a cooling cap for cancer patients

This is another post not related to a legal case, but it is related to cancer, a subject very close to my heart. MSNBC.com reported today on US studies on letting cancer patients undergoing chemotherapy wear cold caps in an effort to keep their hair. See http://www.msnbc.msn.com/id/40718154/ns/health-womens_health/

The cap works by cooling the scalp to constrict the vessels and limit the amount of chemotherapy the cells can absorb. It is genius. I think this is an amazing step forward in patient-care. When my mom was sick, she did not want to look sick -- here was a woman who never wore makeup, never painted her nails, and usually wore the same clothes day in and day out. She didn't want to lose her hair. She didn't want to be bald and have that "sick" look. We all know what it is -- as soon as you see someone without hair or with a scarf on her head or always wearing a hat, your attitude changes. For some people, it's that they don't want to look at the person because it scares them or grosses them out, for others, it's that they can't stop staring because the person looks so out of the ordinary. I know for me, I cannot look at someone who is undergoing chemotherapy without crying from the loss of my mom. In addition to how outsiders see the patient, letting a patient keep her hair helps a patient keep up the fight of her life. If you look sick, it's hard to remember being healthy; but, if you have just some touches of what you used to look like, it's a lot easier to remember and to fight to be healthy again. This cooling hat is an amazing and necessary gift in the fight against cancer.

Kudos to Southwest Airlines!

This is not a legally-related post, but . . .

This past weekend, I went to Philly to visit my fiance, and after we had been flying for quite a long time on the return trip, the pilot announced we were no longer going to Nashville, but we were landing in Dallas. The Nashville airport was down to one runway and eventually closed. Southwest Airlines did an amazing job of getting all of us Nashville-bound passengers on flights, and they covered hotel rooms for us even though it was weather-related! Moreover, when Southwest's agents booked me last night for flights this morning, they had me arriving at Nashville at 5 pm -- due to some really helpful agents in Dallas, San Antonio, and Houston (yes, I was in all three airports this morning), I got back to Nashville before 2 pm. I'm amazed~ Three Cheers for Southwest Airlines!

Poverty Issues in Nashville

Nashville, the city I love and call home, is having real issues with poverty. In his Tennessean article today, Michael Cass cites that the poverty rate in Nashville rose from 13% in 2000 to 16.9% in 2009. The poverty rate for children under age 5 is 34.4%. That is astounding -- over one-third of the children under age 5 live in poverty in Nashville, Tennessee. Between September 2009 and September 2010, the number of people receiving food stamps increased by 11.25%. In addition, over 13, 000 families in Davidson County live on an income of less than $15,000 a year. The "experts," whoever they may be, are saying this increased poverty rate are due to the economic recession (and the loss of non-knowledge-based jobs) and May's flood. The article also hints that the 33,000 foreign-born residents gained in 10 years may also be contributing to the poverty rate.

When I see these statistics, my heart hurts with the incredible loss of potential I see in Nashville. I think about the children who are waiting lists to get into Preston Taylor Ministries's after-school program. (PTM serves families living in the Preston Taylor public housing neighborhood north of Charlotte Ave.) These children want to succeed, and their parents want them to succeed, but the realistic (and fiscally-responsible) economic limits on programs like PTM leave them without help. I think about my friend who is struggling to find a job teaching English as a second language to adults (she was laid off this month), and how she could be a key to helping some of these families escape the poverty cycle. The people she meets are from Africa's war-torn countries, the Middle East, and Asia -- they have skills, they just need the language. These are courageous people who have left all they've known to come to America, the proverbial land of opportunity, and they are shoehorned into low-paying jobs because they don't know English. I think about the people who criticize TennCare programs as being too generous, and I want to introduce them to these children who literally would never see a doctor without TennCare's benefits.

When the flood hit Nashville in May, the city pulled together to help those in need. The crisis isn't over -- this city needs to continue pulling together to help the increasing number of people in financial peril and create options for success.

News Out of Alaska

Ahh, so one of my very close friends lives in Alaska, and I am always on the look out for stories about where she is. Just this past Friday, the federal government proposed listing the ringed seals found in Arctic Basin and the North Atlantic and the bearded seals in the Pacific Ocean as endangered species. The government reasons that these creatures depend on sea ice, and because of the increase of global temperatures, their habitats are disappearing. This is a huge decision, and it is one of importance for the arctic animals. Brendan Cummings, an attorney with the Center for Biological Diversity, said his client was pleased that the National Oceanic and Atmospheric Administration "is following the science and the law in recognizing the realizing of what global warming is doing to the Arctic and its species."

As a former geology student, a bleeding-heart liberal raised by an environmental scientist, and a lover of all things arctic, I am singing at this proposal, and I hope it is approved. If the ringed and bearded seals are added, then there are more avenues for bringing major environmentally-based lawsuits. We need to protect this earth.

Link and Excerpts from the Sixth Circuit Decision

OUCH! The Sixth Circuit really nails Judge Haynes:

http://www.ca6.uscourts.gov/opinions.pdf/10a0363p-06.pdf

Relevant portion of the opinion:

Defendants request that this case be reassigned to another judge. We grant the

request.

A number of aspects of this case inform our decision. First, the appearance of

justice is compromised. The district court’s view of the history of this litigation, as

outlined in the order from which defendants appeal, reflects a fundamental

misunderstanding of the import of certain key events in the case. Although the issues

raised by the motion to vacate the consent decree have nothing to do with defendants’

compliance or noncompliance with it, the district court thought it important to recount its version of the compliance history in great detail. It quotes at length from the decree itself, Judge Nixon’s 2001 order finding noncompliance, and Judge Nixon’s October

2004 order finding noncompliance. It also relies on Judge Nixon’s comments regarding

compliance in his February 2006 recusal order. Yet nowhere does the court mention that

Judge Nixon subsequently set aside the October 2004 order, that the parties jointly

requested that the order be set aside, that the findings and conclusions of that order had

been placed in jeopardy by the issues concerning ex parte communication by the court

with the special master (communication that arguably formed a basis for the order), or

that no ruling on plaintiffs’ 2004 motion for further relief has ever been made.

Additionally, the order reflects no recognition that, despite an effort at disclaimer, Judge

Nixon’s comments about compliance in the recusal order were largely a restatement of

his views expressed in the order that had been set aside. Instead, the district court’s

order simply treats the findings of the October 2004 order as unquestioned fact. The

district court also quotes at length from the report of the monitors it appointed. Although

this report has never acquired any evidentiary status in the case, has never been found

accurate, and has never been subjected to any adversarial process, and although

defendants’ objections to it remain pending, the report too is treated as unquestioned

fact. Even more seriously, the historical recitation regarding compliance is not included

merely as background. The court uses it as a part of its analysis of why plaintiffs have

privately enforceable claims under § 1396a(a)(43). For example, the court notes that

“[p]laintiffs’ outreach claims under Section 1396a(a)(43) are enforceable because more

than half of the 500,000 plus class members have been effectively denied outreach

services rendering their rights to EPSDT service worthless.” John B., 661 F. Supp.2d at

893 (M.D. Tenn. 2009). The opinion also contains a number of other inaccuracies

relating to defendants’ perceived lack of cooperation with the court, including its

references to defendants’ failure to prepare the IWP or IAP and defendants’ failure to

respond to the remedial plan prepared by the special master and attached by Judge Nixon

to the October 2004 order.

Beyond the order from which defendants now appeal, the orders issued by the

district court relating to discovery contain increasingly accusatory language directed atthe defendants. While discovery orders often require that a court make findings about a party’s cooperation or lack of cooperation during the discovery process and may

involve imposition of sanctions, such orders should issue in an atmosphere where all

parties are assured that the court has not formed preconceived opinions detrimental to

either side. The district court’s skewed view of the actual state of the record with regard

to defendants’ noncompliance with the consent decree creates an appearance that its

judgment could be flawed with respect to defendants’ compliance with discovery.

Second, the history of the case reveals an alarming lack of timely progress

toward resolving plaintiffs’ August 2004 motion for further relief and no progress at all

toward the ultimate resolution of this case filed in 1998. Defendants’ November 2006

motion to vacate the consent decree had been pending almost three years before a ruling.

Meanwhile, extensive discovery with no predictable conclusion has been ongoing, and

discovery skirmishes have consumed the district court’s time. The overall picture is one

of a case without direction or deadlines for resolution of primary issues. We are quite

aware that defense counsel have pursued a strategy of contention that contributessubstantially to the complexity of this litigation and creates challenges for the court. At the same time, complexity has in recent years also been a product of the scope of

discovery sought by plaintiffs and permitted by the district court. And responsibility for

moving a case forward lies primarily with the presiding judicial officer, rather than the

parties.

Third, we have found it necessary to intervene in the case to an unusual extent.

In June 2008, we granted a partial writ of mandamus—an extraordinary remedy required

to curb discovery extraordinary in its intrusiveness. The ruling on the motion to vacate

occurred only after another petition for writ of mandamus produced a directive to the

district court to respond as to why the writ should not be granted. And in February of

this year, we stayed all proceedings in the district court pending resolution of this appeal,

following more discovery disputes and unproductive turmoil in the district court.

In reassigning this case, we are mindful that such reassignments are rare and

should be made reluctantly. Solomon v. United States, 467 F.3d 928, 935 (6th Cir.2006). And we recognize the factors that govern whether such a request should be

granted: “(1)whether the original judge would reasonably be expected to have substantial

difficulty in putting out of his or her mind previously expressed views or findings,

(2) whether reassignment is advisable to preserve the appearance of justice, and

(3) whether reassignment would entail waste and duplication out of proportion to any

gain in preserving the appearance of fairness.” Id.

The first factor may well favor reassignment, given that the district court appears

to have held its misconceptions about the record for some time, but the second factor

quite clearly supports reassignment. And the case management difficulties we have

previously noted mean that a reassignment could hardly result in waste and duplication

that outweigh any gain. In fact, reassignment provides an opportunity to reduce waste

and move the case toward definitive resolution of the primary issues, as well as to

enhance the appearance of fairness.

We are mindful that as appellate judges, we cannot manage litigation as trial

judges do. But despite our recognition of our role, there are occasions when we must

intervene. The plaintiff class is certainly not benefitting from the pace of this litigation.

Nor are the taxpayers of the State of Tennessee, who have borne the costs of a special

master, monitors, implementation of the consent decree, attorneys’ fees for plaintiffs,

and fees and expenses of defense counsel. Public-interest concerns are present for all

parties. This situation combines serious management failures, fundamental misunderstandings that potentially prejudice defendants, and a developing adversarial relationship between the judge and the defendants. Here, the unusual decision to

reassign the case is justified.

We direct that the case be reassigned promptly to a judicial officer who can give

it the attention it requires. We are aware of a vacancy in the district court. If the need

to reassign the case within the district poses a hardship, the chief judge of the district

court may ask the chief judge of our court to make an appropriate designation. Upon

reassignment, the new judge should undertake to resolve the issues identified by this

opinion and also develop a schedule for determining any further relief to which theplaintiffs are entitled. Of necessity, the latter determination will require a review of the scope of current discovery and likely an insistence that the parties make choices about

discovery priorities in order to meet the court’s deadlines. Going forward, resolution of

key issues should govern progress in the case.

Sixth Circuit Ends the Antics of the District Judge

As I think I mentioned before, I am working with a professor at Vanderbilt on a project centered on TennCare (Tennessee's Medicaid program). We are currently writing an article we hope to have published in a law review journal. In this article, we describe the events of TennCare, from the environment before it was created to the current time. In the midst of its twenty-year history, it has been plagued by on-going lawsuits between enrollees and the State. In this morning's Tennessean (the Nashville newspaper), Anita Wadhwani, who I met several days ago, broke the news that the Sixth Circuit has ordered Judge Haynes, the local federal district judge, off of the John B. case. (see http://www.tennessean.com/article/20101203/NEWS01/12030342/TennCare+judge+ordered+off+case+over+delays++language for her article). The State brought the claim that Judge Haynes was biased against them (and the article points out that this seems to be the strategy of choice for the large law firm representing the State) in this particular lawsuit dealing with medicaid coverage for children. After review, the Sixth Circuit wrote that the "appearance of justice [has been] compromised" by Judge Haynes, in part because of the "increasingly accusatory language" he used towards the State lawyers. In addition, the order described the TennCare case as one of "unproductive turmoil" and "without direction or deadlines for resolution of primary issues." Ouch.

Strangely, Haynes is already the second judge on this case: the first judge, Judge John Nixon recused himself after State attorneys alleged he had improper communications about the case outside of the courtroom. The other two remaining judges in the Middle District of Tennessee have already cited conflicts of interest with the case, and they cannot serve as adjudicator.

From what I have learned in my research project, TennCare and all of its lawsuits are a veritable cess pool of different factions grousing and grappling for who they represent. The State has to be concerned with the big picture: all of the State's citizens, all the the State's uninsured, and the money. The Enrollees' attorneys tend to focus on the extremes of the TennCare population, and they seem to expect that money will come from somewhere. The providers seek payment for their services, and such payment has so often been lacking. The insurance companies managing the health care process are looking at keeping their companies afloat and cutting costs while also providing people with healthcare. As we point out in the article we hope to publish, the different factions are repeatedly talking past one another and reacting in knee-jerk fashion to their perceptions of what the other parties are doing. Such a method is not wise for sustainability.

Thoughts on Executions

I realize I've been writing a lot about the death penalty and executions recently. I admit that I find the idea of a government executing someone to be a peculiar idea. In effect, the person has been judged to have been such a horrific person that he or she must be eliminated from this earth as punishment. Despite my fascination with the death penalty, I strangely do not have an opinion on it. I cannot say whether it is right or whether it is wrong. I know that the majority of the people in Tennessee, where I live, believe strongly in the death penalty. I know other states' populations do not. I know various countries across the world take their stances on the spectrum of approval and disapproval.

It seems that the death penalty is viewed by the public as punishment for past deeds, prevention of future bad deeds, and a way of compensating the remaining victims. In fact, direct to that last point, a family member of the victims of one of the Tennessee inmates scheduled for execution lamented about the delay of West's execution (it was delayed within 30 hours of the actual time set for the execution). He talked about how West had an initial trial and multiple appeals -- the relative was ready for the execution and for vengeance (made evident by the call for a death penalty two times over).

I do not believe the death penalty is an appropriate punishment for wrong-doing in most cases. To begin with, if our society is going to have the death penalty, I believe it needs to be saved for the most egregious cases. While that is what the statutes calls for, the death penalty is no longer saved for those egegrious cases, rather, it seems to be thrown around as an option in the midst of public furor. It is almost like it is a form of judicially-backed and -driven media hype. In addition, if the death penalty is going to serve as a punishment, then we had better be damn sure that the person committed the crime with the requisite intent to where the State is going to be responsible for permanently removing this person from society. I believe in the power of transformation, and I do not believe in issuing such a permanent damnation that eliminates the ability for such transformation. In addition, given that falliable people are the ones determining guilt and innocence and then the death penalty, I find the punishment to be too great where there are so many weak links in the chain leading to death.

As for the argument that the death penalty deters future crime, I think it is prudent to divide this argument into deterrent for the actual defendent and deterrent for potential defendents. Looking at the actual defendant, I see no added value from the dealth penalty that life in prison without the opportunity for parole would not have. If prisons truly work to reduce crime, then locking someone up for the rest of his or her life, should deter him or her from committing other crimes. The added punishment of death would not multiple the deterrent effect. Looking at defendants in general, and without any current research done on this, I'm inclined to say that the majority of the men and women on death row did not contemplate getting the death penalty when they acted. Rather, they acted without thoughts to the judicial consequences of their actions. I have no idea how many defendants chose to perpetrate their crimes of choice another way because of the death penalty, and I have a feeling that information will never be available for study.

I have no belief that the families of a victim will receive any sort of relief or closure from an execution. An execution only extends the chain of misery and dispair. It does not have ability to heal. It cannot -- it exists only because of anger and hurt. Again, I believe in the power of transformation, and I do not think such transformation can come from ending another's life. All too often, people pull out the Old Testament as support for their crusade to execute. I find that argument outdated and out of sync with the other positions those advocates take on other subjects.

With all of that said, I have worked on death penalty cases, and I believe in upholding the law, as it has been written. In Tennesssee, we have the death penalty for certain egregious cases. A jury of the defendant's peers found him or her guilty, and that same jury voted unanimously to apply the death penalty. Those findings by the jury carry signficant weight, and they are enough for me to work within the system created.

Update on Executions

As a follow-up to the posting about the recent Chancery Court decision involving the constitutionality of the State's execution methods, the Tennessee Supreme Court today issued four stays of execution for defendants Stephen Michael West, Billy Ray Irick, Edmund Zagorski, and Edward Jerome Harbison. Soon after the Chancery Court ruling was announced, the State filed a response that it had changed its execution policies to determined whether an inmate was rendered unconscious. The Courts deemed this insufficient, and it granted stays of execution while the defendants' attorneys present arguments or evidence to the trial court about the revised protocol. The trial court has been ordered to issue its decision within ninety days.

Coincidentally, this follows on the footsteps of Justice John Paul Stevens speaking out in a very public way about the decisions he helped create while on the US Supreme Court. He is known for speaking out against the death penalty, saying the Supreme Court's decisions had "dismantled death-penalty safeguards," which created a judicial system that is "shot through with racism, skewed toward conviction, infected with politics, and tinged with hysteria."

Let's see how this plays out . . . unfortunately, a man's life is on the line.

Additional pictures of the author and her scribes . . .

Ella, the author, on her flying carpet. She spends a lot of time chewing over ideas while on this carpet.

Caesar is head of security. He is extremely interested in criminal justice issues. His motto is "bite first, apologize later."

Silas is the local Reformed Druid high priest. He enjoys sleeping, performing ceremonies under oak trees, and running to the neighbor's house. Silas's legal interests include the first amendment and immigration law.

Buddy is the newest member to the writing team. He is fluent in Mandarin and Taiwanese, and he is very interested in immigration law.

Milo is the chief scribe. As you can see in this picture, he was getting ready to type out a post. He enjoys eating chicken jerky and bird-watching. He is a local hunter of mice, and he supports all second amendment rights (much to our chagrin). Milo is also a vocal advocate for nearly every issue, and he practices his oral argument skills at every chance he gets.

Stay of execution in Tennessee -- Ruling on the Lethal Injection Process

Chancellor Claudia Bonnyman ruled on Friday that Tennessee's lethal injection protocol was unconstitutional. This is a huge ruling because it will ultimately delay two scheduled executions. Stephen Michael West was scheduled to be executed November 30, and Billy Ray Irick, who joined the case as a plaintiff, had his execution scheduled for December 7 (Pearl Harbor Day). Because of the ruling, a stay of execution was issued, and those executions may not be held on those days unless all appeals have been exhausted. At this point, the State will appeal, and it has 30 days to do so. Chancellor Bonnyman reasoned that the level of sodium thiopental, which causes unconsciousness, was insufficient and that the inmate was effectively suffocating to death while being conscious. She found that effect to violate the inmate's constitutional rights. Stay tuned . . .

For Tennessean article, see http://www.tennessean.com/article/20101120/NEWS03/11200332/2066

Inspiration for Serving Others

I've been reading Edward Kennedy's True Compass, which I highly recommend, and I was struck by the following passage, in which he describes the impact of his faith on his public role:

My own center of belief, as I matured and grew curious about these things, moved toward the great Gospel of Matthew, chapter 25 especially, in which he calls us to care for the least of these among us, and feed the hungry, clothe the naked, give drink to the thirsty, welcome the strange, visit the imprisoned. It's enormously significant to me that the only description in the Bible about salvation is tied to one's willingness to act on behalf of one's fellow human beings. the ones who will be deprived of salvation -- the sinners -- are those who've turned away from their fellow man. People responsive to the great human condition, and who've tried to alleviate its misery -- these will be the ones who join Christ in Paradise.

To me, this perspective on my faith has almost literally been a life-saver. It has given me strength and purpose during the greatest challenges I have faced, the roughest roads I've traveled.

I found that passage to be inspiring in my quest to serve others. So often, as life gets going, and task-lists grow by the hour, I tend to forget that I'm here to serve others. I pray that I am able to devote my life to serving others, as I have been called to do.

Exciting Run-In with U.S. Supreme Court Justice Stephen Breyer

Well, I haven't been posting recently because I started a new job at the end of August 2010. I left private practice, and I joined a professor at Vanderbilt to help create a massive health care archive and case study. We have been giving presentations and trying to find funding for our project (I hope some comes soon!). So far, the response has been extremely positive, but we just need some real commitment in the form of money.

While in a meeting in the faculty lounge at Vanderbilt's Law School today, none other than U.S. Supreme Court Justice Stephen Breyer walked in! Of course, I had to leave the room so he could take a picture with a student, but I was within 10-12 feet of him. Amazing! He actually taught a class and gave a lecture, but seats to the lecture were by ticket only, and I certainly did not merit a ticket.

Clothing for the Courtroom

Today, Christina Brinkley posted an article on the Wall Street Journal's website about the proper clothing for court. See http://online.wsj.com/article/SB10001424052748704554104575435683853964588.html?mod=WSJ_WSJ_US_News_6#articleTabs%3Darticle. In this article, she interviews judges and attorneys and makes her own observations about the proper attire for court. I know this has been a recent issue for the courts in Davidson County, Tennessee. The courts have instituted a dress code policy, and I have witnessed it being enforced. (In fact, one of the defendants I was in court representing was told to go home to put on long pants because he arrived in shorts.) The dress code for the Criminal Court is as follows:

Criminal Court of Davidson County

, Division III

Dress Code Policy

All individuals entering the courtroom shall be dressed appropriately, clean and neat. Dress, which is disturbing and distracting in court is inappropriate. Clothes and appearance must be safe and not disruptive to the judicial process. Remember you are appearing in a court of law.

1. Skirts, skorts, and shorts must reach and extend below the fingertip.

2. All pants must be worn at waist. No sagging or low riding.

3. Undershirts and tank tops, if worn, must be worn with another “cover-up”shirt. Shoulders, backs, chests, and midriffs must be covered.

4. No see-through type or suggestive clothing is to be worn. Undergarments may not be visible.

5. All shirts, with the exception of sweaters, sweatshirts, or vests must be tucked into pants, skirts, or shorts, including athletic jerseys.

6. Appropriate footwear must be worn at all times. No flip-flops or house shoes permitted.

7. Inappropriate head coverings such as bandanas, scarves, sweatbands, hats/caps, do-rags, or hairnets are not to be worn or seen. Hoods on lightweight garments or sweatshirts may not be pulled over the head. Sunglasses shall be removed in court.

8. Clothing that advertises substances (drugs, alcohol, tobacco products) or language or writing that is otherwise inappropriate or offensive (sex, profanity, racial or ethnic slurs, gang-related attire, etc.) may not be worn. Tattoos that display drugs, sex, alcohol, or tobacco products must not be seen at anytime.

9. Clothing that is intentionally torn in inappropriate places is prohibited.

10. For security reasons, chains, spiked accessories, and oversized jewelry are not permissible.

The Court reserves the right to modify this policy as necessary and reserve the right to determine what might be disruptive and unsafe.

If you are dressed in violation of this policy, you will not be permitted in the Division III courtroom or will be requested to leave.

(see http://ccc.nashville.gov/portal/page/portal/ccc/divThreeCourtProcedures/div3DressCode)

I think it is a reflection of the casual nature of our times and the pervasive "I don't care about authority or anything else" attitude that is being reflected in the courtrooms by what people are wearing. A courtroom is probably one of the most formal settings where most of these people will ever be. It is a shame to think that both attorneys, witnesses, and parties to cases think they can appear so casually. Now, I admit that I eschew wearing a suit jacket whenever I can . . . I feel very constricted in them, most of the time they don't fit me properly because I'm six feet tall, etc. However, I know that I need to wear a jacket when I go to court. It's part of the rules to play the "going to court game." I hope that the judges begin taking back the serious nature of their courtrooms and enforcing dress codes for everyone involved. It's one of those things like when you were a kid: if you have to get dressed up, you know it matters. That is the case with court, and we all need to be dressing for the part.

Inspiring Quotes from CRY, THE BELOVED COUNTRY

I am currently reading Cry, the Beloved Country by Alan Paton, and I find it to be full of amazing writing and focusing on an amazing story. The novel's storyline is set in South Africa, and it follows the murder of a man who was working towards confronting the racial and societal issues facing South Africa. The man who was murdered was white, and the man who murdered him was a native. The story is told from various points of view, including essays by the man who was murdered, and this framework of telling the story permits the reader to see the individual struggles of those involved. The book really exposes the struggle and the intense emotion of the family members and of South Africa over this racially-charged death. Additionally, Paton wrote the novel using the diction of South Africans at that time, and so the reader is immediately transported to another land through their colloquial sayings and typical responses.

While reading books, I often mark passages of extremely inspiring writing or passages of such well-crafted phrases that they make my skin tingle. Here are a couple of those passages, and to give context, they are found in an essay written by the murdered man, and the essay discusses the creating of segregation and the blame the white man bore for destroying a way of life:

"Our civilization has therefore an inescapable duty to set up another system of order and tradition and convention."

I love the phrase "an inescapable duty" -- the word "inescapable" really nails down how strong the "duty" is. It is such a call to action, and it so clearly places blame on a party. The "author" of this passage is built to have a large Abraham Lincoln collection, and I can easily see this phrase coming from Lincoln, and in a later time (post-publication date), from Martin Luther King, Jr.

"But we never did it thoroughly or honestly. We set aside one-tenth of the land for four-fifths of the people. Thus we made it inevitable, and some say we did it knowingly, that labour would come to the towns. We are caught in the toils of our selfishness."

In this passage, I love the reference to the criminal mens rea of "knowingly" -- it accurately conveys that there was a thought process behind the destruction of a way of life to accomodate the establishment of a new dominant society and ruling class. Moreover, the phrase "caught in the toils of our selfishness" so precisely defines the life-and-death problems facing the South Africans at that time.

Giving Up the Big Bucks to Help the Little Guy

Check out this article in The New York Times: http://www.nytimes.com/2010/08/20/us/20defer.html?_r=3&th&emc=th

The article discusses how law students who had taken offers from large, high-paying firms and who had taken a deferral for a year to work at a non-profit or in the public interest sector are sometimes choosing not to start at the large firm when they are called back there. This is really interesting, especially considering how much need there is for good legal work that real people can afford. I think this shows how having a degree from a top university does not necessarily require you to work the grueling hours at a top law firm, as is so often the image perpetuated by society and the career services departments. I think it also reflects the change in America to begin serving others again, to see ourselves as parts of a community, and to live humbly and within certain limitations to allow for a certain lifestyle.

Commentary Stemming from The New Yorker's "Letting Go" article by Atul Gawande

Taking up a public policy matter, I want to highlight Atul Gawande's recent article "Letting Go" in the August 2, 2010 edition of The New Yorker, one of my favorite publications. Gawande's article is written from a surgeon's point of view, and it discusses how Americans deal with the final stages of terminal diseases; specifically, it addresses the "fight until the bitter end" mentality versus the "let's make the most of what I've got" mentality. The article tends to focus on cancer patients, but its points are easily translatable to any terminal disease. The article highlights several different cases where the patients, their families, and their doctors struggle between constant attempts for curative treatments or palliative care.

The policy issue is whether to permit people who are in the final stages of diseases like cancer pursue expensive and sometimes highly-experimental treatments or to force them into hospice care for palliative treatment in order to lessen the financial burden to others. Obviously, a person cannot have his or her legal rights to further treatment taken without due process and the like (and the outcome of any suspension of rights even with due process is slim to none), but the questions really looks at the connection of financial liability through insurance and the extreme costs of these extreme measures. Discussing the costs of treating a disease like cancer, Gawande wrote, "There are high initial costs as the cancer is treated, and then, if all goes well, these costs taper off. . . . For a patient with a fatal version of the disease, though, the cost curve is U-shaped, rising again toward the end -- to an average of sixty-three thousand dollars during the last six months of life with an incurable breast cancer." Gawande continued, "Our medical system is excellent at trying to stave off death with eight-thousand-dollar-a-month chemotherapy, three-thousand-dollar-a-day intensive care, five-thousand-dollar-an-hour surgery. But, ultimately, death comes, and no one is good at knowing when to stop." Comparatively, hospice care is a drop in the bucket, and its goals of making the patient comfortable are achieved without hospital stays, with few machines, and with limited medications.

Obviously, those who say that there should be a limit on insurance coverage for the terminal patient are arguing with the idea of "why should I pay for your treatment just because you can't give up?" It sounds a little harsh, but given the immense cost of treating patients with terminal cancer, it is also fairly realistic that we all have limited resources. Of course, though, then you get into the murky land of who is going to make the decision that the patient has received enough treatment? That is where Sarah Palin's "death boards" would enter. In addition, if I have paid for you to be treated when you are terminally ill, why should I also not be guaranteed the right for all stops to be pulled out for me? At some point, people are going to feel cheated (much like the anticipated end for social security). In contrast to similar situations, like that of social security, this issue deals with people's dying loved ones. Family members get touchy when it comes to their loved ones' lives.

Tied tightly with the end of treatment is the feeling of "my doctor is sending me away to die in hospice." If you take away a patient's right for treatment until the very end, you take away the right of the patient to be treated by his or her doctor. When that bond is severed, patients often suffer. In addition, the doctor's right to make decisions in the best interest of his or her patient would be eliminated if the patient is terminal and at end-of-life. It seems the doctor would have to tell the patient to go to hospice because he is barred for financial reasons from helping his patient. That is not desirable in the least, and it violates a doctor's autonomy for treatment.

In addition, I think a strong argument against any limitation on treatment of those with end-stage cancers is the need to make medical and scientific progress. Saving someone's life is a legitimate medical goal, and being able to bring a terminal patient back to the side of the living is a worthy goal. We would not be able to approach that goal without having patients who want to push until the end and who are willing to undergo whatever medical treatment in order to stay alive. I think a slippery slope also develops of where to draw the line of someone qualifying to receive expensive therapy and someone not qualifying to receive medical therapy. Theoretically, with the ability to treat end-of-life patients, medicine might get to the point of pushing that line further and further back (much like the definition of a "viable fetus" in the abortion debate). Of course, in that situation, there wouldn't even be a line to begin with.

Getting back to the article, Gawande highlights new trial programs by Aetna where it permits patients who are at end-of-life to enter into hospice care but still receive radical treatments, if wanted. The insurance program took what was a "this OR that" and made it an "AND" program. It had immense success -- the enrollment in hospice increased from 26% to 70%. Costs decreased by a quarter. This program shows the fear that patients, their families, and doctors have about hospice and death. It shows that people are wanting to have the rest and comfort that hospice provides, but they do not want to feel defeated. It is an amazing compromise. Moreover, strangely enough, patients who go to hospice tend to live longer than those who stay in hospitals receiving intensive treatment, and their families find much more peace with the dying process.

Speaking from a personal perspective, I lost my mother in October 2009 from endometrial cancer. She was diagnosed in January 2009, and she was given 6 months to live from February, which was when she had her major surgery. She spent the vast amount of her time from February 2009 to October 2009 in a medical treatment facility. Part of the reason was that she had many complications and needed highly specialized nursing care. However, part of it was that she did not want to quit. I remember her sobbing in her hospital bed that she felt her oncologist was giving up on her when he recommended she think about hospice. She felt he was sending her off to die. She finally agreed to enter a hospice facility under the agreement that she was going there to become stronger to then receive more chemotherapy. While at hospice, she gained strength, and she became much calmer. She was able to have good conversations, get some sleep, and take care of final issues. My mom was very clear that she did not want to die at hospice, and one week before she died, she had progressed to the point where they moved her to a rehabilitation facility where she was to undergo physical therapy. She died there.

Looking at her situation from the policy-perspective, she would have been much more willing to enter the hospice facility if she had been able to go there and still feel like she had the ability to receive treatment while there. Hospice took away all of the hourly doctor visits, the bright lights, and the cold rooms, and it gave her a place that looked a little more like home. I am eternally grateful that we were able to pursue all treatment possible. She had so many complications that included sepsis, perforating her small bowel, blood clotting issues, circulation issues that required amputating her feet, and ostomy issues. It was very relieving to know that we were able to pursue whatever it took to carry out her wishes.

Moving forward, I think that limiting someone's choices is not the answer. Rather, I think expanding the options to include coverage for treatment and hospice promotes the use of hospice, and it will permit patients, families, and doctors to receive some comfort while not having to give up hope.

The Scholar, Herself

Here is Ella the Dog reading Family Law, which is closely tied (and here supported by) Constitutional Law.

Owens's Sentence Commuted!

This was just released today, July 14, 2010: Governor Bredesen has commuted convicted killer Gaile Owens's death sentence to life in prison. http://www.tennessean.com/article/20100714/NEWS02/100714018/Governor-commutes-sentence-of-Gaile-Owens.

Owens's case has struck into the hearts of many because she was sentenced to die for hiring someone to murder her abusive husband. She was convicted in 1986 after a trial where she refused to testify about the abuse she suffered or have anyone from her family testify about the abuse. According to the article, Owens actually threw up from when describing to her attorneys the sexual acts she was forced to perform. The Governor commuted her sentence on the grounds that she had agreed to a plea bargain that was later rescinded and given the potential for abuse from her husband, defendants in similar cases received life-in-prison sentences. Legally, one of the areas for legal review of whether a death penalty sentence should be upheld on appeal is whether it fits with the sentence other defendants received in similar cases. See State v. Joel Richard Schmeiderer, No. M2007-01922-CCA-R3-DD, at *33 (Tenn. Crim. App., at Nashville, Apr. 4, 2009) ("When a defendant is sentenced to death for first degree murder, there is a mandatory review of the sentencing process, per Tennessee Code Annotated section 39-13-206(c)(1)(2009). It requires that the reviewing court determine whether: (1) The sentence of death was imposed in any arbitrary fashion; (2) The evidence supports the jury’s finding of statutory aggravating circumstance or circumstances; (3) The evidence supports the jury’s finding that the aggravating circumstance or circumstances outweigh any mitigating circumstances; and (4) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant. T.C.A. § 39-13-206(c)(1)") In fact, the Court in Schmiederer defines its task of comparing and contrasting cases by saying it is to take a , "broader perspective than the jurors who sentenced the Defendant in order to determine whether his sentence “is disproportionate to the sentences imposed for similar crimes and similar defendants.” Id. at 35, citing State v. Thacker, 164 S.W.3d 208, 232 (Tenn. 2005) (quoting Bland, 958 S.W.2d at 664).

Given the intense political feelings about Gaile Owens, both in Tennessee and abroad, Governor Bredesen made a very wise political move to commute her sentence. More importantly, he made a fair and just move for humanity.

Juror Names -- Do We Really Need to Know Them?

June 12's Wall Street Journal included an article by Ashby Jones and Nathan Koppel about the recurring issue of whether a judge should shield jury members' names from the media during a trial. The article begins with reference to Rob Blagojevich's trial, where the judge is being forced to consider whether to withhold the jurors' names from the media. Federal Judge Zagel, who is hearing the case, ruled that the juror names would be withheld from the media out of fear that bloggers (hello!) or other media members (whether officially of the press or not) would try contacting the jurors. Obviously, the fear that the jurors would be contacted is based on the right to a fair an impartial jury. As that constitutional right as been interpreted, a fair an impartial jury includes jurors who are not spilling the trial's proverbial beans to outsiders, having contact with outsiders about the case, discussing the case among themselves before deliberations, or doing their own research about the facts of the case. When a juror is contacted about an on-going case, the constitutional hackles will rise on a defense attorney's back.

As the article points out, the US Supreme Court has not directly ruled on whether jurors should or should not have their names kept from the public. This silence permits a wide range of discretion among the local, state, and federal judges across the country.

The arguments in favor of keeping juror names from the media include the fear of the juror's safety (I'm thinking of jurors hearing abortion cases, racially- or other hate-motivated crime cases, and high-profile cases like Timothy McVeigh) and preserving the sanctity of the trial. A lot of people think there is no danger in being a juror, but it wasn't too long ago when segregation was a way of life, and to find an accused black man not guilty of a crime he did not commit against a white female victim would have been unheard of. Even today, the number of African-American inmates on death row greatly exceeds the number of white inmates in the same situation. Race plays a role in trials even today. Since people behave according to sheep mentality, it is easy to foresee how revealing a juror's name in a high-emotion case could make the jurors and their families nervous, especially if the verdict is not what was expected.

Addressing the need to protect the sanctity of the trial, I purport that today's media does not know boundaries and cannot recognize serious consequences. A courtroom need not be a spectacle, and with today's reality shows covering the television channels, it is in the interest of all who have a stake in the trial to preserve its sanctity and recognize its importance. If the jurors are having to worry about how they are going to appear on television, what is going to be posted about them online on facebook and twitter and myspace, and how their role in the trial will effect their future, the defendant is not receiving a fair trial.

Two arguments for never protecting a juror's name are the need for media to check and balance the courts and the need to create statistics and demographics of a trial for research. The argument that media is to serve as a check and balance seems absurd at first, but the transparency of government and its workings is very in vogue. Think of the Sunshine laws, and how notices must be given if two people from the same government committee are going to be discussing issues pertinent to that committee. The reason is to permit the public to know what is going on and be able to serve as a check for cloak and dagger politics. Theoretically, then, the argument could be extended that although trials are already public by their nature, the juror's names should also always be public knowledge so the citizens at large can provide an additional measure of protecting the parties' constitutional rights. In support of this argument, I invite you to consider the Maryland case mentioned in the WSJ article about the jurors who were friending each other on Facebook and holding discussions on Facebook about the case prior to deliberations certainly. The retrial was avoided because the defendant took a plea deal, but it certainly casts the jury's room into broad daylight. I love this idea of the media, which in large part turned from reporting the major political, international, economic, and scientific issues of any given day to reporting about Lady Gaga's most recent outfits and highjinks pulled at a baseball game, as being the guardian for United States citizens' constitutional rights.

In addition, there is a viable claim that the juror's names need to be released so research can be done about the jurors before, during, and after trial. I think the obvious answer to this claim is that the attorneys involved in the case would know the jurors' names, but the media would be the one excluded. Thus, the concern about researching jurors before and during the trial would be limited to the parties involved, which is a legitimate restriction when faced with other strong concerns for reasons to protect the jurors' names. As for after the trial, I think the restriction would be lifted, which would permit for plenty of research to be done. Moreover, any preliminary research might be completed during the trial with released juror demographics, which is really what any researcher wants, as opposed to jurors' names.

I think it says a lot about our society in that we still fear tainted juries. Before, we worried about them because of racially-driven hatred, and now we are concerned about jurors logging onto social networks and being bombarded with questions for the latest juicy courtroom gossip. In this lust-crazed, attention-seeking society, being called for jury duty has moved ordinary citizens into positions of power where they are being sought after to reveal the latest news. It can be a tempting offer for someone seeking fifteen minutes of fame. In the name of constitutional protection and the need to afford a defendant a fair trial, a judge should have the power to protect the jurors' names from the media.

A Great Article for Litigation

I was reading the March 2010 edition of the Tennessee Bar Journal recently, and I came across Michael J. Higdon's article titled "When the Case Gives you Lemons . . .: Using Negative Authority in Persuasive Legal Writing." Vol. 46, No. 3, Pages 14-19. This was a great article which discussed exactly how to use negative authority. I'm sure that we've all been in positions where there is at least one case contrary to the outcome we desire. Higdon's article really explores how to use that negative authority to achieve your desired outcome. In his article, he notes that, first and foremost, it is important to mention the negative authority. Nothing good comes from not mentioning the negative authority. I remember when clerking, it was always a bad sign when a party wrote its brief, but it did not address the cases against its desired outcome. Such a situation is peculiar because, as I would outline the briefs, I would not have a point with a matching counter-point, rather, usually, instead of the counter-point, it would be a random discussion of some remotely-related point of law. That is not helpful. Remember that if you are appealing, then the issue is legally-based, as opposed to factually-based, so your whole job is to argue the law, which means getting it right.

Higdon also highlights that the main idea of bringing forward negative authority is to frame it in such a way to where you are either telescoping in or out to fit what you want. The trick is to distinguish your case from the case you are citing and to persuade the court to take either a narrower or broader view, depending on your position. Higdon points out that often when you have a split panel of judges, their views end up being defined on how broadly they define the issue. I think that the case of the right to privacy defined in Griswold v. Connecticut is a fantastic example of when the court stepped back and defined their holding by the broad scope of the right to privacy. I feel that the courts have recently begun tailoring each opinion to the facts at hand to make each holding as narrow as possible. This is particularly so when the cases involve hot-button topics like gun-control, abortion (especially late-term abortion), and military detainees.

Graham v. Florida -- A Look at the Projects to Prison Pipeline through Sentencing and the Eighth Amendment

Graham v. Florida – decided May 17, 2010

In Mid-May, the US Supreme Court issued yet another criminal case. Graham v. Florida focuses on the issue of whether a defendant who is sentenced for a crime committed while a minor but sentenced as an adult can be sentenced to life without the possibility of parole for certain crimes.

The facts of the case at hand are a tragedy. Graham was 16 years old when he committed armed burglary in Florida. He had a plea agreement, and while he was on probation and still a minor, Graham committed a home invasion robbery, and he had possession of a firearm and was associating with people involved in criminal activity. Graham had grown up with parents addicted to crack cocaine, and Graham himself became involved with drugs and alcohol at the age of 9. When Graham was brought before the court on his probation violations, he admitted violating his probation. The trial court sentenced Graham to life in prison without the possibility of parole. The trial court, reviewing the circumstances, stated, “ . . . I don’t understand why you would be given such a great opportunity to do something with your life and why you would throw it away. The only thing that I can rationalize is that you decided that this is how you were going to lead your life and that there is nothing that we can do this.” The court then referenced the State’s argument that the Defendant showed “an escalating pattern of criminal conduct.” The trial court then said, “[W]e can’t help you any further. We can’t do anything to deter you.” With that statement, the trial court then explained that since it cannot reform the Defendant, it must act to protect the community by removing him for the rest of his life. Given that Florida has abolished its parole system, the Defendant has no chance of release except for executive clemency.

Graham brought this case up to the Supreme Court under the Eighth Amendment, which guarantees that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The courts have interpreted cruel and unusual based on the “evolving standards of decency that mark the progress of a maturing society.” Estell v. Gamble, 429 U.S. 97, 102 (1976). This, of course, makes sense. Looking to our past, we see that American colonists came from England, where drawing and quartering, holding someone’s feet to flames, imprisoning someone for an indeterminate period of time, and hanging were the usual. In fact, such actions were often deemed entertainment for a town. When America was settled, recall that the country went through a period of setting women ablaze to determine their guilt about deals with the devil. America has grown out of the gas chamber, mostly out of the electric chair, out of the death penalty all together, and back into the death penalty. The only measuring stick of whether a practice is cruel and unusual is the current measuring stick of society. As society evolves, so will its methods of dealing with those who break laws.

Legally speaking, when a defendant challenges a punishment on Eighth Amendment grounds, the defendant must try to prove that the sentence is not proportional to the crime. This is done by proving either that the length of the sentence (think of a lifetime sentence for a seventh conviction for passing bad checks – see Solem v. Helm, 463 U.S. 277 (1983)) or that there is a categorical violation (think of restrictions on what types of crimes may be eligible for the death penalty). This second avenue for relief generally requires a showing of a grossly disproportionate sentence when compared to the crime, and it is what Graham chose to appeal. He is claiming that defendants who committed non-homicidal crimes as a minor should not be eligible for sentences of life without parole.

To understand what society considers acceptable, the Court looked at the statutes of the states to determine how many states permitted life without parole sentences for juveniles. Seven jurisdictions allowed such a sentence for minors only convicted of homicide cases. Thirty-seven states and the District of Columbia permit such a sentence for minors convicted of non-homicide cases. Given the lack of a clear direction of society’s view on this issue, the Court then analyzed how courts actually sentence minors. The Court recognized that while laws may permit certain sentences, what matters is whether the leniency of those laws is actually relied upon and used by judges across the country. The Court noticed that there are 129 juvenile offenders serving life without parole sentences for nonhomicidal crimes, and 77 of those are in Florida.

Reaching its conclusion, the Court came to four conclusions: (1) the rules of governing juvenile offenders rely on a discretionary, subjective treatment by a judge or jury that a defendant is “irredeemably depraved” and eliminate the chance that the offender will receive a life without parole sentence “despite a lack of moral culpability;” (2) a case-by-case approach would not provide the necessary accuracy to determine whether a juvenile offender has “sufficiency psychological maturity and dep[r]avity to merit a life without parole sentence” versus those who have the capacity to change; (3) such sentences do not allow for the scientifically-known facts that adolescents are impulsive, have difficulty in thinking long-term; and are reluctant to trust adults; and (4) the United States is the only nation that imposes this type of sentence on this type of defendant.

Reviewing this opinion, I find it to be extremely well-reasoned and to take into account what society has come to understand about adolescents. With all of the current research about development and the impact of physiology on behavior, I think it would be remiss for the Court to have ignored such findings. Adolescents are by nature impulsive and have trouble analyzing the consequences of certain actions. To imprison a young person for the rest of his life for crimes done while a juvenile seems barbaric to me, especially when those crimes do not include homicide. For me, I would even ban life without parole for juveniles who commit homicide, but I know many others would not agree with me. Taking the limitations of adolescent analytical powers at face value and believing wholly in the power to change, I have difficulty locking someone up for the rest of his life based on young, foolish actions.

In addition, I think this opinion serves also to provide a lens on the pipeline from the projects to prison. Here in Nashville, there are several organizations that work to break that pipeline. Defendant Graham is essentially poster-child for the failures of a society to care for its young and ensure they are raised to become valuable, contributing members. Graham’s parents were drug-addicted, absent parents. How was he supposed to know what was good or bad? I am not absolving Graham of all his culpability, but I am asking how he was supposed to know right from wrong. He was not brought into the world with responsible caretakers and leaders. It can be a parent, it can be a minister, it can be a teacher. At some point, we need people to step up and say, “I will lead this child and introduce him to the world.” Knowing that adolescents are impulsive and prone to mischief, it is only a matter of time before a teenager essentially raised with backwards morals and living in a sea of crime becomes an actor in it himself. These actions do not necessarily mean that the juvenile offender is locked into a loop of crime for the rest of his life, but it does mean that there is plenty of room for improvement. I think the Court’s opinion really opens up a dialogue about the projects to prison pipeline and allows for a close examination of how much we, as a society, can expect (whether it be good behavior before prison or bad behavior during prison or after any release) from someone who is traveling along that pipeline. This opinion serves as a wake-up call to making sure our science, our community-action, our service to others, and our justice system are all in line. Let us use this call to action to help break the pipeline for someone. Get involved today.



For two great organizations in Nashville that address the projects to prison pipeline, please see Preston Taylor Ministries at http://www.ptmweb.ik.org/ and the Martha O'Bryan Center at http://www.marthaobryan.org/aboutus.

United States v. Comstock Et Al. -- a lesson in protecting the public

The United States Supreme Court released the opinion United States v. Comstock Et Al, this past week. It focused on the federal government's power to hold a federal prisoner longer than the sentenced ordered based on the concept that the prisoner has been deemed sexually dangerous. This case centers on the law found in 18 USC 4248. The Court upheld the law, and it concluded the law was constitutional under the necessary and proper clause of the Constitution.

To set the background, the law at issue (18 USC 4248) says that the Department of Justice has the power to detain a mentally ill, sexually dangerous federal prisoner beyond the prisoner's release date. States have enacted similar laws, and the US Supreme Court has previously analyzed whether those laws violated the Due Process Clause (See Kansas v. Hendricks, 521 US 346 (1997) and Kansas v. Crane, 534 US 407 (2002)). The requirements of the federal law permit a district court to order the civil commitment of a person who is currently in the Federal Bureau of Prisons if the individual:

(1) has previously engaged or attempted to engage in sexually violent conduct or child molestation;

(2) current suffers from a serious mental illness, abnormality, or disorder; AND

(3) as a result of that mental illness, abnormality, or disorder, is sexually dangerous to others in that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released. See 18 USC 4247.

If the DOJ has identified such a person, then it (the DOJ) must certify to a federal district judge that the prisoner meets those requirements. When the certification is filed, the statute stays the prisoner's release until a hearing is held and the Government is able to provide proof to support the civil commitment of the prisoner. In a sort of hybrid of criminal-civil-adjudicative hearings, the prisoner is entitled to an attorney and the right to be heard. The DOJ must prove its case by clear and convincing evidence. If the DOJ meets its burden of proof, and the court issues the civil commitment, then the federal government is to try to get the State where the trial was held or the prisoner is domiciled to take custody of the prisoner. If the State does not take custody, then the prisoner remains in federal custody. A prisoner who is being held under civil commitment is entitled to ongoing psychiatric and judicial review of his case, and he may request hearings every six months to evaluate his release. In order to be released from federal custody, the prisoner must either be taken into State custody or have improved his mental condition to the point where he is no longer dangerous.

The Supreme Court began its analysis by pointing out that due process was not an issue raised by the petitioners in this case. Thus, the justices analyzed it from the assumption that the law did not violate due process, and they kept a very narrow analysis on whether the statute in question violates the Necessary and Proper Clause of the Constitution. See Art. I, Section 8, cl. 18; See also McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Of course, when analyzing whether a statute is "necessary and proper," the Court looks at whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. See Sabri v. US, 541 US 600, 605 (2004). Here, the Court recognized Congress's broad authority to deal with those imprisoned in the federal system for federal crimes. In addition, Congress has long been involved in the mental healthcare of federal prisoners. In a stroke of astuteness, the Court pointed out that while Congress's long-time involvement does not automatically validate an action, it does help provide a framework of a need and a statutory solution. The Court then described how narrowly tailored the statute is -- it contemplates only those prisoners who have been deemed sexually dangerous and who have proven themselves to be sexually dangerous to the public. The Federal government has the power to protect its citizens and communities from these people known to be dangerous. The Court found the means to be rationally related to the danger sought to be prevented.

In addition, the Court noted that the statute does not infringe upon State's rights. The prisoner at the center of these arguments is a federal prisoner, and not a State prisoner. Moreover, the State will have the ability to take custody of the prisoner, should the prisoner be deemed sexually dangerous and civilly committed. The Federal government is not seeking to take rights from the State, rather it seeks to protect its citizens, as a whole.

Finally, the Court denies the arguments that in order for a law to be necessary and proper, it must only be one step away from the enumerated power and that the statute creates a general police power. As stated before, the standard for necessary and proper is whether the means is rationally related to the implementation of a constitutionally enumerated power. See Sabri, 541 US at 605. There is no "one-step" requirement. Additionally, the federal statute for civil commitment does not create a general police power. Rather, the statute is narrowly tailored to only affect federal prisoners who have been deemed sexually dangerous and who meet the three requirements for certification, as listed above.

Reviewing the opinion, I think that the Court very clearly answered the issue brought in this case on a very narrow ground. I would be interested to see if the Petitioners will now bring claims on due process and how the Court would interpret that issue. As a necessary and proper clause case, I think the Court properly decided the case. The statute is so narrowly tailored to just federal prisoners who meet certain requirements, and it permits States to take custody of these prisoners.

The only concern I have, and this is playing the devil's advocate, is how to determine whether a prisoner suffers from mental illness, abnormality, or disorder. Obviously, the DSM-IV will be consulted to determine if a prisoner has a particular disorder, but given the changes in the classification of what constitutes a mental illness throughout the years (specifically, I'm thinking of homosexuality, which used to be listed as a mental illness), I'm wondering how that might affect the prisoners. I suppose that we have to work within the current guidelines of what we have. A citizen is a product of his or her times, and he or she must conform his or her behavior to those times. Let me be clear that I am in no way saying that sexual crimes will ever be permissible or acceptable. I find them atrocious, and I believe they leave living victims in a state of semi-death. But, considering that other cultures have permitted such acts (even specifically sexual acts with children) as normal and even considered them desirable (I'm thinking of the Ancient Greeks and the various native tribes like the Yanomamu), I'm wondering what, if any, the effect is of classifying what is a criminal propensity in our society as a mental illness. At what point do criminal actions morph into the world of mental illness? The problems with tying a crime or a criminal propensity with a mental illness include the ease with which an action can be brushed off as a manifestation of the illness and the ease with which it is to trap someone in a mental institution or mental illness cycle when there may not be an illness at all. I think the statute at question identifies the way our society is beginning to view certain crimes, especially those of a sexual nature. This idea of sexually-related crimes as manifestations of an illness seem to also reflect the new trend in people seeking therapy and the like for sexual addictions (think of various celebrities and politicians). We are beginning to bring any sort of sexual issues to the forefront of policies and research to where the statutes are matching the views that those who are sexually dangerous must have a mental illness, abnormality, or disorder.

As for whether the statute violates due process, that is another issue. The idea that a prisoner can be sentenced, fulfill that sentence, and then been deemed to be too dangerous to be released and have to continue to be held until he proves he is fit is a little strange. If the prisoner is so sexually dangerous to where he should not be released (specifically having engaged or attempted to engage in sexually violent conduct or child molestation), then wouldn't that have come forward and been considered during his trial? If we are classifying the prisoner as having a mental illness, abnormality, or disorder to the point where it results in his being sexually dangerous to others, then why would that not be a defense to the crime at the time of trial? Tying together the concept of mental illness and criminal propensity would exculpate the crime and instead render the defendant a candidate ripe for commitment starting from trial. I suppose it is possible that the defendant begins exhibiting sexually dangerous behavior in the prison, and thus, the statute would provide for an additional incarceration of sorts until he is either medically stable or the state takes custody of him (presumably to treat or house him until he is stable). Under that scenario, the statute would provide the defendant with a hearing and the right to counsel, as most adjudicative processes require. However, when we're talking about a defendant's right to be set free, it seems like a hearing is a little easy on the government. Is the hearing really more of a small trial, where the defendant's rights to not be held against his will are properly address? I don't know, and I think I would need to read more on that process before weighing in on it.

The fact that the defendant can request a review hearing every six months certainly helps the constitutionality of the statute in the due process issue. I think perhaps the statute should have a requirement that the hearing be within a certain time period, so as to set a limit on what could be an indefinite period of time. When we're dealing with someone's liberty, and this someone has served his court-ordered period of time, then the hearing should be in an expeditious manner. I know there is a strong public sentiment now to lock up sexual offenders, especially those who have child victims, and throw away the key, but every defendant has certain rights. It seems that the statute permits a defendant's rights to be put on hold in the name of public safety while the government gathers evidence to support a civil commitment for actions which were known of and possibly used at the time of trial and sentencing. I fail to see a clear break between the crime and sentence imposed and the actions used to set a civil commitment in place. It seems like the defendant is being punished once for the actions he committed to be found guilty and serve a sentence, and he is being punished again because society really doesn't like those crimes and wants to keep him locked up for as long as possible. If that is the case, then the original sentence is not a true sentence, and it means nothing. This is just the type of case to keep your eye on for the future.