Leave our Constitution Alone

Leave our Constitution Alone
It works just fine

When our founding fathers sat down to write our new nation’s Constitution and Bill of Rights, they recognized that we needed protections against governmental abuses that deprived citizens of their freedom. With abuses by the English crown in mind, they crafted bedrock principles to protect us against future governments run amok. 

When the government accuses a citizen of a crime, the citizen starts the process with the presumption of innocence. This requires the government to carry the burden of proving that a crime was committed and that the citizen accused committed it. The accused never has to prove her innocence. 

The second principle requires the government to prove the guilt of the accused beyond a reasonable doubt. This is the highest evidentiary standard used in the law and is meant to ensure a high degree of certainty in the verdict.

The third principle requires the accused be afforded due process of law. This means the government has to tell the accused what crime has been charged, what evidence it intends to use to prove it and provide a neutral forum to hear that evidence.

Finally, the accused is guaranteed that her case will be tried before a jury of her peers who have to unanimously agree as to her guilt or innocence. 

These protections are buttressed by additional requirements preventing governmental invasions of privacy. Before the government can invade your home looking for evidence, it must first obtain a warrant from a judge based upon a credible showing that evidence of a crime is probably located in the place to be searched. 

These protections against government over-reach have worked well since our nation was founded. They apply to all and can be invoked by anyone who stands accused. 

Because those who commit criminal offenses are not well regarded, some in our legislatures seek to curry favor with those who would dispense with these protections for the “obviously guilty” by “getting tough on crime.” One such effort led to the passage of a victim’s rights amendment to our Wisconsin Constitution.  It provided “victims” with a set of rights to make sure that they are treated fairly by the criminal justice system. It set up an obvious conflict with the rights afforded to the criminally accused that is still being litigated in criminal cases. 

Not to be out done in stripping rights from the accused, our legislature has recently passed a new set of “victims’ rights,” known as “Marsy’s Law.” Because the proposed provisions change the state constitution, they must be approved by the voters in a statewide referendum this fall. 

The Wisconsin Justice Institute (WJI) recently published an analysis of “Marsy’s Law” authored by noted criminal defense lawyer, Dean Strang.

Strang looked at all 16 provisions of the new law and noted that voters must consider all in an up or down vote, not 16 separate votes. He concludes that while some of the provisions are laudable and workable, some unconstitutionally invade the rights given to the accused and place undue burdens upon law enforcement officers and district attorneys seeking to comply.

While people can be and are harmed by the acts of others, they do not become “victims” in the criminal law sense until the person who caused the harm is convicted by a jury of his peers who unanimously agreed that the government proved his guilt beyond a reasonable doubt. “Marsy’s Law” continues the effort to put a finding that one is a “victim” before the accused is tried and convicted.

Here are some of the problem areas identified in the WJI analysis titled “Marsy’s Flaws.”

One provides a “victim” with a right to privacy. This directly invades the accused’s right to notice of the charges against him, the identity of his accusers and the evidence that will be presented by the government in its effort to convict. This new “right” will create a false sense of hope and expectations for those harmed. 

Another right is to have the proceedings be “free from unreasonable delay.” The proposed law does not tell us who gets to decide if a delay is unreasonable, nor does it fashion a remedy. Would a delayed trial mean that charges are dismissed or that the accused must be found guilty without a trial? The first would not please the “victim” and the second would not pass constitutional muster. 

A third provision allows the “victim” to attend all court proceedings upon request. This will not work as written. It would require the state to provide notice and transportation to all “victims” wanting to attend but unable to afford to and that judges schedule proceedings so that their attendance can happen. For a working, out of state “victim,” this would mean court hearings at night or on weekends to accommodate schedules. 

A fourth requires “victim” access to the attorney for the government upon request. Most district attorney offices have victim-witness coordinators who serve as points of contact with prosecutors. Most DAs do not have the time to meet with “victims” whenever they ask. Again, this provision creates false hopes and is unworkable given current staffing levels. 

A fifth requires that a “victim” be allowed to address the court in any proceeding where one of her rights is implicated. This will create chaos in the courtroom as “victims” often disagree with decisions made by prosecutors and sometimes even ask that charges be dismissed or reduced. 

Finally, Marsy’s law provides that “victims” are entitled to “full” restitution from the person ordered to pay it. What happens when the offender cannot pay due to incarceration or death? This provision would then require state taxpayers to foot the bill. 

“Marsy’s Law” is not needed to address a real problem. Its passage is meant to appease the “tough on crime” crowd that has led us to be one of the countries with the largest prison population on the planet. Our constitution was written to protect us all from government over-reach. Let’s keep it that way.

Death is Inevitable

Death is Inevitable
Tell me how to help

We all have one thing in common. Sooner or later we are all going to die. Most do not have the luxury of knowing when or what will end our lives. Way too many think death is just for the old and infirm and is personally way too far off to contemplate. Far too few plan for end of life issues, leaving family with hard choices.

Death that comes quickly is somehow easier. Those with long, slow death dealing infirmities put caregivers, loved ones and medical providers in tough ethical and moral conundrums. Do we treat aggressively, moderately, passively or not at all? Who gets to make the decisions for the incapacitated who can no longer make decisions on their own? What happens when medical judgments and religious beliefs clash? What happens when family members disagree about the course of treatment?

As a guardian for those with dementia or other incapacitating infirmities, I have experienced first-hand what happens when death comes before affairs are put in order and end of life wishes are made known. 

People who fail to plan for their eventual death or terminal illness exist in what is known as “full code” status. That means that first responders and medical providers must use all means necessary to keep the person alive unless certain guidelines are followed. This can result in invasive medical procedures that may compromise quality of life or cause pain to the patient. 

People who are competent can direct how they want to be treated when they are not able to direct how and what medical treatments are undertaken for them. This is usually accomplished by creating a written living will that outlines what steps can and cannot be taken. People can also designate through a written Health Care Power of Attorney who can make medical and end of life decisions for them if they become incapacitated. Hospitals have forms you can fill out and elder care and estate planning lawyers can also help. Taking the time to create these plans and then discussing them with your family and loved ones will save them and you from the chaos that can follow sudden life-threatening injury and illness. 

For those who courts have determined to be incompetent and fall under the care of a guardian, end of life decision making gets complicated. If the person has made their wishes known before becoming incompetent, guardians can honor those wishes as life winds down. 

One of the major issues is whether to administer cardio-pulmonary resuscitation (CPR) if a person suffers cardiac or respiratory arrest. If a person does not want to have this intervention, she can sign a “Do Not Resuscitate” (DNR) order and provide copies to their medical providers and hospitals, keeping copies at home and in vehicles for first-responders. We know from studies that CPR when performed on elderly patients in nursing or other residential care can cause pain and broken ribs. We also know that long term recovery in these patients is not significantly improved if CPR is administered. 

If no DNR order is in place, guardians can obtain one under certain conditions. First, the person must be 18 or older (known to be not pregnant) and have a terminal condition or a medical condition that could make such actions unsuccessful or repeated cardiac or respiratory failure would occur before death, or have a condition where resuscitation would cause significant physical pain or harm that outweighs the possibility of restored function for an indefinite period of time. Next, an attending physician has to provide written information on procedures that might be used and how the patient can revoke the DNR consent. A DNR form is then signed by the doctor and guardian.

DNR orders do not address the withholding or withdrawal of life-sustaining medical treatment from someone who is unable to make those decisions. Again, living wills and Healthcare Powers of Attorney can spell out your wishes before these decisions have to be made. Those without this advance planning, put guardians and loved ones called upon to consider them at a considerable disadvantage.

In order for a guardian to withhold or terminate life-sustaining treatment like hydration and artificial nutrition, three physicians have to determine the person to be in a “persistent vegetative state.” If the person expressed their wishes on the subject, the guardian must follow those wishes. If not, the guardian must determine if the proposed course is in the person’s “best interest.” Courts have held that continued life is in a person’s “best interest.”

In considering if treatment withdrawal is in the person’s “best interest,” guardians must consider what treatments will do to the person, life expectancy and prognosis for recovery with or without treatments, the various treatment options, the risks, benefits and side effects of each treatment and the opinions of those who have known the person for significant periods of time. If these considerations weigh in favor of withholding or ending treatment, then the guardian must notify all “interested parties” and give them time to respond. If no one objects, the guardian can withhold or end treatment. If there is an objection, the matter is brought before the probate court for decision.

These are complicated and difficult issues fraught with emotional overlays making it more than worth the effort to address them long before they get presented. Please have the conversations needed to make your wishes known to your spouse, children and extended family. Make your own decisions now about how you want to be treated in the event you cannot express your wishes. It will make it easier on those called upon to help you as your life ends.

Read My Lips

Read My Lips
GOP Tax policy only helps the rich

Here’s a surprise. The 2017 Trump tax cuts that were supposed to stimulate economic growth and trickle down to working people through higher wages have not come close to achieving those lofty selling point goals. Instead, People who own businesses and other concentrated wealth will have a lot more money to hoard and the federal budget will have significantly less to spend.

The Congressional Research Service, an in-house, non-partisan fact finding body, just published a paper outlining the effects of the 2017 Tax Revision, often called the Tax Cuts and Jobs Act, and the GOP members in Congress cannot be happy. It finds that none of these secondary effects have shown up and are not likely to in the long run. Growth has not increased above levels before the tax cuts went into effect. Wages have not increased either. There was a short and small bump in repatriated corporate cash from abroad, but that has leveled off. The expected business investment from the tax cut windfall failed to materialize. 

Many of the GOP tax cuts supporters claimed, without any support from recognized economists, that anticipated business growth would pay for the loss of revenue to the treasury and certainly not increase the deficit. The report shows that, so far, growth has made up about 5 percent of the lost revenue, missing the projections by a mere 95 percent. 

Cut supporters helped sell the plan by promoting increased worker wages from the excess corporate cash provided by the cuts. Unfortunately, the report finds no widespread increases in bonuses or wages. It does show significant stock buy-backs and repatriated dividends from subsidiaries abroad helping businesses increase their cash holdings. 

I doubt that many of those who supported the cuts will back away from them in light of the new data. Their corporate donors are happy and that’s where they get most of their economic support. More rational constituent centered lawmakers might use the report to marshal support for repealing the cuts and then using the trillions in lost revenue to build more realistic growth and worker supporting policies.

Here in Wisconsin, the GOP controlled purse strings continue to tighten, stunting growth potential with proven successes. Our leaders do not want to be outdone by their federal counterparts.

Members of the GOP controlled legislative Joint Finance Committee continued their evisceration of Governor Evers’ Peoples Budget on Tuesday. Evers proposed spending $130 million more on the UW System over the next two years. The GOP Committee approved just $58 million more, with $45 million being subject to committee approval of a report showing how the money would be spent. 

UW System President Ray Cross opined that these decisions missed an opportunity to meet the future needs of the state and felt “like a kick in the shins.” Cross indicated that the approved amount will prevent the UW from expanding high demand nursing and engineering programs on many campuses. They will also limit the System’s ability to hire and retain quality educators.

While the Committee agreed with Evers to continue the UW tuition freeze, it failed to approve state funding for the revenue lost from the freeze. Fully funding the freeze would have helped the UW System catch-up from all the previous funding cuts under the Walker dynasty.

The educations provided by our UW System have fueled state economic growth for decades. As a proud Alum, I recognize that my professional success and contributions to Wisconsin’s economy over 37 years of lawyering would not have been possible without the support and funding provided to me as both an undergrad and law student on the Madison campus in the 1970s.

Failing to adequately fund the UW System under the guise of accountability and political correctness, cuts off our economic nose to spite our collective faces. 

The Joint Finance Committee previously voted not to expand Wisconsin participation in Medicaid, a federal program that helps cover the cost of healthcare for the indigent. Even though data from other states that have received Medicaid expansion funds shows significant taxpayer savings for healthcare costs for the uninsured or underinsured, our legislators continue to believe that someday, maybe or possibly, the federal government will change its mind and force state taxpayers to continue to cover these costs. Under this rational, thousands of poor people will go without necessary healthcare that could return them to productive citizenry, the state’s share of the current costs will continue to rise anyway and our economy will continue to suffer. 

These shortsighted, no tax increase decisions doom opportunities for working- and middle-class people to prosper and succeed like my generation was able to do. The better educated we are, the more we earn. The more we earn with our labor, the more Wisconsin prospers.