Author Archive for Donna Mia

Why Upholding Tuition Breaks for Illegal Immigrants is Not as Bad as It Seems

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Illegal immigration is one of those issues that is guaranteed to generate a debate. As a country, we couldn’t be more torn up about it. On one hand, there seems to be something inherently amiss about extending public benefits to those who blatantly violate the law and come onto the land illegally. Furthermore, we simply don’t have the funds in our economy to support them.

On the other hand, we recognize that we are a nation of immigrants. And for many of us, the issue strikes even closer to home, as it is our relatives and close family friends who are the illegal immigrants in question today. Furthermore, as a country we recognize the value that immigrants can bring to our nation, and how investing in them now will pay off in the future.

Well, aside from all the activity going on in Arizona, this issue has reared its head again, now in the state of California. Basically, the California Supreme Court recently ruled that state universities and colleges can continue to extend the in-state discounted tuition exemption to illegal immigrants, as long as the students attended high school in the state.

This ruling is the first of the kind in the nation, and it is expected to influence other states as well. Nine other states also have legislation in place that allow for illegal immigrants to pay the in-state tuition rate. Two of these states, Texas and Nebraska, are dealing with a similar challenge to their laws, and the cases are currently pending in the lower state courts.

There has been a great deal of outcry on this ruling, from both sides. Initially, it does seem unfair “bad” behavior is being rewarded with a tuition exemption. This is especially frustrating when you consider that this tuition exemption doesn’t apply to those immigrants who are actually, legally here. However, upon deeper research, here’s why I don’t think this ruling as unfair as it initially seems.

First of all, this law actually applies to several classes of students, not just illegal immigrants. Technically, the requirement is that the law applies to “any student,” as long as the student is not lawfully here as an immigrant. So while it does include illegal immigrants, it also includes other classes of students. For example, they can be citizens who attended high school in California, but then whose families moved elsewhere. They can also be students who are citizens of another state, but who moved to California to attend high school or boarding school here.

Furthermore, most of these exemptions will end up applying to students from the latter two categories, rather than illegal immigrants. The numbers show that right now, about 41,000 students qualify for these exemptions, but many of them are actually United States citizens. One study shows that of these students, only 25,000 of them are illegal aliens. In another study, 2,019 students paid the exempt-rate at UC schools for the 2008-2009 school year, but only about 600 of these students were undocumented aliens.

Additionally, legislative notes show that the main motivation behind the statute was not to benefit illegal immigrants specifically. Rather, the legislators knew that many students have been in the California school system for many years, since elementary and middle school, and simply wanted to extend this education to them all the way through college. This intent is made clear by looking at the wording of the legislation itself, which states the requirement that students must have attended high school in California for three or more years.

Also, the thinking was that if a student has been a long-term California resident, the student (or rather, the student’s family) would have already paid state taxes and should be able to benefit from the tuition exemptions. Additionally, the legislators recognized that in cases of illegal immigrants, most are waiting for their applications to be processed, and are expected to become citizens.

Thus, I believe that upon deeper research, the statute may not be as unfair as it initially seems. However, there are still good arguments to be made on the other side for repealing the statute. One of them is that this statute actually conflicts with federal law, which states that illegal immigrants cannot receive college benefits based on residency and not offered to all citizens.

So while this ruling is monumental in that it sets a precedent for the rest of the country, it will probably not be the end of the matter either. The case is expected to be appealed to the United States Supreme Court. Only time will tell how this immigration issue, and the immigration debate in general, will end up playing out in our country.

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Driving Under the Influence of Drugs May Be More Common Than You Think

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The holiday season is upon us, and while that means general merriment, it is of course, stress-inducing for many. Beyond the usual stressors of holiday parties and shopping, is another little consideration that few people think of: increased roadblocks that randomly test for the presence of alcohol and drugs in drivers.

Yes, I mentioned testing for alcohol and drugs. While almost everyone is aware of the perils of drinking and driving, ingesting drugs and driving hasn’t really gotten the same amount of national attention. But “drugged driving” is a serious issue and recent statistics indicate that it is on the rise. And as the holidays are upon us, it may be an especially relevant time to learn more about the laws behind drugs and driving.

First of all, one of the reasons that driving under the influence of drugs laws haven’t garnered as much national attention is because they are much more difficult to create and enforce, when compared to drunk driving laws.

For drunk driving, it is relatively easy to set a limit on when the blood alcohol content has impaired judgment beyond acceptable limits. Generally, this number is set at 0.08. However, when it comes to drugs, it has been much more difficult to find a blood content level that reliably corresponds with unacceptable, impaired judgment levels. This difficulty is compounded by the fact that drugs can linger on in the body for days or months, making it difficult to determine what someone’s current drug level actually is.

Nevertheless, there are still drug laws in place, although they vary by state (so you will want to consult with an attorney to go over the actual specifics of any case). However, what may be surprising to many people is that in most states, the definition of drugs is defined very broadly. That is, you can be convicted of a DUI (driving under the influence) or DWI (driving while intoxicated) for ingesting basically any drug. This includes illegal drugs, legally prescribed drugs, and even over-the-counter drugs.

Furthermore, the legal standard for when someone is “under the influence” can often times be whenever someone’s mental judgment is impaired in any way (again, this legal definition will vary by state, but this is a common standard among many states). Thus, it is easy to see how many cases of drugged driving can come from someone just ingesting a simple over-the-counter pill. If these medicines can make you feel woozy in even the slightest bit, then there may be a case for a DUI or DWI against you.

From here, the way to prove that someone is under the influence of drugs is very similar to the way the government would prove it in drunk driving cases. This proof will essentially come from circumstantial evidence. In these cases, the prosecution will look at how the car was being driven, the physical appearance of the driver, how the driver performed on sobriety tests, and any results taken from a test of the driver’s blood or urine.

In addition, many states have now enacted programs that train police officers to become Drug Recognition Experts. Once trained, these police officers can better identify signs of impairment and thus give better testimony in court as well.

Furthermore, beyond any DUI convictions, there are also separate proceedings by the DMV to think about. The good news about these proceedings is that not all state DMV’s will be able to go after a case of drugged driving.

The reason behind this is because the DMV can only go after cases where there has been a violation of some statute. So far, 19 states in the country have actually enacted statutes that specifically make it illegal to drive when someone has ingested drugs. So that means that in these states, the DMV will be able to conduct a case against drugged driving; but in the rest of the country, the DMV is unable to do anything. However, this does not necessarily mean that the offender will go scott-free either. The court, if it finds for a DUI conviction, can always enact harsher punishments, such as taking away driving privileges.

Thus, even though we all know as a matter of common sense not to drive when we’re not feeling well, it’s still hard to draw the line sometimes. And though these drugged driving laws may not garner as much attention as drunk driving laws, they’re sill very much in place and will result in harsh consequences. The safest bet, if you’re not feeling 100%, is simply to wait until you’re feeling better before you get behind that wheel.

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Eyewitness Testimony and Memory is Not as Reliable as We Often Think It Is

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It’s no surprise that in a trial of any sort, the witnesses usually make or break the case. And this goes without saying for eyewitnesses; those people who were supposedly there at the time the events in question took place. What they testify about is basically gold, in the eyes of the jury.

But there’s really not that much known, in the general public, about how reliable eyewitness testimony really is. Sure, we can count on a lawyer to cross-examine the eyewitness and point out the discrepancies in the testimony. But the thing is, unless an eyewitness makes it painfully obvious that he/she is biased, or is somehow unable to give accurate testimony, people basically assume that an eyewitness know what he/she is talking about.

Enter the growing field of psychology and the human memory. Experts, such as the noted psychologist Dr. Elizabeth Loftus, have been conducting experiments researching the relationship between eyewitness memory and the actual accuracy of it.

Basically, the research shows that eyewitness testimony is not really as reliable as we think it is. The studies show, in fact, that eyewitnesses actually have a large capacity for (unintentionally) making up false memories. Here are some of the reasons behind it:

1. The studies show that the more people imagine an event happening in the past (that did not actually happen), the more people will be convinced that the event actually took place. This phenomenon explains how people can end up creating false childhood memories, or make up details about events that never actually happened. Apparently, when we keep imagining certain scenarios, we can really come to believe these things happened.

2. Also, corroboration of the events by another person can have a huge affect on an eyewitness’s perception of something happening or not happening. This theory doesn’t seem too surprising. After all, how often have we had our thoughts swayed just because of something someone else had said?

3. Along similar lines, often times in their line of questioning, prosecutors and police can let their perceived notions of the events subtly come out. They may phrase questions a certain way designed to elicit a certain response, throw in additional details when asking questions, or keep repeating certain questions over and over again. Eyewitnesses can pick up on these hints and be influenced by what these authorities are subconsciously telling them.

For example, a prosecutor replying “that’s who we thought it was” after an eyewitness identifies someone, could have a huge impact on the eyewitness’s confidence level. This confidence level will, in turn, be very persuasive to juries.

4. Finally, studies show that people’s memories are not very accurate when it comes to recalling the happenings of a traumatic event. This conclusion should come as no surprise. After all, our brains function differently when we experience something traumatic.

Specifically, the studies show that when it comes to recalling traumatic events, we usually remember random details, and piece the facts together. Whereas, when recalling more ordinary events, we usually run the event over in our minds in a “video-recorder” fashion. Thus, the brain may have more difficulty recalling the happenings of a traumatic event.

So now that we’ve established that eyewitness memory might not be as accurate as we think it is, what are some of the ways this could play out in an actual case?

One situation to be aware of is the conformity effect. This refers to the situation when witnesses can come together to discuss the case, thereby influencing each other as to what each believed really happened. This could happen, for example, if witnesses were to run into each other at the police station after initial questioning. If the witnesses were already friendly with each other, they might discuss the case and end up tarnishing what they truly remember about it.

Another situation that comes up is the double identification effect. Basically, this happens when an eyewitness had actually seen the suspect prior to, or maybe after the event, and then mistakenly thinks the suspect was at the event as well.

For example, in a bank robbery case, an eyewitness in the bank may have seen the suspect as a passerby on the sidewalk before the robbery happened. Fueled by this memory, the eyewitness may then mistakenly believe that he/she saw the suspect in the bank robbery as well.

The danger with all these scenarios, as I briefly mentioned earlier, is that juries are very swayed by eyewitness testimony. More specifically, juries are particularly swayed when the eyewitness appears confident and can provide a lot of details. Unfortunately, as these studies show, it does not take a whole lot for an eyewitness to appear confident and provide lots of details.

However, by educating juries, judges, lawyers and the rest of the legal community about these theories, we might enable juries to better evaluate the accuracy of eyewitness testimony. I’m not saying that juries and judges should be required to take these theories into account, since they are just theories, but I don’t think it would hurt for them to be educated about these theories either.

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Should We Allow Life Sentences Without Parole for Juveniles who Commit Murder?

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This May, the Supreme Court in Graham v. Florida wrestled with the idea of sentencing juveniles who commit crimes short of murder, to life without parole. They ultimately decided that it constitutes cruel and unusual punishment under the 8th amendment, and is therefore unconstitutional. This ruling is not the first in this subject area either. Back in 2005, the Supreme Court held that capital punishment for juveniles is unconstitutional.

Thus, these rulings reflect a trend in the Supreme Court of being increasingly lenient towards the punishment of juvenile criminals. It also leaves us hanging with the next logical question, which is: what about juveniles who commit murder? Should a sentence of life without parole for these juveniles be unconstitutional as well?

This question is particularly relevant, as there are around 2,500 inmates currently serving sentences of life without parole for crimes they committed as juveniles, and who are not affected by this recent ruling. This is in contrast to the 150 inmates who are automatically eligible for lighter sentences based on the Supreme Court’s recent ruling.

Personally, I see arguments on both sides of the equation. On one hand, these are members of society who committed the most heinous crime possible—murder—and they should be put away for good. On the other hand, they’re just adolescents, still growing and learning the ways of the world, and we should be more lenient with them.

To answer this question, let’s look at three reasons we punish people in criminal law. Basically, we punish criminals for deterrence purposes, for the sake of justice, and to prevent them from harming others by removing them from society.

In terms of deterrence, I don’t think that whichever way the law goes in this respect is going to have much effect on juvenile offenders. I’m no expert on how the juvenile criminal mind works, but I feel pretty sure that the threat of having no parole, versus the possibility of having parole, is not going to change their minds with respect to whether they commit the crime or not. I mean, at the point someone decides to murder, I don’t really think the differences in sentencing consequences like this is going to have any impact on their decision.

As for the idea of justice, well, that’s an emotionally charged and stirring topic that is difficult to get into. Suffice to say, I do think that justice has its place in criminal law. But it’s so subjective as to what constitutes justice for any crime committed. I think that this subject is better dealt with on a case to case basis. At any rate, I don’t really think it’s my place to sit here and argue about at what point I think justice has been served for a juvenile who commits murder.

That leaves us with the idea of punishing criminals in order to move them out of harm’s way and protect society. This line of thought is the most compelling to me. Yes, I agree with all the supporters of a constitutional ban that adolescents are still developing, and we should give them a chance to reform.

On the other hand, I think we have a great responsibility to society to ensure that if we do let juveniles like these out of prison, they don’t commit the same atrocious crimes again. And for some juveniles who have committed truly heinous crimes, I just don’t see how any amount of rehabilitation can guarantee us a completely changed person who won’t get involved in criminal behavior again.

I’m talking about the Dylan Klebold’s and Eric Harris’s here. Yes, they were adolescents when they committed crimes, but at the same time, they were still old enough to know right from wrong. There’s a lot of evil and malice they are responsible for, and how can we ever feel secure that all that evil is gone, no matter how much rehabilitation they’ve gone through?

Thus, I don’t think we should necessarily put a ban on life without parole for juveniles who commit murder. At the same time, I think this is a sentence that should be used very sparingly, for the crimes that demonstrate a truly malicious and unchangeable heart.

Before issuing a sentence of life without parole for a juvenile, I would look at their potential for reform. I would look at factors such as the terribleness of the crime committed, their past criminal history, family history and upbringing. Were they put in an environment where they were doomed to failure? Or did they constantly burn through all the chances for success they were given?

On a separate but somewhat related note, this brings us the next idea of rehabilitation. I believe that rehabilitation and preventative measures are techniques that are under-utilized in society, and particularly for juvenile offenders. Yes, rehabilitation is very pricey, but the rewards for it are unlimited. Imagine all the good that a changed juvenile offender can do for the world, versus cleaning up the costs of his/her crimes. There’s virtually no ceiling we can put on how much good can come out of rehabilitation and preventative techniques.

On a practical note though, I’m not sure how rehabilitation would look like for these juvenile offenders. A juvenile who commits murder will probably have to go to jail for some amount of time. I don’t think society is ready to declare that unconstitutional. But at the same time, I really don’t think jail is the best place for rehabilitation either.

In conclusion, I believe I’ve rambled on now for long enough about my views. This is a very controversial topic, and I’m sure many others have strong opinions too. By no means do I think my views on this topic are the only legitimate ones. Feel free to leave any thoughts or alternative viewpoints below. Perhaps one of the best things we can do to improve this situation is to simply talk about it.

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Shouldn’t a Mazda Seatbelt Lawsuit be Allowed to go Forward?

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Faulty cars have been making all the news lately. Toyotas, especially, have been at the forefront of all this backlash for some time now. Just this morning I saw yet another article about how officials are blaming a faulty Toyota as the reason behind a fatal car crash.

So imagine if one of your loved ones was involved in an accident in one of these allegedly faulty cars. Further imagine that after the accident, you were not even allowed to bring a lawsuit against the car manufacturer because your claim was somehow “pre-empted.” While this is not happening with Toyota accidents (thank goodness), it’s exactly the case of what’s happening to one family whose loved one was killed in a 1993 Mazda minivan.

Apparently the passenger who was killed in this accident was sitting in the rear seat and was wearing a “lap-only” seatbelt. Family members are alleging that if the passenger had been wearing a “shoulder-and-lap” seatbelt instead, this death could have been prevented. I’m not an expert on all the scientific workings behind seatbelts, but from the face of this description, it seems like the family has made a legitimate claim and should be able to proceed with a lawsuit.

However, the Supreme Court is divided on whether to even allow this lawsuit to proceed because it’s allegedly pre-empted by federal law. The thinking goes that at the time the Mazda was made, federal law did not require car makers to install shoulder-and-lap seatbelts; a lap-only seatbelt was all the law required. (As a side note, this is no longer the law. Starting in September 2007 most passenger vehicles are required to have shoulder-and-lap seatbelts for rear seats).

Anyway, going back to the argument, family members and consumers understandably made the next logical point, which is that, just because Mazda complied with the federal law doesn’t mean that they’re immune from future lawsuits. However, Mazda is contending that federal regulators at the time knew exactly what they were doing when they enacted the law. Federal regulators had expressly considered the option of requiring shoulder-and-lap seatbelts, and had deliberately rejected that option for economical reasons. Thus, the federal regulators’ stance on seatbelt regulations back then was conclusive, and they had made it clear car makers were not to be sued for anything but failing to provide lap-only seatbelts.

So, the Supreme Court appears to be divided over this issue, and it will be interesting to see which way they eventually decide. Ultimately, the disposition of the case will probably turn on whether they really think the federal regulators had meant to make the law conclusive, in terms of exactly what kind of seatbelts were required. Or, if the federal regulators had only meant to set a minimum, rather than conclusive standard, on the type of seatbelts required.

Personally, I think that it’s kind of a pointless exercise to go about deciding the outcome of the case this way. I mean, courts can conduct all the research they want into the legislative history, but will they ever really be able to know what federal regulators were thinking at the time they enacted federal law? Even if they could find an answer to this, what’s the point of knowing what federal regulators were thinking anyway?

I mean, isn’t the issue really…what was Mazda thinking when they decided to forego the shoulder-and-lap seatbelts. For example, did Mazda think this was just an easy way to save on costs, and blindly look the other way in terms of consumer safety? Or did Mazda assess the situation, and come to their decision only after accurately concluding that shoulder-and-lap seatbelts were not necessarily more safe, economical, or practical to implement?

Of course, we’ll never get to explore these questions if the Supreme Court ultimately decides to not even let this lawsuit go forward based on pre-emption grounds. However, because it’s the Supreme Court deciding this case, they’re actually not bound to follow the law on pre-emption as strictly as other courts have to. They can instead choose to decide this case based on other factors, such as what’s best for public policy.

To me, this makes much more sense, because like I said before, who really knows (and cares) what federal regulators were thinking back then. But given public policy reasons, I believe it would be a good idea to let this lawsuit go forward. For example, allowing this lawsuit to go forward would give car makers more incentive to devise safer vehicles. Car makers would not be complacent with just meeting the minimum standards of safety by law, but would be more pro-active in considering consumer safety first.

However, I’m not the Supreme Court, and this case is obviously not for me to decide. It just seems ridiculous to me though, as a common observer, that a family whose loved one died in a car accident cannot even be allowed to bring a lawsuit against the car maker. I’m not saying the family is entitled to win by any means, but they should at least be able to have their day in court.

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