In parts one through four of our series on the Affordable Care Act, we have examined a few of the benefits that are seen as the most desirable provisions of the law, things like no pre-existing condition, no-cost birth control, and the ability for children to remain on their parents’ plans. There are other benefits, like cash subsidies to assist in the purchase of the ACA health care plans that will be examined later in the series. For part five, we will skip ahead and discuss the law as it relates to small business and corporate America.

Who Must Comply with Obamacare?

Under the ACA law, any business with more than 50 full-time employees must offer health insurance to its employees. This health insurance plan must be compliant, meaning the benefits of the plan must meet or exceed the minimum benefit thresholds in the ACA law. If a company does not offer a plan or has a plan that does not meet the minimum standards, then the employer will be assessed a tax fine of $2,000 per employee. This provision is not quite as straightforward, however, because technically the company is only supposed to pay the fine for employees who are eligible to receive subsidized health care costs.

Since everyone is mandated to have coverage, that means the fine would apply to all employees, not just the ones receiving government subsidies. In addition, the first 30 employees are exempted from the fine. For example, a company of 51 workers would pay a $2,000 fine on 21 workers (51-30=21) or $42,000. A good guide for explaining different scenarios can be found at the National Federation of Independent Business website.

If you have fewer than 50 employees, you are not required to provide health insurance. However, if you have up to 25 employees, the government will provide a tax credit if you have employees earning at least $50,000 per year and offer health insurance. In 2013, the tax credit amount is 35% of your annual cost for health insurance premiums and goes up to 50% after 2014.

However, that is only if your average employee salary is $20,000 or less. If the average salary is higher than $20,000, then the tax credit will be reduced by a factor determined by how much the average salary is above $20,000. In addition, if the company has more than 10 employees, regardless of salary average, the tax credit will be reduced. Lastly, there are no tax credits allowed for employees considered “highly compensated.”

For the ACA law, highly compensated is considered anyone making over $80,000 a year. If you noticed how the first sentence in this paragraph contradicts with the numbers in the third sentence, that is not a typo. It is contradictory, but that is what is written in the ACA law. You can find this information at the healthcare.gov and on page 319 of the ACA law.

Implications

The number one implication of the small business and employer provision is the flooding of potential ACA recipients into the system, resulting from employers dropping coverage. Most proponents of the ACA law have dismissed this idea as conservative scaremongering at best and corporate greed at worst. That, however, is because they are not the ones writing the checks. This is a simple math equation. The increase in required ACA benefits increases the costs of the health insurance premiums, because more items are covered.

At current levels, the Kaiser Family Foundation puts the average cost of employee health insurance at $15,073. Only $4,129 of that is paid by the employee, meaning close to 11,000 of the costs is paid by the employer. The ACA coverage mandates will increase those premiums, but even at current levels, paying a $2,000 per person fine is better than $11,000. This is simple math, and as you move into companies that have 5,000 or more employees, you are now talking about saving hundreds of millions of annual costs. Make no mistake, many companies will take this option.

For the companies that bite the bullet and provide health insurance, their costs will increase. This will be because of higher premiums charged by the insurance companies for having to cover more health care benefits and for costs related to keeping up with the regulations that come with the law. There is no definitive way to determine the costs accurately ahead of time, but the Congressional Budget Office projects the costs of ACA to be double what they originally projected.

To be fair, the CBO estimates were for the first 10 years. New projections that go out 11 years have the cost down 0.64%. Why the CBO would go out just one year on their projections is a little strange, especially given the paltry reduction in costs it would show. More telling is that the projection is based on additional revenue provisions that would pay for the law. This is always the problem with the CBO; it only answers questions based on the paper and assumptions put in front of them.

If any of those figures are wrong, if something is left out (like payments to doctors left out by Democrats when the bill was originally submitted), or the revenue gathered is less then projected, then the whole analysis is thrown off. Garbage in, garbage out is the old saying. The primary common sense question to this is simple: When has any government program ever cost less than promised? The answer is never.

The other implication is that the country may see an increase in temporary agency usage. Companies on the cusp of going past 50 employees and either wish to expand or have no choice to can avoid that employee threshold by going through temp agencies. This will alleviate some added costs to them, but only marginally as the temp agencies will also be charging a higher fee per employee supplied.

Lastly, small businesses will not get near the benefit from the tax credit. As discussed above, employers cannot have more than a $20,000 in average salary to receive the full tax credit. If you have higher salaries, the tax credit percentage goes down. Any company that can only afford to pay an average salary of $20,000 or less, in all likelihood, cannot afford to pay for health insurance regardless. Look at the numbers: With an average employer cost of $11,000, an employer could get a $5,500 tax credit, and they pay the other half.

However, $5,500 dollars is a quarter of a $20,000 salaried employee’s pay. A business that small cannot afford to pay that. They cannot afford to risk going under just to satisfy some politician’s belief that paying for health insurance is the right thing to do–no matter the cost. Also, this tax credit does nothing for large employers because they are not eligible. If you have 51 or more employees, you cannot get a tax credit at all. Because of this, there is no incentive.

The primary problem is political and social philosophy intruding on policy and business. Things like health care, time off, vacations, etc., used to be called fringe benefits. They were there to create greater employee loyalty and a way to compete for better employees. They were, in short, extra benefits. Today, they are seen as items that are owed to employees.

The President and the Democrats have determined that health insurance is a right, and if the government cannot get a bill through for single payer, then employers are responsible for paying for that right. Whether this is true (health insurance as a right) is an argument for a different day. The point here is when you approach policy that way, then you end up with bills that have consequences far beyond what is written or intended. Businesses exist to provide a product or service, and make a profit. That is all. They are not smaller surrogates for government to be enlisted in the care and feeding of the population.

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When it comes to solving the problems and challenges of a country or organization, few things are more frustrating than policies or programs designed by ideology. This is an ever present problem in politics, and is often the reason bills and laws are several hundred pages long. You need that much room to put in rules that address whatever political or social world view of the politicians crafting the bill. The Affordable Care Act (ACA) is no different, and in installment four of Toonaripost’s Series on the law, we will touch on two provisions written into the law that illustrate this phenomenon.

Equal Premiums for Women

In web advertisements and mailers, the Democratic Party refers to this provision as, “being a woman is no longer a pre-existing condition.” The reason for this is that under ACA a woman can no longer be charged a higher premium for health insurance than a man of equivalent age. Two people, male and female, in the same city and town, of the same age, will now have the same or equal monthly premiums.

Implications

There are two implications to this provision. The first, as discussed in Parts One, Two, and Three of our series, is that it is just one in a long list of items that create higher premiums. Why would this be? The reason is simple. Insurance companies do not charge higher premiums to women because they dislike women, they charge higher premiums because women have higher overall health care costs.

Insurance of any type is a service meant to provide money or expenses paid for various types of risk. Companies determine through statistics and probability computations what the company’s risk is for paying out a claim are in a given market; auto insurance, life, or in this case, health care expenses. Premiums are not determined in isolation; there is a reason for them.

According to a study by the Health Services Research center, the per capita lifetime expenditure for a female is $361,200, a third higher than males, at $268,700. Two-fifths of this difference owes to women’s longer life expectancy. Another reason is that women give birth.

If you contrast this with auto insurance, then the roles are reversed. Men pay higher premiums, because men have more accidents, get more speeding tickets, and are more aggressive drivers than women. As a result, women pay lower premiums. That is not unfair or discrimination. That is a function of risk and real costs.

Whether a person agrees with the ACA law is not the issue. This series is about the provisions of the law, and its implications apart from political sides. Nonetheless, this is a provision that has a political viewpoint driving the policy. On the political left is a view that everyone should be treated equal in all things and in all areas.

Those on the right would not disagree, but it can be construed that sometimes the policies from the left, substitute the word equal, with the phrase “the same.” Everyone is equal, but not everyone is the same. And sometimes those differences are significant in financial terms. If politicians continue to make laws based on ideology and not reality, there will be more bills and laws that are long, complicated, expensive, and do not fix the problem they were designed for in the first place.

The 80/20 Law

Even though the most publicized area of contention about ACA was the individual mandate, it is not the only mandate in the ACA law. As we discussed in Part Three, there are mandatory coverage items that must be in each insurance plan. There is also a provision called the Medical Loss Ratio. The health care law generally requires insurance companies to spend at least 80 percent of consumers’ premium dollars on medical care and quality improvement. Insurers can spend the remaining 20 percent on administrative costs, such as salaries, sales, and advertising. Noticeably absent from that list is any mention of a profit ratio.

Implications

The 80/20 law is perhaps the most partisan provision within the ACA law. It has nothing to do with costs, and nothing directly related to health care. What it does is reflect a worldview as it relates to health care.

The view for most Left leaning politicians and individuals is that health care and health care insurance is not something you should be making a profit from. It is seen as profiteering off the misery of sick people. Whether that is right or wrong is immaterial to this series, but that is the view. That opinion is now law, because there is effectively a backdoor price fixing mechanism within ACA.

Insurance companies now have a ceiling to which they can achieve a positive return on their operations. Over the long haul this will turn health insurance into another form of public utility. If you do not agree with profit motive being a part of health care, then this may not bother you. If you want lower prices, then you should be alarmed.

Many may think that this is not a big deal, because it will mean the insurance company may make 250 million instead of 500 million, but that is not how it works. What happens is that smaller companies cannot get to the 250 million. It means that the profit margin, about 2.5% per person now, could be cut in half, making it less attractive for new players to enter the market, or smaller ones to remain in it. Take, for instance, Humana healthcare. They started out as nothing but a single nursing home.

A company in similar circumstances today may look at the margins, the regulations, etc., and just not enter the market. Smaller and regional insurers will find it more difficult to complete and will go out of business or be gobbled up by bigger players. In the end, there will only be a few insurers in the market, making for even less competition than is already available on a state by state basis now. That means higher premiums, and often lower quality. That is the effect of price fixing, regardless of the marketplace you are talking about.

In 10 or 20 years the ultimate implication and consequence of this one, single provision could turn the Conservative boogieman of single payer into a reality.

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Chicago and Springfield, U.S.A. — The Republican led U.S. House of Representatives wasted taxpayer dollars playing a partisan game on Wednesday, when they voted to repeal the Affordable Care Act.

It represented the 33rd time Congress has attempted to repeal the Act, even though the measure is destined for certain defeat in the U.S. Senate. Keith Kelleher, President of SEIU Healthcare Illinois and Indiana, uniting 91,000 health care and child care workers, issued the following statement in response:

At a time when Congress should put its full attention on the country’s economic recovery, the U.S. House Republicans squandered a day at the office Wednesday when they voted for a politically motivated and legislatively futile repeal of President Obama’s landmark health care reform.

While average Americans need Congress to focus intensely on policies that will create jobs, make college education more affordable, reduce the federal deficit and generally improve our economic fortunes, the House Republicans chose to spend the day on a blatant political stunt. The attempt to repeal the Affordable Care Act is considered dead on arrival in the Senate, so Wednesday’s vote was an exercise in empty symbolism, wasting time, energy and public dollars that should have been marshaled to accelerate our economic revitalization.

In response to today’s vote we will be informing our union members of all of Illinois’ Congressional members who voted to deny Illinois citizens quality, affordable health care. In the wake of last month’s U.S. Supreme Court decision upholding the Affordable Care Act, the time has come for opponents of the bill to dispense with partisan gamesmanship and move on to the business at hand: putting more Americans to work.

Congress should let the Affordable Care Act continue to work for the people of Illinois.

According to the Campaign for Better Health Care, the law has already generated the following rewards in Illinois:

• More than 3.6 million residents became entitled to preventative medical services, such as mammograms and colonoscopies, without having to pay deductibles or co-pays.
• More than 100,000 uninsured young adults under the age of 26 became eligible for coverage under the parents’ health insurance.
• More than 150,000 seniors with Medicare received a $250 rebate to cover the cost of their prescription drugs once they hit the so-called donut hole.

For all of these reasons, members of Congress who voted to repeal the Affordable Care Act must explain to Illinois voters why they chose to deny health security to their constituents and why they oppose providing quality and affordable health care for all Americans.

Image Courtesy of  Jose Gil / Shutterstock.com

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So far in our series about the Affordable Care Act (ACA), we have provided an overview in Part 1 and reviewed the benefits of Pre-existing conditions and continuing coverage for kids under their parent’s plans. This law is a complicated one, with over 2,700 pages. It is the goal of this series to explain the more common provisions in a simple and logical way, so you do not have to read the entire law. In Part three, we will look at the following provisions: no cap on lifetime benefits, and preventative care benefits.

No Lifetime Limit on Coverage

Most health insurance plans, either private or through employment, have a limit on the amount of coverage for each person. Often, that limit is between one million to two million dollars. This is an average, and can be more or less depending on the health insurance plan. When you reach that limit, you no longer have coverage. If you or your kids have a rare illness like hemophilia, or rare form of cancer, you can reach the limit fast. Once you do, you have to pay for your care out of your own pocket.

Congress set out to end this within the ACA law. Now there will be no limits on coverage. If you have a rare disease or other health care problem that costs five million dollars, then the insurance company must pay it. While there are no official statistics on people that reach and exceed lifetime limits, it takes only a few people with news stories of their plight to make this a popular provision of the law. It is hard to argue against.

Implications

The primary result of this policy is higher premiums. On one hand are the very real costs of paying the additional medical bills of people who would have reached and passed a limit. Not many people do, but that is not the issue. The insurance company must factor in the costs of additional expenses for everyone. That is how they figure out risk and determine appropriate rates: by using actuaries and high level math to determine risks, average costs, etc. When their expenses for payouts go up, their rates must go up as well. It is simple to say, “They should just eat the expense for the good of people over profits,” but without profits there is no company to pay any premiums.

On the patient side, you will no longer have to worry about being wiped out by an illness. If you can afford the premiums for coverage, then you will not have to stress over possible high health care costs.

A more subtle implication is the continuing argument over how much are and should people be responsible for their decisions. As we will discuss in detail in the section on preventative care, no limits are another barrier to people understanding health care costs, and being responsible. Often, insurance plans have riders that allow individuals to purchase a higher limit amount, and people decline to do so.

They see two million dollars, and think “Hey I’ll never have that many doctor visits.” Then, the illness hits and it is too late. Sometimes people are innocent victims of fate, other times they are the victim of their own choices. As laws take more and more responsibility away from individuals in different areas, there is the real effect of people being more irresponsible.

Preventative Care

If you have caught even a slight amount of news about the ACA law, then you have probably heard supporters of the bill tout this benefit. Beginning in section 4,000 of the law, a host of preventative services are now covered under the law at no co-payment.

The number of services covered are too numerous to fully list here, but include things like disease screenings, mental illness screenings, immunizations, and most controversial presently, birth control and sterilization procedures. Many of these services were covered under current plans offered for sale or through employers, but now they must be covered at no co-payment to the insured.

Implications

The primary idea behind covering preventive care in a comprehensive manner is the fact that the best way to keep costs down for serious illnesses is to not get sick. If individuals take better care of themselves, get regular checks-ups, and prevents illness, then over time health care costs will go down, and then premiums will go down. The problem, however, is that you cannot make people go to the doctor. Many insurance plans already cover items of preventative care at no cost, or very low co-pays.

Many offer lower premiums for things like joining a gym, or joining wellness programs. Yet, people still do not take better care of themselves. You cannot make people go to the doctor, get checks-ups, or engage in wellness programs. By making them free, you have just taken any incentive or responsibility out of their hands.

When you divorce people from real costs, they do not worry about costs. When you make something free that they were not planning to do anyway, then all you have done is raise the costs of premiums, because these services must be covered. By making all sorts of preventative services covered, both the practical like immunizations and the esoteric like fully funded wellness centers, you increase costs.

The other implication is that the Obama administration has set up a coming legal war over the issue of birth control. By mandating that religious organizations must cover birth control, they have impended, many feel, on the rights of the religious. Birth control is a personal choice, but the ACA has made it everyone’s business because it requires everyone to pay for it.

The crux of the situation is simple, should you have to pay for your neighbor’s choices? If you are an employer, religious or otherwise, should you have to pay for the choices of your employees? The ACA says yes, and many organizations will be fighting this provision.

The next part of our series will explain provisions requiring equal premiums for women, and mandates dictating how much insurance companies must pay in health care expenses. These are two of the more controversial provisions with wild and inaccurate statements flying in the media. Tune back in to get the real facts on these two provisions of ACA.

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In Part One of Toonari’s Affordable Care Act series, we gave an overview of the law’s structure. In Part Two, we will begin to review the benefits as stated in the law, and their possible implications. The provisions we will review first are two that will be at the forefront of the President’s campaign stump speeches. These are benefits related to children and preexisting conditions.
Children Can Stay On

Before the 2008 recession, this is a benefit that would not have been a big deal for most parents. In the wake of the recession and Millennials moving back home in droves, it has become a more frequent problem. Before the ACA, children could remain on their parent’s health insurance plans until some time between age 21 and 24; it varied from state to state.

Now under the ACA, children can remain on their parents plan until age 26. This is something that many parents like, and sounds good on the campaign trail. For parents with kids with serious, ongoing chronic illnesses this also relieves, in theory, some of the stress of approaching health care costs. This is a catch gap designed to be a bridge between now, and when the preexisting condition benefits kick-in, in 2014.

Implications

The consequences of this change are minute. It is true that some people have a philosophical problem with what could be seen as further coddling of young adults, the reality is the difference between 24 and 26 is small. Keeping kids on the parent’s plans for a couple of extra years does increase the risk of higher and more medical payouts for the insurance companies, but most people at age 26 do not go to the doctor that often. In addition, the parents still have to pay the extra premium they were paying for their kids remaining on their plan for a few more years.

That is added income to the insurance company. Basically this is a wash. The one caveat to this is that one of the benefits mandated by the ACA (more in this later in the series) is the coverage of birth control costs with no co-pay. Young adults are typically more sexually active so there will be an increase in costs to the insurance company for that benefit, which will force an increase in premiums from the insurance company.

Premium increases are a subject we will return to again and again in this series about the ACA law. It is important to remember; health insurance companies do not have the power to tax the public. They pay their claims out of the earnings they make. When their expenses go up, they must charge more. This is not a matter of evil intentions. It is basic business 101. You must charge enough to cover your expenses. If expenses go up, then so must your prices.

Pre-existing Conditions

This is the big one. The issue that pulls the most heart strings, and the one that most people agree upon. Starting in 2014 there will be no preexisting conditions limitations for anyone. Before the law, if you had a preexisting condition and were not on an employee health care plan, you would be denied coverage. The reason for this is simple. If you have diabetes, then you are a guaranteed expense for the insurance company.

Insurance is all about minimizing risk to cover as many people as possible, for as little as possible. That basic tenant of insurance planning is now off the table. Cancer, AIDS, asthma, congenital conditions, previous surgeries; it is unimportant what the condition is, you can now get coverage.

Implications

The possible and real implications for this are huge. On the consumer side, you do not have to worry about being denied coverage. The days of worrying about choosing bankruptcy over health care are now ostensibly over. On the insurance side, the costs will skyrocket. It is easy for many to say, “Life before profits, or money” but that is because they are not the ones writing the check to cover the costs. One of the main selling points politically was that the ACA would reduce costs of health insurance and health care expenses.

This is one component of the law that makes that claim hard to reach. Millions of people who are very sick will now have coverage. This is a good thing. However, this will prove to be a bad thing fiscally. As the law settles in (assuming an Obama victory in November), costs for premiums and actual care will move up under the law. At some point cost containment measures will have to be looked at, which could mean rationing of care.

The other implication is that many Americans will opt not to buy insurance and just pay the penalty, because it is less money then annual premiums for the insurance. If they do get sick, or need an expensive surgery, they can just sign up for the coverage after they find out what they need. The scenario painted by conservatives is the picture of a person signing up for the plan in an ambulance on the patient’s way to a hospital.

The image is extreme, but it is also true. A person can do that. The law has no provisions in it to keep people from waiting till they know they need to sign up, and then dropping coverage once the medical situation is treated.

This will also have an effect of increasing costs, but also limiting the funds necessary to run the plan, as those missing premiums will affect the balance sheets of the insurance companies and cause higher premiums.

In our next installment, we will review the health care cost limitations, and preventative care provisions.

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The Affordable Care Act (ACA), commonly known as Obamacare, has been ruled constitutional. Not because the government has a right under the Commerce Clause to tell citizens what they must buy, but because the Supreme Court ruled in a 5-4 vote that the penalties involved for not buying health care insurance represent a tax. Congress has the right to impose taxes, and so they can create a law that imposes a tax on people who do not purchase health insurance.

Whether the government has any business forcing money out of citizen’s wallets for not doing something, and the implication of such a precedent is a question for another day. What will be most important for Americans, and others viewing the continuing electoral fight over the law, is what does it really mean? What is in the law, how does it affect me, what are the facts?

This is the first in a series of articles about the ACA Toonari will conducing to answer that exact question. This series will breakdown the 2,700 page law into bite-sized components explaining the benefits, structure, and implications of each part of the law. Arguments about whether it is good or bad will not be a function of this series. The reality is that most people do not have the time, nor the inclination to read, study, and research information about a 2,700 page law written in legalese. That is the province of political junkies and geeks. We will start with a general overview.

The ACA law is one that changes the way health insurance is run in the United States. It is not a government run health insurance plan in sense of Britain or Canada. In those countries, the government is the insurance company. With ACA insurance companies will still exist. However, the ACA mandates what must be covered. These are:

• Ambulatory patient services
• Emergency services
• Hospitalization
• Maternity and newborn care
• Mental health and substance use disorders
• Prescription drugs
• Rehabilitative services
• Laboratory services
• Prevention and wellness services
• Chronic disease management
• Pediatric services
• Limit total out-of-pocket spending

Anyone not meeting this coverage will pay a penalty, or tax, for not having it. The penalty starts off low at $95 per adult, 47.50 per child, or 1% of your income whichever is higher. This is a key point. You will hear on television people saying its just $95. That is not true. If you make $50,000 per year, your fine will be 500 dollars. After 2014, that amount will rise until it gets to 2.5 of your income. This is stated in Section 1501, page 146 of the ACA law.

The insurance policies will be sold via an exchange. All the plans will be the same; meaning they have the same benefits. You will be able to buy different levels, with each level paying a higher percentage of total costs, but the benefits will remain the same from company to company.

Employers with 50 or more employees will have to provide insurance coverage to their employees, and it will have to meet the essential requirements of the ACA law. If they do not provide coverage they will face a fine of $2,000 per employee. Some companies and unions have been given waivers stating they do not have to comply with the law.

According to the ACA states have to expand their Medicaid rolls. This is the provision that the Supreme Court found unconstitutional. Originally, this is how more people were going to get health care insurance. Individuals and family’s that make too much for current Medicaid benefits, but make too little to afford the premiums for the plans under ACA, will go on the Medicaid plan in theirs states. States would have to pay 10% of the Medicaid costs. IF the state did not participate in the plan then they would lose federal funding for their whole Medicaid program. 

The Supreme Court has ruled that states can now opt out of this provision. It is unclear how many states will not participate, or what the result will be if they do not. A total of 26 states sued the federal government over the mandate and medicaid provisions, so presumably it is possible half the nation’s states will refuse to comply with the Medicaid expansion. The state of Florida and Texas have already declared their intentions to not comply.

This is a very general overview of the law. In the next installment we will describe two of the more popular features of the plan: children 26 and under, and preexisting conditions.

Image Courtesy of  Christopher Halloran / Shutterstock.com

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The United States Supreme Court ruled Monday that the US Constitution forbids mandatory sentencing of life in prison without the possibility of parole for juveniles convicted of homicide.  The justices ruled 5-4 in Miller v. Alabama and Jackson v. Hobbs that such a sentencing structure violates the Eighth Amendment’s rule against cruel and unusual punishment.

In one case, 14-year-old Evan Miller was convicted of murder in Alabama after setting fire to a trailer, which killed his neighbor. The second case focused on Kuntrell Jackson, who was convicted of murder in Arkansas at age 14 following his participation in an armed robbery that led to a store clerk’s death.

Both cases were sentenced using the mandatory life-without-parole penalty in their respective states, which the SCOTUS ruling struck down. The Court’s decision also invalidates similar statutes in 27 other states.

Justice Elena Kagan delivered the Opinion of the Court, citing Graham v. Florida – which determined life-without-parole sentences for non-homicides unconstitutional – as a primary precedent for the ruling. Citing Graham, the Court’s opinion asserts, “that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole.”

The mandatory penalty schemes currently in issue prevent sentencers from considering a juvenile offender’s youth, disregarding the foundational opinion in Graham that imposing the most severe penalties on juveniles cannot proceed as though the offenders are not children.

Justice Samuel Alito Jr. presented an abridged version of his own dissent, joined by Justice Antonin Scalia, from the bench, calling the majority’s reasoning, “the personal views of five Justices.”

Justice Alito’s dissenting opinion heavily criticizes the Court’s majority view for including individuals of such a broad age range, particularly regarding defendants closer to 18 years of age, “The category of murderers that the Court delicately calls “children” (murderers under the age of 18) consists overwhelmingly of young men who are fast approaching the legal age of adulthood. Evan Miller and Kuntrell Jackson are anomalies; much more typical are murderers like Donald Roper, who committed a brutal thrill-killing just nine months shy of his 18th birthday.”

However, the Miller v. Alabama ruling does not exclude juveniles from ever being sentenced to life in prison without parole. The same “mitigating qualities of youth” that prevent automatic life-without parole sentences are also left to the discretion of sentencers on a case-by-case basis.

The written dissent from Justice Alito addresses that aspect of the opinion as well, instead asserting that the Eighth Amendment is worded so that, “it leaves questions of sentencing policy to be determined by Congress and the state legislatures—and with good reason.”

According to the Equal Justice Initiative, the Alabama-based non-profit organization that also provided legal representation for Miller and Jackson, over 2200 individuals are currently serving life-without-parole sentences for crimes committed under the age of 18.

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On April 6, California Gov. Jerry Brown commuted the sentence of Shirley Ree Smith, a 51-year-old woman whose 1997 conviction for shaking her infant grandson to death has drawn national attention.

The governor’s decision – which follows recent revelations regarding the forensic evidence used to prosecute the case – means Smith will not return to prison to continue serving a sentence of 15 years to life for felony child endangerment, a charge equivalent to second degree murder.

“From my review of the information before me, including materials from the Los Angeles District Attorney’s Office, it is clear that significant doubts surround Ms. Smith’s conviction,” stated the governor in his order commuting the sentence. Brown also noted that Smith had already served an extended period in prison and had been “law-abiding” since her release as reasons to grant her clemency.

Smith has been out of custody since 2006 and now lives in Alexandria, Minn., with her daughter and surviving grandchildren. She broke down after being notified of Brown’s decision.

“I’m so glad I don’t have to go back to that place,” she said between sobs. “It’s so horrible.”

Dennis Riordan, one of Smith’s lawyers, thanked the governor. “We’re deeply grateful for the governor’s actions in commuting Shirley’s sentence, thereby saving an innocent woman from going back to serve a life sentence she should never have been given in the first place,” the attorney said.

From the start, Smith has maintained her innocence, insisting that she didn’t harm her 7-week-old grandson, Etzel Glass, who stopped breathing in a Van Nuys apartment and was pronounced dead by a doctor at a nearby hospital.

Prosecutors based the case against Smith on the autopsy findings of two forensic pathologists working for the Los Angeles County Department of Coroner. After discovering one to two tablespoons of blood on the child’s brain and bleeding in the optic nerve sheaths, the doctors ruled the death a homicide, concluding that someone violently shook Glass and slammed his head against an unknown object.

Yet the baby’s injuries didn’t fit the pattern typically associated with “shaken baby syndrome,” a diagnosis characterized by bleeding on the brain and in the retinas, as well as swelling of the brain.

During Smith’s trial, the doctor who supervised the autopsy, Dr. Eugene Carpenter Jr., advanced a unique theory, telling jurors that Glass was killed by invisible injuries to his brain stem that caused nearly instant death.

Smith’s case garnered intense scrutiny due to questions about the validity of Carpenter’s theory and other medical evidence. The 9th U.S. Circuit Court of Appeals overturned her conviction in 2006, stating that there was “there was simply no demonstrable support for shaking as the cause of death.”

But in February, at the direction of the U.S. Supreme Court, the 9th Circuit reinstated Smith’s conviction, raising the potential for her return to prison.

Early this year, Los Angeles county prosecutors asked the coroner’s office to reassess the evidence in Smith’s case. Carpenter and the office’s top doctor, chief medical examiner-coroner Dr. Lakshmanan Sathyavagiswaran stood by the homicide diagnosis. “Death is not due to natural causes and certainly not due to Sudden Infant Death Syndrome,” Carpenter stated in his report. “There is no reasonable doubt as to the cause of death.”

But Dr. James Ribe, a veteran forensic pathologist in the office, strongly challenged the notion that Glass was murdered. In a strongly worded report, Ribe identified eight “diagnostic problems” with the case. Ribe stated that he saw scant evidence that the child had been assaulted, noting “the complete absence of bodily trauma, such as face trauma, grab marks, bruises, rib fractures, or neck trauma.”

The doctor’s report – first disclosed by ProPublica, NPR, and PBS “Frontline” – described the baby’s head injuries as relatively minor and said they could have been caused by the birth process. Ribe also noted the child’s lungs were dotted with tiny blood spots called petechiae, which are often linked to Sudden Infant Death Syndrome and suffocation, and pointed out that Glass had been sleeping face-down on an “unsafe sleep surface” — a couch cushion — on the night of his death.

In Ribe’s view, the homicide ruling was unjustified. “There was head trauma,” wrote the pathologist, “but we don’t know when it happened or how it happened. We don’t know if it’s related to the cause of death. The conservative approach would be to acknowledge these unknowns. The cause of death should be diagnosed as undetermined.”

Smith’s attorneys obtained copies of the coroner’s office review from the Los Angeles District Attorney’s office and sent the reports to the governor. The lawyers say they are considering petitioning the state courts to exonerate Smith based on the fresh evidence that emerged during the review.

The deeply divided opinions at the coroner’s office underscore the evolving scientific thinking regarding sudden infant fatalities. In recent years, forensic pathologists have become increasingly aware of ailments and conditions that can cause symptoms that mimic the signs of child abuse.

Last year, ProPublica, NPR and PBS “Frontline” analyzed nearly two dozen cases in the U.S. and Canada in which people were wrongly accused of killing infants and toddlers. The joint reporting effort found that faulty medical evidence played a central role in each of the cases.

At the Smith family apartment, the mood was exuberant. Tomeka Smith – Glass’s mother – said she ran outside shouting with joy when the news of her mother’s commutation came.

“I was screaming and hollering at the top of my lungs, ‘Thank you God,’” Tomeka Smith said.  “I am so, so happy. This is the best day of my life.”

For Shirley Smith, the day brought a series of emotional waves. “I’m very grateful,” she said, sounding relieved.

Moments later she added firmly: “The whole truth still hasn’t been told. I want my name totally cleared.”

by A.C. Thompson, ProPublica, April 6, 2012, 5:48 p.m.

Image Courtesy of   http://www.flickr.com/photos/neontommy/

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Americans United for Life joined forces with other pro-life legal organizations to file the leading pro-life amicus brief before the U.S. Supreme Court, arguing that the Patient Protection and Affordable Care Act, the Obama Administration’s healthcare law, violates the Constitution by forcing Americans to pay for abortion.

AUL President and CEO Dr. Charmaine Yoest stated, “President Obama’s healthcare overhaul includes an ‘abortion premium mandate’ that blatantly violates the conscience rights and First Amendment religious rights of millions of Americans. Nowhere in the Constitution does it require Americans to violate their beliefs and pay for abortions.”

Yoest noted that courts agreed with her assessment. “The Eleventh Circuit Court of Appeals ruled that the Affordable Care Act, including the ‘abortion premium mandate’, was ‘an unprecedented exercise of congressional power.’ Today’s amicus brief demonstrates to the Supreme Court that the Eleventh Circuit was correct in their analysis,” she said.

Nestled within the “individual mandate” in the Act—that portion of the Act requiring every American to purchase government-approved insurance or pay a penalty—is an “abortion premium mandate.”

This mandate requires all persons enrolled in insurance plans that include elective abortion coverage to pay a separate premium from their own pockets to fund abortion. As a result, pro-life Americans will have to decide between a plan that violates their consciences by funding abortion, or a plan that may not meet their health needs.

“Over the last few weeks, we’ve seen a clear abortion agenda hidden in the pages of the healthcare law through the controversy surrounding the abortion-inducing drug mandate,” said Dr.Yoest.

“Forcing either companies or individuals to pay for abortion-inducing drugs against their consciences is a clear violation of the rights of individuals under the First Amendment. This case is further evidence that abortion is included throughout the healthcare law.

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The U.S. Border Control, Border Control Foundation and other organizations received the consent of the Clerk of the House of Representatives to file amicus curiae briefs in the U.S. Supreme Court supporting an effort to prevent the Obama Administration from using a flawed 2010 Census that included foreign nationals in the count to alter radically the allocation of political power in the United States.

The amicus brief was filed in support of the State of Louisiana’s motion to file an original complaint against the Secretary of Commerce who oversees the Census Bureau.  Louisiana took this unusual step of bypassing U.S. District Courts and filing this action directly in the U.S. Supreme Court due to the critical urgency to obtain a swift ruling.

In a shameful attempt to manipulate the census for political advantage, the Obama’s Census Bureau chief falsely claimed that the Constitution compels him to count ”everyone living in this country, regardless of immigration or citizenship status.”

The Census Bureau unlawfully counted illegal aliens and the President reported these flawed Census results to the House of Representatives as the basis to reapportion the House.

“The result of this corrupted census would be to reward those states that provide “sanctuary” and taxpayer funded benefits to illegal aliens with additional seats in the House of Representatives, while punishing those states that observe the Constitution and the rule of law,” said Edward I. Nelson, U.S. Border Control Chairman.

“If allowed to go uncontested, the State of Louisiana’s filing demonstrates that Louisiana, Missouri, Montana, Ohio, and North Carolina would lose one representative each, while California and Texas would each gain two seats and Florida one.  Even worse, since representation in the Electoral College is based, in part, on the number of seats in the U.S. House of Representatives, the composition of the electoral college will also be significantly altered.

“In a close race for the White House, this politicized and illegal census could deliver the presidency to the candidate that most favors illegal aliens, by giving additional electoral college votes to states like California.” said Nelson.

In addition to using the Constitution as the basis for our arguments, we also used a 1990 Supreme Court opinion that states emphatically that persons who enter our country in violation of the law are not entitled to the rights guaranteed to “the People.”  If illegal aliens are not entitled to the rights of the American people, then they should not be counted in the Census, not have their illegal presence effect reapportionment or the electoral college.

Image Courtesy of    http://www.flickr.com/photos/standardpixel/

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Texas has executed a Mexican-born man on July 7, ignoring appeals made by the U.S. Supreme Court, President Obama, and Mexico to spare the convicted murderer’s life in order to protect U.S. interests abroad.

Humberto Leal Garcia, 38 was convicted of the rape and murder of a 16-year-old San Antonio girl in 1994. He was executed by lethal injection at a Texas death chamber in Huntsville.

Leal suffered from brain damage and was sexually abused by a priest as a child. On May 21, 1994, Leal kidnapped, raped, and murdered Adria Sauceda. Sauceda was at a party where she became intoxicated and a group of men gang-raped her. According to the case, Leal offered her a ride home and the two struggled when Sauceda tried to get out of the car.

Both forensic evidence and witness statements tied Leal to the crime. In statements to police, he acknowledged fighting with Sauceda and pushing her to the ground, where he said she hit her head.

At the time of his arrest, Leal was not informed that, as a Mexican citizen, he was entitled to assistance from a Mexican counsel. However, Leal had not revealed his Mexican citizenship, and the issue of consular access was not raised during the trial. The failure to inform Leal of his rights created legal controversy.

Shortly before Leal’s trip to the death chamber, the Supreme Court rejected, by 5-4, an appeal from the White House to stop the execution on the grounds that it was in breach of an international convention governing the treatment of foreigners who are arrested and would therefore cause “irreparable harm” to U.S. interests abroad.

“That breach would have serious repercussions for United States foreign relations, law-enforcement and other co-operation with Mexico, and the ability of American citizens travelling abroad to have the benefits of consular assistance in the event of detention,” the court brief said.

But, Stephen Hoffman, an assistant attorney general for Texas, said in a brief to the Supreme Court: “Leal’s argument is nothing but a transparent attempt to evade his impending punishment.”

A number of retired military officers, diplomats and prominent Republicans backed the appeal. Maintaining the integrity of an international treaty protecting the legal rights of Americans abroad was more important than delivering swift justice to one criminal, no matter how depraved.

Donald J. Guter, a retired rear admiral in the Navy’s Judge Advocate General Corps, called the case terrible and said he had no sympathy for Garcia.

“I’m looking to protect American citizens and American service members who travel overseas, and making sure they have the protection of the treaty,” Guter said.

Texas Governor Rick Perry declined to intervene in the Leal case and the Texas Board of Paroles and Pardons voted on Tuesday, July 5 to allow the execution to proceed.

“Texas is not bound by a foreign court’s ruling,” said Katherine Cesinger, a spokeswoman for Perry. “If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws.”

Currently, the U.S. government is working to limit the diplomatic fallout that has taken place since the execution in hopes that American interests abroad will not have to be subject to any harm.

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The recent U.S. Supreme Court decision that pointed out California State Prisons severe overcrowding problem also shed light on another problem.  Even more startling in California than the “cruel and unusual punishment” of being caged over capacity is that lock downs inside the prison are classified by race.  Yes, you read that right.  And this is 2011.

During lockdowns, which are often as a result of a gang fight, all members of each race are confined to their cells for 24 hours a day, regardless of whether they were involved in the incident. This means that many inmates can find themselves denied exercise, educational programs, family visits and even sunlight for months at a time for merely being the same race as an inmate involved in a fight.

California denies that there is an official policy of locking down inmates according to race.  All members of a specific gang are locked down when one member is involved in a fight. Since so many gangs are formed from ethnic lines, it appears that there are race based lockdowns.  Despite the rationale, there are numerous documents from the Department of Corrections and Rehabilitations Appeals Branch “note that the CDCR policy is that when there is an incident involving any race, all inmates of that race are locked up.”   This doesn’t seem to mention gangs at all.

“There is no policy,” said Levance Quinn, public information officer for Sacramento State Prison. “But I understand from the outside looking in how someone could confuse that,” he said.  Quinn further explained that lockdowns are related to gangs and not ethnicity.  He stated that gang fights happen all the time and that multiple gangs exist within each racial or ethnic group. Those types of fights — when one white gang fights another white gang, for example — aren’t big security issues. The problem occurs when members of two different racial groups fight, said Quinn, because prison culture dictates that inmates must stick up for their fellow brothers.”If someone from a black gang fights someone from a white gang, then all the blacks and all the whites get involved. So then you have to lock everyone down to make sure it’s safe,” he said.

Last year in Sacramento, black and southern Hispanic inmates in a certain prison section were locked down for 24 hours a day for 11 months.  Quinn said that even though black and southern Hispanic inmates who had nothing to do with the fight were on lockdown for nearly a year, it’s not indicative of an institutional race-based policy. “It’s not based on their race; it’s based on these two knuckleheads that got in a fight,” said Quinn. “It’s really hard to explain to the outside world,” he added.

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