The Eighth Amendment declares that cruel and unusual punishments cannot be inflicted upon prisoners.  This law has been construed to protect some prisoners suffering from delusions and psychotic episodes from execution. Now, this safeguard can also apply to those suffering from dementia and other diseases of the mind.

An egregious murder has been committed. The perpetrator has been caught, tried, found guilty, and sentenced. The sentence is death. This is a pretty standard example of our justice system at work – everything seems arguably fair and judicious (in death-penalty states). Our system permits such punishments for their retributive importance.

Now consider: years later on death row, the aforementioned convict has begun to suffer from psychotic delusions and insanity and cannot fathom why he would be slain. This person can no longer be executed for their crime under the laws of our country. Their execution would now violate the Eighth Amendment of the Constitution.

But what if the prisoner developed a different disease of the mind – one not analogous with insanity? Would this kind of comparable misconception of reality qualify a person to be saved from execution? This is just the question the Supreme Court of the United States recently addressed.

A New Eighth Amendment Question

In an article by Professor Douglas A. Kahn published by the American Bar Association, Mr. Kahn contends that the increase in experiential learning in law schools is leading to a decrease in law student enrollment in core doctrinal classes, such as tax courses. According to Professor Kahn, only one-third of the students who recently graduated from Michigan Law School took a tax class, and less than 10% of those students took either partnership or corporate taxation.  Sadly, the situation at Michigan Law School is not unique.

Arbitration agreements are a touchy subject in any context, but particularly so in the emotionally charged, often distressed, situations surrounding entry into a long-term care (LTC) facility.

Anyone attempting to keep up with the flip-flop of positions on permitting or prohibiting arbitration clauses in LTC contracts is likely suffering from a severe case of whiplash. In the last three years, the validity of arbitration clauses has gone from silent, to prohibited, and soon they could become lawful. The future of LTC resident care hangs in the balance.

The Paradox

The executive branch’s position on arbitration clauses in LTC contracts has made a 180-degree turn in recent years. In 2016, the Centers for Medicare & Medicaid Services (CMS) banned pre-dispute arbitration agreements. In 2017, CMS issued proposed revisions eliminating the arbitration prohibition.