Archive for February, 2008

Dept. of Treasury announces- When you will receive your personal check to stimulate the economy. How much will it be.

Sunday, February 24th, 2008

Dept. of Treasury Announcement regarding refunds that will be mailed out to all U.S. taxpayers:
EXAMPLES OF HOW THE ECONOMIC GROWTH PACKAGE WILL BENEFIT AMERICANS
Married with children:
1) Married couple with two children1, earned income of $4,000, no federal income tax paid.
                        Individual rebate = $600
                        Child tax credit = $600
TOTAL = $1,200
 

2) Married couple with two children, earned income in excess of $3,000, AGI = $45,000, federal income tax is $323.
                        Individual rebate = $600
                        Child tax credit = $600
TOTAL = $1,200
 

3) Married couple with two children, AGI = $48,000, federal income tax is $773.
                        Individual rebate = $773
                        Child tax credit = $600
TOTAL = $1,373
 

4) Married couple with two children, AGI = $80,000, federal income tax paid in excess of $1,200.
                        Individual rebate = $1,200
                        Child tax credit = $600
TOTAL = $1,800
 

5) Married couple with two children, AGI = $160,000, federal income tax paid in excess of $1,200.
                        Individual rebate = $1,200
                        Child tax credit = $600
                        Phaseout reduction = ($500) [5% x ($160,000 - $150,000) = $500]
TOTAL = $1,300
 

1 All children referenced in the examples are qualifying children for purposes of the child tax credit  
 

When will you receive your check?
 

 
 

The check is in the mail
Week
Last 2 digits of your SSN
Receive your check by week of
1
00 – 09
July 23
2
10 – 19
July 30
3
20 – 29
August 6
4
30 – 39
August 13
5
40 – 49
August 20
6
50 – 59
August 27
7
60 – 69
Sept. 3
8
70 – 79
Sept. 10
9
80 – 89
Sept. 17
10
90 – 99
Sept. 24
For married taxpayers who filed a joint return, the first Social Security Number on the return determines the mailing date.Source: Internal Revenue Service

Supreme Court Justices Further Resist Finding Right to Sue

Sunday, February 24th, 2008

What good is a law if it can’t be enforced?

By Robert Barnes  Washington Post  February 24, 2008
There was a time when Supreme Court justices peered into federal statutes outlawing discrimination and found between the lines the right of the aggrieved to take his complaint to court. What good was the law, they reasoned, without a means to enforce it?  

Those, Justice Antonin Scalia said last week, were “the bad old days.”
The increasingly conservative court has said often of late that it is getting out of the business of finding a right to sue that is not explicitly stated in the law — what lawyers call an “implied cause of action.”
Two discrimination cases that the court heard last week, both concerning retaliation, made plain that a sizable number of justices are deeply resistant to finding such rights and to expanding those it previously recognized.
Both plaintiffs based their cases on Supreme Court precedents, one as recent as 2005, but each encountered stiff opposition from justices who maintained that they should not provide a protection not specifically in the text of the laws.
A postal worker argued in Gomez-Perez v. Potter that the Age Discrimination in Employment Act protects federal workers from the kind of reprisals she allegedly received after she filed a complaint of age discrimination. And a black associate manager of a Cracker Barrel restaurant claimed in CBOCS West v. Humphries that a federal law derived from the Civil Rights Act of 1866 protected him from firing after he complained of racial discrimination.

Interest groups and plaintiffs’ lawyers worried about the latter case, which lacked the disagreement between lower courts that often plays a part in Supreme Court cases. They fretted that the court’s changing majority took it to restrict the right to sue, rather than to expand it.

“Nothing that happened at the oral argument caused that concern to go away,” said Jocelyn Frye, general counsel for the National Partnership for Women and Families.
Cynthia Hyndman, a Chicago lawyer who represented Hedrick Humphries, told the justices that the federal law to protect African Americans that her client relied upon would be meaningless if an employer was free to fire someone for complaining about discrimination.

Scalia, as he has held since becoming a justice, responded that it is not the job of the court to provide relief.
“I agree with you entirely that it would make sense to provide a cause of action for retaliation, but we don’t write statutes,” Scalia said. “We read them. And there’s nothing in this statute that says that.”

Chief Justice John G. Roberts Jr. wondered whether the court’s respect for stare decisis should extend to cases it believes were wrongly decided, and Justice Anthony M. Kennedy said he could not find a way to read the law that gave plaintiffs the right they wanted.

But other justices said such comments could not be reconciled with the Supreme Court’s history, both distant and more recent. 

In 1969, it found in Sullivan v. Little Hunting Park that retaliation was covered by another federal law derived from the 1866 act, even though the word itself was not specifically mentioned. Neither is the right to sue, Justice Stephen G. Breyer noted last week, but the court recognized that it was necessary “to make the statute effective.”

Added Justice Ruth Bader Ginsburg: “Wouldn’t it be odd to take these twin measures” — the one decided in Sullivan and the other relied upon by Humphries — “and say one includes retaliation and the other doesn’t?”

Less than three years ago, the court voted 5 to 4 to find that Title IX protected a basketball coach who complained about sex discrimination, even though reprisals are not mentioned in the act.

“Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination,” wrote Justice Sandra Day O’Connor in her last full term on the court.

That decision was rooted in the Sullivan opinion, which was decided in what Scalia called the “bad old days” when the court was “inferring causes of action all over the place.”

Roberts picked up the thread in questioning how the court should honor stare decisis, the idea that the stability of the law depends on the court upholding its precedents.
Sullivan would not have come out the same way today,” Roberts said during arguments in the Humphries case. “So if you’re concerned about stare decisis which body of law do you give effect to, the Sullivan case or our more recent cases on how to read statutes?”

Solicitor General Paul D. Clement, who represented the Bush administration supporting Humphries, told the justices that they have already settled that there is an implied cause of action. “We are simply asking you to interpret the scope” of what has already been granted, he said.

Justice Samuel A. Alito Jr., who replaced O’Connor on the court, asked questions that did not indicate how he will decide the case.

Eric S. Dreiband, a Washington lawyer and former general counsel to the Equal Employment Opportunity Commission nominated by President Bush, said he believes the court’s precedents “almost compelled a result in favor of Humphries.”
A decision otherwise, he said, would mark another significant shift in the court’s jurisprudence.

New Schizophrenia drug called breakthrough in neuroscience

Sunday, February 24th, 2008

New York Times By ALEX BERENSON  February 24, 2008

NORTH WALES, Pa. — SCIENTISTS who develop drugs are familiar with disappointment — brilliant theories that don’t pan out or promising compounds derailed by unexpected side effects. They are accustomed to small steps and wrong turns, to failure after failure — until, in a moment, with hard work, brainpower and a lot of luck, all those little failures turn into one big success.

For Darryle D. Schoepp, that moment came one evening in October 2006, while he was seated at his desk in Indianapolis.

At the time, he was overseeing early-stage neuroscience research at Eli Lilly & Company and colleagues had just given him the results from a human trial of a new schizophrenia drug that worked differently than all other treatments. From the start, their work had been a long shot. Schizophrenia is notoriously difficult to treat, and Lilly’s drug — known only as LY2140023 — relied on a promising but unproved theory about how to combat the disorder.

When Dr. Schoepp saw the results, he leapt up in excitement. The drug had reduced schizophrenic symptoms, validating the efforts of hundreds of scientists, inside and outside of Lilly, who had labored together for almost two decades trying to unravel the disorder’s biological underpinnings.

The trial results were a major breakthrough in neuroscience, says Dr. Thomas R. Insel, director of the National Institute of Mental Health. For 50 years, all medicines for the disease had worked the same way — until Dr. Schoepp and other scientists took a different path.

“This drug really looks like it’s quite a different animal,? Dr. Insel says. “This is actually pretty innovative.?

Dr. Schoepp and other scientists had focused their attention on the way that glutamate, a powerful neurotransmitter, tied together the brain’s most complex circuits. Every other schizophrenia drug now on the market aims at a different neurotransmitter, dopamine.

The Lilly results have fueled a wave of pharmaceutical industry research into glutamate. Companies are searching for new treatments, not just for schizophrenia, but also for depression and Alzheimer’s disease and other unseen demons of the brain that torment tens of millions of people worldwide.

Driving the industry’s interest is the huge market for drugs for brain and psychiatric diseases. Worldwide sales total almost $50 billion annually, even though existing medicines have moderate efficacy and have side effects that range from reduced libido to diabetes.

The glutamate researchers warn that their quest for new treatments for schizophrenia is far from complete. The results of the Lilly trial covered only 196 patients and must be validated by much larger trials, the last of which may not be finished until at least 2011. Other glutamate drugs are even further away from approval. And even if the drugs win that approval, they may be viewed skeptically by doctors who have been disappointed by side effects in other drugs that were once been hailed as breakthroughs.

Still, for Dr. Schoepp, the drug’s progress so far is cause for celebration — and relief.

“I don’t think people appreciate how much money, time and good technical research goes into what we do,? he says. “Sometimes, people think the idea is the thing. I think the idea can be the easy part.?

LILLY continues to develop LY2140023 and has begun a trial of 870 patients that is scheduled to be completed in January 2009. But Dr. Schoepp is no longer involved in its development. He left Lilly in April to become senior vice president and head of neuroscience research at Merck, where he oversees a division of 300 researchers and support staff members.

Dr. Schoepp’s new base is a modest office on the top floor of a four-story Merck building here in North Wales, north of Philadelphia. He has a view of the building’s big front lawn and a busy two-lane road called the Sumneytown Pike. The huge Merck research complex called West Point, where 4,000 scientists and support staff members work, is less than a mile to the north.

For Dr. Schoepp, 52, the Merck job is the latest stop in a research career that began at Osco Drug’s store No. 807 in downtown Bismarck, N.D. He grew up in Bismarck in a working-class family; at 16, he started working at the Osco, which has since closed. He quickly decided to become a scientist.

“I just found it fascinating,? he says. “I was hungry for science.? While reading a magazine for pharmacists, he noticed an ad for a free pamphlet published by Merck called “Pharmacists in Industry.? He wrote away for the pamphlet, which convinced him that he could have a career developing medicines.

He applied to North Dakota State University, where he focused on psychopharmacology, a discipline that studies the way chemicals affect the brain. “I was really interested in psychiatric disorders,? he says. “I fell in love with dopamine.?

His love affair was so consuming that his wife joked that “dopamine? would be his daughter’s first word.

Although scientists sometimes decide to study a disease because of problems it has caused among family members, Dr. Schoepp says his fascination with mental illness has been purely academic. “My family has more heart disease than anything else,? he says.

After graduating from North Dakota State, he received a scholarship to a doctoral program in pharmacology and toxicology at West Virginia University. He graduated in 1982. Nearly five years later, he joined Lilly, which was about to introduce Prozac, the first modern antidepressant — a drug that changed both psychiatry and the public perception of depression and mental illness.

Prozac became a blockbuster almost instantly after Lilly introduced it in 1987, making the company one of the most visible players in Big Pharma and giving it room to invest in long-shot scientific research. Ray Fuller, a Lilly scientist who was a co-discoverer of Prozac, encouraged Dr. Schoepp to focus his attention on glutamate.

Glutamate is a pivotal transmitter in the brain, the crucial link in circuits involved in memory, learning and perception. Too much glutamate leads to seizures and the death of brain cells. Excessive glutamate release is also one of the main reasons that people have brain damage after strokes. Too little glutamate can cause psychosis, coma and death.

“The main thoroughfare of communication in the brain is glutamate,? says Dr. John Krystal, a psychiatry professor at Yale and a research scientist with the VA Connecticut Health Care System.

Along with Bita Moghaddam, a neuroscientist who was at Yale and is now at the University of Pittsburgh, Dr. Krystal has been responsible for some of the fundamental research into how glutamate works in the brain and how it may be implicated in schizophrenia.

Schizophrenia affects about 2.5 million Americans, about 1 percent of the adult population, and it usually develops in the late teens or early to mid-20s. It is believed to result from a mix of causes, including genetic and environmental triggers that cause the brain to develop abnormally,  were developed accidentally about a half-century ago, when Henri Laborit, a French military surgeon, noticed that an antinausea drug called chlorpromazine helped to control hallucinations in psychotic patients. Chlorpromazine, sold under the brand name Thorazine, blocks the brain’s dopamine receptors. That led the way in the 1960s for drug companies to introduce other medicines that worked the same way.

The medicines, called antipsychotics, gave many patients relief from the worst of their hallucinations and delusions. But they also can cause shaking, stiffness and facial tics, and did not help the cognitive problems or the so-called negative symptoms like social withdrawal associated with schizophrenia.

In the 1980s, drug companies looked for new ways to treat the disease with fewer side effects. By the mid-1990s, they had introduced several new schizophrenia medicines, including Zyprexa, from Lilly, and Risperdal, from Johnson & Johnson. At the time, the new medicines were hailed as a major advance — and the companies marketed them that way to doctors and patients.

In fact, the new medicines, called second-generation antipsychotics, had much in common with the older drugs. Both worked mainly by blocking dopamine and had little effect on negative or cognitive symptoms. The newer medicines caused fewer movement disorders, but had side effects of their own, including huge weight gain for many patients. Many doctors now complain that the companies oversold the second-generation compounds and that new treatments are badly needed.

“People say that there are drugs to treat schizophrenia,? says Dr. Carol A. Tamminga, professor of psychiatry at the University of Texas Southwestern, in Dallas. “In fact, the treatment for schizophrenia is at best partial and inadequate. You have a cadre of cognitively impaired people who can’t fit in.?

WHILE most of the industry focused on second-generation medicines during the 1980s and 1990s, a handful of academic and industry researchers found intriguing hints that glutamate might provide an alternative treatment pathway.

Psychiatrists and neuroscientists have wondered about a possible connection between glutamate and schizophrenia since the early ’80s, when they first learned that phencyclidine, the street drug commonly called PCP, blocks the release of glutamate.

People who use PCP often have the hallucinations, delusions, cognitive problems and emotional flatness that are characteristic of schizophrenia. Psychiatrists noted PCP’s side effects as early as the late 1950s. But they lacked the tools to determine how PCP affected the brain until 1979, when they found that it blocked a glutamate receptor, called the NMDA receptor, that is at the center of the transmission of nerve impulses in the brain.

The PCP finding led a few scientists to begin researching glutamate’s role in psychosis and other brain disorders. By the early 1990s, they discovered that besides triggering the primary glutamate receptors — NMDA and AMPA — glutamate also triggered several other receptors.

They called these newly found receptors “metabotropic,? because the receptors modified the amount of glutamate that cells released rather than simply turning circuits on or off. Because glutamate is so central to the brain’s activity, directly blocking or triggering the NMDA and AMPA receptors can be very dangerous. The metabotropic receptors appeared to be better targets for drug treatment.

“Rather than acting as an all-or-nothing signal, they fine-tune that signal and modulate that signal,? said P. Jeffrey Conn, director of a Vanderbilt University drug research program. “It’s really an attempt to be very subtle in the way that you regulate the system.?

During the 1990s, molecular biologists discovered genes for eight metabotropic glutamate receptors, which were located at different places inside nerve cells and had different structures. The finding allowed for the possibility that drug companies could create chemicals to turn them on and off selectively, rather than hitting all of them at once.

For Dr. Schoepp and others, finding the receptors was only the first part of the struggle. They also had to find chemicals that would either block or trigger the receptors selectively. At the same time, the chemicals had to be relatively easy to formulate and capable of crossing the blood-brain barrier, which protects the brain from being easily penetrated by outside agents.

The work was arduous, but the Lilly scientists made slow progress. In 1999, Dr. Schoepp and two other scientists published a 46-page research paper that detailed scores of different chemicals that produced reactions at the glutamate sites.

At about the same time, scientists at Yale, led by Dr. Moghaddam, were demonstrating that activating metabotropic glutamate receptors in rats could reverse the effects of PCP — a seminal finding, providing the first proof that altering the path of glutamate transmission in the brain might help relieve the symptoms of psychosis.

Although the finding in rats was promising, developing animal models for schizophrenia and other brain diseases is extremely difficult, said Paul Greengard, professor of molecular and cellular neuroscience at Rockefeller University.

Even when compared with diseases like cancer, brain disorders are notoriously complex. Scientists have only a limited understanding of the chemistry of consciousness, or of how problems in the brain’s electrical circuitry affect the ability to form memories, learn or think.

 “We do not know with any of these neuropsychiatric disorders what the ultimate basis is,? Dr. Greengard says. “Let’s say you could find that too much of protein X was involved in schizophrenia. Would you then know what schizophrenia is? You would not.?

Nonetheless, the findings in rats were promising. Those studies, as well as Dr. Krystal’s tests in 2001 of volunteers given ketamine, a drug that has effects similar to PCP, hinted that the glutamate drugs might help to treat the cognitive and negative symptoms of schizophrenia. Drugs currently on the market do little to treat those symptoms.

Even before the findings at Yale, Lilly had put its first metabotropic glutamate receptor compound into human testing. Researchers initially tested the drug on patients with panic disorder, and it showed some positive results. But Lilly stopped human testing of the drug in 2001 when long-term testing in animals showed that it caused seizures.

Even so, Lilly decided that it had enough evidence to justify tests of another chemical compound, LY404039, that affected the same receptors.

“They had to take a risk on letting these drugs be tested on models or for disorders that were justified purely on pretty basic science,? Dr. Krystal says. “There is nothing with these drugs that is straightforward or makes developing them a basic path.?

When it tried to test LY404039 in humans, the company ran into yet another hurdle. The human body didn’t easily absorb it. So Lilly created a drug that the body could absorb, LY2140023, which is metabolized into LY404039 in the body.

Bingo. LY2140023 was the drug that got Dr. Schoepp jumping out of his office chair in 2006, nearly three years after the first trials in humans began. In the Lilly test, the drug was slightly less effective over all than Zyprexa, which is considered the most effective among the widely used schizophrenia treatments.

But LY2140023 also appeared to have fewer side effects than Zyprexa, which can cause severe weight gain and diabetes. The new drug also appeared to improve cognition, something that existing treatments don’t do, said Dr. Insel of the National Institute of Mental Health.

IF Lilly’s new round of tests confirms the drug’s efficacy by early next year, the company is likely to move ahead to an even larger clinical trial, involving thousands of patients, that could lead to federal approval for the compound. Still, approval is at least three to four years away, and other big drug makers are already scrambling to compete with Lilly.

In January, Pfizer agreed to pay Taisho Pharmaceutical, a Japanese company, $22 million for the rights to develop Taisho’s glutamate drug for schizophrenia. Taisho will receive more payments if the drug moves forward in development.

Since it hired Dr. Schoepp, Merck has also been moving aggressively. It has struck two deals since December to work with Addex Pharmaceuticals, a Swiss company, to develop glutamate drugs for schizophrenia, Parkinson’s and other diseases. Merck has paid Addex $25 million so far, with more payments to come if the drugs move forward.

Another glutamate drug, meanwhile, has been shown in preclinical studies to reverse mental retardation in adult rats, a finding that previously appeared impossible, Dr. Insel said.

Dr. Steven M. Paul, the president of Lilly Research Laboratories, says Lilly expects competition in glutamate research to intensify. “We’d like to believe we have a head start here, and hopefully a good head start,? he says. “But this area will heat up here; this will be an area where there will be a lot of investment.?

 

401-K plan mismanagement ripe area for consumer lawsuits

Sunday, February 24th, 2008

Federal Court ruling creates litigation opportunities for  lawyers
THE New York Times By Martha M. Hamilton  February 24, 2008
The Supreme Court’s ruling on the mismanagement of a 401(k) plan last week isn’t likely to have broad ramifications for investors saving for retirement. But it does highlight ongoing efforts to expand protections for investors managing their own retirement accounts.
About 70 million people now trust about $3 trillion in retirement savings to 401(k) plans. The accounts weren’t intended to replace traditional pensions, but as the economy has evolved, 401(k)s have assumed a primary role in preparing workers for retirement.
“Before everybody just saw it as a savings plan offered employees, and now the focus has been on the fact that this is the employee’s retirement plan,” said Robyn Credico, director of defined contribution consulting for Watson Wyatt Worldwide. “I think both the plan sponsors and the government are paying more attention because of that.”
With their growing popularity, 401(k)s have been held increasingly accountable for their shortcomings. Some individuals have sued over funds stolen or mismanaged. Class-action lawsuits have been filed over excessive fees or losses from investments in company stock.
Most complaints about problems with 401(k) plans don’t reach the level of lawsuits, said experts who help companies design or administer retirement savings plans. If you believe a mistake was made in your 401(k) plan, the first place to go is to your human resources department or to the summary description of the plan. That’s where you will be able to find the process for filing a complaint.
In some cases, questions can be resolved by calling the plan’s toll-free number, said Valerie M. Kupferschmidt, employee benefits counsel for Hewitt Associates. If, for example, you requested a change in allocation and it didn’t occur, the reason may be the fine print rather than malicious intent. Kupferschmidt said the plan’s rules may say, for example, that a change cannot be made until the first day of the month after the investment choice was made.
“Most of these issues are solved under the plan’s administrative appeal process,” Kupferschmidt said. “The plan administrator and the employee are going to go back and look at what was done, and if it’s wrong, they’ll fix it.”
The Supreme Court case zeroed in on an instance of mismanagement that an employee claimed resulted in a significant loss to his 401(k) account. Investor James LaRue claimed that his former employer failed to act on his instructions to shift his savings from one account to another, costing him $150,000. At issue was a provision in federal pension law written before 401(k) plans were proposed and which had been held to prevent individual 401(k) account holders from filing claims.
The U.S. Court of Appeals for the 4th Circuit in Richmond had dismissed LaRue’s suit on the basis that the law didn’t allow suits on losses to individual participants, only suits on overall losses to the plan. The Supreme Court said, in effect, that any loss in value, regardless of how few individuals it affected, was a loss in value to the overall plan. Now LaRue gets to go forward with his lawsuit, which will determine if there was a loss and, if so, who was responsible.
Peter K. Stris, a professor at Whittier Law School in Los Angeles who represents LaRue, said that if the court had decided against LaRue, the decision would have had broad ramifications because it would have prevented the Labor Department or companies that sponsor plans from suing if funds were stolen or mismanaged.
Martha Priddy Patterson, a director with Human Capital Practice, part of Deloitte Consulting, said she thought the court decision would also cause employers to take a second look at plan administration. “It will focus plan sponsors on using people who get it right and get it right the first time,” she said.
The high court’s decision is expected to have little impact on lawsuits that claim 401(k) plan fees are too high or that employees lost money on company stock. That’s because those are filed as class-action suits rather than as complaints by individuals.
More than a dozen cases have been filed against major employers including Lockheed Martin and Kraft Foods alleging that administrative fees for 401(k) plans were too high and cut in to investment earnings.
The spotlight on 401(k) shortcomings has driven efforts at improvement. Coverage for employees has been expanded and enrollment has been made easier. The guesswork of savings choices also has been reduced by providing employees with default investments that adjust automatically as they age.
 

Judicial Nominating Commission announces names of nominees for vacant District Court judgeship in McCreary and Whitley counties

Saturday, February 23rd, 2008

Feb. 23, 2008 

FRANKFORT, Ky. — The Judicial Nominating Commission, led by Chief Justice Joseph E. Lambert, today announced the three nominees to fill a vacant district judgeship for the 34th Judicial District, Division 2, consisting of McCreary and Whitley counties.

The three attorneys named as nominees to fill this vacancy are Jane R. Butcher, Jason P. Price and Fred Franklin White, all of Williamsburg.

The District Court judgeship was left vacant by Judge Daniel L. Ballou, who was elected circuit judge for the 34th Judicial Circuit, Division 1, consisting of McCreary and Whitley counties. 

Judicial Nominating Process
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission publishes a notice of vacancy in the judicial circuit or the judicial district affected. Attorneys can recommend someone or nominate themselves. The names of the applicants are not released. Once nominations occur, the individuals interested in the position return a questionnaire to the Office of the Chief Justice. Chief Justice Lambert then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply. A letter naming the three nominees is sent to Gov. Steve Beshear for review. The governor has 60 days to appoint a replacement, and his office makes the announcement.

District Court
District Court is a court of limited jurisdiction which hears civil cases involving $4,000 or less, juvenile matters, city and county ordinances, misdemeanors and cases relating to domestic violence and abuse, guardianships for disabled people, traffic offenses, small claims, probate of wills and felony preliminary hearings. 

The Administrative Office of the Courts in Frankfort supports the activities of 4,000 Kentucky Court of Justice employees, including the elected offices of justices, judges and circuit court clerks. 

High Court Says No to Wiretapping, Yes to Exclusionary Rule

Friday, February 22nd, 2008

by Dan Slater – Wall St. Journal – Feb. 22, 2008 

Yesterday, the Supreme Court granted cert in a case that, commentators say, gives them an opporunity to carve out more exceptions to the “exclusionary rule,? a criminal procedure doctrine that excludes evidence obtained from an unlawful search. At the same time, the Court, without comment, turned down an appeal from the ACLU that challenged the Bush administration’s warrantless-wiretapping program. 

The exclusionary rule, a 100 year-old doctrine that eliminates evidence obtained as the result of an improper search, could lose some of its force if the Court rules for the government in Herring v. U.S. According to reports, the question in the case is whether
the exceptions should include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police. The Court’s acceptance of a criminal defendant’s appeal usually means it’s inclined to overturn the conviction, notes the NYT. But if the Court, as expected, uses the Herring case to carve out another exception to the exclusionary rule, the appeal — which was prepared by the students of Stanford Law School’s Supreme Court litigation clinic — might turn out to be a case for Herring of “watch out what you wish for.? 

In ACLU v. National Security Agency, the ACLU challenged — on behalf of itself, other lawyers and reporters — the administration’s wiretap program of eavesdropping on global telephone calls without a warrant. The plaintiffs allege the program has forced them to alter how they communicate with foreigners who are likely wiretap targets. A federal judge in Detroit largely agreed with the plaintiffs, but the 6th Circuit Court of Appeals dismissed the suit because the plaintiffs couldn’t show they’d been wiretapped unless they had access to information that was protected by government’s “state secrets privilege.? 

U.S. Sup. Ct. Shields Medical Devices From Lawsuits

Friday, February 22nd, 2008

By LINDA GREENHOUSE Published: February 21, 2008 

WASHINGTON — Makers of medical devices like implantable defibrillators or breast implants are immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it meets the agency’s specifications, the Supreme Court ruled on Wednesday

The 8-to-1 decision was a victory for the Bush administration, which for years has sought broad authority to pre-empt tougher state regulation. 

In 2004, the administration reversed longstanding federal policy and began arguing that “premarket approval? of a new medical device by the F.D.A. overrides most claims for damages under state law. Because federal law makes no provision for damage suits against device makers, injured patients have turned to state law and have won substantial awards. 

The Bush administration will continue its push for pre-emption in another F.D.A. case that the court has accepted for its next term, on whether the agency’s approval of a drug, as opposed to a device, pre-empts personal injury suits. Drugs and medical devices are regulated under separate laws. 

The case before the court concerned only medical devices that had gone through the premarket approval process specified by the Medical Device Amendments of 1976. Most devices now available reached the market through a different process, under which the F.D.A. found them to be “substantially equivalent? to those marketed before the 1976 law took effect. 

The Supreme Court ruled in 1996 that this less rigorous approval process does not pre-empt state damage suits against the manufacturers of “grandfathered? devices. 

Devices subject to the premarket approval process, and thus affected by the court’s opinion, tend to be more technologically advanced, expensive and, in some instances, risky. 

Examples of devices that have been the subjects of recent lawsuits include an implantable defibrillator, a heart pump, a spinal cord stimulator, a drug-coated stent, an artificial heart valve, and prosthetic hips and knees. 

It was not immediately clear how many of the thousands of lawsuits against medical device manufacturers would be affected, though some pending cases will almost certainly be nullified. 

The decision, for example, does not foreclose lawsuits claiming that a device was made improperly, in violation of F.D.A. specifications. Cases may also be brought under state laws that mirror federal rules, as opposed to supplementing them. 

Next Monday, the court will hear another F.D.A. pre-emption case, on whether a state case can be based on the claim that a drug maker committed fraud by misrepresenting or withholding information from the agency during the approval process. The administration is supporting the manufacturer in that case, Warner-Lambert Co. v. Kent, No. 06-1498, which concerns the diabetes drug Rezulin. 

Writing for the majority in Wednesday’s case, Riegel v. Medtronic Inc., No. 06-179, Justice Antonin Scalia said that permitting state juries to impose liability on the maker of an approved device “disrupts the federal scheme,? under which the F.D.A. has the responsibility for evaluating the risks and benefits of a new device and assuring that it is safe and effective for its intended use. 

A jury, looking only at the injured plaintiff, will tend to weigh only the dangers of a device and “is not concerned with its benefits,? Justice Scalia said, adding, “the patients who reaped those benefits are not represented in court.? 

The decision affirmed the dismissal of a lawsuit by a patient who was injured during an angioplasty when a balloon catheter burst while being inserted to dilate a coronary artery. The device won F.D.A. premarket approval in 1994, two years before the incident. The patient, Charles R. Riegel, died after the lawsuit was filed, and the case was carried on by his widow, Donna. 

The medical device statute contains a pre-emption clause that bars states from imposing “any requirement? related to a medical device that is “different from, or in addition to? a federal requirement. The question of statutory interpretation at the heart of the case turned on what Congress meant by “any requirement.? 

Justice Scalia said that state tort law, by imposing duties of care on product makers, amounted to such an additional requirement. He said the 1976 law “speaks clearly to the point at issue,? regardless of the federal government’s previous or current positions. 

Justice Ruth Bader Ginsburg, the solitary dissenter, said the court had misconstrued Congress’s intent in adding the pre-emption clause to the 1976 law. The purpose, she said, was to prevent individual states from imposing their own premarket approval process on new medical devices. Devices were not regulated under federal law at the time, and California and other states had stepped in to fill the vacuum by setting up their own regulatory systems. 

That was all that Congress had in mind, Justice Ginsburg said, not “a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices.? She said that Congress had passed the 1976 law “to protect consumer safety,? not to oust the states from “a domain historically occupied by state law.? The decision was at odds with the “central purpose? of the 1976 law, Justice Ginsburg added. 

Crucial Democratic lawmakers appear to agree with Justice Ginsburg, including Senator Edward M. Kennedy, Democrat of Massachusetts, who heads the Health, Education, Labor and Pensions Committee and was the sole Senate sponsor of the 1976 legislation in question. 

“In enacting legislation on medical devices, Congress never intended that F.D.A. approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices,? Mr. Kennedy said in a statement. He added: “Congress obviously needs to correct the court’s decision.? 

Representative Henry Waxman, the California Democrat who is chairman of the House Committee on Oversight and Government Reform and was on the House panel that approved the 1976 bill, expressed a similar view. 

“The Supreme Court’s decision strips consumers of the rights they’ve had for decades,? Mr. Waxman said. “This isn’t what Congress intended, and we’ll pass legislation as quickly as possible to fix this nonsensical situation.? 

The Food, Drug and Cosmetic Act of 1938, under which the F.D.A. regulates pharmaceuticals, does not contain a pre-emption clause. Nonetheless, the administration is arguing in the case the court has accepted for its next term, Wyeth v. Levine, No. 06-1249, that pre-emption is implicit in the structure of the statute. 

The Supreme Court’s interest in pre-emption is not limited to the medical arena. In a similar case decided on Wednesday, this one unanimously, the court ruled that the federal law that deregulated the trucking industry in 1980 pre-empted two recent laws adopted by the State of Maine to regulate the shipment of tobacco products into the state. 

The state laws were intended to prevent children who were not of legal age to buy cigarettes from ordering them over the Internet. The laws placed responsibility on shippers and delivery companies to verify the recipient’s identity and age. 

Justice Stephen G. Breyer, writing for the court in this case, Rowe v. New Hampshire Motor Transport Association, No. 06-457, said the state law “produces the very effect that the federal law sought to avoid, namely, a state’s direct substitution of its own governmental commands for competitive market forces? in a deregulated environment. 

Barnaby Feder contributed reporting from New York and Gardiner Harris from Washington. 

U..S. Supreme Ct. Decision allows 401(k) participants to sue over losses

Friday, February 22nd, 2008

Star news services Feb. 22, 2008

Individual investors in 401(k) retirement plans secured a big victory this week — the right to sue to recover losses under certain circumstances. 

The unanimous decision by the U.S. Supreme Court has implications for 50 million workers with $2.7 trillion invested in 401(k)s. 

The case before the Supreme Court involved James LaRue of Southlake, Texas. He claimed that the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments. 

At issue was whether federal pension law, which allows lawsuits on behalf of a group of employees, also allows an individual to sue over losses in his or her account in a 401(k) or similar plan. 

Justice John Paul Stevens, in his opinion for the court, said such lawsuits are allowed. The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va. 

Retiree advocates praised the decision. 

“We’re excited about it,? said Rebecca Davis, a staff attorney with the Pension Rights Center, a retiree advocacy group in Washington. 

Employers — or whomever they appoint in their fiduciary position — have an obligation to run retirement plans as “prudent experts? on behalf of participants. Failure to do so can invite litigation, Gregory Ash, a Kansas City area pension attorney, told The Wall Street Journal

Recent lawsuits have included allegations that employers offered retirement plan participants unwise investment choices, or allowed investment managers to charge participants unreasonably high fees. 

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan’s administrators. 

“Defined contribution plans dominate the retirement plan scene today,? Stevens said. 

Many traditional pension plans guaranteeing a fixed monthly benefit have been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers. 

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue’s lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators failed to live up to their duties. 

Business groups supported LaRue’s employer. They argued that federal law is aimed at encouraging employers to set up pension plans while guarding against administrative abuses involving plans as a whole. 

Employers may find solace in a minority opinion by Chief Justice John Roberts. While concurring with the majority, his opinion appeared to offer companies a road map for fighting similar cases in the future — that cases could be brought under a different provision of federal pension laws. 

Norman Stein, a University of Alabama law professor specializing in pension law, praised the court’s ruling, saying it stemmed from a common-sense reading of federal law. 

“How in the world could this ever really have been uncertain?? Stein said. 

 

Boone Commonwealth Attn. tells of family in need.

Thursday, February 21st, 2008

 

 LInda Smith, Commonwealth Attorney for Gallatin and Boone
Counties informed us of a family in need.  We invite you to join us in making a donation. 



From: Linda [mailto:lindatsmith@fuse.net]
 Thursday, February 21, 2008 
Subject: Family of Kevin Williams 

As I spoke to several of you about this week in court, Kevin Williams, a former deputy here in Boone County, died unexpectedly of a massive heart attack this weekend at 37 years of age.  He leaves behind a beautiful wife, and two adorable children, Kaitlyn (9) and Kennedi (6).  As I’m sure you can imagine, this has been a tremendous shock to the family. 

I have known Kevin for about 14 years, since the days when he was a deputy jailer in Carroll County, then a Carrollton Police Officer, then a Boone County Police Officer, then Deputy Sheriff and canine officer.  His wife was the charge nurse when my son Jake was born.  In short, they were a wonderful young couple with so many dreams for the future, just like the rest of us. 

Unfortunately, Kevin was going to school at the time of his death, and did not have any life insurance.  As such, his family is likewise left financially devastated.  The Sheriff’s Department is currently involved in a large scale attempt to raise money on behalf of the children’s education fund.  I am quite confident that any donation, large or small, would go a long way towards easing this family’s long term fears.  And, as always, your prayers would be greatly appreciated. 

Please send any donations made payable to “The Williams Children Educational Fund?.  You can either send them directly to the Sheriff’s Department, or you can drop them off or mail them to my office at

2995 Washington Square, PO Box 168, Burlington, Kentucky 41005-0168

While I hate to impose on such good friends, I simply knew that you were definitely the group that this message needed to go to.  Thank you in advance. Linda Smith

Fans File Federal Class Action Lawsuit Against New England Patriots and Coach Bill Belichick over Cheating Scandal

Friday, February 15th, 2008
February 15, 2008   

            Attorney Eric Deters of Independence, Kentucky, one of the attorneys involved, has filed a Class Action lawsuit in behalf of fans in Federal Court in New Orleans. The suit is filed in behalf of a former St. Louis Rams professional football player and the fans who purchased season tickets and fans who purchased tickets to the 2002 Super Bowl.  

The basis for the lawsuit is the alleged fraudulent videotaping of the 2002 Super Bowl (XXXVI) of the St. Louis Rams “walk-through? by the New England Patriots.  The Plaintiffs are Willie Gary, a Rams employee and football player; an owner of a St. Louis seat license and two ticket purchasers and attendees of the Super Bowl.  

The NFL has fined Coach Belichick $500,000 for acts which violated league rules. The violations for which he was sanctioned provides the basis for this lawsuit. 

The lawsuit alleges fraud, interference with contractual relations and violation of several statutes. 

The lawsuit  requests class action status for three classes:

1.                  All Rams players, coaches, staff and employees of the 2002 Super Bowl team.

2.                  The 72,922 fans who attended the game.

3.                  All owners of St. Louis seat licenses in the 2001 and 2002 season.

            It seeks over $35 million in damages; plus a request these damages be tripled under Civil Rico; plus punitive damages; plus attorney fees.  Therefore, the total damages exceeds $100,000,000. 

            Eric Deters will be lead trial counsel.  Hugh Campbell is co-counsel focused on damages. John Young is co-counsel and local counsel in New Orleans.
 

REPORT SHOWS LINK BETWEEN EDUCATION AND PROSPERITY IN KENTUCKY

Friday, February 15th, 2008

February 15, 2005
 
County information is available at http://www.cpe.ky.gov/info/county.
     The Council on Postsecondary Education released Kentucky’s 2008-10 County Profiles today, which shows that counties with high numbers of college graduates also have high household median incomes. Of the top 20 counties in the number of adults with a bachelor’s degree or higher, 65 percent (13) of those counties also rank in the top 20 counties with the highest median household income.

     “This report confirms the direct connection between education and quality of life,? said Brad Cowgill, interim president of the Council on Postsecondary Education.

      The 2008-10 County Profiles report, a biennial publication of the Council, compiles data from national, state and other resources to provide education-related profiles of 120 counties, 15 area development districts and eight public postsecondary institution service regions. The report also contains charts and maps that highlight some of the Commonwealth’s more critical issues such as poverty, unemployment and Medicaid.
 
      Profiles include information regarding:
• Educational attainment (including the percent of the population with/without a high school diploma and with/without a college degree).
• College readiness and participation (including the number of students entering or graduating college in 2006-07).
• Employment by sector
• Undergraduate enrollment (including alumni residing in the county/region and fall 2006 enrollment by postsecondary institution)
• Financial aid (including number of awards and total state and federal aid dollars awarded)
 The report found that only five of Kentucky’s 120 counties are at or above the national average in the percentage of adults with a bachelor’s degree or higher. These counties include Fayette (35.6%), Oldham (30.6%), Woodford (25.9%), Jefferson (24.8%) and Warren (24.7%). The national average is 24.4 percent and the overall Kentucky average is 17.1 percent.
     Other key findings of the report show:
• Four counties need less than 500 additional bachelor’s degree holders to meet the national average: Calloway (75), Franklin (180), Robertson (246) and Rowan (311).
• Eight counties are above the national average of $41,994 in median household income including: Oldham ($63,229), Boone ($53,593), Woodford ($49,491), Scott ($47,081), Spencer ($47,042), Shelby ($45,534), Anderson ($45,433), Bullitt ($45,106) and Kenton ($43,906) Counties.
• In 23 counties, 60 percent or more of high school graduates enrolled in a Kentucky college in 2006; the highest college-going rate occurred in Robertson County, where 69 percent of high school graduates enrolled in college. In eight counties, less than 40 percent entered college in 2006.
• In 16 counties, 30 percent or more of the population is living in poverty. Statewide, 15.8 percent of Kentuckians live in poverty, topping the national average of 12.4 percent.
     To view the full report, visit the Council’s Web site at http://www.cpe.ky.gov/info/county.
###

Kentucky is in the middle of the most dramatic economic and social transformation in its history. Double the Numbers: Kentucky’s Plan to Increase College Graduates explains that increasing bachelor’s degrees is the quickest, most direct way for Kentucky to increase its economic prosperity. College graduates earn more, are healthier, create a more robust economy, and enjoy a higher quality of life. The Double the Numbers plan outlines five statewide strategies for Kentucky to achieve this ambitious, but achievable goal. While this effort will not be easy, the benefits of Doubling the Numbers will be felt by all Kentuckians
 

Professor Lawson on prison crowding, tough sentencing laws, and the need for reason in our corrections policy.

Friday, February 15th, 2008

Feb. 15, 2008-   In 1970, we had 96 people in prison per 100,000 population. It’s gone up 400 percent. I don’t buy the argument that it’s the crime rate that’s driving up the prison population. It’s tougher penalties across the board.

To read full article go to:  Lunch With…Robert Lawson

See other articles on this topic:  Professor Lawson’s study on Ky. Sentencing Laws that are filling our prisons and breaking the budget. 

Fix sentences now – Courier Journal Editiorial Nov. 21, 2004
Liberalizing penal code could increase crime threat- Ray Larson
‘A better and safer society’ By Ky. Lt. Gov. Stephen B. Pence takes on Ray Larson
 

Excerpts from Courier-Journal Interview with Professor Lawson:

Doesn’t the public want the state to be tough on crime?

Bob Stivers, the chairman of the Senate Judiciary Committee, made this point to me once. He said, “Isn’t it true that all we’ve done is to just give people what they want?”

And I said, “I agree with you. The public demanded it. They got angry. But somebody’s going to have to stand up and lead the public.”
What did they get angry about?

A whole bunch of things. The Vietnam War was a part of it. We had some very aggressive groups in the country. We had assassinations. We decided, “We’re going to deal with our criminal problem by getting tougher.”

That’s what we’ve done over a 30-year period. We’ve jacked up every penalty we’ve got. In 1974, we had two main prisons and a small prison for women. We’ve now got 13 state prisons, three private prisons, and 8,000 backed up in the jails.
 

Why are so many backed up in jails?

Without approval, we started probably in the early 1980s, like ’83 or ’83, leaving state inmates in local jails. We were under a federal court order not to put any more people in the prison system, so we just started leaving them in the jails.

The counties and inmates in the jails sued, and that case made its way up to the Supreme Court. The Supreme Court ruled in favor of the counties to this extent: While the state could house inmates in the county jail system, they had to pay the counties for that.

So they started doing it, and then it became a policy. They’ve been doing it since. They started doing it in a more significant way in the late 1980s, and it’s gotten gradually worse.

My objective was to look first hand at this and see what was happening in the jails. So I went to nine jails and then I went to three prisons. What I was trying to do was see what it was like in the jails for these state inmates in comparison to what it would be like if they were in the state prison system.

And what did you find?

I think the worst thing we’ve done on this tough-on-crime philosophy was to back away from a practice we had used from the beginning — 100 years anyway — of separating felons and misdemeanors, major and minor offenders. We’d always used jails for minor offenders, prisons for major offenders. And so when I got out there and looked at it, I found that the circumstances under which the inmates are kept in the jail system are disgraceful almost.

It would be one thing for somebody to be in a jail for 10 days or 30 days, but there are people who are in there, some of them sentenced to 10 years.

And they stay in the jails the whole time?

Well, I didn’t find any who had been there that long, but in every jail the jailer would identify people that had been in there three and four and five years.

Now here’s the problem with it: Jails are not designed anymore like they used to be. Jails had cells, and the inmates were in cells. They now have what jail people call “dormitories.” That’s a misnomer. I call them “pods.” They’re bigger areas, and they keep inmates in groups. They’re supposed to have so many square feet per inmate. Those are state jail standards.

What I’ve found in every jail I was in except one: They had more inmates than they were supposed to have by the standards. They had them sleeping on the floor. On average, these inmates spend I’d say 23 hours a day in there, because they eat there, they sleep there, use the bathroom there — they live there. If you have a family room at home that’s 20 X 20, that would be 400 square feet. They would have 10 people living in that space around the clock.

And they’re supposed to have exercise activity under these jail standards, but they don’t have personnel for that. And the way the jails are now, they don’t have facilities for it. Most of the jails I visited had a sort of miniaturized basketball court in the middle of it. That was for their exercise activity. In the nine jails, I only saw people in the exercise area in one jail. For one thing, they’re open in the top to let air in, and in bad weather they can’t be used. Or there’s a lack of personnel in the jails to do it.

Why should people care if people in jail are crowded and don’t get exercise?

I’ve got two answers to that question, one for myself and one for everybody else, I guess.

I think that historically and in our Constitution we insisted that people be treated decently and fairly. We have a provision in the Constitution that prohibits cruel and unusual punishment. That doesn’t mean as much as it once did, but in some of the things I saw it bordered on that. These are human beings. When I go and look at the jail cells and see them, they’re misfits. They’re different from most of us, but they’re still human beings. That’s what I say to myself.

 

Now, here’s what I say to the public. Most of the inmates we lock up in the jail system are going to be in there for a while, and then they’re going to come out of there. They’re going to come out of there, in my opinion — because of the way we’re treating them — meaner than they were when they went in. Now whenever you look beyond the jails to the corrections system itself — I’m talking about prisons and what we’ve been doing now for almost 30 years — we’ve got so many locked up in this country — we’ve got 2.25 million people locked up. We’re releasing every year from just the federal and state prison system 500,000 people. They’ve been kept there longer than at any time in our history. They’ve been kept away from their families longer, away from their communities longer; they have been kept under the worst conditions in our recent history; they’ve had less done for them than any group in our recent history, all because of the number that we’re locking up, and we’re releasing them into a re-entry system that is incapable of helping them. Because there are so many on probation or parole — we’ve got about 5 million in the country on probation or parole.
If you go back into the 1950s or early 1960s, at that time we had about 500,000 people in this country in state mental hospitals. We adopted a policy or a philosophy at that time that we were going to get them out of those hospitals and get them out into the communities, where they would get community treatment.We dealt with that on the front end and got them out of the hospitals. We didn’t deal with it on the back end, and so today we’ve got about 50,000 people in state mental hospitals. Our population has doubled and we’re down from 500,000 to only 50,000, and where are the rest of them?Well, many of them are on the streets. These are the homeless people. But when you go into these jails and prisons, you see it. You don’t have to be a mental health expert to see that many of these people have serious problems.

The numbers at the jail are a little scary to me. I keep up with their daily count. The last day of 2007, there were 22,468 state inmates. 7,946 of them were in the jail system.So more than 25 percent of them were in jails.The first day of January 2007, there were 20,217. It went up 10 percent last year. 5,700 were in the jail system, and now they’re at 7,900. So virtually the whole population increase last year went into the jail system. And I can tell you, they’re not adding space. They’re just adding inmates to the same space. And it was already crowded.

I’m looking and I find in virtually every jail I’m in inmates sleeping on the floor. So I come back and I get into these regulations and I discover it’s 2005 and they have lowered their standards now to 40 square feet per inmate. You know how much space there is? Stretch out your arms and circle yourself, and it’s that much space.Why does that matter? In our country, under our system, we have to insist on decent treatment of people we lock up.

And then, what I would say to the public is that you had better realize all of these people are going to emerge from these places and they’re going to live beside you. They’re going to live in our communities. And if we put them under conditions that make them worse than they were when they went in, then I think we pay the price. And I quite frankly think the day of reckoning for that is at hand, because we’ve been doing this now for 25 years.

One thing that makes conditions worse is that you’re not separating felons from misdemeanors?Certainly not in the jails. Here’s what you’ve got in the jails: inadequate space. The first jail I went in, the jailer had 146 beds. He had 280-some inmates. He had almost as many on the floor as he had in the beds.There’s no space in those places. You’re crowded into pod areas, and you’re there basically around the clock.

They mix there inmates who are awaiting trial — more likely there would be offenders charged with felonies in jail waiting trial. You’ve got people in there who’ve been convicted of minor offenses like public intoxication, drunk driving — basically misdemeanor offenders. And then you’ve got this large group of Class D and Class C felons. And there is not enough room in those facilities to do any kind of classification. Wherever he’s got room is where the inmates go.

And to some extent jails are worse than prisons in that regard. There’s nothing they can do when the inmates are brought there for them. They’ve basically got to house them.

Would it be cheaper in the long run to find the money to initiate these programs than to save money by not spending it on programs in jails and prisons?I think there are a host of things that we could do and we need to do. What we decided probably in the early part of the `70s — and Bob Stivers, the chairman of the Senate Judiciary Committee — he’s one that made this point to me once when they asked me to come over there and speak to the Crime Council about the penal code and how we had enacted it in the `70s, and after I did all that we had a discussion about what to do about it, and he said, “Professor Lawson, isn’t it true that all we’ve done is to just give people what they want?”And I said, “Well, I agree with you. I think the public led us into this. They demanded it. They got angry. But somebody’s going to have to stand up and lead the public.”


The reason we don’t have enough money in our drug treatment programs, the reason we can’t figure out how to deal with those who have a mental illness is because we’re spending a lot of money to lock people up.When we enacted that penal code in 1974, we had two main prisons and we had a small prison for women in Pee Wee Valley. We’ve now got 13 state prisons, and we’ve got three private prisons — all full. And we’ve got 8,000 backed up in the jail system.Are we safer now?

I believe the public has been sold a bill of goods on that. People argue that we’re safer because of this. I went back into the best source of data you can get on crime rates and incarceration rates, which is from the Bureau of Justice Statistics, the U.S. Department of Justice. What I found, going back from 1970 to 2000: In 1970, the crime rate was 3,985 for every 100,000 population. In 2000, it’s moved barely 2 or 3 percent. It’s 4,125 in 2000. That’s 140 more. This doesn’t include the people in the jail — this is just prisons.

In 1970, we had 96 people in prison per 100,000 population. It’s gone up 400 percent.

I don’t buy the argument that it’s the crime rate that’s driving up the prison population. It’s tougher penalties across the board. And also, tougher enforcement: There’s tougher enforcement of the drug laws.

But I think the public has been persuaded on this.

So if the legislature were to do a couple of things to get the system back in synch, what should those things be?That’s a hard question, because of the complexity of this.I would put very high on the list to reverse some of these modifications of the law that have jacked these penalties up. Let me give you a couple of examples of that.

We had a persistent felony offender law — I wrote the thing. We enacted it in 1974. This is how it worked in 1974: It was based on the philosophy of give them a chance to correct their ways — rehabilitation — and when we reach the point where we decide that won’t work, then we go to these elevated penalties.

That law required that a defendant commit a felony crime, go to prison, get out of prison, commit another felony crime, go to prison, get out of prison, commit a third felony crime, and then you could use these penalties against them.

In the period from the enactment of that law to 1980, we had, I think, about 79 inmates who were carrying these elevated penalties. We changed that law, and here’s what we did to it: We eliminated the requirements that you had been in prison before, so you can now get these elevated penalties if you have never stepped foot in prison.

In addition to that, we eliminated the requirement that you have a third felony offense, so now we’ve got a persistent felony offender in the second degree. So we jacked those penalties up for the first time, then he repeats, and then we’ve got a persistent felony offender in the first degree where we jack them up again as a third offense.

On top of all that, every crime that we have in the drug laws has what we call a two-strike provision in it — that is, the penalties get jacked up if he’s got a prior drug conviction. Drug offenders are notorious repeat offenders, so every crime except possession of small amounts of marijuana had one of these on these two-strike provisions. Now, that two-strike provision operates independently of the first one I described, the persistent felony offender. So if you get a drug offender, he’s caught with small amounts of cocaine — now that’s a felony crime. If he had an earlier drug crime, that gets jacked up. If he had a property crime to go along with that, that gets jacked up. So where he would have been in a one-to-five-year range, now he’s in a 10-to-20 range.

Here are other things you find in these laws. There’s a crime trafficking in drugs within 1,000 yards of a school. Now I’m sure that when that law got enacted, they visualized guys out here peddling drugs to school children.

I spent a whole summer in the Fayette Circuit Clerk’s office going through a year’s worth of cases, and I was looking at these PFO laws and I was looking at the drug cases. And there have been a lot of drug cases involving this offense called trafficking within 1,000 yards of a school. What I found in every single one of them was either a car was stopped within 1,000 yards of a school and had drugs in it, or somebody had drugs in their house and lived within 1,000 yards of a school. Within 1,000 yards of a school is anyplace in Lexington, Louisville, Covington, Ashland — I live within 1,000 yards of three schools right now. There wasn’t one of those cases I looked at that involved peddling drugs to school children.

I bet out of these cases I examined, I would say there were 500 drug cases. I kept looking for one where I’d say, “OK, we locked this guy up and it makes a difference.” And I don’t think I found one. These are petty drug operators. In terms of getting somebody off the street where it would matter, I didn’t see any.

These are the misfits. They’re the ones that get caught.

I would deal with these laws that have jacked these penalties up first.

Parole Board
 
So I traced those statistics. They get a parole case, and they can release him, defer the defendant, or order him to serve out his sentence. What I found was that over a period of about 25 years, the parole rate dropped about 50 percent. Around 1980, when they had a hearing, that release rate would have been about 60 percent. You come up to the current time when I was looking at, which was ’04 or ’05, and that was down to about 30 percent.I went to the other end and I looked at the pre-trial release rates. This is what we call bail. You can’t release anybody who’s charged with an offense without running two risks: one is he won’t show for trial; the other is he’ll commit another offense. You cannot eliminate that. I went back to the early `80s, and I found that we were releasing about 40 percent of the defendants who were charged with a crime. They got out ahead of trial on bail or on other kinds of conditions. I traced that to last year and it’s down to almost 20 percent.Was there a reason for that change of attitude?

I think they’re afraid to release somebody because they’re afraid they’ll commit a crime and they’ll get blamed. I’m not being critical of them, I’m just saying attitude is a big part of this: the attitude of the parole board; the decision on pre-trial release is a decision by court judges.


I’m trying to show how those persistent felony offender laws used — this elevated penalty law gets sold to the public as a law to be used against serious, dangerous offenders. I would say that for every two of those it comes into play against, it will come into play against 50 drug offenders, small-time property offenders.
So what’s the solution? Certainly people ought to feel safe in their own houses and neighborhoods.I don’t disagree. I feel like if the public go into these jails and see what I’ve seen, I think they would find it unacceptable.

I don’t believe they fully appreciate it. They see the evening news — they call it the evening news; they ought to change it to the evening crime report. That’s all it is. So you get this distortion of the reality.

But just remember what we’re doing now that we’ve got so many people locked up in the country. We’re releasing 500,000 people a year from prison. Think about that. That’s more coming out of prison in a year than we had incarcerated when we started on this thing. If you go back to 1972, we had about 320,000 people locked up in our country. We’ve now got 2.25 million people locked up. We lock up more people than anybody on earth.

In mid-year 2005, the incarceration rate in the whole world was 140 per 100,000 population. Our rate was 738. I’m sure it’s 750 now. Is there something about our society that would justify that? Are we more violent? More dishonest? More corrupt? I don’t think we are.

I think somewhere along the line, we decided we’re going to deal with this by being tough, and we jacked up our penalties, and I think it’s basically the harshness of our penalties that accounts for this. It’s harshness at the front end, and it’s harshness at the back end.

Here’s another thing we do: As we’ve gotten overloaded, they used to have to have a face-to-face meeting with inmates when they are up for parole. Now you still have to have a face-to-face meeting between the parole board and the inmate if you’re in prison, but if you’re in jail they don’t see them face to face.

If I’m trying to find inmates who would be more likely to stay out of trouble if they got out of jail, and would not threaten public safety, it would be the ones in the jail and not the ones in the prison. The serious offenders are the ones in the prison system. But the rates show that more prison inmates get paroled.

Early on in the Governor’s budget speech, he talked about, “Look at us. We had 3,000 inmates. We now have 22,000 inmates. We need to control this.” He’s going to put the task force together.Within 30 minutes, though, he’s talking about building a new prison. Going up to Sandy Hook, and his claim that we need this to house the dangerous offenders that we have. We have a lot of offenders locked up who aren’t a threat to anybody.He said it costs $39 million or something. That facility that they put there opened about three years ago. It’s got about 950 inmates. It cost $97 million to build that. He says what they call their second phase of it — they’ll never build it for any $39 million. These are very expensive to build.

When we embarked on this tough-on-crime philosophy, our corrections budget was about $10 million, in the `70s. Next year, the proposal is for $454 million, and then $478 million for the year after that. So we’re approaching a half a billion dollars for that.

And this does not include any construction costs. This is just operating costs. But I’m telling you: This isn’t close enough to do what they ought to be doing here.

I think contracting the size of this system — I can’t imagine what they’ll do next year if they get another 10 percent increase.

Earlier you were talking about attitude. What attitudes need to change?

Well, the public first. I think the public needs a better understanding of what is going on here. The public needs to understand what we’ve done here, and what we’re doing and whether or not it makes any sense. And it’s my belief that what we’re doing here does not make any sense, whether you’re talking about the way you treat people or whether you’re talking about crime control.

You take a bunch of people, lock them up in close confinement with a television set up on the wall, and that’s all they do — and they do that for years. And they’re in there together, a broad mixture of people, none of which are model citizens — I guarantee you there’s no discussion going on there about how to improve the school system. That’s not what they’ll be talking about.

I don’t think there is an appreciation of the fact that there will be a fallout from this sooner or later. And I believe it’s apt to be sooner rather than later.

In this state, we’re not willing to pay for things we agree with, like increased quality of education. Isn’t it a big leap to think people would support making conditions more humane for inmates of jails and prisons?

I believe that if they stopped the inmate flow, they would free up funds for this kind of activity. The problem is the number of people we’re talking about.

It’s not just in the jails. When I got to the Eastern Kentucky Corrections Complex, I discovered that was a relatively new facility. I think it opened in about 1990. It was designed for 900 or 950 inmates, and the day I was there it had 1,700 inmates.

I went over to the North Point Training Center in Danville, and they opened that one up about the same time they opened the facility in West Liberty — opened it with 650 inmates in it. This was the old mental hospital over there. They did add a building for troubled inmates, high-security inmates, and I think there are maybe 75 in there. But in the same space that they had when they opened, they now had 1,250. And those inmates were living in about 35 square feet of space.

If you think that crime rates justify this, then you might justify this. But I’ve absolutely convinced myself it has nothing to do with crime rates. It has everything to do with the degree of penalties that we’ve imposed.

Let’s say an average penalty is two years. If you jack it up to four years, you have doubled your inmate population. Do you think you get deterrents out of four years that you wouldn’t get out of two years? Most of these people think they’ll never be caught, and then very few of them know what the penalty is for what they’ve done. So I don’t believe that that’s any solution.

So the solution isn’t locking people up for longer periods of time. It’s what?

Distinguishing between people that we should be afraid of, that we would lock up, and people that we’re mad at.

And who should we want to lock up, and who are we just mad at?

We’re mad at drug offenders. We’re mad at people that won’t support their kids. Someone recently was quoted in the paper saying there are 1,000 people in prison for non-support of their children. You’re taking a guy that won’t support his children, and we’re locking him up in prison. The average cost here, $18,613 a year — does it make sense to take somebody who won’t support his children, lock him up and pay that kind of money to keep him?

When we wrote the penal code in 1974, I remember this argument. We couldn’t decide whether non-support should be a Class B misdemeanor, which would have 90 days in jail, or a Class A misdemeanor, which would give him up to 12 months in jail. Well, we finally settled on the high one. It could be a lower penalty, but that would be the maximum.

I don’t know when they did it, but somewhere along the line the legislature created an offense they called flagrant non-support, and they turned it into a felony crime. I thought it was 700 people in prison for that offense, but this quote in the paper had 1,000 people in prison for that.

I’d like to get us back to attitudes that need to change. You said the first one is the public. Are there others?Legislators. They’re the ones who have enacted these laws. And as I have said before, they haven’t found a harsh law in 30 years they didn’t love.I don’t mean to be critical of them. I think there’s some fear of being perceived as soft on crime. You’ve got the public attitude out here that needs to be changed. It’s going to be very difficult for people who’ve got to run for office to stand up, but if they don’t stand up on this, I don’t know how to correct it.

It’s not just them. It’s also judges. The jails have been affected by tougher sentences on minor offenses.

They have pretty good data at the Louisville jail, and I got some data from them. What they found on the minor offenses was the average sentence went from about 14 to 24 days. Well, that’s a huge cost for them. That almost doubles the cost of the jail operation. So that’s hit the counties. That’s happened over a period of time.

So much of the state budget at this point is corrections. It’s crowding out other things.

I agree. That’s what’s creating the interest right now. As I said earlier, I’m not sure it’s being driven by concern over what’s happening in the jails and prisons. I think it’s more about cost.

Here’s what you’ve got on the cost. At the federal level, the corrections budget is insignificant. If you take the total federal budget, the corrections piece of it is a drop in the river.

But you come down to the state level and the corrections budget becomes a much bigger factor in the total budget.

I’ll tell you this: The problem for the state is nothing compared to the problem in local governments in trying to deal with the cost of jails. Louisville has just put together a new commission to try to deal with their problem. They have got — I hope I’m remembering this correctly — I think they’ve got 2,300 people in the jail there. And so that’s a big cost to them. They’ve got a tax base that gives them a better chance of dealing with that than Somerset has, or Rockcastle County. They have a tiny budget, and the jail is eating them up.

People in the corrections system — they understand this problem. Almost all of them know it. I found the jailers I talked to be very professional, very competent. They fully understand what the problem is and have a hard time dealing with it.

Do you think the new task force the Governor wants to create to deal with this problem will have any more impact than the last one?

As far as I know, they haven’t appointed it yet.

There have been any number of groups put together to look at this.

The prosecutors believe that this is necessary to control crime. They are believers of that.

There was an earlier task force, I think created by the legislature. They looked at the whole penal code, and they came out with two volumes recommending an overhaul of that code. I’d say it was about three or four years ago. When that was released and published, it just landed with a thud. I don’t know that anybody ever picked it up and looked at it.

I do think a little bit it could be different this time for this reason: If you just go back about three years, we had 17,300 inmates in the prison system. Last year we had about 22,000. So there’s 5,000 being added in three to four years. So it’s dawned on them, I think. And I think they know.

If you just take projections over that time and look ahead, they’ve got to see two things. One thing they’ve got to see: growing costs out here. They start looking at building prisons, or the $18,000 a year per inmate. And they can look at the growth of the corrections budget.

And I’ll tell you something they had better also see is the danger of judicial intervention here. What Justice Palmore said — and I sat there thinking, “Gee, I’m surprised he said that to these guys” — Ed Johnstone put a lid on what they could do in the prison system in the early `80s. He said, “You can’t put any more in here.” What they’ve been doing, if you go back to, say, ’04, and see they’ve added 5,000 more inmates to the system during that time, they opened up that new prison up at Elliott County and have 900 in there. They opened up a private prison for women, and they’ve got about 300 in there. So there’s about 1,200 of the 5,000. The rest of them are in the same space.

They’ve got to be sensitive to the possibility of judicial intervention here.

What are the other options to putting people in jail or prison?

A lot of them ought to be put in drug and alcohol treatment. I think we’ve gotten away from that. Gov. Fletcher provided some funds, and one of the jails I visited had in the jail a drug treatment place, for women.

You’ve got drug court, and that’s what drug court is designed to do. You’ve just got to do more than that. To me it makes no sense to have 5,000 people locked up in prison for drug offenses. If they’re like the drug offenders I looked at in the Fayette Circuit Court, it’s not going to matter to the drug business. I’m telling you, I think the drug problem we have today is worse than when we started this stuff 25 years ago.

I think we have veered away from an attitude about probation. We had in the penal code, and it’s still in there, that probation was the preferred response to a conviction. It still says that the judge shall consider probation — shall consider. Attitudes have changed, and I think we need to do more than that.

In place of putting people in the jails, I think home incarceration would be a possibility, electronic monitoring. Especially with respect to minor offenders, I think work release to the extent that we can do it: getting them out of jail, away from that idleness, doing something. I think we ought to do more than that.

I would put together some big brains to think about this. I’ve thought a lot myself about what to do about these men that won’t support their children. I don’t know exactly what to do about that, but I just think it is bad policy to lock them up for extended periods of time in prison and pay huge amounts of money to keep them there — and support their children, I guess. I would get together a group of people who work with this and say, “Isn’t there some better way to deal with this?”

There are lots of different things we’ve got to do, but I think we’ve got to slow down the incarceration.

Dean of law school for 8 years in the 70s and 80s.

Teach evidence law, civil procedure, criminal procedure, criminal law.

Law students: Steve Beshear. Kathy Stein. Ernesto. Have taught at least four of the judges on the Supreme Court.

Kathy Stein has a pretty good understanding of this. Whether she can hold the line and do anything about it.

Bill Introduced to Reduce Sentences for Misdemeanor Offenses to Reduce Jail Crowding

Thursday, February 14th, 2008

Misdemeanor criminals would see their jail sentences deeply cut under a bill filed this week by the chairwoman of the House Judiciary Committee.
Rep. Kathy Stein, D-Lexington, on Wednesday said she hasn’t decided how aggressively she will push House Bill 513, which would reduce the maximum penalty for Class A misdemeanors from 12 to 6 months and for Class B misdemeanors from 90 to 30 days.
The cost of overcrowded jails and prisons is bankrupting the state, which lawmakers now realize as they struggle to pass a balanced budget, Stein said.
“We’ve got to start somewhere on this,” she said.
Fayette County Attorney Larry Roberts, who prosecutes misdemeanors in Lexington, said his initial reaction is wary support.
“I agree with her in concept, that we’ve got to do something about the cost of people who are accumulating in jail,” Roberts said. “But I don’t know that reducing an assault down to six months if it’s a serious enough case — like, if it’s a domestic violence — is the answer.”
Roberts said he would like to see the possibility of a one-year jail sentence hung over some misdemeanor criminals’ heads, particularly violent criminals.
Misdemeanors include minor theft, fourth-degree assault, prostitution and most types of drunken driving.
 

HB 513/LM (BR 1727) – K. Stein
     AN ACT relating to crimes and punishments.
     Amend KRS 532.020 relating to the classification of misdemeanor offenses outside of the Penal Code to specify that an offense that has a maximum jail time of 30 days is a Class B misdemeanor and an offense with a maximum jail time in excess of 30 days but less than 12 months is a Class A misdemeanor; amend KRS 532.090 relating to jail time for misdemeanors in the Penal Code to reduce maximum jail time for a Class A misdemeanor from 12 months to 6 months, and maximum jail time for a Class B misdemeanor from 90 days to 30 days; amend numerous other statutes to conform; permit a person who is in jail on the effective date of the act for a misdemeanor committed prior the effective date of the act to apply to the sentencing court for a sentence reduction; RETROACTIVE.
     Feb 11-introduced in House
     Feb 12-to Judiciary (H)

Governor introduces Casino Legislative Plan

Thursday, February 14th, 2008

Feb. 14, 2008
FRANKFORT, KY – Kentucky Governor Steve Beshear today unveiled proposed legislation that will allow Kentucky voters to determine a constitutional amendment  permitting limited expanded gaming. The governor also discussed details of legislation that would govern the way in which expanded gaming would operate once the constitutional amendment is passed.
“For nearly 15 years this issue has been discussed, debated and yet, deferred. Today, I am taking action and responding to the wishes of the vast majority of  Kentuckians by sending to the General Assembly legislation that will give our citizens the opportunity to do as they have demanded – let their voices be heard on whether or not to change the state’s constitution to have limited expanded gaming,? said the governor. “Public opinion research shows that more than 80 percent of Kentucky voters want the right to vote on this issue. It’s past time we acted on that demand and be responsive to the people.?
The language of the proposed constitutional amendment limits the creation of expanded gaming facilities to up to seven licenses for horse racing tracks and up to five free-standing gaming facilities with the approval of voters in the five cities or counties where the proposed casino would be located.
Those counties include Daviess, Kenton or Campbell, Boyd or Greenup, Christian, and either Laurel or Whitely. The taxing rate on the casino revenues is spelled out and, more importantly, the allocation of those revenues for additional services and programs is specified in the legislation, according to the governor.
“We face a financial crisis in this state that is slowly destroying our ability to educate, protect and take care of our people,? said Gov. Beshear. “We no longer have the financial ability to fund the programs we should have in order to meet those needs. Nor do we have the ability to look into the future and begin to build on those opportunities to restore Kentucky’s economic viability. By allowing our fellow Kentuckians to vote on this issue, we are sending a clear message that we are joining with them in finding other ways in which to address this financial crisis.?
The fiscal impact of the proposed gaming legislation indicates total receipts for fiscal year 2009 from facility application and license fees would be approximately $500 million. The estimated gaming receipts for fiscal year 2010 would be approximately $482 million with the majority of those receipts from license fees and wagering taxes.
“If the people of Kentucky vote ‘Yes’ for limited expanded gaming, we strongly believe that the annual estimated fiscal impact of the legislation at full implementation would be approximately $600 million,? said the governor.
The legislation that would be enacted, once the constitutional amendment is approved, contains a number of measures that will assure the people of Kentucky that this initiative will be done correctly and with openness, according to the governor.
Those details include:
*                     Creation of a seven-member Gaming Commission with four-year terms, appointed by the governor and approved by the Senate, which would hire an executive director to oversee the day-to-day operations of the Commission.
*                     For horse racing tracks, up to seven casino licenses which would be located either at the tracks or on other property within the county in which the track is located.
*                     Up to five free-standing casinos with a provision that a local referendum will be held in which voters will decide to allow a free-standing casino in their city or county.
*                     Specific allocation of gaming tax proceeds to state and local programs including 50 percent for education, including early childhood, primary and secondary, and post-secondary; 20 percent to healthcare, including care for the indigent, seniors and children; a program for treatment of compulsive gambling will receive up to $2 million per fiscal year, 3 percent to host jurisdictions and 5 percent each to support city and county programs, with 17 percent divided among other programs including substance abuse and treatment, veterans’ programs, tourism, fish and wildlife, environmental protection, agriculture, livestock research, and agriculture easements; economic development in non-host communities. Separate accounts will be established for support of racing and to further improve the various breeds of horses found in Kentucky.
“This is a critical time for Kentucky and its citizens. Our legislators should listen to their constituents and allow them to vote on this question. There will be no better opportunity to help move Kentucky forward,? said Gov. Beshear.
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Download and listen to Governor Beshear’s statement.

Religion becoming issue in Custody Cases. Judges are uneasy.

Wednesday, February 13th, 2008

By NEELA BANERJEE February 13, 2008

MADISON, Ala. — On a January night nine years ago, Laura Snider was saved. 

Skip to next paragraph Laura Snider believes she and her husband, Brian, lost primary custody of her daughter, Libby, because at the time, Mrs. Snider felt she had ruined her life through a disastrous marriage and divorce. But in her kitchen that night, after reading pamphlets and Bible passages that her boss had pointed her to, she realized she was a sinner, she said, she prayed for forgiveness, and put her trust in Christ. 

Four years later, the conservative brand of Christianity Mrs. Snider embraced became the source of a bitter, continuing custody battle over her only child, Libby Mashburn. 

Across the country, child-custody disputes in which religion is the flash point are increasing, part of a broader rise in custody conflicts over the last 30 years, lawyers, judges and mediators say. 

“There has definitely been an increase in conflict over religious issues,? said Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. “Part of that is there has been an increase of conflicts between parents across the board, and with parents looking for reasons to justify their own actions.? Another factor, he said, is the rise of intermarriage and greater willingness by Americans to convert. 

Nobody keeps track of who wins in these religious disputes, but lawyers say that judges are just as likely to rule in favor of the more religiously engaged parent as the other way around. That is because, for constitutional reasons, judges are reluctant to base their rulings primarily on the religious preferences of parents. 

Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?? 

As a result, more and more states have tried to keep custody disputes out of court by mandating mediation. But the effect has been piecemeal, and religious disputes have proven to be among the most difficult to resolve, lawyers said. 

From the age of 1 month, Mrs. Snider’s daughter had lived with her, and later Mrs. Snider’s new husband, Brian Snider, with occasional visits to her biological father. 

But in 2003, when Libby was 6, an Alabama court gave primary custody to her father, William Mashburn, after he and Mrs. Snider’s own family argued that the strict religious upbringing Libby received at her mother’s home, which involved modest dress, teachings about sin and salvation, and limited exposure to popular culture, was damaging her. 

“We were easy targets because we were made to look like cultists,? Mrs. Snider, 36, said. “I think whether anyone admits it or not, almost all of the ruling had to do with religion. Nothing I had done was called into question except that.? 

Generally, custody disputes are resolved outside the courtroom, lawyers said. 

Such cases have increased, however, because a generation ago, mothers almost always got custody and were responsible for nearly all aspects of children’s upbringing. But now, both parents are usually involved in raising children after divorce, and that can lead to dispute. Data regarding custody cases are not uniform, according to the National Center for State Courts, but for 10 states for which it has data from 2002, all show an increase in custody cases coming to trial. 

Conflicts sometimes arise when an interfaith marriage dissolves or when one parent converts to a different religion after divorce. 

In Oregon, a dispute between James Boldt and his former wife, Lia, was recently decided by the State Supreme Court. Mr. Boldt, the custodial parent, converted to Judaism after the divorce and sought to have their son, now 12, convert, and be circumcised. 

The court ruled that custodial parents could generally decide if a child should be circumcised. But given the son’s age, it ordered the lower court to ascertain his wishes. If they conflict with his father’s, the court may have to reconsider the custody arrangement, the court ruled. 

Tensions can emerge when one parent takes a turn toward fundamentalism. In 2006, the United States Supreme Court let stand a decision by the Supreme Court of Pennsylvania that permitted Stanley Shepp to tell his 14-year-old daughter about polygamy

Mr. Shepp and his former wife, Tracey Roberts, were Mormons living in York, Pa., when they married. But Mr. Shepp espoused polygamy as a tenet of their faith. 

Ms. Roberts contends that Mr. Shepp spoke to one of her daughters from a previous marriage about marrying him, which he denies. She left Mr. Shepp and has primary custody of their daughter. He was excommunicated by the Church of Jesus Christ of Latter-day Saints for his polygamist views and is now part of a Mormon fundamentalist movement in Utah. 

Skip to next paragraph 

Mr. Shepp petitioned for better-defined custody rights for his daughter, but Ms. Roberts objected because he had exposed the child to polygamist Mormon communities. The court upheld Mr. Shepp’s right to teach his daughter about polygamy, saying it could not find evidence that such teaching harmed her physical or mental health. 

Judges risk violating the separation of church and state if they try to choose the faith a child should be raised in, legal experts said. But in situations like Libby Mashburn’s, judgments about parenting can become entwined with religion. 

In upholding the rulings of lower courts to grant primary custody to Mr. Mashburn, the Supreme Court of Alabama said the Sniders’s involvement in missionary work took Libby away from her extended family in Alabama. The Sniders are quietly, unapologetically fundamentalist. They believe that American culture, even conservative denominations like the Southern Baptist Convention, has drifted perilously far from biblical teachings. They attend a large Independent Baptist church in Madison, where the music, the sanctuary and the congregants are unadorned and old-fashioned. 

Women wear skirts as a sign of modesty. They do not swim in mixed company. They eschew rock music and nearly all popular culture. They do not drink, smoke or swear. 

The Sniders have raised Libby, now 11, in that tradition. But it has put them at odds with Mr. Mashburn and Mrs. Snider’s family. Mr. Mashburn and his lawyer declined to comment . 

Mrs. Snider said she understood that Libby might wear pants at her father’s home or go to the movies. But she insisted that Mr. Mashburn not swear or drink in front of Libby or expose her to inappropriate movies and music, which, she said, he has repeatedly done. 

The Sniders have repeatedly appealed to win back primary custody. They are awaiting yet another decision from a hearing in November. 

At the last hearing, Libby, who spends about 40 percent of her time with the Sniders, testified against Mr. Mashburn. 

“I’m more of my mom’s religion, and my dad sometimes talks bad about my mom,? she said. “He called it a cult, and it’s definitely not a cult. It kind of makes me mad sometimes. Maybe he thinks her religion may be bad for me, but I think mainly he doesn’t like my mom and is using that as an excuse.? 

Some states like California and Connecticut have taken innovative steps to get parents to resolve custody issues outside court. In Connecticut, for example, those seeking a court order have to meet with a family-relations specialist in an effort to negotiate. If that fails, they attend a daylong session to settle their differences before a panel that includes a lawyer and a mental health professional. 

Even after a case goes to court, little may be resolved. 

Aaron Petty of Minneapolis and Gineen Gove of Black River Falls, Wis., had their daughter, Basyl, 17 years ago. The couple split up when Basyl was 4. Soon afterward, Ms. Gove married, and she and her husband converted to Old Order Amish. 

As Mr. Petty saw his daughter over the years, he became concerned, he said, when Basyl was about 11 and he learned that the Goves would not let her go to school past eighth grade, a common decision among the Amish. 

Mr. Petty petitioned for primary custody so that Basyl might continue her education. “This case wasn’t about religion for me,? he said. “It was about her education.? 

He won the case when Basyl was 14, but she disappeared. Mr. Petty said he suspected Basyl was living within the Amish community. The Goves declined to talk about the case. 

“I wanted to offer my daughter options for her future, in case she grew up and didn’t remain Amish,? Mr. Petty said in a phone interview. “At 12, 13, 14, making lasting drastic decisions based on faith isn’t an appropriate time.? 

Mr. Petty’s voice caught as he continued. “Was that case worth fighting? In hindsight, no. I haven’t seen my daughter in two-and-a-half years.? 

 

Justice Scalia says courts should not prohibit torture

Tuesday, February 12th, 2008

Scalia once wrote that innocence was no justification for another appeal after due process had been granted in death penalty case. February 12, 2008 
Supreme Court Justice Antonin Scalia rejected the notion that US courts have any control over the actions of American troops at Guantanamo Bay, argued that torture of terror detainees is not banned under the US Constitution and insisted that the high court has no obligation to act as a moral beacon for other nations. 

“We don’t pretend to be some Western Mullahs who decide what is right and wrong for the whole world,” Scalia told a BBC interviewer Tuesday, defending narrow interpretation of the reach the US Constitution gives the nine justices on the country’s high court. Scalia said it was “extraordinary” to suggest that the 8th Amendment, which prohibits the government from engaging in “cruel and unusual punishment,” could be applied to the actions of US interrogators questioning foreign subjects detained overseas. In his view, Scalia said that while the 8th Amendment would prohibit locking up someone indefinitely as punishment for a crime, for example, the CIA or military would be perfectly justified keeping a suspected insurgent or member of al Qaeda imprisoned forever if the detainee refused to answer questions. 

“Is it obvious that what can’t be done for punishment can’t be done to extract information that is crucial to the society?” Scalia asked.  In the BBC interview, which aired on Radio 4′s Law in Action, Scalia suggested that it would be inappropriate for the court to deliberately outlaw certain tactics, such as waterboarding. (The Bush administration recently acknowledged using the simulated drowning procedure at least three times on terror detainees.) Scalia said tactics critics have described as torture could be usable in so-called “ticking time bomb” scenarios or even when such a pressing deadline does not exist. 

“It may not be a bomb in LA,” he said. “But it may be, where is this group [believed to be plotting an attack on the US]?”

General Election Turnout Data is Now Available

Tuesday, February 12th, 2008

Feb. 12, 2008
(Frankfort, KY)  The State Board of Elections announced today that turnout data for the November 2007 election is now available on its website at www.elect.ky.gov.  Statewide turnout was 37.8% for the general election, marking the lowest turnout in modern history for a Kentucky gubernatorial election cycle.  That decline is in sharp contrast with rising turnout percentages in general elections that had been seen over the last few years in Kentucky.
            “I am optimistic that this decline in turnout is specific to only the 2007 general election,? stated Secretary of State Trey Grayson, Kentucky’s Chief Election Official.  “My colleagues in other states have seen tremendous turnout during the 2008 election cycle, and I remain hopeful that Kentuckians will also see increased participation this year.?
            Franklin County had the highest turnout percentage with 59.7% of registered voters turning out to vote.  Martin County had the lowest turnout percentage with 19.3%.  Statewide, Democrats, Republicans, and voters listed as Other turned out at 40.8%, 36.2%, and 21.6%, respectively. 
            Turnout in the 2003 general election, the most recent comparable election, was 40.2%.  Turnout for the 2004 and 2006 general elections were 64.7% and 49.5%, respectively.
            For more detailed voter information including statistics on individual county or precinct turnout, or to view more detailed turnout by age, gender, or party, visit: http://elect.ky.gov/stats/turnout.htm.
 

Obama favored in Potomac primaries this week, but Clinton leads in the three largest states yet to vote.

Tuesday, February 12th, 2008

In three large, delegate rich states who had not yet held their primary elections for the Democratic Nomination, Clinton maintains substantial leads over Obama.
Polls
Date: 1/30-31
Texas
Added: 2/3/08
Est. MoE = 4.2% [?]

Franklin & Marshall College/Philadelphia Daily News/WGAL TV, et al, Keystone Poll
Date: 1/8-14
Pennsylvania
Added: 1/18/08
Est. MoE = 5.7% [?]

Awarded Proportionally
Columbus Dispatch Poll
Date: 1/23-31
Ohio
Added: 2/4/08
Est. MoE = 2.1% [?]

 

Psychologists study provides tips on the art of persuasion that may be useful for attorneys

Tuesday, February 12th, 2008

You Remind Me of Me

 

By BENEDICT CAREY: February 12, 2008 

 

Artful persuasion depends on eye contact, but not just any kind. If one person prefers brief glances and the other is busy staring deeply, then it may not matter how good the jokes are or how much they both loved “Juno.? Rhythm counts. Skip to next paragraph 

Voice cadence does, too. People who speak in loud, animated bursts tend to feed off others who do the same, just as those who are lower key tend to relax in a cool stream of measured tones. 

“Myself, I’m very conscious of people’s body position,? said Ray Allieri of Wellesley, Mass., a former telecommunications executive with 20 years in marketing and sales. “If they’re leaning back in their chair, I do that, and if they’re forward on their elbows, I tend to move forward,? 

Psychologists have been studying the art of persuasion for nearly a century, analyzing activities like political propaganda, television campaigns and door-to-door sales. Many factors influence people’s susceptibility to an appeal, studies suggest, including their perception of how exclusive an opportunity is and whether their neighbors are buying it. 

Most people are also strongly sensitive to rapport, to charm, to the social music in the person making the pitch. In recent years, researchers have begun to decode the unspoken, subtle elements that come into play when people click. 

They have found that immediate social bonding between strangers is highly dependent on mimicry, a synchronized and usually unconscious give and take of words and gestures that creates a current of good will between two people. 

By understanding exactly how this process works, researchers say, people can better catch themselves when falling for an artful pitch, and even sharpen their own social skills in ways they may not have tried before. 

“Really good salespeople, and for that matter good con artists, have known about these skills and used them forever,? Jeremy Bailenson, a psychologist at Stanford, said. “All we’re doing now is measuring and describing more precisely what it is they’re doing, whether consciously or not.? 

Imitation is one of the most common and recognizable behaviors in the animal kingdom. Just as baby chimps learn to climb by aping their elders, so infants pick up words and gestures by copying parents. They sense and mimic peers’ behavior from early on, too, looking up at the ceiling if others around them do so or mirroring others’ cringes of fear and anxiety

Such behavioral contagion probably evolved early for survival, some scientists argue. It is what scatters a flock well before most members see a lunging predator. 

Yet by drawing on apparently similar skills, even in seemingly trivial ways, people can prompt almost instantaneous cooperation from complete strangers. 

In a recent experiment, Rick van Baaren, a psychologist at Nijmegen University in the Netherlands, had student participants go to a lab and give their opinions about a series of advertisements. A member of his research team mimicked half the participants while they spoke, roughly mirroring the posture and the position of their arms and legs, taking care not to be too obvious. 

Minutes later, the experimenter dropped six pens on the floor, making it look like an accident. 

In several versions of this simple sequence, participants who had been mimicked were two to three times as likely to pick up the pens as those who had not. 

The mimicry had not only increased good will toward the researcher within minutes, the study concluded, but it also prompted “an increased pro-social orientation in general.? 

That orientation applies to far more than dropped pens. In a study due out in the spring, Robin Tanner and Tanya Chartrand, psychologists at Duke, led a research team that tested how being mimicked might affect the behavior of a potential client or investor. 

The team had 37 Duke students try out what was described as a new sports drink, Vigor, and answer a few questions about it. The interviewer mimicked about half the participants using a technique Dr. Chartrand had developed in earlier studies. 

The technique involved mirroring a person’s posture and movements, with a one- to two-second delay. If he crosses his legs, then wait two seconds and do the same, with opposite legs. If she touches her face, wait a beat or two and do that. If he drums his fingers or taps a toe, wait again and do something similar. 

The idea is to be a mirror but a slow, imperfect one. Follow too closely, and most people catch it — and the game is over. 

In the study, the researchers set up the interviews so each student’s experience was virtually identical, except for the mimicking. 

None of the copied participants picked up on the mimicry. But by the end of the short interview, they were significantly more likely than the others to consume the new drink, to say they would buy it and to predict its success in the market. 

In a similar experiment, the psychologists found that this was especially true if the participants knew that the interviewer, the mimic, had a stake in the product’s success. 

“This is somewhat counterintuitive,? Dr. Chartrand said in an interview. “Normally, you’d expect when people realize that someone was invested in a product and trying to sell it to them, their reaction would be attenuated. They’d be less enthusiastic. 

“But we found that people who were mimicked actually felt more strongly about the product when they knew the other person was invested in it.? 

Any amiable conversation provides ample evidence of this subconscious social waltz. Smiles are contagious. So is nodding, in an amiable conversation. 

Accents converge quickly and automatically. A country chime or an Irish whistle can seemingly infect the voice of a New Yorker in a 10-minute phone call. 

“I especially find myself falling into a Southern accent, which is crazy,? Mr. Allieri, the telecom executive, said. “I’m from Boston. 

“But I think what good salespeople really do is pick up on physical cues and respond to them without thinking much about it.? 

It is one thing to move like a naturally synchronized swimmer through the pools of everyday conversation without thinking, however. It is another to deliberately employ mimicry to persuade or seduce. 

Dr. Bailenson, the Stanford psychologist, has been testing the effects of different forms of mimicry by programming a computer-generated figure, an avatar, to mirror the movements and gestures of people in a study. 

He has found that his subjects pick up the mimicry when it is immediate and precise. If the avatar is slightly out of sync, however — waits four seconds, for instance — then the mimicking goes unnoticed, and the usual rules apply. The virtual creating comes across as warm and convincing, as if controlled by another human. 

“The point is it’s a delicate balance to get it right, and I suspect that people who are good at this know how to do it intuitively,? Dr. Bailenson said. 

Or they have developed ways to engage their skills indirectly. 

Veldon Smith, a musician and legendary salesman living in Centennial, Colo., who spent 30 years in the automobile parts business before retiring a few years ago, said: 

“One thing I always did, I learned as much as possible about a client before I visited, what their problem was, what they were worried about. Then I would go in with a story about myself being in the same predicament. 

“So when I walked in, I was in exactly the same frame of mind as the customer. I was immediately on the same wavelength. Everything else kind of flowed out of that.? 

One reason subtle mimicry is so instantly beguiling may be that it draws on and, perhaps, activates brain circuits involved in feelings of empathy. 

In several studies, Jean Decety, a neuroscientist at the University of Chicago, has shown that some of the same brain regions that are active when a person feels pain also flare up when that person imagines someone else like a loved one feeling the same sting or ache. 

A similar process almost certainly occurs when a person takes pleasure in the good fortune of a friend or the apparent enjoyment of a conversation partner, Dr. Decety said. 

“When you’re being mimicked in a good way, it communicates a kind of pleasure, a social high you’re getting from the other person, and I suspect it activates the areas of the brain involved in sensing reward,? he said. 

Social mimicry can and does go wrong. At its malicious extreme, it curdles into mockery, which is why people often recoil when they catch of whiff of mimicry, ending any chance of a social bond. Preliminary studies suggest that the rules change if there is a wide cultural gap between two people. For almost everyone else, however, subtle mimicry comes across as a form of flattery, the physical dance of charm itself. And if that kind of flattery doesn’t close a deal, it may just be that the customer isn’t buying. 

Everyone has the right to be charmed but not seduced

 

Kentucky kicks off Lincoln Bicentennial celebration

Monday, February 11th, 2008

Feb. 11, 2008 

 

The Kentucky General Assembly will mark the kickoff of the Lincoln Bicentennial celebration on Tuesday, Feb. 12, by convening in the Old State Capitol Building, a historic structure that was the center of Kentucky government at the time of Abraham Lincoln’s presidency. 

 

The House and Senate are expected to go into session in the Old State Capitol’s historic chambers at 4 p.m. The building is located on the Kentucky Historical Society’s campus on

Broadway Street

in downtown Frankfort. 

 

“We as a legislative body wanted to take part in the events honoring the legacy of one of our state’s greatest native sons,” said Senate President David L. Williams, R-Burkesville. “We are coming together in a special place to pay homage to the president who had the moral courage, strength and intelligence to hold our nation together and ensure that our form of government would survive.” 

 

The two-year Lincoln Bicentennial celebration will be formally launched earlier in the day with a nationally televised ceremony at the Abraham Lincoln Birthplace National Historic Site in Hodgenville. The celebration is beginning one year before the 200th anniversary of Lincoln’s birth and will continue through 2010. 

 

House Speaker Jody Richards, D-Bowling Green, said events surrounding the Lincoln Bicentennial will shine a spotlight on Kentucky. 

 

“The interest in Kentucky’s rich Lincoln heritage will grow even more once we kick off two year’s worth of events marking the Lincoln Bicentennial,” Richards said. “All Kentuckians can take pride in knowing that our commonwealth is widely recognized as the state that produced a president who embodies our nation’s loftiest values and ideals.” 

 

Kentucky has a large role to play in the nation’s celebration as the birthplace of Lincoln and the place where his earliest memories were formed. Lincoln was born in a one-room log cabin at Sinking Spring Farm in what is currently LaRue County on February 12, 1809. Between the ages of 2 and 8, he lived with his family a few miles from his birthplace at Knob Creek Farm. 

 

When state lawmakers convene in the Old State Capitol to pay tribute to Lincoln, citizens will be able to view the proceedings through a live stream on the Kentucky Educational Television Web site at http://www.ket.org/legislature/. (Members of the media who have badges for the press sections of the House and Senate chambers will be admitted as space permits.) 

 

The Old State Capitol served as the state’s Capitol building from 1830 to 1910. The Greek-revival structure is a national historic landmark and considered as a masterpiece of 19th Century architecture.