Dead Man Balking: Do death row inmates get too many appeals?

Yesterday (3/15/13), the Maryland legislature voted to end the death penalty in that state. Governor Martin O’Malley, who has pledged to sign the bill, summed up the many reasons why death penalty opponents like me are against the death penalty: “We also have a moral responsibility to stop doing the things that are wasteful, and that are expensive, and do not work, and do not save lives, and that I would argue run contrary to the deeper principles that unite us as Marylanders, as Americans, and as human beings."

Thursday (3/14/13), the 9th circuit court of appeals overturned the conviction of Debra Milke, who has been on Arizona’s death row for 22 years. The lead detective, whose testimony was a major part of the prosecution’s case, had fabricated evidence in a number of other cases that have since been overturned. This, of course, throws serious doubt on his testimony in Milke’s case. The State plans to appeal to the Supreme Court.

While Gov. O’Malley cites moral and philosophical reasons for banning the death penalty, Milke’s case strikes a chilling, more personal note. We have executed nearly 1,300 people since 1976 in this country. How many of those did we get wrong?

We soothe our collective conscience by telling ourselves that a death row inmate has years of appeals during which his or her case is closely examined by wise factfinders. On the other hand, we point to this tortuous, lengthy process as evidence that the death penalty is too expensive and doesn’t serve justice at all.

When I tried to describe the appeals process yesterday to a fellow attorney, I stumbled. I was caught short when I couldn’t remember all of the steps—let alone accurately describe them. I decided to outline the process here for my own satisfaction. Anyone else is welcome to listen.

Note: This description assumes a state and not a federal case. Also, some states vary slightly. This process is typical.

I. Trial and sentencing

We’re most familiar with this step. It’s the “sexiest” one, dramatically illustrated in thousands of movies, from “Twelve Angry Men” to “My Cousin Vinny.” The State must prove the Defendant’s guilt beyond a reasonable doubt. The Prosecutor may have decided to seek the death penalty if “aggravating factors” are present—perhaps a murder was particularly grisly, part of another felony such as armed robbery, or the Defendant shows no remorse. While many movies show the judge handing down the death sentence during the sentencing phase, the Supreme Court has ruled that only the jury may decide whether these aggravating factors are present, and therefore whether the Defendant can be sentenced to death. Ring v. Arizona, 536 U.S. 584 (2002).

II. Capital appeal

            A. Direct appeal

                        1. State court of appeals

In most states, this appeal is mandatory in death penalty cases. This is not a new trial. The Defendant is now the Appellant, while the State is the Respondent—and is represented by the state’s department of justice and not a local prosecutor. These appeals are based only on the trial court record. In other words, if the attorneys did not raise an issue or present evidence at the trial, it won’t be considered here. No new witnesses are heard. Instead, the attorney for each side writes a brief and presents it during oral arguments. The panel of judges rules based on the briefs and oral arguments alone.

While the panel of judges can review the trial transcript and evidence, they are not deciding guilt or innocence but are reviewing the case to see whether the lower court made “reversible error,” an error which would have made the trial turn out differently. If so, they will reverse the lower court’s decision and remand the case to the lower court for further proceedings to “fix” the error. This may result in a new trial. Also, the court of appeals can reverse the death sentence itself. If the appeals court finds no reversible error, the trial court’s decision is affirmed.

                        2. State supreme court

The losing side may then appeal the decision of the appeals court to the state supreme court. This is similar to the court of appeals process.

3. U.S. Supreme Court

The losing side can then appeal to the U.S. Supreme Court, asking it to review the federal constitutional issues of the case, such as whether the Sixth Amendment right to a fair trial was violated. While the state supreme court is required to hear death penalty appeals, the U.S. Supreme Court is not. 43 Stat. 936 (1925).

            B. State post-conviction appeal

                        1. Trial court

                        2. Court of appeals

                        3. State supreme court

                        4. U.S. Supreme Court

It’s not necessary to detail all of these steps, except to say that the Appellant can file a petition with each of these four courts, raising issues that were and perhaps were not part of the original trial. Common issues at this stage include ineffective assistance of counsel or Brady violations, where the Appellant accuses the State of withholding evidence crucial to the Appellant’s case. At this stage, as in the Direct Appeal, the U.S. Supreme Court can refuse to grant certiorari (can refuse to hear the case). After this phase, the Appellant has exhausted state remedies and can attempt the federal courts.

             C. Federal habeas corpus review

Latin for “you have the body,” this is the stage during which the Appellant tries to show that his body is imprisoned without legally sufficient reason. Practically speaking, when you hear politicians complain about death row inmates cheating death for years with numerous redundant appeals, they’re usually talking about habeas corpus.

Habeas corpus review ain’t what it used to be. In 1996, Congress passed the Antiterrorism and Death Penalty Affectiveness Act (AEDPA). 110 Stat. 1214 (1996) Among other things, the AEDPA limits the inmate to one petition only and imposes strict time limits on the filing of the petition. Also, under AEDPA, federal judges may grant the petition only if they find that the state courts clearly and unreasonably applied federal law or made an unreasonable judgment based on the evidence. Critics of AEDPA have argued that these limits make the habeas process an ineffective rubber stamp of the lower court’s decisions.

Keeping in mind the above limitations imposed by AEDPA, the habeas process works as follows:

                        1. U.S. District Court

                                    The State and the Defendant file briefs in which they argue federal issues only. The judge can deny the petition or overturn it and can also overturn the death sentence. The judge can hear new evidence, too.

                        2. U.S. Court of Appeals

                                    If and only if the District Court judge or the Appeals Court judge allows the petition to move forward, the Court of Appeals reviews the case, limited to issues brought before the District Court. The conviction or the death sentence can be upheld or overturned here, but if it is overturned, the state court can retry the case.

                        3. U.S. Supreme Court

                                    This is the Defendant’s last resort. The Court hears only a few of these cases a year, and only for compelling reasons. A recent notable example happened 1/10/12, when the Court overturned the conviction of Juan Smith, who was convicted of killing five people in New Orleans in 1995. The court ordered a new trial for Smith, largely based on the prosecutorial misconduct of New Orleans District Attorney Harry Connick, Sr., whose office withheld key evidence from Smith’s attorneys that could have resulted in a “Not Guilty” verdict for Smith.

III. Clemency

            Once the accused has exhausted his final appeal rights, the Prosecutor applies for a death warrant. Once this is granted, the only hope is clemency.

The governor of the state in which the Defendant was convicted can review the case and can commute the death sentence to a lesser sentence. This is not as rare as you’d think, but mostly because governors have commuted all current death sentences immediately before the governor signed a bill repealing the death penalty in that state, as Gov. Pat Quinn did in Illinois in 2011. It is fairly rare for a governor to grant clemency to an individual inmate, but it happens. In 1977, Gov. George Busbee of Georgia granted clemency to Charles Harris Hill, who got the death penalty for his participation in a robbery during which the victim was stabbed to death by his co-defendant, Gary Watts. Gov. Busbee granted clemency to Hill, finding that it was unfair for Hill to get the death penalty when Watts did not.

            In the movies, this step adds extra drama to the plot. As the hours tick away in the march toward the death chamber, the condemned is said to be waiting for a phone call from the governor.

I’ve learned a lot here. While I had a general idea of the process, I find myself surprised by the number and complexity of the individual steps. It’s important to note, however, that Defendants do not typically get the benefit of most of these levels of review. When they do, they usually lose. Even if they win, the result is generally not freedom, but is more likely to be life in prison or maybe a new trial or a review of the evidence.

If anything, I’m even less comfortable with the death penalty than I was before. I’m left wondering how many mistakes we’ve made. Worse—with more than 3,200 people on death row today, how many mistakes are we going to make?

Crazy like a fox: Can insanity set you free?

James Holmes, who allegedly shot and killed 12 people and wounded 58 in an Aurora, Colorado, movie theater last summer, is in the news again. According to the New York Times, Judge William B. Sylvester had expected the defense to enter a plea of not guilty by reason of insanity and discussed the steps that such a defense would require, such as psychiatric examinations. (When the defense was unready to enter a plea, the judge entered a not guilty plea.) While it’s unclear exactly what the defense is planning, it’s certain that Holmes’ sanity will be a major part of the trial.

When a criminal defendant’s sanity is in question, we are often puzzled or even outraged. Certainly, no mentally sound person would shoot dozens of innocent people—to say nothing of the Jeffrey Dahmers of the world. Plus, it is understandably upsetting to imagine such people walking the streets because we as a society are unable to hold them responsible for their actions.

It’s important to define what we mean by “insane” and how that affects criminal proceedings. This complex issue is easily confused because the defendant’s mental state is important at several points in the proceedings.

Who are you calling “crazy”?

Most of us would agree that it’s “crazy” to commit mass murder, but the legal definition of insanity sets the bar higher than that. While the meaning of “insanity” varies from state to state, the trend is toward much less leniency since John Hinckley successfully used the insanity defense when he shot President Reagan. In Colorado, for example, an insane person is “a person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable.” (Colorado Bar Association)

Competent to stand trial?

Before we decide whether the defendant is guilty, we’ve got to get him into the courtroom.

A criminal defendant has the constitutional right to be present for his trial and to participate meaningfully in his defense—and this includes being able to understand the charges and the proceedings. See Dusky v. U.S., 362 U.S. 402 (1960).

Because Aurora shooter James Holmes has reportedly attempted suicide more than once while in jail awaiting trial and may have been a psychiatric patient in the years before the shooting, it is questionable whether he is currently competent. If he isn’t competent now, it doesn’t mean that he won’t have a trial or that he will go free. It means that—if he is found not competent to stand trial—the trial will wait until he is made competent. In extreme cases, antipsychotic medications can be forcibly administered. See Sell v. U.S., 539 U.S. 166 (2003).

Excused or justified?

Once we’ve cleared the competency hurdle, we get into what most people mean when they talk about criminal insanity. Insanity can either be a “negating defense” or an “affirmative defense.” A negating defense is: “There is no crime, because while I may have committed the act, it was not a crime because I was not mentally able to form the necessary intent.” An affirmative defense is: “There is a crime, and I committed it, but I can’t be held responsible because I could not understand what I was doing.”

To better understand these defenses, it’s helpful to define “crime.”

Mea culpa: What is a crime?

Very generally speaking, for an action to be a crime, two elements must be present: Mens rea and actus rea. The actor must have the necessary intent/mental state (mens rea) to commit the criminal act (actus rea). If the actor had the mental state but didn’t act, it’s not a crime. Likewise, if the actor didn’t have the necessary intent but still completed the action, it’s not a crime—or at least it’s not THAT crime.

Example: Say a jurisdiction has a statute that says that the crime of breaking and entering an auto is “intentionally or knowingly entering the automobile of another with the intent to commit a felony therein….” If your car is identical to mine and you’re parked next to me in the Kroger parking lot, I may absentmindedly get into your car before I realize my mistake (probably due to the lack of an eager rat terrier sorting through my grocery bag). I shake my head, laugh, get out of the car, and apologize to you as you approach. While I committed the act (I got into the car), I didn’t commit the crime, because I didn’t “intentionally or knowingly” get into the wrong car—and I certainly didn’t do it with “the intent to commit a felony therein.”

A hard sell

James Holmes is charged with—among other things—two counts of first degree murder for each person he killed. He is charged with, for example: “Intentional murder where the person after deliberation and with intent to cause the death of a person, does cause the death of that person or of another person.” Colo. Rev. Stat. § 18-3-102(1)(a).

The mens rea here is “after deliberation and with intent to cause the death of a person.” If Holmes were attempting a negating defense, he could argue, for example, that he was so delusional that he thought the theater-goers were video game characters and not people; therefore, he didn’t have the necessary mens rea, the “intent to cause the death of a person.” This is a reach, of course, and Holmes would be unlikely to prevail.

If Holmes were attempting an affirmative defense, he could argue that while he intended to shoot to kill, he can’t be held responsible because he was too mentally ill to understand that this was wrong. Again, no judge or jury is likely to accept this.

The insanity defense is hard to sell, particularly because the crimes in question are often heinous and the defendant is rarely a sympathetic character. Also, even if the defendant successfully mounts this defense, he’s still not set free.

Not so fast

A defendant who manages to convince the court that he is not guilty by reason of insanity is not set free to harm again. Rather, he is typically confined to a secured psychiatric hospital—at least until he can show that he is no longer sick. Then, he may be released into a halfway house or into the community with a long list of conditions. Surprisingly, this “sentence” often lasts longer than the prison sentence would have. While the conditions in the mental hospital may or may not be more pleasant than those in a maximum security prison, there’s little motivation to cry “insanity.”

Fire in a crowded theater: Is it really a free country?

Joe, a veteran and avowed atheist (turns out there ARE some atheists in foxholes), goes for his yearly physical at the local Veterans Administration-run medical clinic. He’s escorted to one of the exam rooms, where medical technician and devout Catholic Tammy takes his blood pressure and medical history prior to the doctor’s arrival.

While Joe is not surprised to see that Tammy wears a crucifix necklace, he IS surprised to note that Tammy keeps an open Bible on the counter in the room.

Joe casually mentions to Tammy that he played golf yesterday with another doctor in town. Tammy says, “He’s a nice man, but I can’t condone his lifestyle. He prescribes birth control, which is clearly a sin.”

After Joe leaves the clinic, he grows more annoyed at Tammy’s unsolicited dig at his friend. He didn’t ask for her opinion and thinks it’s inappropriate that she foisted her Catholic-inspired opinion on him in a professional setting. Further, while he’s not crazy about the crucifix, he feels that the open Bible crosses a line.

That evening, he tells his wife that he plans to complain to the V.A. His wife responds: “It’s a free country! Tammy’s got freedom of speech and freedom of religion. The First Amendment says so!”

Is Joe’s wife right? Does the First Amendment guarantee Tammy’s right to say and do what she wants at work?

First things first: We try to find the answer in the plain language of the statute:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances U.S. Const. amend. I

Well, when you put it that way…

Note the first words: “Congress shall make no law….” So… the First Amendment applies only to acts of Congress. This means that, if we’re not talking about a government action, the First Amendment is not triggered at all.

It’s important to understand that “Congress” has been interpreted to include not only laws passed by the federal government, but to the actions of state and local governments as well. (The 14^th Amendment applies the federal Constitution to the states.) Also, subsequent Supreme Court cases have held that—in some very narrow instances--some non-government entities are considered to be “the government” for Constitutional purposes. In other words, a private company or citizen CAN violate a person’s First Amendment rights only if the private company or citizen is:

1) Serving a public function typically performed only by the government (a company town won’t allow residents to peaceably assemble) OR

2) Working with the government where the state is so heavily involved in the private activities that the state and the private actor essentially become one (state public housing project contracts with a property management company that refuses to rent to Hispanics)

Fun side note: Because I work for the government, I’m a state actor during the day and a private actor at night. Sometimes for fun, I jump in and out the door of my office and yell: “State actor inside! Private actor outside!” (Not really.)

So where does this leave Joe and Tammy?

Can Tammy’s employer forbid her to wear a crucifix to work? Can her employer forbid her to keep an open Bible on the counter? Can Tammy’s employer forbid her to offer her opinion of Joe’s friend’s lifestyle? Is Tammy, as an agent of the federal government, violating the First Amendment’s Establishment Clause? In other words, do her open Bible and religious comments mean that her government employer is promoting Catholicism?

Tammy is an employee of the federal government. She works for the V.A., so there’s no need to wonder if we have a government actor here. Still, even if we agree that the V.A. is a government actor here, it doesn’t seem possible that an employer (even a government employer) can’t tell its employees what to do.

Tammy’s freedom of speech

A government employer can restrict an employee’s speech unless the employee is commenting on a public concern UNLESS the speech would disrupt the employer’s business so much that it would outweigh the employee’s right to freedom of speech. (See Pickering v. Board of Education, 391 U.S. 563 (1968) Stated another way, we’re balancing the harm of the statement with the public’s need to hear the statement. Tammy’s statement that Joe’s doctor friend is sinning when he prescribes birth control seems to be of little public interest, and the public’s need to hear this statement is not outweighed by the harm (alienating a patient, for one thing). Tammy’s employer can restrict her speech.

Tammy’s freedom of religion

A government employee has the right to express his or her faith so long as it does not interfere with her work setting. (Draper v.Logan Cnty. Pub. Library, 403 F. Supp.2d 608) Tammy can wear her crucifix, but the open Bible might be seen as too disruptive to her work. Certainly, her comments regarding Joe’s doctor friend would be seen as disruptive. Also, it’s unlikely that Tammy’s comments regarding sin and birth control would be construed as a protected exercise of her religion. (Her religious rituals do not include offering Bible interpretations at work.)

Tammy’s establishment of a religion

A government employer can prohibit religious expression when a reasonable person would view the expression as the government’s endorsement of religion (Logan, again). Certainly, no reasonable person would interpret Tammy’s personal jewelry as the V.A.’s encouragement of Catholicism. On the other hand, I think a reasonable person could see the open Bible in the exam room or an employee’s statements as V.A.-sponsored religious expression—particularly the open Bible.

            I think Joe has some pretty strong grounds for complaints here. What do you think?

Shaky Grounds: The outrageous case of the McDonald's coffee lady

How do you know what you know?

--Elizabeth Lewis, and countless other Criminal Justice professors

Oftentimes, when someone is arguing that Americans are weak, whiny losers who seek to blame someone else for their own shortcomings, they use the McDonald’s hot coffee lawsuit to support the argument.

This case is more than 20 years old now, but we still hear about it nearly every day. Twice this week, I heard someone use it as an example of: 1) How Americans are unwilling to take responsibility for their own well-being AND 2) How this often translates into frivolous lawsuits with outrageous payouts, which harms honest, hardworking Americans and the corporations who love them.

Whether we agree with the above conclusions or not, this case fascinates me because, well, pretty much everything we “know” about the lawsuit is wrong, and yet that doesn’t stop us from trotting it out as a perfect example of why we need tort reform, why class warfare is harming America, etc.

When you examine the facts of this case, it’ll make you wonder: What else am I wrong about? Am I basing other beliefs on bad timber? How do I know what I know?

On February 27, 1992, a 79-year-old Albuquerque grandmother, Stella Liebeck, ordered coffee at a McDonald’s drive-through. After they got their food, her grandson, who was driving, parked the car so that Mrs. Liebeck could safely remove the lid to add cream and sugar. When she removed the lid, Mrs. Liebeck spilled the coffee on her lap, and she was burned.

Now, so far, this sounds like an unfortunate mishap. After all, most of us have spilled drive-through food on ourselves, but we don’t go and file a lawsuit over it, do we? More to the point, is it really McDonald’s fault? Everyone knows that coffee is hot. Isn’t it ridiculous to hold the restaurant owners responsible for our clumsiness when they’re simply giving us what we asked for—a hot beverage to go? I don’t care if you are somebody’s grandma: You don’t deserve millions of dollars because you spilled your coffee on your lap, right?

But wait, there’s more:

During the previous 10 years, more than 700 customers showed McDonald’s that they had been burned—sometimes severely—by McDonald’s coffee. Nevertheless, McDonald’s continued to require franchisees to serve the coffee at temperatures of at least 180 degrees, which causes 3^rd degree burns like those Mrs. Liebeck suffered.

In fact, Mrs. Liebeck suffered 3^rd degree burns on her thighs, buttocks, and private parts. She required painful skin grafts, hospitalization, and follow-up treatment for more than two years. Still, she didn’t sue at first. She simply asked McDonald’s—not for millions of dollars—but for $20,000. She offered proof that this was the actual amount of her medical bills and lost wages, and she asked for no more than this. McDonald’s refused to pay, and offered $800 instead.

At this point, she sued. A McDonald’s quality control executive took the stand and conceded that, while McDonald’s was aware of the 700+ prior scaldings, the company decided not change their practices and had more pressing dangers about which to worry. The jury awarded Mrs. Liebeck $200,000 in compensatory damages (medical bills, lost wages, decreased function), which was later reduced to $160,000. They also awarded her $2.5 million in punitive damages (“punitive” is “to punish”—in other words, to make McDonald’s hurt enough so that they would change their practices). The jury arrived at this figure by calculating two days’ of McDonald’s coffee sales. This award was later reduced to less than $480,000. After more legal wrangling, the parties settled out of court for a lesser amount, bringing the total paid to Mrs. Liebeck to less than $600,000.

Is less-than-$600,000 a fair price for scalded genitals, hospitalization, disability, medical and legal bills, and the stress of months or years of court appearances, depositions, etc.? Maybe or maybe not, but I think this at least shows that Mrs. Liebeck is not an irresponsible, clumsy chiseler who conned an innocent corporation into giving her a lotto-style payout.

How do you know what you know?

A letter to my dad, the veteran

Dear Dad:

You were my very first hero.

Tall and handsome, confident and strong, moral and ethical, and yet so, so funny. To me, you are perfect.

When I was little, I was sure you could do anything. Remember when I was 4? I was sick and turned to you to solve the problem. I cried: “Dad, I don’t wanna throw up. Make me stop!” You said, “Hey, there’s nothing I can do to stop THAT!”

You shocked me. Until then, I hadn’t known that you couldn’t protect me from every single danger. I still don’t believe it entirely.

That summer, you balanced me on your hip while you waded in the surf at St. Simons Island. I told you I was afraid of the waves, that I didn’t want them to wash over my head. You strode out chest-deep, clutched me tighter, and let the big waves break over both of us.

You said, “See? You did it!” Well, really, YOU did it, but: You held me while I faced down that fear, and you never let me go.

Everybody says you joined the Army because Pearl Harbor was bombed: You knew we were going to war and you had always wanted to fly, so you beat the draft board and joined the Army Air Corps.

As the pilot of the B-26, you flew mission after mission. Italy and North Africa. You bombed the Liri River Dam. Your plane was hit by flak, lost the rudder cable, went into a spiral. You brought your plane and your crew home anyway.

It happened again. You did it again. You won medals. You never wore them.

I wouldn’t know any of this, of course, unless I had found the newspaper articles your sister saved.

Like all real military heroes, you never talked about The War. I’ve never heard you brag about what you did—and I’ve never heard you excuse your flaws by calling up any of the terrifying things you lived through.

Some nights, the bunk next to you would be empty where a buddy slept the night before. Back home, your mother stopped answering the door.

You never once said: “Hey, I did my part. My country owes me.”

You helped defeat the Nazis. You helped save the world. Thanks, Dad.

Very rarely, you would mention an interesting anecdote, but that’s it. Once, I was working on a school project about volcanoes, and you told me that you were flying a night bombing run when your instruments failed. You used the glow from Mt. Etna to guide you home.

Sixty years later, you had lived a long life that would have been honorable even if we don’t count your military service.

You were an old man. Your body was failing you, and you—always strong and invincible before—were fighting a war that nobody ever wins.

After weeks, months, of struggling, you looked up at me with clear eyes. You told me to leave the room because you had something that you needed to do, and you didn’t want me to be there while you did it.

You died on February 10, 2004.

Your country is grateful to you. Your family is grateful to you. I am grateful to you.

You see, whenever I am fighting my own little personal wars, you are there with me. Because of your example to me as a father and as a man, you never let me come home at night to face an empty space where you once were. You’re always in my heart, still, and like Mt. Etna, the light of the life that you lived and the man that you were is always there, guiding me safely back home.

Making friends with benefits

“Keep your Socialist hands off my Medicare!”

--Sign I saw at a Tea Party rally, Nashville, Tenn.

“We’re a capitalistic society, OK? I go into business, I don’t make it, I go bankrupt. They’re not gonna bail me out. I’ve been on food stamps and welfare. Anybody help me out? No.”

--Actor Craig T. Nelson, appearing on Glenn Beck’s Fox TV program, May 2009 (link is here: http://www.youtube.com/watch?v=yTwpBLzxe4U)

I offer these quotes not to criticize but to illustrate how little most of us know about the hot-button topic of “welfare.” Even though Mr. Nelson was ridiculed widely because he apparently does not know that food stamps, welfare, and bankruptcy are forms of being “bailed out” by someone else—namely taxpayers and solvent consumers—I don’t think we should judge him too harshly.

In fact, I would argue that, while some people may be better informed than others, it is human nature to downplay our own weaknesses while we pin societal ills on the perceived weaknesses of other people.

The subject of public benefits fascinates me, in part because no two of us can agree on who should get benefits, in what form, under what conditions, for how long, and for what purpose. Even though it’s an intensely political issue, I hope to make a few well-reasoned points based on facts and not just feelings.

If we want good answers, we must ask good questions.

1) What do you mean, “benefits”?

Broadly defined, just about everything the government does confers some sort of public benefit. Most of us drive on public roads, send kids to public schools, rely on the military, police, fire department. Most of us pay taxes, too, but of course the amount varies, as does how much benefit we receive. This is not what usually comes to mind when we say “benefits,” though, although many argue that it should.

Everyone draws the line in a different place, but I think we’re talking about:

a) Social Security (including OASDI, SSDI, and SSI)

b) Medicare

c) Medicaid

d) Food stamps (Supplemental Nutrition Assistance Program—SNAP)

e) Cash assistance (Temporary Assistance to Needy Families—TANF)

It’s a lot of information, so I made this table to cover the broad points:

Program	Wait, what?	Agency	Who funds it?	Who gets it?	Conditions?	How much?
Social Security--OASDI	Retirement	SSA (federal govt.)	Payroll taxes (FICA)	Retired people	Must have worked 40 quarters, must have paid into system, must be a certain age (varies)	Based on how much you made and when you retired
SSDI	Disability insurance	SSA (federal govt.)	Payroll taxes (FICA)	Disabled people	Must meet SSA’s definition of “disabled,” must have paid into system and worked required number of quarters based on age when disabled	Based on how much you made and your age
SSI	Disability insurance	SSA (federal govt.)	Payroll taxes (FICA)	Disabled people	Must meet SSA’s definition of “disabled,” need not have paid into system or worked for any length of time, but must have limited means	Up to $698 for a single person; $1048 for a married couple
Medicare	Health insurance	Dept. of Health and Human Services (federal govt.)	Payroll taxes; also, premiums taken from the insured’s SSA check	OASDI recipients; SSDI recipients who have been on SSDI for 2 years
Medicaid	Health insurance	Dept. of Health and Human Services (federal govt.) with each state’s Department of Human Services	State pays part; fed govt. pays part (in richer states, it’s close to 50/50)	People who fit into certain categories only and then meet income and resource limits	Numerous
Food stamps	Used to buy food at the grocery store	Department of Agriculture (federal)	Fed govt.	Households under a certain income limit, once household size and certain expenses are counted	Numerous	Varies based on HH size, income, expenses, etc.; HH average is $133/mo.
Cash payments	TANF, a vestige of “welfare”	Dept. of Health and Human Services (federal govt.) with each state’s Department of Human Services	Mix of state and fed govt.	Families with children; must be under the income limit	5 year lifetime limit; work requirement; family planning requirement	Varies based on many factors

2) If we have Medicare and Medicaid, why are people uninsured?

You’re eligible for Medicare only if you receive OASDI (Social Security for the aged) or if you’ve been on SSDI for two years.

You’re eligible for Medicaid only if you fit into one of the categories that Medicaid covers AND you have very low income and few assets. (Generally speaking, the categories are poor single-parent families, nursing home residents, pregnant women, some children, and people who receive SSI. Also, poor people on Medicare sometimes qualify to have their premiums and some other costs paid by Medicaid.)

To qualify for Medicaid, for example, a single parent with one child must have a net household income of $896 per month and have assets (such as a bank balance) of less than $2,000.

So… unless you’re very poor AND you fit into one of the categories, you can’t get Medicaid. A 36-year-old single man, for example, cannot get Medicaid no matter how poor or sick he is.

Also, many employers don’t offer health insurance, and those who do must ask workers to pay part or all of the premiums, co-pays, and a deductible. One of my relatives works at a large, established company and pays $350 per month in premiums with a $7,500 deductible for her health insurance.

Also, in this economy, it can be a challenge to find any job, let alone one with health insurance.

Medicaid, Medicare, and private group health insurance cover only part of the population. This leaves a lot of people uninsured (or under-insured).

3) Why do illegal immigrants get benefits?

In general, they don’t.

In order to get the benefits listed above, you must prove that you are a U.S. citizen and that you have a valid Social Security number. In some cases, non-citizens who have permission to live and work in this country can apply for limited benefits after they’ve been here for a set amount of time. (Five years of legal residency is common.)

This is not to say that illegal immigrants don’t use some public benefits. They drive on public roads, for example, and send their children to public schools. While even those who don’t pay payroll or income taxes pay SOME taxes (gas tax at the pump, sales tax, etc.) and contribute to the economy as a whole, I don’t know if it’s “enough” to cover services received. Also, I’ll concede that it’s possible for someone who is eligible for food stamps to buy food and then, for example, prepare a meal for people who are not eligible for food stamps. Further, there is a limited type of Medicaid that covers illegal immigrants: Certain hospitals must accept anyone who suffers from a life-threatening emergency, such as a heart attack or childbirth. The hospital must (very generally speaking) treat the person until they are stable. These hospitals receive some Medicaid funds to cover their expenses.

4) Are benefits a right—or a privilege?

The Supreme Court held in Goldberg v. Kelly 397 U.S. 254 (1970) that welfare benefits are a personal property right. This means that everyone who is entitled to benefits has the right to receive them, and if the benefits are to be terminated, Due Process is required: a written notice and the opportunity for a hearing.

Under the Fifth and Fourteenth Amendments of the U.S. Constitution, then, public assistance is a Constitutional right.

The federal government and the state governments (when the state is involved) can pass laws and make rules, but they must not infringe on the recipient’s constitutional property rights.

5) What about drug testing?

I think drug testing laws can be written to pass Constitutional muster, but drug testing doesn’t seem to be cost effective.

In jurisdictions where a clean drug test is required before benefits are issued, an overwhelming majority of recipients pass the drug test. (In Florida, over 98% of welfare recipients passed).

There’s a confound here, of course: People who are on drugs are not likely to take the test, which would then remove them from the welfare rolls—but would also remove their children from the welfare rolls, and some would argue that the child of a drug user needs help just as much as (or more than) any other child.

Also, the modest savings wouldn’t seem to justify the expense of administering and tracking the test, processing the appeals for those who failed, re-testing, etc. Some states have responded to this by making the welfare recipient pay for the test. The problem with this is: If you’re needy, you won’t be able to afford the test. Also, many states reimburse the cost of the test to those who pass, and taxpayers must pay the administrative expenses, which puts us back to square one, cost-wise (except for some of the failing 2%).

Still others have argued: Why illegal drugs? You can’t test for other wastes of money, such as alcohol, entertainment, some prescription drug abuse, tattoos, etc.

6) Why should people who don’t work get benefits while I work and don’t get anything?

I think good arguments can be made here.

It’s true that many people who receive benefits DO work (or worked for many years until they could no longer work). Some recipients work more than one job.

It would be disingenuous, though, to say that everyone who gets benefits accepts them only as long as they need them and uses the boost to get back to being a productive member of society, as Craig T. Nelson apparently did.

To be honest, this is an issue with which I wrestle. Morally speaking, what is society’s duty here? I’d be very interested to hear everyone’s thoughts on this.

7) There’s a difference: I worked and paid into the system in order to receive Social Security and Medicare.

This is true—partially.

While a person (or their spouse) must work 40 quarters and pay payroll taxes, in order to get Social Security and Medicare, it’s not exactly like we’re all paying into a fund and then getting back only what we paid into it.

I don’t wish to dishonor my parents’ memory, but I’ll submit my own family as an example.

My father died in 2004, and my mother died recently. My parents were decent, hard-working people. I believe that they did their best to be honest, responsible citizens.

For much of her adult life, my mother was a stay-at-home mother. My father was the sole breadwinner. He was a veteran of two foreign wars and was a smart man, but we were not rich.

I don’t know how much my father paid into the Social Security and Medicare coffers, but I am certain that it was not enough to pay for his end-of-life care, which was well over $500,000, nor was it enough to pay for my mother’s many years of experimental cancer treatments and end-of-life care—to say nothing of their Social Security income.

While my parents were responsible and worked hard, in this case, we took more than we gave—and other people paid the rest.

8) Benefits help the poor at the expense of everyone else.

Benefits do help the poor, but they also help the rich and middle-class. Here’s how:

Food stamps began during the Great Depression to help both poor people and struggling farmers. Still, when you buy food with food stamps or your own money, you help farmers, grocery stores, food companies, etc.

If you notice, it is not poor people who lobby to have food stamps pay for more and more items (including fast food!), it is corporate interests such as restaurants, large grocery store companies, and large food companies.

People often complain that food stamps should not be used for junk food. What do you think Monsanto, the Coca-Cola company, retail chains such as Wal-Mart, and Dollar General Market (which sells no fresh food) would say about that? Please note that J.P. Chase Morgan is paid hundreds of millions of dollars to administer the food stamp program in several states. When you consider who has the political power—hungry poor people or wealthy large corporations—it is no surprise that efforts to limit the scope of the food stamps program don’t get very far.

Similarly, efforts to cut Medicaid and/or Medicare don’t just upset sick, poor people. Hospitals and doctors and their related organizations, who hold considerable political power, need to be able to treat more patients with more expensive treatments. The rest of us benefit from having these hospitals, doctors, nurses, technicians, research, MRI machines, etc., available to us, too.

My point is: These programs are so far-reaching and are so intertwined with the economy that it’s not so simple to cut benefits for anyone.

9) “I know someone who gets food stamps and…”

Despite the efforts of the federal and state governments, there is fraud.

Some possible scams:

Buying groceries with food stamps and selling them to someone else for cash.

Faking a painful condition and selling your Medicaid-sponsored prescription pain pills for cash.

Making money under the table and then lying to your caseworker about it, thus qualifying you for food stamps or maybe Medicaid.

If you know someone who is doing this, report it! (Your state’s website has the phone number.) Someone is stealing YOUR money and preventing an honest, needy family from getting help.

How I Passed the Bar

“...Remember, never take no cut-offs and hurry along as fast as you can.” – Virginia Reed, age 12, Donner Party survivor

There is no “right” way to study for the bar except for this: Decide how YOU study and learn best, and then study THAT way as hard as you can.

Because the bar exam was so scary for me, I want to try to ease some of your fears. This is what I learned and what worked for me.

Please remember that this is my advice based on my experience only.

1) Know yourself

How do you learn? What worked for you when you were studying for law school exams, and what didn’t? Think hard, and do THAT when you’re studying for the bar exam.

I knew that I didn’t benefit much from static lectures and videos, and I didn’t benefit at ALL from studying in a group. I had to absorb the information and then work with it all by myself. A combination of briefing the cases, attending the classes (and listening but not talking very much), and then researching and writing my own outlines worked best for me. Same with the bar exam: I listened to the bar exam subject lectures, took notes, outlined, and then practiced on my own. It worked for me.

If your law school experience has taught you that you benefit from the format that one of the bar study courses offers, then do that. I studied on my own, using a variety of tools.

2) Do not listen to the naysayers:

Most “friendly advice” is not very friendly—or very true.

If you’re a law student now (or you’ve ever been one), you can probably rattle off a list of the dire warnings that classmates, professors, and lawyers leveled at you during your 1L year: “If you don’t join this club, you won’t make contacts, and you won’t get a job when you graduate.” “If you don’t form a study group, you’ll flunk out.” “If you hand-write your exams, you’ll be at a speed disadvantage because….”

I wasted a lot of mental energy worrying about this stuff until I discovered this: The only “right” clubs to join, networking events to attend, externships to work are the ones that fit your goals and interests. Everything else is just noise.

It’s that way with the bar exam, too: The doom-and-gloom types will try to tell you that you won’t pass if you don’t take BarBri, or that PMBR is the only way to go, or—even more chilling: “The best predictor of success on the bar exam is (pick one: first semester grades, your score on the MPRE, your score on the LSAT).”

Try not to listen to these people. Your “success rate” has little to do with your past, and it’s almost entirely under YOUR control.

3) Surround yourself with positive people and support.

I had several friends from the upper classes who had taken the bar before I did. I would call these friends—sometimes very late at night—and they would talk me down. Lean on these people. (Email me if you need to lean on me.)

You can do it.

4) Don’t waste time and money on gimmicks

It’s tempting to listen to those who claim to have tips and tricks to “beat” the bar exam. These are silly. Again, hard work and careful study are the only keys. There are no shortcuts.

5) BUT some tools are very helpful and are worth the money.

My state (Tennessee) offered for a modest price the essay questions from some recent past bar exams. I bought these and used them to practice, and they were very helpful.

They were also helpful in another important way: You begin to notice a pattern. DON’T PUT ALL YOUR FAITH IN THIS PATTERN, but take note of it.

For example, I noticed that five out of six of the recent past bar exams featured a Wills and Trusts question. In every one of these fact patterns, someone had died leaving an older will and a more recent will. The will’s validity was in question by putative heirs, for one of the expected reasons: The newer will was handwritten, or maybe the heirs suspected undue influence and/or the testator’s incapacity. You’ll notice these frequently-tested scenarios, and you’d be a fool not to prepare for them.

6) Don’t skimp on your MBE (multiple choice portion) study

This study was far more tedious and time-consuming than my essay study, but I devoted most of my time to it, and it paid off.

Here’s how I did it:

Get your hands on as many sample bar exam multiple choice questions as you can. I borrowed a huge book of them from a friend, and I bought second-hand a book with many hundreds more. In addition to these individual questions, the books had full sample tests.

I recommend this method:

1) For eight or more hours a day for many days on end, I worked one question at a time. I covered up the answer choices, read the fact pattern and question prompt, and quickly tried to answer before I looked at the choices. I then looked at the choices, picked one, and then read the answer and explanation, noting why I got it right (or wrong). Then, I did it again. And again, and again, for several hundred questions, day in and day out.

2) After I had practiced in this manner on a fair sample of the questions for each of the subjects (torts, contracts, etc.), I took a full sample bar exam multiple choice section. I then graded myself with the answer key, became crestfallen at how low my percentage of correct answers was, and tearfully went back to Step 1. I then took another full test. I did this maybe once or twice more. My score got higher and higher, so don’t be alarmed at how poorly you may do at first. That’s normal.

(Also, you’ll wish you had used this method all during law school to learn your subjects, because you’ll be astonished at how good you get at spotting the fine distinctions in the law. As tedious as this is, it’s quite encouraging to see how quickly you begin to really KNOW the law. This is why I said “don’t skimp” on this part. This will help your essay question performance, too! It is time well-spent, so give it the time it deserves.)

7) Work hard

This seems obvious, but even if you do choose a bar study course, I think it’s a mistake to be lulled into just working the daily sessions. For me, it took more than eight hours a day of diligent self-study—every single day.

You’ll notice that you will not feel prepared ever. This is alarming, but it’s normal. I don’t know about you, but I did much better on the law school exams where I didn’t feel that I knew everything. When I felt confident that I had the subject down cold, that was actually a bad sign. You know that you don’t know what you don’t know. If you know, you don’t know, because you can never really know everything. You know?

8) Make peace with IRAC

Bar exam graders have even more exams to grade than do law school professors. The graders are looking for certain things. If you cover what they’re looking for, your answer passes. If not, it fails. This is actually a good thing, because you’re already so good at IRAC, issue spotting, and raising and dismissing counterarguments.

I found that the essay questions did not have as many issues to spot as did a standard law school exam, so you’ll want to signal to the exam grader that you’ve hit the target. To do this, I made very sure to lay on the IRAC a little more thickly than I did on a law school exam, and I think it was wise.

For example:

“This question deals primarily with personal property.

The question asks whether Mr. Jones can get the ring that he left on the grocery store shelf back from Mr. Smith, who found it. In order to determine this, it’s important to determine whether Mr. Jones lost the ring, mislaid or abandoned the ring.

In Tennessee, personal property is ‘lost’ when…”

See? Pretty broad, but it works.

9) I never wrote a sample essay answer

You may choose to, but I didn’t. I just read the question, outlined the answer, and checked it against the sample answer to see whether I had raised the proper issues and had dealt with them correctly.

10) Don’t waste time on RAP

If you don’t already understand the Rule Against Perpetuities or some similarly obscure-yet-complicated law, don’t waste time learning it now. If judges don’t understand it and all jurisdictions have written statutes so that it is never, ever triggered, it’s probably not going to figure heavily on the bar exam (if at all).

Tread carefully, of course. You don’t want to say something like: “I never could remember all of the hearsay exceptions from Evidence class. I’m skipping them!” But if you don’t see something tested in the hundreds of sample questions that you do (or you only see it once or twice), don’t waste valuable time.

 

SUMMARY:

Here’s how I studied for the bar:

1) I knew what worked for me, and I crafted a rough plan based on that.

2) Before I finished 3L, I gathered my study materials. I borrowed a friend’s PMBR Multi-state lecture CDs and practice question book, and I bought used Tennessee BarBri outlines and MBE and essay sample question books from eBay, which I later resold for the same price. From my state bar association, I bought the sample exams (including an online version).

ETHICS NOTE: Companies such as PMBR and BarBri ask you not to do this. I did it anyway. Was it wrong? I don’t think so, but I accept that reasonable minds can differ.

3) I read the bar outlines from the books and listened to the bar lecture CDs. I took notes on my laptop and then crafted the notes into outlines, trying to forget that I had spent many hours just 2 ½ years prior doing the same thing.

4) I then began multiple choice practice, using the method in Point #6 above.

5) I practiced my essays, using the method in Points #5, 8 and 9, above.

6) I took sample exams.

Please do it your own way, but work hard.

I know you can do it. I’m proud of you.

Call or email if I can help.