Archive for the ‘Supreme Court’ Category

SCOTUS ALERT: The Affordable Care Act is Constitutional

June 28, 2012 1 comment

SCOTUS ALERT: The Affordable Care Act (“Obamacare”) is Constitutional

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

FROM SCOTUSBLOG: Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Interesting, at least to scholars, that while the mandate and its attached penalty are a tax for purposes of its constitutionality, but not for the Anti-Injunction Act. If it were a tax for AIA purposes, this case would not have been decided re the mandate.

For all of those who second-guessed the Solicitor General’s defense of ACA, it might be worth noting that the tax defense of the mandate was, indeed, an argument that the government lawyer did advance.


Health care: Time to sum up

June 28, 2012 Leave a comment

Lyle Denniston Reporter

Posted Tue, June 26th, 2012 7:37 pm

Health care: Time to sum up


With a little more than twenty-four hours to go before the Supreme Court is scheduled to release its last rulings of this Term, it is very likely that the Justices and their staffs are still doing some final editing on the opinion — or opinions — that will tell the constitutional fate of President Obama’s most important domestic policy: the massive overhaul of the way Americans get and pay for health insurance.   The media and other pundits, and the academics, have all done their speculating on outcomes, and the blame games have started in anticipation that the ruling may turn out wrong for this or that constituency.

Leaving aside the ill-informed guessing and the petty blaming, there is still an actual decision to be made, and it may not be very easy — at first glance on Thursday – to tell just what the Court has decided.  No one outside the Court knows, for example, whether there will be one opinion that controls the multiple outcomes, or multiple opinions and mixed voting patterns, potentially complicating the result.  And, even if the Court says it does not have the authority to decide the most controversial part of the new law, that will still leave something to be decided right now — provided, of course, that the Court does not put off the whole thing.


The Court’s choices are many, and even canvassing what the likely options are may miss some.   The most deflating option, for all of those anxiously awaiting a definitive decision, would be for the Court to issue a simple order setting the case for re-argument at the next Term, starting October 1.   If a Court already wearied after a tough nine months just doesn’t have the energy to wrap up one more big case, a delay would be a way to get out of town and start the summer recess.

After having spent nearly six hours hearing arguments in March, and months since then working on opinion drafts, would there be any appetite to do it all over again? Besides, it might look a bit bad to do that, since the Court rushed its review of the new law partly because of the overwhelming importance it recognized in the controversy.  Postponement, however, is not an option that has been taken off the table, and it at least would have the virtue of putting everything off on the constitutional issue until after this fall’s election, and reduce the Court’s political profile.  There has been a lot of rash speculation that the Court’s ruling is going to be driven by an exercise of political will, perhaps even partisan preference.

If the Court does decide to decide, it has four issues before it — three of which are somewhat clustered, and one of which stands somewhat (but not entirely) alone.

The three that are definitely bunched together could be decided with a ruling on just one of them, or with a ruling on just two, or with a ruling on all three, separately.   Those three issues all relate to the insurance mandate, or what is technically labeled the “minimum coverage” provision.   By that provision, the most controversial of all, Congress declared that virtually every American (there are a few exceptions) must obtain health insurance before the year 2014, or else pay a financial penalty with their tax returns until they do get a policy.

So the individual mandate is one of the clustered issues.  The second is whether the Court has the authority to decide the fate of the mandate.  And the third is whether, if the mandate is struck down as unconstitutional, other parts of the massive Affordable Care Act must fall with it — if any.

The authority-to-rule question turns upon the meaning of a section of the federal Anti-Injunction Act, first enacted by Congress in 1867.  That section was designed to protect the federal government’s capacity to continue collecting tax revenues, to keep the national government running.  It says simply that no one may go to court to challenge a tax law before it actually goes into effect, and before they have been compelled to start paying the tax-related penalty.   If the AIA is found to be binding in this case, then the mandate’s fate (if not repealed by Congress in the meantime) could not be decided until after it goes into effect in 2014.   The final answer might not be known until sometime in 2015, after another round of court review.

The choice before the Court on the AIA issue might appear to be an easy one:  if the individual insurance mandate is a tax law, then no one is legally free to challenge it in court now, and all cases focused on that issue would have to be dismissed as beyond judicial authority at this time.  But it actually is not easy.   The Court must first decide whether the individual mandate is a tax provision, based on its presence in the tax code and the fact that it has a tax-related penalty, plus the further fact that it will, indeed, raise a good deal of revenue.  And, even if it is deemed a tax provision, does the federal government have a right to waive the AIA block to litigation over its validity or is this the kind of jurisdictional law that can’t be waived?

Suppose that the Court finds that the AIA does apply.  That takes off the Court’s agenda a decision on the mandate itself, and, obviously, also removes any need to decide what other parts of the law fall with it.  That is the three-in-one potential of the AIA question.

But suppose the Court were to rule that AIA does not apply, perhaps because the mandate is not a tax provision at all, or perhaps because it is, but it can be waived in a case like this.  Then the Court would have to move on to the second of the clustered issues: is the mandate, in fact, unconstitutional?   If the Court upholds it as constitutional, that makes it unnecessary to decide the third item in the cluster: what else falls with the mandate, or does none of it fall?   But if the mandate is struck down, the Court has to get to that third issue (which is called the “severability” question, because it involves deciding whether the invalid part of a law can be sliced off from all, or at least part, of the rest).

If the mandate is nullified, the severability issue would be a really hard one for the Court to resolve. Would it go through the hundreds of pages of the Affordable Care Act, and pick and choose which provisions are tied to the mandate and which are not, or would it pass that issue off to a lower court or to Congress?  During the hearings on severability in March, the Justices showed a distinct distaste for handling that task themselves.

This brings the summing-up to the fourth issue, in some ways separated.  That issue is whether Congress exceeded its constitutional powers by enacting, as part of the new law, a very wide expansion of eligibility for the government-subsidized Medicaid program of providing medical care to the poor.   This may be thought of as separate from the clustered three issues, because a decision not to decide the mandate and severability issues (because the AIA prevents such a ruling) would not affect the need to decide the challenge to the broader Medicaid eligibility.

But before getting further into that question, it is necessary to point out that, in fact, it may not actually be separated from the mandate and its associated cluster issues.  If the Court strikes down the mandate, and then concludes that all of the rest of the law must go with it, then the Medicaid expansion, too, is dead.  And, if the Court strikes down the mandate, but not all of the rest of the ACA, then it must still address whether at least the Medicaid expansion will be among the doomed provisions.

Suppose, though, that the Medicaid expansion does avoid being nullified.   The Court must then decide whether to do something it has not done to a federal law in three-quarters of a century: strike down a law that Congress enacted by using its power under the Constitution’s Spending Clause.  (The mandate part of the law was based upon the Commerce Clause, not the Spending Clause.)  Three times since the last use of the Court’s power to nullify a federal law was used against a Spending Clause measure, the Court has said that it might be possible that the conditions Congress imposed on someone receiving federal funds were so onerous that they would amount to coercion.   In other words, the conditions actually forced the recipient of money to make a choice it would not otherwise make.

In mentioning the “coercion” possibility, the Court has done so in the context of complaints by state governments that a federal spending program under which they could get funds was being enforced with such harsh conditions that the states’ choice to take part, or not, was being coerced, thus compromising their sovereignty and dignity within the Federal Union.   The Court has never actually used the “coercion” theory to nullify any federal law, but it has at least agreed to consider it as it weighs the validity of the Medicaid expansion.   That is the very hard fourth question that may well remain after the Court has done what it is going to do with the mandate.

The states challenging the ACA have argued that the entire Act must fall, on the theory that all of its parts are interlocking and must stand or fall together.  The federal government has argued that many of the ACA’s parts have little or even nothing to do with the mandate, and that, therefore, the only parts of the law that should go down if the mandate does are the command that insurance companies may not turn aside individuals because they have pre-existing medical conditions, and the separate provision that limits insurers in varying their premium rates because of the age or medical health of those who seek coverage.   But there is also an argument in the case that, whatever the fate of the mandate, the rest of the ACA should remain intact and working.

All of these issues, summarized here, are the puzzles that the Justices have been trying to solve among themselves since the arguments ended on March 28.  On Thursday morning, soon after 10 a.m., they could announce their conclusions.



Guilty Plea May Be Withdrawn In Face of Colorable Defense

June 28, 2012 Leave a comment

Guilty Plea May Be Withdrawn In Face of Colorable Defense

A defendant who presented a colorable claim of self defense before he was to be sentenced for aggravated manslaughter should have been allowed to withdraw his guilty plea, the New Jersey Supreme Court rules.

Michael Booth


A defendant who presented a colorable claim of self defense before he was to be sentenced for aggravated manslaughter should have been allowed to withdraw his guilty plea, the New Jersey Supreme Court ruled Wednesday.

In a unanimous ruling, the court said judges should take greater care during plea hearings to hear the defendant explain what happened. “[T]he ultimate goal is to ensure that legitimate disputes about the guilt or innocence of a criminal defendant are decided by a jury,” wrote Justice Barry Albin for the court in State v. Munroe, A-125-10.

Larry Munroe originally was charged with murder and related offenses in connection with the May 13, 2005, shooting death of Christian Natal, who Munroe said had robbed him on another occasion.

Two years later, Munroe agreed to plead guilty to a count of aggravated manslaughter. In exchange, the murder charge, which carried a life sentence, would be dropped, and he would serve a maximum of 17 years.

During the plea hearing, Hudson County Superior Court Judge Frederick Theemling Jr. asked Munroe a series of yes or no questions centering on whether he, in fact, did shoot Natal. Munroe answered in the affirmative.

But at sentencing, Munroe for the first time claimed that he acted in self defense and asked to be allowed to withdraw his guilty plea and go to trial.

Munroe claimed that while he and Natal were arguing between two parked cars, Natal pulled a knife and pushed him against one of the cars. Munroe then shot Natal, allegedly in self-defense, because he had nowhere to run. Police investigating the shooting found a box cutter in Natal’s possession.

Theemling denied Munroe’s request, saying that he had voluntarily entered into the guilty plea. The Appellate Division agreed.

During the pendency of Munroe’s appeal, the court ruled in State v. Slater, 198 N.J. 145 (2009), that when reviewing requests to withdraw guilty pleas, judges should determine whether there is a colorable claim by analyzing its nature and strength, whether the original plea deal was just and whether allowing the request would unduly disadvantage the state and advantage the defendant.

Albin said that while Theemling did not have the benefit of Slater at the time, an analysis of those factors now indicates Munroe should have been allowed to withdraw his guilty plea.

Munroe, he said, argued at the sentencing hearing that he was trapped between Natal and the car, but was not asked about those details when he pleaded guilty.

“Permitting a complete response from the defendant that elicits the underpinnings of the guilty plea may take a few more seconds or minutes,” Albin said. “Yet, in the long run, that approach may prove more beneficial and less time consuming because it is better to know then whether the defendant has a potentially viable defense and whether he is willing to waive it and enter a guilty plea.”

Albin noted that one reason Theemling rejected the self-defense argument was that Munroe was armed with a gun and Natal, seemingly, only with a knife. Albin pointed out that the state police reported in 2010 that 14 percent of murders and 23 percent of assaults were committed with a knife.

“Moreover, imperfect self-defense is applicable if the jury determines that defendant acted with an honest but unreasonable belief in the need to use deadly force,” he said. “Indeed, once self-defense is raised in a case, the State must prove beyond a reasonable doubt that defendant was not justified in using deadly force.”

Assistant Hudson County Prosecutor Lynne Seborowski, who argued against Munroe’s request to withdraw his plea, says her office is prepared to try the case, although she adds that she believes the ruling puts the prosecution at a disadvantage because of the time that has elapsed between the killing and now.

Says Munroe’s lawyer, Assistant Deputy Public Defender Frank Pugliese: “Mr. Munroe deserves his day in court and the Supreme Court has assured that he will have it. A jury will decide the facts of the case and determine whether a crime was committed.”

Supreme Court upholds key part of Arizona immigration law, strikes down rest

June 25, 2012 Leave a comment

Supreme Court upholds key part of Arizona immigration law, strikes down rest

By Liz Goodwin, Yahoo! News | The Ticket – 43 mins ago

Donstrators stand outside the Supreme Court in Washington, Monday, June 25, 2012. (Evan Vucci/AP)

The Supreme Court upheld a key part of Arizona’s tough anti-illegal immigration law in a 5-3 decision on Monday that allows police officers to ask about immigration status during stops. That part of the law, which never went into effect because of court challenges, will now immediately be enforced in Arizona. Other parts of the law, including a provision that made it a state crime for illegal immigrants to seek work, will remain blocked. Justice Anthony Kennedy, the court’s swing vote, wrote the opinion, and was joined by Chief Justice John Roberts, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Conservative Justices Antonin Scalia, Samuel Alito and Clarence Thomas partially dissented, saying the entire law should have been upheld.

In the opinion, Justice Kennedy wrote that the federal government’s “power to determine immigration policy is well settled.” But he also showed concern for what he described as Arizona’s outsize burden in dealing with illegal immigration, seeming to sympathize with their decision to butt in on immigration enforcement. “Arizona bears many of the consequences of unlawful im­migration,” he wrote. “Hundreds of thousands of deportable aliens are apprehended in Arizona each year.” But, ultimately, the justices found that Arizona can not mete out their own state punishments for federal immigration crimes.

“Arizona may have under­standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law,” Kennedy writes in the opinion’s conclusion.

The police immigration checks are allowed, however, because state police would simply flag federal authorities if they find an illegal immigrant.

The Obama administration sued to block Arizona’s law, called SB1070, shortly after it passed two years ago, saying it interfered with federal authority over immigration. The law made it a state crime for illegal immigrants to seek work or fail to carry proper immigration papers. It also requires police officers to check immigration status and make warrantless arrests for immigration crimes in some cases. A federal judge prevented those aspects of the law from going into effect, but the law became a lightning rod around the country, sparking boycotts and counter-boycotts and opening up a debate about the nation’s illegal immigrant population.

In oral arguments in April, many of the justices seemed deeply skeptical of the government’s argument that local police officers would interfere with federal authority over immigration law they began asking people about their immigration status during stops. Though much of the debate around the law has focused on “racial profiling”–whether Hispanic people would be stopped and questioned by police based on their ethnicity–the government did not even mention those words in their case against the law, instead focusing on the federal government’s supremacy in immigration matters. Justices repeatedly criticized the government’s argument against immigration checks. Even Sonia Sotomayor, part of the court’s liberal wing, said she was “terribly confused” by the government’s argument against the checks.

But the liberal justices showed much more hesitation over the parts of the law that made federal immigration crimes into state crimes, which have all now been struck down. Sotomayor singled out the state law against illegal immigrants seeking work, noting that Congress had explicitly rejected a similar law in their immigration legislation, instead choosing to target employers who hire unauthorized workers.

Five states followed Arizona’s lead and passed similar laws last year, while similar bills failed in more than two dozen other state legislatures. The decision suggests that any state laws that make federal immigration offenses into state crimes will not stand. But it remains to be seen if the outcome will encourage more states to pass laws that make local police officers check immigration status. The law also became an issue in the presidential race, with Mitt Romney bringing on the law’s author, Kris Kobach, as an immigration adviser, and embracing the law’s purpose, “self deportation,” as his immigration enforcement strategy.

In Arizona v. U.S., Justice Elena Kagan recused herself because she was solicitor general when the Obama administration filed suit against the law. If the court had split 4-4, the 9th U.S. Circuit Court of Appeals’ decision blocking the four major provisions of the law would have stood.

Supreme Court can’t stop entire health-care reform law in N.J.

June 25, 2012 Leave a comment

From this morning’s Bergen Record

Supreme Court can’t stop entire health-care reform law in N.J.


Monday June 25, 2012, 12:42 AM
The Record

No matter what the U.S. Supreme Court decrees this week on the controversial Obama health care reforms, the law has already prompted changes in New Jersey that will endure, doctors and insurers say.

The implications of the justices’ ruling — which will address the constitutional question of whether Congress can require Americans to buy health insurance — are enormous for a broad swath of the nation’s economy, presidential politics and the role of government in health care.

Yet some of the changes the law has accelerated or set in motion are unstoppable.

Already, for example, doctors in New Jersey are more likely to use computers in their practices, young adults are more likely to be insured and health centers that serve the most vulnerable are better equipped for an influx of new patients. Some changes that will survive:

äŸA popular provision of the law has extended coverage to some 68,000 young people  who are allowed to remain on their parents’ plans until age 26. It will still be honored by UnitedHealthcare and Aetna, which together account for more than a third of the state’s insurance market, according to their executives.

äŸNew community health centers provide preventive and primary care to increasing numbers of the state’s million uninsured residents. Existing centers, including ones in Garfield, Hackensack and Paterson, shared $26 million in federal funds from the law to renovate, computerize and add hours, and a new center is set to open in Englewood today. Last year, all of them combined saw a record 453,000 patients, 43 percent of them uninsured.

äŸMillions of dollars has poured into New Jersey for health-information technology, including incentives awarded last week to 43 hospitals and 2,400 physicians who converted to electronic medical records. Increasingly, doctors write prescriptions, check lab results and take notes on a laptop or bedside computer — a belated digital revolution hastened by the law and intended to reduce medication errors and redundant vaccines and tests.

Health providers and payers are saying this thing is already out of the barn,” said Kerry McKean Kelly, a vice president of the New Jersey Hospital Association. “We’ve implemented it and will continue to do so. If the law is struck down, there are many parts of it that could survive.”

Opponents of President Obama’s Patient Protection and Affordable Care Act argue that its “individual mandate,” which requires people to buy insurance or pay a penalty, is unconstitutional. Depending on how the court views that argument, it must also decide whether, without a mandate, the rest of the law — including consumer protections that bar exclusion of sick people and lifetime limits on health insurance — should stand.

Opponents also say the law’s required expansion of Medicaid, a joint federal-state program that now insures a more narrowly defined population of poor people, is an infringement on states’ rights.

If the court voids the entire law — one of several of its options — a requirement to take effect in 2014 compelling insurers to accept all applicants, regardless of preexisting conditions, could vanish. There also could be less government scrutiny over insurance rate increases or the amounts insurers spend on health care. And insurers could recover the ability they had before 2010 to cancel policies retroactively.

New Jersey’s Republican administration has adopted a wait-and-see approach to implementing some parts of the law. Unlike other Republican-led states, New Jersey was not one of the 26 that sued to block it. Governor Christie did not reject federal funds that, for example, subsidize insurance for sick people who’d previously been unable to get coverage for their illnesses; as a result, more than 1,000 are now covered.

And the governor did not block $8.8 million in federal grants to develop an online health-insurance exchange through which consumers could shop for coverage when the mandate takes effect in 2014. But he vetoed legislation to create the exchange, citing a need to wait for the court’s ruling.

The law also provided more than $95 million in rebates and discounts to senior citizens in New Jersey for prescription drugs under changes in Medicare Part D. And employers ranging from the Borough of Fair Lawn to Medco Health Solutions benefited from temporary federal subsidies to extend insurance for workers over age 55 — but younger than Medicare’s eligibility age of 65 — who have been offered early retirement.

In the two years since the law was signed, health care costs — and the number of people without insurance — have climbed. The mandate, by making insurance more accessible to younger, healthier people when it starts in 2014, is supposed to address that.

“We finally reached the breaking point in New Jersey,” said Christine Stearns, vice president of the New Jersey Business & Industry Association, representing more than 21,000 companies, the vast majority of them with fewer than 100 employees.

The number of people insured by the state’s small businesses dropped 20 percent over the last two years, she said, as the economy tanked and premiums rose 10 to 20 percent in 2010 and 10 percent last year.

“The rate of premium increases for health insurance is unsustainable and has been unsustainable for a long time,” she said.

Two-thirds of the state’s uninsured are in families where at least one person works full time.

When companies do offer insurance, the policies cover less and cost employees more — both in premiums and out-of-pocket costs — than they did a decade ago. Employee contributions for family coverage doubled among private-sector employees in the decade ending in 2009, while premium costs grew by 62 percent. The average family deductible for a private employee was more than $1,800 three years ago, higher than the national average.

“If the court shuts down all of the law or part of it, we have to do something in New Jersey,” said state Sen. Joseph Vitale, D-Woodbridge, chairman of the Senate Health Committee.

The spiral of ever-higher premiums and more uninsured people drags down the economy and hurts hospitals, which, by law, cannot turn patients away from their emergency rooms. Already, uncompensated care is estimated to add $1,000 to the average premium for family coverage, which hovers around $12,000 a year in New Jersey.

Before Obama’s election, Vitale convened legislative leaders and stakeholders to develop a plan to achieve universal coverage in New Jersey. Their first step — making insurance available to all children — was enacted, but the group went on hiatus to await federal health care reform. Vitale said last week he’d gather the group again.

In the meantime, insurers and hospitals are taking steps to try to bring health care costs under control. In part, they’re responding to the law’s attempts to corral Medicare spending and use Medicare dollars to reward hospitals that provide better and more efficient care and penalize the ones that do not.

Under these new incentives, hospitals and doctors won’t be able to ring up higher payments by doing more tests and procedures. Instead, Medicare and other insurers will require them to prove they’re doing their best to prevent disease and to treat it with the least duplication of services. They’ll be rewarded for high-quality care — fewer trips to the emergency room, fewer readmissions to the hospital, fewer hospital-acquired infections — and denied payment for botched care.

Horizon Blue Cross and Blue Shield of New Jersey — with 3.6 million members, the state’s largest insurer — spun off an entire subsidiary two years ago to field-test programs that harness its vast warehouse of health care data and change its reimbursement formulas.

“Our commitment will not at all be impacted by the Supreme Court,” said James F. Albano, vice president of Horizon Healthcare Innovations, the subsidiary of Horizon. “The intent is for all of our members to benefit from these models.”

So far, the insurer says it has reduced medical costs by 10 percent and emergency room visits by 26 percent in a pilot program for so-called “patient-centered medical homes” — primary-care physicians’ offices that coordinate patient care. The project will expand to encompass 200,000 members by the end of the year.

For patients, the new model is supposed to eliminate the frustration of dealing with multiple doctors and the need to share the same information over and over with each one. The primary-care doctor’s office actually quarterbacks their care — asking why they haven’t filled a prescription for blood-pressure medication or an asthma inhaler, for example, or reminding them to schedule a mammogram. They won’t have to repeat shots or lab tests or imaging because their records will be available to each doctor who cares for them. And, experts say, they’ll spend less time in the hospital, getting out to rehab or home care and avoiding costly readmissions.

Other insurers like Aetna, with 1.1 million members statewide, also have embraced the same model, which pays primary-care doctors an extra fee for their coordination. Medicare has chosen New Jersey as one of seven markets where a “comprehensive primary-care initiative” will be tested with 75 physician practices and five insurance companies.

At the same time, hospitals are strengthening their relationships with doctors to try to make sure everyone pulls in the same direction, motivated in part by Medicare’s new commitment under the law to share savings with them. New “accountable care organizations” — networks of hospitals and doctors — have been approved by Medicare at The Valley Hospital in Ridgewood and Hackensack University Medical Center; other hospitals expect to have them soon.

The old-fashioned solo doctor’s office is disappearing from Main Street as doctors become hospital employees or join large groups. Hackensack has invested heavily in buying cardiology and primary-care practices, said Robert C. Garrett, its president and chief executive — calling it “a trend that will continue with or without the law.”

“The current system cannot continue,” agreed Joseph Lemaire, executive vice president and chief financial officer at Holy Name Medical Center in Teaneck. “It’s too expensive, too uncoordinated.” Holy Name now employs more than 60 physicians, he said, including primary-care doctors, obstetricians and radiologists.

“It used to be we were concerned from the day of admission to the day of discharge,” said Robert Glenning, Hackensack’s chief financial officer. “Now we’re looking beyond the day of discharge to reduce the readmission rate, and be sure when patients leave here they go to the right rehab, long-term care or home care.”

These changes have been hastened by the Affordable Care Act, said Garrett, but they’ll continue “because they’re the right things for patients.”


SCOTUS RULES: Okay to Strip Search NJ Petty Offenders in Jail

April 2, 2012 2 comments
[04/02/2012 – 3:14 P.M.] This morning, the United States Supreme Court ruled in a New Jersey case that people who are arrested for traffic violations and petty criminal offenses can lawfully be subject to strip searches in county jails.  A syllabus of this opinion is printed below.
    Petitioner was arrested during a traffic stop by a New Jersey state trooper who checked a statewide computer database and found a bench warrant issued for petitioner’s arrest after he failed to appear at a hearing to enforce a fine. He was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid. At the first jail, petitioner, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting. He filed a 42 U. S. C. §1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. The court granted him summary judgment, ruling that “strip-searching” nonindictable offenders without reasonable suspicion violates the Fourth Amendment . The Third Circuit reversed.
Held: The judgment is affirmed.
621 F. 3d 296, affirmed.
     Justice Kennedy delivered the opinion of the Court, except as to Part IV, concluding that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendment s do not require adoption of the framework and rules petitioner pro- poses. Pp. 5−18, 19.
     (a) Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner v. Safley482 U. S. 78 . This Court, in Bell v. Wolfish441 U. S. 520 , upheld a rule requiring pretrial detainees in federal correctional facilities “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution[s],” deferring to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items. In Block v. Rutherford, 468 U. S. 576 −587, the Court upheld a general ban on contact visits in a county jail, noting the smuggling threat posed by such visits and the difficulty of carving out exceptions for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517 −523, also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions when it upheld the constitutionality of random searches of inmate lockers and cells even without suspicion that an inmate is concealing a prohibited item. These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, and that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters,” Block, supra, at 584–585.
     Persons arrested for minor offenses may be among the detainees to be processed at jails. See Atwater v. Lago Vista532 U. S. 318 . Pp. 5−9.
     (b) The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention. It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process. Additionally, correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations. Contraband has value in a jail’s culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder. Pp. 9−13.
     (c) Petitioner’s proposal―that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband―is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense may be coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.
     It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendment s do not require adoption of the proposed framework. Pp. 13−18, 19.
     Kennedy, J., delivered the opinion of the Court, except as to Part IV. Roberts, C. J., and Scalia and Alito, JJ., joined that opinion in full, and Thomas, J., joined as to all but Part IV. Roberts, C. J., and Alito, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

US Supreme Court rules Lab Report Not Admissible in DWI Case.

March 28, 2012 Leave a comment

US Supreme Court rules Lab Report Not Admissible in DWI Case.  Bullcoming v New Mexico   131 S. Ct. 2705  (2011)


The Sixth Amendment’s Confrontation Clause gives the accused “[in all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.

The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.