WEBVTT - Hospitals Sued Over Saving Patients' Lives 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:06.880 --> 0:00:09.520 It's a kind of lawsuit you may not have heard of, 0:00:09.920 --> 0:00:14.640 and one that may seem almost counterintuitive, suing a hospital 0:00:14.720 --> 0:00:18.360 or a doctor for saving your life. But lawsuits over 0:00:18.440 --> 0:00:22.720 wrongfully prolonging life are being recognized in courts today. A 0:00:22.760 --> 0:00:25.759 Montana jury awarded more than four hundred thousand dollars in 0:00:25.880 --> 0:00:29.320 damages to the state of a man who was resuscitated twice, 0:00:29.760 --> 0:00:31.920 despite the fact that he had a d n R 0:00:32.159 --> 0:00:35.280 or do not resuscitate order in his file. Joining me 0:00:35.360 --> 0:00:37.839 is Daddy as Pope, a professor at the Mitchell Hamlin's 0:00:37.880 --> 0:00:41.839 School of Law. So tell us about these wrongful prolongation 0:00:41.880 --> 0:00:45.040 of life lawsuits and when they started to be recognized 0:00:45.040 --> 0:00:50.000 in the courts. Sure, so those sorts of lawsuits started 0:00:50.120 --> 0:00:55.320 decades ago. Right. We first started having advanced directives in 0:00:55.400 --> 0:00:59.760 the nineteen seventies, and then after people started completing advanced 0:00:59.840 --> 0:01:02.720 right because it didn't take too long for cases to 0:01:02.760 --> 0:01:07.840 arise where doctors and hospitals did not honor or follow 0:01:08.200 --> 0:01:12.160 the instructions in those advanced directives. But the cases that 0:01:12.240 --> 0:01:16.200 were brought during the nineteen eighties and nines were almost 0:01:16.480 --> 0:01:22.479 uniformly unsuccessful because the courts were unwilling to recognize that 0:01:22.520 --> 0:01:25.959 there had actually been any harm. Right, the doctors saved 0:01:25.959 --> 0:01:28.920 your life. They were suscitated you when your heart stopped, 0:01:29.080 --> 0:01:32.080 or they intibated you when you couldn't breathe, and therefore 0:01:32.280 --> 0:01:34.800 it was difficult for the courts to grapple with the 0:01:34.880 --> 0:01:38.280 concept that the saving of your life is in fact 0:01:38.319 --> 0:01:42.080 a compensible injury. Right, it's a harm. But more recently, 0:01:42.480 --> 0:01:44.839 and this is really only over the past let's say 0:01:44.880 --> 0:01:49.520 five years, you now have a string of lawsuits that 0:01:49.800 --> 0:01:53.920 have been successful. In the Montana case that was cited 0:01:53.920 --> 0:01:56.720 in the Boston Globe story this week, there's a four 0:01:57.400 --> 0:02:01.320 dollar verdict. There was a million dollar settlement in southern California, 0:02:01.400 --> 0:02:05.520 a million dollar settlement in Georgia, and other cases. And 0:02:05.600 --> 0:02:09.000 so there's really been a turn both at the trial 0:02:09.080 --> 0:02:12.400 levels where verdicts are coming out at the appellate levels, 0:02:12.400 --> 0:02:16.119 where the appellate courts are saying, yes, this is a 0:02:16.160 --> 0:02:20.799 compensible legal injury. For decades, we've been telling people, and 0:02:20.880 --> 0:02:23.960 when I say we, I mean government agencies nonprofits have 0:02:24.080 --> 0:02:27.760 been encouraging people to do advanced care planning right, they'd say, Hey, June, 0:02:27.960 --> 0:02:30.680 hey Thaddeus, do you have an advanced directive? Have you 0:02:30.720 --> 0:02:33.120 talked with your family about your wishes so you can 0:02:33.160 --> 0:02:36.280 make sure that if you lose capacity, you can get 0:02:36.280 --> 0:02:39.320 the treatment that you want and avoid the treatment that 0:02:39.480 --> 0:02:42.160 you don't want. And so since we've been making that 0:02:42.280 --> 0:02:48.000 promise so prominently, so repeatedly, for so long, that now 0:02:48.160 --> 0:02:51.560 when that promise is breached, it does I think, seeing 0:02:51.639 --> 0:02:55.800 to the courts more logical, more palatable, that that sort 0:02:55.800 --> 0:02:59.040 of breach of a promise should be compensable. In the 0:02:59.120 --> 0:03:03.080 Montanic case, Roddy Knoful had a d n R order 0:03:03.320 --> 0:03:07.120 in his file, a band on his wrist indicating he 0:03:07.160 --> 0:03:11.240 didn't want to be resuscitated, and yet the staff resuscitated 0:03:11.320 --> 0:03:14.320 him twice. What does that speak to? Is it just 0:03:14.400 --> 0:03:18.880 the hospital staff ignoring the wishes of the patient. That's 0:03:18.880 --> 0:03:21.880 a great question. So what we see, I think, are 0:03:21.880 --> 0:03:24.400 two different types of cases. In one type of case, 0:03:24.680 --> 0:03:28.280 the clinicians actually make a deliberate and intentional decision. They 0:03:28.320 --> 0:03:31.560 don't agree with the patient's choice, or they don't agree 0:03:31.560 --> 0:03:34.640 with the family's choice, and therefore they don't follow it. 0:03:34.880 --> 0:03:38.080 In the Montana case, it's not clear that that's what happened. 0:03:38.120 --> 0:03:41.160 It appears that it's more a case of negligence, where 0:03:41.640 --> 0:03:46.080 either his wishes weren't recorded very carefully or there was 0:03:46.160 --> 0:03:50.000 negligence in how the staff actually checked or ascertained what 0:03:50.160 --> 0:03:53.280 his wishes were. And since it was in his chart 0:03:53.760 --> 0:03:56.480 and he had the wrist band and they had just 0:03:56.560 --> 0:03:59.240 talked to his wife, they had at least three separate 0:03:59.520 --> 0:04:03.320 sources of information to know that he didn't want to 0:04:03.320 --> 0:04:06.840 be resuscitated, and so therefore to proceed in the face 0:04:06.880 --> 0:04:10.160 of all that contrary information, it seems at least negligent. 0:04:10.320 --> 0:04:12.839 Maybe it's beyond negligent, maybe at the higher level, maybe 0:04:12.840 --> 0:04:16.320 it's reckless disregard. Maybe it was intentional. I don't know, 0:04:16.560 --> 0:04:19.120 but it was at least negligence, and the jury did 0:04:19.160 --> 0:04:23.080 find negligence in that case. In the other cases you mentioned, 0:04:23.360 --> 0:04:27.520 was it also negligence? Were the circumstances similar. So there's 0:04:27.520 --> 0:04:29.960 the case, and this went up to the Georgia Supre Court, 0:04:30.279 --> 0:04:34.200 the Alsea versus doctor's hospital case, and in that case 0:04:34.760 --> 0:04:37.000 it seemed that it was more intentional, so that the 0:04:37.279 --> 0:04:40.839 doctor in that case I knew that the patient had 0:04:40.880 --> 0:04:44.120 an advanced directive that she did not want to be intubated. 0:04:44.680 --> 0:04:47.960 He knew that the agent the healthcare agents appointed under 0:04:48.000 --> 0:04:51.720 the Advanced Directive had also instructed the same, but said, 0:04:51.760 --> 0:04:53.960 you know what, let's go ahead and intibate her anyway. 0:04:54.240 --> 0:04:56.760 So in that case, it appears that it wasn't a 0:04:56.880 --> 0:05:00.080 negligent failure to record the patient's preferences or neg and 0:05:00.200 --> 0:05:02.919 failure to check the record, but it was an intentional 0:05:03.000 --> 0:05:07.120 decision to do something different thinking this was in the record, 0:05:07.480 --> 0:05:09.720 thinking well, we can always undo it, right, if we 0:05:09.760 --> 0:05:12.400 intubate somebody and we put them on mechemical relation, we 0:05:12.440 --> 0:05:15.200 can always undo that later. So we'll just air on 0:05:15.240 --> 0:05:17.640 the side of doing that, and if we're wrong, we 0:05:17.680 --> 0:05:20.320 can undo it. And what the court said in that 0:05:20.360 --> 0:05:23.359 case was, yeah, but you still did something that you 0:05:23.400 --> 0:05:26.960 knew was contrary to the patient's preferences. And so even 0:05:27.000 --> 0:05:28.880 though it was for a short duration of time, as 0:05:28.920 --> 0:05:30.680 it was in Montana, right again, it was only a 0:05:30.680 --> 0:05:33.719 short duration of time, it's still a compensable injury. So 0:05:33.880 --> 0:05:36.760 some of these cases are just mere negligence, failure to 0:05:36.839 --> 0:05:39.760 check the chart, failure to check the risk band, failure 0:05:39.839 --> 0:05:42.760 to communicate from one clinician to another, commission, but some 0:05:42.839 --> 0:05:45.520 of do appear to be intentional. Now it seems as 0:05:45.520 --> 0:05:48.640 if in the cases we've been talking about, patients have 0:05:48.720 --> 0:05:51.039 done what they're supposed to do. They filled out the 0:05:51.080 --> 0:05:54.279 advanced directive. So what can be done to ensure that 0:05:54.400 --> 0:05:58.400 hospitals follow the wishes of the patients. It's worth noting 0:05:58.640 --> 0:06:02.800 only around thirty of us actually have done advanced care 0:06:02.800 --> 0:06:05.960 planning and have completed advanced directives. That number is actually 0:06:05.960 --> 0:06:09.120 going way up because of COVID nineteen, but still most 0:06:09.160 --> 0:06:11.400 of us haven't done that. But for those who have 0:06:11.600 --> 0:06:13.880 done advanced directors, how do we make sure that they 0:06:13.920 --> 0:06:17.400 actually get followed? I think the first thing is always 0:06:17.520 --> 0:06:20.400 a point an agent. Advanced directives in almost every state 0:06:20.560 --> 0:06:23.240 have two parts. There's the instructional part, where you can 0:06:23.279 --> 0:06:25.880 tell us what treatments you want and what treatments you 0:06:25.920 --> 0:06:29.480 don't want. But then there's also the appointment of agent 0:06:29.520 --> 0:06:32.160 parts to be called a durable power of attorney for healthcare. 0:06:32.560 --> 0:06:35.919 That's probably the more important part, because then you have 0:06:36.040 --> 0:06:38.640 an actual person who can show up and be your 0:06:38.720 --> 0:06:42.320 advocate and make sure that your wishes get followed. And 0:06:42.480 --> 0:06:44.760 you want to appoint somebody who can actually be a 0:06:44.760 --> 0:06:47.920 good advocate, somebody who you trust, somebody who knows your 0:06:47.960 --> 0:06:51.480 values and preferences, and somebody who will be available at 0:06:51.520 --> 0:06:54.080 the relevant time, and you probably want to back up 0:06:54.160 --> 0:06:57.360 in case your primary agents is not available. So that's 0:06:57.400 --> 0:07:00.200 probably the most important things. And then the second thing 0:07:00.200 --> 0:07:03.440 I think is that these cases may already be accomplishing. 0:07:03.480 --> 0:07:07.320 This is there may be more training in healthcare systems 0:07:07.360 --> 0:07:10.760 to make sure that we are carefully documenting and communicating 0:07:10.880 --> 0:07:14.480 patient preferences about their end of life care. What is 0:07:14.520 --> 0:07:19.120 it do not resuscitate law? So do not this is 0:07:19.160 --> 0:07:24.280 another unfortunate problem. Do not resuscitate or d n R 0:07:24.440 --> 0:07:29.400 order um really only pertains to the situation where the 0:07:29.440 --> 0:07:33.720 patient's heart, uh they stop breeding or their heart or 0:07:33.720 --> 0:07:36.680 they are they are they they don't have a pulse, right, 0:07:36.720 --> 0:07:38.880 So it just means that you're gonna it means that 0:07:38.920 --> 0:07:41.840 you're not going to do CPR to try to restore 0:07:41.880 --> 0:07:48.080 the patients a circulation or breathing. So that's it, right, 0:07:48.160 --> 0:07:50.040 That d n R order means we're not going to 0:07:50.160 --> 0:07:54.160 do CPR. So it's it's it's a it's in order 0:07:54.200 --> 0:07:58.160 to not do one specific type of life sustained treatment 0:07:59.720 --> 0:08:02.880 on Fortunately, and there's a lot of studies on this, 0:08:04.000 --> 0:08:08.680 those those orders are overinterpreted, and so we've done many 0:08:08.720 --> 0:08:14.200 surveys of physicians and also nurses m you know, giving 0:08:14.200 --> 0:08:17.440 them hypothetical scenarios and asking them what they should do. 0:08:17.960 --> 0:08:23.080 And unfortunately, many times a clinician seeing that the patient 0:08:23.120 --> 0:08:26.960 has a d n R order and remember it only 0:08:26.960 --> 0:08:29.080 means that you're not supposed to be CPR, but that 0:08:29.120 --> 0:08:34.360 patient would still receive all other sorts of licenstating treatment UM, 0:08:34.559 --> 0:08:36.440 but they would interpret it to mean that the patient 0:08:36.520 --> 0:08:38.679 is comfort measures own right, they're not going to get 0:08:38.720 --> 0:08:43.840 any curative directed treatment or any other life treatment. So 0:08:44.080 --> 0:08:47.360 they they overinterpret the meaning of a d n R 0:08:47.520 --> 0:08:50.360 order and so that that is definitely a patient safety 0:08:51.280 --> 0:08:55.439 risk that also needs to be work done. What is 0:08:55.440 --> 0:08:59.079 the exact law that we're talking about, So there's a 0:08:59.080 --> 0:09:02.600 lot of different laws. There's most states now have a 0:09:02.679 --> 0:09:06.080 pulse law. So in New York it's called a most 0:09:06.280 --> 0:09:11.760 mL LST Medical Orders for Life Sustaining Treatment UM. This 0:09:11.760 --> 0:09:14.200 this and so there's a separate statue in New York 0:09:14.240 --> 0:09:16.280 for this, in a separate statute in many states or 0:09:16.320 --> 0:09:20.920 most states for this UM. And the idea is what 0:09:21.320 --> 0:09:23.920 it is. It is an advanced directive, which is the 0:09:23.960 --> 0:09:27.520 sort of document that was an issue in the Georgia case. 0:09:27.559 --> 0:09:32.880 In some of these other cases, it is just um, uh, 0:09:32.960 --> 0:09:35.720 your wishes, right, it's just a recording of your wishes. 0:09:36.760 --> 0:09:42.840 And the thought maybe twenty years ago was that if 0:09:42.920 --> 0:09:49.040 we we can um better assure that your wishers are followed, 0:09:49.559 --> 0:09:53.840 if we convert the advanced directive into a medical order 0:09:53.920 --> 0:09:57.120 SECT and the idea and that's what that's what a 0:09:57.240 --> 0:10:02.400 pulse is Physician orders for lifustating treatment UM. And if 0:10:02.440 --> 0:10:05.440 it's a medical order set, it's a it's a uniform form, 0:10:05.480 --> 0:10:10.280 it's a simpler form, it's a one page form usually UM. 0:10:10.360 --> 0:10:13.560 And it's since it's since it already is a set 0:10:13.559 --> 0:10:17.560 of medical orders, it's immediately actionable, right, So we don't 0:10:17.559 --> 0:10:19.880 need to look at your advanced directive, figure out what 0:10:19.920 --> 0:10:23.760 you want, and then right orders to implement your wishes. 0:10:24.320 --> 0:10:26.760 The POLST already is a set of medical orders, so 0:10:26.800 --> 0:10:32.000 it's immediately actionable UM. And so that's and and in fact, 0:10:32.000 --> 0:10:36.439 the evidence does show that if you're seriously ill individual, 0:10:37.480 --> 0:10:40.920 it would be a really good idea to not only 0:10:40.960 --> 0:10:44.320 have an advanced directive, but to also have a pulse 0:10:45.200 --> 0:10:48.720 because that better assures that you that your wishes get followed, 0:10:48.920 --> 0:10:52.240 more than just having an advanced directive by itself. So 0:10:52.280 --> 0:10:54.320 when you asked me a second ago, what are the 0:10:54.400 --> 0:10:56.520 things that patients can do to better assure that their 0:10:56.600 --> 0:11:00.439 end of life wishes get respected? For at least the 0:11:00.559 --> 0:11:04.760 seriously ill patient or seriously ill individuals, they should have 0:11:04.920 --> 0:11:11.120 not only an advancedructive but also appolsed. So this discussion 0:11:11.880 --> 0:11:15.280 seems to highlight the fact that this is a very 0:11:15.360 --> 0:11:19.000 confusing area of the law that I think most people 0:11:19.760 --> 0:11:24.880 don't know about. So should doctors be paid for having 0:11:24.920 --> 0:11:29.160 sessions with patients to explain this to them? Yes, a few. 0:11:29.240 --> 0:11:35.240 So most patients, of course that are UM older, their 0:11:35.240 --> 0:11:39.760 primary source of insurance is Medicare, And a few years 0:11:39.760 --> 0:11:46.160 ago UM Medicare did change the physician schedule to allow 0:11:46.920 --> 0:11:53.800 payment for advanced care planning discussions ah and and the 0:11:53.920 --> 0:11:59.880 thought was that would be one way to incentivize doctor 0:12:00.080 --> 0:12:06.000 is to sit down and talk with patients UM about 0:12:06.040 --> 0:12:10.440 their wishes and ideally to in fact completely advanced directive 0:12:10.840 --> 0:12:15.359 and also for the relevant patients to complete a pulse UM. 0:12:15.440 --> 0:12:19.200 So we've had that those two new codes, those two 0:12:19.240 --> 0:12:23.080 new CPT codes to pay for these sorts of discussions 0:12:23.080 --> 0:12:29.839 now for five years UM. Unfortunately, the evidence shows that 0:12:29.920 --> 0:12:35.360 it hasn't um produced the sort of the incentive hasn't 0:12:35.360 --> 0:12:41.320 been strong enough to incentivize the discussions I think in 0:12:41.360 --> 0:12:44.080 the way that was hoped for, right, So we continue 0:12:44.120 --> 0:12:51.360 to see legislation UH designed to provide an even stronger incentive, 0:12:51.520 --> 0:12:53.840 and the bills have done all sorts of things. Sometimes 0:12:54.120 --> 0:12:56.440 the idea where we pay not only the doctors, will 0:12:56.480 --> 0:13:00.760 pay the beneficiary. Right, so if you completely the advanced directive, 0:13:00.800 --> 0:13:04.960 will pay you seventy five m. And the reason to 0:13:05.000 --> 0:13:08.520 do that, by the way, is because we know that overwhelmingly, 0:13:09.559 --> 0:13:11.440 if you ask people what they want at the end 0:13:11.440 --> 0:13:17.720 of life, they would prefer to forego aggressive curative directed 0:13:17.800 --> 0:13:20.200 measures at the end of life and would prefer us 0:13:20.280 --> 0:13:25.480 to die at home on hospice. Unfortunately, that's not what 0:13:25.600 --> 0:13:30.960 happens UM. And so therefore, if we actually provided the 0:13:31.000 --> 0:13:37.760 care that Americans want, we probably would save a lot 0:13:37.800 --> 0:13:40.240 of money. The Medicare would save a lot of money. 0:13:40.600 --> 0:13:43.560 And therefore, by if that incentive work, and I don't 0:13:43.600 --> 0:13:45.760 know if it would, but if we pay people seventy 0:13:45.760 --> 0:13:49.640 five to complete in advance directive, and they actually completed 0:13:49.679 --> 0:13:52.400 an advanced directive and they can complete it any way 0:13:52.440 --> 0:13:54.520 that they want. Right. All all ask you people to 0:13:54.520 --> 0:13:56.719 do is tell us what you want, tell us what 0:13:56.760 --> 0:13:59.920 you don't want. We're not it's your choice. But more 0:14:00.240 --> 0:14:03.640 people in fact would choose, for example, if they were 0:14:03.679 --> 0:14:07.240 permanently unconscious, to say, I wouldn't want to live like that, right, 0:14:07.280 --> 0:14:09.280 you don't need to continue to give me mechanical a 0:14:09.400 --> 0:14:14.080 relation and artificial hydration if I'm permanently unconscious. So most 0:14:14.080 --> 0:14:18.719 people would decline h a lot of care at the 0:14:18.800 --> 0:14:21.240 end of life that they would otherwise be getting if 0:14:21.240 --> 0:14:24.760 they're getting complete and it reinstructive. How important do you 0:14:24.800 --> 0:14:28.320 think it is that these lawsuits are being recognized. Well, 0:14:28.360 --> 0:14:31.120 I think it's very important that these cases. First of all, 0:14:31.120 --> 0:14:34.440 that these cases were brought. Secondly, that they were resolved 0:14:34.440 --> 0:14:37.760 in the way that they were resolved, and third that 0:14:38.160 --> 0:14:42.160 the Boston Globe and Kaiser Health News and you are 0:14:42.360 --> 0:14:48.120 talking about them because um, I think you the message 0:14:48.160 --> 0:14:50.600 needs to be sent that it's worth your time to 0:14:50.720 --> 0:14:54.760 completely reinstructive. I think because if you think, like oh, 0:14:54.800 --> 0:14:57.880 I hear that that hospitals and doctors don't always follow them. 0:14:57.920 --> 0:15:01.600 Sometimes they ignore them, sometimes they lose them. Then then 0:15:01.640 --> 0:15:04.880 of course the natural responses why bother? Right, why bother? 0:15:04.960 --> 0:15:07.800 The completely the instructive because it's probably not going to 0:15:07.840 --> 0:15:10.640 get followed anyway, right, so that it gives people a 0:15:10.640 --> 0:15:13.640 sense of utility. So I think it's important to send 0:15:13.640 --> 0:15:17.520 the message, No, they have a legal duty to follow them, 0:15:18.240 --> 0:15:23.000 um and if they don't, they will be punished. Um. 0:15:23.040 --> 0:15:27.120 And so it is worth your time to complete an advancedructive. 0:15:27.680 --> 0:15:30.520 Thanks for being on the Bloomberg Law Show. That's Daddy 0:15:30.640 --> 0:15:33.280 is Pope, a professor the Mitchell Hamlin's School of Law. 0:15:34.760 --> 0:15:38.200 The thirteenth Amendment is often described as the amendment that 0:15:38.280 --> 0:15:41.640 abolished slavery in this country, but there is a loophole 0:15:41.680 --> 0:15:45.200 that permits slavery as punishment for a crime. It's this 0:15:45.360 --> 0:15:48.520 loophole that more than a dozen human rights and social 0:15:48.560 --> 0:15:52.120 justice organizations want to get rid of, and last month, 0:15:52.280 --> 0:15:55.400 Democratic members of the House and Senate introduced a joint 0:15:55.400 --> 0:15:59.800 resolution aimed at striking that language from the Constitution to 0:16:00.000 --> 0:16:02.960 any means. Michelle Goodwin, a constitutional law professor at the 0:16:03.040 --> 0:16:06.920 University of California, Irvine. For those who don't know, tell 0:16:07.000 --> 0:16:11.280 us about the thirteenth Amendment, all parts of the thirteenth Amendment. 0:16:12.120 --> 0:16:17.920 So the thirteenth Amendment was originally proposed in order to 0:16:19.080 --> 0:16:23.960 end slavery entirely in the United States. This is after 0:16:24.040 --> 0:16:29.480 the Civil War has ended, the Emancipation Proclamation, which was 0:16:29.520 --> 0:16:32.240 a wartime measure, was coming to an end. Many people 0:16:32.320 --> 0:16:37.320 presumed that the Emancipation Proclamation was what ended slavery. It wasn't. 0:16:37.440 --> 0:16:40.520 What Lincoln said is that if you join the Union, 0:16:40.680 --> 0:16:43.120 you may keep your slaves, but if you decide that 0:16:43.160 --> 0:16:46.120 you will not join the Union, then your slaves will 0:16:46.160 --> 0:16:51.480 be freed as of ex date and time. And after 0:16:51.520 --> 0:16:54.920 the Civil War was over, um, there were states like 0:16:55.080 --> 0:16:57.920 Kentucky which had agreed to join the Union um, but 0:16:58.000 --> 0:17:00.720 also got to keep their slaves. And so the thirteenth 0:17:00.720 --> 0:17:03.600 Amendment was to do away with that altogether. But there 0:17:03.640 --> 0:17:09.880 were Southerners, Southern senators, who argued for something different. They 0:17:09.920 --> 0:17:12.680 wanted an amendment, and in fact it was not only 0:17:12.760 --> 0:17:16.119 the ending of slavery. There were some senators that wanted 0:17:16.160 --> 0:17:19.640 something even more aggressive that said that all people are 0:17:19.680 --> 0:17:23.720 created equal, that spoke to human rights basically based on 0:17:23.960 --> 0:17:28.879 what was coming out of France. But the pushback was 0:17:28.960 --> 0:17:34.680 twofold in Congress amongst senators. One there were senators that said, well, 0:17:34.760 --> 0:17:37.560 equality for all would means that women get to be 0:17:37.680 --> 0:17:40.119 equal and our wives get to presume that they're equal 0:17:40.160 --> 0:17:43.680 to their husbands. That can't fly. That could have just 0:17:43.800 --> 0:17:46.840 simply been a ruise, you know, just because they didn't 0:17:46.960 --> 0:17:50.159 want blacks to be equal to white that they taught 0:17:50.200 --> 0:17:53.720 them this would make women equal, but even more sinister 0:17:54.400 --> 0:17:57.760 and more strategic. And what we live with today is 0:17:57.800 --> 0:18:03.080 the punishment clause. There were Southern senators who were slaveholding 0:18:03.280 --> 0:18:06.320 and came from slaveholding families. They said, well, what we 0:18:06.359 --> 0:18:10.040 should actually have is a punishment clause in this which 0:18:10.040 --> 0:18:13.679 says that you're free from slavery except if you have 0:18:13.840 --> 0:18:17.680 been convicted of a crime. It's a very short statement. 0:18:17.800 --> 0:18:20.800 It's nothing lengthy, it's nothing that's filled with paragraphs. But 0:18:20.840 --> 0:18:24.080 it's just that that you remain in slave if you've 0:18:24.200 --> 0:18:27.280 been convicted of a crime. And what's important is that 0:18:28.160 --> 0:18:33.640 every constitutional amendment must be ratified, and that means then 0:18:33.840 --> 0:18:37.800 that these senators went back to their states and then 0:18:37.840 --> 0:18:41.359 the amendment goes state to state for ratification. Well, what 0:18:41.440 --> 0:18:46.560 the Southerners did was to fill up before the amendment 0:18:46.760 --> 0:18:49.160 came to their states and was signed off by their 0:18:49.200 --> 0:18:53.600 local legislatures. They filled their local state books with all 0:18:53.720 --> 0:18:57.520 sorts of crime, so loitering crimes. In some states, it 0:18:57.600 --> 0:18:59.880 was a crime if you were black and you sold rights. 0:19:00.040 --> 0:19:03.000 Crime if you're black and you sold weak, crime, if 0:19:03.000 --> 0:19:05.040 you were black and you stayed in town more than 0:19:05.280 --> 0:19:07.359 x number of days. Crime if you were black and 0:19:07.440 --> 0:19:12.240 a random white person could say your house looks unkimpt um, 0:19:12.520 --> 0:19:16.760 all manner of things that were just random and ridiculous 0:19:16.800 --> 0:19:20.160 that clearly because they did not apply to white were 0:19:20.240 --> 0:19:24.399 intended to bring black people free black people back into 0:19:24.480 --> 0:19:28.720 a condition of slavery. So what happened as a result 0:19:28.800 --> 0:19:33.000 of the ratification of the thirteenth Amendment? So what's the 0:19:33.119 --> 0:19:38.919 ratification then of the thirteenth Amendment. This meant that what 0:19:39.119 --> 0:19:42.200 the punishment clause that in the South they could get 0:19:42.240 --> 0:19:45.920 to business by creating all sorts of crimes and punishing 0:19:45.960 --> 0:19:48.280 black people for these crimes, and that would bring black 0:19:48.320 --> 0:19:53.040 people back into slavery. And the result was that plantations 0:19:53.200 --> 0:19:57.600 actually grew in size after they were larger in some 0:19:57.720 --> 0:20:02.320 states like Louisiana, after slavery then before slavery, because now 0:20:02.400 --> 0:20:07.040 there was a whole different enterprise, and an enterprise that 0:20:07.240 --> 0:20:11.119 was corrupt in many ways. Um in Alabama, it was 0:20:11.200 --> 0:20:16.719 so bad that there were state legislators that investigated wardens 0:20:16.800 --> 0:20:20.320 and police chiefs because they were skimming money off of 0:20:20.359 --> 0:20:24.880 the top. There were in these states you could convict lease, 0:20:25.119 --> 0:20:27.879 which meant that if someone's convicted of a client to 0:20:28.080 --> 0:20:30.560 black kids standing on a corner, much of like the 0:20:30.640 --> 0:20:32.760 kinds of things that we see today, but then you 0:20:32.800 --> 0:20:36.760 know that's loitering, and that loitering could lead to twenty 0:20:36.880 --> 0:20:40.960 or thirty years of incarceration. Clearly, this is about slavery, 0:20:41.480 --> 0:20:46.760 and the state could argue in these instances that well, 0:20:47.280 --> 0:20:49.920 as long as they can pay the fine, they don't 0:20:49.960 --> 0:20:52.560 have to worry about convictions. But it's important to know 0:20:52.640 --> 0:20:55.879 that at those times, these fines were fifty dollars seventy 0:20:55.880 --> 0:20:59.520 five hundred dollars hundred fifty dollars. What white person in 0:20:59.640 --> 0:21:03.920 eight sixty five could afford to pay a fine like that, 0:21:04.080 --> 0:21:07.399 let alone some black person who has just been released 0:21:07.440 --> 0:21:10.120 from the conditions of slavery, who could afford a hunt 0:21:10.160 --> 0:21:13.199 to pay a hundred dollar fine Because he or she 0:21:13.320 --> 0:21:16.439 stood on a corner with two other people talking. Some 0:21:16.520 --> 0:21:20.080 people might say, well, they're not using that provision anymore, 0:21:20.359 --> 0:21:24.200 are they, And they are so. The punishment clause has 0:21:24.400 --> 0:21:31.120 never been repealed, and the punishment clause led to pernicious action. UM. 0:21:31.240 --> 0:21:35.760 The restoration of slavery chain gangs, all of these guys 0:21:35.880 --> 0:21:38.800 of things that look terrible and old people, you know, 0:21:38.920 --> 0:21:43.280 and white black stripes on the side of roads hitting rocks. 0:21:43.400 --> 0:21:46.880 It still continues and persists today. It's never been repealed 0:21:47.240 --> 0:21:50.280 from the United States Constitution. And even more so than 0:21:50.400 --> 0:21:53.439 states adopted it. She had states that had decided that 0:21:53.480 --> 0:21:55.400 they would not be slave states or that they would 0:21:55.400 --> 0:21:57.760 get rid of slavery in their states. Now the federal 0:21:57.800 --> 0:22:01.000 government has placed it in the Constitution, and so slavery 0:22:01.040 --> 0:22:04.440 can thrive in their particular states. In California, the people 0:22:04.480 --> 0:22:09.280 who put out wildfires, people who are incarcerated, incarcerated men, 0:22:09.359 --> 0:22:12.520 incarcerated women, people have died in those conditions. The people 0:22:12.520 --> 0:22:16.199 who have been making masks in prisons in California have 0:22:16.359 --> 0:22:18.600 been women in prison. Do they get the masks? You know? 0:22:19.200 --> 0:22:21.160 In New York, the people who have been making hand 0:22:21.200 --> 0:22:26.520 sanitizer behind bars, UM also these people who have been 0:22:26.560 --> 0:22:29.840 convicted and this is their punishment for a crime. And 0:22:29.880 --> 0:22:31.959 what it is is it's an added layer. Because if 0:22:32.000 --> 0:22:34.359 you've been convicted of a crime, let say, now you 0:22:34.480 --> 0:22:39.639 stole somebody's purse, your punishment is actually that. Well, now 0:22:39.760 --> 0:22:44.440 you are either on probation or or parole, or you've 0:22:44.440 --> 0:22:48.000 been sentenced uh to jail, and you've been taken away 0:22:48.000 --> 0:22:50.760 from your family. But this is where the state adds 0:22:50.840 --> 0:22:53.800 onto it. Not only have you been taken away from society, 0:22:53.880 --> 0:22:56.119 not only do you have this mark on yourself that 0:22:56.200 --> 0:22:59.280 you were convicted for having stolen that purse, but now 0:22:59.320 --> 0:23:02.320 in addition to that, will make you do this labor 0:23:02.480 --> 0:23:06.160 for free. Um not pay you anything, but charge you 0:23:06.680 --> 0:23:09.399 as if you were at a luxury hotel. And many 0:23:09.440 --> 0:23:13.280 people don't understand or see that prison is not free. 0:23:13.320 --> 0:23:17.000 It's not as if people are just getting um free 0:23:17.080 --> 0:23:19.600 meals and and free all of these things. In many 0:23:19.640 --> 0:23:23.359 states they make you pay for exactly what you have 0:23:23.480 --> 0:23:26.080 been confined to. Your toothpaste is and free. You have 0:23:26.160 --> 0:23:28.960 to pay in commissary. Your telephone calls to your family 0:23:29.280 --> 0:23:30.920 not only are they not free, but you're going to 0:23:31.000 --> 0:23:34.360 pay more than anybody else in America for that phone call. 0:23:34.720 --> 0:23:36.960 And yet at the same time, the state will put 0:23:37.000 --> 0:23:40.080 you to work. In some instances you might get paid, 0:23:40.119 --> 0:23:42.560 but get this, you may be paid only one cent 0:23:42.920 --> 0:23:46.040 per hour, maybe it will be ten cents per hour. 0:23:46.400 --> 0:23:48.919 And what you're doing are things that are intended to 0:23:48.960 --> 0:23:52.080 be a punishment. Now, let's make clear. In some states 0:23:52.560 --> 0:23:56.080 it may be that people want to opt in UM 0:23:56.160 --> 0:23:58.800 so that they can get some training and skills. But 0:23:59.000 --> 0:24:02.199 here's another per initious aspect events and and that is 0:24:02.200 --> 0:24:06.200 the following, which is that when these individuals get out, 0:24:06.280 --> 0:24:10.200 they have the mark of being incarcerated on them. We 0:24:10.400 --> 0:24:14.080 punish people by having them mark the box whether they've 0:24:14.119 --> 0:24:17.720 been incarcerated. And when you mark the box, for many industries, 0:24:17.800 --> 0:24:21.240 that means that you cannot be gainfully employed afterwards. It's 0:24:21.280 --> 0:24:24.400 a dark mark of X. Do not hire this person. So, 0:24:24.560 --> 0:24:28.119 even under the understanding that this helps you when you 0:24:28.200 --> 0:24:31.119 get out, it turns out the work hasn't been done 0:24:31.400 --> 0:24:34.959 privately or publicly to help people in that regard. And 0:24:35.040 --> 0:24:39.960 let's be clear, we're talking about fortune hundred companies. They're 0:24:40.040 --> 0:24:43.720 using prison labor, but not making a pathway for these 0:24:43.760 --> 0:24:48.160 individuals after incarcerations. To work in their companies. So tell 0:24:48.240 --> 0:24:53.800 us about UM. Senator Murkley's resolution. What he's proposing. So 0:24:53.880 --> 0:24:59.440