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Bar Watch Bulletin August 5, 2005

President Grey Press Conference, Right to Die, Criminal Penalties for Regulatory Crimes
August 05, 2005
Grey observed that one of the most important issues before the House of Delegates is the election law reform proposal. He stated that "fair elections are the foundation of our representative system of government." To that end, the proposal recommends that "all election officials ensure the integrity of the election process through the "adoption, use, and enforcement of guidelines that also include provisions on voter registration efforts be third parties, challenges to voter lists, early voting, and adequate funding of the electoral process."

The ABA commissioned Harris Interactive to conduct a nationwide survey of 1,002 U.S. adults aged 18 & over. Of those polled, 785 voted in the 2004 elections. Grey stated that, of those 1,002 adults, "92% felt confident that their vote actually counted." However, 46% of those polled who had voted electronically would have felt better if they had received a paper printout of their vote.

President Grey then addressed major challenges to the ABA this past year, including attacks on the judiciary, issues about detainees gone unanswered by President Bush, and the lack of respect for attorney-client privilege.

"There is no greater priority than protecting our nation's judges," Grey declared. The proposed impeachment of the judge who decided the Schiavo case and actual physical violence against judges themselves are among the attacks on the judiciary Grey cited from this past year. Grey proposed that the Government "increase funding for the U.S. Marshall's service and keep the home addresses [of judges] out of the public domain."

The ABA held a panel of the right to die issue, entitled "The Right to Die: Do Americans Have the Right to a Good Death?" Professor Arthur Miller (Harvard Law School) opened the session by engaging the audience and the panelists in a hypothetical story concerning a 19-year old male who had been taken to the ER following a motorcycle accident. In his story, the young man would die if he did not receive an immediate blood transfusion. Miller proposed that the young man refuse medical treatment, and he opened the floor for discussion about what actions the doctors should take.

David Weissman, M.D., opened the discussion by stating that "one must do what they have to do to preserve life." However, "doctors are obligated to respect patient's rights." When a doctor goes against an advance directive made by a patient, the "doctors are making decisions for patients that they should not be making." The most important issue in this situation would be for the doctor to get a "clear value statement" from the patient.

Health lawyer Patricia King responded that "there must be a presumption of competency" if the patient chooses to die. However, a psychological exam must be given in order to establish that competency. "Legally, the doctor must honor the refusal of medical aid." The decision is easier to ascertain if the patient chooses to die based on religious reasons. Furthermore, on whether a doctor should take into account the opinions of the patient's surrogate, the current statutory regime "assumes traditional family values and does not take into account gay couples."

Father Kevin O'Rourke felt that there has to be a "presumption of wanting to live" in all situations. In a situation such as the hypothetical, the patient is "not in a position to make a good judgment - they are incompetent."

Kathryn Tucker, Legal Director for Compassion and Choices, stated, "It is a tort to provide medical services that the patient does not agree to." Physicians worry about informed consent, but "it would be hard to provide services should patients not want them." Panelist Diane Coleman, an attorney who has used a wheelchair since age 11, added that "if a patient has physical disabilities, the desire of suicide could be rational."

Former White House Legal Counsel and Former Chief Judge on the U.S. Court of Appeals for the D.C. Circuit Abner Mivka stated: "Congress and state legislatures should both step back from this issue."

Professor Anne Dayton (William Mitchell College of Law), an expert in the field of elder law, declared that "There is no such thing as patient autonomy in civil law countries." The issue is entirely about "who decides?" The problems with elder law attorneys, she maintained, is that "they give advance directive forms to clients without including spiritual and medical advice in the matter."

To conclude the panel, Dr, Weissman made the observation that since the issue of the right to die involves everything from religion to ethics to medicine to law, "There will never be a consensus on this issue."

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Another panel that ABA Watch covered was titled "Criminal Penalties for Regulatory Crimes." Chaired by Former Attorney General Edwin Meese. General Meese began the proceedings by emphasizing that the Framers originally left the responsibility for prosecuting corporations to the states. Using RICO, though, the federal government has been able to prosecute corporations for "small withholding infractions," rather than for the regulatory crime intended to be addressed by the law. General Meese contends the DOJ uses threats of prosecuting corporate heads in a criminal case to settle civil cases.

Panelist David Fuller emphasized the growth of federal involvement in regulatory prosecutions by emphasizing the degree of "sliding for diminished intent," which allows the prosecution to blur the line between a misdemeanor and a felony. Fuller called for legislatures "be clearer on how the law is prosecuted." For example, should a person know they are violating the law to be punished?

Noel Hillman, Chief of the Criminal Division of the DOJ, remarked that his position on this panel is "like an ACLU chair on a Federalist Society panel." While other panelists believed that RICO should not be applied to small business owners, Hillman argued the law should be applied to all who intend to break any regulation. While many on the panel also believed that corporations are being over-prosecuted, Hillman contends that Congress, judges, juries and prosecutors will act as a sufficient check. He concluded that there should be a sliding scale for punishing those who intend to break a regulation.

William Lytton, Executive Vice President and General Counsel for Tyco, contends this sliding scale would be ineffective with managers and workers, who need a clear line under which to operate. Moreover, Lytton opined that "just because the law exists to prosecute it [an infraction] doesn't mean they should be tried." He acknowledges that increasing penalties for regulatory crimes probably makes our country cleaner and safer, but only because it scares people into checking every action several times. Lytton further observed that prosecutors are given unchecked power to judge which companies should be punished. He considers this unfair because these decisions are made with clear hindsight and under the bright glare of the media.

Louisiana State University Law School Professor John S. Baker disputed the notion that DOJ is outmanned, out-financed, and out-maneuvered. He maintained that the application of mens rea has become too complex, with law schools instigating this confusion by blurring the definition of criminal infractions and regulatory infractions. Baker then asserted that over-prosecution is supported by legislation that is written with the help of DOJ officials, which will never be opposed by members of Congress given the public scrutiny arising from the recent corporate scandals. The solution, says Baker, is judges who will act as a check to this growing power.