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Roosevelt Review 2007

Roosevelt Review 2007

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The Roosevelt Institution 1527 New Hampshire Ave, NW Washington, D.C.

20036

The Roosevelt Review Volume 3 • Issue 1 • August 2007
Copyright 2007
Kai Stinchcombe, Stanford University

Executive Director

Editor in Chief of the Review Kyle Atwell, University of California at Davis
Caitlin Howarth, University of Virginia Paul Burow, University of California at Davis Chandni Challa, University of Virginia Kirti Datla, Rice University Eva DuGoff, George W ashington University James Elias, George W ashington University Emily Hallet, Yale University Robert Nelb, Yale University Ernesto Rodriguez, George W ashington University Patrick Burbine, Alicia Dennis,Eric Freeman, Stefanie Garcia, Kevin Hilke,Oliver Schulze, Peter Squeri, Oliver Traldi

Chair of the Editorial Board National Editorial Board

Editorial Assistants

Printed by Harris Lithographics, Inc. of Landover, Maryland; a familyowned, union shop, Harris Lithographics produced this quality journal on recycled paper with soy ink.
The opinions expressed within the Roosevelt Review are exclusively those of the individual authors and do not represent the views of the editorial board, the Roosevelt Institution, or any of the organization’s chapters, centers, advisors, or affiliates.

The Roosevelt Review

In thIs Issue
9

Plastic Bag Externalities and Policy in Rhode Island
Adam Akullian, Kemen Austin, and Drew Durbin Brown University Winner of the Roosevelt Review Outstanding Policy Award 19

Jonas Ketterle, Daniel Bachmann, Tyson Cook, Jonhyok Heo, and Jordan Shackelford Stanford University 35

The Case for Decoupling: A Policy to Promote Energy Efficiency

Toward Inclusion: Realizing the Civic Potential of The Earned Income Tax Credit
Niko Karvounis, Oxford University 49

Reducing Juvenile Recidivism in the United States
Jane Wilson, Stanford University 59

Finding an Alternative Solution: A Comparative Analysis of Drug Policies of the United States, Sweden, the Netherlands, and Australia
Benjamin Aronson, Brown University 73

A New Mandate for UN Reform: The Charter
Andrew Baker, Oxford University 83 Zachary Hindin, George Washington University R. Benjamin Nelson, Georgetown University

Bringing Dawn to Darfur

Note from the Editor’s Desk
Welcome to the third volume of the Roosevelt Review, the Roosevelt Institution’s policy research journal. The release of this volume arrives as we approach the Institution’s third anniversary, and we cannot help but reflect that both the Institution and the Review have matured significantly over these past three years. Roosevelt Institution is not the same organization it was when two loosely affiliated chapters, calling themselves a student think tank, began meeting in dorm rooms at Stanford and Yale in the fall of 2004. Armed with a vision, impressive energy, and passion, the founding generation of leaders was driven by the belief that students should do more than talk about better policy – they should create it themselves. As members of the successor generation, your editors can assure you that the next generation of Roosevelt students has been inspired by and shares the passion and vision of our predecessors. We believe in the power of student ideas; we believe in the need for progressive solutions that anticipate and address tomorrow’s problems; and we are committed to taking responsibility for the state of our world today. It is not the energy and passion of the new generation that makes our Roosevelt Institution different from three years ago, but rather the resources that the founding generation has bestowed upon us. We are more connected, produce more policy, and engage more policymakers than ever before. The Roosevelt Institution of today is focused, prolific, and effective. We have matured. The new generation should be proud of what it is inheriting, and not forget who created this incredible opportunity. The list of individuals who have given innumerable sacrifices is too long to include; as Roosevelt Institution continues to age, too many names will be forgotten as new leaders emerge. Yet we stand on the shoulders of giants, and in particular there is one individual who will be missed. Kai Stinchcombe has overseen the growth of the Roosevelt Institution since before it had a name. With the release of this journal, Kai will transfer his leadership as Executive Director to a new generation of leaders. The Roosevelt Institution will always give thanks for his vision and stamina, which made the Roosevelt Institution what it is today. We hope that you find this issue of the Roosevelt Review on par with its predecessors. We have been amazed by the innovation and dedication of the contributing authors as we have worked with them to develop the following proposals over the past year. Many of these papers have been presented at multiple Roosevelt conferences and published in other formats in other Roosevelt publications. Each of these papers goes beyond the realm of theory: all provide specific policy recommendations, and most have been presented to policy makers at both the state and federal level, in person. We are proud to present the finest work of the Roosevelt Institution. Working with the authors has been a humbling and rewarding experience, and we certainly hope you enjoy these proposals as much as we have.
Sincerely, Kyle Atwell, Editor in Chief

Plastic Bag Externalities and Policy in Rhode Island
I. IntroductIon The environmental externalities associated with plastic bag production and disposal, which include CO2 emissions, water pollution, and solid waste, exemplify the classic tragedy of freedom in a commons. Individual consumers benefit from the use of plastic bags because they can easily carry purchased goods without the burden of carrying around reusable bags, while society as a whole is harmed by the production and disposal costs associated with plastic bags. Rhode Island, in particular, has had problems disposing of and properly containing litter at the rapidly filling Central Landfill, causing concern from the solid waste management sector. While original policy efforts focused on encouraging the use of more biodegradable paper bags and the recycling of plastic bags, it has become clear in recent years that these measures do not match the scope of the problem. In fact, paper bags are not biodegradable in landfills and are more environmentally damaging than their plastic counterparts. To address this problem, legislation in the form of an amendment to Chapter 23-18.11, “Promotion of Paper Bag Usage,” of the Rhode Island Health and Safety Act has been proposed. The objective is to control litter from both paper and plastic bags by encouraging the use of reusable options. This bill seeks to encourage costumers to utilize reusable bags through a three cent retailer funded costumer rebate for each bag an individual brings to the store. Shifting the focus of the original bill from promoting the choice of paper bags to encouraging the use of reusable bags is

Adam Akullian, Kemen Austin, and Drew Durbin, Brown University Winner of the Roosevelt Review Outstanding Policy Award

certainly an ideological step in the right direction. Unfortunately, the incentive structure of the proposed amendment is poorly designed and does not match the range of litter and landfill capacity issues caused by plastic bag use in Rhode Island. In fact, extensive cost/benefit analysis suggests that the social cost of a single one-cent bag sold in Rhode Island is more than 11 cents. While it will be more difficult to pass politically, Rhode Island legislators should consider an 11 cent consumer tax on the sale of plastic bags so as to balance the externalities of plastic bag consumption. II. SolId WaSte ManageMent In rhode ISland As owners and managers of the central landfill, Rhode Island Resource Recovery Corporation (RIRRC) has an economic incentive to reduce the plastic bag waste stream in Rhode Island. RIRRC is responsible for any trash blown off the landfill to neighboring land and has received fines from the Rhode Island Department of Environmental Management (RIDEM) for trash found on the perimeter of the landfill; RIRRC has paid one million dollars for trash pickup and litter fines (Bailey, 2006). As plastic grocery bags account for a large quantity of this litter (192 million bags are consumed annually in Rhode Island), it is in the best interest of RIRRC to reduce the number of plastic bags that it takes into the landfill (Bailey, 2006). RIRRC has been proactive in the past at attempting to reduce the number of plastic bags that come into its landfill.

9

On September 1, 2005, RIRRC along with the Rhode Island Food Distributors Administration (RIFDA) initiated a program called “ReStore.” ReStore has positioned plastic bag receptacles at supermarkets across Rhode Island and recycles them into a versatile, nontoxic, composite product used as a wood substitute. The ReStore project has led to the recycling of 18 million plastic bags over the course of the past year, a 9.2 percent plastic bag recycling rate (Bailey, 2006). However, this means that Rhode Island residents are still sending over 170 million bags to the Central Landfill annually. RIRRC and the Rhode Island legislature have realized that to address this issue, they must reduce the overall consumption of plastic bags, not simply encourage recycling, to truly internalize the disposal externalities of plastic bags. III. the evolutIon of rhode ISland PlaStIc Bag legISlatIon A. Analyzing the Original Legislation In response to the original concerns regarding the rapidly filling Central Landfill, the Rhode Island legislature passed

Chapter 23-18.11, “Promotion of Paper Bag Usage,” of the Rhode Island Health and Safety Act, which sought to decrease plastic bag waste and litter in the state. This act utilizes two methods for prompting positive change. First, the bill stipulates that retailers must provide paper bags at equal cost to plastic bags in spite of the higher cost of paper bags (three cents per bag for paper as opposed to one cent per bag for plastic). Additionally, it requires plastic bag recycling at retail stores selling greater than eight million dollars worth of goods per year. Contrary to the rationale behind the original bill, paper bags do not easily biodegrade in landfills. Therefore, encouraging a shift to paper bag consumption did not address Rhode Island’s landfill capacity problem. Furthermore, externalities at all stages of a bag’s life cycle (including air pollution, water contamination, and solid waste production) are less for plastic bags than paper bags (See Table 1.1). B. The Current Amendment and the Future of Plastic Bag Regulation Recognition of the externalities associated with both paper and plastic bag use prompted members of the Rhode Island
Paper Bags* 2511 BTUs /bag 2.7 grams / bag 1.25 grams / bag 0.0014 trees 7 trucks

Table 1.1: Environmental Externalities of Plastic and Paper Bags Compared Plastic Bags* Production Energy Consumption 594 BTUs / bag Airborne Chemical Pollution 1.1 grams / bag Waterborne Chemical Pollution 0.025 grams / bag Materials 0.0048 gallons of oil Transportation Number of Trucks to Transport 1 truck One Shipment of Bags Recycling Rate 0.6% of plastic bags Energy Consumption 17 BTUs / bag Disposal Landfill Non-biodegradable in landfill environment Litter Often blow off landfill property 1000 years to biodegrade Capable of absorbing one million times the concentration of toxic compounds, including PCBs and DDE, as seawater 46,000 pieces of plastic/square mile persist in ocean

19.4% of paper bags 1444 BTUs / bag Non-biodegradable in landfill environment Eight times more massive than plastic bags Readily biodegradable Leaches toxic chemicals stemming from the heating of wood chips to make the original bag

Plastic bags are linked to 100,000 marine deaths/yr *All data from Franklin Associates LTD, 2004

10

Table 1.2: Environmental Externalities of Plastic and Paper Bags Compared Stage in Bag’s Life Cycle Production CO2 Emissions: Transportation CO2 Emissions: Disposal Litter: Landfill: Improper Recycling: Total Social Cost per Bag: *See Appendix B for Calculations

External Cost Borne by Society (¢ / bag)* 0.20¢ / bag unknown 5.20¢ / bag 2.92¢ / bag 2.20¢ / bag 10.52¢ / bag

Litter Task Force, including Barry Schiller (a representative from Sierra Club), to propose an amendment to Chapter 2318.11 “Promotion of Paper Bag Usage” of the Rhode Island Health and Safety Act (Schiller, 2006). The primary objective of the proposed amendment is to control litter from retail bags by encouraging the use of reusable bags as opposed to paper or plastic bags. In addition to modifying the title of the statute to read “The Promotion of Paper and Reusable Bag Usage,” the amendment seeks to reduce retail packaging entirely by offering economic incentives to consumers to bring their own bags to stores (rather than relying on the retailer to provide either paper or plastic bags). The amendment obliges retailers to provide a three cent credit rebate to consumers for each bag they bring to a retail establishment for reuse in the packaging of their purchased goods. Rather than placing a Pigovian tax on packaging consumption to internalize the externalities of plastic and paper bag production and disposal (namely, a Pigovian tax corrects negative externalities of market activity by disincentivizing the undesired action), the amendment seeks to provide a carrot, incentivizing consumers to provide their own bags. This thereby promotes recycling and creates an indirect economic disincentive for the continued use of wasteful single-use packaging. The amendment to the Litter Act was introduced to the Rhode Island House (House Bill 7001) and Senate (Senate bill

2669) in early 2006. Both the House and Senate versions of the amendment were sent to committees, which have since recommended that the measure be held for further study. Iv. a coSt-BenefIt analySIS of PlaStIc Bag conSuMPtIon While the goal of the proposed amendment (to address the problem of a socially inefficient over-allocation of plastic bags stemming from their noninternalized environmental costs, especially litter) and the authors’ chosen policy mechanism for promoting behavioral change (mandating stores to offer a three cent rebate to consumer’s who bring their own bag) are clear, the question of whether or not this policy measure is better than the alternatives ought to be carefully examined. In order to determine the socially optimal policy solution to the plastic bag problem, one must first identify the scope and nature of the problem. While the overflowing state landfill and one million dollars in annual fines and cleanup costs paid by RIRRC are the primary motivation for the legislature’s desire to reduce plastic bag consumption, the external costs of plastic bag use extend far beyond these notable local problems. After sorting through scientific articles on the environmental damage created by plastic bags and waste management data from cities across the country, we were able to con11

struct a table of the environmental externalities of plastic bags and then carefully quantify the external cost of these production, transportation, and consumption externalities. (See Table 1.2 for estimates of the social cost per bag and Appendix B for the underlying calculations.) Conservative calculations of the social cost of litter, CO2 emissions from bag production, land filling, and improper recycling of plastic bags reveal that each one cent plastic bag used at a retail outfit in Rhode Island imposes a cost of over 10.52 cents on society as a whole. Using this number as a baseline indicator of the magnitude of the market failure to be addressed, the Rhode Island Litter Task Force should reconsider and ultimately advocate for the most efficient policy mechanism for aligning personal incentives with the social goal of reducing plastic bag consumption. v. analyzIng the current PolIcy While politically feasible, the current policy proposal is inherently flawed for three reasons that will prevent the amendment from effecting much behavioral change and, thus creating any significant decrease in the 192 million plastic bags consumed annually in Rhode Island (Bailey, 2006). First, the subsidy is simply too small; the small amount of the rebate (three cents) will not be sufficient to change consumer behavior. Second, the subsidy is not a true subsidy, but a de facto three cent tax on retailers for every consumer that brings their own bag. Third, in its current form, the policy is dependent on the retailers publicizing the rebate. Plastic bags only cost one cent for retailers to buy, and they often pass this cost onto the consumer in the form of higher product prices anyhow. If retailers have to pay three cents for each 12

reusable bag that a consumer brings, then it is clearly in each retailer’s self-interest to do everything possible to discourage consumers from bringing their own bags so that they just have to spend one or zero cents on plastic bags instead. Since the ability of the policy to affect behavioral change is dependent on retailers publicizing the rebate option and the incentive structure of the statute is such that they will be motivated to do the opposite, the bill will have little effect on reducing plastic bag consumption. vI. conSIderIng the alternatIve PolIcy oPtIonS A. Knowledge The most simple and publicly acceptable option for the Rhode Island legislature to address the plastic bag problem would be an information campaign to explain the externalities of bag consumption and encourage the use of reusable shopping bags. In essence, this program would be an expansion of RIRRC and RIFDA’s ReStore program to facilitate and encourage the recycling of plastic shopping bags. While ReStore clearly caused behavioral changes, the change came at an initial investment cost of $400,000 to RIRRC. Additionally, the program had the advantage of simply encouraging consumers to recycle their bags, rather than prompting a more dramatic behavioral change that would be required in shifting consumers away from one-time bag usage. Thus, while a legislature-initiated campaign to implore the public to switch to reusable bags might effect some change, it would likely fail to adequately address the socially inefficient over-consumption of plastic bags. Although RIRRC might agree to fund a portion of the program, an information campaign would still cost the government thousands of dollars in

funds that simply are not available to the RIDEM (which has experienced recent budget cuts). Even though voluntary imploring strategies are publicly acceptable, an information campaign would be poor (even unfeasible) public policy from a fiscal and cost-internalizing perspective. B. Command and Control A much cheaper and more effective measure for reducing plastic bag consumption would be to simply ban plastic bags altogether, as Bangladesh did in 2002 (Reusable Bags, 2006). After discovering that improperly disposed plastic bags clogged drains and led to increased flooding during the monsoon season, Bangladesh banned polyurethane bags entirely. This command and control policy made sense for Bangladesh because plastic bag externalities were particularly acute in the nation as a result of its weather (twothirds of the nation flooded in both 1988 and 1998) and high litter rate (85 percent for plastic bags) (Reusable Bags, 2006). Considering the presence of jute bags as a biodegradable and locally available alternative to plastic bags, a mandated reduction in the country’s non-biodegradable waste stream was an economical and efficient policy from both an environmental and social perspective. Closer to home, San Francisco’s City Council banned disposable plastic bags in March of 2007. For years, San Francisco’s municipal officials had debated policies to curb the city’s litter problem, which council members believed were harming the city’s tourism industry and bay ecology (Goodyear, 2007). With plastic bags comprising a disproportionately large fraction of the city’s litter, a seventeen cent tax on the bags was proposed to encourage a shift to more readily biodegradable paper bags. Ultimately, policymakers decided on a ban on all non-biodegradable plastic bags instead (Goodyear, 2007).

There are a few reasons that an all-out plastic bag ban may not be the optimal policy, however. Like the law in Bangladesh, San Francisco’s policy has helped to address its litter problem, but it ignores the larger external costs of wasteful disposable paper bags that it misguidedly seeks to promote. Despite the 11 cent external cost of a plastic bag, a ban on them might lead to a socially inefficient underallocation of plastic bags. Although most consumers would likely stop using bags if forced to pay their true twelve cent cost, there are certain applications for which the benefit of plastic bag usage might exceed this tax. For example, plastic bags are useful in the packaging of meat for health and safety reasons as well as for the bagging of unpackaged produce. Additionally, a ban might push in-state plastic bag producers out of business and cause undue economic harm as well as create concentrated stakeholder opposition to a bill with diffuse societal benefits, thereby making it difficult to pass. Finally, while a more general ban on both paper and plastic disposable bags (expanding on San Francisco’s policy) would eliminate the environmental externalities of these bags, it would impose a high cost on consumers if they forget to bring reusable bags to the store and are forced to purchase additional reusable bags or carry their purchases in a less convenient manner. In fact, due to the contrasting external circumstances in Rhode Island and Bangladesh, this command and control policy that makes sense in one nation would not make sense for Rhode Island as it would push plastic bag consumption to an opposite socially damaging extreme. C. Tradable Permits As a laboratory of experimentation in the U.S. federal system, Rhode Island could consider a marketable permit solu13

tion to the plastic bag problem. Rather than banning plastic bag consumption entirely, Rhode Island could assign each supermarket and retail outlet a specific number of plastic bag credits. The total number of bag credits could be set to the amount that the state estimates to be the socially optimal level. This system would then allow supermarkets that consume a large amount of plastic bags to trade for credits from companies that could more easily reduce their plastic bag consumption. Although this system would ideally lead to a socially efficient allocation of plastic bags, it would involve extensive government oversight that would be both a drain on valuable government resources and prohibitively expensive. Furthermore, if the government decided to lower the amount of plastic bags below the initial ceiling, it would have to purchase a set amount of plastic bag permits at additional cost to the taxpayers. Additionally, while it is possible to estimate the externalities associated with plastic bags, it is far more difficult to determine the number of plastic bags that should be consumed annually in Rhode Island without any knowledge of the demand curve for plastic bags. Thus, although a creative application of tradable permits, this is probably not the best or most politically feasible approach to solving the plastic bag problem. D. Transfer (Subsidy) While a store-funded rebate (as proposed in the current Rhode Island amendment) clearly creates a system of perverse incentives, a true subsidy would provide a carrot to change behavior through positive reinforcement of positive actions and be popular with retailers at the same time (since they would not have to bear the cost of measure). However, a true subsidy for reusable bags in the form of a rebate to consumers that utilize reusable bags would be far too expensive for the state 14

government to fund. If the government wanted to shift demand for plastic bags to the socially efficient level, they would have to offer an 11 cent rebate to each consumer that brings their own bags to a store. Even a more moderate three cent rebate would be politically unfeasible as it would cost millions of dollars while creating insufficient change in consumer bag purchasing patterns. E. Transfer (Tax) The final policy option the Rhode Island legislature could consider is a tax, either on the retailer or consumer. Because a tax can be set equal to the value of the external costs of a plastic bag, the socially efficient number of plastic bags would not need to be known to policy makers, whereas it would if a bag subsidy were to be instated. Unlike a subsidy, the tax would cost the state little to enforce while generating revenue that could be used to address Rhode Island’s litter problem. Through analyzing and contrasting the plastic bag tax policies of Ireland (which taxes consumers) and Denmark (which taxes retailers), the socially optimal policy for Rhode Island’s plastic bag problem is revealed. In March of 2002, Ireland implemented a consumer “PlasTax” of 0.15 euros on one-time use plastic bags (with exceptions for bags used for packaging meat and produce) (Convery, 2001). Within months, plastic bag consumption dropped over 90 percent and litter visibly decreased across the nation (the primary objective in this bill as a result of the detrimental visual effect of windblown plastic bags in a nation highly dependent on tourism). In the next year, plastic bag consumption dropped from 1.2 billion bags to 60 million bags, while 9.6 million Euros in tax revenues were generated to be used for environmental protection (BBC News, 2002). After initial opposition to the tax, retailers ended up strongly

supporting the bill as the average supermarket ended up increasing reusable bag sales while saving 50 million euros/year from lower grocery bag stocking costs (Convery, 2001). Finally, enforcement costs borne by the Irish government were minimal as the tax receipts were provided to the government, along with revenues from the national value-added tax. On the other hand, Denmark taxes retailers a similar amount as part of a general waste tax. While this tax has reduced plastic bag consumption 66 percent since its implementation, the results are less dramatic than Ireland’s because consumers are often unaware of the increased cost of the bags they are “purchasing,” as many grocery stores simply incorporate the cost of the tax into the price of their products (Reusable Bags, 2006). However, this tax does provide incentives for retailers to find innovative ways to reduce bag consumption. Overall, a Pigovian tax on plastic bags is much more effective if placed on consumers because the goal of the tax is to affect consumer behavior, not raise revenue from retailers. vII. PolIcy recoMMendatIon for rhode ISland State legISlature While it would certainly draw the attention of anti-tax factions, the Rhode Island legislature should push for a bag tax of at least 11 cents on plastic bags at the checkout counter. A Pigovian tax on consumers is clearly the optimal policy to internalize the quantifiable external cost of these environmentally damaging bags. In this case market-based policy would operate more efficiently than its command and control counterpart, because the external costs of plastic bags are known while the optimal number is unknown, due to the uncertain nature of the demand curve. While a subsidy

would be more politically feasible than a tax, a true subsidy would be too expensive to fund and the proposed store-funded rebate would be ineffective in addressing the environmental problems as a result of its poor incentive structure. Following the success of the Irish case, a Pigovian tax on consumers would be the most effective policy to decrease litter and address the state’s landfill crunch. For once, Rhode Island, a noted progressive state, could be the leader on an important environmental issue rather than following in the footsteps of neighboring Massachusetts. Instead of caving to the political pressures of anti-tax forces, the state should form policy around the environmental and quality of life issues at stake by passing a Pigovian tax of over 11 cents on all disposable bags. (See next page for appendices.) About the Authors Drew Durbin is an environmental studies and economics major at Brown University. He is the lead teaching assistant for Introduction to Environmental Studies and Environmental Economics. Drew is also spearheading a project to design and build low cost biogas stoves for installation in a refugee camp in Uganda this winter. Outside of his environmental work, he leads the Photo Club at Brown and is the founder of a semesterly photography publication, Paper&Pixel. Drew and his business partner, Duffy Tilleman, placed second in Brown Entrepreneurship Program’s Business Plan Competition this spring. They won $18,000 in cash and in-kind services for their proposal to create an innovative green waste treatment operation. Currently, Drew is interning for a global warming research analyst at Calvert, a socially responsible investment company based in Bethesda, MD. 15

vIII. aPPendIceS Appendix A: Plastic Bag Consumption in Rhode Island and the United States I. Consumption A. 192 million plastic bags/yr in Rhode Island (Bailey, 2006) B. 100 billion plastic bags/yr in the US (EPA, 2004) C. 10 billion paper bags/yr in the US (EPA, 2004) II. Cost A. Plastic Bags cost $0.01/bag (Reusable Bags, 2006) B. Paper Bags cost $0.03/bag (Reusable Bags, 2006) III. Disposal A. Plastics comprise 11.3 percent of waste stream and a disproportionate percentage of litter (EPA, 2004). B. RIRRC pays one million dollars annually cleaning up plastic bags that are blown off its property and paying litter fines for those bags that it is unable to collect (Bailey, 2006). Appendix B: Cost Calculations of Plastic Bag Externalities I. Estimation of the Cost of the Production Externalities/Bag A. Social Cost of CO2 Emissions from Production of a Bag: It takes 594 BTUs to produce a single plastic bag. The production process produces 6.1 kg CO2/ 210MJ (Halweil, 2006).
6 . 1 kg CO 210 MJ 2 = 0 . 029 kg CO MJ 2

B. Social Cost of Waterborne and Chemical Wastes/Bag: It is virtually impossible to estimate the cost of the 1.125 grams of atmospheric and waterborne chemical waste because there are so many different types of chemicals in this mixture that cause vastly different amounts of environmental damage (Halweil, 2006). However, it is likely that the cost of these byproducts of the production process are less than that of the carbon dioxide emissions because there is much more CO2 emitted by weight/bag than other chemical waste. II. Estimation of the Cost of Transportation Externalities/Bag: It is very difficult to estimate the social cost associated with the transport of the plastic bags from factories to retailers. First, it is difficult to estimate the amount of externalities associated with a gallon of gasoline to begin with. Second, the average transport distance of plastic bags is unknown. III. Estimation of the Cost of Disposal Externalities/Bag A. Social Cost of Litter: An estimate for the social cost of plastic bag litter was obtained through finding the amount of money San Francisco paid cleaning up plastic bags and dividing this by the total number of bags consumed annually.
Cost of Street Cleaning:* $26,000,000/yr Plastic Bags Percentage of Litter:* 10 percent Number of Plastic Bags Sold:* 5,000,000/yr

594 BTUs bag

´

MJ 947 . 817 BTU

´

0 . 029 kg MJ

´

2 . 2 lb kg

=

0 . 04 lb of CO 2 bag

The estimated cost of CO2 is $0.05/lb. Thus, the social cost of 0.04 lb of emissions is 0.05*0.04= $0.0020 /bag. 16

1 $ 26 , 000 , 000 /yr 0 . 1 plastic bags ´ ´ = $ 0 . 052 /bag litter 1 unit of litter 5, 000 , 000 plastic bags

B. Social Cost of Land-Filling Plastic Bags: RIRRC bears two principal costs from proper plastic bag disposal. The first is the processing cost of the bags. This cost is $0.024/bag.* The second is the cost of litter pickup and fines stemming from plastic bags that blow off of the Central Landfill site. This cost is one million dollars per year. Since Rhode Islanders consume 192 million bags per year, these cleanup costs add an additional 1/192= $0.0052/bag.* C. Social Cost of Improper Recycling and Composting of Plastic Bags: Once again, data from San Francisco facilities will be used to calculate the social cost from plastic bags in the recycling stream.
Cost of Removing Bags from Recycling Stream:* 494,000/yr Cost of Clearing Machinery Jams Cause by Plastic Bags*: 100,000/yr Reduced Revenue on the Sale of Recyclables Due to Bag Contamination*: 100,000/yr Cost of Removing Bags from Compost*: 400,000/yr Total: $1,094,000/yr $1,094,000/yr *1/5,000,000 bags = $0.022/bag

*All San Francisco waste data comes from Haley, 2004. Sources
Bailey, Beth. “From Bags to Riches.” Resource Recycling Feb. 2006: 16-20. Bisson, Terri. Personal interview. 15 Mar. 2006. Convery, Frank and Simon McDonnell. “Applying Environmental Product Taxes and Levies-Lessons from the Experience with the Irish Plastic Bag Levy.” Environmental Studies Research Series: University College Dublin. 3 Mar. 2001. Environmental Protection Agency. “Plastic Trash Bags.” United States Government. 2004. < http://www. epa.gov/cpg/products/trashbag. htm>. Franklin Associates Ltd. “Paper Vs. Plastic Bags.” Institute for Environmental Life Cycle Assessment. 2004. 27 Apr. 2006 <http://www.ilea.org/lcas/ franklin1990.html>. Goodyear, Charlie. “San Francisco Supes Vote to End Plastic Bags in Stores.” The San Francisco Chronicle. 27 Mar. 2007. <http://sfgate.com/cgibin/article.cgi?f=/c/a/2007/03/27/ BAG1ROSLSG4.DTL> Haley, Robert. California Department of the Environment. 17 Nov. 2004. < http://www.mindfully.org/ Plastic/Bans/Costs-Paper-PlasticBags17nov04.htm>. Halweil, Brian. “Plastic Bags.” Worldwatch Institute. 27 Apr. 2006 <http://www. worldwatch.org/pubs/goodstuff/ plasticbags/>. “Irish Bag Tax Hailed Success.” BBC News. 20 Aug. 2002. < http://news.bbc. co.uk/1/hi/world/europe/2205419. stm> Reusable Bags. “Facts and Figures Regarding the True Cost of Plastic Bags.” 2006. < http://www. reusablebags.com/facts.php>. RI Litter Task Force Meeting. Personal observations. 12 Mar. 2006. RI Senate Committee on Agriculture and the Environment. Personal observations. 5 Apr. 2006. Schiller, Barry. Telephone interview. 12 Apr. 2006. Watson, Traci. “S.F. Consider 17-cent Tax on Grocery Bags.” USA Today. 22 Nov 2004.

IV. Total Social Cost of a Single Plastic Bag CO2 Emissions: $0.0020/bag Litter: $0.0520/bag Landfill: $0/0292/bag Improper Recycling: $0.0220/bag Total: $0.1052/bag Thus, a low estimate of the social cost of a single plastic bag is 10.52 cents.

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The Case for Decoupling: A Policy to Promote Energy Efficiency
executIve SuMMary Improving energy efficiency is the most cost-effective method to reduce greenhouse gas emissions. If the entire US had a similar per capita energy use as California did in 2005, it would be the equivalent of taking 25 million cars, or all the cars in California, off the road. In California, utility revenues are independent, or decoupled, from electricity sales, which removes the economic disincentive for utilities to promote energy efficiency. California also has the most effective energy efficiency programs nationwide. State policies supporting decoupled electric markets would address global warming by allowing utility companies to invest in energy efficiency without sacrificing profit. This paper analyzes the case for decoupling. After examining the history of decoupling, it explains the mechanics, policy approaches, effects, and criticisms of decoupling. Decoupling utility revenues from sales is an essential first step toward decreasing US greenhouse gas emissions. Enacting effective decoupling policies will require concentrated efforts at the state level that take into account the unique circumstances of each electricity market. Federal support for the adoption of decoupling in all states would benefit the entire nation tremendously in terms of energy and carbon emissions saved.
“Decoupling [has been] the single most important efficiency measure in the state of California.” – Jonathan Livingston, Pacific Gas and Electric Company1

Jonas Ketterle, Daniel Bachmann, Tyson Cook, Jonhyok Heo, and Jordan Shackelford Stanford University

I. IntroductIon In 2006, the California (CA) State Assembly passed and Governor Arnold Schwarzenegger signed into law the most significant carbon policy established to that date in the United States. Under Assembly Bill 32 (AB32) California continued its role as the frontrunner on environmental legislation in the country, setting an ambitious target to reduce carbon emissions in the state to 1990 levels by 2020, and 80 percent of 1990 levels by 2050.2 While evaluating what these targets mean and how they will be achieved is still an open question, it is clear that AB32 will result in a renewed focus on energy saving policy in California’s energy sector, the results of which will be under close scrutiny worldwide. California’s leadership in energy efficiency has been a result of a suite of effective policy and regulatory measures along with investments from energy utilities themselves. Together, these activities have allowed California to maintain a relatively constant rate of energy use per capita since 1975, even as the gross state product doubled over the past two decades.3 In the 1980s, California’s successful control of per capita energy use placed it 30 percent below the national average, a margin which increased to almost 50 percent over the past two decades (see Figure 1). Indeed, California’s achievements in promoting efficient energy use place the state lowest in per-capita energy consumption in the U.S.4 19

Figure 1: Electricity Use Per Capita, Comparison of US and CA5 A look at California’s recent past demonstrates that decoupling has been a critical strategy, and may be an important element of meeting the goals of AB32. The record from the late 1970s forward shows that California has already made tremendous progress in controlling energy usage and carbon dioxide emissions through effective state-wide promotion of energy efficiency. In order to understand why energy efficiency will be important for future reductions in carbon dioxide emissions in California, it is necessary to examine the circumstances which have fostered the State’s success in increasing energy efficiency to date. These energy savings correspond to several efficiency developments in the state, from technological breakthroughs to legislative solutions, such as adoption of appliance efficiency standards in 1977 and the most aggressive energy efficiency building codes in the nation. Among the various developments is the significant decision to decouple revenue from sales in the electricity industry in 1982,6 thereby 20 removing disincentives for utilities to promote efficient energy use. After an abrupt halt following deregulation in the 1990s, it was reinstated in 2001. This instrumental policy has set the stage for cooperation in California between utilities and regulatory bodies such as the Energy Commission and the Public Utilities Commission in planning and investing in energy efficiency in the electricity sector. The concept behind decoupling is relatively simple. When electric utilities’ revenues are dependent upon volume of sales, there is no economic incentive for utilities to promote efficiency in energy use by their customers. In other words, if revenue is coupled to kilowatt-hours sold, companies that are focused on profit have no reason to decrease the amount of kilowatt-hours sold by increasing energy efficiency. Indeed, this structure has led to promotion of outright wasteful energy usage practices in order to boost profits. The consequences for carbon dioxide emissions are great because emissions from the energy industry account for roughly 20

percent of total greenhouse gas pollution in California.7 An effective decoupling policy, on the other hand, removes disincentives for efficiency, and utilities can be encouraged to undertake demand side management aimed at reducing electricity consumption while still meeting their bottom line. This paper will take an in-depth look at how decoupling works and has been institutionalized as energy policy in the state of California, and the ways in which it has affected energy use and carbon emissions over the past 30-plus years. This discussion begins with an historic look at California’s energy market in order to provide a context in which to evaluate the effectiveness of decoupling. Possible problems and alternatives will also be presented. Finally, this paper will discuss recommendations for the implementation of decoupling policies in other states and at a national level. II. Background: What IS decouPlIng? The standard procedure for electricity ratemaking in the US “is economically inefficient because the utility does not have the incentive to choose the leastcost option to provide energy service to its customers.”8 Prime examples of this inefficiency can be found in utility policies of the 1960s and 1970s, such as the notorious utility programs that gave away energy guzzling light bulbs and promoted electric stoves, water heaters, and appliances to replace cleaner and more efficient models using natural gas. These wasteful utility policies are the result of standard US ratemaking regulation that gives utilities more profit if they sell more electricity. This focus only on the supply side leads utilities solely to consider additional power plants to meet increased electric demand. It also drives utilities vehemently to oppose energy ef-

ficiency measures that reduce their sales, even if it is more economically efficient to invest in efficiency rather than new generating capacity. Decoupling is a solution to this problematic ratemaking practice. A decoupling policy disconnects, or “decouples,” utility revenue from energy sales. The basic way in which this is achieved is as follows:
Every few years, state regulators determine how much revenue utilities need to cover certain authorized costs. They then set electricity rates at a level that allows utilities to recover these costs, based on a forecast of sales. If actual sales are above or below this forecast, then revenues are ‘trued up.’ Over-collections are given back to consumers in the form of reduced rates, and under-collections are eliminated with modest rate increases (typically pennies a month for the average household).9

Since revenue becomes independent of energy sales, decoupling “removes both the incentive to increase electricity sales and the disincentive to run effective energy efficiency programs or invest in other activities that may reduce load.”10 In this way, both utilities and the customer can benefit from the fact that electricity is a regulated market. In a decoupled system, “the utility will distribute less commodity with no corresponding loss of distribution revenue, while customers will benefit from avoiding the economic and environmental costs of unnecessary electricity generation.”11 Decoupling policies were first enacted in California in 1982, with other states following later to varying degrees. When properly implemented, these policies have been very effective in driving efficiency gains in both the electricity and natural gas sectors. Recognizing the importance of decoupling, the United States Congress modified the Public Utilities Regulatory Act of 1978 through the National Energy Policy Act of 1992 to state that: 21

The rates allowed to be charged by a State regulated electric utility shall be such that the utility’s investment in and expenditures for energy conservation, energy efficiency resources, and other demand side management measures are at least as profitable, giving appropriate consideration to income lost from reduced sales due to investments in and expenditures for conservation and efficiency, as its investments in and expenditures for the construction of new generation, transmission, and distribution equipment. . . . This objective requires that (A) regulators link the utility’s net revenues, at least in part, to the utility’s performance in implementing cost-effective programs promoted by this section; and (B) regulators ensure that, for purposes of recovering fixed costs, including its authorized return, the utility’s performance is not affected by reductions in its retail sales volumes.12

III. electrIcIty MarketS hIStory The U.S. electricity market was born in 1878, when Charles Brush perfected arc lamps to light his Cleveland offices, and shortly thereafter began providing electricity to the city for a charge of one dollar an hour. By the late 1880s, nearly every city in the country had granted general electric light franchises to competing electric companies. In the late 1880s, J. Pierpont Morgan, the nation’s premier banker, shifted the structure of utility development from competition to consolidation and corporate control. His vision was simple: there would be only one utility, under his control. Through aggressive investments as well as influence in state legislatures, industrialists such as Morgan, Westinghouse and Samuel Insull began to monopolize urban lighting, power, and trolley systems. At the same time, grassroots action started to demand public ownership of power supply, and by 1888 some 53 cities and towns established their own municipal systems. Over the next hundred years, these public systems would deliver power more cheaply and reliably than private or investor owned utilities (IOUs).15 Public power advocates agreed with Morgan that the utility business was a natural monopoly, but it should be the property of the people. Nationwide from 1897 through 1907, between 60 and 120 new municipal utilities were formed every year. By 1912 there were 3,659 private utilities, and 1737 public ones.16 Utility magnate Samual Insull first introduced the idea of regulation by utility commissions to the National Electric Light Association (NELA), of which he was president, in 1898. He presented the NELA with what would become the underlying structure of the modern utility business: “The best service at the lowest possible price can only be obtained,” he

Although the section regarding electric utilities left open the possibilities of using policies such as lost revenue adjustments (discussed in Decoupling Alternatives section) as well, regulators were clearly instructed to implement decoupling policies for gas utilities. Despite the language of the act, however, these changes were not mandatory. Instead, regulatory authorities are allowed to determine whether to adopt the Federal standards.13 As of October 2006, only seven states had decoupling mechanisms in place for at least one regulated natural gas or electric utility. These states are California, Maryland, North Carolina, New Jersey, Ohio, Oregon, and Utah.14 Of these states, only California had decoupling policies in place for electric utilities. Although these are the only states with current decoupling policies, a number of other states have also had decoupling policies in the past and a number are currently considering new policies.

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said, “by exclusive control of a given territory being placed in the hands of one undertaking.” In exchange for this exclusive control, he proposed establishment of utility commissions to oversee these regional monopolies. Similar panels proliferated throughout U.S. industries such as railroads, food production, telecommunication, and finance. By 1921 every state but Delaware had established a utility regulatory commission. As the commissions obliged the interests of the large private electricity providers, the spread of public utilities was crippled and many municipal utilities were forced to buy electricity from IOUs. Through the maturation of the U.S. electricity market, investor-owned utilities have become the main suppliers of electricity. In 2005 IOUs’ generation capacity comprised 42.6 percent of total generation while publicly owned utilities (POUs) only accounted for 9.7 percent of generation.17 IOUs currently dominate in terms of size and capacity despite the fact that the number of IOUs is only 219 while there are currently over 2000 POUs.18 In California, gas and electric interests merged from the San Francisco Gas Light Company and the Edison Light and Power Company into the San Francisco Gas and Electric Company (SFG&E) in 1896. In 1905, SFG&E spearheaded the creation of Pacific Gas & Electric from what were once over five hundred independent companies. Today, PG&E is the largest private utility in the United States.19 In 2001, three big IOUs, Pacific Gas and Electric Company, Southern California Edison Company and San Diego Gas and Electric Company comprise 74 percent of California electricity market by retail delivery.

Iv. deregulatIon and decouPlIng In 1982 California became the first state to adopt decoupling and, in so doing, to remove the disincentives for utilities to promote energy efficiency and demand side management. The policies implemented were relatively successful in managing energy demand, but came to a halt during the deregulation of the late 1990s. Deregulation was proposed in 1996 by the three biggest IOUs in California as a way to separate the business of generating power from the business of distributing it to the public. The premise was that utilities would spin off much of their generating capacity and would compete for customers as pure distribution companies, resulting in decreased prices.20 With deregulation, utilities became distributors who bought electricity on the wholesale spot market and resold it to their customers. As a result, “[t]hey no longer had the responsibility to plan for meeting their customers’ future electricity needs by combining supply-side investments and demand-side investments in a diversified portfolio of resources.”21 Then, in 2001, a sequence of events led by an unusually hot summer being followed by a cold winter caused a major energy crisis in California. However, buying power at fixed costs, customers had little incentive to conserve. As demand outstripped cheap wholesale supply, natural-gas prices soared and blackouts, brownouts, and high electricity rates followed. It was soon decided by the state assembly that energy efficiency should once again become a policy priority for California in order to control electricity markets. California’s legislature mandated reinstatement of decoupling in April 2001.22 Since that time, utility and state investment in efficiency has grown tremendously and energy savings have 23

followed. In September 2005, the utilities commission adopted an aggressive energy-efficiency campaign under which $2 billion would be invested in efficiency between 2006 and 2008. This campaign will see efficiency funding beyond the historic levels reached under decoupling in the early 1980s and again in the early 1990s,23 and will ensure that energy efficiency will remain a priority in California in the coming years. v. MechanIcS of decouPlIng Under decoupling, utilities use standard rate making procedures to predict energy sales and required revenue, from which electricity rates are determined. However, rather than generating revenue from actual energy sales multiplied by the rate, the utilities are guaranteed an “authorized revenue” that includes operating costs and a predetermined return on investment. If the income from electricity sales is above the authorized revenue, the utilities place excess income in a balancing account. Similarly, if the income from electricity sales is below the authorized revenue, the utilities draw from the balancing account to meet their authorized revenue. Doing so insulates the utilities’ profits from the price shocks that occur under normal market regulation. A case study is run below in Table I to examine
Expe cted Price ($/kWh) Expe cted Sal es (kW h) Autho rized Reven ue ($) Actu al Price ($/kWh)

how a particular utility would fare under a decoupled system. Implementation of decoupling is generally done on a case by case basis. In California, two common techniques are used: “(1) Using a mechanism that escalates revenue requirements by inflation minus a productivity offset every year – and adding a factor to account for customer growth; or (2) Using an inflation adjustment (consumer price index) to escalate the revenue requirement each year with boundaries set for a minimum and maximum allowable escalation.”25 vI. varIatIonS on decouPlIng Although all decoupling policies follow the same basic mechanism, there have been many different variations adopted. The policies can differ slightly in any of the steps involved. In initially setting the authorized revenue, figures such as prior or projected revenues, number of customers, or some combination thereof can be used to help determine non-fuel costs. Having determined authorized revenue, prices can be corrected using a balancing account over varying amounts of time (see ratemaking example above). This account can be adjusted to the full difference regardless of the amount, adjusted up to a certain percentage, or adjusted according to an average in the balancing account
Col lected Sal es (kW h) Actu al Reven ue ($) Repo rted Reven ue ($) +/- ($) Balan ce Account ($)

Yr.1Yr
1 2

0.100 0.100

1000 1000

100.00 100.00

0.100 0.090

1100 990

110.00 89.10

100.00 100.00

10.00

10.00

Yr.2Yr

(10.90) (0.90)

Table 1. Decoupling Ratemaking Example24 24

over an extended time. The frequency of general rate cases as well as price adjustments can also vary. Decoupling policies often also involve fuel, weather, economic, or other adjustment clauses. All of these variations are necessary because no one specific policy is most appropriate for all different scenarios. Differences in local economic or weather patterns, prior regulatory policies, and the utilities themselves are only a few of the factors that can affect the policy considerations. A representative few of the different policies are those of California, New York, Oregon, and Washington. California: California’s decoupling policy, known as the ‘Electric Rate Adjustment Mechanism,’ or ERAM, was first implemented for Pacific Gas and Electric in 1982, then later for all other regulated gas and electric utilities.26 ERAM relies on general rate cases every three years, and a future test year to determine authorized revenues. ERAM also includes a large set of adjustments including factors for operations and maintenance, weather, fuel, cost-of-capital, and number of customers. These adjustments are revisited annually. The results of ERAM have been positive. Utility profits were effectively decoupled from sales with no significant effect on rates or the allocation of risk.27 The most common criticism of ERAM is its complexity, which is not seen to provide any benefit over the simpler mechanisms.28 New York: In 1992, New York adopted the Revenue Decoupling Mechanism policy for Consolidated Edison. Like California’s ERAM, RDM used a three year general rate case cycle and a future test year for authorized revenues, as well as detailed attrition adjustments. In contrast to ERAM however, RDM held adjustments constant throughout each general rate cycle.29 This policy had minimal effects on rates while encouraging considerable investment in energy efficiency.30

Oregon: Oregon first adopted a decoupling policy, known as the Alternative Form of Regulation (AFOR), for Pacificorp in 1998. In AFOR, authorized revenue is set according to a forecasted test year and adjusted according to economic indices. Rate adjustments are capped at a percentage of current rates, and a clause is included for “major events outside the company’s control.”31 AFOR has had only very small rate impacts while significantly increasing Pacificorp’s commitment to energy efficiency.32 More recently, in 2002, Oregon also approved a partial decoupling mechanism for the Northwest Natural Gas Company. This policy, known as Distribution Margin Normalization, decouples 90 percent of non-weather variation from revenues, and accompanies an existing weather adjustment policy.33 Oregon now has the highest percentage of high efficiency furnace sales in the nation, which has been attributed directly to the Northwest Natural Gas Company’s promotion programs, incentivized by decoupling. Despite this success, an independent study of the decoupling policy recommended that the Oregon Public Utilities Commission,
“Consider adopting full decoupling. Because of its simplicity, full decoupling would be easier for customers to understand than the combination of DMN and WARM [weather adjustment rate mechanism]. In addition, full decoupling does not have some of the gaming incentives present in DMN (which could also be eliminated by removing the 90% factor applied to deferral calculations).”34

Washington: In 1991, Washington applied a revenue cap along with a Periodic Rate Adjustment Mechanism to decouple Puget Sound Energy’s revenues from sales. PRAM was Revenue per Customer mechanism, which coupled Puget Sound Energy’s authorized revenues to the size of their customer base, rather than 25

sales volume.35 This has the advantages of being simple and easy to understand,36 removing efficiency disincentives while reducing incentive to distort relative prices, and preventing the uncertain price response that can be caused by a pure revenue cap.37 Shortly after the implementation of PRAM, Puget Sound Energy’s energy savings increased drastically; the NW Energy Coalition notes that, “[w]hile this transformation in performance was not entirely the result of decoupling, breaking the link between Puget’s revenues and sales was a critical part of the change.”38 As previously noted, specific regional, economic, political, or other situations can affect the appropriateness of any policy. However, as shown here, many different decoupling measures have been implemented with positive effects. As a result, although policies must be carefully formulated to meet specific local requirements, decoupling revenues from sales is uniformly recommended. 26

vII. effIcIency and carBon control under decouPlIng California’s decoupling policies have played a significant role in avoiding energy usage and consequent emissions of greenhouse gases. This will be especially important in the future, due to the state’s aggressive plan to cut emissions as laid out in AB 32. Here, we attempt to show the relation between decoupling policies and reductions in energy use and CO2 emissions in California from energy efficiency programs, as quantified in a number of studies. Estimates of the carbon impacts to date in California related to decoupling, as well as potential impacts at a national level are determined based on generation and emissions data for California and the United States. Several studies show that policy and investments in support of energy efficiency have had a significant and quantifiable impact on energy usage in the state of California. While decoupling has clearly played a role in these reductions, distinguishing the sole effects of decoupling

compared with other important measures is virtually impossible. There are simply too many factors affecting efficiency and energy use to isolate benefits due to decoupling policies alone. Furthermore, decoupling itself does not provide direct incentives and investments for energy savings. Rather it allows for successful efficiency programming and action to take place by removing disincentives with respect to demand side management on the part of utilities. This is why decoupling has often been referred to as a necessary but not sufficient condition for successful energy efficiency measures in California.39 By accounting for the effects of utility efficiency programs, and energy savings from appliance and building standards, several studies have estimated how much energy consumption has been avoided in California since the mid 1970’s. These studies illustrate a record of effectiveness that is related in part to a successful decoupling regime. Figure 2, showing cumulative energy savings, illustrates how efficiency measures have impacted energy use through the past 30 years. By 2003, an amount roughly equal to 40,000 GWh of electricity was avoided due to energy efficiency, and importantly, roughly one half of that amount is attributed to utilities’ energy efficiency programs.

Figure 2: Cumulative Energy Savings from California’s Efficiency Programs / Standards41

Though some of these savings are a result of mandatory utility spending in efficiency, a large part is also a result of voluntary investments, which are directly related to decoupling. This is because under decoupling, avoided kilowatt hours are often more valuable to utilities than sold kilowatt hours. This is the case in California, where efficiency projects currently cost around 3¢ per kWh; far less than the cost to the utility of a long term contract for power or the cost of investing in new generation capacity.40 While explicit links cannot be drawn between these savings and decoupling policies, evidence suggests that decoupling has created the conditions necessary for efficiency programs to be as successful as they have been. For example, of the more than $700 million per year invested in energy efficiency in California, around $400 million comes from utilities’ own investments in demand side management to cut costs, which is encouraged by policies that decouple electricity revenue and sales. The remaining $300 million result from mechanisms such as the public goods surcharge. This charge, required by the California Public Utilities Commission for efficiency programs, is placed by investor owned utilities on customers’ electricity bills.42 The year by year results of California’s significant efficiency investments are shown in Figure 3. An interesting feature of this figure underscores the importance of decoupling in the state’s energy savings: in the era since decoupling was first established in California, the years with the lowest total savings from energy efficiency were 1999 and 2000.43 These correspond to the restructuring period during which decoupling was temporarily abandoned. During this time, utilities’ voluntary investments in efficiency practically disappeared, leaving only funds from the mandated public goods charge 27

Figure 3: Past and Projected Yearly Energy Savings from Efficiency in California45

to promote efficiency programs. This observation is consistent with the assertion that decoupling is an important part of the equation in terms of how much involvement energy utilities have in energy efficiency promotion in California. Figure 2 also shows another dip in total reported energy efficiency savings that occurs in 1987-1990. This dip is the result of two changes in measurement metrics that improved reporting of net program savings. These changes disallowed utilities to include energy efficiency investments made by consumers outside of the utility program, and it included improved and more methodological energy savings analysis that resulted in lower estimates of program savings.44 Therefore, this first dip does not reflect on the effectiveness of decoupling as a policy. Moving from energy savings to carbon dioxide emissions reductions is done by estimating average emissions per unit energy from greenhouse gas emitting sources in California, and relating these to total electricity consumption per year. According to the Energy Information Administration, electricity generation in 28

California was responsible for over 50 million metric tons of carbon dioxide emissions into the atmosphere in 2005.46 Dividing this quantity by the total electric energy generated in the state in 2005 yields an average rate of 0.2 kg of carbon dioxide emissions per kWh. Due to California’s clean energy mix relative to the rest of the U.S., this is roughly one third the national average.47 Using this same method for each year from 1995 through 2005, a period which was chosen due to availability of data, an approximation of emissions reductions due to energy savings in California can be made. As a result, we estimate that investments during 1995-2005 resulted in three million metric tons of avoided carbon dioxide emissions in 2005 in CA alone.48 Scaling this analysis to a national level, it is estimated that if the entire United States saved as much energy as California did for the period from 1995 to 2005, carbon dioxide emissions in the amount of 121 million metric tons might have been avoided in 2005 alone. This is the equivalent of removing 25 million cars from the nation’s roads that year, equivalent to get-

ting rid of all cars in California.49 A large fraction of these reductions are related to decoupling policies. This is because these policies fostered the investments in energy efficiency that occurred during this time period. This study of the energy and emissions reduction impacts of efficiency in California identifies no single responsible factor. Rather, it highlights the savings that have been made in conjunction with the adoption and implementation of decoupling policies. One cannot discount other efficiency developments during this same time period, but it is clearly possible to attribute much of the effectiveness of California’s energy management strategies to the decoupling policies that have allowed them to succeed. vIII. Market reSIStance With such enormous benefits, one may question why decoupling in the electricity industry has not been widely adopted by more states or even adopted at the Federal level. Despite the decoupling clause of the Energy Policy Act of 1992, there has been no Federal push for such a policy because the Federal Energy Regulatory Commission (FERC) has no jurisdiction over such matters, which are left to each individual state’s Public Utility Commission.50 At the state level, where decoupling is a salient issue, the reasons for a lack of adoption are more complicated. It has been found that
“… despite the surging interest in regulatory decoupling, there are thus far relatively few cases where such an approach has been enacted and effectively implemented for a sufficient period of time to begin to assess results. The states of Oregon and California are the leading examples.”51

To understand why this is the case, some of the motives for decoupling opposition must be examined.

Decoupling faces the same obstacle as other policies and technologies that are favorable to a stronger, more coherent energy policy: entrenched utilities. Utility opposition can be characterized by an active resistance specifically to decoupling and a general unwillingness to change. In a survey conducted by the National Regulatory Research Institute (NRRI), of sixtyfive public utility commissioners, the only ones in favor of decoupling as an approach to improving demand side management (DSM) were those who had already enacted or been previously involved with decoupling; the rest were concerned or uncertain about how it would affect their profits.52 The industry operates on twenty-plus year time frames with extremely expensive capital costs — it doesn’t adopt new policies readily. As was mentioned at a recent Energy Crossroads conference at Stanford University, utilities are notorious for their resistance to change and decoupling is just one more change that creates uncertainty in the minds of CEOs.53 Many in the industry question the efficacy of decoupling by asserting that the costs and benefits of decoupling have not been established because they have not been thoroughly tested or widely adopted. While the volume of literature on decoupling is perhaps smaller than other public policies, there is still overwhelming evidence that decoupling is almost always effective at improving DSM and integrated resource planning (IRP) in states where it has been enacted. Companies are profit-seeking entities. The very idea of revenue adjustments capping profits can be anathema to businessmen and shareholders who would prefer to have unlimited earnings potential. But what many opponents fail to see is that decoupling shields utilities, and by extension shareholders, from the significant price fluctuations that damage revenue streams and make investment in the utility unattract29

ive. Consumers are protected by price fluctuations, for instance during unusual weather, while utilities’ revenue is protected from things such as aggressive DSM or high fuel prices. While it might be advantageous to shield both the consumer and utility from weather fluctuations and economic cycles, opponents are worried that utilities are also shielded from nonproductive DSM and poor internal cost controls.54 As the NRRI puts it, “[decoupling] obliterates lost revenue that is attributable to any cause whatsoever.” This assertion is only partially true; decoupling without proper rate adjustments might behave in this manner, but the way in which the electronic rate adjustments mechanism (ERAM) works in California accounts for such things as productivity, and internal cost controls. Critics also argue that decoupling causes increased rate volatility. This argument is correct only in the narrowest sense. At the end of each year, when revenue adjustments are made, rates will change as a result. The yearly stepwise change in rates is actually quite small and occurs at predetermined times—hardly a case for volatility, especially compared to pre-decoupling, where rates change continuously due to things like varying fuel costs.55 The most successful argument against decoupling, but not necessarily the most persuasive, is the insistence that rates invariably increase when decoupling is enacted. Some even state that, “…the adoption of a decoupling mechanism may signal to investors and ratepayers alike that the utility’s regulators are prepared to authorize price increases for the purpose of protecting the environment.”56 For those who think that rate determination should include environmental and social costs, a small rate increase would be acceptable. To many utilities and ratepayers, it would not. An abstract reasoning 30

put forth by opposition is the idea that removing utility risk usually means that the cost to the consumer will increase. This reasoning simply does not make sense. In cost estimation, companies charge more when their risks are higher because they need to be able to recover their costs in the event that they do not sell as much as planned. When risks are lower, companies can charge much less because they do not have to build as much protection into their projections. Opponents also argue that the loss of customers brought on by an indifference to competition can lead to increased rates as utilities need to charge more per customer to pay for existing infrastructure or capital. In other words, they get a lower utilization rate from their previous investments. For this reason it is important that regulators set the rates properly from the outset and include in their adjustment mechanisms things that will compensate for this possibility. Opponents also argue that when DSM is more expensive than the cost of extra supply, decoupling raises prices. This is true, but the entire premise of decoupling is that there are a whole host of DSM actions that are both cheaper and provide better service to the customer than additional supply, which has been proven in California (as shown in the previous section). As long as the cost of conserved energy is less than the additional supply required to generate such savings, the ratepayer should see reduced rates while the utility earns profit. Decoupling turns utilities from sellers of a least-cost commodity to a provider of least-cost energy services. Ix. IMPleMentatIon Poor program implementation can also make decoupling politically difficult, but this should not be considered a failure of decoupling policy itself. This was

the case with Maine, which previously attempted decoupling, but the results were less than encouraging and they reverted back to old programs because of ratepayer backlash. Regulators failed to revisit the rate case even though utilities were accumulating revenue year after year during a prolonged economic recession. As the general economic conditions declined, ratepayers expected that their rates should go down as well, but they did not because of the revenues the utility had to achieve. Regulators should have revisited the rate case more frequently during the economic recession to adjust rates properly and make sure revenue streams for the utilities balanced properly. However, failure to do so in the early years of the recession made it impossible for regulators to deliver the expected lower rates during the recession, resulting in consumer backlash.57 Therefore, this case is seen more as an accounting failure on the part of the rate makers than a failure of decoupling policy itself. The perceived disadvantages of decoupling and utility resistance with regard to changes in policy only partially explain why it has not been more widely adopted. The reason is quite simple. With the exception of a few states like California and Oregon, there has been little progress because there is no core group of constituents or private entities that are responsible and in the position to demand such action. The utilities by no means lose under decoupling, but they are not convinced enough of its benefits to lobby for it themselves. Even though it benefits ratepayers, citizens are not clamoring for it because it is a complex issue few have heard of. It makes extraordinary sense from an energy efficiency or societal viewpoint, but is not part of most policy discussions. Enacting effective decoupling policy will require substantial individual efforts at state levels with consideration towards the unique

circumstances that characterize each electricity market. However, federal support for the adoption of decoupling in all states will greatly facilitate efforts at state levels to educate and create demand for decoupling through citizens, utilities, and energy regulators. x. alternatIveS to decouPlIng Opponents of decoupling often point to alternatives as being more desirable. The most dominant alternative historically has been lost revenue adjustments (LRA). LRAs are revenue adjustments for revenue lost to DSM policies. LRAs are favorable to utilities because they do not cap revenue and they are easier to game. It is exceptionally difficult to disentangle the exact effect any given DSM policy has on a utility, and it is made even more difficult by the fact that utilities often promote DSM that looks good but is actually intended to increase energy use. For example, installing compact fluorescent light bulbs is effective provided they are replacing existing light bulbs, not when they are being added as part of a security system that a utility may be pushing to increase electricity demand. These types of ambiguities mean that the process is highly litigious, and most utilities are quite successful at making sure LRAs work in their favor.58 LRAs are a bad alternative; they do not remove the disincentive to sell more electricity. Very recently, performance based ratemaking (PBR) has been suggested as a viable alternative to decoupling. This method uses a systems benefit charge on customers’ bills to fund efficiency and renewable programs.59 Programs have been recently enacted by Massachusetts, Connecticut, Rhode Island, Vermont, Minnesota, and Nevada, and pilot programs are slated by Maryland, New Jersey, North Carolina, and Ohio.6/ PBR is

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great because it encourages efficiency and renewables, but PBR also does not reduce the utility’s incentive to sell more electricity. They should be seen, then, not as an alternative to decoupling, but as complementary regulation — PBR and renewable portfolio standards (RPS) can ensure that when new supply is created under decoupling, it will come from cleaner energy sources. xI.recoMMendatIonS and concluSIon Current regulatory regimes and market practice in many states strongly tie utility profits to electricity sales levels. As a result, there exists a strong incentive for utilities to increase sales and a corresponding disincentive for utilities to support energy efficiency programs. On the other hand, by allowing energy efficiency programs to succeed, decoupling policies are a critical element for reducing energy demand and, consequently, dangerous greenhouse gas emissions. Decoupling policies are preferable to the related alternatives, such as lost revenue adjustments or performance based ratemaking alone. This is because decoupling policies do a better job of addressing all potential barriers to energy efficiency, reduce gaming incentives, and reduce volatility in both consumer prices and utility revenue. Despite some skepticism, recent examples show that utility revenues can be decoupled from sales without undue stress on either customers or utilities. However, decoupling provides only an indirect incentive for utilities to improve performance. It serves principally only to remove existing barriers, and so should be viewed is a necessary but not sufficient requirement for successful energy efficiency promotion. Accordingly, decoupling policies should be enacted along with other programs or incentives to promote reductions in energy use and 32

improvements energy efficiency. Improving energy efficiency and reducing energy use are the cheapest and easiest ways in which we can reduce our national greenhouse gas emissions. If the whole of the United States were to achieve proportionally the same energy efficiencies as California in 2005, it could remove the equivalent of 25 million cars from the nation’s roads, equivalent to getting rid of all cars in California. It is our view that decoupling utility revenues from sales is an essential first step toward mitigating the U.S.’s role in global climate change. Enacting effective decoupling policy will require substantial individual efforts at state levels with consideration towards the unique circumstances that characterize each electricity market. With federal support for the adoption of decoupling in all states, in keeping with the commitments of the National Energy Policy Act of 1992, the entire nation would benefit from decreased energy consumption and reduced carbon dioxide emissions. Sources
1. Livingston, Jonathan. Panel: Making Renewables and Efficiency Competitive. Energy Crossroads Conference. Stanford University. March 2, 2007 Union of Concerned Scientists Fact Sheet. AB32: Global Warming Solutions Act; 2007 http://www.law. stanford.edu/program/centers/enrlp/ pdf/AB-32-fact-sheet.pdf Bachrach, Devra, Ardema, Max, and Alex Leupp Energy Efficiency Leadership in California: Preventing the Next Crisis. Natural Resources Defense Council. Silicon Valley Manufacturing Group. April 2003 Rufo, Michael and Fred Coito. California’s Secret Energy Surplus: The Potential for Energy Efficiency. Hewlett Foundation Energy Series. 2002 Rosenfeld, Art. Canine, Craig. California Illuminates the World. On Earth Magazine. Spring 2006 http://www.nrdc.org/

2.

3.

4.

5. 6.

7. 8. 9. 10. 11. 12. 13. 14.

15.

16.

17. 18.

19. 20.

21. 22. 23. 24. 25.

26. 27. 28. 29.

30.

onEarth/06spr/ca.pdf See Appendix A for 2005 emissions from electricity production Carter, Sheryl. NRDC Follow Up Memo to August 2001 Oregon Public Utilities Commission Workshop. http://policy.rutgers.edu/ceeep/ images/SCarter.decoupling%20 memo-1.doc Canine, 2006 Carter, 2001 Carter Memo, 2001 United States Energy Policy Act of 1992 See, for example, Carroll Electric Membership Corporation. “PURPA Frequently Asked Questions.” Available at http://www.cemc.com/ purpa_faqs.asp Kushler, Martin; York, Dan, and Patti Witte. “Aligning Utility Interests With Energy Efficiency Objectives: A Review of Recent Efforts at Decoupling and Performance Incentives.” American Council for and Energy Efficient Economy. Washington, DC October 2006. Wasserman, Harvey. The Last Energy War: The Battle over Utility Deregulation. Seven Stories Press. 1999 Wasserman, 1999 Wasserman, Harvey. “California’s Deregulation Disaster.” The Nation. January 25, 2001 http://www. thenation.com/doc/20010212/ wasserman Wasserman, 2001 Berman, Dan and John O’Connor. Who Owns the Sun: People, Politics, and the Struggle for a Solar Economy. Chelsea Green Publishing. 1996. Wasserman, 2001 Canine, 2006 Carter Memo, 2001 Canine, 2006 Eto, Joseph; Stoft, Steven, and Timothy Beldin. “The Theory and Practice of Decoupling. Energy and Environment Division.” Lawrence Berkeley Laboratory. University of California. 1994 Kushler, 2006 Kushler, 2006. Eto et al., 2004. See, for example, Questar Gas Company. “White Paper on Alternative Regulatory Options.” No. 05-057-T01. 2004. http://www.psc. utah.gov/gas/05docs/05057T01/ Tariff-G%2012-19.doc Eto et al., 2004.

31. NW Energy Coalition. Testimony on PGE and NW Natural proposals. Before the Public Utility Commission of Oregon, October 2001. 32. Public Utility Commission of Oregon. Order No. 98-191, Entered May 05, 1998. 33. Carter Memo, 2001. 34. D Hansen and S Braithwait. “A Review of Distribution Margin Normalization.” Christensen Associates Energy Consulting, Mar 31, 2005. 35. Hansen, 2005. 36. Kushler, 2006. 37. Questar Gas, 2004 38. G Comnes et al. “Performance-Based Ratemaking for Electric Utilities.” Vol. 1. Lawrence Berkeley National Laboratory, Nov 1995. 39. NW Energy Coalition. Testimony on PGE and NW Natural proposals. Before the Public Utility Commission of Oregon, Oct 2001. 40. Carter, Sheryl. “Breaking the Consumption Habit: Ratemaking for Efficient Resource Decisions,” National Resource Defense Council. Electricity Journal, 2001. http://www. nrdc.org/air/energy/abreaking.asp 41. Implementing California’s Loading Order for Electricity Resources, California Energy Commission. Doc.-400-2005-043, July 2005 42. Chang, Audrey B., Rosenfeld, Arthur H., and Patrick K. McAuliffe; Energy Efficiency in California and the United States: Reducing Energy Costs and Greenhouse Gas Emissions. Draft Chapter for Climate Change Science and Policy. 2007 43. Bachrach, 2003 44. Chang, 2007 45. Messenger, Mike: Discussion of Proposed Energy Saving Goals For Energy Efficiency Programs in CA. CA Energy Commission, 2003. 46. Chang, 2007 47. See Appendix A for Energy Information Administration statistics on emissions and generation 48. Calculations based on Environmental Protection Agency vehicle emissions data: http://www.epa.gov/otaq/ consumer/f00013.htm 49. See Appendix A for statistics and calculations 50. Based on Bureau of Transportation Statistics information for 2004. http://www.bts.gov/publications/ national_transportation_statistics/ html/table_01_11.html

33

51. “About FERC.” Federal Energy Regulatory Commission. 11 Aug. 2005. 2 March 2007. http://www. ferc.gov/about/ferc-does.asp 52. Kushler, 2006. 53. Eto, 1994 54. Byron, Jeff. CEC Commissioner. Panel: Making Renewables and Efficiency Competitive. Energy Crossroads Conference. Stanford University. March 2, 2007 55. Graniere Robert and Anthony Cooley, Decoupling and Public Utility Regulation. The National Regulatory Research Institute. Columbus, OH. August 1994 56. Carter Memo, 2001 57. Graniere, 1994 58. Decoupling White Paper #1 Edward Bloustein Center for Energy, Environmental, and Economic Policy Presented for discussion at the Strategic Issues Forum meeting on Tuesday, Oct. 25, 2005 59. Prusnek, Brian C., Advisor to Commissioner Susan P. Kennedy; California Public Utilities Commission. Promoting Energy Efficiency in California. State EE/ RE Technical Forum: Decoupling Energy Sales from Revenues and Other Approaches to Encourage Utility Investment in Efficiency. May 18, 2005 60. Decoupling White Paper #1. Edward Bloustein Center for Energy, Environmental, and Economic Policy Presented for discussion at the Strategic Issues Forum meeting on Tuesday, Oct. 25, 2005 61. Kushler, 2006. 62. Based on Bureau of Transportation Statistics information for 2004. http://www.bts.gov/publications/ national_transportation_statistics/ html/table_01_11.html

Regrettably, only one appendix could be shown, due to limited space. Please contact caitlin.howarth@rooseveltinstitution.org to obtain the original. About the Authors The case for decoupling was written in winter 2007 as a group project for climatologist Stephen Schneider’s class called “Controlling Climate Change in the 21st Century”. Danny Bachmann, Tyson Cook, Jinhyok Heo, and Jordan Shackelford are all recent graduates from Stanford’s Atmosphere and Energy program. Jonas Ketterle is a senior in mechanical engineering at Stanford, and a senior fellow at the Roosevelt Institution.

Appendix A 1. Calculation of Cars Taken Off the Road

distanc e traveled (miles/year) average passen ger car emissions (lbs/ mile) conversion from lbs to kg average passen ger car emissions (kg/year) average passen ger car emissions (metric tons/ year) emission savings from decoupling in 2005 if nationwide Cars ta ken off road in 2005 alone Total Cars in US

12,000 0.916 http:/ /www. epa.gov/otaq/c onsumer/f00 013.htm 0.4536 4985.9712 4.9859712 124,302,525 24,930,454 243,023,485 http:/ /www. bts.go v/publications/na tional_trans portation_statis tics/ht ml/table_01_11.html

34

Toward Inclusion: Realizing the Civic Potential of the Earned Income Tax Credit
Niko Karvounis, Oxford University

executIve SuMMary The Earned Income Tax Credit (EITC) is a highly effective poverty relief resource that is designed to allow for administrative innovation on the part of third-party stakeholders and has an untapped potential to benefit recipients in non-economic ways. Volunteer Income Tax Assistance (VITA) sites—free tax preparation centers staffed by volunteers and located in low-income communities—represent the administrative mechanisms most suited for maximizing the non-economic benefits of the EITC and more specifically, build a foundation for low-income civic engagement. Civic engagement is the cornerstone of a healthy democracy and is much less widespread in low-income demographics. VITA services (1) maximize lumpsum claims for EITC claimants, helping to provide a material basis for socioeconomic mobility and potential civic engagement; (2) offer an atmosphere of cooperation, identification, and social connectedness that hone important civic skills; and (3) can serve as gatekeepers to a wider network of developmental opportunities. In order to cultivate the benefits of VITA sites, and help foster the EITC into a comprehensive tool for empowering low-income citizens, the following reforms should be implemented: • Ban Refund Anticipation Loans (RAL), cap RAL fees, or strictly regulate RAL interest rates. • Strictly regulate or ban the marketing of RALs on IRS e-filing sites. • Pass the Savings for Working Families Act of 2007 to strengthen the foundation of Individual Develop• •

• •

ment Accounts and saving accounts for low-income Americans. Speed up turn-around time for refunds. Simplify the tax code and EITC process to allow for volunteers to focus a greater proportion of time and attention to social interactions. Assist VITA sites in maximizing the roles of non-technical volunteers and instructive, educational presentations and materials regarding the history and political context of the EITC. Encourage VITA coalitions to reframe the EITC as an opportunity to engage with policy and government rather than as solely ‘free money’ in order to stimulate a greater political consciousness in recipients. Create new community positions such as ‘community ambassador’ to maximize the social networking around VITA sites. Continue to link VITA services to work support, asset-building, and other capacity-building opportunities. Formally construct a collaborative framework for Workforce Investment Boards, Community Action Agencies, VITA coalitions, and other local nonprofits to develop a mutually reinforcing network of opportunity. Increase the presence of existing nonprofit and community organizations at VITA sites, in order to pool their existing resources and connections into a ‘continuum of service’ made up of ‘prosperity centers,’ rather than holding VITA services in locations not already dedicated to empowering low-income residents. Protect VITA coalitions from budget cuts and political obstructionism. 35

Increase Congressional funding for VITA services, and provide funding for community entrepreneurship at the local level. Revise Community Services Block Grant (CSBG) purposes to be contoured to the continuum of services idea, in order to encourage a networked approach to low-income development. Develop a community CARE Act in order to establish tax incentives for a greater contribution on the part of coalition members and volunteers.

I. IntroductIon: the earned IncoMe tax credIt and cIvIc engageMent The Earned Income Tax Credit (EITC) stands out as both the most effective and the most broadly supported poverty relief measure in the long history of United States social policy. The EITC is a refundable tax credit that offsets income taxes owed by low-income workers. If the credit exceeds the amount of taxes owed, qualifying EITC claimants file additional tax forms to acquire a lump-sum payment.1 The EITC boasts an impressive economic résumé: every year it lifts 4.9 million people above the poverty line;2 studies have shown the EITC to be the most significant contributor to the recent decreases in welfare use and recent increase in employment, labor supply, and female-headed households earnings; 3 and the EITC has also been shown to offset some of the recent increases in income inequality.4 It is little wonder then that the majority of scholarship and analysis surrounding the EITC is economic in nature, with little attention paid to operational features that structure client experience. Classified as a tax expenditure—an obscure provision of the tax code that allows special exclusions, deductions, and credits 36

for certain segments of the population— the EITC lacks the administrative standardization that characterizes traditional welfare bureaucracies. Indeed, as a benefit paid through the tax system, the EITC is primarily a product of the dissolution of traditional welfarism. It is not situated within an interlocking safety net of social service programs through which clients can engage in ongoing interactions with governmental actors. Understandably, at first glance there is little to expect from the EITC as a framework for affecting claimants’ lives as citizens rather than economic beneficiaries. The policy design of the EITC—its structured arrangements for implementing intended provisions through certain mechanisms—appears to be a truly minimalist one, suggesting that its capacity for structuring the noneconomic circumstances of EITC recipients is low. But the flexibility of the EITC’s policy design in fact provides novel opportunities for structuring the experience of claimants in non-traditional ways— opportunities that deserve attention. The experience of engaging with policy affects the political consciousness and civic potential of clients by shaping their perceptions of government and influencing their personal senses of political efficacy.5 Engaging with a policy is a learning experience—clients learn where they stand in relation to the government, glean intentions and priorities from the nature of the policy, and form a view of how government and politics affect their personal lives. In the absence of an administrative mandate or a codified method for implementing the EITC, third party stakeholders have intervened to implement the credit, resulting in varied experiences for claimants. But rather than hindering our ability to assess policy experiences, competing administrative frameworks provide case-studies for gauging the experiential

dimension of the EITC and identifying potentialities for maximizing its non-economic benefits. The vast majority of EITC claims come in the form of lump-sum credit claiming through paid or free tax preparation services.6 Two-thirds of EITC households pay a fee to process their tax forms in order to receive the credit.7 While the paid tax preparation industry is highly fragmented—industry leaders H&R Block and Jackson Hewitt together account for only one-third of the market— major corporate tax preparers are poised to rise in influence.8 The IRS has begun working closely with major tax preparation companies to increase the number of online filings to 80 percent of all filings by this year (2007). This e-filing program is assessed annually before Congress by the Electronic Tax Administration Advisory Committee, which includes the franchise owner and president of H&R Block, the senior vice president of Jackson-Hewitt, and other paid tax preparer representatives. Thus despite the diffuse market of tax preparation, there do exist a few major players who exert a significant influence over the direction of the industry. Another innovative delivery mechanism has emerged as well—one that provides an intriguing opportunity for analyzing the politics of EITC administration. Free tax preparation services for EITC claimants provided through Volunteer Income Tax Assistance (VITA) sites have emerged as influential entities for promoting and administering the EITC. VITA sites are free tax preparation centers stationed within low-income communities, in local hubs such as community centers, churches, or public health centers. These sites are staffed by IRS-trained volunteers and managed by a coalition of IRS agents, community leaders, and local bureaucrats—whose efforts are usually supplemented by funding and advocacy

from national think tanks, grant-making institutions, and activist groups. Despite their growing prominence—the percentage of EITC claimants who utilized VITA services doubled from 2000 to 2004— free tax preparation services only account for about two percent of EITC filers. In contrast, paid tax preparation services processed between 65 and 70 percent of EITC claims across that same period. The remaining claims were self-prepared.9 For-profit preparation services and VITA sites represent two distinct lenses through which to analyze the policy experience of EITC claiming. In doing so, we should pay special attention to the potential of these mechanisms to utilize the EITC as more than merely a financial provision and address some of the broader socio-political inequalities that marginalize low-income citizens. There exists a great participatory political divide across income levels: an individual who makes $75,000 or more a year is twice as likely to vote or be contacted by campaigns as someone who makes $15,000 or less. This same affluent individual is three times as likely to engage in informal community activity, six times as likely to serve on local boards, and two and a half times as likely to be affiliated with a political organization as a $15,000 earner.10 Such disparities are troubling. Community activity and civic engagement are keys to a healthy democracy—they educate citizens about their societal context, form a strong associational foundation that allows for joint activity in the name of the public good, and give citizens the capacity to mobilize around their interests and articulate political preferences.11 The sphere of civic engagement, broadly understood as participation in public life, is the most salient sector for which the EITC can be relevant as a tool of noneconomic empowerment. 37

II. central ProPoSItIonS The administrative ‘wiggle room’ provided by the EITC’s policy design allows us to contrast and compare two methods of implementation that make for decidedly different policy experiences. The central question of this paper is: how can we maximize the non-economic benefits of the EITC, particularly civic engagement, through innovations in the administrative framework of EITC claiming? I argue that VITA sites represent the most promising opportunity for this maximization, because they (1) maximize lump-sum claims for EITC claimants, helping to provide a material basis for socioeconomic mobility and potential civic engagement; (2) offer an atmosphere of cooperation, identification, and social connectedness that hones important civic skills; and (3) can serve as gatekeepers to a wider network of developmental opportunities. Each subsequent section addresses one of these assertions—maximized sums, civic skills, and opportunity networks—in both illustrative and normative terms, delineating (a) how VITA services provide these noneconomic benefits and (b) what concrete reforms—be they in terms of policy, organization, or advocacy—can help cultivate these potentialities. It is important to keep in mind that civic engagement is used here to imply more than direct engagement in political processes. Ostensibly apolitical activities such as organizing and participating in local meetings, joining clubs, and engaging in informal community actions (such as neighborhood watch organizations or park clean-ups) are all civically salient actions because they deal with public issues and hone politically relevant skills such as writing, organizing, and articulating preferences.12 The central non-economic benefits that we are concerned with are those that build community, develop robust social connections, promote op38

portunity and cultivate the capacities and skills relevant to meaningful activity in the public sphere. Throughout this article, multiple indepth interviews with organizers, coordinators, and participants in the Boston EITC coalition are used to reinforce conceptual commonalities between civic engagement theories in political science and EITC administration through VITA services. Due to limited time and resources, the interviews are drawn from individuals involved in EITC administration only in Boston, Massachusetts for 2005. Interviewed subjects include the Massachusetts IRS territory manager, the Director of the Boston EITC Campaign, the head of the campaign’s Volunteer Recruitment & Corporate Partnership division, the EITC director for Action for Boston Community Development, Inc., and various VITA site directors. This is an admittedly small sample, but the Boston VITA infrastructure is indicative of the nationwide composition. These interviews were informally structured, but all focused on a few key issues: the respondents’ involvement in EITC campaigns, the logistics of VITA site administration, the political developments underscoring advocacy efforts, and assessments of the interaction between VITA volunteers and clients. Access to EITC recipients is difficult because their tax status is confidential. However, eight openly consenting EITC claimants were contacted through community networks and interviewed directly. Interviews with these individuals were similarly unstructured, but revolved around their experiences with tax preparation, their views on government and politics, and their personal feelings of political efficacy. The interviews, combined with existing scholarship, highlight intriguing alignments between the building blocks of effective citizenship and the basic features of the VITA experience.

It is always dangerous to point to a sample as small as the one utilized here— or a program as relatively under-researched and politically un-established as VITA services—as being indicative of an emerging national trend. Few indisputable, systematic conclusions regarding the guaranteed success of VITA sites as civic gateways can be brought to bear, given the practical limitations; rather, I hope to highlight how the character of VITA sites align with the logic of civic engagement. I mean to call attention to intriguing opportunities and potentialities represented by VITA coalitions and suggest a course of action in order to maximize the potential for VITA sites as community institutions. III. the dIverSe PotentIal of vIta SIteS As noted above, VITA sites provide non-economic benefits in that they help clients maximize their credit claims, allowing for an increased foundation for civic activity, expose clients to friendly, cooperative atmospheres that help to develop civic skills, and link clients into networks of opportunities. In this section I address each of these benefits and reforms that can amplify their positive impact. 3.1 Maximizing Claims Money is not only an important definer of needs and interests, but also a resource for political action. Material resources have profound implications for political participation. Income inequalities hew to other fault lines of political division.13 Higher income is correlated with more social mobility in that it reduces the costs and increases the benefits of participation. Further, higher income individuals have the discretionary income to purchase education and are more likely than poorer citizens to occupy high status positions in social networks.14

In the most basic sense, the EITC is an empowerment tool that enhances the material resources of low-income individuals. Factors affecting the size of the credit are thus important in that they either maximize or undercut the potential of the EITC as a material contribution to the resources necessary for civic engagement. The two primary methods of credit claiming (paid and free tax preparation) have important implications for both the size and socioeconomic impact of the credit.15 In 2000, Smeeding, Phillips, and O’Connor looked at the application of EITC credits from 5,000 low–income taxpayers living in the Chicago area. They divided the use of funds into two categories: consumption use (paying utility bills, buying clothes, appliances, or furniture, and personal expenses) and improving socioeconomic mobility (debt repayment, savings, tuition, and health costs). The authors found that a once-a-year lump benefit has greater potential for improving the investments associated with socioeconomic mobility than does incremental credit claiming. This is because lump-sum claiming can help families to overcome a short–term liquidity crisis and move beyond current consumption to meet more strategic long-term goals.16 That same year, Barrow and McGranahan, using data from the Consumer Expenditure Survey, also concluded that households use lumpsums as a savings mechanism.17 This is because expectation of a relatively large lump-sum credit allows for more efficient planning and allocation of resources than an incremental credit flow. Indeed, 56 percent of Boston VITA clients in 2005—all of whom claimed the credit lump-sum—reported that they would put ten percent or more of their refund in a savings account. Further, a full 78.9 percent of clients reported that they planned to apply their refund in ways that Smeeding, Phillips, and O’Connor 39

categorize as socioeconomically beneficial (paying debts, saving for a house, paying tuition, and medical costs).18 Therefore, the lump-payment method—achieved through paid-tax preparation and VITA sites—is a good first step in equipping claimants with an initial base for modest upward mobility. Thus administrative mechanisms affecting the amount of EITC credit deserve attention from those interested in new strategies for low-income socioeconomic development. Paid tax preparation centers are increasingly marketing Refund Anticipation Loans (RALs), which are short-term cash advances against a customer’s anticipated income tax refund. The loans are offered at remarkably high interest rates, ranging from 40 to over 700 percent annualized. RALs particularly target low-income working families claiming the EITC. According to IRS data, over 56 percent of all RAL borrowers are EITC recipients, although this group makes up only 17 percent of taxpayers. One out of every three EITC recipients gets a RAL.19 Given the implications of lump-sum claiming—a positive correlation with investments that foster upward social mobility, which in turn results in an increased eventual likelihood of political efficacy—it is reasonable to hypothesize that unnecessary reductions of the credit, such as RALs, undercut the EITC’s role as a material contribution toward socioeconomic mobility. The most important impact that free tax preparation can have on the material basis for civic potential is the maximization of lump-sum credit claims through VITA services that incur no cost for the client. Since the form of the credit has socioeconomic implications, it is inherently tied to participatory factors. In an indirect but potentially significant way, free tax preparation has positive implications for the social mobility of EITC recipients. 40

There are many options for protecting EITC claimants from RALs and ensuring that free tax preparation becomes a more common option for recipients. Though some states have passed laws demanding fuller disclosure from preparation services, advocates have noted that this is ultimately an ineffective ‘band-aid’ strategy.20 Instead, policymakers and legislators should follow the example of Connecticut, which became the first state to regulate RAL interest rates by prohibiting tax preparers from brokering RALs beyond 60 percent annualized interest. Simply banning RALs or capping RAL fees are also options to protect claimants from usurious loans. Other options should also be pursued to turn opposition to RALs into an opportunity for low-income citizens. The Savings for Working Families Act of 2007, introduced into the House in February 2007 and the Senate in March, seeks to strengthen the foundation of Individual Development Accounts (IDAs). IDAs are tax-exempt individual savings accounts aimed at low-income asset building. Congress should pass the Savings for Working Families Act in order to help equip low-income citizens with the means to self-sufficiency. Simultaneously, local advocacy groups and VITA coalitions should make efforts to help low-income people open more bank accounts. Savings accounts allow recipients to apply for direct deposit of their refund—an option that gets them their refund faster, making RALs less appealing—and prevents them from needing to cash checks at establishments like grocery stores, which can take a further fee from the refund. Luckily, VITA sites are often part of national coalitions that are supported by private financial institutions as well as non-profit and public groups (as will be shown in section 3.3). These partnerships could serve as the foundation for initiatives aimed at giving

more low-income people their own bank accounts and IDAs. Additionally, given the appeal of RALs—a faster refund—any effort to speed up turn-around time on the part of the IRS would also be helpful. Finally, the IRS should strictly regulate, if not outright ban, the online marketing of RALs through websites endorsed by its e-filing system. 3.2 Civic Skills and Social Networking Civic skills are the basic communicative and organizational abilities that allow citizens to effectively participate in political life and convey political positions. Important civic skills include possessing a good vocabulary, being able to articulate preferences clearly, and ability to organize peers effectively. Individuals are most likely to learn civic skills within the context of an institution such as church, school, or the workplace. Civic skills are critical to effective participation and are powerful determinants of engagement.21 The voluntary federations of 19thand early 20th-century America—guilds, federations, and religious groups—taught people how to run meetings, handle money, keep records, and participate in group discussions.22 These personal engagements often cut across traditional socioeconomic lines, albeit within a limited scope.23 The fact that privileged elites along with low-income Americans were active participants in voluntary federations such as fraternal and service organizations was important for a sense of shared citizenship. Furthermore, because parallels to U.S. rules of taxpaying, such as dues collection, accounting, and membership criteria, were so central to the sustainability of organizations, members gained knowledge relevant to becoming informed civic agents. Associations encouraged transpartisan mobilization— overt associational efforts that sought to

shape public decisions—by linking its members together through such shared experiences and collaborative opportunities to develop civic skills.24 Similar opportunities for developing civic skills and bridging social divisions are less common today, particularly for low-income groups that tend to be less engaged in civic life.25 This is troubling, as feelings of political efficacy—the sense of personal influence on politics or an expectation of governmental responsiveness vis-à-vis individual actions—increase as citizens get face-to-face experiences that expand their political knowledge.26 But VITA sites raise some interesting potentialities for recapturing the ‘civic classrooms’ of the past in that they provide a fraternal setting where neighbors and strangers engage in civically meaningful interactions. Additionally, VITA sites rely heavily on social networks for recruitment and cultivation of a client-base. Similar to the old procedures of dues paying and membership processing, today’s VITA services provide a means to increase the financial literacy and administrative knowledge of EITC claimants. Every EITC recipient interviewed stated that the VITA volunteers informed them of what was happening step by step and provided a much more thorough explanation of the claiming process than commercial tax preparation employees at H&R Block:
“The lady at the community center took good care of me, explained things to me step by step; at H&R Block [they] just show you “this is what you got” and you sign, no explanations about what is going on, about what you could do [to better your situation].”

Another claimant stated:
“The preparer [at H&R Block] was not knowledgeable; he took my information, punched into computer, I signed papers, and he said this is what you’re getting back, and that was it.”

41

Familiarity with the EITC process, learned through a friendly interaction, is precisely the sort of ‘learning engagement’ that made old voluntary organizations such a powerful force for honing civic skills. Indeed, experiences at VITA sites suggest an atmosphere of shared citizenship resembling the vibrant bonds of old associations. VITA sites are staffed entirely by volunteers—70,000 across the nation for the 2004 tax season according to the IRS—who represent a wide spectrum of income and education levels. According to the Boston Coalition directors, VITA volunteer staff include “patient and understanding,” “high-level folks working because they want to” such as professional lawyers and accountants. Indeed, the basic premise of VITA services—community-centered tax preparation executed by volunteers from across various socioeconomic strata—provides a built-in mechanism for bridging together people from different communities and demographics through shared experience.27 For example, in 2005, 75 percent of a group of 106 members of the American Taxation Association that was surveyed for a particular study did pro-bono tax work. Ninety percent of this work was for VITA sites, where they processed more than 30,000 federal and state tax returns.28 Volunteers appear to be invested in their role. EITC claimants and VITA volunteers cultivate a sense of identification and connection similar to old voluntary organizations. All EITC recipients interviewed responded that the VITA sites they attended were more comfortable and engaging than H&R Block:
“[The VITA site] was more personal than H&R Block—it was more of a home setting. At H&R Block it was more of a servicecustomer relation. Here [VITA site] you can have a conversation. We both know the same people. It’s more personal.”

Another recipient echoed this feeling:
“I knew her [the VITA volunteer] from my community already. She was friendly and personable—very patient, all smiley and nice.”

42

It certainly remains to be seen whether these personal connections can be translated into civic bonds capable of encouraging collective action. But civic skills are born of seemingly banal contexts, and are basic abilities that many educated individuals take for granted. Thus a structured environment of cooperation and friendliness built around a social policy represents a promising learning context. The role of social connection also factors into the methods of VITA client outreach. Like old associations, VITA sites see an outpouring of participants—both clients and volunteers—drawn from social networks. Of the 5,836 respondents to the 2005 Boston EITC Campaign Survey, 43.6 percent of the EITC claimants heard about the free tax preparation sites through social networks—friends, family, church, or school. Thirty percent of clients had come the previous year, and the rest had heard of the VITA site in their neighborhood through various community outlets such as local radio stations, newspapers, or outdoor advertisements. Community outreach is not unique to VITA sites; but their situation in accessible and recognized community institutions integrates them into their local infrastructure. There are three key points to address in constructing solutions aimed at supporting the potential noted in this section: the maximization of positive learning interactions, the possibility of bridging social capital, and the extension of the social networks. With regards to positive learning interactions, the VITA training program currently acknowledges that volunteers should “treat all taxpayers professionally, with courtesy and respect.”29 Still, the bulk of VITA volunteer training

focuses on mastering the arcane intricacies of the tax code. The tax code, and the mechanics of EITC requirements in particular, should be simplified in order to allow for a less complex set of requirements for processing. This would allow for volunteer training to focus on the interactive elements of the experience, such as what information to communicate to clients or how to ensure that VITA clients’ experiences are as informative as possible. In the absence of comprehensive tax reform to lessen the technical burdens on volunteers, VITA sites should rethink their administrative schema in order to build a larger role for volunteers who might not be directly involved in form processing. Positions such as filers, client intake overseers, or ‘tablers’ who could man voter registration tables or information booths could provide non-expert volunteers with a greater role to play in the process. Already, non-technical positions such as greeters exist; VITA coalitions should think creatively about expanding the realm of primarily interactive (as opposed to technical) volunteer opportunities. The creation of more non-technical volunteer opportunities could also provide community residents an opportunity to participate in ways that may not currently be possible, given the difficulty of learning the ins and outs of the tax code and the commitment to volunteer training. New positions such as ‘community ambassador’—a designated individual or group tasked with spreading the word about local VITA services during tax season—could help ensure that the social network surrounding VITA grows through the activity of community residents. Given the high level of continuity amongst VITA clients—73.6 percent of EITC recipients who used Boston VITA services in 2005 used free tax preparation services the previous year and all inter-

viewed claimants said that they would use the free tax preparation services again— this position could be particularly fruitful in ‘snowballing’ community involvement. Similar positions could be created for middle- or high-income volunteers. Volunteer recruiters from diverse socioeconomic standings could be tasked with recruiting volunteers from their peer groups in more affluent communities—a job significantly easier if there exist fewer technical requirements for volunteering. Finally, in order to translate the VITA experience into increased political awareness on the part of claimants, advocates should reframe the EITC in order to clarify VITA services as a policy experience rather than a transaction. A considerable hurdle to tapping into the civic potential of VITA sites is the relative obscurity of the EITC. Unlike welfare programs which have a persistent engagement with the activities and needs of clients, most claimants view the EITC is a ‘flash in the pan’—a singular transaction with little connection to established institutions. One interviewee commented that,
“If the EITC were from government it would change the way I look at government—they’re actually thinking about the little people. They’re looking at it from our point of view. They’re trying to help us. But that money comes from me!”

Community organizers confirm that most claimants look at the EITC as a yearly opportunity for free money as opposed to a governmental program. The messaging of VITA campaigns reflects this fact: the credit is marketed as an opportunity to “put money back in your pocket” and encourages recipients to “earn it, keep it, save it.” Marketing of the EITC—and the scripts and interactions employed at VITA sites—needs to make efforts at highlighting the fact that the EITC is a policy, tied to political arrangements and institutions. 43

Simple revisions like citing the EITC as “the government giving back,” building a political awareness campaign around EITC outreach, or creating informational materials that integrate digestible bits of history surrounding the EITC can serve to help claimants realize that when they claim their credit, they are engaging with politics. 3.3 A Continuum of Opportunity VITA sites can be portals to opportunity networks that help secure socioeconomic security for low-income clients. According to respondents, at VITA sites claimants are “told…about a lot of stuff they were doing there; a lot of interesting projects.” All recipients said that, upon going to a VITA site, they were made aware of other opportunities such as fuel assistance, employment opportunities, interview coaching, and language training. One respondent noted:
“While I was waiting outside, I saw a bunch of papers and someone came to talk to me about English classes, computer classes, and lots of stuff for the community.”

An immersion in the opportunities and programs of community centers can lead to education on public issues or attainment of important skills and contacts, especially with regards to community projects.30 In the spirit of consolidating self-sufficiency programs, five states have begun to link VITA services to work support benefits such as food stamps, Head Start, and health insurance.31 Additionally, community one-stop centers formed through the Workforce Investment Act (WIA) of 1998—community sites that house integrated workforce development resources—often double as VITA sites during tax season. These are heartening developments. VITA services are uniquely positioned to serve as an initial point of access for 44

community residents because the EITC is universally appealing—after all, it’s free money. Emerging practices of incorporating health insurance, food stamps, Head Start opportunities, and one-stop facilities into VITA centers should continue. VITA can expand their partnerships with one-stop centers by working closely with Workforce Investment Boards (WIBs), which are regional public-private entities tasked with directing local workforce development programs, and Community Action Agencies (CAAs), local public-private organizations devoted to combating poverty. In Miami-Dade and Broward County, Florida, VITA advocates have incorporated together nine ‘prosperity centers’—existing non-profit organizations that focus on linking youth and family programs, loans, civil rights, housing and more—into a chain of VITA sites. The example of Florida suggests the potential of integrating VITA services with existing non-profit organizations that have specific established missions (similar to integrating VITA services and one-stop centers) rather than placing VITA sites in libraries or gymnasiums which don’t have that built-in capacity to offer additional services. This sort of partnership should continue and grow because it couples VITA services with existing service infrastructures dedicated to empowering lowincome citizens. VITA sites also have the benefit of being part of a national coalition tied together by common funding and management from non-profit organizations such as the National Community Tax Coalition. Taking a typical year of the Boston EITC initiative, 2003, Figure 1 gives a good picture of the diverse public and private interests that participate in VITA programs. The complex web of interests drawn together by VITA services is striking.

Equally striking is the strong connection between local VITA coalitions and influential national political organizations. Using LexisNexis, I found that for the period of January 2000-January 2005, 72 percent of newspaper articles in the U.S. that assessed the EITC as a program cited think tanks directly involved in EITC and VITA advocacy. Of the 206 testimonies and committee hearings that discussed the merits and failings of the EITC over this period, 115 were exclusively governmental affairs, without the involvement of non-governmental groups. Of the remaining testimonies, 53.8 percent involved organizations directly involved in providing materials to VITA sites, organizing VITA sites, or advocating theEITC as a low-income poverty relief tool. The fact that the EITC is an ostensibly apolitical policy allows a broad coalition of influential actors to mobilize around it. This means that there are some key allies whom can help foster VITA initiatives to a position of political prominence and can initiate cross-pollination in terms of the EITC’s role in community development. Given the miniscule market share, yet consistent growth and innovation, of VITA services, a federal push could prove a powerful catalyst for tapping the potential noted in this article. Thus Congress should pass a ‘continuum of service’ act that politically legitimates the ongoing collaborative innovations of one-stop centers local non-profits, and VITA sites. Such an act would: (1) in crease both state and federal funding for VITA programs; (2) outline a framework for local collaborative boards such as WIBs and CAAs to undertake a purposeful reconfiguration of their agendas in the order to develop a multi-faced continuum of service consisting of multiple complementary initiatives; (3) allocate state funds to help fund entrepreneurial

Figu re 1: Par tial L ist of B oston EI T C Co alition M embers, 2003 Go vernmental, Sta te and Fe deral level: City of Bost on Internal Revenue Service Federal Rese rve Bank of Bo ston Ac tion for Bo ston Com mu nity Developme nt Bos ton Hou sing Au thority Federal Depos it Ins urance Co rporation Inte rest Or ganiz ations: Gr eater Bo ston Chamber of Comm erce American Asso ciation of Retired Persons (AAR P) Bos ton International Bar Ass ociation C ommun ity D evelopment & Advocac y: Co dm an Square Health Center His panic Of fice of Planning and Evaluation Jewish Vocational Services Gr eater Bo ston Legal Services Legal Ad vocacy Resource C enter Non -P rofits: Bos ton Cares Mass achusetts Ass ociation of Com munity De velopm ent Cor porations (MAC DC): a lliance of non-profit agencies Ann ie E. Casey Fou ndation’s Ma king Co nnections Pr ivate Co mpanies: Ern st & You ng Sov ereign Bank Bos ton Private B ank & Trust Ac ademic: Bos ton College Nor theastern University

community experiments that originate at the local level, such as Florida’s prosperity centers; (4) revise the purpose of the Community Services Block Grant (CSBG) to focus primarily on inter-organizational collaboration between poverty-relief entities; and (5) pass the Savings for Working Families Act of 2007 and develop a new CARE Act to provide special tax incentives for those who contribute to community VITA programs. The original CARE Act of 2003 was passed to provide new incentives for deductible charitable contributions. In 2006, another CARE Act, introduced but never passed, provided new incentives for caregiver support and long-term assistance. The principle of 45

these CARE Acts—that charitable contribution and long-term participation in compassionate endeavors warrant special support—should be applied to community development programs. A new community CARE Act could include specific provisions for contributing laptops, facilities, or resources to VITA programs or offer tax incentives for extended volunteer work on the part of citizens. Congress and national supporters of VITA services--think tanks like the Center for Budget and Policy Priorities, the Urban Institute, the Brookings Institution, the Annie E. Casey foundation, the Association of Community Organizers for Reform Now (ACORN), and others— also have a critical role to play in defending free tax preparation from fiscal and operational threats. Budget cuts continuously threaten the EITC and the IRS has been auditing claimants and investigating VITA procedures as part of its running— and burdensome—investigation into misreporting of EITC claims. As recently as February 2006, the IRS was found to be targeting EITC claimants for audits despite Congressional action to halt such efforts. A vulnerable community initiative like VITA services cannot thrive in an atmosphere of overbearing suspicion. Any success that VITA coalitions might have in strengthening low-income communities depends on the sustainability of the free tax preparation enterprise. Iv. SuMMary of recoMMendatIonS VITA sites represent a compelling opportunity to develop civic capacities by using the EITC as a foundation for asset-building and upward socioeconomic mobility, increasing awareness of opportunities, cultivating social ties, and mobilizing strong national interests to fight for low-income issues. In this article I have recommended many steps aimed 46

at addressing these potentialities in order to maximize the civic potential of the EITC to ensure that it is more than just ‘free money.’ With a little focus and work, the EITC can provide claimants, through VITA sites, an important entry point to a constellation of services, networks, and opportunities that can help them become more engaged, informed, and self-sufficient. Recommendations for policy and organizational reforms that can best develop this potential are as follows: • • • Ban RALs, cap RAL fees, or strictly regulate RAL interest rates. Strictly regulate or ban the marketing of RALs on IRS e-filing sites. Pass the Savings for Working Families Act of 2007 to strengthen the foundation of IDAs and saving accounts for low-income Americans. Speed up turn-around time for refunds. Simplify the tax code and EITC process to allow for volunteers to focus a greater proportion of time and attention to social interactions. Assist VITA sites in maximizing the roles of non-technical volunteers and instructive, educational presentations and materials regarding the history and political context of the EITC. Encourage VITA coalitions to reframe the EITC as an opportunity to engage with policy and government rather than as solely ‘free money’ in order to stimulate a greater political consciousness in recipients. Create new community positions such as ‘community ambassador’ to maximize the social networking around VITA sites. Continue to link VITA services to work support, asset-building, and other capacity-building opportunities. Formally construct a collaborative framework for Workforce Investment Boards, Community Action Agencies,

• •

• •

• •

VITA coalitions, and other local nonprofits to develop a mutually reinforcing network of opportunity. Increase the presence of existing nonprofit and community organizations at VITA sites, in order to pool their existing resources and connections into a ‘continuum of service’ made up of ‘prosperity centers,’ rather than holding VITA services in locations not already dedicated to empowering low-income residents. Protect VITA coalitions from budget cuts and political obstructionism. Increase Congressional funding for VITA services, and provide funding for community entrepreneurship at the local level. Revise Community Services Block Grant (CSBG) purposes to be contoured to the continuum of services idea, in order to encourage a networked approach to low-income development. Develop a community CARE Act in order to establish tax incentives for a greater contribution on the part of coalition members and volunteers. endnoteS

6.

7.

8.

9.

10.

11.

12.

1. 2.

3.

4.

5.

Almanac of Policy Issues, July 2006. http://www.policyalmanac.org/social_ welfare/eitc.shtml. Alan Berube, The Brookings Institution Metropolitan Policy Program: Background on EITC Campaign, EITC Funders Meeting, June 21, 2004. David. T. Ellwood,”The Impact of the Earned Income Tax Credit and Social Policy Reforms on Work, Marriage, and Living Arrangements.” Mimeo, Kennedy School of Government, 2000 and Jeffrey Grogger, “The Effects of Time Limits, the EITC, and Other Policy Changes on Welfare Use, Work, and Income Among Female-Headed Families,” UCLA and NBER, Feb. 2002. Jeffrey B. Liebman, “The Impact of the Earned Income Tax Credit on Incentives and Income Distribution,” Tax Policy and the Economy, 1998 Vol. 12, 83-119. Andrea Campbell. How Policies Make

13. 14. 15.

16.

17.

Citizens, (Princeton, New Jersey: Princeton University Press, 2003). While Advance EITC - claimed incrementally through paychecks - is available, only about half a percent of EITC claimants use this method. As many as two-thirds. ACORN Financial Justice Center, Increasing Incomes & Reducing the Rapid Refund Rip-Off, September 2004, 10. Originally from IRS calculations. Alan Berube, Anne Kim, Benjamin Forman, and Megan Burns, “The Price of Paying Taxes: How Tax Preparation and Refund Loan Fees Erode the Benefits of the EITC,” The Brookings Institution and the Progressive Policy Institute Survey Series, May 2002. Elizabeth Kneebone, “A Local Ladder for Low-Income Workers: Recent Trends in the Earned Income Tax Credit.” The Brookings Institution Earned Income Tax Credit Series, April 2007. http://www3. brookings.edu/metro/pubs/200704eitc. pdf Sidney Verba, Kay Schlozman, Henry Brady, Voice and Equality: Civic Voluntarism in American Politics, (Cambridge, MA: Harvard University Press, 1995), 190. Kay Schlozman, Sidney Verba, and Henry Brady, “Civic Participation and the Equality Problem,” Civic Engagement in American Democracy, ed. Theda Skocpol and Morris Fiorina, (Washington, D.C.: Brookings Institution Press, 1999), 428429. Ibid. 37-48, and Joe Soss, Unwanted Claims: The Politics of Participation in the U.S. Welfare System, (Ann Arbor, Michigan: The University of Michigan Press, 2000), 8. Ibid. 290-291. Andrea Campbell, How Policies Make Citizens, (Princeton, New Jersey: Princeton University Press, 2003), 41. Large lump-sum refunds are more likely to be saved than incremental credits through paycheck income. Jennifer Romich and Thomas Weisner, “How Families View and Use the EITC: Advance Payments Over Lump-sum Delivery,” Joint Center for Poverty Research, January 2000. http://www.jcpr.org/wp/wpdownload. cfm?pdflink=wpfiles/romich_EITC_ update.PDF Timothy Smeeding, Katherine Phillips, Michael O’Connor, “ The EITC: Expectation, Knowledge, Use, and Economic and Social Mobility,” National Tax Journal Vol. 53 no. 4 Part 2 (December 2000) pp. 1187-1210. Lisa Barrow and Leslie McGranahan, “The

47

18.

19.

20.

21.

22.

23.

24.

25.

26.

Effect of the Earned Income Credit on the Seasonality of Household Expenditures”, National Tax Journal, Vol. 53 no. 4 Part 2 (December 2000) pp. 1241-1242. According to the 2005 Boston EITC Campaign Taxpayer Data Report Survey Data. http://www.cityofboston.gov/ bra/eitc/PDF/2005%20Boston%20 EITC%20Data%20Report.pdf Chi Chi Wu and Jean Ann Fox, “Refund Anticipation Loans: Updated Facts and Figures,” Consumer Federation of America & National Consumer Law Center, Inc. January 17, 2006. http:// www.consumerfed.org/pdfs/RAL_2006_ Early_info.pdf Chi Chi Wu, Jean Ann Fox, and Patrick Woodall, “Another Year of Loseses: High-Priced Refund Anticipation Loans Continue To Take a Chunk out of Americans’ Tax Returns,” National Consumer Law Center & Consumer Federation of America. January 2006. http://www.consumerfed.org/pdfs/2006_ RAL_report.pdf See Sidney Verba, Kay Schlozman, Henry Brady, Voice and Equality: Civic Voluntarism in American Politics, (Cambridge, MA: Harvard University Press, 1995), 352 where the exercise of civic skills was calculated to lead to an increase in political activity of roughly a third of a political act independent of other engagement factors. Theda Skocpol, “Presidential Address to the Annual Meeting of the American Political Science Association.”August 28, 2003, Philadelphia, PA. Limited in the sense that some organizations defined group membership through cultural or ethnic criteria which resulted in discriminatory practices. Theda Skocpol, “How Americans Became Civic”, in Civic Engagement in American Democracy, ed. Theda Skocpol and Morris Fiorina, (Washington, D.C. : Brookings Institution Press, 1999) 67-69. See Steven F. Schier, By Invitation Only: The Rise of Exclusive Politics in the United States. (Pittsburgh, PA: University of Pittsburgh Press, 2000); Sidney Verba, Kay Schlozman, Henry Brady, “Civic Participation and the Equality Problem,” Civic Engagement in American Democracy, ed. Theda Skocpol and Morris Fiorina, (Washington, D.C. :Brookings Institution Press, 1999); and Theda Skocpol, “How Americans Became Civic,” in Civic Engagement in American Democracy, ed. Theda Skocpol and Morris Fiorina, (Washington, D.C. :Brookings Institution Press, 1999) 67-69. Jeffrey Berry, The Rebirth of Urban

27.

28.

29. 30.

31.

Democracy, (Washington, D.C.: Brookings Institution Press, 2003), 280. Robert Putnam, Bowling Alone: The Collapse and Revival of American Community. (New York: Simon and Schuster, 2000) and Sjoerd Beugelsdijk and Sjak Smulders, “Bridging and Bonding Social Capital: Which One is Good for Economic Growth?”. Tillburg University working paper. http://www.eeaesem.com/papers/eea-esem/2003/119/ EEA2003.PDF Pro-Bono Tax Services Taskforce, “Executive Summary of Survey Results.” March 5, 2005. http://www.aaahq.org/ ata/public-interest/reports/ATA-ProBono-SurveyReport-March2005.pdf IRS, “2006 VITA/TCE Volunteer Student Guide,” Publication 678. http://www.irs. gov/pub/irs-pdf/p678.pdf This closely parallels Skocpol’s illustration of old voluntary federations in “Government Activism and the Reorganization of American Civic Democracy.” Unpublished paper prepared for the Transformation of the American Polity conference, Harvard University, Cambridge, MA, December 3-4, 2004. Center for Economic Progress, “Linking to Benefits,” 2007. http://www.taxcoalition.org/ResourceLibraryCFM/ benefits.cfm

About the Author Niko Karvounis is a Senior Fellow with the Roosevelt Institution. He graduated from Harvard University in 2005 with a B.A. in Government and from University of Oxford in June 2007 with an MSc in Criminology. While an undergraduate he founded the first intercollegiate progressive publication in the nation and a nonprofit organization dedicated to campus advocacy. After graduating from Harvard, he worked at National Journal and served on the Board of Directors for the Arlington-Alexandria Coalition for the Homeless where he received an award for his service. He now works with The Century Foundation in New York City.

48

Reducing Juvenile Recidivism in the United States
Jane Wilson, Stanford University

executIve SuMMary The American juvenile justice system desperately needs reform. Some 2.4 million juveniles are charged with offenses annually.1 An appalling 55 percent of juveniles released from incarceration nationwide are rearrested within one year.2 In urban centers, that percentage— referred to as the rate of recidivism— reaches up to 76 percent.3 High recidivism is associated with increases in crime, victimization, homelessness, family destabilization, and public health risks.4 Government-sponsored correctional programs cost sixty billion dollars annually.5 Most tragically, high recidivism indicates a failure to provide meaningful rehabilitation for offenders. Reducing recidivism specifically among juveniles should be of primary importance to the U.S. Department of Justice and the Office of Juvenile Justice and Delinquency Prevention. Our government’s current approach to lowering recidivism emphasizes the creation and funding of rehabilitative programs. While these initiatives have made marginal gains, efforts have been insufficient. Substantial progress will only come by eliminating recidivism-fostering features of the juvenile justice system itself. ProPoSed SolutIon I propose three policy reforms to reduce juvenile recidivism. First, eliminate unnecessary detention of juveniles. Second, restrict the practice of transferring juveniles to adult criminal courts. Third, ensure the continuation of delinquents’ Medicaid benefits upon release.

Eliminate unnecessary detention of juveniles. Studies show that youths placed in detention facilities are 4.5 times more likely to recidivate than those placed in alternate programs— even after controlling for offense.6 To reduce unnecessary detention, require all detention centers to inform arrested juveniles of their roles during detention hearings and establish stricter guidelines for determining which juveniles should be held in detention centers. Restrict the practice of transferring juveniles to adult criminal courts. Research shows that juveniles convicted in adult courts are 50 percent more likely to recidivate than those convicted in juvenile courts.7 The transfer of juveniles to the adult system should be an option for only the most serious offenders. To restrict the number of juveniles waived on to adult court, develop a specific list of offenses and circumstances warranting transfer. Ensure the continuation of delinquents’ Medicaid benefits upon release. A delay in receiving healthcare benefits is linked to a significant increase in recidivism. To avoid such a delay, forbid Medicaid from terminating contracts with delinquents entering jail. Temporarily suspend all contracts while delinquents are in jail and immediately reinstate Medicaid benefits to juveniles upon release.

49

I. the ProBleM Recidivism In the United States, roughly 60 to 70 percent of all adult inmates reentering the community are rearrested within one year of release.9 Precise recidivism rates for juveniles, however, are difficult to obtain at the national level; recidivism is typically measured at the county and state levels, and few states measure recidivism by the same metric. Estimates indicate that approximately 50 to 65 percent of juvenile offenders (hereafter delinquents) are re-arrested within one year of release.10 In the state of California, 74 percent of all delinquents are rearrested within one year of release.11 Recidivism rates in urban centers tend to be even higher. In Manhattan, 80 percent of delinquents are rearrested within four years of release.12 These numbers should be treated with some degree of caution. Recidivism itself results in part from actions taken by the juvenile justice system, such as arrest, incarceration, and release; without these, recidivism figures would be much lower. Furthermore, a high reincarceration rate may merely demonstrate that police are aware of released offenders and are more likely to incarcerate juveniles they have seen before. While these considerations are valid, they do not entirely negate the usefulness of recidivism as an indicator of the degree to which ex-offenders commit additional crime. Research conducted using self reported incidence of crime (as opposed to officially reported crime) confirms that juveniles released from incarceration still tend to commit further crime.13 Effects of Recidivism The effects of recidivism in the United States fall into four general categories. First, recidivism imposes tremendous 50

public safety costs on American communities; high recidivism rates indicate additional victimizations (assuming that the crime for which the juvenile was arrested was in fact committed). Second, increased recidivism results in extremely destructive social costs; increases in violence, crime, homelessness, family destabilization, and public health risks are all associated with high recidivism rates.14 Third, recidivism imposes a considerable financial burden on the U.S. Department of Justice and, more generally, on American society; our government spends an annual sixty billion dollars on correctional programs.15 Fourth, high recidivism indicates a failure to provide meaningful rehabilitation for inmates reentering the community; recidivist juveniles lose out on crucial educational, social, and personal developments that can rarely be regained. Additionally, studies show that recurrent offenses during teenage years can provide a dangerous inculcation leading to adult criminality.16 The tragedy of this cycle of criminality cannot be understated. Benefits of Reducing Recidivism Lowering the rate of recidivism will generate several positive outcomes. First, the aforementioned public safety, social, economic, and personal costs will decrease. Second, young people who otherwise would have been recidivists will become economic assets. Instead of draining resources, individuals who would have been recidivists could improve their communities. Third, a lower recidivism rate will allow our government to reallocate saved dollars from correctional programs to other financially depressed sectors, such as education. Finally, reducing juvenile recidivism will send an important message that our government deeply cares about the welfare of its adolescents and prisoners.

II. current SolutIonS Government-Sponsored Programs The government’s current attempts at reducing juvenile recidivism include a variety of strategies, including general programs, multisystemic therapy (MST), residential programs, and community supervision. Taken together, these efforts have produced mixed success. Examples of programs include Scared Straight (a deterrence-based program), Life Skills classes, interpersonal skills courses, counseling, the Family Home Program, targeted interventions for serious offenders, and therapeutic wilderness and challenge programs. Programs found to be most effective at reducing recidivism include individualized counseling, personal skills training, and behavior programs. Other programs, such as deterrence-based challenge and vocational programs, have been shown to be ineffective at reducing recidivism.17 Multisystemic therapy (MST) is a rigorous treatment program designed to provide a family-based approach to preventing crime and recidivism. It encourages youth to change in their natural environment, strengthen their peer relationships and improve their school performance, and it also empowers parents with the skills necessary to raise a delinquent adolescent. Though MST has successfully reduced crime, there is little evidence that it has reduced recidivism. (Although preventive policies may succeed in keeping juveniles out of custody, they do little about the way in which delinquents are treated once incarcerated and once released from incarceration.)18 Residential programs are overnight programs in which juveniles frequently engage in structured rehabilitation-oriented activities (including outdoor wilderness programs). The effectiveness of residential programs at reducing recidi-

vism is ambiguous: while some studies show a clear link between residential programs and lower recidivism, others reject the correlations entirely.19 Community supervision provides intense professional and governmental supervision of delinquents reentering the community. Probation is one of the major types of community supervision used. Studies have found no statistically significant relationship between community supervision and decreased recidivism.20 Nonprofit Programs In addition to these governmentsponsored efforts, several nongovernmental organizations address the issue of juvenile recidivism. Dozens of nonprofits have implemented various successful preventive programs (such as the Children’s Defense Fund’s “Cradle to Prison Pipeline” initiative). Others provide useful reentry resources, courses, and support groups for released delinquents (like the Street Law Reentry Program). Several nonprofit organizations run their own incarceration alternatives (such as the Andrew Glover Youth Foundation). Many of these nonprofit alternatives to incarceration have been successful at reducing recidivism.21 Research also supports the effectiveness of nonprofit preventive and reentry programs in lowering recidivism rates.22 Failures of the Current Model Effective governmental and non-profit programs are invaluable instruments needed to reduce recidivism. Though this paper does not intend to provide guidelines for creating better programs, it should be noted that the programs most effective at reducing recidivism have been those respectful of youth; family-like in size and setting; connected to the community during and following treatment; empathy-developing; accountabilityoriented; and marked by efforts to teach 51

juveniles cognitive skills (such as anger management, decision-making, etc.).23 Effective programs are certainly worthwhile and should be continued. Yet programs alone are insufficient. Although the aforementioned initiatives are effective in some cases and have made improvements, they have done little to affect recidivism on a national level. Even with government-sponsored rehabilitation programs and the emergence of an army of nonprofits, the national recidivism rate has hardly changed over the past 20 years.24 Suggestions for Improvement To make significant advances in reducing juvenile recidivism, our government must reform its structural and procedural policies. Before external programs can make a considerable difference, the juvenile justice system must undergo rigorous internal reform. Substantial progress will only come by eliminating features of the system itself that foster recidivism. Currently, three specific elements of the justice system—detention centers, juvenile waivers, and health insurance reapplication procedures—undercut efforts at reducing recidivism by actually increasing the likelihood that delinquents will recidivate. Because of their negative effects, these three practices must be altered. Government officials should adopt the following three policies: 1. Avoid holding juvenile delinquents in detention unless absolutely necessary. 2. Restrict the practice of transferring juveniles to the adult justice system. 3. Forbid Medicaid from requiring all reentering delinquents to reapply for services. Taking these steps will significantly reduce recidivism without disregarding the other goals of these three practices. 52

It should be noted that these three policies would be implemented most logically and most feasibly at the state level. They could also be recommended to state governors by the Office of Juvenile Justice and Delinquency Prevention and, if appropriate, made into federal law (as an amendment to the Juvenile Justice and Delinquency Prevention Act, for example). 1. avoId unneceSSary detentIon The first proposed policy advises the juvenile justice system to avoid holding delinquents in detention unless absolutely necessary. Because individuals placed in detention are significantly more likely to recidivate than their counterparts placed elsewhere, detention must be reserved for only those justifiably requiring it. Avoiding unnecessary detention can be accomplished by educating juveniles about their role in detention hearings and establishing stricter guidelines detailing which delinquents should be detained. Detention Hearings After being accused of committing a crime, delinquents can pass through up to nine stages of case processing. First, they are arrested and make initial contact with law enforcement officers. After taking the juveniles into custody, police juvenile officers evaluate the delinquents and decide whether or not they should be sent to detention, probation intake, home, or alternate educational and recreational programs. Roughly 20 to 33 percent of all delinquents are sent into detention, where their capacity to harm themselves and others is supposedly debilitated. Within 24 to 72 hours of being held at the detention center, delinquents participate in a detention hearing. Led by a juvenile probation officer, these detention hearings determine whether or not

the juvenile should remain in detention until adjudication. After briefly reviewing the case, a judge decides if the juvenile requires additional detention. If so, the delinquent will remain in detention until adjudicated, after which he or she may be released, relocated to another facility, or sentenced to additional time in detention. On any given day, some 27,000 adolescents are held in detention facilities across the United States. Annually, some 600,000 delinquents will spend time in detention.26 Detention Centers and Recidivism Even though detention may be short and used for less than half of delinquents, its influence on juveniles can persist for months and even years into their future. Research shows that being held in detention is the number one predictor of recidivism—beating out other likely predictive variables such as gang membership, gun ownership, and dysfunctional family background.27, 28 This finding holds true even after controlling for nature of offense (and other potentially confounding variables). A study conducted in New York City found that the rate of recidivism for juveniles sent to alternate programs ranged between 17 and 36 percent, while their counterparts held in detention facilities averaged 76 percent (again, even after controlling for offense).29 As Lubow explains, “Detention is the gateway to the system’s deep end.”30. 31 Why is this so? Behavioral scientists have found that grouping delinquent juveniles together in a detention-like setting can result in deleterious outcomes because detained juveniles receive informal “peer deviancy training.”32 Detention often exposes first-time offenders to new criminal friends, gangs, tricks, and “games.” As a result of this exposure and learning, de-

tained juveniles are more likely than their equivalents placed in alternate facilities to commit future crimes, use violence, become involved with drugs, struggle in school, and have difficulty adjusting to adulthood.33 Yet detention centers do serve a valuable purpose: they incapacitate juveniles who otherwise would be a threat to themselves and those around them. Because they serve this needed function, detention centers should not be eradicated entirely. Rather, detention must be reserved for only those delinquents who, if not detained, present a real threat to society. To reduce recidivism, detention must be reserved only for those truly deserving detention. Inform Delinquents First, ensure that all delinquents are aware of their rights and role during the detention hearing. As stated earlier, the detention hearing is a preadjudication assessment in which a judge decides where to place a delinquent between arrest and trial. In making their decisions, judges review the facts of the case and act based on their own personal judgment. Near the end of the hearing, judges ask delinquents if there is any additional information they would like to share. Unaware of what information would be appropriate to mention, delinquents almost always decline to speak. Judges therefore base their decisions solely on the facts of the case, which rarely speak highly of delinquents. Delinquents will be more apt to provide the judge with relevant information if they are aware of what sort of information they can and should provide during their hearing. In this case, relevant information might include: Do you have a 53

job? Are you using your job to support your family? Are you going to school? Are you planning to graduate from high school? What is your family situation like? A judge understands that placing a delinquent in detention will pull him or her out of school for a month. Answers to these questions could have a marked effect on judges’ decisions. For example, if the judge hears a delinquent say that he is trying to graduate, the judge will be more likely to place him in a non-residential program. Similarly, a judge will likely avoid placing someone in detention if the judge hears that delinquent’s job pays for 50 percent of his family’s monthly rent. In order to make delinquents aware of the types of information worth sharing in their detention hearing, require detention facilities to inform all juveniles what information is relevant. This can be done in a simple way: distribute a single sheet of paper to delinquents prior to their detention hearing. This sheet should contain an explanation of the detention hearing; the order in which information is presented during the hearing; possible placement options; and various types of information delinquents can share with the judge. Delinquents should read the information sheet carefully, and should be able to receive answers to any additional questions they might have from facility officers. This information could also be provided in video format. After reading through such an information sheet, delinquents will have a better idea of the sorts of information that might help judges make preadjudication placement decisions. As juveniles understand their rights and role in the detention hearing process, they will be more likely to speak up when asked for additional information. By sharing pertinent information with the judge, delinquents will provide a more complete picture of 54

their situation. Their chances of receiving alternate placement will increase, and ultimately the probability that they will recidivate will decrease. Establish Guidelines for Detaining Delinquents Second, establish stricter guidelines for determining which juveniles should be held in detention centers. Launch a committee with the mandate of creating a series of directives or rules delineating which offenses require detainment and which do not. A specific list of admissible exceptions should be developed. Committee members must be fully aware of the negative effects detention has on delinquents, and should formulate these standards with a rehabilitative approach in mind. Setting a clear standard of who should be detained will eliminate the individual variance and prejudices that often result in unnecessary detention. 2. reStrIct the uSe of WaIverS The second policy proposal recommends restricting the transfer of delinquents from the juvenile justice system to the adult one. Though initially intended only for the most serious offenders, the waiver system is currently being used to divert ten percent of all delinquents. Because delinquents held in adult facilities are 50 percent more likely to recidivate than those in juvenile facilities, only the most severe cases should receive waivers. The Waiver System One of the founding tenets of the juvenile justice system promises its occupants a restraint from overly destructive punishments. Unlike the adult court, the juvenile court was established based on rehabilitation-oriented principles. In sentencing offenders, juvenile court judges leave “room for reform.” The juvenile

system recognizes the biological and developmental differences between adolescents and adults and, as a result, allegedly adjudicates much less punitively than the adult system. Juvenile judges are limited in the extent to which they can incapacitate defendants, with sentences rarely topping 20 years. With the crime surge of the 1980s and early 1990s, however, rehabilitation became less of a priority for communities and policymakers. The focus instead shifted to keeping “dangerous” criminals off the streets. In the name of public safety, legislators initiated the waiver system, a method through which severe offenders could be transferred from the juvenile system to the adult one. Once in the adult system, delinquents received longer and harsher sentences—deserved punishment according to victims. Failures of the Waiver System Since its inception, the waiver system has been abused and has encouraged recidivism; the use of the waiver has not been restricted to the most severe cases. Once the conduit between these two systems was opened, juvenile courts have eagerly pushed disobedient, recidivist, and older delinquents out of their own system and into the adult one—regardless of the crime they committed. Roughly ten percent of all delinquents are now diverted out of the juvenile system into the adult one.35 The consequences for delinquents unnecessarily placed in the adult system have been tremendously unfortunate. Due to their exposure with more sophisticated and experienced adult criminals, delinquents spending time in adult facilities are 50 percent more likely to recidivate than those held in juvenile centers—even after controlling for nature of offense.36 Restricting Waivers To minimize the superfluous number

of delinquents receiving waivers, restrict the granting of waivers to only the most severe cases. According to the procedure’s original design, only the most serious offenses (such as intentional homicide) merit transfer. Significant effort must be spent to restrict unnecessary waivers. Clarifying amendments should be adopted to establish firmer guidelines describing which crimes warrant transfer. Doing so will vastly reduce the number of juveniles sent to the adult criminal system. Ultimately, the likelihood of recidivism will decrease significantly for delinquents who otherwise would have been unnecessarily tried in adult courts. 3. change MedIcaId reaPPlIcatIon requIreMentS The third recommended policy proposes forbidding the U.S. Department of Health and Human Services from requiring that all juveniles released from jail reapply for Medicaid. Because a delay in receiving healthcare benefits is associated with a significant increase in recidivism, all Medicaid services to delinquents should be reinstated immediately upon release. Health Insurance & Recidivism Upon entering jail, delinquents frequently lose their health benefits. By federal law, the responsibility for an incarcerated delinquent’s health lies with the detention facility in which he or she is situated. Health insurance providers therefore serve no purpose while their client is in jail. Typically, health insurance companies terminate their contracts with individuals as soon their incarceration begins (or as soon as their clients have been in jail for a set period of time, such as 12 months). Once released, delinquents must reapply for healthcare. This practice holds true for Medicaid, the governmentsponsored healthcare plan for low-income 55

individuals that serves a large portion of delinquents. The reapplication process for Medicaid often takes several months, leaving reentering delinquents without needed healthcare services. Delinquents with mental health problems are especially hard-hit by the reapplication procedures, and often experience illness flare-ups as a result of the delay.37 Because 70 percent of the juvenile delinquent population has a mental disorder, receiving timely health services is vital to their long-term health.38 Additionally, orphaned delinquents sometimes wait up to a year before receiving placement in a foster care home (a service provided by Medicaid). In the meantime, they must single-handedly find housing. Confronted with these difficulties, delinquents often reoffend for the sole purpose of reentering jail and receiving the healthcare services provided by incarceration facilities. A delay in obtaining healthcare benefits is linked to a significant increase in recidivism.39 Recommendation To avoid such a delay, immediately reinstate all Medicaid benefits to juveniles reentering the community. Medicaid should not terminate its contracts with incarcerated juveniles. Rather, it should temporarily suspend benefits until the delinquent reenters the community. Abiding by this policy will considerably lower the probability of recidivism for portions of the 70 percent of all delinquents with a mental disorder. Obstacles Opponents of these three policy recommendations may argue that high recidivism rates require longer and harsher sentences, not rehabilitation-oriented reform. This argument could be based on the fact that despite its being founded on rehabilitative principles, the U.S. juvenile 56

justice system has an extremely high recidivism rate. The rate of recidivism in the adult justice system—an institution not founded on rehabilitation—is also around 65 percent. Rehabilitation has not worked, the argument goes, and therefore it should be abandoned in favor of a more punitive approach, under the assumption that longer and harsher sentences would deter delinquents from recidivating. This argument suffers from two main flaws. First, it assumes that the U.S. juvenile justice system has been entirely rehabilitative. As shown earlier, our government’s own internal procedures often counteract its rehabilitative principles. It is incorrect to assume that the juvenile justice system has been an exercise in rehabilitation. Second, this argument ignores the mounting evidence indicating that punitive approaches increase recidivism while rehabilitative ones decrease it. The waiver system, for example, is entirely punitive in nature, and has only increased recidivism. Other deterrence- and punishment-based programs, such as Scared Straight, have at best failed to affect recidivism and at worst have increased recidivism rates. Rehabilitative programs, on the other hand, have often proven capable of reducing recidivism.40 Others may argue that decreasing the number of delinquents held in detention will fail to maximize full use of facilities, thereby creating a gross economic inefficiency. The United States spends billions of dollars erecting incarceration centers; discouraging their filling would waste valuable already-spent tax dollars. Reducing the number of occupants in a detention facility certainly would be a failure to use the building to its full potential. However, unfilled detention facilities can easily be put to alternate use (for example, detention wings can be turned into classrooms). In any event, the real economic inefficiency in this case is recidivism, not

underutilized buildings. The purpose of detention facilities is not to reach maximum capacity, but to provide a location for the juvenile justice system to carry out its mission. A third counterargument points out that restricting waivers will increase the caseload of an already overburdened juvenile justice system. Confronted with more cases than it can handle, the system risks making administrative mistakes as a result of the overload. This concern is valid: juvenile courts can expect to see an increase in the number of cases processed once transfers to the adult system are limited. In the long run, however, the juvenile court caseload will decrease significantly as recidivism decreases. concluSIon The statistics and policies presented in this paper only narrowly describe the issues facing America’s recidivist juveniles. An unacceptable depth of heartache and suffering plagues our delinquents, and without significant effort these youth are more likely to enter a pattern of criminality that hurts society as a whole. Vigorous reformative efforts—including the recommendations herein outlined—must be taken immediately before another generation of youth deteriorates beyond repair. The awful realities of juvenile recidivism demand those efforts. Endnotes
1. Synder, Howard, Juvenile Arrests 2000 (Washington D.C.: Office of Juvenile Justice and Delinquency Programs, 2002). Synder, Howard, and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report (Washington D.C.: Office of Juvenile Justice and Delinquency Programs, 2006). Calvin, Elizabeth, Legal Strategies to Reduce the Unnecessary Detention of Children (Washington D.C.:

4.

5.

6.

7.

8. 9. 10. 11.

12. 13. 14. 15.

16.

2.

17. 18. 19. 20. 21. 22. 23.

3.

National Juvenile Defender Center, 2004). Travis, J. and A. L. Solomon, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (Washington D.C.: The Urban Institute, 2001). Schuetz, Pam, “Employment for Former Prisoners: Community, Family and Individual Salvation?” CELCEE Digest, (2005): http:// www.celcee.edu/publications/digest/ Dig05-07.html. Calvin, Sims, Barbara, and Pamela Preston, eds., Handbook of Juvenile Justice Theory and Practice (Boca Raton: Taylor & Francis Group, 2006). “Appropriations Approves Bill to Reduce Juvenile Recidivism and Homelessness,” News from the Twelfth Assembly District, May 24, 2006, http://democrats. assembly.ca.gov/members/a12/press/ p122006062.htm. Various. Various. Bailey, Brandon, and Griff Palmer, “High Rearrest Rate,” The Mercury News, October 17, 2004. Gerwitz, Marian, “Recidivism Among Juvenile Offenders in New York City,” New York City Criminal Justice Agency, Inc., (2007): http://www.cjareports.org/reports/ jorecid0407.pdf. Hewitt, John D. and Robert M. Regoli, Delinquency in Society (New York: McGraw Hill, 2006). Travis and Solomon. Schuetz. Dunham, Warren, and Chaitin Mildred, “The Juvenile Court in Its Relationship to Adult Criminality,” Social Forces (1966): 114-119. MacKenzie, Doris Layton, What Works in Corrections: Reducing the Criminal Activities of Offenders and Delinquents (New York: Cambridge University press, 2006). Ibid. Ibid. Ibid. Pozen, David, “The Private, Nonprofit Prison,” Boston Globe, February 21, 2006. See the websites of NGOs mentioned (such as AGYF and CDF). Various. Special thanks to Professor Richard Johnson for compiling this list. U.S. Department of Justice, Office of

57

24. 25.

26. 27.

28. 29. 30. 31. 32. 33. 34.

35. 36.

37. 38. 39.

Justice Programs, Bureau of Justice Statistics, Reentry Trends in the U.S., October 25, 2002, http://www.ojp. usdoj.gov/bjs/reentry/recidivism. htm. Roberts. Lubow, Bart, “Reducing Inappropriate Detention: A Focus on the Role of Defense Attorneys,” Juvenile Justice Update 11, no. 4 (2005): 1-2, 14-16. Ibid. Hollman, Barry, and Jason Ziedenberg, “The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities,” Justice Policy Institute (2006). Calvin. Lubow Dominguez, David, Personal Interview, October 23, 2006. Hollman and Ziedenberg. Dominguez. Zimring, Franklin E, American Juvenile Justice, (New York: Oxford University Press, 2005). Coalition for Juvenile Justice, Trying and Sentencing Youth in Adult Criminal Court, http://www. juvjustice.org/resources/fs008.html. Sims and Preston. Cuellar, Alison, Kelly Kelleher, Jennifer Rolls, and Kathleen Pajer, “Medicaid Insurance Policy for Youths Involved in the Criminal Justice System,” Public Health Consequences of Imprisonment 95, no. 10 (2005): 1707-1711. “News from the Twelfth Assembly District.” Ibid. Calvin.

About the Author Jane Wilson is a senior at Stanford University and majors in Political Science. Over the past several years, Jane has worked with inmates as a GED tutor, literacy coach, and Life Skills instructor. She has also worked with underprivileged juveniles as a truancy counselor, ESL tutor, mediator, and music teacher. As Stanford’s Strauss Scholar, she is currently developing educational programs for inmates in New York City, Chicago, San Diego, Salt Lake City, and St. Louis. Jane intends to pursue a law degree and eventually work in correctional legislation.

58

Finding an Alternative Solution: A Comparative Analysis of Drug Policies
Benjamin Aronson, Brown University “The essential nature of the US drug enforcement has an alien tinge to it, more suited to an intrusive totalitarian society than to the democratic…culture that evolved…here in the United States” -Arnold Trebach, 19931

I. IntroductIon For almost a century, the United States has followed an increasingly strict drug control policy. While state and local governments have played major roles in drug enforcement throughout US history, the federal government has been the driving force behind the nation’s drug policy since 1914.2 Punishments for drug use and drug trafficking became extremely harsh after World War II. In the 1950s, the government implemented a series of laws including mandatory minimum sentences, life imprisonment, and even the death penalty for certain drug crimes.3 Although the more tolerant political milieu of the 1960s forced some of the previous decade’s repressive policies to give way to more lenient ones, by the 1970s President Nixon’s declared “War on Drugs” propelled the reintroduction of severe drug laws and further US involvement in drug enforcement.4 In 1986 President Reagan proposed a new “War on Drugs,” one that would take an even harder line on drug offenders. Since then, the policies of the US government have changed only slightly. Abstinence has been the primary goal; domestic law enforcement is the most heavily funded drug-related initiative; and the need to reduce the drug supply—rather than the drug demand—

has generally dominated policy thinking. The first half of this paper analyzes US domestic drug policy and policy outcomes since the beginning of the Reagan administration’s war on drugs. The second half of the paper focuses on Swedish, Dutch, and Australian approaches to drug control. Sweden’s drug policies are the most restrictive of the three; the Netherlands’ approach is more liberal; and Australia’s is moderate. These examples will show that restrictive policies, regardless of their orientation, do not necessarily work; even the once highly praised Swedish model of drug repression is now undercut by signs of rising illicit drug use. They will also highlight the benefits and reduced societal costs of progressive, heath-oriented policies, as compared to enforcementbased policies. Australia’s more moderate approach is a politically viable model for the United States. Given the history of repressive drug policies and the political strength of social conservatives, the Australian balance between enforcement and harm reduction could be an effective and feasible step toward a health-based drug policy. US Drug-Control Budget As mentioned above, Ronald Reagan’s presidency marked the beginning of a renewed, strengthened, and sustained attack against drug use and drug trafficking. Drugs, especially cocaine, became the focus of government attention. The US drug-control budget illustrates the rising importance of drugs in federal policymaking. Between 1981 and 1989, federal expenditure on drug control grew by roughly $5.1 billion.5 The new funds 59

were not distributed equally among the five major components of the drug-control effort: international activities and source country control, interdiction, domestic law enforcement, prevention, and treatment. Instead, the lion’s share of the money was allocated to enforcement.6 By 1989 prevention and treatment expenditures combined made up less than 30 percent of the federal drug budget,7 continuing a downward trend that had begun in 1973 under Nixon.8 In the past two decades alone, federal spending on enforcement has risen tenfold.9 Since the 1980s, the trends with regard to enforcement, treatment, and prevention spending have remained essentially the same. As the drug-control budget has soared to over $18 billion, enforcement initiatives have taken precedence over all other areas of drug control. Combined with international programs, enforcement spending has consistently accounted for more than two-thirds of the entire budget.10 Moreover, some experts believe the reported federal budget overestimates the proportion of money spent on treatment and prevention.11 Irrespective of these discrepancies, what is clear from even a cursory examination of the budget is that enforcement, not treatment or prevention, accounts for the majority of federal funds. State and local governments also spend a considerable amount of funding on drug-control expenditures. And while the data on state and local expenditures are not as plentiful or up to date as data on federal drug expenses, the available information that does exist demonstrates a similar—if not greater—propensity toward law enforcement over prevention and treatment.12 US Drug-Control Strategy An understanding of the major goals in combating drugs is essential to explain60

ing these relatively unbalanced budget allocations. As David Boyum and Peter Reuter point out, the primary objective of federal drug strategy from the late 1980s has been to reduce the number of drug users. Former Office of National Drug Control Policy (ONDCP) director William Bennett explained that “the highest priority of our drug policy… must be a stubborn determination further to reduce the overall level of drug use nationwide— experimental first use, ‘casual’ use, regular use, and addiction alike.” Such a conception of the drug problem inevitably gives precedence to enforcement. That is, if the policy’s goal is to reduce drug use, then treatment programs, which focus on helping a small group of chronic heavy drug users reduce drug addiction rather than encouraging a large group of casual users to abstain from drug use, are going to be ill-funded.13 Likewise, government officials have found secondary and tertiary prevention efforts that help to lower the damage associated with drug use (e.g. needle exchanges, methadone clinics)—otherwise known as harm reduction measures— similarly unappealing as they too do not necessarily encourage abstinence. Thus, harm reductionism policies are both minimally funded and considerably restricted. Methadone maintenance, for example, is strictly limited to federally licensed programs, even though some research shows that primary care clinics produce similar patient success rates.14 Needle exchange is also underdeveloped, with only 134 needle exchange programs distributing a total of 17.5 million syringes per year.15 According to a recent survey by the Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology, it is estimated that between 920 million and 1.7 billion injections take place each

year in the country. There is a large gap between the need for and availability of sterile syringes.16 The lack of syringe access is partly attributable to state governments as well, as studies in the last decade have shown harsh legal restrictions on these types of programs. Nevertheless, the federal government itself has made little effort to help the cause of reducing the damage attributable to drug use (i.e. harm reduction). The claim of the current director of the ONDCP, John Walters, that “the very name [of harm reduction] is a lie,”17 illustrates the level of government support for harm reduction. Aiming instead to curb drug prevalence, Walters pushed the focus of US policy from hard drugs to marijuana, the illicit drug with the highest rate of use in the country.18 Recent studies show that the government supports Walters’ call for serious marijuana enforcement, with 44 percent of all drug related arrests in 2004 resulting from marijuana violations, and 39 percent simply from marijuana possession.19 Similarly, the National Youth Anti-Drug Media Campaign sponsored by the ONDCP overwhelmingly focuses on marijuana use prevention for at-risk non-users and occasional users.20 The consequences of a severe enforcement policy coupled with inadequate provision of treatment and negligent support of harm reduction methods are staggering. First, individuals’ civil liberties have been threatened. In 1985, the US Supreme Court upheld the right of US customs officials to detain anyone who entered the US until they submitted a stool sample for examination to prove they were not trafficking drugs. This policy showed a success rate of less than 20 percent.21 While this policy may be effective in some cases, it is extremely demoralizing for those subjected to it. Similar trespasses against

basic rights can be seen in the forfeiture laws of the 1980s allowing officers to seize the assets of suspected traffickers without criminal conviction.22 Second, incarceration rates have rapidly escalated, marking both a loss of human productivity and high costs to taxpayers, while leaving many families and children helpless.23 Prison sentences have been equally harsh, with a 1992 report by the Bureau of Justice Statistics showing an average sentence of six years for drugrelated criminals.24 Failure to provide clean needles throughout the last two decades has also led to unnecessary rates of HIV, with approximately 30 percent of HIV cases being related to injection drug use, according to the CDC.25 African American and Latino communities have been hit the hardest by US policies, with higher rates of incarceration and HIV/ AIDS among drug users.26 In addition to the costs, these policies have few tangible benefits. Drug use has fluctuated irrespective of a consistently harsh US drug policy since the first period of escalation in the 1980s,27 while drug prices are steadily decreasing.28 Crime also appears to be unaffected by some of the policies, which is not surprising considering that chronic substance abusers who carry out most of the crime are not the focus of US drug policy.29 The problems are clear. The costs at which we pursue our policies are much too high to continue with a prohibitionist approach based on severe enforcement and little help to the drug user. Should we seek a different form of repression (i.e. the Swedish model), extreme liberalization (i.e. the Netherlands), or the middle road (i.e. Australia)? Which policies provide the best model for future drug law? Which policies are politically viable? It is with these questions that we move to 61

the next component of this discussion, an analysis of three forms of drug-control policies currently employed within the international community. II. the SWedISh Model: froM “SucceSS” to futIlIty Before beginning a more lengthy discussion of the progressive models of drug-control policies, it is important to establish that the problems inherent in the repressive US drug-control policy are not limited to the United States. Sweden, which for years championed a consumption-oriented repressive drug policy as a highly effective and superior model, has similar problems. Like the US, Sweden has sought a drug-free society. However, unlike the US, which has attempted to disrupt drug markets and curb drug use by focusing on supply (i.e. interdiction, local and transstate trafficking, source country production), Sweden has sought to crack down on demand. As the former Minister for Health and Social Affairs, Bengt Westerberg, noted, “Consumption is the motor of the whole drug carousel.”30 While education and prevention efforts dominated the attack on consumption in the 1970s, a sensationalized enforcement process became the primary drug-control strategy by the 1980s. With policymakers guiding the public to believe that drugs threatened the very nature, stability, and exceptionalism of Swedish society, the Swedish government led a new offensive on drugs.31 In 1988, drug use, regardless of the drug, became a fineable offence. By 1993 drug use became an imprisonable transgression. One effort operating under this new infrastructure was the Rave Commission developed in the 1990s. This governmental initiative instituted the right to subject club-goers to urine testing and random arrest with62

in the nightlife setting. This set a harsh precedent paving the way for drug testing practices that exceeded governmental minimums; by 1997, one-third of all large firms were habitually testing their workers.32 One of the essential components of Swedish policy has been the idea that euphoria is the basis for consumption. Such a notion, developed by Nils Bejerot, who helped found Swedish drug policy, partly explains why consumption was chosen as the center-point of Swedish drug policy. It also explains why Sweden has opted to put such little attention toward treatment mechanisms. That is, if euphoria is the root of consumption, then making the life of the drug user as unbearable as possible will help drug users choose the abstinence alternative.33 Not surprisingly, treatment funds were cut in the 1990s, and these funds now only account for one quarter of drug-related spending today.34 The Swedish government also staunchly opposed harm reduction measures, seeing them as both a contradiction in the search for a drug free society and a threat to society in and of themselves. All of the methadone clinics in Sweden were geared toward getting drug users to abstain from drugs rather than helping them live healthy, productive lives without illicit substances.35 The few needle exchange programs that existed were also not dubbed as harm reduction policies. Doing so would support drug use and thus pose a danger to the stability of society. As Arthur Gould explains, “whereas in countries like the Netherlands and Britain, it had been accepted that the spread of HIV and AIDS was greater than the threat from drug use, in Sweden it was argued that the threats were equally great.”36 What has been the result of these increasingly repressive, anti-harm reduction laws? First, as in the US, the pro-

hibitionist policies in Sweden have led to gross violations of civil liberties, as seen for example in the power of the Rave Commission mentioned above to demand drug tests from anyone believed to be under the influence. Furthermore, like the US, Sweden has had rapidly increasing incarceration and conviction rates. Between 1986 and 1997, the number of people found guilty almost doubled (from 6,400 to 11,400), with 2,000 receiving sentences of six months or less and 270 receiving sentences of more than two years.37 Second, drug use has fluctuated without any clear relation to changes in Swedish policy. While the Swedish model was praised as a success in the 1980s for lowering recreational drug consumption, drug consumption at the time of the restrictive policy formation was already on the decline (at least since the mid 1970s), thus putting into question the real effectiveness of Swedish policy.38 Moreover, from 1979 to 1992, there was a substantial increase in the number of heavy drug users from 12,000 to 17,000, and between 1992 and 1998, an increase in the number of heavy drug users by 37 percent.39 Additionally, despite the continuation of a strict prohibitionist policy to deter consumption throughout the 1990s, recreational and teenage drug use grew considerably in that decade.40 The number of documented overdoses also went up, rising from 99 in 1995 to over 400 in 2002 and 2003.41 It is important to note that regardless of these increases in consumption, Swedish drug consumption is lower than that of the rest of Europe. But this is likely due to the fact that Sweden is a successful welfare state with a low unemployment rate.42 Again, the focus of this analysis is on policy effectiveness, not simply use prevalence.43 Surprisingly, the repressive anti-harm reduction attributes of Swedish drug-control are changing slightly. Policymakers

are putting more emphasis on treatment and “caring” for patients instead of simply “curing” them.44 Officials are also more supportive of harm reduction measures, as seen in 2004 when the government made two experimental needle exchange programs permanent and the National Drug Policy Coordinator recommended that similar needle exchange programs be permitted throughout the country.45 In general, there has been a growing realization that former drug policies have been ineffective in curbing drug use, and benefits can be derived–without societal costs—from harm reduction. In this way, the once highly-praised Swedish model, like the American paradigm, shows that drug use can rise in spite of repressive policies. In fact, studies have shown that drug-control policy is only a minor component in drug abuse rates and thus not an effective deterrent of drug use. Therefore, given the futility of this policy and that abstinence-based, antiharm-reduction drug policies ignore the great costs associated both with drug use and the excessive drug-control policing, it seems necessary to find an alternative solution that avoids the problems associated with repressive regimes. It also seems necessary to shift the focus of policy from prevalence—proven to fluctuate independently of drug policies—to something that is more controllable and generally beneficial to society (i.e. harm reduction). It is with this alternative framework in mind that I shift discussion to perhaps the most progressive example of alternate drug-control models: the Netherlands. III. the netherlandS: the lIBeral exPerIMent In 1967 and 1968, after over a decade of repressive Dutch drug policies, two independent commissions—one private and one state—began researching alternative solutions to what was becoming 63

a clearly ineffective national drug policy. The privately-funded Hulsman Commission began investigations first and, to a certain degree, spurred the creation of the second, state-funded working group known as the Baan Commission. Both commissions came to similar conclusions and advised the government to shift away from the prohibitionist approach, especially regarding cannabis use. The development of these commissions marked a radical change in drug-control philosophy. The extent to which these two commissions actually influenced policy makers is debated. Some have proposed that the two commissions were in fact to the political right of legislators and thus did not have much of an impact on governmental thinking.46 Regardless of whether change was inevitable, the propositions put forth by the Hulsman and the Baan commissions were generally accepted, and in 1976, official policy changed with a revision to the 1928 Dutch Opium Act.47 The key change in Dutch policy was the legal distinction between List I and List II drugs. List II drugs were cannabis products, while List I drugs were essentially everything else (cocaine, heroine, amphetamines, LSD etc.). The reasoning behind the change was two-fold. First, policy makers wanted to make a legal distinction between what they considered unacceptably dangerous “hard” drugs and less dangerous “soft drugs” (i.e. cannabis products). Second, it was hoped that the legal separation between List I and List II drugs would prevent cannabis users from interacting in an underground black market. More specifically, if cannabis became legally accepted, it was envisioned that cannabis users would be less likely to move onto hard drugs (i.e. the gateway effect) or involve themselves in the dangers of an underground black market. The latter element of reasoning identifies most notably with the theory of harm reduction. 64

The recent Dutch experiment in harm reduction is clearly the focal point of efforts to liberalize international drug policy norms. Since its inception in 1976, the policy has taken four major objectives: 1) “prevention of drug use and treatment and rehabilitation of addicts,” 2) “reduction of harm to drug users,” 3) “diminishing public nuisance caused by drug users,” and 4) “combating the production and trafficking of drugs.”48 As is illustrated above, the key concepts of Dutch drug-control policy are based on harm reduction, public heath, and tolerance with regard to drug use. It is understood that while drug use should be discouraged, those who do use drugs should not be abandoned. In line with the concept of normalization that arose in the 1980s, drug use is seen as a common social issue and thus should be treated similar to alcoholism.49 It is important to note that the term normalization does not by definition assume drug use to be normal. Instead, it assumes that deviant behavior, such as drug and alcohol abuse, is a normal part of society.50 Also assumed in the Dutch policy is that policing drug use can often be more harmful than drug use itself. Nevertheless, the objectives show that while drug use is somewhat tolerated, drug production and trafficking is certainly not. Surprisingly, like the U.S, two-thirds of federal drug spending goes to enforcement, partly due to US and international pressure.51 Where the Dutch model differs, however, is in its approach. Even though three government ministries are active in drug-control decision-making (Health, Interior, Justice), the Health Ministry acts as the coordinator between the three and is of foremost importance in the process.52 Thus, although most of the money goes toward supply interdiction, the drug control strategy is essentially geared toward health principles above all else.

Now that the policies have been presented, it is relevant to disclose the manner in which they have been carried out. Following the idea of normalization, it is essentially understood that small quantities of drugs—hard or soft—for personal possession are decriminalized. The Chief Prosecutor has set standards for the limits of personal possession: five grams (previously 30 grams) of cannabis, .5 grams of heroin and cocaine, and one tablet for pill drugs such as ecstasy.53 Moreover, prosecutors can implement the Dutch expediency rule, allowing prosecutors to throw away cases if they feel the prosecution acts against the public interest (e.g. if possession of cannabis does not exceed five grams, previously 30 grams). Thus, in a sense, while experimental drug use is not formally allowed or encouraged, it is somewhat accepted and seen as a minimal problem. Such thinking is in accordance with the Libertarian thinking of John Stuart Mill. According to Mill, the state should “refrain as much as possible from behaviours that have consequences for the individual alone.”54 Following such a policy, it is only when drug users cause trouble to bystanders (e.g. crime) that Dutch officers intervene.55 Even low-level street dealing sometimes goes unpunished.56 Discussion of the Dutch drug policy would not be complete without mention of the state-approved coffee shops. In line with the Dutch distinction between List I and List II drugs, and in accordance with the administrative attempt to separate cannabis from the black market, coffee shops are locations that are allowed to sell small quantities of ‘soft drugs’ (e.g. 30 grams or less of cannabis products). In accordance with the major component of Dutch strategy that seeks to stop large scale trafficking, however, coffee shops are theoretically not allowed to buy drugs, a discrepancy known as the ‘front door-

back door problem’. Coffee shops are also not allowed to advertise, sell to minors, or operate within 500 meters of a school. Although in principle the idea of the coffee shop makes sense, the Netherlands has faced international criticism for its ultraliberal policies in allowing drugs to be sold. Despite some cutbacks in the numbers of coffee shops, approximately 900 still remain in the country. The reduction in coffee shops has been accompanied with the rise of ‘smart shops’ in which usually legal, mostly plant-based, psychoactive drugs are sold. As one reporter explains, “While the psychoactive compounds in mushrooms are illegal, fresh mushrooms are not…[T]he designer drug chemists [however] stay one step ahead of lawmakers by tweaking their products to confound legal descriptions.”57 As the purpose of this paper is to search for alternative solutions to the US drug policy, it is necessary to examine both the costs and benefits of the Netherlands’ drug policy. First, let us consider the benefits. The approach taken by the Netherlands has avoided many of the problems associated with US drug policy without incurring high rates of drug use relative to Europe or the United States. The government, for example, has been able to pursue extensive treatment programs providing methadone maintenance and needle exchanges, with services reaching approximately 70 percent of heroin users.58 Meanwhile, health services such as the needle exchange programs have contributed to the relatively low HIV/ AIDS prevalence among intravenous drug users (IDUs) in the Netherlands. Only 10.5 percent of HIV/AIDS victims are IDUs,59 significantly lower than the European average of 39.2 percent.60 Also beneficial in the Dutch program is the health education system, with appropriate sex education and welfare support to drug users.61 Surprisingly, despite the 65

treatment of heroin users, crime among IDUs has not decreased; but there does not seem to be any indication that it has increased either.62 Perhaps the most important benefit of the Dutch system is the openness with which policy makers approach the drug problem. The Dutch system has helped IDUs come out of the shadows and move away from the often harmful consequences of displacement (e.g. increased risk of overdose because bystanders are not around to give assistance) and covert, rushed injection processes (often leading to accidental needle sharing or non-sterile forms of injection). In doing so, the system has a greater societal benefit, as the visibility of drug addicts has led to a deglamorization of drug use and served as a useful prevention measure.63 Likewise, Dutch administrators can more accurately trace the problem of drug addiction in the country. Exemplary of the openness in Dutch policy was the temporary effort to screen more harmful illicit drugs among a user’s stash of illicit drugs. Although recently shut down partially in response to international criticism, clinics arose in light of increased ecstasy use to test for look-alike pills that could be potentially more dangerous than the intended drug of choice.64 Such progressive thinking is at the heart of Dutch policy-making and has allowed for fundamental changes with successful results in the area of harm reduction. The policy changes themselves have not seemed to increase substance abuse. As found by Korf (1995) with regard to cannabis, “the overall picture indicates that no significant changes in cannabis use have occurred since statutory decriminalization.”65 Rather, it was only several years after the passage of this drug policy that cannabis use increased, an increase that was in conjunction with trends in most European countries.66 Still, de66

spite the increase, cannabis use in the Netherlands is relatively low. According to a 1999 study by Abraham et al., only 15.6 percent of the Dutch population reported ever using cannabis.67 It is interesting to note as well that Dutch trends in cannabis use between 1970 and 1990 are remarkably similar to those of Germany, despite Germany’s prohibition of cannabis during the two decades.68 In comparison to the US, lifetime use of cannabis is also considerably lower in the Netherlands, as US figures are more than double those of the Netherlands.69 Furthermore, in spite of relatively relaxed drug laws, Dutch recreational use of drugs such as cannabis, cocaine, amphetamines, and ecstasy is moderate when compared to the rest of Europe, while problematic drug use is actually the lowest among EU countries.70 According to a 2001 report by the European Monitoring Centre for Drugs and Drug Addiction, in the Netherlands there were only 2.6 problem users per 1000 inhabitants aged 15-64.71 Drug-related deaths are relatively low when compared to other European countries as well.72 Recent data also suggest that the average age of heroin users has been increasing yearly, suggesting that fewer members of the young generation are resorting to use of heroin.73 Despite the profound benefits of Dutch drug policy and general approval of most of its harm reduction methods throughout Europe, some conservative prohibitionists, especially American drugcontrol policy makers, have perceived the Netherlands’ experiment on drug-control as a failure. As argued by Collins in 1999, the policy of tolerance has indirectly led to a “coffee shop mentality” that attracts international drug traffickers.74 Likewise, former director of the ONDCP, Barry McCaffrey, saw the Netherlands as a poor model and a good example of why the prohibitionist model of American

drug policy is superior.75 Such criticisms are likely linked to two major factors. First, the Netherlands’ drug policy is seen as a great paradox, with conflicting policies that allow the consumption, albeit limited, of illicit drugs that are expressly banned. Second, the Netherlands has become a major location for drug tourism, drug traffickers, and drug production. With regard to the portrayal of Dutch policy as a paradox, I would argue that the policy should be characterized by sophistication rather than contradiction. Although some individuals have been able to circumvent and take advantage of Dutch policy (e.g. in the case of smart shops), the drug policy of the Netherlands has effectively minimized the gateway effect. Moreover, while the rise of drug tourism (i.e. visiting the country to do illicit drugs) seems unquestionably tied to the Netherlands’ liberal drug policies, I refute the notion that this can be an argument against liberalizing international drug-control norms. The problem, it seems, is more a unilateral issue than anything else, as the Netherlands was the first country to shift away from the repressive drug-control model. If instead the Netherlands had moved toward liberalization in coordination with other countries, it seems highly unlikely that the effects of drug tourism would be significant at all. Given the US’s ability to strongly influence the drug policies of foreign nations,76 a multilateral initiative could likely take shape if the US sought one, especially with the new wave of drug liberalization in the EU.77 With regard to the rise of drug trafficking and drug production in the Netherlands, the extent to which these developments are a result of liberal and lenient drug policy is highly debatable. The high levels of drug trafficking, for example, appear to be a consequence of the Netherlands’ geography and major

role as a transit country.78 Home to the world’s biggest seaport at Rotterdam and acting as the main distributor to Europe, the Netherlands is an ideal location for any drug trafficking enterprise, regardless of its drug policies. As one study interviewing Columbian cocaine smugglers found, the Netherlands is used as a smuggling center because of “the huge volumes transported through both airports and seaports, the infrastructure, its central location in Europe, a good business climate as well as financial and banking being well represented, and finally the attractiveness of Amsterdam as an international meeting point.”79 Likewise, the large production of synthetic drugs is largely attributable to the fact that the country has legitimate major chemical industries (DSM, Akzo) that have inadvertently helped to supply the ingredients for synthetic drug producers.80 Realizing that substance abuse is inevitable in society, the Dutch government has successfully reduced the harm caused by drug abuse while attempting to stop the drug trade. And while the Dutch model has its contradictions, these apparent discrepancies reveal a tremendous amount of sophistication and pragmatism that is lacking in the US model. While both the US AIDS/HIV rate attributable to intravenous drug use and the drug abuse prevalence in the total population have remained above average, the Netherlands has been able to better temper the effects of both of these problems through liberal minded policies. There are, however, certain considerations one must make before applying the Dutch drug-control system to the United States. First, the Netherlands is considerably smaller than the US and thus easier to manage. Second, the country lacked a conservative opposition party at the time when the more liberal drug policies were put into place.81 Third, there exists a phi67

losophy of gedogen (the acceptance of illegal activities for practical considerations) and a culture of tolerance in the country that might not be easily replicated in the US.82 Fourth, “there has never been a strong sense of the direction in which society should move” nor an association of drugs with certain marginalized groups “in contrast to countries like Sweden and the United States, where such nationalist imagery has fostered negative feelings toward so-called deviant groups, including drug users.”83 Fifth, the US government has been unresponsive to academic commissions suggesting harm reduction.84 Despite these disparities between the sizes, cultures, and political ideologies of the US and the Netherlands, the evident societal costs that the liberal Dutch policy has avoided should suggest to US politicians that alternative solutions are necessary to avoid the current problems the country now faces. Whether such a shift in policy thinking will happen in the near future is unlikely, however, and perhaps the country will have to follow a more gradual approach to drug control than did the Dutch. Iv. auStralIa: a More vIaBle SolutIon? The case of Australia illustrates a more moderate, yet still progressive attempt to liberalize drug-control policies. Like the Netherlands, it too has pursued harm reduction measures. Moreover, Australia has coupled its treatment programs with significant efforts at enforcing drug-control policies. The government, however, has taken considerable efforts to make these drug-control policies humane. In doing so, Australia provides a more practical model for US drug policy, as it is unlikely that domestic law enforcement will be as lax as the Netherlands. In 1985, while the US was on the eve 68

of declaring its newest “War on Drugs”, Australian policy was moving in a different direction. Under the auspices of the newly conceived National Campaign against Drug Abuse, harm minimization became the major tenant of Australian drug-control philosophy. As explained in the 1998 Ministerial Council on Drug Strategy,
“[State] governments [in Australia] do not support illegal or risky behaviours such as injecting drug use, but they do acknowledge that these behaviours occur. They have a responsibility to develop and implement public health and law-enforcement measures designed to reduce the harm that such behavoiurs can cause, both to individuals and the community.”85

This general acceptance of harm reduction philosophy legitimized new treatment initiatives other than abstinence. Needle and syringe programs became more prevalent in a number of states,86 methadone was studied more seriously and made more universally available,87 and funding and activity in research and education rose considerably.88 In general, while spending is just as lopsided toward enforcement and interdiction as in the US, Sweden, and the Netherlands, policy has focused on heath above all else, with the approach aimed primarily at “minimizing or limiting the harms and hazards of drug use for both the community and the individual without necessarily eliminating use.”89 Like the case of the Netherlands, harm reduction in Australia has shown positive results. HIV/AIDS infection prevalence among IDUs is only about two percent (compared to about .1 percent of the overall population)90 and only eight percent of all HIV cases are related to intravenous drug use.91 Moreover, rates of needle sharing for a one-month interval fell from 31 percent in 1995 to 18 percent in 1998.92 Meanwhile, there

seems to be no significant evidence of rising drug use as a result of the program.93 In coordination with these policies, the government has adopted a “tough on drugs” stance, a policy that is generally followed by all the states to varying degrees. What is more pronounced in all the states is a clear attempt to not succumb to ‘soft on drugs’ policies. Despite this seemingly repressive rhetoric, drug policies have become increasingly more humane in Australia. While the former “saturation and specific drug blitz operations still occur… there is a move toward policing that might better be described as moderating or regulating the drug marketplace.”94 The clearest example of the new push toward a harm-reduction style of enforcement in the country is in the various cannabis liberalization acts that have taken place in the majority of Australian jurisdictions. Acting somewhat independently of what has generally been a more conservative national government, most of the states and territories have favored expiation of cannabis offenses with payments of fines or infringement notices. Of the eight jurisdictions under the Australian Commonwealth, South Australia, the Australian Capital Territory, and the Northern Territory have all resorted to prohibition with civil penalties (e.g. infringement notice systems), while Victoria and Tasmania have opted for prohibition with cautioning. Only Western Australia, New South Wales, and Queensland maintain that cannabis unquestionably warrants a criminal offense charge, and there have been signs that these states will also soon change cannabis policy toward diversion mechanisms that force cannabis offenders to attend treatment centers.95 Like the Netherlands’ approach, the new revolution of cannabis liberalization policy that began with South Australia in 1987 is based on the assumption that

cannabis-enforcement public health costs often exceeded the health costs of the drug itself. In opposition to the Netherlands, where police officials ignore cannabis, cannabis law liberalization in Australia has actually led to an increasing number of people charged with the use of cannabis.96 It is important to note that this was not the result of an increase in use, rather a decrease in effort by drug users to conceal their behaviors.97 Also, while Australia’s new laws may not necessarily have deterred drug use, they have done as good a job of deterrence as prohibition. Before touting the Australian model further, it is necessary to realize that the “nature of required treatment regimes is yet to be established and the longer-term consequences of these programs, especially the potential for net widening or the introduction of people into the law enforcement system who would not otherwise attract the active interest of police are potential concerns.”98 That being said, the Australian initiative has produced enormous social health benefits without incurring an increase in drug abuse. Police officers in most states have implemented humane and mild enforcement with substantial success but without the severe punishment, losses in productivity, and threats to civil liberties that result from the prohibitionist American model. The policy seems to have had some effect on incarceration levels, as only ten percent of the 2005 prison population was indicted for illicit drug offenses.99 Moreover, only 112 per 100,000 people in the population are in prison (compared to 702 per 100,000 in the US).100 Moreover, a wide range of harm reduction measures such as needle sharing facilities have helped keep the HIV/AIDS prevalence low without leading to an escalation of substance use. Such a balance between enforcement and treatment (with the inclusion of 69

harm reduction treatment) offers a more neutral model for US policy makers to agree upon. The Netherlands has taken great strides in producing humane and sophisticated drug-control policies, but given the animosity that US drug policymakers have toward the policy of the Netherlands, it seems unlikely America is prepared to base its drug system on lax enforcement while condoning the sale of cannabis, drug use, and minor drug trafficking. Australia, however, provides a more balanced proposition, as well as a similar historical and structural background to that of the United States. Like the US— but in contrast to the Netherlands—Australia has a conservative party. Like the US, the Australian government is built upon a variant of the states rights system. And while I have primarily discussed federal policy throughout the paper, I do not by any means underestimate the power of states to counter, as happened in Australia, a generally conservative government and implement more progressive policies unilaterally. Alaska was the first state to do so in the United States, and ten other states have followed suit in moderate cannabis liberalization. But the potentially slow process that would be needed in the US to liberalize drug-control laws through state action, both in reducing the penalties of enforcement and helping the drug user live a healthy productive life, should not be necessary. The US history of failed drug-control policies and the case of Sweden have shown us that repressive policies, whether they focus on supply or demand, generally do not have a major role in curbing drug use—and if they have been at all successful, that success comes at too high a cost. Incarceration levels are extraordinarily high, HIV/AIDS rates attributable to intravenous drug use are high above the rates in most western countries, and 70

the civil liberties of numerous citizens are constantly being threatened. v. concluSIon The Netherlands and Australia, along with a host of other countries, have demonstrated that drug enforcement need not be so severe nor harm reduction so feared. Moreover, it is not only the level of spending on drug policies that matters, but the general approach as well. The US should base its policy on effectiveness rather than vague moralistic ideologies. The current US approach of a “war on drugs” is too narrow-minded, as it fails to account for the serious problems associated with enforcement and drug abuse, and the complexity of the drug problem. The benefits of a more progressive approach have been ignored, while the costs of current failed drug policies are too high. We must find an alternative solution. Endnotes
1. Warren K. Bickel and Richard DeGrandpre. Drug Policy Human Nature: Psychological Perspectives on the Prevention, Management, and Treatment of Illicit Drug Abuse. (New York: Plenum Press, 1996), 259. David Boyum and Peter Reuter. An Analytic Assessment of US Drug Policy. (Washington, D.C.: AEI Press, 2005), 5. Bickel and DeGrandpre, 260. Ibid. Boyum and Reuter, 7. Edward Shepard and Paul R. Blackley. 2004. “US Drug Control Policies: Federal Spending on Law Enforcement Versus Treatment in Public Health Outcomes.” Journal of Drug Issues. 34, 4:771-786. Boyum and Reuter, 7. Ibid. 30. Shepard and Blackely, 771-786. Ibid. Boyum and Reuter, 41. Ibid., 10, 14,; Shepard and Blackely, 771-786. Boyum and Reuter, 10-11. Ibid., 88-89 Scott Burris et al. 2000. “Physician

2.

3. 4. 5. 6.

7. 8. 9. 10. 11. 12. 13. 14. 15.

16.

17. 18. 19. 20. 21. 22. 23.

24. 25.

26.

27.

28.

29.

30.

Prescribing of Sterile Injection Equipment To Prevent HIV Infection: Time for Action” Annals of Internal Medicine, 133: 218-226. Lurie, Peter and Jones, TS and Foley, J. 1998. “A sterile syringe for every drug user injection: how many injections take place annually, and how might pharmacists contribute to syringe distribution?” Journal of Acquired Immune Deficiency Syndromes and Human Retrovirology, 18 Suppl 1:S45-51. Fish, Jefferson M. Drugs and Society: US Public Policy. (Lanham: Rowman & Littlefield Publishers, 2006), 14. Ibid. “Marijuana.” 9 Feb 2006, http:// www.drugwarfacts.org/marijuan.pdf, (28 Apr 2006). 4 May 2006, http://www. mediacampaign.org/ (28 April 2006). Bickel and DeGrandpre, 260. Ibid. After the introduction of mandatory minimum sentencing,, the Federal Bureau of Prisons budget increased by more than 1,350 percent, from $220 million in 1986 to about $3.19 billion in 1997. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (Washington, DC: US Government Printing Office, 1997), p. 20. Bickel and DeGrandpre, 262. “HIV/AIDS & Injection Drug Use” 25 Jan. 2006. http://www. drugwarfacts.org/hivaids.htm (April 28 2006). “Race, HIV/AIDS, and the Drug War” 25 Jan 2006. http://www. drugwarfacts.org/racehiv.htm (April 28 2006). “Summary of Findings from the 1998 National Household Survey on Drug Abuse” http://www. drugabusestatistics.samhsa.gov/ nhsda/98SummHtml/TOC.htm (2 May 2006) “The Price and Purity of Illicit Drugs: 1981 Through the Second Quarter of 2003.” Office of National Drug Control Policy. Washington DC: Executive Office of the President, Nov 2004, Publication Number NCJ 207768, vii. See, for example, “Mandatory Minimums” 9 Jan 2006. http://www. drugwarfacts.org/mandator.htm (2 May 2006). Arthur Gould. Developments in

31.

32. 33. 34.

35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

47.

48. 49. 50. 51.

52. 53. 54. 55.

56. 57.

Swedish Social Policy: Resisting Dionysus. (New York: Palgrave, 2001), 165. Tim Boekhout van Solinge. Dealing with Drugs in Europe: An Investigation of European Drug Control Experiences: France, the Netherlands, and Sweden. (The Hague: BJu Legal Publishers, 2004), 181. Gould, 167. Ted Goldberg. “The Evolution of Swedish Drug Policy,” Journal of Drug Issues, 34 (3): 551-576. Mats Ramstedt. “What drug policies cost. Estimating drug policy expenditures in Sweden, 2002: work in progress,” 101: 330-338. Goldberg, 551-576. Gould, 164. Ibid., 173. Ibid., 172. Ibid., 172; Goldberg, 551-576. Gould, 172; Boekhout van Solinge, 143. Boekhout van Solinge, 184-185. Gould, 172. Unfortunately, there seems to be relatively little available data on HIV rates among IDUs. Goldberg, 551-576. Boekhout van Solinge, 148. Justus Uitermark. 2004. “The Origins and Future of the Dutch Approach Towards Drugs.” Journal of Drug Issues. 34(3): 511-532. It is interesting to note that a similar commission at the time arose in the U.S (Shafer Commission) also advocating harm reduction. As shown above, the commission had minimal impact. Fish, 13. Boekhout van Solinge, 108. Ibid. Henk Rigter. 2005. “What drug policies cost. Drug policy spending in the Netherlands in 2003.” Society for the Study of Addiction. 101: 323329. Boekhout van Solinge, 108. Ibid., 107. Ibid., 132. Dirk J. Korf, and Heleen Riper and Bruce Bullington. 1999. “Windmills in their Minds? Drug Policy and Drug Research in the Netherlands.” Journal of Drug Issues. 29(3): 451-472. Boekhout van Solinge, 139 Swagel, Will. Legalize it — the Dutch example: Marijuana is ‘no problem’ as part of a pioneering social policy. The Anchorage Press. 16-22 July 1998.

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58. Boekhout van Solinge, 140. 59. “The Netherlands” http:// www.unaids.org/en/ Regions%5FCountries/Countries/ (28 April 2006) 60. Fish, 168. 61. Fish, 13. 62. Cherry, Andrew. “The Netherlands.” Eds. Cherry, Andrew and Dillon, Mary E., and Rugh, Douglas. Substance Abuse: A Global View. (Westport: Greenwood Press, 2002),156. 63. Boekhout van Solinge, 140. 64. Justus Uitermark and Peter Cohen. 2005 “A Clash of Policy Approaches: The Rise (And Fall?) of Dutch Harm Reduction Policies Towards Ecstasy Consumption.” International Journal of Drug Policy. 16:65-72. 65. Dirk J. Korf, and Heleen Riper and Bruce Bullington., 451-472. 66. Marcel De Kort and Ton Cramer. 1999. “Pragmatism Versus Ideology: Dutch Drug Policy Continued” Journal of Drug Issues, 29(3), 473492. 67. Manja Abraham. 1999. “Illicit Drug Use, Urbanization, and Lifestyle in the Netherlands.” Journal of Drug Issues 29(3), 565-586. 68. Boekhout van Solinge, 108. 69. Abraham, 565-586. 70. Boekhout van Solinge, 107. 71. Ibid. 72. Ineke Haen Marshall and Henk van de Bunt, “Exporting the Drug war to the Netherlands and Dutch Alternatives.” Eds. Gerber, Jurg and Jensen, Eric L. Drug War, American Style: The Internationalization of Failed Policy and Its Alternatives. (New York: Garland Publishing, 2001), 202. 73. Boekhout van Solinge, 140. 74. Collins, L. 1999. “Holland’s HalfBaked Drug Experiment.” Foreign Affairs 78(3): 82-98. 75. Marshal and van de Bunt, 197. 76. See Eds. Gerber, Jurg and Jensen, Eric L. Drug War, American Style: The Internationalization of Failed Policy and Its Alternatives. (New York: Garland Publishing, 2001). 77. Billington, Bruce and Bollinger, Lorenz, and Shelley, Tara. 1999. “Trends in European Drug Policies: A New Beginning or More of the Same?” Journal of Drug Issues 34(3): 481-490. 78. Rigter, 2005. 79. Boekhout van Solinge, 135. 80. Ibid.

81. 82. 83. 84. 85. 86.

Ibid., 124. Uitermark, 2004. Ibid. See drugwarfacts.com for example Wellbourne-Wood. 1999 Loxley, W. 2000. “Doing the possible: harm reduction, injecting drug use and blood borne viral infections in Australia.” International Journal of Drug Policy 11(6): 407-416. 87. Hamilton, Margaret. “Drug Policy in Australia—Our Own?” Eds. Gerber, Jurg and Jensen, Eric L. Drug War, American Style: The Internationalization of Failed Policy and Its Alternatives. (New York: Garland Publishing, 2001), 111. 88. Loxley, 2000. 89. Ibid. 90. “Australia” http://www.unaids. org/en/Regions%5FCountries/ Countries/ (28 April 2006) 91. Loxley, 2000. 92. Ibid. 93. “Illicit Drug Use“ www.aihw.gov. au/publications/phe/sdua02/sdua02c04.pdf (28 April 2006). 94. Hamilton, 106. 95. Lenton, Simon et al. 1999. “Laws Applying to Minor Cannabis Offences in Australia and Their Evaluation” International Journal of Drug Policy. 10:299-303. 96. Ibid.; Hamilton, 108 97. Lenton, 1999; Hamilton, 108. 98. Hamilton, 110. 99. “Australia Bureau of Statistics: Prisoners in Australia” www.ausstats. abs.gov.au/Ausstats/subscriber.nsf/0 /0D2231601F85888BCA2570D80 01B8DDB/$File/45170_2005.pdf (28 April 2006) 100. Ibid.

aBout the author Benjamin Aronson recently graduated magna cum laude and Phi Beta Kappa from Brown University in May, 2007, receiving an A.B. in International Relations. As a student at Brown, he worked to rebuild the school’s Habitat for Humanity campus chapter, leading efforts that raised over $24,000 to aid New Orleans in its reconstruction efforts after Hurricane Katrina. He is now in Buenos Aires, Argentina working for the Buenos Aires Herald, the city’s English newspaper. He plans to apply to law school in the fall.

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A New Mandate for UN Reform: The Charter
Andrew Baker, Oxford University

executIve SuMMary United Nations Reform is now stalled for a variety of reasons: • The gap between the rhetoric and the reality of reform continues to widen. On the one hand, the aggressive pursuit of reform by John Bolton and others like him has alienated many states and statesmen. On the other hand, pronouncements about massive Security Council reform and the end of sovereignty have created an unrealistic climate of expectation. The UN’s failure to implement relatively simple reforms led all sides in the debate to raise the rhetorical stakes. Positions became entrenched by mid-2006, and the UN budget was voted on over the opposition of the US, Japan, Canada and Australia. By the end of the year, the reform agenda was in shreds. •

Reform may be more feasible if efforts turn toward the functional utilisation of the existing UN Charter and away from any notion of a revolution within the international system or the UN. A key part of the UN Charter, which has never been utilised as envisaged by its founders, is the Military Staff Committee. This essay examines the history of this committee and how it was intended to work in service of global collective security. Reviving this committee may promote reform on several fronts: • A revived committee would be charged with negotiating ‘security agreements’ with any member state willing to enter into such a commit-

ment with the UN (Article 43). This would begin to provide the UN with clear security commitments from members. As the committee finalised security agreements, it would begin to formulate joint plans and conduct joint exercises (Article 46; Article 47, paragraph 3). This would help to redress two clear operational weaknesses of the UN, namely, the scratch character of many missions, and the ‘grab bag’ character of many of the military forces assigned to those missions. Finally, the committee would provide a structure of integrated military command to UN missions, in line with functional principles (Article 47, paragraph 2). The membership of the committee would change to account for member-states participating in Security Council actions. While states retained control of their own contingents, they would do so within a single institution.

Although the G77 is suspicious of reform, a tiny minority of spoiler states can hold the General Assembly hostage, and the Secretariat sometimes seems paralytic, it may be possible to find a new mandate for reform within the UN Charter itself. I. IntroductIon The United Nations has weathered many crises in its history, but nothing threatens the organization like the growing fissure between the rhetoric and reality of reform. United Nations reform necessarily addresses the functional aspects of the organization: developing 73

good practice and oversight; addressing the troubled relationship between the Secretariat, the Security Council, and the General Assembly; and improving the capacity of the organisation, particularly the Security Council, to back pronouncements on global affairs with action. The rhetoric of reform, on the other hand, has been heavy with announcements of the redefinition of sovereignty, a revolution in collective security, or an overhaul of the Security Council. United Nations reform must be about the art of the possible; grandiose pronouncements undermine the effectiveness of the institution and dilute its legitimacy. Reforming the United Nations is crucial to the future of world order, yet UN reform is illusive for precisely the same reasons that it is necessary. The end of the Cold War and the collapse of Soviet power abruptly closed down the competing networks of far-flung client states propped up by superpowers. The UN stepped into the resulting vacuum. Its commitments have expanded exponentially, making the UN one of the principal guarantors of world order and overstretching the organization at a moment when great power relations are deteriorating. The United States and Russia have scrapped important arms control agreements over the past seven years; Russia has explicitly linked the future of breakaway regions like Transdniestria and Abkhazia to European and US actions in Kosovo; Russian competition with the US in Central Asia is manifest in its policy toward Iran; and Chinese competition with the US across the Indian Ocean is manifest in its policy toward the Sudan. Finally, the predominance of the US and the global dominance of a handful of rich ‘northern’ states have substantially narrowed the range of policy options open to weaker, developing states. If the UN is to continue to fulfil its role as a collective security organisation, it must address 74

these tensions. It must be an effective peacekeeper, to address the breakdown of order and security; it must effectively balance the interests of powerful states, to help prevent against a major war; and it must consider the political needs and aspirations of weaker states and provide them with a voice. If the UN fails to reform, the organisation may break under the combined pressure of the collapse of failed states, the divergence of the strongest states, and the frustrated aspirations of those in between. This essay argues that one means of accomplishing this objective is already written into the UN Charter: the Military Staff Committee (MSC). The MSC, as originally devised, was to be a fluid, functional body capable of advising the Security Council, planning and sustaining UN operations worldwide, and changing its membership and composition according to which states were involved in a given Security Council operation. In other words, the MSC was to provide the link between the high politics of the Security Council and events on the ground. It was meant to improve Security Council cooperation, to make UN operations effective and efficient, and to balance the positive security contributions of every state with a share in decision-making. This essay draws on the words of UN founders to illustrate how the MSC might be made to work today. At a moment when the rhetoric of reform has overwhelmed the reality and UN reform has stalled in the General Assembly, it may be time to shift the reform agenda to smaller, functional, and more achievable objectives. II. rhetorIc and reforM Kofi Annan’s reform agenda emerged, phoenix-like, from the flame of scandal. The report of Annan’s High-level Panel, “A More Secure World: Our Shared Re-

sponsibility,” and his own report, “In Larger Freedom,” were published between December 2004 and March 2005 in the midst of widening allegations of sexual abuse, harassment, mismanagement, influence peddling, espionage, and corruption. The High-level Panel report trumpeted the need for a “new comprehensive collective security system;”1 Annan’s report called for “a new security consensus.”2 The Dean of Princeton’s Woodrow Wilson School of Public and International Affairs, after reviewing these reports, proclaimed that they represented a ‘sea change’ in sovereignty and the state system.3 At the very moment these reports were due for debate in September 2005, Paul Volcker published his own damning indictment of UN corruption in the Oil for Food Program.4 Annan blandly asserted that he did not anticipate any resignations over the Volcker Report. At the same time, the US’s colorful recess appointee to the UN, John Bolton, sought a wide range of revisions to the reform program. This initiative, sound in its own right, nevertheless opened the floor to states such as Venezuela, Cuba, and Egypt, who had no interest at all in reform.5 Annan’s reform agenda was shredded, and those scraps that survived, like the new Human Rights Council, were watered down. Then, on April 28 2006, budgetary reforms in line with the Volcker Report were defeated in the Budget Committee of the General Assembly. Bolton promised to block authorisation of the UN budget if more were not done. Little more than a week later, China, Cuba, Pakistan, Russia and Saudi Arabia were all elected to the new Human Rights Council, to the dismay of organizations like Human Rights Watch and the Geneva-based UN Watch; the United States abstained from the new Council.6

The Council more than lived up to pessimistic expectations: its strongest statement on Darfur was ‘deep concern,’ and in nine months it criticised only one state, Israel, nine times. On 26 March 2007, the Council passed a resolution, proposed by Pakistan, against the ‘defamation of religion;’ it called for the ‘responsible’ exercise of free speech, subject to the limits of security, health, order, morals, and respect for religions.7 Unsurprisingly, Human Rights Watch and Freedom House expressed dismay and alarm.8 In less than a year, the Human Rights Council managed to undermine the very notion of ‘human’ rights in favor of illdefined communitarian prerogatives. By mid-2006, the UN was reeling from a string of disasters and the reform agenda had united a number of ‘spoiler’ states. Some of these states sought to defend their own socially regressive or fundamentalist policies (e.g. Pakistan), to advance their own global agendas (e.g. Cuba, Venezuela), or to protect themselves against potential intervention (e.g. Sudan, Iran). Whereas spoiler states were united in their object, reformers had numerous objectives and platforms, which they pursued to the rhetorical extreme. Tony Blair called for a massive overhaul of the Security Council and its expansion to include Japan, India and Germany.9 Mark Malloch Brown, the Deputy Secretary General, lashed out at the United States, telling an audience of Democrats in New York that “the UN’s role is in effect a secret in Middle America,” and calling for “no more ‘take it or leave it,’ red-line demands thrown in without debate and engagement.”10 Kofi Annan, supporting his deputy, argued that disempowered states were wrecking reforms in response to US bullying; echoing Blair, Annan went on to call for total structural reform, saying that “even these current reforms are only a small down-payment on 75

what must follow.”11 As in wonderland, the UN had to run faster in order to stand still. Over the second half of 2006, the rhetoric intensified: the United Nations adopted a siege mentality, and not without reason, as Bolton’s tactics resembled a siege. Having already withheld US support for the admittedly flawed Human Rights Council and threatened budget chaos over the failure of budgetary reforms, Bolton threatened budget cuts, unless there was a public apology for Malloch Brown’s slur against Middle America. “It is illegitimate,” he fumed, “for an international civil servant to criticise what he thinks are the inadequacies of citizens of a member government.”12 From Bolton’s perspective, the battle for reform was across not one, but two fronts: against the intransigence of those states opposed, for one reason or another, to reform, and against the privileged, paternalistic elite of the UN Secretariat. For the former, there is much to suggest that the reform process has unified and radicalised the G77, whose support, particularly in the Administrative and Budget Committee, is important.13 Moreover, in an echo of the Cold War, Russia and China have been happy to utilise this discontent as a means of checking US and British foreign policy; it is noticeable that, despite their own horrendous treatment of religious minorities, those two states were happy to support Pakistan’s resolution in the Human Rights Council. On the issue of elitism, it must be admitted that Malloch Brown, well-connected, Cambridge-educated, a onetime socialist, embodies much that Middle America finds suspicious about the UN.14 The irony is that Malloch Brown had already alienated many in the Secretariat by his aggressive stance on reform.15 He ought to have been Bolton’s natural ally; instead, when Bolton announced he was stepping down, Malloch Brown smiled 76

and remarked, “no comment.”16 Unfortunately, there is little to smile about. The 2006-2007 UN budget, voted on 30 June, was passed over the opposition of the US, Australia, Canada and Japan. The very occurance of such a dilemma—between shutting the UN down on 1 July, or defying the US—testifies to just how badly polarised the reform process has become. The Administrative and Budget Committee followed its action on 30 June by passing a weak resolution on reform, adopted by the General Assembly on 7 July, which established the post of Chief Information Technology Officer while also authorizing a very limited experiment in mandate, oversight and budget reform.17 UN reform has since lost much of its prominence: Bolton, Annan and Malloch Brown have departed, and the diplomacy of the new Secretary General, Ban Ki-moon, is less public than that of his predecessor. Nevertheless, the reform agenda remains important. In February, Ban proposed restructuring the Department of Peacekeeping Operations, transferring some of its responsibilities to a new Department of Field Support. He also proposed replacing the Department of Disarmament Affairs with an Office for Disarmament Affairs. The General Assembly cautiously endorsed these proposals, subject to further study and debate, on 15 March.18 The UN is more deeply committed to global stability than ever before, with 100,000 people (including 75,000 soldiers) engaged in peacekeeping operations, and every prospect that commitments are going to expand. With that level of engagement, the reform agenda will not go away: it will either follow from prudent politics, or from a new catastrophe. The next stage of UN reform must be based on functional principles rather than revolutionary ones. The empty, grandiose

pronouncements for a total overhaul of the UN, for a redefinition of sovereignty, and for a revolution in international affairs of one kind or another have been worse than useless. These competing pronouncements became rhetoric, rhetoric became hard-line positions, and hard-line positions became incomprehensible, until the UN itself nearly foundered. If the world has changed, the fact remains that the UN Charter is still a powerful tool for meeting new challenges. However, the Charter can only be effective if reform debate turns away from the rhetorical cosmos and toward mundane reality. Imbuing the UN with properties it does not and cannot possess creates a climate of false expectation and overblown idealism that is every bit as damaging as clumsy efforts to discredit it. Effective use of the Charter demands acknowledgement of a less-than-revolutionary idea: states are still the centre of the international system, and power still matters. With this in mind, there is an institution, mandated by the Charter, whose time may have come: the Military Staff Committee. III. San francISco, the MIlItary Staff coMMIttee and the cold War The debate between rhetoric and reality is nothing new to the United Nations. The San Francisco Conference was rife with conflict between different approaches to post-war security. The South African statesman, Jan Smuts, concluded that the veto made the Charter “a complete washout;”19 Canadians, led by Mackenzie King, consistently argued that the distinction between great and small powers arbitrarily ignored the crucial role of “middle powers;”20 still others, like Peter Fraser, argued that the UN Charter failed in any meaningful defence of territorial integrity and collective security. What was there

to prevent New Zealand from losing her North Island? “I have often thought,” the diplomat J.V. Wilson wrote dryly, “this could be represented as a statesmanlike compromise.”21 There are essential conflicts within the Charter: between what states can do and what they will do; between the desire to bind the great powers and the necessity of securing their consent in order to do so; between the sovereign equality of all states and the fact that state capabilities differ radically. Yet these conflicts were tied, at San Francisco, to a functional question: what sort of action will the UN be able to take, against whom, and with what materials? This question is as pertinent today as it was then, because it pertains not to the global order we would like to have, but to managing the global order we actually have. At San Francisco, a young British statesman answered that question. Gladwyn Jebb (later Lord Gladwyn) applied himself to what collective security would look like after the war. He proposed the creation of the Military Staff Committee (MSC) so as to provide a functional, continuous link between state militaries and the Security Council. There were a number of important considerations: as military advice had to be based upon realistic assessments of what would be done, military representatives were supposed to remain linked with their respective services; in addition to the core representation of the permanent members of the Security Council, the MSC was also to include representatives of those states contributing forces to a given action; in peacetime, the MSC was meant to function as a conventional chiefs of staff, preparing plans, supervising garrison or occupation forces, and organizing joint training and exercises. The MSC was to supervise the bilateral agreements between the Security Council and member states regarding the 77

precise nature of their military contributions to the UN, as well as to tender advice, prepare plans, and run operations. In this way, the UN was to be provided with a clear notion of global problems and of the military materials at its disposal, as well as the organizational capacity to maximise those materials through considered planning and joint training. Jebb thereby sought,
“An acceptable middle way between impracticable proposals for a completely internationalised police force… and proposals which would, in fact, amount to doing nothing at all beyond organising… what Mr. Lippmann calls ‘nuclear alliances.’”

In principle, the MSC helped balance the weight of the permanent members on the Security Council. Since the MSC would extend a share of decision-making power to those states willing to contribute soldiers or resources to a mission, it admitted equality among states willing to make functional contributions to the success of the UN, without diluting or paralysing the Security Council with too many members. As the MSC was to keep track of national assets earmarked for potential deployment through the UN, as well as to plan joint exercises, it was meant to indicate what the UN could do with the forces and material that states would permit it, which in turn would inform advance planning. The MSC was supposed to play a vital role alongside the Security Council. Why did it fail? In part, 1946 was a bad year: the great powers were heavily engaged and jockeying for competitive positions all over the world. The MSC was not well-regarded by any power, including Britain, whose Chiefs of Staff argued that the development of nuclear alliances was inevitable.23 From the very first meeting of the MSC, on 1 February 1946, it was bogged down, with the Soviets attempting to embarrass 78

Britain over her commitments in Greece and Indonesia and Britain attempting to embarrass the Soviets over her high levels of mobilisation in Eastern Europe.24 By the end of 1946, as the US sought British assistance in planning a ‘Dunkirk-style’ evacuation of Germany in the event of a Soviet attack, the MSC was moribund.25 By mid-1947, the MSC accepted that it was deadlocked.26 The MSC thus became a victim of the Cold War. Strangely, it still exists and meets in the twilight zone of UN bureaucracy. It is impossible to say what it does, exactly, as it lacks so much as a website. Certainly, it does not function as laid down in the Charter. In its place, a range of ad hoc arrangements was made through the UN Secretariat, beginning with truce supervision in 1948. The Secretariat, a civilian bureaucracy, has become a military planning staff when designing UN missions, a diplomatic negotiator when attempting to secure commitments from member states, and a temporary Chiefs of Staff when distributing resources and instructing UN forces on the ground (and national contingents continue to answer to their respective staff systems). As commitments have multiplied over the last sixteen years, it is unsurprising that the Secretariat has been unable to cope adequately with the existing load, let alone anticipate future developments in world politics. It was never meant to do either of those things. IV. a MIlItary Staff coMMIttee for the tWenty-fIrSt century As we search for solutions to the global problems of instability, insecurity, disease, crime, and terrorism, it may be tempting to argue that sovereignty is outmoded. Yet sovereign states remain the gold standard for effective organisation,

and the Charter was framed as a collective security system for states. It will be easier to utilise the Charter to strengthen cooperation among states than it will be to convince states to surrender more power and authority, particularly as the UN does not currently look like the best guardian of said power and authority. In this respect, the MSC has an advantage: it is already in the Charter, states have already agreed to it (in theory), and so there would be a powerful mandate for making that part of the Charter fully operational. Moreover, as the MSC is a Security Council organ, initial negotiations on its revival would bypass those states who have been consistently opposed to reform; such negotiation might also help the P-5 to define and settle some of their security rivalries. The MSC could potentially solve several of the major problems recently identified in UN operations. Lakhdar Brahimi’s report of August 2000 suggested a number of important reforms: that the Secretariat develop reasonable (as opposed to ‘best-case scenario’) guidelines for UN forces; that states help to provide UN forces with up-to-date intelligence; that the Secretariat provide realistic information and refrain from telling the Security Council “what it wants to hear;” that the UN develop new information-gathering and analysis capabilities. These were roles originally mandated to the MSC, yet Brahimi’s structure of implementation builds upon the ad hoc warren constructed in the Secretariat over the last sixty years: the use of Article 29 to create new ad hoc organs of the Security Council in forming peace missions; the development of a ‘short list’ of potential special representatives; and allowing states to retain the initiative in deciding what forces or resources they will earmark for potential UN deployment. The recommendations are all excellent, but for implementation, the Brahimi Report simply (if pragmati-

cally) offered more of the same.27 Far from arid debates in New York, the need for operational reform is very clear. With the exception of disturbing, systematic sexual abuse in the case of the former, UN failings in the Democratic Republic of Congo (DRC) in 2005 bear an uncanny resemblance to those in Rwanda in 1994. At the most basic level, problems include: • Tremendously complex lines of communication and responsibility between national capitals, the Security Council, the Secretariat, and local UN representatives; • The poor training and lack of equipment which plagues some national contingents; • A lack of structured military command; • The shady, informal provision of information to peacekeepers by various intelligence organisations; • The inability or unwillingness of civilian staff to follow essentially good military advice.28 Even small catastrophes, such as the recent deaths of four unarmed peacekeepers in a UN observation post on the Lebanese-Israeli border, call into question the operational effectiveness of the UN. The so-called ceasefire that peacekeepers were observing had descended into war, they had warned that Hezbollah was using their post as a shield, and they should have been withdrawn.29 Reviving the MSC could rectify some of these operational failings. First, the MSC could be charged with negotiating a round of definite agreements between member states and the Security Council (Article 43), with a view to providing an understanding of the nature of the forces at the Council’s disposal. This approach, mandated by the Charter, would avoid the problems 79

associated with multilateral negotiations, in which consensus is the hostage of the lowest common denominator. Definite military commitments, moreover, would put an end to ad hoc UN planning and intervention. Another major advantage of using the MSC in this fashion is that it would move UN military operations, a Security Council responsibility, out of the Secretariat, which is responsible to the General Assembly. This, in turn, would undercut states that systematically oppose global advances on human rights, terrorism, or the responsibility to protect. Second, the MSC could organise joint planning and exercises (Article 46; Article 47, paragraph 3). In the case of planning, the MSC would be free to shape responses to agreed threats like crime or terror. Furthermore, the MSC could be charged with planning for the regulation of armaments, or of disarmament (Article 47, paragraph 1). In the case of exercises, the MSC would provide an important arena for states, particularly those in the developing world (e.g. Bangladesh), to improve their peace-keeping capabilities in conjunction with forces in the developed world (e.g. Canada). This would alleviate the current scratch nature of UN military planning, as well as mitigating the “grab bag” character of many UN forces. The question of adequate force-readiness, mentioned in the Brahimi Report, could then be assessed (and improved) by military, rather than civilian, staff. At the same time, joint exercises would foster ground-level understanding between different national armed forces and would provide an incentive for states to negotiate robust Security Agreements. Third, the MSC could extend participation in Security Council decisionmaking on a functional basis (Article 47, paragraph 2). According to the Charter, states not permanently represented on the Security Council shall be “invited” to 80

sit on the MSC when the “efficient discharge” of its responsibilities so require. This provision was made in 1944 at the behest of Lester Pearson, the Canadian statesman, in conjunction with Gladwyn Jebb, Alexander Cadogan (UK) and Jack Hickerson (US).30 At the time, it was supposed to mean that MSC membership and decision-making would be extended to those states making military contributions to a Chapter VI or Chapter VII action. The composition of the MSC was thus meant to be relatively fluid, changing in response to different threats, missions, and initiatives. This was meant to provide another incentive for the negotiation of robust security agreements between states and the Security Council, as it would provide a way for states to retain control over their own forces within the context of a more unified command structure. The MSC is supposed to provide a decision-making role to states making functional contributions to UN success. Heretofore, the debate about Security Council expansion has been predicated on regional distribution, economic power, and population. Yet the Security Council is about military capability. It may be that Japan, Brazil and Germany deserve permanent membership, but based on participation in UN interventions over the last fifteen years, Canada, Ghana, or Jordan also have strong claims to membership by virtue of a consistent commitment to internationalism. And of all the states enthusiastically endorsed as potential candidates for permanent seats on the Security Council, only India possesses a solid track record of participation in UN missions. Surely such a track record should be as legitimate a measure of the Security Council as the size or geographical distribution of the states sitting on it. The MSC, by extending a decision-making role to those willing to make definite contributions, could increase the legitimacy of Security Coun-

cil decisions while reserving pride of place to those states willing to make a serious commitment to global order. V. concluSIon William Durch et al., in an exhaustive study of the Brahimi Report and the future of UN peacekeeping operations, in 2003, noted that,
“The United Nations has no single, co-located team dedicated to managing information, tracking multiple crisis and conflict trends, recommending preventive action based on those trends or anticipating international UN requirements for either peacekeeping or peacebuilding. Repeated efforts to create such a capacity have been resisted by UN member states.”31

to develop an effective MSC, but such an initiative would be backed by a powerful existing mandate. Defending his proposed reforms to the United Nations, Kofi Annan called for a “San Francisco moment.” After examining the Charter adopted at San Francisco, I could not agree more. endnoteS
1. Report of the High-level Panel on Threats, Challenges and Change: “A More Secure World: Our Shared Responsibility.” UN Document A/59/565, 2.12.04. Page 21. available at: <http://www.un.org/secureworld/ report.pdf>. 2. Kofi Annan, “In Larger Freedom: Towards Development, Security and Human Rights for All,” UN Document A/59.2005, 21.3.05. Paragraph 81. available at: <http:// w w w. u n . o r g / l a r g e r f r e e d o m / contents.htm>. 3. Anne-Marie Slaughter, ‘Security, Solidarity and Sovereignty: The Grand Themes of UN Reform,’ The American Journal of International Law, 99/3 (July 2005), page 623. 4. Independent Inquiry Committee, ‘The Management of the United Nations Oil for Food Program,’ 7.9.05, available at: <http://www.iicoffp.org/documents.htm>. 5. James Traub, The Best Intentions: Kofi Annan and the UN in the Era of American World Power (London: Bloomsbury, 2006), pages 373-376. 6. Steven Edwards, ‘New Rights Body Same as Old,’ The National Post, 10.5.06, page A15. 7. United Nations Human Rights Council, Resolution A/HRC/4/L.12, 26.3.07, page 4, available at: <http:// ap.ohchr.org/documents/gmainec. aspx>. 8. The Economist, vol. 383, ‘Bad Counsel,’ 7.4.07 (no. 8,523), pages 67-8. 9. Financial Times, ‘Blair’s UN Proposals,’ 29.5.06, page 12. 10. Mark Malloch Brown, ‘UN needs US, US needs UN to face challenges,’ 6.6.06 (published 7.6.06), available at: <http://www.un.org/News/Press/ docs/2006/dsgsm287.doc.htm>. 11. Kofi Annan, ‘A Moment of Truth

The Charter provided that capability. The MSC failed in the Cold War, its role was adopted piecemeal by the Department of Peacekeeping Operations, and ‘”n Larger Freedom” classed it as an anachronism (alongside trusteeship) to be erased from the Charter. Yet the Charter, through the MSC, provided the UN with a military capability in excess of anything it has ever employed and in line with the sort of internal and external reforms currently on the table. That capability was wasted in the context of the ideological conflicts of the Cold War. While recent divergence between the great powers is alarming, the conflict between them is nowhere near as rigid as it was two decades ago. The door has not shut on the reform agenda; within the context of a limited, pragmatic programme of reform, it might be possible to revive the MSC. At a moment when UN reform is stalled in the Secretariat and in the General Assembly, it may be time to move the site of reform to the Security Council, and to develop the organs envisaged by the Charter as residing there. Undoubtedly, it will require imagination

81

12.

13.

14. 15. 16. 17.

18.

19. 20.

21.

22.

23.

24.

for the United Nations,’ Financial Times, 12.6.06, page 19. James Bone & Richard Beeston, ‘Apologise or We’ll Cut Your Funding,’ The Times, 9.6.06, page 43. The Economist, vol. 381, ‘Bolton Resigns: His UN-doing,’ 9.12.06 (no. 8,507), page 52. The Administrative and Budget Committee is the fifth committee of the UN General Assembly. Jasper Gerard, ‘To Save the World, First Save the UN,’ The Sunday Times, 11.6.06, page 8. Traub, op. cit. pages 331. Warren Hoge, ‘At the UN, a Mixed View of Bolton’s Tenure,’ The New York Times, 5.12.06, page 17. United Nations General Assembly, Resolution 60/283 (document A/ Res/60/283), 17.8.06, available at: <http://www.un.org/Depts/dhl/ resguide/r60.htm>. United Nations General Assembly, Resolution 61/256 (document A/ Res/61/256), 15.3.07. United Nations General Assembly, Resolution 61/257 (document A/ Res/61/257), 15.3.07. Both available at: <http://www.un.org/Depts/dhl/ resguide/r61.htm>. J.C. Smuts, diary, 28.5.45. South Africa National Archive: Smuts Papers, vol. 316/1, folios 207-208. Mackenzie King, Ottawa, to Lord Cranborne, 2.8.44. National Archives of Canada: King Papers, vol. J4/H-1524/338, folios 232,871232,874. J.V. Wilson, Liverpool, to C.A. Berendsen, 17.8.44. Archives New Zealand: accession EA W2619, vol. 111/1/1, part 1. Gladwyn Jebb, ‘The Military Aspect of Any Post-War Security Organisation,’ PHP (43) 24a (final), 3.2.44. Public Record Office: CAB 81/41, folios 238-40. Gladwyn Jebb, minute (to Richard Law & Alexander Cadogan), 19.2.44. Public Record Office: FO 371/40740, file U1751/748/70. Also see: Julian Lewis, Changing Directions: British Military Planning for Post-war Strategic Defence, 19421947, 2nd ed. (London, 2003), pages 39-40 & 72-73. Ernest Bevin, London, to Clement Attlee, 10.46. Public Record Office: FO 800/508. Bevin told the Commonwealth that ‘he was not

25. 26.

27.

28.

29.

30.

31.

prepared to be put into the dock’ over British troop commitments. Commonwealth Delegate Meeting, 25.11.46. Public Record Office: DO 35/1892, file W.R. 208/5/29. General Ismay, London, to Clement Attlee, 5.7.46. Public Record Office: PREM 8/171. Adam Roberts, ‘The United Nations: Variants of Collective Security,’ in Ngaire Woods, ed., Explaining International Relations Since 1945 (Oxford, 1996), pages 318-9. Report of the Panel on United Nations Peace Operations, United Nations Document A55/305S/2000/809, 21.8.00, available at: <http://www.un.org/peace/reports/ peace_operations/>, pages viii-xv. For the DRC, see: Traub, op. cit., pages 339-358. For Rwanda, see: Lt. Gen. Roméo Dallaire, Shake Hands with the Devil: The Failure of Humanity in Rwanda (London, 2004). Maj. Gen. Lewis MacKenzie, ‘Kofi Annan’s Hasty Rush to Judgment,’ The Globe and Mail, 27.7.06, page A15. Lester Pearson, Washington, to Mackenzie King, 1.9.44; Lester Pearson, Washington, to Norman Robertson, 2.9.44; and Lester Pearson, Washington, to Mackenzie King, 6.9.44. National Archives of Canada: accession RG25, vol. 5708/7-V(s), part 3. William J. Durch et al., ‘The Brahimi Report and the Future of UN Peace Operations,’ The Henry L. Stimson Centre (2003), page xix.

About the Author Andrew Baker is an American who is finishing his doctorate in international relations at the University of Oxford. He studies post-war order, particularly the United Nations. He lectures at the University of Buckingham.

82

Bringing Dawn to Darfur
Zachary Hindin, George Washington University R. Benjamin Nelson, Georgetown University

executIve SuMMary This paper addresses the systemic problems that have led to instability in Sudan for decades, most recently manifested in the ongoing genocide in Darfur, and works to clarify the misconceptions about Sudan that have been propagated by the mainstream international media. In addition, both domestic and international policy recommendations are provided to address the stimuli of this conflict. This paper includes: • An historical and demographic overview of the socio-political climate in Sudan. • An analysis of the colonial legacy in Sudan and its polarizing effects today. • An examination of how Sudanese ethnic, racial, religious, and social identity contribute to violence in the country. • A diagnosis of the problems with the current African Union peacekeeping operation in Sudan with recommendations for an effective peacekeeping force in the future, including: • An increase in the number of troops, • More sophisticated equipment with regards to communications-, intelligence-, and aerial-technology • A more comprehensive mandate for troops, and • Stringent multilateral, targeted sanctions on Sudan, accompanied by a joint divestment campaign aimed at companies who do business with Sudan’s National Congress party

A discussion of possible punitive measures to be taken against the government of Sudan with a focus on international sanctions. • A review of the peace process that ended Sudan’s most recent civil war. • Policy recommendations using the aforementioned peace process as a model for mediation in Darfur that would stipulate: • A limit on executive power in Sudan’s governmental structure, • The means for a robust civil society to emerge, • The just distribution of resources, • An African Union-monitored campaign led by the Sudanese government to end the Janjaweed’s paramilitary operations. I. IntroductIon For nearly four years, the government of Sudan (Khartoum) has sponsored a genocide in Darfur, Sudan. The largely incalculable death toll has been estimated to be as high as 400,000 with 2.89 million displaced.1 Even the United Nations (UN), notorious for conservative casualty-estimates in conflicts with political repercussions, reports that Darfur has been “the scene of hundreds of thousands of civilian deaths, mass rape, massive forced displacement and other abuses during the past three years.”2 At the state level, responsibility for intervention was passed from global superpowers to the United Nations. Regrettably, political roadblocks within the UN Security Council have stymied any concrete, effective security measures in Darfur. 83

The ill-equipped, under-funded African Union (AU) has shouldered the task of halting the killings. As millions of innocent people continue to suffer the effects of the 21st century’s first genocide, it is imperative that the conflict and all its elements be assessed. This assessment is necessary not only for the scholarly endeavor of developing a conceptual model of contemporary intrastate conflict and serving academia concerned with future conflict-prevention, -management, and -resolution strategies—but more pressingly to prescribe actions that will build a lasting peace in Darfur. II. Background: country & conflIct Sudan became an independent state in 1956, is the largest country in Africa, and borders nine other countries. It is located in northeastern Africa, just south of Egypt. Since gaining its independence, Sudan has only seen eleven years of peace. The collisions of culture, race and religion have been the traditional scapegoats for Sudan’s civil unrest. About 70 percent of the Sudanese people are Muslim, while approximately 30 percent are Christians and animists. Fifty-two percent of Sudanese are ‘black’ and 39 percent are ‘Arab.’ Decades of interethnic amalgamation, however, have rendered such demographics less than precise. In Sudan, Arabic is the official language.3 Composed of approximately six million people and 200,000 square miles of sandy plains, Darfur is located in western Sudan. Its size is comparable to that of Texas or France. Systemic structural inequality, coupled with political opportunism and environmental disaster, has produced the conflict in Darfur today. In its time as a British colony, Sudan’s Nile Valley (located in eastern Sudan) enjoyed the lion’s share of foreign investment and political favor, an inequity that marginalized the 84

western Darfur region. In 2000, a devastating drought besieged the Nile River Basin, causing those affected to move into Darfur, the area of Sudan with the most water. Upset that Khartoum endorsed such inequitable competition over the already sparse resource, Darfuris petitioned for recompense. For three years, Darfuris waited for government action, but to no avail. The first incident of physical violence occurred in February 2003 when a paramilitary group calling itself the Darfur Liberation Front attacked a government headquarters in the Jebel Marra district of Darfur. Soon thereafter, the Darfur Liberation Front bisected, forming what are now the two main active opposition groups: the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM).4 The two groups attacked a number of government outposts, police stations, and military convoys. With its troops stretched thinly along the southern and eastern borders, Khartoum could not afford to relocate its forces to Darfur. In order to quell the SLA and JEM, Khartoum armed unemployed, impoverished army irregulars, bandits and even released-prisoners to form the Janjaweed.5 In 2004, the Janjaweed militias attacked villagers in western Darfur, leaving hundreds of thousands of people dead and displacing millions.6 On May 5, 2006, a faction of the SLA, led by Minni Arkou Minawi, signed an accord with Khartoum. The agreement was dismissed by the rest of the SLA and the whole of the JEM.7 Khartoum preyed upon the fractioned resistance movements in a campaign of international public diplomacy aimed at denouncing the SLA and JEM as terrorist organizations. It should be noted that this tactic (appeasing a small camp within government opposition groups in order to condemn the bulk of its political adversaries

as wanton violence-mongers) was previously employed by the government in its handling of the Sudan People’s Liberation Army, their main opposition in the Second Sudanese Civil War. Khartoum’s affinity for subversive disinformation is characteristic of manipulation by the elite in the world’s most fragile states. The Sudan Liberation Army One of two core rebel groups fighting against Khartoum and their proxy— the Janjaweed militia—is the SLA. The SLA has recently splintered into factions, largely due to the agreement that Khartoum signed with Minawi, the leader of its largest faction and now considered an ally of Khartoum. This has alienated the people of Darfur and even his own tribe, the Zaghawa. Moreover, the largest tribe in Sudan, the Fur, has rejected the agreement. These dissidents comprise the remainder of the SLA, whose aim is to overthrow the national government in Khartoum and “create a united, democratic Sudan.”8 The two most prominent leaders within the movement are Ahmed Abdulshafi Bassey and the immensely popular Abdul Wahid Mohamed Nur. The SLA boasts membership to the umbrella opposition organization in Sudan, the National Democratic Alliance. According to German Sudan analyst, Uwe Friescecke, the government of Uganda is a major arms supplier for the SLA. Uganda’s public support of the late Sudanese secessionist, John Garang, and Khartoum’s support of the Lord’s Resistance Army, a paramilitary group that terrorizes northern Uganda, gives plausible credence to Friesceke’s claim.9 In addition, credible third-party observers, including the International Crisis Group and the United Nations, have documented arms deliveries from Chad, Eritrea, and Libya to the SLA.10

The Justice and Equality Movement Led by Khalil Ibrahim, the JEM draws upon “The Black Book: Imbalance of Power and Wealth in the Sudan” as a charter for its fundamental principles. (Commonly abbreviated as “The Black Book,” this should not be confused with “The Black Book of Communism,” a book of controversial acclaim published in France in 1997.) “The Black Book,” published in 2000, discusses the various forms of structural violence that victimize the people of Darfur, characterized mostly by inequity in resource distribution and political representation. The JEM champions Islamist ideology and finds favor with the fundamentalist wing of opposition parties in Sudan. Khartoum has linked the JEM to formerly jailed Sudanese religious and political leader, Dr. Hassan al-Turabi. Turabi has denied the alleged ties to the JEM. The JEM is also an acknowledged affiliate of the Eastern Front, a rebel group concentrated along the Eritrean border (eastern Sudan), substantiating Khartoum’s accusations that Eritrea has “instigated, financed…supplied arms to, and set up training camps” for the JEM.11 In addition, captured JEM operatives have been found with Chadian identification.12 Chad, another accused supporter of opposition groups in Darfur, denies its ties to the group and claims that Khartoum is attempting to “export genocide” from Darfur.13 The Government of Sudan Sudan’s president, Omar Hassan alBashir, has ruled over an authoritarian republic since he led the military coup that placed him in power in June 1989. Immediately assuming the positions of Chief of State, Prime Minister, Chief of the Armed Forces and Minister of Defense, al-Bashir suspended the Sudanese Parliament indefinitely, expelled the political party system, and stifled the na85

tional press. He was appointed president in what was considered a fixed election in 1993. His regime is characterized by the markings of fanatical authoritarianism. In 1991 al-Bashir created a domestic security apparatus, the “Public Order Police,” to enforce the laws (predominantly drawn from shari’a law) that his newly appointed judges (exclusively Muslim) handed down. While domestic political opposition to al-Bashir’s regime is given quasi-freedom to associate, their capability to effect change in Sudan’s politics is insubstantial. Furthermore, al-Bashir has been accused of maintaining close ties with Islamic extremists, most notably Osama Bin Laden. The President’s cabinet consists of senior members of the National Congress, Sudan’s official political party (previously called the National Islamic Front). Among these individuals is Ahmed Haroun, the recent recipient of an indictment by the International Criminal Court, which charges him with 51 counts of war crimes and crimes against humanity.14 Al-Bashir, the poster-child and the single most powerful component of the regime in Khartoum, rules Sudan in conjunction with his cabinet and a shadowy inner-ring of advisors made up of the likes of Mr. Haroun. With regards to the conflict in Darfur, President al-Bashir has downplayed the violence, even directly accusing the United States of “exaggerating” the situation in Darfur, and claiming that Darfur is “quite calm.”15 This does not bode well for the legitimacy of Sudanese channels of conflict management or post-conflict recompense. Al-Bashir has remained steadfast in his opposition to the proposed UN peacekeeping force that would secure Darfur. Al-Bashir defends his position by likening a breach of Sudanese national sovereignty by an international peacekeeping force to the situation ensuing 86

Operation Iraqi Freedom.16 Regardless of the different political quandaries the authoritarian faces, President al-Bashir seems to craft policy with only one priority: the preservation and expansion of his own power. The Janjaweed The Janjaweed are often referred to as a ‘militia’, though they are far from an organized and trained unit of civilian military servicemen. While the Janjaweed most recently fell under the media’s spotlight for its role in the ethnic cleansing of Darfur, its origins date back two decades. Beginning in 1987, violent battles broke out in Darfur between the herders (predominantly Arab) and the farmers (predominantly non-Arab) over land claims. The Janjaweed draws its membership from the ‘herder-class’; however, it should be understood that the Janjaweed do not rally around any common ideology. What little public diplomacy they have engaged in is inundated by racist rhetoric that finds no root in any sound political conviction. While Janjaweed fighters supposedly share a “pure Arab origin,” they are more united by the charter, given to them by Khartoum, to rape, pillage, and plunder Darfur with absolute impunity. Under international pressure, Khartoum has renounced any ties to the Janjaweed, although innumerable pieces of evidence speak to the contrary. By early 2006, many of the Janjaweed militiamen were assimilated into the Sudanese Armed Forces, virtually guaranteeing their reprieve from indictment in any court of law. III. the SudaneSe IdentIty: a frayed PatchWork Just as an audience must be acquainted not only with the actors on a stage, but

the setting in which their roles play out, those seeking a thorough understanding of any intra-state conflict must assess the identities of the actors involved within the context of an overarching national identity. With reference to the Sudanese conflict, this task is not just a perfunctory chore of conflict analysis. Rather, understanding the identities of the different groups and subgroups involved in any one of a number of antagonisms is, in itself, a most onerous one. The concept of identity in Sudan is convoluted beyond belief for those of us who can describe ourselves in terms of our national borders, our religious beliefs, and our race. History has blurred these factors for the Sudanese. Thus, a comprehensive understanding of the nature of the political conflict between the rebel movement (comprised of the SLA, JEM, and a number of splinter groups) and Khartoum (vis-à-vis the Janjaweed) necessitates an exploration of the identity conflict that is part and parcel of Sudan’s social landscape. As Amir Idris argues in Conflict and Politics of Identity in Sudan: “…the history of nationalism in the Sudan has been the history of competing political claims over the identity of the postcolonial state.”17 In colonial Sudan, concepts of nationalism were born out of social movements that derived their legitimacy from regional distribution of different social strata. These notions of Sudanese nationalism were more legitimate since they were, for the most part, representative of the groups that bolstered them. However, these movements (the products of a colonial state in which one section of society systemically enslaved the other) consistently excluded certain groups of people from the arena of identity formation. As a result, when Sudan was declared independent, those who were excluded from the token rite of determining a national identity inadvertently assimilated their

colonial identities, effectively substantiating the racial and ethnic barriers that marginalized them for more than a century. The reverberations of this colonial legacy were manifested throughout the decades that followed the inaugural raising of the Sudanese flag. The institutionalized animosity between the peoples of Sudaokn’s North and South, unfoundedly based in historical inter-ethnic grievance, is a pristine example of this tragic inheritance. The ethnic identity of the Sudan’s population, and specifically of the Darfur region, is an extraordinarily complex mosaic. As in most African countries, one’s particular tribe constituted the most basic macro-societal unit in pre-colonial Sudan. The more prominent tribes in Sudan include the Dinka, Fur, Masalit, and Zaghawa.18 Today, these same people are often portrayed in the media as ‘Blacks’ or ‘Arabs.’ The truth is that the population of Darfur, and Sudan in general, is an interwoven mesh of people who are simultaneously Black and Arab. This confusion is exacerbated by the fact that some ‘Blacks’ (those descended from the ancient region of Nubia) have lost their language and adopted Arabic, while others with whom they share a common lineage practice forms of established hybrid-languages (referred to as ‘entrenched diglossia’), while still others have retained their original tongue.19 Contrary to what most mainstream media outlets report, race is politically obsolete in Sudan. In terms of pigmentation, all Sudanese are black. However, racist terminology has surfaced through intercultural animosities, distinguishing the “zurug” (a racial pejorative for Arabic) from the “Arab.” Differences are crudely distinguished by facial features including the shape of one’s nose and/or the thickness of their lips.20 In his account of the ethnic make-up of Darfur, Gerard Prunier, renowned ethnographer and Af87

rica analyst, notes, “…this perception is influenced by what the observer knows of the ethnic background of the person s/ he is confronting. Thus a very Negroid Rizzeyqat will remain an “Arab” while a pale and thin-featured Zaghawa will be an “African.”21 For the sake of political correctness, any discussion of race in Sudan is presently carried out in the context of a country that is now homogenously pigmented as a result of intermarriage, concubinage, and other gradual processes of racial integration. In terms of religion, more than half of Sudan’s total population is Muslim, most living in the north where Muslims constitute at least 75 percent of the population. The relatively few Christians tend to live in the south alongside a sizeable minority of animists.22 This distribution is often portrayed as having a demarcating line of division between an antagonistic ‘Muslim North’ and a victimized ‘Christian South.’ The most fleeting glance at the demographic makeup of Darfur reveals that it is both Muslim and northern. “Yet,” as Idris points out, “like the people of the Southern Sudan, [Darfuris] have been oppressed, deprived, and are the least developed economically due to the century-old colonial subjugation and relentless exploitation.”23 The current violence in Darfur proves that the adoption of a majoritarian Islam could not counter the impact of a historical colonial legacy that superficially emphasized the importance of “an Arab origin.” Therefore, it is evident in the case of Darfur that geographical, religious, and ethnic differences work to exacerbate problems stemming from a colonial legacy that utilized irrational hatreds to divide and conquer a people. While Khartoum’s violent incursions into Darfur (via the Janjaweed) have been portrayed as a result of the government’s Islamist-leaning disposition, one could 88

look to the case of Dr. Hassan al-Turabi for contrary evidence. Despite the fact that al-Turabi was a pivotal figure in the movement to force shari’a (Islamic law) upon Sudan’s non-Muslims, Khartoum has labeled him an enemy of the state. Indeed Khartoum’s campaign prioritizes the extraction and inequitable distribution of resources in lieu of some theocratic crusade (as implied by the depiction of the conflict as an eruption between Christian Blacks and Muslim Arabs). Utilizing ethnic identity markers in language to paint ethnicity, itself, as the cause of conflict is tantamount to a dangerously flawed syllogism. Mainstream news agencies’ overuse of such language represents their failure to accurately portray the situation in Darfur and, furthermore, impedes the reparative process of establishing a self-sustained climate of social justice in Sudan. Iv. darfur In context Within Sudan, wealth is disproportionately concentrated in Khartoum. The razed shanty villages that once comprised Darfur and the general paucity of South Sudan sharply contrast with the grandeur of Khartoum. Speculators see Khartoum emerging as “a new Dubai.”24 With one of the fastest growing economies in Africa, Khartoum is in the process of building, among myriad development projects, a multi-billion-dollar complex of “gleaming offices, duplexes and golf courses that will turn Khartoum, it is hoped, into the commercial and financial hub of Islamist East Africa.”25 With billions of dollars in oil-revenues, President al-Bashir’s ostentatious hyper-development of Khartoum is emblematic of the structural inequity that keeps Darfuris shackled to poverty. In the wake of its destruction, Darfur will be hard-pressed to resuscitate its modest economy, primarily based on subsistence farming. Khartoum is a drain to which

the entirety of Sudan’s resources are being siphoned, quite literally leaving peripheral Darfur out to dry. Through an African lens of analysis, Darfur is merely a pawn in regional power politics. The grim conditions in Darfur provide Sudan’s neighbors with an excellent opportunity to proliferate anti-Khartoum propaganda, all too often diverting attention away from their own corruption. Chadian President Idriss Déby embodies this regrettable trend: It is common knowledge that Déby presides over one of the single most corrupt regimes in the world today. Déby has shown no hesitation in lining his pockets with World Bank loans intended for Chad’s poor. Unfortunately, with international attention skewed toward Darfur, Déby remains largely unthreatened. The government elite in a relatively less unstable Chad continue to prey upon national resources while thousands of Chadians remain crippled by abject destitution. Moreover, Darfur is a prime opportunity for Sudan’s less amicable neighbors to settle old scores with Khartoum without having to pledge troops. By continuing to supply cash, arms, and training to rebel movements in Darfur, Sudan’s regional adversaries (most notably Libya, Chad, the Central African Republic, Uganda, and Eritrea) can attack Khartoum without the inconveniences of waging a conventional offensive. Having identified both the underlying issues spurring genocide in Sudan and the major political players associated with it, further analysis will take a more critical approach to assessing the situation in Darfur through three intellectual frameworks. First, policy recommendations will be drawn from an evaluative review of the peacekeeping mission in Sudan and the obstacles it faces. Subsequently, different punitive measures that could be taken against the Sudanese government will be considered. Finally, an in-depth

look at the diplomatic process that ended a half-century of civil war in Sudan will be interpreted to extrapolate the designs for what a sustainable and just Darfuri peace process ought to look like. Up to now, this article has attempted to map the conflict in Darfur diagnostically. Hereafter, a more prescriptive lens of analysis will address the issues outlined thus far, in addition to several new ones raised in the following pages. v. an aMIS aMISS: the PolItIcS of PeacekeePIng In Sudan On August 31, 2006, the UN Security Council approved Resolution 1706, which called for the linking of the current UN mission in southern Sudan (UNMIS) with a major operational front in Darfur. Specifically, the resolution authorized the deployment of 22,500 UN troops and civilian police to Darfur. The force was to be endowed with a robust mandate for civilian protection and humanitarian relief. Tragically, on account of the United Nation’s vulnerability to diplomatic chicanery, UNSCR 1706 was never realized beyond the chambers of its Security Council. Seven and a half months later, on April 15th, 2007, the Sudanese government accepted a UN deployment of 3,000 peacekeepers with a squadron of attack helicopters, ending months of resistance to the United Nation’s contribution to the largely impotent African Union’s peacekeeping mission in Sudan (AMIS).26 Though Khartoum’s most recent concession does represent an important transformation in its relationship with the United Nations, the international community would be wrong to celebrate it as a watershed victory. While Khartoum baits its courting diplomats with incremental (if not trivial) compromises, the situation in Darfur still reflects the direst case of human plight in the twenty-first century. 89

Khartoum has decried proposed schemes of international intervention in Darfur, evoking its inviolable sovereignty. President Omar al-Bashir’s administration is at best willfully negligent, and at worst overtly predatory. Insofar as one can respect the sanctity of Khartoum’s perverse rule, it is telling to look at ulterior motives that Khartoum would have for rejecting the magnitude of intervention called for by UNSCR 1706. There is no debate about the operational tenability of AMIS; due to its insufficient size, lack of modern technology, and feeble mandate, it has been written off as clearly ineffective.27 Thus far, the West has refrained from staging any kind of military intervention in Sudan, the president of which has declared his country “a graveyard for any foreign troops.”28 While implementing multilateral, targeted economic sanctions may effectively strong-arm Khartoum into accepting a substantial UN force, more direct and immediate measures should be taken to buttress AMIS and slow the rate of civilian death. Before any diplomatically coercive measures are discussed, a look at the structural problems AMIS has been facing on the ground in Darfur is in order. Insufficient Size Strategists use two determinant ratios to project the necessary size of a peacekeeping force. A peacekeeping force can be based on the proportion either of “peacekeeping troops to population” or of “peacekeeping troops to hostile forces.” Calculated either way, the AMIS force is less than a third of what is required.29 By that logic, AMIS should be comprised of at least 20,000 troops, albeit even this estimate would err on the conservative side. Currently, there are 6,171 AMIS troops serving with 1,560 civilian police who now operate alongside the 3,000-strong supplemental UN force.30 With the ex90

pansive conflict-zones in Darfur stretching 256,000 square-kilometers, the current troop count leaves one peacekeeper for every 26 square kilometers. Thinly stretched as it is, AMIS is forced to concentrate in certain locations, ignoring civilian populations in others.31 Inadequate Equipment From the beginning, AMIS has been hampered by sub-standard equipment. Until 2005, their best maps came from 1942 Soviet intelligence. The maps were in Russian and at a scale of 1:200,000.32 Lacking an infrastructure-oriented global positioning system, the troops are forced to rely on local guides to lead them to the villages they are supposed to be protecting from the Janjaweed. The group of guides is comprised of indigenous peoples who are extremely familiar with Sudan’s largely unnavigable terrain. The mission also lacks communications equipment and an intelligence-gathering apparatus. For the most part, commanders have to archaically relay information to units via radio or written messages.33 A 2005 Brookings Institution report on AMIS bluntly states: “Lack of planning and establishing an intelligence infrastructure within AMIS meant that there was no routine way to gather and analyze intelligence on either the government forces and their militias or the various rebel groups...AMIS force headquarters is blind when it comes to intelligence…”34

In order to improve AMIS dispatch capabilities, troops need to be linked through a satellite-based communications network and supplied with more and faster transport vehicles. A report released by the Center for Technology and National Security Policy describes this network as necessary to forming a ‘net-capable force’:
“The principal building-blocks of net-capable

combat forces are: high-quality combat and special operations forces; deployable sensors and other intelligence sensors; high-speed data links to fuse and disseminate intelligence products; command and control nodes; ground mobility; logistics support for small/light forces; rotary- and fixed-wing air[craft] for mobility and strike; and precision weapons.”35

Essentially, what the above describes is tantamount to a highly advanced combat unit with acute knowledge of the battlefield in the style of the American or British Special Forces. Lack of Aerial Support Moreover, in order to hinder Khartoum’s firebombing of villages, the no-fly zone called for by UNSCR 1591 urgently needs to be implemented. The Janjaweed’s capabilities on the ground will be severely checked without air cover. The UN Security Council, collectively, needs to begin planning the logistics of implementing a no-fly zone or, at the very least, introducing radar-jamming balloons that would make Darfur’s skies un-flyable. France currently maintains limited air capacity in Chad (including four Mirage F1 fighter planes, two Transall C160 logistics and in-flight refueling planes, and a non-permanent KC 135 supply plane) and a military base in Djibouti.36 In addition, Djbouti hosts the only American military base on the African continent.37 Given their respective postures, France and the United States are primed to provide the foundation for the kind of undertaking called for by UNSCR 1591.38 The closest that the United Nations has come to initiating this kind of mission is including attack helicopters in its support package to the African Union. These aircraft, however, will be subject to the same toothless mandate that UN and AU troops serve under. Impotent Mandate The African Union’s mandate in Dar-

fur allows troops to use force to protect civilians but not to conduct an offensive. The presence of AMIS forces has successfully deterred attacks from the Janjaweed, who have proven unwilling to confront any armed personnel, and instead focus solely on unarmed civilians.39 Pursuing an exclusively defensive strategy however, is not in AMIS’s best interest. As mentioned earlier, with such a small number of troops only a few villages can be protected at any given time. In order to make the best use of its forces, troops need to be able to move from village to village, actively engaging the haphazard, inexperienced Janjaweed militia. vI. BuIldIng leverage MeaSureS
WIth

PunItIve

By refusing to cooperate with the international community, Sudan has repeatedly bought itself time to continue its assault on Darfuris. In January 2006 and then again in September, a panel of experts commissioned by the UN Security Council identified sixty-eight individuals deserving to be sanctioned as they were deemed a detriment to regional stability.40 Because of diplomatic impasses within the United Nations, the petition fell on deaf ears. UNSCR 1706 was the first instance in which the international community had established and passed a cogent strategy for dealing with Khartoum. And yet, upon its predictable rejection by Khartoum, it too has floundered. Such timid behavior on behalf of the United Nations is all too reminiscent of the League of Nations’ failure to deliver on its promise of collective security. However, by enacting specific punitive measures against Sudan, the international community can build the leverage necessary to pressure Khartoum into accepting an international presence. Such measures should include: 91

• •

• • •

Spotlighting individuals in the Sudanese leadership who are guilty of war-crimes/crimes against humanity (the reports released by the International Crisis Group serve as exemplary models of this). Targeted sanctions that would freeze the assets of high-ranking officials within the Sudanese government. Divestment campaigns targeting companies and banking institutions that do business with Sudan’s nationalized companies. International embargoes on Sudanese oil. Capital market sanctions (i.e. de-listing companies that do business with Sudan from the Stock Exchange). International Criminal Court indictments (while the arrest warrants issued in May 2007 against former state interior minister Ahmed Haroun and militia commander Ali Muhammad Ali Abd-Al-Rahman are not likely to materialize anytime soon, their diplomatic signals are undeniable).41

These methods have a history of strong influence on dealings with Khartoum. For example, the reasonably successful divestment campaign allowed China to buy up divested stock. However, this exposed the degree to which Chinese profiteers are effectively bankrolling genocide, pressuring China to persuade Khartoum into a greater degree of compliance with the international community.42 While a full discussion of all of the listed tactics is beyond the scope of this work, a consideration of sanctions is important, as they have been shown to be particularly useful in dealing with Sudan. When the United States enacted unilateral sanctions in 1997 against Sudan, the Sudanese government expelled Osama Bin Laden and his fellow al-Qaeda 92

operatives. Four years later, when the United States made several not-so-subtle diplomatic overtures to Khartoum, hinting at sanctions and even a possible attack, Sudan cozied up to American rhetoric, bolstering its domestic anti-terrorism campaign in an unprecedented partnership with the West.43 In these instances, the Sudanese government did not face the empty threats of the international community, but rather a choice in which defection would culminate in material penalties from an authoritative superpower. With this history in mind, the international community should pursue more aggressive action against Sudan, leveling targeted multilateral sanctions and freezing the international bank accounts of individuals like those identified in the United Nations’ 2006 report. These punitive measures ought to be targeted at companies who do business with Sudan’s National Congress Party (NCP). There are three different groups of companies involved with the National Congress Party. The first is comprised of companies owned by party loyalists. These companies, sharing interlocking boards of directors, are financial puppets used by NCP officials to cache their financial holdings. The second tier of companies includes those run by Sudan’s National Security Agency. The third group involves companies that are tied to Islamic charities as a façade to hide organizations actually answering to the political agenda of the Sudanese government.44 The appropriate international response to these entities is clear: they need to be indicted, subpoenaed for comprehensive audits conducted by an international forensic accounting firm, and consequently prosecuted to the fullest extent of the law. Moreover, there are a number of Western companies that support Sudan’s petroleum sector (the economic lifeblood of the country’s governing elite).

Among the more prominent are Sweden’s Lundin Oil, France’s Total, and Austria’s OMV Aktiengesellschaft.45 The European Union should deter these companies from continuing operations in Sudan by encouraging member governments to enact strict prohibitive laws. As Sudanese oil only accounts for about half of one percent of the global supply, the international oil trade would easily absorb the shock to Sudan’s oil market. Unfortunately, in order to adequately impact Sudan’s oil revenues, countries outside of a compliant Europe would have to agree to this course of action. China is, by far, the largest importer of Sudanese oil with a 40 percent stake in the Greater Nile Petroleum Company (GNPOC), the country’s main consortium.46 However, even short of a full-blown boycott, minor cuts in consumption on behalf of major stakeholder countries (e.g. China, India & Malaysia) would send a clear message to Khartoum that it has a choice to either acquiesce to the international community’s demands or face exclusion from its markets, something this predominantly landlocked country has reason to fear. Measures like these would reflect a commanding and self-confident international body of consensus that genocide will not be tolerated. By working to strengthen AMIS and by implementing targeted sanctions, the international community could look forward to improved conditions in Darfur. Moreover, international pressure would make Khartoum more malleable, effectively coercing it to accept the installation of a UN force. In discussing the prospects of a Sudanese peace, it is important to look not only at what can be done in terms of third-party intervention, but also the capacity to which opposing groups within Sudan can broker a lasting peace. Given Sudan’s relatively short lifespan as

an independent country, its history leaves prospective peacemakers shorthanded for case-studies of what does and does not work in a Sudanese peace process. The mediation that ended Sudan’s civil war is the only historical model by which one can draw conclusions about what a peace process that would end the violence in Darfur should look like. vII. froM aBoud to aBuja: the Peace ProceSS that ended Sudan’S cIvIl War In his address before the 18th General Assembly of the United Nations, former President John F. Kennedy remarked that, “Peace does not rest in the charters and covenants alone. It lies in the hearts and minds of the people.”47 The fortyyear peace process that put an end to two periods of Sudanese civil war corroborates Kennedy’s portentous words. From start to finish, the peace process included a host of individual protocols, agreements, and ‘memoranda of understanding,’ most of which one signatory or the other later backed out of. In the last twenty years alone, eighteen separate accords have been brokered between Khartoum and the Sudan People’s Liberation Army/Movement (SPLA/M).48 From the ideological factors obstructing peace to the divisive rhetoric of the Sudanese government, parallels between the civil war and the conflict in Darfur are striking. For the purpose of discussing the efficacy of a peace process to end the violence in Darfur, this work will focus on what is deemed the most crucial agreements signed during the civil war, extrapolating their lessons to an advisable resolution. The first independent government in Sudan was led by Prime Minister Ismail al-Azhari, who enjoyed his office for two years before his Chief of Staff, General Ibrahim Aboud, led a coup d’état in 1958. Oddly, it is the “October Revolu93

tion” that removed Aboud’s pariah military regime on October 21, 1964 that is viewed as the first of many steps toward a peace agreement.49 One year later, Egypt, Uganda, Kenya, Algiers, Nigeria, Ghana, Tanzania, the Sudanese political parties, and various community leaders formed the “Commission of Twelve” at what would become known as “The Round Table Conferences.” The Commission engaged in unprecedented cooperation, formally submitting its recommendations to the Sudanese government for a new constitution that would address the grievances of both the government and the SPLA/M. Unfortunately, inter-party disputes between the Sudanese government and its opposition made the adoption of a new constitution unworkable. Both the government and the SPLA/M blinked on May 3, 1972, when in coordination with one another, they signed the Addis Abba Agreement.50 This bought the people of Sudan a temporary peace until May 1983 when the SPLA/M emerged with new issues denouncing the Addis Abba agreement. Again, the prospect of a Sudanese peace ebbed, and a new tide of violence swept through the country, signaling the beginning of the “Second Sudanese Civil War.” The Abuja Conference, held in Nigeria in March 1990, is credited as the first major breakthrough in the peace process. The conference affirmed several major areas of agreement that, four years later, would be formally inscribed in the Declaration of Principles at Nairobi, Kenya. In addition to the agreed-upon criteria set down at the Abuja Conference, the Declaration of Principles hailed South Sudan’s right to self-determination—this contention led the government to reject the Declaration’s legitimacy. The negotiations turned in favor of the government on April 21, 1997 when six splinter groups, accounting for 70 percent of the SPLA/ 94

M’s senior field commanders, signed the Khartoum Peace Agreement (KPA). This was a comprehensive framework agreement partisan to the government. The contention that surrounded the KPA corroborated the government’s deceitful claims that the SPLA/M’s fragile solidarity made it not just an irrelevant party to negotiations, but moreover a stumbling block on the path to peace.51 The government preyed upon this fragility in an unscrupulous propaganda campaign that denounced those factions of the SPLA/M that refused to acquiesce to the slanted agreement. Here, it is prudent to note that Khartoum has employed this same ‘divideand-denounce’ tactic again with regards to the recent (and equally skewed) Darfur Peace Agreement. In an effort to publicly de-legitimize the now-defunct Justice and Equality Movement when a faction of their counterpart, the Sudanese Liberation Army agreed to peace-talks (ostensibly in hopes of ending the governmentsponsored violence in Darfur), Khartoum publicly named the remaining opposition to the Darfur Peace Agreement an obstruction to peace in Darfur, neglecting the murderous Janjaweed altogether. The Machakos Agreement, taking place on July 20, 2002, signified the beginning of the end of the Sudanese civil war. In essence, this agreement was a more equitable version of the KPA. According to Hassan E. El-Talib, Deputy Head of the Sudanese Embassy in South Africa, the significance of the Machakos agreement “emanates from the powerful parties from outside the African continent who supported and encouraged [negotiations].”52 The Machakos Agreement paved the way for a final peace treaty to be signed on January 9, 2005.

Darfur’s Peace Process In Perspective: The Spoiler Problem Stephen John Stedman, Professor of African Studies and Comparative Politics at the Johns Hopkins School of Advanced International Studies, outlines a helpful typology of ‘spoilers,’ whom he defines as: “…[those] leaders and parties who believe that peace emerging from negotiations threatens their power, worldview, and interests, and use violence to undermine attempts to achieve [peace].” For each kind of spoiler Stedman outlines specific methods of management. Under Stedman’s typology, the Al-Bashir regime is dynamic; it is a total spoiler, or one that pursues total power, exclusive recognition of authority, and holds immutable preferences. Yet, it also bears the traits of a greedy spoiler, one that holds goals that expand or contract based on calculations of cost and risk. For total spoilers, Stedman recommends two options. The first calls for an uncompromising use of force to eliminate the total spoiler from the peace process altogether. A more moderate proposal recommends labeling the spoiler’s behavior as illegitimate and subsequently asserting that the peace process will go forward regardless of whether the spoiler (in this case, the Sudanese government) joins or not. As for the ‘greedy’ element of the spoiler posed by the government, Stedman advises a long-term process of socialization, effectively changing the behavior of the spoiler to adhere to a set of established norms (in this case, international law and basic human rights). In the interest of even-handed analysis, one could fairly look at the other parties involved (the SLA and JEM) as limited spoilers. These spoilers live up to their name, espousing limited goals. They are often against certain aspects of

an agreement but not against the principle of agreement, itself. This typology is substantiated by the case of the Darfur Peace Agreement and the cleavages it incised across the two movements. Naturally, the only way to deal with a limited spoiler is to use specific inducements to compromise. Unfortunately, this is complicated by the fact that the other parties in the peace process inherently limit the spectrum of bargaining inducements. The truth, as it is with any peace process, is that while typologies like Stedman’s are helpful in developing broad frameworks for political strategy, they are not onesize-fits-all. The approach to dealing with Sudan’s government and opposition parties will have to be more nuanced than the pure strategies discussed here. In any case, Stedman’s policy-recommendations provide, if nothing else, a sobering place to start. The Darfur Peace Agreement Signed on May 5, 2006 by Sudan’s government and the faction of the SLA led by Minni Arkou Minawi, the Darfur Peace Agreement (DPA) has come under fire from parties directly involved in peace negotiations as well as sidelined spectators. Two of the three rebel delegations present in peace negotiations refuse to sign the agreement. The SLA faction of Abdul Wahid Mohamed Nur demands more direct SLA participation in the implementation of security arrangements. Nur’s faction of the SLA and the JEM share strong dissatisfaction with the DPA’s provisions for political wealthand power sharing. This governmentendorsed structural inequality is reminiscent of the very kind that sparked the rebel campaigns in 2003. The real success of the DPA hinges on the willingness of parties involved in the peace process to bolster security provisions, augment designs to return displaced peoples to their 95

homes and follow through on a credible victim-compensation program. The Risk in Negotiation The history of peace building itself poses a central policy dilemma for peace-builders in Sudan. Between 1943 and 1995, 19 percent of identity-driven civil wars worldwide that were ended by military victory were followed by popular genocides. No serious post-conflict violence occurred in those that ended with negotiation. On the other hand, in accordance with the Wagner hypothesis, a peace accorded by negotiation is inherently much less likely to be upheld. The data gathered by Roy Licklider, Rutgers University Professor of Political Science, supports the Wagner hypothesis, finding a 50 percent success-rate of negotiated settlement to conflict. Indeed, Sudan’s relapse into a second civil war in 1983 echoes these findings. With Rwanda’s genocide fresh in the minds of African peace-builders, such considerations in the approach to ‘solving’ Darfur should be weighed heavily. All parties involved in the peace process will have to be resolute and decisive, while dually remaining flexible and amenable to a greater peace in Darfur. Outside the realm of academic theory and policyspeculation, the real-life implications of a failed peace agreement in Darfur leave the region open to a devastation the potential magnitude of which could dwarf the memory of the senseless bloodletting in Rwanda. Bearing this in mind, political leaders ought to work cautiously, being sure to move forward and, more importantly, together. Peace in Darfur: The Long Road Ahead When the International Commission on Intervention and State Sovereignty (ICISS) convened in 2001, a profound 96

change in its discourse resulted. Once revolving around a potential “right to intervene,” the language of interventional peacemaking was thereafter defined by a solemn “responsibility to protect.” Looking to the obstinacy of Khartoum in making any valuable progressive developments in Darfur, the intervention of third-party countries, especially global superpowers (preferably under a UN banner), will be necessary to build an environment in which a lasting peace may be objectively brokered. The international community must transcend Prunier’s assertion that “…the post-historical world no longer has any reasons beyond its media-driven humanitarianism for seriously intervening in obscure distant conflicts.” Such a sentiment underpins the cautionary words of the International Crisis Group’s Senior Adviser, John Prendergast, when he states that “Sudan’s government and its militia proxies will not stop terrorizing Darfur unless they fully understand that serious consequences will follow.” Applying the lessons learned from the long and arduous peace process that ended Sudan’s civil war to a hypothetical peace process in Darfur today is hardly an exact science. For one thing, Khartoum maintains that it is engaging in a defensive “counter-insurgency” while the rest of the international community has described the nature of its actions as genocidal. Furthermore, the current government in Sudan is much less willing to make concessions to the demands of those whom they deem rebels than were previous administrations in dealing with the SPLA/M. Taking the principles of the peace agreement that ended the civil war into account, the following criteria must be present in any accord for a successful transition to peace in Darfur: • It will be absolutely necessary for Khartoum to permanently limit the

executive power of the state and curb the political autonomy enjoyed by its military. Potent civil society institutions will need to be implemented with the charge of protecting freedom through an impartial rule of law. Resources must be fairly distributed and utilized in order to promote development and reduce the propensity of conflict. Khartoum will need to vanquish their purportedly estranged marauding militias who continue to terrorize the people of Darfur. Without any political convictions outside the realm of personal gain, the Janjaweed’s continued presence is a scar upon the face of the Sudanese government.

Endnotes
1. Alex de Waal, “Counter-Insurgency on the Cheap,” London Review of Books, Vol. 26, No. 15, 5 August 2004; “Darfur’s Real Death Toll,” Washington Post, Sunday April 24, 2005, p. B06. UN News Center, “UN Human Rights Council to send high-level mission to Darfur,” http://www.un.org/apps/news/story. asp?NewsID=20968&Cr=sudan&Cr1, (accessed December 19, 2006). PBS, “Sudan: The Quick and The Terrible,” Frontline World, http:// www.pbs.org/frontlineworld/stories/ sudan/facts.lhtml (accessed October 5, 2006). “African Paramilitary Groups: Sudan.” GlobalSecurity. 28 Feb. 2007. <http://www.globalsecurity. org/military/world/para/darfur. htm>. Justin Michael Zorn, personal interview, Fall 2006. Coalition For International Justice, “Chronology of Reporting on Events Concerning The Conflict in Darfur, Sudan,” http://www.cij. org/publications/CIJ_Complete_ DarfurChronology.pdf (accessed November 14, 2006). “Main parties sign Darfur accord”, BBC News, 2006, May 5 African Paramilitary Groups. Hennig, Rainer. “Eritrea, Chad accused of aiding Sudan rebels.” afrol News 7 Sept. 2006. 28 Feb. 2007 <http://www.afrol.com/ articles/13898>. United Nations. “UN experts urge key governments to crack down on arms smuggling to Sudan.” UN NewsCentre 8 Feb. 2006. 28 Feb. 2007 <http://www.un.org/apps/ news/story.asp?NewsID=17436&Cr =Darfur&Cr1>. Hennig. African Paramilitary Groups. “Contaminating the Neighbors.” The Economist. 9 Nov. 2006: 54. Marquand, Robert. “World court’s big move on Darfur.” The Christian Science Monitor 28 Feb. 2007. <http:// www.csmonitor.com/2007/0228/ p01s02-woaf.html?s=t5>. “Sudan’s President Accuses US of Exaggerating Darfur Troubles.” Sudanese Media Center 25 Feb. 2007. 28 Feb. 2007 <http:// w w w. s m c . s d / e n / a r t o p i c .

2. 3. 4.

5.

6. 7.

Any effort to restore one iota of legitimacy to the government in Khartoum will be meaningless without a concerted effort to meet these preconditions for peace and stability. There is an African proverb that assures us that “No matter how long the night, the dawn will eventually break.” For years, the people of Darfur have suffered a ruthless campaign of violence perpetrated by a group of mindless mercenaries who know no limits to their cruelty. In a world where silence is consent, the government of Sudan must be held accountable for its blatant neglect and manipulative diplomatic tactics in eschewing responsibility for reigning in these butchers. Only when the international community fulfills its promise to never again turn a blind eye to the extermination of a people can Darfuris hope to enjoy an enduring and indomitable peace.

8. 9. 10.

11.

12. 13. 14. 15.

16.

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asp?artID=25174&aCK=EA>. 17. Curry, Ann. “Sudan’s al-Bashir denies role in Darfur violence.” MSNBC 20 March 2007. <http://www.msnbc. msn.com/id/17691868/>. 18. Amir H. Idris, Conflict and Politics of Identity in Sudan, (Hampshire: Palgrave Macmillan, 2005), 44. 19. Library of Congress, “Society.” A Country Study: Sudan, June 1991, http://lcweb2.loc.gov/cgi-bin/query/ r?frd/cstdy:@field(DOCID+sd0006 (accessed October 16, 2006). 20. Gerard Prunier, Darfur: The Ambiguous Genocide, (London: C. Hurst & Co., 2005), 4. 21. Ibid. 22. Ibid., 5. 23. Library of Congress, “Society.” 24. Amir H. Idris, Conflict and Politics of Identity in Sudan, 1-2. 25. “Glittering Towers in a Warzone.” The Economist 7 Dec. 2006 26. Ibid. 27. Lederer, Edith M. “Sudan Accepts U.N. Force in Darfur.” Forbes 16 Apr. 2007. 5 May 2007 <http://www. forbes.com/feeds/ap/2007/04/16/ ap3617579.html>. 28. Rupiya, Martin. “African Union Extends Darfur Troops Mandate to 31 Decmber 2006.” Institute for Security Studies. 4 Oct. 2006. 5 May 2007 <http://www.issafrica. org/index.php?link_id=5&slink_ id=3681&link_type=12&slink_ type=12&tmpl_id=3>. 29. International Crisis Group, “Getting the UN into Darfur,” Africa Briefing No. 43, (Nairobi and Brussels: October 12, 2006), 3. 30. Reeves, Eric. “Ghosts of Rwanda: The Failure of the African Union in Darfur.” SudanReeves. 20 Nov. 2005. 5 May 2007 <http://www. s u d a n re e ve s . o r g / Se c t i o n s - re q viewarticle-artid-534-allpages-1theme-Printer.html>. 31. African Union Mission in Sudan. Apr. 2007. African Union. 5 May 2007 <http://www.amis-sudan.org/ index.html>. 32. Paul D. Williams, “Military Responses to Mass Killing: The African Union Mission in Sudan,” International Peacekeeping 13, no. 2 (2006): 177. 33. Ken Bacon, Shannon Meehan, and Eileen Shields-West, “Sudan: African Union Peace Monitors Creating Pockets of Security in Darfur.” Refugees International, (Washington:

February 25, 2005), 3. 34. International Crisis Group, “The AU’s Mission in Darfur: Bridging the Gaps,” Africa Briefing No. 28, (Nairobi and Brussels: July 6, 2005), 7 35. Brookings Institution/Bern University, “The Protecting of Two Million Internally Displaced: The Successes and Shortcomings of the African Union in Darfur,” (November 2005, http://www.brookings.edu/ fp/projects/idp/200511_au_darfur. pdf ), 37. 36. David C. Gompert, Courtney Richardson, Richard L. Kugler, and Clifford H. Bernath, “Learning From Darfur: Building a Net-Capable African Force to Stop Mass Killing,” Center for Technology and National Security Policy, (Washington: July 2005), v. International Crisis Group, “Getting the UN into Darfur,” Africa Briefing No. 43, (Nairobi and Brussels: October 12, 2006) 11. 37. United States Agency for International Development, “USAID/Djibouti Annual Report 2005” (Silver Spring, MD: June 16, 2005), 4. 38. International Crisis Group, “Getting the UN into Darfur,” 11. 39. Gompert, et al, 15. 40. International Crisis Group, “Getting the UN into Darfur,” 3-6. 41. Reuters. “No evidence against ICC Darfur suspect - Sudan.” Sudan Tribune 4 May 2007. 5 May 2007. <http://www.sudantribune.com/ spip.php?article21701>. 42. ChinaDaily. “China to continue efforts to bring peace to Darfur.” AP/ ChinaDaily 19 July 2007 43. h t t p : / / w w. c h i n a d a i l y. c o m / cn/china/2007-07/19/ content_5439172.htm 44. International Crisis Group, “Getting the UN into Darfur,” 6. 45. Ibid., 5-8. 46. European Commission on Oil in Sudan, “List of Companies,” http://www.ecosonline.org/index.cf m?event=showcompanies&page=co mpanies, (accessed April 27, 2007). 47. International Crisis Group, “Getting the UN into Darfur,” 8. 48. President John F. Kennedy, “Address Before the 18th General Assembly of the United Nations,” United Nations, (New York: September 20, 1963). John F. Kennedy Presidential Library & Museum, “Historical Resources,” http://www.jfklibrary.

98

49.

50. 51. 52. 53. 54.

55. 56. 57.

58. 59. 60. 61. 62.

org/Historical+Resources/Archives/ Reference+Desk/Speeches/JFK/003P OF03_18thGeneralAssembly09201 963.htm, (accessed May 5, 2007). Korwa G. Adar, John G. Nyuot Yoh, and Eddy Maloka, “Sudan Peace Process” (Pretoria: African Century Publications, 2004), 191-284. Ibid, 191 Ibid., 25. Ibid., 29. Ibid., 21. Stedman, Stephen John. “Spoiler Problems in Peace Processes.” International Security 22.2 (Fall 1997): 5-53. International Crisis Group. “Darfur’s Fragile Peace Agreement.” Policy Briefing. June 2006. 6 May 2007 <http://www.crisisgroup. org/home/index.cfm?id=4179>. Licklider, Roy. “The Consequences of Negotiated Settlements in Civil Wars, 1945-1993.” The American Political Science Review 89.3 (Sept. 1995): 687. Ibid, 685. Williams, Paul D., Dr. “Intervention.” Introduction to Conflict Resolution, Spring 2007. Elliot School of International Affairs. 27 Mar. 2007. Gerard Prunier, Darfur: The Ambiguous Genocide, 159. “Will they be rescued?” The Economist, September 23, 2006, 51-52.

About the Authors Zachary Hindin is a rising sophomore at the George Washington University’s Elliot School of International Affairs, where he concentrates on the dynamics of Peace and Conflict. He now serves on the Executive Board of Directors for Banaa: The Sudan Educational Empowerment Network, a grassroots movement initiated at the George Washington University to offer students from the most oppressed populations of Sudan the chance to attend American universities, coordinate with Sudanese exiles, and organize with NGOs throughout the world. Zachary hails from Wellington, Florida. R. Benjamin Nelson, from Chicago, Illinois is a sophomore at Georgetown University. In 2010, he will graduate with a major in government and a minor in Arabic. Between high school and college, he worked in France, studied in Spain, and continues to maintain a strong interest in international affairs. This past summer, he interned with Senator Barack Obama on Capitol Hill.

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The Dupont Summit
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- Call for Proposals and Workshops On the verge of a new U.S. Presidential Administration, the Policy Studies Organization is glad to announce that the upcoming Dupont Summit will be held during the first week of December 2008, in the aftermath of the U.S. presidential elections. The purpose of the Dupont Summit is to bring scholars and policymakers into dialogue about pressing policy issues on environment, technology and science, which will need to be addressed by the new American Presidency. The Dupont Summit will focus on the following themes: · AIDS · Global Warming · Biotechnology · Environment and Ecology · Bioethics · Alternative Sources of Energy · Biomedicine · Chemical and Biological Engineering Genetics · Stem-cell Research · Information Technology and Telecommunications *Other suggestions are welcome For more information please visit the Conference Section via our website www.ipsonet.org, or you may contact Daniel Gutiérrez, Conference Manager by email dgutierrezs@ipsonet.org

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KENNEDY SCHOOL REVIEW HARVARD UNIVERSITY
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