July 25, 2017

Archives for April 28, 2016

Professional Paradigms New and Old (Part 6): Law Beyond Blame

rhodes(At the end of last week’s post, I promised a follow up this week. We’ll get to that next week. In the meantime, the following was just too pertinent to pass up.)

In several posts over the past couple years, we’ve looked at how technology acts as a disruptive innovator, shifting paradigms in the legal profession. I recently came across another disruptor: the biology of the brain. Its implications reach much further than, let’s say, Rocket Lawyer.

David Eagleman is his own weather system. Here’s his website — talk about creds. His short bio is “a neuroscientist at Baylor College of Medicine, where he directs the Laboratory for Perception and Action, and the Initiative on Neuroscience and the Law.” The latter’s website posts news about “neulaw,” and includes CLE offerings. Among other things, neulaw tackles a bastion of legal theory: the notion of culpability.

Incognito_Cover_EaglemanEagleman’s book Incognito: The Secret Lives of the Brain contains a long chapter entitled “Why Blameworthiness Is The Wrong Question.” It begins with the story of Charles Whitman, who climbed a tower at the University of Texas in August 1966 and started shooting, leaving 13 people dead and 38 wounded before being killed himself. He left a suicide note that included the following:

“I do not understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I cannot recall when it started) I have been a victim of many unusual and irrational thoughts… If my life insurance policy is valid please pay off my debts… donate the rest to a mental health foundation. Maybe research can prevent further tragedies of this type.”

Whitman’s brain was examined and a tumor was found in the sector that regulates fear and aggression. Psychologists have known since the late 1800s that impairment in this area results in violence and social disturbance. Against this backdrop, Eagleman opens his discussion of blameworthiness with some good questions:

Does this discovery of Whitman’s brain tumor modify your feelings about his senseless murdering? If Whitman had survived that day, would it adjust the sentencing you would consider appropriate for him? Does the tumor change the degree to which you consider it “his fault”?

On the other hand, wouldn’t it be dangerous to conclude that people with a tumor are somehow free of guilt, or that they should be let off the hook for their crimes?

The man on the tower with the mass in his brain gets us right into the heart of the question of blameworthiness. To put it in the legal argot: was he culpable?

The law has accommodated impaired states of mind for a long time, but Eagleman’s analysis takes the issue much further, all the way to the core issue of free will, as currently understood not by moral and ethical theorists but by brain science. Incognito is an extended examination of just how much brain activity occurs beneath the level of conscious detection, in both “normal” and impaired persons. Consider these excerpts:

[T]he legal system rests on the assumption that we do have free will — and we are judged based on this perceived freedom.

As far as the legal system sees it, humans . . . use conscious deliberation when deciding how to act. We make our own decisions.

Historically, clinicians and lawyers have agreed on an intuitive distinction between neurological disorders (“brain problems”) and psychiatric disorders (“mind problems”).

The more we discover about the circuitry of the brain, the more the answers . . . move toward the details of the biology. The shift from blame to science reflects our modern understanding that our perceptions and behaviors are controlled by inaccessible [neurological] subroutines that can be easily perturbed.

[A] slight change in the balance of brain chemicals can cause large changes in behavior. The behavior of the patient cannot be separated from his biology.

Think about that for a moment — as a lawyer, and as a human being. The idea that our biology controls our behavior — not our state of mind or conscious decision-making — is repugnant not only to the law, but to our everyday perceptions of free will and responsibility. Tamper with free will, and a whole lot of paradigms — not just legal notions of culpability — come crashing down.

Eagleman’s discussion of these issues in Incognito is detailed and thoughtful, and far too extensive to convey in this short blog post. If you’re intrigued, I recommend it highly.

Kevin Rhodes has been a lawyer for over 30 years. Drawing on insights gathered from science, technology, disruptive innovation, entrepreneurship, neuroscience, and psychology, and also from his personal experiences as a practicing lawyer and a “life athlete,” he’s on a mission to bring wellbeing to the people who learn, teach, and practice the law.

Diego Hunt Appointed to 1st Judicial District Court

Hunt_DiegoOn Wednesday, April 27, 2016, the governor’s office announced the appointment of Diego Hunt to the First Judicial District Court. Hunt will fill a vacancy created by the retirement of Hon. Christopher Munch, effective June 1, 2016.

Hunt is currently Of Counsel at Holland & Hart, where he focuses his litigation practice on complex domestic and international products liability and torts disputes. He also represents clients involved in governmental compliance audits and investigations and government contract disputes, including litigation and state and federal bid protests. Hunt is a member of the Colorado Hispanic Bar Association, the Hispanic National Bar Association, the Advisory Committee on Language Access for the Office of the Colorado State Court Administrator, and is a board member for the Faculty of Federal Advocates. He received his undergraduate degree from the University of Florida and his law degree from the University of Denver College of Law.

For more information about the appointment, click here.

HB 16-1427: Exempting Multi-Serving Liquid Marijuana Products from Sales Limits

On March 30, 2016, Rep. Dan Pabon and Sen. Owen Hill introduced HB 16-1427Concerning Exempting Multi-Serving Liquid Retail Marijuana Products from the Sales Equivalency Limitation. The bill was assigned to the House Public Health Care & Human Services Committee, where it was amended and referred to the House floor for Second Reading. It passed Second Reading with amendments and passed Third Reading with no further amendments. The bill was assigned in the Senate to the Business, Labor, & Technology Committee.

This bill exempts a multi-serving liquid retail marijuana product from the limit on equivalency sales if the product complies with all statutory and rule requirements regarding packaging of multi-serving edibles and the product: (1) is packaged in a structure that uses a single mechanism to achieve both child-resistance and accurate pouring dosing of each liquid serving in increments equal to or less than 10 milligrams per serving with no more than 100 milligrams total per package; and (2) the dosing component is within the child-resistant cap or closure of the bottle and not a separate component.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1426: Criminalizing Intentional Misrepresentation of a Service Animal

On March 30, 2016, Reps. Dianne Primavera & Yeulin Willett introduced HB 16-1426Concerning Intentional Misrepresentation of Entitlement to an Assistance Animal. The bill was assigned to the House Public Health Care & Human Services Committee, where it was amended and referred to the House Committee of the Whole for Second Reading.

Federal law requires that reasonable accommodations be provided under some circumstances to individuals with a disability, and that certain housing providers must allow an individual with a disability to reside with his or her assistance animal without charging any fees or imposing conditions that would otherwise apply if the animal were merely a pet. This bill defines “assistance animal” as an animal, other than a service animal – as defined by the Americans with Disabilities Act – that qualifies for a reasonable accommodation under the federal Fair Housing Act or the Rehabilitation Act of 1973.

The bill requires the following medical professionals, when approached by a patient seeking an assistance animal, to either make a written finding regarding whether the patient has a disability (and if so, whether the need for the animal is related to that disability), or make a written finding that there is insufficient evidence to make a disability determination: (1) physicians, physician assistants, and anesthesiologist assistants (pursuant to section 1 of the bill); (2) nurses (pursuant to section 2 of the bill); and (3) psychologists, social workers, clinical social workers, marriage and family therapists, licensed professional counselors, and addiction counselors (pursuant to section 3 of the bill). A medical professional shall not make a disability determination unless the medical professional: (1) meets with the patient in person or by telephone; (2) is sufficiently familiar with the patient and the disability; and (3) is legally and professionally qualified to make the determination.

The bill creates the class 1 petty offense of intentional misrepresentation of entitlement to an assistance animal, which is committed if (1) a person intentionally misrepresents an animal in his or her possession as an assistance animal for the purpose of obtaining any of the rights or privileges granted by law to persons with disabilities; and (2) the person knows that the animal is question is not a an assistance animal with regard to that person, or the person does not have a disability. A written disability determination made pursuant to the bill is an affirmative defense to the offense established by the bill, while a lack of such a finding is not proof that the offense occurred. If convicted, the defendant must pay: $350-$1,000 for a first offense; $600-$1,000 for a second offense; and $1,000-$5,000 plus community service for a third offense.

A district court may order the conviction record sealed if: (1) the defendant files a petition and pays the filing fee; (2) the defendant’s first offense was at least three years prior to filing the petition; and (3) the defendant has not had a subsequent conviction for the offense.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1424: Changing Requirements for Qualified Medication Administration Personnel in State Facilities

On March 30, 2016, Reps. Edward Vigil and Sen. Leroy Garcia introduced HB 16-1424Concerning Qualifications for the Administration of Medications in Facilities, and, in Connection Therewith, Making an Appropriation. The bill was introduced into the House Health, Insurance, & Environment Committee, where it passed unamended and was referred to Appropriations. The bill was amended in the Appropriations Committee, and again on Second Reading. The bill passed Third Reading with no further amendments and was introduced in the Senate, where it was assigned to the Health & Human Services Committee.

Under current law, the Department of Public Health and Environment (DPHE) oversees the administration of medications in prisons, jails, mental health facilities, and other state facilities. This bill amends the definition of “facility” to include all services funded through and regulated by the Department of Health Care Policy and Financing (DHCPF), changing from the Department of Human Services (DHS). Current law requires an unlicensed person who is a qualified manager to successfully complete a test pertaining to the administration of medication every four years. This bill eliminates the 4-year testing cycle and substitutes a requirement to successfully complete a competency evaluation pertaining to the administration of medications.

This bill establishes a medication administration program to be developed and conducted by the DHS, DHCPF, and Department of Corrections. The DHCPF shall: (1) establish the minimum requirements for course content, including competency evaluations, for medication administration, and determine compliance with the requirements for licensed facilities; (2) approve, set the minimum requirements for, and maintain a list of training entities for licensed facilities; and (3) publish and maintain a current list of all persons who have passed a competency evaluation from an approved training entity, as well as setting and collecting a uniform fee for inclusion in the public competency listing.

The bill prohibits an unlicensed person from filling and labeling medication reminder boxes until the person has successfully completed a competency evaluation from an approved training entity or has been approved by an authorized agency.

Lastly, the bill appropriates $30,298 to the DPHE, for use by the heath facilities and emergency medical services division, to implement this bill.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Government Lacks Authority to Garnish Retirement Accounts When Restitution Paid According to Schedule

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez on Wednesday, December 16, 2015.

Toby Martinez was convicted of mail fraud and conspiracy and was ordered to pay roughly $2.7 million in restitution. The district court ordered that he was to pay the restitution through monthly payments of a percentage of his net disposable income. Upon leaving prison, Martinez was unable to obtain steady employment, and as a result owed relatively little through his court-ordered payment schedule. The government served writs of garnishment for two of Martinez’s retirement accounts, which were worth roughly $470,000 together. Martinez moved to quash the writs of garnishment in district court, but the court denied his motion. Martinez appealed, asking the court to consider whether the government can garnish assets beyond the amount currently due under the court-ordered payment plan. The Tenth Circuit determined it could not.

The Tenth Circuit began by analyzing 18 U.S.C. §§ 3613 and 3664, which allow the government to enforce orders of restitution as if they were liens or judgments in favor of the United States. The Tenth Circuit rejected the government’s argument that it could garnish the entire restitution amount, noting the argument incorrectly assumed the entire restitution amount was currently owed. The Tenth Circuit found that by statute, the district court—not the government—had the ability to determine how a defendant is to pay restitution. It is the government’s job to enforce the district court’s order. The Tenth Circuit analyzed whether Martinez owed the full restitution amount immediately or whether he owed only the installment payments until the full amount was paid. Analyzing the district court’s restitution order, the Circuit found that the district court ordered that Martinez owed only the installment payments. The Tenth Circuit noted that the full amount of restitution is owed only immediately only if the restitution order does not provide for installment payments. The Tenth Circuit also cautioned that the government’s position conflicts with the statutory directive to the district court to impose a payment schedule that reflects the defendant’s financial condition.

The Tenth Circuit reversed and remanded with instructions for the district court to grant Martinez’s motion to quash.

Tenth Circuit: Unpublished Opinions, 4/27/2016