Traditional Long-Term Care Insurance is Getting Ugly but Explore the Alternatives

Researchers estimate that more than half of today’s 65-year-olds will require long-term care at some point, at an average total cost of $138,000. Most will need help for less than two years. But one in seven Americans turning 65 today will face more than five years of disability, with potentially dire financial consequences. Medicare covers only short stints in a nursing facility. Medicaid can fill the gap, but only after you’ve depleted most of your assets. But to afford an assisted living facility, you’re probably on your own.

And the true impact on the quality of life for caregivers can be compromised very quickly.

77% of caregivers missed time off from work and close to 1/3 of caregivers provided more than 30 hours of care per week.

Enter long-term-care insurance, private policies that cover at least a portion of home, assisted living, or nursing home care. However, per Barron Magazine,

The long-term-care insurance industry has fallen into financial turmoil, causing misery for many of the 7 million-plus policyholders. . . The problem: “Almost every insurer in the business badly underestimated how many claims would be filed and how long people would draw payments before dying,” the Journal writes. “People are living and keeping their policies much longer than expected.” And nine years of ultralow interest rates have left insurers with far lower investment returns than they needed to pay those claims. The result is an exodus from the business and skyrocketing costs for policyholders.

As described in the Wall Street Journal:

Never in our wildest imagination did we consider that the company would double the premium,” says Sally Wylie, 67, a retired learning specialist who lives on Vinalhaven Island, Maine.

In the past two years, CNA Financial Corp. has increased the annual long-term-care insurance bill for Ms. Wylie and her husband by more than 90% to $4,831. They bought the policies in 2008, which promise future benefits of as much as $268,275 per person. The Wylies are bracing for more increases.

Listen to these two long-term care specialists discuss the WSJ article and the changing scene.

The WSJ then failed to fully advise what to do in the face of the changing market. There is still affordable long-term insurance planning to be performed.

If you are someone who has been impacted by spiraling premium increases, you are not helpless, and you do have more options than the WSJ article suggests. In fact, there are things you can do to reduce your premiums according to Bill Borton, Managing Principal of W.R. Borton Associates. Traditional long-term care insurance policies can be modified. You can reduce inflation riders or adjust other features to control premium costs. Mr. Borton still suggests that if you have a policy that experienced rate increases, you should continue to keep the policy in effect if you can afford it. Many of these existing long-term care insurance policies that were sold years ago have more generous benefits than anything that can be purchased today. . .

Today, more products exist than just traditional long-term care insurance. Hybrid-products have been developed to mitigate some of the risks associated with traditional polices, like those unwelcome and unexpected premium hikes. Hybrid policies essentially come in a few different forms, but are typically long-term care benefits attached to a life insurance or annuity product. These hybrid approaches allow for level and one-time premium payments, eliminating the possibility of premium hikes completely. Furthermore, these policies can remove the “use it or lose it” aspect of traditional policies. With a hybrid long-term care and life insurance policy, if you don’t end up needing long-term care benefits, your heirs can still receive the death benefit. This allows people to buy one product that provides two potential benefits, a tool for funding long-term care expenses if needed and life insurance coverage.

Money magazine suggests the following 7 Alternate Ways to Pay for Long-Term Care:

  • People are often confused about how to pay for long-term care. “Resources they think exist don’t exist,” says Laura Troyani who founded the website Most notably, many seniors expect Medicare will cover costs when, in fact, the program does not pay for ongoing long-term care. While Medicare isn’t an option, here are seven alternatives that are.
  • Short-term care insurance. These plans are similar to long-term care insurance policies, but benefits are typically capped at one year. Not only are they less expensive, but they may also be available to older seniors or those who aren’t otherwise eligible for long-term coverage.
  • Life/long-term care insurance. Rosenthal is a fan of combining long-term care coverage with life insurance. Specialty policies, often known as life-LTC hybrids, feature fixed premiums that help consumers avoid the type of rate increases currently being experienced in Pennsylvania.
  • Long-term care annuities. Troyani says long-term care annuities are a frequently overlooked option for covering home health, assisted living and nursing home care costs. These annuities require a hefty upfront payment, but if you need long-term care, your overall cost may be lower than what you’d spend on insurance premiums. However, don’t expect much in the way of interest. “If you’re looking at it from an investment standpoint, it’s not so awesome,” Troyani says.
  • Health savings accounts. For those who have an eligible high-deductible health insurance plan, a health savings account offers a way to put money aside tax-free for medical costs, such as long-term care. Boyles calls them health IRAs and notes that those who have long-term care insurance can pay their premiums with money from a HSA.
  • Home equity. Retirees without significant investments may still own a valuable asset: their house. Tapping into home equity through a line of credit, taking out a reverse mortgage or selling a house outright are some of the ways people can use their property to pay for long-term care.
  • Pensions or Social Security. Depending on the size of your monthly payments and the amount of care you need, paying for services monthly out of a pension or Social Security benefit may be option.
  • Medicaid. When all other options have been exhausted and a person’s income and assets have been depleted, the government will step in to pay for care. Medicaid won’t pay for assisted living, but it will cover nursing home care and many states also pay for home health care services for eligible people. However, states are required by the federal government to recover the cost of long-term care from estates whenever possible. That means, for example, if a parent’s home is sold after his or her death, the proceeds could go to the state instead of heirs.

Consumer Reports summarized some of these new, alternative options here. (I am not a financial or insurance advisor nor sell these services so I recommend you seek separate counsel from persons in these fields as to the best option for you.)

This problem cannot be ignored:

Rather, the debacle illustrates a troubling truth: Private insurance can’t handle this problem by itself.

By 2050, the U.S. will have almost 90 million people aged 65 and over, and more than half will need long-term care at some point. Yet only a sliver of that group can afford the premiums insurers require. As of 2015, private insurance covered less than 10 percent of U.S. spending on long-term care — and the private market has been shrinking.

Blowing Whistle on Illegal and Unsafe Conduct Can Bring Big Payday

There are major federal laws which reward those “that blow the whistle” (with 15%-30% of recovery) for reporting fraud and illegal behavior—everything from healthcare billing to contractor kickbacks to environmental fraud. Currently, the penalties that may be imposed against those committing fraud is minimum of $5,000.00 for each violation, plus three times the government’s actual damages.

Here is a story of airline employee which blew the whistle on illegal practices of the airline.

There are protections for blow back and also to protect your identity. There are various programs which exist:

The CFTC program offers the most protection for a whistleblower who wants to remain anonymous. “You can pursue your claim and remain anonymous, even to the government,” says Kohn. Your identity will disclosed only after you’ve qualified for a reward. All the other programs, he says, require that you tell the feds up front who you are. “And because the government knows who you are,” he says, “there’s always a chance your company will find out.” Another big distinction: Under the IRS, SEC and CFTC programs, the government decides if they want to pursue your claim. If they decide not, then your attempt to get a reward ends. You have no legal authority to pursue a claim on your own. Under that False Claims Act, however, even if the Justice Department turns you down, you can continue to pursue your claim in court as a private individual acting on behalf of the government. “The Act empowers the average worker with the same authority as if they were the government of the United States. On paper, it’s the most powerful program of the four,” says Kohn.

Video: “Whistleblowers Change the World”

This video highlights the importance and struggles of whistleblowers.

“Whistleblowers remain the key source of information on fraud and corruption at home and abroad,” said Stephen M. Kohn, Executive Director of the NWC and author of The New Whistleblower’s Handbook. “However, they still face retaliation in many countries around the world. We need to rally our efforts to ensure that whistleblowers are protected and empowered. The first step toward making that happen is to make sure whistleblowers and anti-corruption groups understand the legal tools they have available to them.”

Leading Causes of Wrongful Convictions: 27% involve False Confessions.

This chart is incredibly revealing. The wrongfully convicted persons in these cases of exoneration were conclusively proven innocent, not just not guilty. In 72% of the cases, there was an eyewitnesses mis-identification.  Craziest: there was a false confession in 27%.

Droning Under the Influence of Alcohol?

Per news reports,

DRUNK DRIVING HAS been a social taboo for decades, but New Jersey in the US has now added drunk droning to the statute books: outlawing the flying of unmanned aircraft after one too many drinks.

The law makes it an offense to operate a drone under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug or with a blood alcohol concentration of 0.08% or more.

This got me thinking: could someone be prosecuted for droning while drunk in Alabama? I mean in Alabama, you certainly can be charged with DUI in a car or boat. You can even be charged for DUI while riding a horse. And I have actually defended someone charged with driving a lawn mower under the influence of alcohol.

And I have been at parties or at the lake where a certain amount of imbibing was occurring and then someone broke out their new toy drone. (Dilly-dilly!)

First, there is no special droning-under-the-influence statute in Alabama as there is in New Jersey.

Second, droning is not covered by the standard DUI statute (32-5A-191).

A person shall not drive or be in actual physical control of any vehicle while (1) There is 0.08 percent or more by weight of alcohol in his or her blood; (2) Under the influence of alcohol; (3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving; (4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or (5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.

Because a drone is not a “vehicle” under Alabama’s DUI statute:

Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or electric personal assistive mobility devices; provided, that for the purposes of this title, a bicycle or a ridden animal shall be deemed a vehicle, except those provisions of this title, which by their very nature can have no application.

However, I could see a prosecution in the right set of circumstances for reckless endangerment in Alabama (§ 13A-6-24):

A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

Most critically though, operating a drone while under the influence is, however, a federal offense.  A person manipulating the flight controls of a small unmanned aircraft (“weighing less than 55 pounds on takeoff) must comply with certain federal regulations. 14 CFR 107.27  On of those regulations prohibits operating the small unmanned aircraft (1) Within 8 hours after the consumption of any alcoholic beverage; (2) While under the influence of alcohol; (3) While using any drug that affects the person’s faculties in any way contrary to safety; or (4) While having an alcohol concentration of 0.04 or greater in a blood or breath specimen.

Additionally, the FAA regulations separately define a “model aircraft” as “an unmanned aircraft” that is: (i) Capable of sustained flight in the atmosphere; (ii) Flown within visual line of sight of the person operating the aircraft; and (iii) Flown for hobby or recreational purposes. Because it defines a model aircraft as an unmanned aircraft, I think the regulations would apply. Even if not, the model aircraft rules also separately indirectly prescribe operating a model unmanned aircraft while under the influence of alcohol or drugs.


All this being said: I do believe that you can be charged, by federal offense and possibly by Alabama state law, for droning while under the influence of of drugs or alcohol. (And note: DUI under the federal regs is .04 BAC vs. .08 BAC for driving a car.)

There are other ways to commit crimes with a drone. For instance, its against the law to interfere with airliners. Was A Frontier Airlines Jet Almost Hit By A Drone Over Las Vegas?

It is also against the law with use of a drone though. “A person may not hunt, pursue, harass, wound, kill, or otherwise harm any wild waterfowl or other birds or animals by any means whatever during the time the person is on any kind of aircraft.”  Code of Ala. § 23-1-387

Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court ruled their respective Sex Offender Registration and Notification Act was unconstitutional. The ruling is fairly narrow though. The case ruling though highlights an incredible feature of modern jurisprudence concerning sex offender registration and notification: the court have allowed legislatures to pile new regulation upon upon obligation upon requirement on those previously convicted of sex offenses.

In the Michigan case:

On March 4, 1994, Boban Temelkoski pleaded guilty as charged to one count of second-degree criminal sexual conduct . . . Temelkoski was sentenced to three years of probation supervision, subject to the Holmes Youthful Trainee Act (HYTA). . . Under HYTA, certain young offenders between the ages of 17 and 20 may be assigned “youthful trainee” status and ultimately have their cases dismissed and their records sealed.

After his conviction, Michigan adopted SORNA.

SORA retroactively defined Temelkoski’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. . . Over the following years, amendments to SORA imposed increasingly onerous restrictions on Temelkoski, including lifetime registration.

Similarly, Alabama adds new requirements every year. To give one outrageous example, a client of mine was a registered as a sex offender. His probation officer described him as a “model probationer.” He would attend his daughter’s high school softball games which occurred at various public schools in the county. In April 2016, the Alabama legislature passed a new regulation: sex offenders must get advanced permission to appear at any K-12 property and activity; the legislature made it effective immediately upon the Governor’s signature. The Governor signed the bill at 7am in the morning on Saturday. My client went to his daughter’s softball game that afternoon. No one informed him of the law. There was not notification from his probation officer or SORNA supervisor. In fact, they were unaware of the change. Nevertheless, he was indicted for felony violation of the new SORNA statute. Thankfully, we were able to have the felony charges dismissed with prejudice. See more about that case here.

However, because the courts have normally deemed all these restrictions as not punishment, this ever increasing list of requirements, restrictions, and obligations pills up. At some point, the courts must deem the system as moved over the line into punitive.

The Michigan case turned a very fine rationale: the State had made certain promises to Temelkoski through its then youthful offender statute. Perhaps, the same rationale would apply to Alabama. I currently have two appeals before the Alabama Court of Criminal Appeals challenging the constitutionality of the SORNA as applied to Alabama youthful offenders. (See here for discussion.)


Be wary in the Interrogation Room: Don’t Talk to the Cops (It is what the Police Tell their Own Children.)

A public radio report sheds light on some practices of law enforcement and investigators and the dangers of the interrogation room for those accused of crimes:

Homicide detectives are often required to confront the people they question. But in the case of a teenage girl whose baby has been dead for 27 hours and who pleads and cries through much of the interview, Truong’s attorney, Ed Ryan, says this is psychological torture.

“Their interrogation was designed not to determine the truth, not to get at the facts,” says Ryan, who wasn’t present for the interrogation, when Truong didn’t yet have a lawyer. “Their intention was designed to force her to confess to doing it in the way they figure she did it. They are the ones that force-fed her the word ‘suffocation.’ ”

Pageau also fed her the word “smother,” saying the medical examiner had determined Khyle had been smothered to death. But, in fact, the medical examiner said no such thing. Pageau was lying to Truong.

According to conventional training manuals, the purpose of interrogation is to get the suspect to incriminate themselves or, better yet, make a full confession. Confessions are considered the queen of criminal evidence, so in that room, Pageau does what he can to get the evidence he’s looking for.

The detective knows, as he will later acknowledge in court, that the medical examiner who conducted the autopsy a few hours earlier has not yet discovered a cause of death. But in the box, he betrays no doubt.

“I know how he died, which is why we are here,” Pageau tells Truong.

In fact, at this point, Pageau does not know how Khyle died. William Powers, a former Massachusetts State Police detective who has interviewed thousands of suspects and trained countless detectives, watched the videotape. He says that in Massachusetts, courts and judges take a particularly dim view of false statements by detectives.

According to Powers, “While they have never said flat out, ‘You cannot lie,’ it’s a real negative factor with the courts.”

The Worcester detectives continually lie to Truong while at the same time accusing her of lying to them every time she says she didn’t kill her baby.

FACT #1: Police can lawfully lie to you.

The article also details some other techniques.

“Maximization” is a technique detectives use to convey to the suspect the hopelessness of their situation. It’s meant to give the impression that continued denials will fail and that confession is an easier way out. And that’s just what Pageau does when he tells Truong, “If you think this is going to be like that other baby you were watching so well, you’re sadly mistaken.”

Eventually, the detectives switch from “maximization” to “minimization.” Pageau’s partner, John Doherty, offers Truong sympathy and plays down her responsibility for what they accuse her of doing. After all, Doherty tells her, “you’re just a kid.”

Finally, these officers proceed to something which the law does not allow: promises:

That’s when the detectives turn to another method of extracting a confession: making promises and offering inducements. They say they can get Truong help if she confesses.

“All everyone’s waiting for today is for you to admit to what you did so that we can start the process of getting you some help,” Pageau says, “getting your brothers out of that house and getting them in a better home, where there’s a mom that gets up in the morning and takes care of them.”

A few minutes later, Truong asks, “What kind of help am I going to get?” That’s when the detectives know they’re getting close. Pageau tells her there are women on the other side of the door who help children “like you.” But there are no women on the other side of the door.

He tells her that if she confesses, she will get help and leniency in the juvenile court, saying, “Keep it in the juvenile court. Keep it in the juvenile system, where punishment is minimal, if any — let’s say there is any.”

Bill Powers, who trains detectives through Boston University, says that’s where the Worcester cops cross a big, bright line of the law.

“We can’t make promises. We can’t say we will do things that we can’t do,” Powers says. “To say she will be tried as a juvenile versus as an adult, that’s not our call. That’s the call of the [district attorney’s] office.”

But Truong buys their promises.

“Do I have to say it?” she whispers.

The Court has weakened this rule in Alabama.

Penn Supreme Court’s opinion that PennSORNA is unconstitutional stands after appeal to SCOTUS

The U.S. Supreme Court will not hear a challenge to a recent state court ruling that determined part of Pennsylvania’s sex offender registration law was unconstitutional.

Accordingly, SCOTUS will allow the PA ruling to stand.

In July, the Pennsylvania Supreme Court ruled that the 2012 update, which expanded the offenses covered under the law and changed how often and for how long some people must register, was punishment.

Prior to the ruling, the registry was generally considered a civil penalty, which allowed it to be imposed on people retroactively.

Finding that sex offender registration and notification rules are actually punishment has huge consequences. It means that a legislature cannot continue to impose more and more requirements onto those convicted of prior sex offenses. At present, convicted sex offenders are subjected to annual list of new requirements and legal obligations.

One federal district court declared Alabama’s law imposes for life “the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form.”

This articles details life as a sex offender and how the fiction that SORNA is not punishment is a legal fiction in Alabama.

McGuire was convicted of sexual assault in Colorado more than 30 years ago, before many of the modern punishments around sexual crimes were enacted into law, and his argument hinges on constitutional protections against punishments created after a crime is committed.

After serving three years in prison and another on parole, he was released in 1989. He did not find himself in trouble with the law again until 2010, when he moved back to his native Montgomery to be closer to his mother and family.

Upon returning to Alabama, McGuire went to a Montgomery police station to confirm if, as a convicted felon, he was in breach of any state laws. It was at the station he learned he had to register as a sex offender.

He couldn’t live with his wife, mother or brother in Montgomery, because the state required him to stay away from kids, schools and daycares. Soon he was jobless and living under a bridge, with “Criminal Sex Offender” stamped in red letters on his driver’s license.

“He feels like he’s in prison again, a prison without bars,”  said Phil Telfeyan, McGuire’s lawyer. “He is restricted where he can live, where he can take jobs. It’s like being a permanent prisoner.”

. . .Alabama’s sex offender laws are among the most stringent in the nation. Home to more than 11,000 registered sex offenders, Alabama is among four states that put sex offenders on a mandatory registry for life and the only state that puts the sex offender stamp on a driver’s license.

Currently, I have two appeals pending before the Alabama Court of Criminal Appeals attempting to convince the Alabama appellate courts that Alabama’s SORNA statute is punitive. See here for a discussion of those cases.

Alabama Bail Bond Tax Should Be Declared Unconstitutional Because It Is Replete with Conflicts of Interest

Republican Ohio Supreme Court Justice Maureen O’Connor:

“Here in Ohio I have spoken out unequivocally that courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments, including themselves,”

Apparently, the Alabama Legislature does not agree with this belief.  Check out the number of court cost bills pending before the Legislature at present. Even the non-partisan and typically apolitical Alabama State Bar has stepped into the fray.

Some in Alabama have been priced out of the state court system because of fees added to court filings, many of which don’t fund services for the system collecting the money.

That was the message this week from Suzi Huffaker, legislative counsel for the Alabama State Bar Association, when she spoke to a joint meeting of the Bar Association chapters from Colbert, Franklin and Lauderdale counties.

Huffaker said “Alabama has some of the highest court costs in the nation” because adding fees and fines to court filings has become a way for organizations outside the court system to raise funds.”What has happened is, in funding our courts, they have borrowed money from different places (and) we have increased fines and fees,” Huffaker said. “So now we have put together a piecemeal system that, in fact, I view as we have raised taxes through fines and fees as opposed to raising taxes.”

Statewide, 26 percent of monies collected as court costs were “non-court disbursements.” That totaled $116.6 million in the 2015-16 fiscal year.

A few years ago the Alabama added one such new tax: the Alabama Bail Bond Fee. I have now challenged the constitutionality of this tax in court.

The Code of Alabama sets out a schedule for bail bond fees aka taxes in § 12-19-311. These fees are to be charged on “every bail bond in all courts of this state” with the exception of traffic cases unless it is a “serious” traffic offense. Code of Alabama § 12-19-311(a)(1). The “tax” schedule begins with a filing fee of thirty-five dollars for every bond executed within the state.  §12-19-311(a)(1)(a).

On top of that, each misdemeanor offense carries with it a bail bond “tax” in the amount of 3.5 percent of the total bail bond or one hundred dollars, whichever is greater, so long as the total “tax” does not exceed $450. Code of Alabama § 12-19-311(a)(1)(b). Each felony offense carries a bail bond “tax” of 3.5 percent of the total bail bond or $150 dollars, whichever is greater, so long as the total fee does not exceed $750.  However, those released on their own recognizance, judicial public bail or a signature bond pay a flat fee of twenty five dollars.

Contempt proceedings may be initiated for failure to pay the fee, whereupon additional fines may be imposed. Code of Alabama § 12-19-311(d). Moreover, bail bond fees may not be “remitted, waived or reduced unless all other costs, fees, and charges of the court are remitted or waived.” Code of Alabama § 12-19-311(e)(4).

Pursuant to collection, the thirty-five dollar filing fee is distributed as follows: forty-five percent to the court clerk’s fund, forty-five percent to the Solicitor’s Fund and ten percent to the Sheriff’s fund. Code of Alabama § 12-19-311(f). The bail bond fees are distributed as follows: $21.50 to the Sheriff’s Fund; forty percent of the remainder to the court clerk’s fund, forty-five percent of the remainder to the Solicitor’s Fund and ten percent to the Alabama forensic Services Trust Fund. Code of Alabama § 12-19-311(g). Those funds distributed to the district attorney are to be used for “the payment of any and all expenses incurred by the district attorney in the discharge of his duties of the office or for any legitimate law enforcement purpose” while the fees distributed to the court clerk are to be used “at the discretion of the clerk, to support the functions of the office of the clerk.” Code of Alabama § 12-19-312(a)(b). The money in the Circuit Clerk’s fund shall be used “for the support of local court operations, including, but not limited to, salaries and benefits of court employees where necessary for the efficient operations of the courts.” Code of Alabama § 12-19-310(e)(1). The Circuit Clerk may also use money in the Circuit Clerk’s fund “for the purpose of awarding merit and promotions raises to full-time employees of the clerk’s office.” Code of Alabama § 12-19-310(e)(2).  It is the Clerk who sets the value of bail in each case, the money from which is used to provide funding for the Clerk’s office.

Both the Sheriff, the District Attorney and the Circuit clerk, then, have a structural financial interest in the imposition and collection of bail bond fees. This financial stake creates a conflict of interest for all three offices. Since the Clerk both sets the bond and benefits from the bail bond fee, a potential conflict arises from the temptation to impose higher bonds in order to receive a higher amount from each case. Since the bond fee for a recognizance bond is capped at $25, a potential conflict of interest for the District Attorney arises in the temptation to oppose recognizance and other low bonds in order to obtain a higher amount from the collection of bond fees for misdemeanors or felonies. And the Sheriff is financially incentivized to make arrests in lieu of release on recognizance.

The Supreme Court of the United States has held repeatedly that financial assessments, such as the one imposed by Alabama’s bail bond “tax,” may violate the Due Process Clause of the Costitution if such assessments create a “possible” financial conflict of interest, either personal or structural, or even just a “temptation” which would undermine the defendant’s right to an impartial judicial system. Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 57 (1972).

In Tumey, the mayor of the town was responsible for trying the case and also received “the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him except by the defendant if convicted.” Tumey, at 520. The Supreme Court of the United States held that “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused” is a violation of the Due Process Clause. Id. at 532.

In Connally v. Georgia, 429 U.S. 245 (1977), the Supreme Court extended Tumey from mayors to magistrate judges. In that case, the magistrate testified that he became a justice of the peace “primarily because he was interested in a livelihood”, that there was no salary involved, that his compensation was directly tied to the number of warrants he issued, and that from January 1, 1973 until the date of his testimony, he had issued approximately 10,000 warrants for either search or arrest. The justice of the peace collected no money if the warrant was not issued.  The Supreme Court concluded that the rationale from Tumey and Ward was applicable to Connally.  Because the financial welfare of the magistrate was “enhanced” by issuing warrants and not enhanced by determining that no warrant should be issued, it offered the “possible temptation” which was a violation of the Due Process rights of the accused, because the magistrate had a “direct, personal, substantial, pecuniary interest” in the scheme. Thus due process is violated when there is a personal financial benefit from the assessments, as there is for the Circuit Clerk and staff, since money may be used to grant raises and provide salaries.

In Ward, a major portion (at times over half) of the village’s annual revenue was brought in through fees and fines collected from ordinance violations and traffic offenses.  These cases were presided over by the mayor of the town.  The State attempted to argue that the fact that such a large percentage of funds came from the mayor’s court did not rob him of his ability to be impartial.  The Supreme Court of the United States disagreed, holding that “the test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.’”  The Court held that the mayor’s responsibility for town finances, as the village’s chief executive, provided a temptation to “maintain the high level of contribution from the mayor’s court.” The mayor’s occupation of “two practically and seriously inconsistent positions, one partisan and the other judicial [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.”  Thus, due process may be violated even where there is no personal financial benefit from the assessments, such as the situation where the District Attorney’s office is benefitted by the collection of bail bond fees and thus, necessarily, has a temptation to oppose recognizance and lower bonds.

Proof of an actual conflict of interest is unnecessary, as demonstrated in the case of Brown v. Vance, 637 F. 2d 272 (5th Cir. 1981). The test is to be leveled at the system, itself, rather than at the individual judge.  The mere possibility of bias, then, is sufficient to violate due process. The Brown court held that the compensation system for judges in two Mississippi counties created an incentive for judges to favor the State in criminal cases. Judges were compensated regardless of whether the defendant was convicted or not, however, their compensation was also tied to the number of cases filed within the individual judge’s court.  While officers were supposed to assign cases to judges evenly, statistics showed, and the Chief of the Mississippi Highway Patrol, admitted that officers were more likely to assign a case to a judge whom they believed would be more likely to convict the defendant. Citing Tumey and Ward, the 5th Circuit held that there was no need to show either “actual judicial prejudice” or “direct pecuniary interest” because the system itself caused “possible temptation to the average man as a judge to forget the burden of proof required to convict to the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.” The Mississippi fee system was found to violate the due process rights of criminal defendants.

The Sixth Circuit ruled similarly in DiPiero v. City of Macedonia, 180 F. 3d 770 (6th Cir.1999). In that case, the Court held that the possibility of structural financial conflict of interest, which violated due process, could exist in the event of a possibility that a judge, because of his or her institutional responsibilities, may rule in a way that will aid the institution that the judge represents. Mere possibility of temptation is all that is required by the Supreme Court’s binding opinions.

In Rose v. Vill. of Peninsula, 875 F. Supp. 442, 451 (N.D. Ohio 1995), the Appellant alleged that the Mayor had encouraged city police to charge people with violations of city ordinances, rather than state laws, to increase the amount of funding for the village. The Mayor also served as the judge in the mayor’s court, where he heard cases and imposed monetary fines for traffic violations.  The Appellant argued that he could not be an impartial judge since he was also responsible for the city’s finances. The Court looked at the percentage of village revenue comprised by fees and fines from the mayor’s court and determined that over 10% of the village’s general fund was derived from such. The Court held this percentage to be “substantial”. Id. While substantiality was not the solely determining factor, the Court held that it was a major factor in determining that the scheme violated the due process rights of the accused.

Reviewing courts are likely to find a due process violating where the judiciary controls the financial assessments generated from adjudications, such as is the case with Alabama’s scheme, wherein the court clerk sets the value of the bail. In Augustus v. Roemer, the state of Louisiana imposed a bail bond fee schedule remarkably similar to the one currently in place in Alabama. In that case, the Court held the scheme unconstitutional because the courts exercised total control over the funds collected, which were used to run the criminal justice systems in the parishes.  This created a plain temptation and was a violation of due process.

There is a conflict in Alabama scheme. To start,

  • The Sheriff and his deputies have a structural conflict of interest because Sheriff’s fund is impacted by the decision whether to arrest a person or release with merely a court citation.
  • The court clerks have a structural conflict of interest because the decision of whether to issue a warrant and establish a bail bond, and to set a value for said bail bond, rests entirely with them. The receipt of funds into the court clerk’s funds is directly tied to whether or not a warrant and bond is issued. Secondly, the amount of financial revenue taken in by the clerks under the bail bond fee schedule would be significantly reduced by allowing the accused judicial public bail, recognizance or signature bonds, thus creating a further structural conflict of interests.
  • The magistrates and court clerks have an additional conflict of interest in that financial receipts are directly determined by the amount of the bond which is, again, set by the clerks.
  • A fourth structural conflict exists because there are executive and judicial responsibilities exercised by clerks, financial assessments make up substantial portions of the budget, and the judiciary exercises substantial discretion in spending those proceeds.
  • Finally, a structural conflict exists for the clerks because the clerks have almost complete discretion over the proceeds of the bail bond fee, including the ability to provide salaries and raises, after exercising their power to set the value of bond, on which the fee is calculated.
  • The District Attorney, likewise, is subject to a “temptation” and conflict of interest because his office, too, will receive funds from the proceeds of the bail bond fees, thus making it in his interest to oppose recognizance, signature, public judicial or other low bond mechanisms.

I’ll conclude with a return to Justice O’Conner’s letter to Ohio judges:

I know the pressure that many of you face to generate revenue, to increase collection rates, to “self-fund” as if the courts are a business trading in a commodity. But court cases are not business transactions. We do not buy and sell a commodity; we perform a public service. Nevertheless, focus on the “business” of the courts appears at times to be overtaking interest in our fundamental responsibility to do justice…Pressure that courts self-fund can create a system of justice that is premised on a “pay-as-you-go” model, not the principle that courts and the administration of justice are a fundamental and general obligation of government. If the existence of a court is dependent upon self-funding, we run the danger of creating a system of built-in incentives for courts to use judicial power for self-preservation not the promotion of justice for all. . . . Judges and court staff cannot be seen as collection agents. Whether courts contribute to a city’s
bottom line or generate sufficient cash flow for its own operations should not be even a secondary thought considering the role of the judiciary in our system of government.


Exonerated off death row for wrongful “shaken baby” case

Sabrina Butler was first woman exonerated from death row.