Circuit Split: An Efficient Rule to Govern the Sampling of Sound Recordings

Circuit Split: An Efficient Rule to Govern the Sampling of Sound Recordings

 

CIRCUIT SPLIT: AN EFFICIENT RULE TO GOVERN THE SAMPLING OF SOUND RECORDINGS

Article | 106 KY. L. J. ONLINE | January 26, 2018

Spencer K. Gray[1]

On June 2, 2016, the Ninth Circuit Court of Appeals held that a horn hit lasting less than a quarter of a second, which had been physically copied from a copyrighted sound recording and subsequently modified, did not constitute actionable copyright infringement.[2] The Ninth Circuit opinion stands in direct opposition to the Sixth Circuit rule that any physical copying and use of a copyrighted sound recording constitutes actionable infringement, regardless of how small or whether the sample is modified. [3] No other circuit has addressed the issue of whether a de minimis copying constitutes infringement of a copyrighted sound recording.[4] In order to encourage the creative development of music in America and to protect individual property rights, an efficient and equitable rule for the sampling of sound recordings is necessary.

I. Introduction

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson [5]

 

The purpose of federal copyright law is “[t]o promote the Progress of Science and useful Arts.”[6] Intellectual property law is operating efficiently when it protects individual property rights and leaves room for creative growth. Musical creations that are truly original are exceedingly rare; a natural consequence of the reality that there exists a finite amount of musical notes and orders in which to organize them. Yet musicians continue to expand the public domain of music and create new works of art through a variety of methods, including “sampling.”

Sampling is defined as “the actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.” [7] Sampling may be advantageous to a musician for a number of reasons, including lowering production costs. For example, a burgeoning musician who wishes to utilize a drum break in their song may not be able to afford to hire a studio drummer to participate in a recording session, but may be able to copy a drum break that was previously recorded and copyrighted by someone else. This hypothetical also illuminates the argument for protecting the original musician from un-compensated sampling: the musician has invested time and money into the original production of the drum break, and allowing others to benefit financially from their investment would deter future investments in the creation of music. Although the veracity of this “tragedy of the commons” justification for the protection of sound recordings or intellectual property generally is worthy of debate, it is necessary for the purposes of this Note to assume that the protection of sound recordings is justified. But the question remains: how and to what extent should the recordings be protected?

While the horn hits at issue in VMG Salsoul, LLC v. Ciccone may have been quite small, they have resulted in substantial litigation and have illuminated an important legal issue that American courts are faced with today: should the physical copying and use of a copyrighted sound recording constitute infringement as a bright line per se rule, or, alternatively, should courts consider the de minimis, fair use, or substantial similarity defenses which have traditionally been applied in sound recording infringement cases? [8]

The Sixth Circuit has chosen to adopt a bright line rule that any and all copying and use of even small or relatively insignificant portions of a sound recording is copyright infringement. [9] This rule reflects a policy decision that prioritizes individual property rights and independent creation, perhaps to the detriment of “collaboration and the custom of borrowing in the performance of music.” [10] In its opinion, the Sixth Circuit Court reasoned that the “music industry, as well as the courts, are best served if something approximating a bright-line test can be established.” [11] In order to reach its conclusion that any and all copying of a protected sound recording was copyright infringement regardless of the size or intensity of the duplication, the court’s analysis was largely dependent on a “literal reading” approach to the interpretation of federal statutes governing copyright infringement. [12]

The Ninth Circuit, on the other hand, has opted to extend the de minimis requirement of copyright law to the sampling of sound recordings. A use of a sound recording is de minimis “only if the average audience would not recognize the appropriation.” [13]According to the Ninth Circuit Court of Appeals, “[w]hen considering a claimed infringement of a copyrighted sound recording, what matters is how the musicians “played” the notes, that is, how their rendition distinguishes the recording from a generic rendition of the same composition.” [14]

Section I of this Note provides an introduction to the issue of sampling as it pertains to copyright infringement. Section II of this Note sets forth the scope of the Note and further explains what sampling is and how the copyright protection of sound recordings differs from that of musical compositions. Section III of this Note explains the importance of developing a rule to efficiently govern the sampling of sound recordings, especially due to the increased prevalence of sampling in the modern music industry. Section IV of this Note explains the de minimis exception to copyright infringement. Section V of this Note provides an in-depth analysis of Ciccone and Bridgeport Music in order to evaluate the merits of the courts’ respective opinions. Section VI of this Note provides an analysis of the proper statutory interpretation, considers public policy concerns, and recommends what action the Supreme Court should take to resolve this issue.. As noted infra, the Supreme Court may be unable to reach an appropriate solution and Congressional action may be necessary. Therefore, this Note will end by suggesting Congressional action that may result in an efficient rule for the sampling of sound recordings.

II. Scope of Argument

            Before determining what rule should govern the unauthorized sampling of music, it is necessary to first understand exactly what “sampling” is. In general, “sampling involves the use of a small segment of an existing sound recording in a new sound recording.”[15] When a musician writes down a song, including the lyrics and composition, the composition of that song immediately enjoys copyright protection. [16] However, musical compositions and sound recordings are considered to be two separate and unique pieces of intellectual property under copyright law. [17] The distinction between the composition and the recording may not be intuitive at first, but it is essential to understand for the purposes of developing an efficient rule for the copyright protection of music. In 1991 the Supreme Court of the United States outlined the elements of a copyright infringement claim as: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[18]

This Note is not concerned with the copyright protection of musical composition. The musical composition consists of the “music” (the unique arrangement of musical notes creating the sound) and any words that are associated with the song.[19] While the protection of a musical composition presents its own unique issues, it is sufficient for the purposes of this Note to recognize that this is a separate and distinct component of intellectual property law, and that the duplication of a musical composition is only actionable if it is legally significant.[20] Instead, this Note is concerned with sound recordings. The term “sound recording” refers to “a specific performance of a composition, as affixed in a recording medium . . ., that serves as the ‘raw audio source used by the sampling musician.’”[21] In other words a sound recording is the actual physical (whether digital or otherwise) recording of the sounds that together comprise the musical work. The copyright of the musical composition and the copyright of the sound recording are two separate and distinct bundles of rights, and as such “the rights of a copyright in a sound recording do not extend to the song itself, and vice versa.”[22] A single recording company usually owns the sound recording, not the musician who created the composition.[23]

To illustrate the difference between a musical composition and a sound recording, it may be helpful to analogize to the copyright protection enjoyed in by a novel. In this metaphor, musical composition copyright would protect the plot, setting, characters, and arrangement of words that comprise the novel. The sound recording copyright, on the other hand, would protect the physical book including the cover, bindings, and the pages themselves. Copyright law does not protect physical books in this manner, but does protect sound recordings.[24]

This Note is only concerned with the literal copying of a physical sound recording, or the copying of a portion of a music file. The individual who copies the sound recording will often modify it in some way, possibly by slowing it down, speeding it up, or even changing the order of notes. [25] It is critical to point this potential for modification out because sampling does not include simulation or imitation but instead is limited to “the actual use of the copyright owner’s original work.”[26] Thus, while in some jurisdictions a musician is prohibited from directly copying a single “horn hit” from a sound recording, in every jurisdiction that same musician is free to pick up a horn and attempt to play the “horn hit” in the same way to produce the same sound. [27]

III. Importance

            The practice of sampling is used throughout the music industry. [28] The practice is especially widespread in genres such as hip hop and rap.[29] Additionally, sampling is regularly used in marketing campaigns. [30]

In order to illustrate the degree to which the unauthorized sampling of sound recordings has permeated contemporary culture, it is helpful to consider the story of the “Amen Break.” The “Amen Break” is a six second drum-beat, or break-beat, that has been sampled from a 1969 song titled “Amen, Brother.” [31] While the original song was not particularly popular, the sample of the break-beat has seen an emergence in popularity since the late 80’s with the rise of hip hop. [32] The song was used in several hip hop and rap songs during this period, including NWAs “Straight Outta Compton.” [33]  Around the same time that NWA released “Straight Outta Compton,” a sub-genre of rave music called “Ragga Jungle” became popular in the United Kingdom.[34] Ragga Jungle centered its aesthetic almost entirely on sampling the Amen Break.[35] The Amen Break demonstrates the influence that music sampling can have on contemporary culture: A six second drum loop taken from the B-side of a 1969 funk and soul single has spawned hundreds of unique tracks, supported a number of clubs and the careers of dozens of Disc Jockeys, and has given rise to a subculture of the UK rave phenomenon in the late 1980s and early 1990s. [36] The band that created the single that the Amen Break was sampled from has never pursued any claim for copyright infringement. [37]

Judicial economy is another important concern to consider when formulating a rule to govern the sampling of sound recordings without permission. Sampling was rarely litigated until recently; instead most parties chose to settle when there was a dispute. [38] However, as the law around sampling continues to develop, the use of digital sampling becomes more widely used; and considering the statutory guidance that is now available, it is likely that sampling cases will increase exponentially.[39] The lack of an efficient rule governing the unauthorized sampling of sound recordings threatens to flood courts with litigation.

The strict liability standard set forth in Bridgeport may have a nation-wide effect on the creation of sound recordings because successful recordings are distributed across the United States.[40] The adoption of an efficient and uniform rule to govern the unauthorized sampling of sound recordings is important because money, the balance of personal property interests, the cultivation of creative development, collaboration, and the public domain of music are all at issue.

IV. The De Minimis Rule

            The rights associated with a copyright are generally not absolute. Over one hundred years ago, Judge Chatfield explained: “Even where there is some copying, that fact is not conclusive of infringement. Some copying is permitted. In addition to copying, it must be shown that this has been done to an unfair extent.”[41] The term “de minimis” is derived from the legal maxim “de minimis non curat lex” which roughly translates to “the law does not concern itself with trifles.”[42] In other words, the de minimis rule stands for the proposition that a court will not impose liability on an unauthorized appropriator of copyrighted property if the average audience would not recognize the appropriation.[43]

Although those who duplicate sound recordings may modify the recordings in a number of ways, such as changing the speed, distorting the sounds contained in the recording, or even changing the order or arrangement of sounds, it does not necessarily follow that the modification will prevent copyright infringement.[44] Thus, there is a large and unpredictable grey area in the law about what copying will be de minimis, and what copying will be substantially similar. Unless an appropriation is legally substantial, a court applying the de minimis rule will not find that copyright infringement has occurred. Generally, a claim for copyright infringement will fail unless the copying is substantially similar.[45]

V. The Split

A. The Sixth Circuit

In March of 2005 the United States Sixth Circuit Court of Appeals attempted to resolve the issue of what rule should govern the unauthorized sampling of sound recordings.[46] The seminal case in the Sixth Circuit is Bridgeport Music, Inc. v. Dimension Films. The dispute in Bridgeport arose out of the use of a sample from “Get Off Your Ass and Jam” in the song “100 Miles and Runnin,’” which was then used in the soundtrack of I got the Hook Up, a movie released by defendant No Limit Films in 1998.[47] Particularly of interest to this Note are the claims of Westbound Records against No Limit Films.

Westbound Records is a company in the business of recording and distributing sound recordings, and is the entity who possessed a copyright ownership interest in the sound recording which was sampled in “100 Miles and Runnin’.” [48]  The sample in controversy is a two second sample of a guitar solo that was “copied, the pitch was lowered, and the copied piece was ‘looped’ and extended to 16 beats.”[49] Westbound Records argued that the sound recording of the guitar solo from “Get Off Your Ass and Jam” had been literally copied and used in the song “100 Miles and Runnin’” which was in turn included in the Defendant’s movie soundtrack I Got the Hook Up.[50] In response to Westbound Records’ claims, No Limit Films presented two arguments: (1) That copyright law could not protect the sound recording that had been copied because it was not “original”; and (2) “that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law.”[51]

While the District Court was not persuaded by No Limit Films’ argument that the sound recording was not “original,” the court concluded, based on a de minimis analysis or a “fragmented literal similarity” test, that no reasonable jury could find that the sampling rose “to the level of a legally cognizable appropriation.”[52] It is particularly noteworthy that on appeal Westbound Records did not challenge whether or not a jury could find a legally cognizable appropriation, but instead argued that it is immaterial whether or not the appropriation was de minimis because no such inquiry “should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.”[53] In other words, Westbound Records did not argue that the District Court had been negligent in its application of the de minimis test, but rather that the test should never have been applied in the first place.

Although the Sixth Circuit Court of Appeals did ultimately agree with Westbound Records that the de minimis test should not have been applied, the court relied on an analysis that is separate and distinct from the arguments presented by the plaintiff.[54] The analysis of the court centered on a statutory interpretation of Sections 114 and 106 of Title 17 of the United States Code.[55] These statutes will be discussed in depth below, but for now it is sufficient to understand that together the statutes undoubtedly prohibit pirating or copying an entire sound recording.[56] The Sixth Circuit Court of Appeals noted in Bridgeport Music that it is clearly impermissible to pirate an entire sound recording, and then proceeded to address the issues of whether or not it is permissible to sample something less than the whole sound recording without violating the relevant statutes.[57]

In order to answer whether or not it is permissible to sample something less than an entire sound recording, the Sixth Circuit Court focused on the language of the governing statutes.[58] Specifically, the court focused on the inclusion of the word “entirely” in Section 114(b) of Title 17 the United States Code. [59]

The relevant portion of Section 114(b) places limitations on the rights the owner of a sound recording enjoys. According to the statute, the copyright owner of a sound recording does not have rights that “extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.”[60] This clause of the statutes allows for a musician to listen to the sound recording, and attempt to imitate or simulate the notes that are played on the sound recording so long as the musician does so using her own instruments and recording equipment. The court interpreted the inclusion of the word “entirely” to stand for the proposition that an imitating musician may not literally (physically) copy any portion, no matter how small or insignificant it is to the overall recording. Put differently, the court interpreted the aforementioned clause to stand for the proposition that “a sound recording owner has the exclusive right to ‘sample’ his own recording.”[61] Thus, the Sixth Circuit adopted the rule that unauthorized sampling, regardless how small or seemingly insignificant, is copyright infringement as a matter of law.

There is a legitimate question as to why sound recordings should be afforded more copyright protection than musical compositions. The Sixth Circuit Court of Appeals offered two justifications for this distinction.[62] First, a literal reading of the governing statute mandates a per se rule for sound recordings, but does not do so for musical compositions.[63] Second, “even when a small part of a sound recording is sampled, the part taken is something of value.”[64] In other words, sampling a sound recording constitutes a physical taking.[65]

The Sixth Circuit offered several justifications for the adoption of a new rule. First, the court explained that there is support for a per se rule in several law review and other published texts.[66] Second, the court argued that the new rule will not have a substantial effect on the practices of the music industry because many artists and companies have already adopted the policy of seeking licensing as a matter of course, many artists who sample without seeking licenses will continue to do so, and because pre-1972 sound recordings are not afforded federal copyright protections.[67] Third, the music industry has the ability to develop its own licensing guidelines if it chooses. Finally, the court identifies that “[t]he legislative history [of federal copyright protection statutes] is of little help because digital sampling wasn’t being done in 1971” and therefore the best approach to this issue is a “literal reading” of the statue.[68]

B. The Ninth Circuit

In June of 2016, the Ninth Circuit Court of Appeals attempted to resolve the issue of what rule should govern the unauthorized sampling of sound recordings.[69] The seminal case in the Ninth Circuit is VMG Salsoul, LLC v. Ciccone. The dispute in VMG Salsoul arose out of the artist Madonna’s use of a 0.23 second “horn hit” in her hit song “Vogue.”[70] Madonna physically copied the horn hit from an early 1980s instrumental song titled “Ooh I Love It” without permission from the copyright owner.[71]

The defendant in VMG Salsoul presented identical defenses as the defendant in Bridgeport Music, asserting that the sound recording of the sampled music was not “original” for copyright law purposes, and that even if the court determined the sampled sound recording to be “original” for the purposes of copyright law, that the sampling was “de minimis or trivial” and thus exempt from copyright protection.[72] While the defendant disputes whether the physical copying of the song actually occurred, the court finds that when taking the facts in the light most favorable to the plaintiff a genuine issue of material fact occurred and thus the court must proceed to the next step of the analysis: assuming that the sampling did occur, does it constitute copyright infringement?[73] In order to answer this question, the court must determine both whether the de minimis exception to copyright infringement applies to sound recordings, and if so, whether or not the infringement in this case is de minimis.

In order to answer the question of whether or not the de minimis exception applies to sound recordings, the court begins by noting that courts in the Ninth Circuit have recognized “the response of the ordinary lay hearer” as an essential part of the copyright infringement test.[74] The court also explains that a copyright owner’s legally protected interest is the potential financial return for her creation.[75] Because any potential financial return linked to the copyright owner’s intellectual property is necessitated upon the approval or praise of the public or consumers, if the consumers are unable to recognize the appropriation then “the copier has not benefited from the original artist’s expressive content” and thus no infringement has occurred.[76] In other words, the court reasoned that harm to the creator of the sound recording is dependent upon public recognition of the origins of the recording.

Next, the court engages in an exercise of statutory interpretation to determine what Congress’ intent was in creating federal copyright protection. The court begins its analysis of the relevant statutes by highlighting that the text of 17 U.S.C. §106 “Exclusive rights in copyrighted works” does not suggest any differential treatment between any mediums of intellectual property, including sound recordings.[77] Therefore, if the de minimis exception applies to any one medium then there is no occasion to believe Congress intended not to extend the exception to the others.[78] Second, the court addresses 17 U.S.C. §114(b), the provision on which Bridgeport Music relied most heavily in formulating a per se copyright infringement rule for sound recordings. The VMG Salsoul court is highly critical of the Bridgeport Music court’s interpretation of the statute, explaining that “[w]e ordinarily would hesitate to read an implicit expansion of rights into Congress’ statement of an express limitation on rights.”[79] Unlike the court in Bridgeport Music, the Ninth Circuit court considered the §114(b) legislative history in determining congressional intent.[80] Specifically, the legislative history states that copyright infringement occurs when all or “any substantial portion of the sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by repressing, transcribing, recapturing off the air, or any other method.”[81] Further, the VMG Salsoul court asserts that the 6th circuit rule relies upon a logical fallacy: inferring the inverse of a conditional from the conditional.[82] In other words, the Sixth Circuit is interpreting the statute as an extension of property rights whenever a sampling is not comprised of only independent fixations of other sounds. The Sixth Circuit asserts that this portion of the statute does not operate to create any property rights for the creator of the sound recording but instead ensures that musicians who sample through the use of only independent fixations of other sounds (i.e. their own instruments) will be protected from copyright infringement law suits. This alleged fallacy is discussed in greater depth infra.[83] Even under the Sixth Circuit’s interpretation, there may remain a legally significant infringement claim based upon the appropriation of musical composition but that is outside the scope of this Note. The Ninth Circuit relies on statutory interpretation to determine that Congress intended for the de minimis exception to copyright infringement to be extended to sound recordings.[84]

Once the court determined that the de minimis exception to copyright infringement applied to sound recordings, the court began its analysis of whether the sampling in controversy was de minimis.[85] Notably, expert musicians who listened to the two tracks were unable to determine what portions of the recording had been copied.[86] Thus, the court held that because an average audience would be unable to recognize what portions of the original sound recording had been copied, the sampling was de minimis and did not constitute copyright infringement.[87] The Ninth Circuit is not alone in imposing de minimis requirements to sound recordings.[88]

VI. Analysis

A. Statutory Interpretation

      Because both VMG Salsoul and Bridgeport Music based their decisions primarily on statutory interpretation, the United States Code is the best place to begin the search for a resolution to this circuit split. Title 17 of the United States Code is the federal statutory law governing copyright protection. [89]Section 102 of Title 17 announces what subject matter is afforded copyright protection under federal law; sound recordings are protected.[90] Next, section 106 of Title 17 sets forth the rights that are afforded to the owners of copyrighted works; subsection 6 pertains specifically to sound recordings and grants the exclusive right to “perform the copyrighted work publicly by means of a digital audio transmission” to the creator of the sound recording.[91] Finally, sections 107 through 122 place limitations on the exclusive rights that are granted under section 106, with section 114 specifically placing limitations on the rights enjoyed by sound recording owners.[92]

Essentially all of the debate over whether or not a per se infringement rule is statutorily mandated derives from differences of interpretation of section 114(b) which states in relevant part:

The Exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. (emphasis added)[93]

The natural reading of this clause simply states that an individual is free to imitate or simulate a sound recording without incurring liability for copyright infringement. The Bridgeport Music court instead read this clause as an expansion of the copyright holder’s rights.[94] This result was reached through the use of a logical fallacy. To illustrate the fallacy, consider the proposition enumerated in section 114(b): If entirely independent fixation of other sounds, then copyright protection does not extend. The Bridgeport Music court then formulated the following as what is in fact a false contrapositive of the above proposition: If not an entirely independent fixation of other sounds, then protection does extend.[95] The correct contrapositive of the proposition, however, is the following: If protection does extend, then it is not an entirely independent fixation of other sounds. The statute itself does not offer any guidance on whether liability is incurred when a fixation is not entirely independent, as Bridgeport Music suggests it does, because reliance on this reasoning would be committing the fallacy of inferring the inverse of a conditional from the conditional.[96]

Although Bridgeport’s interpretation of the §114(b) may be one-of-a-kind, the statutory language itself is not unique. A comparable provision limiting the rights of copyright holders against libraries may be found at 17. U.S.C. §108(e).[97] §108(e) states:

The rights of reproduction and distribution under this section apply to the entire work, or to a substantial part of it, made from the collection of a library or archives where the user makes his or her requests or from that of another library or archives, if the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord or the copyrighted work cannot be obtained at a fair price… . (emphasis added).[98]

If a library copies a single sentence from the novel Blood Meridian, will Cormac McCarthy be successful in a copyright suit even though the library did not copy “the entire work, or . . . a substantial part of it?”[99] Under Bridgeport’s interpretation, even if the library were to copy the word “he” from page 141 of Blood Meridian, the library would be liable for copyright infringement.[100] Under the Ninth Circuit’s interpretation, copying the word “he” would not be infringement because no one reading the copy could identify the word as being derived from Blood Meridian.[101]

While the Bridgeport Music court dismisses the statute’s legislative history because sampling was allegedly not in practice at the time of enactment, other forms of direct copying were available and therefore the legislative history should be considered. The legislative history of section 14(b) includes the following:

Infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by repressing, transcribing, recapturing off the air, or any other method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. (emphasis added)[102]

This sentence from the legislative history is important for two reasons: (1) it enunciates that the drafters of section 14(b) did not intend an all or nothing application but instead intended the substantiality of literal copying to be considered; and (2) the drafters of section 14(b) recognized that literal copying was already possible and left room for the statute to apply to new technologies or other methods of copying that would come in the future[103]. Such an interpretation has found support in federal court.[104]

Thus, when considering the plain language of section 114(b) in conjunction with the overall statutory scheme of Title 17 and the accompanying legislative history, it is apparent that the Bridgeport Music court’s statutory justification is misplaced. Accordingly, congressional intent in drafting federal copyright law was not to hold individuals who literally copy sound recordings liable for copyright infringement as a matter of law. Instead, it appears that congress intended the substantiality of the duplication and reuse to be a factor of consideration in a copyright infringement case.

B. Policy Concerns

            The most logical statutory interpretation may lead to the application of the de minimis rule, as suggested by the Ninth Circuit Court of Appeals in VMG Salsoul, but this does not necessarily solve the public policy need for an efficient rule. The concern of judicial economy still exists, and those who sample will be less likely to settle out of court with plaintiffs if they know that they have the de minimis defense  at their disposal. There is also a need for the music industry to have a rule that will lead to consistent results in litigation, because it will allow artists to price the risk of having a judgment against them ex ante and thereby decide if it is less expensive to go the route of licensing.

Alternatively, it has been argued that the de minimis rule promotes judicial economy.[105] The argument is supported be the notion that plaintiff’s are less likely to seek legal recourse if they are afraid that the court will absolve the defendant of liability pursuant to the de minimis defense.[106] Likewise, the argument may be made that a per se rule actually creates more litigation because plaintiffs will sue much more often knowing that the defendant does not have access to the defense of the de minimis rule.[107]

Whatever rule is adopted should not stifle creativity. The per se rule formulated by the Sixth Circuit appears to stifle creativity on its face, although the court in Bridgeport Music offered several arguments as to why this would not be the result. First, a bright line rule such as this one promotes ease of enforcement.[108] Second, the free market will necessarily ensure that license prices are efficient.[109] Finally, unlike the infringement of musical composition copyright, infringement through the sampling of a sound recording is never accidental.[110]

There are also concerns of the de minimis rule’s effects on creativity. Allowing for nearly unchecked copying could act as a deterrent for the creation of truly new works of music. Some have argued, however, that no artwork can truly be “original” because all artists rely so heavily on the inspirations and influences they receive from other artists.[111]

C. Resolution – U.S. Supreme Court

            The United States Supreme Court should resolve this circuit split by adopting the Ninth Circuit’s interpretation of this issue. The correct interpretation of the relevant statutory scheme does not create a per se copyright infringement rule for the physical sampling of sound recordings, as the Sixth Circuit suggests. Instead, the statutes leave room for the application of the common law doctrine of the de minimis rule.

While Congress has not created a special category of per se copyright infringement for sound recordings, the U.S. Supreme Court could deem the de minimis defense to not apply to sound recordings on public policy grounds. Unfortunately, neither the Ninth Circuit nor the Sixth Circuit has clearly established an efficient rule. It is unclear what effect a per se rule would have on the music industry if applied nation-wide. The U.S. Congress is in a much better position to investigate and analyze the needs of the music industry than is the U.S. Supreme Court and therefore the Court should avoid engaging in judicial activism in the resolution of this problem. Instead the Court should adopt the Ninth Circuit’s interpretation and treat sound recordings as it treats other categories of intellectual property. In its opinion, the Court should emphasize that there is a need for Congressional action to resolve the need for an efficient rule regarding the sampling of sound recordings.

D. Resolution – Congressional Action

            Neither the approach adopted by the Ninth Circuit in VMG Salsoul nor that adopted by the Sixth Circuit in Bridgeport Music adequately addresses the need for an efficient rule to govern music sampling. Bridgeport Music’s bright-line rule approach, however, is a step in the right direction. In order to reach a satisfactory solution to the problem at hand, it is necessary to maintain the spirit of the Bridgeport Music decision while reaching a more practical outcome. The de minimis defense is not the appropriate measuring stick for the sampling of sound recordings because “[w]herever [the line] is drawn [to mark where de minimis] will seem arbitrary”[112] and will result in an overwhelming grey area in which musicians and recording companies would be forced to operate. Instead, this Note proposes that the United States Congress should enact compulsory licensing for all sound recordings.

The Sixth Circuit may have been inhibited by its enumerated powers, but the Congress is both well equipped and Constitutionally mandated to solve this problem. The Sixth Circuit created a bright line rule: “Get a license or do not sample.”[113] With Congress’ help, this bright line rule can provide an equitable solution for all parties involved.

The United States Congress should enact compulsory licensing for all sound recordings. Congress has already created a compulsory licensing system for some activities, such as the performance and distribution of “cover songs.”[114] 17 U.S.C. § 115 “authorizes any person who complies with its provisions to obtain a license to make and distribute phonorecords of a nondramatic musical work if: (1) the work has ‘been distributed to the public in the United States under the authority of the copyright owner; and (2) the person’s ‘primary purpose in making phonorecords is to distribute them to the public for private use.’”[115] Put simply, a compulsory system would allow anyone who wants to sample a song to do so by paying a set fee, which is regulated by the federal government, and by giving notice in compliance with the regulations. The system of compulsory licensing should allow any artist to sample any other artist’s music, for a set fee.[116] The fee would be set by a regulatory body and would be based on the fair market value of sound recordings. The fee should depend on a number of factors, including the length of the sample and its importance to the source material. The system should feature a notice requirement by which all owners of sound recordings would be served with notice of (and compensated for) the sampling of their recordings.[117]

Limitations on the use of sound recordings should include maximum limits of duration, and limits on how many samples may be taken from a single artist, album, or recording.[118] However there should be no limitation on the manipulation of the sample, in order to foster creativity.[119] There should also be a variety of alternative payment methods to allow musicians who are lacking capital to participate legally. For example a young musician may agree to a congressionally approved royalty contract to share proceeds from the use of the sample.

The compulsory licensing system would ensure that the courts are not flooded with litigation because non-licensed sampling would become copyright infringement as a matter of law. The system would foster the creative growth of the music community. And the compulsory licensing system would drastically cut down on transactional costs, creating a more efficient music industry.[120] The way music is made is evolving alongside technology; federal copyright laws must adapt accordingly. Unfortunately, there appears to be little support for the creation of a compulsory licensing system in Congress and in fact it is plausible that Congress may repeal the existing compulsory licensing system under Section 115.[121] Among other concerns, Congress has communicated concerns that while compulsory licensing for an entire musical score to be recreated by the licensee requires substantial time and resources to be expended by the licensee, allowing a similar system for the use of physical sound recordings would allow the licensee to profit off of the resources and time of the licensor.[122] Essentially Congress has voiced its concern that implementing a compulsory licensing system for sound recordings would result in a “tragedy of the commons” scenario.

VII. Conclusion

            In conclusion, there is a very important divide in the law governing the sampling of sound recordings. The American music industry is already highly dependent on the sampling of sound recordings, and it appears that the dependence will continue to increase in the years to come. American law is not currently equipped to efficiently deal with the copyright protections of sound recordings.

The Ninth and Sixth Circuit Courts of Appeals have attempted to reach an efficient solution to the issue of sound recordings. The Sixth Circuit’s per se rule provides a bright line rule, but may stifle creativity and is based upon a faulty interpretation of the relevant statutory scheme. The Ninth Circuit’s application of the de minimis rule is consistent with the relevant statutory scheme and copyright common law in general, but may not be an efficient solution to the larger problem. The United State Supreme Court should address this circuit split and adopt the Ninth Circuit’s interpretation of the rule. However, it does not appear that a solution to this problem can be completely derived from judicial action. Congress, on the other hand, is capable of creating an efficient solution to the sampling conundrum.

Congress should pass a statute creating a compulsory licensing system, similar to the system already in existence under Section 115, but applicable to the sampling of sound recordings. Such a system would allow for the continuing artistic development of the musical industry, would protect the property interests of copyright holders of sound recordings, and would promote judicial economy through the creation of a bright line rule. Though the problem may be complex, the solution is simpler: If you want to sample get a license. In order for this axiom to be applicable in the real world, Congress must ensure that licenses are reasonably available to those seeking them. This is accomplished through compulsory licensing.

[1] University of Kentucky College of Law, J.D. Expected May 2018.

[2]  VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2016).

[3] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800–02 (6th Cir. 2005).

[4] Lesley Grossberg, A Circuit Split at Last: Ninth Circuit Recognizes De Minimis Exception to Copyright Infringement of Sound Recordings, Baker Hostetler: Copyright, Content, and Platforms (June 21, 2016), https://www.copyrightcontentplatforms.com/2016/06/a-circuit-split-at-last-ninth-circuit-recognizes-de-minimis-exception-to-copyright-infringement-of-sound-recordings/; but see id. (“almost every district court not bound by that decision has declined to apply Bridgeport’s rule.”) (quoting Ciccone, 824 F.3d at 886).

[5] Thomas Jefferson, Thomas Jefferson to Isaac McPherson, The Founders’ Constitution (Aug. 13, 1813), http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

[6] U.S. Const. art. I, § 8, cl. 8.

[7] Ciccone, 824 F.3d at 875 (citing Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2004)).

[8] See, e.g., id. at 874.

[9] Tonya M. Evans, Sampling, Looping, and Mashing… Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law, 21 Fordham Intell. Prop. Media & Ent. L.J. 843, 847 (2011).

[10] Id.

[11] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 799 (6th Cir. 2005).

[12] Id. at 805.

[13] Ciccone, 824 F.3d at 878 (quoting Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004)).

[14] Id. at 879.

[15] See 1 Lawrence A. Waks & Brad L. Whitlock, Texas Practice Guide Business Transactions § 4:274 (June 2017).

[16] See Gregory T. Victoroff, Music Sampling: Legal Overview, Practical Guidelines, 26 Beverly Hills B. Ass’n J. 134, 134 (1992).

[17] Id.

[18] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

[19] See Astride Howell, SAMPLE THIS! A Ninth Circuit Decision to be in Harmony with the Sixth Circuit’s Bright-Line Rule on What Constitutes Infringement in Digital Sampling, L.A. L., Sept. 2005, at 24, 24; see also U.S. Copyright Office, Circular 56A, 1 (2017) https://www.copyright.gov/circs/circ73.pdf (“[there are two separate components of a musical work: the musical composition and the sound recording.] A musical composition consists of music, including any accompanying words. . . . A musical composition can be in the form of a notated copy (for example, sheet music); a phonorecord (for example, cassette tape, L.P., or CD); or a DPD. A sound recording, on the other hand, results from the fixation of a series of musical, spoken, or other sounds.”)

[20] See Newton v. Diamond, 388 F.3d 1189, 1192–93 (9th Cir. 2004).

[21] Thomas P. Wolf, Toward a “New School” Licensing Regime for Digital Sampling: Disclosure, Coding, and Click-Through, 2011 Stan. Tech. L. Rev. N1, N6-N7.

[22] Conway v. Licata, 104 F. Supp. 3d. 104, 120 (D. Mass. 2015) (quoting Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002).

[23] See James A. Johnson, Thou Shalt Not Steal: A Primer on Music Licensing, N.Y. St. B. Ass’n J., June 2008, at 23, 23; see also U.S. Copyright Office, Circular 73, 2 (2017), https://www.copyright.gov/circs/circ73.pdf  (“The author of a musical composition is generally the composer and any lyricist. . . . The author of a sound recording is generally the performer(s) who captures and processes the performance to make the final recording.”)

[24] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).

[25] See Robert M. Vrana, The Remix Artist’s Catch-22: A Proposal for Compulsory Licensing for Transformative, Sampling-Based Music, 68 Wash. & Lee L. Rev. 811, at n. 64 (2011).

[26] See Tracy L. Reilly, Debunking the Top Three Myths of Digital Sampling: An Endorsement of the Bridgeport Music Court’s Attempt to Afford “Sound” Copyright Protection to Sound Recordings, 31 Colum. J. L. & Arts 355, 366 (2008).

[27] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005).

[28] See Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L. J. 515, 516 (2006).

[29] Id. at n. 5, 516–17.

[30] See, e.g., Butler v. Target Corp., 323 F. Supp. 2d. 1052, 1054 (C.D. Cal. 2004).

[31] Nate Harrison, Can I Get an Amen?, YouTube (March 4, 2015), https://www.youtube.com/watch?v=B27ehDHTCmc.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] See Ponte, supra note 28, at 518.

[39] Id. at 518–19.

[40] Robert J. Bernstein & Robert W. Clarida, Circuit Split Creates Uncertainty in Sampling of Sound Recordings; Copyright Law, N.Y. L. J. Online (June 15, 2016).

[41] See W. Publ’g Co. v. Edward Thompson Co., 169 F. 833, 861–62 (E.D.N.Y. 1909) (emphasis added).

[42] See Ringold v. Black Entm’t Television, Inc., 126 F.3d 70, 74 (2d. Cir. 1997).

[43] See Fisher v. Dees, 794 F.2d 432, 434–35 n. 2 (9th Cir. 1986) (“a taking is considered de minimis only if it is so meager and fragmentary that the average audience would not recognize the appropriation.”).

[44] See United States v. Taxe, 540 F.2d 961, 964 (9th Cir. 1976).

[45] See generally Leigh v. Warner Bros., Inc., 212 F.3d 1210 (11th Cir. 2000); Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821 (11th Cir. 1982); Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J. 1993); Williams v. Broadus, 2001 WL 984714 (S.D.N.Y. Aug. 27, 2001); Tuff ‘N’ Rumble, Inc. v. Profile Records, Inc., 1997 WL 158364 (S.D.N.Y. Apr. 2, 1997); (This list is far from exhaustive, but is illustrative of the popularity of the de minimis or substantial similarity rule outside of the Sixth Circuit).

[46] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

[47] Id. at 794–96.

[48] Id. at 795.

[49] Id. at 796.

[50] Id.

[51] Id. at 796–97.

[52] Id. at 797.

[53] Id. at 798.

[54] Id. at 799

[55] Id.

[56] Id. at 799–801.

[57] Id. at 800.

[58] Id. at 800–01.

[59] Id. at 800.

[60] Id. at 800.

[61] Id. at 800–01.

[62] Id. at 801–02.

[63] Id.

[64] Id.

[65] Id. at 802.

[66] Id. at 803.

[67] Id. at 804.

[68] Id. at 805.

[69] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016).

[70] Id. at 874.

[71] Id. at 875.

[72] Id. at 876.

[73] Id. at 877.

[74] Id. at 881 (quoting Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)).

[75] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 881 (9th Cir. 2016).

[76] Id.

[77] Id. at 882.

[78] Id.

[79] Id. at 883.

[80] Id. at 883–84.

[81] Id. at 883.

[82] Id. at 884.

[83] See infra Section (VI)(A).

[84] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 882 (9th Cir. 2016).

[85] Id. at 880.

[86] Id.

[87] Id.

[88] See, e.g., Saregama India Ltd. v. Mosely, 687 F.Supp.2d 1325, 1338 (S.D. Fla. 2009).

[89] See 17 U.S.C. § 101–1301 (2004).

[90] 17 U.S.C. § 102(a)(7) (1990).

[91] 17 U.S.C. § 106(6) (2002).

[92] See generally 17 U.S.C. § 107–122 (1992); 17 U.S.C. § 114 (2010).

[93] 17 U.S.C. § 114(b) (2010).

[94] 4 Nimmer on Copyright §13.03[A][2][b] (2017).

[95] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800–01 (6th Cir. 2005).

[96] See Joseph G. Brennan, A Handbook of Logic 79–81 (2nd ed. 1961).

[97] 17 U.S.C. § 108(e) (2012).

[98] Id.

[99] 4 Nimmer on Copyright § 13.03 n. 114.14 (quoting 17 U.S.C. § 108(e)); Of course, this hypothetical assumes that the library is unable to obtain a copy of the novel for a fair price.

[100] See supra Section (V)(A) (Under Bridgeport, it would be of no consequence that no one reading the word “he” in the copy would be able to identify it as being derived from page 141 of Blood Meridian.)

[101] See supra Section (V)(B).

[102] H.R. Rep. No. 94-1476, at 106 (1976).

[103] See id.

[104] Saregama India Ltd. v. Mosely, 687 F. Supp.2d 1325, 1341 (S.D. Fla. 2009) (“There is no indication, however, that [Section 114(b)] relates to works which are not similar-sounding or that Congress otherwise sought to abandon the substantial similarity inquiry. Section 114(b)’s legislative history supports this view”).

[105] Jennifer R.R. Mueller, All Mixed Up: Bridgeport Music v. Dimension Films and De Minimis Digital Sampling, 81 Ind. L.J. 435, 454 (Winter 2006) (citing On Davis v. The Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001)).

[106] See id.

[107] Id. at 456–57.

[108] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[109] Id.

[110] Id.

[111] See David M. Morrison, Bridgeport Redux: Digital Sampling and Audience Recoding, 19 Fordham Intell. Prop. Media & Ent. L.J. 75, 86 (Autumn 2008).

[112] Nichols v. Universal Pictures Co., 45 F.2d 119, 122 (2d. Cir. 1930).

[113] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

[114] See 17 U.S.C. § 115 (2010).

[115] Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 526 (9th Cir. 2008) (quoting 17 U.S.C. § 115(a)(1) (2010)).

[116] See Michael L. Baroni, A Pirate’s Palatte: The Dilemmas of Digital Sound Sampling and a Proposed Compulsory License Solution, 11 U. Miami Ent. & Sports L. Rev. 65, 94 (1993).

[117] Id. at 96; See also Circular 73 at 2 (“Section 115 does not cover sound recordings. Rather, it covers the reproduction and distribution of musical compositions.”)

[118] Baroni, supra note 117 at 95.

[119] Id.

[120] See Richard A. Epstein & F. Scott Kieff, Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents, 78 U. Chi. L. Rev. 71, 85–86, (2011) (“[Compulsory licensing] thus functions as a transaction cost–saving device that permits the rapid dissemination of copyrighted material. . . . This approach has resulted in transaction costs for the scientists that are lower than those of purchasing a can of soda from a vending machine.”)

[121] See Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L.J. 515, 549 (2006).

[122] Id. at 550.

Striking a Balance: Can Presumed Donative Consent End the Organ Shortage While Respecting Individual Autonomy?

Striking a Balance: Can Presumed Donative Consent End the Organ Shortage While Respecting Individual Autonomy?

Striking a Balance: Can Presumed Donative Consent End the Organ Shortage While Respecting Individual Autonomy?

Article | 106 KY. L. J. ONLINE | January 3, 2018

Jennifer L. Henry[1]

Introduction

            At age nineteen, Jessica Danielson was diagnosed with restrictive cardiomyopathy, a disease typically characterized by poor ventricular filling.[2] By age thirty, she lived out her days inside the walls of the Mayo Clinic, not allowed to leave or even be detached from her IV before receiving a liver and heart transplant.[3] Without the transplant, she would almost certainly die from the disease or suffer a heart attack.[4] In June 2014, after waiting over two years, she was fortunate enough to receive the double transplant and return home to Minnesota.[5] Unfortunately, success stories like Jessica’s are all too rare in the United States, where twenty people die while waiting on a life-saving organ transplant each day.[6] Currently, there are nearly 120,000 people on the waiting list.[7]

The basic idea of organ transplantation predates modern medical science by thousands of years. Indian doctors had started to graft skin to repair wounds and burns by 800 B.C.[8] By the early 1900s, organ transplantation science had advanced significantly, beginning to resemble the process used to transplant organs today.[9] In 1905, an Austrian ophthalmologist performed the world’s first successful corneal transplant.[10] A team of surgeons at Boston’s Peter Bent Brigham Hospital performed the first successful kidney transplant in 1954 after a living donor donated his kidney to his identical twin.[11] 1963 marked the first organ recovery from a brain dead donor.[12]> The ability to procure organs from brain dead donors was a huge step forward in transplant science, eventually leading to the creation of organ donor registries in all fifty states.[13]

Deceased donors can donate up to eight life-saving organs: the heart, lungs, kidneys, liver, pancreas, and intestines.[14] The Uniform Determination of Death Act defines death in two ways: (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the brain, including the brain stem.[15] Deceased donors must die under very specific circumstances that cause brain death; if the heart stops beating, blood flow stops and the organs are not preserved.[16]  Most deceased donors are patients who died in the hospital after suffering severe head trauma, an aneurysm, or a stroke.[17]

The nuts and bolts of the organ donation process are complex. After a patient has stopped responding, doctors perform a series of tests to determine if brain death has occurred.[18] Once brain death has been confirmed, the patient remains on artificial life support to ensure blood flow to the organs.[19] Hospitals are required to notify the local Organ Procurement Organization of each patient who has died or is nearing death.[20] After receiving information about the deceased patient, the organ procurement organization decides whether she is a potential candidate for organ donation.[21] If the patient is a potential candidate, a representative from the organ procurement organization comes to the hospital.[22] The representative then checks the organ donor registry to see if the patient was a registered organ donor, and in the event that she was not, the representative seeks authorization for donation from the deceased’s next-of-kin.[23] Upon obtaining authorization from the next-of-kin or confirmation of the patient’s self-designation as an organ donor, the organ removal process begins.[24] The surgical team that removes the organs is never the same team of physicians who treated the patient before death.[25]

Bleak statistics illustrate that the system of organ donation in the United States falls far short of meeting the demand for organs.[26] To become an organ donor in the United States, one must opt into the program; the process for doing so differs from state to state, but usually involves registering with the state’s Department of Motor Vehicles (DMV).[27] The number of registered organ donors varies widely from state to state. For example, in 2012, 80% of Alaskan adults were registered donors, compared to just 12.7% in New York.[28]

The bottom line is that while public opinion toward organ donation is overwhelmingly positive, these sentiments do not translate into taking the affirmative steps necessary to actually become an organ donor. 95% of American adults support organ donation, but only 30 to 50% in any given state are registered organ donors.[29] This disparity demonstrates the continued existence of barriers to donor registration, or at the very least, the inadequacy of our current system.[30] The introduction of new, more effective legislation aimed at alleviating or eliminating the organ shortage crisis in the United States is vital.

Part I: Express Consent Organ Procurement in the United States

A.  The Uniform Anatomical Gift Act

In an attempt to remedy the dire shortage of organs available for transplant, the National Conference of Commissioners on Uniform State Laws adopted the first version of the Uniform Anatomical Gift Act in 1968.[31] The system created under this model law was one based on principles of “encouraged voluntarism.”[32] Under this system, the onus was on the individual to volunteer to donate his or her body parts to persons in need, for medical research, or for specific purposes upon death.[33] Encouraged voluntarism was praised because it “encourage[d] socially desirable virtues such as altruism and benevolence without running the risk of abusing individual rights.”[34]

The UAGA’s purpose is “to allow anyone over the age of eighteen to be able to donate his/her entire body, or any part thereof, for organ donation if he/she has given the requisite written consent.”[35] The Act provides the process by which donors may make an anatomical gift, explains who may receive and make an anatomical gift, and facilitates communication between medical examiners, treating physicians, hospitals, and procurement organizations.[36] The Act was amended in 1987, and most recently in 2006. One of the important revisions to the act was the express prohibition of the sale or purchase of organs for transplantation, reading as follows: “. . .a person that for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual’s death commits a [felony]. . .”[37] This revision represents the first time such a prohibition was recognized by the Act.[38].

Other amendments to the Act reflect a shift from encouraged voluntarism to systems of routine inquiry or required request. The addition of procedures for routine inquiry was aimed at addressing the failure of medical personnel to request organ donation from the decedent’s next-of-kin.[39] Although the Act requires that the decedent’s express wish to become an organ donor be honored, it has been noted that in practice, “even if the decedent has signed a document of gift, and such a document is on his person at the time of death, hospitals and organ procurement organizations will almost never retrieve organs without the consent of a person in the highest priority class available” (i.e. closest relative).[40] Under routine inquiry, a physician is required to notify the hospital of a potential organ donor.[41] Then, a member of the hospital’s medical staff discusses the option of organ donation with the deceased’s family members.[42]Under the Act, doctors may abstain from discussing with the deceased’s family members if she makes a “subjective judgment that the family is too distraught to be confronted with the inquiry.”[43]

Routine inquiry and required request laws vary from state to state. The most stringent of such laws require hospital personnel to request donation and document the approval or refusal on the death certificate.[44] In contrast, weaker laws require hospitals to develop protocols to ensure that families are informed of their option to donate.[45] Laws requiring medical personnel to act assertively generally have higher success rates.[46]

B. Organ Donation in Kentucky

            Kentucky’s own organ donation law, first codified by statute in 1970, was essentially identical to the 1968 UAGA. The state adopted the 2006 UAGA revisions by amending its own statute in 2010.[47] In Kentucky, six categories of people may make an anatomical gift during the life of the donor: (1) anyone over the age of eighteen, (2) those sixteen or older if applying for a driver’s license, (3) emancipated minors, (4) unemancipated minors whose parent has authorized the gift, (5) any person who has an agent with power of attorney for healthcare, and (6) anyone who is under guardianship.[48] State law makes the process for becoming an organ donor relatively convenient. One may opt into organ donation (1) when applying for a driver’s license (denotation made on driver’s license card), (2) communicate this desire in his or her will, (3) sign a donor card or other record indicating that the donor has made an anatomical gift to be included on a donor registry, the signing of which is witnessed by at least two adults, one of which is disinterested, (4) or during illness or injury of the donor communicate this desire to at least two adults, one of whom is required to be a disinterested witness.[49] Kentucky law does not differ in any substantial way from the model Act

C. Shortcomings of Express Consent

            Although concerted efforts have been made requiring health care providers to actively pursue organ donations, the organ shortage persists, even worsening with time.[50]  There are a number of reasons behind the personal reluctance of individuals to donate organs, including a general propensity to deny mortality, religious beliefs regarding bodily integrity, and general disgust at the idea of organ removal.[51] A 2002 study conducted in Australia illustrated that brain death remains a contentious issue.[52] Many participants indicated that they would never authorize donation of their next-of-kin’s organs if his or her heart were still beating, regardless of confirmation of brain death.[53] Research also indicates that mistrust of medical professionals is also a substantial barrier to organ donation. Brian Quick, a professor at the University of Illinois, explains, “There are a lot of people who subscribe to the belief that if a doctor knows you are a registered donor, they won’t do everything they can to save your life.”[54]

Again, there is the persistent problem that expressing the desire to donate does not always translate into actually registering as an organ donor.[55] Although organ donor registration is a simple, straightforward process in most states, many people who claim to be willing to donate their own organs fail to take the affirmative step of registering to do so.[56]

Part II: Analysis of the Presumed Donative Consent Model

            Many nations around the globe have adopted the “presumed consent” model for organ procurement. As the title suggests, this system “presumes the decedent has consented to the harvest of his or her organs following death unless that decedent has recorded his or her objection to such harvest.[57] Unlike the express consent model in the United States, under which people must affirmatively opt in to organ donation, presumed consent requires those opposed to the donation of their organs upon death to affirmatively opt out of donation. There are various types of presumed consent systems that have found success in a number of countries, including Austria, Singapore, Chile, Wales, France, and Belgium.[58]

Presumed consent proponents argue that not only does the system yield more organs for transplant, but it also places greater value on human life. They argue that by “making the basic presumption one which favors life, and thus putting the burden of objecting upon persons who would deny life to another, the policy of saving human life is given priority.”[59]

A. Presumed Consent in Operation

            The best example of a “pure” presumed consent model is Austria.[60] Austria is the only nation that does not allow next-of-kin the opportunity to object to the donation of the decedent’s organs.[61] “Austrian physicians appear to exercise their discretion granted under the law and do not discuss donation with the family, unless the family raises the issue, or unless the deceased is a minor . . . .”[62] When doctors are unsure whether or not the deceased has objected to organ donation, removal is permitted—they have no duty to search for documents indicating consent or objection.[63] Austrians wishing to object must do so in writing to ensure legal validity, but beyond this vague requirement, legislative specifics are scarce.[64] Austria’s presumed consent model has been an overwhelming success in regards to increasing the number of organs available for transplant. For example, in Austria, there are sixty cadaveric kidneys available per one million people, twice the amount available in the United States.[65]

Wales has more relaxed presumed donative consent laws. The Welsh system, enacted in December 2015, allows family and friends to object if they believe that the deceased would not have consented to donation.[66] Wales has prioritized education efforts, launching campaigns to help people understand their organ donation options.[67]Early statistics show signs of progress: after only six months, of the sixty organs that were transplanted in Wales, thirty-two came from people whose consent had been presumed.[68] The family consent rate increased in Wales by 10%, and the number of living donors has increased by 20% since presumed consent laws took effect.[69]

Singapore has taken a unique approach to presumed donative consent. The Human Organ Transplant Act couples a system of presumed consent with priority allocation measures meant to discourage people from opting out of organ donation.[70] Priority allocation means that if a person objects to donation, he goes to the bottom of the organ transplant list automatically if he were ever to need a life-saving organ.[71] Fear seems to be an effective motivator; since the Act’s passage in 1987, kidney donation has increased by 67%.[72]

B. Observations: Presumed Consent in Practice

            There is no doubt that although presumed consent has not eliminated organ shortages entirely in countries like Singapore, Austria, and Wales, it has increased the number of organ donors and organs available for transplant.[73] Presumed consent seems to be most effective in its purest form, meaning that if a decedent did not opt out during his or her lifetime, family members are not consulted before organs are harvested. However, leaving family members of the deceased out of the process entirely can cause them to feel disrespected, and in turn, can have a negative cumulative effect on public opinion toward presumed consent. It seems as though presumed consent systems are more effective when people are incentivized to not object to organ donation. For instance, although Singapore’s priority allocation law seems harsh, it has produced life-saving results.[74]

Part III: Barriers to Presumed Consent in the United States

            There are currently no states with presumed donative consent laws on the books.[75] There are, however, portions of state laws that resemble presumed consent. Such a provision exists in Kentucky’s version of the Uniform Anatomical Gift Act.[76] This law allows for the removal of “corneas or corneal tissue” so long as an autopsy has been ordered, corneas are suitable for transplant, and no objection from next-of-kin is known.[77] The statute does not require the coroner or medical examiner to inquire into whether the decedent was a registered organ donor, or whether his or her family would expressly consent to such removal.[78] If this law functions effectively, why couldn’t presumed donative consent work on a larger scale?

The answer to this fundamental question lies in public opinion. Legislators in a number of states have proposed presumed donative consent bills, all of which failed quickly after their inception.[79] In 2010, a New York assemblyman authored a presumed consent bill after his daughter’s life was saved after two kidney transplants, reasoning:

We can trust the decency of the American people, but the government needs to come up with a program that lets people express that decency. That’s what’s missing—a connection between the fundamental goodness of the American people and a system that is not producing the organs that save lives.[80]

His bill was met with objection from the United Network for Organ Sharing (UNOS), the organization that facilitates the organ matching and placement process across the nation.[81] UNOS opposes presumed consent because of “inadequate safeguards for protecting the individual autonomy of prospective donors.”[82]

Recently, a presumed consent bill was proposed by a state senator in Connecticut.[83] The chairman of Connecticut’s Republican Party fiercely criticized the proposal, calling it a “fringe, off-topic agenda item.”[84] The bill also met opposition from the Connecticut Nurses Association and the Connecticut Hospital Association, both groups saying that presumed consent raises “complex legal issues.”[85] The Connecticut bill met the same fate as other presumed consent proposals when the legislature’s public health committee declined to move the bill forward.[86]

Presumed consent systems implicate a number of legal and ethical concerns such as individual autonomy, property rights, fear that the reluctant or procrastinating dissenter will not get the chance to express his or her wishes before death, and the loss of the societal benefits that accompany an opt-in system.

A. Presumed Consent as an Unconstitutional Taking

            The Takings Clause of the United States Constitution prevents the government from taking private property from an individual for public use without just compensation.[87] It has been argued that the taking of cadaveric organs without the express consent of the decedent amounts to an unconstitutional taking.[88] In order to be a constitutionally protected property interest worthy of due process protections, there must be a legitimate claim of entitlement to the property.[89] In Moore v. Regents of the University of California, a case regarding the sale of the plaintiff’s biomedical materials without his informed consent, the California Supreme Court held that a conversion cause of action could not lie because persons do not have a property interest in their own body parts.[90]

Courts are split on what kind of property interest, if any, surviving family members have in the decedent’s corpse. The Sixth Circuit’s decision in Brotherton v. Cleveland is one of few to find that family members possess a constitutionally protected property interest in a decedent’s corpse.[91] Most states, like Kentucky, have followed the traditional common law approach to the issue, or have recognized a family member’s quasi-property interest in their next of kin’s body parts.[92] The Kentucky Supreme Court articulates the common law rule as follows: “The current of authority in this country is to the effect that there is not a property right to a dead body in a commercial sense, but there is a right to bury it which the courts of law will recognize and protect.”[93] The common law rule does not recognize a property right in the body, only a limited possessory interest for burial or lawful disposition.

Dean Prosser seems skeptical of the recognition of a family member’s quasi-property right in a decedent’s corpse, even suggesting that it is a legal fiction, commenting:

 In these cases the courts have talked of a somewhat dubious “property right” to the body, usually in the next of kin, which did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that “property” is something evolved out of thin air to meet the occasion, and that in reality the personal feelings of the survivors are being protected, under a fiction likely to deceive no one but a lawyer.[94]

The constitutionality of a Florida statute authorizing medical examiners to remove corneal tissue from decedents without notifying family members (similar to Kentucky’s statute aforementioned) was challenged in State v. Powell.[95] Under the statute, corneal tissue could not be removed if the decedent’s next of kin objected, but medical examiners had no affirmative duty to seek their permission.[96] The Florida Supreme Court upheld the constitutionality of the statute, holding that family members do not have constitutionally protected liberty or property interest in the decedent’s remains, and thus, are not afforded due process protections before corneal tissue is removed.[97] Plaintiffs cited a number of Supreme Court cases that recognized the freedom of personal choice in family matters in support of their claim.[98] The Court distinguished such cases, reasoning:

 The cases cited recognize only freedom of choice concerning personal matters involved in existing, ongoing relationship among living persons as fundamental or essential to the pursuit of happiness by free persons. We find that the right of the next of kin to a tort claim for interference with burial, established by this Court in Dunahoo, does not rise to the constitutional dimension of a fundamental right traditionally protected under either the United States or Florida Constitution.[99]

Georgia’s cornea removal statute was also challenged on constitutional grounds. In Georgia Lions Eye Bank, Inc. v. Lavant, plaintiffs argued that the statute violated due process by depriving a person of a property right in the corpse of his family member, and failing to provide notice and an opportunity to be heard.[100] The Court upheld the statute, declining to find a constitutionally protected right in the decedent’s body.[101] The Court did, however, recognize the existence of a property right that is limited in its scope, reasoning, “. . .the courts have evolved the concept of quasi property in recognition of the interests of surviving relatives in the possession and control of decedents’ bodies. We do not find this common law concept to be of constitutional dimension.”[102]

The Sixth Circuit Court of Appeals took up the issue in Brotherton v. Cleveland, and reached a vastly different conclusion than state courts in Florida and Georgia.[103] In Brotherton, the plaintiff brought an action under Section 1983, alleging that her husband’s corneas were removed without due process of law, in violation of the Fourteenth Amendment.[104] Before the removal, the plaintiff had voiced her objection to making any sort of anatomical gift to hospital staff, and her objection was documented.[105] Her husband’s body was transported to the coroner’s office for an autopsy, and his corneas were subsequently removed.[106] The hospital did not communicate the plaintiff’s objection to making an anatomical gift.[107]

In order to establish a violation under Section 1983, the plaintiff must prove that she was deprived of a right (here, property) secured by the Constitution or federal law, and that such deprivation occurred under the color of state law.[108] The plaintiff was easily able to meet two of the three elements: she was deprived of her husband’s corneas by the medical examiner, an employee of the state.[109]  In deciding whether the plaintiff had a constitutionally protected property interest in her deceased husband’s corneas, the Court examined how such an interest had previously been treated under Ohio law, emphasizing that “this determination does not rest on the label attached to a right granted by the state but rather on the substance of that right.”[110] The Court found that the plaintiff had an express right, granted by Ohio’s version of the Uniform Anatomical Gift Act, to control the disposal of her husband’s body.[111] Precedent granted her a possessory right to his body, as a well as a claim for disturbance of his body.[112]

Although extremely regulated, in sum, these rights form a substantial interest in the dead body, regardless of Ohio’s classification of that interest. We hold the aggregate of rights granted by the state of Ohio to [plaintiff] rises to the level of a “legitimate claim of entitlement” in [her husband’s] body, including his corneas, protected by the due process clause of the Fourteenth Amendment.[113]

The Court concluded that the plaintiff was not afforded the necessary pre-deprivation process, calling this failure on behalf of the government “an egregious abuse of governmental power.”[114] The Court based the existence of the plaintiff’s constitutionally protected property interest partially on the rights granted to her in the state’s Uniform Anatomical Gift Act to dispose of her husband’s body.[115] It is probable that if such language had not been included in Ohio’s Act, the Sixth Circuit would not have afforded her due process protections.

B. Presumed Consent Compromises Individual Autonomy

            Some critics of the presumed consent organ procurement model are uncomfortable with the notion that silence constitutes consent under the system. They argue that such a system discounts the importance of individual autonomy, thus, “unless we are prepared to advocate control of the body by the state following death, we should seek the approval of families of the deceased. . .”[116] The Florida Supreme Court addressed this argument in State v. Powell.[117] The court reasoned, “Neither federal nor state privacy provisions protect an individual from every governmental intrusion into one’s private life, especially when a statute addresses public health interests.”[118]

The idea that individual autonomy may at times be compromised for the public good is not a new one. The United States Supreme Court took up this issue in 1905 in Jacobson v. Massachusetts, a case involving compulsory smallpox vaccinations.[119] The plaintiff challenged a local law requiring each citizen to be vaccinated or pay a criminal fine, claiming that it violated his inherent right to make his own health care choices and amounted to an assault on his person.[120] The Court patently rejected this argument, finding such minor invasions of personal liberties necessary in maintaining an orderly society.[121] Justice Harlan elaborated on this notion, writing:

The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subjected for the common good.[122]

The Court also recognized the right of states to enact “such reasonable regulations [. . .] as will protect the public health and the public safety.”[123]

Effective organ procurement laws strike a balance between morality and individual autonomy. Just as the Court in Jacobson prioritized protecting the population from the spread of the smallpox virus, it is crucial that the government prioritize procuring life-saving organs.[124]  Critics of the presumed consent model argue that it disregards the will of the individual by allowing silence to constitute consent.[125] However, this overruling of the donor’s will also occurs when the decedent’s family is consulted under the current express consent system.[126] In Kentucky, when a decedent is not registered as an organ donor, certain relatives are authorized by statute to make anatomical gifts on the decedent’s behalf.[127] This too has the potential to disregard the will of the individual. Under any organ procurement system, some compromise of individual autonomy is inevitable because organs are removed upon death, when a person is no longer able to communicate his or her wishes.

C. Organ Shortages Persist Despite Presumed Consent Laws

            Opponents of presumed consent argue that the system is ineffective because it has not eliminated organ shortages in the countries in which it has been enacted.[128] While it is true that more organs are needed for transplant than are donated, the argument that the higher rates of organ donation under presumed consent are “of little consequence” because the system is not entirely curing the shortage is ludicrous and insensitive.[129] The argument devalues the lives saved by organ transplants and overstates the sacrifice made when one pledges to become an organ donor. Patients on the organ transplant list are fighting for their lives while they await a lifesaving transplant. Thousands of Americans die every year waiting. When it comes to saving human lives, isn’t any improvement consequential?

D. Presumed Consent Undermines the Societal Benefits an Altruistic System Provides

            Scholars argue that presumed consent undermines the inherent altruistic benefits voluntary donation provides, and that the system will “lead to a situation where the poor, the uneducated, and the legally disenfranchised might bar a disadvantageous burden, and only the more advantaged groups would exercise autonomy since only the more advantaged groups would be aware of their right to opt-out.”[130] This argument is flawed for a number of reasons. First, it assumes that public campaigns aimed at educating people about presumed consent laws will be ineffective, or maybe that they simply will not exist at all, leading to dangerous information asymmetry.

Secondly, it places an undue amount of weight on the minor difference between opting in and opting out. Both are affirmative acts. Under either system, a person is still making a conscious decision not to deprive someone of an organ, which will undoubtedly provide the potential donor with the same benefit of knowing he has potentially saved a life, regardless of the means used to record his choice.[131] Perspective is crucial, and “preserving the privilege of the few to exercise their virtue [is not] a morally sufficient ground for standing in the way of a policy that could save numerous lives.”[132]

E. Reputational Harm and Implications for the Procrastinating Dissenter

            Skeptics of presumed consent contend that the system “insidiously exploits the citizen’s regrettable reluctance to dissent, even though dissent is her right. It would depend for its success on the unhappy fact that most humans are disinclined toward active protest of that which is customary and routine.”[133] In addition, “the procrastinating or reluctant dissenter” may never have the opportunity to “opt-out” of the system.[134] Both of these valid concerns can be mitigated with the inclusion of simple provisions in presumed consent legislation aimed at protecting the confidentiality of dissenters’ identity.

It is reasonable that some who find organ donation objectionable may nonetheless choose not to opt out because they are afraid of the reputational harm that may accompany the act. As long as confidentiality of organ donor records is rigidly maintained, one’s organ donor status will never become common knowledge. The opt-out option could be made available online so dissenters would not even have to interact with a government employee in order to register their objection. The problem of procrastinating dissenters would not be a substantial one as long as presumed consent laws were crafted to allow one numerous opportunities during his or her lifetime to opt-out. The option should be available and easy to access at any time.

Part IV: A Proposal for Presumed Consent Legislation in Kentucky

An ideal system of organ procurement is one created to effectively balance two goals: (1) increasing the supply of organs available for transplant, while (2) maximizing individual autonomy.[135]

In order to pass ethical muster, it is imperative that implementation of presumed consent laws be accompanied with a vigorous public education campaign.[136] Because silence constitutes consent under this model, it is the role of the government and health care providers to ensure that silence does not, in practice, actually constitute a lack of knowledge of the right to object.[137] It is crucial that people are able to access the information they need in order to make an informed choice about whether or not to opt out of the system.

A. Basic Framework of Kentucky Presumed Consent Legislation

            In order for a system of presumed consent to truly respect individual autonomy, the opportunity to opt-out of organ donation must be constantly available and accessible. For minors, parents’ desire to have their child opted out of the organ donor registry should be recorded for the first time at birth. Unless the minor’s parent or legal guardian decides to change his or her donor status, it should remain in place until the child reaches age sixteen if applying for a driver’s license, or otherwise until the child reaches the age of majority (age eighteen in Kentucky). At either of these points, the parent’s desires are no longer taken into account, and the child should be allowed to make his or her own choice about whether or not to opt-out. The age range of sixteen to eighteen represents some of a young adult’s first interactions with government administration—obtaining a driver’s license and registering to vote.

It follows that under the proposal, adults should also be able to revisit or change their donor status at any time. Any routine interaction with the government presents an opportunity to opt-out.  It is imperative that just as Kentucky citizens can now register to vote, change their political party affiliation, and change their permanent voting address online with relative ease, opting out of organ donation or changing one’s donor status should also be possible online.[138]

In order to mitigate the reputational harm of opting out, as well as protect the privacy interests of Kentucky citizens, organ donor status should be afforded federal and state privacy protections. Such information should be treated no differently under Kentucky law than any other confidential medical record. Maintaining confidentiality of the donor database must be of utmost priority; if individuals are confident that their choice to opt-out will remain confidential, they are more likely to take the affirmative step to do so, increasing the likelihood that the authentic will of the individual is documented and respected. [139]

Although “pure” presumed consent systems in which families are not consulted in any manner are most successful in terms of yielding the highest amount of organs available for transplant, they also arguably disrespect and disregard the wishes of surviving family members. The success of presumed consent systems, as we have seen, relies heavily on public opinion.[140] Public opinion would be presumably low if family members felt as though their concerns and objections were ignored. To avoid this problem, under this proposed system, the decedent’s family should be able to object to organ removal. However, the doctor will not affirmatively consult with them regarding the decedent’s donor status, so the burden is on the family to raise any concerns about the decedent’s wishes. Family members need not have specific objections (i.e. a religious exemption) in order to object; health care providers will respect any objection. Such a provision seems the best way to balance the goal of obtaining more organs with the autonomy of the individual and wishes of the family during a traumatic loss of a loved one.

B. Educational Campaign

            The danger of information asymmetry exists in any interaction between the government and the governed. In order to uphold values of individual autonomy, it is essential for Kentuckians to be aware not only of the implementation of presumed consent laws and their implications, but also the nuts and bolts of the opt-out process. Anyone wishing to object must know how to access the means to do so.

This means that well before presumed consent laws are enacted, a widespread public information campaign must be launched. The purpose of the campaign should be twofold: it should be aimed at (1) dispelling myths about organ donation (for example, the common misconception that one cannot have an open-casket viewing if organs are donated), and (2) explaining the process of opting out.[141] It is also important that Kentuckians know where to find answers to their questions about the new legislative scheme. It is likely that almost all money spent on implementing this new presumed consent law will go toward funding the educational campaign.

Social media should be the major target of the public awareness campaign. According to 2017 statistics, 81% of Americans have a social media profile.[142] Although states have spent hundreds of millions of dollars on media campaigns over the years in hopes of increasing the number of registered organ donors, organ donation rates in America have remained relatively static while the need for organs has increased drastically.[143] The United States Department of Transplantation has created a number of grant programs aimed at improving donation rates.[144] These efforts proved fruitless as well.[145]

In an attempt to tackle this problem in an innovative way, Facebook partnered with the transplant team at Johns Hopkins, the Living Legacy Foundation of Baltimore, and Donate Life America and altered Facebook profile options to allow a user to designate their organ donor status.[146] If a Facebook member chose to select “organ donor” to their profile, they were immediately directed to a link to their state’s organ donor registry, providing easy accessibility to officially register.[147] Facebook users who remained undecided about organ donation were guided to Internet links providing information and dispelling organ donation myths.[148]

The organ donor initiative went live on Facebook on May 1, 2012 and the results are astounding.[149] On the first day of the initiative, online organ registrations increased by over 21-fold—going from a baseline average of 616 registrations to 13,054 online registrations.[150] Online registration rates remained elevated for the following twelve days of the initiative, while DMV donor registration remained static.[151] The impact of the implementation of presumed consent laws in conjunction with an effective social media education campaign has the potential to increase the number of organ donors in Kentucky dramatically.

Along with the social media campaign, public service announcements should appear on television, ramping up in the months leading up to the law’s enactment. Every high school sophomore (usually between the ages of fifteen and sixteen) attending a public Kentucky school should be required to attend an informational seminar about organ donation facilitated by state officials. By the time these students apply for a driver’s license, they will understand presumed consent laws and are well equipped to make an informed decision regarding their donor status. Students who are unable to attend the information session (perhaps because they attend a private school or are homeschooled) should be shown a video containing the same information before they are allowed to take the test to obtain their learner’s permit. Also, it is imperative that the state maintain a toll free number and a website to field questions and provide information about the new presumed consent system.

Conclusion

            As of August, 2017, in the United States more than 116,000 people are languishing on the organ transplant list, awaiting their opportunity to receive a lifesaving organ.[152] The current express consent organ donation system falls far short of meeting the ever-increasing demand for organs, even when coupled with aggressive, expensive public awareness campaigns. The current approach to organ procurement in the United States has left a huge disparity between supply and demand for decades. On average, twenty people die each day waiting for an organ.[153] That brutal statistic alone illustrates the urgency of the organ shortage.

Although public opinion overwhelmingly supports organ donation, this positive sentiment does not translate into an adequate number of people on the organ donor registry[154], making it imperative that the government intervene in an effort to alleviate this deadly shortage. The method of increasing organ donors that would have the most impact in the shortest amount of time is the adoption of a system of presumed donative consent. As Emily Morris explains in her 2002 Kentucky Law Journal article on the topic, “Bodies now have a utility after death that they never had before: they possess the ability to save lives. Public health laws need to be rewritten to reflect that change.”[155] Although presumed consent laws may not alleviate the organ shortage entirely, if implemented after an effective educational campaign, it can help close the gap between supply and demand.[156]

Legal and ethical concerns accompany any organ procurement system, but they are especially complex when it comes to presumed consent, which makes public educational campaigns even more crucial to the scheme’s success. While concerns over bodily integrity and individual autonomy are certainly valid, at some point our society must collectively begin prioritizing the health and welfare of the living over what happens to our bodies after our death. The government must take an active role in showing the American people that presumed donative consent is not a “fringe” topic, but it is instead a legislative scheme that, if implemented successfully, could save tens of thousands of lives every year.[157]

 

[1] University of Kentucky College of Law, J.D. Expected May 2018.

[2] Dan Lieberman & Ely Brown, The Waiting Game: 9 Organ Transplant Patients Fight to Survive, ABC Nightline (May 1, 2012), http://abcnews.go.com/Health/waiting-game-organ-transplant-patients-fight-survive/story?id=16245341#1; John S. Child et al., Echocardiographic Manifestations of Infiltrative Cardiomyopathy A Report of Seven Cases Due to Amyloid, American College of Chest Physicians, Chest, 70: 6, at 730, Dec. 1976, http://journal.chestnet.org/article/S0012-3692(16)38149-1/pdf.

[3] Lieberman & Brown, supra note 2; Double-transplant Survivor Starts New Life, New England Cable News (Jan. 17, 2014), http://www.necn.com/news/new-england/_NECN__Double-transplant_Survivor_Starts_New_Life_NECN-247631031.html

[4] Lieberman & Brown, supra note 2.

[5] New England Cable News, supra note 3.

[6] Dep’t of Health and Hum. Serv., U.S. Government Information on Organ Donation and Transplantation, https://www.organdonor.gov/statistics-stories/statistics.html (last visited Sept. 17, 2017).

[7] Id.

[8] Organ Transplants: A Brief History, History.com (Feb. 12, 2012), http://www.history.com/news/organ-transplants-a-brief-history.

[9] See id.

[10] Id.

[11] Id.

[12] Dep’t of Health and Hum. Serv., Timeline of Historical Events and Significant Milestones, https://www.organdonor.gov/about/facts-terms/history.html (last visited September 16, 2017).

[13] Legis. Budget & Fin. Committee, A Performance Evaluation of Pennsylvania’s Organ and Tissue Donor Awareness Program, June 2007, http://lbfc.legis.state.pa.us/Resources/Documents/Reports/145.pdf.

[14] Dep’t of Health and Hum. Serv., What Can be Donated, https://www.organdonor.gov/about/what.html#expandcollapse, (last visited September 16, 2017).

[15] Unif. Determination of Death Act (Nat’l Conference on Comm’rs on Unif. State Laws 1981).

[16] Dep’t of Health and Hum. Serv., The Deceased Donation Process https://www.organdonor.gov/about/process/deceased-donation.html, (last visited September 16, 2017).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] See Dep’t of Health and Hum. Serv supra note 16.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] See Dep’t of Health and Hum. Serv supra note 6.

[27] See Dep’t of Health and Hum. Serv., Sign Up to be an Organ Donor, https://organdonor.gov/register.html (Last visited October 14, 2017).

[28] Tiffanie Wen, Why Don’t More People Want to Donate Their Organs?, The Atlantic (Nov. 10, 2014), https://www.theatlantic.com/health/archive/2014/11/why-dont-people-want-to-donate-their-organs/382297/.

[29] See generally A.M. Cameron et al., Social Media and Organ Donor Registration: The Facebook Effect, 13 AM. J. OF TRANSPLANTATION 2061 (2013).

[30] Id.

[31] David E. Jefferies, The Body as a Commodity: The Use of Markets to Cure the Organ Deficit, 5 Ind. J. Global Leg. Stud. 621, 627 (1998).

[32] Id. at 628.

[33] Id.

[34] Id. (quoting Melissa N. Kurnit, Organ Donation in the United States: Can We Learn From Successes Abroad?, 17 B.C. Int’L & Comp. L. Rev. 405, 427 (1994).

[35] Emily D. Morris, Note, The Organ Trail: Express Versus Presumed Consent as Paths to Blaze in Solving a Critical Shortage, 90 Ky. L. J. 1125, 1130 (2001).

[36] See generally National Conference of Commissioners on Uniform State Laws, Revised Uniform Anatomical Gift Act, 2006, available at http://www.uniformlaws.org/shared/docs/anatomical_gift/uaga_final_aug09.pdf (Last visited Oct. 17, 2017).

[37] Uniform Anatomical Gift Act (2006), §16.

[38] Jeffries, supra note 31, at 630.

[39] Jefferies, supra note 31, at 629–30.

[40] Morris, supra note 35, at 1131 (quoting Alexandra K. Glazier, The Brain Dead Patient Was Kept Alive” and Other Disturbing Misconceptions; A Call for Amendments to the Uniform Anatomical Gift Act, 9 Kan. J.L. & Pub. Pol’y 640, 645 (2000).

[41] Jefferies, supra note 31, at 630.

[42] Id.

[43] Id.at 630–31.

[44] Melissa N. Kurnit, Organ Donation in the United States: Can we Learn from Successes Abroad?, 17 B.C. Int’l & Comp. Law. Rev. 405, 413 (1994).

[45] Id.

[46] See Id. at 413–14, 432–33.

[47] Ky. Rev. Stat. Ann. § 311.1955 (West 2010).

[48] Ky. Rev. Stat. Ann. § 311.1915 (West 2010).

[49] Ky. Rev. Stat. Ann. § 311.1817 (West 2010).

[50] Casey Leins, Should the Government Decide if You’re an Organ Donor?, U.S. News & World Report, Feb. 12, 2016, https://www.usnews.com/news/articles/2016-02-12/presumed-consent-and-americas-organ-donor-shortage.

[51] Jefferies, supra note 31, at 628–29.

[52] Wen, supra note 28.

[53] Id.

[54] Id.

[55] See Jefferies, supra note 31, at 632.

[56] Id.

[57] Jefferies, supra note 31, at 634.

[58] Id. at n. 72.

[59] Everton Bailey, Should the State have Rights to your Organs? Dissecting Brazil’s Mandatory Organ Donation Law, 30 U. Miami Inter-Am. L. Rev. 707, 719–20 (1999).

[60] Kurnit, supra note 44, at 423.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Christian Williams, Note, Combatting the Problems of Human Rights Abuses and Inadequate Organ Supply Through Presumed Donative Consent, 26 Case W. Res. J. Int’l. 315, 340 (1994).

[66] Casey Leins, Should the Government Decide if You’re an Organ Donor?, U.S. News (Feb. 12, 2016), http://www.usnews.com/news/articles/2016-02-12/presumed-consent-and-americas-organ-donor-shortage.

[67] Steven Morris, Welsh “Deemed Consent” Organ Donation System Shows Promising Results, the guardian (Sept. 4, 2016), https://www.theguardian.com/society/2016/sep/04/wales-deemed-consent-organ-donation-system-promising-results.

[68] Id.

[69] Id.

[70] Alejandra Zúñiga-Fajuri, Increasing Organ Donation by Presumed Consent and Allocation Priority: Chile, Bull. World Health Org. (World Health Org.), March 2015, at 199.

[71] Id.

[72] Williams, supra note 65, at 339–40. .

[73] See discussion supra Part II.A.

[74] Id.

[75] Leins, supra note 66.

[76] See Ky. Rev. Stat. Ann. § 311.1961 (West, Westlaw through 2017 reg. sess.).

[77] Id.

[78] See id.

[79] Leins, supra note 66.

[80] Madison Park, California, New York Mull Changes to Organ Donor Laws, CNN (May 10, 2010), http://www.cnn.com/2010/HEALTH/05/10/organ.donation.jobs.laws/#.

[81] See id.

[82] Id.

[83] See Daniela Altimari, Republicans Blast Mandatory Organ Donation Proposal, Hartford Courant (March 16, 2017), http://www.courant.com/politics/hc-mandatory-organ-donation-20170316-story.html.

[84] Id.

[85] Id.

[86] Id.

[87] U.S. Const. Amend. 5.

[88] Kurnit, supra note 44, at 438.

[89] Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

[90] Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 487-92 (Cal. 1990).

[91] See Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir. 1991).

[92] See id. at 480.

[93] Neighbors v. Neighbors, 65 S.W. 607, 608 (Ky. 1901).

[94] State v. Powell, 497 So. 2d 1188, 1192 (Fla. 1986) (quoting W. Prosser, The Law of Torts, 43–44 (2d ed. 1955)).

[95] See id.

[96] Id. at 1189.

[97] Id. at 1193.

[98] Id.

[99] Id.

[100] See Georgia Lions Eye Bank, Inc. v. Lavant, 335 S.E.2d 127, 127–28 (Ga. 1985).

[101] Id. at 128.

[102] Id.

[103] See Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991).

[104] Id. at 478–79.

[105] Id. at 478.

[106] Id.

[107] Id.

[108] 42 U.S.C. § 1983 (1996).

[109] Brotherton v. Cleveland, 923 F.2d 477, 479 (6th Cir. 1991).

[110] Id. at 481-82 (citations omitted).

[111] Id. at 482.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Jefferies, supra note 32, at 642.

[117] See State v. Powell, 497 So. 2d 1188 (Fla. 1986).

[118] Id. at 1193.

[119] See Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[120] Id. at 26.

[121] Id. at 26, 27–29.

[122] Id. at 26.

[123] Id. at 25.

[124] See id.  

[125] Jefferies, supra note 31, at 649.

[126] Kurnit, supra note 44, at 439-40.

[127] Ky. Rev. Stat. Ann. § 311.1925 (West 2017).

[128] See Bailey, supra note 59, at 719.

[129] Jefferies, supra note 31, at 650.

[130] Bailey, supra note 59, at 721.

[131] Kurnit, supra note 44, at 436.

[132] Arthur J. Matas et al., A Proposal for Cadaver Organ Procurement: Routine Removal with Right of Informed Refusal, 10 J. Of Health Pol., Pol’y & L. 231, 242 (1985).

[133] Bailey, supra note 59, at 720.

[134] Id. at 721.

[135] Jefferies, supra note 31, at 640.

[136] U.S. Dept. of Health and Human Serv., An Evaluation of the Ethics of Presumed Consent, Organ Procurement and Transplantation Network, June 1993, https://optn.transplant.hrsa.gov/resources/ethics/an-evaluation-of-the-ethics-of-presumed-consent/.

[137] See id.

[138] See Jack Brammer, Online Voter Registration Comes to Kentucky, Herald Leader (Mar. 14, 2016), http://www.kentucky.com/news/politics-government/article65982842.html.

[139] Sarah E. Statz, Note, Finding the Winning Combination: How Blending Organ Procurement Systems Used Internationally Can Reduce the Organ Shortage, 39 Vand. J. Transnat’l L. 1677, 1706 (Nov. 2006).

[140] See Leins, supra note 66.

[141] See e.g., Organ Donation: Don’t Let These Myths Confuse You, Mayo Clinic (Feb. 16, 2017), http://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/organ-donation/art-20047529.

[142]Percentage of U.S. Population with a Social Media Profile from 2008 to 2017, Statista, https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/ (last visited September 29, 2017).

[143] Cameron et al., supra note 29, at 2059.

[144] Id. at 2059–60.

[145] Id. at 2060.

[146] Id.

[147] Id.

[148] Id.

[149] See id. at 2060–61.

[150] Id. at 2059.

[151] Id. at 2061.

[152] See Dep’t of Health and Hum. Serv., supra note 5.

[153] Id.

[154] See Cameron et al., supra note 29, at 2059.

[155] Morris, supra note 35, at 1148.

[156] Id.

[157] See Altimari, supra note 83.

Veterans Treatment Courts in Kentucky: Their Success, Their Shortcomings, and What Kentucky Can Do to Further Rehabilitate Veterans

Veterans Treatment Courts in Kentucky: Their Success, Their Shortcomings, and What Kentucky Can Do to Further Rehabilitate Veterans

Veterans Treatment Courts in Kentucky: Their Success, Their Shortcomings, and What Kentucky Can Do to Further Rehabilitate Veterans

Article | 105 KY. L. J. ONLINE | November 22, 2017

Adam Meyer[1]

Introduction

            “The victims of [post-traumatic stress disorder] often feel morally tainted by their experiences, unable to recover confidence in their own goodness, trapped in a sort of spiritual solitary confinement, looking back at the rest of the world from beyond the barrier of what happened.”[2] Between 11‑20% of veterans who served in Operation Iraqi Freedom (OIF) or Operation Enduring Freedom (OEF) suffer from PTSD.[3]  Research shows a direct correlation between these mental disorders, substance abuse issues, and criminal behavior.[4] Instead of looking to the retributive forms of punishment, many states, including Kentucky, have created Veteran Treatment Courts (“VTC”) in order to rehabilitate these veterans.[5] Further, the federal government and several states have enacted sentencing guidelines and statutes that allow for sentence mitigation for veterans suffering from mental disorders caused by military service.[6] The creation of the VTC, sentencing guidelines, and statutes demonstrate the public’s recognition and concern for our nation’s young men and women who have served their country.

The purpose of the VTC is to treat veterans suffering from substance abuse and mental disorders while ensuring public safety.[7] Taking a rehabilitative approach, VTC’s utilize rigorous treatment and personal accountability to fully treat the veteran.[8] To accomplish this goal, the VTC, in a manner similar to drug courts, uses a coordinated response with mental health and substance abuse recovery providers, the Department of Veterans affairs, Veterans Benefits Administration, and numerous other resources to promote the recovery and sobriety of the veteran.[9] The VTC has a great number of benefits, including saving millions in penitentiary costs, overall reduction in crime, and healthier communities.[10]

In 2012, Kentucky created its first VTC in Jefferson County.[11] Since its creation, the program has moved into four more Kentucky counties.[12] The purpose of this note is to give an overview of the VTC, explain and reveal the importance of this program, recommend that the Kentucky Legislature statutorily expand the number of VTC’s, and revise sentencing guidelines to make military service a possible mitigating factor.

Part I of this note discusses the link between military service and criminal behavior. Part II of this note explains the purpose of VTC, its origins, its formation in Kentucky, and veteran qualifications needed for participation. Part III of this note explores the criticisms of the VTC and discusses arguments against the criticism. Part IV of this note describes how state legislatures outside of Kentucky have passed legislation for the formation of VTC’s and explores the benefits of having a statue. Part V of this note discusses alternative judicial protections for veterans such as sentencing mitigation for combat veterans. Finally, part VI of this note advocates for expanded utilization and funding of the Kentucky VTC and for the state legislature to pass statutes that will change criminal sentencing guidelines to further protect veterans suffering from mental service-related injuries.

I. The Connections Between Military Service and Criminal Behavior

            To truly understand the need for special veteran treatment, the root of the problem must be explored. Part A will describe the causes of mental disorders in our military troops. Part B will explain the link between military related mental disorders and criminal behavior.

A. PTSD and its Connection to Combat Stress, Traumatic Brain Injuries, Military Sexual Trauma

            The development of PTSD occurs after a terrifying or traumatic event involving either a threat of physical harm or actual physical harm.[13] PTSD is “an anxiety disorder that occurs after a traumatic event in which a threat of serious injury or death was experienced or witnessed and the individual’s response involved intense fear, helplessness, or horror.”[14]  While stressful mental reactions to a traumatic event normally subside relatively quickly, these symptoms may exist for longer in individuals suffering from PTSD.[15]

The symptoms of PTSD are usually divided in to four different types.[16]  First, a person with PTSD may suffer from nightmares or flashbacks of the traumatic event.[17]  Second, a person may try to avoid talking about, thinking about, or being involved in situations that may trigger memories of the traumatic event.[18]  Third, a person with PTSD may begin to feel differently about themselves and others due to the trauma and may avoid relationships.[19] Finally, a person may be overly fearful of dangerous situations, causing the person to become abruptly angry or irritable.[20] These mental health issues will often be left untreated because many veterans fear that they will be stigmatized by society if they seek treatment.[21]

There are many stressors that contribute to PTSD for deployed combat troops and non-deployed active duty service members.[22] Combat stressors include seeing dead bodies, being shot at, being attacked or ambushed, knowing someone who was killed or seriously injured, and combat traumatic brain injuries (“TBI”).[23] Today’s combat veterans returning from service in either Operation Enduring Freedom (“OEF”) or Operation Iraqi Freedom (“OIF”) face an unprecedented amount of strain.[24] Unlike past American conflicts, our military today is entirely based on a volunteer core and is not a drafted service.[25] Military troops have faced several consecutive combat tours of duty, some deploying as many as nine times.[26] Recent Army studies show that there is an increase in PTSD in troops who have had several combat deployments.[27] TBI’s have increased because the use of improvised explosive devices (“IED”) in Iraq and Afghanistan increased. TBI is now considered to be the “signature wound” of these wars.[28]  Most research suggests that many people who suffer a TBI also develop PTSD.[29]

The stressful events prevalent in the military are not limited to combat situations. Military Sexual Trauma (MST[30]) is a largely recognized service related stressor.[31] More than half of veterans who have endured MST suffer from PTSD.[32]While sexual assault and trauma disproportionately affects women, it is undeniable that men are also affected. .[33] Although underreported,[34] statistics show, of the reported cases, one in four females has been subject to unwanted sexual contact while in the military.[35]  MST symptoms include feelings of depression and anger, sudden emotional outburst, feelings of numbness, trouble sleeping, trouble focusing, addiction and dependence on alcohol or drugs, difficulties with relationships, and physical health problems.[36]

Even if a service member does not suffer from PTSD or MTS, adjustment to civilian life can still be a monumental task. Epidemiological studies have linked veterans with violent tendencies and post-deployment criminal behavior to repeat deployments in combat zones.[37] While in these combat zones veterans are subject to “[h]eightened levels of awareness” and stress.[38]  When returning home these heighted levels “increase irritability, outburst[s] of anger, and [cause] poor sleep patterns, making normal social interaction with family and friends very difficult.  These adjustment problems can be compounded when returning veterans are also suffering from PTSD or other war-related psychological injuries.”[39]

In sum, there are a wide range of military experiences–both combat and non-combat related–that can leave a veteran’s mind damaged from their service. “Left untreated, mental health disorders common among veterans can directly lead to involvement in the criminal justice system.”[40]

B. The Rising Number of Veterans Suffering from PTSD and the Link to Criminal Behavior

          Historically, an increased number of veterans surface in the criminal justice system following each major American conflict.[41] In past generations these combat veterans were essentially cast aside by our society, and instead of receiving treatment, they were incarcerated for their criminal behavior.[42] Many of these veterans are still “incarcerated, homeless, or chemically addicted.”[43] Thanks to modern psychology, there is a known link between military mental disorders, substance abuse,[44] criminal behavior, and homelessness.[45]One in five veterans exhibit symptoms of mental health disorder and one in six veterans who served in OEF and OIF suffer from issues related to substance abuse.[46] Veterans suffering from symptoms of PTSD or related mental illnesses often look to alcohol or other drugs to self-medicate[47]and help with their inability to sleep, feelings of numbness, anger, or depression[48]. For one reason or another, many of these self-medicating veterans will start to abuse drugs.[49] The most heavily cited reason for self-medicating is to avoid reliving a traumatic event.[50] Of the substances abused by veterans, a disproportionate number struggle with prescription addiction.[51] Many veterans have opioid prescriptions and over half chronically abuse the prescription.[52] This rate of abuse is alarming when compared to the civilian rate of prescription abuse.[53]

Substance addiction problems often lead to several different types of criminal behavior which include: use-related crimes that happen under the influence of drugs, economic-related crime like prostitution and theft that occur to fund a drug habit, and system-related crimes that result from “production, manufacture, transportation, and sale of drugs.”[54]  This criminal activity can range from petty crimes to more serious violent behavior.[55]  A 2014 study found that 40% of veterans suffering from PTSD (which at the time was 300,000 veterans of OIF and OEF) had committed a violent crime after their military service.[56] Research shows that various situations can trigger aggressive tendencies in veterans with PTSD.[57] Anger is a normal response after trauma; this is related to natural survival instincts.[58] People with PTSD may react to stressful situations “as if [their] life or self were threatened.”[59] These triggers include remembering the distressing event, reliving the event (flashbacks), and having nightmares of the event.[60]  If an aggressive outburst is triggered, veterans find themselves at odds with the criminal justice system and often charged with a serious crime.[61]

Veterans’ untreated psychological damage is directly linked to aggressive and addictive tendencies causing many veterans to end up in the criminal justice system. This warrants the development of special needs-based treatment courts for veterans suffering from PTSD and similar psychological injuries.[62]

II. Formation and Success of VTC’s Around the Country and in Kentucky

A. The Formation of the Country’s First VTC, its Proliferation, and Responses

          In 2008, Judge Robert Russell founded the first VTC in Buffalo, New York, [63] after noticing an increase in veterans appearing in the Buffalo drug and mental health courts.[64] Because of its great success, there are now over 220 VTC’s around the country.[65] Veterans of all service eras can be accepted into the program.[66]

The VTC is a unique tool that effectively breaks the cycle of veteran criminal activities by directing them to community or Veteran Affairs treatment, which addresses the underlying mental instability and trauma, instead of merely sending the veteran to jail.[67] VTC’s are set up to address both substance and mental disorders, acting as a mix of a drug treatment court and mental treatment court.[68] The drug and mental treatment courts have had a “remarkable track record” reducing recidivism in a cost effective way that has spanned over twenty years. [69]

The organization Justice for Vets has recognized ten key components of VTC’s, which have been implemented by the Kentucky VTC.[70] First, as noted above, the VTC integrates drug treatment and mental health services.[71] Second, the prosecutor and defense work together as a team in a non-adversarial fashion, to focus on the veteran’s recovery.[72] Third, the VTC identifies participants early on for prompt placement in the program.[73] Fourth, the program provides services other than drug and mental health services, including help with medical problems, homelessness, education, unemployment, and family trouble.[74] Fifth, frequent drug testing monitors the veteran’s sobriety.[75] Sixth, compliance with the program determines the veteran’s progress and is measured by the veteran’s overall cooperation or noncompliance.[76] Seventh, the veteran participating in the program has an ongoing interaction with the judge overseeing the VTC.[77] Eighth, the veteran’s success is gauged by a monitoring system that sets goals and objectives for the veteran to complete.[78] Ninth, volunteers and treatment staff participate in interdisciplinary educational training to promote effective planning, implementation, and operations.[79] And tenth, VTC’s, the Veteran Administration, private community organizations, and public agencies develop a partnership committed to the effectiveness of the program.[80]

The VTC provides continuing access to alcohol, drug, and mental health treatment.[81] A crucial aspect of the treatment is the access to veteran peer mentors. The peer mentors provide structure and accountability, helping the veteran’s chances of drug use cessation and overall recovery.[82] This benefits many veterans, who end up in the court system afraid to seek treatment because they do not want to be stigmatizing diagnosis, such as PTSD.[83] The feared repercussions include stereotypes that all people with PTSD are dangerous or unstable, discrimination at work, and “being denied chances to succeed because of a PTSD diagnosis.”[84] Because new VTC’s are still emerging, concrete results data are still being formulated. For example, the VTC in Anchorage, Alaska, one of the first in the country, found lower rates of recidivism among graduates, compared to both the general population and veterans who did not participate in the program.[85] A survey of eleven treatment courts found that recidivism of VTC graduates was less than 2%.[86]  Approximately 67.8% of state prisoners are arrested within three years of release, and 76.6% are arrested within five years of release.[87] Due to these positive reports, the Department of Justice and President Obama granted funding for the creation of new VTC’s and for specialized training on how to develop a VTC.[88]

B. The Creation and Scope of the Kentucky VTC

          About 340,000 veterans live in Kentucky with as many as 10% struggling with issues caused by their military service.[89] The Kentucky Supreme Court formed Kentucky’s first VTC in Jefferson County in 2012[90] through the work of the Veteran’s Task Force, which was headed by Justice Will T. Scott and Chief Justice John D. Minton, Jr. [91] The purpose of the Veterans Task Force was to improve the ability of Kentucky courts to identify veterans in need and connect them with the appropriate treatment services.[92] The task force worked with all branches of state government and the Department of Veterans Affairs to get the VTC off the ground.[93] The VTC operates within the Department of Specialty Courts at the Administrative Office of the Courts, but is based on the Kentucky Drug Court program that began in 1996 and serves 113 counties.[94] The original funding of the 2012 Jefferson County VTC came from a $350,000 grant from the Bureau of Justice Assistance of the U.S. Department of Justice.[95] The funding is used to provide support services to the veterans and enable case managers who work closely with all of the agencies that assist the veteran.[96]  The goal of the cooperative funding is to ensure the veteran is given the best treatment.[97]

The Kentucky VTC is overseen by the Administrative Office of the Courts and is implemented by “teams comprised of judges, Drug Court staff, veterans’ agencies, mental health and substance abuse treatment providers, law enforcement, the legal community, and community members.”[98] Program length is individualized based on the level of services needed by the veteran, usually lasting from eighteen months to two years.[99] Similar to the other VTC’s around the country, volunteer mentors meet with the veterans to encourage progress.[100] Upon successful completion of the program, the veteran’s criminal charges may be dismissed or a conditional discharge may be granted through probation.[101]

In the years since the creation of the Jefferson County VTC, four other VTC’s have opened in Fayette, Hardin, Christian, and Kenton Counties, which is in northern Kentucky.[102] Most VTC teams have completed training through the National Drug Court Institute’s Veterans Treatment Court Planning Initiative.[103] While there is little concrete data about success rates, overall public reception of the program has been positive and at least one Kentucky county is hoping to integrate a VTC into its pre-existing drug treatment court programs.[104] In fact, the Kentucky House of Representatives acknowledged the efforts of the Kentucky Administrative Office of the Courts through a House Resolution that commended the establishment of the veterans’ court.[105]

C. The Kentucky Qualifications

          To qualify for the VTC, the Kentucky Supreme court has provided that the veteran must:

  • Be an active-duty service member, a veteran, or in the reserves or National Guard.
  • Each court will determine what it deems an acceptable military discharge.
  • Have a pending eligible misdemeanor or felony offense or be on probation or shock probated for an eligible misdemeanor or felony offense. The exclusions are felony convictions for crimes that included violence and felony sexual offenses. Crime victims may give input concerning the veteran’s admission to VTC. The VTC team makes the final determination of eligibility and acceptance.
  • Be a legal resident or citizen of the United States and a resident of the county in which the VTC is located or a contiguous county.
  • Be assessed as having a substance abuse disorder and/or a psychiatric disorder such as post-traumatic stress disorder, traumatic brain injury, depression, anxiety, or other psychological or psychiatric illness.
  • Express a willingness to participate and demonstrate a thorough understanding of the strict requirements of the program and the sanctions for violating those requirements.[106]

This program is set up on a referral basis. Referrals can be made by the prosecutor, judge, defense attorney, probation officer, or any other member of the VTC team.[107] A Circuit Court, Family Court, or District Court judge must complete a referral order before the VTC may assess the veteran.[108] The VTC completes an assessment on each veteran and determines if there are any risks and needs by looking at the veteran’s individual status and criminal history.[109]

The qualification standard is mostly inclusive but is lacking in certain areas. The program does not differentiate between combat and non-combat veterans, only requiring there be “acceptable military discharge.” Moreover, it provides treatment services for a plethora of substance abuse issues and psychiatric issues beyond PTSD.  If Kentucky VTC’s view these requirements broadly, Kentucky would be one of the first states to accept veterans who have suffered MST into a VTC program.[110]  Although the program is highly inclusive, there are two exclusions that could cause substantial hardships to suffering veterans and should be reconsidered by Kentucky. First, the program excludes violent criminals. Second, it requires that veterans must reside in the county or contiguous county where the VTC is located.  Both issues will be explained and discussed in further detail below.

Overall, Kentucky has laid a solid foundation upon which VTC’s can be created across the state.  However, certain amendments to the Kentucky VTC and criminal justice system should be made to rebuff potential criticisms of the VTC and to enable all veterans an opportunity for rehabilitation.

III. Criticism of the VTC

         While most reactions to the VTC have been positive, there are a few reoccurring concerns. Critics claim that VTC’s create a special class of criminal defendants, the program is unnecessary, and that many veterans are not eligible.[111]

First, critics of the program claim that VTC’s create a special class of criminal defendants who receive an automatic pass based on military status, a protection not afforded to similar criminal offenders.[112]  The American Civil Liberties Union (ACLU) has criticized the court as giving veterans a “get out of jail free” card by creating a special class of criminal defendants.[113] Specifically, the ACLU believes that the term veteran is over-inclusive because a great number of veterans are not exposed to combat and do not experience the same kinds of trauma as combat veterans.[114] In addition, critics have pointed out that many civilians also suffer from PTSD and yet are not given this special treatment.[115]  In response to this criticism, many states require a nexus between the criminal behavior and the triggered combat.[116]  Many veteran advocates argue that this nexus is unnecessary because veterans are already recognized as a special class.[117] “Veterans already receive many status-based benefits: medical care, loan guarantees, employment preferences and educational support.”[118]  It is fair to say that veterans have made a sacrifice for our country, making them a special class of citizen and deserving of VTC special treatment.

A second critique is that VTC’s are unnecessary and that instead of creating a new specialty court, veterans should merely be placed in a state’s existing drug or mental health court.[119] This criticism has been shown to be unwarranted.[120]  The VTC provides a unique service for veterans that cannot be provided by the existing special treatment courts.[121]  The existing courts do not address trauma in the same way that a VTC address military trauma.[122] Because VTC teams (which include peer mentors) are developed and trained in particularized techniques to exclusively handle veteran cases, VTC’s are more efficient than existing special needs courts.[123] While other special needs courts are normally divided into drug courts and mental treatment courts, the VTC wears both hats for its treatment program.

A third critique is that VTC eligibility requirements bar many veterans.  Similar to the original VTC in Buffalo, the Kentucky VTC does not accept defendants who have committed violent or sexual offenses.[124] These categorical restrictions limit the VTC to providing treatment only to veterans who have committed non-violent felonies and misdemeanors.[125] But it is precisely the defendants barred by this eligibility requirement that are often in desperate need of rehabilitation.[126] The offenders of more serious crimes face serious penalties, and first time offenders would be better served by a system of treatment and mentoring.[127] Although there is a compelling interest in rehabilitating the veterans, if a veteran offender commits a seriously heinous crime like premeditated murder or is a multiple offender, non-rehabilitative forms of punishment may be more appropriate.[128] By changing the eligibility guidelines to allow violent criminals to participate, a VTC judge (or team) would have the option to grant rehabilitation and not have a bright line rule that excludes all violent offenders. Further, even if violent offenders were not given eligibility, many states and the federal government have incorporated sentencing mitigation for all convicted veterans.[129]

A fourth critique of the VTC is cost.  Specialty courts have tendency to be more expensive than traditional courts.[130] However, the cost of the VTC is not nearly as expensive as incarceration or recidivism.  In Cook County Illinois, for example, the VTC rehabilitative programs saved the county $595,206 in incarceration costs.[131] And the project manager of the VTC in Buffalo, New York, noted that “[w]hile it may seem more costly for veterans to go through treatment programs under the direction of the Buffalo Court, it actually costs less than ten percent of the total amount spent on incarcerating an individual.”[132]

IV. State Statutory Creation of the VTC compared to Judicial Creation

          The VTC in Buffalo, New York became the model for other states. There are now 220 different court programs in over twenty-five different states.[133] States have taken two different approaches in the creation of the VTC. States like California, Texas, Colorado, Illinois, Oregon, Virginia, Maine, Michigan, Mississippi, Florida, Louisiana, Missouri, Tennessee, South Carolina, Rhode Island, and Utah have passed legislation and statutes to specifically permit the establishment of local VTC’s.[134]  The remaining States that have VTC programs, like Kentucky, have done so directly through their local court systems.

Each state may follow a different administrative model, but all VTC’s grant a defense attorney the opportunity to lessen their client’s incarceration and possibly conviction using rehabilitative programs.[135]  The Supreme Court of Kentucky has done an excellent job creating the five VTC’s and their guidelines. However, to ensure absolute clarity and awareness of the VTC program, the Kentucky legislature should take the next step and pass comprehensive legislation.

Two strong models for Kentucky to look to for such legislation would be Louisiana and Michigan.[136] Both statutes grant the power to designate VTC programs and grant the administrative power to the judge presiding over that judicial district.[137] The statutes also fully explain the scope of the veteran’s participation in the VTC[138] and the authority of the judge, with Louisiana granting its judges the powers to impose probation, to confine a participant to a treatment facility, or reject someone from the program completely.[139] The statutes further specify the types of evidence needed to prove the veteran is eligible for the program,[140] and that funding for the programs will come from the federal government, the state and in some instances out of the participating veteran’s pocket.[141] The Michigan statute specifically adopts the ten key components of a VTC that were identified by Justice for Vets.[142] Further, the Michigan statue allows VTC’s to accept participants from other jurisdictions in the state if a VTC is unavailable where the participant is charged.[143] By providing this vast amount of information about general qualifications, formation processes, funding, and jurisdiction these states have created a clear inclusive VTC model statute.

By enacting a similar statute, Kentucky would give clarity to practicing attorneys, judges, and veterans who find themselves in the criminal justice system. It would allow more veterans to participate in the VTC, even if they did not live the same jurisdiction as a VTC. And further, enacting a similar statute would provide additional funding for the creation of new VTC’s throughout the state.

V. Examination of Federal and State Sentencing Mitigation

            Although VTC programs help many, a great number of veterans in the criminal justice system are either ineligible for the VTC program or do not live in a jurisdiction that has a VTC. The Supreme Court of the United States and many states have recognized this issue and now require evidence of a veteran’s service history be shown as a possible mitigating factor in a sentencing determination.[144]

A. Porter v. McCollum and Federal Sentencing Mitigation

            In Porter v. McCollum, the Supreme Court of the United States recognized that when deciding the competency of a defendant, his or her military service should be considered during sentencing.[145] The defendant in Porter was a Korean War veteran who had been convicted of murdering his girlfriend.[146] During the sentencing phase, the defendant’s attorney did not present any mitigating evidence regarding the defendant’s military service or mental health.[147] Because of the lack of mitigating evidence, the trial court imposed the death penalty.[148]  The Court reversed the trial court’s sentence and held:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as [defendant] did.  Moreover, the relevance of [defendant’s] extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on [defendant].[149]

The Court acknowledged the connection between PTSD and criminal behavior, creating a legal duty for defense attorneys to present evidence of military service, service-related mental health or available treatment options.[150]

Fortunately, in 2010, the United States Sentencing Commission amended the federal guidelines to allow federal district judges to take into account a defendant’s military status during the sentencing phase in both capital and non-capital cases.[151] §5H1.11 of the Sentencing Guidelines Manual provides “[m]ilitary service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the  guidelines.”[152] This guideline provides a tool for federal judges to depart from a normal sentence and look for more rehabilitative forms of punishment.

The result of the Porter case and the amendment of the sentencing guidelines prove that the federal government recognizes the unique situation that veterans face in criminal court.

B. State Sentencing Statutes

            Sentencing mitigation for veterans has not only emerged in federal courts—some states have adopted this type of mitigation. The five states that currently have sentencing statutes are Minnesota, California, Nevada, New Hampshire, and Rhode Island.[153] Like the federal sentencing guidelines, these statutes make the veteran’s service a relevant consideration during sentencing.[154]

The Minnesota statute, for example, provides that: “[w]hen a defendant . . . is convicted of a crime, the court shall inquire whether the defendant is currently serving in or is a veteran of the armed forces of the United States.”[155]  If the veteran has been diagnosed with a mental illness, the court is then allowed to consult with the Department of Veteran Affairs or any other agency that could provide relevant information about the treatment options for the defendant.[156] Finally, the sentencing judge is to “consider the treatment recommendations of any diagnosing or treating mental health professional together with the treatment options available to the defendant in imposing sentence.”[157]

The law is designed to ensure that mental health diagnoses and treatment are taken into account when sentencing a veteran.[158] It gives judges tools to make the most informed decision when determining a sentence of incarceration or rehabilitation.[159]  This approach gets to the root of the problem by recognizing that probationary, rehabilitative treatment of veterans is a better option than incarceration.[160]  Additionally, these statutes allow rehabilitation for veterans who have committed a violent crime which bars them from most VTC’s. Thus, these mitigation statutes act as a safety net for veterans who do not qualify for the VTC.

VI. The need for the Kentucky state legislature to take action. 

            There are approximately 331,000 veterans in Kentucky,[161] a number that will surely rise over the next few years as the wars in the Middle East wind down. A great number of these veterans will return to civilian life suffering from the mental trauma caused by living for long periods in extremely dangerous combat zones, being injured by IEDs, or being sexually assaulted. Of these veterans, many will face troubling problems while readjusting to civilian life and run afoul of the Kentucky criminal justice system.  Helping the greatest number of veterans should be Kentucky’s goal by either extended utilization of the VTC or by passing sentencing guidelines that consider a convicted criminal’s military background.  First, the Kentucky legislature should take action to attain this goal by passing VTC legislation similar to Michigan; such legislation would ideally set out eligibility qualifications, provide state funding for the creation of new VTC’s, and allow violent veteran offenders an opportunity to participate in the program. Second, the Kentucky legislature should pass a sentencing mitigation guideline that is similar to Minnesota’s.

Addressing the funding issue would be an important step for the creation of new VTC’s around the state. Funding for the Kentucky VTC programs are currently based on grants given by the federal government.[162]  The original Jefferson County program was created by funding through a grant from the federal government and was to only last for the first three years of the program.[163] But what will happen if federal funding is revoked? A legislative answer is needed to give the VTC a full opportunity in Kentucky. It would be wise to provide state funds and, in certain instances, demand the participating veteran to bear some of the treatment costs. Providing state funds and requiring some veterans to pay for treatment may encourage courts in rural areas of Kentucky to create VTC’s.

Further, if Kentucky followed Michigan’s lead[164] and allowed for veterans to transfer between jurisdictions, it would solve the restrictions placed on the current program. There are obvious geographical issues that bar many veterans living in rural areas from access to the Kentucky VTC’s. Researchers have noted that many of the veteran’s courts tend to be only created in larger metropolitan areas.[165] This is true in Kentucky where three of the five VTC’s are located in Louisville, Lexington, and Northern Kentucky (which is part of the greater Cincinnati area).[166] Additionally, these courts are all located in the central and western-central parts of the state. Many of the veterans returning from OIF/OEF are members of the reserve force and National Guard units and are more likely to be from rural or suburban areas.[167]  The veterans in the far eastern and western parts of Kentucky are geographically prevented from benefitting from VTC’s even if they are eligible for the program.  The Kentucky legislature should follow the example set by Michigan and allow veterans to transfer to VTC’s in a different jurisdiction.[168]

As discussed above, many of the current VTC’s, including those in Kentucky, do not allow veterans that have committed violent crimes to participate and do not recognize MST as a cognizable injury.[169]  Kentucky should consider expanding the VTC to these veterans who have committed violent offenses. This does not mean that VTC should be forced to accept every violent offender, as the deciding judge should be given wide deference to determine if the VTC is appropriate. Deference would allow for first time offenders to be afforded treatment while denying treatment to multiple offenders and offenders who have committed premeditated crimes. In addition to allowing violent offenders, Kentucky should extend the VTC to veterans suffering from MST. If the legislature does not want to include these violent offenders, they should strongly consider adding sentencing guidelines that consider military service.

There is currently no sentencing guideline that considers a convicted defendant’s military history in Kentucky.[170] Kentucky should look to states like Minnesota to model such sentencing guidelines. Giving trial judges the option between incarceration and rehabilitation would be highly useful to help veterans who do not qualify for the VTC or do not live in a jurisdiction with a VTC. The Minnesota statute gives the judge a large grant of discretion to choose an appropriate rehabilitation plan or incarceration for the veteran.[171] This could be a VTC program, if available in that jurisdiction, but also could be an appropriate treatment plan from the Veterans Affairs office or a private outpatient treatment plan.

Additionally, this kind of statute would provide rehabilitation to violent veterans.  Under the Kentucky VTC guidelines, violent offenses are not eligible for the program.[172] Many of the veterans who are arrested for violent behavior are suffering from issues that stem from their military service.[173] By using rehabilitation instead of incarceration for violent veteran criminals, the Kentucky judicial system would be getting to the root of the problem, save money spent on incarceration, and likely prevent future violent crimes.

Conclusion

            Kentucky needs to continue the work that it has started by promoting the creation of more VTC’s in the state by enacting state statutes that comprehensively define VTC’s and enacting statutes that allow for a trial judge to consider a criminal’s military service when determining an appropriate sentence.  This kind of approach would ensure that veterans residing in Kentucky who suffer from PTSD, TBI, MST, and other injuries of war are given the rehabilitation that they need.  Kentucky has a duty to show compassion for these men and women who have prepared for and fought in wars by honoring their sacrifices.

 

[1] J.D. expected 2017, University of Kentucky College of Law.

[2] David Brooks, The Moral Injury, N.Y. Times (Feb 17, 2015), http://www.nytimes.com/2015/02/17/opinion/david-brooks-the-moral-injury.html?_r=0.

[3] U.S. Dep’t of Veterans Affairs, How Common is PTSD?, PTSD: National Center for PTSD (Oct. 3, 2016), https://www.ptsd.va.gov/public/ptsd-overview/basics/how-common-is-ptsd.asp.

[4] See PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff.  http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (“Almost 1 out of every 3 Veterans seeking treatment for [Substance Use Disorder] also has PTSD.”).

[5] The History, Justice for Vets, http://justiceforvets.org/vtc-history; Veterans Treatment Court, Ky Court of Justice, https://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited Sept. 8 2017).

[6] Brockton Hunter, Echoes of War: Combat Trauma, Criminal Behavior and How We Can Do a Better Job This Time Around, Securing Access in a Diverse Society, Ky. Bar Ass’n, at 18 (June 17, 2015), http://www.kybar.org/?page=2015Convention (follow “PDF” hyperlink beside “Echoes of War: Combat Trauma, Criminal Behavior & How We Can Do Better This Time Around”) (last visited Sept. 9, 2017).

[7] What is a Veterans Treatment Court?, Justice for Vets, http://www.justiceforvets.org/what-is-a-veterans-treatment-court.

[8]  Id.; See also TakePart, Veterans Treatment Courts Explained, Youtube (Feb 10, 2015) https://www.youtube.com/watch?v=PrpytvX3YSE&feature=youtu.be.

[9] Id.

[10] Id.

[11] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky.gov (Nov. 26, 2012), https://courts.ky.gov/pages/newsroom.aspx?viewMode=PressRelease&pressReleaseGUID=%7BDB240396-FCC4-4300-81A9-8F7AC4684DA6%7D

[12] Veterans Treatment Court Programs, Ky. Court. of Justice, http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx.

[13] Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health, https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml.

[14] Terri Tanielian & Lisa H. Jaycox, Invisible Wounds of War: Psychological and Cognitive Injuries, Their Consequences, and Services to Assist Recovery,  RAND Ctr. for Military Health Policy Research, at 12 (2008) http://www.rand.org/content/dam/rand/pubs/monographs/2008/RAND_MG720.pdf.

[15] Symptoms of PTSD, U.S. Dep’t of Veteran Aff., (Aug. 13, 2015), https://www.ptsd.va.gov/public/ptsd-overview/basics/symptoms_of_ptsd.asp.

[16]Id.

[17] Id.; see also Erinn Gansel, Military Service-Related PTSD and the Criminal Justice System: Treatment as an Alternative to Incarceration, 23 S. Cal. Interdisc. L. J. 147, 153 (2014).

[18] Id.

[19] Id.

[20] Id.

[21] See Sadie F. Dingfelder, The Military’s War on Stigma, American Psychological Ass’n, 40 Monitor on Psychology, no. 6, 2009 at 52; See also Soledad O’Brian, The Stigma that Stops Veterans From Getting Help for PTSD, Public Broadcast Service (March 29, 2017) http://www.pbs.org/newshour/bb/stigma-stops-veterans-getting-help-ptsd/.

[22] See Mental Health Effects of Serving in Afghanistan and Iraq, U.S. Dep’t of Veteran Aff., https://www.ptsd.va.gov/public/ptsd-overview/reintegration/overview-mental-health-effects.asp.

[23] Id.

[24] Hunter, supra note 6, at 9.

[25] See Alex Dixon, July Marks 40th Anniversary of All-Volunteer Army, (July 2, 2013), https://www.army.mil/article/106813/July_marks_40th_anniversary_of_all_volunteer_Army.

[26] Id. at 2.

[27] Id. at 10.

[28] Anthony E. Giardino, Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury, 77 Fordham J. Rev. 2955, 2976 (2009); see e.g., Jeffery Lewis Wieand, Jr., Continuing Combat at Home: How Judges and Attorneys Can Improve Their Handling of Combat Veterans with PTSD in Criminal Courts, 19 Wash. & Lee J. Civil Rts. & Soc. Just. 227, 231 (2012).

[29] PTSD: National Center for PTSD, Traumatic Brain Injury and PTSD, U.S. Dep’t of Veterans Aff., http:// www.ptsd.va.gov /public/problems/traumatic_brain_injury_and_ptsd.asp (last visited April 14, 2017) (“[a] TBI is a sudden blow to the head that that often occurs when there is an explosion or an accidental fall . . . When an IED explodes it emits a concussive blast that often leaves a person disoriented and unconscious . . . This head trauma essentially causes a concussion and the symptoms included headaches, trouble sleeping, memory problems, troubles staying focused, depression, anger, anxiety, and personality changes.”).

[30] See 38 U.S.C. § 1720D(a)(1) (West 2015) (defining MST as “psychological trauma, which in the judgment of a mental health professional employment by the Department [of Veteran Affairs], resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the veteran was serving on active duty, active duty training, or inactive duty training.”).

[31] PTSD: National Center for PTSD, Military Sexual Trauma, U.S. Dep’t of Veterans Aff., http://www.ptsd.va.gov/public/types/violence/military-sexual-trauma-general.asp (last visited April 14, 2017).

[32] Alexandra Besso, Veterans As Victims of Military Sexual Assault: Unequal Access to Ptsd Disability Benefits and Judicial Remedies, 23 Buff. J. Gender, L. & Soc. Pol’y 73, 75 (2015) (noting the substantial challenges for the victims of MTS to be recognized by Veterans Affairs as having a legitimate PTSD); see also Rachel Kimerling, PhD, Amy E. Street, PhD, Joanne Pavao, MPH, Mark W. Smith, PhD, Ruth C. Cronkite, PhD, Tyson h. Holmes, PhD, and Susan M. Frayne, MD, MPH, Military-Related Sexual Trauma Among Veterans Health Administration Patients Returning From Afghanistan and Iraq, 100 Am. J. Pub. Health 8, 1409, 1410 (August, 2010).

[33] See Besso, supra note 34, at 75.

[34] PTSD: National Center for PTSD, supra note 31.

[35] PTSD: National Center for PTSD, supra note 31.

[36] PTSD: National Center for PTSD, supra note 31.

[37] Hunter, supra note 6, at 14-15.

[38] F. Don Nidiffer & Spencer Leach, To Hell and Back: Evolution of Combat-Related Post Traumatic Stress Disorder, 29 Dev. Mental Health L. 1, 12 (2010).

[39] Id.

[40] What is a Veterans Treatment Court, Just. for Vets, http://www.justiceforvets.org/what-is-a-veterans-treatment-court (last visited on April 14, 2017).

[41] Hunter, supra note 6, at 1-2.

[42] Hunter supra note 6, at 1-2.

[43] Hunter, supra note 6, at 1-2.

[44] See PTSD: National Center for PTSD, PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veterans Aff., http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (last visited April 14, 2017).

[45] See Nat’l Coalition for Homeless Veterans, Background & Statistics, Nat’l Coalition for Homeless Veterans, http://nchv.org/index.php/news/media/background_and_statistics/ (last visited April 14, 2017).

[46] What is a Veteran’s Treatment Court?, supra note 42.

[47] Defense Health Board Task Force on Mental Health, An Achievable Vision: Report of the Department of Defense Task Force on Mental Health 21-22. (June 2007) (located at http://justiceforvets.org/sites/default/files/files/Dept%20of%20Defense%2C%20mental%20health%20report.pdf).

[48] PTSD: National Center for PTSD, PTSD and Substance Abuse in Veterans, U.S. Dep’t of Veteran Aff., http://www.ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp (last visited April 14, 2017).

[49] Id.

[50] Id.

[51] Jen Christensen, Pill-addicted Veterans get Second Chance with Treatment Court, Cnn.com (Aug. 27, 2014, 3:25 PM) http://www.cnn.com/2014/08/26/health/veterans-treatment-court/.

[52] Id.; see also Half of Veterans Prescribed Medical Opioids Continue to Use Them Chronically, ScienceDaily (Mar. 8, 2014) https://www.sciencedaily.com/releases/2014/03/140308094821.htm.

[53] Id.

[54] Alcohol, Drugs and Crime, Nat’l Couns. on Alcoholism and Drug Dependence Inc., https://ncadd.org/about-addiction/alcohol-drugs-and-crime (last visited April 14, 2017).

[55] See id.

[56] Brandt A. Smith, Posttraumatic Stress Disorder (PTSD) in the Criminal Justice System, The Military Psychologist (Apr. 2014) http://www.apadivisions.org/division-19/publications/newsletters/military/2014/04/ptsd.aspx (last visited April 14, 2017).

[57] Id..

[58] PTSD: National Center for PTSD, Anger and Trauma, U.S. Dep’t of Veterans Aff., http://www.ptsd.va.gov/public/problems/anger-and-trauma.asp (last visited April 14, 2017).

[59] Id.

[60] See Post-Traumatic Stress Disorder, Nat’l Inst. of Mental Health, (Feb. 2016), https://www.nimh.nih.gov/health/topics/post-traumatic-stress-disorder-ptsd/index.shtml.

[61] See Smith, supra note 56.

[62] Id.

[63] History, Justice for Vets http://www.justiceforvets.org/vtc-history (last visited April 14, 2017).

[64] Id.

[65] Id.

[66] See What is a Veteran’s Treatment Court?, supra note 40.

[67] Paul Freese & Natalie Klasky, Best Emerging Holistic Advocacy Practices to Break the Cyclical Trauma, Depression, Alienation and Criminalization Afflicting Our Returning War Heroes, 5 U. Miami Nat’l Sec. & Armed Conflict L. Rev. 85, 103 (2015).

[68] Madeline McGrane, Post-Traumatic Stress Disorder in the Military: The Need for Legislative Improvement of Mental Health Care for Veterans of Operation Iraqi Freedom and Operation Enduring Freedom, 24 J.L. & Health 183, 208-14 (2010).

[69] Veterans Treatment Courts, Office of Nat’l Drug Control Policy, (Dec. 2010), https://obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_Sheets/veterans_treatment_courts_fact_sheet_12-13-10.pdf

[70] Veterans Treatment Court, Kentuky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx.

[71] Id.

[72]Ten Key Components of Veterans Treatment Court, Justice For Vets, http://justiceforvets.org/sites/default/files/files/Ten%20Key%20Components%20of%20Veterans%20Treatment%20Courts%20.pdf.

[73] Id.

[74] Id.                                                                                                                                         

[75] Id.

[76] Id.

[77] Ten Key Components of Veterans Treatment Court, supra note 72.

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id. 

[83] What’s Stopping You? Overcome Barriers to Care, U.S. Dep’t of Veteran Affairs, http://www.ptsd.va.gov/public/treatment/therapy-med/Stigma_Barriers_to_Care.asp

[84] Id.

[85] Jack W. Smith, The Anchorage, Alaska Veterans Court and Recidivism: July 6, 2004 – December 31, 2010, 29 Alaska L. Rev. 93, 107–08 (2012).

[86] Justin Holbrook & Sara Anderson, Veterans Courts: Early Outcomes and Key Indicators for Success 30, 40 (Widener Law Sch. Legal Studies Research Paper Series No. 11-25), available at http://ssrn.com/abstract=1912655.

[87] Matthew R. Durose et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (Apr. 2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.

[88] Strengthening Our Military Families, U.S. Department of Justice, http://www.justice.gov/joiningforces.

[89] Jim Warren, Fayette Court Program Allows Veterans to Get Physical, Psychological Help Instead of Jail Time, Kentucky.com (Jan. 1, 2014, 10:40 PM), http://www.kentucky.com/news/local/crime/article44464776.html.

[90] Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky.gov (Nov. 20, 2012), http://migration.kentucky.gov/Newsroom/kycourts/112612LAH1.htm.

[91] Leigh Anne Hiatt, Justice Will T. Scott Testifies About Plans to Help Kentucky Veterans Gain Better Access to Legal and Other Services, Kentucky.gov (July 25, 2012), http://migration.kentucky.gov/Newsroom/kycourts/072412LAH1.htm.

[92] Id.

[93]Id.

[94] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017); Kentucky Court of Justice, Kentucky Drug Court: Saving Costs, Saving Lives, Kentucky.Gov (March, 2017), http://courts.ky.gov/courtprograms/drugcourt/Documents/KYDrugCourtSitesMap.pdf.

[95]  Leigh Anne Hiatt, Jefferson County Veterans Treatment Court is First of its Kind in Kentucky, Kentucky Court of Justice, Kentucky.gov (Nov. 20, 2012) http://migration.kentucky.gov/Newsroom/kycourts/112612LAH1.htm.

[96] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017).

[97] See id.

[98] Id.

[99] Id

[100] Id; The Ten Key Components of Veterans Treatment Court, supra note 72.

[101] Kentucky Court of Justice, Veterans Treatment Court, Kentucky.Gov, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx (last visited April 2, 2017).

[102] Id.

[103] Veterans Treatment Court Programs, Kentucky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx (last visited April 2, 2017).

[105] H.R. 118, 13 Reg. Sess. (Ky. 2013).

[106] Kentucky Court of Justice, Eligibility & Process, Kentucky.gov. http://courts.ky.gov/courtprograms/vtc/Pages/Eligibility.aspx (last visited Apr. 2, 2017) (emphasis added).

[107] Id.

[108] Id.

[109] Id.

[110] See generally Ben Kappelman, When Rape Isn’t Like Combat: The Disparity Between Benefits for Post-Traumatic Stress Disorder for Combat Veterans and Benefits for Victims of Military Sexual Assault, 44 Suffolk U. L. Rev. 545 (2011) (explaining that it is difficult for victims of military sexual assault to establish a service connection between PTSD and their assault, and thus it is hard for them to obtain benefits).

[111] Tiffany Cartwright, “To Care for Him Who Shall Have Borne the Battle”: The Recent Development of Veterans Treatment Courts in America, 22 Stan. L. & Pol’y Rev. 295, 307 (2011).

[112] Allison E. Jones, Veterans Treatment Courts: Do Status-Based Problem-Solving Courts Create an Improper Privileged Class of Criminal Defendants? 43 Wash. U. J.L. & Pol’y 307, 318 (2014).

[113] Cartwright, supra note 111, at 307.

[114] Id. at 307-08.

[115] Id.

[116] See id. (noting that Nevada and Texas require this tight nexus).

[117] See Mark A. McCormick-Goodhart, Leaving No Veteran Behind: Policies and Perspectives on Combat Trauma, Veterans Courts, and the Rehabilitative Approach to Criminal Behavior, 117 Penn St. L. Rev. 895, 921 (2013).

[118] Id.

[119] Id. at 922.

[120] See generally id. at  922-23 (explaining that veterans and their causes are unique and that problem-solving courts do not adequately address trauma in the same way as specialty courts).

[121] Id.

[122] Id.

[123] Id. at 923.

[124] See Eligibility & Processes, Kentucky.gov, http://courts.ky.gov/courtprograms/vtc/Pages/Eligibility.aspx (last visited Mar. 26, 2017); see also Gansel, supra note 17, at177-78 (2014).

[125] See Gansel supra note 17, at 178.

[126] Id. at 177-78.

[127] Id. at 178.

[128] Id. at 178-79.

[129] Infra section V of this note.

[130] Taylor Brummett, Veterans Treatment Court: An Experiment in Therapeutic Jurisprudence for Combat Veterans, Pacific U. CommonKnowledge (2013), http://commons.pacificu.edu/cgi/viewcontent.cgi?article=1019&context=cassoc.

[131] Gavriel Jacobs, Katharine McFarland, & Gabe Ledeen, Serving Those Who Served: Veterans Treatment Courts in Theory and Practice, law.stanford.edu, http://law.stanford.edu/wp-content/uploads/sites/default/files/child-page/266901/doc/slspublic/Jacobs_McFarland_Ledeen.pdf.

[132] Brummet, supra note 130.

[133] See The History, Justice for Vets, http://www.justiceforvets.org/vtc-history (last visited Jan. 19, 2016).

[134] Me. Rev. Stat. Ann. tit. 4, § 433 (2012); Mich. Comp. Laws Ann. § 600.1201 (West 2012); Miss. Code. Ann. § 9-25-1 (West 2014); Fl. Stat. Ann. § 3.31 (West 2016); 730 Ill. Comp. Stat. Ann. 167/15 (West 2012); Colo. Rev. Stat. Ann. § 13-5-144 (West 2010); Mo. Ann. Stat. § 478.008 (West 2013); TX GOVT Code Ann. § 124.002 (West 2015); S.C. Code Ann. § 14-29-30 (2014).

[135] See Brock Hunter, Echoes of War: The Combat Veteran in Criminal Court, http://justiceforvets.org/sites/default/files/2013/Handouts/CG-8/CG-8.pdf (last visited April 7, 2017).

[136] See La. Rev. Stat. Ann. § 13:5366 (2016); see Mich. Comp. Laws Ann. § 600.1201 (West 2012).

[137] La. Stat. Ann. § 13:5366 (Westlaw); Mich. Comp. Laws Ann. § 600.1201 (Westlaw).

[138] La. Stat. Ann. § 13:5366(B) (Westlaw); Mich. Comp. Laws Ann. § 600.1208(1) (Westlaw).

[139] La. Stat. Ann. § 13:5366(B) (Westlaw). see also  Mich. Comp. Laws Ann. § 600.1206(2) (Westlaw).

[140] La. Stat. Ann. § 13:5366(6)–(9) (Westlaw); Mich. Comp. Laws Ann. §§ 600.1203–600.1204 (Westlaw).

[141] La. Stat. Ann. § 13:5388(C) (Westlaw); Mich. Comp. Laws Ann. §§ 600.1206(4), 1208(1), 600.1211(1) (Westlaw).

[142] Mich. Comp. Laws Ann. § 600.1201(1) (Westlaw); Veterans Treatment Court, supra note 70.

[143] Mich. Comp. Laws Ann. § 600.1201(4) (Westlaw).

[144] Betsy J. Grey, Neuroscience, PTSD, and Sentencing Mitigation, 34 Cardozo L. Rev. 53, 67 (2012); see also Porter v. McCollum, 558 U.S. 30, 40 (2009).

[145] Porter, 558 U.S. at 30-31.

[146] Id.

[147] Id. at 40.

[148] Id. at 32–33.

[149] Id. at 43-44.

[150] See id.; see also Brockton Hunter & Ryan Else, Echoes of War Part Two: Legal Strategies for Defending the Combat Veteran in Criminal Court, TheChampion, Nov. 2013, at 24.

[151] U.S. Sentencing Guidelines Manual §5H1.11 (U.S. Sentencing Comm’n 2010); see also Hunter, supra note 6, at 18.

[152] U.S. Sentencing Guidelines Manual §5H1.11.

[153] Brockton Hunter & Ryan Else, Echoes of War Part Two: Legal Strategies for Defending the Combat Veteran in Criminal Court, TheChampion, Nov. 2013, at 20.

[154] Id.

[155] Minn. Stat. Ann. § 609.115 sub 10(a) (West 2015).

[156] Id. at sub 10(b)(1).

[157]  Id. at sub. 10(c)(2).

[158] Hunter & Else, supra note 153, at 20.

[159] Id.

[160] Id.; see also Cal. Penal Code § 1170.91 (West 2015) (granting judges the authority to consider treatment over incarceration while not mandating that the Courts follow any particular type of sentence).

[161] Serving Veterans in the Commonwealth , Kentucky.gov, http://veterans.ky.gov/Pages/default.aspx.

[162] Veterans Treatment Court, Kentucky Court of Justice, http://courts.ky.gov/courtprograms/vtc/Pages/default.aspx.

[163]  Leigh Anne Hiatt, Jefferson County Veterans Treatment Court to hold first graduation, Kentucky Court of Justice Newsroom  (Oct. 21, 2014), http://courts.ky.gov/pages/newsroom.aspx?viewMode=PressRelease&pressReleaseGUID=%7B4AFDCA8F-F303-4DEC-8B6F-4F2040683EB9%7D.

[164] Mich. Comp. Laws Ann. § 600.1201(4) (West 2012).

[165]  Morning Edition: Hundreds Of Veterans Courts See Success But More Are Needed, NPR.Org (Jan. 3, 2017), http://www.npr.org/2017/01/03/507983947/special-courts-for-military-veterans-gain-traction.

[166] See Veterans Treatment Court Programs, Kentucky Court of Justice http://courts.ky.gov/courtprograms/vtc/Pages/vtcprograms.aspx.

[167] Cartwright, supra note 111, at 300 .

[168] See Mich. Comp. Laws Ann. § 600.1201(4) (West 2012).

[169] See Alexandra Besso, Veterans As Victims of Military Sexual Assault: Unequal Access to Ptsd Disability Benefits and Judicial Remedies, 23 Buff. J. Gender, L. & Soc. Pol’y 73, 75, 79 (2015).

[170] See generally Ky. Rev. Stat. Ann. §§532.005 to 532.400 (West 2016).

[171] Minn. Stat. Ann. § 609.115 sub 10(a) (West 2015).

[172] See Part II of this note

[173] See Part I of this note.

Consumer Class Conflict:  The Battle against Heightened Ascertainability in the Sixth Circuit

Consumer Class Conflict: The Battle against Heightened Ascertainability in the Sixth Circuit

Article | 105 KY. L. J. ONLINE | March 13, 2017

Houston Alexander Bragg[1]

The theoretical purpose of class action certification and litigation is to assist groups of plaintiffs, who are “isolated, scattered, and utter strangers to each other,” in procuring legal redress that may be unavailable to them individually.[2] The practical purpose of class action litigation is to create a check on manufacturers and other defendants who cause minimal damage to a multitude of people. Without Federal Rule of Civil Procedure 23 (F.R.C.P. 23) and class action litigation, low-figure consumer harm would lack a remedy. The Third Circuit is waging war on the practical purpose of class action litigation by creating an overwhelming requirement that plaintiffs, at the pretrial stage, be able to produce a “reliable and administratively feasible” apparatus for determining whether a supposed class member falls within the class definition.[3] This prerequisite to class certification acts as a shield to consumer recovery, completely altering the established definition of class ascertainability.

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Why Your Company’s Cyber Breach Isn’t Currently a Bad Thing

Why Your Company’s Cyber Breach Isn’t Currently a Bad Thing

Article | 105 KY. L. J. ONLINE 1 | November 14, 2016

Devon Paige Cobb[1]

Introduction

“[T]here are only two types of companies: those that have been breached and those that don’t know they have.”[2] Despite the frequency of these hacks, the stigma associated with cybersecurity breaches of business and customer information is a harsh one. That stigma is imposed before the financial hits are measured, the average cost of which can be as much as $25 per exposed record.[3] Target alone reported a net $17 million in breach-related costs as well as $44 million in insurance payments.[4] While those numbers are substantial, these hacks can cost companies even more in intangibles, such as the decline in a company’s reputation,[5] loss of customer goodwill,[6] and liability flowing from either class action lawsuits by customers whose information has been breached or shareholders’ derivative actions.[7]

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Meriting Consolidation: Why Criminal Pattern Jury Instructions Should Consolidate Federal Bribery Statutes

Meriting Consolidation: Why Criminal Pattern Jury Instructions Should Consolidate Federal Bribery Statutes

Article | 104 KY. L. J. ONLINE 75 | April 14, 2016

Kierston Eastham Rosen1

Introduction

Bribery in the federal system is notorious for its incoherence.2 Multiple bribery statutes exist with very similar elements, and a defendant can be prosecuted under any and all of these statutes.3 Because of this, the federal crime of bribery continues to confuse and perplex even the most seasoned attorneys.4 While confusion among attorneys helps illustrate the problem with federal bribery, attorneys are not the main focus of pattern jury instructions. Pattern jury instructions serve to educate lay jurors during federal trials, instructing them as to both the law and its application in a given case. It is imperative that these instructions are as clear and concise as possible, and currently, pattern instructions do not meet this standard. Therefore, federal bribery law and its corresponding pattern instructions need to be clarified. Continue reading

Money for Nothing and Your Facts for Free: An Exploration of Political Spending and a Proposal for Combatting Big Money Interests

Money for Nothing and Your Facts for Free: An Exploration of Political Spending and a Proposal for Combatting Big Money Interests

Article | 104 KY. L. J. ONLINE 54 | January 11, 2016

Chris K. Stewart[1]

Introduction

Each election since 1998 has cost more than the one before it.[2] Total spending for the 2014 midterm was $3.77 billion.[3] Some estimates project spending on the 2016 presidential election alone may exceed six billion dollars.[4] While this consistent uptick in spending is a powerful testament to the ever-increasing role of money in politics, two other statistics are even more disturbing. First, in 2014 House races, the candidate who outspent the opposition claimed victory 94.2% of the time.[5] Second, in the 2014 midterm election, nationwide voter turnout dropped to its lowest level since 1942.[6] The dramatic uptick in spending coupled with historically low voter turnout paint a grim picture of the future of American elections. Continue reading

On a Path to Autonomy: Death With Dignity Paves the Way

On a Path to Autonomy: Death With Dignity Paves the Way

Article | 104 KY. L. J. ONLINE 35 | November 12, 2015

Joseph J. Sherman [1]

Introduction

In early October 2014, Brittany Maynard made headlines when she announced her intention to end her own life in response to her cancer diagnosis.[2] Maynard was a California woman who was diagnosed with terminal glioblastoma,[3] which is a type of highly malignant brain tumor.[4] But because California prohibits physician-assisted death (“PAD”), she and her family made the difficult decision to move to Oregon, where she could legally seek such medical care.[5] On November 1, 2014, Maynard carried out her plan to end her own life by taking a lethal dose of barbiturates prescribed by her doctor.[6] Her choice to end her own life, rather than to let her illness take its natural course, has generated a great deal of controversy.[7] Is it beneficent to promote an early death for the terminally ill to prevent pain and suffering? Do we overextend our role in medicine when death becomes a prescription? What implications does PAD have on the future of end-of-life care? Continue reading

A Fare Deal: The Reasonable Regulation of Ridesharing

A Fare Deal: The Reasonable Regulation of Ridesharing

Note | 104 KY. L. J. ONLINE 17 | Sept. 28, 2015

Dylan Merrill[1]

Introduction

On New Year’s Eve 2013, Sayad Muzzafar was driving for the ridesharing company Uber when he struck a mother and her two children while they were crossing the street. That night, one of the children, a six year-old girl, died from her injuries.[2] The Liu family later sued the company, but Uber distanced itself from the accident, arguing it was not liable because Mr. Muzzafar did not have an Uber passenger in his vehicle when he struck the pedestrians.[3] At the time of the accident, policymakers had not implemented regulations for the new rideshare industry, further frustrating the goal of determining who in fact is liable in these circumstances.[4]
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More Coverage, More Problems: No Private Remedies for Kentuckians Hurt by HIPAA Violations After Adoption of the Affordable Care Act

More Coverage, More Problems: No Private Remedies for Kentuckians Hurt by HIPAA Violations After Adoption of the Affordable Care Act

Note | 103 KY. L. J. ONLINE 7 | Aug. 7, 2015

Chelsea N. Hayes[1]

Introduction

Kentucky is leading the way in America’s first state-based exchange to implement the Affordable Care Act (hereinafter “ACA”).[2] While this presumably will assist the one in six Kentuckians who are uninsured,[3] doctors and medical facilities may mistakenly disclose private documents with the high influx of new patients. Therefore, Kentucky citizens may question how to resolve violations of privacy mandated by the Health Insurance Portability and Accountability Act (hereinafter “HIPAA”).[4] Continue reading