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The Duquesne University School of Law News Magazine

DUQUESNE UNIVERSITY LAW LIBRARY

APR 1 9 200t

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VOL. 34, No.2 • SPRING 2001

A Tribute to Bridget Pelaez ... ....... ........... .......................... .. .. 2

Editorial: Learning the Secret Handshake by N.S. Koerbel. ... .. .......... ..... ....... ... .. ....... ..... ... ..... ... .... ... ... .... 4

Hate-Crimes: The Aftermath of Taylor and Baumhammers by Sanaz Raji .. ..... .. .. ..... .. .. .. .... ..... ... .. .. ... ...... ... ..... ... .... .... ..... . 5

Insanity, Guilty but Mentally lll: The Role of the Forensic Psychiatrist

by Diane Blackburn. ............. .. ....... ..... ...... ..... ... ...... .. ... ... ... ..... 7

The Second Amendment and the Individual Rights Debate: A Look at the Cases and Controversies

by Greg Neugebauer ... ........... ......... ............. .... ..... ... .. .... .... .... 11

Structured Settlements: Alternative Solutions for Settlement of Damages in Lieu of Trial

by Jennifer L. Gilliland .. ...... .. ........... ................... ...... ... ... ... ... .. 18

Do Right-to-Carry Laws Deter Violent Crime? by John E. Egers, Jr. ..... .... ....... ... ........ ... ...... . .. .... .. ...... ..... .. ....... 20

Why The Second Amendment? by MichaelS. Romano .......... ... ........ .. ........ . ...... .. .... ..... ... ... .... . 23

Will the Death Penalty be Executed? by Rebecca Keating Verdone .. .. . ...... .. ....... . ...... ... ...... . ....... .. .... .. 25

Let's Put the Assist Back into Assisted Living: Services for the Elderly Remain in Disarray

by Brad M. Rostolsky ....... .... .. ....... .. ..... .......... . .............. .......... 27

Preview: The Cyril H. Wecht Institute of Forensic Science & The Law

by Deborah L. Kutzavitch and N.S. Koerbel ..... ..... ........ .. ......... 30

Senate Bill No. 589: The Use Of Post-Conviction DNA Testing Pennsylvania Begins To Respond .. ... ... .. .... .... ......... .......... .... 39

Staff EDITOR-IN-CHIEF

N. S. Koerbel EXECUTIVE EDITOR

Deborah L. Kutzavitch SENIOR EDITOR

Annary Aytch MANAGING EDITOR

LaJena D. Franks PRODUCTION EDITOR

Jacquelyne S. Beckwith WEB EDITOR

John Miller ASSISTANT EDITORS-IN-CHIEF

Kevin D. Coleman John E. Egers, Jr. Marianne Snodgrass

ASSISTANT EXECUTIVE EDITORS

Margaret Barker Terra Brozowski Michael S. Romano Melissa A. Walls

ASSISTANT SENIOR EDITORS

Debra A. Edgar Julie Wilson Rebecca Keating Verdone

ASSISTANT MANAGING EDITORS

Paul E. Block Toby Butterbaugh Ann Marie Lund Wenly Nelson

ASSISTANT WEB EDITORS

Jennifer A. Callery Amy McCall

ASSISTANT PRODUCTION EDITORS

Diane Blackburn Amy M.March

CONTRIBUTING WRITERS

Diane Blackburn John E. Egers,Jr. Jennifer L. Gilliland N. S. Koerbel Deborah L. Kutzavitch Greg Neugebauer Sanaz Raji Michael S. Romano Brad M. Rostolsky Rebecca Keating Verdone

FACULTY ADVISORS

Associate Dean John Raga Prof. Kenneth Gormley

CovER AND TEXT DESIGN

Craig Seder SPECIAL THANKS TO:

Maria Comas, Heidegger's Hammer, Ella Kwisnek, Frank Lehner, ioNesco, Craig Seder, Barbara Wetzel

VISIT THE JURIS WEBSITE AT:

www.juris.duq.edu

E-MAIL US AT:

A Tribute to Bridget Pelaez

0 n Novetnber 15, 2000, Maty Bridget Coyne Pelaez, known to her fatnily, friends and tnany admirers as Bridget, passed away af­

ter struggling with a serious heart condition for most of her adult life. Yet "she wouldn't let anything pre­vent her frotn doing what she wanted to, " said her

husband, Professor Alfred Pelaez, "she was truly an exceptional woman, known to a lot of exceptional

people. "

"We were together just one week shy of 38 yea rs ," Professor Pelaez told JURIS. " he has been as much a part of the school .since 1966 as 1 was ." Many Duquesne Un iver­sity School of Law students and a lumni know Mrs. Pelaez from her involvement with Duquesne's dis­tinguished China Un ive rs ity Sum­mer Legal Study Program or from her many other activities at the Law Schoo l. Dean Nicho las P. Cafardi told JURIS:

Wha t 1 remember about Bridget Pelaez. is what a brave individual she was. She never al­lowed her ue1y se1'ious heart con­dition to prevent her.from living l!fe to the fullest. She accompa­nied Prqfessor Pelaez to China eue1y summer for our summer school program and was a great help to him and to our students. She held receptions at her home for ou r Cb inese visitors every year. The continuing strength qf our Ch inese program is due in no small part to Bridget's efforts

2 Juns I Spnng 2001

-for which, by the way, she was a volunteer. She neveraskedfor any payment for any of the many things that she did for the law school. We will miss her very much.

J URI a l o spoke with Profes­sor Frank Y. Liu, Professor of Law and Director of the Center for Le­ga l Edu ca ti o n . Pro fesso r Liu reaches in th e faculty exchange program between Duquesne Uni­vers it y School of Law a nd the China Unive rsity of Politica l Sci­e n ce a nd Law with Professo r Pelaez and se rves as its Associate Director.

Mrs. Pelaez made enonnous contributions to the China pro­grams at Duquesne Law School. Professor Pelaez was the firs/ Duquesne Law School faculty member who visited the China Un iversity of Political Science and Law (CUPL) in BeUing as a visiting scholar. Mrs. Pelaez ac­companied him during thatfirst trip. Since the establishment of

our Summer Study of Law pro­gram in 1995, Professor Pelaez bas served as its Director, and Mrs . Pelaez accompanied him to Beijing eve1y summer, paying her own way until the summer of 2000, when she was too ill to travel.

Mrs. Pelaez attended classes almost every day and traveled with students to almost all field trips. Her wise counsel helped tremendously in improving the quality qf our progmm. Mrs. Pelaez loved students. She lis­tened to them and helped them personally whenever necessary. In short, M1'S. Pelaez was an in­tegml part of the Duquesne­CUPL leadership for the Beijing summer program.

Mrs. Pelaez was also ex­tremely kind and hospitable to­ward our annual visiting CUPL scholars. Every year since 1992, she invited the visiting scholars to her home and cooked a won­derful meal for them; tirelessly, she took them shopping or visit­ing local attractions. On occa­sion, Professor and Mrs. Pelaez took the visitors to their seashore apa1'tment in Ocean City, Mary­land, for a relaxing weekend.

The communities of Duquesne Law School and CUPL were all deeply grateful to her for her in­valuable services to our joint China pmgrams. My wife, Heidi, and I were especially grateful f or her friendship, advice and sup­port . We shall never forget the in­delible contributions she made to

our China programs, and to pro­moting friendship and under­standing between the American and Chinese peoples. We miss her very much.

But Bridget Pelaez 's significant contributio ns to th e community were not limited to he r invo lve­ment w ith the Law Sc h oo l. A graduate of Mt. Mercy College and a former soc ia l work e r, Mrs. Pelaez was active in Ca th o li c cha riti es a nd was an extre m ly effective victim advoca te. She was recog ni zed as a "Community Champio n" for he r work with The Ce nter for Victims of Violent Crime by rece iving a j e ffe rso n Award from the U nited Way. Na ncy Wells , Executive Director of The Center for Victims of Violent Crime told J RIS:

For many yea rs Bridget Pelaez served as a key volunteer at The Center for Victims of Vio­lent Crime. Bridget always and consistently demonstrated pas­sion and sensitivity to the needs and concerns qf crime victims. She was the quintessential vic­tim advocate. We loved her and we miss her.

Professor and Mrs. Pe laez raised three children , who contin­ued to be the foca l po int of he r life until the day she died , sa id Professor Pe laez . Lind a , th e ir middle child , was the o nl y child ever born to a woman with two artific ial hea rt valves. He r birth made the front page of the Pitts­burgh Pr son March 10, 1968.

Mrs. Pe laez was a lso a gourmet cook with a stro ng sense o f fash­ion , and a trained inte rior designe r who, sa id Professor Pelaez , "never saw a wall she didn 't think would look better some place e lse. "

" he was both inwa rdly and o utward ly a beautiful pe rso n ," Professor Pelaez sa id , "she was a n extrao rdina ry lady - the most emotiona lly strong and ca ring pe r­son I ever met. " ~

Juris I Spring 1001

Editorial Learning the Secret Handshake

W HAT MOST SURPRISED ME ABOUT LAW SCHOOL

was that it often seemed like less of a learning experience than a hazing. This

is not a unique observation, but it troubles tne enough that I can't refrain from addressing it here. Sotne days

the best way to describe how I feel is recalling Rob­ert DeNiro's protrayal, in the fihn Raging Bull, of a bloody, sweating, Jake LaMotta, stag­gering around the ring after he had already lost the match and shouting to his opponent, Sugar Ray Robinson: "I never went down , Ray. I never went clown."

There's a sense in which becom­ing a lawyer is a much about learn­ing the secret handshake as it is about anything else. It' akin to the old joke: "what do you ca ll a docto r who graduated at bottom of his class? An M.D." In the end, it's all about get­ting th rough. It's a metaphor, of course, the secret handshake. I'm not sure there rea ll y is one, and if there is, I never lea rned it, but as long as w all keep acting like there's one, there might as well be.

The playwright Da vid Mamet wrote a little book ca lled Henrietta a few years back, that tells the tale of a pig who wants to go to law school. Henrietta is a childre n's book , o r couched as such, but as is the case with most childr n's books th irony of the main character's situation is clear only to adult readers. Henrietta has aspired to The Law from an ea rly age, but the law school of her cho ice would neither admit no r acknowl-

4 Juns J Spnng 2001

edge her, as she had "no credentials ave an honest and inquiring mind ."

She attempts to sit in on classes, and she studies in the libraty on her own, but she is eventually ejected and barred from ca mpus as a nuisance. It is o nly afte r Hemietta encounters the rumpled president of the Great Uni­versity, who has lost his glasses in the park , that He nrie tta gets he r big chance. She escorts the o ld man, whom she's mistaken as a vagabond, back to his home, and along the way they exchange literary quips. When the President asks Hemietta where she got her ducation, she responds with a quote from Fielding's j onathan Wild: "Education is most often use­less, save in those cases it is near su­pertl UOUS. "

So that's the thing, I guess. I have a lingering hunch that the education itself matters less than the effect o f the education -the result- it 's the secret handshake effect. You prob­ably won't be surprised to lea rn that Henrietta goes on to law school at the Great University, (it is in1plied , though never made explicit, that this is Hatvard) and eventually ends up on the Supreme Court. Henrietta.

of course, couldn't lea rn the secret handshake because she is a pig. But she persevered nontheless.

DottJ1y Day, one of the founders of the Catholic Worker Movement, once said : "It is hard to say no to the existing social and political order­and to mean it, to mean it wid1 an evetyday commitment of energy."1

Perhaps d1at's what's really gnawing at me- d1e tension between achiev­ing acceptance from the existing so­cial and political order and eschew­ing it at d1e same time. That, and d1e fact that after working for attorneys for d1e last twenty years crossing over to the otl1er side feels very odd in­deed.

My former boss, Scott L. Holden, discouraged me from going to law school. He died in the crash of SAir flight 427 and I think of hin1 often. "Do something productiv like teach," he always told me. I do teach, and I like to d1ink he'd approve. But I aso like to think he 'd a prove of my d cision to b com a lawyer after all .

"We tty to be, in our better mo­ments, an example to ourselves,"2 is something else Dotthy Day said.

I wish that for all of you. #.......

ENDNOTES 1 Robert Coles , Hierarchy and Transcen ­

dence, Book Review of Lega l Educa­tion and the Reproduction o f Hierar­chy by Duncan Ken nedy, 97 H arv L.Rev. , 1469 (1984) .

2 !d. at 1494.

Hate-Crimes: The Aftermath of Taylor and Baumhammers

A S THE DAUGHTER OF FIR T GE ERATIO IMMIGRANT

parents who n1ade great efforts to give my brother, sister and I an all-American child­

hood, I knew that my ethnic background was Iranian, but to n1e Iran was a far-away land that had no tangible hold on my life. The only way I identify myself as being Iranian is speaking the language,

enjoying the cuis ine , and celebrat­ing a ll o f the holidays w ith my fa m­il y. When my fa mil y re located fro m Morgantown, West Virginia, to Pitts­burgh, however, my first e ncoun­te rs w ith discrimina tio n fo rever changed my outlook on being Ira­nian-America n. Someone in o ur ne ighborhood welcomed my fam­il y with a spray-painted message on our new driveway: "Go Back Where You Came From" and "F**K Iran."

Altho ug h th e Iranian Hostage Cris is was in full fo rce w he n we moved to the Pittsburgh area , we did not think that our new ne igh­bors would feel threatened by o ur ethnicity. My parents never fo und out w ho w ro te those di sturbin g messages, but th e e ffects trans­fo rmed how we were ra ised and how we viewed o ur e thnic back­ground.

From then fonva rd , my parents insisted tl1at my brother, iste r, and I never address our Iranian heritage, and instru cted us that if anyo ne should happen to ask why we had such uniqu names, we were to tell them tllat we are Turkish. Conceal­ing my cultural identity always made

me ashamed; it was only when l staJted college, and later graduate school, tl1at I could fina ll y feel comfortable in addressing my true ethnic rool<;.

In the aft rmath o f last spring's rac ia lly mo tiva ted killing sprees , which took place just a littl over a mo nth apart , questi o ns a re be ing raised by some about hate crimes in the greater Pittsburgh area. On March 3, 2000, Ronald Taylor, a black man, a llegedly shot fi ve white men in the Wilkinsburg. Thr e of tl1e individu­als died and the o the r two were maimed . A second incide nt hap­pened just over a month late r.

O n April 28, 2000, a white man nam d Richard Baumhammers a l­legedl y kill ed a Jewis h wo ma n , and fo ur men - o ne b lack, o ne Vietnamese , o ne Indian, and o ne Chinese - in a shooting spree that encompassed both Allegheny and Beave r counties . Altho ug h both Taylor and Baumhammers have a histo ry o f mental illness, pe rhaps hate crimes such as these sho uld not complete ly be dismissed as the actio ns o f madmen.

An FBI repo rt re leased on Feb­ruaiy 13, 2001 , indica tes that 7,876

BY SANAZ RAJ I

hate crimes we re re po rted in the United tares in 1999. The latest fi g­ures re leased by the FBI rega rding dea ths fro m hate crimes show that seventeen people were murdered in incidents classified as hate crimes, compared to thirteen people killed in similar incidents in 1998. Further, o f the 7 ,876 incide nts re ported , a significa nt pe rcentag , 54. 5%, were racial bias crimes, fo llowed by re li ­g iou bias at 17.9%, sexual bias at 16.7%, and ethnic bias at 10.5%. The 12,1 22 law enfo rcement agencies in 48 states that panicipated in the sur­vey indica ted an increase over the 7,75 '5 hate crimes re ported in 1998.

While hare crimes have occurred thro ughout Ame rica n histOiy, fed­e ra l leg is lati o n to combat th ese uniqu e crimes has o nly rece ntly been enacted. The Hate Crimes Sta­tistics Act of 1990was the first piece of legis la tio n enacted that specifi ­ca ll y addresses the problem of hate crime vio lence in the United States. The legislation r quires the Justice Departme nt to publish statistics o n c rimes mo ti va te d b y pre judice based o n race, e thnic ity , r lig io n , o r sexual o rienta tio n.

In o rde r to he lp combat the a r­sons that destroyed over 66 Africa n­Ame rica n churches during the mid 1990s, fo rmer Pres ident Bill Clinton signed Tbe Cln n-cb Arson Preven­tion Act qf 1996 into law . This act extends The Hate Crimes Statistics Act to the yea r 2002 and allows fed­e ra l autho rities "to prosecute and bring to justice people who burn , desecrate, o r otherwise damage re­lig ious pro pe rty. " It w ill take a de-

Juns Spnng .20c 1

ca de to see w he th e r th ese new pieces of legislation will he lp rem­edy the increasing effects of hate crimes in the United States .

George A. Simmons, regional di­rector of the Pennsylvania Human Relations Commission , said that al­though violent rages triggered by skin color or re ligious diffe rences are a mystety , he believes that those prone to racism o r racist beliefs "need a sense of purpose ... they need to be­lieve in something and have some­thing positive to follow."

Both Ronald Taylor and Richard Baumhammers appear to embody Mr. Simmon's statement in compel­ling ways. Allegheny County police fo und racial epithets aga inst whites and Jews inside Taylor's apartment and j o hn DeWitt, o ne of the men fixing Taylor's apartment door, sa id that Taylor taunted him with racial slurs. Taylor to ld others that the rea­son he was cany ing a gun before the shootings occurred was because he didn 't like white people.

Richard Baumhammers, an immi­gratio n lawyer and the son of well­to-do immigrant parents from Latvia, is accused of killing three Asians, a Jewish woman, a black man, and of paralyzing a Indian man during the shooting rampage that occurred on April 28, 2000. Baun'lhammers en­joyed traveling to Latvia, Austria, and Germa ny, a ll coun tries known fo r neo- naz i ac tt v ttl es. Furth r, Baumhammers was self-ap pointed "chairman" of The Free Market Patty, an organization he formed to advo­cate the rights of European Americans and denounced third-world in1llligra­tion beca use European Americans were being ovettaken by other races. Baumhammers registered his patty's name as an Inte rnet site with a local Pi tts! urgh Internet company under other fa r-right groups on the World Wide Web.

Inte resting ly, the In te rnet has helped fa r-right and racist groups to spread their message to mi llions of people. Joel Ratne r, regio nal d irec­tor of the Anti-Defamatio n League, states that the Internet has created a

6 Juns Spnng 2001

new and discrete way for racist organi­zations to recruit new members. In ad­clition, Ratner states that despite a huge drop in membership, the Klu Klux Klan has its strongest base in Western Penn­sylvania, Oh.io and Indiana.

The e ffects of the Tay lor and Ba umh a mme r sh ootin gs o n th e Pittsburgh community have va ried among victims. Tho e involved in th e Baumhamme rs incide nt have been tight lipped , and the response to my atte mpts to co ntac t those groups ha been ca utio us. Thi · is understandable , conside ring that it is document d tha t hate crim es cause emotio nal and physiological pro ble ms, hi g h bl ood pressure , s leep di so rd e rs, post-tra um ati c stress, hypertensio n, and psychosis. In additio n, bias incidents pe rpetu­ate fee lings of inferiority and help­lessness amo ng those groups tar­geted . Moreover, victims of hate crimes may subconscio usly modify the ir behavior in order to avoid fur­the r exposure to ridicule, violence, a nd intimida tio n. Howeve r, Dr. Krishana Aggatwal, a Sunday school teacher at the Hindu Jain Temple, a place where San dip Patel, one of the vic tims in th e Ba umh a rnme rs shootings regu la rly worshipped , commented that "By and large , o ur expe rience [in Pittsburgh] is very good .. . " and "These thin gs a re bo und to ha ppe n whe never yo u have human be ings. "

Othe rs involved share a different p o int o f v iew. Ra bbi Dav id Greenspoon of Adat Shalo m Syna­gogue in Indiana Township com­mented , "This is not a time to hide . This is a time to stand up and re­ded icate ourselves to Judaism. We must not let hate and terror overrun our lives . . . The veneer of civilization ca n be thin. We have to stand up for o rde r when there is disorde r and chaos. " Commenting o n the e ffect o f the Baumhammers shootings o n Pittsburgh's immigrant communi­ti es , Sister Rita Yeasted, an English professor at LaRoche College sa id "Our culture is unwelcoming to im­migrants in many ways."

Those involved in the Taylor rampage, however, fe lt that the Pitts­burgh branch of the NAACP did not adequate ly address the heinousness of the incident and fa iled to com­ment o n the do uble sta ndard that occurs when hate crimes are per­petuated by blacks aga inst whites. Tony Norman, a Pittsburgh Post­Gazette columnist and an Africa n­Ame rican, commented that "Among paranoid black people , the mantra is: "I don't condone what the brother did , but I understand why he did it."

Pittsburghers ca me together to hea l a ft e r the Taylo r and Baumhammers incidents in several ways , such as jo ining inte rfaith groups or panicipating in the YWCA of Greater Pittsburgh "Day of Dia­logue" program, designed to get the "average pe rson" to sit down and discuss the issue o f rac ism. Yet the re still is a need for more pro­grams to combat racism in th Pitts­burgh area. Pittsburgh Mayor Tom Murphy has pressed for plans to transform Al legheny County into the next Silicon Valley. Many of those involved in the U.S. computer indus­tly are immigrants from Easte rn Eu­rope, the Middle East, and As ia . If Pittsburgh wants to attract interna­tional talent, hate crimes cannot be tolerated by any means. Only time w ill te ll how th e Taylo r a nd Baumbammers shootings have af­fected the victims and the ethnic/ re­ligio us communities involved .

I be lieve that it is only through mediation and discourse that we can truly understand the roots of racial and ethnic hatred . An open rnind and patience to listen to others will mend these dreadful acts and help all to reali ze the uniqueness and spe­cial q ualities that all e thnic groups and re ligions possess. #........

Sanaz Raji is ajirsl-year days!udenl. She rece ived her B .A . from Duquesne Univers ity and lat er attended th e University of Pills burgh School of Public and International Affairs. Ms. Raji will be a summer intern with Federal District Court Judge Gary Lancaster

Insanity, Guilty but Mentally Ill The Role of the Forensic Psychiatrist

Can Ronald Taylor and Richard Baumhammers Escape Criminal Culpability?

H E UGHTS THE CO UCH ON FIRE AND PICKS UP HIS gun, a .22-caliber revolver. John Kroll, a 55 year old maintenance n1an is shot in the neck, and

bleeds to death in the atms of a co-worker. John DeWitt, who works with Kroll, luckily escapes unharmed. Min­

utes later, inside the Burger King on Penn Avenue, John Healy,71 , is dead. Next door in the parking lot of

McDonald 's, Richard Clinger is sit­ting in his van w hen a bullet pie rces the window. Clinger is struck. The killer now ente rs the McDonald 's and shoots Steven Bastard , the man­ager. Bastard 's employees run to his aid applying pressure to the head wound as they await medical as is­ranee. Befo re the rampage is over, the killer moves outside to the drive­thru lin e a nd s h oots Emil anielevici.1

Within minutes po lice surround th e acc used , Ro na ld Tay lo r of Wilkin burg in a building ho using a child day-ca re center. Frantic par­ents and bystande r watch. Several hours pass until po lice negotiato rs convince the ir su peer to sun·en­der. 2 When it is a ll over, Taylo r is charged with killing three people and wounding two. 3 A communi ty asks, why?

Prior to Ma rch 1, 2000, Ronald Taylor was viewed as a q uiet man by his neighbors but there was o ne thing he made certain they knew ­he didn't like white people. All o f the victims were w hite. Was this car­nage rac ia ll y mo ti va te d o r w as Ronald Taylo r legally insane w hen

he allegedly committed these crimes? He had a histo1y of menta l problems and received treatment in the past, but a family member says Taylo r's problems were never seve re.'1

Fifty-eight days pass. It's April28, 2000 , and Richard Baumhammers gets into his car with a .357-caliber handgun and a bag of she lls . In 72 minutes, five people will be dead and one critica lly injured . Baumhamm rs is awaiting trial fo r a tirade that took him over ponions of Allegheny and Beaver Counties and also appea red to be racia ll y motiva ted . He is ac­cused of defacing two j ewish syna­gogues, shooting one Jewish woman, two men of Indian dec nt, two Asian­American males, and one black man.

He is calm. He exhibits no signs of panic o r anguish. Witnesses claim Baumhammers asked fo r two of the victims, Theo Pham andJi-ye un, by name. The community is frozen and in shock. chool districts delay the rei ase of students until autho rities advise it is safe. 1

Is Baumhammers a racist o r is he lega lly insane? People who knew him described his personali ty as being "slightly different" and o ne pe rson

BY DIANE BLACKBURN

sa id Baumhammers had been mak­ing claims people were watching him, leading this individual to conclude Baum.hanm1ers was schizophrenic. In fact, Richard Baumhammers does have a histo1y of mental instability. He had been receiving medical treatment fo r seven years and had once volunta r­ily committed himself.6 But was he lega ll y insane during the time these crimes w re committed?

Pennsylvania defines legal insan­ity as "labo ring under such a defect of reason, from disease of the mind , as not to know the nature and qual­ity of the act he was doing o r, if the actor did know the quality of the act, that he did not know that what he was do ing was wrong.,-

Ronald Taylor to ld DeWitt sho 11ly before the shooting, "You're dead ... I'll get you. "H Did Taylor know the nature and quality of his subsequent act when he a llegedly pulled the trig­ger? Richard Baumhammers was cle­scril eel as having ideas that we re out­of-touch with rea lity9 Did he unde r­stand what he is accused of doing was wrong?

The Pennsylvania statute on in­sanity 10 evolved from the 1846 case of Common wealth u. Moster 1 w hich ado pted the M' raghte n rule .12 In 1843, Daniel M'Naghten was tried fo r murder in England . M'Naghten was suffering from the morbid de lusion that people were pe rsecuting him , including the Prime Minister. eek­ing to assassinate the Prime Minister, M'Naghten fired shots into a ca rriage be li ev ing it was transpo rting th e Prime Ministe r. Mistakenly, it was the Prime Minister's secreta1y w ho was

Juns Spnng 2001 7

killed. During the trial , d1e Lord Chief Justice, in his charge to the jwy, stated "the question to be dete rmined is, whether at the time the act in ques­tion was committed , d1e prisoner had or had not the use of his understand­ing, so as to know that he was doing a wrong or wicked act. "'-1

The jwy found M'Naghten not gu ilty by reason of insanity. Follow­ing the acquittal, Queen Victo ria re­quested the House of Lo rds review d1e verdict with d1e judges of d1e com­mon-law coutts. The judge repudi­ated d1e acquittal and set down the M' aghten rule. 14 Lord Chief Justice Tindall 's restatement of the rule has been codified into Pennsylvania's in­·anity statute . 15

The M'Naghten rule has been fo l­lowed by many jurisdictions in the United States and has been expanded in some. At one time a defendant could esca pe culpability for criminal conduct conunitted as d1e result of an irresistible impulse. 16 The irresistible impulse test centers on a defendant's ability to control one's self. Today this test has been rejected in many states. Another standard o ne used was d1e product test. If the defendant's act was the product of a mental disease or defect, d1e defendant would not be held critninally responsible. This standard has also been widely re­jected .1 7

Th Model Penal Code18 attempts to merge d1e M' aghten rule widl the irresistible impulse test. Under the Model Penal Code, a defe ndant is nor criminally culpable if, as the result of a mental disease or defect, the defen­dant i unable to conform his con­duct under d1e law, or is unable to ap prec iate th at his co ndu ct is wrong. 19 Although Pe nnsylvania chose not to adopt this standard for legal insanity, it has been incorpo­rated into d1e Corm11omvealth 's guilty but mentally ill statute.20

Who will decide if Taylor and BaumhatlU1lers are legally insane and wid1 whom does the burden of proof lie? In the 1800's, Lord Chief Justice Tindall stressed the defendant should be presumed sane until the contraty

8 Juris Spring 2001

has been proven to the juty.21 The evidence wil l be weighed by d1e jwy and sanity will be determined as a matter of fact .ZZ Such evidence can come from an expert witness, but the juty is not bound to lend more cred­ibility to expetts.23 The use of lay wit­nesses ca n be equally credible in es­tablishing the defendant's mental state at the time of criminal activity.2" Mental illness is a factual determina­tion made from of a ll the evidence2" and the jUly determines the weight and credibility of that evidence2 6

Who is an expen in the insanity case? One such person is Dr. Michael Weine r, a forensic psychiatrist and Chairman of "The Forensic Pane l" and Pro fes o r of P ychiatty at the New York University School of Medi­cine. Weiner has been utilized by bod1 d1e defense and prosecution in a number of cases and has been re­tained by th e Commo nwea lth o f Pem1sylvania to evaluate Ronald Tay­lor and Richard Baumhanu11ers.27

In his evaluation , d1e forensic psy­chiatrist focuses on the time periods it1U11ediately before the incident, dur­ing the incident, and itmnediately af­te r. The reason is two-fold : First, the state of a psychiatric illness in a per­son will bod1 improve and degener­ate over time, so the psychiatrist must take note of d1e severity of d1e illness right before the cormnission of the crime. A person with a s vere psy­chiatric illness may be suffe ring a chronic episode of his illness or may be relatively stable at the time of the crinlinal activity. Therefore, focusit1g on ti1e time of the crime rati1er ti1an the defendant's mental state well b -fo re or we ll after the crime lends pre­cision to d1is science. Second, b -ca use the forensic psychiatrist is re­tained in an adversa ria l s ituatio n rather d1an as a treating physician, he must look for corroborating informa­tion and evidence to render a con­clusion that is "untainted and as ob­jective as possible. "2H

Weiner says he acts as both psy­chiatrist and investigator in his evalu­ations. The psychiatrist is always present because "everything gets fil -

tered du·ough diagnostic terms about symptoms, understanding how syn­dromes work, and understanding tile science of what people do when ti1ey are inflicted wid1 'X' condition." He calls upon his role as investigator re­viewitlg d1e information supplied to him by d1e prosecution or defense to determine what additional informa­tion he needs. "I'm acting as an in­vestigator .. . to d1ink 'how can I con­firm this?'"

Weiner assesses whether he needs to speak with witnesses and who iliose witnesses might be. Also, he needs to focus on how to get iliose witn sses to talk with him. He deter­mines if he can find a paper tra il and if it will be valid and legitimate. Just as impottant is tracit1g telephone calls, detennining how they were made and to whom, which help identify ti1e person's state of mind near the time of the criminal conduct.

All o f this is important, Weiner e mphas izes "because ultimate ly when it comes to an insanity de­fense , it's not just whether a person has a [mental illness) diagnosis, but in Pennsylva nia [it is also) whether a person was able to appreciate the wrong of his o r her actio ns. " An­swering this question req uire ob­taining as much information as pos­sible to understand the choices the defendant was making at the time of the criminal conduct. z9

Weiner spea ks with the defen­dant and often videotapes the in­te rvi ew for corrobo rati o n . This he lps keep the science precise and preserves the record because often stories change. In fact, faking or ma­lingering is often indigenous to critni­nal psychiatric cases. That is not nec­essaril y because the defendant is guilty but rad1er "ti1e setting encour­ages people to be dishonest wid1 psy­chiatrists." Weiner stresses he is not playing a game of "gottcha" with tile defendant. Instead he is striving to find the trud1. He recognizes d1at of­ten the defendant is scared. Says Weiner, "They don't know what tile right d1ing is to say. They may be scared whether, in fact, the i.J· defense

claim is va lid or not. " But dete rmin­ing that the wimess is dishonest does not answer the question of whethe r an insanity defense is va lid ,-~0

The psychiatric diagnoses most typica lly associated with a valid insan­ity defense include schizophrenia and bipolar disorde r. Be cautioned , how­ever, that it is not the disease that ren­ders one lega lly insa ne at the time of the criminal act; it's the ymptoms as­sociated with the disease. For ex­ample , in an actor with schizophre­nia, if there are no acute symptoms of the dis a eat the time of the crimi­nal act, the schizophrenia is likely in­cidenta l to the act and not the cause. Alte rnatively, if the schizophrenic is suffering from a delusion or halluci­nation brought on by his disease at the time of the criminal act, he may be unable to appreciate right from wrong or unable to understand the na­ture and con equences of what he is doing. Weiner ays "Without those symptoms, the schizophrenia is mean­ingless and it's just a diagnosis."31

In bipo lar disorder Weiner may see an individual experiencing a grandi­ose delusion, a fixed, false idea. He once worked on a case where the defendant, in a manic episode , be­lieved he had a special re lationship with God . The defendant picked up his baby, walked onto the balcony of his apartment building, and tossed the baby off the balcony be lieving an an­gel would come by and pick up the baby whisking it to safety. Such a grandiose delusion is common to the consideration of an insanity defense.32

Depression is seldom associated with an insanity defense unless it is in its "most, most, most severe fom1, with severe psychosis, which means a rea l loss of reali ty" says Weiner. He ex­plains that people with psychotic de­pr ssion may, in rare and exceptional instances, hallucinate. It would be mo re commo n fo r the ir psychotic symptoms, at their worst, to include delusions which may take on a de­structive theme . -~-'

These are not the only psychiatric illne ses which can lead to a viable insanity defense. In fact, a break from

rea li ty, possibly brought on by stress, might, on rare occasio ns in a fragile p rsonality, ca use someone to un­ravel enough that their actio ns might be driven by the ir menta l illness. Then it is possible that the person, under some specific scenario , might not be able to appreciate the wrong of their actions. Weine r explains that someone with a severe, brie f, psy­chotic reaction, who has borde rline personality disorder, might even hal­lucinate.3-•

Regardless of the underlying psy­chiatric disorde r, Weiner stresses d1at just beca use a r e rson hallucinates and hears voices does not mean that is a viable insanity defense. It de­pends on what d1e voices are telling the person. As a forensic psychiatrist, Weiner asks "How congruent are the actions to the content of the voices, as well as d1e person's ability not to listen to those voices?" There are cases where the hallucinations may b maling red or may be irTelevant to the criminal activi ty ,-~"

There is a distinctio n to be made between people who be lieve the ir activity is morally right and d1ose who believe d1e ir activity is morall y right yet recognize d1at soci ty does not agree. For example, in a case Weiner handled in Ho no lulu , a man who believed he was going to be fired killed seven of his co-worke rs. This man believed that his actions were morall y right and d1at the law was wrong. However, he recognized that society does not suppo rt his belief and that his conduct was lega ll y pro­hibited . .l<i

There is also the instance where a person does not see anything mor­ally wro ng with his behav io r, no r does he believe his behavior is legally prohibited . till , his actions consti­tute a crimina l wrong. In this in­stance, insanity may turn on whed1er d1e person is aware of th nature and qu ali ty o f his acti o ns. One case Weine r encountered where the is ue of nature and quali ty was addressed was that of a profoundly reta rded man who threw his five-yea r-old brother out the window. The prob-

!em with d1is case was asking if d1e defendant, whose IQ was about 20, was able to under ·rand gravity. Did he understand the child would be killed? Did he understand death? Weine r says d1is is why "d1e issue of appreciation of wrong is almost al­ways, in these contentio us insanity cases, where the battle is fought. "-~7

There is a diffe re nce between med ica l insanity and legal insanity. Medica l insanity is imply the pres­ence of a major mental illness but d1e threshold for legal insa nity is much higher. It is the presence of the ma­jor mental illness PLUS a b ck of ap­preciation of wrong. The legal thresh­old is much more d ifficult to over­come . Weiner says people do not rea lize "d1at those who have major mental illnesses ... d1ink ... make decisions ... may be able to adapt quite well to what would fo r od1er people be overw helming and emo­tionally disruptive symptoms." o, many people who suffer from psy­chiatric illnesses do at d1e a me time have the ab ili ty to appreciate right fr m wrong .. *!

If, in d1e Taylorand Baumhammers cases, the jllly does not believe eid1er defendant has reached d1e legal thresh­old of insa nity, does it mea n evi­dence of the ir mental illness has had no impact? Not necessa rily. The jury may determine e ithe r defendant is guil ty but mentally ill. Guil ty but m nta ll y ill came to the forefro nt in many states fo ll owing the widely publicized trial of j o hn W. Hinkley, jr. ,39 fo r the attempted assas ination o f fo rm e r Pres id e nt Reaga n . Hinkley, cla in1ing he was suffering from mental disease o r defect,"'0 was acquitted when d1e jury found him not guil ty by reason of insanity. He was subsequendy confined to a men­tal institution."1

Following Hinkley, many states made insanity an affirmative defense placing the burden of proving insan­ity on the defendant. Additionall y, a number of states adopted d1e guil ty but me nta lly ill ve rdi ct o ptio n ."' 2

Pennsylvania is one such state. The Pennsylva nia legislature was con-

Juns 1 Spnng 2001 S

cerned that the insanity defense was being over-utilized and that the num­ber of insanity acquittals had reached a la rming proponions. '3

On Decembe r 15, 1982, the n­Governor Dick Thornburg s igned into law the guilty but menta lly ill stat­ute codified at 18 Pa . C.S.A. §314.•·• Th statute defines an actor as me n­tally ill when "as a result of a menta l disease o r defect, lacks substantial capacity ithe r to a pprec ia te the wrongfulness of his conduct o r to conform his conduct to the require­ments of the law.""5 This is the stan­dard set forth in the Model Pe na l Code.'6

This primary diffe re nce between finding a defendant guilty bur men­ta lly ill and finding a defendant in­sane is a differenc between being bad and sick and just ·imply be ing sick. When a jury dete rmines that the defendant was legall y insane, d1e jUiy is saying d1e defendant was incapable of forming the necessary mens rea ro commit the crime. Therefore, the defendant is "sick" but not "bad. " However, when the jUiy determines the defendant is guilty but mentally ill , the jwy is saying d1e defe ndant sho uld be punished for what he has clone yet treated for d1e mental illne s. The de fendant is both "sick" and "bad."'' Pennsylvania has been ada­mant that o nly be ing fo und mentally ill w ill not nega te the mens rea re­quirement for criminal activity. Ne­gating mens rea ca n o nly be accom­plished when d1e defendant proves he has met the M'Naghte n test. •H

If found guil ty but me nta lly ill , it is unlik e ly th at e ither Taylo r o r Baumhammers would win on an ap­pea l that the statute '9 is unconstitu­tio na l. In prior cha lle nges to the g uilty but menta ll y ill statute, th e Pennsylva nia cou11 rejected the a rgu­ment of constitutio nality. This is be­ca use before that verdict o ptio n ca n even be conside red by a jury, the Commonwea ld1 must first prove ev­e ry e lement of d1e crime beyond a reasonable doubt. If proven, the jury then considers wh d1er the defendant has proven his insanity by a prepon-

10 Juns Spnng 2001

derance o f the evidence. It is o nly if the defe ndant has not

mer his burden o n the insanity issue that the jllly addresses whed1er the defendant was menta lly ill.50 Ho ld­ing d1at the Pennsylvania Legislature's definitio n of mental illness is "a logi­cal coro lla ry to theM' aghten rule"1 1

use of the guilty but mentally ill o p­tion in Pennsylvania does not violate one's due proces or equal protection rightsY

In the end, d1ese insanity defenses will be in d1e hands of the juries who have th discretion of de te rmining if Ho na ld Taylor o r Ri c hard Ba umh a mme rs escape criminal culpability. #-......

Diane Blackburn is a second-year evening s tudent. Sh e is Assistant Production Editor ofJURJS, a member of Law Review, and Chairperson of the International Law Society. Ms. Blackburn is a law clerk for the firm ofZimmer Kunz, PLLC.

ENDNOTES Michael A. Fuoco, et a!. , 2 Dead, 3 Wounded in Bloody Rampage, Pn-r;,­BLIRGII PosT-GAZE'ITE, Ma rch 2, 2000, at A- 1.

2 !d. 3 Roherr Dvorchak, Cold Killer s 20-Mile

Trail Leaves 5 Dead, P1rr~BLIRGII PosT GAZETrE, April 29, 2000, at A-1.

4 jan Ackerman , et a!. , Neighbors Say Suspecl a Brooding Loner, Pn-rsBLTRGII PosT GAZETrE, March 2, 2000, at A-9.

5 Robert Dvorchak, Cold Killer~· 20-Mi/e Trail Leaues 5 Dead, Prn·suuRGII PmT Gti ZF.lTE, April 29, 2000, at A-1 .

6 Dennis B. Roddy and Bill Heltzel, Ma n 0 11 a Rampage, PnT>IH II!GII PosT G,,_ ZE'ITE, April 30, 2000, at A- I .

7 18 Pa.C.S.A. § 31 5(b) . 8 lichael A. Fuoco, el a!. , 2 Dead, 3

\Vounded in Blooc~)l Nampage, Prm,­llliRGII PosT-GAZE'ITE, March 2, 2000, at A- J.

9 Dennis B. Rodely and Bill Heltzel , Mcm on a Rampage, Pn-rsn1mG 11 PosT GA­zErrE, Ap ril 30, 2000, at A- I .

10 18 Pa.C.S.A. §3 15. 11 Commol/ll'ealth l '. duPONT, 730 A.2d

970, 97R ( Pa. Super. 1999), citing 4 Pa . 264 (1 846).

12 M'Naghten, 10 Cl. & Fi n. 200, 8 Eng. Rep. 7l R ( 1843).

13 Cynthia G. Hawkins-Leon, "Literature as Law ··: The Ifistorv of the Insanity Plea and a Fie f iO I7tll Application Within the Law & Literature Ca non, 72 TE~IP. L. REv. 381 0 999), citing M'Naghten, 10 Cl. & Fin . at 202.

14 !d. at 391. 15 18 Pa .C.S.A. §315. 16 Hawkins-Leon, Supra . at 393. 17 !d. at 395. 18 Model Penal Code §4.0 1. 19 Hawkins-Leon, upra. at 397. 20 Commonwealth v. Eck, 439 Pa. Super.

530, 538, 654 A.2cl1104, 11 07 0995). 21 Ilawkins-Leon, Supra. at 392. 22 Commonwealth u. Zewe, 444 Pa. Su­

per. 17, 24 , 663 A.2d 195, 198 0995). 23 Commonwealth v. Ruth, 309 Pa. u­

per. 458, 462, 455 A.2cl 700, 702 (1983)

24 Commollwealth u. Trill, 374 Pa. Su­per. 5 9, 562 , 543 A.2cl 11 06, 1112 0988), ci ting Commonwealth v. Ruth, 309 Pa. Super. 458, 462, 455 A.2d 700, 702 ( 19 3).

25 Commonwealth u. duPON7; 730 A.2d 970, 978 (Pa . Super. 1999).

26 See, Commonwea lth u. Ruth, 309 Pa. Super. at 462, 455 A.2cl at 702.

27 Telephone Interv iew with Michael Weiner, M.D., Chairman of "The Fo­rensic Panel " and Pro fessor of P ·y­chiatry , New York University School of Medici ne ( December 7, 2000).

28 !d. 29 !d. 30 !d . 31 !d . 32 !d. 33 !d. 34 !d. 35 !d. 36 /d. 37 !d. 38 ld. 39 United States u. Hinkley, 72 F.2cl 115

(D .C. Cir. 1982), oven:uled, in part, by Hudson u. Palmer. 468 U .. 517 (1984) .

40 Hawkins-Leon, Supra. at 400. 41 Jd. at 40 1. 42 Jd. at 402. 43 Commonwealth u. Trill, 374 Pa. Su­

per. 549, 570-71 , 543 A.2d 11 06, 11116 (1988).

44 Legislative llistory of Senate Bill , Gen-eral Index, S. B. J 71 at A-23 (1982).

45 18 Pa.C.S.A . § 3J4(c)(l). 46 Model Penal Code §4.01. 47 See, Commonwealth u. Trill, 374 Pa.

Super. at 583, 543 A.2cl at 1123. 48 Commonwealth u. Sohmer, 519 Pa .

200, 210, 546 A.2d 601, 606 (1988). 49 18 Pa.C.S.A. §3 14. 50 Commonwealth u. duPONT, 730 A.2d

970, 979 (Pa. uper. 1999). 51 See, Commonwealth u. duPONT, 730

A.2cl at 979. 52 Id.

The Second Amendment and the Individual Rights Debate: A Look at the Cases and Controversjes

A WELL REGULA TED MILITIA } BEING NECESSA RY TO

the security of a free State} the right of the people to keep and bear Arms} shall not be

infringed. 1 What could be more clear? The Second Arnendment is short and to the point. As if to avoid confusion among future generations, the founding fathers were wise enough to highlight the key words:

Militia, Stare, and Arms. The phrase "the people" is noticeabl y o f sec­ondary rank . This constitutional provision clea rl y protects the stare militia from federal infringement, or does it?

Today, there are two "schools o f thought" in the debate concerning the rights embodied in the Second Amendmenr2 Those adhering to the "co llective rights" theory view the Amenclm nt's introductory, sub­ordinate clause as limiting the sub­stantive contours of the Amendment to protecting stare mil iria against fed­eral disarmament.J To the collec­ti ve ri ghts advoca tes, the Second Amendment se rves to all ay state concerns that th e Article I Militia Clauses4 ceded roo much control o f th militias to the federal govern­ment.5 At the or her end of the spec­trum, the "individual rights" advo­cates view the Amendment's phrase "right o f the people," as protecting an individual right to k eep and bear arms6 For them, "the people," has exactl y the same meaning as in the First , Fo urth , N inth , and Tenth Amenclments. 7 Of particular note to the indi v iduali sts is the Tenth

Amendment'sR cl ear distinction be­tween the stare and its people. 9

Fortun ately, fo r the advoca tes o f both schools of thought, the brief text o f the Second Amendment con­rains sufficient ambiguity ro support a co lo rable claim for either posi­rion.10

The controversy concerning the meaning of the Second Amendment lacks easy resolution becau -e rher is so little authori ty to which to turn . The obvious first source is the Su­preme Court. After all , " it is em­phatica lly the province and duty of the judicial department ro say w hat th e law is." 11 Such has been the cornerstone of constitutional inter­pretation since the ea rli est days of the Republic. However, one look­ing to the Court fo r guidance runs into serious trouble. The Supreme Court has ca refull y exa mined the right ro keep and bear arms and the Second Amendment just once, 11 and irs analys is spanned a mere four paragraphs. The brevity ofrhe opin­ion suggests the Court intended to merely dispose of the case at hand and ca ll it quits.

Although the Supreme Court did

BY GREG NEUGEBAUER

nor hea r a Second Am endment case until after the Civil War, state courts have been considering the right to keep and bear arms since 1822. Most state constitutions have provi­sio ns touching upo n th e right to keep and bear arms, and those states have judicial decisions interpreting th at ri ght. Pri o r to th e Supreme Colllt's consideration o f this issue, several antebellum state coutts care­full y examined the arms provisions in their own constitutions. The right to keep and b ar arms may be the focus o f a great national debate to­clay, bur it was settled law in many stares almost two centuries ago.

Early Interpretations of the Right to Keep and Bear Arms

The lack of federal firea rm stat­utes accounts fo r the absence o f early federal court interpretations o f the Second Amendment. Most o f th e antebellum stare cases arose from challenges to the constitution­ality of state sta tutes proscribing ca r­ty ing concealed weapons. Whether relying on the stare o r federal con­stitution, all but one court upheld these laws as a reasonable restraint o n th e manner o f bea ring arms. Antebellum coutts generally upheld concea led ca ny laws as long as the statute did not restrain openly ca r­rying arms, w hich, at the time, was v iewed as the only manner suitable to bear arms fo r self defense. In reaching this result, courts o f the era assiduously recognized the right to k eep and bear anns as being a com­ponent o f the individual right o f self defense .

Juns I Spring 2001 11

Ad voca tes o f th e indi vidu a l rights doctrine suffe r from no short­age o f antebellum state cases that clea rl y 'Uppo rt the ir vi w . The o nly coutt to invalidate a concealed ca rry law , Bliss u. Commonwealth, 13 con­side red the right to keep and bea r arms al solute. The court ca lled the right "entire and complete, as it ex­isted at the adoptio n of the consti­tution; and if any po rtion o f that right be impaired , immateria l how small that part may be, ... it is equa ll y fo r­bidd e n b y the cons tituti o n . " 1

'

Echo ing this view in Cochrum u. State,'"' the Texas Supre me Court decla red that the Second Amend­ment "is based o n the idea that the people ca nnot be effectua lly op­pressed and enslaved who are not first disa rmed . . . . The right o f the citizens to bea r arms in lawful de­fense of himself or the state is abso­lute ."H' Some courts took a more balanced approached to the issue, while still affirming that the right to keep and bea r a rms is an individual o ne. 1- The reasoning in th e1846 case of Nunn v. GeorRia' 8 is typi­ca l. Th e co urt recognize d th e legislature's valid purpose in prohib­iting secre tl y ca rrying wea po ns , which it uphe ld , "inasmu ch as it does not d prive the citizen of this natural right of self-defense, o r his constitutional right to keep and bear arms."19 Even in decisions where in the court never expressly adopted the individual rights theoty , it did so implicitly through recognition of the right of self defense.20

While the individual rights doc­trine may have been the majo ri ty approach among the ea rl y tate de­cisions/ ' alternative interpretations of the right to keep and bea r arms ex isted n In 1840, the Te nnessee Supreme CoLIIt handed down a de­cision that wo uld figure pro minently in a United States Supr me Co urt decision a century later. In Ay mette u. Sta te, 1·1 the court conside red whethe r a concealed weapo ns law conflicted w ith the state 's constitu­ti o na l provision guaranteeing the "right to keep and bear arms for the ir

12 Juns ISpnng 2001

common defense."2'' The coutt he ld

that it did not. The Ay mette court thus recognized severa l impo rtant aspects regarding the right to keep and bea r a rms. The court recog­nized that this right exists for the benefit of the common defense in the fo rm o f a militia. As ·uch, the scope of the constitutional pro vi ion reached only militia wea pons. Con-equently, according to the Ay mette

court, the legislature suffers no re­stricti o n in its powe r to regula te wea po ns o f the type used "fo r pur­poses of private assassination. "2

"' As fo r militia weapo ns, the legislature may regulate the "manne r" o f the use of militia weapons to "preserve the public peace, and protect our citizens fro m terro r. "16 While the Aymettecourt d scribed the right to keep militi a-type a rms "unqu ali­fied ,"!' it implied that it is subo rdi­nate to the collective militia rights2

H

As to how Tennessee's concealed ca rry law affected the individual right o f self defense, this was not a matter befo re the court. 29

The Supreme Court's Interpretation

The upre me Court is frequently a lightning rod fo r many o f the ma­jo r issues of the clay. Abo rtion, civil rights, privacy, and free speech are a ll subjects o f pass io nate debate, and usua ll y a landmark upreme Court decisio n is at the focal po int. In stunning contrast to this s ituation is America 's gr at gun debate . Eve n a person se riously interested in this issue could probably not name even a single case o n po int. This is be­cause the entire body o f the Su­preme Court's Second Amendment jurisprudence comprises less than a handful of cases.

The o nly antebe llum Supreme Court case to mention the right to keep and hea r arms was the noto ri­ous Drecl Scott decisio n.50 In that decisio n, Chief Justice Taney noted in dictum that keeping and bea ring arms is a state right protected by the Article IV Privileges and Immunity Clause.31 Only two nineteenth cen-

tLIIy cases touch upon the Second Amendment, but ne itl1e r one i re l­evant to the individual versus col­lective rights controversy."·12

The first Supreme Court Second Amendment case is United States u. Cruikshank. ·~3 This case concerned an appea l of a convictio n fo r vio lat­ing the Enfo rcement Act of 1870. This act provided:

That if two or more pe rsons shall band o r conspir togethe r, o r go in disguise upo n the public highway ... w ith the inte nt to prevent o r hinder [a person's] free xercise and enjoyment of any right or privilege granted o r secured to him by th constitutio n o r laws of the United State , such pe rsons shall be guilty of a fe lony.·i"

The issue befo re the court was whether conspiring to deprive an­othe r o f his Second Ame ndm e nt right to keep and bea r arms was "a right or privilege granted o r secured to him by the constitution. "·1'i The Court decided it was not:

[Blea ring arms is . . . no t a right granted by the Constitutio n. e ithe r is it in any manner dependent upo n that instrument for its existence. The second amendment declares that it ha ll not be infringed; but thi , as

has been seen, means no more than it shall not be infringed by Congress. This is one o f the amendm nts that has no othe r effect than to restrict the powers of the natio nal govern­ment.

The Cruikshank court's ho lding that the Second Amendment restricts o nly the fede ral governme nt, and not the states, remains the law to­day.

The o nly o ther nineteenth cen­tLIIy Second Amendment case a rose nearl y a decade late r in Presser u. Jllinois56 An Illino is court fin ed Presser $10 fo r violating a statute pro hibiting: "a body of men . . . other than the regula r organized militia of this state .. . to associate th mselves together as a military company o r o rganization to drill or parade with arms in a ny c ity o r town of this state."3- Presser challenged his con-

viction arguing, inter alia, that the statute vio lated his Second Amend­ment Rights to keep and bar a rms. In affirming his conviction, the CoUit stated that Cruiksbank conclusively dete rmined "the ame ndment is a limitatio n only upon the power of Congress and the natio nal govern­m nt , a nd no t upo n th at of th e state. "58 Therefo re , the Court con­c lud ed t ha t s ince th e Seco nd Amendme nt is a restriction o n onl y the nationa l government, o ne must look to the tate fo r protection of the right to keep an bea r arms.-w

As to whethe r the state 'Uffe rs any restraint in its autho rity to regu­late the kee ping and bea ring of arms, the Presser Court noted the fo llowing.

It i undoubtedly true that a ll citi­zens ca pabl of bearing a rms con­stitute the reserved milita 1y force o r reserve militia of the United States as well as o f the states, and , in view of this pre rogative o f the gene ra l government, as we ll as o f its gen­e ral powers, the states ca nnot, even laying the constitu tiona l provisio n in questio n o ut of view, pro hibit the people from keeping and bearing a rms, so as to deprive the United States of the ir rightful resource fo r mainta ining the public securi ty , and disa ble the people from pe rforming thei r d uty to the genera l govern ­ment. '11

In other words, as in the Aymette and Buzzard state decisions, the right to keep and bea r a rms is sui -

o rdinate to the collectiv state right. The most s ig nifi ca nt Second

Amendment case is United States u. Miller."' Miller is the only Second Amendment case of the twentieth ce ntury, a nd it is th e Supre me Court's most detailed analysis of this constitutional provision. '2 This case concerned two defendants charged w ith transpo rting in inte rstate com­merce a shotgun having a barre l less than eighteen inches, in vio lation o f the atio nal Firea rms Act of 1934. The district court quashed the indict­ment, holding that the Act vio lates the Second Amendment. The Su­preme Court reversed . '3

nfortunate ly, fo r pro po nents of e ithe r side o f the Second Am end­ment debate , Miller is hardly a de­finitive answer. The text of Justice McReyno lds 's decision spans o nly e ight pages , four of which are de­voted to exte nd ed qu o ta ti o ns.'' Aside fro m two string citatio ns, the Justice McReyno lds cites o nl y one state court decisio n, Aymette, in di­rect suppo1t of a conclusio n. Given the essential role that Miller plays in all fede ral Second Amendment cases, it is worth quoting the Court analys is in its entire ty.

In the absence o f any ev idence tending to show that possession o r use o f a 'shotgun having a barrel of less than e ighteen inches in length ' at this time has some reasonable relatio nship to the preserva tio n o r ffi ciency o f a well regular d mili­

tia , we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certa inly it is not within judicial no­tice that this wea po n is any part of the o rdina1y military equipment or that its use could contribute to the commo n defense. Aymefle u. State ofTennessee, 2 Humph ., Tenn. , 154, 158.

The Constitutio n as o ri gina ll y adopted granted to the Congress power- 'To p rov ide fo r ca lling fo rth the Militia to execute the Laws of the nion, suppre s Insurrectio ns and repe l Invas ions; To provide for o rga ni zing, a rming, and disciplin-

Juns 1 Spnng 2001 13

ing, the Militia, and fo r governing such Part of them as may be e m­ployed in the Service of the United States, reserving to the tat s respec­tively, the Appointment of the Of­ficers, and the Autho rity of tra ining the Mili tia accord ing to the disci­pline prescribed by Co ngress .' U.S .C.A.Const. art. 1, § 8. With ob­viou purpose to assure the continu­ation and render possible the effec­tiveness of such forces the declara­tion and gua rantee of the Second Amendment were mad . It must be interpre ted and applied with that end in view.

The Militia which the rates were expected to maintain and train is set in contrast with Troop which they were fo rbidden to keep without the consent of Congress. The entiment of the time strongly disfavored tand­ing armies; the common vi w was that adequate defense of country and law could be secured through the Militia-civil ians primarily, soldiers on occasion.

The signi fica tion attributed to the term Mili tia appears from the debates in the Convention, the hist01y and legislation of Colonies and States, and the writings of approved commenta­tors. These show plainly enough that the Militia comprised all males physi­ca lly capable of acting in concett for the common defense. 'A body of citi­zens enrolled for militaty discipline. ' And furthe r, that ord inarily when ca lled fo r service these men were expected to appear bearing arms sup­pliecl by themselves and of the kind in common use at the time.''

The Court in Miller has, in es­sence, promulgated a rule of decision for the Second Amendment. It de­clared that courts are to interpret the amendment with the "obvious pur­pose to as ure the continuation and render poss ib le effecti ve ness of such [militia] fo rces.""6 uch reason­ing is in line with the collective rights doctrine . That Miller ass rts the collective rights view i further sup­ported by its c ita tion of Aymette, which is one of only two antebel­lu m cas s suppo1t ive of this view. 17

14 luns 1 Spnng 2001

An individual rights advocate, on the other hand , could note the attention th cou1t paid to the militia vs. stand­ing army pro blem. There in lies the opportunity to assert that the militia exists to resist tyranny, and how bette r to do that than to arm every citi zen? However, this argument is inherently weak beca use Aymette, which Miller cites, directly rejects this proposition.

Another interpretation of Miller with respect to this debate may be th at it is s impl y not o n po int . Whether the right to keep and bear arm is collective or individual right was not befo re the Court. '8 Neither was the right to keep and bear arms, as it re late to self defense befo re the court. The issue was whether the government may regul ate cer­ta in wea pons not used in "civilized warfa re" o r of use only to the "as-assin." State courts resolved that

question ove r a century be fo re Miller. A government may adopt reasonable manner of use restric­tions on the right to bear arms in the interest of the general welfa re. All b ut one ante b llum sta te court agreed with that.

Courts without Controversies: Federal Courts since Miller

Almost as soon as cases could work the ir way through th appea ls process fo ll owing Miller, the rule that the Second Amendment does not e mbody an "individual" right emerged, and it has been with us ever since . Just three yea rs afte r Miller, the third circuit decla red in United States v. Tot:

It is abundantly clear from the discussio ns of this amend­ment contemporaneous with its prop osal and adoption and those of lea rned writers since that th is a mendment, unlike those p rouidingj or protection of ji-ee speech and ji-eedom of reli­gion, was not adopted with in­dividual rights in mind, but as a protection j o1· the States in maintenance qf their militia or-

ganizations against possible en­croachments by f ederal power. 49

The 194 2 d ec is io n Cases v. United States50 recognized the au­thority of Congress to abrogate any individual rights that might be em­bodied in the Second Amendment th rough federal weapons sta tutes . "The Federal Firearms Act undoubt-

d ly curta ils to some extent the right of individuals to keep and bear arms but it does not fo llow from this as a nee ssa1y consequence that it is bad unde r the Second Amendm nt. " Cases also added its interpretation as to w h at Ju sti ce McRey no lds mea nt to say in Miller.

The Cases Court recognized the problem that Miller created by pref­acing its reasoning with the obser­vation that the gun in que tion was not a militia weapon. Noting that "almost any modern lethal wea pon" is probably in a militaty arsenal, the appea ls court concluded that any rule of law based on the nature of the wea pon is unte nable. ' ' This prompted the Cases Court to ob-erve: "However, we do not feel that

the Supreme Court in [Millen was attempting to fo rmulate a gene ral rule applicable to all cases."52 The court concluded that the rule la id down in Miller properly disposed of that specific case, but the Supreme Court intended it to go no further. 53

The appea ls court co ncluded that each Second Amendment case must be decided "like cases under the clue process clause . . . on its own facts. "51 For the Cases Court, the dispositive factor in resolving Sec­ond Amendment cases is whether the circumstances urrounding the possession o r use of a wea pon in question "has any reasonable rela­tionship to the preserva tion or effi ­ciency of a we ll regulated militia. "55

Applying this rule to the appellant in Cases, the coun examined his in­tent in using, transporting, and pos­sessing the proscri bed weapon and ammunition. The court concluded that the appe llant's conduct was a "fro lic on his own and without any

tho ught or intention of contributing to the effi ciency of the we ll regu­la te d militi a w hi ch the Second Amendment is des igned to foste r. "'i6

Through th is reasoning , the court completely avoided the militaty use­fulness of the weapo n in questio n. At the same time, th court firml y tied its S cond Am ndment jurispru­dence to the well being of the mili­tia. Issues re lated to collective or individual rights were no t re levant to its decision.

Since a fe leral statute detrimen­tal to the militia would fail to pass constitutional muster, what is the na­ture of the militia? Is it a "select mili­tia" of trained professionals or a "gen­eral militia" composed of individual citizens? The Miller decision invites this question given its description of the militia as "comprised [o~ all males physically capable of acting in con­cert fo r the co mmo n defense. "'­However, so fa r, no federal appe llate court has taken the ba it and used this to conclude that Millerrecogn.izes an individual right. On the contraty , at least one circuit has concl uded that Miller expresses just the opposite . 'iS

In United States v. Warin, the coutt held that, "there is absolutely no evi­dence that a submachine gun in the hands of an indi vidua l 'sedenta ry militia' member would have any rea­sonable relation hip to the preserva­tion o r effi ciency of a well regulated militia. 59 The Warin coutt, in a widely cited observation, also declared that "[i)t is clear that the Second Amend­ment guarantees a collective rather than an individual right. rJO

That th e Second Ame nd me nr embodies a collecti ve right to a well organized militia has been the rule of law in many coutts of appeal since Miller 61 Even w hen the village of Morton Grove, Illino is, passed an out­right ban on handguns, the Coun of Appeals for the Seventh Circuit held that the ordinance did not offend the Second Amendment.62 The court reason d that the amendment re­stricted only the federal government, and secondly, "possession of hand­guns by individual is not patt of the

right to keep and bear arms. "63 Even the judge who dissented in the panel dec is io n did no t raise a Second Amendment concem .<'"' Hi objection was that prohibiting handgun posses­sion in the home vio lates the "funda­ment tight to privacy. "6'i The dissent also argued that the ordinance vio­lated "the fundamental right to defend the home aga inst unlawful intrusion within the parameters of the criminal law. "66 In no t ra is ing the Second Amendment, pe rhaps the dissenting judge was in1plicitly agreeing witl1 the majo rity, which sta ted that Second Amendment has never be n incorpo­rated into the Due Process Clause of the Folllteenth Amendment.6-

Late Breaking News from Texas

All tl1e circuit coutts of appeal that have examined the econd Amend­ment have uniformly concluded tl1at this provision recognizes a collective right. However, not evety ci rcuit has passed on tl1e collective vs. individual rights issue. ln fact, right now the re is pending before the Colllt of Ap­peals for the Fiftll Circuit a case rais­ing tl1is vety issue. In United States u.

Emerson,r:.J tl1e d istrict coutt ruled that "the right to keep and bear arms is a personal right retained by tl1e people, as opposed to a collective right held by tl1e states. "rl9 In his opinion, Dis­trictjudge Cummings extensively ex­amin d the histo ty o f the econd Amendment, from England through toclay's law reviews. His conclusion is that English history, colonial his­tory, tl1e ratification debates, and tl1e circumstances surrounding the draft­ing of tl1e amendment all show that the Second Am endment's purpose is to protect the individual right to keep and bear arms 70

At issue in thi case is a section of th e Gun Contro l Act, 18 U.S.C. §

992(g)(8), prohibiting possession of a fir arm by any person subject to a restraining o rder issued upon show­ing of a physical threat to anothe r. 71

During the course of a divorce pro­ceeding, Emerson's wife obtained a temporaty restraining order, which is

"essentially a fo rm o rde r frequently used in Texas divorce procedure. "-2

The court did no t noti fy Emerson when it granted the order that if he re mained in possessio n of his fire­a rm, he would be subject to federal prosecution 73 Emerson continued to keep his wea po n, and the United States subseq ue ntly charged hi m with violating the Gun Control Act. The district court granted Emerson 's motio n to dismiss the in lictment , ho lding that the Gun Contro l Act vio lated his Second Am nd me nt rights and his Fiftl1 Amend ment Due Process rights 7 '

The district coutt statted witl1 a tex­tual analy is of me amendment. It noted that the amendment's introducto ty clause does not qualify tl1e tight to bear anns, "but instead [exists) to show why it must be protected."7

' It also noted mat "me people," as us d in me amend­ment means exactly me same tiling as in tl1e Pream ble, me First, Folllth, Fifth, and Ninth Amendments ."6 judge Cummings next devoted six pages to de ta iled exa minatio n of the <mlenclment's history, which suppotted tl1e individual rights intetp retation." Following tllis, he noted tl1at the pur­pose of tl1e Bill of Rights, is to protect individual tights, not state tights.-8 Fi­nally, for judge Cumnlings, Miller sim­ply was not controlling on tll.is issue. "Miller did not answer tl1e crucial ques­tion of whether tl1e Second Amendment embodies an individual or collective tight to bear am1S. "7<) Should tl1e fiftl1 circuit COUJt affum Emerson, perhaps me Supreme Cowt will fmally r solve tll.is issue.

Conclusion: The Revised Second Amendment

The Second Amendment: what could be clea rer? Pe rhaps, quite a bit. This article examined the mean­ing of the econd Amendment, as inte rpreted by tl1e judiciaty. Its pur­po e is to drive home the idea that this sho rt constitutional provision is not as o bvio us as many collective rights advocates assen .

What is the status of the co llec­tive vs. individual rights controversy

Jurts 1 Sprtng 2001

today? The Supreme CoUtt, not hav­ing addressed this issue directly , appea red inclined in Millen owarcls the collective rights view. That is certainly the rulings of several dif­fe rent circuits in the federal Courts of Appeal , no ne of which the Su­preme Cou rt has disturbed . How­ever, the Supreme Court has never actually ruled on the individual ver­sus collective rights issue. Whether it would a ffirm the rulings of the va rious court of appeal may be in doubt. justice Thomas made his view clea r in Printz. "Marshaling an impress ive array of histori ca l evi­dence, a growing body of scho larly commentary indicates that the 'right to keep and bear arms' is, as the Amendment's text suggests, a per­sonal right. "80 The ea rl y stare court decisions discussed herein are among this historica l evidence.

The majority of antebellum state courts he ld that the sta re may regu­late, but not prohibit , the canying of concea led weapons. The com­mon theme among these decisions is that a regulation of the manner of bearing arms does not infringe upon the individual and fundamen­tal right of self defense. State courts recogni ze that the legislature 's au­thority to promote domestic tran­quillity and protect the gene ral wel­fare permit these re lative ly mild regulations.

Today on the othe r hand , the is­sue in the federa l courts is whether the statue at issue infringes upon the effic iency o r ope rati o n of a well regulated militia. The indi vidual 's self defense right does not even en­ter the picture. The federal Courts of Appea l unifo rml y hold that the Second Amendment s imply does not embody an individual self de­fense right.

What has happened to this right? Early in our hi sto ry, th Second Amendment e mbodied the incli­vid ual right to keep and bear arms for self defense . Today it does nor. Shou ld we care? justice ca lia pro­vides an interesting comment by way o f judge Cu mmings in

16 Jur•s Spnng 2001

Emerson. Other commentators, including

justice Scalia, have argued that even if there would be 'few tears shed if and when the Second Amendment is he ld to guarantee nothing more than the state a tio nal Guard , this wou ld simp ly s how that the Founde rs were right when they feared that some future gen ration might wish to aba ndon libe rties that they conside r d essential, and so sought to protect those libe rties in a Bill of Rights. We may tolerate the abridgement of property rights and the e liminatio n of a right to bear a rms ; but we sho uld not pre tend that these a re nor reductions of rights. ' (c itations omitted). Rl

Is that the meaning of the Sec­o nd Amendment today' Is it now mer Jy a shorthand notation for the

ational Gua rd? Before we agree to this interpretation, perhaps we sho uld pause to consider why the Founders adopted thi s const itu ­tional provision in the first place. ju tice Story ca lled the right to kee p and bear a rm s "a st ro ng moral check against the usurpation and a rbitrary power of rulers; and will g n rally ... enable the p ople to resist and triumph over them. "R2

The Founder had their civil liber­ties trampled by a tyrant. They un­derstood that those sworn to pro­tect the people may someday be­come its ca ptors H3 Perhaps the framers of the Second Amendment, this short constitutio na l provision , had mo re to say than we rea lized. For after we have disarmed ou r­selves, whom shall we entrust w ith this awesome right? #........

Greg Neugebauer is a third-year evening student. He is also a member of th e Duquesne Law R eview. His casenote on the recent Supreme Court decision Kimel v. Florida Board of Regents will soon appear in that journal. Comments on this article are welcome at bauer@sgi.net.

ENDNOTES 1 U.S. CoNsT. amend . ll . 2 United States v. Emerson, 46 F.Supp.2d

598, 600 ( .D. Texas 2000). 3 D on B. Kates, Jr., Handgun Prohibition

and the Original Meaning q( the ec­ond Amendment, 82 Mich. Law Rev. 204, 211 0983).

4 The United States Constitution, Anicle 1, Section 8 provides: The Congress sha ll have the Power ... To provide for ca lling fo1th the Militia to execute the Laws of the 1lion, suppress Insurrections and repel Invasions; To provide fo r o rganizing, arming, and dis­ciplining, the Mil itia, and for governing such Part of them as may be employed in the Service of the United States, re­serv ing to the States respectively, the Appointment o f the Officers, and the Authority of training the Militia accord­ing to the discipline prescribed by Con­gress. U.S. CoNST. a1t I,§ 8, cl.l5, 16.

5 Kates, supra nme \ h 4, at 212. 6 Kates, supra note \ h 4, at 213. 7 Robert Dowlut, Tl?e Right to Arms: Does

the Constitution or the Predilection of .fudges Reign?, 36 Okla. L. Rev. 65, 94 & n.137 (1983).

8 "The powers not delegated to the United States by the Constitution, nor prohib­ited by it to the States, are reserved to tl1e Stares re pectively, or to d1e People. "

. CoNsT. amend. X. 9 Dowlut, supra note \ h 8, at 95 n.143. 10 ee Sanford Levinson, Tl?e Ernharrass­

ing Second Amendment, 99 Yale L.J .637, 644 (1989) (suggesling dur the econd Amendment is the worst drafted provi­sion o f d1e Constitution).

1 1 Marbllly v. Madison, 5 U . . (1 Cranch) 137, 177 (1803).

12 Kates, supra note \ h 4, at 247. 13 12 K y. 90 (1822). 14 Bliss, 12 Ky. at 93 . 15 24 Tex. 324 (1859). 16 Cochrum, 24 Tex. at 400. 17 See State v. Reid , 1 Ala. 612, 614 (1840)

( ho lding "The constitution decla ring Lhat, 'Eve1y citizen has d1e right to bea r arms in defense of himself and the State, ' has neid1er expressly nor by implication, denied the Legislature, d1e right to en­act laws in regard to d1e manner in w llich arms hall be borne. "). See also tate v.

handler, 5 La.Ann. 489 (La. 1850) (hold­ing d1e Second Amendment guarantees d1e right to openly cany anns for self defense, but the legislature may prop­erl y prohibit concea led carry in order to "prevent b loodshed and a ·sa sinations committed upo n unsusp ecting per­sons.").

18 1 Ga. 243 (1846).

19 Nunn, 1 Ga. at 254. 20 eeState v. Mitchell , 3 1nd. 229 (Biackf.

1833). A statute '·prohibiting all persons, except travelers, from wearing or carry­ing concea led w eapons, is not uncon­stitutional. " !d. eealso ENATISIIIJCOMM. ON THE CoNsnnmoN OF 'THE Cm ll\1. ON TilE ]L 01 WlY, 97n l CoNG., 20 SESs., T11E RlGHT TO KEEP AJ'ID 13EAH M\IS, 6 (Comm. Print 1982) [hereinafter SE:>.ATE l lBCOJ\1!\IITrEE H.EPOHT] (examining Mitchel/) . ee also State u. Reid, 1 Ala. 612, 618 (1840) (ex-

amining Mitcbel/). See also State v. Huntl y, 25 .C. 481 (1843). Even though a citizen is free to cany a gun for any lawful purpose, the legislature my proscribe d1e cany ing of a weapon wid1 intent to threaten or terrorize. Jd. at 420.

21 Kates, supra note \ h 4, at 244. 22 An example ofd1e collective rights view

is State v. Buzza rd, 4 Ark . 18 (1842) ( Publica tion page references are not ava ilable fo r this decision). The Buz­zardcou n held d1at neid1er the state nor me federal constitution protects the right of "each member of me community to protect and defend by individual force his private rights aga inst eve1y illega l in­vasion." The constitution does notre­quire that the "right to keep and I ear arms be subject to no lega l comrol or regulation" it would eventually produce "disorder and anarchy in the commu­nity. "

23 21 Tenn. 154 (1840). 24 Aymelle, 21 Tenn. at 154. 25 Aymelle, 21 Tenn. at 158. 26 Aymette, 21 Tenn. at 158. 27 Aymelte, 21 Tenn. at 158. 28 The Tennessee Supreme Cou rt in

Andrews u. Stale subsequentl y made d1is implication explicit. What, then, is involved in tl1is right of keeping arms? lt necessarily involves the right to purchase and use d1em in such a way as is usual , or to keep them for d1e ordina1y purposes to which they are adapted; and as they are to be kept, evidently witl1 a view d1at d1e ci ti zens making up the yeoman1y of the land, the bo ly of tl1e militia , shaU become familiar witl1 tl1eir use in times of peace, that they may the more efficiently use them in times of war; d1en the right to keep arms for tl1is purpo e involves d1e right to practice tl1eir use, in order to attain to thi efficiency. The right and use are guaranteed to the citizen, to b exercised and enjoyed in time of peace, in subordination to d1e general ends of civil society; but, as a right, to be main­tained in all its fullness. Andrews, 50 Tenn. at 170.

29 In Andrews u. State, the Tennessee Su­preme Coun reaffirmed its holding in Aymelte, but clarified its interpretation of the individual right to u e weapons in self defense. Andrews v. tate, 50 Tenn. 165, 172,177 (1871). Bearing arms for d1e common defense may weiJ be held to be a political right, or for protection and maintenance of such rights, intended to be guaranteed; but d1e right to keep mem, with all mat is implied fairly as an incident to this right, is a private individual right, guar­anteed to the citizen, not tl1e soldier .... We may say, mat d1e clause of the Con­·titution authorizing the Legislature to regulate d1e wearing of arms wid1 a view to prevem crime, cou ld scarcely be con­strued to aud1orize d1e Legislature to prohibit such wearing, where it was clearly shown d1ey were worn bona fide to ward off or meet imminent and dlreat­ened danger to life or limb, o r great I od iJ y harm, circumstances essential to

make out a case of self-defense. 30 Kates, supra note\ h 4, at 246. 3 1 DredSco11, 60U . . at416-17. 32 Dowlut, supra note\ h 8, at 86. 33 92 u.s. 542 (1875) 34 Cruiksbank, 92 U.S. at 547. 35 Cruikshank, 92 U .. . at 553. 36 116 U.S. 252. 37 Presser, 11 6 U.S. at 253. 38 Presser, 11 6 U.S. at 265 (ci ting

Cru iksbank, 92 U.S. at 553). 39 Presser, 116 U.S. at 265. 40 Presser, 116 .S. at 265. 41 307 U.S. 174. 42 Kates, supra note \ h 4, at 247; Dowlut,

supra note \ h 8, at 86; Keitl1 A. Ehrman & Dennis A. Heniga n , Tbe Second Amendment in tbe 7iue111ietb Cent111y: Have You See11 Your Militia Lately?, 15 U. DAYTO\' L. REv. 1, 41 0989).

43 Mille1~ 307 U.S. at 177. 44 ] ustice McReynolds ftrst recites the facts

of d1e case, including a summ~uy of the relevant statute. Ne),'t, he dedicates a page to quoting the statute itself. Then mere are a few more facts followed by four paragraphs examining the Second Amendment, which is d1e only analysis in d1e opinion. The bulk of the rema in­der of d1e opinion includes three pages taken from a book on seventeentl1 cen­tLIIy colonial America. While dlis ap­pears to be of some relevance, for it deals wid1 the colonia l mi litia , most of the text concerns me provisions mUitia­men were required to provide while on duty. Jvlil!eJ; 307 U.S. at 174-83.

45 Mille1; 307 .S. at178-79. 46 Mi!le1~ 307 .S. at 178. 47 But see supra note \ h 30 (The Tennes­

see Supreme Court recognizes d1at d1e Aymettedecision is not to be construed as abrogating d1e individual right to keep and bear anns for self defense).

48 See Printz v. United States, 521 U.S. 898, n.1 0997) (Thomas, j. , concurring). Our most recent treatment of d1e Sec­ond Amendment occu rred in U11ited States u. Mille1~ in which we reversed the District Coun's invalidation of the Na­tional Firearms Act, enacted in 1934. In !VIi/let; we detennined d1at the Second Amendment did no t guara ntee a citizen's right to possess a sawed-off shotgun because d1at weapon had not been shown to be 'o rdinary military equ ipment' dlat could 'contribute to me common defense. ' The Court did not, however, attempt to define, or othe1wise construe, the substamive right protected by d1e Second Amendment. (citations omitted).

49 131 F.2d 261 (3rd Cir. 1942). 50 131 F.2d916 (1st Cir. 1942). 51 Cases, 131 F.2d at 922. 52 Cases, 131 F.2d at 922. 53 Cases, 131 F.2d at 922. 54 Cases, 131 F.2dat922. 55 Cases, 131 F.2d at 922. 56 Cases, 131 F.2d at 923. 57 Mille1; 307 U.S. at 179. 58 530 F.2d 103 (6d1 Cir. 1976)

59 Warin, 530 F.2d at 106. 60 Warill , 530 F.2d at 106. 6 1 Love v. Pepersack, 47 F. 3d 120, 124 (4th

Cir. 1995) ("the amendment does not confer a right to bear any firearm. ''); Hickman v. Block, 81 F. 3d 98, 101 (9th Cir. 1996) ('·we follow our sister ci rcuits in holding d1at the Second Amendment b a right held by the states, and does not protect d1e possession of a weapon by a private citizen. "); Gillespie v. City of Indianapolis, 185 F.3d 693, 699 (7m Cir. 1999) (holding d1e federal Gun Con­trol Act does not violate the econd Amendment because it regulates private individuals, not tares.).

62 Quilici v. Vi llage of Morton Grove, 695 F.2d 261 (7d1 Cir. 1989).

63 Quilici, 695 F.2d at 271. 64 Quilici, 695 F.2d at 271 (Coffey, .f. , dis­

senting). 65 Quilici, 695 F.2d at 280 (Coffey, ]. , dis­

senting). 66 Quilici, 695 F.2d at 278 (Coffey.]., dis­

senting). 67 Qui/ici,695 F.2dat270. SeealsoFresno

Rine and Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723, 730 (9dl Cir. 1992) (concluding d1at no Supreme Coun case suggests d1at the Second Amendment is incoq)orated into the Fourteenm).

68 46 F.Supp.2d 598 (N.D. Tex. 1999), ap­peal docketed, No. 99-10331 (5th Cir. 1999).

69 Emerson, F.Supp.2d at 601. 70 Emerson, F.Supp.2d at 601-07. 71 l:.'merson, F.Supp.2d at 599. 72 Emerson, F.Supp.2d at 599. 73 Emerso11, F.Supp.2d at 599. 74 Emerso11, F.Supp.2d at 6I 1-12. 75 Emerson, F.Supp.2d at 601. 76 Emerson , F.Supp.2d at 601 (ci ting

United States v. Verdugo-Urquidex, 494 u. . 259, 265 0990)).

77 Emerson, F.Supp.2d at 602-07. 78 Emerson, F.Supp.2d at 607. 79 Emerson, F.Supp.2d at 608. 80 Printz, 521 U.S. at 938-39 & n.2 (Tho­

mas j., concurring). 81 Eme1 on, F.Supp.2d at 609 (citations

omitted). 82 Leuinso11, supra note \ h 11 , at649. 83 For a modern example of governmen­

tal tyranny See Korematsu v. nitecl rates, 323 .S. 214 0944) (holding d1at

tl1e forced relocation of American citi­zens to concenu·ation camps under d1e federal war powers does not offend the Constituti on). See also WILLIMI H . RE11NQUIST, Au L\ws BuT Q ,q;: CiVIL LiBER­TIES IN W ARmiE, 184-211 (1998). The Ch ief Justice gives a dispassionate ana lysis of the law and the contempo­raneous events leading up to d1is act of treachery. As for his prediction as to whether d1e Korematsu decision would be the same today, the Ch ief Justice writes: "Under today's constitutiona l law, quite certainly not. ... But the law was by no means so clear in 1943 and 1944 when these cases were decided." Jdat 207.

Juns Spnng 2001 17

Structured Settlements: Alternative Solutions for Settlement of Damages in Lieu of Trial

BY JENNIFER L. GILLILAND

J udge Learned Hand once said, "As a litigant I should dread a lawsuit beyond almost anything else short of sickness and death." As evidenced by

the above quote, Judge Hand realized the inadequacies of the American legal system as early as 1921.1 Since then, two issue have continued to trouble the legal system as it relates to civil litigation: cost and delay.2

menr ea rnings on the funding gua r­anteed contract 7 In essence , a Structure reduces the difficulties in predicting losses a nd eco no mi c events by paying damages periodi­ca ll y.8 Anyone who wo rks in the settl eme nt of damages should be familiar with Structures, as they of­fer s ignificant advantages that a re enjoyed by everyone involved in negotiating a settlement.

The first bene fit i that dam­ages fo r those who have incurred bodily injury a r no t s ubj ect to fed e ra I income tax purs ua nt to Section 104 (a) of the Inte rna l Rev­enu e Code and IRS Reve nue Rul­ing 79-220 9 Cla ims fo r e mo tio nal distress a lo ne a re not exempt un­d e r thi s Rul e, as th ey a re no t ph ys ica l injuries . Thi s tax adva n­tage is substanti a l, as refl ected in the follo wing chart , adapted fro m Financ ia l Se ttl e me nt e rvi ces (FSS) , a bro ke r s p ec ia li z ing in stru ctured se ttle me nts:

In addition, unce1ta inty over juries remains as troubling today as ever, with verdicts running the gamut from pro-defense to excessive punitive awards.

Alte rnative Dispute Resolution, commo nly refe rred to as ADR, is a catchall te rm fo r a growing num­ber of processes develo ped as al­ternatives to traditio nal court-based litiga tio n.3 Tho ugh ADR is not a new concept, it has ga rne red re­newed interest beca use it reduces the time and mo ney pent o n con­ventio nallitigation ,4 and it removes the uncerta inty o f questionable o r excessive jury verdicts . ADR tech­niques are also useful in settlement discussio ns and in moving blocked settlement negotiatio ns fo rward .5

This article focuses o n one of the less well known methods of ADR - structu reel settlements.

Stru ctured Settl e me nts a re a fo rm of ADR involving a settlement s tru c ture d to mee t the injure d pl a intiff's indi vidua l needs; they se rve as innova tive negotia ti o n tools that can wo rk to the benefit o f eve1yone involved in the claims process. Essentia lly the pa rties ere-

18 Juns I Spnng 2001

ate a settlement agreeme nt that is structured to offer a plan fo r pe ri­odic future payments and w hich usually includes cash at settlement to cover immediate needs such as econo mi c losses and a ttorney 's fees6 It is a way of settling a physi­ca l damage claim with a plan "struc­tured" to meet specific needs of the injured pa rty. A structured settle­me nt ( "Stru c ture ") pro vid es a grea te r to ta l payout than a Jump s um pay ment , as pa yme nts a re made over time and include invest-

Strw:turecl Settlement Internal Rate of Return

s.oo

&.oo

,.oo

l.oo Example if Structure

~ ~,~,.~;Return and fn36"tax

1iriltlcet

Interest Rate Required to Equal Structure Rate

for 15% tax bracket

5.88%

7.06%

8.23%

9·41% Note- example is for Federal Tax brackets. Including state tax rate, assuming 3%, CD interest would have to increase as well to equal a 7% structure.

Interest Rate Required to Equal Structure Rate

for 36" tax bracket

,.81"

9·3·"

10.94"

12.50" I If claimant were to get lump sum and invest, such as tn a CO. that tool would haw to provide In excess flf10.94" to get the samende flfnltum after taxes paid with a"" tntemaJ rate flf Tetumon

Once a structured settle me nt is reached , the defe ndant's carrier pur­chases an annuity from a life insur­ance company , thus providing an ad va ntage fo r insurance compa­nies as w e ll. Th e injured party is the be ne fi ciary o f th e a nnuity a nd will rece ive all e t payments. If the pl a intiff dies, co ntingent be n­e fi c ia ri es a re na med to e nsure the gua ranteed pay ments are mad e , aga in tax-free.

If a pla intiff wo uld collect clam­ages and invest in th e ma rke t , most ea rnings o n the lump sum would be taxa ble. It is impo rta nt to no te that if the ra te o f re turn is low o n the stru cture payme nt , the o pe n market may be a bette r av­e nue if th e needs o f that particu­la r plaintiff are to gain pre mium o n a settl e me nt. Mr. Ke nn e th Noce, Vic -Preside nt o f Fina nc ia l

e ttl eme nt Services, ad vises, ho w­e ve r, that "with the ri sks and vola­tile marke t, un ce rtainty is crea ted wh e n a n in ves tor looks to the o pe n ma rke t ve rsus the gu a ra n­teed pa yments of a Stru cture."

The seco nd a dva ntag e o f a Stru cture is th a t p ay me nts a re gu ara nteed no matter wh at ha p­pe ns to inte res t rates o r the stock ma rke t, thus no w o rry is crea ted abo ut whe re to invest o r re invest a lump sum settl e me nt. 10 The tax ad va ntage a nd th e g u a ra nteed payme nt by the de fe nda nt's ca r­ri e r in th e fo rm o f a s tru ctured settle me nt crea te a binding con­tract a nd ca nnot be bro ke n by the de fe ndant.

Unde r ce rta in circ umsta nces, some pl a intiffs may wa nt ro brea k the contract. Se nate Bill 818 con­ta in s a n a me ndm e nt pro tectin g structured se ttl e me nt o bligors and payees b y re quiring co urt a p­prova l that the tra n actio n i in the best inte rest o f th e p ayee be fo re a right to a payme nt strea m ca n be sold ro a facto r. 11 This legis la­tio n thus insures tha t pl a intiffs a re furthe r protected w he n settling a claim fo r da mages with a tru c­turecl se ttl e men t.

A third adva ntage to a s tru c­tured settle me nt, in additio n to tax brea ks a nd gua ra nteed payments, is that th e r a re no mo ney man ­age me nt fees whe n a structured se ttl e me nt is utilized . A Structure he lps in pl a nning fo r future needs and in redu cing the premature dis­positi o n o f se ttl e me nt d o ll ar .12

Aga in , o ne mu st look to the needs of th e pl a intiff. If the pl a intiff is a s toc kbro ke r, fo r exa mpl e, th e need fo r fina ncia l ass ista nce may not be s ignifi ca nt. On the o th r hand , if th e cl a ima nt is a n average individu al without investment ex­pe rie nce , the lack o f a ma nage­me nt fee is ye t a no th e r reason to e mploy a Structure.

Traditio na l neglige nce cla ims invo lving dog bites, fractures, and cla ims with future needs such as neck a nd ba ck injuries , head inju­ries, burn a nd qu adripl egic inju­ri es a re a ll po te ntia l candidates fo r e mpl oyme nt o f a structured settle ­ment. Situa ti o ns in which the re are mino r childre n o r othe r pl a in­tiffs w ho may lack the ca pacity to handl e mo ney at th e time of th e settl ment a re s itu atio ns that a lso le nd th e mselves to th e utilizatio n o f a Structure n No n-traditio nal to rt c la im itu a ti o ns as e nviro n­me nta l, CERCLA , co nstru cti o n de ­fects a nd asbestos li a bility cla ims a lso pro vide o ptio ns resulting in be tte r o utcomes fo r a ll p a rtie .14

In a n y o f th e a bove-c ite d to rt claims , a stru cture can b crea t d to m ee t th e fl e xibilit y o f th e cla ima nt 's needs . This is the fo urth advantage o f a stru ctured settle­me nt, the a bility to crea te a fl ex­ible se ttl e me nt c usto mi z d to the injured pa rty's needs.

A Stru cture ca n be created to ma ke payme nts e ithe r fo r life o r fo r a s ta ted pe ri o d o f time, but first, a need a na ly is mu st be p e r­fo rmed to crea te a payme nt o ptio n th a t m ee ts th e injure d p a rty 's needs. Whil e eva lu ating a claim fo r a po te nti a l stru ctured se ttle­me nt , gend er, the severity o f the injury a nd th e d a m ages th a t

wo uld like ly be aw arded , marita l a nd fa milia l s ta tus, disa bility, an d prese nt a nd futur e eco n o mi c lo es s ho uld a ll be conside red . Th e fo ll owing exa mples po rtray s ituatio ns in which bo th the insur­a n ce pro fess io n a l a nd th e pla intiff's coun I crea ted a s tru c­tured settl e me nt w ith a payme nt pl an in o rde r to successfull y meet th e injured party's needs , the re by resulting in a favorabl e clai m so­lution fo r everyone in vo lved .

REAl TORT ClAIM CASE APPliCATION #1:

Timothy Foreman of ationwide Insuranc and plaintiffs attorney Tim Sho lle nbe rger reached a positive resolution to a claim regarding a busi­ness auto accident with the help of a structured settlement. The claim in­volved a negligence cause of action in Eastern Pennsylvania in w hich the plaintiff incurred several injuries. The evaluation led th cla ims representa­tive to o ffer a structured settl ement, with the assistance of Financial Settle­me nt Services, based o n the long­te rm n eed s o f th e cla im a nt. Shollenbe rger was rec ptive to this proposa l. Both pa1ties recognized that this pa1ticular plaintiff wa no t educated in investing and had a need to purchase a home for his family. A structured settlement was developed to compe nsate all o f the pla intiffs needs including tl1e no n-economic damages.

The settlement included a lump sum of 200,000 to cover economic damage expenses such as a lie n and atto rney fees, w hil e the $125 ,000 guarante d structure payme nts in­cluded monthly payments of $995 for ftft:een yea rs. Thi was used to fmance a home, w hile resulting in actual net to tl1e claimant of $179,100. As Mr. Fo reman o f ationwid Insurance stated , "tl1e structure was a success­ful tool in this case pa rtia ll y be­ca u se th e m o nthl y p ay m e nt s he lped to act as a fin a nc ia l pla n­ning d evice fo r the cl aima nt, w ho was no t accustomed to handling

Juns [Spnng 2001 19

substantia l sums of money. The periodic payments a lso assured the attorney that be was acting in his client's best inte rests ."

WHY WAS IT SUCCESFUL FOR NATIONWIDE?REAL TORT CLAIM CASE APPLICATION #2:

William Mokel, CCLA, of Na­tionwide Insurance and attorney Ne il Ro th sc hild a lso applied a st ru cture d a lte rn ative for settle­me nt o f damages in a negligence motor veh icl e acc ide nt in Western Pennsylvania. He re, th e fo rty-one yea r old plaintiff susta ined injuries including a fra ctured left acetabu­lum. This plaintiff was a n a uto p arts store manager, whose fam­ily relied o n his income. Since his disability from the accide nt was like ly to affect both his present and future earnings capacity, the c la ims re prese ntative initiated an offe r to th e atto rn ey in the form of a Structure .

This case, a limits case of $50,000 , was designed to meet th e needs of the pla intiff's future loss o f potential income. A lump sum of $20,000 was paid for expe nses, whil e th e rema ining $30,000 was s tru cture d into four g ua ra nteed pe ri od ic pay me nts to be rece ived by the plaintiff at age fifty , fifty­fi ve , s ixty and sixty- fi ve. These p ay me nts will ne t a g ua ra nteed amount of $111 ,000. Damages were paid to the plaintiff to com­pensate for both his pa in a nd suf­fering and to take ca re of his po­tential future econo mi c losses.

Mr. Ro thschild ad vised me that both h e a nd hi s c li e nt w e re pleased with th e ove ra ll res ult , beca use th stru cture e liminated ri sk in the open market while pro­viding for re tire me nt income in the future. The claims represen­tative, Mr. Mokel , a lso e mphasized how impo rtant it is "to sec ure the financial future o f the injured p r­son with co mpl ete tax immunity."

As the above torr claim settl e­me nts illustrate , stru ctured settle-

20 Juns Spnng 2001

me nts don 't just settle the cla im, they do so in a way that meets all of the parties needs.

Ultimate ly, in th e proper c ir­cumstances structu red settle ments are o ne of the most e ffective forms of alte rna tive dispute reso luti on. Structured settl e ments allow par­ties the fl ex ibility to create a settle­me nt customi zed to the injure d p arty's needs. Th y can promo te quicker settl ements, which then provide timely payments th at can he lp re medy a plaintiff's injury both at th e time of th e se ttl eme nt a nd in th e future, wh e n he o r she may have a grea te r need for the in co me . These payme nts a re g ua ra ntee d for th e life of th e settl eme nt and the re a re no man­ageme n t fe s. tructures for ph ysica l injuries a re not subject to federal income tax. Perhaps most importa ntl y, st ru c ture d se ttl e­ments are sup po rted by th e judi­cia l syste m and eliminate th e ri sk of jury un ce rtainty. They affo rd the p a rti es a forum to inte ra ct p eacefully which he lps fa c ilitate better working relationships among all involved with the settle­me nt process. And , just perhaps , they ca n he lp e liminat the inad­equac ies of traditional litigat ion. Thus a n injured party may not, as a litiga nt , have to "dread a lawsuit beyond a lmost anything e lse sho rt of s ickn ess and death." #--....

Jenn[fer L. Gilliland, a graduating law student at Duquense University School of Law, has enjoyed workingfor Nationwide insurance throughout her la w school studies. in addition to being recognized for her writing, Ms. Gilliland has also been honored for her oral advocacy skills, serving on the Appellate Moot Court Board and national team as well as the Trial Moot Court Board. She has recently been named Duquesne chapter of Phi Delta Phi Graduate of the Yem~ Upon graduation, Jennifer is proud to announce that she will be joining the law firm of Papernick & Gefsky, where she will be active in their civil litigation department.

Editor's Note: This article was excerpted from Jenn[fer L. Gilliland's paper Tort Claims: Alternative Solutions for Settlement of Damages in Lieu of Trial, for which she received the 2000 John Laugharn Scholarshipfrom the National Structured Settlement Trade Association. Her essay was the unanimous pick of the judges.

ENDNOTES l Irv ing R. Kaufman, New Remed ies for

the Next Cemury of Judicial Reform, 57 Fordham L. Rev. z- 3, 255 (1988) quot in g Learn ed Hanel , Th e Defec iencies o f Tri als to Reach th e Hea rt of the Maner, in 3 lectures on lega l top ics , 87, 105 as cited in 20 Dei.].Corp . L. 937.

2 20 De l.j .Co rp.L.937 by Danie l A . Fu lco, Widener School o f Law, 1995, citing to justice for All , Reducing Costs and Delay in Civil Litigation , Report of Task Force. 1 ( 1989).

3 Robert A. Creo, Esqu ire- About After­native Dispute Reso fut io11, page l.

4 Anne-Marie Thompson - Tbe Afterna­tiue: Alternative dispu te resolution is a win/ win choice for clients and tau• .fi"rms alike, proponents say. The Pennsylva nia Lawyer, May J 992, 1.

- 446 PLI/ Lir 371, 386, Darlene Y. Ross, Practicing Law Institute 0992).

6 Financia l Sett lement Services Bro­chure, "Answers to Questions you may have about Stru ctured Settl e­mellls" 1997 Companies Agency , Inc.

7 Id. 8 Modern American Remedies Cases

and Mate ri a ls, 2nd Ed. D o ug la s Laycok , Aspen Law & 13usiness (1994).

9 Supra at no te 66, in additio n to Sec-tion l04(a) o f the IRS Code and IRS Revenue Ruling 79-220.

10 Id . 11 Senate Bill 818, as repo rted in the In­

suran ce Federatio n o f Pennsylva nia, Inc. Volume XVI , Number 4 and 5. Feb. 2000.

12 FSS, ··say ing YES to th e Structured Settl ement", 1996 FSS, Companies Agency, Inc.

13 Id . 14 lei at 6.

Why The Second Amendment?

W HE I FIRST ARRIVED AT TH E D u QuEs E LAw

School in August of 1999, I saw a dis play in the libraty questioning the appro­

priateness of repealing the Second Amendtnent. It

is my position that this would be a grave mistake, for the reasons set forth in this editorial. Let us ren1en1-ber the ilnportance of the Second Amendtnent and

count it amo ng our most impo rtant fund ame nta l individ ua l libe rti es, o ne which assures the continuatio n of the other freedoms set forth in the Constitutio n.

Tragedi es s uch as th e school s hootings in Littl e ton , Co lo rado bring renewed ca ll fo r increased gun contro l amo ng o ur fe llow citi­zens as we ll as o ur nation's leade rs. In the wake of such tragedies, it is only natural to be lured by the temp­tatio n of passing mo re gun control laws. Befo re succumbing to such temptatio ns, le t us re fl ect o n th e purpose behind the Second Amend­ment and why the founding fathe rs deemed it impo rtant eno ugh to in­clude it in o ur Bill of Rights.

William Blacksto ne, an autho r­ity o n Eng lis h Co mm o n Law, viewed the individ ual right to keep and b ar a rms a necessa1y to se­curing th three great rights. He said , "Afte r a ll , w hat good would be a right to property, liberty, or personal securi ty if one did not have the right to protect these rights. Indeed the grea t right to pe rsonal security im­plies a right to d fend o ne 's life through the use of arms." 1 A glance

at the writings o f the founding fa­th e rs indi ca tes thi s th e me was shared by many of them. 2

Th o mas J e ffe rso n 's th o ughts about the rights of the citiz my ca n be fo und in the Declaratio n of In­dependence, which he co-autho red: "Governments are instituted among men, deriving the ir just powe rs from

Opinion the con ent of the governed. That whenever any fo rm of Government becomes destructive of these ends, it is the Right of the People to alte r o r abolish it. "j

oah Webste r, a contempo rary of Thomas Jeffe rson, articulated a fea r s imil ar to Je ffe rson 's with re­spect to the maintenance of stand­ing armies, "Befo re a standing army ca n rule, the people must be dis­armed; as they are in a lmost eve ry kingdo m o f Euro pe. The supreme powe r in America ca nnot enforce unjust laws by the sw rei ; because the who le body of the people are armed and constitute a fo rce supe-

BY MICHAELS. ROMANO

rio r to any bands of regular troops than can I e, on any pretense, raised in the United States."4

Sanford Levinson, a noted rnod-rn Constitutiona l scho lar, also sup­

po rts the proposition that one of th purposes of the Second Amendment is to allow citizens to res ist govern­ment if necessary. Levinson contin­ues by stating that by this reason­ing, militias refe r to the whole popu­lation , not a sanctio ned a rmy."

Some would a rgue that if the econd Amendment was intended

to allow fo r an armed populace to de fe nd itself against tyranny, that argument wo uld not stand today in light o f the o phisticated weaponry o f modern armi es. Howev r, this argument does not take into account such modern day reminders as Af­g ha ni s ta n , wh e re a to ta lita rian nuclear powe r was unable to pre­vail aga inst a modestl y armed popu­lace who lacked nuclear weapo ns, a rmo r, o r air power. Thus reinfo rc­ing the concept that even in mod­ern clay civil war, an arm d po pu­lace ca n deter government oppres-io n and succe sfull y defend them­

selves.6 lt is my opinio n that th para­

mo unt reason for the existence of the Second Amendment is to a llow citizens ro resist the forces of gov­e rnme nt and tyrann y, sho uld the need eve r present itself.

One of the purposes be hind the concl Amendme nt is g ua rantee­

ing indi viduals the rig ht to have a rms fo r pro tecti o n and se lf de­fe nse . As many as 2. 5 milli o n crimes each yea r a re thwa rted by

Juns Sprmg 2001 21 23 1

an average United rates ctttz n who brandishes a firearm , in most cases without a shot being fired. 21 The right to self defense is fur­ther evidenced in a rece nt Su­preme Court case that did not deal with the Second Amendment, but rather the duty of the stat to pro­tect the people. 22

Deshaney v. Winnebago County Department of Social Ser­vices involved a ch ild abuse ca e where a father beat his son repeat-

edly and so severe ly that the on eve ntu a lly suffered severe a nd permanent brain damage. The County Social Service was aware o f the abuse but o nly took mini­mal steps to protect the boy short of removing him from his father 's custody. Rather, the caseworker assigned only recorded the inci­dents but took no affirmat ive ac­tion to provide for the chi ld 's sa fety. 23

The mother of th e boy sued the Social Agency on the grounds that they had deprived her son of his liberty interest in his bodily integ­rity in violation of the Fourteenth Amendment by failing to protect him from ab u e th ey knew or should have known was occur­ring. 24 The Court ruled that a duty to protect only becomes an affi r-

22 Juns J Spnng 2001

mative one when the state takes a person into custody, thereby pre­venting him from taking care of himself. 25 The Court stated , "While the state may not deprive individuals of life, libe rty o r prop­erty without clue process of Jaw, it is not obligated to e nsu re that those interests a re not harmed through other means. Its purpose is to protect the people from the state, not to ensure that the state protect them from each other". 26

From this line of reasoning, it can be understood that the gov­e rnme nt has no obligation to pro­tect individual s from harm caused by the violence of fellow citizens. By inference , if we have the right to life, liberty, and property , and if the governme nt declines to take responsibility for the protection of these rights , then it must fall upon the people to protect th ose rights themselv s. The ro le of the Sec­ond Amendment then becomes appa rent: individuals must protect themselves a nd the on ly means ava ilab le to effect ive ly defend against an arm ed crimina l is for the individual citize n to be armedY

It is tempting to pass expa nsive gun regu lat ion that will under­mine our right to keep and bear arms in response to tragedies such as Littleton , Colorado. However, we should keep in mind the im­portance of the Second Amend­ment and its purpose as the found­ing fathers saw it , as well as its importance to us today in main­taining our freedoms . ........_

Michael S. Romano is a second-year evening student. He is a former Department of Justice employee with nine years experience in federal la w enforcement.

ENDNOTES 1. Robert H arman , Notes and Comments:

The Peoples Right to Bear Arms- Wbat the Second Amendment Protects: An Analysis of the Current Debate Re­ga rding What Th e Second Amend­ment Realfcy Protects, 18 Whittier L. Rev. 411 ,418 .

2. Wayne LaPierre , Guns, Crime, and Freedom, 4 0994) .

3. !d. at 7. 4. !d. at 9. 5. anfo rd Lev inson , Co mm en t: The

t:mbarrasing Second Amendment, 99 Yale L.j. 637, 646, 647.

6. Robert Dowlut, The Right to Keep and Bear Arms: A Right to Se!f Defense Against Criminals and Despots, 8 Stan. L. c Pol'y Rev 25 , 30

7. Gregory Lee Shelton, In Search ofThe Lost Amendment: Challenging Federal Firearms Regulation Through The 'State 's Right ' !nte!pretalion of The Second Amendment, 23 Fla. Sr. U. L. R v 105, 109

8. Steven H. Gunn, Second Amendment y mposium: A Lawyer's Guide to the

Second Amendment, 1998 BYUL Rev 35,39.

9. !d. at 41. 10. H arold S. H erd , Re-Examination of

the Firearms Regulations Debate and Its Consequences, 36 Wa shburn L.J. 196, 223.

11 . Tel. 12. Gregory Lee helton, In Search ofThe

Lost Amendment: Challenging Federal Firearms Regulation Through Th e State 's Right ' Interpretation of The Second Amendment, 23 Fla. Sr. U. L. Rev 105, 117.

1]. /d. at ll8. 14. Steven H. Gunn, Second Amendment

ymposium: A Lawyer's Guide to the Second Amendment, 1998 BYUL Rev 35, 43.

15. lei. 16. Wayne LaPierre, Guns, Crime, and

Freedom, 8, 0994). 17. Icl . 18. D onald E. Johnson, Taking a Second

Look at The Second Amendment and Jl!Iodern Gun Control Laws, 86 Ky.L.j. 197, 203.

19 . !d. at 202. 20. Steven H. Gunn, Second Amendment

y mposium: A Lawyer's Guide to the Second Amendment, 1998 BYUL Rev 35,43.

21. Wayne LaPierre, Guns, Crime , and Freedom, 23.

22. Robert Dowlut, The Right to Keep and Bear Arms: A Right to Self Defense Against Criminals and Despots, 8 Stan. L. & Pol 'y Rev 25, 28.

23. David E. Murley, Private Enforcement of the Social Contract: Des haney and the econdAmendment Right to Own Firearms, 36 Duq.L.Rev. 827, 851.

24. !d. at 850. 25. Tel. at 851. 26. !d. at 851. 27. !d. at 852

Do Right-to-Carry Laws Deter Violent Crime?

Over the past year, the gun control debate has increasingly caught the attention of America,

as well as Pittsburgh. John R. Lott,Jr., senior research scholar in the School of Law at Yale Univer­

sity posits in the article he wrote with David B. Mus­tard, Crime, Deterrence and Right-to-Carry Concealed Handguns, 1 that right-to-carry laws

("RTC") deter vio lent crimes a nd have no effect on the number of ac­cidental deaths. This the me is pur­sued in greater detail in Lott's book, MORE G , LESS CRIME, where he cla ims that "[cl riminals are moti­va ted by se lf-preserva ti o n, a nd handguns ca n therefore be a deter­rent. "2

In order to support this hypoth­esi , Lott, in his own words, com­p iled "the most comprehensive data set on crime yet assembled ,"3 us­ing Unifo rm Crim e Re po rt Data, tate-level gun permit data, and s v­

era! othe r sources, in order to ar­ri ve at this conclusion.

Lott 's resea rch shows that the rate o f vio le nt crim es , incl u ling murder, rape and robbery, drops when gun pe rmits are more easily access ible. A concurrent effect to th i drop in vio lent crime occur in the fo rm of an increase in some lev­els o f prope rty crimes, incl uding larceny and auto theft. But should Lo tt 's resea rch a nd sta tis ti cs be take n at face value?

In o rder to unde rstand the op­posite side of the argument, I ca lled upon Professor Daniel Nagin, th

Teresa and H. John Heinz III Pro­fessor of Public Policy at Carnegie Mellon University. Professor Nagin, in collabo ration with Da n Black, wrote Do Right to Carry Laws De­ter Violent Crime?\ an article that also appeared in The j ournal of Le­gal Studies. Profes o r agin , a critic ofLott's research , spoke with JURIS

Opinion about Lott's research and about gun control policy in general.

Professor Nagin revie wed the numbe rs produ ced by Lo tt and found that the "lion's share" of the benefit of the right-to-ca rry laws were found in Flo rida. He then re­ran the tatistics e liminating Florida. A q uo te from Do Right to Ccm y Laws Deter Violent Crime? best ar­ti cul a tes w hy the liminati o n o f Florida is important to a more ac­curate analys is:

The large variations in state­specific estimates of RTC impacts cause concern that the Lott and

BY JOHN E. EGERS,JR.

Mustard results could be driven by a single state f or which their model does a particularly p o01' job of fitting the data . As it turns out, one s·uch state is Florida. With the Muriel boat lift of 1980 and South Florida 's thriving drug trade, Florida 's crime rates are qu ite volatile. Further, 4 years after its 1987 passage of the RTC law, Florida passed sev­eral other gun-related measums, including background checks of handgun buyers and a waiting period f or handgun purchases. 5

agin and Black conclude that "witho ut Flo rid a in th e sa mpl e , there is no detectable impact" fo r the two crimes that, according to

Lott, account for 80 pe rcent of the social benefit of RTC laws6

Another important distinction in the resea rch of Lou/ Mustard and

agin!Biack is the source of their statistics . I asked Professor agin to comm nt on the use of larger counties, i.e. those with a popula­tion of at least 100,000, as opposed to Lon 's methodology of using ev­e ry county in th e United States. "Both methods are legitimate, " Pro­fessor Nagin stated , "However, large counties are more de irable ." The reason fo r this is two-fold .

agin be lieves that large coun­ties are be tte r indicato rs of reduc­tions, as smaller countie have less overall numbers of crime . In ad­dition, large counties do not have what agin te rms "no-event" prob­lems, wherea mall counties may have no repo rted certa in crimes for

Juns I Spnng 2001 23 I

a crime categoty , such as rape, thus creating an undefined number for that ca tegory. Nagin be lieves re­sea rch focused on large counties ca n therefore ensure more homo­geneity. When asked why he used populations of 100,000, Professor

a gin ·aid it was a "judgm nt ca ll " as counties with at least thi num­ber of people avo id ed the "no event" problem.

Given the fact that his findings contradict Lon's hypothesis, I asked Prof so r ag in to comme nt o n whether Lott's resea rch was believ­able or outlandish. "No, it's not out-

24 Juns 15prmg 2001

land ish, agin responded , "it is just not nea rl y as firm as his writings suggest. That is to say, you could not build public po licy on it. "

My final questi on to Prof ssor ag in was in rega rd to th e

Baumhammers a nd Taylor shootings of last pring. Consider­ing Pe nnsy lva nia 's right-to-ca rry law and Lott's hypothesis regarding gun licensing, I asked agin if he felt these two shootings could have been prevented if more private citi­zens owned handguns. Professor

agin noted the probab ility that

the. e two suspects "have serious mental disorders" and said it's then essential to ask whether or not such individuals are likely to be deterred by the pote ntial of en­countering a privately armed citi­zenry. He suggested that individu­als with mental disorde rs are not like ly to be deterred by the fea r o f encountering someone e lse with a gun. If armed private citizens had confronted either of these subjects, we must also consider the poss i­bility that a gun battle might have e nsued, poss ibl y ha rming even more people, said Professor agin. Questions regarding the possible outcome o f s uc h a s itu a ti o n abound: could armed citizens have stopped these crimes? Would such citizens have the training to handle themselves and to shoot straight in such a stressful situation?

The "more guns , less crime" the me has become central to the conte mporary handgun de bate. Befo re coming to a conclusion on such an important public po licy issue it is important to exa mine the resea rch of Lott and Mustard in light of the reanalysis performed by agin and Black. The more objective the approach, the closer policy makers will be to a rea l so­lution. #........

John E. Egers, Jr: is a second-year day student. He hails from Washington, Pennsy lvania , and has a BA in Criminal Justi ce, Summa Cum Laude, from Edinboro University of Pennsylvania.

ENDNOTES 1 John R. Lon and David 1:3. lusta rd .

Crime, Deterrence and Right-to-Cany Concea led Handguns, 26 ] Leg Stud J , 12 0997).

2 Lon p.5 3 Lott p.ix 4 Dan A . Black and Daniel S. Nagin, Do

Ri ght-to-Ca rry Laws D eter Vio lem rime? 27 J Leg Stud 1, 209 0998).

5 Dan A. Black and DanielS. Nagin Do Right to Carry Laws Deter Vio lent Crime? Journal of Lega l Studies, Vol ­ume 27, 1998 . . 21 4

6 p.219

Will the Death Penalty be Executed?

BY REBECCA KEATING VERDONE

D 0 YOU FAVOR OR OPPOSE THE DEATI-I PE ALTY?

It's a tough question, and one that has al ways been controversial. Currently, both in­

ternational and internal pressures are forcing federal

and state governtnents to reexamine the necessity of the death penalty and institute possible reforn1. About four years ago, the Atnerican Bar Association issued

a statement that executions should be stopped until a greater degree of fair­ness and due process co uld be ac hi eved. 1 A C / USA Today/ Gallup Poll taken in June of 2000 showed that only 51% of people be­lieve the death penalty is applied fairly and 80% believe that an inno­cent person was executed in the .S. in the past five yea rs2 Other polls in­dicate that two-thirds of Americans fa­vor a suspension of the death pen­a lty while questions concern ing whether or not it i fairly applied are resolved.3

Illino is helped set the rage for death penalty reform when the gov­ernor declared a moratorium on ex­ecutio ns a year ago. ow, at least seven other states will consider mora­toriums or abolishing the death pen­alty during the ir legislative essions.' On a larger sca le, last yea r former President Bill Clinton orde red a De­pattment of Justice study of the fed­eral death penalty."

There are currently 37 states witl1 a death penalty6 Several states, in­cluding Illinois, Arizona , ebraska, Notth Ca rolina, Maryland, and Incli­ana, have launched capital punish-

ment studies xamining such issues as the quality of defense lawyers and the general functioning of the death penalty." Some think these stud ies were implemented in response to the number o f wrongly convicted in­mates who have b en freed because of DNA testing.H But, according to a Death Penalty Information Center study, only ten out of tl1e 93 men re­leased from death rows across the nation since 1973 are included among those freed b cause ofD A testing.9

So while DNA testing may exonerate some who have been wrongly imptis­oned, it still may not be enough to save others.

What other safeguards are there against executing the wrongly con­victed? States are considering the pos­sibiliti s. Illino is is pondering legisla­tion that would require pretrial reli­ability hearings before prosecutors could use jailho use info rmants as witn sses. 10 o other .S. tate has such a law, although some give the jLIIy instruction · suggesting that they u e ca ution in considering such testi­mony.11 Virginia is working on other areas ripe for reform such as defin­ingwh n evidence tl1at's been uncov-

ered after conviction should be con­sidered and whetl1er there should be a rela.;-<ation of time limits for discov­ering excu lpatory evidence. 12 Will these types of reforms be enough to stop an innocent person from being sentenced to death?

There are plenty of other reasons more studies of the deatl1 penalty are needed. For one thing, there is a con­tinuing question as to wheth r or not blacks are more likely to be given tl1e death penalty. On death row in Maty­land, Blacks outnumber White by one of the highest margins in America: ten of sixteen condemned men are black.1·1 Re earch conducted for tl1e Cornell Law Review disclosed tl1at in Philadelphia black defendants were almost four times more likely than whites to receive the death pen­alty for similar crimes. 1'

It is also widely believed that the deatl1 penalty discriminates between rich and poor. 1" Once a jUly renders a guilty verdict for murder in the first degree , mitigating factors a re weighed agai nst aggravating circum­stances to decide the defendant's fate. 16 The more financial resources available, the more probable it is that exp It witnesses will be brought in to justify leniency on grounds such as tl1e defendant's troubled chi ldhood and/ or a low degree of likeliness to commit more harm, etc. ~' A court­appointed attorney with limited re­sources cannot provid his client witl1 such luxuries. IH

Yet another problem is the high degree of likeliness that a defendant possibly subject to the death penalty ({found guilty will be found gu il ty.

Juns 1 Spnng 2001 2 5

More than one study suggests that juror willing to impose the death penalty are more likely to convict defendants , including a study from the niversity of California at Santa Cruz, indicating that interrogating ju­rors about their willingness to impose the death penalty ofte n convinces them of the defendant's gu ilt. 19

Finally, there is the complaint that the cost of prosecuting capital ca es isn'tworthit.20 Elaine]ones, pr sident of the AACP Legal Defense and Educational Fund, recently posited that the enormous funds applied to capital cases are being wasted, that the death penalty doesn't work as a deterTent, and it would be better to donate the much needed money to worthie r law enforcement and crime prevention prograrns2 1

Despite all these problems, it's hard to imagine that America will e liminate the death penalty. For one thing, o ur new president, George W. Bush , is a staunch death penalty ad­vocate; during his time as governor ofTexas he presided over 152 execu­tions in six years.22 He commuted a death senten ce o nly once, when question were raised about the guilt of the prisoner.23 Outside the .S., Bush has been referTed to as having an "addiction to the death penalty"2"

and America is criticized by many natio ns as being the last modern de­mocracy to cling to capita l punish­ment. 25

G iven his st ro ng co nvic tions, however, it's unlikely that outside pressures will intimidate Bu ·h into changing his position . Besides, al­though su ppo11 for the death penalty within the Unit d States may be de­clining, it's still well over 50% and few politicians seem ready to embrace abolitio n of capital punishment. 26

Perhaps this is because so many a trocities are committedso many atrocities are committed in our nation, where the actions of the wrongdoers appearto truly warrant imposition of the mo t evere penalty.

For example , in Western Pennsyl­vania Ia t year, on March 1, 2000, a 39 yea r-o ld b lack man, Ronald Tay-

26 Juns 1 Spnng 2001

lor, a llegedly shot five white men in Wilkinsburg, killing three.27 The at­tack appeared to be racially moti­vated 2B Police found hate-fi ll ed notes written by Taylo r including an­gry attacks on a varie ty of racial and re ligious groups.29

The very next month , o n April 28, 2000, while western Pennsylvanians were still mourning the Wilkinsburg incident, another gro up of a pparendy racially-motivated killings took place. Richard S. Baumhammers, a white man, i accused of going o n a shoot­ing spree in Allegheny and Beave r Counties, leaving a j ewish woman, an Indian man, a Vietnamese immi­grant, a Chin e-American, and an African-American deacl ,.lO and leaving a sixd1 victim, another Indian man, paralyzed .3 1 These ha te c rimes shocked and saddened area commu­nities. The Allegheny County District Attorney is seeking the death penalty in both casesY

On a natio na l level, Timothy McVeigh is schedu led for execution by led1al injection on May 16, 2001.33

McVeigh wa convicted in federal cou11 of detonating the bomb that gutted the Oklahoma City federa l building s ix years ago, killing 168 people, including 19 children, and injuring 500 others:3-1 The entire coun­try was shaken that day.

In cases wher gu ilt appears cer­tain , do p ople who have been con­victed of cruelly taking so much from others deserve to live? Do you favor or oppose the death penalty? It's a tough question , indeed . ......._

Rebecca Keating Verdone is a second­year day student. She is Assistant Senior Editor of JURIS, SBA Day-Division Vice President and a student representative to the Law School Alumni Association.

ENDNOTES 1 H erbert , Bob, fn A m e rica; Dead

\.17rong, The ew York Times, Feb.1 , 2001 , Section A, at 23.

2 lei . 3 lei . 4 Mills , Steve, and Possley, Maurice, De­

hate low~)' Sbijis; Executions Con­tinue But Face More Scrutiny , Chicago Tribune, .Jan. 31, 200 1, News at 1; Zone: N.

5 ld. 6 Collins, Rachel B. , N.H. To Begin Hear­

ings On Deatb Penalty Today Dozens To Testify About Bill Revisited By N.JI. Leg islators, Th Boston Globe, j an. 30, 2001 , Metro/ Region; at B8.

7 Baskervill, Bill, Associated Press , Vir­ginia Reviewing Death Penalty; DNA Tests exonerate In male, Provoke State Debate, Chicago Tribune, Feb. 12, 2001 , New ; at 4; zone: N.

8 lei . 9 Masters, Br oke A., New-Evidence Bill

Too Limited, Foes Say, The Washing­ton Post, Feb. 9, 2001, Metro; at B01.

10 Long, Ray, and Possley. Maurice, Bills Propose Guards Against False Testi­mony , Chicago Tribune, Feb. 14, 2001, Metro/ Chicago, at 1; zone: N.

llld. 12 Masters at BO I. 13 Moskand, Mauhew, and Montgom ry,

Lori , Blacks, Catbolics Lobby.for Halt to Md. Ewculions. The Washington Post, .Jan. 26, 2001, Metro; at 89.

14 Keiclan, Bruce, Tbe t"Jcecutio11er 's Song Is Gelling Louder; Pennsylvania Has Many Priso11ers On Death Row. But Few Executions, Pirrsburgh Post­Gazette, Oct. 8, 2000, Editorial , at E- 1.

15 Id . 16 Id . 17 !d. 18 lei . 19 Keiclan, at E-1. 20 llerben , at 23. 21 lei . 22 Roma no, Lo is, Victim 's Kin Asked if

Tbey Want to ee McVeigh Die; Un­usual Preparations .for Federal E:'<ecu­tion In May, The Washington Post,] an. 30, 2001, A Section; at A03.

23 lei. 24 Blair Urged To Stop US Killing Spree,

cottish Daily Record , .Jan. 30, 200 I , News, at 6.

25 Keidan , at E-1. 26 Mills, at 1. 27 Roddy, Dennis B., DA To Seek Deatb

For Tay lo1;· Suspect Accused of Killing 3 /n WilkillSburg Sbooting Spree, Pins­burgh Post-Gazette, Sept. 26, 2000, Loca l; at B-1.

28 1d. 29 ld. 30 McKinnon, .Jim, Baumbammers Gets

EYte11sion; Lawyer Must Present De­f ei/Se By reb. 9, Pittsburgh Post-Ga­zette, j an. 10, 2001 , Loca l, atD-6.

31 Tel. 32 Fuoco, Michael A. , It Ca n '! bappen

Here, But It Did; Three Terrible Crimes Have Led 7be DA To Seek Tbe Death Penalty: Tay lor, Baumbammers, and Conzelius, Pittsbu rgh Post-Gazeue, Dec. 31, 2000, Local , at A-1.

33 Willing, Richard , To Watcb I!im Die Or Not, Me \ieigb EYecu/ ion Poses Hard Cboice, U A Today, Feb . 15, 200 1, News; at 1A.

34 lei .

Let's Put the Assist Back into Assisted Living:

Services for the Elderly Remain in Disarray

T HE MAN ER IN WHI CH THE ELDERLY POP ULATION

receives long-term health care services throughout the United States reveals a com­

plex and inconsistent approach to senior care. Al­though the full spectrum of senior health care in­volves the services of physicians, hospitals , and nurs­ing hotnes , 1 the emergence and growth of the

assisted living ind ustiy provides a unique set of concerns to the e ld­e rl y po pulatio n.

As o f 1993 , a pprox im a te ly 800 ,000 - 900 ,000 se ni o rs we re ca red fo r by an estimated 30,000 licensed and unlicensed res idential ca re ho mes. 2 In compa rison, ap­prox imate ly 1.5 milli o n se ni o rs we re ca red fo r by a n estimated 17,000 lie nsed nursing homes .3

Altho ug h slightly outdated , these fi gures indica te the impact of resi­dential ca re fac ilities o n the health status of the elde rl y population.

Witho ut the guidance of consis­tent national, state , or local regula­tions, residential care facilities ca n­no t ma inta in a d e pe nd able a p­proach to the care they provide. Inconsistent crite ria and the lack of a uniform understanding of what d1e te rm "ass isted living" means im­pedes the success and effectiveness of assisted li ving facilities ("ALF").

A 1999 study spo nsored by the nited State Department of Health

and Human Services (HHS) warned that '· [a]ny attempt to understand assisted living and its ro le in provid­ing long-te rm ca re to the frail e ld-

erly is hindered by the lack of a com­mon definitio n of 'assisted living. ' Places kn own as ALFs diffe re d wide ly in the ownership, auspice, size, and philosophy. ""

Altho ugh the financing and lo­gistics associated with the provision o f health care services to the eld­e rl y po pulatio n e mbod y essential concerns to policy makers and leg­islato rs, the conside rable disparity be tween assisted living fac ilities thro ughout the statess presents an often overlooked dilemma to the consumer.6 The inconsistent man­ne r in which the definiti o n o f as­sisted living is presented by trade associations,- ass isted living ho us­ing expe rts, 8 and magazines and news publica ti o ns9 unde rlies this dilemma.

Because assisted living is still a relative ly new industJy , businesses offe ring ass isted living services and the states that license and regulate them have been unable to agree o n one definiti o n of what "as i ted liv­ing" mea ns.'0 This inability to ad­he re to a co ns is te nt d e finiti o n , coupled with a lack o f regulato ty unifo rmity and service, trains the

BY BRAD M. ROSTOLSKY

abili ty o f assisted living consumers to adequately judge wheilie r an ALF will fit the ir lo ng term care needs.

Throughout the United States, facilities that o ffe r assistance to the elderly under the rubric of long term board and care" are referred to by many diffe rent titles: personal care ho mes, residential care facilities fo r the e lderly, adult congregate living facilities , home fo r the aged , do­miciliaty care homes, and assisted li ving faciliti e ·.' 2 Ofte n, a fac ility within a given state will randomly insert any o ne o f these categoriza­tions into the name of the facility.

Without attaching any legal sig­nifica nce to the cl assifica tio ns of lo ng te rm ca re facilities forth eld­e rl y in the fo rm o f unifo rm licens­ing and regulation, many facilities that use the ame class ification will continue to provide a vety dispar­ate array o f services . Beca use these long-te rm care facilities are gaining in po pulari ty and use, a large popu­lation of seniors is being affected by the significant discrepancies in the ca re and services they provide.

A mo re unifo rm definitio n o f assisted living and the services pro­vided atALFs would he lp to resolve some o f the confusion surrounding lo ng-te rm care fo r d1e e lde rl y. Th National Cente r fo r A sisted Living , in its Assisted Living Sta te Regula­t01y Review - 2000, examined the disparity between the states w ith respect to certa in key definitions by focusing on the fo llowing te rms:

Licensure term - This is the te rm used by the states to designate long-

Jum 1 Spnng 2001 27

term ca re facilitie o the r than nurs­ing ho mes. The te rms employed by the tares va ty from "ass isted living facilities, " u "assist d li ving ho mes ,"' ' "res ide ntia l lo ng te rm ca re facility ," ' ' "pe rson al ca re boarding ho me ," 16 to "res identia l and ass ist dlivingfacilities," 17 "she l­tered care facilities, "18 and "personal care ho mes."19

Defhtition - This definition clarifies the licensure term. Discrepancies in the fo llowing states highlight the var­ied setvices offered throughout the states for seniors that need assistance, but do not require comprehensive nursing home assistance:

• Alabama - "An Assisted Living Facili ty provides room, board, mea ls, laundry, ass istance with pe rsonal care , and other services fo r not less than 24 hours per week. Assisted liv­ing is subclassified according num­ber of residents. "20

• Alaska - "Ass is ted Li v ing Homes provide a sy rem of care in a home-lik environment for elderl y person and per on with mental or physical eli abilities who need assis­tance with activities of daily li ving. "21

• Arkansas - "Residential Long Term Care Facilities setve individu­als with impaired functioning who do not require hospital or nursing home care and who self-administer mecli­cation."22

• Colorado - "Personal Care Boarding Homes are residential facili­ties that make ava ilable to three or more unrelated adults , e ither directly o r indirectly thro ugh a provide r agreement, room and board and per­sonal ervices, protective oversight, and social care clu to impaired ca­pacity to live independently, but not to the extent that r gular 24-ho ur medical nursing care is required."23

• Idaho - "Residential and As­sisted Li ving Facilities provide 24-hour care for thre or more adults who need personal care or assistance and supetv ision essential for sustain­ing activities of daily living or for the protection of the incliviclual. "2·•

• Illinois - " helterecl Care Fa-

28 Jur1s I Spr~ng 2001

cilities provide food , shelter, laundty setvices, and personal care to res i­de nts who do no t need nursing care. "2'i

• Pennsylvania - "A Personal Care Home provides food , shelter, and personal assistance or supe tvi-ion for four or mo re adults who do

not need nursing home ca re. Re i­clents may require assistance or su­petvision in matters such as dressing, bathing, diet, financial management, evacuatio n , and medi ca tio n pre­scribed for self-mecl icatio n."26

Facility scope of care / Third party scope of care -This descriptio n "summarizes the nursing and pe r­sonal care setv ices that may be pro­vided ... [and] indicates whethe r ser­vices may be provided by ho me health agencies, hospice providers, etc.'m The va ri d amount of care provided at each state's facilities em­phas izes the need for a uniform model of ca re provision.

• Alabama - "Assistance with activities of daily living, such as bath­ing, oral hygiene, and grooming may be provided . A Registered urse (RN) must provide or supetv i ·e care during periods of temporaty illness. Home healtl1 agencies may be pro­vided by a ce rtified ho me hea lth agency."28

• Alaska - "Facilities may provide nursing care , assistance wim activi­ties of daily living, intermittent nurs­ing setv ices, and skilled nursing care by arrangement. A licensed nurse may delegate certain tasks, including non-invasive routine tasks, to staff. " The third patty scope of care was not specified .29

• Arkansas - "The facility may supetvise and assist with activities of daily living. Home health services may be provided by a certified home health agency."·10

• Colorado - "The facility must make ava ilable , e ither directly or in­directl y through a provider agree­ment, at least tl1e fo llowing: a physi­ca ll y safe and sanitaty environment; room and board; p rsonal setv ice ; protective oversight; and socia l care ,

sufficient to meet tl1e needs of the residents. Facilities may choose to contract with home health agencies for setv ices beyond what they are able to provide."31

• Idaho - "The facility must su­petvi e residents, provide assistance with activities of daily living and in­strumental activities of daily living, and deliver setvices to meet the needs of the residents. Residents are per­mitted to contract for setvices witl1 third patties. ·•.ll [Emphasis added.]

• Illinois - "Facilities may pro­vide general watchfulness and appro­priate action to meet tl1e total needs of residents, exclusive of nursing care. Home hea lth agencies may provide servic unde r contract with re ' i­dents .".l3

• Pennsylvania - "The facility may provide assistance witl1 activities of dail y living and self-administered medication . Home hea ltl1 is p rmit­ted as per physician's orders. "3'

Admission/ discharge require­ments - This description addresses the critetia upon which residents may be admitted and discharged from the facility. Again, the discrepancies in­dicate the n eel for unifo rm regula­tion. ore that some of tl1e prohib­ited resident characte ristics in the sample states below are representa­ti v of conditions that s niors will develop through the natural aging process, despite not having a need for nursing home care :

• Alabama - "To be ad mitted , residents may not require restraints or confinement; have severe senili ty; or have chronic healtl1 conditions re­quiring extensive nur ing ca re , daily professional obsetvation, or the ex­e rcise of profe ional judgment from facility staff. Residents must be dis­charged when care 'beyond the ca­pabilities and facilities ' of tl1e facility is required. " .l'i

• Alaska - "There are no limits on admission; however, facilities must have a residential setv ices contract in place for each resident. Twenty four­hour skilled nursing care may not last for more man 45 consecutive clays.

Terminally ill reside nts may remain the facility if a physician confirms that needs are being met. At lea ·t 30 days' notice is required befo re terminating a residemial services contract. ":i<'

• Arkansas - "The facili ty must not admit o r reta in residents w hose needs are greate r than the fac ili ty is licensed to provide. Residents must be inde pendently mobile; be able to self-ad ministe r medicatio ns; be ca­pable of understanding and respond­ing to reminders and guidance from staff; not be tota ll y incontine nt o f l1owel and bladder; not have a feed­ing o r intraveno us tube; not have a communi cable disease; no t need nursing services which exceed those p rovided by a ho me health agency; not have a level of mental illness o r dementia that requires a highe r level of treatment than can be safely pro­vided in the facility; not require reli­gio us, cultural, o r clieta ty regimens that cannot be met w itho ut undue b urd e n ; not require ph ys ica l re­stra ints, lock-up, or confineme nt; and display violent behavio r."r

• Colorado- "A facili ty may not admit o r keep any residem requiring a level of care or type of serv ice which the fac ili ty does not provide o r is un­able to provide, but in no event may admit o r keep a resident who: is con­sistently, uncontrollably incontinent o f the bladder unless the reside nt o r staff is capable or preventing such in­continence from becoming a health hazard; is consistently, uncontro lla­bly incontine nt of the bowl unless the resident is tota lly capable of self care; is totally bedfast with limited poten­tia l for improvement; needs of medi­cal or nursing services on a 24-ho ur basis; needs restraints; and has a com­municable disease or infection unless the resicl nt is receiving medical o r drug treatment fo r the conclitio n."38

• Idaho - "Residents may not be admitted o r reta ined if they require o ngoing skilled nursing, inte rmediate care, o r care not witl1in tl1e lega lly li­censed autho ri ty o f tl1e facility. In addition, residents w ho are in need of restraints or have physical, emo­tional, o r socia l needs not ho mog-

eno us witl1 tl1e fac ility's populatio n may not be admitted . "39

• Illinois - "Reside nts with seri­o us menta l or emotional proble ms or in need o f nursing care may not be admitted o r reta inecl ." 10

• Pennsylvania- "Admission of no nambulato ty residents is a llo wed o nly if th fac ili ty complies witl1 cer­ta in additio nal staffing and physical plan requirements. Residents may be d ischarged if t11ey require a highe r level o f ca re or if they become a dan­ger to themselves o r othe rs .""'

The fo llowing guidelines a re com­mo nly accepted as the "key philo­sophical principles o r tenants tl1at eli ·­tinguish assisted living: setv ices and oversight available 24-ho urs a clay; setv ices to m et scheduled and un­scheduled needs; care and services provided o r arranged so as to pro­mote independe nce; an e mphasis o n consume r dig nity, a uto no my a nd choice; an emphasis o n privacy and a homelike enviro nment." 12 Thus, in order to combat inconsiste ncies in care , the te rm "assisted living" must stand fo r more than general principles of setv ice; tl1e leaders witl1in tl1e as­sisted living industty must a lso agree o n a deta iled expansion of tl1ese key principles. This lack of cla ri ty has pro mpted the a tio nal Cente r o n Assisted Li ving to describe tl1e ser­vices offe red by Alfs as a "clo udy nexus." I .~

Lack of unifo rmity remains a key concern to states as tl1ey continue to develop regulatio ns perta ining to tl1e assisted living industry. Although a majority of states had e nacted legis­latio n addressing assisted living pay­ment and regulatio n by 1998, "[n)o consensus has emerged amo ng state po licy-make rs o n the a ppro pria te regula to ry mode l fo r ass isted liv­ing. "+~ Across t11e states, the cLment regulato ty po licy regarding assisted living does not achieve a unifo rm set of goals. While some states focus o n ensuring "distinctive e nvironmental features, "·lo o tl1e r states disregard en­viro nme ntal issues affecting senior care. Anotl1er key distinctio n among state plans involves the regulation of

the ho using compo ne nt of the fac il­ity, as well as the service compo­nent. 16 Despite thi natio nwide dis­pari ty among setv ices and facilities, some states now offer lo ng-te rm care services that were previou s ly re­setved fo r tl1e nursing home setting. I" The extensio n of assisted living ser­vices to include higher levels o f care previously provided only by nursing ho mes will enable assisted living resi­dents to maintain a consistent quality of life and a llo w the m to "age in place."IH

Additio nally, discrepancies exist between the sta tes rega rding the manner in which medica tio n is man­aged at tl1e facili ties, requireme nts o f the physical plant, number o f resi­dents allowed per room, batl1room requirements, staffing requirements, and tl1e training necessa ty to become and mainta in status as a facili ty acl­ministrato r."9 The dispari ty a mo ng states in the afo rememio ned areas represents an obstacle tl1e assisted liv­ing industry must overcome if federal funding- simila r to t11at provided to nursing ho mes -may be considered applicable to ALFs. "Because some evidence suggests that assisted living predo minantly setves a private-pay market o f well-to-do e lde rly, ""0 the ability of tl1e assisted living industty to be nefit senio rs o f a ll econo mic planes may require federal assistance. In order to meet tl1e potential fund­ing eligibili ty requirements of a fed­e ral plan, ALFs will have to standard­ize the scope and de finition of ser­vices offered.

f lllthermo re, the develo pment of a 'tandarclized mode l fo r assisted liv­ing fac ilities faces cha llenges at the fede ral, state, and loca l levels. Fed­e ral po licy barrie rs include ho using regulatio ns set fo rth in the A meri­cans w ith Disabilities Act, the FaiT Housing Amendments Act, the HUD 232 loa n program, and aclvettising and marketing regulations tha t a p­ply to and pro tect senio rs .51 State po li cy barrie rs include lice ns ing regulatio ns and procedures, medi­ca tio n manageme nt po lic ies, issues surro unding the care o f Al zheime r's

Juns, Spnng 2001 29

patients, and the Certificate o f Need proce .52 Loca l po licy barriers ar often fo und in both zoning laws and fire code regulatio ns. 53

Pennsylvania currently class ifies enio r lo ng-te rm ca re fac iliti es as

"pe rsonal care homes. " The cur­rent regulatio ns fo r pe rsonal care ho mes in Pe nnsy lvani a provide o nly a basic level o f supervision by the sta te .54 Codified in the Penn­sylvania Code, the regulatio ns set fo rth requirements for the physica l plant of the pe rsonal ca re ho me, the services provided by the pe r­sonal care ho me, medication po li ­cies, and staffing and tra ining re­quire me nts ."' ln res po nse to Pennsylvania's current regulation of personal ca re ho mes, Ho use Bill 193016 was introduced to the Penn­sylvania General Assembly o n Sep­tember 25 , 2000. The purpose of the bill is to "[p]rovid[e] for the li­censure and regulation of adult li v­ing reside nces; confe rring power and duties o n the Depa rtme nt of Public We lfare; and providing for pe na lti es. ";7

Acknowledging th e ra pid growth of the assisted living indus­try in Pennsylvania , HB 1930 rec­ognizes that "[i]t is in the best inte r­est o f all Pennsylvanians that a sys­t m of licensure and regulation be established for assisted living res i­de nces .... "18 The bill adds a second level of ca re ava il ab le to e lde rl y who are not yet in need of nursing home ca re . In addition to th e li ce ns ure of p e rso na l care ho mes, th e bill now de fines and e ncom passes "ass isted li ving, "w "ass isted I ivi ng reside nce , "60 and "ass isted li ving se rvices."61 "Per­sonal care homes," in the ir current form, are re legated to a "Categoty I license," while the newly defined "assisted li ving residences" receive "Categ01y Il licens[ureJ."

nfo rtunately, this bill is o nly a starting po int for the successful d -velopment of assisted living facili­ties in Pennsylvania . Although the it prov ides basic definitions of as-isted living 'e rvices, the bill sta lls

30 Juns Spnng 2001

when it mere ly indicates that the "departme nt [of Human Welfare) shall promulgate rules and regula­tions fo r adult living residences ... " 62 The introduction of HB 1930 presents two challenges to the de­ve lopment of substantial improve­ment. First the bill needs to be­come law. Second, even if it be­comes law, th bill requires subse­quent rules and regulations .

niform standards must be devel­oped in order for assisted living ser­vic s to maximize potential benefits to the elde rly population throughout Pennsylvania, not to mention the rest of the countty. Although the re re­mains no consensus as to what this standard should include, a collabo­ration I erween legi Ia tors and indus­tty leaders may spark the necessaty changes. The long-term hea lth care options ava ilable to seniors ca nnot remain disjointed and inconsistent; as th e "Baby Boomer" ge ne ratio n reaches retirement-age, addressing the issues surrounding assisted living care will become essential to legisla­tors, indu tty leaders, and the elderly population. Because long te rm care insurance and long te rm ca re pro­vider tax cuts are at a fledgling level of de ve lo pme nt , the childre n of today's seniors may not be abl to effectively provide for the long-term care of the i.r parents without assisted li ving services. Re liable and consis­tent assistedlivi.ng services must be­come ava ilable to the elderl y popu­lation in o rder to align ava ilable care with long te rm needs. #-.....

Brad M. Rostolsky is a second year day student. He has a Masters in Health Care Policy from Em01y University and is a member of Law Review (Associate Recent Decision Edit01), the Trial Moot Court Honor Society, and the Health Care Law Society.

ENDNOTES Natio 11al Study of Assisted Living for tbe Frail Elderly, L!TEHATLIHE R EVIEW UP­

DATE (O ffi ce o f the Assistant Secretary for Planning and Eva luatio n , Admin­istrat ion o n Aging, U.S. Department o f H ea lth and Human Servi es) , Feb.

1996, at 1- 1. Uetwcen 1990 .tnd 10.10. lh(: lJ.!-1 . cllkrly popu brion i' cxpettl.'d to douhlc to .1 tut.ll of (>:; million peopl~ . an estilll:IIL'd ~ .j million Of whom will ht: rr:u! elderly . CO'!" ol nur..,ing home em: for lht" cldcrl ) . both 111 puhlic Jnd ouH>f-pocket costs. ~trc c~timated to gn)\\ to more than ~ 1 00 million an nu:dly hy 2020 . The ~peda l com­bination of hou-.ing ~tnd :-.uppnrtive :.ervin: '> th :tt char­.ICIL'rize :tssbtcd It\ ing '" idc..:nllficd with 1--!fC..: ~Her inclt:­pt::ndt..'nce :1nd dignity lo r the fr.til elderly and b bring ing the.: nc..:dgling assisted living indu-.try (() nationa l .lt­

IL"ntion. OcGtU'>e of th uniquL' ph) ... ic.:.tl ;tnd philo.-.ophi­cal Lhar:u..: ten.-.ttl" , as:-.btL•d living m.ty he .t preferred living option for the.: fr:lil elderly ,tntl. :11 le; t.'.l for MllllL'

- - '' lcs-, expen-,ive altcrnati\ e to nur..,ing humcs.

2 let, at 14. These estimates are extrapo­lated from the data o f a 1993 survey that included data from ten states. The study's reference to "res idential ca re home'· includes any facili ty embraced by the term "board and ca re" home. T herefo re, te rm " res id e n t ial ca re ho me" refl ects a broader mea ning than that usuall y associated w ith "as­sisted living fa cility."

3 Catherine Hawes, at 14. 4 A Na tional Stuc"y qfAssisted Living j 'or

tbe Frail t:lder(y- Results of a National Survey of Fctcililies (Myers Resea rch Institute I U.S. Deparrment of I lea lth and Human Services), Dec. 14, 1997, Ca therine I Iawes, at 12.

'5 The criti ca l differences between ser­v ices o ffered throughout the nited States are heightened by similar dis­pa rities with in the states themselves.

6 In the context of hea lth care services, specifica ll y those ava ilable to the eld­erl y population , it is criti ca l to include with in th e definitio n o f "consumer" the elderl y population for w hich the hea lth ca re service is provided, as well as to incl ude that po pulation's chil ­dren and care-takers; Fami ly members often incur the responsibility of in­vest iga ting and paying for long term hea lth ca re serv ice The fai lure to provide info rmation relating to long­term ca re optio ns to either of th ese gro ups wi ll thwa rt the ability of the elderl y population to take full advan­tage of many viable lo ng term ca re options.

7 National Study q/ Assisted Livi11g, at 2-2 - 2-4. The following definitions are those of fo rmal associations that focus on the long term hea lth ca re needs of the elderl y population: American Association of Homes and Services for the Aging (AAHSA) - A..,-.i.,ted living b .1 progr.tm th:tt provide:-. and or :lrrangL'" for tht• pro\'i'>tOn o l d;ail) me~d-.. pcr~on.tl .tnd other .-.upponivc ~en icc:-. , la:;tlth care. ;.tn<.l 24 hour over..,ight to pt·rson.., re ... iding in :1 group n.:~identi:tl faci lit ) '' hu llL'L'd a..,.,,sl.l!Kt: w il h .K·

ti\ltlc.., ol cbily ltving .u1t.l in:o.trument:tl alii\ itil•-, of tLtil) living. It b char.1c terized by a philo~oph) of :,L•rvit·L· prm-i ... ion that b. con:-.umcr d ri ven, ncxible. mdt\ tdu:tl ­ized ;tnd ma;... imiLe:, con-,umer independence. c-1\(>in·.

priv::tq and dignity

Assisted Living Facilities Association of America ( AtFAA >- A:,-..-.ted ll \lng • ., ;I "1)('0:11 umthination ol housing, supportt vc..: ~L·nr in·s. pl·r-,on:tli zed :t'>S1M<tt1le and hea lth ca re de~igncd to rc!>tpond to the indi\ idual neL~tb of those \VIm need htlp in ;Ktl\ tilL'" of <.Lu ly li\-­ing. Suppnrttn:- -,cnKc~ .trc .n.ubhle, 2 t hour.-. .1 d.t) . to nlt.·l!t !>tChcdukd and unM:hcdlllcd need .... , in :1 W:l)

that promotes m~tximum mdependencc ~tnd digntty for each re .... ident ;tnd L"n t:ouragl'" the invoh ement of ;I

re~ident'~ family, neighbors, and fric.!nd.-.

American Association of Retired Persons (AARJ>) - \A] grouporcongreg.tte li\ ing :trrangcmcnb lh~t t pm' 1de room Jnd hoard a:, \H.'II :t:, .:-.ocia l ;and recseo.nional opportunitit.!.-.; ao;sista ncc to re.-,klents who need help\\ ith IX'rson~l l need-. ;tnd 111L"<.Iication~; :t\ aibhility of protective on~r.ight or 1110111-

toring: and help around tht: dock ~mel on an un~chcduled basis.

US DepartmenL of Housing and Urban Development (HUD)- A~!>iMcd living mean!) a public facility, propri­etary facility, or f~aci l ity of a priv~atc nonprofit corporation that is u:,ed for the tare of the frail elderly, and that:

I Is Jicen!tl:d and regulated by the sta te if there is no ::.tate law providing for !oUCh Jiccn:,ing ~a nd regulation by the state, hy the municipality or other political ~ulxl i vi­

::.ion in which the f:aci lily is locmed;

2. !\-lake::. ;wa ilahh: to rc::.idcm:, Mlpponive :.crvices to as.<;ist the residents m carrying out activities of daily Jiv­ing .

3. Pro,·ide::. ... cparnte dwelling units for residenb .

'\ational Academy of State l lealth Policy (NA'iHP)­\/ASHPdeclined to provide one concbe definition of tt:.­

..,isiCd living.

8 !d, at 2-4 - 2-5. The following defini ­tions are those of assisted living re­searches and experts: Rosalie A. Kane - A-,sbted living i~ a any group residen­lial program that b llQllicenscd as a nup.,mg home, that provide:-. per ... onal care to pcr:,on:-. with need for a:,~b­

tance in the acti\ ities of daily living (ADL). and that can rc::.pond to unscheduled need for assistance tha t might ari:-te.

Donna Ycc - A~~iMed llv1ng b d~fined ... a::. ·program.:. that offer congregate hou: .. ing and ... upportive ... crvicc.., with explicit or impli<.'il commitment to re~pond to tndi­vidual prcferenc.·e~ for hdp with health-em.· .1ccc~::.. per­...on;tl care and hou<;ehold maintenance.·

joann Hyde - A~~isted living is a service-rich re:,identi::ll environmental dt:~ignt'd to enable ind i vidu:1 l~ with a range of capahili t ie~ . dis~t hilities . fr.1iltie~ and :, trt'ngth~ to rc­::.ide in a homelike setting a.., long as po::.sihle.

9 !d, at 2-5- 2-9 . The fo llowing clefi11i ­tions are those presented in va rious magazines and news publica tions: Wall Street journal - A new style of hou:o;ing for frai l eld~rly people who don't have serious medical problems.

New York Times - Residents live independent ly . while recei,ing 24-hour supervision, as~bt<mce in daily livmg. meals, hou~ekecping. trnnspon.:nion . and recre­ational programmmg. J\·linimum health care or nur::.ing a~i~wnce b provided as needed.

N<.-w York Tim<.--s - llotel :,tyle renwl pro]CCt for elderly people who may need help with d:tily chores hut do not need consr:tnt medic:tl c:tre.

Washington Post - 13ed and breakfast like home~ pro-­vide ~enior citizen::. with ~hared or private apartments. meals in a communal dining room, daily hou:,t'keeping 'crviccs and limited mcdic-dl care.

PR Ncwswirc - A..,~istt . .'d living i:; an altcm~Hi\e Jifesr)·le for individual.., not rcx 1uiring the medical ... urrounding~ of nursing home c~m"!.

10 Ca therine Haw es, at 4. l1 !d, at :13.

Other than nur ... ing home::., the mo~t common form of residential ">Citing with services for rx:oplc with di:,abili­tic~ b the entiry generically known a~ 'board and care' homes .... llln gt.•ner.:tl. "hoard and c:~reH refer... to non­medical community-based re~idcntiaJ . ..,ctting::. tha t house two or more unrcl~ttcd adu lts and provide some ~erv i c.:e:,

such as meals. mcdic:Hion supervision or reminders, or­g:tnized acti\'itie..,, tran~ponation, or help with bathing, drc!JSing. :md other .tctivities of daily living

l 2/d, at 13. 13Aiabama. 14Aiaska . l 5Arkansas. 16Colo rado. 171claho. 18lllino is. 19Pennsylvania. 20Assisted Living State RegttlatOJy Review

2000, (Na tional Center fo r Ass isted Li ving), at 1.

21Review 2000, at 2. 22 /d, at 5. 23/d, at 8. 24 /d, at 16. 25Review 2000, at 17.

26!cl, at 54. 27 lei, at i-ii 28Jd, at 1. 29Review 2000, at 2. 30 /d, at 5. 3l!d, at 8. 32!cl, at 16. 33Review 2000, at 17. 34/d, at 55. 35Jd, at 1. 36/d, at 2-3. 37Review 2000, at 5. 38/d, at 8. 39!d, at 16. 40/d, at 17. 41Review 2000, at 55. 42 /d, ar 15. 43 /d, at 17. Furthermore, the Myers

Resea rch Institute suggests that "the degree to which this model predomi­nates in the industry is unknown. " !d.

44Ca therine Haw es at 19. Specifica ll y, "30 states had passed legislation o r issued regulations, and 22 states had licensing regulations using the term 'ass isted living."' Additi onall y , "35 states [as o f 1998] reimburse o r plan to reimburse services in assisted liv­ing or board and ca re facilities as a Medica id-covered serv ice ."

45/d, at 19. For example, the state could specifica lly require " that assisted l iv­ing facilities provide apartments with kitchens." Exemplifying resulting dis­crepancies in the facilities, bedrooms can range from single bed/ private full bath (4 2%) to semi -private bed/ 4 people share a _ bath (8%). Regula­tions that d isregard environmental fea ­tures do not focus on privacy issues; problems with res ident pri vacy can certainl y result in an unsa tisfacto ry living experience.

46/d. Some stares choose to only regu­late the servic component. This al­lows for a potentiall y large inequality between fac ilities across the states. Although this disparity may remain unno ti cea ble between fac ilities in Texas and Pennsylvania , the dispar­ity would be of potentiall y grea t con­cern when comparing facilities nea r the border between two states.

47 /d . Through the employment of cost­effectiveness studies, states have at­tempted to include additional long­term ca re services w ithin assisted li v­in g fac iliti es. So me sta tes have "crea t[ed] new li censure ca tegori es and expancl[ecl] Medica id waiver pro­grams" to include coverage of these additional services.

48"Aging in place" refers to allowing a senior to continue th rough the aging process throughout the provision o f lo ng- term ca re. Although nursing homes are adept at providing the ad­ditional services that some ass isted li ving facilities may begin to provide, a nursing home provides a more in­stitutionalized and regimented atmo­sphere than assisted living faciliti es.

49 /d, at i-ii .

50Ca therine Hawes, at 17. 51 A National Study of Assisted Livingf or

the Fra il Elderly - Report on In -Depth Interviews witb Develop ers(The Lewin Group I Administrati on on Ag ing), Barbara B. Manard , Dec. 1997, at 9-11.

52Barbara B. Manard , at 11-13. 53/cl, at 13-14. 5455 Pa. Code + 2620. 55State Assisted Living Policy: I998(U.

Department o f Hea lth and Human Serv ices), june 1998, at 119. The er­vice and scope o f ca re provided in a personal ca re home and the admis­sio n/ discharge requirements have been detailed above. The sta ffing and training requirements are fairly com­prehensive and require, in pan , that administrato rs complete 40 hours o f D epartm ent o f Human Welfare ap­proved training in areas such as firsr aiel, fire prevention, personal hygiene, nutrition, and financial record keep­ing and budgeting. State Assisted Liv­ing Policy, at 11 9 .

561-l .B . 1930, Session of 1999, General Assembly o f Pennsylvania, P.N. 3907, Sept. 25, 2000

571-1 .8 . 1930. 58 /d. 59/d.

Assisted Living - Activities as determined and se lf-clirectecl by a consumer o r by a lega l representative that permit and assist the consumer to live in a community, including such housing assistance or residency in an assisted li ving residence that permits the con­sumer to safely be supported in a res i­dence in which the consumer's inde­pendence, dignity and ability to make cho ices are maintained, to the extent of the consumer's capabilities.

60 /d. Ao.;sistcd living residence- A residenu~ll sening that.

( I ) Orfcr::.. prm ides or coord i nate~ :a comhin:ttion of pcr­~on:.al cart.· scrvi<.·cs. rc<.Tcation and social :JCtivit ic~. 24-hour supervision and a ... ::.bted Jiving ... ervicc:,, whether ~chcdulcd or unscheduled and that coordin::uc::. other health rela ted services for con::.umcrs.

(2) Ita.., .1 ~upponive ~crvice pmgnam and phy~ical cm•i­ronment dc::.igned to :~o:ommodate changing neecl., :tnd prcfcrcm:c::..

(3) 1-i a~ an organized mb:-..ion. ~ervicc program.s ~tnd ;t

physica l environment designed to maximize consumer dignity, autonomy, privacy and independence and ~.;.•n cour:tgc~ family and community uwoh·ement.

(<1) Pro\'idcs that COMS for hou~ing and sen ice::. art· andt'­pcndcnt of one anolitcr :tnd that provide::. conMintcrs with the ah1hty to choose lhelf st"rvice provider and the scr· v1ce::. to ht: provided.

(5) !Ia~ :t goal or fostering :.tging in place and promot in~ con~umcr self-direction :md active JXH1idpation in dcci­~ion making while cmpha:-.izing con~umcr privacy ;.tnd dignity.

6 1 1-l .B. 1930. A~bted living ~crvice::. - A c.:omhin~ttion of .,uppont\'e ...ervices, personal care services, personalized assist:ance :,ervicc:,, ;astoistive tcc.:hnulo~y and hca lth-rcl:ttcd ::.en icc:-­dc~i~natcd to re~pond to the individual need~ of con­sumer~ who need :1~sbtanc.·e with activitie.., of d:tily living and in:,trumcnt.al activitic::. of daily living. The term~ in­cludes (sic! publicly funded home-based and community based services avaibble through the medical :t'l!'liMance program and the Federal Medic:1id \'\':thcr Pmgr:•m and ~t:lle-funded option!> for homc-ba:,ed and communaty­ha:-.ed sen'iccs funded through the Department of Aging and the Depanmcnt of Public Welfare.

62 /d .

Juns I Spnng 2001 31

32 Juris I Spnng 2001

Preview: The Cyril H. Wecht Institute Of Forensic Science & The Law

BY: DEBORAH L. KUTZAVITCH AND N. 5. KOERBEL

T HIS ARTICLE IS BASED 0 I TERVIEWS WITH DR.

Cyril H. Wecht and Duquesne University

& School of Law Associate Dean John T. Rago, assorted material from the October 2000 Forensic

Science & The ww Conference held at Duquesne Univer'­

sity and additional outside sources. ]URIS would like to extend special thanks to Dr. Frederick W. Fochttnan,

Director and ChiefToxicologist, Allegh­eny County Coroner's Office, Forensic Labo rato ry Div is ion , Jose ph T. Dominick, Chief Deputy Coroner of Allegheny County, and the ir respec­tive staffs for the ir time and assis­tance in completing this atticle and in o bta inin g th e acco mpanyin g photographs.

Introduction

Over the past several decades, inte res t in fo re ns ics has bee n heighte ned by a phenomenal com­bination of events- the utilizatio n and applica tion o f D A testing in th e ea rl y 1980 ' , th e inc reased broadcast of te levision series and movies dea ling with fo re nsic sci­ence, the ava ilabili ty of books, both fi cti o n a nd no n-fi cti o n , w ritte n about the O .J . trial, the Jo n benet Ramsey case, a nd o th e r famo us cases, the advent of new techno lo­gies - all have he lped spur a dra­matic increase in forensic scie nce. "Yo u take any given clay o r period of time, and you look at news me­dia repo rts of what's happening in the world , and you will find refe r­ences directly and indirectly to the

fore nsic sciences," Dr. Wecht to ld JURIS.

The re is an "incredible desire fo r people to kn ow mo re abo ut fo re n s ics, " sa id Dr. Wec ht , "people ca nno t eem to get the ir fill- they a re co nsta ntl y ca lling and writing to inquire abo ut the prog ra ms ava il a bl e co nce rnin g fo re ns ics. The refore, th e need to e du ca te p eo pl e to wo rk in the fi e ld is rea II y ve ry grea t, a ncl the re are insufficie nt numbe rs o f people who are pro pe rl y trained. "

Currently, there's vety little fo r­mal training in the area of forensic science, especially not once people have gone out into the ir respective fie lds, sa id As ociate Dea n Jo hn T. Raga, but cettainly not at the under­graduate or graduate level. Forensic science is gaining widespread ace p­ta nee and suppott in the legal com­munity for its ability to he lp illumi­nate complex lega l issues and its ca­pacity to uncover va luable pieces of evidence.

Duquesne has stepped to the fo re fro nt o f th e fore ns ic science and the law mo veme nt by es tab­lishing The Cyril H . Wecht Insti -

tute o f Fo rensic Scie nce & the Law - a o ne-of-a-kind e ndeavor tha t will o ffe r an e leve n-mo nth Insti­tute Certifica te Program beginning this fall . Al so sta rting this fa ll is a five-yea r program tha t will e nable stud ents to ea rn a Maste r of ci­ence degree in Fo re nsic Scie nce & Law. The mas te rs progra m is closely affiliated with the Institute , and eventu a ll y the Institute pl a ns to be involved w ith maste rs pro­grams at Duq uesne re lated to fo­re ns ic s tudi es in re la te d a reas such as nursing , psyc ho logy , and pharmacy, amo ng o the rs.

amed fo r Dr. Cyril H . Wecht , Allegheny County Coro ner, world­re nown patho log ist a nd adjunct professor o f Law at Duquesne , th e Institute is d s ig ne d to ide nt ify new methods and app roaches fo r achieving civil and c rimina l justice thr o u g h a n inte rdi sc iplin a ry a pproach . Wh a t is p a rti c ul a rl y uniqu e abo ut the Institute is that it enco urages a collective u ncle r­standing o f what scie nce ca n do and ho w th e va rio us pro fess io ns who meet at the juncture o f fo re n­sic science and the law ca n he lp each o th e r. Dr. Wecht sees the In­stitute as a go lde n o ppo rtunity fo r Duquesne , Pittsburgh and the sur­ro unding a rea to ca pita lize o n th e c ritica l need for tra ined profes­s io na ls in fo re nsic scie nce and th e law .

"The Unive rs ity gene ra ll y, and the law school spec ifi ca lly, have recogni zed that th e level of tra in­in g and acade mi c o ppo rtuniti es fo r understanding fo rensic science

Juns 1 Spnng 2001 33

I

in a va rie ty of discipline just pla in doesn 't ex is t ," said Dea n Hago . " o twithstanding the tremendo us ta lent that this reg io n has in the sciences, in law and in law enforce­me nt , w e've neve r put it a ll to­gethe r. It 's not a small e ffo rt to be­gin that process. "

Rago I elieves that the characte r of the institution and the quality of th e peo pl e invo lved , led by Dr. Wecht and the people he 'll bring to the Institute, will a llow Duquesne to make an immediate and substan­tial impac t o n the applica ti on o f sciences and to criminal and civil proceedings, at least from the po int of view of lawyers. "There 's prob­ably other applications out there that we 're not even thinking abo ut right now ," Rago sa id, "but we think we need to begin that discussion. We have all the tools that we need. "

The Forensic Science & The law Conference -October 2000

The idea for the Institute o rigi­nated w ith Dr. Wecht just over a year ago. "We rea lly started talking in earnest about the Institute last March," sa id Dean Hago, so just to test the wate r we he ld the fall Con­ference, and the response was over­whelming, to say the least. "

Spo nsored by Duquesne Univer­s ity and co-spo nsored by the Al­legh ny County Coro ner's Office, th e All eg h e ny Co unty Dis tri c t Attorney's Office , th All egh e ny County Public De fende r's Offi ce and the Pittsburgh Institute o f Lega l Medicine , the October 2000 FoTen­sic Science & Tbe Law Confemnce was held over two days and was by all accounts a great success . Co n­ference facul ty was composed of a cast o f medical and legal luminaries including Leslie Abramson, Esq. , Mi c hae l Bad e n , M.D. , J o hnni e Cochran, Esq. , Dr. Henry Lee, Barry Sc hec k, Es q . a nd Dr. Mi ch ae l Weine r. Dean Hago said the Insti­tute will like ly build a strong CLE se ries a ro und co ntinu ed annu a l confe rences of this ca libe r.

34 Jur~s Sprmg 2001

Forensic Science: A Brief History

The origins of forensic science date back to the 6'11 century Chi­ne e docto r, Hsu Chich'Ts' si, who wrote a trea tise on the subject o f legal medicine . Othe r pro minent figures in the field of legal medi­c ine include Alpho nse Be rtillo n , who deve loped the system of an­thropometiy , a system o f personal identificatio n based on a e ries of body measurements, and William Hersche l and Henry Fauld , whose early efforts led to the employment o f fingerprints as a pe rsonal identi­fi ca tion devi ce. Au g ust Vo llm r, chief of po lice in Berkeley, Ca lifo r­nia , set up the first laboratoty in a po li ce de partme nt in the United States in 1923, and Edward Oscar Heinrich and Dr. Paul L. Kirk, fos­te red the development of academic programs and crime labo rato ries.'

According to Dr. Mi chae l M. Baden , Fo rensic Pa tho logist and Director, Fo re nsic Sc ie nce Unit ,

ew York State Police , it wasn 't until the 19'11 centwy that fo rensic science "first rea red its inte lligent head - and it w as a t Ha rvard , a ro und 1840." The most famo us crime of the day was the murder of Dr. Parkman, a professor at Hatvard who was kill ed by another Ha1vard pro fessor, Dr. Web te r the chemis­try de pa rtm e nt. "The case was solved beca use th ey fo und frag­ments of teeth and jawbo ne in Dr. Webste r's che mistry kiln that were ide ntified by Parkma n's de nti st," Baden to ld the audience during hi presentation at last October's Con­ference.

Jumping ahead to England in 1888, Baden next discussed the fa­mo us Jack the Hipper case, which he compared to the 0 . ]. Simpson case "beca use it raised conscious­ness and awareness of the deficien­cies in the criminal justice system. " Marie Ke lley, Jack the Hipper's last victim , was brutally murdered -he r abdo me n was cut o pen , and half a kidney was removed and sent to the London Museum. Autho rities

felt it had to be a doctor o r a butcher who did it- somebody who knew how to cut people o pen -but the murd er we nt unsolved . Qu een Vi cto ria was very upset with this state of affairs, and it was an em­barrassment fo r the London police. But the failure to solve Jack the Rip­pe r led to the develo pment of a s pec ia li zed fo rce in Lo nd o n for homicide inve tiga tion - the detec­tive squ ads began -up until that po int the cop o n the beat did every­thing, Bad n said . It also led to the d ve lopment of the first real foren­sic pathologist devoted to th crimi­nal ju tice system.

Again jumping ahead , according to Baden , ther was "more atten­tio n paid to motive , to opportunity, to trace evidence, to the crime lab," during the seventies and e ighties. "D A bro ught a big explosion to the value of trace evidence in the fo re nsic sciences around 1989, and then the Simpson case happened in 1994," Baden sa id . "If you had to look at the silver lining to the OJ case," comme nted Dean Raga, "it rea lly brought to life how forensic scie nce works and po pulari zed it and made it a part of our culture. "

Challenges in the Practice and Application of Forensic Science

In prac tice , fo re ns ic sc ie nce draw s upo n th e prin c ipl es and methods of all the trad itional sci­ences, such as physics, biology and chemistry. Yet there are important diffe rences be tween forensic sci­ence and the traditiona l sciences, due to the fact that forensic science

has some unique objectives, such as using evidence to prove a person', guilt o r innocence, and to its con­tinuous and neces a ry inte raction with the lega l system. 2

Unfortunate ly, this inte raction is often marked by conflict, misunder­standing, and sometimes - o utright hostility. Robert K. Tanenbaum, former Chief Assistant District At­torney in both Los Angeles and New York, told attendees at the October Conference that the relationship that exists between medical examiner and prosecutor is often strained and gov­ern d by political agendas. Ald1ough d1ey should be working for a com­mon goa l, finding d1e truth, prosecu­tor and medica l examine rs often function as "two independent nti­ties- not a team" said Tanenbaum.

The Institute , du,ough its interdis­clipinaty approach to these problem , will provide an ongoing forum for both sides to address the ir disagr e­ments ove r the issues. Dea n Raga sees the Institute as a forum for he lp­ing to resolve some of d1e traditional conflicts between docto rs and law­yers, "a lthough you never r ally will quite e liminate the battle between the expe tts," he sa id , "to a large ex­tent this puts experts on the sa me page. You will be eliminating a lot o f th e nega tiv e as p ec ts of the adversa rial proceeding."

Another significant problem in the field of forensic science is lack of training. Dr. WIcht believes that the role of the forensic scientist is clea r-"the professiona l mu st be highly skilled in applying the prin­ci ples of a variety of disciplines, in­cluding both the physica l and natu­ral sciences, to tbe analysis of all types of evidence. "

In addressi ng why there a re so many mistakes in dea th penalty cases, Tanenbaum to ld the Confer­ence, most will be investigat d , as with President Ke nnedy , by pa ­d101ogists o r coro ners who hav no training to conduct that investiga­tion.

People say, "this ca n't ju l be the normal mistakes that are made ev-

ety day but they are the normal mis­ta kes th at a re m ade everyday, " Tanenbaum sa id , "the re 's a lo ng way to go in this countty to ed ucate the medical profession, let alo ne the public, as to the proper ab ility to determine causes of death , co li ct trace evidence, to look for trace evi­dence . . . autopsys are being done mostl y by non-fo re ns ic patho lo­g ists-there is great loss of ev i­dence."

This lack of consistent tra ining extends to other medica l profes­sionals and to law enforcement, a well. "Certain hosp ita ls shy away from wanting their staff, particularly in the emergency rooms, to get in­valved in this sort of thing, because they're mo re focused o n treatment. And I think, as a practical matte r, they do n't want to be dragged into

any litiga tion , whether it's criminal or civil ," Dean Raga toldJUH.IS, "but the rea lity is that hospital are at d1e juncture of that event and they need to be info rmed of what they ca n be doing to he lp us - to h lp all of us.,

"Law enforcement suffe rs with the sa me deficiencies - there are many wonderful cops out there but they' re not aware o f investiga tion techniques that continue to unfold , panicula rl y in the fo rensic science a rea, " Hago continued , "certainly they're awa re of custodial issues, chain of custody and the like. But maybe th ey ca n use re fr es he r course on crime scene processing or crime scene reconstructio n o r certain evidentiary issues with re­spect to how to mainta in o r dis­cover or develo p certa in evidence

Introductory remarks of Geraldo Rivera to the October, 2000 Forensic Science & The Law Conference:

I've known Cyril Wecht for most of my 30-year broadcasting career, and my respect for him has only grown over the decades. His skills as an attorney, as a pa­thologist, as a medical examiner are legendary, and it is all to­gether appropriate, I think, that Duquesne University is recogniz­ing his vast contributions by dedicating its new Institute of Forensic Science and the Law in Cyril 's honor.

Dr. Wecht has guided my au­diences through our coverage of crimes ranging from the Kennedy assassination, to the O.J. Simpson trial , to the Jonbenet Ramsey murder mystery. And whether or not my audiences knew it, they were getting an education info­rensic science-a lesson in how medical science is applied to this country's criminal laws.

Unlike most other expert tes­timony, which has the disturbing tendency, I think, to favor the side paying the expert's bill , forensic science removes much of the bought and paid-for opinion, ex­changing it often for hard, harsh,

objective scientific fact . Of course, the findings are a lot more reliable when someone like Cyril Wecht is doing the re­search . But without a doubt, the ever-evolving , ever-improving field of forensic science is a key factor in the administration of justice in deciding guilt or inno­cence, in deciding even who lives or who dies.

As Dr. Wecht has said, the fu­ture has arrived for forensic sci­ence, but the problem is the lack of enough professionals-true professionals-people with the skills, the energy, and the imagi­nation to integrate the modern day high-tech knowledge in sci­ence and medicine with tradi ­tional Sherlock-Holmesian intu­ition . Duquesne University School of Law's new Institute of Forensic Science and the Law marks, I think, a giant step to­ward that necessary and very important goal. I congratulate Dr. Cyril Wecht, the University and everyone involved in this very invaluable endeavor.

Juns ISpr>ng 2001 35

or on profiling in the area o f fo ren­sic psychiatry. "

A pe rfect exa mpl e o f just such a s itu ati on wo uld be th e so rt o f work that Pennsylva nia Senate Bill 589 , whi ch provides fo r post-con­victi o n D NA tes tin g, w o uld re­quire o f loca l di s tri ct a tto rn eys and po li ce de pa rtm e nts if it be­comes law . As technologi es be­co me mo re advanced and these kinds of laws become more popu­lar, bo th prosecutors and po li ce will need to re vis it whose respon­s ibility it is to ma inta in certain evidence, how lo ng that evide nce ho uld be ke pt and in wha t fas h­

ion, Pennsylvania eatorJay Costa to ld JURIS. The Ins titute is de ­signed to provide practi cal tra in­ing with respect to th se kinds o f issues in additio n to crea ting a fo­rum for o pe n discussion amo ng all parties in volved : po lice o ffi cers , prosecutors, and de fense counse l.

Acco rdin g to Ba rry Sc he ck , the re a re so me 300 ,000 kit on she lves nati o n w id e that conta in phys ica l evidence o f o ne sort o r anothe r that, theore tica lly, was not e ffective ly used in a crimina 1 tri al. "The qu esti o n ," sa ys Rago , "is w hat me th o ds a re we go ing to empl oy to get to those? It 's not a matte r of how do we ge t to the evidence , tho ugh in some cases it is , but how do we de te rmine what cases to pursue? Whether it 's wo rk

'6 Juns Spnng 2001

thro ugh the Innocence Pro ject o r priv a te counse l re prese ntin g someone in a post-convictio n pe­titi on , you have to ask yourself, wh at c rite ri a am sho uld I fo llo w before 1 ca n pe rsuad e a judge? Or if you 're the court , w hat crite ri a do I follow to authori ze this kind o f actio n? Wh at rights exist?"

If You Build It They Will Come

The Institute has stirred unprec­ed ented e nthus iasm bo th loca ll y and natio nally, in the fo re nsic sc i­e nce community and beyond . "I think the most re ma rkable thing abo ut it was that w ithin ho urs of put­ting the fi ve-yea r program on line they we re admitting people. Within hours! And I do n't know what the enro llment is but I unde rstand it's pretty robust," sa id Dea n Rago. The Law School i in a unique positio n to ho use the Institute as a result of Duquesne's long-standing rela tion­ship with Dr. Wecht and the strength o f its practice in tria l advocacy.

Dr. Wecht' visio n fo r the Insti­tute encompasses two distinct pro­grams-a certifica te program and a mas t rs program . The certificate program is designed for those incli ­viduals who are active in a particu­lar professio nal fie ld , ithe r directl y

o r tangentia lly related to medicine. Dr. Wecht is pa rti cul a rly excited abo ut Duq uesne's crea tio n o f the fiv -yea r entty level program for a Master of Science in Forensic Science & Law which begins this fa ll.

M mbers o f The Institu te's Advi­so ry Boa rd in c lud e pro min e nt crimina lists , lawyers and docto rs, including Henty C. Lee, Criminalist and Directo r of the Connecticut tate Po lice Forensic Science Laborato ty , Bany C. Scheck, professor of law and a uth o r, a nd Dr. Mi cha 1 We in e r, Chairman of The Forensic Pane l and professor of psychiatty in ew York.

The Certificate Program

The e leven-month Institute Cer­tifica te Program is basicall y a five­module program that a sub cribe r ca n ente r at any po int. Admis ions are ro lling and each module w ill trea t a particular inte rest. Though it w ill no t lead to licensure of any kind , Rago to ld JURIS, it will certa inly pro­vide an adva ntage to panicipa nts be­ca use they will be exposed to things, such as witnessing lab testing o r se­rology, that the ir peers haven't seen. Recruiting for the Certifica te program w ill begin in mid April , w ith a target e nro llment o f fo rty. Respo nse has been vety strong, said Rago, the Law

~-------------------------~ ......

School has received over 600 inquir­ies so fa r.

Dr. Wecht be lieves the Institute Certifica te Program will attract ca n­didates interested in purs uing ca­reers as law e nfo rcement o fficers, nurses, atto rney · (practic ing in the a reas of pe rsona l injury , de fe nse a nd c rimin a l la w) , p rosecuto rs , crime scene investiga to rs , judges, counselo rs and re lated pro fess io n­als wo rking fo r rape and drug abuse cente rs , ph ys ic ian s (w o rking in e m e rge n cy room s a nd tra uma units), and th ose ge ne ra ll y inte r­ested in expanding the ir kno wledge in this exciting and growing fi e ld .

The two largest po te ntia l g roups o f like ly p ros pects fo r the certifi ­cate p rogram include Jaw e nfo rce­me nt officers and nurses. Law e n­fo rceme nt o ffi cers a re mo re a nd mo re expected to recognize , ide n­tify , pro pe rl y preserve and collect fo re ns ic scie ntific e vide nce even tho ug h they a re no t ho micide o r rape de tecti ves. Furthe r, a younger law e nfo rceme nt o ffi cer w ho can include a recognized certificate in fo re ns ic sci nee o n his o r he r re­sume is a mo re attractive candidate fo r pro mo tion .

urses have become mo re and mo re involved in the justice syste m o n the civil s ide , including work­ing fo r pe rsona l injury firms , a nd o n the criminal side wo rking fo r the public de fe nde r's offi ce, prosecuto r o ffi ces and firms p roviding c rimina l defe nse wo rk. Obtaining a certifi­ca te in for nsic science will make the m mo re suitable, attracti ve ca n­didates, expand the ir ho rizons and broa d e n th e ir kn o wl e d ge. Of course, two o the r po te ntia l pools o f ca ndid a tes in c lud e c ivil a nd c riminal atto rneys and phys ic ians.

"In my opinio n ," sa id Rago, the biggest a ttractio n o f the Institute Certifica te program is tha t it w ill o f­fe r profess io nals the o pportunity to s it clo wn with o the r pro fessio na ls w ho handle the sa me crisi and the sa me injured parties , in bo th a civil and criminal context. Right no w , we do n 't communi ca te with o ne an-

o the r, w e do n 't unde rstand co llec­tively ho w cie nce can he lp a ll of us, not to benefit the governme nt o r to benefit the defense, o r the de­fe nda nt or the victim but just in o ur co llecti ve pursuit o f the truth . Sci­e nce is invaluable in that process, a nd the mo re we famili a ri ze o ne anothe r with what scie nce can d o , the sooner w e ca n begin to set up socie ties be tween o r amo ng us a nd start collabo rating. "

"These a re exc iting tim es if you're a practitio ner who has a littl understanding o f scie nce, a nd if you do n 't, tha t's what this Institute is desig ned to do. Tho ugh you may not wa nt to come and listen to a dis­cuss io n o f the fund ame nta ls of evi­de nce, whe n you 're ready to talk abo ut ballistic testing , o r blood test­ing , o r a nthro po logy, psychi a try, p sycho logy, a ll of the va rio us fo rms offo re nsic treatments, you may sub­scribe to com hea r lectures, e ithe r thro ug h the a nnua l se ries o r the sma lle r sess ions-this wiJI b an o p­po rtunity no t o nl y to liste n but to inte ract with o the rs . We pl an on bring ing in Scheck , Bade n , Lee, We ine r, and many othe rs serving o n the ad visory boa rd .

The Master of Science in Forensic Science & Law

"The MA program is lite ra ll y de­sig ned to g ive people fo rmal tra in­ing that they'd typica ll y get on the jo b ," sa id Rago. "Students who study in the Maste rs program will not o nly be sp ecificall y tra ined to work in va rio us fie lds , they will be in a po­s itio n to assume manageme nt ro les in fo re ns ic labo rato ries across the count1y . Having law pro fessors in­te racting with this truly makes it, to the best o f our knowledge, a one-o f­a-kind program in the country," sa id Rago. "Professor James E. Stan·s, o f George Washington Unive rs ity, has taught in this a rea for the bette r pan o f thiity yea rs. He has jo int appo int­ments with o ther graduate schools, but his law school doe not actively pa rticipate in the interdisciplinaiy ap­proach, so whe n he saw what we were do ing he said the law school has rea ll y come across something he re that is truly unique ."

"We need to nunure it-and we need to be dynamic in o ur nlllturing, we're stiJl in an e mbryonic stage be­cause of planning , but the Institute will spur aU so1ts of things," Rago sa id . "In additio n to giving people the tools that they need , we may be able to serve o ne way o r another as a think tank for legislators who want to come up with po licy with respect to the u e of this kind of evidence, because it's

Juns 1 Spnng 2001 37

notgoingtogoaway. TI1euseofDNA evidence is one thing, but what about the use of physical evidence gener­ally? What do you do with blood evi­dence that wasn't used at trial when there are later allegations that a sci­entific investigation could have been done? Can you work from photo­graphs? You have to look at all of the cases sitting there in inventoty now."

The Future

The third program to be in­volved with the Institute is a two­year masters degree program. "''m hopeful that the Un ivers ity does something with that within the next two years or less ," Raga to ld JURIS, "because there are people currently in law school with scie nce back­grounds who previously felt they were limited to pursuing a career in health care, but this is precisely what they want to do-they want to work in a lab-they want to work on in­vestigations."

"This Institute shou ld serve as an impetus, if nothing else, to other aca­demic developments institution wide, Raga said, "so if nursing comes on line with a graduate program or if psychology comes on line with a graduate program tied to forensics , and the law school can be a patt of that, we're excited about it. It's not a traditional use of law chool re­sources-it really does bring other cun·icu lums into the fold. "

"For the Law School curriculum," said Raga, "we will be introducing a forensic science and the law course. But our students won't be taking courses in the Institute. They can sit in, they can subscribe , but the courses won't be available to law stu­dents for academic credit. My hope for law students is that when this two year program comes on line, that it will be available to them as a joint­degree oppottunity because it would give our students another career op­tion that I guarantee you no other stu­dents are getting right now."

"With the right focus , the right funding and th right energy, I think Duquesne can be a leader in area

38 Jum I Spnng 2001

this almost instantly," Raga said, "be­cause of Dr. Wecht, the caliber of the people his name brings to tl1e pro­gram, the caliber of people here in the city, and tl1e level of interest tl1at we have as a University. Nursing, so­ciology , psychology, pharmacy, chemistty, biology, our environmen­tal sciences-all of these disciplines can coalesce-and we can really come up with sometl1ing that is spe­cial here. I fully suspect tl1at tl1e cur­riculum, much like our constitution,

is going to be a living document, and I think it will change as we get better at tl1is and furtl1er understand what we can do. A lot of folks are excited about it. "

Institute faculty will , of course, play an impo ttant role in providing a first-rate, quality program. Dr. Wecht is "very pleased and truly heanened by the fact that the faculty at Duquesne Law School have enthusi­astica lly embraced the program and voted to suppott it in every way. " Sev­eral of the full-time faculty members have already spent a considerable amount of time in attending meetings and developing th program. Dr. Wecht will also play a significant role in selecting Institute faculty for courses offered outside the Law

School. He has already reached out to and been in contact with local sci­entists , private attorneys, public health officials, law enforcement of­ficers and physicians to discuss po­tential faculty positions.

"In the months and years ahead, I am confident that the Institute will play a critical role .. . not only for the professional development of many individuals throughout the re­gion and beyond, but also in the criti­cal area of multidisciplinary scholar­ship that will inform us all of tl1e effi­cacy of this emerging force in the adn1inistration of justice," noted the Dean of Duquesne University School of Law, Nicholas P. Cafardi.

"We know we've got sometl1ing here and we know we've captured the right audience," said Raga, "no­body else will be able to do it the way Duquesne's going to do it."

E.:x:cerpts taken from the Septem­ber 25, 2000, and October 23, 2000, issues of The Duquesne University Times and the Executive Summa~y of The Institute 's Curriculum . ........_

Deborah L. Kutzavitch is a third-year evening student and Executive Editor of JURIS. She is a legal assistant with the Hillman Company.

N. S. Koerbel is a graduating.fourth-year evening student. She is Editor-in-Chief of JURIS and teaches legal and business writing at the University of Pittsburgh.

ENDNOTES 1 Peter R. DeForest, R. E. Gaensslen ,

Hen1y C. Lee, Forensic Science, An Introduction to Criminalistics 8-10 (1983). /d.at21.

Senate Bill No. 589 The Use Of Post-Conviction DNA Testing

Pennsylvania Begins To Respond

,. E ATE BILL 589 IS A STRONG I DICATIO OF THE FACT THAT PEN SYLVA IA IS RE­

' sponding to the use of physical evidence in a post -conviction setting. "In --- ..,.. light of what's taking place in Illinois and elsewhere," Pennsylvania Sena-tor]ay Costa, one of the sponsors ofBill589, told JURIS, "we must now recognize that technology has advanced to a point that it can clearly exonerate individuals

in a way that didn't exist fifteen or twenty years ago. " Senator Costa noted that support for Bill 589 was mostly strong at the public hearing held on March 26, 2001 , "provided that safeguards are in place" and "people are not able to test everything under the sun. " He expects to see some action on Bill 589, at least in

the form of a corrunittee vote, before the Senate's summer recess. The substance of Senate Bill589, as it was referred to Judiciary March 9, 2001 , appears below:

Senate Bill 589 proposes to amend Section 1. title 42 of the Pennsylvania Consolidated Statutes by adding section 9543.1. Postconviction DNA Testing.

(a) MOTION

(1) An individua l convicted of a crimina l offe nse in a court o f this Commo nwea lth , and w ho is serv­ing a te rm o f imprisonme nt o r awa iting exec uti o n beca u e of a sentence of death may apply by ma ki ng a w ritte n motio n to the se nte nc ing co urt fo r the pe rfo r­mance of fore nsic DNA testing o n specific evide nce.

(2) The evide nce may have been d iscovered e ithe r p rio r to o r after the appli ca nt 's con victi o n , a nd shall be ava il abl e for testing as o f the da te o f th e mo tio n. If the evi­dence was discovered prio r to the a ppli ca nt 's co nvicti o n , the ev i­de nce sha ll no t have bee n subject to the DNA testing req uested be-

ca use the techn o logy fo r test ing was not in ex iste nce at the time o f the tri a l, o r the applica nt's coun­se l d id not seek test ing at the time of t he tri a l, o r the a ppli ca nt 's counse l so ug ht funds fro m th e co urt to pay fo r the testing be­ca use his c li e nt was indigent and the court refused the req uest.

(b) NOTICE TO THE COMMONWEALTH

(1) pon receipt of such a motion, the cou rt sha ll no tify the Commo n­wea lth and affo rd it an o pportunity to respond to the motion .

(2) Once such a motio n, o r notice of such notion , is filed with the cou11 both the Commonwealth and the court hall take the steps reasonably

necessa1y to ensure that any remain­ing bio logica l material in the pos­sessio n of the Commonwealth or the co urt is preserved pe nding the completio n of the p roceedings un­de r the Sectio n.

(c) REQUIREMENTS

Applica nts fo r s uch motio ns w ill be required to: (1) (i) a ·sert actu a l innoce nce of the o ffe nse fo r whi ch the a pp l i­ca nt was convicted;

(ii) in a ca pita l case , asse rt ac­tua l innocence of th e charged o r uncharged condu ct const i­tuting an aggravating circum­stance unde r sectio n 971l(d ) (re lating to e ntencing proce­dure fo r murde r of the first de­g ree) , if th e applica nt's exon-

Jur .pr•ng 20 ,, 39

e ration of the condu ct would result in vaca ting a sente nce of death ; o r

( iii) in a ca pita l case , asse rt that th e outcome of the D A testing would establish a miti­gating circumstance unde r sec­tio n 971 1(e).

(2) present a prima fac ie case de mo nstrating that the:

( i) identity o f or the partic ipa­tio n in the crime by the perpe­trator was at issue in the pro­ceed ings th a t res ulte d in the applica nt's convicti o n and sen­tencing; a nd

(ii ) D A testing o f the s pecific ev ide nce, ass uming exculpa­tory results, would estab lish:

(a) the applica nt's actua l in­nocen ce of th e offe nse fo r whi ch the applica nt was con­victed ;

(b) in a ca pita l case, th e applica nt's actual innoc nee o f the charged or uncha rgecl co n­duct constituting a n aggrava t­ing circum ranee unde r sectio n 971l(d), if the applica nt's ex­o n e rat io n of th e co ndu ct would result in vacating a sen­tence o f dea th ; or

(c) in a ca pital case, a miti ­ga ting circu msta nee unde r sec­tion 9711(e).

(d) ORDER

Except a · provide d in pa ra­g raph (2) , the court shall ord er the testing req ues ted unci r r ason­able conditio ns des igned to pre­se rve th e integrity of th e vidence and the testing process , upo n a de te rmin ation , after review of th e record o f the appli ca nt's tria I, th at the:

(i) req uirements of subsectio n (c) have been met;

( ii) evidence to be tested has bee n sui jeer to a cha in o f cus­tody suffi cie nt to estab lish th at it has not been alte red in any mate rial res pect; and

40 Juros Sprong 2001

( iii ) mo tio n is made in a time ly manner and fo r the purpose o f demonstra ring the a ppl ica nt 's actu al innoce nce and not to de­lay the executio n o f sente nce o r administratio n o f justi ce.

(2) the court sha ll not order the testing requ ested in a motio n un­de r subsectio n (a) , if a fte r review of th e reco rd of the a ppli ca nt 's tria l, th e court de te rmin es tha t there is no reasonable poss ibility that th e tes tin g would produce exculpatory ev idence that:

( i) would esta bli s h the applicant's actu al innocence of the o ffe nse fo r which the ap­pli ca nt was co nvi cted ;

( ii) in a ca pita l case , would es­tablish the ap plica nt's actual in­nocence of th e charged o r un­charged condu ct co nstituting a n agg rava tin g c ircumstance und e r secti o n 9711Cd) , if the app lica nt's exone ration of the conduct would result in vaca t­ing a se nte nce of death ; o r

( iii) in a ca pita l case, would es­ta bli sh a mitigat ing c irc um­stance under sectio n 9711(e) .

(e) TESTING PROCEDURES

(1) Any D A resting o rdered under this section shall be conducted by:

( i) a labo ra to ry mutuall y se­lected by the ommonwealth and the applica nt; o r

(i i) if th e Co mmo nwea lth and the a ppli ca nt are un ab le to agree o n a laborato ry, a labo­ratory selected by the court that o rde red the testing.

(2) the costs o f a ny testing o r­dered unde r thi s section sha ll be paid :

( i) by the appli ca nt ; o r

(ii) in the case of a n applica nt who is indigent , by the Com­monwea lth .

(f) POST-TESTING PROCEDURES

(1) Based o n the results o f DNA testing condu cted unde r this Sec-

tio n, the court sha ll make a writ­ten fi ncl i ng that:

( i) th e testing produced inco n­clusive evidence o r evide nce implica ting the applica nt in the criminal offense; o r

(ii) that the DNA tes ting pro­vided exculpatory evide nce.

(2) the app li ca nt may ap pea l the findin g of the court unde r para­graph (1). (3) if the court ma kes a findin g that th e D A testing provided ex­cui pa to ry ev ide nce:

(i) the applica nt ma y, pursuant to section 9545(b)(2) (re lating to jurisdiction a nd proceed­ings) , during the 60-day pe riod beginning o n th e elate o n which the court makes its find­ing, petition to the court that o rd e re d the testing for post­convict io n re lief pursuant to

sectio n 9543(a)(2)(vi) ( re lating to e lig ibility for re lief); a nd

( i i) upo n rece ipt of a motio n unde r subparagraph

( i), th e court that orde red th e testing sha II conside r the mo­ti o n , a lo ng with any answe r fil e d by th e Commonwealth , and sha ll condu ct a hea ring the reon.

( 4) in any hea ring on a motion for post-conviction re lief fil ed pursuant to paragraph (3) , the couJt shall de­te rmine whether the exculpato ry evidence resulting from the D A testing conducted under this section would have changed the outcome of the trial as required by section 9543(a)(2)(vi). #.......

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