Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: It's a kind of lawsuit you may not have heard of,
Speaker 1: and one that may seem almost counterintuitive, suing a hospital
Speaker 1: or a doctor for saving your life. But lawsuits over
Speaker 1: wrongfully prolonging life are being recognized in courts today. A
Speaker 1: Montana jury awarded more than four hundred thousand dollars in
Speaker 1: damages to the state of a man who was resuscitated twice,
Speaker 1: despite the fact that he had a d n R
Speaker 1: or do not resuscitate order in his file. Joining me
Speaker 1: is Daddy as Pope, a professor at the Mitchell Hamlin's
Speaker 1: School of Law. So tell us about these wrongful prolongation
Speaker 1: of life lawsuits and when they started to be recognized
Speaker 1: in the courts. Sure, so those sorts of lawsuits started
Speaker 1: decades ago. Right. We first started having advanced directives in
Speaker 1: the nineteen seventies, and then after people started completing advanced
Speaker 1: right because it didn't take too long for cases to
Speaker 1: arise where doctors and hospitals did not honor or follow
Speaker 1: the instructions in those advanced directives. But the cases that
Speaker 1: were brought during the nineteen eighties and nines were almost
Speaker 1: uniformly unsuccessful because the courts were unwilling to recognize that
Speaker 1: there had actually been any harm. Right, the doctors saved
Speaker 1: your life. They were suscitated you when your heart stopped,
Speaker 1: or they intibated you when you couldn't breathe, and therefore
Speaker 1: it was difficult for the courts to grapple with the
Speaker 1: concept that the saving of your life is in fact
Speaker 1: a compensible injury. Right, it's a harm. But more recently,
Speaker 1: and this is really only over the past let's say
Speaker 1: five years, you now have a string of lawsuits that
Speaker 1: have been successful. In the Montana case that was cited
Speaker 1: in the Boston Globe story this week, there's a four
Speaker 1: dollar verdict. There was a million dollar settlement in southern California,
Speaker 1: a million dollar settlement in Georgia, and other cases. And
Speaker 1: so there's really been a turn both at the trial
Speaker 1: levels where verdicts are coming out at the appellate levels,
Speaker 1: where the appellate courts are saying, yes, this is a
Speaker 1: compensible legal injury. For decades, we've been telling people, and
Speaker 1: when I say we, I mean government agencies nonprofits have
Speaker 1: been encouraging people to do advanced care planning right, they'd say, Hey, June,
Speaker 1: hey Thaddeus, do you have an advanced directive? Have you
Speaker 1: talked with your family about your wishes so you can
Speaker 1: make sure that if you lose capacity, you can get
Speaker 1: the treatment that you want and avoid the treatment that
Speaker 1: you don't want. And so since we've been making that
Speaker 1: promise so prominently, so repeatedly, for so long, that now
Speaker 1: when that promise is breached, it does I think, seeing
Speaker 1: to the courts more logical, more palatable, that that sort
Speaker 1: of breach of a promise should be compensable. In the
Speaker 1: Montanic case, Roddy Knoful had a d n R order
Speaker 1: in his file, a band on his wrist indicating he
Speaker 1: didn't want to be resuscitated, and yet the staff resuscitated
Speaker 1: him twice. What does that speak to? Is it just
Speaker 1: the hospital staff ignoring the wishes of the patient. That's
Speaker 1: a great question. So what we see, I think, are
Speaker 1: two different types of cases. In one type of case,
Speaker 1: the clinicians actually make a deliberate and intentional decision. They
Speaker 1: don't agree with the patient's choice, or they don't agree
Speaker 1: with the family's choice, and therefore they don't follow it.
Speaker 1: In the Montana case, it's not clear that that's what happened.
Speaker 1: It appears that it's more a case of negligence, where
Speaker 1: either his wishes weren't recorded very carefully or there was
Speaker 1: negligence in how the staff actually checked or ascertained what
Speaker 1: his wishes were. And since it was in his chart
Speaker 1: and he had the wrist band and they had just
Speaker 1: talked to his wife, they had at least three separate
Speaker 1: sources of information to know that he didn't want to
Speaker 1: be resuscitated, and so therefore to proceed in the face
Speaker 1: of all that contrary information, it seems at least negligent.
Speaker 1: Maybe it's beyond negligent, maybe at the higher level, maybe
Speaker 1: it's reckless disregard. Maybe it was intentional. I don't know,
Speaker 1: but it was at least negligence, and the jury did
Speaker 1: find negligence in that case. In the other cases you mentioned,
Speaker 1: was it also negligence? Were the circumstances similar. So there's
Speaker 1: the case, and this went up to the Georgia Supre Court,
Speaker 1: the Alsea versus doctor's hospital case, and in that case
Speaker 1: it seemed that it was more intentional, so that the
Speaker 1: doctor in that case I knew that the patient had
Speaker 1: an advanced directive that she did not want to be intubated.
Speaker 1: He knew that the agent the healthcare agents appointed under
Speaker 1: the Advanced Directive had also instructed the same, but said,
Speaker 1: you know what, let's go ahead and intibate her anyway.
Speaker 1: So in that case, it appears that it wasn't a
Speaker 1: negligent failure to record the patient's preferences or neg and
Speaker 1: failure to check the record, but it was an intentional
Speaker 1: decision to do something different thinking this was in the record,
Speaker 1: thinking well, we can always undo it, right, if we
Speaker 1: intubate somebody and we put them on mechemical relation, we
Speaker 1: can always undo that later. So we'll just air on
Speaker 1: the side of doing that, and if we're wrong, we
Speaker 1: can undo it. And what the court said in that
Speaker 1: case was, yeah, but you still did something that you
Speaker 1: knew was contrary to the patient's preferences. And so even
Speaker 1: though it was for a short duration of time, as
Speaker 1: it was in Montana, right again, it was only a
Speaker 1: short duration of time, it's still a compensable injury. So
Speaker 1: some of these cases are just mere negligence, failure to
Speaker 1: check the chart, failure to check the risk band, failure
Speaker 1: to communicate from one clinician to another, commission, but some
Speaker 1: of do appear to be intentional. Now it seems as
Speaker 1: if in the cases we've been talking about, patients have
Speaker 1: done what they're supposed to do. They filled out the
Speaker 1: advanced directive. So what can be done to ensure that
Speaker 1: hospitals follow the wishes of the patients. It's worth noting
Speaker 1: only around thirty of us actually have done advanced care
Speaker 1: planning and have completed advanced directives. That number is actually
Speaker 1: going way up because of COVID nineteen, but still most
Speaker 1: of us haven't done that. But for those who have
Speaker 1: done advanced directors, how do we make sure that they
Speaker 1: actually get followed? I think the first thing is always
Speaker 1: a point an agent. Advanced directives in almost every state
Speaker 1: have two parts. There's the instructional part, where you can
Speaker 1: tell us what treatments you want and what treatments you
Speaker 1: don't want. But then there's also the appointment of agent
Speaker 1: parts to be called a durable power of attorney for healthcare.
Speaker 1: That's probably the more important part, because then you have
Speaker 1: an actual person who can show up and be your
Speaker 1: advocate and make sure that your wishes get followed. And
Speaker 1: you want to appoint somebody who can actually be a
Speaker 1: good advocate, somebody who you trust, somebody who knows your
Speaker 1: values and preferences, and somebody who will be available at
Speaker 1: the relevant time, and you probably want to back up
Speaker 1: in case your primary agents is not available. So that's
Speaker 1: probably the most important things. And then the second thing
Speaker 1: I think is that these cases may already be accomplishing.
Speaker 1: This is there may be more training in healthcare systems
Speaker 1: to make sure that we are carefully documenting and communicating
Speaker 1: patient preferences about their end of life care. What is
Speaker 1: it do not resuscitate law? So do not this is
Speaker 1: another unfortunate problem. Do not resuscitate or d n R
Speaker 1: order um really only pertains to the situation where the
Speaker 1: patient's heart, uh they stop breeding or their heart or
Speaker 1: they are they are they they don't have a pulse, right,
Speaker 1: So it just means that you're gonna it means that
Speaker 1: you're not going to do CPR to try to restore
Speaker 1: the patients a circulation or breathing. So that's it, right,
Speaker 1: That d n R order means we're not going to
Speaker 1: do CPR. So it's it's it's a it's in order
Speaker 1: to not do one specific type of life sustained treatment
Speaker 1: on Fortunately, and there's a lot of studies on this,
Speaker 1: those those orders are overinterpreted, and so we've done many
Speaker 1: surveys of physicians and also nurses m you know, giving
Speaker 1: them hypothetical scenarios and asking them what they should do.
Speaker 1: And unfortunately, many times a clinician seeing that the patient
Speaker 1: has a d n R order and remember it only
Speaker 1: means that you're not supposed to be CPR, but that
Speaker 1: patient would still receive all other sorts of licenstating treatment UM,
Speaker 1: but they would interpret it to mean that the patient
Speaker 1: is comfort measures own right, they're not going to get
Speaker 1: any curative directed treatment or any other life treatment. So
Speaker 1: they they overinterpret the meaning of a d n R
Speaker 1: order and so that that is definitely a patient safety
Speaker 1: risk that also needs to be work done. What is
Speaker 1: the exact law that we're talking about, So there's a
Speaker 1: lot of different laws. There's most states now have a
Speaker 1: pulse law. So in New York it's called a most
Speaker 1: mL LST Medical Orders for Life Sustaining Treatment UM. This
Speaker 1: this and so there's a separate statue in New York
Speaker 1: for this, in a separate statute in many states or
Speaker 1: most states for this UM. And the idea is what
Speaker 1: it is. It is an advanced directive, which is the
Speaker 1: sort of document that was an issue in the Georgia case.
Speaker 1: In some of these other cases, it is just um, uh,
Speaker 1: your wishes, right, it's just a recording of your wishes.
Speaker 1: And the thought maybe twenty years ago was that if
Speaker 1: we we can um better assure that your wishers are followed,
Speaker 1: if we convert the advanced directive into a medical order
Speaker 1: SECT and the idea and that's what that's what a
Speaker 1: pulse is Physician orders for lifustating treatment UM. And if
Speaker 1: it's a medical order set, it's a it's a uniform form,
Speaker 1: it's a simpler form, it's a one page form usually UM.
Speaker 1: And it's since it's since it already is a set
Speaker 1: of medical orders, it's immediately actionable, right, So we don't
Speaker 1: need to look at your advanced directive, figure out what
Speaker 1: you want, and then right orders to implement your wishes.
Speaker 1: The POLST already is a set of medical orders, so
Speaker 1: it's immediately actionable UM. And so that's and and in fact,
Speaker 1: the evidence does show that if you're seriously ill individual,
Speaker 1: it would be a really good idea to not only
Speaker 1: have an advanced directive, but to also have a pulse
Speaker 1: because that better assures that you that your wishes get followed,
Speaker 1: more than just having an advanced directive by itself. So
Speaker 1: when you asked me a second ago, what are the
Speaker 1: things that patients can do to better assure that their
Speaker 1: end of life wishes get respected? For at least the
Speaker 1: seriously ill patient or seriously ill individuals, they should have
Speaker 1: not only an advancedructive but also appolsed. So this discussion
Speaker 1: seems to highlight the fact that this is a very
Speaker 1: confusing area of the law that I think most people
Speaker 1: don't know about. So should doctors be paid for having
Speaker 1: sessions with patients to explain this to them? Yes, a few.
Speaker 1: So most patients, of course that are UM older, their
Speaker 1: primary source of insurance is Medicare, And a few years
Speaker 1: ago UM Medicare did change the physician schedule to allow
Speaker 1: payment for advanced care planning discussions ah and and the
Speaker 1: thought was that would be one way to incentivize doctor
Speaker 1: is to sit down and talk with patients UM about
Speaker 1: their wishes and ideally to in fact completely advanced directive
Speaker 1: and also for the relevant patients to complete a pulse UM.
Speaker 1: So we've had that those two new codes, those two
Speaker 1: new CPT codes to pay for these sorts of discussions
Speaker 1: now for five years UM. Unfortunately, the evidence shows that
Speaker 1: it hasn't um produced the sort of the incentive hasn't
Speaker 1: been strong enough to incentivize the discussions I think in
Speaker 1: the way that was hoped for, right, So we continue
Speaker 1: to see legislation UH designed to provide an even stronger incentive,
Speaker 1: and the bills have done all sorts of things. Sometimes
Speaker 1: the idea where we pay not only the doctors, will
Speaker 1: pay the beneficiary. Right, so if you completely the advanced directive,
Speaker 1: will pay you seventy five m. And the reason to
Speaker 1: do that, by the way, is because we know that overwhelmingly,
Speaker 1: if you ask people what they want at the end
Speaker 1: of life, they would prefer to forego aggressive curative directed
Speaker 1: measures at the end of life and would prefer us
Speaker 1: to die at home on hospice. Unfortunately, that's not what
Speaker 1: happens UM. And so therefore, if we actually provided the
Speaker 1: care that Americans want, we probably would save a lot
Speaker 1: of money. The Medicare would save a lot of money.
Speaker 1: And therefore, by if that incentive work, and I don't
Speaker 1: know if it would, but if we pay people seventy
Speaker 1: five to complete in advance directive, and they actually completed
Speaker 1: an advanced directive and they can complete it any way
Speaker 1: that they want. Right. All all ask you people to
Speaker 1: do is tell us what you want, tell us what
Speaker 1: you don't want. We're not it's your choice. But more
Speaker 1: people in fact would choose, for example, if they were
Speaker 1: permanently unconscious, to say, I wouldn't want to live like that, right,
Speaker 1: you don't need to continue to give me mechanical a
Speaker 1: relation and artificial hydration if I'm permanently unconscious. So most
Speaker 1: people would decline h a lot of care at the
Speaker 1: end of life that they would otherwise be getting if
Speaker 1: they're getting complete and it reinstructive. How important do you
Speaker 1: think it is that these lawsuits are being recognized. Well,
Speaker 1: I think it's very important that these cases. First of all,
Speaker 1: that these cases were brought. Secondly, that they were resolved
Speaker 1: in the way that they were resolved, and third that
Speaker 1: the Boston Globe and Kaiser Health News and you are
Speaker 1: talking about them because um, I think you the message
Speaker 1: needs to be sent that it's worth your time to
Speaker 1: completely reinstructive. I think because if you think, like oh,
Speaker 1: I hear that that hospitals and doctors don't always follow them.
Speaker 1: Sometimes they ignore them, sometimes they lose them. Then then
Speaker 1: of course the natural responses why bother? Right, why bother?
Speaker 1: The completely the instructive because it's probably not going to
Speaker 1: get followed anyway, right, so that it gives people a
Speaker 1: sense of utility. So I think it's important to send
Speaker 1: the message, No, they have a legal duty to follow them,
Speaker 1: um and if they don't, they will be punished. Um.
Speaker 1: And so it is worth your time to complete an advancedructive.
Speaker 1: Thanks for being on the Bloomberg Law Show. That's Daddy
Speaker 1: is Pope, a professor the Mitchell Hamlin's School of Law.
Speaker 1: The thirteenth Amendment is often described as the amendment that
Speaker 1: abolished slavery in this country, but there is a loophole
Speaker 1: that permits slavery as punishment for a crime. It's this
Speaker 1: loophole that more than a dozen human rights and social
Speaker 1: justice organizations want to get rid of, and last month,
Speaker 1: Democratic members of the House and Senate introduced a joint
Speaker 1: resolution aimed at striking that language from the Constitution to
Speaker 1: any means. Michelle Goodwin, a constitutional law professor at the
Speaker 1: University of California, Irvine. For those who don't know, tell
Speaker 1: us about the thirteenth Amendment, all parts of the thirteenth Amendment.
Speaker 1: So the thirteenth Amendment was originally proposed in order to
Speaker 1: end slavery entirely in the United States. This is after
Speaker 1: the Civil War has ended, the Emancipation Proclamation, which was
Speaker 1: a wartime measure, was coming to an end. Many people
Speaker 1: presumed that the Emancipation Proclamation was what ended slavery. It wasn't.
Speaker 1: What Lincoln said is that if you join the Union,
Speaker 1: you may keep your slaves, but if you decide that
Speaker 1: you will not join the Union, then your slaves will
Speaker 1: be freed as of ex date and time. And after
Speaker 1: the Civil War was over, um, there were states like
Speaker 1: Kentucky which had agreed to join the Union um, but
Speaker 1: also got to keep their slaves. And so the thirteenth
Speaker 1: Amendment was to do away with that altogether. But there
Speaker 1: were Southerners, Southern senators, who argued for something different. They
Speaker 1: wanted an amendment, and in fact it was not only
Speaker 1: the ending of slavery. There were some senators that wanted
Speaker 1: something even more aggressive that said that all people are
Speaker 1: created equal, that spoke to human rights basically based on
Speaker 1: what was coming out of France. But the pushback was
Speaker 1: twofold in Congress amongst senators. One there were senators that said, well,
Speaker 1: equality for all would means that women get to be
Speaker 1: equal and our wives get to presume that they're equal
Speaker 1: to their husbands. That can't fly. That could have just
Speaker 1: simply been a ruise, you know, just because they didn't
Speaker 1: want blacks to be equal to white that they taught
Speaker 1: them this would make women equal, but even more sinister
Speaker 1: and more strategic. And what we live with today is
Speaker 1: the punishment clause. There were Southern senators who were slaveholding
Speaker 1: and came from slaveholding families. They said, well, what we
Speaker 1: should actually have is a punishment clause in this which
Speaker 1: says that you're free from slavery except if you have
Speaker 1: been convicted of a crime. It's a very short statement.
Speaker 1: It's nothing lengthy, it's nothing that's filled with paragraphs. But
Speaker 1: it's just that that you remain in slave if you've
Speaker 1: been convicted of a crime. And what's important is that
Speaker 1: every constitutional amendment must be ratified, and that means then
Speaker 1: that these senators went back to their states and then
Speaker 1: the amendment goes state to state for ratification. Well, what
Speaker 1: the Southerners did was to fill up before the amendment
Speaker 1: came to their states and was signed off by their
Speaker 1: local legislatures. They filled their local state books with all
Speaker 1: sorts of crime, so loitering crimes. In some states, it
Speaker 1: was a crime if you were black and you sold rights.
Speaker 1: Crime if you're black and you sold weak, crime, if
Speaker 1: you were black and you stayed in town more than
Speaker 1: x number of days. Crime if you were black and
Speaker 1: a random white person could say your house looks unkimpt um,
Speaker 1: all manner of things that were just random and ridiculous
Speaker 1: that clearly because they did not apply to white were
Speaker 1: intended to bring black people free black people back into
Speaker 1: a condition of slavery. So what happened as a result
Speaker 1: of the ratification of the thirteenth Amendment? So what's the
Speaker 1: ratification then of the thirteenth Amendment. This meant that what
Speaker 1: the punishment clause that in the South they could get
Speaker 1: to business by creating all sorts of crimes and punishing
Speaker 1: black people for these crimes, and that would bring black
Speaker 1: people back into slavery. And the result was that plantations
Speaker 1: actually grew in size after they were larger in some
Speaker 1: states like Louisiana, after slavery then before slavery, because now
Speaker 1: there was a whole different enterprise, and an enterprise that
Speaker 1: was corrupt in many ways. Um in Alabama, it was
Speaker 1: so bad that there were state legislators that investigated wardens
Speaker 1: and police chiefs because they were skimming money off of
Speaker 1: the top. There were in these states you could convict lease,
Speaker 1: which meant that if someone's convicted of a client to
Speaker 1: black kids standing on a corner, much of like the
Speaker 1: kinds of things that we see today, but then you
Speaker 1: know that's loitering, and that loitering could lead to twenty
Speaker 1: or thirty years of incarceration. Clearly, this is about slavery,
Speaker 1: and the state could argue in these instances that well,
Speaker 1: as long as they can pay the fine, they don't
Speaker 1: have to worry about convictions. But it's important to know
Speaker 1: that at those times, these fines were fifty dollars seventy
Speaker 1: five hundred dollars hundred fifty dollars. What white person in
Speaker 1: eight sixty five could afford to pay a fine like that,
Speaker 1: let alone some black person who has just been released
Speaker 1: from the conditions of slavery, who could afford a hunt
Speaker 1: to pay a hundred dollar fine Because he or she
Speaker 1: stood on a corner with two other people talking. Some
Speaker 1: people might say, well, they're not using that provision anymore,
Speaker 1: are they, And they are so. The punishment clause has
Speaker 1: never been repealed, and the punishment clause led to pernicious action. UM.
Speaker 1: The restoration of slavery chain gangs, all of these guys
Speaker 1: of things that look terrible and old people, you know,
Speaker 1: and white black stripes on the side of roads hitting rocks.
Speaker 1: It still continues and persists today. It's never been repealed
Speaker 1: from the United States Constitution. And even more so than
Speaker 1: states adopted it. She had states that had decided that
Speaker 1: they would not be slave states or that they would
Speaker 1: get rid of slavery in their states. Now the federal
Speaker 1: government has placed it in the Constitution, and so slavery
Speaker 1: can thrive in their particular states. In California, the people
Speaker 1: who put out wildfires, people who are incarcerated, incarcerated men,
Speaker 1: incarcerated women, people have died in those conditions. The people
Speaker 1: who have been making masks in prisons in California have
Speaker 1: been women in prison. Do they get the masks? You know?
Speaker 1: In New York, the people who have been making hand
Speaker 1: sanitizer behind bars, UM also these people who have been
Speaker 1: convicted and this is their punishment for a crime. And
Speaker 1: what it is is it's an added layer. Because if
Speaker 1: you've been convicted of a crime, let say, now you
Speaker 1: stole somebody's purse, your punishment is actually that. Well, now
Speaker 1: you are either on probation or or parole, or you've
Speaker 1: been sentenced uh to jail, and you've been taken away
Speaker 1: from your family. But this is where the state adds
Speaker 1: onto it. Not only have you been taken away from society,
Speaker 1: not only do you have this mark on yourself that
Speaker 1: you were convicted for having stolen that purse, but now
Speaker 1: in addition to that, will make you do this labor
Speaker 1: for free. Um not pay you anything, but charge you
Speaker 1: as if you were at a luxury hotel. And many
Speaker 1: people don't understand or see that prison is not free.
Speaker 1: It's not as if people are just getting um free
Speaker 1: meals and and free all of these things. In many
Speaker 1: states they make you pay for exactly what you have
Speaker 1: been confined to. Your toothpaste is and free. You have
Speaker 1: to pay in commissary. Your telephone calls to your family
Speaker 1: not only are they not free, but you're going to
Speaker 1: pay more than anybody else in America for that phone call.
Speaker 1: And yet at the same time, the state will put
Speaker 1: you to work. In some instances you might get paid,
Speaker 1: but get this, you may be paid only one cent
Speaker 1: per hour, maybe it will be ten cents per hour.
Speaker 1: And what you're doing are things that are intended to
Speaker 1: be a punishment. Now, let's make clear. In some states
Speaker 1: it may be that people want to opt in UM
Speaker 1: so that they can get some training and skills. But
Speaker 1: here's another per initious aspect events and and that is
Speaker 1: the following, which is that when these individuals get out,
Speaker 1: they have the mark of being incarcerated on them. We
Speaker 1: punish people by having them mark the box whether they've
Speaker 1: been incarcerated. And when you mark the box, for many industries,
Speaker 1: that means that you cannot be gainfully employed afterwards. It's
Speaker 1: a dark mark of X. Do not hire this person. So,
Speaker 1: even under the understanding that this helps you when you
Speaker 1: get out, it turns out the work hasn't been done
Speaker 1: privately or publicly to help people in that regard. And
Speaker 1: let's be clear, we're talking about fortune hundred companies. They're
Speaker 1: using prison labor, but not making a pathway for these
Speaker 1: individuals after incarcerations. To work in their companies. So tell
Speaker 1: us about UM. Senator Murkley's resolution. What he's proposing. So
Speaker 1: tell us about Senator Murkley's resolution. So what he's proposing
Speaker 1: is to do away entirely with this punishment clause. Let's
Speaker 1: remove this out of the vestiges of our history and
Speaker 1: the United States. We know it comes from UM spoiled
Speaker 1: fruit in our country. It comes from a place UM
Speaker 1: that was a lott in place in our country and
Speaker 1: continues to produce than spoiled fruit. And so he says, well,
Speaker 1: let's just get rid of the punishment clause and from
Speaker 1: there we can build a new UM. And that's a
Speaker 1: bright and fresh idea. There is a perfect opportunity in
Speaker 1: the wake of this to think in aggressive ways about
Speaker 1: mass incarceration and prison reform. And this is a terrific
Speaker 1: opportunity for us to do this, not only because the
Speaker 1: United States and carcerate more people than any other country
Speaker 1: in the world. We have five percent of the world's
Speaker 1: population and yet of the world's incarcerated time relations and
Speaker 1: it's not just men, it's women too. The United States
Speaker 1: incarceer rates more women than any other country in the world,
Speaker 1: and the majority of these women happen to be mothers,
Speaker 1: and the studies that have been produced by sociologists and
Speaker 1: others are really just stunning children of incarcerated parents. They're
Speaker 1: worse than children who have experienced a parent death or
Speaker 1: diverse divorce. And so these the way in which we
Speaker 1: mask incarcerate. The harms that results from this harm not
Speaker 1: only the individuals who happen to be incarcerated, but also lasting,
Speaker 1: lasting impacts on their children and on their communities. And
Speaker 1: other studies have shown, including by the federal government and
Speaker 1: organizations that are on the left and the right, that
Speaker 1: incarceration sales America. The way in which we mass incarcerate
Speaker 1: simply does not produce the results um that we wanted,
Speaker 1: that we need for our society, and it costs us
Speaker 1: a lot economically, but it also costs us another way.
Speaker 1: Would it require a constitutional amendment? Well, so this is
Speaker 1: a very good question. Ideally there would be a constitutional
Speaker 1: amendment to get slavery out of our constitution. And because
Speaker 1: this is in our constitution, then legislation alone, in my opinion,
Speaker 1: is not sufficient. Um. Legislation could go a long way.
Speaker 1: There are already states that are doing this, that are
Speaker 1: actually adopting those constitutional amendments, because for states that follows
Speaker 1: the federal guidance, one could say in this in terms
Speaker 1: of what Congress did in eighteen sixty five, and then
Speaker 1: states followed um suits, there are states like Colorado that
Speaker 1: through referendum have now removed the punishment clause from their
Speaker 1: state constitution. Very recently U Taught and the brass that
Speaker 1: did the same. And so we can look to the
Speaker 1: models of those three states um and do this as well.
Speaker 1: So it could be done by federal constitutional amendment, or
Speaker 1: it could also be done by states taking this up um.
Speaker 1: In some ways, you can see the state action as
Speaker 1: similar to marriage equality, where the states that Scott busy
Speaker 1: with doing that before the Supreme Court ruled on the matter.
Speaker 1: But either way, this is an urgent issue for our time.
Speaker 1: Let's just suppose that a constitutional amendment was passed and
Speaker 1: that language was taken out. Would it still be effective
Speaker 1: in the twenty states that still have that language in
Speaker 1: their constitutions in other words, but they also have to
Speaker 1: take it out in order for this really to have
Speaker 1: a nationwide effect. That's a great question. So if it
Speaker 1: is taken out of the constitution, because Congress has removed it.
Speaker 1: Congressional laws frump states law. So that is why, in
Speaker 1: fact we have the federalist system as we have, which
Speaker 1: is that that which is ruled upon by Congress and
Speaker 1: that which is made into our United States Constitution serves
Speaker 1: as the platform for the country. And at that point
Speaker 1: any any language that continues in the States Constitution would
Speaker 1: essentially be null and void because of the action taken
Speaker 1: by the federal government and what is in the federal Constitution.
Speaker 1: One might be similarly UM. The very slow actions to
Speaker 1: repeal other either Jim Crow era or slavery era laws
Speaker 1: UM that existed in Southern constitutions or in Southern legislation
Speaker 1: UM all null en void after congressional action or constitutional
Speaker 1: action UM, but nevertheless sometimes slow for removal because of
Speaker 1: symbolic action in the in the Southern States to preserve
Speaker 1: UM do in some ways at least symbolically preserve the
Speaker 1: status of separate but equals. Does it seem to you
Speaker 1: as if this part of the Thirteenth Amendment and the
Speaker 1: effects are something that most people in the country aren't
Speaker 1: aware of. Most people are unaware of this legacy and
Speaker 1: how it has a significant role in how we police
Speaker 1: and understand policing incarceration today. So if we were take
Speaker 1: to take a step back and how this so cleverly
Speaker 1: joined together right in, one must understand that the Southern
Speaker 1: slave holding senators understood what they were doing by saying,
Speaker 1: let's flip this into the freedom clause. So we're going
Speaker 1: we're going to put an amendment together for the Constitution,
Speaker 1: but we're going to include this. This was not by happenstance. Um,
Speaker 1: this not by mistake. This was actually shrewd, very clever,
Speaker 1: intentional action on behalf of Southern legislators. And most Americans
Speaker 1: have no idea about it. Many law professors don't. Many
Speaker 1: law professors teach the thirteenth Amendment only the first part
Speaker 1: of it, that it abolished the slavery, not paying any
Speaker 1: attention to what came next. But if you study anthropology
Speaker 1: as I do, sociology as I do, then you see
Speaker 1: all of what came after that, which was the reproduction,
Speaker 1: the reification of slavery in those states and the permissibility
Speaker 1: of it in other states that had abolished slavery or
Speaker 1: had never had it. And so most people do not
Speaker 1: know about it, but it flows from there. This is
Speaker 1: what we get with Jim Crow as well. If we
Speaker 1: were to think about slavery and just take one quick
Speaker 1: moment with that, the original police were slave patrol police.
Speaker 1: The very badges on which police is where today is
Speaker 1: based on um Baptists from the seventeen and eighteen hundreds.
Speaker 1: They look exactly the same. So when we think about policing,
Speaker 1: when we think about max and corceervation, when we think
Speaker 1: about punishment in this nation, it is racially connected, it
Speaker 1: is placed connected. And so when we fail to pay
Speaker 1: attention to the origins of the Thirteenth Amen that we
Speaker 1: miss an important part of our American history that helps
Speaker 1: us to explain and understand why incarceration has turned out
Speaker 1: to be the way that it is and how different
Speaker 1: it happens to be um than in some of the
Speaker 1: nations that we call our peer nations. Here in the
Speaker 1: United States has been decidedly different because it's been racialized
Speaker 1: in a very different way, and that has continued. When
Speaker 1: we think about the Thirteenth Amendment and removing this clause,
Speaker 1: that is when we actually get closer to this idea
Speaker 1: about racial justice in America. Thanks for being on the show.
Speaker 1: That's Professor Michelle Goodwin of the University of California, Irvine.
Speaker 1: And that's it for the edition of the Bloomberg Law Show.
Speaker 1: I'm June Grosso. Thanks so much for listening. Please tune
Speaker 1: into the show every weeknight at ten pm Eastern right
Speaker 1: here on Bloomberg Radio. And that's it for the sedition
Speaker 1: of the Bloomberg Lawn Podcast. I'm June Grosso. Thanks so
Speaker 1: much for listening. And remember you can always get the
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