1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:06,880 --> 00:00:09,520 Speaker 1: It's a kind of lawsuit you may not have heard of, 3 00:00:09,920 --> 00:00:14,640 Speaker 1: and one that may seem almost counterintuitive, suing a hospital 4 00:00:14,720 --> 00:00:18,360 Speaker 1: or a doctor for saving your life. But lawsuits over 5 00:00:18,440 --> 00:00:22,720 Speaker 1: wrongfully prolonging life are being recognized in courts today. A 6 00:00:22,760 --> 00:00:25,759 Speaker 1: Montana jury awarded more than four hundred thousand dollars in 7 00:00:25,880 --> 00:00:29,320 Speaker 1: damages to the state of a man who was resuscitated twice, 8 00:00:29,760 --> 00:00:31,920 Speaker 1: despite the fact that he had a d n R 9 00:00:32,159 --> 00:00:35,280 Speaker 1: or do not resuscitate order in his file. Joining me 10 00:00:35,360 --> 00:00:37,839 Speaker 1: is Daddy as Pope, a professor at the Mitchell Hamlin's 11 00:00:37,880 --> 00:00:41,839 Speaker 1: School of Law. So tell us about these wrongful prolongation 12 00:00:41,880 --> 00:00:45,040 Speaker 1: of life lawsuits and when they started to be recognized 13 00:00:45,040 --> 00:00:50,000 Speaker 1: in the courts. Sure, so those sorts of lawsuits started 14 00:00:50,120 --> 00:00:55,320 Speaker 1: decades ago. Right. We first started having advanced directives in 15 00:00:55,400 --> 00:00:59,760 Speaker 1: the nineteen seventies, and then after people started completing advanced 16 00:00:59,840 --> 00:01:02,720 Speaker 1: right because it didn't take too long for cases to 17 00:01:02,760 --> 00:01:07,840 Speaker 1: arise where doctors and hospitals did not honor or follow 18 00:01:08,200 --> 00:01:12,160 Speaker 1: the instructions in those advanced directives. But the cases that 19 00:01:12,240 --> 00:01:16,200 Speaker 1: were brought during the nineteen eighties and nines were almost 20 00:01:16,480 --> 00:01:22,479 Speaker 1: uniformly unsuccessful because the courts were unwilling to recognize that 21 00:01:22,520 --> 00:01:25,959 Speaker 1: there had actually been any harm. Right, the doctors saved 22 00:01:25,959 --> 00:01:28,920 Speaker 1: your life. They were suscitated you when your heart stopped, 23 00:01:29,080 --> 00:01:32,080 Speaker 1: or they intibated you when you couldn't breathe, and therefore 24 00:01:32,280 --> 00:01:34,800 Speaker 1: it was difficult for the courts to grapple with the 25 00:01:34,880 --> 00:01:38,280 Speaker 1: concept that the saving of your life is in fact 26 00:01:38,319 --> 00:01:42,080 Speaker 1: a compensible injury. Right, it's a harm. But more recently, 27 00:01:42,480 --> 00:01:44,839 Speaker 1: and this is really only over the past let's say 28 00:01:44,880 --> 00:01:49,520 Speaker 1: five years, you now have a string of lawsuits that 29 00:01:49,800 --> 00:01:53,920 Speaker 1: have been successful. In the Montana case that was cited 30 00:01:53,920 --> 00:01:56,720 Speaker 1: in the Boston Globe story this week, there's a four 31 00:01:57,400 --> 00:02:01,320 Speaker 1: dollar verdict. There was a million dollar settlement in southern California, 32 00:02:01,400 --> 00:02:05,520 Speaker 1: a million dollar settlement in Georgia, and other cases. And 33 00:02:05,600 --> 00:02:09,000 Speaker 1: so there's really been a turn both at the trial 34 00:02:09,080 --> 00:02:12,400 Speaker 1: levels where verdicts are coming out at the appellate levels, 35 00:02:12,400 --> 00:02:16,119 Speaker 1: where the appellate courts are saying, yes, this is a 36 00:02:16,160 --> 00:02:20,799 Speaker 1: compensible legal injury. For decades, we've been telling people, and 37 00:02:20,880 --> 00:02:23,960 Speaker 1: when I say we, I mean government agencies nonprofits have 38 00:02:24,080 --> 00:02:27,760 Speaker 1: been encouraging people to do advanced care planning right, they'd say, Hey, June, 39 00:02:27,960 --> 00:02:30,680 Speaker 1: hey Thaddeus, do you have an advanced directive? Have you 40 00:02:30,720 --> 00:02:33,120 Speaker 1: talked with your family about your wishes so you can 41 00:02:33,160 --> 00:02:36,280 Speaker 1: make sure that if you lose capacity, you can get 42 00:02:36,280 --> 00:02:39,320 Speaker 1: the treatment that you want and avoid the treatment that 43 00:02:39,480 --> 00:02:42,160 Speaker 1: you don't want. And so since we've been making that 44 00:02:42,280 --> 00:02:48,000 Speaker 1: promise so prominently, so repeatedly, for so long, that now 45 00:02:48,160 --> 00:02:51,560 Speaker 1: when that promise is breached, it does I think, seeing 46 00:02:51,639 --> 00:02:55,800 Speaker 1: to the courts more logical, more palatable, that that sort 47 00:02:55,800 --> 00:02:59,040 Speaker 1: of breach of a promise should be compensable. In the 48 00:02:59,120 --> 00:03:03,080 Speaker 1: Montanic case, Roddy Knoful had a d n R order 49 00:03:03,320 --> 00:03:07,120 Speaker 1: in his file, a band on his wrist indicating he 50 00:03:07,160 --> 00:03:11,240 Speaker 1: didn't want to be resuscitated, and yet the staff resuscitated 51 00:03:11,320 --> 00:03:14,320 Speaker 1: him twice. What does that speak to? Is it just 52 00:03:14,400 --> 00:03:18,880 Speaker 1: the hospital staff ignoring the wishes of the patient. That's 53 00:03:18,880 --> 00:03:21,880 Speaker 1: a great question. So what we see, I think, are 54 00:03:21,880 --> 00:03:24,400 Speaker 1: two different types of cases. In one type of case, 55 00:03:24,680 --> 00:03:28,280 Speaker 1: the clinicians actually make a deliberate and intentional decision. They 56 00:03:28,320 --> 00:03:31,560 Speaker 1: don't agree with the patient's choice, or they don't agree 57 00:03:31,560 --> 00:03:34,640 Speaker 1: with the family's choice, and therefore they don't follow it. 58 00:03:34,880 --> 00:03:38,080 Speaker 1: In the Montana case, it's not clear that that's what happened. 59 00:03:38,120 --> 00:03:41,160 Speaker 1: It appears that it's more a case of negligence, where 60 00:03:41,640 --> 00:03:46,080 Speaker 1: either his wishes weren't recorded very carefully or there was 61 00:03:46,160 --> 00:03:50,000 Speaker 1: negligence in how the staff actually checked or ascertained what 62 00:03:50,160 --> 00:03:53,280 Speaker 1: his wishes were. And since it was in his chart 63 00:03:53,760 --> 00:03:56,480 Speaker 1: and he had the wrist band and they had just 64 00:03:56,560 --> 00:03:59,240 Speaker 1: talked to his wife, they had at least three separate 65 00:03:59,520 --> 00:04:03,320 Speaker 1: sources of information to know that he didn't want to 66 00:04:03,320 --> 00:04:06,840 Speaker 1: be resuscitated, and so therefore to proceed in the face 67 00:04:06,880 --> 00:04:10,160 Speaker 1: of all that contrary information, it seems at least negligent. 68 00:04:10,320 --> 00:04:12,839 Speaker 1: Maybe it's beyond negligent, maybe at the higher level, maybe 69 00:04:12,840 --> 00:04:16,320 Speaker 1: it's reckless disregard. Maybe it was intentional. I don't know, 70 00:04:16,560 --> 00:04:19,120 Speaker 1: but it was at least negligence, and the jury did 71 00:04:19,160 --> 00:04:23,080 Speaker 1: find negligence in that case. In the other cases you mentioned, 72 00:04:23,360 --> 00:04:27,520 Speaker 1: was it also negligence? Were the circumstances similar. So there's 73 00:04:27,520 --> 00:04:29,960 Speaker 1: the case, and this went up to the Georgia Supre Court, 74 00:04:30,279 --> 00:04:34,200 Speaker 1: the Alsea versus doctor's hospital case, and in that case 75 00:04:34,760 --> 00:04:37,000 Speaker 1: it seemed that it was more intentional, so that the 76 00:04:37,279 --> 00:04:40,839 Speaker 1: doctor in that case I knew that the patient had 77 00:04:40,880 --> 00:04:44,120 Speaker 1: an advanced directive that she did not want to be intubated. 78 00:04:44,680 --> 00:04:47,960 Speaker 1: He knew that the agent the healthcare agents appointed under 79 00:04:48,000 --> 00:04:51,720 Speaker 1: the Advanced Directive had also instructed the same, but said, 80 00:04:51,760 --> 00:04:53,960 Speaker 1: you know what, let's go ahead and intibate her anyway. 81 00:04:54,240 --> 00:04:56,760 Speaker 1: So in that case, it appears that it wasn't a 82 00:04:56,880 --> 00:05:00,080 Speaker 1: negligent failure to record the patient's preferences or neg and 83 00:05:00,200 --> 00:05:02,919 Speaker 1: failure to check the record, but it was an intentional 84 00:05:03,000 --> 00:05:07,120 Speaker 1: decision to do something different thinking this was in the record, 85 00:05:07,480 --> 00:05:09,720 Speaker 1: thinking well, we can always undo it, right, if we 86 00:05:09,760 --> 00:05:12,400 Speaker 1: intubate somebody and we put them on mechemical relation, we 87 00:05:12,440 --> 00:05:15,200 Speaker 1: can always undo that later. So we'll just air on 88 00:05:15,240 --> 00:05:17,640 Speaker 1: the side of doing that, and if we're wrong, we 89 00:05:17,680 --> 00:05:20,320 Speaker 1: can undo it. And what the court said in that 90 00:05:20,360 --> 00:05:23,359 Speaker 1: case was, yeah, but you still did something that you 91 00:05:23,400 --> 00:05:26,960 Speaker 1: knew was contrary to the patient's preferences. And so even 92 00:05:27,000 --> 00:05:28,880 Speaker 1: though it was for a short duration of time, as 93 00:05:28,920 --> 00:05:30,680 Speaker 1: it was in Montana, right again, it was only a 94 00:05:30,680 --> 00:05:33,719 Speaker 1: short duration of time, it's still a compensable injury. So 95 00:05:33,880 --> 00:05:36,760 Speaker 1: some of these cases are just mere negligence, failure to 96 00:05:36,839 --> 00:05:39,760 Speaker 1: check the chart, failure to check the risk band, failure 97 00:05:39,839 --> 00:05:42,760 Speaker 1: to communicate from one clinician to another, commission, but some 98 00:05:42,839 --> 00:05:45,520 Speaker 1: of do appear to be intentional. Now it seems as 99 00:05:45,520 --> 00:05:48,640 Speaker 1: if in the cases we've been talking about, patients have 100 00:05:48,720 --> 00:05:51,039 Speaker 1: done what they're supposed to do. They filled out the 101 00:05:51,080 --> 00:05:54,279 Speaker 1: advanced directive. So what can be done to ensure that 102 00:05:54,400 --> 00:05:58,400 Speaker 1: hospitals follow the wishes of the patients. It's worth noting 103 00:05:58,640 --> 00:06:02,800 Speaker 1: only around thirty of us actually have done advanced care 104 00:06:02,800 --> 00:06:05,960 Speaker 1: planning and have completed advanced directives. That number is actually 105 00:06:05,960 --> 00:06:09,120 Speaker 1: going way up because of COVID nineteen, but still most 106 00:06:09,160 --> 00:06:11,400 Speaker 1: of us haven't done that. But for those who have 107 00:06:11,600 --> 00:06:13,880 Speaker 1: done advanced directors, how do we make sure that they 108 00:06:13,920 --> 00:06:17,400 Speaker 1: actually get followed? I think the first thing is always 109 00:06:17,520 --> 00:06:20,400 Speaker 1: a point an agent. Advanced directives in almost every state 110 00:06:20,560 --> 00:06:23,240 Speaker 1: have two parts. There's the instructional part, where you can 111 00:06:23,279 --> 00:06:25,880 Speaker 1: tell us what treatments you want and what treatments you 112 00:06:25,920 --> 00:06:29,480 Speaker 1: don't want. But then there's also the appointment of agent 113 00:06:29,520 --> 00:06:32,160 Speaker 1: parts to be called a durable power of attorney for healthcare. 114 00:06:32,560 --> 00:06:35,919 Speaker 1: That's probably the more important part, because then you have 115 00:06:36,040 --> 00:06:38,640 Speaker 1: an actual person who can show up and be your 116 00:06:38,720 --> 00:06:42,320 Speaker 1: advocate and make sure that your wishes get followed. And 117 00:06:42,480 --> 00:06:44,760 Speaker 1: you want to appoint somebody who can actually be a 118 00:06:44,760 --> 00:06:47,920 Speaker 1: good advocate, somebody who you trust, somebody who knows your 119 00:06:47,960 --> 00:06:51,480 Speaker 1: values and preferences, and somebody who will be available at 120 00:06:51,520 --> 00:06:54,080 Speaker 1: the relevant time, and you probably want to back up 121 00:06:54,160 --> 00:06:57,360 Speaker 1: in case your primary agents is not available. So that's 122 00:06:57,400 --> 00:07:00,200 Speaker 1: probably the most important things. And then the second thing 123 00:07:00,200 --> 00:07:03,440 Speaker 1: I think is that these cases may already be accomplishing. 124 00:07:03,480 --> 00:07:07,320 Speaker 1: This is there may be more training in healthcare systems 125 00:07:07,360 --> 00:07:10,760 Speaker 1: to make sure that we are carefully documenting and communicating 126 00:07:10,880 --> 00:07:14,480 Speaker 1: patient preferences about their end of life care. What is 127 00:07:14,520 --> 00:07:19,120 Speaker 1: it do not resuscitate law? So do not this is 128 00:07:19,160 --> 00:07:24,280 Speaker 1: another unfortunate problem. Do not resuscitate or d n R 129 00:07:24,440 --> 00:07:29,400 Speaker 1: order um really only pertains to the situation where the 130 00:07:29,440 --> 00:07:33,720 Speaker 1: patient's heart, uh they stop breeding or their heart or 131 00:07:33,720 --> 00:07:36,680 Speaker 1: they are they are they they don't have a pulse, right, 132 00:07:36,720 --> 00:07:38,880 Speaker 1: So it just means that you're gonna it means that 133 00:07:38,920 --> 00:07:41,840 Speaker 1: you're not going to do CPR to try to restore 134 00:07:41,880 --> 00:07:48,080 Speaker 1: the patients a circulation or breathing. So that's it, right, 135 00:07:48,160 --> 00:07:50,040 Speaker 1: That d n R order means we're not going to 136 00:07:50,160 --> 00:07:54,160 Speaker 1: do CPR. So it's it's it's a it's in order 137 00:07:54,200 --> 00:07:58,160 Speaker 1: to not do one specific type of life sustained treatment 138 00:07:59,720 --> 00:08:02,880 Speaker 1: on Fortunately, and there's a lot of studies on this, 139 00:08:04,000 --> 00:08:08,680 Speaker 1: those those orders are overinterpreted, and so we've done many 140 00:08:08,720 --> 00:08:14,200 Speaker 1: surveys of physicians and also nurses m you know, giving 141 00:08:14,200 --> 00:08:17,440 Speaker 1: them hypothetical scenarios and asking them what they should do. 142 00:08:17,960 --> 00:08:23,080 Speaker 1: And unfortunately, many times a clinician seeing that the patient 143 00:08:23,120 --> 00:08:26,960 Speaker 1: has a d n R order and remember it only 144 00:08:26,960 --> 00:08:29,080 Speaker 1: means that you're not supposed to be CPR, but that 145 00:08:29,120 --> 00:08:34,360 Speaker 1: patient would still receive all other sorts of licenstating treatment UM, 146 00:08:34,559 --> 00:08:36,440 Speaker 1: but they would interpret it to mean that the patient 147 00:08:36,520 --> 00:08:38,679 Speaker 1: is comfort measures own right, they're not going to get 148 00:08:38,720 --> 00:08:43,840 Speaker 1: any curative directed treatment or any other life treatment. So 149 00:08:44,080 --> 00:08:47,360 Speaker 1: they they overinterpret the meaning of a d n R 150 00:08:47,520 --> 00:08:50,360 Speaker 1: order and so that that is definitely a patient safety 151 00:08:51,280 --> 00:08:55,439 Speaker 1: risk that also needs to be work done. What is 152 00:08:55,440 --> 00:08:59,079 Speaker 1: the exact law that we're talking about, So there's a 153 00:08:59,080 --> 00:09:02,600 Speaker 1: lot of different laws. There's most states now have a 154 00:09:02,679 --> 00:09:06,080 Speaker 1: pulse law. So in New York it's called a most 155 00:09:06,280 --> 00:09:11,760 Speaker 1: mL LST Medical Orders for Life Sustaining Treatment UM. This 156 00:09:11,760 --> 00:09:14,200 Speaker 1: this and so there's a separate statue in New York 157 00:09:14,240 --> 00:09:16,280 Speaker 1: for this, in a separate statute in many states or 158 00:09:16,320 --> 00:09:20,920 Speaker 1: most states for this UM. And the idea is what 159 00:09:21,320 --> 00:09:23,920 Speaker 1: it is. It is an advanced directive, which is the 160 00:09:23,960 --> 00:09:27,520 Speaker 1: sort of document that was an issue in the Georgia case. 161 00:09:27,559 --> 00:09:32,880 Speaker 1: In some of these other cases, it is just um, uh, 162 00:09:32,960 --> 00:09:35,720 Speaker 1: your wishes, right, it's just a recording of your wishes. 163 00:09:36,760 --> 00:09:42,840 Speaker 1: And the thought maybe twenty years ago was that if 164 00:09:42,920 --> 00:09:49,040 Speaker 1: we we can um better assure that your wishers are followed, 165 00:09:49,559 --> 00:09:53,840 Speaker 1: if we convert the advanced directive into a medical order 166 00:09:53,920 --> 00:09:57,120 Speaker 1: SECT and the idea and that's what that's what a 167 00:09:57,240 --> 00:10:02,400 Speaker 1: pulse is Physician orders for lifustating treatment UM. And if 168 00:10:02,440 --> 00:10:05,440 Speaker 1: it's a medical order set, it's a it's a uniform form, 169 00:10:05,480 --> 00:10:10,280 Speaker 1: it's a simpler form, it's a one page form usually UM. 170 00:10:10,360 --> 00:10:13,560 Speaker 1: And it's since it's since it already is a set 171 00:10:13,559 --> 00:10:17,560 Speaker 1: of medical orders, it's immediately actionable, right, So we don't 172 00:10:17,559 --> 00:10:19,880 Speaker 1: need to look at your advanced directive, figure out what 173 00:10:19,920 --> 00:10:23,760 Speaker 1: you want, and then right orders to implement your wishes. 174 00:10:24,320 --> 00:10:26,760 Speaker 1: The POLST already is a set of medical orders, so 175 00:10:26,800 --> 00:10:32,000 Speaker 1: it's immediately actionable UM. And so that's and and in fact, 176 00:10:32,000 --> 00:10:36,439 Speaker 1: the evidence does show that if you're seriously ill individual, 177 00:10:37,480 --> 00:10:40,920 Speaker 1: it would be a really good idea to not only 178 00:10:40,960 --> 00:10:44,320 Speaker 1: have an advanced directive, but to also have a pulse 179 00:10:45,200 --> 00:10:48,720 Speaker 1: because that better assures that you that your wishes get followed, 180 00:10:48,920 --> 00:10:52,240 Speaker 1: more than just having an advanced directive by itself. So 181 00:10:52,280 --> 00:10:54,320 Speaker 1: when you asked me a second ago, what are the 182 00:10:54,400 --> 00:10:56,520 Speaker 1: things that patients can do to better assure that their 183 00:10:56,600 --> 00:11:00,439 Speaker 1: end of life wishes get respected? For at least the 184 00:11:00,559 --> 00:11:04,760 Speaker 1: seriously ill patient or seriously ill individuals, they should have 185 00:11:04,920 --> 00:11:11,120 Speaker 1: not only an advancedructive but also appolsed. So this discussion 186 00:11:11,880 --> 00:11:15,280 Speaker 1: seems to highlight the fact that this is a very 187 00:11:15,360 --> 00:11:19,000 Speaker 1: confusing area of the law that I think most people 188 00:11:19,760 --> 00:11:24,880 Speaker 1: don't know about. So should doctors be paid for having 189 00:11:24,920 --> 00:11:29,160 Speaker 1: sessions with patients to explain this to them? Yes, a few. 190 00:11:29,240 --> 00:11:35,240 Speaker 1: So most patients, of course that are UM older, their 191 00:11:35,240 --> 00:11:39,760 Speaker 1: primary source of insurance is Medicare, And a few years 192 00:11:39,760 --> 00:11:46,160 Speaker 1: ago UM Medicare did change the physician schedule to allow 193 00:11:46,920 --> 00:11:53,800 Speaker 1: payment for advanced care planning discussions ah and and the 194 00:11:53,920 --> 00:11:59,880 Speaker 1: thought was that would be one way to incentivize doctor 195 00:12:00,080 --> 00:12:06,000 Speaker 1: is to sit down and talk with patients UM about 196 00:12:06,040 --> 00:12:10,440 Speaker 1: their wishes and ideally to in fact completely advanced directive 197 00:12:10,840 --> 00:12:15,359 Speaker 1: and also for the relevant patients to complete a pulse UM. 198 00:12:15,440 --> 00:12:19,200 Speaker 1: So we've had that those two new codes, those two 199 00:12:19,240 --> 00:12:23,080 Speaker 1: new CPT codes to pay for these sorts of discussions 200 00:12:23,080 --> 00:12:29,839 Speaker 1: now for five years UM. Unfortunately, the evidence shows that 201 00:12:29,920 --> 00:12:35,360 Speaker 1: it hasn't um produced the sort of the incentive hasn't 202 00:12:35,360 --> 00:12:41,320 Speaker 1: been strong enough to incentivize the discussions I think in 203 00:12:41,360 --> 00:12:44,080 Speaker 1: the way that was hoped for, right, So we continue 204 00:12:44,120 --> 00:12:51,360 Speaker 1: to see legislation UH designed to provide an even stronger incentive, 205 00:12:51,520 --> 00:12:53,840 Speaker 1: and the bills have done all sorts of things. Sometimes 206 00:12:54,120 --> 00:12:56,440 Speaker 1: the idea where we pay not only the doctors, will 207 00:12:56,480 --> 00:13:00,760 Speaker 1: pay the beneficiary. Right, so if you completely the advanced directive, 208 00:13:00,800 --> 00:13:04,960 Speaker 1: will pay you seventy five m. And the reason to 209 00:13:05,000 --> 00:13:08,520 Speaker 1: do that, by the way, is because we know that overwhelmingly, 210 00:13:09,559 --> 00:13:11,440 Speaker 1: if you ask people what they want at the end 211 00:13:11,440 --> 00:13:17,720 Speaker 1: of life, they would prefer to forego aggressive curative directed 212 00:13:17,800 --> 00:13:20,200 Speaker 1: measures at the end of life and would prefer us 213 00:13:20,280 --> 00:13:25,480 Speaker 1: to die at home on hospice. Unfortunately, that's not what 214 00:13:25,600 --> 00:13:30,960 Speaker 1: happens UM. And so therefore, if we actually provided the 215 00:13:31,000 --> 00:13:37,760 Speaker 1: care that Americans want, we probably would save a lot 216 00:13:37,800 --> 00:13:40,240 Speaker 1: of money. The Medicare would save a lot of money. 217 00:13:40,600 --> 00:13:43,560 Speaker 1: And therefore, by if that incentive work, and I don't 218 00:13:43,600 --> 00:13:45,760 Speaker 1: know if it would, but if we pay people seventy 219 00:13:45,760 --> 00:13:49,640 Speaker 1: five to complete in advance directive, and they actually completed 220 00:13:49,679 --> 00:13:52,400 Speaker 1: an advanced directive and they can complete it any way 221 00:13:52,440 --> 00:13:54,520 Speaker 1: that they want. Right. All all ask you people to 222 00:13:54,520 --> 00:13:56,719 Speaker 1: do is tell us what you want, tell us what 223 00:13:56,760 --> 00:13:59,920 Speaker 1: you don't want. We're not it's your choice. But more 224 00:14:00,240 --> 00:14:03,640 Speaker 1: people in fact would choose, for example, if they were 225 00:14:03,679 --> 00:14:07,240 Speaker 1: permanently unconscious, to say, I wouldn't want to live like that, right, 226 00:14:07,280 --> 00:14:09,280 Speaker 1: you don't need to continue to give me mechanical a 227 00:14:09,400 --> 00:14:14,080 Speaker 1: relation and artificial hydration if I'm permanently unconscious. So most 228 00:14:14,080 --> 00:14:18,719 Speaker 1: people would decline h a lot of care at the 229 00:14:18,800 --> 00:14:21,240 Speaker 1: end of life that they would otherwise be getting if 230 00:14:21,240 --> 00:14:24,760 Speaker 1: they're getting complete and it reinstructive. How important do you 231 00:14:24,800 --> 00:14:28,320 Speaker 1: think it is that these lawsuits are being recognized. Well, 232 00:14:28,360 --> 00:14:31,120 Speaker 1: I think it's very important that these cases. First of all, 233 00:14:31,120 --> 00:14:34,440 Speaker 1: that these cases were brought. Secondly, that they were resolved 234 00:14:34,440 --> 00:14:37,760 Speaker 1: in the way that they were resolved, and third that 235 00:14:38,160 --> 00:14:42,160 Speaker 1: the Boston Globe and Kaiser Health News and you are 236 00:14:42,360 --> 00:14:48,120 Speaker 1: talking about them because um, I think you the message 237 00:14:48,160 --> 00:14:50,600 Speaker 1: needs to be sent that it's worth your time to 238 00:14:50,720 --> 00:14:54,760 Speaker 1: completely reinstructive. I think because if you think, like oh, 239 00:14:54,800 --> 00:14:57,880 Speaker 1: I hear that that hospitals and doctors don't always follow them. 240 00:14:57,920 --> 00:15:01,600 Speaker 1: Sometimes they ignore them, sometimes they lose them. Then then 241 00:15:01,640 --> 00:15:04,880 Speaker 1: of course the natural responses why bother? Right, why bother? 242 00:15:04,960 --> 00:15:07,800 Speaker 1: The completely the instructive because it's probably not going to 243 00:15:07,840 --> 00:15:10,640 Speaker 1: get followed anyway, right, so that it gives people a 244 00:15:10,640 --> 00:15:13,640 Speaker 1: sense of utility. So I think it's important to send 245 00:15:13,640 --> 00:15:17,520 Speaker 1: the message, No, they have a legal duty to follow them, 246 00:15:18,240 --> 00:15:23,000 Speaker 1: um and if they don't, they will be punished. Um. 247 00:15:23,040 --> 00:15:27,120 Speaker 1: And so it is worth your time to complete an advancedructive. 248 00:15:27,680 --> 00:15:30,520 Speaker 1: Thanks for being on the Bloomberg Law Show. That's Daddy 249 00:15:30,640 --> 00:15:33,280 Speaker 1: is Pope, a professor the Mitchell Hamlin's School of Law. 250 00:15:34,760 --> 00:15:38,200 Speaker 1: The thirteenth Amendment is often described as the amendment that 251 00:15:38,280 --> 00:15:41,640 Speaker 1: abolished slavery in this country, but there is a loophole 252 00:15:41,680 --> 00:15:45,200 Speaker 1: that permits slavery as punishment for a crime. It's this 253 00:15:45,360 --> 00:15:48,520 Speaker 1: loophole that more than a dozen human rights and social 254 00:15:48,560 --> 00:15:52,120 Speaker 1: justice organizations want to get rid of, and last month, 255 00:15:52,280 --> 00:15:55,400 Speaker 1: Democratic members of the House and Senate introduced a joint 256 00:15:55,400 --> 00:15:59,800 Speaker 1: resolution aimed at striking that language from the Constitution to 257 00:16:00,000 --> 00:16:02,960 Speaker 1: any means. Michelle Goodwin, a constitutional law professor at the 258 00:16:03,040 --> 00:16:06,920 Speaker 1: University of California, Irvine. For those who don't know, tell 259 00:16:07,000 --> 00:16:11,280 Speaker 1: us about the thirteenth Amendment, all parts of the thirteenth Amendment. 260 00:16:12,120 --> 00:16:17,920 Speaker 1: So the thirteenth Amendment was originally proposed in order to 261 00:16:19,080 --> 00:16:23,960 Speaker 1: end slavery entirely in the United States. This is after 262 00:16:24,040 --> 00:16:29,480 Speaker 1: the Civil War has ended, the Emancipation Proclamation, which was 263 00:16:29,520 --> 00:16:32,240 Speaker 1: a wartime measure, was coming to an end. Many people 264 00:16:32,320 --> 00:16:37,320 Speaker 1: presumed that the Emancipation Proclamation was what ended slavery. It wasn't. 265 00:16:37,440 --> 00:16:40,520 Speaker 1: What Lincoln said is that if you join the Union, 266 00:16:40,680 --> 00:16:43,120 Speaker 1: you may keep your slaves, but if you decide that 267 00:16:43,160 --> 00:16:46,120 Speaker 1: you will not join the Union, then your slaves will 268 00:16:46,160 --> 00:16:51,480 Speaker 1: be freed as of ex date and time. And after 269 00:16:51,520 --> 00:16:54,920 Speaker 1: the Civil War was over, um, there were states like 270 00:16:55,080 --> 00:16:57,920 Speaker 1: Kentucky which had agreed to join the Union um, but 271 00:16:58,000 --> 00:17:00,720 Speaker 1: also got to keep their slaves. And so the thirteenth 272 00:17:00,720 --> 00:17:03,600 Speaker 1: Amendment was to do away with that altogether. But there 273 00:17:03,640 --> 00:17:09,880 Speaker 1: were Southerners, Southern senators, who argued for something different. They 274 00:17:09,920 --> 00:17:12,680 Speaker 1: wanted an amendment, and in fact it was not only 275 00:17:12,760 --> 00:17:16,119 Speaker 1: the ending of slavery. There were some senators that wanted 276 00:17:16,160 --> 00:17:19,640 Speaker 1: something even more aggressive that said that all people are 277 00:17:19,680 --> 00:17:23,720 Speaker 1: created equal, that spoke to human rights basically based on 278 00:17:23,960 --> 00:17:28,879 Speaker 1: what was coming out of France. But the pushback was 279 00:17:28,960 --> 00:17:34,680 Speaker 1: twofold in Congress amongst senators. One there were senators that said, well, 280 00:17:34,760 --> 00:17:37,560 Speaker 1: equality for all would means that women get to be 281 00:17:37,680 --> 00:17:40,119 Speaker 1: equal and our wives get to presume that they're equal 282 00:17:40,160 --> 00:17:43,680 Speaker 1: to their husbands. That can't fly. That could have just 283 00:17:43,800 --> 00:17:46,840 Speaker 1: simply been a ruise, you know, just because they didn't 284 00:17:46,960 --> 00:17:50,159 Speaker 1: want blacks to be equal to white that they taught 285 00:17:50,200 --> 00:17:53,720 Speaker 1: them this would make women equal, but even more sinister 286 00:17:54,400 --> 00:17:57,760 Speaker 1: and more strategic. And what we live with today is 287 00:17:57,800 --> 00:18:03,080 Speaker 1: the punishment clause. There were Southern senators who were slaveholding 288 00:18:03,280 --> 00:18:06,320 Speaker 1: and came from slaveholding families. They said, well, what we 289 00:18:06,359 --> 00:18:10,040 Speaker 1: should actually have is a punishment clause in this which 290 00:18:10,040 --> 00:18:13,679 Speaker 1: says that you're free from slavery except if you have 291 00:18:13,840 --> 00:18:17,680 Speaker 1: been convicted of a crime. It's a very short statement. 292 00:18:17,800 --> 00:18:20,800 Speaker 1: It's nothing lengthy, it's nothing that's filled with paragraphs. But 293 00:18:20,840 --> 00:18:24,080 Speaker 1: it's just that that you remain in slave if you've 294 00:18:24,200 --> 00:18:27,280 Speaker 1: been convicted of a crime. And what's important is that 295 00:18:28,160 --> 00:18:33,640 Speaker 1: every constitutional amendment must be ratified, and that means then 296 00:18:33,840 --> 00:18:37,800 Speaker 1: that these senators went back to their states and then 297 00:18:37,840 --> 00:18:41,359 Speaker 1: the amendment goes state to state for ratification. Well, what 298 00:18:41,440 --> 00:18:46,560 Speaker 1: the Southerners did was to fill up before the amendment 299 00:18:46,760 --> 00:18:49,160 Speaker 1: came to their states and was signed off by their 300 00:18:49,200 --> 00:18:53,600 Speaker 1: local legislatures. They filled their local state books with all 301 00:18:53,720 --> 00:18:57,520 Speaker 1: sorts of crime, so loitering crimes. In some states, it 302 00:18:57,600 --> 00:18:59,880 Speaker 1: was a crime if you were black and you sold rights. 303 00:19:00,040 --> 00:19:03,000 Speaker 1: Crime if you're black and you sold weak, crime, if 304 00:19:03,000 --> 00:19:05,040 Speaker 1: you were black and you stayed in town more than 305 00:19:05,280 --> 00:19:07,359 Speaker 1: x number of days. Crime if you were black and 306 00:19:07,440 --> 00:19:12,240 Speaker 1: a random white person could say your house looks unkimpt um, 307 00:19:12,520 --> 00:19:16,760 Speaker 1: all manner of things that were just random and ridiculous 308 00:19:16,800 --> 00:19:20,160 Speaker 1: that clearly because they did not apply to white were 309 00:19:20,240 --> 00:19:24,399 Speaker 1: intended to bring black people free black people back into 310 00:19:24,480 --> 00:19:28,720 Speaker 1: a condition of slavery. So what happened as a result 311 00:19:28,800 --> 00:19:33,000 Speaker 1: of the ratification of the thirteenth Amendment? So what's the 312 00:19:33,119 --> 00:19:38,919 Speaker 1: ratification then of the thirteenth Amendment. This meant that what 313 00:19:39,119 --> 00:19:42,200 Speaker 1: the punishment clause that in the South they could get 314 00:19:42,240 --> 00:19:45,920 Speaker 1: to business by creating all sorts of crimes and punishing 315 00:19:45,960 --> 00:19:48,280 Speaker 1: black people for these crimes, and that would bring black 316 00:19:48,320 --> 00:19:53,040 Speaker 1: people back into slavery. And the result was that plantations 317 00:19:53,200 --> 00:19:57,600 Speaker 1: actually grew in size after they were larger in some 318 00:19:57,720 --> 00:20:02,320 Speaker 1: states like Louisiana, after slavery then before slavery, because now 319 00:20:02,400 --> 00:20:07,040 Speaker 1: there was a whole different enterprise, and an enterprise that 320 00:20:07,240 --> 00:20:11,119 Speaker 1: was corrupt in many ways. Um in Alabama, it was 321 00:20:11,200 --> 00:20:16,719 Speaker 1: so bad that there were state legislators that investigated wardens 322 00:20:16,800 --> 00:20:20,320 Speaker 1: and police chiefs because they were skimming money off of 323 00:20:20,359 --> 00:20:24,880 Speaker 1: the top. There were in these states you could convict lease, 324 00:20:25,119 --> 00:20:27,879 Speaker 1: which meant that if someone's convicted of a client to 325 00:20:28,080 --> 00:20:30,560 Speaker 1: black kids standing on a corner, much of like the 326 00:20:30,640 --> 00:20:32,760 Speaker 1: kinds of things that we see today, but then you 327 00:20:32,800 --> 00:20:36,760 Speaker 1: know that's loitering, and that loitering could lead to twenty 328 00:20:36,880 --> 00:20:40,960 Speaker 1: or thirty years of incarceration. Clearly, this is about slavery, 329 00:20:41,480 --> 00:20:46,760 Speaker 1: and the state could argue in these instances that well, 330 00:20:47,280 --> 00:20:49,920 Speaker 1: as long as they can pay the fine, they don't 331 00:20:49,960 --> 00:20:52,560 Speaker 1: have to worry about convictions. But it's important to know 332 00:20:52,640 --> 00:20:55,879 Speaker 1: that at those times, these fines were fifty dollars seventy 333 00:20:55,880 --> 00:20:59,520 Speaker 1: five hundred dollars hundred fifty dollars. What white person in 334 00:20:59,640 --> 00:21:03,920 Speaker 1: eight sixty five could afford to pay a fine like that, 335 00:21:04,080 --> 00:21:07,399 Speaker 1: let alone some black person who has just been released 336 00:21:07,440 --> 00:21:10,120 Speaker 1: from the conditions of slavery, who could afford a hunt 337 00:21:10,160 --> 00:21:13,199 Speaker 1: to pay a hundred dollar fine Because he or she 338 00:21:13,320 --> 00:21:16,439 Speaker 1: stood on a corner with two other people talking. Some 339 00:21:16,520 --> 00:21:20,080 Speaker 1: people might say, well, they're not using that provision anymore, 340 00:21:20,359 --> 00:21:24,200 Speaker 1: are they, And they are so. The punishment clause has 341 00:21:24,400 --> 00:21:31,120 Speaker 1: never been repealed, and the punishment clause led to pernicious action. UM. 342 00:21:31,240 --> 00:21:35,760 Speaker 1: The restoration of slavery chain gangs, all of these guys 343 00:21:35,880 --> 00:21:38,800 Speaker 1: of things that look terrible and old people, you know, 344 00:21:38,920 --> 00:21:43,280 Speaker 1: and white black stripes on the side of roads hitting rocks. 345 00:21:43,400 --> 00:21:46,880 Speaker 1: It still continues and persists today. It's never been repealed 346 00:21:47,240 --> 00:21:50,280 Speaker 1: from the United States Constitution. And even more so than 347 00:21:50,400 --> 00:21:53,439 Speaker 1: states adopted it. She had states that had decided that 348 00:21:53,480 --> 00:21:55,400 Speaker 1: they would not be slave states or that they would 349 00:21:55,400 --> 00:21:57,760 Speaker 1: get rid of slavery in their states. Now the federal 350 00:21:57,800 --> 00:22:01,000 Speaker 1: government has placed it in the Constitution, and so slavery 351 00:22:01,040 --> 00:22:04,440 Speaker 1: can thrive in their particular states. In California, the people 352 00:22:04,480 --> 00:22:09,280 Speaker 1: who put out wildfires, people who are incarcerated, incarcerated men, 353 00:22:09,359 --> 00:22:12,520 Speaker 1: incarcerated women, people have died in those conditions. The people 354 00:22:12,520 --> 00:22:16,199 Speaker 1: who have been making masks in prisons in California have 355 00:22:16,359 --> 00:22:18,600 Speaker 1: been women in prison. Do they get the masks? You know? 356 00:22:19,200 --> 00:22:21,160 Speaker 1: In New York, the people who have been making hand 357 00:22:21,200 --> 00:22:26,520 Speaker 1: sanitizer behind bars, UM also these people who have been 358 00:22:26,560 --> 00:22:29,840 Speaker 1: convicted and this is their punishment for a crime. And 359 00:22:29,880 --> 00:22:31,959 Speaker 1: what it is is it's an added layer. Because if 360 00:22:32,000 --> 00:22:34,359 Speaker 1: you've been convicted of a crime, let say, now you 361 00:22:34,480 --> 00:22:39,639 Speaker 1: stole somebody's purse, your punishment is actually that. Well, now 362 00:22:39,760 --> 00:22:44,440 Speaker 1: you are either on probation or or parole, or you've 363 00:22:44,440 --> 00:22:48,000 Speaker 1: been sentenced uh to jail, and you've been taken away 364 00:22:48,000 --> 00:22:50,760 Speaker 1: from your family. But this is where the state adds 365 00:22:50,840 --> 00:22:53,800 Speaker 1: onto it. Not only have you been taken away from society, 366 00:22:53,880 --> 00:22:56,119 Speaker 1: not only do you have this mark on yourself that 367 00:22:56,200 --> 00:22:59,280 Speaker 1: you were convicted for having stolen that purse, but now 368 00:22:59,320 --> 00:23:02,320 Speaker 1: in addition to that, will make you do this labor 369 00:23:02,480 --> 00:23:06,160 Speaker 1: for free. Um not pay you anything, but charge you 370 00:23:06,680 --> 00:23:09,399 Speaker 1: as if you were at a luxury hotel. And many 371 00:23:09,440 --> 00:23:13,280 Speaker 1: people don't understand or see that prison is not free. 372 00:23:13,320 --> 00:23:17,000 Speaker 1: It's not as if people are just getting um free 373 00:23:17,080 --> 00:23:19,600 Speaker 1: meals and and free all of these things. In many 374 00:23:19,640 --> 00:23:23,359 Speaker 1: states they make you pay for exactly what you have 375 00:23:23,480 --> 00:23:26,080 Speaker 1: been confined to. Your toothpaste is and free. You have 376 00:23:26,160 --> 00:23:28,960 Speaker 1: to pay in commissary. Your telephone calls to your family 377 00:23:29,280 --> 00:23:30,920 Speaker 1: not only are they not free, but you're going to 378 00:23:31,000 --> 00:23:34,360 Speaker 1: pay more than anybody else in America for that phone call. 379 00:23:34,720 --> 00:23:36,960 Speaker 1: And yet at the same time, the state will put 380 00:23:37,000 --> 00:23:40,080 Speaker 1: you to work. In some instances you might get paid, 381 00:23:40,119 --> 00:23:42,560 Speaker 1: but get this, you may be paid only one cent 382 00:23:42,920 --> 00:23:46,040 Speaker 1: per hour, maybe it will be ten cents per hour. 383 00:23:46,400 --> 00:23:48,919 Speaker 1: And what you're doing are things that are intended to 384 00:23:48,960 --> 00:23:52,080 Speaker 1: be a punishment. Now, let's make clear. In some states 385 00:23:52,560 --> 00:23:56,080 Speaker 1: it may be that people want to opt in UM 386 00:23:56,160 --> 00:23:58,800 Speaker 1: so that they can get some training and skills. But 387 00:23:59,000 --> 00:24:02,199 Speaker 1: here's another per initious aspect events and and that is 388 00:24:02,200 --> 00:24:06,200 Speaker 1: the following, which is that when these individuals get out, 389 00:24:06,280 --> 00:24:10,200 Speaker 1: they have the mark of being incarcerated on them. We 390 00:24:10,400 --> 00:24:14,080 Speaker 1: punish people by having them mark the box whether they've 391 00:24:14,119 --> 00:24:17,720 Speaker 1: been incarcerated. And when you mark the box, for many industries, 392 00:24:17,800 --> 00:24:21,240 Speaker 1: that means that you cannot be gainfully employed afterwards. It's 393 00:24:21,280 --> 00:24:24,400 Speaker 1: a dark mark of X. Do not hire this person. So, 394 00:24:24,560 --> 00:24:28,119 Speaker 1: even under the understanding that this helps you when you 395 00:24:28,200 --> 00:24:31,119 Speaker 1: get out, it turns out the work hasn't been done 396 00:24:31,400 --> 00:24:34,959 Speaker 1: privately or publicly to help people in that regard. And 397 00:24:35,040 --> 00:24:39,960 Speaker 1: let's be clear, we're talking about fortune hundred companies. They're 398 00:24:40,040 --> 00:24:43,720 Speaker 1: using prison labor, but not making a pathway for these 399 00:24:43,760 --> 00:24:48,160 Speaker 1: individuals after incarcerations. To work in their companies. So tell 400 00:24:48,240 --> 00:24:53,800 Speaker 1: us about UM. Senator Murkley's resolution. What he's proposing. So 401 00:24:53,880 --> 00:24:59,440 Speaker 1: tell us about Senator Murkley's resolution. So what he's proposing 402 00:24:59,680 --> 00:25:04,520 Speaker 1: is to do away entirely with this punishment clause. Let's 403 00:25:04,600 --> 00:25:08,240 Speaker 1: remove this out of the vestiges of our history and 404 00:25:08,280 --> 00:25:12,639 Speaker 1: the United States. We know it comes from UM spoiled 405 00:25:12,720 --> 00:25:17,160 Speaker 1: fruit in our country. It comes from a place UM 406 00:25:17,200 --> 00:25:21,200 Speaker 1: that was a lott in place in our country and 407 00:25:21,280 --> 00:25:26,320 Speaker 1: continues to produce than spoiled fruit. And so he says, well, 408 00:25:26,400 --> 00:25:29,560 Speaker 1: let's just get rid of the punishment clause and from 409 00:25:29,600 --> 00:25:33,560 Speaker 1: there we can build a new UM. And that's a 410 00:25:33,640 --> 00:25:37,359 Speaker 1: bright and fresh idea. There is a perfect opportunity in 411 00:25:37,440 --> 00:25:40,719 Speaker 1: the wake of this to think in aggressive ways about 412 00:25:40,840 --> 00:25:45,640 Speaker 1: mass incarceration and prison reform. And this is a terrific 413 00:25:45,720 --> 00:25:48,720 Speaker 1: opportunity for us to do this, not only because the 414 00:25:48,840 --> 00:25:52,680 Speaker 1: United States and carcerate more people than any other country 415 00:25:52,760 --> 00:25:56,000 Speaker 1: in the world. We have five percent of the world's 416 00:25:56,040 --> 00:26:01,040 Speaker 1: population and yet of the world's incarcerated time relations and 417 00:26:01,119 --> 00:26:04,840 Speaker 1: it's not just men, it's women too. The United States 418 00:26:04,880 --> 00:26:08,639 Speaker 1: incarceer rates more women than any other country in the world, 419 00:26:09,040 --> 00:26:13,639 Speaker 1: and the majority of these women happen to be mothers, 420 00:26:13,680 --> 00:26:17,879 Speaker 1: and the studies that have been produced by sociologists and 421 00:26:18,000 --> 00:26:22,560 Speaker 1: others are really just stunning children of incarcerated parents. They're 422 00:26:22,640 --> 00:26:26,080 Speaker 1: worse than children who have experienced a parent death or 423 00:26:26,200 --> 00:26:29,720 Speaker 1: diverse divorce. And so these the way in which we 424 00:26:29,800 --> 00:26:33,159 Speaker 1: mask incarcerate. The harms that results from this harm not 425 00:26:33,240 --> 00:26:37,840 Speaker 1: only the individuals who happen to be incarcerated, but also lasting, 426 00:26:38,760 --> 00:26:43,400 Speaker 1: lasting impacts on their children and on their communities. And 427 00:26:43,760 --> 00:26:46,679 Speaker 1: other studies have shown, including by the federal government and 428 00:26:46,880 --> 00:26:50,200 Speaker 1: organizations that are on the left and the right, that 429 00:26:50,440 --> 00:26:54,000 Speaker 1: incarceration sales America. The way in which we mass incarcerate 430 00:26:54,320 --> 00:26:58,560 Speaker 1: simply does not produce the results um that we wanted, 431 00:26:58,640 --> 00:27:02,240 Speaker 1: that we need for our society, and it costs us 432 00:27:02,280 --> 00:27:05,320 Speaker 1: a lot economically, but it also costs us another way. 433 00:27:05,920 --> 00:27:10,000 Speaker 1: Would it require a constitutional amendment? Well, so this is 434 00:27:10,040 --> 00:27:13,760 Speaker 1: a very good question. Ideally there would be a constitutional 435 00:27:13,800 --> 00:27:19,520 Speaker 1: amendment to get slavery out of our constitution. And because 436 00:27:19,640 --> 00:27:25,840 Speaker 1: this is in our constitution, then legislation alone, in my opinion, 437 00:27:25,880 --> 00:27:29,280 Speaker 1: is not sufficient. Um. Legislation could go a long way. 438 00:27:29,680 --> 00:27:32,000 Speaker 1: There are already states that are doing this, that are 439 00:27:32,040 --> 00:27:36,439 Speaker 1: actually adopting those constitutional amendments, because for states that follows 440 00:27:36,840 --> 00:27:41,480 Speaker 1: the federal guidance, one could say in this in terms 441 00:27:41,560 --> 00:27:44,600 Speaker 1: of what Congress did in eighteen sixty five, and then 442 00:27:44,640 --> 00:27:49,360 Speaker 1: states followed um suits, there are states like Colorado that 443 00:27:49,480 --> 00:27:53,960 Speaker 1: through referendum have now removed the punishment clause from their 444 00:27:53,960 --> 00:27:58,200 Speaker 1: state constitution. Very recently U Taught and the brass that 445 00:27:58,320 --> 00:28:00,720 Speaker 1: did the same. And so we can look to the 446 00:28:00,760 --> 00:28:04,399 Speaker 1: models of those three states um and do this as well. 447 00:28:04,480 --> 00:28:09,000 Speaker 1: So it could be done by federal constitutional amendment, or 448 00:28:09,359 --> 00:28:13,560 Speaker 1: it could also be done by states taking this up um. 449 00:28:13,600 --> 00:28:15,920 Speaker 1: In some ways, you can see the state action as 450 00:28:15,960 --> 00:28:19,280 Speaker 1: similar to marriage equality, where the states that Scott busy 451 00:28:19,320 --> 00:28:22,639 Speaker 1: with doing that before the Supreme Court ruled on the matter. 452 00:28:22,960 --> 00:28:27,040 Speaker 1: But either way, this is an urgent issue for our time. 453 00:28:27,400 --> 00:28:30,800 Speaker 1: Let's just suppose that a constitutional amendment was passed and 454 00:28:30,880 --> 00:28:35,000 Speaker 1: that language was taken out. Would it still be effective 455 00:28:35,359 --> 00:28:38,280 Speaker 1: in the twenty states that still have that language in 456 00:28:38,360 --> 00:28:41,520 Speaker 1: their constitutions in other words, but they also have to 457 00:28:41,520 --> 00:28:43,280 Speaker 1: take it out in order for this really to have 458 00:28:43,600 --> 00:28:48,600 Speaker 1: a nationwide effect. That's a great question. So if it 459 00:28:48,800 --> 00:28:56,200 Speaker 1: is taken out of the constitution, because Congress has removed it. 460 00:28:56,640 --> 00:29:01,719 Speaker 1: Congressional laws frump states law. So that is why, in 461 00:29:01,800 --> 00:29:06,120 Speaker 1: fact we have the federalist system as we have, which 462 00:29:06,200 --> 00:29:10,600 Speaker 1: is that that which is ruled upon by Congress and 463 00:29:11,320 --> 00:29:16,360 Speaker 1: that which is made into our United States Constitution serves 464 00:29:16,440 --> 00:29:20,880 Speaker 1: as the platform for the country. And at that point 465 00:29:21,040 --> 00:29:26,520 Speaker 1: any any language that continues in the States Constitution would 466 00:29:26,680 --> 00:29:30,719 Speaker 1: essentially be null and void because of the action taken 467 00:29:30,760 --> 00:29:35,040 Speaker 1: by the federal government and what is in the federal Constitution. 468 00:29:35,520 --> 00:29:39,800 Speaker 1: One might be similarly UM. The very slow actions to 469 00:29:39,920 --> 00:29:45,560 Speaker 1: repeal other either Jim Crow era or slavery era laws 470 00:29:45,920 --> 00:29:50,720 Speaker 1: UM that existed in Southern constitutions or in Southern legislation 471 00:29:51,280 --> 00:29:56,440 Speaker 1: UM all null en void after congressional action or constitutional 472 00:29:56,680 --> 00:30:02,160 Speaker 1: action UM, but nevertheless sometimes slow for removal because of 473 00:30:02,240 --> 00:30:06,320 Speaker 1: symbolic action in the in the Southern States to preserve 474 00:30:06,760 --> 00:30:11,160 Speaker 1: UM do in some ways at least symbolically preserve the 475 00:30:11,240 --> 00:30:14,440 Speaker 1: status of separate but equals. Does it seem to you 476 00:30:14,480 --> 00:30:17,200 Speaker 1: as if this part of the Thirteenth Amendment and the 477 00:30:17,240 --> 00:30:21,720 Speaker 1: effects are something that most people in the country aren't 478 00:30:21,760 --> 00:30:26,760 Speaker 1: aware of. Most people are unaware of this legacy and 479 00:30:26,800 --> 00:30:30,760 Speaker 1: how it has a significant role in how we police 480 00:30:30,760 --> 00:30:35,240 Speaker 1: and understand policing incarceration today. So if we were take 481 00:30:35,400 --> 00:30:38,360 Speaker 1: to take a step back and how this so cleverly 482 00:30:38,680 --> 00:30:43,040 Speaker 1: joined together right in, one must understand that the Southern 483 00:30:43,160 --> 00:30:47,920 Speaker 1: slave holding senators understood what they were doing by saying, 484 00:30:48,040 --> 00:30:52,200 Speaker 1: let's flip this into the freedom clause. So we're going 485 00:30:52,280 --> 00:30:55,160 Speaker 1: we're going to put an amendment together for the Constitution, 486 00:30:55,280 --> 00:30:59,600 Speaker 1: but we're going to include this. This was not by happenstance. Um, 487 00:30:59,680 --> 00:31:04,080 Speaker 1: this not by mistake. This was actually shrewd, very clever, 488 00:31:04,520 --> 00:31:10,600 Speaker 1: intentional action on behalf of Southern legislators. And most Americans 489 00:31:10,680 --> 00:31:13,920 Speaker 1: have no idea about it. Many law professors don't. Many 490 00:31:14,000 --> 00:31:17,360 Speaker 1: law professors teach the thirteenth Amendment only the first part 491 00:31:17,360 --> 00:31:20,520 Speaker 1: of it, that it abolished the slavery, not paying any 492 00:31:20,520 --> 00:31:24,800 Speaker 1: attention to what came next. But if you study anthropology 493 00:31:24,840 --> 00:31:27,520 Speaker 1: as I do, sociology as I do, then you see 494 00:31:27,600 --> 00:31:31,800 Speaker 1: all of what came after that, which was the reproduction, 495 00:31:31,880 --> 00:31:37,680 Speaker 1: the reification of slavery in those states and the permissibility 496 00:31:37,720 --> 00:31:40,920 Speaker 1: of it in other states that had abolished slavery or 497 00:31:41,000 --> 00:31:44,080 Speaker 1: had never had it. And so most people do not 498 00:31:44,280 --> 00:31:47,400 Speaker 1: know about it, but it flows from there. This is 499 00:31:47,480 --> 00:31:50,600 Speaker 1: what we get with Jim Crow as well. If we 500 00:31:50,600 --> 00:31:53,040 Speaker 1: were to think about slavery and just take one quick 501 00:31:53,080 --> 00:31:57,200 Speaker 1: moment with that, the original police were slave patrol police. 502 00:31:57,400 --> 00:32:01,160 Speaker 1: The very badges on which police is where today is 503 00:32:01,240 --> 00:32:05,280 Speaker 1: based on um Baptists from the seventeen and eighteen hundreds. 504 00:32:05,320 --> 00:32:10,880 Speaker 1: They look exactly the same. So when we think about policing, 505 00:32:10,880 --> 00:32:13,440 Speaker 1: when we think about max and corceervation, when we think 506 00:32:13,480 --> 00:32:18,520 Speaker 1: about punishment in this nation, it is racially connected, it 507 00:32:18,600 --> 00:32:22,320 Speaker 1: is placed connected. And so when we fail to pay 508 00:32:22,360 --> 00:32:25,520 Speaker 1: attention to the origins of the Thirteenth Amen that we 509 00:32:25,880 --> 00:32:29,600 Speaker 1: miss an important part of our American history that helps 510 00:32:29,720 --> 00:32:34,560 Speaker 1: us to explain and understand why incarceration has turned out 511 00:32:34,560 --> 00:32:36,760 Speaker 1: to be the way that it is and how different 512 00:32:36,840 --> 00:32:39,760 Speaker 1: it happens to be um than in some of the 513 00:32:39,840 --> 00:32:43,360 Speaker 1: nations that we call our peer nations. Here in the 514 00:32:43,440 --> 00:32:47,200 Speaker 1: United States has been decidedly different because it's been racialized 515 00:32:47,240 --> 00:32:50,680 Speaker 1: in a very different way, and that has continued. When 516 00:32:50,720 --> 00:32:54,360 Speaker 1: we think about the Thirteenth Amendment and removing this clause, 517 00:32:54,520 --> 00:32:57,480 Speaker 1: that is when we actually get closer to this idea 518 00:32:57,520 --> 00:33:01,680 Speaker 1: about racial justice in America. Thanks for being on the show. 519 00:33:02,080 --> 00:33:05,800 Speaker 1: That's Professor Michelle Goodwin of the University of California, Irvine. 520 00:33:06,160 --> 00:33:08,480 Speaker 1: And that's it for the edition of the Bloomberg Law Show. 521 00:33:08,760 --> 00:33:11,600 Speaker 1: I'm June Grosso. Thanks so much for listening. Please tune 522 00:33:11,640 --> 00:33:14,120 Speaker 1: into the show every weeknight at ten pm Eastern right 523 00:33:14,160 --> 00:33:17,000 Speaker 1: here on Bloomberg Radio. And that's it for the sedition 524 00:33:17,040 --> 00:33:20,120 Speaker 1: of the Bloomberg Lawn Podcast. I'm June Grosso. Thanks so 525 00:33:20,200 --> 00:33:22,800 Speaker 1: much for listening. And remember you can always get the 526 00:33:22,840 --> 00:33:26,000 Speaker 1: latest legal news on our Bloomberg Lawn Podcast. You can 527 00:33:26,040 --> 00:33:29,520 Speaker 1: find them on Apple Podcasts, Spotify, and wherever you get 528 00:33:29,560 --> 00:33:33,040 Speaker 1: your favorite podcasts. And please listen to The Bloomberg Lawn 529 00:33:33,080 --> 00:33:36,720 Speaker 1: Show every weeknight at ten pm Eastern on Bloomberg Radio.