Death Penalty Is Wrong

The Death Penalty is Wrong
Wisconsin rejects Capital Punishment

The U. S. Department of Justice just announced that it would start executing people convicted of federal capital offenses in December. President Trump’s apologist Attorney General, William Barr, announced that the first five inmates will die within six weeks. How a staunchly pro-life administration justifies state sponsored killing, while opposing abortion on demand, continues to baffle me. 

The Federal government restored using capital punishment in 1988 and only executed three inmates up to 2003, when it was again suspended. Thirty-seven Federal inmates were executed from 1927 to 2003. In 2014, President Obama ordered a review of death penalty procedures because of concerns over botched executions performed with lethal injections. The current administration announced that the lethal injection concerns have been resolved, clearing the way to start the killings once again. 

Here in Wisconsin, the death penalty was abolished at the end of the 19th century. There was an effort to reinstitute it in the middle 1990s when republicans controlled the legislature and held the governor’s office. 

I had the privilege to be the Chair of the Wisconsin State Bar’s Criminal Law Section from 1994-97. That section is made up of prosecutors, defense lawyers and judges involved with Wisconsin’s criminal justice system.

Our Section looked at the legislative proposal to re-introduce capital punishment and concluded that capital punishment was flawed on a number of levels. We were concerned about the possibility of executing an innocent person. At that time, DNA testing was offering some increased certainty, but many cases lack DNA evidence to test. Research into false confessions and the vagaries of eyewitness identification also lent support to our opposition to the penalty. We all knew that the criminal justice system cannot get it right all of the time and that it is wrong to convict and kill innocent people. 

We also looked at the impact of capital prosecutions on the rest of the justice system. Capital cases cost several times more than other cases that go to trial. Expert testimony, pre-trial litigation and appeals add to the costs and the time cases take to conclusion, taking resources away from other areas of the justice system. Court time for capital cases would take time away from civil cases and would grind the rest of the court system to a halt, especially in smaller counties.

The issues we identified in the 1990s are still present today. They are magnified at the federal level where now Federal courts can impose the death penalty for a federal crime committed in a state that does not have the death penalty. 

President Trump ran his campaign on a “pro-life” platform, promising to appoint “pro-life” judges to the Federal courts. If you believe “life begins at conception” and “all lives matter,” how can you support state sanctioned killing?

I worked with many prosecutors in state and federal courts over the years of my work as a defense lawyer. Former Milwaukee County District Attorney, E. Michael McCann, was among the best and most thoughtful prosecutors I ever tried cases against. McCann, a devout Catholic, was a staunch opponent of the death penalty throughout his tenure and was a strong voice in the debate over its reintroduction. His faith drove his belief that state sanctioned killing was wrong morally. He also understood how trying death cases would take limited resources away from other important law enforcement prosecutions. 

Our work, coupled with the advocacy of other anti-death penalty groups, convinced the Wisconsin legislature not to pursue reintroduction of the death penalty. The proposals died in committee without ever coming to a full vote in either chamber of the legislature. Subsequent efforts to pursue capital punishment also withered and stopped all together by 2000.

Only 22 states now allow capital punishment. Most are republican controlled. How states without the death penalty will react to federal courts sentencing their citizens to death when their state courts cannot will create an interesting political dynamic. 

All of the legalities and moral considerations aside, I still fail to understand how those professing to be “pro-life” can support an administration that engages in state sponsored killing of its own citizens, especially when we have life means life sentencing laws for the most serious offenses.

Attorney General Barr has injected an issue into our political debate that will further divide the electorate and give Trump’s opponents another point of discussion in upcoming election cycles. It is time we abolished the death penalty as many other civilized countries have done.

Obamacare Unconstitutional?

Be Careful What You Wish For

Litigation often brings unintended consequences

Republicans have long railed against the Affordable Care Act, better known as Obamacare. Salivating at the chance to be rid of the epitome of socialist government run amok, 22 Attorneys General from republican led states brought suit in Federal Court to have the entire act declared unconstitutional. They most recently pressed their case before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in the deep south. Two of the three judges favorably received the GOP arguments, foreshadowing a favorable decision. Whichever way the appeals court judges rule, the loser will ask the U.S. Supreme Court to take the case. Standing in the way are five of the nine justices who voted to uphold the law in 2012.

Should Obamacare be declared unconstitutional by the Supreme Court, several of its very popular provisions will cease to be in force immediately. Among those would be protection for those 133 million Americans with pre-existing conditions that currently prohibits insurance companies from denying coverage for those maladies. We recall vividly the recent lame-duck session of our own legislature that failed to pass state protection for pre-existing conditions proposed just in case the Obamacare litigation gutted them. 

There are a number of other Obamacare provisions that would be eliminated immediately with a decision that the whole law fails to pass constitutional muster. A recent survey of the law in the New York Times outlines what is at risk.

Obamacare also provides a number of other protections for health insurance consumers including elimination of the caps on the lifetime amounts that could be paid under a policy, elimination of caps on the amount insurers can require for deductibles, prohibitions against charging older customers more than younger ones and prohibitions on dropping more expensive benefits like prescription medication coverages. All would vanish if Obamacare is declared void.

Obamacare provided permanent authorization of the Indian Health Service that provides doctors and hospitals to more that two million Native Americans. 

Obamacare enabled the Food and Drug Administration to consider and approve biosimilar medications. They are like generic versions of biologic medications which cannot be copied as easily as typical drugs. So far twenty-one biosimilar medications have been approved by the FDA. Elimination of Obamacare could jeopardize those approvals and discourage new biologics from coming to market. 

Obamacare created a new office to innovate new methods of paying for healthcare services, such as lump sum payments for hip replacements and courses to lower diabetes risk. Even the Trump administration seized on this one, using it to link Medicare payments for certain drugs to prices from an international index thus lowering costs. Ending Obamacare would eliminate these efforts as well. 

Obamacare changed several Medicare payment formulas, reducing amounts paid to hospitals. Healthcare providers adjusted their practices to accommodate these changes and undoing them would be difficult. The changes extended the life of the Medicare Hospital Trust Fund and their loss would cause Medicare to lose several years of solvency. 

Obamacare requires drug companies to disclose gifts and payments to physicians, exposing bias in prescribing practices. The end of Obamacare eliminates this safeguard. 

Obamacare reduced the “doughnut hole” in Medicare drug plans that enabled the plans to stop paying for seniors’ meds once they reached a certain amount. Eliminating Obamacare makes seniors on fixed incomes liable for much more of the costs for their medications. 

Obamacare included benefits for breastfeeding mothers like insurance coverage for breast pumps and a requirement that employers provide private spaces for mother to express milk. Thousands of employers that have changed policies to accommodate breastfeeding employees could drop these benefits should Obamacare be invalidated. 

Let’s not forget the 21 million Americans who would lose all healthcare coverage if Obamacare is invalidated. 

If recent history is any guide, our GOP dominated legislature could not even pass legislation to protect those with pre-existing conditions. How can we expect it to provide Obamacare protections for these other benefits current law provides?

To top it off, a declaration that Obamacare is unconstitutional will pave the way for passage of “Medicare for All” on the national level. A measure that already commands support from a solid majority of the American voting public.

Be careful what you wish for, very careful.