Thursday, 28 June 2012

SCOTUS Upholds ACA Mandate

 From the SCOTUS Blog in Plain English: ( Opinion now available here )

Amy Howe:
"The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding" 

Tuesday, 26 June 2012

Mandatory Sentences: Why SCOTUS Got It Right

OK, to kick off the blog (be gentle, please!), a post that doesn’t relate directly to the work of expert witnesses, but concerns a big change in the law that I for one think is long overdue.

Over the years there have been numerous cases of children committing heinous acts of violence against others. But most countries in the world (with the notable exception of Iran and the U.S.) have for some time recognized that the law cannot and should not treat child offenders the same way as adults.

It must always be the case that the rights of victims trump those of perpetrators – even if the criminals were just children at the time. But in a country where the appetite amongst many citizens seems to be more for retributive justice than any desire to reform those that harm others it was always a political hot potato to even hint at changing the status quo.

But now it’s different, at least in part. Following it’s ruling in Miller v Alabama and another linked case, the Supreme Court has said that the states can no longer impose life sentences without parole for offenders under the age of 18. As Alison Parker from Human Rights Watch stated, “The Court recognized that it is nearly impossible to be certain that any child is beyond redemption – and that the US criminal justice system needs to change to reflect this fact.”

The courts may still impose a life without parole sentence in exceptional circumstances, allowing the sentencing judge to reflect public outrage at the most despicable acts.

In my view the decision is right and just. A shocking 2,500 people are serving life without parole in the U.S. for crimes they committed while a juvenile, and HRW estimate that 59 percent of them received this sentence for their very first offense, often when they were not even the primary perpetrator – a lookout at a botched robbery for example. In Michigan one in three juveniles serving life was a secondary participant.

Think back to your own childhood. Look how far you’ve come. If you’re anything like me you’re a different person in almost every way. You may have dome some things back then that you’re not too proud of. What were you thinking? 

Sheldry Topp
The case of Sheldry Topp provides a stark example of what can happen if this practice was allowed to stand. He stabbed and killed his victim during a break-in in 1962 when he was aged 17. He’s still in prison at 67. A horrible crime for sure, and he deserved punishment for it, but I just don’t see how paying millions of dollars to keep him inside for 50 years represents justice for him, his victim or society and is yet another appalling example of what can happen when the concept of retributive justice is taken too far. Before you say it, as you may have guessed I'm not an advocate of the death penalty either. Yes I know others, possibly in the majority, will disagree and they are entitled to that view, but I just can't see the sense in it.

As Alison Parker so eloquently put it: “The Court has recognized today what every parent knows – kids are different and are capable of tremendous growth and transformation. Now, it is up to judges and state legislators to ensure that every child offender has a meaningful chance to work toward rehabilitation, to periodically demonstrate their achievements, and, if merited, to earn their release from prison.”

I’m a firm believer in judges having control of sentencing and this decision goes a long way to handing back that discretion. Judges who hear all the evidence are those best placed to decide the sentence. Tie their hands and you end up with dreadful results like the recent case of Marissa Alexander. Hopefully, the decision in Miller v Alabama will bring recognition that laws requiring mandatory sentencing should be used sparingly by state legislatures in future.

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