Executing People with Serious Mental Illness -- Like Wesley Purkey -- Is Wrong

Wesley Purkey is a 67-year old man in rapid decline from Alzheimer’s disease. He also suffers from longstanding multiple serious mental health issues. In and out of psychiatric hospitals since the age of 14, Mr. Purkey has been diagnosed with and/or treated with medication for schizophrenia, psychosis, bipolar disorder, brain damage and more. He has complex Post Traumatic Stress Disorder (PTSD) from the “pervasive and extraordinary childhood physical, sexual and emotional abuse” he endured. One of the psychiatrists who evaluated Mr. Purkey found eleven different categories of childhood trauma; one of them was being repeatedly raped by his own mother beginning when he was just ten years old.

Mr. Purkey is also one of the first prisoners chosen by the federal government for execution after a 16-year hiatus in federal executions. While a District Court granted a lethal injection-related preliminary injunction on November 20, 2019, to the four prisoners with scheduled federal execution dates, the Department of Justice appealed to the U.S. Supreme Court who will make a final decision. Unless the government or a court intervenes to assert that his case is not appropriate for the death penalty, Mr. Purkey faces imminent execution by the Bureau of Prisons on December 13, 2019.

Mr. Purkey believes he knows why he was chosen for execution. According to one of the mental health experts who has evaluated him, for the last five years, Mr. Purkey has held “a consistent belief that there exists a grand conspiracy against him.” He believes he was singled out by the Bureau of Prisons because of the dozens of lawsuits and grievances he has filed. Mr. Purkey believes his legal filings have had a “monumental impact” and that corrections officers admit to him “all the time” that they know his legal filings are the “real reason” he is being executed.

Recently, a psychiatrist evaluated Mr. Purkey’s persistent delusion about why the government scheduled an execution date for him. That psychiatrist definitively concluded that Mr. Purkey “lacks a rational understanding for the basis for his execution.” Instead, “he has a fixed belief that he is going to be executed in retaliation for his legal work.”

This matters tremendously, both legally and ethically. In my past decades of work with the National Alliance on Mental Illness (NAMI), the country’s largest grassroots mental health organization, I specialized in how public policy and the law intersect with mental health issues. These topics can be complex, but the U.S. Supreme Court has made one area crystal clear: a prisoner is not eligible for execution if he lacks a “rational understanding of the reason for the execution.”

In other words, Mr. Purkey’s scheduled execution should not proceed.

The Supreme Court has stated that it does not comport with the U.S. Constitution to execute people whose mental illness or disability, like Mr. Purkey’s, impairs their capacity to rationally understand the nature of the crimes committed or the reasons why the death penalty is being carried out.

Sending confused individuals with severe brain disorders who don’t understand what is happening to them into the execution chamber is incompatible with what the Supreme Court has termed “evolving standards of decency.” That’s not who we are.

As Mr. Purkey ages, his condition is only getting worse. In 2017, Mr. Purkey was diagnosed with dementia, which has now progressed to full blown Alzheimer’s disease. Mental professionals and attorneys have noted his progressive and swift decline.

A psychiatrist who visited Mr. Purkey in 2016 and then again in 2019 noted the “significant deterioration in physical appearance and demeanor,” including the recent development that “the right side of his face is no longer symmetrical with the left side, and only the left side moves when he smiles.”

One psychologist noted that death from Alzheimer’s is typical eight years from diagnosis but can come as soon as three years after diagnosis. Another wrote that Mr. Purkey’s decline should be expected “further and faster” than is typical, given his multiple risk factors for dementia and the low standard of medical care for death row prisoners.

A psychiatrist recently wrote that “the underlying brain damage and mental illness he has are long-standing, irreversible, and will continue to deteriorate as his dementia progresses.”

It is not my intent to excuse Mr. Purkey’s crimes or diminish in any way the pain that he caused to the victim’s family and friends. He has paid a justifiably severe penalty for his crime – incarceration without the possibility of release.

However, the law is clear. It is wrong to execute people whose mental and cognitive disabilities are so severe that they do not understand why they are being killed. The courts must intervene before it’s too late.

Presidential Power and Military Justice: A Tradition of Effectiveness Under Strain

In 1775 General George Washington appointed the first Judge Advocate General in American history. Even before the Colonies declared independence from the Crown, Washington recognized that military law and a mechanism to enforce it would be essential to building the Continental Army. The Continental Congress quickly adopted our first military code – the Articles of War - in large measure a copy of the British Articles of War our early military leaders were familiar with. 

Since that time the military law has always played an important part in ensuring the good order and discipline of United States armed forces and the legitimacy of our military operations. Like Washington, the men who drafted our Constitution recognized that military law would be an essential component of ensuring that the armed forces serving the new nation were well-disciplined, and vested Congress with the authority to, “To make Rules for the Government and Regulation of the land and naval Forces.” From 1787 to 1950, Congress exercised that authority by enacting Articles of War for the Army and for the Navy. The term “Articles of War” is somewhat misleading, for it suggests these established rules of war. This was never the case. Instead the Articles of War established offenses applicable to members of the armed forces (and certain other individuals closely associated with the armed forces) and the procedures for trials by courts-martial (military courts) and other disciplinary actions to enforce these laws. 

These laws were updated periodically, but it was not until after World War II that Congress set about a major revision. This led to enactment of the Uniform Code of Military Justice, or UCMJ. This unification of laws applicable to all U.S. armed forces included major changes to the range of offenses made punishable and the procedures for courts-martial (other major changes, like the requirement that trials be presided over by military judges and the creation of a robust military appellate process analogous to civilian appellate courts were adopted later). Importantly, Congress delegated to the President broad authority to adopt rules of procedure and evidence and to define maximum punishments for those convicted of violating the UCMJ. However, in one of the most important articles, Congress mandated that the rules of procedure and evidence used for trial by courts-martial should generally be analogous to those used in federal district courts, a provision intended to ensure that military criminal process produced credible and fair results and that military criminal defendants receive fair trials when judged against the touchstone of civilian criminal process. 

This delegation of rule-making authority to the President reflects congressional recognition that as Commander in Chief, the President possesses broad and important authority over the armed forces. But this power is not unlimited, especially in the area of military discipline. Instead, the UCMJ reflects an expectation that the President, acting through his or her subordinate military commanders, will utilize the authority established by the UCMJ to promote the pursuit of justice, good order, and discipline. These two interests are not competitive, but instead complementary.  As emphasized in the Powell Report (written several decades ago by a high-level commission established by Congress to recommend amendments to military law), it is a “myth” to consider justice and discipline as competing: “In the development of discipline, correction of individuals is indispensable; in correction, fairness or justice is indispensable. Thus, it is a mistake to talk of balancing discipline and justice-the two are inseparable. An unfair or unjust correction never promotes the development of discipline."Thus, by doing justice commanders enhance genuine discipline. Why? Because the rule of law must define all our military does, whether when engaging an enemy in battle or addressing misconduct within the ranks. 

Today perhaps more than ever our military commanders understand this relationship: that by ensuring accountability for violations of military law through a fair and credible disciplinary and criminal process they enhance good order and discipline in the units they command; and by ignoring misconduct or utilizing fundamentally unfair process they undermine that critical foundation of unit competence. Commanders rely heavily on military legal advisors – licensed attorneys who are also commissioned officers and serve as Judge Advocates – to implement this law and their obligations. These officers and the enlisted paralegal specialists and civilians who all make up each Service JAG Corps’ are the product of training and professional development in military law based on years of experience in aiding commanders navigate the complex terrain of military disciplinary action. The established competence of commanders, JAGs, and the process they utilize has led Presidents to almost always defer to this process when addressing even the most highly publicized incidents of military misconduct. 

President Trump’s recent forays into the details of military justice and other military disciplinary actions is a potentially dangerous deviation from this longstanding practice. Beginning on the 2016 campaign trail, candidate Trump denigrated the military justice system when he lambasted the financial resources wasted to court-martial Sergeant Bowe Bergdahl, a soldier pending general court-martial for several UCMJ violations resulting from his decision to abandon his combat outpost in Afghanistan. Instead Trump called for his execution as a traitor. These comments were deeply troubling, not only because Trump’s demand violated the most basic notions of due process (not to mention that treason is not even an offense in the UCMJ), but because once Trump was elected president they arguably compromised Bergdahl’s ability to receive a fair trial. The military judge presiding in that case ultimately rejected a defense request to dismiss the charges based on the impact of Trump’s incendiary commentary. But the judge also expressed serious concern about how Trump created the appearance of unfairness and specifically indicated he would take the impropriety of this commentary into account when he decided upon the sentence. Bergdahl’s case is still pending appeal and it is unclear how the military appellate courts will treat Trump’s commentary, but one thing is certain: everyone involved in or familiar with the military justice system recognized how dangerous this type of presidential meddling could be for a system that considered improper command influence a “mortal enemy” to due process and military justice. 

More recently, the President has acted to terminate or reverse military justice actions. One case involved Navy SEAL Edward Gallagher who was accused of murdering a wounded and captured ISIS fighter and then taking “trophy photos” with the dead body. From the inception of Gallagher’s criminal prosecution President Trump hailed him as a hero and criticized the decision by his Admiral to prosecute. Nonetheless, the Admiral pressed forward with Gallagher’s general court-martial which ultimately resulted in acquittal for murder (and other serious charges) but conviction for dereliction of duty related to posing with the dead body. The military jury sentenced him to four months’ time served and reduction in rank, but the President intervened and ordered his rank restored. Then, the President intervened again, this time in a routine military personnel action, and directed that the Commander of Naval Special Operations terminate a review to determine whether the court-martial conviction necessitated that Gallagher forfeit his SEAL status.  

In two other cases the President pardoned Army personnel convicted by general court-martial for murder while deployed in combat zones; convictions handed down by military juries based on proof beyond a reasonable doubt after full and fair military trials and upheld on appeal. In yet another case he preemptively pardoned an Army officer pending trial on a charge of first-degree murder for allegedly assassinating an Afghan national. While the context of all these killings indicates they qualified as war crimes, it is the consistent practice of the U.S. military to charge such offenses as violations of the UCMJ, in these cases murder. This is in no way intended to minimize the nature of the offenses or to suggest they were not war crimes.  Rather, it is done to avoid complicated legal issues that might arise if the offenses were alleged as actual violations of international law. There should be no doubt, however, that the context of these acts (or alleged acts) of lawlessness – during combat operations – exacerbates the potentially detrimental impact on good order and discipline flowing from these presidential interventions. 

These cases reveal the limits of the authority provided to members of the armed forces to engage in violent conduct during armed hostilities, or war. That authority is indeed extensive, as the situation of hostilities justifies many acts of violence and destruction that would be prohibited in peacetime. But the authority is not unlimited. When service-members commit acts of violence that fall beyond the scope of the legal justification provided by the international law of war (also known as international humanitarian law or the law of armed conflict) their conduct is criminal and commanders bear a responsibility to take effective disciplinary measures in response. In many cases, this battlefield misconduct violates a provision of one of four Geneva Conventions of 1949, the only four treaties adopted by every nation including the United States. These treaties impose an obligation to prosecute the most serious violations of the international law of war and to take measures to repress all other violations.   

Unfortunately, these cases also reveal the corrupting effect of presidential interventions in the military justice process based on a misguided and poorly informed understanding of the importance of accountability for battlefield misconduct; the very genesis of our military justice system. President Trump’s commentary (asserting that it is illogical and unfair to punish service-members for killing in war after we train them to kill and deploy them to do so) reveals the depth of this misunderstanding. Yes, service-members are trained for and often are required to engage in mortal combat in the fulfillment of their duty. But since the inception of our nation our military (and civilian) leaders have understood that our forces must be both lethal and legal in their actions, and that when violence transgresses the line of legality – even in war – accountability is essential to the preservation of a disciplined force, the honor of our armed forces, and the legitimacy of our operations. While it may be understandable that the President and others are sympathetic to the plight of these defendants – after all they are among a tiny fraction of Americans who volunteer to carry the heavy burden of combat on behalf of our nation – there is a fundamental difference between sympathy and tolerance. By exonerating accused and convicted war criminals, the President unfortunately undermines decades of effort to ensure a solid legal and moral foundation for our armed forces and reinforces the corrosive instinct that war should know no limits.  

The constitutional pardon power vested in the President unquestionably extends to granting pardons and/or clemency to military personnel. But as great military commanders learn through the challenging experience of leading forces in war and presiding over military disciplinary actions, just because something is legal doesn’t necessarily mean it is the right thing to do. The crescendo of disapproval to these presidential interventions to nullify the military justice process voiced by experienced commanders, military lawyers and military legal experts (to include this author), and former senior Defense Department officials indicates how unfortunate it is that the President chose to champion the law breakers instead of the system that assessed their conduct and held them accountable. That system is the product of centuries of experience and rooted in history so deep that it predates our very nation. It is something for which Americans can be rightfully proud and deserves our respect. 

Geoffrey S. Corn, a Lieutenant Colonel, U.S. Army (retired), is the Vinson & Elkins Professor of Law at South Texas College of Law Houston and a Distinguished Fellow for the Jewish Institute of National Security for America’s Gemunder Center for Defense and Strategy. 

The Essential Role of State Courts in Addressing Climate Harms

In her opening statement on the second day of the House public impeachment hearings, former Ambassador to Ukraine Marie Yovanovitch recounted how President Trump and his personal lawyer Rudolph Giuliani undermined the State Department’s ability to “promote stated U.S. policy against corruption.”  “If our chief [diplomatic] representative is kneecapped,” she said, “it limits our effectiveness to safeguard the vital national security interests of the United States. These events should concern everyone in this room.” 

Although this particular instance of the Trump administration’s “kneecapping” of a civil servant who had dedicated her life to safeguarding us may be the most high-profile to date, it is unfortunately one among many. In fact, many of the other civil servants kneecapped by the administration were attempting to implement the environmental and public health protections that are statutorily assigned to their agencies in the face of the greatest national security threat we have ever faced; namely, the climate crisis.  

Such alarming presidential abuses of power bring into sharp relief the importance of other governmental centers of power in our constitutional system, particularly Congress and the federal judiciary. When it comes to the climate crisis, however, the states have thus far been the most important bulwarks against the administration’s systematic hobbling of our basic security. When Trump announced his intent to withdraw from the Paris Agreement—the most important international response to the climate emergency thus far—a coalition of states and cities committed to meeting the country’s international obligations to reduce our greenhouse gas emissions. In myriad instances of unlawful agency action related to climate, state attorneys general have been among those who have filed suit in federal courts, most of the time successfully. And many state legislatures have passed climate legislation. Less high-profile, but also particularly important when federal environmental and public health agencies are kneecapped, is state tort law.  

In the summer of 2017, numerous local governments and one fishing industry trade group began filing state tort suits against Exxon, Chevron, BP, Shell, and other major fossil fuel companies to hold them accountable for contributing to the climate crisis and then misleading the public about it. The plaintiffs are seeking compensation for myriad region-specific climate harms—including current and future damages to infrastructure, land and other natural resources, and community members’ health, property, and livelihoods—caused by sea-level rise, drought, wildfires, ocean acidification, storms of record-breaking severity, and other climate-driven environmental disruptions.

In their public relations messaging, the industry and its trade associations condemn the suits and call for legislation providing them with immunity. The U.S. Chamber of Commerce has called for such legislation at the state level, and the National Association of Manufacturers created an advocacy arm with the sole mission of attacking the state suits. The industry’s fears and concerted efforts to prevent the plaintiffs from having their day in court are hardly surprising. After all, even before the discovery process, the plaintiffs have documentation that the defendants have (1) known for decades that they were contributing to the climate crisis and its devastating consequences, and (2) responded to that knowledge with a concerted disinformation campaign about the climate crisis and its connection to fossil fuel product use and an acceleration of their business to further entrench societal dependence on fossil fuels. Given that three of the suits are poised to begin discovery proceedings and the further revelations of corporate deception and other malfeasance that will undoubtedly be unveiled as a result, the industry can be expected to ramp up its efforts to fight the suits.   

Unquestionably, federal and state legislation is urgently needed to address the climate crisis. But by its very nature, legislation—no matter how robust its protections and well-crafted its provisions—will never obviate the need for state tort law to serve the unique, complementary role in forging corporate accountability and environmental and public health protections that it has long served in the U.S. legal system. 

State tort law has always been an important legal mechanism in this country for holding private actors responsible for misconduct and providing compensation to those harmed by that misconduct. It has become particularly important in serving this role, however, since the mid-20th century, as corporate actors have amassed greater economic and political power coupled with the significant control over information that comes with their sophisticated and often deceptive marketing campaigns. In the 1960s, in response to widespread harms caused by businesses’ mass-marketing of unsafe products, coupled with their use of misleading marketing strategies, state courts began drawing on existing state tort law principles to provide relief to the injured as well as accountability to the public at large.

It’s particularly important that state tort law took on this role because corporate influence had prevented the regulatory system from adequately protecting the public. In state courts, victims found a legal venue in which to seek redress for harms caused by the wrongdoing of various industries, including the tobacco, gun, chemical, food production, and fossil fuel industries. In addition to providing much-needed compensation to the injured, these tort suits forced industries to operate more safely, avoiding future harms. The current climate suits filed by states, cities, and counties all over the country against fossil fuel industry defendants may prove to be the most important example of this function of tort law to date. Though climate harms are of a magnitude far beyond what tort law or any other aspect of our legal system has ever dealt with, the plaintiffs’ allegations regarding the fossil fuel industry defendants’ contributions to those harms are the very sort of corporate malfeasance that state tort law has been addressing for decades now.  

This role of tort law is particularly vital when, as now, a presidential administration continues to kneecap the agencies charged with implementing the climate protections. But even if a new administration committed to responding to the climate crisis is elected in 2020, allowing the plaintiffs their day in court will only strengthen our national response to the climate crisis and will likely provide a critical backstop going forward. More specifically:

  • Any future federal regulation of greenhouse gases is unlikely to compensate current and future victims of the climate crisis, and state tort law can provide some measure of relief; 
  • There will be a continuing need for the sort of information that can be accessed through the civil discovery system, as the nature of both the climate crisis itself, as well as the fossil fuel industry’s attempts to resist giving up the profits of its activities contributing to it, continue to evolve; and
  • In the event that federal targets end up weak or, as now, implementation falters, state tort law can provide a vital safety net for society.

The current era of climate disruption demands not only new and improved governmental mechanisms, but also using current ones that are effective, including state tort law. And when, as now, a presidential administration has disabled our principal mechanism for responding to national emergencies, it is all the more essential to use all the others to the fullest extent possible.

Karen Sokol is Associate Professor of Law at the Loyola University College of Law in New Orleans and a co-author of the Center for Progressive Reform's new report, Climate Justice: State Courts and the Fight for Equity.

DACA at the Supreme Court: Quick Take on Oral Arguments

This was originally posted on Medium.

On November 12, 2019, the Supreme Court of the United States (SCOTUS) heard oral arguments in the case of DACA, or more specifically “Deferred Action for Childhood Arrivals.” The arguments centered on the termination of DACA, not on the legality of DACA itself (though in several ways the two questions are intertwined).

Reading into oral arguments is like reading through tea leaves, but we all tasted something. Take this quick take as but one taste.

First, a good portion of both the questions and the answers wander. The first distraction began with a discussion of a case unrelated to DACA known as DAPA, which is a deferred action policy for parents that was never operational, and ended in a deadlock by the Supreme Court. The government argued that the outcome in DAPA raised “serious doubts” about the legality of DACA. How I wish the irrelevance came out more. The second distraction was the choice by the government to refer to those with DACA as “illegal aliens.” The choice by this administration to use this term against people with DACA, more than a decade of presence, and qualities that are in most ways American is unfortunate. A final distraction (or the one I will raise here) is with regard to size. Justice Alito made size a part of his questions (e.g. p. 72). But ultimately, size is a policy question, not a legal one.

Second, the government argued that there is “simply nothing in the INA” (or “Immigration and Nationality Act”) that allows DHS to use the discretion it did in employing DACA (p. 11). The INA is identified by the government throughout the brief (i.e., DACA rests on a “shadow” INA really? p. 34, p. 36) But the reality is that several provisions of the INA, including most prominently the delegation of authority from Congress to DHS to make immigration enforcement decisions (see section 103) do just this. Other sections of the INA (i.e., 237(d)(4), 242(g)) also identify deferred action by name as do several court decisions including ones by the Supreme Court. These authorities were not drawn out during the arguments. It was also inaccurate for the government to argue that DACA “actively facilitates violations of the law” (p. 33) without a reason or explanation. Further, the government in my view overstated the degree to which Secretary Nielsen articulated “reliance interests” in her memorandum, the “second” memorandum issued by DHS long after its decision to end DACA. (p. 22)

Related: Watch Shoba Sivaprasad Wadhia discuss the DACA case and other Supreme Court cases this term 

Third, the oral arguments had some ironic twists, with the government itself arguing that work authorization and other benefits were simply “collateral.” The irony is rooted in the historic criticism that such benefits are allegedly “conferred” by DACA (which in fact is untrue), but the government’s motivation in making the “collateral” argument was to challenge reviewability, quite a different angle than those immigration law scholars who defend DACA.

See this 2017 letter from immigration law professors and DACA at the Supreme Court: Immigration Law Scholars Brief. I also found it puzzling the degree to which the argument isolated the legality question from their conclusion about “serious doubts” about DACA’s legality. (p. 32). Is this a distinction with a significant difference?

Fourth, the oral arguments also had some bright moments or at least, clarifying ones. Early on, Justice Ginsburg raised the dichotomy of, on one hand, saying the government’s choice to end DACA is unreviewable because it’s committed to agency discretion and, on the other hand, saying that DHS had no discretion because DACA was unlawful. (p.6)

Justice Breyer led with “All right. So I counted,” alluding to the number of people who came in and the number of briefs filed in connection with DACA. He challenged the reliance interests raised by the government. Later, Justice Sotomayor stated that she sees nothing in the INA that “takes away discretion” of the agency (p. 28) and challenged the number of reliance interests not considered by the government. (p. 30) Ted Olson on behalf of the respondents led a strong opening arguing that the decision to end DACA “required the government to provide an accurate, reasoned, rational, and legally sound decision. It utterly failed to do so.” (p. 43) He had some challenging exchanges with Justice Gorsuch.

Olson ended strong with the administration’s failure to provide a rational explanation for ending DACA “instead of just pushing a button …that’s what judicial review is all about.” (p. 65) Mr. Mongan responded forcefully to questions by Justice Kavanaugh concluding that the government has not made a decision “that actually takes ownership of a discretionary choice to end this policy.” (p. 86) Justice Ginsburg highlighted this point concluding that the “From all of that, we don’t know how she [DHS] would respond if there was a clear recognition that there was nothing illegal about DACA. Her whole memo is infected by the idea that this is, one, illegal. It leaves substantial doubt about its illegality.” (p. 88) Justice Breyer also questioned whether the “reasons” by DHS were reasons at all. Justice Sotomayor reminded the parties and the Court about the human stakes of DACA “That this is not about the law; this is about our choice to destroy lives.” (p. 31)

Ultimately, how the Court rules may have nothing, little, or much to do about the oral arguments. However the Court rules, those with DACA should consider the option of renewal and be screened by an immigration lawyer for other possible durable relief under existing law. Finally, the importance of a long-term solution for those with DACA or DACA-like qualities is clear.

NOTE: I have studied the history of prosecutorial discretion and deferred action in particular for years, triggered by experiences filing deferred action requests nearly 20 years ago. You can read more about that and the implications of the DACA termination here: www.beyonddeportation.com Further, I run an immigrants’ rights clinic at Penn State Law in University Park. From the time DACA was announced in 2012, we have served a number of individuals and community members and developed a range of resources available here: https://pennstatelaw.psu.edu/immigration-time-of-trump#DACA/DAP

Supreme Court Hears Arguments in DACA Case

Tomorrow, the Supreme Court will be hearing oral arguments on Department of Homeland Security, et al., v. Regents of the University of California, et al., a case challenging the Trump Administration’s decision to wind down the Deferred Action for Childhood Arrivals (“DACA”) program. United We Dream (“UWD”), joined by fifty organizations, including social service and advocacy organizations that work with DACA applicants and beneficiaries, filed an amicus brief in support of the respondents. First announced by President Obama in 2012, the DACA program allows certain individuals who entered the United States as minors to receive two-year, renewable deferred action from deportation and apply for certain essential benefits, such as work authorizations, Social Security numbers, bank accounts, and driver’s licenses, and—depending on the state—seek certain scholarships, financial aid, and occupational licenses. On September 5, 2017, then-Attorney General Jeff Sessions announced that the DACA program would be terminating, cruelly forcing the lives of some eight hundred thousand young immigrants—and the communities they support—into uncertainty.

Most DACA recipients arrived in the United States when they were just six years old or younger—indeed, nearly a quarter of DACA recipients were under the age of three—and two-thirds of DACA recipients no longer have any close family members in the country of their birth. For these promising young people, the United States is the only home they have ever known. They’ve grown up here, gone to school here, played sports here, and built families here. Despite these deep and longstanding ties to the United States, before DACA, many of these young immigrants who arrived in the country as children struggled to survive due to their undocumented status—often living in constant fear of deportation.

DACA was life-changing for these young people. According to one survey, after receiving deferred action, nearly 60% of DACA recipients—approximately 400,000 individuals—entered the American workforce for the first time. And about 71% of DACA recipients also pursued educational opportunities previously foreclosed to them. Altogether, 96% of DACA recipients are employed or enrolled in an educational program. Their greater educational attainment and better jobs have translated into increased financial independence—which has been crucial not only for supporting their families and social networks, but also for contributing to broader economic growth. One 2019 study found that DACA recipients and their households hold a combined annual spending power of $24.1 billion. Seventy-nine percent reported that their increased earnings have helped them become financially independent. For so many, DACA opened a world of financial independence and opportunity that was once inaccessible.

When freed from the fear of looming deportation and able to work legally, DACA recipients work harder, are more productive, and earn more. Overall, DACA recipients’ salaries doubled on average—from an annual salary of $21,012 (pre-DACA) to $42,132 (post-DACA). For DACA beneficiaries who completed licensing programs—in fields such as nursing, dentistry, and construction—the earnings boost is even more profound. For 68% of individuals in these programs, their salaries more than doubled from as little as $5 to more than $14 an hour. As a result, one of the most dramatic effects of DACA is to catapult low-income individuals with great potential into higher-skilled, higher-earning jobs. In short, DACA facilitates the American Dream.

These higher wages also increase tax revenues at all levels of government. Employers automatically deduct payroll taxes from DACA recipients’ paychecks—even though those individuals are ineligible for many of the social programs supported by these taxes. One report estimated that DACA recipients and their households pay a combined $8.8 billion in federal, State, and local taxes annually. Another study estimates that tax revenue for Social Security and Medicare alone would decrease by $39.3 billion over a decade if the contributions of DACA-eligible individuals were lost. And, even under a conservative estimate, the combined economic costs and fiscal impact of deporting DACA recipients amount to an eye-popping $283 billion over a decade. Other estimates are even higher. This substantial body of empirical data is borne out by the representative stories of the DACA recipients described the United We Dream’s amicus brief.

DACA was a promise made by our government to eligible young people. The realization of that promise unleashed tremendous personal, social, and economic opportunities for DACA recipients, and it established a foundation upon which many American communities now rely. The fate of these hundreds of thousands of DACA recipients and DACA eligible individuals will be debated and decided in this Supreme Court term. Over 80% of Americans think that these individuals should be given a path to citizenship. This Administration’s attempt to break faith with DREAMers is just another manifestation of its cruel, self-destructive immigration policies.

Related: Immigration law expert Shoba Sivaprasad Wadhia offers her quick analysis of the oral arguments. 

Welcome Developments on Limiting Non-Compete Agreements

A growing consensus leads to new state laws, a possible FTC rulemaking, and a strong bipartisan Senate bill. 

There is a growing bipartisan consensus that non-compete agreements harm workers and the economy. This bipartisanship scarcely seemed possible back in 2015 when we were government lawyers coordinating investigations by the Offices of the Illinois and New York Attorneys General into Jimmy John’s use of non-compete agreements for sandwich makers and delivery drivers. But earlier this month, in what seems like the first bipartisan federal effort in far too long, Senators Todd Young (R-Ind.) and Chris Murphy (D-Conn.) introduced a bipartisan bill that would effectively stop the abuse of non-compete agreements. This builds on a year in which six state legislatures also passed significant non-compete reforms. 

The growing use of non-compete agreements

Employer use of non-compete agreements has mushroomed in recent years. These agreements prevent people from working for their former employer’s competitors, and they were once used sparingly to prevent, for example, executives with trade secrets or confidential business information from sharing them with new employers. Now, they’re often used indiscriminately to chill job mobility for employees with no access to such information.  A 2015 study found that 40% of Americans have had a non-compete agreement at some point in their career. As lawyers, we’ve worked on cases involving non-compete agreements used for janitors, receptionists, customer service workers, fledgling journalists, even employees of a day care center.  

Why are non-compete agreements so bad? They fly in the face of our fundamental American belief that anyone can work hard, gain skills, and move on to a better opportunity to build a better life. Non-compete agreements can trap workers in jobs they want to leave—whether because of sexual harassment or other poor working conditions, or even just a bad boss. They limit the talent pool, preventing employers from hiring the best worker for the job. Non-compete agreements can also stifle economic dynamism, blocking people from starting their own businesses. 

Workers’ inability to leave their jobs because of non-compete agreements and similar limitations has also contributed to the wage stagnation of recent decades. Two studies released just last month found that non-compete agreements adversely affected wages and job mobility. This makes sense, given that the agreements erode the leverage that workers typically get from the threat of leaving their jobs to work elsewhere. That threat is now empty for millions of Americans subject to these provisions, showing that non-compete agreements aren’t really about trade secrets anymore. They’re about limiting workers’ bargaining power.

A new Senate bill could restore bargaining power

The new Senate bill, the Workforce Mobility Act of 2019, is notably robust, and should attract bipartisan support, from legislators motivated by concerns about economic liberty and entrepreneurialism as well as those focused on job quality and workers’ rights. The bill contains the following key provisions: 

  • Prohibition of non-compete agreements: The bill would prohibit use of non-compete agreements in almost all situations. The bill also declares that non-compete agreements are unenforceable. (While the bill does not explicitly address whether non-compete agreements already entered into would be automatically rendered unenforceable on the effective date, the plain language suggests that they would not be grandparented in.)
  • Limited exceptions: The bill contains limited exceptions that in our view are minimal and sensible, allowing for use of non-compete agreements with regard to owners and senior executives in the sale of a business.  
  • Trade secrets: The bill explicitly permits employers to protect trade secrets by requiring workers to sign more limited agreements not to disclose such secrets.  
  • Enforcement: If enacted, the law against non-compete agreements would be enforced collaboratively by both the Federal Trade Commission (FTC) and the United States Department of Labor (DOL). The bill also provides for civil fines of $5,000 per week of violation, and creates a private right of action, with damages and attorneys’ fees available for successful lawsuits. 
  • Public education and outreach: Given the lack of knowledge of many workers about workplace rights, the bill sensibly contains outreach and public education provisions, requiring employers to post a notice and also requiring the Labor Secretary to conduct outreach specifically on this issue. 
  • Regulations: The bill would allow the Labor Secretary to promulgate regulations.
  • Reporting: The bill requires a report from the two enforcement agencies one year after the Labor Secretary issues regulations. 

Other efforts to curb non-compete agreements

This strong bill comes in the context of many other efforts to curb non-compete agreements. At the federal level, the FTC is reviewing a petition submitted by the Open Markets Institute along with numerous labor groups and law professors, seeking a rule prohibiting non-compete agreements; a group of senators also urged the FTC to take this action. The FTC appears to be seriously considering the petition. Although last month in congressional testimony, FTC Chairman Joseph Simons said his team “couldn’t find enough existing economic literature to justify a rulemaking,” he also noted that the Commission would continue to examine the issue. 

Meanwhile, in the past several years, over 10 states have passed laws limiting employers’ ability to impose non-compete agreements on their employees. Many of these laws, including those reforms passed in Illinois, Maine, Maryland, Massachusetts, New Hampshire, Oregon, Rhode Island, and Washington, ban non-compete agreements or make them unenforceable for some or most workers in the state based on their income. States like Illinois exclude only low-wage workers while others, like Washington, bar non-compete agreements for any worker earning up to $100,000 annually. Other states have recently limited use of non-compete agreements for certain professions such as physicians (like in Florida), broadcasters (like in Utah), and home health care aides (like in Connecticut). State reforms also vary in terms of whether they specify a time limit for the duration of non-compete agreements and whether an employer has to pay money to workers while a non-compete agreement is in effect.  

In addition, some states have other types of limitations for non-compete agreements. They’ve long been unenforceable in California; also, in most states, even without a statute on point, courts will generally only uphold a non-compete agreement if it protects an employer’s legitimate business interest and is reasonably limited in duration and geographic scope. The issue, of course, is that non-compete agreements are rarely reviewed by courts so this case-by-case approach is insufficient.

State and federal policy recommendations

At the federal level, the Senate bill and FTC petition are both positive developments that have the potential to address the abuse of non-compete agreements in a nationwide and holistic way that addresses both their individual and market harms. 

Meanwhile, more states can and should continue to act on this issue. Indeed, a bill was just introduced in the District of Columbia to ban non-compete agreements for individuals paid below $87,654 (3 times D.C.’s minimum wage). Here are some important considerations as policymakers consider their options: 

  • Non-compete agreements should be prohibited, not just unenforceable. This distinction is important, because if they are unenforceable, this just means that they won’t be upheld if they are challenged in court.  But most non-compete agreements never make it to court: workers assume they are valid or, even if they suspect the non-compete is too broad, most workers can’t afford to take on the risk and expense of possible litigation. This results in a chilling effect, as workers stay in their jobs regardless of the actual legality of their non-compete agreement.  It also fails to disincentivize employers from using overly broad non-compete agreements; the worst that can happen is that the provision would be found invalid. 
  • For this same reason, there should be penalties available for employers that include illegal or unenforceable non-compete agreements in their employment contracts.  
  • Non-compete agreements should be prohibited ideally for all workers, or for the vast majority of workers. Some states have limited the prohibition only for very low-wage workers. This approach does not address the larger impact on job mobility and competition, as well as basic fairness, as we have previously written. Non-compete agreements should also be prohibited for independent contractors and interns, as states like Washington have done.
  • Given limited public enforcement resources, laws should include a private right of action with attorneys’ fees. Legislators concerned about excessive litigation should note that this is not a complex topic and should be easy for employers to comply with: all they have to do is not include a non-compete agreement in their employment contracts. 
  • States that do decide to permit non-compete agreements for certain categories of workers or in certain circumstances, should consider:  
    • Adopting a relatively high, and also very clear, income cutoff below which employees cannot be subject to a non-compete agreement. This kind of bright-line rule is much more administrable for employers, workers, and enforcers, and leads to less litigation. 
    • Specifying that non-compete agreements must be clearly and fully disclosed to workers at the time a job offer is made, not after a job is accepted or after work has begun. 
    • Requiring, as Washington does, that employers pay workers a mandatory set amount (a reasonable percentage of their salary) during the time any non-compete agreement is in effect. This type of payment, known as “garden leave,” serves two important purposes: it provides income to a worker whose earnings are limited or nonexistent because of a non-compete agreement, and it creates a disincentive for employers to include such terms in their contracts, causing them to actually consider whether a non-compete agreement is truly needed to protect business interests. 
    • Clarifying that all non-compete agreements must still conform to that state’s case law, used only to protect a legitimate business interest, and reasonable in terms of duration and geographic scope.   

Whether the new federal proposals gain traction or the states continue to lead on non-compete agreements, it’s good to see that there are still some issues so fundamental to our economic well-being that policymakers can find allies across the aisle.

RELATED: Read Jane Flanagan's issue brief about how the federal government and states have been combating the overuse of non-competes.