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WV Senate President Bill Cole: Assessing the Session’s First Half

The Gilmer Free Press

I have often been told that time is relative. Certainly at different points in my life, I’ve had days that seemed to fly by in the blink of an eye and days that felt like they stretched for years.

In just a few days, we will reach the half way mark of the 2015 Legislative session. As I reflect on the time that has passed and I look toward the work we have in the days ahead, I’m energized by the challenge.

From the beginning, I have made it clear that my goal is to create the kind of West Virginia our kids can forever call home. I want to give our young people reasons to stay in this beautiful state. Great jobs must be the most positive promise that our state offers.

It’s a monumental task, but the Senate hit the ground running from the opening gavel. Our members have worked long days (and nights) to read bills, meet with constituents, meet and debate in committee, and take action to move West Virginia forward.

In the first half of this session, the Senate passed many bills that I believe advance our goal of making West Virginia a better place to live, to work, and to raise a family. We passed meaningful legal reform, we removed burdensome regulations that were placed on our electric-generating power plants, and we streamlined a permitting process that will allow 400 people to go to work almost immediately.

With those successes, however, we must prepare for serious challenges in the second half of session. We will address legislation that deals with how our taxpayer dollars are spent on public construction projects, and it will not be easy. There will be strong, emotional debate as the Senate works through this and other bills. We may disagree, but we will not be disagreeable. Regardless of where our politics rest, most every member of this body has the same goal: Do what’s best for West Virginia and her future.

We do not have all of the answers. We simply want to do the right thing for our state and its people. We will not stop working toward that goal.

However, it will require many of us to reframe the way we think about the issues and their solutions. What if instead of asking, “Why West Virginia?” we ask, “Why NOT West Virginia?”

Why not give our hardworking men and women the ability to have freedom in their workplaces? Why not allow our parents to choose whether they’d like to send their child to a public school or a public charter school? Why not allow the free market to set the wage rates on our public construction projects?

Why should we be bound by the past and by how things “used to be done”? We must approach old problems with new solutions. We have been given the opportunity to make necessary changes to allow West Virginia become competitive with not only its neighbors, but with the rest of the nation and the world.

Legendary UCLA coach John Wooden said, “If you don’t have time to do it right, when will you have time to do it over?” That quote really speaks to me as I prepare for the second half of this session. West Virginia, the time to do it right is now, and we don’t have time to do it over.

As we continue working, please make sure to write or call your Senator or Delegate to make sure your voice is heard. You can find a directory on the West Virginia Legislature’s website – www.legis.state.wv.us. We want to hear from you.

Prosecutors Aren’t Going To Stop Prosecuting, So Needed Reform Must Come From Congress

The Perils of Overcriminalization

Abstract

Overcriminalization is a serious problem that has led to questionable prosecutions and injures the public interest. Thousands of criminal laws are scattered throughout the federal criminal code, and hundreds of thousands of regulations are supposed to implement those laws. In addition, the whole notion of consciousness of wrongdoing in the criminal law has been obscured. Because prosecutors have no incentive to change a system that rewards their excesses, revisions may have to come from Congress—itself the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success. If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.

What has happened to federal criminal law in recent decades? Several former senior Department of Justice officials have expressed their concern with the path we have taken, along with the American Bar Association, numerous members of the academy, journalists,and other organizations like The Heritage Foundation.We agree with their considered opinion that overcriminalization is a serious problem and needs to be remedied before it further worsens the plight of the people tripped up by it and further injures the public interest.

To begin with, the sheer number of federal laws that impose criminal penalties has grown to an unmanageable point. The Department of Justice and American Bar Association have been unable to tally the correct number.


Proliferation of Federal Crimes

The Congressional Research Service reportedly has been unable to come up with a definitive total of federal criminal laws; the nearest they could come was to say they number in the thousands. They are by no means confined to the federal criminal code—Title 18, itself a weighty volume—but are scattered among the laws contained in the 51 titles or subject-matter volumes of the federal code and the hundreds of thousands of regulations that are supposed to implement those laws. The result is that there are more criminal laws than anyone could know.

Indeed, federal crimes are not confined to offenses against the domestic laws of the United States. Under the Lacey Act, it is a crime to import into the United States animals or plants gathered in violation of the laws of the countries from whence they came.

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In a sense, you can understand such a law from the standpoint of a conservationist who wishes to guard against the extinction of species of animals or destruction of the world’s forests. But one result of that seemingly well-meaning legislative effort was a raid by federal agents on the premises of the Gibson Guitar Company for importing wood for guitar frets that was allegedly exported in violation of the laws of India and Madagascar (the latter, by the way, are not even written in English). It is utterly unreasonable to require anyone to know the laws of every other nation in order to avoid criminal liability.

There have also been questionable prosecutions under domestic federal criminal laws. Consider the case of Lawrence Lewis. Mr. Lewis grew up in difficult circumstances but escaped the fate of two brothers, who died in prison. A blue-collar employee who worked his way up to the position of head engineer at a military retirement home, Lewis was charged with felonious pollution of a navigable waterway, a charge that summons the image of dumping toxic chemicals into a river.

That image, however, has nothing to do with the facts. Mr. Lewis was simply using a facially reasonable procedure—one that he had been instructed to use and had used uneventfully for years—to clean up occasional toilet overflows in the hospice area of the home (caused by adult diapers clogging the pipes) by spraying water from a hose to direct the waste into a sewer that led to a small creek that he believed went to the District of Columbia’s publicly owned treatment works but that, unbeknownst to him, emptied into Rock Creek and ultimately into the Potomac River. The federal government charged him with a felony for making a reasonable mistake.

Even setting aside the fact that what goes on alongside the Potomac in Washington makes the occasional runoff from a toilet at a military retirement home seem hygienic by comparison, how could this happen? The Lewis case is an example of the result of a process that started out with good intentions but has taken us far down the road that the old proverb tells us is paved with good intentions.

Before the 20th century, to the extent that there were federal criminal laws, they concerned acts that everyone knew and understood were morally wrong. Accordingly, the old saw that ignorance of the law is no excuse was one that could be uttered seriously and without evoking a sarcastic snicker.

At the beginning of the 20th century, laws were adopted that had the effect of protecting the purity of food, the safety of workers, and other goals included in the rubric of health and safety. Violations of some of those laws were made criminal, and some permitted conviction without a finding of criminal intent: That is, all that had to be proved was that the defendant had done the act. Courts allowed that but said it was permissible only in the kinds of cases that involved protecting the health and safety of the community. The courts’ rationale for permitting this departure from usual standards was that the stakes—public health and safety—were so high that protecting public welfare was paramount.

Many may well have reasoned that people whose conduct affected health and safety should be bound to pay particular attention and that if they let their intention flag, it was not unreasonable to hold them to a strict standard of something less than criminal intent. In the process, however, the whole notion of consciousness of wrongdoing in the criminal law was obscured, although the penalties of loss of freedom or property, and moral taint, remained.


Achieving Institutional Reform Through Prosecution

In addition to the passage of statutes and regulations, another phenomenon that started in the setting of civil litigation but has since spilled over into the criminal law is the practice of bringing prosecutions to achieve institutional reform rather than seeking legislation that would have that end. Litigators in what are referred to loosely as civil rights or civil liberties issues have long known that they could often achieve their goals more quickly and with greater certainty through litigation than through legislation. One obvious example was a Connecticut statute that banned the sale of contraceptives. The state had not enforced the statute for years, but a plaintiff eventually persuaded the Supreme Court that the law violated a constitutional right to privacy.

That practice has now spread to criminal cases. Take, for example, prosecutions for promoting drugs for uses other than those for which the Food and Drug Administration has approved them, even though the targets of the promotion are not laymen but physicians who exercise independent judgment about whether to prescribe a drug or not. The prescribing of a drug for a purpose other than the one for which it was approved is not an offense at all; indeed, physicians may help to make medical progress while curing their patients if they are able to see new uses for pharmaceuticals. Yet promoting drugs for what is called off-label use is a felony.

Peter Gleason, a Maryland psychiatrist who regularly served poor and underserved constituencies, delivered a series of paid lectures at medical conventions describing success he had had with off-label use of certain drugs, and he was prosecuted for doing so. He did not have the resources to fight, so he pleaded guilty to a misdemeanor and paid a small fine. Nonetheless, the guilty plea ruined his medical practice. The Department of Health and Human Services told Dr. Gleason that his conviction excluded him from all medical programs, and virtually all of his patients were on Medicare or Medicaid.

Another defendant in the same case went to trial and prevailed when the U.S. Court of Appeals for the Second Circuit held that the First Amendment protects the right to communicate truthful information about the benefits of pharmaceuticals, even off-label benefits. Dr. Gleason, however, did not benefit from that ruling because his desperation over loss of his practice led to his suicide before the Second Circuit decided the case. The Gleason case is proof that good intentions can go haywire.


Nonprosecution and Deferred Prosecution Agreements

Another factor contributing to the proliferation of criminal regulations has been the advent of nonprosecution and deferred prosecution agreements with corporate defendants. The Department of Justice often uses settlements known as nonprosecution or deferred prosecution agreements to resolve criminal cases. It may seem paradoxical that agreements whereby corporations escape actual prosecution themselves contribute to the efflorescence of criminal laws and proceedings, but the process itself has pernicious results.

Consider the corporation investigated for a possible violation of criminal law. For most corporations, particularly those that are publicly traded, otherwise have a public profile, or do business in a highly regulated industry, a conviction can be crippling, but an indictment alone can also have catastrophic results. As a result, many large corporations negotiate deferred prosecution or nonprosecution agreements that permit them to escape the filing of a criminal charge in return for payment of a sizable penalty as a settlement.

The size of these settlements has made both state and federal governments begin to look upon prosecutors’ offices, where the interests of justice are supposed to govern, as profit centers. In some jurisdictions, proceeds of those penalties are used in whole or in part by law enforcement agencies to conduct activities or purchase equipment. In virtually all jurisdictions, including the federal government, the dollar value of penalties extracted from corporations is featured by law enforcement agencies and departments as a principal measure of their effectiveness and worth.

Moreover, as pointed out by Matthew Fishbein in the New York Law Journal, the very size of many of these settlements has raised the expectation of lay observers that individual defendants will be prosecuted as well; those expectations are then disappointed when no such prosecutions follow. The reason is that corporate settlements do not challenge the government’s legal theories or its evidence, but the government is wary of bringing charges against individual defendants because people who stand to lose their freedom often go to trial and prevail when the government’s case is tested in court.

The Department of Justice often goes beyond even the extraction of large settlements and has insisted on changes in corporate governance through the imposition of standards or monitors and even changes in corporate personnel as the price of avoiding criminal charges. The Department of Justice makes that demand even though those remedies would not be available as part of a sentence after conviction. To that extent, the running of corporations is taken out of the hands of shareholders and directors and placed instead in the hands of prosecutors.


Proposals for Reform

If these unhappy results of the proliferation of criminal laws and prosecutions are to change, the changes will not come from courts, which have upheld criminal penalties even without a showing of intent against claims of denial of due process. Obviously, prosecutors have no incentive to make changes in a system that rewards their excesses. The changes will have to come from Congress, which itself has been the source of much of the problem, both in the laws it passes and in the standards it uses to measure prosecutorial success.

There have been many proposals for reform, some with merit.

     
  • One is for a statute requiring proof of guilty knowledge in any criminal prosecution unless Congress has legislated specifically to the contrary.
  •  
  • Another is that administrative agencies be required to list and make generally available in full text all regulations that carry potential criminal penalties, and perhaps that Congress then be required to ratify any such regulation before it can provide the basis for a criminal prosecution.
  •  
  • Finally, Congress should adopt a general, across-the-board defense of mistake of law, requiring that a defendant be acquitted if he can prove by a preponderance of evidence that he believed reasonably that what he did was not a crime.

If we are to take pride in the claim that we are a nation governed by law, the criminal law must be sensible and accessible, not simply a trap for the unwary.

—Michael B. Mukasey, Partner, Debevoise & Plimpton, served as 81st Attorney General of the United States from 2007–2009 and as a judge on the U.S. District Court for the Southern District of New York from 1988–2006. Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.

WV Senate Minority Leader Senator Jeff Kessler’s Legislative Report – 02.13.15

The Gilmer Free Press


This week, a compromise was reached in the Senate on the prevailing wage repeal bill I have been fighting and updating you on throughout the legislative session. The prevailing wage is used to pay all publicly financed construction jobs. Instead of an outright repeal, the compromise would change how the wage is calculated.

The version of Senate Bill 361 that passed transfers the authority of calculating the prevailing wage from the state Division of Labor to WorkForce West Virginia, which would coordinate with researchers at the Bureau of Business and Economic Research, at West Virginia University, and the Center for Business and Economic Research, at Marshall University, to determine accurate wage rates for the construction trades. The compromise also sets a threshold of $500,000 before contractors on public works projects would be required to pay prevailing wage.

Let me be clear. I voted against this compromise because I strongly believe the prevailing wage should be kept in its current form. While I am glad that we will have professionals at Marshall and WVU calculating the wage as opposed to some entity from outside of the state, it troubles me that we have just passed a bill that will make us beholden to those calculations.

We are changing these wages without knowing what the end result will be. That is reckless government. Good government would be to collect this data from these universities and then decide if we could live with those wages. The West Virginia Senate has historically been the most deliberate and thoughtful lawmaking body in this state. It pains me to see us forcing legislation through without knowing precisely how it will effect the working men and women that have built this state.

I’m also extremely concerned about the $500,000 threshold in this compromise and I am hopeful it will be lowered in the House of Delegates if a final bill completes legislative action. Many roofers, heating, ventilation and air conditioning professionals live off projects in the $100,000-$200,000 dollar range. This bill effectively kills prevailing wage for that segment of the workforce.

I believe when looking to solve an economic problem, the answer is never to take money out of the pockets of working people. As I have stated, the bill is still very flawed, but I must admit it is better than what we were facing a week ago. This compromise at least allows us to fight another day.

The fight now moves to the House of Delegates and I am calling on all West Virginians to come to the State Capitol on President’s Day, Monday, Feb. 16 for “Show up, Stand up Day” to support West Virginia’s working men and women and building. You have already made a difference in helping to craft this compromise but I remain hopeful that together, we can reject this bill or at the very least, improve it before the close of the 2015 legislative session.

If you would like to follow the daily action of the Legislature, visit the 82nd Legislature on the web at   www.legis.state.wv.us.

I hear your voice and I encourage all of you, regardless of party or affiliation, to contact me with any concerns you have regarding issues facing our district or our state. You can write to me at: Jeffrey V. Kessler, State Senate, Room 257M, Building 1, 1900 Kanawha Blvd. E. Charleston, WV 25305.

U.S. Senator Joe Manchin: Let’s Protect Our Children in Schools

The Gilmer Free Press

In today’s partisan world of politics, many might think that we now live in a divided America. That’s simply not true.

Americans form their priorities based on their values – and making sure our kids remain safe in every single school across the country has always been at the top of that list.

It is important to acknowledge that the vast majority our teachers, principals, and school employees are dedicated professionals and strong role models, but we must take action against that small minority who are sexual predators and directly interact with our kids in schools across the country.

In 2014 alone, 459 teachers and school employees across America were arrested for sexual misconduct, and since the start of this year, 40 more have been arrested.

These numbers are staggering. Infuriating. These numbers mean that more than one child is being sexually assaulted every day by a trusted adult in the school system. And that only includes those who have been caught and detained.

While this is not only a problem in education, we must be particularly concerned about school employees because of the trust we place in them to care for our children.

Just imagine how many predators we could have prevented from harming our students if we chose to do something about this unacceptable offense. Just imagine how many children’s lives could have been different if we chose to take action, including preventing the outcome of the rape and death of our very own West Virginia student, Jeremy Bell.

Jeremy was a fifth grade student from Fayette County, West Virginia who was on an overnight fishing trip with his elementary school principal when he mysteriously died from a head injury in 1997.

Nearly eight years later, investigators discovered that Jeremy was raped and murdered by none other than Edgar Friedrichs Jr., Jeremy’s principal and supervisor on the trip.

Thankfully, Mr. Friedrichs is now serving a life sentence in connection with Jeremy’s death.

And although Jeremy’s death is in-and-of-itself disturbing, Mr. Friedrichs’ past proves to be even more troubling.

Prior to working as Fayette County’s principal, Mr. Friedrichs was previously dismissed by a school in Delaware County, Pa., on suspicion of sexual misconduct.

That school then helped him land a new teaching position in West Virginia.

He taught for 26 years in West Virginia – 26 years – before he was finally dismissed in 2001 when he was indicted for sexually abusing four boys.

Jeremy’s disturbing fate coupled with Mr. Friedrich’s story is heartbreaking and simply unacceptable.

As a parent, as a grandparent and as a representative of the great state of West Virginia – inaction is not an option.

That is why Senator Pat Toomey, R-PA, and I are introducing legislation – The Protecting Students from Sexual and Violent Predator Act – that would require all employees who work with our students pass a background check to make sure they have no criminal records or an abusive history. These employees include everyone from principals, teachers and secretaries, to bus drivers, cafeteria workers and janitors.

There are more than four million teachers and school staff employed by our public school districts across the United States. There are also millions of additional workers who have direct access to students. And yet, there is no national background check policy in place for the people who work every day directly with our kids.

Even worse, not all states require checks of child abuse and neglect registries or sex-offender registry checks. A recent report by the Government Accountability Office discovered that five states don’t require background checks at all for applicants seeking employment at our schools.

In addition, not all states use both state and federal sources of criminal data like a state law enforcement database or the FBI’s Interstate Identification Index. Our current system allows offenders to slip through the cracks.

This bill would simply establish uniform requirements for existing and prospective employees to undergo mandatory background checks, including state criminal registries, state child-abuse and neglect registries, an FBI fingerprint check, and a check of the National Sex Offender Registry.

Since my tenure as governor, I have asked that all West Virginians commit to keeping five promises to our children. Every child should have a caring adult in his or her life. Every child should have a healthy start to life.

Every child should have a marketable skill to support future success. Every child should be taught to be a caring adult and be given an opportunity to serve in the local community. And finally, at the heart of this piece of legislation, every child deserves to have at least one place where they feel safe and no harm can enter.

For many of our kids these days, that place is at school. With this legislation, this is one promise we can keep.

If we can even make the smallest difference in changing the outcomes of students’ lives like Jeremy Bell, then we must act.

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