[228] Rightly citing the body of research regarding veterans, chronic pain, and their increased risk of addiction and overdose, the Judiciary Committee notes that medical marijuana shows promise as a “less harmful alternative” to opioids in treating chronic pain in veterans.[229] While this push will undoubtedly have a profound impact on the veteran opioid crisis, the Safe Harbor Act is silent as to exploring the use of medical marijuana as an alternative treatment for PTSD.[230] And while the opioid crisis certainly looms large for veterans, the veteran suicide endemic looms larger.[231] Thus, by failing to acknowledge the body of growing research that supports medical marijuana as a safe and effective treatment for PTSD,[232] the Safe Harbor Act really misses the mark here.

The Safe Harbor Act’s next shortfall is that it still potentially leaves many veterans who might be eligible for medical marijuana “high and dry” —but not the kind of “high” they would like. Though the Safe Harbor Act now allows for VA physicians to assist veterans in obtaining a medical marijuana prescription in states where marijuana is legal, there are two significant shortcomings that threaten the most vulnerable among veterans.[233] First, the Safe Harbor Act does not provide for the VA to prescribe medical marijuana for veterans, only assist in the enrollment.[234] Thus, indigent veterans and veterans with no other source of healthcare are still required to pay out of pocket or otherwise provide a means by which to procure the actual prescription. This would likely require a visit to a private physician, though some public assistance programs might exist. Second, though the VA pays for or fills all prescriptions—including opioids—for veterans who seek treatment through the VA,[235] the Safe Harbor Act does not provide for the VA to pay for or fill a prescription for medical marijuana.[236] Thus, veterans who are solely dependent on the VA for their healthcare are in the same boat with a half measure that allows the VA to assist them but with no real means for acquiring medical marijuana, unless they are able to do so themselves.[237] When juxtaposed against the relative ease with which veterans can acquire free opioids from the VA, it actually underscores the precise nature of the real problem veterans face.[238]

Finally, with its language specifying that “it shall not be unlawful for . . . a physician to . . .,” the Safe Harbor Act fails to address the potential for discretional impacts by doctors who do not feel compelled by the law to comply with its mandates.[239] By simply stating that it shall not be unlawful for a physician to do something, the government is really just alleviating the physician from liability if he or she chooses to comply.[240] Thus, VA physicians will still enjoy a considerable amount of discretion in choosing whether to openly assist veterans with medical marijuana as a treatment option or in obtaining it at all.[241] Further, those physicians still maintain the same discretion to affect veterans’ treatment plans with the ability to taper or cut off altogether other prescriptions if they so choose.[242] As a result, though the Safe Harbor Act was off to a promising start, it appears that veteran’s “high” expectations have been ultimately met with a big letdown.

V. Moving Forward: “Higher” Expectations for Veterans

Though the Safe Harbor Act seemingly falls short of many veterans’ high expectations and leaves a lot to be desired, it nonetheless remains a positive step forward in the fight for veterans’ access to medical marijuana and, if for no other reason than that, deserves unwavering support for passage in Congress. That said, we would be remiss if this Comment did not address the many ways in which veterans’ higher expectations on this issue can, and should, be met.

First and foremost, as legislation intended for the better care and treatment of veterans, a Congressional solution addressing veterans’ access to medical marijuana should make the alternative treatment available to all veterans. As it stands, the Safe Harbor Act conditions veterans’ access to medical marijuana on the legal status of medical marijuana in their home state.[243] This ostensibly places veterans at the mercy of their state legislatures, while similarly situated veterans in other states might enjoy unfettered access. Though Congress’s deference to state legislatures is commendable in most respects, the VA was established by Congress as an executive department of the federal government for the specified purpose of “administer[ing] the laws providing benefits and other services to veterans . . . .”[244] Thus, it stands to reason that Congress could, in its discretion, authorize the VA to provide access to medical marijuana for all veterans in its capacity as the federal agency “providing benefits and other services to veterans” without trampling on state sovereignty.[245] This is particularly true given that Congress is also responsible for the federal legal status of marijuana under the CSA,[246] and medical marijuana laws do not conflict with the Supremacy Clause.[247]

An ideal piece of legislation granting veterans access to medical marijuana should also require the VA not only to prescribe the medical marijuana but also to provide the prescription to the veteran, just as it would any other prescription.[248] This is particularly important for indigent veterans, homeless veterans, and veterans who are solely dependent on the VA for healthcare.[249] Without such a provision, veterans who depend on the VA as their sole means of healthcare due to a lack of monetary resources would be unable to procure a prescription even if it was deemed medically necessary.[250] Thus, enabling the VA not only to directly prescribe medical marijuana, but also to provide it to the veteran is a necessary endeavor for such a vulnerable population.

Another area for an improvement that should be addressed by adequate legislation and associated policy is to lift the stigma of medical marijuana by highlighting it as a legitimate treatment within the VA. This can be accomplished in several ways, including creating an environment where it can be proactively discussed between veterans and their providers. Though the Safe Harbor Act provides for this, it does not go far enough. First, veterans should not be restricted by the personal biases or treatment preferences of their VA providers.[251] Though a VA provider should not be required to prescribe medical marijuana against their discretion, veterans should be permitted to seek out the care of a VA professional who will prescribe it to avoid this issue. Second, the VA should seek to promote a bias-free environment by providing for the education of VA medical professionals regarding the benefits of marijuana as an alternative treatment to facilitate those conversations.

In an ideal world, that training would be supported and actively subsidized by a robust research program to increase the understanding of medical marijuana as an alternative treatment for both chronic pain and PTSD. Those studies should include evaluations of long-term benefits, long term risks or side effects, and efficacies in its use as a treatment, as well as explore additional uses and treatment for it. But again, though the Safe Harbor Act would provide for the VA to conduct this research, it does not go far enough.[252] To better facilitate this research, Congress needs to reclassify marijuana as at least a Schedule II substance—legal when prescribed by medical personnel—to better facilitate the VA’s research.[253] Though marijuana’s classification as a Schedule I is arguably the biggest hurdle in the whole legalization debate, it is also among the least defensible positions within the argument.[254] Despite all the research to the contrary, perhaps the reason for the continued classification of marijuana as a Schedule I substance still lies in the same historical and political justifications as it did in the first instance.[255] After all, it stands to reason that the pharmaceutical industry—which was partially to blame for the prohibition of marijuana in the first instance[256]—stands to lose the most from the legalization of marijuana.[257]

Finally, Congress and the VA need to provide safeguards against other potential indirect effects that may result from veterans’ medical marijuana usage. Those issues include, but are not limited to, veterans whose medical marijuana use conflicts with rules of their state or employer, disqualification from other VA benefits such as the VA home loan program, and even disqualification from owning or purchasing a firearm.[258] While solutions to these issues are not as readily apparent or as easily addressed within the limitations of this Comment, it is nonetheless necessary to point out that they must also be addressed as part of any expansive solution to the issue of veterans’ access to medical marijuana.

The U.S. owes a debt to its veterans that can never be repaid. At a minimum, the nation has an unyielding obligation “to care for [those] who shall have borne the battle.”[259] These words were immortalized by the VA as its official motto in 1959.[260] When we send service members off to war, we equip them with advanced training and combat equipment to ensure their safe return as best we can. That obligation remains once they return home, and while no one is arguing that the nation is wholly failing its veterans, we are failing to “care for [those] who shall have borne the battle” with the most advanced medical treatments.[261] Albert Einstein is attributed as saying, “[i]nsanity is doing the same thing over and over and expecting different results.”[262] The risks associated with our current treatment methods of veterans are well documented, and the results are devastating.[263] Thus, it would be insane not to provide veterans with the option of medical marijuana as a safer and potentially more effective alternative treatment for chronic pain and PTSD. The Safe Harbor Act is a big first step in the right direction, and Congress should pass it without further delay. But there is more work to be done and our expectations for treating our veterans should be “higher.”

Josh Plummer

  1. . Representative Dina Titus, Puff, Puff, Pass . . . That Law: The Changing Legislative Environment of Medical Marijuana Policy, 53 Harv. J. on Legis. 39, 39 (2016).
  2. . Id. at 40.
  3. . Id.
  4. . Id. at 45.
  5. . S. 1183, 117th Cong. (2021).
  6. . See Eric Schlosser, Reefer Madness, Atl., Aug. 1994, at 46–47.
  7. . Adam Gabbatt, Marijuana May be Legal, but it’s Still Taboo in Washington DC, Guardian (Feb. 28, 2015, 09:48 PM), https://www.theguardian.com/us-news/2015/feb/28/marijuana-legal-but-still-taboo-washington-dc.
  8. . John White, The History of Marijuana Prohibition in the U.S., CNBS (Feb. 7, 2019), https://www.cnbs.org/cannabis-101/cannabis-prohibition/.
  9. . Id.
  10. . Id.
  11. . Id.
  12. . Id.
  13. . Id.
  14. . Id.
  15. . Id.
  16. . Id.
  17. . Id.
  18. . Id.
  19. . Id.
  20. . Id.
  21. . Id.
  22. . Id.
  23. . Id.
  24. . Id.
  25. . Id.
  26. . Id.
  27. . Map of Marijuana Legality by State, DISA (Jan. 2022), https://disa.com/map-of-marijuana-legality-by-state.
  28. . See White, supra note 8.
  29. . Todd Garvey, Cong. Rsch. Serv., R42398, Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws (Nov. 9, 2012).
  30. . Id.
  31. . Id. at 9; see also 21 U.S.C. § 903.
  32. . See Garvey, supra note 29, at 7–9.
  33. . Id.
  34. . Id.
  35. . Id.
  36. . Will Yakowicz, Where is Cannabis Legal? A Guide to all 50 States, Forbes (Jan. 10, 2022), https://www.forbes.com/sites/willyakowicz/2022/01/10/where-is-cannabis-legal-a-guide-to-all-50-states/; See also Map of Marijuana Legality by State, supra note 27.
  37. . See Garvey, supra note 29, at 7–9.
  38. . Id.; see also Medical Cannabis, Disabled Am. Veterans, https://www.dav.org/veterans/resources/medical-cannabis/ (last visited Jan. 31, 2022).
  39. . See Yakowicz, supra note 36.
  40. . Id.
  41. . See supra Subpart II.A.
  42. . Andrew Rudalevige, Why Does Congress Have Such a Hard Time Passing Laws? Let’s Blame the Constitution, Wash. Post (July 11, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/07/11/why-does-congress-have-such-a-hard-time-passing-laws-lets-blame-the-constitution/.
  43. . Nicole Gaouette et al., The Last US Military Planes Have Left Afghanistan, Marking the End of the United States’ Longest War, CNN (Aug. 31, 2021), https://www.cnn.com/2021/08/30/politics/us-military-withdraws-afghanistan/index.html.
  44. . Charles Beuck, Only 15 Years of Peace in the History of the United States of America, Medium (Jan. 8, 2020), https://medium.com/traveling-through-history/only-15-years-of-peace-in-the-history-of-the-united-states-of-america-c479193df79f.
  45. . Id.
  46. . Id.
  47. . Veterans in the United States – Statistics & facts, Statista Rsch. Dep’t (Dec. 3, 2021), https://www.statista.com/topics/3450/veterans-in-the-united-states/#dossierKeyfigures.
  48. . Id.
  49. . Id.
  50. . Veterans in the United States supra, note 47.
  51. . Kelly Ann Holder & Jennifer Cheeseman Day, Health Insurance Coverage of Veterans, U.S. Census Bureau (Sept. 14, 2017), https://www.census.gov/newsroom/blogs/random-samplings/2017/09/health_insurancecov0.html.
  52. . Id.
  53. . Id.
  54. . VA Health Care Utilization by Recent Veterans, U.S. Dep’t of Veterans Affs., https://www.publichealth.va.gov/epidemiology/reports/oefoifond/health-care-utilization/ (last visited Dec. 16, 2021).
  55. . Id. Musculoskeletal ailments account for 759,850, or 62.3%, of all Iraq and Afghanistan veterans and mental disorders account for 708,062, or 58.1%.
  56. . See Veterans in the United States, supra note 47.
  57. . Id.
  58. . Smiljanic Stasha, How Many Veterans Are Homeless in the US 2021, Pol’y Advice (Mar. 23, 2021), https://policyadvice.net/insurance/insights/homeless-veterans-statistics/.
  59. . Id.
  60. . Alex Dopico, What Percentage of the US Population are Military Veterans?, Janetpanic.com (May 5, 2021), https://janetpanic.com/what-percentage-of-the-us-population-are-military-veterans/#What_percentage_of_the_US_population_are_military_veterans.
  61. . See Stasha, supra note 58.
  62. . Id.
  63. . Health Care, U.S. Dep’t of Veterans Affs., https://choose.va.gov/health (last visited Dec. 16, 2021).
  64. . See supra notes 47–50 and accompanying text.
  65. . See supra note 55 and accompanying text.
  66. . See generally supra notes 51–55 and accompanying text.
  67. . Id.
  68. . See Shad Meshad, Treating PTSD: Maybe it’s Time for Another Look at our Options, HuffPost (Nov. 3, 2014), https://www.huffpost.com/entry/treating-ptsd-maybe-its-t_b_5738136.
  69. . Id.
  70. . See supra notes 51–54, 56–60 and accompanying text.
  71. . Id.
  72. . See supra Subpart II.B.
  73. . See supra notes 51–54 and accompanying text.
  74. . VA and Marijuana – What Veterans need to know, U.S. Dep’t of Veterans Affs., https://www.publichealth.va.gov/marijuana.asp (last visited Dec. 16, 2021).
  75. . Id.
  76. . Id.
  77. . Id.
  78. . Id.
  79. . Id.
  80. . Id.; see also supra notes 70–71 and accompanying text.
  81. . VA and Marijuana – What Veterans need to know, supra note 74.
  82. . Id.
  83. . Medical Cannabis supra, note 38.
  84. . Bill Barlow, 5 Facts Veterans Need to Know About the VA and Cannabis, Weedmaps (Nov. 7, 2019), https://weedmaps.com/news/2019/11/5-facts-veterans-need-to-know-about-the-va-and-cannabis/.
  85. . Id.
  86. . Id.
  87. . Id.
  88. . Id.
  89. . Id.
  90. . Id.
  91. . Id.
  92. . See supra note 63 and accompanying text.
  93. . VA and Marijuana – What Veterans need to know, supra note 74.
  94. . See supra note 63 and accompanying text.
  95. . Id.
  96. . See supra notes 85–88 and accompanying text.
  97. . Id.
  98. . Id.
  99. . See supra notes 97–89 and accompanying text.
  100. . See supra Subpart II.C.
  101. . Representative Dina Titus, supra note 1, at 45.
  102. . Id.
  103. . Medical Cannabis supra, note 38.
  104. . Id.
  105. . Id.
  106. . Representative Dina Titus, supra, note 1, at 45.
  107. . See supra Subpart II.C; infra Subparts III.A, III.B.
  108. . Priscilla Henson, MD, Opioid Addiction in Veterans: Signs, Risks & Treatment, Am. Addiction Ctrs. (Nov. 19, 2021), https://americanaddictioncenters.org/veterans/opioid-addiction.
  109. . Id.
  110. . Id.
  111. . Id.
  112. . VHA Pain Management, U.S. Dep’t of Veterans Affs., https://www.va.gov/PAINMANAGEMENT/Opioid_Safety/index.asp (last visited Dec. 16, 2021).
  113. . Id.
  114. . VA and Marijuana – What Veterans need to know, supra note 74.
  115. . Medical Cannabis, supra note 38.
  116. . Id.
  117. . Matt Schneiderman & David Mills, Marijuana vs Opioids: Which is More Dangerous?, J. of Nursing (Apr. 1, 2017), https://www.asrn.org/journal-nursing/1697-marijuana-vs-opioids-which-is-more-dangerous.html.
  118. . Id.
  119. . Id.
  120. . Id.
  121. . Id.
  122. . Id.
  123. . Id.
  124. . Id.
  125. . Id.
  126. . See Yakowicz, supra note 36.
  127. . Schneiderman & Mills, supra note 117.
  128. . Id.
  129. . Id.
  130. . Id.
  131. . Id.
  132. . Id.
  133. . Id.
  134. . Id.
  135. . Id.
  136. . Deb Tharp, Is Cannabis Really Safer Than Opiates, or Just as Dangerous?, Nugg (Apr. 11, 2018), https://getnugg.com/blog/cannabis-safer-opiates/.
  137. . Id.
  138. . See supra notes 127–31, 136–37 and accompanying text.
  139. . Schneiderman & Mills, supra note 117.
  140. . Id.
  141. . Id.
  142. . See supra notes 127–137 and accompanying text.
  143. . Id.
  144. . Id.
  145. . Henson, supra note 108.
  146. . VHA Pain Management, supra note 112.
  147. . VA and Marijuana – What Veterans need to know, supra note 74.
  148. . See supra notes 127–137 and accompanying text.
  149. . Representative Dina Titus, supra, note 1, at 45.
  150. . Haley P. Johnson & Mark Agius, A Post-Traumatic Stress Disorder Review: The Prevalence of Underreporting and the Role of Stigma in the Military, Psychiatria Danubina, Nov. 2018, at 508–10.
  151. . Id.
  152. . Id.
  153. . Id.
  154. . Anna Richardson & Sarah Roxburgh, More Veterans Die by Suicide Than in Combat. But It’s Preventable, WBUR (Sept. 28, 2021), https://www.wbur.org/cognoscenti/2021/09/28/veterans-suicide-prevention-afghanistan-anna-richardson-sarah-roxburgh.
  155. . Id.
  156. . Id.
  157. . Id.
  158. . Id.
  159. . Charles R. Hooper, Suicide Among Veterans, Am. Addiction Ctrs. (Jan. 21, 2022), https://americanaddictioncenters.org/veterans/suicide-among-veterans.
  160. . Representative Dina Titus, supra, note 1, at 47–48.
  161. . Id.
  162. . VHA Pain Management, U.S. Dep’t of Veterans Affs., https://www.va.gov/PAINMANAGEMENT/Opioid_Safety/index.asp (last visited Dec. 16, 2021).
  163. . VA and Marijuana – What Veterans need to know, supra note 74.
  164. . Id.
  165. . See infra Subpart III.B.
  166. . Michael Walters, How Cannabis Can Help Veterans, Pot Guide (Aug. 8, 2021), https://potguide.com/blog/article/how-cannabis-can-help-veterans/.
  167. . Id.
  168. . Melanie Hill, PhD, et al., Cannabis Use and PTSD Among Veterans, U.S. Dep’t of Veterans Affs., https://www.ptsd.va.gov/professional/treat/cooccurring/marijuana_ptsd_vets.asp (last visited Dec. 16, 2021).
  169. . Hooper, supra note 159.
  170. . See Walters, supra note 166.
  171. . Emma Stone, Medical Experts Remain Hesitant to Recommend Cannabis for PTSD, Anxiety, Weedmaps (Apr. 26, 2019), https://weedmaps.com/news/2019/04/medical-experts-remain-hesitant-to-recommend-cannabis-for-ptsd-anxiety/.
  172. . Id.
  173. . Id.
  174. . Id.
  175. . Schneiderman & Mills, supra note 117.
  176. . Stone, supra note 171.
  177. . Id.
  178. . Id.
  179. . Id.
  180. . Id.
  181. . Stephanie Lake et al., Does Cannabis Use Modify the Effect of Post-Traumatic Stress Disorder on Severe Depression and Suicidal Ideation? Evidence from a Population-Based Cross-Sectional Study of Canadians, 34 J. Psychopharmacology 181, 181 (2019).
  182. . Id.
  183. . Id.
  184. . Id.
  185. . Id.
  186. . Id.
  187. . Id.
  188. . See supra Subparts III.A., III.B.
  189. . Id.
  190. . Id.
  191. . See Lake et al., supra note 181.
  192. . Stone, supra note 171.
  193. . Schneiderman & Mills, supra note 117.
  194. . See supra notes 172–87 and accompanying text.
  195. . See supra Subparts III.A., III.B.
  196. . See Stone, supra note 171; see also Lake et al., supra note 181.
  197. . Representative Dina Titus, supra, note 1, at 47–48.
  198. . See supra notes 124–34 and accompanying text.
  199. . S. 1183, 117th Cong. (2021).
  200. . Id.
  201. . VA Medicinal Cannabis Research Act of 2018, H.R. 5520, 115th Cong. (2018); Veterans Medical Marijuana Safe Harbor Act, S. 3409, 115th Cong. (2018); Veterans Equal Access Act, H.R. 1647, 116th Cong. (2020).
  202. . See supra notes 124–34 and accompanying text.
  203. . S. 1183, 117th Cong. (2021).
  204. . Id.
  205. . Id.
  206. . Id.
  207. . Id.
  208. . See supra Subparts II.A, II.B.
  209. . S. 1183, §3, 117th Cong. (2021).
  210. . Id.
  211. . Id.
  212. . Id.
  213. . Id.
  214. . Id.
  215. . Id. § 4.
  216. . Id.
  217. . Id.
  218. . Id.
  219. . See supra Part IV.A.
  220. . S. 1183, §3, 117th Cong. (2021)..
  221. . Id.
  222. . Id.
  223. . Id.
  224. . Id.
  225. . Id.
  226. . Schneiderman & Mills, supra note 117.
  227. . Id.
  228. . S. 1183 supra, note 5 at § 2.
  229. . Id.
  230. . Id. §§ 2–4.
  231. . See supra Subpart III.B.
  232. . Id.
  233. . S. 1183 supra, note 5.
  234. . Id. § 3.
  235. . See Health Care, supra note 63.
  236. . S. 1183 supra, note 5 at § 3.
  237. . Id.
  238. . See supra Subparts III.A, III.B.
  239. . S. 1183 supra, note 5 at § 3.
  240. . Id.
  241. . Id.
  242. . Id.; see also supra notes 85–87 and accompanying text.
  243. . S. 1183 supra, note 5 at § 3.
  244. . 38 U.S.C. § 301.
  245. . Id.
  246. . 21 U.S.C. §§ 801–904.
  247. . See supra notes 31–33 and accompanying text.
  248. . Health Care, supra note 63.
  249. . See supra notes 52–54 and accompanying text.
  250. . Id.
  251. . Barlow, supra note 84.
  252. . S. 1183 supra, note 5 at § 4.
  253. . See 21 U.S.C. §§ 801–904; see also Schneiderman & Mills, supra note 117.
  254. . Schneiderman & Mills, supra note 117.
  255. . See supra Subpart II.A.
  256. . Id.
  257. . See supra Subparts III.A, III.B.
  258. . Barlow, supra note 84.
  259. . Abraham Lincoln, President of the United States, Second Inaugural Address (Mar. 4, 1865) (“[L]et us strive on to finish the work we are in, to bind up the nation’s wounds, to care for [those] who shall have borne the battle . . . and cherish a just and lasting peace among ourselves and with all nations.”). When President Lincoln made his inaugural address in 1865, the nation was bracing for the final throes of a bitterly divisive civil war and preparing for the daunting task of unifying a broken country through reconciliation and reconstruction. With these words, President Lincoln affirmed the government’s obligation to care for those injured during the war. As a result, “To care for him who shall have borne the battle,” has been the mission statement for the Department of Veterans Affairs since 1959. The Origin of the VA Motto, U.S. Dep’t of Veterans Affs., https://www.va.gov/opa/publications/celebrate/vamotto.pdf (last visited Feb. 21, 2023).
  260. . Mission, Vision, Core Values & Goals, U.S. Dep’t of Veterans Affs., https://www.va.gov/about_va/mission.asp (last visited Feb. 26, 2022).
  261. . Id.
  262. . Frank Wilczek, Einstein’s Parable of Quantum Insanity, Sci. Am. (Sept. 23, 2015), https://www.scientificamerican.com/article/einstein-s-parable-of-quantum-insanity/.
  263. . See supra notes 127–137 and accompanying text.

By Gabby Korb

President Biden signed Executive Order 14006 banning the renewal of private prison contracts, stating that “[t]his is the first step to stop corporations from profiting off of the incarcerated—incarceration that is less humane and less safe, as the studies show.”[1]  Although this can be seen as a positive step in the fight against injustice in the criminal system, the impact of this executive order is likely more rhetorical than concrete.  The main issue with Executive Order 14006 is that it only focuses on renewal of “Department of Justice contracts with privately operated criminal detention facilities,”[2] which means it only targets federal prisons.  This leaves a massive loophole for immigration detention centers and state and county-run detention centers.  Additionally, because it is an Executive Order, the policy will likely end up as a fleeting attempt to tackle a major issue because it is subject to the whim of future administrations.  These issues beg the question of what the strongest long-term solution for ending the private-prison industry is.  I believe the answer to this question is a Supreme Court opinion ruling private prisons unconstitutional.  This blog post will briefly explore the injustice of private prisons, how Executive Order 14006 attempts and fails to solve these injustices, and potential avenues for finding private prisons unconstitutional.

The existence of private prisons poses major moral and economic issues that undermine American values.  First, studies have shown that inmates held in private prisons are subjected to longer stays because it increases profit for the corporations.[3]  Private-prison corporations themselves admit that “the demand for [their] facilities and services could be adversely affected by . . . leniency in conviction or parole standards and sentencing practices.”[4]  Second, private prisons are known for their atrocious conditions and untrained workers, which saves money and turns a higher profit.[5]  The two largest private-prison corporations, Core Civic and GEO Group, have combined revenues of $3.5 billion as of 2015.[6]  The business model of private prisons is to reap financial gain from keeping people imprisoned at the lowest cost possible.  Third, private prisons profit off exploiting minority communities.[7]  Private prisons gained traction in the 1980’s during the War on Drugs when federal prisons became overcrowded.[8]  It is now a well-known fact that the War on Drugs had a racially motivated and detrimental impact on minority populations that has persisted with the use of private prisons, and minorities continue to be overrepresented in private prisons.[9]  This all means “that people of color are more likely to be arrested, more likely to be convicted, more likely to be placed in a private prison, and less likely to receive parole.” [10]  The ethical, moral, business, and legal implications of allowing prisons to exist that are less safe, depend on racial discrimination, and profit off of keeping citizens in jail is deeply disturbing, and addressing these implications is vital to uphold the values of freedom and equality that American society holds dear.

Executive Order 14006 was issued by President Biden on January 26, 2021, to pursue the administration’s goal of decreasing incarceration levels.[11]  The Executive Order states that “to decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.”[12]  However, this Executive Order is inadequate in pursuing this goal.  It is likely the executive order will be repealed with a change in who occupies the presidency as was previously seen when President Trump repealed a similar Executive Order put forth by the Obama administration. [13]  Additionally, Executive Order 14006 allows major loopholes that prevent the majority of private prisons from being shut down.  One avenue for private-prison corporations to sidestep the effects of the order is to contract with county or state governments and other federal agencies, and there is evidence that these prison corporations have been doing just that since Executive Order 14006 was signed. [14]

Perhaps the most troubling aspect of this executive order is that it fails to encompass Immigration and Customs Enforcement (ICE) detention centers.  Before the Executive Order was enacted, roughly 80 percent of ICE detention beds were owned or managed by private prison corporations.[15]  With the passage of Executive Order 14006, this number will likely increase because private prison facilities shut down by the Order will take on new life as immigration detention centers.[16]  This is evidenced by one large prison company’s financial statements to its shareholders stating that it was “actively marketing and repurposing” prisons that would be phased out by Executive Order 14006.[17]  Therefore, it is clear that Executive Order 14006 is not a solution to the private prison problem.

I believe the most effective way to end the private-prison industry must come from the Supreme Court.  As of now, the Supreme Court has not touched the private-prison industry, but there are a variety of legal arguments that could be used to find it unconstitutional.  First, prisons are likely unconstitutional under the private nondelegation doctrine.  The private nondelegation doctrine forbids core governmental functions from being delegated and prohibits legal enforcement power from being granted outside the government to private groups over which the executive branch does not exercise control.[18]  Imprisonment is a core governmental function because it is the most severe form of punishment that strips citizens of their most basic liberties.  Second, private prisons could be eliminated under substantive due process.  It is widely held that individuals have the fundamental right to bodily freedom, and so any government interference of this right must meet the strict scrutiny standard.[19]  Strict scrutiny requires that infringement of a fundamental right be supported by a compelling government interest, and the government interference must be narrowly tailored to achieving the government’s compelling interest.[20]  Private prisons are not the most narrowly tailored means of incarceration because the government is fully capable of providing and maintaining prisons without help from private companies whose goal is to profit off incarcerated citizens.

Finally, private prisons could be attacked under the Thirteenth Amendment, which is generally known for prohibiting slavery.  The Thirteenth Amendment further reads that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist”. [21]  On its face, this seems to allow slavery in the prison context.  However, the Thirteenth Amendment has been under-litigated in the past century, and a flurry of scholarship suggests that a modern interpretation of the amendment may allow for the termination of for-profit prisons.[22]  It is undeniable that minorities make up higher rates of the private-prison population.[23]  These prisoners are then subject to work in private facilities for longer periods of time where they make pennies per hour.[24]  These inmates serve longer sentences and make a pittance in wages in order for private prison corporations to be profitable.[25]  This violates the spirit of the thirteenth amendment, and a new and contemporary meaning of slavery could evolve with a present interpretation of the amendment.

The private prisons industry has countless negative effects that the federal government has acknowledged, but change has not been swift.  Executive Order 14006 is an act of acknowledgment, but it is unlikely to drive substantial change.  The private prison industry will continue to thrive unless the Court acts.  There are many strong legal paths that allow true change in the criminal justice system by abolishing the private-prison industry, including the nondelegation doctrine, due process, and the Thirteenth Amendment.  An Executive Order will never be enough to create permanent change in the private-prison system. That change will best be served by the Court system.

[1] Luke Bar, BOP Finalizes Moving Inmates from Private Prisons, ABC News ( Dec. 1, 2022, 4:25 OM),


[2] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[3] Josh Sanburn, Privately-Run Prisons Hold Inmates Longer, Study Finds, TIME (June 19, 2015, 11:44 AM EDT), https://time.com/3928184/private-prisons-longer-incarceration/.

[4] Banking on Bondage: Private Prisons and Mass Incarceration, ACLU ( Nov. 2, 2011), https://www.aclu.org/banking-bondage-private-prisons-and-mass-incarceration.

[5]  ACLU, supra note 3.

[6]Kara Gotsch, Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons, The Sentencing Project (Aug. 2, 2018), https://www.sentencingproject.org/reports/capitalizing-on-mass-incarceration-u-s-growth-in-private-prisons/.

[7] Rina Palta, Why For-Profit Prisons House More Inmates Of Color, NPR ( March 13, 2014 , 7:12 AM ET), https://www.npr.org/sections/codeswitch/2014/03/13/289000532/why-for-profit-prisons-house-more-inmates-of-color.  

[8] andre douglas pond cummings, “All Eyez on Me”: America’s War on Drugs and the Prison-Industrial Complex, 15 J. Gender Race & Just. 417 (2012).

[9] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[10] Id.

[11] Exec. Order No. 14,006, 86 Fed. Reg. 7483 (Jan. 26, 2021).

[12] Id.

[13] Jim Tankersley & Annie Karni, Biden Moves to End Justice Contracts with Private Prisons, NY Times (Jan. 26, 2021), https://www.nytimes.com/2021/01/26/business/biden-private-prisons-justice-department.html.

[14] Lauren-Brooke Eisen, Breaking Down Biden’s Order to Eliminate DOJ Private Prison Contracts, Brennan Ctr. for Just. (Aug. 27,  2021), https://www.brennancenter.org/our-work/research-reports/breaking-down-bidens-order-eliminate-doj-private-prison-contracts.

[15] Id.

[16] Chris Geidner, A Year After Biden’s Executive Order on Private Prisons, Business Is Still Booming, Grid (Jan. 26, 2022), https://www.grid.news/story/politics/2022/01/26/a-year-after-bidens-executive-order-on-private-prisons-business-is-still-booming/.

[17] Id.

[18] Robert Craig & andre douglas pond cummings, Abolishing Private Prisons: A Constitutional and Moral Imperative, 49 U. Balt. L. Rev. 261, 282 (2020).

[19] Salil Dudani, Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences, 129 Yale L.J. 2112 (2020).

[20] Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. REV. 625, 627 (1992).

[21] U.S. Const. amend. XIII, § 1.

[22] Craig & cummings, supra note 15.

[23] Mitchell Abood, The Evolution of Private Prison Incarceration in the United States, UMLR Insights (Jan. 31, 2021), https://lawreview.law.miami.edu/evolution-private-prison-incarceration-united-states/.

[24] Comparing Compensation: What Inmates in Private Prisons Would Otherwise Get Paid, Human Trafficking Search (Nov. 13, 2017), https://humantraffickingsearch.org/comparing-compensation-what-inmates-in-private-prisons-would-otherwise-get-paid/.

[25] Abood, supra note 9; Comparing Compensation, supra note 24.

By Max Anthony

On September 26, 2022, thousands of prisoners across the state of Alabama launched a labor strike in response to the “deteriorating conditions” and “pervasive violence” inside state prisons.[1]  In fact, conditions have deteriorated to the point that multiple homicides and drug overdoses occur on a weekly basis resulting in a “new normal.”[2]  This new normal caught the eye of the Department of Justice (“DOJ”), who filed a lawsuit against the Alabama Department of Corrections (“ADOC”) in 2020.[3]  The lawsuit alleges, inter alia, that ADOC has failed “to provide safe conditions of confinement in violation of the Constitution.”[4]

Specifically, locks in ADOC’s prions are “broken or defective,” surveillance cameras do not function, and dormitories are “open and overcrowded” requiring prisoners to use “shared showering and toileting facilities.”[5]  Additionally, plumbing does not work, causing routine “flooding.”[6]  These unsafe conditions create “heighten[ed] tensions,” increasing violence.[7]  For example, from 2018 to 2019, at least twenty-four prisoners were killed, leading to ADOC having “the highest homicide rate in the nation for a state prison system.”[8]  From 2019 to 2020, “at least 825 prisoner-on-prisoner assaults” occurred with one prisoner being “stabbed repeatedly in the face” and another hospitalized after being stabbed in the stomach twenty-six times.[9]

Even the correctional officers contribute to the violence.[10]  For instance, four correctional officers were indicted in 2020 after “using excessive force on a prisoner and for obstructing justice by filing false reports to conceal their misconduct.”[11]  Others have beaten “handcuffed prisoners . . . by striking them repeatedly with a baton.”[12]  All of this has been caused by ADOC’s failure to provide “adequate” educational and work opportunities and its failure to “implement effective classification and housing policies.”[13]

DOJ, however, is challenging these conditions of confinement as violative of the “Eighth and Fourteenth Amendments” of the United States Constitution.[14]  The question remains then whether the prisoners can challenge the conditions of their confinement through a writ of habeas corpus. 

The Supreme Court has explicitly left open the question of whether prisoners may challenge the conditions of their confinement through a writ of habeas corpus.[15]  Recognizing this unanswered question, the Supreme Court, in Ziglar v. Abbasi,[16] explained in dicta that habeas would provide a faster and more direct route to relief, “if necessity required its use.”[17]  Although the Court declined to determine the scope or availability of a habeas remedy because it was not at issue, it did explain that a successful habeas petition would require “officials to place [prisoners] in less-restrictive conditions immediately.”[18]

Further, in Preiser v. Rodriguez,[19] the Supreme Court determined that when a prisoner is put “under additional and unconstitutional restraints during his lawful custody” habeas corpus may be available to remove the restraints “making the custody illegal.”[20]  This is because habeas may be “available to challenge such prison conditions.”[21]  The Court also clarified that if a prisoner challenges both the conditions of their confinement and the fact or length of the confinement, the “latter claim . . . is cognizable only in federal habeas corpus.”[22]  However, the Court declined to define the contours of habeas because plaintiffs properly filed under § 1983.[23]  In his dissent, Justice Brennan concluded that some instances remain where a claim may “properly be brought in habeas corpus, even though it is somehow sufficiently distant from the ‘core of habeas corpus.’”[24]

Indeed, earlier Supreme Court cases established that prisoners may use habeas corpus to challenge the conditions of their confinement.  For example, in Johnson v. Avery,[25] a state prisoner sought relief from his confinement in a maximum security unit through a writ of habeas corpus.[26]  The prisoner was challenging a prison regulation that barred prisoners from assisting others in preparing writs of habeas corpus.[27]  The Court held that habeas corpus could be used to challenge unconstitutional conditions of confinement when prison regulations conflict with “federal constitutional or statutory rights.”[28]  In fact, the Court emphasized the “fundamental importance of the writ of habeas corpus in our constitutional scheme.”[29]

Circuit courts, however, are split on the question of whether prisoners can challenge the conditions of their confinement through a writ of habeas corpus.[30]  For example, in unpublished opinions, the Fourth Circuit has held that conditions of confinement claims are not cognizable in habeas proceedings.[31]  All of these cases cite Preiser to hold that a conditions of confinement claim is only appropriate in a § 1983 claim, not through a habeas petition. However, the Preiser court simply concluded a § 1983 action is a “proper remedy” for a state prisoner challenging only the conditions of their prison life, “but not the fact or length of his custody.”[32]  But, in the very next paragraph, Justice Stewart clearly stated, “[t]his is not to say that habeas corpus may not also be available to challenge such prison conditions.”[33]

As Justice Brennan made clear in his dissent, the court’s holding simply means that if a prisoner is challenging the fact or duration of their confinement then a habeas petition is their only option, but a conditions of confinement claim can be brought either through a habeas petition or a civil rights claim.[34]

Using this analysis, the Court of Appeals for the District of Columbia Circuit, in Aamer v. Obama,[35] held a prisoner may challenge the conditions of their confinement “in a federal habeas corpus petition.”[36]  The court specifically stated that Preiser did not “hold that the converse is also true—that is, that any claim challenging something apart from the fact or duration of confinement may not be raised in habeas.”[37]  Instead, the D.C. Circuit concluded the “weight of the reasoned precedent in the federal Courts of Appeal” compels the conclusion that conditions of confinement claims may be brought through a habeas petition.[38]  This view is further supported by the First Circuit, in United States v. DeLeon,[39] which concluded “[i]f the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”[40]

In sum, the writ of habeas corpus should encompass a challenge to a prisoner’s conditions of confinement.  Including these claims within the scope of habeas will allow it to “to achieve its grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.”[41]  In doing so, prisoners will be freed from the torturous conditions that are stripping them of their basic human rights.

[1] Keri Blakinger, Alabama Said Prison Strike Was ‘Under Control.’ Footage Shows System in Deadly Disarray., Marshall Project (Oct. 6, 2022), https://www.themarshallproject.org/2022/10/06/alabama-said-prison-strike-was-under-control-footage-shows-system-in-deadly-disarray.

[2] Id.

[3] Complaint at 1, United States v. Alabama, 2020 WL 7246531 (No. 2:20-cv-01971-JHE) (Dec. 9, 2020).

[4] Id. at 1–2.

[5] Id. at 18.

[6] Id. at 19.

[7] Id.

[8] Id. at 6–7.

[9] Id. at 7–8.

[10] Id. at 14–15.

[11] Id.

[12] Id. at 15.

[13] Id. at 12.

[14] Id. at 20.

[15]  See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement.”).

[16] 137 S. Ct. 1853 (2017).

[17] Id. at 1863.

[18] Id. at 1862–63.

[19] 411 U.S. 475 (1973).

[20] Id. at 499.

[21] Id.

[22] Id. n.14.

[23] Id. at 500. 

[24] Id. at 506.

[25] 393 U.S. 483 (1969).

[26] Id. at 484.

[27] Id.

[28] Id. at 486.

[29] Id. at 485; see also Wilwording v. Swenson, 404 U.S. 249 (1971) (concluding state prisoners have a cognizable claim in habeas corpus to challenge their living conditions and disciplinary measures in prison); In re Bonner, 151 U.S. 242, 259 (1894) (“[The writ of habeas corpus] was intended as a protection of the citizen from encroachment upon his liberty from any source”) (emphasis added).

[30] See, e.g., Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (holding state prisoners can only use a habeas petition if their claims lie at the core of habeas corpus); Miller v. United States, 564 F.3d 103, 105 (1st Cir. 1977) (recognizing federal prisoners may challenge the conditions of their confinement through a habeas petition under 28 U.S.C. § 2241).

[31] See, e.g., Wilborn v. Mansukhani, 795 F. Appx. 157, 164 (4th Cir. 2019) (concluding prisoner’s challenge to the conditions of his confinement do not “fall within the scope of habeas corpus”); Rodriguez v. Ratledge, 715 F. Appx. 261, 266 (4th Cir. 2017) (explaining plaintiff’s deprivation of good conduct is cognizable under § 2241, but his challenge to the conditions of his confinement is not).

[32] Preiser, 411 U.S. at 499.

[33] Id.

[34] See id. at 505 (“Yet even though a prisoner may challenge the conditions of his confinement by petition for writ of habeas corpus, he is not precluded by today’s opinion from raising the same or similar claim…by suit under the Ku Klux Klan Act, provided he attacks only the conditions of his confinement and not its fact or duration”).

[35] 742 F.3d. 1023 (2014).

[36] Id. at 306.

[37] Id. at 300.

[38] Id. at 306.

[39] 444 F.3d 41 (1st Cir. 2006).

[40] Id. at 59.

[41] Jones v. Cunningham, 371 U.S. 236, 243 (1963).

By Zeliang Mike Liu

On June 15, 2020, the Supreme Court issued a landmark 6-3 decision stating that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from firing an individual for being homosexual or transgender.[1] The question came to the court through three different cases: Bostock v. Clayton County, in which a child welfare advocate was fired for participating in a gay recreational softball league after ten years working for a Georgia county; Altitude Express v. Zarda, in which a skydiving assistant was fired after he told a female customer that he was gay, and the customer’s boyfriend complained that he inappropriately touched her; and R.G. & G.R. Harris Funeral Homes v. Equal Employment and Opportunity Commission, in which a funeral home employee was fired when she informed the funeral home that she decided to undergo gender reassignment surgery.[2] Writing for the majority, Justice Neil Gorsuch stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[3]

Though the court’s focus in Bostock was the issue of employers discharging employees based on sexual orientation and transgender status, the court arguably provided a broad ruling with impacts to multiple areas of the law. As Justice Samuel Alito stated in his dissent, the Court’s ruling is “virtually certain to have far-reaching consequences” and will inevitably affect other federal laws, such as Title IX of the Education Amendments of 1972 (“Title IX”), the Patient Protection and Affordable Care Act (“ACA”), and the Fair Housing Act (“FHA”).[4] The implication of Bostock is not only protection of LGBTQ+ rights in employment, but an essential tool to address discrimination against LGBTQ+ community members not just in education, healthcare, and housing.


Workplace discrimination against LGBTQ+ community members is well documented. Between 8–17 percent of LGBTQ+ workers and 13–47 percent of transgender workers have been denied employment opportunities or unfairly discharged because of sexual orientation or transgender status.[5] Nearly 30 percent of LGBTQ+ workers of color reported that they have experienced employment discrimination for sexual orientation.[6]

Title VII prohibits employment discrimination based on an individual’s sex.[7] The statute extends beyond discharging and applies when employers “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment.”[8]Under Title VII, “compensation” includes not only wages but also benefits such as overtime pay, life insurance, vacation and holiday pay, and bonuses.[9]

The Supreme Court’s decision in Bostock directly affects employment practice with regard to an employee’s sexual orientation or transgender status. In its reasoning, the Court stressed that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”[10]Thus, although the individual cases before the Court focused on the wrongful termination of LGBTQ+ workers, the Court nevertheless determined that under Title VII protects against broader discrimination based on sexual orientation and transgender status.[11]

Although the Court specifically stated that its decision in Bostock does not “address bathrooms, locker rooms, or anything else of the kind” when addressing employers’ concern of whether sex-segregated spaces violate Title VII,[12]the Court’s decision does extend to equal access to existing sex-segregated facilities, meaning that an employer cannot deny an LGBTQ+ worker from access to the existing sex-segregated facilities.[13]


Title IX prohibits discrimination “on the basis of sex” in any education program or activity that receives federal funding.[14]Although the statue does not define the scope of discrimination “on the basis of sex,” courts have often looked at cases that define the scope of sex discrimination under Title VII to interpret the meaning of discrimination “on the basis of sex” under Title IX because of the similarities between Title VII and Title IX’s language.[15]The Fourth, Sixth, and Seventh Circuit Courts of Appeal, have all previously held that Title IX prohibits discrimination based on sexual orientation and gender identity by extending decisions that stated Title VII prohibits discrimination based on sexual orientation and gender identity prior to the Supreme Court’s decision in Bostock.[16]

Therefore, Bostock’s holding that Title VII prohibits discrimination based on sexual orientation and transgender status provides further assistance for courts to extend Title IX’s protections for LGBTQ+ students.


The FHA prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability.[17]Similar to Title IX, courts often look to Title VII when determining the scope of prohibited sex discrimination under FHA.[18]Thus, courts are also likely to extend Bostock to FHA and offer greater protection on LGBTQ+ rights under the FHA.

The Trump administration issued a proposal in July 2020 to limit the 2016 Equal Access Rule and allow housing programs funded by the U.S. Department of Housing and Urban Development (“HUD”) to deny shelter access based on transgender status.[19]In light of the Bostock decision, Reps. Jennifer Wexton and Maxine Waters submitted a letter to Dr. Ben Carson, Secretary of HUD, to revise the proposal in accordance with Supreme Court’s holding in Bostock.[20]However, Dr. Carson stated in response that “[t]he Supreme Court’s ruling in Bostock has no impact on the Department’s proposed rule.”[21] HUD’s apparent refusal to take Bostock highlights a next step in the path forward for LGBTQ+ rights.


Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.[22] The nondiscrimination language in Section 1557 was built on other federal civil rights laws including Title VII, Title IX, the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.[23] Thus, since the Supreme Court held in Bostock that Title VII forbids discrimination based on sexual orientation and transgender status, such holding likely carries significant weight in application to ACA.

In 2016, the Obama administration promulgated a rule stating that Section 1557 of ACA prohibits discrimination in health activities and activities on the basis of sexual orientation and gender identity.[24] Earlier this year, the Trump administration proposed a rule to exclude ACA’s protection on sexual orientation and gender identity, and four days after the Bostock decision, the Department of Health and Human Services issued its final rule.[25] However, on August 17, 2020, one day before the rule was planned to go into effect, a federal judge issued a preliminary injunction, which barred the rule from going into effect, relying on the Supreme Court’s decision in Bostock.[26]The recognition of the interplay between Title VII and the ACA provided further assurance on Bostock’s positive impact on ACA.

The Supreme Court’s decision in Bostock is a great victory for LGBTQ+ community that’s worth celebrating. Although the fight for LGBTQ+ rights is not over, Bostock nevertheless demonstrates that the LGBTQ+ community has advanced powerful arguments that even the Supreme Court’s most ardent textualist supports. Similar text in other federal statutes provides a path forward for future solidification of LGBTQ+ rights.

[1] See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).

[2] Id. at 1737–38.

[3] Id. at 1741.

[4] Id. at 1778 (Alito, J., dissenting).

[5] Ctr. Am. Progress et al., A Broken Bargain: Unchecked Discrimination Against LGBT Workers 1 (2014), https://www.lgbtmap.org/file/unchecked-discrimination-against-lgbt-workers.pdf.

[6] Nat’l Pub. Radio Et Al., Discrimination in America: Experiences and Views of LGBTQ Americans 11 (2017), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2017/11/NPR-RWJF-HSPH-Discrimination-LGBTQ-Final-Report.pdf.

[7] 42 U.S.C. § 2000e-2(a).

[8] Id.

[9] U.S. Equal Emp’t Opportunity Comm’n, EEOC-NVTA-0000-12, Facts about Equal Pay and Compensation Discrimination (1997), https://www.eeoc.gov/laws/guidance/facts-about-equal-pay-and-compensation-discrimination.

[10] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020).

[11] See id.

[12] Id. at 1753.

[13] The U.S. Equal Employment Opportunity Commission (“EEOC”) has established that a transgender employee’s right to use woman bathroom is protected by Title VII. Lusardi v. McHugh, E.E.O.C. Doc. No. 0120133395, 2015 WL 1607756, at *7 (Apr. 1, 2015).

[14] 20 U.S.C. § 1681(a).

[15] See, e.g., Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1022–23 (7th Cir. 1997).

[16] See Whitaker, 858 F.3d at 1047–49; Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (noting that Title VII’s prohibition on discrimination based on sexual non-confirming behaviors is applicable in the context of Title IX); Grimm v. Gloucester Cnty. Sch. Bd., 400 F. Supp. 3d 444, 451-52 (E.D. Va. 2019), aff’d, No. 19-1952, 2020 WL 5034430 (4th Cir. Aug. 26, 2020), as amended (Aug. 28, 2020).

[17] 42 U.S.C. § 3604(a).

[18] See, e.g., Smith v. Avanti, 249 F. Supp. 3d 1194, 1200 (D. Colo. 2017) (“The Tenth Circuit looks to Title VII discrimination cases for guidance in addressing discrimination issues under the FHA.”).

[19] Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44,811, 44,811 (proposed July 24, 2020) (to be codified at 24 C.F.R. pt. 5, 576), https://www.govinfo.gov/content/pkg/FR-2020-07-24/pdf/2020-14718.pdf.

[20] See Press Release, U.S. House Comm. Fin. Serv., Walters and Wexton Call on HUD to Reconsider Revisions to Equal Access Rule (July 6, 2020), https://financialservices.house.gov/news/documentsingle.aspx?DocumentID=406742.

[21] Letter from Ben Carson, Sec’y, U.S. Dep’t Hous. & Urban Dev., to Maxine Waters, Rep., 43rd Cong. Dist., and Jennifer Wexton, Rep., 10th Cong. Dist. (July 13, 2020), https://wexton.house.gov/uploadedfiles/hud_response_to_waters-wexton_6.29.20_letter.pdf.

[22] See 42 U.S.C.§ 18116.

[23] Id.

[24] See Maya Rhodan, Obamacare Rule Bans Discrimination Against Transgender Patients, Time (May. 13, 2016), https://time.com/4329609/transgender-discrimination-obamacare-healthcare/; see also 45 C.F.R. § 92.207, https://www.govinfo.gov/content/pkg/CFR-2016-title45-vol1/pdf/CFR-2016-title45-vol1-sec92-207.pdf.

[25] See Dan Diamond, Trump Team Moves to Scrap Protections for LGBTQ Patients, Politico (Apr. 24, 2020), https://www.politico.com/news/2020/04/24/trump-team-moves-to-scrap-protections-for-lgbtq-patients-206398; see also Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June. 19, 2020) (to be codified at 42 C.F.R. pt. 438, 440, 406 and 45 C.F.R. pt. 86, 92, 147, 155, 156).

[26] Walker v. Azar, No. 20CV2834FBSMG, 2020 WL 4749859, at *10 (E.D.N.Y. Aug. 17, 2020).

By James Sprague

The Supreme Court of the United States has the opportunity to shape the future of civil rights litigation in Comcast Corp. v. National Association of African American-Owned Media & Entertainment Studios Networks, Inc. Although 42 U.S.C. § 1981 bars racial discrimination in contracting, circuits disagree on the causation standard necessary to sustain a claim.[1] The Seventh Circuit, for instance, requires racial animus to be a but-for cause of the defendant’s refusal to transact.[2] By contrast, the Ninth Circuit merely requires racial animus to be a motivating factor in the defendant’s refusal, similar to the causation framework available under Title VII discrimination cases.[3]

Due to the difficulty of showing but-for causation in discrimination cases before discovery, the Supreme Court could significantly limit the availability of § 1981 relief if it requires pleadings under the statute to show but-for cause.[4] On the other hand, a relaxed causation standard could expose defendants to predatorial plaintiffs lacking bona fide claims, thereby subjecting blameless defendants to frivolous lawsuits, burdensome discovery, and unnecessary expenses and settlements.[5]

The Backdrop of the Case

ESN is a wholly African American-owned media company that owns and operates numerous television channels and their content.[6] After more than a decade of negotiations, Comcast refused to carry any of ESN’s networks.[7] Alleging racial discrimination in contracting, ESN filed suit in the Central District of California pursuant to 42 U.S.C. § 1981.[8] The district court dismissed ESN’s case three times, but the Ninth Circuit reversed, holding that ESN’s allegations supported the inference that “discriminatory intent played at least some role in Comcast’s refusal to contract.”[9] A brief recitation of ESN’s allegations follows.

  • Comcast executives required ESN to achieve support “in the field” from Comcast’s regional offices and management. After achieving such support, Comcast told ESN that field support did not matter.[10]
  • Comcast corporate representatives told ESN to obtain Division support, but the Divisions told ESN that they deferred to corporate.[11]
  • Comcast executives told ESN that Comcast would carry ESN’s channels if Comcast’s principle competitors, Verizon FIOS, AT&T U-verse, and DirecTV, carried ESN’s channels. Comcast still refused to contract with ESN after Comcast’s principle competitors started carrying ESN’s channels.[12]
  • Comcast consistently cited a lack of carrying capacity when declining to carry ESN’s shows but has launched over 80 channels since 2010, including lesser-known, white-owned channels.[13]
  • Comcast cited a lack of demand for ESN’s productions, but over 50 multichannel video programming distributors broadcast ESN’s channels to an 80-million-person subscriber base, and one of ESN’s channels has won an Emmy Award.[14]
  • Comcast broadcasts all of the channels carried by its principle competitors except ESN’s channels.[15]
  • To affect its merger with NBC Universal, Comcast entered into a memorandum of understanding with civil rights groups requiring Comcast to launch four African American-owned networks. Rather than choose ESN’s channels, Comcast launched new, untested networks that “are predominately white-owned with African American figureheads.”[16]

On March 8th, 2019, Comcast petitioned the Supreme Court for certiorari, arguing that Comcast’s actions were consistent with legitimate business reasons, “namely[] lack of demand for ESN programming and the bandwidth costs for carrying ESN’s channels,” and were unmotivated by race.[17] Because ESN failed to allege facts inconsistent with legitimate reasons, Comcast asserted, ESN did not plausibly show any discriminatory intent animating Comcast’s refusal to contract, thereby failing the pleading standards mandated by Ashcroft v. Iqbal.[18] The Court granted Comcast’s petition on June 10th, 2019.[19] The narrow issue to be considered before the Court is “whether a claim for race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation.”[20]

The Chief Legal Arguments

Petitioner Comcast

First, Comcast asserts that the plain language of § 1981 confirms but-for causation as an element of the claim.[21] Section 1981 guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”[22] Accordingly, if a defendant would have refused to contract with a white person under the same circumstances, the § 1981 plaintiff has not been denied the same right to contract as white citizens.[23] As such, according to Comcast, the defendant must refuse to contract because of the plaintiff’s race; that is; “but for” the plaintiff’s race, the defendant would have assented to the contract.[24] Because § 1981 requires but-for causation, then, plaintiffs must plausibly establish such causation through the factual allegations in their pleadings.[25]

Furthermore, Comcast argues that but-for cause is the default causation rule when in, terpreting federal statutes, quoting the Supreme Court in University of Texas Southwestern Medical Center v. Nassar: “Causation in fact . . . is a standard requirement or any tort claim . . . this standard requires the plaintiff to show ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.”[26] Thus, without language expressly indicating Congress’s intent to the contrary, courts must presume a but-for causation requirement when interpreting statutes.[27] Because § 1981 has no such language, any pleadings arising under the statute fail, absent plausible allegations of but-for cause.

Finally, Comcast argues that Congress first authorized the motivating factor standard in the Civil Rights Act of 1991, over a century after Congress passed the Civil Rights Act of 1866 (which it later recodified as 42 U.S.C. § 1981).[28] Even then, Congress only authorized the motivating factor standard with respect to specific claims under Title VII and the Civil Rights Act of 1964.[29] Because Congress could have authorized the motivating factor standard in § 1981 when it amended the other civil rights statutes, its decision otherwise, according to Comcast, implies Congress’s unwillingness to authorize the approach endorsed by the Ninth Circuit.[30]

Respondent ESN

First, ESN argues that the Court’s previous holdings, and therefore stare decisis, favor a motivating factor and burden-shifting approach under § 1981, and do not require but-for causation.[31] In Patterson v. McLean Credit Union, the Court expressly held that Title VII’s burden-shifting framework applies to claims arising under § 1981.[32] This standard, rather than requiring plaintiffs to plead but-for causation, requires plaintiffs to allege facts “creating an inference of racial discrimination,” after which the burden shifts to the defendant to show that its motivations were legitimate and non-discriminatory.[33]

This approach, according to ESN, is essential because showing but-for cause in § 1981 pleadings often, in the words of Justice O’Connor, “demands the impossible.”[34] As such, many potentially meritorious claims would be unable to survive a motion to dismiss under pleading standards requiring but-for causation.[35] This is especially true in civil rights cases “where the defendant is typically the only party with access to evidence of the defendant’s motives.”[36] By contrast, a motivating factor requirement would allow such cases to at least proceed to discovery.[37]

Furthermore, ESN asserts that §1981’s plain language supports plausible allegations showing motivating factor rather than but-for cause.[38] Section 1981 guarantees that all American citizens have the “same” right to contract as white Americans.[39] Because statutory terms, when undefined within the statute, carry their ordinary meaning, “same” means “identical.”[40] As such, African Americans and other racial minorities do not receive identical treatment if race is a motivating factor in the defendant’s refusal to contract.[41] Additionally, ESN points out that the Supreme Court has endorsed the motivating factor and burden-shifting framework instead of but-for cause in other statutes that use the word “same.”[42] Finally, ESN argues that a motivating factor framework aligns with the comprehensive remedial purpose of § 1981.[43]


In deciding this case, the Supreme Court will have to consider the accessibility of discovery for claims arising under 42 U.S.C. § 1981. Numerous amicus briefs support ESN, including briefs submitted by the NAACP and teams of law professors.[44] The United States filed an amicus brief in support of Comcast.[45] The Supreme Court will hear oral arguments on November 13th, 2019.[46]

[1] 42 U.S.C. § 1981 (2012).

[2] Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1262–63 (7th Cir. 1990) (“To be actionable, racial prejudice must be a but-for cause, or in other words a necessary condition, of the refusal to transact . . . otherwise there is no harm from the prejudice—the harm would have occurred anyway.”).

[3] Nat’l Ass’n of African Am.-Owned Media v. Charter Commc’ns, Inc., 915 F.3d 617, 626 (9th Cir. 2019) (“Even if racial animus was not the but-for cause of a defendant’s refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a factor in that decision.”).

[4] Brief for Respondent at 17, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Sep. 23, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/116717/20190923163651003_38584%20pdf%20Chemerinsky.pdf; see Price Waterhouse v. Hopkins, 490 U.S. 228, 264 (1989) (O’Connor, J., concurring) (recognizing that the but-for test, at times, “demands the impossible”).

[5] Brief for Petitioner at 44, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Aug. 8, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/111674/20190808133518678_Comcast-NAAAOM%20Opening%20Merits%20Brief%20TO%20FILE.pdf.

[6] Nat’l Ass’n of African Am.-Owned Media v. Comcast Corp., 743 F. App’x 106, 106 (9th Cir. 2018).

[7] Id.

[8] Id.

[9] Id. at 107.

[10] Brief for Respondent, supra note 4, at 51.

[11] Id.

[12] Id.

[13] Id. at 52.

[14] Id.

[15] Id.

[16] Id.

[17] Petition for a Writ of Certiorari at 8, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Mar. 8, 2019), https://www.supremecourt.gov/DocketPDF/18/18-1171/91371/20190308153623647_Comcast%20-%20NAAAOM%20Petition%20TO%20PRINTER.pdf.

[18] Id.; see Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009).

[19] Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, SCOTUSblog, https://www.scotusblog.com/case-files/cases/comcast-corp-v-national-association-of-african-american-owned-media/ (last visited Nov. 3, 2019).

[20] Id.

[21] Brief for Petitioner, supra note 5, at 20.

[22] Id.

[23] Id.

[24] Comcast articulates this argument by citing the reasoning of the Third Circuit: “[If] the same decision would have been made regardless of the plaintiff’s race, then the plaintiff has, in effect, enjoyed ‘the same right’ as similarly situated persons.” Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009).

[25] Brief for Petitioner, supra note 5, at 19.

[26] 570 U.S. 338, 346–47 (2013).

[27] Brief for Petitioner, supra note 5, at 22.

[28] Congress passed the Civil Rights Act of 1866 (by overriding President Johnson’s veto) in an attempt to void the Black Codes of the South. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426 (1968). Congress would later recodify this Act as 42 U.S.C. § 1981. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 372 (2004).

[29] Brief for Petitioner, supra note 5, at 28.

[30] Id.; See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174–75 (2009); “When Congress amends one statutory provision but not another, it is presumed to have acted intentionally . . . [and the] negative implications raised by disparate provisions are strongest . . . when the language raising the implication [in this case, the language authorizing a motivating factor standard] was inserted.”).

[31] Brief for Respondent, supra note 4, at 18.

[32] 491 U.S. 164, 186-87 (1989).

[33] Id.

[34] Price,490 U.S. at 264 (O’Connor, J., concurring).

[35] Id.; Brief for Respondent, supra note 4, at 11.

[36] Brief for Respondent, supra note 4, at 11.

[37] Price, 490 U.S. at 264.

[38] Brief for Respondent, supra note 4, at 28.

[39] 42 U.S.C. § 1981 (2012).

[40] Sebelius v. Cloer, 569 U.S. 369, 376 (2013); Noah Webster, An American Dictionary of the English Language (Noah Porter ed., 1864) (defining “same” as “identical”).

[41] Brief for Respondent, supra note 4, at 28.

[42] Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1345, 1353–54 (2015).

[43] Brief for Respondent, supra note 4, at 44.

[44] SCOTUSblog, supra note 19.

[45] Id.

[46] Id.

By Nicholas Pappayliou and Samuel Gilleran

Early last week, the Fourth Circuit Court of Appeals held that victorious plaintiff voters were entitled to reasonable attorney’s fees and costs from the opposing party, the Guilford County Board of Elections, despite the fact that the Board merely enforced but did not craft the legislation giving rise to the dispute.[1]

Facts and Procedural History

This case began when eight voting-age Greensboro citizens and the City of Greensboro challenged the constitutional validity of a law passed by the North Carolina General Assembly that redistricted Greensboro’s city council.[2] The Plaintiffs chose to name the Guilford County Board of Elections as defendant in their lawsuit, notably leaving out potentially liable parties such as the North Carolina General Assembly and State Board of Elections, among others.[3]

After a short bench trial, the district court determined that the law was unconstitutional under the Equal Protection Clause and issued a permanent injunction preventing the Board from implementing the legislation.[4] Thereafter, the Greensboro citizens filed a motion for attorney’s fees and costs from the Board.[5] Typically, “prevailing parties” in redistricting cases should “ordinarily recover” their fees.[6] But in cases with “special circumstances,” the district court has discretion to deny the motion for fees.[7]

In this case, the district court denied the motion because it found that (1) the Board was “innocent” and “not responsible,” i.e., the General Assembly was responsible for enacting the statute and the Board was simply the local functionary of the legislature, and (2) the voters chose to sue only the Board and not the more culpable parties.[8] The court believed that assessing fees would incentivize plaintiffs to sue local governments or parties who would not defend the suit instead of suing the officials who were more responsible and more likely to vigorously defend the suit.[9] The voters appealed the district court’s determination of “special circumstances” to the Fourth Circuit.[10] Consequently, the issue before the Fourth Circuit was: whether the district court ventured outside of its “narrow”[11] discretion in denying the voters’ motion for attorney’s fees because of the purported “special circumstances”[12] surrounding the Board’s role in implementing the unconstitutional North Carolina statute.

Parties’ Arguments

The voters argued that the court in this case abused its discretion in denying the fees by construing the “special circumstances” exception too broadly.[13] The voters argued that the district court’s findings did not rise to the level of special circumstances, noting that the point of fee-shifting provisions is to compensate attorneys who prosecute redistricting cases, not to penalize the defendant.[14]

The Board disagreed, arguing that because it opted not to fight the lawsuit, it should not be responsible for fees.[15] It also argued that it would be unjust for Guilford County as a county to incur the costs that were caused by the state’s enactment of an unconstitutional law.[16]

The Circuit’s Majority Opinion and Dissent

The Fourth Circuit panel ruled in favor of the voters. The majority opinion, authored by Judge Niemeyer, noted that the fee-shifting statutes at issue were enacted to incentivize attorneys to take redistricting cases: “[t]he purpose of fee shifting is not to punish those responsible for promulgating unconstitutional laws, but rather to ‘enable potential plaintiffs to obtain the assistance of competent counsel in vindicating their rights.’”[17] So it was irrelevant that the Board had nothing to do with enacting the unconstitutional law; because the “Board was charged with enforcing the Act and [the voters] obtained full relief” in their suit against the Board, it was a “run-of-the-mill occurrence[]” that fees would be awarded against the Board.[18]

And because it was normal for fee awards to be awarded against those who merely enforce the law, the Board’s argument that it facilitated the lawsuit by not defending it was also unmeritorious. The “Board’s conduct during litigation may have limited its fee liability, [but] it did not immunize the Board from fee liability.”[19] Finally, the circuit court held that it would not be unjust to assess fees against the county for the state’s actions.[20] The burden that it would impose on the county to pay fees in this case is not the voters’ problem or the court’s problem; rather, the “Board’s concerns are ultimately about how North Carolina has chosen” which departments of government enforce election laws.[21]

Judge Richardson dissented. In his view, the district court did have discretion to deny fees when the plaintiffs engaged in “strategic”[22] “litigation conduct”[23] that resulted in a “local government entity with no meaningful responsibility for [the law] and whose budget is far smaller than the state’s” being assessed fees.[24] Judge Richardson would have held that the district court did not abuse its discretion in finding that these were “peculiar circumstances” justifying a denial of fees.[25]

[1] Brandon v. Guilford Cty. Bd. of Elections, ___ F.3d ___, No. 18-1123, 2019 WL 1590903, at *1 (4th Cir. Apr. 15, 2019), http://www.ca4.uscourts.gov/opinions/181123.P.pdf.

[2] Id.

[3] Id.

[4] Id. at *2.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at *3 (citing N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68 (1980)).

[12] Id. (describing how the Fourth Circuit has swiftly corrected denials of motions attorney’s fees in the past).

[13] Id.

[14] Id.

[15] Id. at *4.

[16] Id.

[17] Id. (quoting Kay v. Ehrler, 499 U.S. 432, 436 (1991).

[18] Id.

[19] Id.

[20] Id. at *5.

[21] Id.

[22] Id. at *7.

[23] Id. at *8.

[24] Id.

[25] Id. (quoting ruling below).

By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.


Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.


US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.


US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]


[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity


The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

By John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.


The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.