US legal news

Further update: Via Scotusblog, the majority opinion is here [.pdf], Justice Scalia’s dissent is here [.pdf] and Justice Thomas’ dissent is here [.pdf].

As per this WaPo report, SCOTUS has upheld Oregon’s Death With Dignity Act in a 6-3 ruling.

The Supreme Court, with Chief Justice John Roberts dissenting,
upheld Oregon’s one-of-a-kind physician-assisted suicide law Tuesday,
rejecting a Bush administration attempt to punish doctors who help
terminally ill patients die.

Justices, on a 6-3 vote, said the
1997 Oregon law used to end the lives of more than 200 seriously ill
people trumped federal authority to regulate doctors.

More as the decision becomes available.

Update: Scotusblog has more:

In a bow to states’ rights, the majority commented: "The background
principles ofour federal system…beliethe notion that Congress would
use such an obscure grant of authority to regulate areas traditionally
supervised by the states’ police power." Thus, the Court said, it was
unnecessary to determine whether Congress had made a clear statement of
intent to interfere with state authority over medical practice, or
whether Congress had intended to preempt that state authority.

The federal Controlled Substances Act "and our case law," the Court
said, "amply support the conclusion that Congress regulates medical
practice insofar as it bars doctors from using their
prescription-writing powers as a means to engage in illicit drug
dealing and trafficking as conventionally understood. Beyond this,
however, the statute manifests no intent to regulate the practice of
medicine generally….Tbe structure and operation of the CSA presume
and rely upon a functioning medical profession regulated under the
State’s police powers."

There was this news item a while back, where a man failed to tell his extramarital partner (and previously, his wife) that he had contracted H.I.V. back in 1991. He was recently arrested and charged with some crime.

Now, indulge me as I depart a little. A few days ago, I came across this article in CNN by a law prof. from Rutgers discussing this very case. She writes:

The case first asks us to consider the culpability of one who spreads HIV to unwitting sexual partners.

Second, it asks us to decide how best to protect potential victims from the spread of the virus.

Finally, it forces us to confront the question whether the criminal law is primarily about the condemnation of wrongful behavior or the prevention of further harm, when the fulfillment of these two goals point in different directions.

The article is fairly correct in analysis when discussing the first two points. When it gets to the third point, however, it gets a little interesting. She argues that the law serves two purposes: to punish and to deter. It will encourage people like the defendant here to make others aware of their status and not to engage in sex with someone without telling them – or not at all. So far, so good. But then she introduces this wrinkle:

HIV testing — though recommended — is generally not mandatory. Accordingly, a necessary condition for criminal liability for exposing others to the virus — the knowledge that one is HIV-positive — is something over which the potential culprit has control.

The lesson that a sexually active individual might take from the prosecution of a man like Boyd is, therefore, that he should keep himself ignorant of his own HIV status.

…

Add to this the potential for criminal prosecution, and the people most in need of HIV counseling might avoid testing even more studiously than before.

What good would it do to motivate a person who has unprotected sex to get tested?

She concludes that such prosecutions may prevent people from getting tested. They don’t want to face reality and don’t want to be prosecuted – yet continue having sex. The only problem with this article is that she doesn’t provide a solution.

So how does one resolve this seeming conflict? What methods, policies would you recommend that would allow for prosecution, yet not deterr others from getting much needed testing?

I know Blondie used to be intrigued by these crimes, so perhaps she has some ideas. Anyone else?

In some heartening news, lifers in a PA prison are taking the lead on rehabilitation. These lifers (calling themselves "LIFERS"), made a presentation of their program to academics from around the world who were in Philly attending the "World Congress of Criminology" (???).

Their program consists of spending each Saturday night at the prison with other inmates who have the possibility of release. The idea being that young inmates who are part of gangs and immersed in "street culture" don’t want to hear about reform from lawyers, judges and COs. Getting advice from lifers, howevers, adds some cred.

Inmates who take part in the program are urged to renounce street codes such as revenge, violence and materialism and replace them with what the lifers see as more genuine traits of manhood such as honesty, restraint and responsibility.

…

"You can have any number of academic theories, but the youth isn’t going to take it from you because you don’t have credibility," said Kevin, a 33-year-old convicted of murder and imprisoned for life without parole in 1991. The state Department of Corrections does not allow inmates’ last names to be used.

Tyrone, a 55-year-old who has been in prison for murder since he was 25, said: "We know the street crime culture. We know how to address it and those currently living within it."

Hear hear! Young adults (and even teens) often turn to gangs to provide a sense of family, of belonging. There is no better place to get advice than from the people that belong to that very family.

Hat tip: CrimProf Blog.