Deja Vu?: The Irony of the Iranian Election Controversy

On June 13, reform candidate Mir Hussein Moussavi suffered a resounding defeat at the hands of incumbent President Mahmoud Ahmadinejad. Although Mr. Moussavi's campaign had gained significant support in the weeks leading up to the election, coupled with the fact that several polls and political observers predicted that this had the potential to be a very close contest, Ahmadinejad was declared the victor with over 60% of the vote. However, much evidence suggests that the election results may have been riddled with fraud. For example, in his hometown of Tabriz, in which Mr. Moussavi enjoyed a groundswell of support, he surprising lost to Ahmadinejad by the highly suspect margin of 57%-43%. In addition, Ayatollah Ali Khamenei certified the election results and even congratulated Mr. Ahmadinejad before the polls had closed. Immediately upon hearing the news of Mr. Moussavi's defeat, hundreds of thousands of protesters gathered in the streets of Tehran to voice their outrage at the electoral irregularities.

Sitting here in the comfort of our homes in the democratic Western world, we often feel far removed from events occurring in places on the other side of the world that we can barely comprehend or even imagine. At least to some degreee, we are all ethnocentric: even those of us who are enlightened enough to have engrossed ourselves in the comprehensive study of the geographic, social, and religious contexts of Middle Eastern politics are still unable to truly understand what it is like to live in the tumultuous environment of Iran. Thus, in order for an event occurring on the other side of the world to grab hold of our attention, we generally have to be able to relate to it in a fundamental way. While at first look the Iranian Presidential Election may seem to be a far cry from our own experiences with electoral politics, one need not think too hard in order to uncover astonishing parallels to the American electoral system. By looking at the Iranian election from this unique perspective, we can at least begin to understand that the actual differences between the Iranian electorate and the American electorate may not be nearly as great as we once thought. Many of these perceived differences may simply be imaginary misconceptions derived from our Western exceptionalist tendencies.

The 2000 Presidential Election between George W. Bush and Al Gore provides a case in point. A number of striking similarities can be seen by analyzing the 2000 Presidential Election in conjunction with the current Iranian contest. For one, the liberal/conservative voting disparities evident among people of different ages, genders, religions, social classes, and educational levels during the 2000 election are effectively analogous to the progressive/traditional voting trends observed among the Iranian electorate earlier this week. For example, just like in the 2000 presidential contest, members of the younger generation spearheaded the campaign of the more progressive candidate. The members of this more enlightened generation are in general much better educated and more urban than the more traditional generations, just like the generation of youngsters that supported the Gore-Lieberman ticket in 2000. In fact, most of Moussavi's grassroots campaigning took place in the city of Tehran. Not suprisingly, members of this age cohort express significantly more moderate religious views than do their parents. Thus, the phenomenon of newer generations as the primary agents of radical change, which has been exemplified over and over again in U.S. history, is by no means confined to the exclusive realm of Western society. Maybe we're really not so different after all.

Another similarity can be seen in the fact that just like during the 2000 election, the outcome of the Iranian contest is uncertain. We will never know for certain what would have happened if all of the ballots in the disputed Florida counties had been recounted. In a similar sense, the actual results of the Iranian election may never be disclosed to the general public. Also during both elections, allegations of widespread fraud and irregularities led hundreds of thousands to hit the streets in protest of electoral injustices. During the Bush-Gore contest, the recount was never completed since the Supreme Court voted along partisan lines to issue an injunction halting the recount procedures. In Iran, the government panel authorized by Ayatollah Khamenei to investigate the election results announced this morning that only a partial recount would be conducted. Although early statements made by the council indicate that fraud has been committed, the council dismissed the possibility of conducting a new election in light of these findings, and instead held that it would investigate specific allegations of wrongdoing at only a few of Iran's numerous disputed polling stations. The parallel here to the 2000 election is hard to miss: before the Supreme Court intervened, only Florida's Palm Beach County was seriously investigated for wrongdoing for its infamous "Butterfly Ballot," although electoral fraud and corruption were clearly rampant throughout several other counties as well. For example, although Florida's Secretary of State Katherine Harris "mistakenly" labeled tens of thousands of citizens residing in largely Democratic counties as felons, thereby purging them from the polls on election day, no investigation whatsoever was conducted into arguable the most egregious instance of disenfranchisement in the past fifty years. Therefore, both the U.S. and Iranian governments are alike insofar as they found it sufficient to conduct a mere sham of an investigation in the aftermath of highly controversial elections.

Furthermore, the saddest similarity between the two elections is the realization that in all likelihood, the outcome of the Iranian election will soon be decided not by the people of Iran, but instead by the Guardian Counsel appointed by Ayatollah Khamenei. The council is composed of twelve like-minded conservative jurists and mullahs who are required by law to certify the election results. The American media has rightfully chastised the counsel for being an unelected impervious body that is unrepresentative of the Iranian people. Indeed, the entire concept of vesting such an unreliable body with the ultimate power to determine the results of a crucial presidential election should seem both counterintuitive and comtemptible to us all. Yet upon further reflection, this situation is certainly not foreign to us. In the infamous case of Bush vs. Gore, the nine justices of the U.S. Supreme Court actively decided to intervene and end the recount (in a 5-4 decision), and in turn declared George W. Bush the winner of the 2000 Presidential Election. The votes cast by more than 100 million Americans on election day ultimatly did not count in the process of determining our Nation's next president. All that mattered were the nine votes registered by the justices of the Supreme Court. Thus, in reality Al Gore lost the presidency by merely a single vote. I know that it initially seems unfathomable, but at least under certian circumstances, U.S. presidential elections are no more representative and democratic than the outrageous election that we have just witnessed in Iran.

So where does this ultimately leave us? Do these striking similarities between our own electoral system and that of Iran tell us something about our own system? I believe they certainly do. I am not arguing that we should halt our criticism of Iran until the time at which we finally overcome our own internal hypocracies and contradictions. Instead, we should continue to adamently voice our collective disagreement and disgust at the tainted results of the Iranian election, but at the same time take a critical look at our own electoral system. Apparently the excessive fraud and irregularities of the 2000 election were not quite sufficient to force us to initiate major changes in the way we go about electing our leaders. Numerous flaws are still inherent in our approach to choosing the next president. Just to name a few; campaigning starts on the day the new president takes the Oath of Office; the president's primary goal is to get reelected, and thus he is forced to pursue the most popular available policy alternatives, not necessarily the most beneficial; electoral fraud, voter intimidation, and the intentional misinforming of voters are still far too common; voting malfunctions, whether caused by old fashioned or newer electronic voting mahines, are widespread and give some citizens a higher chance of having their votes counted than others; the archaic winner-take-all system still used today in all but two states effectively disenfranchises everyone who votes for the losing candidates; voting power is disproportionately concentrated in only a few states, forcing candidates to neglect the interests of significant portions of the country; our leaders are not directly elected by voters, but rather slates of electors (who are not technically legally bound to vote in concert with the public results); and most importantly, the popular vote does not necessarily determine the ultimate winner of the election (as shown so brilliantly by the 2000 electoral debacle). But maybe, just maybe, by taking a serious look at how similar we really are to a Nation that we all despise and castigate as a member of the "Axis of Evil," we will be provided with the impetus necessary to motivate us to finally undertake this daunting task.

The Right-Wing's Strategy For Dethroning Obama

Ever since President Obama took the Oath of Office this past January, the Republicans have been adamently searching for ways to undermine his popular support. Although President Obama has already pursued a very ambitious and at times highly controversial agenda up to this point during his time in office, the great majority of the attacks against him have not come in the form of well reasoned substantive disagreements with his policy positions. Rather, in general the attacks against Obama have thus far appeared in the form of attacks on the personality and characteristics of President Obama and his family. In order to show just how ridiculous these attacks have become, I have decided to list some of my favorite examples:

1. Obama adheres to a socialist ideology and is determined to destroy what is left of the American capitalist system. Every night on Glen Beck's program on the Fox News Network, Beck goes on a rant about how America's economic system is being completely transformed by the Obama administration, sometimes resulting in Beck breaking down in tears to symbolize his endless love for capitalism. What Beck and most of the political right have failed to realize is that Obama's actions during the current economic crisis have been designed not to undermine capitalism, but instead to preserve and restore its most important institutions. For example, although I disagree with the ethical aspects of Obama's decision to bail out the Nation's failing banks, I nevetheless recognize that this is a necessary step in pursuance of the effort to revive the economy. If Obama had instead let capitalism run its course in its pure undiluted form, and had permitted some of the largest banks to die out, consumer confidence would have suffered an enormous hit (as if it has not been hit hard enough already), housing prices would have continued to spiral downward at a pace comparable to when the bubble initially bursted, and it would have made the process of obtaining a loan nearly impossible for the needy family. It is important to also keep in mind that this trend of socializing aspects of our Nation's financial institutions was not initiated by President Obama, but rather back under the Bush administration when it decided to bail out Bear Sterns. Thus, this method of incorporating socialistic aspects into capitalist institutions is by no means only confined to the liberal agenda, contrary to the assertion of Glen Beck. If the lessons of this economic crisis could be summed up into a single sentence, it would be this: in order for capitalism to work correctly and provide economic benefits to as great a percentage of the American public as possible, it is necessary for the federal government to enact carefully constructed restrictions on the financial activities of a number of U.S. industries. These restrictions should not be designed to stifle economic growth and free enterprise, but instead to protect the public from fradulent lending practices (as exemplified ever so clearly by the subprime mortgage debacle) and avert future financial disasters.

2. Obama is a radical Muslim cleric who is set on destroying America and establishing a Muslim stronghold in the West. I think the content of this absurd claim speaks for itself, and merits no further discussion.

3. Obama took a vacation to Hawaii and is therefore unfit to be Commander-in-Chief. During his time in office, President Bush set a new record by spending more than a year of his presidency (collectively) at his ranch in Crawford, Texas. Congratulations to Mr. Bush for becoming America's most vacationed president in history!

4. Obama has no regard for the Constitution, and is set on destroying it. Have the proponents of this claim slept through the abuses committed by the Bush administration during the previous eight years? Just to remind them, the Bush administration authorized warrantless spying procedures in clear violation of the Fourth Amendment; established a system of military tribunals that did not guarentee defendants their Fifth and Sixth Amendment right to be provided with effective counsel, confront their accuser, see the evidence against them, or even be considered innocent until proven guilty; suspended the writ of habeas corpus, which according to the text of the Constitution can only be suspended by CONGRESS, and not the president, during cases of national rebellion; issued an enormous number of presidential signing statements declaring invalid over 1,000 separate sections of congressional enactments; authorized the CIA to use several "enhanced" interrogation techniques including waterboarding, mock executions, and electrocution of the genitals; established a number of secret overseas CIA prisons and ordered the CIA to destroy 92 interrogation tapes when subpoenaed by Congress; and held that once labeled as an enemy combatant, an individual could be held in custody indefinitely. If you ignore these "minor" constitutional blemishes, then the Bush administration had a pretty honorable record of upholding the Constitution.

5. Obama uses a teleprompter during speeches. Is the political right really claiming that President Bush memorzied his speeches? Sometimes it's really hard to take these criticisms seriously.

6. Obama took his wife Michelle to see a broadway show during the middle of an economic crisis. Isn't that outrageous? Once again, I think this one just speaks for itself.

7. During a speech in the Middle East, Obama declared that the U.S. is not a Christian Nation, but rather a Nation founded on the value of religious freedom. Wasn't our Nation founded just so that Christian extremists could subjugate all people who expressed differing viewpoints on the issue of religion? The Constitution doesn't say anything about religious freedom, does it? Actually it does, just read the First Amendment. These extremists fail to consider the primary reason why the Pilgrims came and settled the colonies in the first place: to escape religious oppression.

8. Obama's birth certificate is fake. This one can most aptly be described as a product of someone's imagination (or maybe it was devised by Rush Limbaugh during one of his drug trips).

9. Obama is an elitest because he likes his hamburgers with spicy dijon mustard. Apparently Obama is just too good for ketchup. I know it's hard to believe, but Sean Hannity actually raised this claim during one of his hilarious rants. Check it out: http://www.huffingtonpost.com/2009/05/07/hannity-attacks-obama-for_n_198851.html

10. Obama is going to round up all Republicans and put them in FEMA reeducation camps. Thank you Glen Beck: http://www.videosift.com/video/Glen-Beck-thinks-Obama-has-built-FEMA-camps-for-republicans

11. Obama favors teaching sex education to kindergartners. I guess this approach to sex education is opposed to the approach favored by the Pope, encouraging abstinence because condoms facilitate the spread of AIDS.

12. Obama had cocaine-fueled gay sex in the back of a limousine. http://www.wnd.com/index.php?fa=PAGE.view&pageId=56626

When is enough just enough already? I'd like to remind the right that our Nation is currently in peril: the economy is failing, the unemployment rate is nearly a whopping 10%, 48 million Americans do not have healthcare (this figure does not include the over 100 million Americans with inadequate health care), the Social Security trust fund is in serious jeopardy, the polar icecaps are melting (about a decade from now, nearly 1/6 of the world's current water supply will be lost forever), and we are engaged in wars on two fronts. This is not the best time to focus our attention on issues such as Obama's peculiar eating habits. Instead, we need to immediately refocus our efforts toward devising viable solutions to each of these significant problems, and abandon this petty and childish discourse.

Mr. Cheney, Can You Please Shut Up Already?

Two weeks ago, Dick Cheney gave a speech at the American Enterprise Institute in order to rebuke President Obama's vision of the role of the federal government with regard to its duty to provide for national security. While on one hand no one can fault Cheney for putting forth a passionate argument in support of his position, the fact remains that his position is seriously misguided. Cheney committed a number of factual errors during his unnecessary rant. One of the most egregious of these errors can be seen in the following statement: "In the years after 9/11, our government also understood that the safety of the country required collecting information known only to the worst of the terrorists. And in a few cases, that information could be gained only through tough interrogations." With this statement, Cheney asserted that the use of enhanced interrogation techniques, such as waterboarding, facilitated the administration's ability to obtain accurate and useful information regarding potential terrorist activities on U.S. soil and abroad. In other words, Cheney holds that the use of interrogation techniques amounting to torture, at least under the definition adopted by the UN Convention Against Torture, has produced vital intelligence information which in turn has saved countless American lives. The key flaw inherent in this line of reasoning is that Cheney has failed to produce any tangible evidence whatsoever to justify his assertion that this program of enhanced interrogation techniques has produced beneficial results from the perspective of the American intelligence community.

In fact, the administration's program of "enhanced" interrogation techniques was unwisely modeled after a program developed by the CIA during the Korean War, known as the SERE program. During the war, Communist forces tortured captured American troops in order to produce propaganda films of troops confessing to brutal crimes. The CIA knew that the confessions were false and that they had been coerced through the interrogation proceedings, and thus the CIA was looking for a way to prevent the spread of such propaganda in the future. Therefore, in light of these coerced confessions, the SERE program was established in order to put trainees through simulated torture in order to build up their resistance.

When the Bush administration was debating which methods should be used in order to interrogate suspected terrorists, it ultimately decided to adopt the same methods used by the Koreans to torture American troops. As stated by the head of the U.S. Southern Command, General James T. Hill, administration officials tapped the “SERE School and developed a list of techniques." However, in approving of these interrogation techniques, the Bush administration failed to consider the fact that they were not developed for informational purposes: rather, they were only used by the Koreans in order to elicit false confessions for propaganda purposes. Therefore, the SERE techniques were mistakenly applied by the Bush administration under the misconception that their use would produce valuable intelligence. Even the CIA itself had conceded in a 1963 interrogation manual that the coercive approach was not conducive to obtaining reliable information because “under sufficient pressure subjects usually yield but their ability to recall and communicate information accurately is as impaired as the will to resist."

To make matters even worse for the administration’s program, in the years since the authorization of the harsh interrogation techniques it has become apparent that the officials charged with implementing the techniques were not well-trained, and were unaware of both the origins and practical limitations of the SERE techniques. Boston Globe reporter Charlie Savage reports that the interrogators did not understand that “the coercive techniques used in the program were designed to make prisoners lose touch with reality so that they will falsely confess to what their captors want to hear, not for extracting accurate and reliable information." Thus, the Bush administration’s approval of the SERE techniques illustrates that the proponents of torture have significantly underestimated the difficulty of both establishing an effective torture practice, and then properly training and equipping a professional torture force. At least at the current point in time, the U.S. government has not yet been able to establish either of these two essential preconditions for the effective use of torture. As the example of the Bush administration serves to show, it is unlikely that such institutions will be adequately established within the near future as well.

As a result, Army Colonel Stuart Herrington, who conducted interrogations in Panama and Iraq during Desert Storm, sternly asserts that torture should be outlawed under all circumstances. “Aside from its immorality and its illegality, says Herrington, torture is simply ‘not a good way to get information.’” In his experience, Herrington discovered that nine out of ten people can be persuaded to talk without using harsh techniques at all. In fact, Harrington implies that an inverse relationship exists between the severity of the interrogational techniques used and the reliability of the information obtained: as the severity of the interrogation increases, the reliability of the information decreases because torturing a prisoner undermines the ability of the interrogator to build a rapport with him. According to the Navy’s top forensic psychologist, Dr. Michael Gelles, the rapport-building approach to conducting interrogations is far superior to the adversary approach, at least from the perspective of attempting to obtain accurate intelligence. Thus, we can conclude from this discussion that torture is an effective means of gathering information. However, the information obtained through the application of torture will likely serve no practical use, on account of the fact that its accuracy is uncertain.

Therefore, contrary to Cheney's assertion, these techniques were clearly not well tailored toward the important goal of obtaining accurate information about potential terrorist attacks. And what has been the ultimate result of this unfortunate reliance? Well in the run up to the war in Iraq, the administration's primary evidence for the necessity of invading Iraq turned out to be based on coerced evidence, which subsequently turned out to be false. When Colin Powell went before the UN and articulated the administration's case for invading Iraq, he showed the international community pictures of an Iraqi trailer that allegedly contained biological weaponry. This evidence was based on the confession procured from a captured terrorist, who stated, after being subjected to waterboarding and other enhanced techniques over a period of several weeks, that the trailer contained these weapons. The CIA later determined that the confession did not contain a word of truth in it.

Thus, the use of torture served to provide the administration with a fictitious justification which facilitated the administration's ability to commit the U.S. to battle in Iraq. Indirectly, the use of torture has led to the death of over 4,000 troops and nearly 100,000 Iraqi civilians at this point in the war. In summation, instead of aiding the U.S. in its effort to defeat international terrorist organizations, the use of torture has actually been counterproductive insofar as it has served to spark the ire of the Muslim world, alienated our traditional European allies, and undermined the United States' position as the world's foremost superpower as the primary promoter of human rights and principles of justice throughout the entire world. Yet despite the overwhelming evidence against his position, Cheney still stated that, "We sought, and we in fact obtained, specific information on terrorist plans. Those are the basic facts on enhanced interrogations." This blanket assertion begs the question, in which specific instances did the use of waterboarding and similar techniques serve to produce reliable intelligence? Cheney has yet to provide an answer to this crucial inquiry. The facts on the issue of enhanced interrogation techniques are not merely what Mr. Cheney claims them to be, but rather can clearly be found in several reports published by the CIA and the military on the merits of using techniques such as waterboarding.

Sources:
Savage, Charlie. Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy. 2007.
Applebaum, Ann. “The Torture Myth.” Washington Post. January 2005.

The United States’ Foreign Policy During the Rwandan Conflict: Dismissing Preventing Genocide From the National Interest

Ever since the time of the 15^th century, the area of Africa currently known as Rwanda has been strictly divided along ethnic lines. At the beginning of this century, Tutsi cattle breeders began arriving in Rwanda and gradually subjugated the existing Hutu inhabitants. The Tutsi monarchy established a contract with the Hutu farmers known as ubuhake, in which the Hutu farmers pledged their services to a regional Tutsi lord in return for the use of pastures and arable land (History of Rwanda 1). The Tutsi dominated monarchy remained in power all the way up until the conclusion of the First World War. In 1915, the League of Nations designated Rwanda to serve as a mandate of Belgium (History of Rwanda 2). In 1959 (three years prior to Rwanda receiving complete independence from Belgium), the increasingly resentful Hutu population organized a massive revolt against the longstanding tradition of Tutsi rule. As a result of the revolt, over 160,000 Tutsis fled Rwanda, thus leaving the Hutu faction as the new majority (History of Rwanda 4). While over the next two decades the region remained relatively peaceful, violence between the two groups once again began to escalate during the 1980s. In 1993, the Tutsis and Hutus attempted to come to a compromise by signing the Arusha Accords, which provided for a power-sharing government in order to ensure at least a subsistence level of political representation for the Tutsi minority (Power 3). For a few months after the passage of the Arusha Accords, it appeared as though the turmoil between the two factions may have finally been alleviated. However, even one little spark could serve to jeopardize the tentative peace agreement and plunge the County into a state of perpetual chaos.

 On the evening of April 6, 1994, the plane carrying Rwandan President Juvenal Habyarimana was struck by a missile in mid-air. The Hutu majority used the death of Habyarimana as a pretext to begin a system of mass genocide. “Using firearms, machetes, and a variety of garden implements, Hutu militiamen, soldiers, and ordinary citizens murdered some 800,000 Tutsi and politically moderate Hutu” (Power 1). Over the course of a 100 day period during the summer of 1994, the Hutu-controlled government of Rwanda almost successfully exterminated the country’s entire Tutsi minority during an ethnic cleansing effort. Despite the fact that this conflict was among the most heinous genocides in modern history, the United States government refused to actively involve itself in the conflict. The Clinton administration viewed the Rwandan conflict as a type of natural disaster: the periodic turbulence which inevitably occurs within and between developing African Nations. The two primary reasons why the Clinton administration chose not to intervene in the Rwandan genocide were the recent memory of the United States’ failed humanitarian aid mission in Somalia, and the perception that the United States did not possess any tangible national interest in the region. Furthermore, as a result of its inaction, the U.S. government effectively violated the UN Genocide Convention. The Clinton administration severely overlooked a crucial component of the national interest: the United States’ credibility in the eyes of the international community as a forerunner of universal human rights. Even though President Clinton was reluctant to use force in the aftermath of Somalia, he possessed a plethora of alternative options which if pursued could have expedited an end to the genocide. Thus, the Clinton administration committed an error of epic proportions by making a calculated effort to refrain from sending reinforcements to Rwanda. 

On October 3, 1993 the U.S. Army landed in Somalia in an attempt to seize several top advisors to the warlord Mohammed Farah Aideed. President Clinton had few reservations about using force to complete this mission, due to the fact that his advisors informed him that this would be a low-risk humanitarian aid mission. However, during the commission of the military effort, Aideed’s fighters killed 18 American troops and wounded another 73 (Power 7). The American public was horrified by images of a U.S. Black Hawk Pilot being dragged through the Mogadishu streets during a bloody procession. It was precisely these images coupled with the American public’s distaste of leading troops on what they perceived as a suicide mission, which drove the Clinton administration’s future foreign policy initiates. 

As a direct result of the Somalia catastrophe, President Clinton and his inner core of advisors began the process of reforming the United States’ formal peacekeeping doctrine. Clinton assigned his National Security Advisor, Richard Clarke, to formulate guidelines in order to guide future U.S. participation in multilateral peacekeeping operations (Ausink 65). Together with President Clinton, Clarke produced a document known as Presidential Decision Directive 25, which created rigorous standards of review for U.S. participation in humanitarian interventions. “The directive prescribes a number of specific steps; to improve U.S. and UN management of UN peace operations in order to ensure that use of such operations is selective and more effective” (Scheffer 2). While the entire text of PDD-25 has not to date been released to the public, President Clinton’s press secretary did briefly discuss the directive’s substance during a 1994 press conference. This new doctrine consisted of three key principles: the U.S. will only support future peacekeeping operations if there is a clearly identifiable national interest at stake in the area, clearly defined mission objectives, and an identifiable exit strategy when armed force is used (United States Department of State). Therefore, PDD-25 actually explicitly stated that there must be a tangible U.S. interest in the area in order to support peacekeeping operations in any capacity. As a result of Somalia, the United States would now be substantially more reluctant to provide aid to civilians in need in developing countries. The recent memory of the 18 soldiers killed in Somalia played a substantial role in dissuading the U.S. from sending troops to Rwanda.

“In this context, peacekeeping can be one useful tool to help prevent and resolve such conflicts before they pose direct threats to our national security. Peacekeeping can also serve U.S. interests by promoting democracy, regional security, and economic growth” (United States Department of State). The Executive Summary of PDD-25 released to the public articulated that the administration would define the term national interest very narrowly in the aftermath of Somalia. In fact, the Executive Summary identified only three examples of the national interest: promoting democracy abroad, providing for regional security, and increasing domestic economic output. By stringently applying this misguided conception of the national interest to the Rwandan genocide, President Clinton immediately dismissed the option of using force in Rwanda. In effect, the memory of Somalia blinded Clinton from the fact that Rwanda was an entirely different situation. Unlike in Somalia, systematic mass killings were being conducted with the intent to wipe out the membership of an entire ethnic group. While it is likely that President Clinton knew this to be true, he refused to acknowledge that the conflict in Rwanda constituted an actual genocide in public. “We cannot solve every such outburst of civil strife or militant nationalism simply by sending in our forces” (Ausink 66). As exemplified by his speech at the U.S. Naval Academy, Clinton went out of his way to carefully consider his word choice in order to avoid labeling the conflict as genocide. Clinton’s calculated effort to refrain from saying the “g-word” in public can be explained by a simple reason: the United States has been a party to the UN Genocide Convention since its ratification in 1948. 

President Clinton refrained from using this terminology in order to prevent the U.S. from being held to its obligations under the UN Genocide Convention. The Convention defines genocide as acts committed with the intent to destroy a national, ethnic, racial, or religious group through violent or harmful means (Convention on the Prevention and Punishment of the Crime of Genocide 1). Therefore, due to the fact that the ultimate goal of the Hutus was the complete extermination of an entire minority group, this situation clearly constitutes an act of genocide under the Convention. “States that are party to the Genocide Convention have agreed that ‘genocide, whether committed in time of peace or in time of war is a crime under international law which they undertake to prevent and punish’” (The American Journal of International Law 693). While the Convention does not explicitly require member countries to send force in order to combat genocidal acts, it does mandate them to send some form of aid in order to facilitate an end to the mass slaughter. In other words, all countries who signed the treaty pledged not to stand idly by in the case of future genocides. “There are obligations that arise in connection with the use of the term” (Gourevitch 153). As effectively acknowledged by State Department spokeswomen Christine Shelley, the Clinton administration avoided the use of the term genocide precisely so the U.S. could remain a bystander during the conflict. By failing to identify the protection of foreign civilian lives as a component of the national interest, PDD-25 was effectively at odds with the UN Genocide Convention. PDD-25 ruled out any serious peace enforcement effort by the U.S. in the foreseeable future, regardless of whether or not innocent civilians were being targeted for annihilation. 

As shown by Clinton’s circumvention of the UN Genocide Convention, the primary problem was not that the U.S. was completely ignorant about Rwanda, but rather that the U.S. did not possess any tangible interests in the area. Unlike in the current Iraqi military occupation, the State of Rwanda did not contain any natural resource which would prove valuable to U.S. economic interests, such as oil. With the exception of promoting democracy abroad, the other two examples of the national interest articulated by PDD-25 were primarily short-term concerns. By not becoming actively involved in Rwanda, the Clinton administration failed to differentiate between immediate and long-term interests in the region. Despite the reservations of the Clinton administration, the U.S. did possess substantial long-term interests in the resolution of the Rwandan genocide. For example, the U.S. undoubtedly has a national interest in enforcing treaties to which the U.S. is a party. However, this interest was undermined by the Clinton administration’s decision to disregard the UN Genocide Convention. The substance of this treaty has now effectively been nullified: why would any other country still adhere to the terms of the treaty if the world superpower decides to ignore it completely in the midst of the worst genocide since the Holocaust?  

Furthermore, another forgotten component of the national interest was the promotion of international human rights. The 5^th Amendment to the U.S. Constitution embraces the notion that that each person possesses the inalienable rights to life, liberty, and property (Dworkin 2). These three rights, at least theoretically, should be universally applicable. In other words, all people obtain certain fundamental rights directly from nature itself, simply because they are human (Dworkin 4). Clearly, the most basic of these rights is the right to life. Through its policies during the Rwandan genocide, the U.S. effectively articulated to the rest of the world that the right to life of African civilians is not equivalent to that possessed by U.S. citizens. This assertion is evinced by the fact that President Clinton ordered the evacuation of the 255 American diplomats in the Rwandan area prior to the escalation of violence (Ausink 61). The only perceived national interest in the mind of President Clinton was evacuating American diplomats from the region. The precedent set by the administration’s policy of abruptly evacuating foreign nationals was that the lives of 255 Americans were more important than those of the 800,000 Rwandans who perished partly as a result of the United States’ inaction. For every one American live saved during the evacuation, approximately 3,200 Rwandans were killed during the course of the genocide (Ausink 62). Thus, the U.S. government devalued the lives of the Rwandan people due to the fact that it considered the conflict to be far removed from the promotion of U.S. national interests. By distancing itself from the Rwandan conflict, the U.S. missed out on a significant opportunity to prove to the world that it is not only a proponent of human rights, but international human rights as well. Therefore, U.S. credibility in the eyes of the international community was an overlooked component of the national interest in Rwanda.     

Once the Clinton administration decided to take the military option off the table, the U.S. still had several nonmilitary options available, any of which could have been used to alleviate suffering in Rwanda. The first option was that the U.S. could have pressured the Belgian peacekeepers not to leave the region. Shortly after the assassination of President Habyarimana, Hutu forces captured and brutally murdered ten Belgian peacekeepers. In response to these killings, the Belgian leadership cried out to the international community for help: they would only agree to keep their remaining peacekeepers within the region if several hundred reinforcements were sent to provide support (Power 7). While Belgian officials called for the creation of an all-African force in order to at least safeguard the Rwandan refugees in neighboring Burundi, the Clinton administration actively opposed the creation of such a force. “The United States, in its role as superpower, cannot be caught in the position of being a policing officer in a conflict” (Ausink 61). In justifying his opposition to the Belgian Prime Minister’s request, President Clinton articulated that it was simply not the United States’ job to take actions in order to solve every international crisis. As a result of the Clinton administration’s inaction, Belgium was left with no other choice except to withdraw its remaining peacekeepers in order to preclude them from being slaughtered. 

Furthermore, the U.S. could have supported the employment of a UN peacekeeping force. The United Nations Assistance Mission in Rwanda (UNAMIR), led by Canadian General Romeo Dallaire, was initially authorized by the UN to provide protection for the Tutsis through the use of a 2,500 person peacekeeping force (Ausink 59). After witnessing first-hand the chaos that erupted at the beginning of April 1994, Dallaire petitioned the UN Security Council to increase the number of UNAMIR peacekeepers to 5,000 strong. “If UNAMIR had received the modest increase of troops and capabilities we requested in the first week, could we have stopped the killings? Yes, absolutely” (Dallaire 514). According to Romeo Dallaire, if the world superpowers (most notably the U.S.) had pledged a minimal amount of support to UNAMIR, the most egregious aspects of the Rwandan genocide could have been averted. While Dallaire’s view may in fact be naïve, it is difficult to dispute that notion that the doubling of UNAMIR’s forces would have saved at least thousands, if not hundreds of thousands of lives. To make matters worse, not only did the U.S. refuse to support UNAMIR, but it even went so far as to actively work against the establishment of an effective UN peacekeeping force. Immediately after evacuating all of its diplomats from Rwanda, the U.S. urged the UN to withdraw all remaining peacekeepers from the region in order to shield them from the escalating violence. While UN Ambassador Madeline Albright eventually convinced the Clinton administration to support a force of 270 Ghanian peacekeepers to remain in Kigali, the administration refused to approve any additional troop surges from this point forward (Ausink 61). Once the idea of enlarging UNAMIR was formulated by Dallaire and Secretary General Boutros-Ghali, the U.S. spent considerable time and effort to ensure its defeat. “We will oppose any effort at this time to preserve a UNAMIR presence in Rwanda. Our opposition to retaining a UNAMIR presence in Rwanda is firm” (Power 17). As exemplified in a report prepared by U.S. Secretary of State Warren Christopher, the U.S. made a calculated effort not only to prevent itself from being obligated to send reinforcements to Rwanda, but also to prohibit the international community from doing so as well. This policy of active opposition used by the Clinton administration ultimately forced the Rwandan citizens to fend for themselves. 

Another path that the U.S. could have pursued would have been to neutralize Radio Mille Collines. “During the genocide, RTLM called for the killing of Tutsi and branded as a traitor any Hutu who did not join those hunting and killing the enemy” (Kamatali 9). Radio Mille Collines served to incite the Hutus by glorifying the use of vigilante violence against the Tutsis. It even went so far as to provide the names and exact locations of Tutsi “deserving to die” (Kamatali 11). Due to the fact that Radio Millie Collines was considered to be very popular with the general public even prior to the commencement of the Hutu-endorsed slaughter, this medium was successfully able to quickly reach millions of Hutu listeners throughout the Nation. After he realized that the U.S. would never agree to support a military effort in the region, Dallaire urged the Clinton administration to undertake the low-risk mission of jamming the radio station’s broadcasts. The U.S. could have easily accomplished this without any loss of life by transmitting counter-broadcasts from a distant airborne platform (Power 19). Despite the relative simplicity of this mission, the Clinton administration provided two reasons for refusing to undertake it. The first reason was that it would cost $8,500 every hour in order to use the jamming platform (Power 21). Once again, the U.S. government knowingly decided to place a price on human lives. By failing to neutralize the station, the U.S. effectively articulated that saving $8,500 each hour was more important than the lives of the approximately 400 Rwandans who perished every hour. 

Furthermore, the State Department Legal Advisor’s Office issued a finding against jamming the radio on the grounds that the U.S. government was unequivocally committed to freedom of speech (Power 19). In other words, the U.S. argued that although the radio may have incited violence, its broadcasts did not kill people: the Rwandan people were the ones responsible for killing people. The view presented in this instance by the State Department, that freedom of speech within the U.S. is absolute, is undoubtedly a misconception. On numerous occasions, the U.S. Supreme Court has ruled that freedom of speech can necessarily be restricted under extraordinary circumstances. “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg vs. Ohio). One of these special circumstances is speech which is inciteful or presents a danger to members of the general population (Dale 4). Thus, the Supreme Court has articulated that in certain cases an individual’s (or organization’s) right to freedom of speech must be balanced against the government’s duty to provide for the safety and welfare of its citizens. The invalid legal argument put forth by the State Department was simply another excuse to justify the United States’ reluctance to involve itself in the Rwandan conflict. While Radio Mille Collines may not have directly led to the slaughter of 800,000 Rwandans, it certainly played a substantial role in promoting the killings. We will never know just how many lives would have been saved had the U.S. intervened.

“We come here today party in recognition of the fact that we in the United States and the world community did not do as much as we could have and should have done to try to limit what occurred in Rwanda” (Power 2). In March 1998, President Clinton issued an apology to the people of Rwanda for failing to take sufficient measures in order to expedite an end to the systematic killings. Clinton expressed his personal regret for permitting the worst genocide since the Holocaust to occur under his watch. In hindsight, the U.S. inaction during the Rwanda debacle should convince many developing African Nations that from now on they will have to take matters of protection into their own hands. No longer will these developing Nations be able rely on the U.S. to intervene during crisis situations. Many of these African Nations have already started taking measures in order to liberate themselves from their historical dependence on Western support. These measures include greatly expanded military forces, import substitution policies, and diversifying their exports (Mkandawire and Soludo 12). These measures are designed to both decrease economic dissatisfaction, which has historically led to civil instability, and to increase the government’s power to retain order and legitimacy. Furthermore, the member States of the African Union undertook collective action in order to achieve a sustainable peace throughout the area, by creating The Peace and Security Council in 2003 (InterAfrica Group 2). However, these measures have yet to hinder the perpetual violence occurring in the Rwandan area. According to one estimate, approximately 4 million additional people have been killed in the region since the perceived conclusion of the Rwandan genocide (Human Rights Watch). While not nearly as pervasive as in 1994, slaughter in the region continues today partially due to American apathy. It is difficult for the average American citizen to consider protecting the lives of innocent Africans to constitute a vital component of the national interest, when most Americans would be unable to even locate Rwanda on a map. While the American people felt far removed from the conflict and were occupied with their daily routines of shopping, working, and eating dinner with their families in April 1994, 8,000 Rwandans were murdered each day simply because of their ethnic background. Due in part to the misuse of history by President Clinton, this ethnic cleansing effort was allowed to continue unabated for 100 consecutive days. Thus, the U.S. foreign policy during the Rwandan genocide exemplifies the danger of using direct historical analogies: no two events occur under exactly the same circumstances. Hopefully both the U.S. government and the rest of the world will remember this important lesson when they are confronted with humanitarian intervention decisions in the future.

New Jersey’s Megan’s Law: Has it Successfully Expedited the Decline of Sexual Crimes?

In response to the brutal rape and murder of seven-year-old Megan Kanka by a twice-convicted sex offender, the New Jersey legislature quickly enacted 11 bills designed to combat sexual predators, which became collectively known as Megan’s Law. Megan’s mother, Maureen Kanka, believed that every citizen living in New Jersey had a right to know whether or not there was a sex offender living within their community that they would be likely to encounter. In order for this right to be realized, Mrs. Kanka led the drive to enact a community notification bill. While the law has undoubtedly served to increase public awareness about the dangers posed by sex offenders, Megan’s Law (as initially enacted) contained several shortcomings, primarily due to its hasty passage. As it turns out, this expedited method of enacting Megan’s Law precluded its effective enforcement during the first three years, primarily due to numerous court-imposed changes in the original legislation. Furthermore, while Megan’s Law may successfully achieve the goals of incapacitating and registering sex offenders, it should have devoted more resources toward treating sex offenders in order to ensure their successful reintegration into the community. Despite these shortcomings, Megan’s Law was a valiant attempt on the part of New Jersey’s legislators to quickly respond to a horrific event under a plethora of pressure from the State’s active citizenry. Thus, while in many ways this revolutionary legislation can be seen as a monumental achievement, the New Jersey legislature should continue to look for ways to refine it in order to improve its implementation and better protect the welfare of New Jersey’s citizens.

The centerpiece of New Jersey’s Megan’s Law was the community notification provision. This section provided for community notification when a sex offender is released from prison or moves into a new community (Koch 4). This provision promulgated that all sex offenders should be classified into three distinct tiers, based on their perceived risk of re-offense. While the law left it up to the Attorney General to create more detailed implementation guidelines, it did lay out a broad description of this three-tiered system. For low-risk Tier I offenders, notification would be limited to law enforcement agencies likely to encounter the offender. For moderate-risk Tier II offenders, notification would also be extended to certain community organizations, such as schools. For high-risk Tier III offenders, notification would be “designed to reach members of the public likely to encounter the person registered” (Koch 7). This section also specified that after the Attorney General had promulgated specific classification guidelines, the actual risk assessment and implementation would be left up to the 21 individual county prosecutors.

 The assumption underlying this provision was primarily the one expressed so adamantly by Mrs. Kanka: that if she had known about Timmendequas’ past criminal history, Megan would still be alive today. “The commonly cited goal of these statutes is to increase the public’s ability to protect itself by warning potential victims if a convicted sex offender lives nearby” (Levenson and Cotter 2). The primary justification for enacting this controversial provision was that it would effectively decrease recidivism by allowing individual members of the community to be more vigilant while supervising their children. Therefore, released sex offenders would find it more difficult to commit further sex crimes once this provision was in place. “A large neighborhood sign counted the days that past without legislative results” (Koch 1). In addition to providing for enhanced safety, the extraordinary public activism after this atrocity served as another incentive for legislators to act quickly. Individual legislators who questioned the law’s legal implications would be branded as pro-sex offenders by their local constituents. However, the legislature had no way to empirically prove that community notification would substantially decrease recidivism, due to the fact New Jersey’s community notification measure was among the first in the Nation. Thus, the assumption behind the law was not that it would guarantee the safety of all of New Jersey’s children, but rather that it would undoubtedly at least aid in saving the lives of a few children. As acknowledged by Governor Whitman, even if only a single child were saved as a result of the legislature’s deliberations, it would have certainly been worth the effort (Koch 4).

The other key provision of New Jersey’s Megan’s Law required all convicted sex offenders to register with local law enforcement (Megan’s Law). Registered sex offenders were required to verify their address every 90 days, and report any change of address at least ten days prior to relocating. After 15 years, if a registered sex offender could offer evidence to the Superior Court that he no longer poses a threat to society, then the court may decide to relieve him of any further registration obligations. The law specified that registration would consist of the offender’s description, picture, address, offense, and place of employment (Koch 6). 

Once again, the primary justification for enacting this provision was that it would serve to reduce recidivism rates. “Many maintain that the establishment of a registry gives police the perfect tool to monitor a class of criminals for which there is a widespread fear of repeat offenses” (Loberfeld 2). In formulating this provision, the underlying assumption on behalf of the legislature must have been that sex offenders have relatively high recidivism rates. If the bill’s primary sponsors did not assume this from the beginning, then it is unlikely that they would have attempted to formulate a law intended to decrease recidivism rates when they were already low. The other assumption behind this provision was that creating a medium of information, which would be easily accessible by all law enforcement personnel, would facilitate the job of law enforcement officers in alerting the public to potential dangers within their community. Thus, at least from the perspective of Maureen Kanka and the New Jersey legislature, registration and community notification were designed to go hand-in-hand (Koch 5). 

 In addition to making the public more vigilant, another strength of Megan’s Law is that it greatly increased the State’s ability to both incapacitate and supervise convicted sex offenders. The law accomplished this in two ways: mandating increased terms of imprisonment for sexually violent predators, and creating a sentence of community supervision for life for offenders exhibiting a pattern of compulsive behavior (Koch 4). Thus, while some sex offenders who maintain a clean record after serving their sentences may be excused from registration requirements after 15 years, those who demonstrate a pattern of compulsive behavior will be required to register for life. While critics may argue that Megan’s Law is not nearly flexible enough to take into account individual circumstances, it does at least contain a mechanism whereby less dangerous offenders can petition to end their supervision. Furthermore, the increased terms of imprisonment have lengthened the period of time during which it is impossible for an individual offender to recidivate. Due to the fact that locking all sex offenders up for life to prevent them from re-offending would in all likelihood be condemned by the courts, moderately increasing sentences serves as a satisfactory alternative.

One more positive aspect of New Jersey’s Megan’s Law is that the community notification provision was narrowly-tailored in order to accomplish the State’s duty to provide for the safety of its citizens. Despite its hasty action, the legislature certainly did not arbitrarily decide to group all sex offenders together into a single category. The result of this three-tiered system has been to minimize the number of offenders who are actually subject to broad notification within their neighborhoods. In fact, as of 2006 only 210 sex offenders have been given a final classification under Tier III, which is far less than the number of sex offenders who have been placed under the first two tiers (The Examiner). Thus, the New Jersey Legislature spent a sufficient amount of time and effort in carefully formulating this classification system, in order to ensure that the result of its deliberations would not be a completely open notification system in which anyone would be able to obtain the information. “The Notice recipient should understand that he and any other person in the household with whom the recipient shares the information must comply with the applicable Rules of Conduct” (Attorney General’s Guidelines). As further evidence that this system was not designed as an extrajudicial form of punishment for sex offenders, the legislature in conjunction with the Attorney General’s guidelines required residents or organizations receiving a Megan Law notification to sign a receipt form, acknowledging that they will subject to criminal penalties if they disseminate the information contained in the flyer. While by no means is this a perfect system of preventing sex offenders from being subject to threats and harassment by the general public, the legislature did put forth a serious effort to restrict the scope of these community notifications.

On the other hand, a major weakness of Megan’s Law is that it does a poor job of taking into account the nature of sex offenders. This legislation presumes that convicted sex offenders recidivate in great numbers. However, recent studies have shown that this is far from the truth. “The Bureau of Justice Statistics found that of 9,691 sex offenders released from prison in 1994 5.3% were rearrested for a new sex crime within the 3-year follow-up period” (Levenson and D’Amora 176). While 5.3% is by no means an acceptable recidivism rate when the lives of young children are at stake, this rate is significantly lower than the supporters of Megan’s Law would have us believe. In fact, compared to offenders who commit burglary, auto theft, and drunk driving, sex offenders are less likely to be rearrested for the same offense (Levenson and D’Amora 178). Due to the fact that recidivism rates among sex offenders are relatively low to begin with, if the primary aim of Megan’s Law is to substantially reduce this rate even further, it will likely be viewed as unsuccessful. It is extremely difficult to empirically show a tangible decrease in recidivism rates when the base rates are already low. For example, a study conducted in Washington discovered that 19% of the offenders subjected to notification recidivated while 22% of those who were not recidivated (Levenson and Cotter 4). While this research appears to show a slight correlation between community notification provisions and an offender’s probability of re-offense, this decrease does not constitute a statistically significant difference.

Furthermore, the community notification and registration provisions are driven by the misconception that the majority of sex crimes are committed by strangers. In reality, the great majority of sex crimes are perpetrated by someone who is known to the victim. For example, only 7% of the offenders who committed sex crimes against child victims were unknown to the victim (Levenson and D’Amora 178). This fact alone greatly restricts the effective implementation of the community notification provision to those few extraordinary cases in which a child is abused by a stranger. Therefore, an unintended effect of this provision may be to dissuade those victimized by family members to report incidents of sexual abuse.

Another weakness of Megan’s Law is that its emphasis on punishing sex offenders through increased terms of imprisonment may not effectively serve to decrease recidivism. Contrary to popular belief, mandating more punitive sentences is not always a successful method to deter future criminals. “It also appears that as the length of time living in the community offense free increases, recidivism decreases” (Levenson and D’Amora 189). Despite the punitive one-size-fits-all approach to fighting crime articulated by conservatives, a policy of increasing terms of imprisonment is not well adapted to combating the conditions which cause sex offenders to recidivate. Imposing numerous obstacles in the way of low-risk offenders after they have already served their time, only serves to hinder their potential for successful reintegration into the local community. Low-risk offenders who are unable to find employment, housing, and social support in the community as a result of the stigma attached to registered sex offenders, are significantly more likely to recidivate than those who have returned to their normal lives (Levenson and D’Amora 189). Furthermore, another element of sex offender recidivism which has been overlooked by conservatives is the question of treatment: can all sex offenders be treated, and if not, is it possible to single out groups of offenders that will respond to treatment? While it is not practical or financially possible to treat each and every offender, research has shown decreases in recidivism rates for many offenders who do successfully complete treatment programs. For example, sex offenders in Kentucky who had participated in a prison treatment program had a sexual recidivism rate of 3.4%, compared to a rate of 8.7% for those who did not undergo treatment (LaFond 77). Despite the potential success of these sexual offender treatment programs, New Jersey’s Megan’s Law failed to mention them. In fact, only about 14% of imprisoned sex offenders nationwide are actually enrolled in treatment programs (LaFond 62). While legislators may argue that the cost of implementing these programs is excruciating high, there is an even greater cost of failing to implement at least rudimentary sex offender treatment programs: increased recidivism rates leading to the loss of children’s lives. 

There are only two courses of action that the legislature can pursue in order to substantially decrease recidivism rates in absolute terms. The first, which is politically and legally unattainable at the current time, is to mandate life imprisonment for all convicted sex offenders. Due to the fact that this is not the current policy for dealing with convicted sex offenders, the reality is that the great majority of these offenders will be released back into the community at some point in their lives. If in-prison treatment programs are not established soon, these offenders will have a difficult time reintegrating themselves into the community after their release. While the question of treating sex offenders was not considered in the text of Megan’s Law, New Jersey has begun an effort in recent years to treat some of the most dangerous offenders at the Adult Diagnostic and Treatment Center in Avenel. Instead of being sent to prison after their conviction, sex offenders judged to be repetitive, compulsive, and amenable to treatment are housed within this facility (Becker 1). A 2003 study conducted by three New Jersey sex treatment professionals found that while 12.7% of men held within the general prison population had been convicted of a subsequent sex offense within 10 years of their release date, only 8.6% of men released from the Avenel facility had been convicted of a second offense (Becker 3). By focusing their resources on the specific nature and individualized needs of sex offenders as opposed to the general prison population, facilities such as Avenel should be expanded and adequately funded in order to more successfully reintegrate sex offenders into the community. It is hard to argue with the fact that if treatment programs were implemented in all of New Jersey’s prisons, at least some sex offenders would be prevented from re-offending. Thus, while these programs do not guarantee success in every instance, they at least have the potential to decrease recidivism rates for the many sex offenders who will soon be released into the community. 

The initial implementation of Megan’s Law was also greatly undermined by numerous court-imposed changes. The primary reason for these changes was that the legislature failed to engage in any serious deliberation concerning the legal rights and obligations of sex offenders. For example, the Speaker of the Assembly decided to bring the bills directly to the Assembly floor, bypassing the usual committee hearing process (Koch 3). Thus, the legislators were not exposed to any testimony by legal experts. While the New Jersey Supreme Court did uphold the two key provisions of Megan’s Law in the case of Doe vs. Poritz, it also provided increased protection for sex offenders. A major shortcoming of the original legislation was that an individual prosecutor’s classification of an offender was not subject to any form of oversight. This extraordinary grant of prosecutorial discretion led to a decentralized classification system within the 21 counties. However, the Court found serious fault with this provision. “Fundamentally, due process requires an opportunity to be heard in a meaningful time and in a meaningful manner” (Doe vs. Poritz). The Court mandated that all offenders classified as Tier II and III had the right to challenge their classifications in a judicial hearing. The right to an adjudicatory hearing was required due to the fact that community notification implicated the privacy and reputation interests of offenders. Furthermore, the Court narrowed the original law by stating that notification for Tier II offenders would only be provided to organizations likely to encounter the offender (Koch 5). 

On the other hand, the Doe Court did uphold the centerpiece of the law from challenges on privacy, equal protection, ex post facto, and double jeopardy grounds. With regard to the most contentious legal issue presented here, the ex post facto question, the Court held that since the law was a purely remedial measure, it did not implicate ex post facto concerns. In other words, a law which is retrospective, as opposed to retroactively punitive, is constitutionally permissible under the existing jurisprudence (Kramer 2). While this principle has become readily accepted among constitutional law judges and experts, the Court took this principle a step further in Doe. The Court states that if a law is intended to be remedial, it is not unconstitutional if its impact is partially punitive (Doe vs. Poritz). Therefore, the test used by the Court in this instance is one of legislative intent, with little or no regard for actual results. Under this new precedent, as long as the legislature can articulate a rational basis for a law besides punishment, then according to the Court’s standard the measure will be upheld. 

While the majority of the courts that have considered the ex post facto issue (including the Doe Court) have upheld retroactive community notification provisions, a substantial number of judges have loudly voiced their dissents. One dissenting voice is that of District Court Judge Politan, who held that Tier II and III notification provisions as retroactively applied violate the Ex Post Facto Clause. “This stated objective, regardless of how innocuously it has been couched by the Legislature, clearly constitutes a traditional element of punishment: deterrence” (Artway vs. Attorney General of New Jersey). Judge Politan acknowledges that while one of the objectives of the legislature was to provide for the safety of New Jersey’s citizens, another was to deter sex offenders from recidivating. According to Politan, a law’s intent and actual effect must be scrutinized in conjunction with one another, in order to effectively determine its punitive nature (Artway vs. Attorney General of New Jersey). While Judge Politan’s judgment was eventually vacated by the 3^rd Circuit Court of Appeals, challenges such as this one filed on behalf on sex offenders forced the State to expend a plethora of time and money. The end result of these legal challenges was that the State would now have to spend even more money in order to implement this unforeseen hearing process. As a measure of how slow the law’s implementation would actually take, four years after the enactment of Megan’s Law, approximately half of New Jersey’s 5,834 sex offenders still had not received a final classification (Koch 10). Thus, if the legislature had instead initially spent more time considering the legal controversies which could arise, it would have been able to implement the law more effectively in a shorter period of time. 

Despite these several weaknesses, overall Megan’s Law has served as an important measure in combating sex crimes. While it may not adequately take into account the nature of sex offenders, the community notification provision has undoubtedly contributed to making the community safer. “The community may aid police in preventing crimes by exercising greater attention and caution with regard to sex offenders living among them” (Loberfeld 2). While the police may always try their best to protect the general public, their relatively low numbers prevent them from patrolling every neighborhood at every moment of the day. Therefore, increased citizen awareness of sex offenders living within their local community may help to decrease the number of sex crimes, even if this result is not empirically shown due to the low base recidivism rates.

While it is possible to make a relatively informed judgment about the merits and effects of Megan’s Law at the current time, the process of evaluating the legislation would be greatly facilitated by more research in the area. For example, while the study conducted by the Bureau of Justice Statistics provides us with the valuable information that sex offender recidivism rates are not as high as commonly believed, the follow-up period was only 3 years (American Psychiatric Association). Given the fact that some sex offenders recidivate after being clean for more than 3 years, the study period used by the Bureau of Justice Statistics needs to be extended to 10 years. In addition to research into sex offender recidivism rates, significantly more research needs to be conducted in the area of sex offender treatment programs. The few studies that have been conducted in this area have shown that properly designed treatment programs do have the potential to facilitate the process of reintegrating sex offenders into the community. “As with the sadistic rapist, short prison terms, probation, parole, and treatment are a waste of time and money, at best only delaying the victimization of other children” (Mullen 45). Mullen states that while many sex offenders do respond to treatment, a small percentage of sex offenders are untreatable. Thus, comprehensive research needs to be conducted in order to definitively determine specific characteristics of individual sex offenders which relate to whether or not treatment will be an effective option for them.

For a law that was pieced together in less than 3 months under immense pressure from the general public, New Jersey’s Megan’s Law can be viewed as relatively successful. On the other hand, several policy changes would serve to facilitate the implementation and effectiveness of the law. First, the State needs to develop better procedures for assessing risk after an offender’s release. It is essential to develop an empirically accurate system for differentiating between sex offenders who do and do not present an actual risk, by removing subjectivity from these risk assessment scales. Under the current system, a punitive-minded prosecutor has the discretion to label a high proportion of sex offenders as Tier III, while a more rehabilitation-oriented prosecutor can similarly refuse to label sex offenders as Tier III. As exemplified by the exercise conducted during our tutorial, people with differing ideological predispositions using the same risk assessment scale can produce disparate scores for the same offender. The State should place more of an emphasis on reintegrating low-risk offenders into the community by removing from them the stigma attached to sex offenders, in order to reduce their chances of re-offense. For example, the State of Minnesota has created a panel of experts to assess sex offenders prior to their release in order to determine if they should be subject to community notification and registration requirements (Human Rights Watch 12). Another suggestion for how to remove this stigma would be to allow certain low-risk sex offenders who have successfully undergone treatment and lived offense-free and stable lives in the community for five years after their release from prison, to petition this panel of experts to release them from registration and notification requirements. Alternative approaches such as these would facilitate the process of reintegrating low-risk sex offenders into their local communities. However, the State should also increase the terms of imprisonment for high-risk offenders identified as unable to respond to treatment. For example, after empirically verified information on whether or not certain offenders will respond to treatment is obtained, the State could impose relatively high mandatory minimum sentences on offenders identified as unable to respond to treatment. Only by using these two measures in conjunction with one another will the State be able to show a tangible reduction in sex offender recidivism rates. “Broad policies targeting all sex offenders and that disregard research on risk, recidivism, and responsivity are akin to the Emporer’s new clothes” (Levenson and D’Amora 192). While community notification works well by informing the previously ignorant public, the effectiveness of Megan’s Law as a whole would be enhanced by incorporating empirically verified information on sex offender treatment and recidivism. Hopefully the New Jersey legislature will expend considerable time and effort in improving the implementation of Megan’s Law in the near future.             

Eminent Domain in New Jersey: Is the Right to Private Property Now Nonexistent?

“All private property is now vulnerable to being taken and transferred to another private owner, so long as it is upgraded. The founders cannot have intended this perverse result.” (Kelo vs. City of New London 26). In the 2005 Supreme Court case of Kelo vs. City of New London, the majority of the Court ruled that the city’s taking of private property to sell for private development was a constitutionally permissible use of the city’s eminent domain power under the Takings Clause of the 5^th Amendment. In her dissenting opinion, Justice O’Connor chastised the majority for expanding both the authority of federal and state governments to take private property to a level never before experienced in American history. While traditionally the government was only allowed to take private property for a strictly public use such as building a school or hospital, the Kelo majority greatly expanded the definition of what constitutes a public use. Under the Kelo definition, transferring property from one private party to another who happens to have a disproportionate influence in the political process would now be permissible. While the Kelo decision undoubtedly reversed over half a century’s worth of Takings Clause jurisprudence, it remained to be seen just how much of an effect the decision would have on local communities all across the Nation. In the State of New Jersey for one, the effect of the decision was one of monumental proportions. The Kelo decision has effectively removed the final barrier to plans currently under way in 55 of New Jersey’s municipalities to condemn and clear private property in order to promote new private development (Cohen 1). However, the newly expanded powers of New Jersey’s localities to take private property are inconsistent with numerous Supreme Court decisions interpreting the Takings Clause, and completely disregard the importance of the inalienable right to private property.    

On August 1, 2005 Long Branch resident Al Viviano received a letter in his mail from a local developer informing him that they intended to purchase his parcel of land in order to begin construction on a new very expensive apartment complex just a few blocks from the beach (Spoto 1). Viviano who has been living in the same house in Long Branch for over 25 years, is currently 93 years old. The piece of property where he currently resides was purchased 74 years ago by his father in order to build a vacation home for the family. “Our squawk is we don't care about the money. We want to stay here” (Spoto 3). Even though the developer offered him $303,000 to sell the house outright, Viviano refused to sell due to the fact that money is not his primary concern. While Viviano and others like him have been desperately hoping for either a piece of legislation or a court decision placing individual property rights on a pedestal, they have so far been very disappointed. Under New Jersey State law, towns are only allowed to seize “blighted” properties for redevelopment (Peet 4). Blighted properties were traditionally defined as those which were run-down or abandoned. In June 2006, the Monmouth County Superior Court handed down a ruling permitting Long Branch to invoke a “blight” designation as a legally justifiable excuse for using its power of eminent domain to seize neighborhoods for redevelopment (Kramer 2). The Court effectively expanded the definition of blighted properties in this case to include relatively small bungalows and ranch houses lined up along the shore. Thus, following in the footsteps of the Supreme Court, a New Jersey court has now given a municipality the green light to go ahead with replacing modest homes with fancier ones, and as a result is effectively forcing working-class families out of the community. 

Mayor Adam Schneider of Long Branch believes that the seizure of these private properties has the potential to create a tidal wave of investment, which will in turn transform the city’s oceanfront into one of the State’s premier upper-class shore attractions (Peet 2). Schneider’s reasoning here is that transferring this property to private developers who will build more expensive properties will then generate more tax dollars for the city. The project favored by Mayor Schneider is called the Long Branch Redevelopment Zone (Peet 3). It is a $1 billion multiphase operation that would include a few small retail establishments but is primarily residential. The zone would consist of 1,200 housing units ranging from a minimum price of $400,000 for small units up to nearly $2 million for townhouses overlooking the Ocean (Peet 4). Schneider has stated that he believes that eminent domain is one tool which the city can use in order to precipitate a Long Branch renaissance. According to his reasoning, the use of this far-reaching power is justified because of the net benefits that the Long Branch Redevelopment Zone will produce for all of its citizens. However, Schneider fails to realize that improving the attractiveness of a city is not an adequate legal justification for indiscriminately violating the individual rights of its citizens. To make matters worse, the right which is being violated in this case is one of the most essential to the proper functioning of a democratic society, and one which the Framers of the U.S. Constitution feared would be arbitrarily usurped by overzealous legislators: the right to private property. 

In his Second Treatise of Government, John Locke firmly established the notion that the right to private property was one of an inalienable nature: it could never be taken away by the government without a compelling reason for doing so. In fact, Locke refers to life, liberty, and estate as the three fundamental rights without which no other rights would be able to be realized by the individual (Locke 3).

From all which it is evident, that though the things of nature are given in common, yet man, by being master of himself, and proprietor of his own person, and the actions or labour of it, had still in himself the great foundation of property; and that, which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniencies of life, was perfectly his own, and did not belong in common to others (Locke 22).

Locke states that the individual person possesses a right to all of which they have worked hard to earn through their labor. This does not only include monetary compensation for working, but also the goods and services which can be purchased with those earnings. The most important good which a person purchases with the money earned through their labor is a place to live. Therefore, only under the most extraordinary of circumstances is it justifiable for the government to compel a person to forfeit their private property to the government. Another key point articulated by Locke is that a country in which a person does not have the exclusive right to their own parcel of land is effectively not a democracy (Locke 24). Applying this notion to the contemporary era, our longstanding American capitalist system would be undermined if one did not have the exclusive right to safeguard the possessions which they have earned. There is a well-known name for a political system in which private property is nonexistent: communism. Sadly our government is currently on the path towards taking on this key tenet of communism by essentially allowing local governments to take private property for any reason whatsoever. It seems as though several of the current sitting Supreme Court justices are questioning the legitimacy of sincerely protecting an individual’s right to possess private property. This begs the question, what is the origin of the right to property? 

In his treatise, Locke considers property to be a type of natural right. “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” (Locke 7). In the state of nature, people had unlimited freedom to do as they wished because no government was present to restrict their actions. Even though the state of nature was a chaotic state, it constitutes certain fundamental or natural rights upon all people. Locke articulates that the right to property can not be infringed upon by the government because this right was originally established not by an act of a legislative body, but instead by the Maker of the universe. According to Locke, since the right to property was first provided by God, only God has the power to remove this right. Due to the fact that the right to private property existed long before the time of governments, we can conclude that under no circumstances do governments provide this right to their people (and thus can not remove this right). In fact, people created governments in order to safeguard and extend the right to property. Therefore, at the moment of birth, a person obtains certain fundamental rights (including property) directly from nature itself, simply because they are human.

Locke considered the right to property as a necessary restriction on the powers of government. However, he did allow for the regulation of private property under special circumstances: the most important of which is to ensure that no one person is exercising their right to private property to the point at which it infringes upon that of another person (Dolhenty 4). According to University of Amsterdam Professor Govert den Hartogh, Locke would support the lawful redistribution of property by the government under certain rare circumstances (den Hartogh 658). In his treatise, Locke articulates two competing legitimate ends: ensuring the right to private property and guaranteeing to every citizen the benefits of political society. When these two aims conflict, it may be necessary for a group of people to forfeit their liberty to use their property as they please. Thus, while Locke implies that the government does possess the power of eminent domain, he explicitly articulates that there should exist strict limits on its use. Locke would be outraged by the type of “beneficial” property redistribution which is currently occurring in Long Branch. 

“Nor shall private property be taken for public use, without just compensation” (U.S. Constitution). The Takings Clause contained within the 5^th Amendment to the Constitution exemplifies the enormous amount of influence that Locke’s writings had on the contents of the ratified document. Generally being wealthy white landowners, the Framers drafted the Takings Clause primarily as a way to protect their personal property interests from government intrusion. However, they did acknowledge the government’s authority to seize private property but only for a legitimate public purpose. For example, without the power of eminent domain, the government would be unable to construct an interstate highway if any private property lies in its path (Epstein and Walker 627). Thus, the Takings Clause can be viewed as a compromise between the two opposing forces of private property and the government’s duty to provide for its citizens: it effectively permits the government to take private property for a public purpose, but guarantees that property owners will not be unduly injured. The only way in which the government can take a person’s property is to compensate that person for the fair market value of the property (Peet 1). The main judicial controversy with respect to takings has been how to define the overly broad term “public use.” While the Supreme Court has historically adopted a moderately broad definition of the term, the Kelo majority greatly expanded the definition to include takings which only have at best a miniscule relationship to the public interest. 

The Takings Clause was first applied to the states in the 1897 case of Chicago, Burlington, and Quincy Railroad Company vs. Chicago. In his majority opinion, Justice John Marshall Harlan overturned the Court’s previous decision in Barron vs. Baltimore, by using the incorporation doctrine to extend the Takings Clause (Chicago, Burlington, and Quincy Railroad Company vs. Chicago). By deciding to incorporate the protections of the Takings Clause to the states, the Court articulated that it considered the right to private property to be one of a fundamental character. The 1946 case of U.S. vs. Causby serves as an example of how the Court interpreted the Takings Clause in the 20^th century. This controversy arose when the federal government leased an airfield located near the Causby family’s farm. The government began to routinely fly military aircraft over the Causby’s property, which made it unbearably noisy for the family. As a result, the property could no longer be used as a chicken farm. The family sued on the grounds that the government’s actions while not physically depriving them of their property, effectively made it unusable. The Court agreed with the Causbys and stated that the government’s actions did indeed constitute a taking (U.S. vs. Causby). The principle created in this case was that a physical violation is not a necessary precondition for a taking to have occurred. As stated by Justice Douglas, the economic loss experienced by the Causby’s was equivalent to a physical violation (Epstein and Walker 631). 

While the Court has many a time sided with those challenging the government’s use of its eminent domain power, it has by no means refused to provide any deference to the government. In the 1954 case of Berman vs. Parker, a private business owner challenged the District of Columbia Redevelopment Act. This act authorized the National Planning Commission to acquire land through eminent domain, and then to subsequently build roads, schools, public buildings, and houses in order to improve the welfare of its citizens. Max R. Morris filed suit due to the fact that the government planned to acquire his business and to then lease it to a private developer for redevelopment. Morris argued that the government was seizing his property for a private, not public purpose. However, the Court disagreed (Berman vs. Parker). “We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects” (Epstein and Walker 639). In his majority opinion, Justice Douglas stated that a state does have the authority to use eminent domain as a means to exercise its police powers. In the case at hand, eminent domain was used in order to improve the public health. Most importantly, Douglas articulated that the term public use does not require a governmental agency to conduct a land redevelopment project. The government can choose to involve private parties in the project, as long as a legitimate public end is being promoted in the process. Due to the fact that promoting the public health is an acceptable public end under the 5^th Amendment, the government can constitutionally lease the land to a private developer. The primary significance of this case is that it created the precedent that the public use requirement does not necessarily mean that eminent domain can only be used to create public property (such as a hospital or road). A public purpose can be fulfilled by redistributing land from one private party to another under certain circumstances. Thus, the Berman decision effectively permitted the Kelo majority to justify its decision on the grounds that the public use does not require public ownership. However, as will be discussed shortly, the Kelo majority expanded the definition of public use far beyond that of which the Berman Court had wished for. 

Beginning in the late 1980s, the Court began to resurrect the Takings Clause and narrow the definition of what constitutes a public use. Chief Justice William Rehnquist and newly appointed Justice Antonin Scalia were both strong advocates of individual property rights (Epstein and Walker 643). In 1987, a dispute arose when James and Marilyn Nollan, owners of a beachfront lot in California, wanted to build a new house on their property. The California Coastal Commission granted the Nollans the right to build their house on one condition: a strip of their property was to be set aside for use by the public to move between the two public beaches. In the case of Nollan vs. California Coastal Commission, the Court ruled that the commission’s regulation did constitute a taking of the Nollan’s property. California must pay the Nollans just compensation in order for the restriction to stand (Nollan vs. California Coastal Commission). According to Justice Scalia, while the state’s aim in providing a clear view of the beach to the public was a legitimate public end consistent with the state’s police powers, the means used by the state to achieve that goal were not narrowly-tailored to meet that objective. In other words, while the goal of the state’s use of its eminent domain powers was legitimate, the requirement promulgated by the commission was not actually related to the requirement. Scalia states that if the Nollans were required to simply provide a viewing spot on their property for the general public instead of being compelled to permit the public to walk on their property, this would not have been considered a Taking (Epstein and Walker 646). Thus, the Nollan decision effectively created an addition to the public use requirement: a regulation furthering a public use through the use of eminent domain will only be upheld if the means are not overreaching. 

Furthermore, in the 1992 case of Lucas vs. South Carolina Coastal Council, the Court sided with an individual’s right to private property over the state’s interest in protecting its coastal environment. David Lucas purchased two oceanfront lots on the Isle of Palms with the intention of building single-family homes on the property. Shortly after Lucas acquired the land, South Carolina enacted the Beachfront Management Act which permitted the coastal council to prohibit Lucas and others similarly situated from undertaking new construction. “While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking” (Epstein and Walker 648). In his majority opinion, Justice Scalia stated that due to the fact that Lucas’ property was rendered valueless by the legislation, it was indeed a taking (Lucas vs. South Carolina Coastal Council). Lucas’ intention in purchasing the property was completely undermined by the South Carolina legislature’s actions. Once again, although the increasingly conservative-leaning Court did acknowledge the protection of the environment to be a legitimate public use within the state’s police powers, it ultimately ruled that unnecessarily broad regulations will be struck down. 

While the right to property was seemingly placed on a pedestal during the majority of the tenure of the Rehnquist Court, proponents of property rights suffered a substantial and unanticipated defeat in the 2005 Kelo case. After experiencing economic decline for decades, the city of New Haven, Connecticut wanted to develop its land to create jobs and increase tax revenues. The city subsequently enacted a plan in which private property would be taken using eminent domain and sold to private developers, who would later sell the property to large business interests. One section of the redevelopment plan would permit Pfizer to build a new $300 million plant on the condemned property. Contrary to Kelo’s arguments to the contrary, the Court decided in favor of the city.

It has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future "use by the public" is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example (Kelo vs. City of new London).

Justice Stevens states while these have traditionally been the controlling principles in Takings Clause jurisprudence, they are not applicable to the case at hand. Stevens implies that this is not a case in which the redevelopment plan confers a private benefit on a particular party, or one in which the condemned land will be used by the general public. Instead, it falls in between these two extremes. Stevens then uses the Berman precedent to justify defining public use in a broad manner, by noting that the case considered economic redevelopment to constitute a valid public end. Interestingly enough, Stevens never directly answers the question of whether or not he thinks that the New Haven redevelopment plan is an acceptable public end in his opinion: he instead asserts that due to the substantial time and deliberation put into this issue by the New Haven council, the Court should afford the city considerable deference. 

Stevens’ opinion in this case is erroneous on several counts. To begin with, he circumvents numerous previous Court decisions in the area of eminent domain. We can assume from Stevens’ silence with regard to the Nollan and Lucas decisions that he did not want the Court to break completely with its past Takings Clause jurisprudence. His intention could have been to greatly extend the power of eminent domain to an unparalleled level, but only to apply to this single situation. However, Stevens’ argument inadvertently overturned the key principle established by these two previously settled cases: not every regulation furthering a public use is necessarily valid. Stevens completely ignores the section of the Nollan opinion creating the principle that unnecessarily broad regulations (in this case in the form of redevelopment plans) will not be upheld simply because they are espousing a legitimate public end. The Nollan and Lucas decisions can be viewed as creating a two part test: is eminent domain being used to advance a legitimate public use, and is it narrowly-tailored to meet that interest? In an unprecedented move, Stevens completely removed this second hurdle of the test. 

Another problem with Stevens’ argument is that he misinterprets the Berman precedent. Stevens’ interpretation of Berman would provide the government with a blank check to use eminent domain to acquire property whenever and for who ever it wished. However, what Berman really said is that private property can be taken from A and transferred to private party B, as long as B serves as a middleman who subsequently transforms the property in a way in which the public experiences a tangible benefit. For example, after the land was transferred to a private developer in Berman, schools, roads, and public buildings were constructed on it. This differs from the Kelo case due to the fact that instead of a public facility being constructed, a privately owner plant was to be built on the taken property. While a very small number of New Haven residents will benefit from the employment opportunities offered by the Pfizer plant, the greatest beneficiary here is clearly the Pfizer Corporation. Stevens’ approach to Takings Clause jurisprudence only takes into account the intention of the redevelopment plan, but fails to consider its actual results. The primary result is one which the Framers feared most: a private party who has a disproportionate influence in the local political process was successfully able to usurp privately owned property for its own benefit. Thus, according to legal scholar Mark Tushnet, Stevens effectively falls victim to permitting the property of A to be transferred to B solely for B’s benefit (Tushnet 353). Furthermore, due to the fact that the Kelo majority expanded the definition of what constitutes a public use far beyond that which the Court had previous accepted, the decision may be thought of as an historical aberration: it is unlikely that the Court will continue to broaden the public use requirement in the near future (Tushnet 354). 

As exemplified by Long Branch, the key implication of the Kelo decision for New Jersey is that it authorized cities to seize land under the power of eminent domain, and then redistribute it to private parties in order to construct private housing developments or even hotels. The decision directly provided Mayor Schneider with the green light to go ahead with his ambitious plan to reinvigorate Long Branch, in spite of ardent opposition from the city’s residents. “It (referring to eminent domain) was overwhelmingly popular for many years, and rather suddenly and harshly it became unpopular” (Handleman 4). While Schneider acknowledges the intense opposition in his path, he justifies his plan on the grounds that the opposition is simply the result of typical swings in public opinion. What Schneider fails to note is the reason that eminent domain has become such a controversial issue since 2005: its reach has been extended to the point at which property can now effectively be taken from a private person and given to a corporation for its personal benefit, while the private individual receives little to no spillover benefit (Handleman 6). As if NJ’s political climate were not already corrupt and its campaign contribution limits not flexible enough, now corporations will be able to take over private property in exchange for campaign contributions to greedy legislators. The idea of someone taking away someone else’s property in order to profit from the transaction is absolutely repugnant to John Locke’s notion that the right to property is one of an inalienable character.  

At the conclusion of his opinion in the Kelo case, Justice Stevens did create a way for individual states to curtail the broad definition of the public use requirement: state legislatures can choose to enact laws defining the term much more narrowly, or Congress could pass laws limiting the power of the states to use eminent domain (Kelo vs. City of New London). According to Tushnet, while Stevens’ personally may not have agreed with New Haven’s redevelopment plan, he also did not believe it the job of the Court to invalidate it. It is probable that the intention of the Kelo majority was to place the eminent domain debate back into the hands of voters: voters upset about Court decisions forcing people to sell their homes should exercise their political power to stop the government (Tushnet 354). Stevens was correct in his assumption that many states would not sit idly by in the post-Kelo era: thus far, thirty states have passed legislation curtailing the authority of cities to use eminent domain (National Conference of State Legislatures). For example, the Texas law bars the government from taking private property for a public use if it is merely a pretext to confer a private benefit on a particular party. Furthermore, it outright prohibits eminent domain from being used for economic redevelopment purposes (McCarthy 2). The Texas law essentially ensures that if a situation similar to that which occurred in New London also arises in Texas, the Texas Supreme Court will strike down the taking as a violation of the public use requirement. 

While the clear majority of the states have already enacted legislation or even constitutional amendments in response to Kelo, the New Jersey legislature has not yet acted decisively in this area. Seemingly anticipating the Kelo ruling, New Jersey State Senators Gerald Cardinale and Henry McNamara introduced legislation in February 2002 which was intended to provide protection to business owners whose properties had been condemned by the government (Ruilova 14). However, the bill (S-1074) died in committee and was never presented to the floor for an up or down vote. On June 8, 2006, the New Jersey Assembly passed bill A-3257, which articulates objective criteria to determine whether or not a blighted area exists (Sheridan 20). Under this bill, a city must prove that there exists a substantial health or building code violation at the site intended for condemnation as a precondition for eminent domain to be used. However, this bill has not to this date been acted upon by the New Jersey Senate. In the Senate, Ellen Karcher has introduced S-1576, which seeks to ban pay-to-play political contributions in exchange for no-bid government contracts (Strahelendorf 1). According to Karcher, it is essential for the NJ legislature to deal with pay-to-play due to the fact that it is at the root of NJ’s problem with eminent domain abuse. Combined with the recent Kelo decision, NJ’s flexible pay-to-play laws would allow corporations like Pfizer to usurp private property in exchange for campaign contributions. Once again, this bill has not yet been enacted by the New Jersey legislature. A few other measures have been introduced but not yet enacted in the Senate and Assembly regarding eminent domain: A-4392 which bars the use of eminent domain to acquire residential property under redevelopment laws, S-2739 which prohibits the use of eminent domain to condemn legally occupied residential property which meets applicable housing codes, and ACR-255 which proposes a constitutional amendment to limit the exercise of eminent domain to only essential public purposes (McCarthy 4). 

While all of these bills have been referred to committees, no action is currently being taken on any of them. Apparently New Jersey’s legislators feel that an individual’s right to property is not nearly as important as ensuring increased profits for already enormous corporations. With the exception of a few, these legislators do not want to risk their campaign contributions being cut off by big business by voting to restrict the definition of a public use. As a result of the legislature’s inaction, Al Viviano will not only be forced to sell his property to Long Branch, but will effectively be forced to leave the city altogether due to the fact that he will be unable to afford the new upper-class apartments which are to be constructed. Thus, at least in Long Branch, the effect of the city’s use of eminent domain is to discriminate against low-income residents, by indirectly forcing them out of the city. While discriminating on the basis of income is clearly a violation of the Equal Protection Clause of the 14^th Amendment, it is also inconsistent with the 1975 New Jersey Supreme Court case of Southern Burlington County NAACP vs. Mt. Laurel. In that case, the Court held invalid a Mt. Laurel zoning regulation which had the effect of excluding low-income residents from the township (Ruliova 9). The key application of this decision to the current eminent domain debate is that the precedent created was that regardless of a redevelopment plan’s intention, if its effect is to discriminate, then it is itself unconstitutional. Therefore, despite the fact the Mayor Schneider views Kelo as affirmation that his redevelopment plan does not violate the Takings Clause, the plan is still unconstitutional on equal protection grounds.

Realizing that the state legislature is currently unwilling to respond to the Kelo decision, New Jersey Congressman Frank Pallone has introduced federal legislation prohibiting local governments from using eminent domain to seize private property except for in rare instances (Souvall 1). If enacted, Pallone’s bill would force cities pursuing redevelopment plans to include affordable housing for middle-class families and would only permit cities to use eminent domain once all other alternatives have proven unworkable. While he believes that eminent domain has been used successfully to build schools and roads, Pallone is furious at the Supreme Court’s attempt to effectively extend this power to private uses. Even though Pallone was successfully able to propel his legislation through the House, it has been stuck in the Senate Committee on Finance for almost four months (The Library of Congress). Due to the indifference of New Jersey’s legislators towards the right to property, if this legislation dies in committee it is unlikely that New Jersey’s property owners will receive any protection from cities attempting to acquire their properties within the near future.       

In her dissenting opinion in the Kelo case, Justice O’Connor created a test to determine whether or not a city’s use of eminent domain was consistent with the public use requirement. She noted that the Supreme Court had historically considered three categories of takings to be harmonious with the public use requirement. The first is when a state or city takes private property for direct public uses such as roads and parks. The second is when the government transfers private property from one private party to another, as long as the property is directly used by the public. An example of this would be property taken by a public utilities or railroad company. The final category consists of situations in which private property is taken if the precondemnation use of the targeted area inflicts tangible harm on society (Sheridan 7). If this test were used, while the taking of the blighted area in Berman would have been upheld, New Haven’s redevelopment plan would have been easily struck down. Not only is the construction of the Pfizer plant unrelated to a public use, but the property over which it is to be built is not even blighted. Applying this test to the situation in Long Branch, we would first note that the redevelopment plan obviously does not fulfill the requirement of either of the first two categories. Furthermore, while the bungalows along the beach may not be prime real estate, they certainly are not injurious to the surrounding community. The definition of blighted adopted by the Monmouth County Superior Court is contrary to O’Connor’s. According to O’Connor, a run-down house is not necessary blighted: it is only considered blighted if its use actually harms the surrounding community. Therefore, the Long Branch redevelopment plan would be struck down as well under this test. In the next case implicating the Takings Clause which arrives on its docket, the Supreme Court should reexamine its reasoning in the Kelo case using the much more concrete legal and historical basis of O’Connor’s test. 

The Framers specifically included the right to property within the Due Process Clause of the 5^th Amendment on an equal scale with the essential rights to life and liberty for a reason: the right to property is of such an essential nature that it should only be infringed upon by the government in the most compelling of circumstances. The Kelo decision completely reverses over 200 years of deference to the individual’s right to property. If he were alive today to witness the events in Long Branch, John Locke would feel as though the 5^th Amendment were completely stripped of its meaning. While the communal notions of economic prosperity and aesthetic pleasure may contain merit within themselves, the Bill of Rights was drafted by the Framers precisely in order to protect the individual rights of the minority from infringement by the majority. The government does have a legitimate interest in promoting economic development. However, enhanced economic development is not an adequate constitutional justification for curtailing individual liberties. “Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now is that (the taking of private property in this situation) okay” (Kelo vs. City of New London)? Justice O’Connor proposed this question during the oral argument stage of the Kelo case. According to five of the Court’s members, the answer to this question is indeed the affirmative. Due to the inaction of the New Jersey legislature as late as two years after the handing down of the Kelo decision, Al Viviano and numerous other Long Branch residents will be forced to cede their property to the government. However, their property is in reality not going to the government: much of it is now currently in the hands of the Pfizer Corporation. Thus, since at least in New Jersey property can now be taken from private party A and given to private party B for its personal benefit under the pretext that it is for a public use, the right to private property as we have traditionally known it is no long in existence in New Jersey.