Monthly Archives: April 2015

Gone to the Dogs in Massachusetts

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Gone to the Dogs: Service Animal Law and Leash Law in Massachusetts

Sometime last year, in the small town of Oxford Massachusetts, a Veteran with a service dog entered a restaurant. The restaurant was very small and very local. The restaurant owner was also a local business man. The restaurant owner didn’t know the Veteran and visa versa. Neither did the restaurant owner know why the dog came into the restaurant with the Veteran, a very average looking man. The Veteran wasn’t blind.  He didn’t appear physically disabled.  The Veteran had no physical impairments, visible to most people.  Unfortunately, this is where the trouble started.

Apparently, the service dog was not appreciated inside the restaurant owners place of business.  People were eating there.  Food was prepared there.  The restaurant owner was so concerned, that he asked the Veteran to remove his dog.  The Veteran protested.  The Veteran tried to explain his situation and the circumstances.  The restaurant owner didn’t believe him.  Others chimed in. It all turned into one big mess. According to local news stories, the restaurant owner did not understand why the service dog was required by the Veteran or what the Veteran’s motivation for having the dog inside was.

Even so, this one simple transaction turned into a situation. It wasn’t pretty. The restaurant owner and the Veteran exchanged words. People were angry. The Veteran was asked to leave. Then, the police were called in. The Restaurant owner was upset, very upset. Patrons left the restaurant.

The next day, all the nasty details were reported in the local news paper. The news sparked even more interest. Dog owners, people with disabilities and Veterans from far and wide formed groups to protest the tiny restaurant in Oxford. Dogs dogs and more dogs, come with dog owners to voice their opinion. A few people sided with the restaurant owner. Even so, bad publicity is never a good thing. The restaurant owner lost customers. The bad publicity was not good for business and embarrassing to say the least.

In this instance, the service dog was used as not only a companion for the Vet but a tool to help him manage his disability, post traumatic stress disorder. The Veteran’s PSTD was a medical condition, directly related to his service. The restaurant owner never heard of this before. The restaurant owner made an incorrect assumption that the Veteran was not disabled.

Eventually, after a few very emotionally charged discussions, the restaurant owner apologized.  His apology was made public.  The public apology was a newsworthy story of success and communications, based on the efforts of the Veteran and the restaurant owner.  The Veteran accepted the apology.  They both shook hands. The Veteran and his service dog were welcomed back into the restaurant. The two became friends.

Eventually, life went back to normal in this sleepy little Massachusetts town in Southern Worcester County. People stopped protesting. Newspapers stopped reporting. Oxford returned to its regular state of normalcy.

This story sheds a little light into various legal reasons why someone would need to have a dog in a public place. It also sheds light as to a few things a dog owners must consider, before they bring their dogs into public places. Every town or jurisdiction in Massachusetts has important local rules or regulations pertaining to health, housing, service dogs and pets.

Other important laws regarding dogs or “service animals” can be found in the Americans with Disabilities Act (“ADA”) the Fair Housing Amendments Act (“FHAA”) and the Air Carrier Access Act (“ACAA”). It’s important to have a good understanding about these laws, especially if you are a dog owner and a business owner.

The Federal Code of Regulations (“CFR”) provides an understand of terms like, public accommodations and service animals. According to Title 28 CFR Section 36.302, business owners must make public accommodations to serve people with disabilities and those with limited capacity to access services. Subsection (c) talks about Service Animals. Service “animals” includes service dogs. The Veteran’s dog, who entered the Oxford restaurant with the Veteran, was a licensed service dog. Generally, people with disabilities have documentation that shows a dog is a service dog. If need be, service dog handlers should be able to present service dog identification to public business owners.

Generally, a public accommodation is the modification of policies, practices or procedures that allows people with disabilities to use their service animal on the premises. Under the CFR, a store or business owner should do whatever is reasonable to permit service animals onto their business premises so that the service animal can help the disabled person shop and conduct business as best they can. This is the right thing to do.

There are only a few exceptions as to why a business owner may exclude a service animal, under CFR law.  First, a service animal can be excluded if the service animal is out of control. If the animal’s handler does not take effective action to control the animal, the business owner may ask the service animal and the handler or owner, to remove the animal. In this situation, the business owner is not required to make a public accommodation for the service animal.

Next, if a service animal is not housebroken, for example a dog urinates or defecates in unacceptable areas, the store owner is not required to accommodate that service animal. This makes sense. Another exception is that a business or store owner is not required to accommodate the disabled person in caring for or supervising the service animal. In other words, the owner/handler is responsible for supervision of their own service animal if they want to take the service animal in public places.

Another key aspect of service animal law is that a service animal under must be on leash, harness, or other tether. If the handler is unable to put the animal on a leash or harness or tether, because it is not safe for the service animal, then the service animal must be under the handlers control by some other means. Again, in another sense, this means that if the owner/handler can not control the service animal, the animal may be excluded from the business premises. Examples of this sort of legal control are voice, hand signals or some other effective means of control. There is lots of guidance and case law on means of control.

For dog owners in general, it is important to note that federal law does not always trump local leash laws or ordinances. Many Massachusetts town ordinances and state laws regarding leash laws differ and are dependent upon each situation. This means that each fact pattern, or individual situation, can be different and may involve alternative duties, responsibilities and liabilities. If you are unsure about the leash laws and dog ordinances in your particular jurisdiction and situation, ask an attorney. Your attorney should be more than happy to research the laws for you and help you to understand how to obey your local laws in your area.  Taking to your attorney is a good way to become a more informed and responsible dog owner.

When I was growing up, I had the opportunity to watch service dogs being trained in the streets and on the sidewalks in Morristown, NJ. A school for service dogs for the blind was nearby.  Watching service dogs being trained was a beautiful sight. The dogs were harnessed and steady. They peered into the eyes of their handlers. The dogs were lively, yet always sat when asked and at the appropriate times.  The dogs walked quietly. They always stayed close to their handler. Unlike most dogs I’ve ever seen, these dogs didn’t randomly sniff at people and bark at things. The service dogs did not jump. There was no dog feces or urine in any public places. Never did these dogs intimidate or scare people or children. They didn’t even bark at other dogs.

Service dogs at work ignore all sources of stimulation, like other dogs, children and food. Service dogs are attentive, only to their handlers and the work they do in each moment.  Watching service dogs and their handlers is a treat.

I remember once walking up to a service dog, wanting to pet the dog.  I was about 10 years old at the time.  My mother told me, no.  I was a bit crushed, because I really love dogs, so I asked my mother why?  My mother explained to me that often handlers of service dogs ask visitors not to touch or pet the service dog. I understood and listened to my mother. I also wanted to encourage the dogs to be good. From that point on, I never touch a service dog unless I first get permission from the dog’s handler or owner.  I do this for all dogs now, hoping to help all dogs mind their manners.

Because I am an adult now, and an attorney, I understand most laws and policies of service dog handlers.  When service dogs are “at work,” they must be allowed to remain quiet and attentive to their handler. Petting the dog is a big distraction. This is important to know, for both dog owners and non dog owners.

The CFR discusses what to do when a store owner or business owner, for good reason, is unable to make a reasonable accommodation for the disabled person’s service animal. According to the Code, if a public accommodation properly excludes a service animal under 28 CFR Section 36.302(c)(2), the business shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises. This means that the store owner has a legal duty to assist and accommodate the disabled person, reasonably, even if store owner or handler must keep the service animal off the premises for whatever reason.

Appropriate, respectful and lawful exclusion or inclusion of dogs in and out of business is the right thing to do. This does not mean all dogs must be legally accommodated in all places. Each situation is different, under the law. It is not always appropriate, lawful or prudent to take your dog shopping in most public places. Massachusetts state and local health and housing regulations may prohibit pets, animals and dogs from many public places. Likewise, not all dogs can be excluded from public places and businesses, with only a few exceptions.

In Massachusetts, civil laws may impose strict liability onto dog owners for any and all harm to others or property, caused by the dog they own. This means that if a dog causes harm or damage to people or property in Massachusetts, the owner of the dog will be held liable for any damages. Dog owners also have a legal duty to prevent their dogs from harassing or frightening others. This includes not permitting your dog to frighten children with sensitivities and people with disabilities. It is also important for dog owners to know, property owners are not legally obligated to accommodate dogs, unless they are service animals.  Then, there are local leash laws.

The town of Charlton Massachusetts is the town my law office is located.  In Charlton, dogs are not permitted to be outside without a leash or a harness.  Dogs must be on a leash, even when the handler or owner is not the property owner. Property owners have a duty to keep all dogs visiting their property on leash, even when property owners don’t own any dogs. Property owners failing to keep all dogs on-leash, visiting or otherwise, may face legal consequences. Although it may seem different or strange, obeying leash laws in Charlton is the responsibility of property owners in Charlton. The same type of leash law ordinance applies to West Brookfield, Oxford and Dudley, Massachusetts and other cities and towns.

Leash laws are one reason why it’s a good idea for dog owners to talk to the host or property owner when visiting, before bringing dogs on the premises. Before allowing your dog off-leash in any area, communicate with host or check the policy of the property owner. Good dog owners not only genuinely care for their dogs, they care about people. Responsible dog owners learn what to do in each situation, before bringing their dog.

Personally, one of my favorite past-times is walking near the Buffamville Dam in Oxford. This is a good spot for me to get my doggie fix.  Almost always, someone is walking their dog.  I ask if I can pet most all dogs on leash.  This is fun, to me.  It’s also fun for families and children to play at the park and at skateboard parks in Charlton and Oxford. Wherever permitted, dogs are found on-leash.  Attending local football games or taking a child to the YMCA playground in Southbridge is an awesome experience.  Keep in mind, however, it’s not always wise or permissible to bring a dog.

If it isn’t permissible, reasonable, healthy or legal to take your dog to a public place, think twice. Summer is upon us. I’ts time to enjoy the outdoors.  Bring your dog to outdoor places only when it makes sense.  Show respect for others.  Showing respect is not only good for you, it’s best for your dog.

If you are a business owner or a pet owner, and you do not fully understand your legal rights, the health regulations, the story of the Oxford restaurant owner and the Veteran is a very good lesson. Local leash laws and dog ordinances, and laws about service dog accommodations are important to know. Please, talk to your attorney if you need help in any of these areas of the law. Being concerned about others is good for business. Knowing the law and our responsibilities under the law is our duty and a good way to gain trust and respect from others. Trusted and respected business owners in Massachusetts are such a great benefit.

If you are a pet owner or dog owner or have been harmed in some way because of an out-of-control animal or a dog, please call your attorney right away. Consider the statute of limitations law in your jurisdiction. Plan to contact your attorney before the time to take legal action runs out.

If you need an attorney, and need experienced and approachable help, feel free to call our office. We are here for you. All consultations are confidential. First consultations are free.

Enjoy your spring.  Enjoy your summer.  Enjoy your dog and the great outdoors!

About Artist Annie Saliness 

The artist who painted the featured illustration “Herbie” is Annie Saliness.  Annie is an Artist full of hope, grit and true artistic talent. During her career, Annie had a stroke which took away her ability to use her right hand and more.  Annies’ struggles, triumphs and victories over her disability and other things, is a wonderful story. Annies story is as beautiful as her art. To read more about Annie, her triumph over adversity and more, follow this link > http://www.oregonlive.com/north-of-26/index.ssf/2012/10/cedar_mill_artist_annie_salnes.html

More of Annie’s artwork can be found on Annie’s website at http://www.anniesalness.com.  Take a look at Annie’s art and things. You’ll be glad you did.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit, www.attorneykelly.squarespace.com or http://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under animal law, business law, civil law, Massachusetts law, Massachusetts town ordinance law

Hidden Truth, Legal Rights for Chimps

Photo Credit: Reuters

Photo Credit: Reuters

The hidden truth about legal rights for Hercules and Leo, the NY Chimpanzees making history 

There is great speculation that two Chimpanzees from Long Island NY have been given special human legal rights by a Supreme Court Justice.  The Court issued a Habeas Corpus.  Does this now mean that the chimps are legal persons?  Are the chimps legally obligated to comply with the court order?  There’s a hidden secret, a secret truth, which will tell us the answer about how human legal rights can work for chimpanzees, under the law. The secret is hidden in the law of the Habeas and by the nature of how the Court works.

This case involves an animal rights type of legal action involving the question of protection for two chimpanzees, Hercules and Leo.  Animal rights activists, the Nonhuman Rights Project, are the plaintiffs.  Stony Brook University, Long Island NY and the president of Stony Brook University, Samuel M. Stanley Jr., MD, are the named defendants.  The defendants are the legal owners of the chimps and are holding them in captivity, the crux of the legal issue for the animal rights activist plaintiffs.

On April 20, 2015, a Writ of Habeas Corpus (“Habeas”) was issued by the Supreme Court Justice in this case, Barbara Jaffee.  The legal question involves why the University should be legally permitted to hold in captivity, the chimpanzees Hercules and Leo.  The Habeas was intended to serve justice in this matter.

A Writ of Habeas Corpus is a court order, mandating or commanding that the custodian of a prisoner (person/human) must release the prisoner and bring them up into court and show cause why the prisoner should remain in lawful imprisonment. In Blacks Law Dictionary and other Law Dictionaries, Habeas Corpus is a Latin legal term of art meaning, “bring up the body.”

In the case of Hercules and Leo, the Habeas compels their captor, Stony Brook University, not the chimps, to release the chimps from captivity.  It allegedly hails the chimps, the “alleged” prisoners to bring them into Court (as a practical matter, they are to be released from “bondage”, or captivity).   The Habeas also compels the defendants to show cause (give a good reason) why they should continue to hold Leo and Hercules in captivity.  This is what the Habeas means, in the context of this trial.

The Habeas gives the defendants a choice.  Bring up the prisoners, by releasing them from bondage, or show the court why the chimps should continue to be legally held. This is what must be done.  The Habeas is a tool, typically used in criminal trials when prisoners need to be hailed into court for things like arraignment, suppression hearings and other hearings and at trial.

In order to understand whether or not the Habeas imparts some special human right upon chimps, we must examine the intent of Justice Jaffee, the nature of the Habeas and a few other things, discussed by the following three points.

Point #1:  If animals were given human legal rights, consider the practical and legal impact upon the US court system.

If one small human right was given to any animal, like a train with many cars, others will follow.  Giving animals a Habaes is one thing, but giving them legal rights to be treated like prisoners doesn’t mean giving them the right to vote the right to a fair trial or other things reserved for humans.  There’s the legal right to a jury of one’s peers to face your accusor, and on and on and on.  These issues are not likely a Pandora’s box of legal and practice problems Justice Jaffee intended to open.

It’s a dangerous slippery slope.  Would a jury box full of chimpanzees be something Justice Jaffee had in mind? What would be the cost?  Are we to re-invent the ballot box, making it suitable for chimpanzee fingers and toes? How would a fish take the witness stand?  Then there is the matter of a fair and impartial court interpreter. Imagine, a chimpanzee court interpreter, wearing pants – not so easy to unthink.

Indulge your imagination.  Should dolphins be given the right to a fair trial, simply because they are intelligent and highly social creatures?  Where would an Elephant sit in the jury box?  You got it.  An elephant would sit anywhere he wants!  All kidding aside, if animals were given legal rights, our court system and legal system would be a mess.  Government would become chaotic and obsolete. Furthermore, giving animals human legal rights is nothing short of tyranny for animals.

Point #2:  If animals were given human legal rights, the intent of lawmakers would be abolished.  

Human rights, basic and essential legal rights, are provided for humans by humans.  The courts were made by humans for humans. Animals did not create our legal system.  The legislative intent of our court systems, our law, is to keep order and maintain justice for humans, not animals.  Our legal system was made to provide justice, not chaos.  Chaos is quite the opposite of justice.

The human interpretation and concept of courtroom is important. Chimpanzees and other animals stand a good chance of not behaving like humans in court.  Chimps, like most animals, tend to have great difficulty controlling their urges and behavior.  Seldom do animals conduct themselves like humans. Seldom do animals behave like humans would expect or require, in a courtroom situation, to maintain order.  Animals are unpredictable, to varying degrees.  Lack or order is chaotic.  Humans need courtroom decorum and order, to perfect justice. Animals, maybe not so much.

Chimpanzees, if they were forced to comply with our court system, could not do so without severe and potentially bazaar legal outcomes. For example, in the matter of Travis the Chimp from Connecticut, a 200 lb. Chimpanzee decided to brutally rip the face and hands off of Charla Nash, his owner’s friend. If Travis the Chimp were still alive, should Travis have been given a jury of his peers? Would justice be served if  Travis was sentenced to death or life in prison? Would Travis be eligible for parole or appeal after appeal? Bringing chimps to court is not likely beneficial nor the intent of our legislatures. Giving chimps legal rights was not the likely intent of Justice Jaffee.

Furthermore, animals do not need humans. Animals govern themselves, however cruel we may think nature can be. Animals have basic ways of establishing their own social order. In the context science, animal social order is amazing. Groups of primates great each other in a certain way to invoke peace. Dolphins swim together in schools to catch fish. Gorillas groom each other to stay healthy and show acceptance.

Intelligent creatures like dolphins, primates and gorillas do quite well, without human intervention. This is essentially why Justice Jaffee probably does not intend to interfere with the social order of primates. In essence, justice is served best by allowing creatures to just be themselves.  Humans have done enough damage to animals.  As a matter of justice, humans have no business giving human legal rights to chimps.  Human intervention is one reason why it is said that Travis the Chimp did what he did and a big reason why why the law suit regarding Leo and Hercules is underway.

Furthermore, history has shown that it’s not always a good idea to tamper with the social order of other societies, unlike ours. This holds true for people as well as animals. Animals do a good job of establishing their own social order.

In the context of our human government, humans are expected to care for animals, that’s pretty much it. Humans have no obligation to create social conditions where animals are expected to conform to human behaviors, duties and expectations. Placing animals outside of their own animal-based social order places animals at risk. When humans take chimps outside of their own social order, law suits ensue, and animal rights activists get involved. Animal rights activists contend that humans have destroyed the chimps Hercules and Leo and they deserve a better life, outside of confinement.

But in the context of human government, laws were not intended to place animals on the same legal playing ground as humans.  This is not humane or sound.  Cruelty toward animals not only involves captivity but capacity.  Animals, like children, for varying reasons lack legal capacity.  Indeed, maintaining the intent of the law, designed by humans for humans, is inline with the intent of Justice Jaffee.

Point #3:  If animals were given human legal rights, the NY Habeas would not serve justice or invoke a correct result.  

The essential “secret” why Justice Jaffee ordered the Habeas for Hercules and Leo is in the way she used the Habeas.  She used the Habeas like a tool, a legal instrument.  This tool, if you will, insures that justice will be served.  Justice Jaffee used the Habeas to command the release of the chimps, probably into an animal sanctuary.  Because of the Habeas, unless the Defendants prove there is any legal and permissible exception to the release, Leo and Hercules will remain free in a safe place. The Chimps will remain precisely where Justice Jaffee believes they should be, for now.  She used the Habeas as a tool to invoke justice and compel a correct result.  The Habeas is a very powerful legal instrument, indeed.

Even so, granting the Habeas seems a little unorthodox, especially in a matter involving chimpanzees.  Justice Jaffee is quite clever.  If her intent was to use the Habeas to give the chimps some special human legal right.  If she did, the result would be unjust. On the contrary, Justice Jaffee used a legal tool within her power to compel the defendants do the right thing. Justice Jaffee used the Habeas as a tool to insure that justice is served.  In this way, the Habeas was used like an instrument, a tool to ferret out truth and compel legal order.

It’s reasonable to assume that Hercules and Leo will be in a better place, like an animal sanctuary.  The Chimps probably will not be hailed into court. They won’t be asked to testify. Justice is served by the Habeas, nothing more.  If the Chimps are not released, the defendants go directly to jail, do-not-pass-Go, end of story.

This is the other reason why Justice Jaffee used the Habeas.  The Habeas switched the burden of proof off the plaintiff’s shoulders and onto the defendants.  Now, the defendants must now show the court why it is legal for Leo and Hercules to be held in captivity by the University.  If Justice Jaffee didn’t use the Habeas, the plaintiffs bear this burden.  Legal tools, like a Habeas, are used all the time to create an environment to do what must be done.

Obviously, Justice Jaffee wanted to hear Stony Brook’s side of the story first and have the chimps released, for a time. The real issue is not whether Hercules and Leo have been given a legal right, just like humans.  Animal rights laws protect animals from cruel treatment by humans. This is how it is.  This is how the law works. The real issue has to do with the truth and the spin some would place on this subject.

The Nonhuman Rights Project (NhRP) and Science Magazine and others want people to think chimpanzees have been given legal rights reserved for humans.  For readers, this sort of story is delightfully strange.  It is an unusual and newsworthy story about animals.  Unfortunately, it’s not about the truth. Statements like, for the “first time in world history,” a judge has recognized two chimpanzees being used for research purposes as “legal persons” and granted them a Writ of Habeas Corpus, are simply untrue. Statements like these put a spin on court case news. It’s a matter of news hype. News hype is intended to draw attention and stir our emotions.  News hype also invokes discussions and raises eyebrows. Discussions are not all that bad.  In fact, news is good.

So now you know the big secret. The truth is out.  It’s not about Chimps being given human legal rights. We aren’t reinventing our entire legal system. It’s not all that sensational. The secret is about the truth and how a New York Supreme Court Judge chose to use a legal instrument, the Habeas. The truth is found by the nature of the Habeas.  The truth lies in how the Habeas was used. The Habeas hopefully, will produce a fair and just result for everyone. This is truth.

Truth is good.  Rooting out the truth is what courts are all about.  Law is about truth. Law is what I do. Visit the about page of my website to find out more, www.attorneykelly.squarespace.com/about/ 

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit, www.attorneykelly.squarespace.com or http://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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To be or not to be? The death penalty question.

To be or not to be? The death penalty question..

Comments Off on To be or not to be? The death penalty question.

Filed under Death Penalty, Law, Legal, Lethal Injection, Massachusetts, Trending, Trial

To be or not to be? The death penalty question.

death-penalty1

Photo credit to Stephenhicks.org

In wake of the Dzhokihar Tsarnaev jury verdict, the trend around social media is whether or not the death penalty should be abolished in the United States. No one is immune from the stories, the questions, the buzz, especially in Massachusetts.

Is the death penalty constitutional?  Does the death penalty deter crime?  Is the death penalty fair and just?  Is the use of the death penalty for sentencing, in all or some circumstances, considered cruel and unusual punishment under the Eighth Amendment of the United States Constitution and the Laws of the States?  What about people with mental incapacitates and serious IQ issues?  Should they die too?  Does race or economic status play a role? What about botched lethal injections and firing squad issues?  Then there’s the trendy “did you knows.”

Did you know that thirty two (32) US states plus the Military and the Federal government still have the death penalty?  Did you know that in 2013, the average murder rate of death penalty states was 4.4, while the average murder rate for states without the death penalty was only 3.4?  Did you know that since 1973, over 140 people on death row in the US have been found innocent and exonerated from their crimes?  It’s a lot to think about.

Because it is a lot to read, a lot to think about and Massachusetts inquiring minds can’t wait to know, below is a relatively brief state-by-state compilation (the low-down) of a few interesting facts on death penalty, lethal injections and so on.  Most of the information gathered is strictly online news and op-ed articles, so don’t rely upon it for anything substantial like a doctoral dissertation or expert opinion. The Death Penalty Information Center is a very good resourse for most Death Penalty facts.  Please keep in mind, this information has not been verified or fact-checked or cite-checked (see disclaimer, below).

The best way to absorb all this information is to look at it from top to bottom.  Just skim, don’t read it all.  You can then go back to look at the facts for the state or topic you like.  If you like, check out a trend that’s interesting and and compare, like murder rate.  If you want to learn more, come back.  Read an article or two later.  It’s a lot to absorb in one fell swoop.

“To be or not to be” is the real death penalty question.  Decide for yourself and take away a few cocktail party or BBQ cook-out talking points.

Please feel free to comment or question.  There is so much to talk about.

*Note: The Murder rates, below, are per 10,000 people in 2013.

Alaska – Murder rate* – 4.6; [No Death Penalty; Number of Executions Since 1976 – 0]

Alabama – Murder rate* – 7.2; Current death row population: 198 (5 are women); Method: Choice of injection or electrocution; Death Penalty Crimes: Intentional murder with 18 aggravating factors (Ala. Stat. Ann. 13A-5-40(a)(1)-(18))

Arkansas – Murder rate* – 5.4; Death row population: 34 (0 are women); Method: Injection or choice of Injection or electrocution for crimes after 1983; Death Penalty Crimes: Capital murder (Ark. Code Ann. 5-10-101) with a finding of at least 1 of 10 aggravating circumstances; treason.

Arizona – Murder rate* – 5.4; Death row population: 124 (3 are women); Method: Injection / Choice of Gas Chamber if sentenced before 11/92; Death Penalty Crimes: First-degree murder, including premeditated murder and felony murder, accompanied by at least 1 of 14 aggravating factors (A.R.S. § 13-703(F)).

California – Murder rate* – 5.4; Death row population: 743 (19 are women); Method: Injection / Choice of Gas Chamber; Death Penalty Crimes: First-degree murder with special circumstances; sabotage; train wrecking causing death; treason; perjury causing execution of an innocent person; fatal assault by a prisoner serving a life sentence. Trending: California’s stay of executions requiring lethal injections resulting in overcapacity of death row prison, according to a March 30, 2015 LA Times news article.  

Colorado – Murder rate* – 3.4; Death row population: 3 (0 are women); Method: Injection; Death Penalty Crimes:First-degree murder with at least 1 of 17 aggravating factors; first-degree kidnapping resulting in death; treason.  Trending: CBS News: Colorado has no moratorium on the death penalty as the jury deliberates on the verdict of Colorado movie theater shooter, James Holmes.   In an April 17, 2015 poll by WBUR, the death penalty is becoming increasingly unpopular.

Connecticut – Murder rate* – 2.4; [Abolished the death penalty in 2012]

District of Columbia – Murder rate* – 15.9; [Number of Executions Since 1976 – 0]

Delaware – Murder rate* – 4.2; Death row population: 17 (0 are women); Method: Injection or choice of injection of hanging for offenses prior to 6/13/86; Death Penalty Crimes: First-degree murder (11 Del. C. § 636) with at least 1 statutory aggravating circumstance (11 Del. C. § 4209). Trending: April 1, 2015, Delaware Online states, the Delaware ex-prison warden says the Delaware death penalty creates an immeasurable burden on the prison system and doesn’t make the guards any safer.

Florida – Murder rate* – 5; Death row population: 403 (4 are women); Method: Choice of Injection or Gas Chamber; Death Penalty Crimes: First-degree murder; felony murder; capital drug trafficking; capital sexual battery. Trending: The US Supreme Court has granted cert to consider the constitutionality of Florida’s sentencing scheme for capital cases and the use of the death penalty for mentally disabled criminals. Unlike Ohio and Oklahoma, no stay of executions has been granted in Florida as of March 9, 2015, according to a US News March 9, 2015 article.

Georgia – Murder rate* – 5.6; Death row population: 87 (1 are women); Method: Injection; Death Penalty Crimes: Murder with aggravating circumstances; kidnapping with bodily injury or ransom when the victim dies; aircraft hijacking; treason. As of March, 2015, the Georgia Department of Corrections announced a moratorium on executions due to the difficulty in acquiring lethal injection drugs.

Hawaii – Murder rate* – 1.5; [Number of Executions Since 1976 – 0]

Idaho – Murder rate* – 1.7; Death row population: 11 (1 are women); Method: Injection; Death Penalty Crimes: First-degree murder with aggravating factors; first-degree kidnapping; perjury resulting in the execution of an innocent person.

Illinois – Murder rate* – 5.5; [Abolished the death penalty in 2011]

Iowa – Murder rate* – 1.4; [Number of Executions Since 1976 – 0]

Indiana – Murder rate* – 5.4; Death row population: 14 (1 are women); Method: Injection; Death Penalty Crimes: Murder with 16 aggravating circumstances (IC 35-50-2-9).

Kansas – Murder rate* – 3.9; Death row population: 10 (0 are women); Method: Injection; Death Penalty Crimes: Capital murder with 8 aggravating circumstances (KSA 21-3439, KSA 21-4625, KSA 21-4636). Trending: According to ScotUS, a stay of current executions in Kansas due to the Monday, March 30, 2015 U.S. Supreme Court decision to grant review of three Kansas death penalty cases based on the constitutionality of the death penalty imposed for the mentally disabled.

Kentucky – Murder rate* – 3.8; Death row population: 35 (1 are women); Method: Injection for those sentenced on or after 3/31/98, Injection or Electrocution for those sentenced prior; Death Penalty Crimes: Capital murder with the presence of at least one statutory aggravating circumstance; capital kidnapping (KRS 532.025).

Louisiana – Murder rate* – 10.8; Death row population: 85 (2 are women); Method: Injection; Death Penalty Crimes: First-degree murder; treason (La. R.S. 14:30 and 14:113). Trending: March 30, 2015 NYT article reported, the US Supreme Court heard oral argument in a Louisiana case that presented questions on the role of the federal courts in determining whether a state prisoner who faces the death penalty has intellectual disability. In March, 2015, three Prosecutors in Louisiana, responsible for 75% of Louisiana’s death sentences, facing prosecutorial misconduct charges, according to the New Orleans Advocate.

Maryland – Murder rate* – 6.4; [Abolished the death penalty in 2013]

Massachusetts – Murder rate* – 2; [Number of Executions Since 1976 – 0]

Maine – Murder rate – 1.8*; [Number of Executions Since 1976 – 0]

Michigan – Murder rate – 6.4*; [Number of Executions Since 1976 – 0]

Minnesota – Murder rate – 2.1*; [Number of Executions Since 1976 – 0]

Mississippi – Murder rate – 6.5*; Death row population: 48 (2 are women); Method: Injection; Death Penalty Crimes: Capital murder (Miss. Code Ann. § 97-3-19(2)); aircraft piracy (Miss. Code Ann. § 97-25-55(1)).

Missouri – Murder rate – 6.1*; Death row population: 35 (0 are women); Method: Choice of Injection or Gas; Death Penalty Crimes: First-degree murder (565.020 RSMO 2000).

Montana – Murder rate – 2.2*; Death row population: 2 (0 are women); Method: Injection; Death Penalty Crimes:Capital murder with 1 of 9 aggravating circumstances (Mont. Code Ann. § 46-18-303); aggravated kidnapping; felony murder; aggravated sexual intercourse without consent (Mont. Code Ann. § 45-5-503).

Nebraska – Murder rate – 3.1*; Death row population: 11 (0 are women); Method: Injection; Death Penalty Crimes: First-degree murder with a finding of at least 1 statutorily-defined aggravating circumstance.

Nevada – Murder rate – 5.8*; Death row population: 77 (0 are women); Method: Injection; Death Penalty Crimes: First-degree murder with at least 1 of 15 aggravating circumstances (NRS 200.030, 200.033, 200.035).

New Hampshire – Murder rate – 1.7*; Death row population: 1 (0 are women); Method: Injection or hanging if injection is not possible; Death Penalty Crimes: Murder committed in the course of rape, kidnapping, drug crimes, or burglary; killing of a police officer, judge or prosecutor; murder for hire; murder by an inmate while serving a sentence of life without parole (RSA 630:1, RSA 630:5).

New Jersey – Murder rate – 4.5*; [Number of Executions Since 1976 – 0]

Nevada – Murder rate – 5.8*; Death row population: 77 (0 are women); Method: Injection; Death Penalty Crimes: More research is required.

New Mexico – Murder rate – 6*; [abolished the death penalty in 2009]

New York* – Murder rate – 3.3*; [New York abolished the death penalty in 2007]

North Carolina – Murder rate – 4.8*; Death row population: 158 (4 are women); Method: Injection; Death Penalty Crimes: First-degree murder (NCGS §14-17) with the finding of at least 1 of 11 statutory aggravating circumstances (NCGS §15A-2000).

North Dakota – Murder rate – 2.2*; [Number of Executions Since 1976 – 0]

Ohio – Murder rate – 3.9*; Death row population: 145 (1 are women); Method: Injection, 1-drug protocol; Death Penalty Crimes: Aggravated murder with at least 1 of 10 aggravating circumstances (O.R.C. secs. 2903.01, 2929.02, and 2929.04). Trending: April 8, 2015, Cleveland.com mentioned changes to Ohio’s lethal injection protocol are being considered in the wake of the botched execution of Dennis McGuire which resulted in the postponement (stay) of all executions in Ohio until 2016.

Oklahoma – Murder rate – 5.1*; Death row population: 49 (1 are women); Method: Injection or electrocution/firing squad of injection is unconstitutional; Death Penalty Crimes: First-degree murder in conjunction with a finding of at least 1 of 8 statutorily-defined aggravating circumstances.  Trending:  According to a Fredericksburg.com editorial article, As of March, 2015, a moratorium on executions in Oklahoma still exists in wake of the US Supreme Court deliberations on whether or a failed Oklahoma execution was constitutional based on cruel and unusual punishment.

Oregon – Murder rate – 2*; Death row population: 36 (1 are women); Method: Injection; Death Penalty Crimes: Aggravated murder (ORS 163.095).

Pennsylvania – Murder rate – 4.7*; Death row population: 188 (4 are women); Method: Injection; Death Penalty Crimes: First-degree murder with 18 aggravating circumstances. Trending: Recent poll by York College of Pennsylvania shows 54% not in favor of death penalty.  Death Penalty Moratorium in place by executive order in February, 2015.

Rhode Island – Murder rate – 2.9*; [Number of Executions Since 1976 – 0]

South Carolina – Murder rate – 6.2*; Death row population: 45 (0 are women); Method: Choice of injection or electrocution; Death Penalty Crimes: Murder with 1 of 12 aggravating circumstances (§ 16-3-20(C)(a)) Trending:  According to a recent Post and Courier news articleSouth Carolina faces a moratorium on executions due to the difficulty obtaining lethal injection drugs.

South Dakota – Murder rate – 2.4*; Death row population: 3 (0 are women); Method: Injection; Death Penalty Crimes: First-degree murder with 1 of 10 aggravating circumstances. Trending: In a February, 2015 Argus Leader news-article, South Dakota state senator discusses sponsoring a Bill to abolish the death penalty.

Tennessee – Murder rate – 5*; Death row population: 73 (1 are women); Method: Injection for crimes after December 31, 1998, electrocution may be selected for crimes prior; Death Penalty Crimes: First-degree murder (Tenn. Code Ann. § 39-13-202) with 1 of 16 aggravating circumstances (Tenn. Code Ann. § 39-13-204).  Trending: April 10, 2015, the Tennessean reported that the Tennessee Supreme Court stayed all executions to review challenges to the constitutionality of the 1-drug injection protocol.

Texas – Murder rate – 4.3*; Death row population: 276 (10 are women); Method: Injection; Death Penalty Crimes: Criminal homicide with 1 of 9 aggravating circumstances (Tex. Penal Code § 19.03). Trending: According to the Texas TribuneExecutions in Texas jeopardized if disclosure of lethal injection drug suppliers is to be required, according to the Texas Tribune, April 15, 2015. Also, according to an April 2015 USA Today article a Texas lawyer, Maurie Levin, states  “Even though Texas has managed to continue to carry out executions, it’s a mistake to think it’s business as usual.”

Utah – Murder rate – 1.7*; Death row population: 9 (0 are women); Method: Injection or firing squad if injection is unconstitutional and for inmates who chose firing squad prior to 5/3/2004; Death Penalty Crimes: Aggravated murder (76-5-202, Utah Code Annotated).

Vermont – Murder rate – 1.6*; [Number of Executions Since 1976 – 0]

Virginia – Murder rate – 3.8*; Death row population: 8 (0 are women); Method: Choice of injection or electrocution; Death Penalty Crimes: First-degree murder with 1 of 15 aggravating circumstances (VA Code § 18.2-31). Trending: April 8, 2015, in a Roanoke News article, after the exoneration of Earl Washington, Mark Early, former Virginia attorney general stated, “I no longer have such faith in the government and, therefore, cannot and do not support the death penalty.” No executions are currently scheduled in Virginia as of March, 2015. according to Fredericksburg.com OpEd.

Washington – Murder rate – 2.3*; Death row population: 9 (0 are women); Method: Choice of injection or hanging; Death Penalty Crimes: Aggravated first-degree murder.

Wisconsin – Murder rate – 2.8*; [Number of Executions Since 1976 – 0]

Wyoming – Murder rate – 2.9*; Death row population: 1 (0 are women); Method: Injection  or gas if injection is found unconstitutional; Death Penalty Crimes: First-degree murder; murder during the commission of sexual assault, sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, kidnapping, or abuse of a minor under 16. (W.S.A. § 6-2-101(a))

US Military – Murder rate – 4.4*; Death row population: 62 (2 are women); Method: method of state where sentence imposed; Death Penalty Crimes: The U.S. military has its own laws and court system separate from those of the states and the federal government. Trending: According to a June 18, 2012 New Tribune news article, Capital punishment for military crimes is rare, the last military execution took place in 1961 (which gives rise to the question as to the legality and logic of retaining 62 prisoners on death row if there have been no executions in over 50 years).

US Federal Govt. – Murder rate – 0*; Death row population: 6 (0 are women) [Update: As of May 15, 2015, due to the Dzhokhar Tsarnaev sentencing determination, the death row population is now 7] ; Method: Injection; Death Penalty Crimes: Further research required. Trending: Attorney General Eric Holder is seeking the death penalty in the matter of Dzhokhar Tsarnaev,  “Boston Marathon bomber” which may be applied to 17 of 30 counts with which Tsarnaev was found guilty on April 8, 2015, according to a recent Time article published April 25, 2015 and Issues have been raised as to the effect of jury decision and impartiality in the Tsarnaev trial, according a recent New Yorker article.

Below, are a few more interesting articles regarding the death penalty and the Tsarnaev trial…

See, Vanity Fair March 2015 news article discussion regarding the lawyer defending Dzhokhar Tsarnaev, Judy Clarke, cruel and unusual punishment and the death penalty in this Federal trial.

See, January 7, 2014 Boston Bar Biz News article regarding the Boston Bar Association’s stand against the death penalty.

See, The Pew Research Center, regarding a wealth of valuable information regarding the death penalty.

**Important Update:  May 15, 2015, as reported in the New York Times, Dzhokar Tsarnaev was given the Death Penalty sentence in the Boston Marathon Bombing Trial.

Enjoy!

ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit,www.attorneykelly.squarespace.comhttp://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

~~~~~~~~~~~~

NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Constitution, Death Penalty, Law, Legal, Lethal Injection, Trending, Trial

I stole this title from Andy Prescott: “Think Twice Before Taking out a 401(k) Loan”

I stole this title from Andy Prescott: “Think Twice Before Taking out a 401(k) Loan”.

Comments Off on I stole this title from Andy Prescott: “Think Twice Before Taking out a 401(k) Loan”

Filed under 401(k), Bankruptcy, Financial, Legal, Retirement Savings

I stole this title from Andy Prescott: “Think Twice Before Taking out a 401(k) Loan”

401K_dead_ground_hog

Image by Mike Luckovich, editorial cartoonist and The Atlanta Journal-Constitution’s Pulitzer Prize winner

Using a 401(k) loan to pay for things may be OK in some instances. However it’s not always a good idea, as stated in an article entitled, “Think Twice Before Taking Out a 401(k) Loan,” written by one of my favorite bloggers Andy Prescott. Andy is a CPA who writes about saving money at artofbeingcheap.com and is also a staff contributor for HowardClark.com. I enjoyed Andy’s article and, as usual, he brought up a few good points from a CPA perspective.

Then I thought about this.  Since I’m a bankruptcy attorney, why not explain how this works based on my experience and training?  Helping debtors make good choices when faced with financial problems is my business.

For quite some time now, as a general word of advice in most circumstances, I advise most clients that taking out a 401(k) retirement account loan to pay off pressing debt is probably not your best option.  Of course this depends.  Everyone’s situation is different.  Even so, especially when a person is considering bankruptcy, taking a 401(k) loan to pay off debt just complicates the whole idea of using this viable option for relief.  Not only does this complicate good decision making, it also complicates a bankruptcy discharge, trustee decisions and more.

Here’s why:

Say the bills are mounting. You are having trouble paying them. Maybe you lost your job, or had an unexpected death in the family, an unusual medical issue or recently became unemployed. Whatever the reason, bankruptcy may seem like an awesome option. Bankruptcy is a useful legal tool.  Bankruptcy is intended to help debtors in need get a fresh start. A fresh start sounds like a really good thing, right?  Well, it depends.

Often, a truly fresh start depends on the decisions a debtor makes pre-bankruptcy filing, like using a 401(k) or other retirement account loan to pay down debt.  Under current federal and local bankruptcy rules, in a Chapter 7 or Chapter 13 bankruptcy case, an ERISA qualified retirement account is a protected asset. This includes a 401(k) savings plan and most ERISA qualified retirement accounts, like IRAs, including Roth IRAs. These types of accounts are exempt from creditors claims. Great! This is the good news! A 401(k) is a protected exemption.

Now for the bad news. Suppose a debtor gets into financial trouble. The debtor is stressed and needs fast easy cash to payoff bills, maybe some medical bills or old IRS debt, maybe even the mortgage payments.  To a debtor under stress, borrowing against a 401(k) and using those funds to pay down debt seems to make sense.  It’s easy.  No credit checks required, no questions asked and there is very little paperwork. Ask and ye shall receive, the bills can be paid.  But wait!

Little did our friend the debtor realize, that if bankruptcy was ever a good option, they may have spoiled a new beginning. Borrowing against a 401(k) retirement account to pay down debt, prior to filing, will seriously jeopardize their fresh start. After all, when faced with serious financial struggles, bankruptcy should be a viable option. It’s the new alternative to the old debtor’s prison. Anyway, depending upon the circumstances bankruptcy is useful, but not if the option is compromised by poor planning and decision-making.

As a general rule, a 401(k) retirement account loan can’t be discharged under Bankruptcy. If you borrow against it, then file for bankruptcy, you have to pay the loan back according to your 401(k) retirement account plan rules. What’s done is done. There’s no going back.

On the other hand, say a debtor facing big financial trouble decides not to pay down bills by borrowing against a 401(k) or other ERISA qualified retirement account, then they find a good attorney and decide that bankruptcy is the best option, they have a great opportunity for a brand new fresh start.

If all goes well, a debtor may decide to file for bankruptcy under this set of circumstances.  The debtor will get to discharge most, if not all, insurmountable bills (most debts are forgiven under chapter 7) or pay for a short time with a reasonable payment plan and then get a full discharge (under a chapter 13).  Additionally, the debtor gets to keep all their 401(k) retirement savings!  Like magic, they get a fresh start.  Presto-chango!

Like I said before, bankruptcy is often a useful tool for those who need it.  Making wise decisions about 401(k) retirement savings accounts and other qualified ERISA retirement accounts is important.  These kinds of accounts are often overlooked valuable exempt (protected) assets under state and federal bankruptcy law.

This is one reason why it’s a good idea to think of your finances like a critically important lifetime project. “Measure twice and cut once.”  Think twice, in other words, before making big financial decisions or taking out 401(k) retirement account loans to pay debt.

Speak to your trusted attorney. Get all the facts. Plan your best course of action so your action doesn’t plan you.

Got it? Got it. Good!

~~~~~~~~~~~~

ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island.  Her law practice is focused on consumer finance and bankruptcy.  However, Attorney Kelly is experienced in both criminal and civil trial work.  On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.  To find out more visit, www.attorneykelly.squarespace.com or http://www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

~~~~~~~~~~~~

NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

1 Comment

Filed under 401(k), Bankruptcy, Financial, Legal, Retirement Savings