Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P11 pps

representative believed that all the punishments authorized by the government comported with the cruel and unusual punishments clause. The representative might not have considered whether a particular punishment was in any way cruel or unusual as he cast his vote for ratification. Conversely, the represent ative might have cast his vote for ratification primarily because he believed that a certain punishment would be deemed crue l and unusual under the Eighth Amendment. No DOCUMENTARY EVIDENCE from the state ratification proceedings reflects which punishments parti- cular representatives found permissible or impermissible under the Eighth Amen dment. Nor is there much evidence indicating that the Framers intended their understanding of the Constitution to be binding on subsequent generations. JAMES MADISON, who was the primary architect of the Bill of Rights, believed that the thoughts and intentions of the Framers should have no influence on courts when they interpret the provisions of the Constitution. “As a guide in expounding and applying the provisions of the Constitutions,” Madison wrote, “the debates and incidental decisions of the [Constitutional] Convention can have no authoritative charac- ter.” For this reason, Madison refused to publish his Notes of the Debates in the Federal Convention during his lifetime. Another criticism of the narrow, originalist approach emanates from the language of the Eighth Amendment itself. Proponents of this viewpoint observe that the Eighth Amendment is written in abstract language. It prohibits “exces- sive” bail and “excessive” fines and does not set forth any specific amount that judges may use as a measure when setting bail or imposing fines. Although it prohibits cruel and unusual punish- ments, it does not enumerate which criminal penalties should be abolished. The Framers could have drafted the Eighth Amendment to explicitly outlaw certain bar- baric punishments. They obviously were fami- liar with ways to draft constitutional provisi ons with such specificity. For example, Article I, Section 9, of the Constitution provides that “[n]o BILL OF ATTAI NDER or ex post facto Law shall be passed.” No clearer or more precise language could have been used in this provision. The Framers could have employed similar concrete language for the Eighth Amendment, some critics argue, but did not choose to do so. Although there is not enough evidenc e to determine conclusively the appropriate manner in which the Framers expected or hoped that the Constitution would be interpreted, the origins of the Eighth Amendment are fairly clear. The notion that the severity of a punishment should bear some relationship to the severity of the criminal offens e is one of the oldest in Anglo-Saxon law. In 1215, the Magna Carta, the ancient charter of English liberties, provided, “A free man shall not be [fined] for a small offense unless according to the measure of the offense, and for a great offense he shall be [fined] according to the greatness of the offense” (ch. 20). By the seventeenth century, England had extended this principle to punishments that called for incarceration. In one case, the King ’s Court ruled that “imprisonment ought always to be according to the quality of the offence” (Hodges v. Humkin, 2 Bulst. 139, 80 Eng. Rep. 1015 [K.B. 1615][Croke, J.]). In 1689 the principle of proportionality was incorporated into the English Bill of Rights, which used language that the Framers of the U.S. Constitu- tion later borrowed for the Eighth Amendment: “[E]xcessive bail ought not to be required, nor excessive fines imposed, or cruel and unusual punishments inflicted.” Nine states adopted similar provisions for their own constitutions after the American Revolution. The concerns underlying the Eighth Amendment were voiced in two state- ratification conventions. In Massachusetts, one representative expressed “horror” that Congress could “determine what kind of punishments shall be inflicted on persons convicted of crimes” and that nothing restrained Congress “from inventing the most cruel and unheard-of punishments” that w ould make “racks” and “gibbets” look comparatively “mild” (as quoted in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 [1972]). In Virginia, PATRICK HENRY was worried that Congress might legalize torture as a method of coercing confessions from criminal defend ants and that the government should be prevented from employing such “cruel and barbarous” tactics (as quoted in Furman). The concerns expressed by these represen- tatives were legitimate in light of the punish- ments authorized by many states at the time the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EIGHTH AMENDMENT 89 Eighth Amendment was ratified. These punish- ments ranged from whipping, branding, and the pillory to various methods of mutilation, includ- ing the slitting of nostrils and the removal of body parts. The death penalty was also prevalent. If James Madison or the other Framers intended to preserve these forms of punishment, they kept their intentions to themselves. Application of the Eighth Amendment to Specific Punishments The U.S. Supreme Court has continued to consider specific instances of punishment in order to determine whether they violate the Eighth Amendment. In Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002), the Court considered a case where Alabama prison officers had handcuffed a prisoner to a hitching post on two occasions, once for more than seven hours without water or a restroom break. Use of a hitching post, according to the Court, violated the Eighth Amendment. The prisoner in Hope brought a CIVIL ACTION against the officers, who claimed that they were protected by the doctrine of qualified immunity, which applies when state actors are not put on notice that their conduct violates judicial precedent or other federal or state law. Precedent from the Eleventh Circuit Court of Appeals, which includes the state of Alabama, was clear that this type of punishment was unlawful. Moreover, the DEPARTMENT OF JUSTICE had submitted a report to the Alabama Department of Corrections (ADOC), informing the state agency that the use of hitching posts violated the Constitution, and the ADOC had issued regulations forbidding that form of punishment. Because the officers had had notice that their actions were unlawful, qualified immunity did not apply. Other punishments that have been the subject of Eighth Amendment challenges are the three strikes law, which increase punish- ment for repeat offenders. Under such laws, when an offender commits his or her third crime, the severity of the crime is elevated. Several defendants, particularly in California, have been sentenced to lengthy prison terms after committing relatively minor offenses. In Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003), the U.S. Supreme Court held that the three-strikes law did not violate the Eighth Amendment. In that case, the defendant had stolen nine video tapes worth a total of $153, usually a misdemeanor offense under California law. However, the defendant had received two previous convic- tions, and when he was convicted on two counts of petty THEFT, the counts were considered his strikes three and four. The trial court elevated the charges to felonies and sentenced the defendant to life in prison with no possibility of parole for 50 years. The Court allowed the sentence to stand, reversing a decision by the Ninth Circuit Court of Appeals. On the same day it decided Lockyer, the Court ruled that a sentence of 25 years to life given to a defendant who had stolen three golf clubs worth $399 apiece was not cruel and unusual punish- ment. The case of Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003), unlike Lockyer, was an appeal from a California state court that had found nothing unconstitutional about the three-strikes law in California. The two rulings made it clear that states may prescribe elevated punishment for repeat offenders without violating the Eighth Amendment, even if the punishment does not meet the actual crime that led to the punishment. In 2008, the Supreme Court held that the Eighth Amendment prohibits the death penalty for rape, reaffirming a previous decision handed down in 1997. In the 2008 case, the victim was the defendant’s eight-year-old stepdaughter. But the Court said that the age of the victim did not make the punishment constitutional, at least in cases where the crime did not result, and was not intended to result, in death of the victim. Kennedy v. Louisiana, —U.S.—, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008); Opinion Modified on Denial of Rehearing by Kennedy v. Louisiana, —U.S.—,129 S. Ct. 1, 171 L. Ed. 2d 932 (2008). The fact that the U.S. military currently authorizes the death penalty for the rape of a child did not influence the Court’sdecision.“[A]uthorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context,” the Court said. The Court concluded that the evolving standards of decency, as reflected by the national consensus against the death penalty for rape or child rape where death is not intended an d does not result to the victim, makes that p unishment cruel and unusual. In another high-profile case from the 2008 term, the U.S. Supreme Court entered an order creating the possibility that detainees at the U.S. Naval Station in Guantanamo Bay, Cuba, may GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 90 EIGHTH AMENDMENT be able to recover compensation for the torture they allegedly endured while imprisoned there. Without opinion, the Court granted certiorari in Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008), and then summarily vacated the judgment of the U.S. Court of Appeals for the District of Columbia Circuit. Rasul v. Myers, —U.S.—, 129 S. Ct. 763, 172 L. Ed. 2d 753 (2008). The Court also remanded the case for reconsideration in light of Boumediene v. Bush, —U.S.—, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008). The Rasul case was originally brought in 2004 by four British citizens, former inmates at Guantanamo Bay, seeking damages for cruel and unusual punishment under the Eighth Amendment, among other causes of action. The complaint was filed against then -secretary of defense Donald Rumsfeld and various U.S. military officers stationed at the naval station in Cuba. The complaint alleged that the plaintiffs were detained without charges for more than two years. Paragraph 6 of the complaint summarizes the allegations in detail: “In the course of their detention by the United States, Plaintiffs were repeatedly struck with rifle butts, punched, kicked, and slapped. They were shackled in painful stress positions for many hours at a time, causing deep flesh wounds and permanent scarring. Plaintiffs were also threatened with unmu zzled dogs, forced to strip naked, subjected to repeated forced body cavity searches, intentionally subjected to extremes of heat and cold for the purpose of causing suffering, kept in filthy cages for 24 hours per day with no exercise or sanitation, denied access to necessary medical care, harassed in practicing their RELIGION, deprived of adequate food, deprived of sleep, deprived of communication with family and friends, and deprived of information about their status.” Additionally, the plaintiffs alleged they suffered extreme daytime heat of up to 100 degrees as their cells were in direct sunlight; lengthy periods of sleep deprivation caused by floodlights, loud music, regular nighttime awakenings; a perpetual state of hunger, being fed inadequate amounts of food that included stale bread, rotten fruit and ready-to-eat meals 10 to 12 years beyond their usable date; long periods of isolation in pitch black where they endured extremes of temperature—freezing nights as cold air was blown through the block when the air outside was 40 degrees, but stifling days when temperatures outside were about 100 degrees and air conditioning was turned off. One PLAINTIFF alleged that he spent two weeks in an isolation cell “covered in human excrement.” The complaint further alleged that Rumsfeld signed a memorandum in December 2002 approving many of these interrogation techni- ques. According to the complaint, Rumsfeld admitted in a June 2004 press release that he was personally consulted when certain techni- ques were to be used and that techniques he authorized were not permitted under the Army Field Manual, which provides: (1) the use of force, mental torture, and inhumane treatment of any kind is prohibited by domestic and INTERNATIONAL LAW and that their use may lead to criminal prosecution; and (2) experience in di- cates that the use of force is not necessary to gain the cooperation of sources for interro- gation. Therefore, the Army Field Manual concludes, “the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts and induce the source to say whatever he thinks the interroga- tor wants to hear.” The plaintiffs in Rasul were freed and returned to England in March 2004. The complaint alleges that they never engaged in combat, carried arms, participated in terrorist activities, or conspired with any terrorist orga- nization, and that given the circumstances under which they were apprehended, the United States could have had no good-faith reason to believe they had done so. In short, the complaint alleged that the plaintiffs’ detentions were arbitrary and violated the plaintiffs’ right to be free from cruel and unusual punishments and other rights. The U.S. District Court dismissed the action. Rasul v. Rumsfeld, 414 F.Supp.2d 26 (2006), The U.S. Court of Appeals for the D.C. Circuit affirmed. It held: (1) the plaintiffs h ad no constitutional rights because they were not U.S. citizens and had no property or presence in the United States; and (2) even if such rights theoretically existed, the doctrine of qualified immunity would operate to protect the individual defendants from liability because such rights were not clearly established at the time of the alleged events, and thus no reasonable government official would have known that these detainees were protected by the Constitution. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EIGHTH AMENDMENT 91 After the decision in Rasul, the Supreme Court decided Boumediene in June 2008, holding for the first time that the U.S. Constitution extends its reach to those held at Guantanamo Bay, giving the detainees the right to seek HABEAS CORPUS relief in U.S. courts. Because the United States had “complete jurisdiction and control over the base,” the Court in Boumediene reasoned, it had de facto sovereignty over Guantanamo, even though, as the government argued, Cuba maintained de jure sovereignty by virtue of a lease. “Our basic charter cannot be contracted away like this,” the Court said. The Constitution grants Congress and the president the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. “Thus, the political branches do not have power” to switch the Constitution on or off at will. Notwithstanding the Supreme Court’sdeci- sion in Boumediene, the D.C. Circuit in Rasul affirmed its earlier holding. It ruled that the former detainees at Guantanamo Bay did not have clearly established rights under the due process clause or cruel and unusual punishment clause. Thus, Donald Rumsfeld and the other federal officials named in the complaint were entitled to qualified immunity from liability for alleged violations of detainees’ rights. (Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009). On December 14, 2009, the Supreme Court denied certiorari to review the decision. FURTHER READINGS Bork, Robert. 1990. The Tempting of America: The Political Seduction of the Law. Free Press. Dolovich, Sharon. 2009 “Cruelty, Prison Conditions, and the Eighth Amendment.” New York University Law Review. October. Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge, MA: Harvard Univ. Press. Lewis, Thomas T., ed. 2002. The Bill of Rights. Pasadena, CA: Salem Press. Markel, Dan. 2009 “Executing Retributivism: Panetti and the Future of the Eighth Amendment.” Northwestern University Law Review. Summer. Monk, Linda R. 2000. The Bill of Rights: A User’s Guide. 3d ed. Alexandria, VA: Close Up. CROSS REFERENCES Criminal Law; Criminal Pr ocedure; Cruel and Unusual Punishment; Original Intent; Prisoners’ Rights. v EISENHOWER, DWIGHT DAVID Dwight David Eisenhower achieved pro- minence in military and political careers and as the 34th president of the United States. Eisenhower was born October 14, 1890, in Denison, Texas. A graduate of West Point Military Academy in 1915, he served during Dwight D. Eisenhower. DWIGHT D. EISENHOWER LIBRARY Dwight David Eisenhower 1890–1969 ❖ ◆ 1890 Born, Denison, Tex. ◆ 1915 Graduated from West Point, began 37- year Army career 1942 Directed battle operations in Europe 1965 Waging Peace published 1953–61 Served as thirty-fourth president of the United States 1914–18 World War I 1969 Died, Washington, D.C. ◆◆ 1954 Helped form SEATO 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War ▼▼ ▼▼ 19001900 18751875 19251925 19501950 19751975 1929–33 Served as administrator in the Assistant Secretary of War Office ❖ 1935–40 Served in the Philippines 1944 Awarded rank of five-star general ◆ 1950 Established defense corps as part of NATO 1948–50 Served as president of Columbia University 1945–48 Served as Army chief of staff and commander of U.S. occupation forces in Germany ◆ YOU DON’T PROMOTE THE CAUSE OF PEACE BY TALKING ONLY TO PEOPLE WITH WHOM YOU AGREE . —DWIGHT EISENHOWER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 92 EISENHOWER, DWIGHT DAVID WORLD WAR I as officer in charge of Camp Colt, which was located at Gettysburg, Pennsylvania, and which served as the center of training for the U.S. Army Tank Division. From 1922 to 1924, Eisenhower was assigned to a post in the Panama Canal Zone. Five years later, he served as an administrator in the Assistant Secretary of War Office and acted in this capacity until 1933. In 1935 he was stationed in the Philippine Islands, and, for the next five years, he displayed his exceptional military expertise. As a result of his achievements, Eisenhower—promoted to general—became chief of operations in Washington, D.C., in 1942. Throughout the years of WORLD WAR II, Eisenhower continued to demonstrate his military proficiency. In 1942 he was in charge of the battle operations in Europe. He subse- quently directed the U.S. maneuvers in North Africa, and in 1943 commanded the Allied armies there. Later that year he supervised the victorious attacks on Sicily and the mainland of Italy. As a result of these successes, he was transferred to England to serve as supreme commander of the Allied Expeditionary Force. He was instrumental in coordinating the ARMED SERVICES of the Allies and in directing the use of land, sea, and air battle units in the war maneuvers in Europe. In 1944 Eisenhower was awarded the prestigious rank of five-star general. He was assigned to Germany the following year, and subsequently became Army chief of staff. Eisenhower resigned as chief of staff in 1948 and entered the education field, serving as president of Columbia University. Two years later he returned to the military and established a defense corps as part of the NORTH ATLANTIC TREATY ORGANIZATION,whichwas composed of countries determined to prevent Soviet aggression. In 1952 Eisenhower officially ended his association with the military and began a brilliant political career. As a Republican, he campaigned for the office of U.S. president against Democrat ADLAI STEVENSON;hewas victorious, primarily because of his impressive military achievements and his pledge to end the war in Korea. As president, Eisenhower was instrumental in the achieve ment of peace in Korea in 1953. His main concern was the growing threat of the spread of COMMUNISM, and he adopted a policy—similar to that of predecessor Harry S. Truman—to keep com- munism in check. As part of this program, the United States formed defense treaties with South Korea and Formosa, now Taiwan; South Vietnam received military assistance; and, in 1954, the SOUTHEAST ASIA TREATY ORGANIZATION (SEATO) was created to prevent the spread of communism in Far Eastern countries. Despite Eisenhower’s intent to stop the growth of communism, he sought to reach a harmonious relationship with the Soviets, as was evidenced by his speeches at the 1955 Geneva Summit Conference. Participants in- cluded Eisenhower, Nikolai Bulganin, and Chairman Nikita Krushchev from the Soviet Union, Anthony Eden from Great Britain, and Edgar Faure from France. No agreements were reached, but foreign relations were strengthened. In 1956 Eisenhower again defeated Adlai Stevenson for the presidency. During this administration he became a proponent of the CIVIL RIGHTS MOVEMENT and ordered the federal militia to Little Rock, Arkansas, in 1957 to ensure the enforcement of desegregation of schools; in addition, he was responsible for CIVIL RIGHTS legislation. Eisenhower’s second administration was again hampered by global tensions, and he issued the Eisenhower Doctrine in response to these pressures. This program, drafted in 1957, provided that any country in the Middle East requiring military and economic assistance to counteract the threat of communism would receive it upon request. In 1958 the doctrine was put to its first test in Lebanon when the U.S. Marine Corps was dispatched to that country. World tensions continued through the latter years of his second term, and in 1960 Eisenhower was criticized publicly by Soviet leader Krushchev for condoning ESPIONAGE flights over Soviet territory. A year later, Eisenhower severed relations with Cuba after Communist leader Fidel Castro assumed Cuban leadership. In addition to his presidential and military achievements, Eisenhower wrote three note- worthy publications: Crusade in Europe (1948), a chronicle of the defeat of Germany in World War II by the Allies; Mandate for Change (1963), an account of his years as president; and Waging Peace (1965). Eisenhower died March 28, 1969, in Washington, D.C. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EISENHOWER, DWIGHT DAVID 93 FURTHER READINGS Krieg, Joann P. 1987. Dwight D. Eisenhower: Soldier, President, Statesman. Westport, CT: Greenwood Perret, Geoffrey. 2000. Eisenhower. New York: Random House. Wicker, Tom. 2002. Dwight D. Eisenhower. New York: Times. CROSS REFERENCES Dulles, John Foster; School Desegregation; Warren Court. EJECTMENT One of the old forms of action for recovery of the possession of real property. Originally the ownership of land in England could be passed to another only by delivering the actual possession of the land. The present owner passed title to another by picking up a clod of dirt on the land and handing it to the other person in front of others from the community. This ceremonial act from ancient times was called LIVERY OF SEISIN, or delivery of possession. Instead of a clod, a twig or a key could be handed over as a symbol of ownership, but only later was it permissible to deliver the symbol of ownership anywhere but on the land itself. As time passed and writing became more common, a written deed could symbolize the delivery of ownership. The purpose of the ceremony was to make the acquiring of land a public act generally known in the community, so that disputes were less likely to arise. Everyone in old England was tied to the land. The feudal land tenement system deter- mined social, economic, political, and legal rights. The stability of the system was founded on the security of each person’s right to poss ess or own a parcel of land. For this reason the first kinds of lawsuits were those allowing the assertion of rights in land. By the end of the thirteenth century, the action of TRESPASS was allowed against one who intruded on property possessed by the PLAINTIFF. The action of ejectment branched off from this as another action for the relief of one whose possession had been disturbed. By it, the plaintiff might claim that he or she had been in possession of a certain parcel of land and that the land had been taken by the DEFENDANT. The plaintiff could do this by obtaining from the clerk of the court a writ of entry—a command from the king telling the defendant to let the plaintiff go back on the land taken by the defendant or to appear in court to answer the charge. The defendant could then appear and deny that the plaintiff had been dispossessed or show that as the defendant, he or she had a prior and better right to hold the land. A trial was held to settle the issue. If it were found that the defendant had wrongfully withheld possession of the property from the plaintiff, he or she could be made to pay an amercement, or fine. This fine became a precedent for the later practice of awarding money damages to the successful plaintiff in addition to restoring possession of the land. Originally the action of ejectment was intended to protect the rights of a tenant who leased the land. Ultimately it came to be the principal method for determining the ownership of real property. When the question of title to land became the issue, it was essential to describe the property as carefully as it would be described in a deed to a purchaser. This led to enforcement of very strict technicalities by the court, and the action of ejectment became less attractive to plaintiffs because of the chance that the case would be lost on a point of procedure. The old action of ejectment does not exist in the early 2000s, but every state has a statute that outlines a modern procedure for recovering the possession of real property. Modern ejectment actions still are somewhat slow and expensive. They are most often used by landlords trying to recover possession of their premises from stubborn tenants. States generally have another law that permits the efficient ousting of a tenant by SUMMARY PROCEEDINGS,butalandlordcanpursue the simpler procedure only when the tenant has broken the lease in certain specified ways. The details of ejectment and summary proceedings to dispossess vary greatly from state to state. ELDER LAW As of the early 2000s, elder law is a relatively new specialty devoted to the legal issues of senior citizens, including estate planning, health care, planning for incapacity or mental incompetence, the receipt of benefits, and employment discrimination. The genesis of elder law can be found in the convergence of several profound social devel- opments. One phenomenon has been a rapid increase in the elderly population. According to the report Older Americans 2008: Key Indicators of Well-Being, which includes data on aging from 15 federal agencies, more than 12 percent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 94 EJECTMENT of the U.S. population was over the age of 65 in 2006, and that percentage was expected to rise to 20 percent by the year 2030. Another phenomenon is that, in general, older U.S. citizens are wealthier and better educated than ever before. The same report reflected that the average NET WORTH of individuals 65 years old or older increased nearly 80 percent over the last 20 years. These two circumstances have led to a rise in the collective political clout of older U.S. citizens. This newfound political strength has coincided with a trend toward cutting the government benefits and entitlements on which many elderly U.S. citizens depend. At the same time, healthcare costs have skyrocketed and an economic downturn has caused many elderly people to participate in the workforce longer. As a result of this confluence, more and more elderly U.S. citizens are seeking legal assistance to protect their financial interests. Another phenomenon behind the elder law specialization is that older people in the United States are subjected to AGE DISCRIMINATION by a populace obsessed with youth and fear of aging. Ageism stigmatizes the process of growing old and leads to abuse and neglect of some elderly persons. It also leads to discrimi nation against older workers by employers who perceive them as less productive than younger workers. These same older workers often receive higher pay because of their years with the company. For these reasons, employers often try to replace older workers with younger workers, who may produce more and work for less compensation. Elder law addresses these and other special legal problems of the elderly. A primary issue for older people is planning for final medical care. Many people, especially older individuals, write a LIVING WILL. This document gives individuals advance control over their final medical situation. Through a living will, a person may direct the termination of life support in the event of terminal illness, permanent unconsciousness, or brain death. An elderly person may wish to place healthcare decision making in the hands of a trusted THIRD PARTY, with an advance healthcare directive. All states allow this directive for property management, but not all states allow it for health management. The legislative trend favors the allowance of advance healthcare directives through a durable POWER OF ATTORNEY. This legal document allows an elderly person to appoint a trusted third party to make major healthcare decisions in case of mental incapacity. Without a durable power of attorney, a guardian will be appointed, in the event of mental incapacity, to make healthcare decisions. A conservator will be appointed to manage property. The appointment of a guardian and a conservator is accomplished by a judicial proceeding. This proceeding is involuntary, and the court is free to appoint whoever will act in the best interests of the person who is mentally incompetent. A court appointee may or may not be a friend or relative, so the durable power of attorney is a more effective w ay to ensure that a person’s healthcare wishes will be followed in case of sudden mental incapacity. Older p ers ons must also prepare for the possibility of living in a nursing home. N ursing homes are regula ted by the Nursing Home Reform Act (NHRA) ( 42 U.S.C.A. § 1396), enacte d as p art of the Omnibus Budget Reconciliation Act of 1987 (Pub.L.No.100–203, 101 Stat. 1330). The NHRA covers a host of requirements for the licensing of nursing homes. It also contains a list of t he r ights of nursing home residents. These rights include privacy, confidentiality, and freedom from abuse and restraint s. Many older people are forced to move into nursing homes to convalesce from surgery or to receive long-term custodial care. Without ade- quate planning, the financial consequences can Nursing Home Expenditures in the United States, 1960–2006 0 20 40 60 80 100 120 140 0.8 1960 4.0 1970 18.5 1980 52.6 1990 74.1 1995 95.3 2000 120.7 2005 124.9 2006 Year Amount spent (in billions) SOURCE: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, Health, United States, 2008. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION ELDER LAW 95 be devastating. Nursing homes are very expen- sive, ranging in cost from $2,000 to $6,000 a month. Most older individuals are unable to make such payments and must rely on the federal government programs Medicare and Medicaid for support. Medicare (42 U.S.C.A. § 1395 et seq.) is authorized by the U.S. Congress to provide for the acute health care of older citizens. Any person who is age 65 or older and is eligible for SOCIAL SECURITY benefits is entitled to Medicare coverage. Medicaid (42 U.S.C.A. § 1396 et seq.) pays for the medical expenses of low-income individuals who are aged, blind, or disabled. Medicare is more available than Medicaid, but it generally provides less coverage. For example, Medicare covers nursing-home care for only a short period of time, whereas Medicaid provides extended nursing-home care but requires that the recipient be impoverished to qualify. In other words, elderly persons with property and income have to deplete their own resources before qualifying for Medicaid’s coverage of long-term health maintenance. Seniors who need custodial care but do not qualify for Medicaid often buy private long- term care insurance. This type of insurance pays for nursing-home care and home health care and is governed by state statutes. The issues surrounding Medicare and Med- icaid are complex, amorphous, and political. The coverage under these program s is subject to numerous exceptions and caveats, and many people, politicians and others, dispute the wisdom of public funding of health care for seniors. Medicare and Medicaid exist only so long as Congress maintains the statutes that enable them, and the statutes can be changed to increase or decrease eligibility and coverage. After retirement, seniors rely on a variety of benefits for financial support. One common source is Old-Age Survivors and Disability Insurance (42 U.S.C.A. § 401 et seq.), a part of the Social Security program. Social Security provides lifetime monthly payments after age 65, derived from payroll taxes collected from employees and employers. The amount of the applicant’s monthly payment is based on her or his earnings history. Eligibility for Social Security benefits is determined by a measure called quarters of coverage. Generally, the applicant must have earned a specified minimum amount of wages within a three-month period at least 40 times . Anyone over age 65 who has earned 10 years, or 40 quarters, of coverage qualifies for Social Security. Social Security also provides benefits for surviving spouses and children under age 18, and disability benefits for those unable to work until an expected retirement age. Monthly Social Security benefits will be adjusted up or down if older workers postpone retirement or retire early, respectively. Wages earned after retirement and above a certain amount will lower monthly Social Security benefits, and benefits may be taxed by the federal government if a recipient gains income from another source. A di spute over qualification or payments must be heard by the Social Security Administration before it can go to court. Many seniors receive income from other sources. Military personnel wounded in action qualify for veterans’ benefits. The amounts of these benefits vary with the severity of the disability. Veterans’ benefits are also available to parents, children, and spouses of deceased veterans. The Veterans Benefits Administration processes claims and oversees the dispersal of veterans’ benefits. Appeals must proceed through administrative hearings and reviews before they can be heard in court. About half of all older people receive benefits from pension plans. A pension is compensation paid by an employer to an employee upon retirement. Pensions are not a general public benefit paid by the government, and thus, pension disputes are not required to pass through any administrative hearings and instead go directly to court. Unionized companies, large employers, and the government typically provide pensions for their workers. The Pension Benefit Guaranty Corporation, a federal agency autho- rized by the U.S. Congress, provides insurance to workers whose employers are unable to redeem pension plans. Supplemental Security Income (SSI) is a federal program created to provide cash pay- ments to aged, blind, or disabled persons living below the poverty line. An elderly person with no income and no Social Security payments can benefit from SSI. Any senior who qualifies for SSI automatically qualifies for Medicaid. A denial-of-benefits or denial-of-payment dispute must be heard by the Social Security Adminis- tration before it can be heard in court. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 96 ELDER LAW Elder law is also concerned with protecting older workers. The primary piece of legislation in this area is the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621–634 (1996). Originally enacted by Congress in 1967, the ADEA protects workers age 40 and over from discrimination in hiring, firing, compensation, and conditions of employ- ment. The purpose of the ADEA is to promote the employment of older persons, prohibit arbitrary age discrimination in employment, and encourage solutions to the problems associ- ated with aging workers. However, not all workers over age 40 are protected by the ADEA. Workers in a business with fewer than 20 employees are not protected. Moreover, executives and policy makers are excluded if they have nonforfeitable retirement benefits of at least $44,000 per year. To establi sh a case of discrimination in hiring, generally, a person must (1) be age 40 or over; (2) apply for and be qualified for a job for which the employer was seeking applicants; (3) be rejected for the job; and (4) show that the position remained open after the rejection, and that the employer sought applicants with similar qualifications or filled the position with a younger person possessing comparable qualifi- cations. In case of discharge, a worker must gather information showing that the reason for the discharge was old age. A worker may also use statistics to try to prove a pattern of discrimination in hiring or firing. A clause in the ADEA allows employers to defend an age discrimination suit by showing that the refusal to hire or the discharge was based on “reasonable factors other than age” (29 U.S.C.A. § 623[f][1]). Thus an employer may discharge an elderly worker for lack of production, even if age is contributing to the lack of production. Employers may facially (with obvious intent) discriminate based on age if youth is a “bona fide occupational qualification reasonably necessary to the normal operations of the particular business” (29 U.S.C.A. § 623[f]). This defense is effective where a position calls for physically strenuous activity or involves public safety, such as that of airplane pilot, air traffic controller, or bus driver. The U.S. Supreme Court has noted that older people do not constitute a discrete and insular group. Instead, they form a fluid group of which everyone with a normal life span will be a member. According to the Supreme Court, this means that older individuals, as a group, do not need “extraordinary protection from the majoritarian process” (Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed 2d 520 [1976]). Because aging necessarily involves some physical and mental deterioration, age discrimination in em ploy- ment receives less judicial scrutiny than does either racial or SEX DISCRIMINATION. Many state bar associations have formed elder law sections. These sections consist of attorneys who volunteer time to keep older people abreast of changes in the law that affect them as a group. The challenge for the law is to find and enforce the rights of older citizens, being ever mindful that the human frailties that make elder law necessary await everyone. FURTHER READINGS Dayton, A. Kimberley, Molly M. Wood, and Julia Belian. 2007. Elder Law: Readings, Cases, and Materials. 3d ed. Newark, N.J.: LexisNexis/Matthew Bender. Federal Forum on Aging-Related Statistics.Older Americans 2008: Key Indicators of Well-Being. Available online at www.AgingStats.gov (accessed May 16, 2009). Flint, Margaret M. 1995. “Nursing Homes.” Practising Law Institute/Estate Planning and Administration 239. Frolik, Lawrence A., and Richard L. Kaplan. 2006. Frolik and Kaplan’s Elder Law in a Nutshell. 4th ed. St. Paul, MN: West. Kass, Richard G. 1986. “Early Retirement Incentives and the Age Discrimination in Employment Act.” Hofstra Labor Law Journal 4. Lofton, F. Douglas. 1995. “Determining Legal Mental Capacity.” National Bar Association Magazine 9 (June). McCue, Judith W. 1995. “Disability Planning for the Senior Citizen.” American Law Institute-American Bar Associa- tion C126. Schwartz, Ronald J. 2005. Law and Aging: Essentials of Elder Law. Upper Saddle River, N.J.: Pearson/Prentice Hall. Takacs, Timothy L. 2007. Guide to Elder Law Practice. Newark, N.J.: LexisNexis/Matthew Bender. CROSS REFERENCE Death and Dying. ELECTION CAMPAIGN FINANCING Before 1974, most election campaigns were financed by corporations and small groups of wealthy donors. In 1972, for example, insurance executive W. Clement Stone contributed approximately $2.8 million directly to the re-election campaign committee of President Richard M. Nixon. Such contributions raised increasing concerns of undue influence on the selection of available candidates and on GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ELECTION CAMPAIGN FINANCING 97 subsequent legislation. Many in Congress felt the need to limit the influence of money in political cam paigns in order to regain the confidence of the public in the wake of the Watergate scandal, a series of events that ultimately led to charges of abuse of power and obstruction of justice involving Nixon’s campaign activities. Election campaigns for public office are expensive. Candidates need funding for support staff, advertising, traveling, and public appear- ances. Unless they are independently wealthy, most must finance their campaigns with con- tributions from individuals and from businesses and other organizations. In the early 2000s, state and federal laws set limits on campaign con- tributions; create contribution disclosure require- ments; and impose record-keeping requirements for candidates seeking elective office. In 1974 Congress made radical changes to the Federal Election Campaign Act of 1971 (FECA) (2 U.S.C.A. §§ 431–456 [1996]). In its amended form, FECA limited contributions to individual candidates and political parties; personal spending by candidates; overall cam- paign spending for federal office; and indepen- dent spending by groups not directly associated with a candidate’s campaign. The act also created a check-off box on federal tax forms, allowing taxpayers to contribute a dollar to a presidential campaign fund, and it devised a formula for payments from the fund. James L. Buckley, who was running for the U.S. Senate from New York, and other candidates for federal office challenged FECA in federal court. In 1976, the Supreme Court struck down the act’s spending limits in Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). According to the high court, setting mandatory limits on the amount of money a candidate may spend in a campaign violated the FIRST AMENDMENT. However, the Court upheld the act’s disclosure requirements, private contribution limits, and provision for the public funding of qualified presidential candidates. FECA was the subject of subsequent liti- gation. The Supreme Court, in Colorado Repub- lican Federal Campaign Committee v. FEDERAL ELECTION COMMISSION , 518 U.S. 604, 116 S. Ct. 2309, 135 L. Ed. 2d 795 (1996), struck down spending limits under the FECA imposed on political parties that were deemed independent expenditures, in other words, spending that was not coordinated with a candidate’s congressional campaign. The 1996 case did not resolve the issue of whether the federal provision that limited expenditures by political parties for spending done in coordination with a candidate’s campaign violated the First Amendment. After more litigation in the lower courts, the Supreme Court again considered the case in Federal Election Commission v. Colorado Republi- can Federal Campaign Committee, 533 U.S. 431, 121 S. Ct. 2351, 150 L. Ed. 2d 461 (2001). The second case concerned whether the FECA restrictions on coordinated expenditures by political parties violated the First Amendment. The Court characterized coordinated expendi- tures by political parties as the functional equivalent of campaign contributions by indivi- duals and non-party groups, ruling against arguments by the Colorado Republican Federal Campaign Committee that such expenditures were essential to its support of a candidate. The Court, in an opinion written by Justice DAVID H . SOUTER, found that the limitations on coordi- nated expenditures comported with First Amend- ment free speech and associational guarantees. From 1998 through 2002, JOHN MCCAIN (R-Ariz.) and Russ Feingold (D-Wisc.) intro- duced a series of bills, popularly known as McCain-Feingold. These efforts were finally successful when, in 2002, Congress approved the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2 U.S.C.A. §§ 431 et seq.). The statute amended the FECA by adding new restrictions and regulations on soft money donated to a political party; independent and coordinated expenditures; hard-money contributions; and communications that take place during elections. Litigation attacking the constitutionality of the new statute commenced shortly after its enactment. The case eventually reached the Supreme Court. The Court, in McConnell v. Federal Election Commission, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003), upheld most of the law’s provisions. In 2007, the Court struck down the law’s ban on issue advertise- ments 30 days preceding a primary election or 60 days preceding a general election. In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 2674 (2007), the Court ruled that unless an ad could not reasonably be interpreted as anything other GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 98 ELECTION CAMPAIGN FINANCING . in the Philippines 1 944 Awarded rank of five-star general ◆ 1950 Established defense corps as part of NATO 1 948 –50 Served as president of Columbia University 1 945 48 Served as Army chief of staff and commander of. Older Americans 2008: Key Indicators of Well-Being, which includes data on aging from 15 federal agencies, more than 12 percent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 94 EJECTMENT of the. CAUSE OF PEACE BY TALKING ONLY TO PEOPLE WITH WHOM YOU AGREE . —DWIGHT EISENHOWER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 92 EISENHOWER, DWIGHT DAVID WORLD WAR I as officer in charge of