Archive for the 'Criminal Law' Category

California Court Rejects Challenge to End of Life Option Act

For some, it seems like an unthinkable and barbaric concept, but for others, it comes as a relief. Regardless of your own personal beliefs, physician-assisted suicide or death with dignity laws are never fun topics to discuss.  Nonetheless there’s been a recent movement, albeit slow, towards passing laws that aid terminally ill patients in dying.

California recently became the 5th state to enact an aid-in-dying law.  The End of Life Option Act was signed into law by Governor Brown in October of 2015, and was to officially go into effect on June 9, 2016.  However, a group of physicians, the American Academy of Medical Ethics, and the Life Legal Defense Foundation filed suit requesting the law be immediately suspended.

A California Court rejected the temporary restraining order that was filed, but will allow the plaintiffs to proceed  with their lawsuit regarding the concerns of the lack of safeguards against abuse of the law, so this won’t be the last time we’re hearing about this issue.

Terminally Ill Patients Can Voluntarily Request an Aid-in-Dying Drug

The Act permits terminally ill adult patients with the mental capacity to make medical decisions to be prescribed an aid-in-dying medication. Certain conditions, however, must be met before the drug will be prescribed.  End of Life

In order to be eligible to even request a prescription, an individual must meet the following criteria:

  • Be an adult of at least 18 years old or older,
  • Be a California resident,
  • Have a diagnosis from a primary physician stating the patient has an incurable and irreversible disease,
  • Diagnosis must also, within reasonable medical judgment, state the patient’s disease will result in death within 6 months,
  • Be able to make medical decisions for themselves as determined by health professionals,
  • Voluntarily request a prescription for an aid-in-dying drug without influence from others, and
  • Be able to self-administer the aid-in-dying drug (must be eaten, drank, or swallowed and cannot be administered via IV from a physician).

The law states the request must be made by the patient and the patient alone. A power of attorney, advance health care directive, conservator, health care agent, surrogate, or any other legally recognized health care provider will not suffice.  A request must be solely and directly made by the patient to his/her attending physician.  This should provide some sort of solace to those against these types of aid-in-dying laws, as this provision only helps ensure the decision is actually coming from a patient.  Even so, this isn’t enough for some.

Despite Strict Guidelines, Doctors Are Concerned Law is Too Vague

The group that brought the restraining order to suspend the law argued the definition of “terminally ill” within the Act was too vague and risks abuse of the law. Their primary argument rests on concern that the law allows coercion of terminally ill patients, but their suit alleges a whole slew of other ethical and procedural issues.

Patients that are given a 6-month prognosis sometimes make it way beyond that time frame and plaintiffs argue prognosticating a patient’s future is flawed, which suggests they believe this is a standard that shouldn’t be used when prescribing an aid-in-dying drug. Further, the plaintiffs argue, the drugs are unreliable and often can cause inhumane complications that can sometimes force physicians to administer a lethal injection and become a case of euthanasia.

On top of those arguments, the Act doesn’t require patients to administer the drug in the presence of a physician and it provides both civil and criminal immunity without requiring so little as a good faith standard that must be upheld on behalf of physicians. Nor does the Act require seeking consultation with a mental-health specialist unless the physician believes there’s a pre-existing mental disorder, all of which seem to be troublesome concerns.

While it’s certainly an extremely personal decision, the plaintiffs do have some good arguments. Protective measures, like requiring a consultation with a mental health professional, would only further ensure the law isn’t being abused.

How Do We Balance the Two Needs?

In recent years, the issue of death with dignity laws broke headline after headline when a young 29-year-old woman, Brittany Maynard, was diagnosed with a brain tumor.  Maynard was a California resident where, at the time, any type of death with dignity was not an option.  Her family made the decision to uproot their life to Oregon, where death with dignity is authorized.  Despite her illness, Maynard became the face of advocacy pushing for legislative change.  Maynard has since passed away, but her message remains.

Oregon, Vermont, Washington and Montana are among the 5 states that allow physician-assisted suicide, while at least 20 other states are considering some form of death with dignity legislative change. It’s a touchy subject and probably one both sides will never see eye-to-eye on.

Brock Turner’s Early Release Renews Mandatory Minimum Sentence Debate

Why do we have mandatory minimum sentences for certain drug offenses but not for crimes like rape? That’s the burning question in everyone’s mind in the wake of Brock Turner’s early release from prison.  I’m not sure anyone hasn’t heard the name Brock Turner. If you’re not familiar with the case though, Turner is the former Stanford student who was convicted for sexually assaulting an unconscious woman behind a dumpster.

Turner gained national attention because of the lenient sentence he received, presumably because of a biased notion that a Stanford athlete shouldn’t be punished as harshly as some every-day Joe. In his now infamous sentence, Judge Persky gave Turner such a light sentence because the judge felt, “A prison sentence would have a severe impact on him.”

Although he faced up to 10 years in prison, Turner was sentenced to only 6 months in jail and was released on good behavior after serving a mere 3 months. Many were appalled at the judge’s sentence but, because judges are given wide discretion when it comes to sentencing in the absence of a mandatory minimum law, he was within the boundaries of the law.

Mandatory Minimums Versus Judicial Discretion

California has since passed a bill, currently awaiting Governor Jerry Brown’s approval, that would institute a three-year mandatory minimum sentence for anyone convicted of penetrating an intoxicated or unconscious person, but that’s only in the wake of the Turner case. It doesn’t solve the issues surrounding other crimes that may warrant a similar minimum. Legislators have, in the past, expressed support for that very same judicial discretion they’re now wanting to take away.

While there’s pros and cons on each side, it’s hard for some to get past the inequities. Is it fair and just that some nonviolent drug offenders are serving more time than a sex offender?  Probably not. Brock Turner

Just to give some perspective, federal law mandates a minimum of a 5-year sentence for a conviction of selling 28 grams of crack cocaine. Here’s some more perspective—28 grams is equivalent to about an ounce.  There’s 16 ounces in a pound.  Certainly, we don’t want those drugs being sold on our streets, but I can’t fathom how that’s worse than rape.

Those against mandatory minimum sentences argue prison overcrowding is a huge problem. In California, for example, the average cost to incarcerate one person for a year is $64,000, which is more than what many Americans make in a year.  Further, opponents argue mandatory requirements lead to unfair and unjust prison sentences, as well as inequities in minimum sentencing compared to sentences that depend on judicial discretion.  The very same argument can be made, however, in favor of mandatory minimums because either option can create sentencing inequity.  This is easy to see in the cases of nonviolent drug offenders who are serving more time than a sexual offender.

While mass overcrowding is certainly an issue that should be addressed, it’s not a strong enough reason to forego mandatory minimums simply because it doesn’t outweigh letting potentially dangerous criminals out on the street. Personal bias, unfairly targeting minority groups, creating coercion, and unjust sentencing seem to be the better arguments from a moral standpoint.

At the same time, mandatory minimums may keep criminals off the street for lengthier periods, but recidivism rates are high and they do nothing to prevent other criminals from taking their place while they’re in jail.

Taking Away Judicial Discretion Only Puts Power into Another’s Hands

An important argument that often gets missed is that taking away a judge’s power to use discretion essentially puts sentencing power in the hands of someone else—the prosecutor, more specifically. It rings true that when mandatory minimum sentences are required, a prosecutor can essentially pick the sentence when they decide which charges to bring against a defendant. Sentencing isn’t a power that should belong in the hands of a partial charging party.  The state represents the people and they can always recommend a sentence, but a judge’s role is to be impartial, fair, unbiased and to ensure the laws are followed.

Then what do you do when the judge is biased and unfair? Some say the judge was most definitely unfair and biased in the Turner case.  Mandatory minimums could help eliminate any personal bias one may have, say, for example, towards a successful athlete from a prestigious school, but there’s pitfalls on both sides.

Again, it’s an ongoing debate that doesn’t seem to have an easy solution. Whether focusing efforts towards crime prevention all together is the answer is left to be decided, but it seems a change must come.

Government Property Seizures Continue in New Mexico Despite Laws Designed to Prevent Seizures

A recent police seizure in the City of Albuquerque has brought national attention to New Mexico’s law restricting civil asset forfeiture. Last summer, New Mexico enacted legislation restricting civil asset forfeiture to post-convictions only. Nevertheless, it appears local police departments may be slow in implementing the new legislation.

What is Civil Asset Forfeiture?

Civil asset forfeiture is government seizure of property that is connected to a crime. For instance, the federal government or a state government may take a vehicle connected to a DWI or money related to a bank robbery.

Civil forfeiture should not be confused with criminal forfeiture. Under criminal forfeiture laws, property may only be seized after a criminal conviction. In other words, the government must prove the crime charged beyond a reasonable doubt before taking property connected to that crime. Civil forfeiture, on the other hand, does not require a criminal conviction prior to the government’s seizure.  The government need only have a reasonable belief that the property has been used in association with criminal activity. Civil Asset

It is the property that is on trial in civil asset forfeiture cases, not the individual who committed the crime. As such, the property’s owner might not be the person who engaged criminal conduct. In civil forfeiture cases, the property’s owner has the burden of proving that the property was not connected to the underlying crime. Civil forfeiture laws present constitutional problems since property may be seized and held until the property’s owners can prove innocence. Some states have provided protections for innocent third-party owners, but many states have not. States like New Mexico have begun enacting laws prohibiting forfeitures until after criminal convictions.

The Martinez Family’s Story

The Martinez’s story demonstrates the effects of forfeiture laws on innocent third-party property owners. In this case, Ashley Martinez had a mechanic friend test drive her family’s car to diagnose a transmission issue. Unbeknown to Ms. Martinez, her friend’s license had been revoked for a DWI. The two were pulled over by the Albuquerque police and the car was seized under a local civil asset forfeiture ordinance.

Since civil asset forfeiture was banned by New Mexico, it appears that there have been several instances of government seizure under a local DWI ordinance. In November 2015, the Institute for Justice challenged the City of Albuquerque’s continued seizure of vehicles.  The Institute for Justice brought suit in district court on behalf of State Senator Lisa Torraco, an outspoken opponent of civil forfeiture. In May 2016, the court dismissed the case based on standing,a technicality that the Senator was not the proper party to sue. The Institute for Justice is considering appealing the decision and is also exploring other methods to enforce the new forfeiture law.

Will the Institute for Justice be Successful in their Challenge?

Vehicle forfeitures, specifically in the case of DWIs, may be difficult to challenge. The City of Albuquerque argues that the new law does not apply to the local DWI forfeiture ordinance. Albuquerque’s city attorney Jessica Hernandez stated that the “program is a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use.”  Since the law is specifically designed for public safety, the court might allow the DWI ordinance to remain.

Continued Enforcement Problems

As the anti-civil forfeiture trend continues, local governments across the United States will likely face similar enforcement issues. Many local governments rely heavily on revenues from civil forfeitures. Local law enforcement agencies generate hundreds of millions of dollars each year from civil forfeitures. The City of Albuquerque alone has generated over $8.3 million from forfeited assets since 2010. The money provides much-needed revenue for underfunded police programs across the country. As in the case of Albuquerque, local governments would likely find legal loopholes to protect this revenue stream.

Mother Abuses 7-Year Old Son & Claims Indiana’s Religious Freedom Law as Defense

The breadth of using religious freedom as a justification for bad behavior has reached a whole new level. An Indianapolis woman abused her 7-year-old son with a coat hanger and is now claiming Indiana’s religious freedom law as a defense.

Kin Park Thaing was arrested and charged with felony child abuse and neglect of her son after his school teacher found red welts on the child’s back. The teacher contacted police and child welfare officials, after which the boy was taken to a local hospital. The examining doctor found 36 bruises and welts across the boy’s back, thigh, and left arm, as well as a curved bruise in the shape of a coat hanger across his cheek.

Thaing claims she was only stopping her son from dangerous behavior he was exhibiting towards his younger sister. According to court documents, her son could have seriously harmed his sister and she was, “worried for my son’s salvation with God after he dies.” Thaing further went on to state, “I decided to punish my son to prevent him from hurting my daughter and to help him learn how to behave as God would want him to.”

Court documents cited scripture, arguing that a parent who “spares the rod, spoils the child.”

The judge, however, wasn’t buying it and refused to dismiss the felony charges against the mother. Thaing is set for trial in October.

What is the RFRA and How in the World Can It Be Use as A Defense?

The Religious Freedom Restoration Act is a law that allows individuals and companies the right to assert their free exercise of religion when it is, or may be, substantially burdened. RFRA gained national attention when many critics argued it was a masked license to discriminate against the LGBT community.

Thaing’s attorney, however, argues that the RFRA gives the mother the right to discipline her children according to her beliefs and that the state shouldn’t interfere with her fundamental right to raise her children as she deems appropriate.

Prosecutors, on the other hand, argue the abuse went beyond religious instruction, went beyond what most parents would consider reasonable, and that, regardless, Indiana has a compelling enough interest to protect a child from abuse to outweigh Thaing’s religious right.

Argues Religious Freedom Allows Her the Right to Discipline How She Pleases

Discipline, yes. Abuse, no.  This is definitely a tricky area because, yes, parents should be allowed to discipline their children without interference. At the same time though, where do you draw the line between discipline and abuse?  It’s a slippery slope and one Indiana has already partially answered.

In 2008, the Indiana Supreme Court gave wide latitude to parents in Willis v. State of Indiana to discipline their kids when they overturned a felony conviction of a mother who used a belt or electrical cord to discipline her 11-year-old son.  Unlike Thaing’s case, no religious defense was claimed.  Instead, the court ruled that the child was struck in areas where corporal punishment was usually inflicted and, since it left no permanent damage, this particular form of discipline met the “reasonable” standard.

So, permanent damage appears to be the standard, at least in Indiana, and that leaves a lot of wiggle room for pushing the envelope between discipline and abuse. Bruises and welts certainly don’t leave permanent damage but, again, at what point do we draw the line?  Pictures of the boy’s back have been released and it’s not pretty.

Religious and Cultural Differences Once Again Make Their Way into Our Courts

Thaing’s attorneys are arguing that, as a Burmese refugee, Thaing’s failure to understand the law is merely a cultural difference and many are hoping the court will consider these differences on parenting. However, this isn’t the first time we’ve seen religion cited as a reason for actions that we would consider criminal.

In 2010, although eventually overturned, a New Jersey judge refused to grant a woman who was raped and sexually abused by her husband a restraining order because the husband’s actions aligned with his Muslim beliefs.

A good number of states are, however, against recognizing any kind of foreign or religious law into our legal system. Several states have passed legislation banning foreign and religious laws, regardless of whether or not it would permit something already legal.

In 2012, a jury refused to recognize a mahr agreement made between a woman and her husband, which entitled her to $677,000, simply because a Kansas law prohibited the application of foreign law.

Cultural and religious beliefs should be taken into consideration when determining whether there’s any malicious intent, but it shouldn’t outweigh or negate what our laws consider criminal, which leads us back to the standard that were set in the 2008 Willis decision.  If the punishment is reasonable and there’s no malicious intent, then a parent is probably within their rights.

That’s ultimately what a jury will be left to consider—a reasonableness standard. Spanking is one thing, but 36 severe bruises and welts?

AZ Supreme Court Clears Path for Recreational Marijuana Initiative

Arizona will be joining California, Maine, and Nevada in having a recreational marijuana measure on the ballot in November. The Arizona Supreme Court ruled on August 31 that a measure to make recreational use of marijuana will be permitted to be on the ballot in the fall. The ballot measure, better known as Proposition 205, aims to make recreational use of marijuana legal for Arizona residents who are 21 years of age or older.

While Proposition 205 will permit anyone who is at least 21 to possess and use marijuana without requiring them to also have a medical marijuana card, it still contains limits on the use and possession of marijuana. Arizonans who would be able to possess marijuana can only have 1 ounce in their possession at any given time. If a person possesses more than an ounce, they would be guilty of a misdemeanor. Possession of 2.5 ounces or more will still be a felony in Arizona.

This may prove to be a problem for many Arizona residents who intend to take advantage of the law if it passes, as the initiative also permits for people who are of age to cultivate 6 plants and consume everything produced by those plants. If a person cultivates a total of 6 plants but does not consume everything that all of the plants produce in a timely fashion, it may result in the person being in possession of more than 1 ounce accidentally and being in violation of the law. marijuana court gavel

A group called Arizonans for Responsible Drug Policy had filed a challenge to Proposition 205 with the intent to block it from appearing on the ballot. The complaint alleged that the supporters of the initiative used tactics to get it on the ballot that were unconstitutional. Also, the group asserted that the actual initiative violated Arizona state law in three separate ways.

First, the 100-word summary describing the proposition that was presented to voters to obtain signatures was allegedly fraudulent and misleading in its wording, meaning that people who signed the petition intended to get the measure on the ballot did not fully understand what they were signing in support for. Second, the summary failed to inform people about changes to different pre-existing laws that the initiative would enact if it passed, such as changes to employment and child custody laws. Third, the summary failed to identify a financial source to support the agency that will be created for the sole purpose of enforcing the regulations attached to the initiative.

However, the Arizona Superior Court judge who was assigned to the case ruled against the plaintiffs. First, the judge found that the Arizonans for Responsible Drug Policy did not have standing to bring the lawsuit. This was due to alterations made to the law by the Arizona legislature in 2015 that severely limited a citizen’s right to challenge any ballot initiative. The judge also took the time to address and rule against the actual claims in the lawsuit. In doing so, the judge determined that the supporters were allowed to put as much or as little information into the summary as they wanted, and that the summary was clear enough, in the judge’s opinion, that the signers of the petition knew what they were signing in support of.

The organization bringing the lawsuit did appeal the superior court’s ruling, but, as previously mentioned, the Arizona Supreme Court also ruled against the organization. Unlike the lower court, the Arizona Supreme Court did not state that the Arizonans for Responsible Drug Policy lacked standing. Instead, the Arizona Supreme Court focused only on the actual issues listed in the complaint when it issued its ruling. Thus, it is uncertain how this case may affect other lawsuits brought with the intention of blocking ballot initiatives. One thing is for certain, though, Arizona residents will be granted the opportunity to vote on whether or not they would like to have recreational use of marijuana legalized in their state.



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