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EDITOR-IN-CHIEF N. S. Koerbel EXECUTIVE EDITOR Deborah L. Kutzavitch SENIOR EDITOR Annary Aytch VOL. 34, No.2 • SPRING 2001 MANAGING EDITOR LaJena D. Franks PRODUCTION EDITOR Jacquelyne S. Beckwith WEB EDITOR John Miller ASSISTANT EDITORS-IN-CHIEF A Tribute to Bridget Pelaez ...... 2 Kevin D. Coleman John E. Egers, Jr. Editorial: Learning the Secret Handshake Marianne Snodgrass by N.S. Koerbel...... 4 ASSISTANT EXECUTIVE EDITORS Margaret Barker Hate-Crimes: The Aftermath of Taylor and Baumhammers Terra Brozowski by Sanaz Raji ...... 5 Michael S. Romano Melissa A. Walls Insanity, Guilty but Mentally lll: ASSISTANT SENIOR EDITORS The Role of the Forensic Psychiatrist Debra A. Edgar by Diane Blackburn...... 7 Julie Wilson Rebecca Keating Verdone The Second Amendment and the Individual Rights Debate: ASSISTANT MANAGING EDITORS A Look at the Cases and Controversies Paul E. Block by Greg Neugebauer ...... 11 Toby Butterbaugh Ann Marie Lund Structured Settlements: Alternative Solutions Wenly Nelson for Settlement of Damages in Lieu of Trial ASSISTANT WEB EDITORS Jennifer A. Callery by Jennifer L. Gilliland ...... 18 Amy McCall Do Right-to-Carry Laws Deter Violent Crime? ASSISTANT PRODUCTION EDITORS Diane Blackburn by John E. Egers, Jr...... 20 Amy M.March Why The Second Amendment? CONTRIBUTING WRITERS by MichaelS. Romano ...... 23 Diane Blackburn John E. Egers,Jr. Will the Death Penalty be Executed? Jennifer L. Gilliland by Rebecca Keating Verdone ...... 25 N. S. Koerbel Deborah L. Kutzavitch Let's Put the Assist Back into Assisted Living: Greg Neugebauer Services for the Elderly Remain in Disarray Sanaz Raji Michael S. Romano by Brad M. Rostolsky ...... 27 Brad M. Rostolsky Rebecca Keating Verdone FACULTY ADVISORS Preview: Associate Dean John Raga Prof. Kenneth Gormley The Cyril H. Wecht Institute CovER AND TEXT DESIGN of Forensic Science & The Law Craig Seder by Deborah L. Kutzavitch SPECIAL THANKS TO: and N.S. Koerbel ...... 30 Maria Comas, Heidegger's Hammer, Ella Kwisnek, Frank Lehner, ioNesco, Craig Seder, Barbara Wetzel Senate Bill No. 589: The Use Of Post-Conviction DNA Testing VISIT THE JURIS WEBSITE AT: Pennsylvania Begins To Respond ...... 39 www.juris.duq.edu E-MAIL US AT: A Tribute to Bridget Pelaez

n Novetnber 15, 2000, Maty Bridget Coyne our Summer Study of Law pro­ gram in 1995, Professor Pelaez Pelaez, known to her fatnily, friends and bas served as its Director, and tnany admirers as Bridget, passed away af­ Mrs . Pelaez accompanied him to 0 Beijing eve1y summer, paying ter struggling with a serious heart condition for most her own way until the summer of 2000, when she was too ill to of her adult life. Yet "she wouldn't let anything pre­ travel. vent her frotn doing what she wanted to," said her Mrs. Pelaez attended classes husband, Professor Alfred Pelaez, "she was truly an almost every day and traveled with students to almost all field exceptional woman, known to a lot of exceptional trips. Her wise counsel helped tremendously in improving the people." quality qf our progmm. Mrs. Pelaez loved students. She lis­ "We were together just one week -for which, by the way, she was tened to them and helped them shy of 38 years," Professor Pelaez a volunteer. She neveraskedfor personally whenever necessary. told JURIS. " he has been as much any payment for any of the In short, M1'S. Pelaez was an in­ a part of the school .since 1966 as many things that she did for the tegml part of the Duquesne­ 1 was." Many Duquesne Un iver­ law school. We will miss her very CUPL leadership for the Beijing sity School of Law students and much. summer program. alumni know Mrs. Pelaez from her J URI al o spoke with Profes­ Mrs. Pelaez was also ex­ involvement with Duquesne's dis­ sor Frank Y. Liu, Professor of Law tremely kind and hospitable to­ tinguished China University Sum­ and Director of the Center for Le­ ward our annual visiting CUPL mer Legal Study Program or from gal Edu cati o n . Pro fessor Liu scholars. Every year since 1992, her many other activities at the reaches in the faculty exchange she invited the visiting scholars Law School. Dean Nicholas P. program between Duquesne Uni­ to her home and cooked a won­ Cafardi told JURIS: versit y School of Law a nd the derful meal for them; tirelessly, China Unive rsity of Political Sci­ What 1 remember about she took them shopping or visit­ e n ce a nd Law with Professor Bridget Pelaez. is what a brave ing local attractions. On occa­ Pelaez and serves as its Associate individual she was. She never al­ sion, Professor and Mrs. Pelaez Director. lowed her ue1y se1'ious heart con­ took the visitors to their seashore dition to prevent her.from living Mrs. Pelaez made enonnous apa1'tment in Ocean City, Mary­ l!fe to the fullest. She accompa­ contributions to the China pro­ land, for a relaxing weekend. nied Prqfessor Pelaez to China grams at Duquesne Law School. The communities ofDuqu esne eue1y summer for our summer Professor Pelaez was th e firs/ Law School and CUPL were all school program and was a great Duquesne Law School faculty deeply grateful to her for her in­ help to him and to our students. member who visited the China valuable services to our joint She held receptions at her home Un iversity of Political Science China pmgrams. My wife, Heidi, for our Cb inese visitors every and Law (CUPL) in BeUing as a and I were especially grateful f or year. The continuing strength qf visiting scholar. Mrs. Pelaez ac­ her friendship, advice and sup­ our Ch inese program is due in companied him during thatfirst port. We shall never forget the in­ no small part to Bridget's efforts trip. Since the establishment of delible contributions she made to

2 Juns I Spnng 2001 our China programs, and to pro­ moting friendship and under­ standing between the American and Ch inese peoples. We miss her very much. But Bridget Pelaez's significant contributio ns to the community were not limited to he r invo lve­ ment w ith the Law Sch ool. A graduate of Mt. Mercy Coll ege and a former socia l work e r, Mrs. Pelaez was active in Catho li c charities a nd was an extre m ly effective victim advocate. She was recogni zed as a "Community Champio n" for he r work with The Center for Victims of Violent Crime by receiving a j e ffe rson Award from the U nited Way. Na ncy Wells, Executive Director of The Center for Victims of Violent Crim e told J RIS: For many years Bridget Pelaez served as a key volunteer at The Center for Victims of Vio­ lent Crime. Bridget always and consistently demonstrated pas­ sion and sensitivity to the needs and concerns qf crime victims. She was the quintessential vic­ tim advocate. We loved her and we miss her. Professor and Mrs. Pe laez raised three children, who contin­ ued to be the focal po int of he r life until the day she died, sa id Professor Pe laez. Linda , the ir middle child, was the o nl y child ever born to a woman with two artificial heart valves. He r birth made the front page of the Pitts­ burgh Pr son March 10, 1968. Mrs. Pelaez was also a gourmet cook with a stro ng sense o f fa sh­ ion, and a trained inte rior designer who, sa id Professor Pelaez, "never saw a wall she didn't think would look better someplace e lse." " he was both inwa rdly and o utward ly a beautiful pe rson ," Professor Pelaez said , "she was a n extraordinary lady - the most emoti ona lly strong and caring pe r­ son I ever m e t. " ~

Juris I Spring 1001 Learning the Editorial Secret Handshake

of course, couldn't learn the secret HAT MOST SURPRISED ME ABOUT LAW SC HOOL handshake because she is a pig. But was that it often seemed like less of a she persevered nontheless. DottJ1 y Day, one of the founders learning experience than a hazing. This W of the Ca tholic Worker Movement, is not a unique observation, but it troubles tne enough once said : "It is hard to say no to the existing social and political order­ that I can't refrain from addressing it here. Sotne days and to mean it, to mean it wid1 an the best way to describe how I feel is recalling Rob­ evetyday commitment of energy."1 Perhaps d1at's what's reall y gnawing ert DeNiro's protrayal, in the fihn Raging Bull, of a at me- d1e tension between achiev­ ing acceptance from the existing so­ bloody, sweating, Jake LaMotta, stag­ edge her, as she had "no credentials cial and political order and eschew­ gering around the ring after he had ave an honest and inquiring mind." ing it at d1 e sa me time. That, and d1e already lost the match and shouting She attempts to sit in on cl asses, fact that after working for attorneys to his opponent, Sugar Ray Robinson: and she studies in the libraty on her for d1e last twenty years crossing over "I never went down, Ray. I never own, but she is eventuall y ejected and to th e otl1 er side feels very odd in­ went cl own." barred from ca mpus as a nuisa nce. It deed. There's a sense in which becom­ is o nl y after Hemietta encounters the My former boss, Scott L. Holden, ing a lawyer is a much about learn­ rumpled president of the Great Uni­ discouraged me from going to law ing the secret handshake as it is about versity, who has lost his glasses in the school. He died in the crash of SAi r anything else. It' akin to the old joke: park , that He nrietta gets he r big fli ght 427 and I think of hin1 often. "what do you ca ll a docto r who chance. She escorts the old man, "Do something productiv like graduated at bottom of his class? An whom she's mistaken as a vagabond, teach," he always told me. I do teach, M.D. " In the end, it's all about get­ back to his home, and along the way and I like to d1ink he'd approve. But ting th rough. It's a metaphor, of they exchange literary quips. When I aso like to think he'd a prove of my course, the secret handshake. I'm not the President asks Hemietta where d cision to b com a lawyer after all . sure there reall y is one, and if there she got her ducation, she responds "We tty to be, in our better mo­ is, I never learned it, but as long as with a quote from Fielding's jonathan ments, an example to ourselves," 2 is w all keep acting like there's one, Wild: "Educati on is most often use­ something else Dotthy Day said. there might as well be. less, save in those cases it is near su­ I wish that for all of you. #...... The pl aywri ght David Mamet pertl UOUS. " wrote a littl e book ca ll ed Henrietta a So that's the thing, I guess. I have few years back, that tells the tale of a a lingering hunch that the education pig who wants to go to law school. itself matters less th an the effect of Henrietta is a childre n's book, or the educa ti on -the result- it's the couched as such, but as is the case secret handshake effect. You prob­ with most childr n's books th irony abl y won't be surprised to learn that of the main character's situati on is Henrietta goes on to law school at ENDNOTES 1 Robert Coles , Hierarchy and Transcen­ cl ear only to adult readers. Henrietta the Great University, (it is in1pli ed, dence, Book Review of Lega l Educa­ has aspired to The Law from an earl y though never made explicit, that this tion and the Reproduction o f Hierar­ age, but the law school of her choice is Hatvard) and eventually ends up chy by Duncan Kennedy, 97 H arv L.Rev. , 1469 (1984). would neither admit nor acknowl- on the Supreme Court. Henrietta. 2 !d. at 1494.

4 Juns J Spnng 2001 Hate-Crimes: The Aftermath of Taylor and Baumhammers

BY SANAZ RAJ I

S THE DAUGHTER OF FIR T GE ERATIO IMMIGRANT hate crimes we re re po rted in the United tares in 1999. The latest fi g­ parents who n1ade great efforts to give my ures released by th e FBI regarding brother, sister and I an all-American child­ deaths fro m hate crimes show that A seventeen peopl e were murdered in hood, I knew that my ethnic background was incidents cl assified as hate crimes, compared to thirteen people killed Iranian, but to n1e Iran was a far-away land that had in similar in cidents in 1998. Further, no tangible hold on my life. The only way I identify of the 7,876 incidents re ported , a significa nt pe rcentag , 54. 5%, were myself as being Iranian is speaking the language, racial bias crimes, fo ll owed by re li ­ giou bi as at 17.9%, sexual bias at enjoying the cuisine , and celebrat­ me ashamed; it was only when l staJted 16.7%, and ethnic bias at 10. 5%. The ing all of th e holidays w ith my fa m­ college, and later graduate school, tl1at 12,1 22 law enfo rcement agencies in il y. When my fa mil y relocated fro m I could fina ll y feel comfortable in 48 states that panicipated in the sur­ Mo rgantown, West Virginia, to Pitts­ addressing my true ethnic rool<;. vey indicated an in crease over the burgh, however, my first e ncoun­ In the aft rmath of last spring's 7,75'5 hate crimes reported in 1998. te rs w ith discriminati o n fo rever racia ll y mo ti va ted killing sprees, While hare crimes have occurred changed my outlook on being Ira­ which took place just a littl over a thro ughout Ame ri can histOiy, fed­ ni an-America n. Someone in o ur mo nth apart , questi o ns are be ing e ral legislati o n to combat these neighborhood welcomed my fam­ raised by some about hate crimes in unique crimes has o nl y recently il y with a spray-painted message on the greater Pittsburgh area. On March been enacted. The Hate Crimes Sta­ our new driveway: "Go Back Where 3, 2000, Ronald Taylor, a black man, tistics Act of 1990was th e first piece You Came From" and "F**K Iran." all egedl y shot fi ve white men in the of legislati o n enacted that specifi ­ Altho ug h th e Irani an Hostage Wilkinsburg. Thr e of tl1e individu­ call y addresses th e problem of hate Cri sis was in full fo rce whe n we als died and the othe r two were crime vio lence in the United States. moved to the Pittsburgh area, we maim ed. A second in cid e nt hap­ The legislati on r quires the Justi ce did not think that our new neigh­ pened just over a month late r. Departme nt to publish statisti cs o n bors would feel threatened by o ur O n April 28, 2000, a white man crimes mo ti va te d b y pre judice ethnicity. My parents never fo und nam d Ri chard Baumhammers al­ based o n race, ethnicity, r li gio n, out who w ro te those disturbing legedl y kill ed a Jewis h woma n , or sexual orientati o n. messages, but the e ffects trans­ and fo ur men - o ne black, o ne In o rd er to he lp combat the ar­ fo rmed how we were raised and Vi etnamese, o ne Indian, and o ne sons that destroyed over 66 African­ how we viewed o ur ethnic back­ Chinese - in a shooting spree that Ame ri can churches during the mid ground. encompassed both All egheny and 1990s, former President Bill Clinton From then fonvard , my parents Beaver counties. Altho ug h both signed Tbe Cln n-cb Arson Preven­ insisted tl1 at my brother, ister, and I Taylor and Baumhammers have a tion Act qf 1996 into law . This act never address our Iranian heritage, histo ry of mental illness, pe rh aps extends Th e Hate Crimes Statistics and instructed us that if anyone hate crimes such as these sho uld Act to the year 2002 and allows fed­ should happen to ask why we had not completely be dismissed as the e ral autho riti es "to prosecute and such uniqu names, we were to tell acti o ns of madmen. bring to justi ce peopl e who burn, them tllat we are Turkish. Conceal­ An FBI repo rt re leased on Feb­ desecrate, o r otherwise damage re­ ing my cultural identity always made ru aiy 13, 2001 , indicates that 7,876 li gious pro pe rty. " It w ill take a de-

Juns Spnng .20c 1 cade to see w he the r these new new and discrete way for racist organi­ Those involved in the Taylor pi eces of legislati on will help rem­ zations to recruit new members. In ad­ rampage, however, fe lt that the Pitts­ edy the increasing effects of hate clition, Ratner states that despite a huge burgh branch of the NAACP did not crimes in the United States. drop in membership, the Klu Klux Klan adequately address the heinousness George A. Simmons, regional di­ has its strongest base in Western Penn­ of the incid ent and fa il ed to com­ rector of the Pennsylvani a Human sylvania, Oh.io and Indiana. ment o n the do uble standard that Relations Commission , said that al­ The e ffects of the Taylor and occurs when hate crimes are per­ though violent rages triggered by skin Ba umha mme r sh ootings o n the petu ated by blacks against whites. color or re ligious differences are a Pittsburgh community have va ri ed Tony Norman, a Pittsburgh Post­ mystety , he beli eves that those prone among victims. Tho e in volved in Gazette columnist and an Africa n­ to racism o r racist beli efs "need a th e Baumhamme rs incide nt have Ame ri can, commented that "Among sense of purpose ... they need to be­ been ti ght lipped, and the response paranoid bl ack peopl e, th e mantra li eve in something and have some­ to my atte mpts to contact those is: "I don't condone what the brother thing positive to fo llow." groups ha been ca utio us. Thi · is did, but I understand why he did it. " Both Ronald Taylor and Richard understandabl e, considering that it Pittsburghers ca me together to Ba umhammers appear to embody is document d that hate crimes heal a ft e r the Taylo r and Mr. Simmon's statement in compel­ cause emoti o nal and physiological Baumhammers incidents in several ling ways. All egheny County police pro ble ms, hi g h bl ood pressure , ways, such as jo ining interfaith fo und racial epithets against whites sleep disorde rs, post-tra umati c groups or panicipating in the YWCA and Jews inside Taylor's apartment stress, hypertensio n, and psychosis. of Greater Pittsburgh "Day of Dia­ and j o hn DeWitt, o ne of the men In additio n, bi as incid ents perpetu­ logue" program, designed to get the fix ing Taylor's apartment door, sa id ate feelings of inferiority and help­ "average person" to sit down and that Taylor taunted him with racial lessness amo ng those groups tar­ discuss the issue of racism. Yet slurs. Taylor told others that the rea­ geted . Moreover, victims of hate there still is a need for more pro­ son he was cany ing a gun before crimes may subconscio usly modify grams to combat racism in th Pitts­ the shootings occurred was because their behavior in order to avoid fur­ burgh area. Pittsburgh Mayor Tom he didn't like white people. the r exposure to ridicule, violence, Murphy has pressed for plans to Richard Baumhammers, an immi­ a nd intimidati o n. However, Dr. transform Al legheny County into the gratio n lawyer and the son of well ­ Krishana Aggatwal, a Sunday school next Silicon Vall ey. Many of those to-do immigrant parents from Latvia, teacher at the Hindu Jain Temple, a involved in the U.S. computer indus­ is accused of killing three Asians, a place where San dip Patel, one of the tly are immigrants from Eastern Eu­ Jewish woman, a black man, and of victims in the Ba umha rnme rs rope, the Middle East, and As ia . If paralyzing a Indian man during the shootings regula rly worshipped , Pittsburgh wants to attract interna­ shooting rampage that occurred on commented that "By and large, o ur ti onal talent, hate crimes cannot be April 28, 2000. Baun'lhammers en­ experience [in Pittsburgh] is very tolerated by any means. Only time joyed traveling to Latvia, Austria, and good .. . " and "These things a re w ill te ll how the Taylo r a nd Germa ny, all countri es known fo r bo und to ha ppe n whe never you Baumbammers shootings have af­ neo-nazi actt vttl es. Furth r, have human be ings." fected the victims and the ethnic/ re­ Ba umhammers was self-appointed Others involved share a different ligio us communities involved. "chairman" of The Free Market Patty, p o int o f view. Ra bbi David I be lieve that it is onl y through an organi zation he fo rmed to advo­ Greenspoon of Adat Shalo m Syna­ mediati on and discourse that we ca n cate the rights of European Americans gogue in Indiana Township com­ truly understand the roots of racial and denounced third-world in1llligra­ mented, "This is not a time to hide. and ethnic hatred. An open rnind ti on because European Americans This is a time to stand up and re­ and patience to listen to others will were being ovettaken by other races. dedicate ourselves to Judaism. We mend these dreadful acts and help Ba umhammers registered his patty's must not let hate and terror overrun all to reali ze the uniqueness and spe­ name as an Internet site with a local our li ves ...Th e veneer of civilizati on cial q ualities that all ethnic groups Pi tts! urgh Internet company under can be thin. We have to stand up for and re ligions possess. #...... other fa r-right groups on the World o rd e r when there is disorder and Wide Web. chaos." Commenting o n the effect Sanaz Raji is ajirsl-year days!udenl. She Inte restingly, the Internet has of the Baumhammers shootings o n received her B.A . from Duquesne helped fa r-right and racist groups to Pittsburgh's immigrant communi­ Univers ity and later attended th e spread their message to mi llions of ti es, Sister Rita Yeasted, an English University ofPill s burgh School of Public people. Joel Ratner, regio nal direc­ professor at LaRoche Coll ege said and International Affairs. Ms. Raji will be a summer intern with Federal District tor of the An ti -Defamatio n League, "Our culture is unwelcoming to im­ Court Judge Gary Lancaster states that the Internet has created a migrants in many ways."

6 Juns Spnng 2001 Insanity, Guilty but Mentally Ill The Role of the Forensic Psychiatrist Can Ronald Taylor and Richard Baumhammers Escape Criminal Culpability? BY DIANE BLACKBURN

E UGHTS THE CO UCH ON FIRE AND PICKS UP HIS gun, a sa id Baumhammers had been mak­ ing claims people were watching him, .22-caliber revolver. John Kroll, a 55 year old leading this individual to conclude maintenance n1an is shot in the neck, and Baum.hanm1ers was schizophrenic. In H fact, Richard Baumhammers does have bleeds to death in the atms of a co-worker. John DeWitt, a histo1y of mental instability. He had been receiving medical treatment for who works with Kroll, luckily escapes unharmed. Min­ seven years and had once volunta r­ utes later, inside the Burger King on Penn Avenue, John il y committed himself. 6 But was he legall y insane during the time these Healy,71 , is dead. Next door in the parking lot of crimes w re committed? Pennsylva nia defin es legal insan­ McDonald 's, Ri chard Clinger is sit­ he allegedly committed these crimes? ity as "labo ring under such a defect ting in his van when a bullet pierces He had a histo1y of menta l problems of reason, from disease of the mind, th e window. Clinger is struck. The and received treatment in the past, as not to know the nature and qual­ kill er now enters the McDonald 's but a family member says Taylo r's ity of the act he was doing or, if the and shoots Steven Bastard, the man­ problems were never severe.'1 actor did know the quality of the act, ager. Bastard 's employees run to his Fifty-eight days pass. It's April28, that he did not know that what he was aid applying pressure to the head 2000, and Ri chard Baumhammers do ing was wrong.,- wound as they await medical as is­ gets into his car with a .357-caliber Ronald Taylor told DeWitt sho 11l y ranee. Befo re the rampage is over, handgun and a bag of she lls. In 72 before the shooting, "You're dead ... the killer moves outside to the drive­ minutes, fi ve people will be dead and I'll get you. "H Did Taylor know the thru line a nd s h oots Emil one critica ll y injured. Baumhamm rs nature and quality of his subsequent anielevici.1 is awaiting trial for a tirade that took act when he all egedl y pulled the trig­ Within minutes police surround him over ponions of Allegheny and ger? Richard Baumhammers was cle­ th e accused , Ro na ld Taylo r of Beaver Counties and also appeared scril eel as having ideas that were out­ Wilkin burg in a building ho using a to be raciall y moti va ted. He is ac­ of-touch with reality 9 Did he under­ child day-care center. Frantic par­ cused of defacing two jewish syna­ stand what he is accused of doing ents and bystander watch. Several gogues, shooting one Jewish woman, was wrong? hours pass until po li ce negotiato rs two men of Indian dec nt, two Asian­ The Pennsylva nia statute on in­ convince the ir su peer to sun·en­ Ameri can males, and one black man. sani ty 10 evolved from the 1846 case de r. 2 When it is a ll over, Taylo r is He is calm. He exhibits no signs of Co mmon wealth u. Moster 1 w hich charged with killing three people of panic or anguish. Witnesses claim ado pted the M' raghte n rule.12 In and wounding two. 3 A community Baumhammers asked for two of the 1843, Daniel M'Naghten was tried for asks, why? victims, Theo Pham andJi-ye un, by murder in England. M'Naghten was Prior to Ma rch 1, 2000, Ronald name. The community is frozen and suffering from the morbid delusion Taylor was viewed as a q uiet man in shock. chool districts delay the that peopl e were persecuting him, by his neighbors but there was o ne rei ase of students until autho riti es including the Prime Minister. eek­ thing he made certain they knew ­ advise it is safe. 1 ing to assassinate th e Prime Minister, he didn't like white people. All of Is Baumhammers a racist or is he M'Naghten fired shots into a ca rriage the victims were white. Was this car­ legally insane? People who knew him be li evin g it was transpo rting th e nage racia ll y mo ti va te d o r w as described his personality as being Prime Minister. Mistakenl y, it was the Ronald Taylo r legall y insane when "sli ghtl y different" and o ne person Prime Minister's secreta1y who was

Juns Spnng 2001 7 killed. During the trial , d1e Lord Chief has been proven to the juty.21 The tered du·ough diagnosti c terms about Justice, in his charge to the jwy, stated evidence wil l be weighed by d1e jwy symptoms, understanding how syn­ "the question to be determined is, and sanity will be determined as a dromes work, and understanding tile whether at the time the act in ques­ matter of fact .ZZ Such evidence can science of what people do when ti1ey tion was committed, d1 e prisoner had come from an expert witness, but the are inflicted wid1 'X' condition." He or had not the use of his understand­ juty is not bound to lend more cred­ calls upon his role as investigator re­ ing, so as to know that he was doing ibility to expetts. 23 The use of lay wit­ viewitlg d1e information supplied to a wrong or wicked act. "'-1 nesses ca n be equall y credible in es­ him by d1e prosecution or defense to The jwy found M'Naghten not tabli shing the defendant's mental determine what additional informa­ guilty by reason of insanity. Follow­ state at the time of criminal activity.2" ti on he needs. "I'm acting as an in­ ing the acquittal, Queen Victo ri a re­ Mental illness is a factual determina­ vesti gator .. . to d1ink 'how can I con­ quested the House of Lo rds review tion made from of all the evidence2" firm this?'" d1 e verdict with d1e judges of d1e com­ and the jUly determines the weight Weiner assesses whether he needs mon-law coutts. The judge repudi­ and credibility of that evidence2 6 to speak with witnesses and who ated d1 e acquittal and set down the Who is an expen in the insanity iliose witnesses might be. Also, he M' aghten rule. 14 Lord Chief Justice case? One such person is Dr. Michael needs to focus on how to get iliose Tindall's restatement of the rule has Weiner, a forensic psychiatrist and witn sses to talk with him. He deter­ been codified into Pennsylvania's in­ Chairman of "The Forensic Panel" mines if he can find a paper trail and ·anity statute. 15 and Profes o r of P ychiatty at the if it will be valid and legitimate. Just The M'Naghten rule has been fo l­ New York University School of Medi­ as impottant is tracit1g telephone calls, lowed by many jurisdictions in the cine. Weiner has been utilized by detennining how they were made United States and has been expanded bod1 d1e defense and prosecution in and to whom, which help identify ti1e in some. At one time a defendant a number of cases and has been re­ person's state of mind near the time could escape culpability for criminal tained by th e Commo nwealth of of the criminal conduct. conduct conunitted as d1e result of an Pem1sylvania to evaluate Ronald Tay­ All of this is important, Weiner irresistible impulse. 16 The irresistible lor and Richard Baumhanu11ers.27 e mphasizes "because ultimately impulse test centers on a defendant's In his evaluation, d1 e forensic psy­ when it comes to an insanity de­ ability to control one's self. Today this chiatrist focuses on the time periods fense, it's not just whether a person test has been rejected in many states. it1U11ediately before the incident, dur­ has a [mental illness) diagnosis, but Another standard o ne used was d1 e ing the incident, and itmnediately af­ in Pennsylva nia [it is also) whether product test. If the defendant's act ter. The reason is two-fold : First, the a person was able to appreciate the was the product of a mental disease state of a psychiatric illness in a per­ wrong of his o r her acti o ns. " An­ or defect, d1 e defendant would not son will bod1 improve and degener­ swering this question require ob­ be held critninally responsible. This ate over time, so the psychiatrist must taining as much information as pos­ standard has also been widely re­ ta ke note of d1e severity of d1 e illness sible to understand the choices the jected .1 7 right before the cormnission of the defendant was making at the time Th Model Penal Code18 attempts crime. A person with a s vere psy­ of the criminal conduct. z9 to merge d1e M' aghten rule widl the chi atri c illness may be suffering a Weiner speaks with the defen­ irresistible impulse test. Under the chronic episode of his illness or may dant and often vid eotapes the in­ Model Penal Code, a defe ndant is nor be relatively stable at the time of the te rvi ew for corroborati o n. Thi s criminally culpable if, as the result of crinlinal activity. Therefore, focusit1g helps keep the science precise and a mental disease or defect, the defen­ on ti1 e time of the crime rati1er ti1 an preserves the record because often dant i unable to conform his con­ the defendant's mental state well b - stories change. In fact, faking or ma­ duct under d1e law, or is unable to fo re or we ll after the crime lends pre­ lingering is often indigenous to critni­ appreciate that his conduct is cision to d1is science. Second, b - nal psychiatric cases. That is not nec­ wrong. 19 Although Pe nnsylvania ca use the forensic psychiatrist is re­ essaril y because the defendant is chose not to adopt this standard for tained in an adversa ri al situ ati o n guilty but rad1er "ti1e setting encour­ legal insanity, it has been incorpo­ rather d1an as a treating physician, he ages people to be dishonest wid1 psy­ rated into d1e Corm11omvealth 's guilty must look for corroborating informa­ chiatri sts." Weiner stresses he is not but mentally ill statute. 20 ti on and evidence to render a con­ playing a game of "gottcha" with tile Who will decide if Taylor and clusion that is "untainted and as ob­ defendant. Instead he is stri vi ng to 2 BaumhatlU1lers are legall y insane and jective as possible. " H find the trud1. He recognizes d1at of­ wid1 whom does the burden of proof Weiner says he acts as both psy­ ten the defendant is scared. Says lie? In the 1800's, Lord Chief Justice chiatrist and investigator in his evalu­ Weiner, "They don't know what tile Tindall stressed the defendant should ati ons. The psychiatrist is always right d1ing is to say. They may be be presumed sane until the contraty present because "everything gets fil - scared whether, in fact, the i.J· defense

8 Juris Spring 2001 claim is va lid or not. " But determin­ reali ty, possibly brought on by stress, !em with d1is case was asking if d1 e ing that the wimess is dishonest does might, on rare occasio ns in a fragil e defendant, whose IQ was about 20, not answer the question of whether p rsonality, ca use someone to un­ was able to under ·rand gravity. Did an insanity defense is va lid ,-~ 0 ravel enough that their actio ns might he understand the child would be The psychiatric diagnoses most be driven by the ir mental illness. killed? Did he understand death? typica ll y associated with a valid insa n­ Then it is possible that the person, Weiner says d1i s is why "d1e issue of ity defense include schizophrenia and under some specific scenari o, might appreciati on of wrong is almost al­ bipolar disorde r. Be ca utioned, how­ not be able to appreciate the wrong ways, in these contentio us insanity ever, that it is not the disease that ren­ of their acti ons. Weiner explains that cases, where the battle is fo u g ht. " -~7 ders one legall y insa ne at the time of someone with a severe, brief, psy­ There is a differe nce between the criminal act; it's the ymptoms as­ chotic reaction, who has borderline medical insani ty and legal insani ty. sociated with the disease. For ex­ personality disorder, might even hal­ Medical insani ty is imply the pres­ ample, in an actor with schizophre­ lu cinate. 3-• ence of a major mental illness but d1e nia, if there are no acute symptoms Regardless of the underlying psy­ threshold fo r legal insa ni ty is much of the dis a eat the time of the crimi­ chiatric disorder, Weiner stresses d1 at higher. It is the presence of the ma­ nal act, the schizophrenia is likely in­ just because a r erson hallu cinates jor mental illness PLUS a b ck of ap­ cidenta l to the act and not the cause. and hears voices does not mean that preciation of wrong. The legal thresh­ Al ternatively, if the schizophrenic is is a viable insanity defense. It de­ old is much more d ifficult to over­ suffe ring from a delusion or halluci­ pends on what d1e voices are telling come. Weiner says peopl e do not nation brought on by his disease at the person. As a forensic psychiatrist, rea li ze "d1 at those who have major the time of the criminal act, he may Weiner asks "How congruent are the mental illnesses ... d1ink ... make be unable to appreciate right from acti ons to the content of the voices, decisions ... may be able to adapt wrong or unable to understand the na­ as well as d1e person's ability not to quite well to what would fo r od1er ture and con equences of what he is listen to those voices?" There are people be overw helming and emo­ doing. Weiner ays "Without those cases where the hallucinati ons may tionall y disruptive symptoms. " o, symptoms, the schizophrenia is mean­ b maling red or may be irTelevant many people who suffer from psy­ ingless and it's just a diagnosis."31 to the criminal ac ti v i ty ,-~" chiatric illnesses do at d1e a me time In bipolar disorder Weiner may see There is a distinctio n to be made have the abili ty to appreciate right an individual experiencing a grandi­ between people who be li eve their fr m wrong ..*! ose delusion, a fixed, false idea. He acti vity is morall y right and d1ose who If, in d1e Taylorand Baumhammers once worked on a case where the beli eve d1eir acti vity is morall y right cases, the jllly does not believe eid1er defendant, in a manic episode, be­ yet recognize d1 at soci ty does not defendant has reached d1e legal thresh­ li eved he had a special relationship agree. For example, in a case Weiner old of insanity, does it mean evi­ with God. The defendant picked up handled in Ho nolulu , a man who dence of their mental illness has had his baby, walked onto the balcony of believed he was going to be fired no impact? Not necessaril y. The his apartment building, and tossed the killed seven of his co-workers. This ju ry may determine either defendant baby off the balcony be li eving an an­ man believed that his actions were is guil ty but mentall y ill. Guil ty but gel would come by and pick up the morall y right and d1at the law was m nta ll y ill came to the forefro nt in baby whisking it to safety. Such a wrong. However, he recognized that many states fo ll owing the widely grandiose delusion is common to the society does not suppo rt his beli ef publicized tri al of j o hn W. Hinkley, consideration of an insanity defense. 32 and that his conduct was legall y pro­ jr.,39 fo r the attempted assas ination Depression is seldom associated hibited ..l

Juns 1Spnng 2001 S cerned that the insanity defense was derance of the evidence. 14 !d. at 391. being over-utilized and that the num­ It is o nly if the defe ndant has not 15 18 Pa .C.S.A. §3 15. 16 Hawkins-Leon, Supra . at 393. ber of insanity acquittals had reached mer his burden o n the insanity issue 17 !d. at 395. 3 alarming proponions. ' that the jllly addresses whed1er the 18 Model Penal Code §4.0 1. On Decembe r 15, 1982, the n­ defendant was menta lly ill. 50 Hold­ 19 Hawkins-Leon, upra. at 397. Governor Dick Thornburg signed ing d1at the Pennsylvania Legislature's 20 Commonwealth v. Eck, 439 Pa. Super. into law the guilty but menta lly ill stat­ definiti o n of mental illness is "a logi­ 530, 538, 654 A.2cl1104, 11 07 0995). 21 Ilawkins- Leon, Supra. at 392. ute codified at 18 Pa. C.S.A. §314.•·• cal coro ll ary to theM' aghten rule"1 1 22 Commonwealth u. Zewe, 444 Pa. Su­ Th statute defines an actor as me n­ use of the guilty but mentally ill o p­ per. 17, 24 , 663 A.2d 195, 198 0995). tally ill when "as a result of a mental tion in Pennsylvania does not violate 23 Co mmonwealth v. Ruth, 309 Pa. u­ disease o r defect, lacks substantial one's due proces or equal protection per. 458, 462, 455 A.2cl 700, 702 (1983) capacity ithe r to a ppreciate the rightsY 24 Co mmoll wealth u. Trill, 374 Pa. Su­ wrongfulness of his conduct o r to In the end, d1 ese insanity defenses per. 5 9, 562 , 543 A.2cl 11 06, 1112 conform his conduct to the require­ will be in d1e hands of the juries who 0988), citing Co mmonwealth v. Ruth, 309 Pa. Super. 458, 462, 455 A.2d 700, ments of the law.""5 This is the stan­ have th discretion of determining 702 ( 19 3). dard set forth in the Model Pe na l if Ho na ld Taylor o r Ri c hard 25 Commonwealth u. duPON7; 730 A.2d Code.'6 Ba umha mme rs escape criminal 970, 978 ( Pa . Super. 1999). 26 See, Commonwea lth u. Ruth, 309 Pa. This primary differe nce between culpability. #-...... Super. at 462, 455 A.2cl at 702. finding a defendant guilty bur men­ 27 Telephone Interview with Michael ta ll y ill and finding a defendant in­ Diane Blackburn is a second-year Weiner, M.D., Chairman of "The Fo­ rensic Panel" and Pro fessor of P ·y­ sane is a differenc between being evening s tudent. She is Assistant chiatry, New York University Sc hool bad and sick and just ·imply be ing Production Editor ofJURJS, a member of Medicine ( December 7, 2000). sick. When a jury dete rmines that the of Law Review, and Chairperson of the 28 !d. defendant was legall y insane, d1e jUiy International Law Society. Ms. Blackburn 29 !d. 30 !d . is saying d1e defendant was incapable is a law clerk for the firm ofZimmer Kunz, PLLC. 31 !d . of forming the necessary mens rea ro 32 !d. commit the crime. Therefore, the 33 !d. defendant is "sick" but not "bad." ENDNOTES 34 !d. Micha el A. Fuoco, et a!. , 2 Dead, 3 35 !d. However, when the jUiy determines Wounded in Bloody Rampage, Pn-r;,­ the defendant is guilty but mentally BLI RGII PosT-GAZE'ITE, Ma rch 2, 2000, at 36 /d. 37 !d. ill , the jwy is saying d1e defe ndant A- 1. 2 !d. 38 ld. sho uld be punished for what he has 3 Roherr Dvorchak, Cold Killer s 20-Mile 39 United States u. Hinkley, 72 F.2cl 115 clone yet treated for d1e mental illne s. Trail Leaves 5 Dead, P1 rr~BLIRGII PosT (D .C. Cir. 1982), oven:uled, in part, The defendant is both "sick" and GAZETrE, April 29, 2000, at A-1. by Hudson u. Palmer. 468 U .. 517 (1984). "bad."'' Pennsylvania has been ada­ 4 jan Ackerman, et a!. , Neighbors Say Suspecl a Brooding Loner, Pn -rsBLTRGII 40 Hawkins- Leon, Supra. at 400. mant that o nl y be ing fo und mentally PosT GA ZETrE, March 2, 2000, at A-9. 41 Jd. at 40 1. ill w ill not negate the mens rea re­ 5 Robert Dvorchak, Cold Killer~· 20-Mi/e 42 Jd. at 402. quirement for criminal activity. Ne­ Trail Leaues 5 Dead, Prn·suuRG II PmT 43 Commonwealth u. Trill, 374 Pa. Su­ Gti ZF.lTE, April 29, 2000, at A-1 . per. 549 , 570-71 , 543 A.2d 11 06, 11116 gating mens rea can o nly be accom­ 6 Dennis B. Roddy and Bill Heltze l, Ma n (1988). plished when d1e defendant proves 0 11 a Rampage, PnT>IH II!GII PosT G,,_ 44 Legislative llistory of Senate Bill, Gen- ZE'ITE, April 30, 2000, at A- I . he has met the M'Naghte n test. •H eral Index, S. B. J 71 at A-23 (1982). 7 18 Pa.C.S. A. § 31 5(b). If found guilty but me nta ll y ill , it 45 18 Pa.C.S.A . § 3J4(c)(l). 8 licha el A. Fu oco, el a!. , 2 Dead, 3 46 Model Penal Code §4.01. is unlike ly that e ither Taylo r o r \Vounded in B looc~ )l Nampage, Prm,­ 47 See, Commonwealth u. Trill, 374 Pa. llliRG II PosT-GAZE'ITE, March 2, 2000, at Baumhammers would win on an ap­ Super. at 583, 543 A.2cl at 1123. A- J. peal that the statute '9 is unconstitu­ 48 Co mmonwealth u. Sohmer, 519 Pa . 9 Dennis B. Rodel y and Bill Heltzel, Mcm 200, 210, 546 A.2d 60 1, 606 (1988). tio na l. In prior cha ll e nges to the on a Rampage, Pn-rsn1mG 11 PosT GA­ 49 18 Pa.C.S.A. §3 14. g uilty but mentall y ill statute, th e zErrE, April 30, 2000, at A- I . 10 18 Pa.C.S .A. §3 15 . 50 Co mmonwealth u. duPONT, 730 A.2d Pennsylva nia cou11 rejected the argu­ 970, 979 (Pa. uper. 1999). 11 Co mmol/ll'ealth l'. duPONT, 730 A.2d ment of constitutio nality. This is be­ 970, 97R ( Pa. Super. 1999), citing 4 51 See, Co mmonwealth u. duPONT, 730 cause before that verdict o ptio n can Pa . 264 (1 846). A.2cl at 979. 52 Id. even be conside red by a jury, the 12 M'Naghten, 10 Cl. & Fi n. 200 , 8 Eng. Rep. 7l R ( 1843). Commonweald1 must first prove ev­ 13 Cynthia G. Hawkins- Leon, "Literature ery element of d1e crime beyond a as Law ··: Th e Ifistorv of the Insanity reasonable doubt. If proven, the jury Plea and a Fie f iO I7tll Application Within the La w & Literature Ca non, then considers wh d1er the defendant 72 T E~IP. L. REv. 381 0 999), citing has proven his insanity by a prepon- M'Naghten, 10 Cl. & Fin. at 202.

10 Juns Spnng 2001 The Second Amendment and the Individual Rights Debate:

A Look at the Cases and Controversjes BY GREG NEUGEBAUER

nor hea r a Second Am endment case WELL REGULATED MILITIA } BEING NECESSARY TO until after the Civil War, state courts the security of a free State} the right of the ha ve been considering the ri ght to keep and bea r arms since 1822. A people to keep and bear Arms} shall not be Most state constitutions have provi­ infringed. 1 What could be more clear? The Second sio ns touching upo n the right to keep and bea r arms, and those states Arnendment is short and to the point. As if to avoid have judicial decisions interpreting that right. Prio r to the Supreme confusion among future generations, the founding Colllt's consideration o f this issue, fathers were wise enough to highlight the key words: several antebellum state coutts care­ fully examined the arms provisions Militia, Stare, and Arms. The phrase Amendment'sR cl ea r distinction be­ in their own constitutions. The right 9 to keep and b ar arms may be the "the people" is noticeably of sec­ tween the stare and its people. ondary rank. This constitutional Fortunately, for the advocates o f focus o f a grea t national debate to­ cl ay, bur it was settled law in many provision cl ea rl y protects the stare both schools of thought, the brief militia from federal infringement, or text o f the Second Amendment con­ stares almost two centuries ago. does it? rains sufficient ambiguity ro support Today, there are two "schools o f a colorable claim for either posi­ Early Interpretations of the thought" in the debate concerning ri on.10 Right to Keep and Bear Arms the ri ghts embodied in the Second The controversy concerning the The lack of federal firea rm stat­ Am endmenr2 Those adhering to meaning of the Second Amendment utes accounts fo r the abse nce o f the "collective rights" theory view lacks easy resolution becau -e rher ea rly federal court interpretations o f the Amenclm nt's introductory, sub­ is so little authori ty to which to turn. the Second A mendment. Most o f ordinate cla use as limiting the sub­ The obvious first source is the Su­ the antebellum stare cases arose stantive contours of the Amendment preme Court. After all, "it is em­ from challenges to the constitution­ to protecting stare mil iria against fed­ phati ca lly the province and duty of ality of state sta tutes proscribing ca r­ eral disa rmament.J To the collec­ the judicial department ro say w hat ty ing concea led weapons. Whether 11 ti ve ri ghts advocates, the Second the law is." Such has been the relying on the stare or federal con­ Amendment se rves to allay state cornerstone of constitutional inter­ stitution, all but one court upheld conce rns that th e Article I Militia pretati on since the ea rliest days of these laws as a reasonable restraint Clauses4 ceded roo much control o f the Republic. H ow ever, one look­ o n the manner o f bea ring arms. th militias to the federal govern­ ing to the Court for guidance runs Antebellum coutts generally upheld ment.5 At the or her end of the spec­ into serious trouble. The Supreme concea led ca ny laws as long as the trum, the "individual rights" advo­ Court has ca refully exa mined the statute did not restrain openly ca r­ ca tes view the Amendment's phrase right ro keep and bea r arms and the rying arms, w hich, at the time, was 11 "ri ght of the people, " as protecting Second Amendment just once, and viewed as the only manner suitable an individual ri ght to k eep and bea r irs analys is spanned a mere four to bea r arms fo r self defense. In arms6 For th em, "the people," has paragraphs. The brevity ofrhe opin­ reaching this result, courts o f the era exactl y the sa me mea ning as in the ion suggests the Court intended to ass iduously recognized the right to First, Fo urth , N inth, and Tenth merely dispose of the case at hand k eep and bear anns as being a com­ Amenclments. 7 Of particular note and ca ll it quits. ponent of the individual right o f se lf to the individualists is the Tenth Although the Supreme Court did defense .

Juns I Spring 2001 11 2 Ad voca tes o f the individua l common defense." '' The coutt held tLIIy cases touch upon the Second rights doctrine suffe r from no short­ that it did not. The Ay mette court Amendment, but ne itl1er one i re l­ age of antebellum state cases that thus recognized several impo rtant evant to the individual versus col­ cl earl y 'Uppo rt their vi w. The o nly aspects regarding the right to keep lecti ve ri ghts controversy."·12 coutt to invalidate a concealed ca rry and bear arms. The court recog­ The first Supreme Court Second law, Bliss u. Co mmonwealth, 13 con­ nized that this ri ght exists for the Amendment case is United States u. sidered the right to keep and bear benefit of the common defense in Cruikshank.·~ 3 This case concerned arms al solute. The court call ed the the fo rm of a militia. As ·uch, the an appeal of a convicti o n fo r violat­ ri ght "entire and complete, as it ex­ scope of the constitutional pro vi ion ing the Enfo rcement Act of 1870. isted at the adoptio n of the consti­ reached onl y militia weapons. Con- This act provided: tution; and if any po rtion of that ri ght equently, according to the Ay mette That if two or more persons shall be impaired , immateri al how small court, the legislature suffers no re­ band o r conspir togeth er, o r go in that part may be, ... it is equa ll y fo r­ stricti o n in its powe r to regul ate disguise upo n th e public highway 1 bidde n b y the constitutio n . " ' weapo ns of the type used "fo r pur­ ... w ith the inte nt to prevent o r 2 Ec hoing this vi ew in Cochrum u. poses of private assassinati on." "' As hinder [a person's] free xercise and State,' "' the Texas Supre me Court fo r militia weapo ns, the legislature enjoyment of any right or privilege decl ared that the Second Amend­ may regul ate the "manne r" of the granted o r secured to him by th ment "is based o n the id ea that the use of militia weapons to "preserve constitutio n o r laws of the United people cannot be effectuall y op­ the public peace, and protect our State , such persons shall be guilty pressed and enslaved who are not citizens fro m terro r. "16 While the of a fe lony.·i" first disa rmed . . .. The ri ght of the Aymettecourt d scribed th e ri ght to The issue befo re the court was citizens to bear arms in lawful de­ keep militia-type a rms "unquali­ whether conspiring to deprive an­ fense of himself or the state is abso­ fied,"!' it implied that it is subo rdi­ othe r of hi s Second Ame ndme nt 2 lute ."H' Some courts took a more nate to the coll ective militia rights H ri ght to keep and bear arms was "a balanced approached to the issue, As to how Tennessee's concealed right or privil ege granted o r secured 1 while still affirming that the ri ght to ca rry law affected the individual to him by the constitution. "· 'i The keep and bear arms is an individual ri ght of self defense, this was not a Court decided it was not: 1 29 o ne. - The reasoning in th e1846 matter befo re the court. [Blearing arms is ... not a right case of Nunn v. GeorRia' 8 is typi­ granted by the Constitutio n. e ither ca l. The court recognize d the The Supreme Court's is it in any manner dependent upo n legislature's valid purpose in prohib­ Interpretation that instrument for its existence. The iting secre tl y carrying weapo ns, The upre me Court is frequentl y second amendment declares th at it whi ch it uphe ld, "inasmuch as it a li ghtning rod fo r many of the ma­ ha ll not be infringed; but thi , as does not d prive the citizen of this jo r issues of the cl ay. Abo rti on, civil has been seen, means no more than natural ri ght of self-defense, o r his ri ghts, privacy, and free speech are it shall not be infringed by Congress. constitutional right to keep and bear a ll subjects of passio nate debate, This is one of the amendm nts that 19 arms." Even in decisions wherein and usua ll y a landmark upreme has no other effect than to restrict the court never expressly adopted Court decisio n is at the focal point. th e powers of th e nati o nal govern­ the individual rights theoty , it did so In stunning contrast to this situati on ment. implicitl y through recognition of the is America's gr at gun debate . Eve n The Cruikshank court's holding 20 right of self defense. a person seri ously interested in this that the Second Amendment restricts While the individual rights doc­ issue could probably not name even o nl y the federal governme nt, and trine may have been the majo ri ty a single case o n point. This is be­ not the states, remains the law to­ approach among the earl y tate de­ cause the entire body of the Su­ day. cisions/ ' alternative interpretations preme Court's Second Amendment The o nl y other nineteenth cen­ of the ri ght to keep and bear arms jurisprudence comprises less th an a tLII y Second Am endment case arose existed n In 1840, the Te nnessee handful of cases. nearl y a decade later in Presser u. 56 Supreme CoLIIt handed down a de­ The o nl y antebellum Supreme Jllinois An Illinois court fin ed cision that wo uld fi gure pro minently Court case to mention the ri ght to Presser $10 fo r violating a statute in a United States Supr me Co urt keep and hear arms was the noto ri­ pro hibiting: "a body of men ... other decision a century later. In Ay mette ous Drecl Scott decisio n.50 In that than the regular organized militia of 1 1 u. Sta te, · the court considered decisio n, Chief Justi ce Taney noted this state .. . to associate th mselves whether a concealed weapo ns law in dictum that keeping and bearing together as a military company o r conflicted w ith the state's constitu­ arms is a state right protected by the o rgani zati on to drill or parade with ti o na l provision guaranteeing the Article IV Privileges and Immunity arms in a ny city o r town of this 3 "right to keep and bear arms for their Clause.31 Only two nineteenth cen- state." - Presser challenged his con-

12 Juns ISpnng 2001 o rdinate to the coll ectiv state ri ght. The most sig nifica nt Second Amendment case is United States u. Miller. "' Miller is the only Second Amendment case of the twentieth century, a nd it is the Supre me Court's most detailed analysis of this constitutional provision. '2 This case concerned two defendants charged w ith transpo rting in interstate com­ merce a shotgun having a barrel less than eighteen inches, in violati on of the ati o nal Firearms Act of 1934. The district court quashed the indict­ ment, holding that the Act violates the Second Amendment. The Su­ preme Court reversed. '3 nfortunately, fo r pro po nents of either side of the Second Am end­ ment debate, Miller is hardly a de­ finitive answer. The text of Justi ce McReyno lds's decision spans o nl y e ight pages, four of whi ch are de­ voted to exte nded quo tati o ns.'' Asid e fro m two string citati o ns, the Justi ce McReynolds cites o nl y one state court decisio n, Aymette, in di­ rect suppo1t of a conclusio n. Given the essential role that Miller plays in all fe de ral Second Amendment cases, it is worth quoting the Court analys is in its entirety. In the absence of any evidence tending to show that possession o r use of a 'shotgun having a barrel of less than eighteen in ches in length ' viction arguing, inter alia, that the It i undoubtedl y true that all citi­ at this time has some reasonable statute violated his Second Amend­ zens ca pabl of bearing arms con­ relati o nship to the preserva ti o n o r ment Rights to keep and bar arms. stitute the reserved milita 1y force o r ffi ciency of a well regular d mili­ In affirming his conviction, the CoUit reserve militia of the United States tia, we cannot say that the Second stated that Cru iksbank conclusively as well as of the states, and, in view Amendment guarantees the ri ght to determined "the ame ndment is a of this prerogati ve of the gene ral keep and bear such an instrument. lim itati o n onl y upon the power of government, as well as of its gen­ Certainly it is not within judicial no­ Congress and the natio nal govern­ eral powers, the states ca nnot, even tice that this weapo n is any part of m nt, a nd no t upo n th at of the laying the constitu tional provisio n the o rdina1y military equipment or 58 state. " Therefo re, the Court con­ in questi o n o ut of view, pro hi bit the that its use could contribute to th e c luded t ha t s ince th e Second peopl e from keeping and bearing commo n defense. Aymefl e u. State Amendme nt is a restri ction o n onl y arms, so as to deprive the United ofTennessee, 2 Humph., Tenn. , 154, th e national government, o ne must States of their rightful resource fo r 158. look to the tate fo r protecti on of the mainta ining the public security , and The Constitutio n as o ri ginall y ri ght to keep an bear arms .-w di sa ble the peopl e from pe rfo rming adopted granted to the Congress As to whethe r the state 'Uffe rs thei r d uty to the general govern­ power- 'To provid e for calling 11 any restraint in its autho rity to regu­ ment. ' fo rth th e Militia to execute the Laws late the keeping and bearing of In other words, as in the Aymette of the nion, suppre s Insurrecti o ns arms, the Presser Court noted the and Buzzard state decisions, the and repe l Invasions; To provide fo r fo ll owing. ri ght to keep and bear arms is sui - o rga ni zing, arming, and disciplin-

Juns 1 Spnng 2001 13 ing, the Militia, and fo r governing An individual ri ghts advocate, on the ganizations against possible en­ such Part of them as may be e m­ other hand, could note the attention croachments by f ederal power.49 ployed in the Service of the United th cou1t paid to the militia vs. stand­ The 194 2 d ecisio n Cases v. States, reserving to the tat s respec­ ing army probl em. Therein li es the United States50 recognized the au­ tively, the Appointment of the Of­ opportunity to assert that the militia thority of Congress to abrogate any ficers, and the Autho rity of tra ining exists to resist tyranny, and how individual rights th at might be em­ the Mili tia accord ing to the disci­ bette r to do that than to arm every bodied in the Second Amendment pline prescribed by Congress.' citi zen? However, this argument is th rough federal weapons statutes. U.S .C.A.Const. art. 1, § 8. With ob­ inherentl y weak because Aymette, "The Federal Firearms Act undoubt- viou purpose to assure the continu­ whi ch Miller cites, directl y rejects dly curta il s to some extent the ri ght ati on and render possible the effec­ this proposition. of individuals to keep and bear arms tiveness of such forces the declara­ Another interpretati on of Miller but it does not fo llow from this as a tion and guarantee of the Second with respect to this debate may be nee ssa1y consequence that it is bad Amendment were mad . It must be that it is simply not o n po int. under the Second Amendm nt. " interpreted and appli ed with that Whether the right to keep and bear Cases also added its interpretati on arm is coll ecti ve or individual right end in view. as to w hat Justi ce McReyno lds 8 The Militia which the rates were was not before the Court. ' Ne ither meant to say in Miller. expected to maintain and train is set was the right to keep and bear arms, The Cases Court recogni zed the in contrast with Troop which they as it relate to self defense before problem that Miller created by pref­ were fo rbidden to keep without the the court. The issue was whether acing its reasoning with the obser­ consent of Congress. The entiment the government may regul ate cer­ vation that the gun in que ti on was of the time strongly disfavored ta nd­ tain weapons not used in "civilized not a militia weapon. Noting that ing armies; the common vi w was warfa re" or of use only to the "as- "almost any modern lethal weapon" that adequate defense of country and assin." State courts resolved that is probably in a militaty arsenal, the law coul d be secured through the question over a century befo re appeals court concluded that any Militia-civil ia ns primarily, soldiers Miller. A government may adopt rule of law based on th e nature of on occasion. reasonabl e manner of use restric­ the weapon is unte nabl e. ' ' This The signi fica ti on attri buted to the ti ons on the right to bear arms in the prompted the Cases Court to ob- term Mili tia appears from the debates interest of the general welfa re. All erve: "However, we do not feel that in the Convention, the hist01y and b ut one ante b llum state court the Supreme Court in [Millen was legislation of Colonies and States, and agreed with that. attempting to formulate a gene ral the writings of approved commenta­ rul e applicabl e to all cases."52 The Courts without Controversies: tors. These show plainly enough that court concluded that the rule laid the Militia comprised all males physi­ Federal Courts since Miller down in Miller properl y disposed of ca ll y capable of acting in concett for Almost as soon as cases could that specific case, but the Supreme the common defense. 'A body of citi­ work the ir way through th appeals Court intended it to go no further.5 3 zens enroll ed for militaty discipline. ' process fo ll owin g Miller, the rule The appeals court conclu ded And furthe r, that ordin aril y when that the Second Amendment does that each Second Amendment case ca ll ed fo r service these men were not e mbody an "individual" right must be decided "like cases under expected to appear bearing arms sup­ emerged, and it has been with us the clu e process clause ... on its own pli ecl by themselves and of the kind ever since. Just three years after facts. "51 For the Cases Court, the in common use at the time.'' Miller, the third circuit declared in dispositive factor in resolving Sec­ The Court in Miller has, in es­ United States v. Tot: ond Amendment cases is whether sence, promulgated a rule of decision the circumstances urrounding the It is abundantly clear from fo r the Second Amendment. It de­ possession or use of a weapon in the discussions of this amend­ clared that courts are to interpret the questi on "has any reasonable rela­ ment contemporaneous with its amendment with the "obvious pur­ tionship to the preserva tion or effi ­ prop osal and adoption and pose to as ure the continuati on and ciency of a well regulated militia. "55 those of learned writers since render possible effecti veness of Applying this rule to the appell ant 6 that th is a mendment, unlike such [militia] forces."" uch reason­ in Cases, the coun examined his in­ those p rouidingj or protection of ing is in line with the collecti ve rights tent in using, transporting, and pos­ ji-ee speech and ji-eedom of reli­ doctrine. That Miller ass rts the sessing the proscri bed weapon and gion, was not adopted with in­ collective rights view i further sup­ ammunition. The court concl uded dividual rights in mind, but as ported by its cita ti on of Aymette, that the appe ll ant's conduct was a a protection j o1· th e States in which is one of onl y two antebel­ "fro li c on his own and without any lu m cas s suppo1t ive of this view. 17 maintenance qf their militia or-

14 luns 1 Spnng 2001 tho ught or intention of contributing right to keep and bear arms. "63 Even "essentiall y a fo rm o rder frequentl y to the effi ciency of the well regu­ the judge who dissented in the panel used in Texas divorce procedure."-2 late d militia w hich the Second decisio n did no t raise a Second The court did not noti fy Emerson Amendment is designed to foste r. "'i6 Amendment concem .<'"' Hi objecti on when it granted the order that if he Through th is reasoning, the court was that prohi biting handgun posses­ re mained in possessio n of his fire­ completely avoided the militaty use­ sion in the home violates the "funda­ arm, he would be subject to federal fulness of the weapo n in questi o n. ment tight to privacy. "6'i The dissent prosecution 73 Emerson continued At the same time, th court firml y also argued that the ordinance vio­ to keep his weapo n, and the United tied its S cond Am ndment jurispru­ lated "the fundamental right to defend States subseque ntly charged hi m dence to the well being of the mili­ the home against unlawful intrusion with violating th e Gun Control Act. tia. Issues related to coll ecti ve or within the parameters of the criminal The district court granted Emerson's individual rights were not relevant law."66 In not raising the Second motio n to dismiss the in lictment, to its decision. Amendment, perhaps the dissenting ho lding that the Gun Control Act Since a fe leral statute detrimen­ judge was in1plicitl y agreeing witl1 the vio lated his Second Am nd me nt tal to the militia would fail to pass majo rity, which stated that Second ri ghts and his Fiftl1 Amend ment Due 7 constitutional muster, what is the na­ Amendment has never be n incorpo­ Process rights ' ture of the militia? Is it a "select mili­ rated into the Due Process Clause of The district coutt statted witl1 a tex­ tia" of trained professionals or a "gen­ the Folllteenth Amendment. 6- tual analy is of me amendment. It noted eral militia" composed of individual that the amendment's introducto ty citizens? The Miller decision invites Late Breaking News cla use does not qualify tl1e tight to bear this questi on given its description of from Texas anns, "but instead [exists) to show why the militia as "comprised [o ~ all males 7 All tl1e circuit coutts of appeal that it must be protected. " ' It also noted physically capable of acting in con­ have examined the econd Amend­ mat "me people," as us d in me amend­ cert fo r the commo n defense."'­ ment have uniformly concluded tl1at ment means exactly me same tiling as However, so fa r, no federal appe llate this provision recognizes a collecti ve in tl1e Pream ble, me First, Folllth, Fifth, court has taken the bait and used this 6 ri ght. However, not evety ci rcuit has and Ninth Amendments." judge to concl ude that Millerrecogn.izes an passed on tl1e collective vs . individual Cummings next devoted six pages to individual right. On the contraty , at rights issue. ln fact, right now there detailed examinati o n of the least one circui t has concl uded that is pending before the Colllt of Ap­

Jurts 1 Sprtng 2001 today? The Supreme CoUtt, not hav­ Emerson. 598, 600 ( .D. Texas 2000). Other commentators, including 3 D on B. Kates, Jr., Handgun Prohibition ing addressed this issue directly, and the Original Meaning q( the ec­ appeared inclined in Millen owarcls justice Scalia, have argued that even ond Amendment, 82 Mich. Law Rev. the coll ective rights view. That is if there would be 'few tears shed if 204, 211 0983). certainly the rulings of several dif­ and when the Second Amendment 4 The United States Constitution, Anicle 1, Section 8 provides: fe rent circuits in the federal Courts is held to guarantee nothing more The Congress sha ll have the Power ... of Appeal, no ne of which the Su­ than the state ati o nal Guard, this To provide for ca lling fo1th the Militia to preme Court has disturbed. How­ wou ld simply s how that the execute the Laws of the 1lion, suppress Insurrections and repel Invasions; To ever, the Supreme Court has never Founde rs were right when they provide for orga nizing, arming, and dis­ actually ruled on the individual ver­ feared that some future gen ration ciplining, the Militia, and for governing such Part of them as may be employed sus coll ecti ve rights issue. Whether might wish to abandon libe rti es that in the Service of the United States, re­ it would affirm the rulings of the they consid e r d essential, and so serving to the States respectively, the va ri ous court of appeal may be in sought to protect those liberties in Appointment of the Officers, and the Authority of trai ning the Militia accord­ doubt. justice Thomas made his a Bill of Rights. We may tolerate the ing to the discipline prescribed by Con­ view cl ear in Printz. "Marshaling abridgement of property ri ghts and gress. an impressive array of histori cal evi­ the e liminatio n of a ri ght to bear U.S. CoNST. a1t I,§ 8, cl.l5, 16. 5 Kates, supra nme \ h 4, at 212. dence, a growing body of scho larly arms; but we sho uld not pretend 6 Kates, supra note \ h 4, at 213. commentary indicates that the 'right that these are nor reductions of 7 Robert Dowlut, Tl?e Right to Arms: Does to keep and bear arms' is, as the rights. ' (citations omitted). Rl the Constitution or the Predilection of Amendment's text suggests, a per­ Is that the meaning of the Sec­ .fudges Reign?, 36 Okla. L. Rev. 65, 94 & n.137 (1983). 80 sonal ri ght. " The earl y stare court o nd Amendment today' Is it now 8 "The powers not delega ted to the United decisions discussed herein are mer Jy a shorthand notation for the States by the Constitution, nor prohib­ among this hi storical evidence. ational Guard? Before we agree ited by it to the States, are reserved to tl1 e Stares re pectively, or to d1e People. " The majority of antebellum state to this interpretation, perhaps we . CoNsT. amend. X. courts held that the stare may regu­ sho uld pause to consider why the 9 Dowlut, supra note \ h 8, at 95 n.143. late, but not prohibit, the canying Founders adopted this constitu ­ 10 ee Sanford Levinson, Tl?e Ernharrass­ ing Second Amendment, 99 Yale L.J .637, of concealed weapons. The com­ tional provision in the first place. 644 (1989) (suggesling dur the econd mon theme among these decisions ju tice Story ca ll ed the right to keep Amendment is the worst drafted provi­ is that a regul ation of the manner and bear a rms "a stro ng moral sion o f d1e Constitution). 11 Marbllly v. Madison, 5 U . . (1 Cranch) of bearing arms does not infringe check against the usurpation and 137, 177 (1803). upon the individual and fundamen­ arbitrary power of rulers; and will 12 Kates, supra note \ h 4, at 247 . tal right of self defense. State courts g n rally ... enable the p ople to 13 12 K y. 90 (1822). recogni ze that the legislature's au­ resist and triumph over them. "R2 14 Bliss, 12 Ky. at 93 . thority to promote domestic tran­ The Founder had their civil liber­ 15 24 Tex. 324 (1859). 16 Cochrum, 24 Tex. at 400. quillity and protect th e general wel­ ties trampled by a tyrant. They un­ 17 See State v. Reid, 1 Ala. 612, 614 (1840) fare permit these re lative ly mild derstood that those sworn to pro­ ( ho lding "The constitution declaring regulations. tect the people may someday be­ Lhat, 'Eve1y citizen has d1e right to bea r 3 arms in defense of himself and the State,' Today on the other hand, the is­ come its captorsH Perhaps the has neid1er expressly nor by implication, sue in th e federal courts is whether framers of the Second Amendment, denied the Legislature, d1 e right to en­ the statue at issue infringes upon the this short constitutio nal provision, act laws in regard to d1e manner in w llich arms hall be borne. "). See also tate v. efficiency o r operati o n of a well had mo re to say than we reali zed. handler, 5 La.Ann. 489 (La . 1850) (hold­ regulated militia. The individual's For after we have disarmed our­ ing d1e Second Amendment guarantees d1e right to openly ca ny anns for se lf self defense ri ght does not even en­ selves, whom shall we entrust w ith defense, but the legislature may prop­ ter the picture. The federal Courts this awesome right? #...... erly prohibit concea led ca rry in order to "prevent bloodshed and a ·sa sinations of Appeal unifo rml y hold that the committed upo n unsusp ecting per­ Second Amendment simply does Greg Neugebauer is a third-year sons."). not embody an individual self de­ evening student. He is also a member 18 1 Ga. 243 (1846). fense right. of the Duquesne Law R eview. His 19 Nunn, 1 Ga. at 254. What has happened to this right? casenote on the recent Supreme Court 20 eeState v. Mitchell, 3 1nd. 229 (Biackf. decision Kimel v. Florida Board of 1833). A statute '· prohibiting all persons, Early in our hi sto ry, th Second except travelers, from wearing or ca rry­ Amendment e mbodied the incli­ Regents will soon appear in that ing concea led w ea pons, is not uncon­ stitutional." !d. eealso ENATIS IIIJCOMM. vid ual right to keep and bear arms journal. Comments on this article are welcome at [email protected]. ON TH E CoNsnnmoN OF 'THE Cm ll\ 1. ON TilE for self defense . Today it does nor. ]L 01 WlY, 97n l CoNG ., 20 SESs., T11E RlGHT Should we care? justice calia pro­ TO KEEP AJ'ID 13 EAH M\IS, 6 (Comm. Print ENDNOTES 1982) [hereinafter SE:>.ATE llBCOJ\1!\IITrEE vid es an interesting comment by 1 U.S. CoNsT. amend. ll. H.EPOHT] (examining Mitchel/) . ee also State u. Reid, 1 Ala. 612, 618 (1840) (ex- way o f judge Cu mmings in 2 United States v. Emerson, 46 F.Supp.2d

16 Jur•s Spnng 2001 am ining Mitcbel/). See also State v. make out a case of self-defense. 59 Warin, 530 F.2d at 106. Huntly, 25 .C. 481 (1843). Even 30 Kates, supra note\ h 4, at 246. 60 530 F.2d at 106. though a citizen is free to ca ny a gun Warill, 3 1 at416-17. for any lawful purpose, the legislature DredSco11, 60U . . 6 1 Love v. Pepersack, 47 F. 3d 120, 124 (4th my proscribe d1 e ca ny ing of a weapon 32 Dowlut, supra note\ h 8, at 86. Cir. 1995) ("the amendment does not wid1 intent to threaten or terrorize. Jd. 33 92 u.s. 542 (1875) confer a right to bear any firearm. ''); at 420. 34 Cruiksbank, 92 U.S. at 547. Hickman v. Block, 81 F. 3d 98, 101 (9th Cir. 1996) ('·we follow our sister ci rcuits 21 Kates, supra note \ h 4, at 244. 35 Cruikshank, 92 U .. . at 553. in holding d1at the Second Amendment 22 An exa mple ofd1e collective rights view 36 116 U.S. 252. b a right held by the states, and does is State v. Buzza rd, 4 Ark. 18 (1842) 37 Presser, 11 6 U.S. at 253. not protect d1e possession of a weapon ( Publica tion page references are not by a private citize n. "); Gillespie v. City ava ilable for this decision). The Buz­ 38 Presser, 11 6 U.S. at 265 (citing Cru iksbank, 92 U.S. at 553). of Indianapolis, 185 F.3d 693, 699 (7m zardcoun held d1at neid1er the state nor Cir. 1999) (holding d1e federal Gun Con­ 39 Presser, 116 U.S. at 265. me federal constitution protects the right trol Act does not violate the econd of "each member of me community to 40 Presser, 11 6 .S. at 265. Amendment because it regulates private protect and defend by individual force 41 307 U.S. 174. individuals, not tares.). his private rights aga inst eve1y illega l in­ 42 Kates, supra note \ h 4, at 247; Dowlut, 62 Quilici v. Village of Morton Grove, 695 vasion." The constitution does notre­ supra note \ h 8, at 86; Keitl1 A. Ehrman F.2d 261 (7d1 Cir. 1989). quire that the "right to keep and I ea r & Dennis A. Heniga n, Tbe Second 63 Quilici, 695 F.2d at 271. arms be subject to no lega l comrol or Amendment in tbe 7iue111ietb Cent111y: regulation" it would eventually produce Have You See11 Your Militia Lately?, 15 64 Quilici, 695 F.2d at 271 (Coffey, .f. , dis­ senting). "disorder and anarchy in the commu­ U. D AYTO\' L. REv. 1, 41 0989). nity. " 65 Quilici, 695 F.2d at 280 (Coffey, ]., dis­ 43 Mille1~ 307 U.S. at 177. 23 21 Tenn. 154 (1840). senting). 44 ] ustice McReynolds ftrst recites the facts 24 21 Tenn. at 154. 66 Quilici, 695 F.2d at 278 (Coffey.]., dis­ Aymelle, of d1e case, including a s umm ~uy of the senting). 25 Aymelle, 21 Tenn. at 158. relevant statute. Ne),'t, he dedicates a 26 Aymette, 21 Tenn. at 158. page to quoting the statute itself. Then 67 Qui/ici,695 F.2dat270. SeealsoFresno Rin e and Pistol Club, Inc. v. Van De 27 Aymelte, 21 Tenn. at 158. mere are a few more facts followed by Kamp, 965 F.2d 723, 730 (9dl Cir. 1992) 28 The Tennessee Supreme Court in four paragraphs examining the Second Amendment, which is d1 e only analysis (concluding d1at no Supreme Coun case Andrews u. Stale subsequently made in d1e opinion. The bulk of the rema in­ suggests d1at the Second Amendment d1is implication explicit. der of d1e opinion includes three pages is incoq)orated into the Fourteenm). What, th en, is involved in tl1is right of taken from a book on seventeentl1 cen­ 68 46 F.Supp.2d 598 (N.D. Tex. 1999), ap­ keeping arms? lt necessa rily involves tLIIy colonial America. While dlis ap­ peal docketed, No. 99-10331 (5th Cir. the right to purchase and use d1em in pears to be of some relevance, for it 1999). such a way as is usual, or to keep them deals wid1 the colonia l militia , most of 69 F.Supp.2d at 601. for d1e ordina1y purposes to which they Emerson, the text concerns me provisions mUitia­ 70 Emerson, F.Supp.2d at 601-07. are adapted; and as they are to be kept, men were required to provide while on 71 F.S upp.2d at 599. evidentl y witl1 a view d1at d1e ci ti zens duty. Jvlil!eJ; 307 U.S. at 174-83. l:.'merson, making up the yeoman1y of the land, 45 Mille1; 307 .S. at178-79. 72 Emerson, F.Supp.2d at 599. the bo ly of tl1 e militia, shaU become 73 Emerso 11, F.Supp.2d at 599. familiar witl1 tl1eir use in times of peace, 46 Mi!le 1 ~ 307 .S. at 178. 74 F.Supp.2d at 6I 1-12. that they may the more efficiently use 47 But see supra note \ h 30 (The Tennes­ Emerso 11, them in times of war; d1en the right to see Supreme Court recognizes d1at d1e 75 Emerson, F.Supp.2d at 601. keep arms for tl1is purpo e involves d1e Aymettedecision is not to be construed 76 Emerson, F.Supp.2d at 601 (citing right to practice tl1 eir use, in ord er to as abrogating d1e individual right to keep United Sta tes v. Verdugo-Urquidex, 494 attain to thi efficiency. The right and and bear anns for se lf defense). u. . 259, 265 0990)). use are guaranteed to the citize n, to b 48 See Printz v. United States, 521 U.S. 898, 77 Emerson, F.Supp.2d at 602-07. exercised and enjoyed in time of peace, n.1 0997) (Thomas, j., concurring). 78 Emerson, F.Supp.2d at 607. in subordination to d1e general ends of Our most recent treatment of d1e Sec­ 79 Emerson, F.Supp.2d at 608. civil society; but, as a right, to be main­ ond Amendment occurred in U11ited tained in all its fullness. 80 Printz, 521 U.S. at 938-39 & n.2 (Tho­ States u. Mille1~ in which we reversed the mas j., concurring). Andrews, 50 Tenn. at 170. District Coun's invalidation of the Na­ 81 F.Supp.2d at 609 (citations 29 In the Tennessee Su­ tional Firearms Act, enacted in 1934. In Eme1 on, Andrews u. State, omitted). preme Coun reaffirmed its holding in !VIi/let; we detennined d1at the Second Aymelte, but clarified its interpretation Amendment did no t guara ntee a 82 Leuinso11, supra note \ h 11 , at649. of the individual right to u e weapons citize n's right to possess a sawed-off 83 For a modern example of governmen­ in self defense. Andrews v. tate, 50 shotgun because d1at weapon had not tal tyranny See Korematsu v. nitecl Tenn. 165, 172,177 (1871). been shown to be 'ordinary military rates, 323 .S. 214 0944) (holding d1 at Bearing arms for d1e common defense equipment' dlat could 'contribute to me tl1e forced relocation of American citi­ ma y weiJ be held to be a political right, common defense. ' The Court did not, zens to concenu·ation ca mps under d1e or for protection and maintena nce of however, attempt to define, or othe1wise federal war powers does not offend th e such rights, intended to be guaranteed; construe, the substa mive right protected Constitution). See also WILLI MI H . but d1e right to keep mem, with all mat by d1e Second Amendment. (citations RE11 NQUIST, Au L\ws BuT Q ,q;: CiVIL LiBER­ is implied fairly as an incident to this omitted). TIES IN W ARmiE, 184-21 1 (1998). The right, is a private individual right, guar­ 49 131 F.2d 261 (3rd Cir. 1942). Ch ief Justice gives a dispassionate ana lysis of the law and the contempo­ anteed to the citizen, not tl1e soldier.... 50 131 F.2d916 (1st Cir. 1942). raneous events leading up to d1is act of We may say, mat d1e clause of the Con­ 51 Cases, 131 F.2d at 922 . ·titution authorizing the Legislatu re to treachery. As for his prediction as to 52 131 F.2d at 922. regulate d1e wearing of arms wid1 a view Cases, whether d1e Korematsu decision would to prevem crime, cou ld scarcely be con­ 53 Cases, 131 F.2d at 922. be the same today, the Ch ief Justice strued to aud1orize d1e Legisla ture to 54 Cases, 131 F.2dat922. writes: "Under today's constitutional law, quite ce rtai nly not. ... But the law prohibit such wearing, where it was 55 Cases, 131 F.2d at 922. was by no means so clea r in 1943 and clearly shown d1ey were worn bona fide 56 Cases, 131 F.2d at 923. to ward off or meet imminent and dlreat­ 1944 when these cases were decided." 57 307 U.S. at 179. ened danger to life or limb, or great Mille1; Jdat 207. I od iJ y harm, circumstances essential to 58 530 F.2d 103 (6d1 Cir. 1976)

Juns Spnng 2001 17 Structured Settlements: Alternative Solutions for Settlement of Damages in Lieu of Trial BY JENNIFER L. GILLILAND

menr earnings on the funding gua r­ udge Learned Hand once said, "As a litigant I anteed contract 7 In essence, a should dread a lawsuit beyond almost anything Structure reduces th e difficulties in predicting losses a nd econo mi c Jelse short of sickness and death." As evidenced by events by paying damages periodi­ the above quote, Judge Hand realized the inadequacies ca ll y. 8 Anyone who wo rks in the settl eme nt of damages should be of the American legal system as early as 1921. 1 Since familiar with Structures, as they of­ fer significant advantages th at are then, two issue have continued to trouble the legal enjoyed by everyone involved in system as it relates to civil litigation: cost and delay. 2 negoti ating a settl ement. The first bene fit i that dam­ In addition, unce1tainty over juries ate a settl ement agreeme nt that is ages fo r those who have incurred remains as troubling today as ever, structured to offer a plan fo r peri­ bodily injury ar no t subject to with verdicts running the gamut from odic future payments and w hich fed e ra I income tax pursua nt to pro-defense to excessive punitive usually includes cash at settl ement Section 104 (a) of the Inte rnal Rev­ awards. to cover immedi ate needs such as enue Code and IRS Reve nue Rul­ Alte rn ati ve Dispute Resolution, econo mi c losses and attorney's ing 79-220 9 Claims fo r e mo ti o nal commo nly referred to as ADR , is a fees6 It is a way of settling a physi­ distress alo ne a re not exempt un­ catchall term fo r a growing num­ cal damage cl aim with a plan "struc­ d e r this Rule, as they a re no t ber of processes develo ped as al­ tured" to meet specific needs of the physical injuries. This tax adva n­ ternatives to traditio nal court-based injured party. A structured settl e­ tage is substantial, as refl ected in litigatio n.3 Tho ugh ADR is not a me nt ( "Structure ") pro vides a the follo wing chart, adapted fro m new concept, it has garnered re­ greater total payout than a Jump Financ ia l Settl e me nt e rvices newed interest because it reduces sum payment, as payme nts a re (FSS) , a bro ke r s p eciali zing in the time and mo ney pent o n con­ made over time and include invest- structured settle me nts: ventio nallitigati on,4 and it removes the uncertainty of questionable o r Strw:turecl Settlement Interest Rate Required Interest Rate Required Internal Rate of Return to Equal Structure Rate to Equal Structure Rate excessive jury verdicts. ADR tech­ for 15% tax bracket for 36" tax bracket niques are also useful in settlement discussio ns and in moving blocked s.oo 5.88% ,.81" settlement negotiati o ns fo rward .5 This article focuses o n one of the &.oo 7.06% less well known methods of ADR 9·3·" - structu reel settl ements. Stru ctured Settle me nts are a ,.oo 8.23% 10.94" fo rm of ADR involving a settl ement structure d to meet the injure d l.oo 9·41% 12.50" I pla intiff's individual needs; they Example if Structure Note-example is for Federal If claimant were to get lump serve as innovative negoti ati o n Tax brackets. Including state sum and invest, such as tn a CO. tools that can wo rk to the benefit ~ ~,~,.~;Return and tax rate, assuming 3%, CD that tool would haw to provide fn36"tax interest would have to increase In excess flf10.94" to get the of eve1yone involved in the claims 1iriltlcet as well to equal a 7% structure. samende flfnltum after taxes process. Essentia ll y the parti es ere- paid with a"" tntemaJ rate flf Tetumon

18 Juns I Spnng 2001 Once a structured settlement is A third adva ntage to a struc­ wo uld like ly be awarded , marita l reached , the defendant's carrier pur­ tured settlement, in additio n to tax and fa milia l status, disability, and chases an annuity from a life insur­ breaks and guaranteed payments, present a nd future econ o mic ance company, thus providing an is that ther are no mo ney man­ lo es s ho uld a ll be considered . ad va ntage fo r insurance compa­ age ment fees whe n a structured The fo ll owing examples po rtray nies as well. The injured party is settl e ment is utilized . A Structure situatio ns in which both the insur­ the bene fi ciary o f the annuity and helps in planning fo r future needs a n ce pro fessio n a l a nd th e will receive all et payments. If and in reducing the premature dis­ pla intiff's coun I created a struc­ the plaintiff dies, contingent be n­ positio n o f settl e me nt d o ll ar .12 tured settl eme nt w ith a payme nt e fi cia ri es are named to ensure the Again , o ne must look to the needs pl an in order to successfull y meet guaranteed payments are mad e , of the pla intiff. If the pla intiff is a the injured party's needs, the re by again tax-free. s tockbro ke r, fo r example, the resulting in a favorable clai m so­ If a plaintiff wo uld coll ect cl am­ need fo r financial assistance may lution fo r everyone in volved . ages and invest in the ma rke t, not be s ignificant. On the o th r most earnings o n the lump sum hand, if the cl aimant is a n average REAl TORT ClAIM CASE would be taxa ble. It is impo rtant individual without investment ex­ APPliCATION #1: to note that if the rate o f return is peri e nce, the lack o f a manage­ Timothy Foreman of ati onwide low o n the structure payment, the me nt fee is yet a nother reason to Insuranc and plaintiffs attorney Tim o pe n market may be a better av­ e mploy a Structure. Sho ll e nbe rger reached a positive e nue if the needs o f that particu­ Traditio na l neglige nce claims resolution to a claim regarding a busi­ lar plaintiff are to gain pre mium invo lving dog bites, fractures, and ness auto accident with the help of a o n a settl e me nt. Mr. Ke nne th cla ims with future needs such as structured settlement. The claim in­ Noce, Vi c -President o f Financial neck and back injuries, head inju­ volved a negligence cause of action ettl eme nt Services, advises, ho w­ ri es, burn and quadriplegic inju­ in Eastern Pennsylva nia in w hich the eve r, that "with the ri sks and vola­ ri es are all potential candidates for plaintiff incurred several injuries. The tile market, uncertainty is created e mployme nt o f a structured settl e­ evaluati on led th claims representa­ whe n an in vestor looks to the ment. Situati o ns in which the re tive to offer a structured settl ement, o pe n marke t versus the guaran­ are mino r childre n o r othe r plain­ with the assistance of Financial Settle­ teed payments of a Structure." tiffs w ho may lack the capacity to ment Services, based o n the long­ The second a dva ntag e o f a handle mo ney at the time of the te rm n eed s o f the cla ima nt. Stru cture is th at p ayme nts a re settl ment are situatio ns that a lso Sholl enberger was rec ptive to this guaranteed no matter what ha p­ lend themselves to the utilizatio n proposal. Both pa1ties recognized pe ns to inte rest rates o r the stock o f a Structure n No n-traditio nal that this pa1ticular plaintiff wa not market, thus no wo rry is created to rt cla im itua ti o ns as e nviro n­ educated in investing and had a need abo ut whe re to invest o r re invest me ntal, CERCLA , constructi o n de­ to purchase a home for his family. A a lump sum settl e me nt. 10 The tax fects and asbestos li a bility cla ims structured settlement was developed ad va ntage a nd the g ua ra nteed also pro vide o ptio ns resulting in to compensate all o f the plaintiffs payment by the defendant's car­ bette r o utcomes for a ll p a rtie .14 needs including tl1 e no n-economic ri e r in the fo rm o f a structured In a n y o f th e a bove-c ite d to rt damages. settleme nt create a binding con­ claims, a structure can b creat d The settlement included a lump tract and cannot be bro ke n by the to m eet the fl e xibility o f th e sum of 200,000 to cover economic defendant. cl aimant's needs. This is the fo urth damage expenses such as a lien and Under certa in circumstances, advantage o f a structured settle­ atto rney fees, w hil e the $125 ,000 some pla intiffs may want ro break me nt, the a bility to create a fl ex­ guarante d structure payments in­ the contract. Senate Bill 818 con­ ible settl eme nt custo mi z d to the cluded monthly payments of $995 for ta ins a n ame ndme nt pro tecting injured party's needs. ftft:een years. Thi was used to fm ance structured settl eme nt o bligors and A Structure can be created to a home, w hile resulting in actual net payees b y re quiring court a p­ make payme nts e ithe r fo r life o r to tl1e claimant of $179,100. As Mr. proval that the tran acti o n i in the fo r a stated pe ri o d o f time, but Foreman o f ati onwid Insurance best inte rest of the p ayee be fo re a first, a need a naly is must be p e r­ stated , "tl1e structure was a success­ ri ght to a payme nt strea m can be fo rmed to create a payment o ptio n ful tool in this case partia ll y be­ sold ro a facto r. 11 This legis la­ th a t m eets the injure d p a rty's cau se th e m o nthl y p aym e nts ti o n thus insures that plaintiffs are needs. While evalu ating a claim he lped to act as a financial pla n­ further protected w he n settling a fo r a po te ntia l structured settle­ ning d evice fo r the cl aima nt, w ho claim fo r da mages with a truc­ me nt, gender, the severity o f the was no t accustomed to handling ture cl settl e men t. injury a nd th e d a m ages th a t

Juns [Spnng 2001 19 substantial sums of money. The me nts don't just settle the claim, Editor's Note: This article was excerpted periodic payments also assured they do so in a way that meets all from Jenn[fer L. Gilliland's paper Tort the attorney that be was acting in of the parties needs. Claims: Alternative Solutions for hi s client's best interests." Ultimate ly, in the proper cir­ Settlement of Damages in Lieu of Trial, cumstances structured settl e ments for which she received the 2000 John WHY WAS IT SUCCESFUL FOR are one of the most e ffective forms Laugharn Scholarshipfrom the National NATIONWIDE?REAL TORT of alternative dispute resolution. Structured Settlement Trade Association. Her essay was the unanimous pick ofthe CLAIM CASE APPLICATION #2: Structured settl e ments allow par­ ties the fl exibility to create a settle­ judges. William Mokel, CCLA, of Na­ me nt customi zed to the injured tionwide Insurance and attorney party's needs. Th y can promote ENDNOTES Neil Ro thschild a lso applied a l Irving R. Kaufman, New Remed ies for quicker settl ements, which then stru ctured alte rnative for settle­ the Next Cemury of Judicial Reform, provid e timely payments that can 57 Fordham L. Rev. z- 3, 255 (1988) me nt o f damages in a negligence he lp re medy a plaintiff's injury quoting Le arned Hanel , The motor veh icl e accide nt in Western Defeciencies o f Trials to Reach the both at the time of th e settl eme nt Hea rt of the Maner, in 3 lectures on Pennsylvania. He re, th e fo rty-one a nd in the future, whe n he o r she lega l topics , 87, 105 as cited in 20 year old plaintiff susta in ed injuries Dei.].Corp. L. 937. may have a greater need for the including a fra ctured left acetabu­ 2 20 Del.j.Corp.L.937 b y Daniel A . in come . These payme nts a re Fulco, Widener School of Law, 1995, lum. This plaintiff was a n a uto g ua ra nteed for the life of the citing to justice for All, Reducing Costs p arts store manager, whose fam­ and Delay in Civil Litigation, Report settl eme nt and the re are no man­ il y relied on his income. Since his of Task Force. 1 ( 1989). agemen t fe s. tructures for 3 Robert A. Creo, Esqu ire- About After­ disability from the accide nt was physica l injuries are not subject to native Dispute Reso fut io11, page l. like ly to affect both his present federal income tax. Perhaps most 4 Anne-Marie Thompson - Tb e Afterna­ and future earnings capacity, the tiue: Alternative dispute resolution is importa ntl y, stru c ture d settl e­ a win/win choice for clients and tau• claims re presentative initiated an ments are suppo rted by th e judi­ .fi"rms alike, proponents say. The offer to th e attorn ey in the form Pennsylva nia Lawyer, May J 992, 1. cial syste m and eliminate the ri sk of a Structure. - 446 PLI/ Lir 371, 386, Darlene Y. Ross , of jury uncertainty. They affo rd Practicing Law Institute 0992). This case, a limits case of the pa rties a forum to inte ract 6 Financial Settlement Services Bro­ $50,000, was designed to meet th e peacefully which helps fa cilitate chure, "Answers to Questions you needs of the plaintiff's future loss may have about Structured Se ttle­ better working relationships mellls" 1997 Companies Agency, Inc. o f potential in come. A lump sum among all involved with the settle­ 7 Id. of $20,000 was paid for expenses, me nt process. And, just perhaps, 8 Modern American Remedies Cases while the remaining $30,000 was and Materials, 2nd Ed. D o ug las they ca n he lp eliminat the inad­ structured into four g ua ra nteed Laycok , Aspen Law & 13usiness (1994). equacies of traditional litigation. 9 Supra at note 66, in additio n to Sec- pe ri odic payme nts to be received Thus a n injured party may not, as tion l04(a) of the IRS Code and IRS by the plaintiff at age fifty , fifty­ Revenue Ruling 79-220. a litiga nt, have to "dread a lawsuit fi ve , sixty and sixty- fi ve. These 10 Id. beyond alm ost anything else sho rt p ayme nts will net a gua ra nteed 11 Senate Bill 818, as repo rted in the In­ of sickness and death." #--.... suran ce Federatio n of Pennsylva nia, amount of $111 ,000. Damages Inc. Volume XVI , Number 4 and 5. Feb. were paid to the plaintiff to com­ 2000. Jenn[fer L. Gilliland, a graduating law pensate for both hi s pa in a nd suf­ 12 FSS , ··saying YES to th e Structured student at Duquense University School of Se ttlement", 1996 FSS , Companies fering and to take care of his po­ Law, has enjoyed workingfor Nationwide Agency, Inc. tential future econo mi c losses. insurance throughout her law school 13 Id. 14 lei at 6. Mr. Rothschild advised me that studies. in addition to being recognized both h e a nd hi s clie nt w e re for her writing, Ms. Gilliland has also pleased with the overall result, been honored for her oral advocacy skills, because th structure e liminated serving on the Appellate Moot Court ri sk in the open market while pro­ Board and national team as well as the viding for re tire me nt income in Trial Moot Court Board. She has recently the future. The claims represen­ been named Duquesne chapter of Phi tative, Mr. Mokel, also e mphasized Delta Phi Graduate of the Yem~ Upon how impo rtant it is "to secure the graduation, Jennifer is proud to announce financial future o f the injured p r­ that she will be joining the law firm of son with complete tax immunity." Papernick & Gefsky, where she will be As the above torr claim settl e­ active in their civil litigation department. me nts illustrate, structured settle-

20 Juns Spnng 2001 Why The Second Amendment?

BY MICHAELS. ROMANO

ri o r to any bands of regul ar troops HE I FIRST ARRIVED AT TH E D u QuEs E LAw than can I e, on any pretense, raised School in August of 1999, I saw a dis in the United States."4 Sanford Levinson, a noted rnod- W play in the libraty questioning the appro­ rn Constitutional scholar, also sup­ priateness of repealing the Second Amendtnent. It po rts the proposition that one of th purposes of the Second Amendment is my position that this would be a grave mistake, for is to all ow citizens to resist govern­ ment if necessary. Levinson contin­ the reasons set forth in this editorial. Let us ren1en1- ues by stating that by this reason­ ber the ilnportance of the Second Amendtnent and ing, militias refer to the whole popu­ lati on, not a sanctio ned arm y. " count it amo ng our most impo rtant at the writings of the founding fa­ Some would a rgue that if the fundame nta l individ ua l liberti es, the rs indica tes this the me was econd Amendment was intended o ne which assures the continuatio n shared by many of them. 2 to allow fo r an armed populace to of the other freedoms set forth in the Tho mas J e ffe rson 's tho ughts de fe nd itself against tyranny, that Constitutio n. about the rights of the citi z my ca n argument wo uld not stand today in Tragedi es such as th e school be fo und in the Decl arati o n of In­ light of the o phisticated weaponry shootings in Littl eton, Colo rado dependence, which he co-autho red: of modern armies. Howev r, this bring renewed call fo r increased "Governments are instituted among argument does not take into account gun control amo ng o ur fe ll ow citi­ men, deriving their just powe rs from such modern day reminders as Af­ zens as we ll as o ur nation's leaders. g ha nista n , whe re a to ta lita rian In the wake of such tragedies, it is nuclear powe r was unabl e to pre­ onl y natural to be lured by the temp­ vail against a modestl y armed popu­ tati o n of passing mo re gun control Opinion lace who lacked nuclear weapo ns, laws. Befo re succumbing to such armo r, o r air power. Thus reinfo rc­ temptati o ns, let us re fl ect o n th e the con ent of th e governed. That ing the concept that even in mod­ purpose behind the Second Amend­ whenever any fo rm of Government ern cl ay civil war, an arm d po pu­ ment and why th e founding fathe rs becomes destructive of these ends, lace ca n deter government oppres- deemed it impo rtant eno ugh to in­ it is the Right of the Peopl e to alter io n and succe sfull y defend them­ clude it in o ur Bill of Rights. o r abolish it. "j selves.6 William Bl acksto ne, an autho r­ oah Webster, a contempo rary lt is my opinio n that th para­ ity o n Eng li s h Commo n Law, of Thomas Jeffe rson, articulated a mo unt reason for the existence of viewed the individ ual ri ght to keep fear simil ar to Je ffe rson's with re­ the Second Amendment is to a ll ow and b ar arms a necessa1y to se­ spect to the maintenance of stand­ citi zens ro resist the forces of gov­ curing th three great ri ghts. He said , ing armies, "Befo re a standing army e rnme nt and tyranny, sho uld the "After a ll , w hat good would be a can rule, the peopl e must be dis­ need ever present itself. ri ght to property, liberty, or personal armed; as th ey are in almost every One of the purposes be hind the security if one did not have the right kingdo m of Euro pe. The supreme concl Amendme nt is g ua rantee­ to protect these rights. Indeed the powe r in America ca nnot enforce ing individuals the ri g ht to have great ri ght to personal security im­ unjust laws by the sw rei ; because arms fo r pro tecti o n and self de­ plies a ri ght to d fend o ne 's life the whole body of the people are fe nse. As many as 2. 5 millio n through the use of arms." 1 A glance arm ed and constitute a fo rce supe- crimes each yea r a re thwarted by

Juns Sprmg 2001 21 23 1 an average United rates ctttz n mative one when the state takes a 2. Wayne LaPierre, Guns, Crime, and who brandishes a firearm , in most person into custody, thereby pre­ Freedom, 4 0994). 3. !d. at 7. venting him from taking care of cases without a shot being fired. 4. !d. at 9. 21 25 The right to self defense is fur­ himself. The Court stated , 5. anfo rd Levinson , Co mment: Th e ther evidenced in a recent Su­ "While the state may not deprive t:mbarrasing Second Amendment, 99 preme Court case that did not deal individuals of life, libe rty or prop­ Yal e L.j. 637, 646, 647. 6. Robert Dowlut, Th e Right to Keep and with the Second Amendment, but erty without clue process of Jaw, Bear Arms: A Right to Se!f Defense rather the duty of the stat to pro­ it is not obligated to e nsure that Against Criminals and Despots, 8 Stan. tect the people. 22 those interests a re not harmed L. c Pol'y Rev 25 , 30 7. Gregory Lee Shelton, In Sea rch ofThe Deshaney v. Winnebago through other means. Its purpose Lost Amendment: Challenging Federal County Department of Social Ser­ is to protect the people from the Firearms Reg ulation Through The involved a child abuse ca e state, not to ensure that the state 'State's Right ' !nte!pretalion of Th e vices Second Amendment, 23 Fla. Sr. U. L. where a father beat his son repeat- protect them from each other". 26 R v 105, 109 From this line of reasoning, it 8. Steven H. Gunn, Seco nd Amendment can be understood that the gov­ y mposium: A Lawyer's Guide to the Second Amendment, 1998 BYUL Rev e rnme nt has no obligation to pro­ 35,39. tect individuals from harm caused 9. !d. at 41. by the violence of fellow citizens. 10. H arold S. H erd, Re-Examination of the Firea rms Regulations Debate and By inference, if we have the right Its Consequences, 36 Wa shburn L.J. to life, liberty, and property, and 196, 223. if the government declines to take 11 . Tel. 12. Gregory Lee helton, In Search ofThe responsibility for the protection of Lost Amendment: Challenging Federal these rights, then it must fall upon Firearms Reg ulation Through Th e the people to protect th ose rights State's Right' Interpretation of Th e Second Amendment, 23 Fla. Sr. U. L. themselv s. The ro le of the Sec­ Rev 105, 117. ond Amendment then becomes 1]. /d. at ll8. apparent: individuals must protect 14. Steven H. Gunn, Second Amendment themselves and the only means ymposium: A Lawyer's Guide to the Second Amendment, 1998 BYUL Rev available to effectiv e ly defend 35, 43. against an arm ed criminal is for 15. lei. the individual citizen to be 16. Wayne LaPierre, Guns, Crime, and Freedom, 8, 0994). armedY 17. Icl . It is tempting to pass expansive 18. D onald E. Johnson, Taking a Second gun regulation that will under­ Look at Th e Second Amendment and mine our right to keep and bear Jl!Iodern Gun Control Laws, 86 Ky. L.j. edly and so severely that the on 197, 203. eventua lly suffered severe and arms in response to tragedies such 19. !d. at 202. permanent brain damage. The as Littleton, Colorado. However, 20. Steven H. Gunn, Second Amendment County Social Service was aware we should keep in mind the im­ y mposium: A Lawyer's Guide to the Second Amendment, 1998 BYUL Rev o f the abuse but o nl y took mini­ portance of the Second Amend­ 35,43. mal steps to protect the boy short ment and its purpose as the found­ 21. Wayne LaPierre, Guns, Crime , and of removing him from his father's ing fathers saw it, as well as its Freedom, 23. 22. Robert Dowlut, Th e Right to Keep and custody. Rather, the caseworker importance to us today in main­ Bear Arms: A Right to Self Defense assigned only recorded the inci­ taining our freedoms ...... _ Against Criminals and Despots, 8 Sta n. dents but took no affirmative ac­ L. & Pol'y Rev 25, 28. Michael S. Romano is a second-year 23. David E. Murley, Private Enforcement tion to provide for the chi ld 's of the Social Co ntract: Des haney and safety. 23 evening student. He is a former the econdAmendment Right to Own The mother of th e boy sued the Department ofJustice employee with nine Firearms, 36 Duq.L.Rev. 827, 851. Social Agency on the grounds that years experience in federal law 24. !d. at 850. enforcement. 25. Tel. at 851. they had deprived her son of his 26. !d. at 851. liberty interest in his bodily integ­ ENDNOTES 27. !d. at 852 rity in violation of the Fourteenth 1. Robert H arman, Notes and Co mments: Amendment by failing to protect The Peoples Right to Bear Arms-Wbat the Seco nd Amendment Protects: An him from abu e they knew or Analysis of the Current Debate Re­ should have known was occur­ garding What Th e Second Amend­ ring. 24 The Court ruled that a duty ment Rea lfcy Protects, 18 Whittier L. Rev. 411 ,4 18. to protect only becomes an affir-

22 Juns J Spnng 2001 Do Right-to-Carry Laws Deter Violent Crime?

BY JOHN E. EGERS,JR.

ver the past year, the gun control debate has Mustard results could be driven by a single state f or which their increasingly caught the attention of America, model does a particularly p o01' as well as Pittsburgh. John R. Lott,Jr., senior job of fitting the data. As it turns O out, one s·uch state is Florida. research scholar in the School of Law at Yale Univer­ With the Muriel boat lift of 1980 sity posits in the article he wrote with David B. Mus­ and South Florida 's thriving drug trade, Florida 's crime rates tard, Crime, Deterrence and Right-to-Carry Concealed are quite volatile. Further, 4 Handguns, 1 that right-to-carry laws years after its 1987 passage of the RTC law, Florida passed sev­ eral other gun-related measums, ("RTC") deter vio lent crimes a nd Teresa and H. John Heinz III Pro­ including background checks of have no effect on the number of ac­ fessor of Public Policy at Carnegie handgun buyers and a waiting cidental deaths. This the me is pur­ Me ll on University. Professor Nagin, period f or handgun purchases. 5 sued in greater detail in Lott's book, in collaboration with Da n Black, agin and Black conclude that MORE G , LESS CRIME, where wrote Do Right to Carry Laws De­ "witho ut Florida in the sample , he claims that "[cl riminals are moti­ ter Violent Crime?\ an article that there is no detectabl e impact" for va ted by self-preserva ti o n, and also appeared in Th e j ournal of Le­ the two crimes that, according to handguns ca n therefore be a deter­ gal Studies. Profes or agin , a critic Lott, account for 80 pe rcent of the rent. "2 ofLott's research, spoke with JURIS social benefit of RTC laws 6 In order to support this hypoth­ Another important distinction in esi , Lott, in his own words, com­ the research of Lou/ Mu stard and p il ed "the most comprehensive data agin!Bi ack is the source of their set on crime yet assembled," 3 us­ Opinion statistics. I asked Professor agin in g Unifo rm Crime Re po rt Data, to comm nt on the use of larger tate-level gun permit data, and s v­ about Lott's research and about gun counties, i.e. those with a popula­ era! othe r sources, in order to ar­ control policy in general. tion of at least 100,000, as opposed ri ve at this conclusion. Professor Nagin revie wed the to Lon's methodology of using ev­ Lott's research shows that the numbe rs produced by Lott and e ry county in the United States. rate o f vio le nt crimes, in cl u ling found that the "lion's share" of the "Both methods are legitimate," Pro­ murder, rape and robbery, drops benefit of the right-to-carry laws fessor Nagin stated, "However, large when gun pe rmits are more easil y were found in Fl orid a. He th en re­ counties are more de irabl e ." The accessible. A concurrent effect to ran the tatistics eliminating Florida. reason for this is two-fold. th i drop in violent crime occur in A q uote fr om Do Right to Ccm y agin be li eves that large coun­ the form of an increase in some lev­ Laws Deter Violent Crime? best ar­ ties are better indicators of reduc­ els o f prope rty crimes, incl uding ti cul ates w hy the liminati o n o f tions, as smaller countie have less larceny and auto theft. Bu t should Florida is important to a more ac­ overall numbers of crime . In ad­ Lott's resea rch a nd statis ti cs be curate analys is: dition, large counties do not have take n at face valu e? what agin terms "no-event" prob­ In order to unde rstand the op­ Th e large variations in state­ lems, wherea mall counties may posite side of th e argument, I ca ll ed specific estimates of RTC impacts have no reported certain crimes for upon Professor Daniel Nagin , th cause concern that the Lott and

Juns I Spnng 2001 23 I the. e two suspects "have seri ous 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 en­ countering a privately armed citi­ zenry. He suggested that individu­ als with mental di sorde rs are not like ly to be deterred by the fear of encountering someone else with a gun. If armed private citizens had confronted either of these subjects, we must also consider the possi­ bility that a gun battl e might have e nsued, possibl y ha rming even more people, said Professor agin. Questions regarding the possible outcome o f s uc h a s ituati 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 situ ati on? The "more guns, less crime" the me has become central to the contemporary handgun de bate. Before coming to a conclusion on such an important public po licy issue it is important to examine the research 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 real so­ lution. #......

John E. Egers, Jr: is a second-year day student. He hails from Washington, Pennsy lvania, and has a BA in Criminal Justice, Summa Cum a crime categoty , such as rape, thus Laude, from Edinboro University of land ish, agin responded, "it is just creating an undefined number for Pennsylvania. not nea rl y as firm as his writings that category. Nagin be li eves re­ suggest. That is to say, you could ENDNOTES search focused on large counties not build public po li cy on it. " 1 John R. Lon and David 1:3. lusta rd . ca n therefore ensure more homo­ My final questi on to Prof ssor Crime, Deterrence and Ri ght-to-Ca ny geneity. When asked why he used Concea led Handguns, 26 ] Leg Stud J, agin was in rega rd to the populations of 100,000, Professor 12 0997). Baumhammers a nd Taylor 2 Lon p.5 a gin ·aid it was a "judgm nt call " shootings of last pring. Consider­ 3 Lott p.ix as counties with at least thi num­ in g Pe nnsylva nia's right-to-carry 4 Dan A . Black and Daniel S. Nagin, Do ber of people avoid ed the "no Ri ght-to-Ca rry Laws D eter Violem law and Lott's hypoth esis regarding event" problem. rime? 27 J Leg Stud 1, 209 0998). gun li censing, I asked agin if he 5 Dan A. Black and DanielS. Nagin Do Given the fact that his findings felt these two shootings could have Right to Carry Laws Deter Violent contradi ct Lon's hypothesis, I asked Crime? Journal of Lega l Studies, Vol ­ been prevented if more private citi­ ume 27 , 1998 . . 21 4 Prof sor agin to comme nt o n zens owned handguns. Professor 6 p.219 whether Lott's research was believ­ agin noted the probability that abl e or outl andish. "No, it's not out-

24 Juns 15prmg 2001 Will the Death Penalty be Executed?

BY REBECCA KEATING VERDONE

ered after conviction should be con­ 0 YOU FAVOR OR OPPOSE THE DEATI-I PE ALTY? sidered and whetl1er there should be It's a tough question, and one that has al a rela.;-lawyers and land, Blacks outnumber White by ness and due process could be the general functioning of the death one of the highest margins in achi eved. 1 A C / USA Today/ penalty." Some think these studies America: ten of sixteen condemned Gallup Poll taken in June of 2000 were implemented in response to the men are black.1·1 Re earch conducted showed that only 51% of people be­ number of wrongly convicted in­ for tl1e Cornell Law Review disclosed li eve the death penalty is applied mates who have b en freed because tl1at in Philadelphia black defendants fairly and 80% believe that an inno­ of DNA testing.HBut, according to a were almost four times more likely cent person was executed in the .S. Death Penalty Information Center than whites to receive the death pen­ in the past five yea rs 2 Other polls in­ study, onl y ten out of tl1 e 93 men re­ alty for similar crimes. 1' dicate that two-thirds of Americans fa ­ leased from death rows across the It is also widely believed that the vor a suspension of the death pen­ nation since 1973 are included among deatl1 penalty discriminates between alty while questions concerning those freed b cause ofD A testing.9 rich and poor. 1" Once a jUly renders whether or not it i fairl y applied are So while DNA testing may exonerate a guilty verdict for murder in the first resolved. 3 some who have been wrongly imptis­ degree, mitigating factors a re Illinois helped set the rage for oned, it still may not be enough to weighed agai nst aggravating circum­ death penalty reform when the gov­ save others. stances to decide the defendant's ernor declared a moratorium on ex­ What other safeguards are there fate. 16 The more financial resources ecutio ns a year ago. ow, at least against executing the wrongly con­ available, the more probable it is that seven other states will consider mora­ victed? States are considering the pos­ exp It witnesses will be brought in toriums or abolishing the death pen­ sibiliti s. Illinois is pondering legisla­ to justify leniency on grounds such alty during their legislati ve essions.' tion that would require pretrial reli­ as tl1e defendant's troubled childhood On a larger scale, last year former ability hearings before prosecutors and/ or a low degree of likeliness to President Bill Clinton ordered a De­ could use jailho use info rmants as commit more harm , etc. ~' A court­ 10 pattment of Justice study of the fed­ witn sses. o other .S. tate has appointed attorney with limited re­ eral death penalty." such a law, although some give the sources cannot provid his client witl1 There are currently 37 states witl1 jLIIy instru ction · suggesting that they such luxuries. IH a death penalty6 Several states, in­ u e ca ution in considering such testi­ Yet another problem is the high cluding Illinois, Arizona, ebraska, mony.11 Virginia is working on other degree of likeliness that a defendant Notth Ca rolina, Maryland, and Incli­ areas ripe for reform such as defin­ possibly subject to the death penalty ana, have launched capital punish- ingwh n evidence tl1at's been uncov- ({found guilty will be found gu il ty.

Juns 1 Spnng 2001 2 5 More than one study suggests that lor, a ll egedly shot five white men in 5 ld. juror willing to impose the death Wilkinsburg, killing three.27 The at­ 6 Collins, Rachel B. , N. H. To Begin Hear­ ings On Deatb Penalty Today Dozens penalty are more likely to convict tack appeared to be racially moti­ To Testify About Bill Revisited By N.JI. defendants, including a study from vated2B Police found hate-fi ll ed Leg islators, Th Boston Globe, j an. 30, the niversity of California at Santa notes written by Taylo r including an­ 2001 , Metro/ Region; at B8. 7 Baskervill, Bill, Associated Press , Vir­ Cruz, indicating that interrogating ju­ gry attacks on a variety of racial and ginia Reviewing Death Penalty; DNA 2 rors about their willingness to impose religious groups. 9 Tests exonerate In male, Provoke State the death penalty ofte n convinces The very next month, on April 28, Debate, Chicago Tribune, Feb. 12, 2001 , New ; at 4; zone: N. 19 them of the defendant's guilt. 2000, while western Pennsylvanians 8 lei . Finally, there is the complaint that were still mourning the Wilkinsburg 9 Masters, Br oke A., New-Evidence Bill the cost of prosecuting capital ca es incident, another group of a pparendy Too Limited, Foes Say, The Washing­ isn'tworthit.20 Elaine]ones, pr sident racially-motivated killings took place. ton Post, Feb. 9, 2001, Metro; at B01. 10 Long, Ray, and Possley. Maurice, Bills of the AACP Legal Defense and Ri chard S. Baumhammers, a white Propose Guards Against False Testi­ Educational Fund, recently posited man, i accused of going on a shoot­ mony, Chicago Tribune, Feb. 14, 200 1, that the enormous funds applied to ing spree in Allegheny and Beave r Metro/ Chicago, at 1; zone: N. llld. capital cases are being wasted, that Counties, leaving a j ewish woman, 12 Masters at BO I. the death penalty doesn't work as a an Indian man, a Vietnamese immi­ 13 Moskand, Mauhew, and Montgom ry, deterTent, and it would be better to grant, a Chin e-American, and an Lori , Blacks, Catbolics Lobby.for Halt African-American deacl,.lO and leaving to Md. Ewculions. The Washington donate the much needed money to Post, .J an. 26 , 2001, Metro; at 89. worthie r law enforcement and crime a sixd1 victim, another Indian man, 14 Keiclan, Bruce, Tbe t"Jcecutio11 er 's prevention prograrns2 1 paralyzed .3 1 These ha te c rimes So ng Is Gelling Louder; Pennsylvania shocked and saddened area commu­ Has Many Priso11ers On Death Row. Despite all these problems, it's But Few Executions, Pirrsburgh Post­ hard to imagine that America will nities. The Allegheny County District Gazette, Oct. 8, 2000, Editorial, at E- 1. eliminate the death penalty. For one Attorney is seeking the death penalty 15 Id. thing, o ur new president, George W. in both casesY 16 Id. 17 !d. Bush, is a staunch death penalty ad­ On a natio nal level, Timothy 18 lei . vocate; during his time as governor McVeigh is scheduled for execution 19 Keiclan, at E-1. 33 ofTexas he presided over 152 execu­ by led1al injection on May 16, 2001. 20 llerben , at 23. tions in six years.22 He commuted a McVeigh wa convicted in federal 21 lei . death senten ce only once, when cou11 of detonating the bomb that 22 Romano, Lois, Victim 's Kin Asked if Tbey Want to ee McVeigh Die; Un­ question were raised about the guilt gutted the Oklahoma City federal usual Preparations.for Federal E:'

26 Juns 1Spnng 2001 Let's Put the Assist Back into Assisted Living: Services for the Elderly Remain in Disarray

BY BRAD M. ROSTOLSKY

HE MA N ER IN WHICH THE ELDERLY POPULATION ability of assisted living consumers to adequately judge wheilier an ALF receives long-term health care services will fit the ir lo ng term care needs. throughout the United States reveals a com­ Throughout the United States, T facilities that offe r assistance to th e plex and inconsistent approach to senior care. Al­ elderl y under the rubric of long term board and care" are referred to by though the full spectrum of senior health care in­ many different titl es: personal care volves the services of physicians, hospitals, and nurs­ ho mes, residential care facilities fo r the eld erl y, adult congregate living 1 ing hotnes, the emergence and growth of the facilities, home fo r the aged, do­ miciliaty care homes, and assisted assisted living ind ustiy provides a erly is hindered by the lack of a com­ li ving facilitie ·.' 2 Ofte n, a facility unique set of concerns to the e ld­ mon definitio n of 'assisted living. ' within a given state will randoml y e rl y po pulati o n. Places known as ALFs diffe re d insert any o ne of these categori za­ As o f 1993, a pproxima te ly widely in the ownership, auspice, tions into the name of the facility. 800,000 - 900,000 seni o rs were size, and philosophy. "" Without attaching any legal sig­ cared fo r by an estimated 30,000 Altho ugh the fin ancing and lo­ nifica nce to the cl assificati o ns of li censed and unlicensed residential gisti cs associated with the provision lo ng term ca re facilities forth eld­ ca re ho mes. 2 In compa ri son, ap­ of health care services to the eld­ e rl y in th e fo rm of unifo rm licens­ proximate ly 1.5 millio n seni o rs e rl y po pulatio n e mbod y essential ing and regulation, many facilities were ca red fo r by a n estimated concerns to policy makers and leg­ that use th e ame cl assification will 17, 000 li e nsed nursing homes.3 islato rs, the consid erable disparity continue to provide a vety dispar­ Altho ug h slightly outdated , these between assisted living facilities ate array of services. Because these fi gures indicate the impact of resi­ thro ughout the statess presents an long-term care facilities are gaining dential ca re fac ilities o n the health often overlooked dilemma to the in po pulari ty and use, a large popu­ status of the elde rl y population. consumer. 6 The inconsistent man­ lati on of seni ors is being affected by Witho ut the guidance of consis­ ne r in which the definiti o n of as­ the significant discrepancies in the tent national, state, or local regula­ sisted living is presented by trade ca re and services they provide. tions, residential care facilities ca n­ associations,- assisted li ving ho us­ A mo re unifo rm definitio n of no t ma inta in a d e pe ndable a p­ ing expe rts, 8 and magazines and assisted living and the services pro­ proach to the care they provide. news publi cati o ns9 unde rli es this vided atALFs would help to resolve Inconsistent crite ri a and the lack of dilemma. some of the confusion surrounding a uniform understanding of what d1 e Because assisted living is still a lo ng-term care fo r d1 e eld e rl y. Th te rm "assisted li ving" means im­ relatively new industJy , businesses Na ti onal Center fo r A sisted Li ving, pedes the success and effectiveness offering assisted living services and in its Assisted Living State Regula­ of assisted li ving facilities ("ALF"). the states that li cense and regul ate t01y Review - 2000, examined the A 1999 study spo nsored by the them have been unabl e to agree o n disparity between the states w ith nited State Department of Health one definiti o n of what "as i ted liv­ respect to certain key definitions by and Human Services (HHS) warned ing" means.'0 This inability to ad­ focusing on the fo ll owing terms: th at '· [a]ny attempt to understand he re to a consiste nt d e finitio n , assisted living and its role in provid­ coupled with a lack of regulato ty Licensure term - This is the term ing long-term ca re to the frail eld- unifo rmity and servi ce, trains the used by the states to designate long-

Jum 1 Spnng 2001 27 term care facilitie other than nurs­ cilities provide food, shelter, laundty sufficient to meet tl1 e needs of the ing ho mes. The terms employed by setvices, and personal care to resi­ residents. Facilities may choose to the tares va ty from "assisted living de nts who do no t need nursing contract with home health agencies facilities, " u "assist d li ving care. "2'i for setv ices beyond what they are ho mes,"' ' "resid e ntial lo ng te rm • Pennsylvania - "A Personal able to provide."31 care facility," '' "person al care Ca re Home provides food, shelter, • Idaho - "The facility must su­ boarding ho me ," 16 to "residential and personal assistance or supetvi- petvi e residents, provide assistance and assist dlivingfacilities," 17 "shel­ ion for four or mo re adults who do with activities of daily living and in­ tered care facilities, "18 and "personal not need nursing home ca re. Re i­ strumental activities of daily li ving, care ho mes."19 clents may require assistance or su­ and deliver setvices to meet the needs petvision in matters such as dressing, of the residents. Residents are per­ Defhtition - This definiti on clarifies bathing, diet, financial management, mitted to contract for setvices witl1 the licensure term. Discrepancies in evacuati o n, and medi cati o n pre­ third patties. ·•.ll [Emphasis added.] the fo ll owing states highlight the var­ scribed for self-mecl icatio n."26 • Illinois - "Facilities may pro­ ied setvices offered throughout the vide general watchfulness and appro­ states for seniors that need assistance, Facility scope ofcare / Third party priate acti on to meet tl1 e total needs but do not require comprehensive scope of care -This descriptio n of residents, exclusive of nursing ca re. nursing home assistance: "summarizes the nursing and per­ Home health agencies may provide • Alabama - "An Assisted Living sonal care setv ices that may be pro­ servic unde r contract with re ' i­ Facili ty provides room, board, meals, vided ... [and] indicates whether ser­ dents.".l3 laundry, assistance with personal vices may be provid ed by ho me • Pennsylvania - "The facility care, and other services fo r not less health agencies, hospice providers, may provide assistance witl1 activities than 24 hours per week. Assisted liv­ etc.'m The va ri d amount of care of dail y li ving and self-administered ing is subclassified according num­ provided at each state's facilities em­ medication . Home healtl1 is p rmit­ 20 ber of residents. " phasizes the need for a uniform ted as per physician's orders. "3' • Alaska - "Assisted Li ving model of ca re provision. Homes provide a sy rem of care in a • Alabama - "Assistance with Admission/ discharge require­ home-lik environment for elderl y activities of daily li ving, such as bath­ ments - This description addresses person and per on with mental or ing, oral hygiene, and grooming may the critetia upon which residents may physical eli abilities who need assis­ be provided. A Registered urse be admitted and discharged from the tance with activities of daily li ving. "21 (RN) must provide or supetv i ·e care facility. Again, the discrepancies in­ • Arkansas - "Residential Long during peri ods of temporaty illness. dicate the n eel for unifo rm regula­ Term Ca re Facilities setve individ u­ Home healtl1 agencies may be pro­ tion. ore that some of tl1 e prohib­ als with impaired functioning who do vided by a certified ho me health ited resid ent characteristics in the not require hospital or nursing home agency. "28 sample states below are representa­ care and who self-administer mecli­ • Alaska- "Facilities may provide ti v of conditions that s ni ors will cati on."22 nursing ca re, assistance wim activi­ develop through the natural aging • Colorado - "Personal Care ti es of daily li ving, intermittent nurs­ process, despite not having a need Boarding Homes are residential facili­ ing setv ices, and skilled nursing care for nursing home care: ties that make ava il abl e to three or by arrangement. A li censed nurse • Alabama - "To be admitted, more unrelated adults, either directly may delegate certain tasks, including residents may not require restraints o r indirectly thro ugh a provide r non-invasive routine tasks, to staff. " or confinement; have severe senility; agreement, room and board and per­ The third patty scope of care was not or have chronic healtl1 conditions re­ sonal ervices, protective oversight, specified.29 quiring extensive nur ing ca re, daily and social care clu to impaired ca­ • Arkansas - "The facility may professional obsetvation, or the ex­ pacity to live independently, but not supetvise and assist with activities of ercise of profe ional judgment from to the extent that r gular 24-ho ur daily living. Home health services facility staff. Residents must be dis­ medical nursing care is required."23 may be provided by a certified home charged when care 'beyond the ca­ • Idaho - "Residenti al and As­ health agency."·10 pabilities and facilities' of tl1e facility sisted Li ving Facilities provide 24- • Colorado - "The facility must is required. " .l'i hour care for thre or more adults make ava ilable, either directl y or in­ • Alaska - "There are no limits who need personal care or assistance directl y through a provid er agree­ on admission; however, facilities must and supetv ision essential for sustain­ ment, at least tl1e fo ll owing: a physi­ have a residential setv ices contract in ing acti vities of daily li ving or for the ca ll y safe and sanitaty environment; place for each resident. Twenty four­ protection of the incliviclu al. "2·• room and board; p rsonal setv ice ; hour skilled nursing care may not last • Illinois - " helterecl Care Fa- protective oversight; and socia l care, for more man 45 consecuti ve cl ays.

28 Jur1s I Spr~ng 2001 Terminall y ill reside nts may remain enous witl1 tl1e fac ility's population the housing compone nt of the fac il­ the fac ility if a physician confirms that may not be admitted ." 39 ity, as well as the service compo­ needs are being met. At lea ·t 30 days' • Illinois - "Reside nts with seri­ nent. 16 Despite thi nati onwide dis­ noti ce is required before terminating ous menta l or emotional proble ms or pari ty among setv ices and facilities, a residemial services contract. ":i<' in need of nursing care may not be some states now offer long-term care • Arkansas - "The facili ty must admitted o r retainecl ." 10 services that were previously re­ not admit or reta in residents w hose • Pennsylvania- "Admission of setved for tl1 e nursing home setting. I" needs are greate r than the fac ili ty is nonambulatoty residents is a llowed The extension of assisted li ving ser­ li censed to provide. Residents must o nl y if th fac ili ty complies witl1 cer­ vices to incl ude higher levels of care be inde pendentl y mobile; be able to tain additional staffin g and physical previously provided only by nursing self-administe r medicatio ns; be ca­ plan requirements. Residents may be homes will enabl e assisted living resi­ pable of understanding and respond­ d ischarged if t11 ey require a highe r dents to maintain a consistent quality ing to reminders and guidance from level of ca re or if they become a dan­ of life and allo w the m to "age in staff; not be totall y incontine nt o f ger to themselves o r othe rs.""' place."IH l1owel and bladder; not have a feed­ The fo ll owing guidelines are com­ Additionall y, discrepancies exist ing or intravenous tube; not have a mo nl y accepted as the "key philo­ between the states rega rding the communicable disease; no t need sophical principles or tenants tl1at eli ·­ manner in which medication is man­ nursing services which exceed those tinguish assisted li ving: setv ices and aged at tl1e facili ties, requireme nts of provided by a home health agency; oversight avail able 24-hours a cl ay; the physical plant, number of resi­ not have a level of mental illness o r setv ices to m et scheduled and un­ dents allowed per room, batl1room dementia that requires a highe r level scheduled needs; care and services requirements, staffin g requirements, of treatment than can be safely pro­ provided or arranged so as to pro­ and tl1 e training necessaty to become vided in the facility; not require reli­ mote independe nce; an e mphasis o n and mainta in status as a facili ty acl­ gious, cultural, o r clietaty regimens consume r dignity, a uto no my a nd ministrato r."9 The dispari ty a mo ng that cannot be met w ithout undue choice; an emphasis on privacy and states in the aforememio ned areas b urde n; not require phys ical re­ a homelike environment." 12 Thus, in represents an obstacle tl1e assisted liv­ straints, lock-up, or confineme nt; and order to combat inconsiste ncies in ing industry must overcome if federal display violent behavior."r care, the term "assisted li ving" must funding- similar to t11 at provided to • Colorado- "A facili ty may not stand for more than general principles nursing homes-may be considered admit or keep any residem requiring of setv ice; tl1e leaders witl1in tl1e as­ applicable to ALFs. "Because some a level of care or type of service which sisted li ving industty must also agree evidence suggests that assisted living the fac ili ty does not provide or is un­ on a deta il ed expansion of tl1ese key predominantl y setves a private-pay able to provide, but in no event may principles. This lack of cla ri ty has market of well -to-do elderl y, ""0 the admit or keep a resident who: is con­ pro mpted the ati o nal Cente r o n ability of tl1e assisted living industty sistently, uncontroll abl y incontinent Assisted Li ving to describe tl1e ser­ to be nefit senio rs of all econo mi c of the bladder unless the reside nt or vices offe red by Alfs as a "cloudy planes may require federal assistance. staff is capable or preventing such in­ nexus." I .~ In order to meet tl1e potential fund­ continence from becoming a health Lack of uniformity remains a key ing eligibili ty requirements of a fed­ hazard; is consistently, uncontro ll a­ concern to states as tl1ey continue to e ral plan, ALFs w ill have to standard­ bly incontine nt of the bowl unless the develop regulati ons pertaining to tl1e ize the scope and definition of ser­ resident is totall y capable of self care; assisted li ving industry. Although a vices offered. is totall y bedfast with limited poten­ majority of states had e nacted legis­ f lllthermore, the development of tial for improvement; needs of medi­ lati on addressing assisted li ving pay­ a 'tandarclized model for assisted li v­ cal or nursing services on a 24-hour ment and regul ati on by 1998, "[n)o ing fac ilities faces cha ll enges at the basis; needs restraints; and has a com­ consensus has emerged among state fede ral, state, and local levels. Fed­ municable disease or infecti on unless po li cy-make rs on the a ppropriate e ral po li cy barri e rs include ho using the resicl nt is receiving medical or regulato ry mode l fo r assisted liv­ regul ati ons set fo rth in the A meri­ drug treatment for the conclition."38 in g. "+~ Across t11 e states, the cLment cans w ith Disabilities Act, the FaiT • Idaho - "Residents may not be regul atoty po li cy regarding assisted Housing Amendments Act, the HUD admitted o r retained if they require living does not achieve a uniform set 232 loan program, and acl vettising ongoing skilled nursing, intermediate of goals. While some states focus on and marketing regulations that a p­ care, or care not witl1in tl1 e legall y li ­ ensuring "distinctive e nvironmental ply to and protect seni ors.51 State censed autho ri ty of tl1e facility. In features,"·lo otl1e r states disregard en­ po li cy barrie rs include licens ing addition, residents w ho are in need viro nme ntal issues affecting senior regul ati ons and procedures, medi­ of restraints or have physical, emo­ care. Anotl1er key distincti on among cati o n manageme nt po li cies, issues tional, or social needs not ho mog- state plans involves the regulation of surro unding the care o f Al zheime r's

Juns, Spnng 2001 29 patients, and the Certificate of Need when it mere ly indicates that the 1996, at 1- 1. Uetwcen 1990 .tnd 10.10. lh(: lJ .!-1 . cllkrly popu brion i' 52 proce . Local poli cy barriers ar "departme nt [of Human Welfare) 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'!" often fo und in both zoning laws and shall promulgate rules and regul a­ ol nur..,ing home em: for lht" cldcrl ) . both 111 puhlic fire code regul ati o ns. 53 ti ons fo r adult living residences ... Jnd ouH>f-pocket costs. ~trc c~timated to gn)\\ to more than ~ 1 00 million an nu:d ly hy 2020. The ~peda l com­ 62 Pennsylvania currentl y classifi es " The introduction of HB 1930 bination of hou-.ing ~tnd :-.uppnrtive :.ervin: '> th :tt char­ .ICIL'rize :tssbtcd It\ ing '" idc..:nllficd with 1--!fC..: ~Her inclt:­ enio r lo ng-term care faciliti es as presents two chall enges to the de­ pt::ndt..'nce :1nd dignity lo r th e fr.til elderly and b brin g ing th e.: nc..:dgling assisted living indu-.try (() national .lt­ "personal care homes." The cur­ ve lopment of substantial improve­ IL"ntion. OcGtU'>e of th uniquL' ph) ... ic.:.tl ;tnd philo.-.ophi ­ cal Lhar:u..: ten.-.ttl", as:-.btL•d living m.ty he .t preferred rent regulati o ns fo r personal care ment. First the bill needs to be­ li ving option for the.: fr:lil elderly ,tntl. :11 le; t.'.l for MllllL' ho mes in Pe nnsylvania provide come law. Second, even if it be­ - - '' lcs-, expen-,ive altcrnati\ e to nur..,ing humcs. o nl y a basic level of supervision by comes law, th bill requires subse­ 2 let, at 14. These estimates are extrapo­ lated from the data of a 1993 survey 54 the state. Codified in the Penn­ quent rules and regulations. that included data from ten states. The sylvani a Code, the regul atio ns set niform standards must be devel­ study's reference to "res idential ca re home'· includes any fa cility embraced fo rth requirements for the physical oped in order for assisted li ving ser­ by the term "board and ca re" home. plant of the personal care ho me, vic s to maximize potential benefits T h erefo re, te rm " res ide n t ial ca re the servi ces provided by the per­ to the elde rl y population throughout ho me" refl ects a broader m ea ning than that usually associated w ith "as­ sonal care ho me, medication po li ­ Pennsylvania, not to mention the rest sisted living fa cility." cies, and staffing and training re­ of the countty. Although there re­ 3 Ca therine Hawes, at 14. quire me nts ."' ln respo nse to mains no consensus as to what this 4 A National Stuc"y qfAssisted Living j 'o r tbe Frail t:lder( y- Results of a National Pennsylva nia's current regulation of standard should include, a coll abo­ Survey of Fctcililies (Myers Resea rch personal care ho mes, Ho use Bill ration I erween legi Ia tors and indus­ Institute I U.S. Deparrment of I lea lth 193016 was introduced to the Penn­ tty leaders may spark the necessaty and Human Se rvices), Dec. 14, 1997, Ca therine I Iawes, at 12. sylvania General Assembly o n Sep­ changes. The long-term health care '5 The critica l differences between se r­ tember 25 , 2000. The purpose of opti ons ava il able to seniors ca nnot vices o ffered throughout the nited th e bill is to "[p]rovid[e] for the li­ remain disjointed and inconsistent; as Sta tes are heightened by similar dis­ pa rities within the states themselves. censure and regul ation of adult li v­ the "Baby Boomer" gene ratio n 6 In the context of hea lth care se rvices, ing reside nces; conferring power reaches retirement-age, addressing specifica lly those ava ilable to the eld­ and duties o n the Departme nt of the issues surrounding assisted living erly population, it is critica l to include within th e definitio n of "consumer" Public We lfare; and providing for care will become essential to legisla­ the elderl y population for w hich the pe na lti es. ";7 tors, indu tty leaders, and the elderl y hea lth ca re service is provided, as well as to incl ude that po pulation's chil­ Acknowledging the ra pid population. Because long term care dren and care-takers; Family members growth of the assisted li ving indus­ insurance and long term ca re pro­ often incur the respo nsibility of in­ try in Pennsylvania, HB 1930 rec­ vider tax cuts are at a fledgling level vestiga ting and paying for long term hea lth ca re service The fai lure to ogni zes that "[i]t is in the best inter­ of de velo pme nt, the childre n of provide info rmation relating to long­ est of all Pennsylvani ans that a sys­ today's seniors ma y not be abl to term ca re o ptio ns to either of th ese gro ups will thwart the ability of the t m of li censure and regulation be effectively provide for the long-term elderl y population to take full advan­ established for assisted living resi­ care of the i.r parents without assisted tage of many viable lo ng term ca re de nces .... "18 The bill adds a li ving services. Re li able and consis­ options. 7 National Study q/ Assisted Livi11g, at second level of care avail able to tent assistedlivi.ng services must be­ 2-2 - 2-4. The following definitions are elde rl y who are not yet in need of come ava il able to the elderl y popu­ those of fo rmal associations that focus nursing home care. In addition to lation in o rder to align ava il able care on the long term hea lth ca re needs of the elderl y population: the li censure of p e rsona l care with long term needs. #-..... American Association of Homes and Services for ho mes, th e bill now de fin es and 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) e ncompasses "assisted li ving, "w Brad M. Rostolsky is a second year day 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 60 "assisted Iivi ng reside nce, " and student. He has a Masters in Health Care group n.:~identi:tl faci lit) '' hu llL'L'd a..,.,,sl.l!Kt: w il h .K· 61 ti\ltlc.., ol cbily lt ving .u1t.l in:o.trument:tl alii\ itil•-, of tLtil) "assisted li ving servi ces." "Per­ Policy from Em01y University and is a living. It b char.1c terized by a philo~oph) of :,L•rvit·L· member ofLa w Review (Associate Recent prm-i ... ion that b. con:-.umcr d ri ve n, ncxible. mdt\ tdu:tl­ sonal care homes," in the ir current ized ;tnd ma;... imiLe:, con-,umer independence. c-1\(>in·. form, are relegated to a "Ca tegoty I Decision Edit01),the Trial Moot Court priv::tq and dignity li cense," whil e the newly defin ed Honor Society, and the Health Care Law Assisted Living Facilities Association of America ( AtFAA >- A:,-..-.ted ll \lng •., ;I "1)('0:11 umthination ol "assisted li ving residences" receive Society. housing, supportt vc..: ~L·n r in·s. pl·r-,on:tlized :t'>S1M tpond to the indi\ idual "Categ01y Il li cens[ureJ." neL~ tb of those \VIm need htlp in ;Ktl\ tilL'" of <.Lu ly li\ -­ in g. Suppnrttn:- -,cnKc~ .trc .n.ubhle, 2 t hour.-. .1 d.t) . nfo rtunately , this bill is o nly a to nlt.·l!t !>tChcdukd and unM:hcdlllcd need .... , in :1 W:l) starting po int for the successful d - ENDNOTES that promotes m~tximum mdependencc ~tnd digntty for Natio 11al Study of Assisted Living for each re .... ident ;tnd L"n t:ouragl'" the invoh ement of ;I re~ident'~ family, neighbors, and fric.!nd.-. velopment of assisted living facili­ tbe Frail Elderly, L!TEHATLIHE R EVIEW UP­ American Association of Retired Persons (AARJ>) - \A] ties in Pennsylvania. Although the DATE (Office of the Ass ista nt Secretary grouporcongreg.tte li\ ing :trrangcmcnb l h ~ t t pm' 1de room for Pl anning and Eva luatio n, Admin­ Jnd hoard a:, \H.' II :t:, .:-.ocia l ;and recseo.nional opportunitit.!.-.; it provides basic definitions of as- istration o n Aging, U.S. Department of ao;sista ncc to re.-,klents who need help\\ ith IX'rso n ~l l need-. isted living 'e rvices, the bill stalls H ea lth and Human Servi es), Feb. ;tnd 111L"<.Ii cation~ ; :t\ aibhility of protective on~ r.ight or 1110 111 -

30 Juns Spnng 2001 toring: and help around tht: dock ~mel on an un~chcduled 26!cl, at 54. 50Ca therine Hawes, at 17. basis. US DepartmenL of Housing and Urban Development 27 lei, at i-ii 51A National Study of Assisted Livingf or (HUD)- A~!>iMcd living mean!) a public fa cility, propri­ 28Jd, at 1. the Frail Elderly - Report on In -Depth etary facility, or f~aci l ity of a priv~atc nonprofit corporation Interviews witb Develop ers(The Lewin that is u:,ed for the tare of the frail elderly, and that : 29Review 2000, at 2. Group I Administration on Aging), I Is Jicen!tl:d and regulated by the sta te if there is no 30 /d, at 5. Barbara B. Manard , Dec. 1997, at 9- ::.tate law providing for !oUCh Jiccn:,ing ~ a nd regulation by the state, hy the municipality or other political ~ulxl i vi­ 3l!d, at 8. 11. ::.ion in which the f:aci lily is locmed; 32!cl, at 16. 52Barbara B. Manard , at 11-13. 2. !\-lake::. ;wa ilahh: to rc::.idcm:, Mlpponive :.crvices to 33Review 2000, at 17. 53 /cl, at 13-1 4. as.<;ist the residents m carrying out activities of daily Jiv­ ing . 34 /d, at 55 . 5455 Pa. Code + 2620. 3. Pro,·ide::. ... cparnte dwelling units for residenb . 35 Jd, at 1. 55State Assisted Living Policy: I998(U. '\ational Academy of State l lealth Policy (NA'iHP)­ 36/d, at 2-3. Department o f Hea lth and Human \/ASHPdeclined to provide one concbe definition of tt:.­ 37Review 2000, at 5. Serv ices), june 1998, at 11 9. The er­ ..,isiCd living. vice and scope o f ca re provided in a 38/d, at 8. 8 !d, at 2-4 - 2-5. The following defini­ personal ca re home and the admis­ tions are those of assisted living re­ 39!d, at 16. sio n/ disc harge requirements have sea rches and experts: 40/d, at 17. been detailed above. The sta ffing and

Rosalie A. Kane - A-,sbted living i~ a any group residen­ 41Review 2000, at 55. training requirements are fairly com­ lial program that b llQllicenscd as a nup.,mg home, that 42 /d, ar 15. prehensive and require, in pan , that provide:-. per ... onal care to pcr:,on:-. with need for a:,~b ­ administrators complete 40 hours o f tance in the acti\ ities of daily living (ADL). and that can 43 /d, at 17. Furthermore, the Myers D epartment o f Human Welfare ap­ rc::.pond to unscheduled need for assistance tha t might Resea rch Institute suggests that "th e ari:-te. proved training in areas such as firsr degree to which this model predomi­ aiel, fire prevention, personal hygiene, Donna Ycc - A~~iMed llv1ng b d~fined ... a::. ·program.:. nates in the industry is unknown." !d. that offer congregate hou:.. ing and ... upportive ... crvicc.., nutrition, and financial record keep­ with explicit or impli<.'il commitment to re~pond to tndi­ 44Ca therine H aw es at 19. Specifica lly, ing and budgeting. State Ass isted Li v­ vidual prcferenc.·e~ for hdp with health-em.· .1ccc~::.. per­ "30 states had passed legislation or ing Policy, at 11 9 . ...on;tl ca re and hou<;ehold maintenance.· iss ued regulations, and 22 states had 561-l .B . 1930, Session of 1999, General joann Hyde - A~~i s ted living is a service-rich re:,identi::ll licensing regulations using the term Asse mbly o f Pennsylva nia, P.N. 3907, environmental dt:~ignt'd to enable ind i vidu: 1 l~ with a range 'assisted living."' Additionally , "35 of capahili t ie~ . dis~ t hilities . fr.1iltie~ and :, t rt'ngth~ to rc­ Se pt. 25, 2000 ::.ide in a homelike setting a.., long as po::.sihle. states [as of 1998] reimburse or plan to reimburse se rvices in assisted liv­ 571-1 .8 . 1930. 9 !d, at 2-5- 2-9 . The following cl efi11i ­ ing or board and ca re facilities as a 58 /d. tions are those presented in va rious Medica id-covered service ." magazines and news publica tions: 59 /d. 45/d, at 19. For example, the state could Wall Street journal - A new style of hou:o;ing for frai l Assisted Li ving -Activities as determined e l d~rly people who don't have serious medical problems. specifica lly require "that ass isted liv­ and se lf-clirectecl by a consumer or New York Times - Residents live independently . ing facilities provide apartments with by a lega l representative that permit while rece i,ing 24-hour supervision, as~btCiting with services for rx:oplc with di:,abili­ Texas and Pennsylva nia, the dispar­ (2) Ita.., .1 ~upponive ~crvice pmgnam and phy~ical cm•i­ tic~ b the entiry generically known a~ 'board and care' ronment dc::.igned to :~o:ommodate changing neecl., :tnd homes .... llln gt.•ner.:tl. "hoa rd and c: ~re H refer... to non­ ity w ould be of potentially grea t con­ prcfcrcm:c::.. medical community-based re~idcntiaJ ...,ctting::. tha t house ce rn when comparing facilities nea r (3) 1-i a~ an organized mb:-..ion. ~ervicc program.s ~tnd ;t two or more unrcl~ttcd adu lts and provide some ~erv i c.:e:, the border between two states . physica l environment des igned to maximize consumer such as meals. mcdic:Hion supervision or reminders, or­ dignity, autonomy, privacy and independence and ~.;.•n g:tnized acti\'itie..,, tran~ponation, or help with ba thing, 47 /d . Through the employment of cost­ family and community uwoh·ement. drc!JSing. :md ot her .tctivities of daily living effectiveness studies, states have at­ cou r:tgc~ tempted to include additional long­ (<1) Pro\'idcs that COMS for hou~ing and sen ice::. art· andt'­ l 2/d, at 13. pcndcnt of one anolitcr :tnd that provide::. conMintcrs with 13Aiabama. te rm ca re se rvices w ithin assisted liv­ the ah1hty to choose lhelf st"rvice provider and the scr· ing facilities. So m e states have v1ce::. to ht: provided. 14Aias ka . "crea t[ed] new lice nsure ca tegori es (5) !I a~ :t goal or fostering :.tging in place and promot i n~ l 5Arkansas. and expancl[ecl] Medica id w aiver pro­ con~umcr self-direction :md active JXH1idpation in dcci­ 16Colorado. grams" to include coverage of these ~ion making while cmpha:-.izing con~umcr privacy ;.tnd dignity. 171claho. additional services. 6 11-l .B. 1930. 18lllinois. 48"Aging in place" refers to allowing a A~bted living ~crvice::. - A c.:omhin~ttion of .,uppont\'e 19Pennsylva nia. senior to continue th rough the aging process throughout the provision o f ...ervices, personal care services, personalized assist:ance 20Assisted Living State Reg ttlatOJy Review :,ervicc:,, ;astoistive tcc.:hnulo~y and hca lth-rcl:ttcd ::.en icc:-­ lo ng-term ca re. Although nursing dc~i~natcd to re~pond to the individual need~ of con­ 2000, (National Ce nter for Ass isted homes are adept at providing the ad­ sumer~ who need :1~sbtanc.·e with activitie.., of d:tily living Li ving), at 1. ditional se rvices that some ass isted and in:,trumcnt.al activitic::. of daily living. The t erm~ in ­ 21Review 2000, at 2. cludes (sic! publicly funded home-based and community living fa cilities may begin to provide, based services avaibble through the medica l :t'l!'liMance 22 /d, at 5. a nursing home provides a more in­ program and the Federal Medic:1id \'\':thcr Pmgr:•m and stitutionalized and regimented atmo­ ~t:lle-funded option!> for homc-ba:,ed and communaty­ 23 /d, at 8. ha:-.ed sen'iccs funded through the Department of Aging 24 /d, at 16. sphere th an assisted living fa cilities. and the Depanmcnt of Public Welfare. 25Review 2000, at 17. 49/d, at i-ii. 62 /d.

Juns I Spnng 2001 31 32 Juris I Spnng 2001 Preview: I The Cyril H. Wecht Institute Of Forensic Science & The Law

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

HIS ARTICLE IS BASED 0 I TERVIEWS WITH DR. tute of Fo rensic Scie nce & the Law - a o ne-of-a-kind e ndeavor that T Cyril H. Wecht and Duquesne University will o ffe r an e leven-mo nth Insti­ & School of Law Associate Dean John T. Rago, tute Certificate Program beginning this fall . Al so starting this fa ll is a assorted material from the October 2000 Forensic fiv e-year program that will e nable & students to earn a Master of ci­ Science The ww Conference held at Duquesne Univer'­ ence degree in Fore nsic Scie nce sity and additional outside sources. ]URIS would like to & Law. The maste rs progra m is closely affiliated with the Institute, extend special thanks to Dr. Frederick W. Fochttnan, and eventuall y the Institute pla ns to be involved w ith maste rs pro­ Director and ChiefToxicologist, Allegh­ fore nsic sciences," Dr. Wecht told grams at Duq uesne re lated to fo­ eny County Coroner's Office, Forensic JURIS. re ns ic studies in re la te d a reas Labo rato ry Division , Joseph T. The re is an "incredible desire such as nursing, psycho logy, and Dominick, Chief Deputy Coroner of fo r people to know mo re abo ut pharmacy, amo ng o the rs. Allegheny County , and their respec­ fo re n s ics, " sa id Dr. Wecht, amed fo r Dr. Cyril H . Wecht, tive staffs fo r their time and assis­ "people canno t eem to get the ir Allegheny County Coro ner, world­ tance in completing this atticle and fill- they are consta ntl y calling re nown patho logist a nd adjunct in o bta ining the accompanying and writing to inquire abo ut the professor of Law at Duquesne, th e photographs. progra ms ava il a ble concerning Institute is d s ig ne d to ide ntify fo re nsics. The refore, th e need to new methods and approaches fo r Introduction e ducate p eople to wo rk in the achieving civil and criminal justi ce Over the past several decades, fi eld is rea II y ve ry great, a ncl there thro u g h a n inte rdisciplin a ry inte rest in fo re ns ics has been are in sufficie nt numbe rs of people a pproach . Wha t is p a rti c ul arl y heighte ned by a phenomenal com­ who are pro pe rl y trained. " unique abo ut the Institute is that bination of events- the utilizatio n Currently, there's vety little fo r­ it encourages a collecti ve u ncl er­ and applicati on of D A testing in mal training in the area of forensic standing of what scie nce ca n do the ea rl y 1980' , the inc reased science, especially not once people and ho w th e vari o us professio ns broadcast of television series and have gone out into their respective who meet at the juncture o f fo re n­ movies dealing with fo re nsic sci­ fields, said As ociate Dean Jo hn T. sic science and the law can help ence, th e ava ilability of books, both Ra ga, but cettainl y not at the under­ each othe r. Dr. Wecht sees the In­ fi cti o n a nd no n-fi cti o n , w ritte n graduate or graduate level. Forensic stitute as a go lde n o ppo rtunity fo r about the O .J . trial, the Jo n benet science is gaining widespread ace p­ Duquesne, Pittsburgh and the sur­ Ramsey case, a nd o the r famo us ta nee and suppott in the legal com­ ro unding a rea to capitalize o n the cases, th e advent of new technolo­ munity for its ability to help illumi­ critica l need for tra in ed profes­ gies - all have helped spur a dra­ nate complex legal issues and its ca­ sio nals in fo re nsic scie nce and th e mati c increase in forensic scie nce. pacity to uncover va luable pieces of law. "Yo u take any given cl ay o r period evidence. "The Unive rsity gene ra ll y, and of time, and you look at news me­ Duquesne has stepped to the the law school specifi ca ll y, have dia repo rts of what's happening in fo re fr o nt o f the fore nsic science recogni zed that the level of tra in­ the world , and you will find refer­ and the law mo veme nt by estab­ in g and acade mi c o ppo rtunities ences directl y and indirectly to the lishing The Cyril H. Wecht Insti - fo r understanding fo rensic science

Juns 1Spnng 2001 33 in a va ri ety of discipline just plain Forensic Science: doesn 't exist," said Dean Hago. A Brief History " otwithstanding the tremendo us The origins of forensic science talent that this regio n has in the date back to the 6'11 century Chi­ sciences, in law and in law enforce­ ne e docto r, Hsu Chich'Ts' si, who me nt, w e've neve r put it all to­ wrote a treatise on the subject of gethe r. It's not a small effo rt to be­ legal medicin e. Other pro minent gin that process." fi gures in the fi eld of legal medi­ Rago I elieves that the characte r cine include Alpho nse Be rtillo n , of the institution and the quality of who developed the system of an­ the peopl e involved , led by Dr. thropometiy , a system of personal Wecht and the people he 'll bring id entificati o n based on a e ri es of to the Institute, will all ow Duquesne felt it had to be a doctor o r a butcher body measurements, and William to make an immediate and substan­ who did it-somebody who knew Herschel and Henry Fauld , whose ti al impact o n the applicati on of how to cut people o pen -but the early efforts led to the employment sciences and to criminal and civil murder we nt unsolved . Queen of fingerprints as a personal identi­ proceedings, at least from the point Vi cto ria was very upset with this fi cation device. Au g ust Vo llm r, of view of lawyers. "There's prob­ state of affairs, and it was an em­ chief of poli ce in Berkeley, Ca lifo r­ ably other applications out there that barrassment fo r the London police. ni a, set up the first laboratoty in a we're not even thinking abo ut right But the failure to solve Jack the Ri p­ po li ce de partme nt in the United now," Rago sa id, "but we think we per led to the develo pment of a States in 1923, and Edward Oscar need to begin that discussion. We s peciali zed fo rce in Lo ndo n for Heinrich and Dr. Paul L. Kirk, fos­ have all the tools that we need. " homi cide inve ti gati on - the detec­ tered the development of academic tive squads began -up until that programs and crime labo rato ri es.' The Forensic Science point the cop o n the beat did every­ According to Dr. Mi chael M. & The law Conference thing, Bad n said . It also led to the Baden , Fo rensic Patho logist and d velopment of the first real foren­ -October 2000 Director, Fo re nsic Sc ie nce Unit, sic pathologist devoted to th crimi­ The id ea for the Institute ori gi­ ew York State Police, it wasn't nal ju ti ce system. nated w ith Dr. Wecht just over a until the 19' 11 centwy that fo rensic Again jumping ahead, according year ago. "We really started talking science "first reared its inte lli gent to Baden , ther was "more atten­ in earnest about the Institute last head - and it w as at Ha rvard, ti o n paid to motive, to opportunity, March," said Dean Hago, so just to aro und 1840." The most famo us to trace evidence, to the crime lab," test the water we held the fall Con­ crime of the day was the murder of during the seventies and eighties. ference, and the response was over­ Dr. Parkman, a professor at Hatvard "D A bro ught a big explosion to whelming, to say the least. " who was kill ed by another Ha1vard the valu e of trace evidence in the Spo nsored by Duquesne Univer­ professor, Dr. Web ter the chemis­ fo re nsic sciences around 1989, and sity and co-spo nsored by the Al­ try de pa rtme nt. "The case was then the Simpson case happened legh ny County Coro ner's Office, solved because they fo und fr ag­ in 1994," Baden sa id . "If you had to the All egh e ny Co unty District ments of teeth and jawbo ne in Dr. look at the sil ver lining to the OJ Attorney's Office, th All eghe ny Webster's che mistry kiln that were case," comme nted Dean Raga, "it County Public De fende r's Office id e ntified by Parkma n's de nti st," reall y brought to life how forensic and the Pittsburgh Institute of Legal Baden told the audience during hi scie nce works and po pulari zed it Medicine, the October 2000 FoTen­ presentation at last October's Con­ and made it a part of our culture. " sic Science & Tb e Law Confemnce ference. was held over two days and was by Jumping ahead to England in Challenges in the Practice all accounts a great success. Co n­ 1888, Baden next discussed the fa­ and Application of Forensic ference facul ty was composed of a mo us Jack the Hipper case, which cast of medical and legal luminari es he compared to the 0 . ]. Simpson Science including Leslie Abramson, Esq. , case "because it raised conscious­ In practi ce, fo re nsic scie nce Mi c hael Bad e n , M.D. , J o hnnie ness and awareness of the deficien­ draw s upo n the principles and Cochran, Esq. , Dr. Henry Lee, Barry cies in the criminal justice system. " methods of all the traditi onal sci­ Scheck, Es q . a nd Dr. Mi ch ael Mari e Ke ll ey, Jack the Hipper's last ences, such as physics, biology and Weine r. Dean Hago said the Insti­ victim , was brutally murdered - chemistry. Yet there are importa nt tute will likely build a strong CLE her abdo me n was cut o pen, and differences between forensic sci­ seri es aro und continued annua l half a kidney was removed and sent ence and the traditional sciences, conferences of this calibe r. to the London Museum. Autho rities due to the fact that forensic science

34 Jur~s Sprmg 2001 has some unique objectives, such as ety day but th ey are the normal mis­ any litigation, whether it's criminal using evid ence to prove a person', ta kes th at a re made everyday," or civil ," Dean Raga toldJUH.IS, "but guilt or innocence, and to its con­ Tanenbaum said , "there 's a lo ng the reality is that hospital are at d1 e tinuous and neces ary interaction way to go in this countty to educate juncture of that event and they need with the legal system. 2 the medical profession, let alo ne the to be info rmed of what they ca n be Unfortunately, this intera ction is public, as to the proper ability to doing to help us - to h lp all of often marked by confli ct, misunder­ determine causes of death , coli ct us., standing, and sometimes- o utright trace evid ence, to look for trace evi­ "Law enforcement suffers with hostility. Robert K. Tanenbaum, dence . . . autopsys are being done the same deficiencies - there are former Chi ef Assistant District At­ mostl y by non-fo re nsic patho lo­ many wonderful cops out there but torney in both Los Angeles and New gists-there is great loss of evi­ they're not aware of investi gation York, told attendees at the October dence." techniques that continue to unfold, Conference that the relationship that This lack of consistent tra ining panicula rl y in the fo rensic science exists between medical examiner and extends to other medical profes­ area," Hago continued , "certainly prosecutor is often strained and gov­ sionals and to law enforcement, a they're aware of custodial issues, ern d by political agendas. Ald1ough well. "Certain hospita ls shy away chain of custody and the like. But d1ey should be working for a com­ from wanting their staff, particularly maybe they can use re freshe r mon goal, finding d1e truth, prosecu­ in the emergency rooms, to get in­ course on crime scene processing tor and medi ca l examine rs often valved in this sort of thing, because or crime scene reconstructi o n o r function as "two independent nti­ they're mo re focused o n treatment. certain evidentiary issues with re­ ties- not a team" said Tanenbaum. And I think, as a practi cal matter, spect to how to maintain o r dis­ The Institute, du,ough its interdis­ they do n't want to be dragged into cover or develo p certain evidence clipinaty approach to these problem , will provide an ongoing forum for both sides to address the ir disagr e­ Introductory remarks of Geraldo Rivera to the ments over th e issues. Dean Raga October, 2000 Forensic Science & The Law Conference: sees the Institute as a forum for help­ ing to resolve some of d1 e traditional I've known Cyril Wecht for objective scientific fact. Of conflicts between docto rs and law­ most of my 30-year broadcasting course, the findings are a lot career, and my respect for him more reliable when someone yers, "a lthough you never r all y will has only grown over the decades. like Cyril Wecht is doing the re­ quite eliminate the battle between His skills as an attorney, as a pa­ search. But without a doubt, the the expetts," he said , "to a large ex­ thologist, as a medical examiner ever-evolving, ever-improving tent this puts experts on the same are legendary, and it is all to­ field of forensic science is a key page. You will be eliminating a lot gether appropriate, I think, that factor in the administration of o f the negative asp ects of the Duquesne University is recogniz­ justice in deciding guilt or inno­ adversa ri al proceeding." ing his vast contributions by cence, in deciding even who lives Another signifi cant problem in dedicating its new Institute of or who dies. the field of forensic science is lack Forensic Science and the Law in As Dr. Wecht has said, the fu­ of training. Dr. WIcht believes that Cyril 's honor. ture has arrived for forensic sci ­ the role of the forensic scientist is Dr. Wecht has guided my au­ ence, but the problem is the lack clea r-"the professional must be diences through our coverage of of enough professionals-true highl y skill ed in applying the prin­ crimes ranging from the Kennedy professionals-people with the assassination, to the O.J. Simpson skills, the energy, and the imagi­ ci pl es of a variety of disciplines, in­ trial, to the Jonbenet Ramsey nation to integrate the modern cluding both the physical and natu­ murder mystery. And whether or day high-tech knowledge in sci ­ ral sciences, to tb e analysis of all not my audiences knew it, they ence and medicine with tradi­ types of evidence. " were getting an education info­ tional Sherlock-Holmesian intu­ In addressing why there are so rensic science-a lesson in how ition. Duquesne University many mistakes in death penalty medical science is applied to this School of Law's new Institute of cases, Tanenbaum told the Confer­ country's criminal laws. Forensic Science and the Law ence, most will be investigat d , as Unlike most other expert tes­ marks, I think, a giant step to­ with President Ke nnedy, by pa­ timony, which has the disturbing ward that necessary and very d101ogists o r coro ners who hav no tendency, Ithink, to favor the side important goal. I congratulate training to conduct that investiga­ paying the expert's bill, forensic Dr. Cyril Wecht, the University ti on. science removes much of the and everyone involved in this bought and paid-for opinion, ex­ very invaluable endeavor. People say, "this ca n't ju l be th e changing it often for hard, harsh, normal mistakes that are made ev-

Juns ISpr>ng 2001 35 or on profiling in the area of foren­ sic psychiatry. " A pe rfect example o f just such a situ ati on wo uld be th e sort of work th at Pennsylva ni a Senate Bill 589, which provides fo r post-con­ victi o n D NA testing, w o uld re­ quire o f local distri ct atto rneys and po li ce de partme nts if it be­ comes law . As technologi es be­ come mo re advanced and these kinds of laws become more popu­ lar, both prosecutors and po li ce will need to revi s it whose respon­ sibility it is to ma intain certain evidence, how lo ng that evide nce ho uld be ke pt and in what fash­ ion, Pennsylva nia eatorJay Costa to ld JURIS. The Institute is de ­ signed to provide practi cal train­ in g with respect to th se kinds o f issues in additio n to creating a fo­ rum for o pe n discussion amo ng all thro ugh the Innocence Project o r o r tangentiall y related to medicine. parties in volved : po li ce o ffi cers, priva te c ounse l re prese ntin g Dr. Wecht is parti cularly excited prosecutors, and de fense counsel. someone in a post-convicti o n pe­ abo ut Duq uesne's creati o n of the According to Ba rry Sc he ck, tition , you have to ask yourself, fiv -year entty level program for a the re a re some 300,000 kit on what crite ri a am sho uld I fo llo w Master of Science in Forensic Science she lves nati o nw id e that conta in before 1 can pe rsuade a judge? Or & Law which begins this fa ll. physical evidence of o ne sort o r if you 're the court, w hat crite ri a do M mbers of The Institute's Advi­ another that, theoreticall y, was not I foll ow to authorize this kind o f sory Boa rd inc lude pro mine nt crimina li sts, lawyers and docto rs, effecti vely used in a crimina 1 tri al. actio n? What ri ghts exist?" "The questi o n ," says Rago, "is including Henty C. Lee, Criminalist w hat metho ds a re we going to If You Build It They Will Come and Director of the Connecti cut tate Po li ce Forensic Sc ience Laboratoty , employ to get to those? It's not a The Institute has stirred unprec­ Bany C. Scheck, professor of law and matter of how do we ge t to the edented e nthusiasm both locall y a utho r, a nd Dr. Mi cha 1 We ine r, evidence, tho ugh in some cases it and natio nall y, in the fore nsic sci­ Chairman of The Forensic Panel and is, but how do we dete rmine what e nce community and beyond. "I professor of psychiatty in ew York. cases to pursue? Whether it's wo rk think the most re ma rkabl e thing abo ut it was that within ho urs of put­ The Certificate Program ting the fi ve-year program on line they were admitting people. Within The eleven-month Institute Cer­ hours! And I do n't know what the tificate Program is basicall y a five­ enro llment is but I understand it's module program that a sub cribe r pretty robust," said Dean Rago. The can enter at any po int. Admis ions Law Sc hool i in a unique positio n are ro lling and each module w ill treat to ho use the Institute as a result of a particul ar inte rest. Though it w ill Duquesne's long-standing relati on­ not lead to licensure of any kind, ship with Dr. Wecht and the strength Rago told JURIS, it will certa inly pro­ of its practice in trial advocacy. vide an adva ntage to panicipants be­ Dr. Wecht' visio n fo r the Insti­ cause they will be exposed to things, tute encompasses two distinct pro­ such as witnessing lab testing or se­ grams-a certifi cate program and a rology, that their peers haven't seen. mast rs program. The certificate Recruiting for the Certificate program program is designed for those incli ­ w ill begin in mid April , with a target viduals who are active in a particu­ e nro llment of fo rty. Respo nse has lar professio nal fie ld , ither directl y been vety strong, said Rago, the Law

'6 Juns Spnng 2001 ~------~...... School has received over 600 inquir­ ies so fa r. Dr. Wecht be lieves the Institute Certificate Program will attract can­ didates interested in pursuing ca­ reers as law e nfo rcement o ffi cers, nurses, atto rney · (practi cing in the a reas of pe rsona l injury, de fe nse a nd c rimina l la w) , p rosecuto rs , crime scene investigato rs, judges, counselo rs and re lated pro fessio n­ als wo rking fo r rape and drug abuse cente rs , physician s (w o rking in e m e rgen cy room s a nd tra uma units), and those gene ra ll y inte r­ ested in expanding the ir kno wledge in this exciting and growing fi e ld . The two largest po te ntial g roups o f like ly prospects fo r the certifi­ cate program include Jaw e nfo rce­ me nt offi cers and nurses. Law e n­ fo rceme nt o ffi cers a re mo re a nd o the r, w e do n't unde rstand coll ec­ "The MA program is lite ra ll y de­ mo re expected to recognize , ide n­ ti vely ho w cie nce can he lp all of sig ned to give people fo rmal tra in­ tify , pro pe rl y preserve and collect us, not to benefit the governme nt ing that they'd typica ll y get on the fo re nsic scie ntific e vide nce even o r to benefit the defense, o r the de­ jo b," said Rago. "Students who study tho ug h they a re no t ho micide o r fe nda nt or the victim but just in o ur in the Maste rs program will not o nl y rape detecti ves. Furthe r, a younger coll ecti ve pursuit of the truth. Sci­ be sp ecifi call y tra in ed to work in law e nfo rceme nt o ffi cer w ho can e nce is invaluable in that process, va ri o us fi elds, they will be in a po­ include a recognized certificate in a nd the mo re we familia ri ze o ne sitio n to assume manageme nt ro les fo re nsic sci nee o n his o r he r re­ anothe r with what scie nce can do , in fo re nsic labo rato ries across the sume is a mo re attractive candidate the sooner w e can begin to set up count1y . Having law pro fessors in­ fo r pro mo ti on . societies between o r amo ng us a nd teracting with this truly makes it, to urses have become mo re and start collabo rating. " the best of our knowledge, a one-of­ mo re involved in the justi ce syste m "These a re exciting times if a-kind program in the country," said o n the civil side , including work­ you're a practitio ner who has a littl Rago. "Professor James E. Stan·s, of ing fo r persona l injury firms, a nd understanding of scie nce, a nd if you George Washington Unive rsity, has o n the criminal side wo rking fo r the do n 't, that's what this Institute is ta ught in this area for the better pan public defe nde r's offi ce, prosecuto r desig ned to do. Tho ugh you may of thiity years. He has joint appoint­ o ffi ces and firms providing crimina l not want to come and listen to a dis­ ments with other graduate schools, defe nse wo rk. Obtaining a certifi­ cussio n o f the fundame nta ls of evi­ but his law school doe not acti vely cate in for nsic science will make de nce, whe n you're ready to talk participate in the interdisciplinaiy ap­ the m mo re suitable, attracti ve can­ abo ut ballistic testing, o r blood test­ proach, so whe n he saw what we didates, expand the ir ho ri zons and ing , o r a nthro po logy, psychi atry, were doing he said the law school has broad e n the ir kno wle d ge. Of p sycho logy, all of the va ri o us fo rms reall y come across something he re course, two o the r po te ntia l pools offo re nsic treatments, you may sub­ that is truly unique ." o f candida tes inc lude c ivil a nd scribe to com hear lectures, e ither "We need to nunure it-and we criminal atto rneys and physicians. thro ug h the a nnua l se ri es o r the need to be dynamic in o ur nlllturing, "In my opinio n," said Rago, the sma ll e r sessions-this wiJI b an o p­ we're stiJl in an e mbryonic stage be­ biggest attracti o n of the Institute po rtunity no t o nl y to liste n but to cause of planning, but the Institute Certificate program is that it w ill o f­ inte ract with o the rs . We plan on will spur aUso 1ts of things," Rago said . fe r professio nals the o pportunity to bring ing in Scheck , Bade n , Lee, "In additio n to giving people the tools sit cl o wn with o the r professio na ls We ine r, and many othe rs serving o n that they need , we may be abl e to w ho handle the same crisi and the the ad visory board. serve o ne way o r another as a think same injured parties, in bo th a civil tank for legislators who want to come and criminal context. Right no w , we The Master of Science in up with po licy with respect to the u e do n 't communicate with o ne an- Forensic Science & Law of this kind of evidence, because it's

Juns 1 Spnng 2001 37 notgoingtogoaway. TI1euseofDNA this almost instantly," Raga said, "be­ School. He has already reached out evidence is one thing, but what about cause of Dr. Wecht, the caliber of the to and been in contact with local sci­ the use of physical evidence gener­ people his name brings to tl1e pro­ entists, private attorneys, public ally? What do you do with blood evi­ gram, the caliber of people here in health officials, law enforcement of­ dence that wasn't used at trial when the city, and tl1e level of interest tl1at ficers and physicians to discuss po­ there are later allegations that a sci­ we have as a University. Nursing, so­ tential faculty positions. entific investigation could have been ciology, psychology, pharmacy, "In the months and years ahead, I done? Can you work from photo­ chemistty, biology, our environmen­ am confident that the Institute will graphs? You have to look at all of the tal sciences-all of these disciplines play a critical role .. . not only for cases sitting there in inventoty now." can coalesce-and we can really the professional development of come up with sometl1ing that is spe­ many individuals throughout the re­ The Future cial here. I fully suspect tl1at tl1e cur­ gion and beyond, but also in the criti­ The third program to be in­ riculum, much like our constitution, cal area of multidisciplinary scholar­ volved with the Institute is a two­ ship that will inform us all of tl1e effi­ year masters degree program. "''m cacy of this emerging force in the hopeful that the Un iversity does adn1inistration of justice," noted the something with that within the next Dean of Duquesne University School two years or less," Raga told JURIS , of Law, Nicholas P. Cafardi. "because there are people currentl y "We know we've got sometl1ing in law school with scie nce back­ here and we know we've captured grounds who previously felt they the right audience," said Raga, "no­ were limited to pursuing a career in body else will be able to do it the way health care, but this is precisely what Duquesne's going to do it. " they want to do-they want to work E.:x:cerpts taken from the Septem­ in a lab-they want to work on in­ ber 25, 2000, and October 23, 2000, vestigations." issues of The Duquesne University "This Institute should serve as an Times and the Executive Summa~y impetus, if nothing else, to other aca­ of The Institute's Curriculum ...... _ demic developments institution wide, Raga said, "so if nursing comes on Deborah L. Kutzavitch is a third-year line with a graduate program or if evening student and Executive Editor of psychology comes on line with a JURIS. She is a legal assistant with the graduate program tied to forensics, Hillman Company. and the law school can be a patt of that, we're excited about it. It's not a N. S. Koerbel is a graduating.fourth-year traditional use of law chool re­ evening student. She is Editor-in-Chief sources-it really does bring other is going to be a living document, and ofJURIS and teaches legal and business cun·iculums into the fold. " I think it will change as we get better writing at the University of Pittsburgh. "For the Law School curriculum," at tl1is and furtl1er understand what said Raga, "we will be introducing a we can do. A lot of folks are excited forensic science and the law course. about it. " ENDNOTES But our students won't be taking Institute faculty will , of course, 1 Peter R. DeForest, R. E. Gaensslen , play an impottant role in providing Hen1y C. Lee, Forensic Science, An courses in the Institute. They can sit Introduction to Criminalistics 8-10 in, they can subscribe, but the a first-rate, quality program. Dr. Wecht (1983). courses won't be available to law stu­ is "very pleased and truly heanened /d.at21. dents for academic credit. My hope by the fact that the faculty at for law students is that when this two Duquesne Law School have enthusi­ year program comes on line, that it astica lly embraced the program and will be available to them as a joint­ voted to suppott it in every way. " Sev­ degree oppottunity because it would eral of the full-time faculty members give our students another career op­ have already spent a considerable tion that I guarantee you no other stu­ amount of time in attending meetings dents are getting right now." and developing th program. Dr. "With the ri ght focus, the right Wecht will also play a significa nt role funding and th right energy, I think in selecting Institute faculty for Duquesne can be a leader in area courses offered outside the Law

38 Jum I Spnng 2001 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 ca use the techno logy fo r testing necessa1y to ensure that any remain­ was not in existe nce at the time of (1) An individual convicted of a ing biological material in the pos­ cri mina l offe nse in a court of this the tri al, or the appli cant's coun­ sessio n of the Commonwealth or the Commo nwealth , and w ho is serv­ sel did not seek testing at the time court is preserved pe nding the ing a te rm o f imprisonme nt o r of t he tria l, o r the a pplicant's completi o n of the proceedings un­ awaiting executi o n becau e of a counsel soug ht funds fr o m the der the Secti o n. sentence of death may apply by court to pay fo r the testing be­ ma ki ng a w ritte n motion to the cause hi s c li e nt was indigent and (c) REQUIREMENTS sente nc ing court fo r the pe rfo r­ the court refused the request. Applicants fo r such motions mance of fore nsic DNA testing o n w ill be required to: (b) NOTICE TO THE specific evide nce. (1) (i) a ·sert actua l innocence of COMMONWEALTH the o ffe nse fo r whi ch the a ppl i­ (2) The evide nce may have been (1) pon receipt of such a motion, ca nt was convicted; d iscovered e ithe r prio r to o r after the court sha ll notify the Commo n­ (ii) in a ca pital case, assert ac­ the applica nt's con victi o n , a nd wealth and affo rd it an o pportunity tual innocence of th e charged shall be ava il abl e for testing as o f to respond to th e moti on. o r uncharged conduct consti­ the date of the mo ti o n. If the evi­ tuting an aggravating circum­ dence was discovered prio r to the (2) Once such a motio n, o r noti ce stance unde r sectio n 971l(d) a pplica nt's convicti o n , the evi­ of such notion, is fil ed with the cou11 (re lating to e ntencing proce­ de nce sha ll no t have been subject both the Commonwealth and the dure fo r murde r of the first de­ to the DNA testing requested be- court hall take th e steps reasonabl y g ree), if the applicant's exon- Jur .pr•ng 20 ,, 39 e ration of the conduct would (iii ) mo ti o n is made in a timely ti o n, the court shall make a writ­ result in vacating a sente nce of manner and fo r the purpose o f ten fi ncl i ng that: death; o r demonstra ring the a ppl ica nt's (i) the testing produced in con­ actu al innocence and not to de­ (iii) in a capital case, assert clu sive evid ence or evide nce lay the execution of sente nce that the outcome of the D A implicating the applicant in the o r administrati o n o f ju sti ce. testing would establish a miti­ criminal offense; o r gating circumstance unde r sec­ (2) the court shall not order the (ii) that the DNA testing pro­ tio n 971 1(e). testing requested in a moti o n un­ vided exculpatory evide nce. de r subsectio n (a), if afte r review (2) present a prima facie case (2) the appli ca nt may appeal the of the record of the a pplicant's de mo nstrating that the: finding of the court unde r para­ trial, the court de te rmines tha t graph (1). (i) identity of or the parti cipa­ there is no reasonable possibility (3) if the court ma kes a finding ti o n in the crime by the perpe­ that the testing would produce that th e D A testing provided ex­ trator was at issue in the pro­ exculpatory evidence that: cui pa to ry evid e nce: ceedings that resulted in the ( i) would esta blis h the (i) the applica nt ma y, pursuant applica nt's convicti on and sen­ applicant's actu al innocence of to section 9545(b)(2) (relating tencing; a nd the offe nse fo r which the ap­ to jurisdiction a nd proceed­ (ii ) D A testing of the specifi c plica nt was convi cted ; ings), during the 60-day pe ri od evid e nce, assuming exculpa­ (ii) in a capital case, would es­ beginning o n th e elate o n tory results, would establi sh: tablish the applica nt's actual in­ which the court makes its find­ (a) the applicant's actual in­ nocence of the charged or un­ in g, petition to the court that nocen ce of th e offe nse fo r charged conduct constituting o rde red the testing for post­ whi ch the applicant was con­ a n aggravating circumstance convictio n re li ef pursuant to victed ; unde r secti o n 9711Cd), if the secti o n 9543(a)(2)(vi) (relating appli ca nt's exone ration of the to e li gibility for re lief); a nd (b) in a capital case, the conduct would result in vacat­ applicant's actual innoc nee of (i i) upo n receipt of a motion ing a sente nce of death ; o r the charged or uncha rgecl con­ unde r subparagraph (iii) in a ca pital case, would es­ duct constituting a n aggravat­ (i), th e court that orde red th e in g circum ranee unde r secti on ta blish a mitigating circ um­ testing sha II conside r the mo­ stance under secti o n 9711(e). 971l(d), if the applicant's ex­ ti o n, alo ng with any answer o n e ratio n of the conduct fil ed by the Commonwealth, would result in vacating a sen­ (e) TESTING PROCEDURES and sha ll conduct a hearing tence o f death ; or (1) Any D A resting ordered under the reon. (c) in a capital case, a miti­ this section shall be conducted by: ( 4) in any hearing on a motion for ga ting circu msta nee unde r sec­ (i) a labo rato ry mutually se­ post-convi ction re li ef fil ed pursuant tion 9711(e). lected by the ommonwealth to paragraph (3), the couJt shall de­ and the applica nt; o r te rmine whether the exculpatory (d) ORDER (i i) if the Commo nwealth and evid ence resulting from the D A Except a · provided in pa ra­ the a pplica nt are unable to testing conducted under this section graph (2), the court shall ord er the agree o n a laboratory, a labo­ would have changed the outcome testing requested unci r r ason­ ratory selected by the court that of the tri al as required by section able conditio ns designed to pre­ o rde red the testing. 9543(a)(2)(vi). #...... serve the integrity of the vidence (2) the costs o f a ny testing o r­ and the testing process, upo n a dered unde r this section sha ll be dete rmination, after review of the paid : record of the applicant's tria I, that (i) by the applica nt; o r the: (ii) in the case of a n applica nt (i) requirements of subsecti o n who is indigent, by the Com­ (c) have been met; monwealth . (ii) evidence to be tested has been sui jeer to a chain of cus­ (f) POST-TESTING PROCEDURES tody suffi cie nt to establi sh that (1) Based o n the results o f DNA it has not been alte red in any testing conducted unde r this Sec- mate rial respect; and

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