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  • Department Administrator Interference in the Doctor-Patient Relationship

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    I contacted a resident doctor in Internal Medicine at a teaching hospital and asked if he would be interested in becoming my primary care physician (PCP). My note briefly described my background in health outcomes research and two of my prescription drugs. He wrote back that he would be honored to be my PCP, and came across as professional, humble, and sincere. A new doctor-patient relationship was formed, and I contacted my existing doctor’s office to arrange for my medical records to be transferred, which immediately informed that office that I must be dissatisfied and going to a new doctor. I also shared with the resident doctor confidential information from my medical records and a copy of one of my professional presentations at a health care conference.

    A department administrator then contacted me to say the resident doctors are not available every day of the week for clinic and are not even here when they do their ICU rotation. Also, the Internal Medicine department protocol would not allow the resident doctor to write me a drug prescription for off label use. Finally, she was concerned that in the past I have ordered and correctly interpreted my own blood tests. The administrator’s attitude reflects one of the chief complaints Americans have with the health care system: the system is coming at them and requiring them to get health services in some predefined structure to which the facility is accustomed but which eliminate any potential for individualized treatment according to individual patients’ needs.

    Apparently the administrator did not spend enough “careful consideration” to get her facts straight. I do not need to see my PCP daily or even monthly. My track record shows I saw my existing doctor once in a calendar year, and the prior doctor before him I saw once in a 15-month period. So the administrator based her decision on her own ignorance of the facts.

    She also misstated facts concerning off-label prescriptions for drugs by resident doctors. One of the drugs we are talking about is Clomiphene. Both a resident doctor and an attending faculty physician at the teaching hospital advised me that they would be willing to write me (off-label) prescriptions for this drug, and the attending physician did indeed phone in a prescription for one of the drugs at my request. Similarly, the Dept. of Obstetrics and Gynecology (OB-GYN) advised me that their doctors, both resident and attending, have prescribed Clomiphene to patients. Therefore, residents in Family Medicine and OB-GYN (both primary care departments) can write prescriptions for Clomiphene, but “protocol” prevents residents in Internal Medicine (also primary care) from writing off-label prescriptions. What kind of a cockamamie rule is that? What, the residents in Internal Medicine are too dumb or too naive to understand off-label benefits of medicines?

    Finally, I had planned for my resident PCP to order and interpret blood tests each time I visited him. The administrator could have learned that fact if she had bothered to call or write me before jumping to conclusions and interfering in my doctor-patient relationship. I strongly reject the Director’s paternalistic view of medicine in which she feels she has to protect resident doctors from patients who order or interpret their own blood tests. These resident doctors are young professionals who have completed their medical degrees; they don’t need paternalistic oversight from a department administrator telling them who they can and cannot invite to be patients.

    Apparently, an overwhelming number of patients who visit this teaching hospital’s doctors want to be told what to do and how to feel. I am the exact opposite; I take personal responsibility for and manage my own health, which is strongly advocated under health care reform. Having a more equal, collaborative relationship with my PCP works for me, and that seems to be the true reason for the administrator’s interference. Studies show that medical malpractice rates drop with a non-paternalistic model of health care services. That fact of reducing litigation risks is pushing more health care systems across the country to migrate to a non-paternalistic model.

    LEGAL ANALYSIS

    I. Formation of Doctor-Patient Relationship

    The first question to address is whether, based on this fact pattern, a doctor-patient relationship was formed. When I gave the Internal Medicine resident doctor confidential information on two off-label drugs that I take, that act would be analogous to a prospective client approaching a lawyer with facts about his case to see if the lawyer will assist him. Contacting a lawyer this way does not create an attorney-client relationship. However, the lawyer is under an ethical duty to protect the confidentiality of the information shared by the prospective client. Similarly, the resident doctor was under an ethical duty to keep the information I shared with him confidential.

    When a lawyer responds to a prospective client, “I agree to take your case,” or “I will be your lawyer,” or words to that effect, then an attorney-client relationship is created, and the protection afforded to the client’s information rises to the level of constitutionally protected attorney-client privilege. In this case, when the resident doctor responded that he would be honored to be my PCP, we have offer and acceptance forming a contract. The offer-acceptance could be construed as my offering to be his patient, which he accepted, or his offer to be my PCP, which I accepted.

    But offer and acceptance are only two of the three required elements to form a contract. The third essential element is exchange of consideration, expressed in Latin as the quid pro quo. In this case, there were several separate exchanges of consideration that complete the formation of a contract and thereby render it enforceable in a court of law. Consideration is defined as some act or some transfer of an item from one party to the other, for which the receiving party had no legal right to otherwise obtain that consideration. There is no requirement that the consideration have intrisinc value. For example, the transfer of a scrap piece of paper can constitute valid consideration that renders a contract binding and enforceable.

    The initial disclosure of confidential information from my health history amounts to sufficient consideration. Second, the fact that both I and the doctor each began pursuing scheduling an appointment for me to see him is also consideration: neither of us had a prior legal right entitling us to that action by the other person. Third, when we continued to correspond after offer and acceptance, with additional information being shared back and forth, further consideration was exchanged. My sending the resident doctor a copy of one of my professional presentations was a fourth example of consideration. Finally, my request that my medical records be transferred to the resident doctor’s clinic constituted an obvious legal detriment based on reliance rendering the contract enforceable.

    If a lawsuit were filed for enforcement of this contract, I am confident that the plaintiff would overcome any attempt to dismiss the lawsuit by the teaching hospital’s attorneys based on the absence of a contract. Defendant might attempt to argue that no contract could be formed, because the resident doctor is not licensed. According to the website http://medical-dictionary.thefreedictionary.com/resident+physician, a “resident physician is a graduate and licensed physician receiving training in a specialty, usually in a hospital.” The resident’s licensing status would not prevent the formation of an enforceable contract, as we have in this fact pattern, for treatment in the supervised residents’ clinic.

    In court, we would pose a series of questions: 1) Is the resident a graduate of a medical school? Yes! 2) Was our conversation focused on health care treatment? Yes! 3) Does the resident see other patients (whether supervised or unsupervised) in the resident clinic? Yes! 4) Are the resident’s services billed to the U.S. government and to private insurers as the services of a doctor (not a student or a doctor’s aide)? Yes! 5) Did we both use the term PCP in describing our relationship? Yes. 6) Did the resident undertake to assist me in obtaining a medical appointment to see him? Yes! With these answers, any court of law is going to recognize if it looks like a duck, swims like a duck, and quacks like a duck, then it is a duck. Therefore, the defendant’s argument on licensing will be viewed as a red herring and will fail. In a similar vein, courts have noted “it is axiomatic that a doctor-patient relationship may arise from, briefly exist, and be limited by the unique circumstances presented in a transfer situation.” Sterling v. Johns Hopkins Hosp., 145 Md. App. 161 (Md. Ct. Spec. App. 2002). It does not matter how long the doctor has been seeing patients or how brief the contact with any given patient, a doctor-patient relationship can be formed.

    Selection of a PCP and other medical decisions are “core” private decisions. A fundamental tenet of privacy jurisprudence, as it has been applied to other types of personal matters, is that the individual most directly concerned is entitled to make and implement the protected decision autonomously and free from paternalistic government intrusion. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 54 L. Ed. 2d 618, 98 S. Ct. 673 (1978) (decision to marry); Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (decision to live with extended family members); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965)(reproductive choice). I would argue that the constitutional right to privacy also protects autonomy in selecting a PCP among a wide choice of available doctors, selecting which medications I want prescribed, and choosing what lab tests I want to order myself to monitor my health.

    In 2005, the Supreme Court of Arkansas provided the best statement in American jurisprudence on the elevated status of the doctor-patient relationship. The court noted the relationship of doctor-patient is unique. “The loss of this relationship, even temporarily, causes irreparable damage to the doctor and the patient. There is no adequate remedy at law because the loss is a loss of a one-time opportunity.” Baptist Health v. Murphy, 362 Ark. 506 (Ark. 2005)

    The court noted that the hospital had violated the Arkansas Department of Health rules and regulations for hospitals by failing to enforce policies that protected the doctor’s selection of patients and the patient’s choice of a physician. “We interpret this to mean that an otherwise qualified doctor must be granted access to his patient for the purpose of treating his patient, if that is what both the doctor and the patient want. Or, stated another way, a hospital cannot deny the services of a physician of the patient’s choice if the patient is already being seen by physicians at the hospital. Baptist Health v. Murphy, 362 Ark. 510-511 (Ark. 2005)

    Based on reading Baptist Health, I will now forward a copy of this article to the state Department of Health to determine whether the teaching hospital violated any of my state’s regulations requiring Tennessee-licensed medical centers to have policies or bylaws that respect the patient’s right to select his own physician. If so, then the teaching hospital is violating those regulations.

    II. Tennessee’s Tortious Interference Statute

    Tenn. Code Ann. § 47-50-109 is captioned, “Procurement of breach of contracts unlawful – Damages.” The administrator tortiously interfered in my doctor-patient relationship and prevented the resident doctor from performing his services under our contract. She therefore procured a breach of that contract. The administrator will argue that she was merely performing her duties, but that is no excuse for interfering in an existing doctor-patient relationship.

    Although Tennessee jurisprudence does not have a case on point, courts across the country have taken a dim view and expressed disapproval of employer interference in the doctor-patient relationship. For example, the U.S. Supreme Court stated, “The ethical objection has been that intervention by employer… makes a tripartite matter of the doctor-patient relation. Since the contract doctor owes his employment and looks for his pay to the employer… rather than to the patient, he serves two masters with conflicting interests.” United States v. Oregon State Medical Soc., 343 U.S. 326, 329 (U.S. 1952).

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    Source by Michael Guth

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  • Social Entrepreneurship – Now is the Time

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    Social entrepreneurship is a major area of interest in many social and civic organizations and has a significant impact on many areas of society. During the past decade economic resources have become more difficult to acquire and society has continued to exhibit economic and cultural decline. Concurrently, communities are in need of initiatives that will enhance their financial viability and programs that will enhance the overall viability of the population.

    Social entrepreneurship initiatives are ventures that can serve as a method of increasing the social value of a community, organization or cause while enhancing the financial viability of a not-for-profit organization. With this being stated, social entrepreneurship has been defined in different ways by many different theorists. Gary McPherson, Executive Administrator of the Canada Centre for Social Entrepreneurship, states that social entrepreneurship involves various individuals working toward meeting social and economic goals simultaneously; while Bill Drayton, CEO of Ashoka, defines social entrepreneurship as a term coined to describe “individuals who combine the pragmatic and results oriented methods of a business entrepreneur with the goals of social reform.”

    A more basic definition of social entrepreneurship states that it is “the process of using entrepreneurial and business skills to create innovative approaches to social problems.” Therefore, it is a methodology that is presently being used to resolve community and societal concerns globally. Social entrepreneurship as an area of specialized entrepreneurship is not defined by the same titling in every culture. For example, in Latin America countries social entrepreneurship initiatives are referred to as “Micro Enterprise.” In India the same program would be identified as a “Social Mission.” Though termed differently in various regions, social entrepreneurship initiatives are being implemented to solve specific societal and community concerns by focusing on the needs and resource availability within specific geographic regions.

    Social Entrepreneurship in Education Throughout the United States, many top tertiary level academic institutions are enhancing their business programs by including a curriculum that caters to the study of social entrepreneurship. In 2003, the Center for Responsible Business was launched on the University of California Berkley Campus. This subsidiary of the Haas School of Business was implemented with the intent of training students to be more principled and socially responsible members of society through attending “the preeminent educational institution in area of Corporate Social Responsibility.” Stanford University also has established a Center for Social Innovation as a part of its graduate school of business. This center was founded with the mission to “build and strengthen the capacity of individuals and organizations to develop innovative solutions to social problems for a more just, sustainable and healthy world.”

    In 1993, Harvard Business School started its social enterprise program with its mission of “generating and sharing knowledge to help individuals and organizations to create social value in the not-for-profit, private and public sectors,” and the University of Miami has refocused its business school curriculum to include coursework in the areas of ethical-decision making, social entrepreneurship and community engagement with the primary focus being to expose students to various areas of civic engagement while concurrently teaching them leadership and team building skills.

    Tertiary level institutions, including Duke, which has established a Center for the Advancement of Social Entrepreneurship as part of its Fuqua School of Business, and Columbia University where the research initiative on social entrepreneurship is embedded in its school of business, have also made strides to enhance the study and education of those seeking to venture into areas of social entrepreneurship and social venture implementation. The Association to Advance Collegiate Schools of Business-International (AACSB – International) has identified over twenty-four tertiary level institutions that have included social entrepreneurship as a part of their business college and or business curriculums.

    With social entrepreneurship being perceived by many as a new way of stimulating social change, Idee Winfield believes that the implementation of community-focused service learning projects is the first step in exposing youth to the various attributes associated with social entrepreneurship. Through community involvement, youth will begin to visualize and experience the various social issues within their community and envision ways to solve these problems. Winfield states that social entrepreneurship should be promoted in primary and secondary education, and coursework should be adjusted to allow students to “see how abstract socially focused concepts can have real world applicability.” Jeffrey Soderborg, a member of the Kauffman Center for Entrepreneurial Leadership Clearinghouse on Entrepreneurship Education, is also an ardent proponent of social venture education who believes that social entrepreneurship would be more readily accepted if youth were exposed to information expounding the laurels of these initiatives during their primary and secondary academic years.

    As youth expand their horizons through the establishment of entrepreneurial efforts, knowledge and exposure to information about the process involved in the establishment of entrepreneurial business effectively plays a major role in the rate at which business entities are established. A study focusing on entrepreneurial interests among black youth ages 14 to 19 identified that 75% of the youth surveyed had interest in becoming entrepreneur. The study also found that these minority youth believed that more information about entrepreneurship should be presented through their schools. They also believed that entrepreneurs have a responsibility to reinvest in their community.

    Corporate Social Responsibility

    Personal values often serve as the justification for entrepreneurs to focus organizational efforts on socially focused ventures. The organizational decision to forgo pursuing financial gain with the intent of using the corporations’ profit resources to enhance a community is often referred to corporate social entrepreneurship. Corporate Social Entrepreneur (CSE) is a term used to describe corporate initiatives whose primary focus is to enhance a social concern and whose secondary focus is financial gain. The corporate social entrepreneur differs from the financial profit seeking entrepreneur in the area of decisions made that affect the community and environment in which their organization functions. Research identified that in corporate social entrepreneurship business acumen serves as a factor in the success or failure of social venture initiative implementation. Research identifies that success factors associated with the implementation of social responsibility initiatives were linked to whether the entrepreneur exhibits behavior that is moral, amoral or immoral.

    The amoral entrepreneur would pursue initiatives only if they were deemed acceptable by the organization as a whole. The immoral entrepreneur implements initiatives based on what can be potentially gained for self as well as for the stakeholders, while the moral entrepreneur would pursue social responsibility initiatives based on what was in the best interest of the organization. Individuals identified as corporate social entrepreneurs are individuals who are more active in community activities and are actively involved in social responsibility efforts. Corporate social entrepreneurs also are more likely to implement social responsibility initiatives based on an organization’s long term objectives.

    While many corporations are looking for ways to increase their social responsibility efforts, in some regions corporate responsibility efforts are not progressing. A policy paper, “Corporate Social Responsibility in Latin America and the Caribbean,” documented that corporate social responsibility activity in this region has “stalled.” The reason for stagnation in this region is “minimal government involvement” and the lack of “private sector involvement.” It was also identified that initiatives to implement programs focusing on social responsibility are often initiated outside of the market, and then subsequently not embraced by stakeholders who reside within this geographic region.

    Corporations are continually looking for ways to increase corporate advantage through their social responsibility efforts. While proponents of corporate social responsibility believe that corporations are obligated morally to engage in efforts to enhance social, community and environmental concerns, many stakeholders believe that social involvement should only be initiated if the efforts are going to strengthen the organization’s image, brand, moral or stock value. With this in mind, corporations have separated social issues into specific categories.

    These categories are social concerns that are general, social concerns that are value chain based and concerns that focus on social dimensions of competitive contrast. Generic social issues are identified as social concerns that do not directly affect the company’s operation and do not have an effect on a company’s competitive advantage. Corporations are least likely to get involved or invest in projects that focus in these areas because they will not receive a high value of return on their involvement. Value Chain Social Impact issues can significantly affect a company’s operation and can have an impact on the way a company conducts business. Corporations are more likely to be involved in value chain concerns, but only after conducting due diligence studies to ensure that a return on investment will be achieved over time.

    Social issues that affect a company’s financial profitability or serve to enhance or increase a company’s competitive edge are likely to be areas that a company will invest in because of the direct impact that these initiatives will have on the company’s overall viability and stability. An example of a social dimension projects is General Electric’s investment in under-performing high schools throughout the country. General Electric believes that through investing financial and professional resources in under-performing high schools in areas where they have substantial financial investment, they are investing in enhancing a community, as well as directly increasing their future employment prospects.

    Whole Foods Market is an organization that has taken control of its social value position through purchasing products from local farmers. Also, Whole Foods maintains strict controls over all of the products produced and sold in all of its locations. They even have extended their social and ecological efforts through offsetting the use of in-store electricity with the installation of wind conversion generators, converting their trucks to operate on bio-fuel and trucking spoiled produce to regionally located compost sites. Though the investments in these technologies may be costly at the onset, the long term financial, civic and market exposure benefits far exceed any initial costs incurred.

    In the area of corporate philanthropy many corporations are at a loss. They continue to be involved in the conflict between philanthropic giving and investor requests for increased profits. For this reason many corporations engage in context-giving programs. Context-giving programs are programs that are defined as allotting resources to specific projects that will enhance the community while simultaneously enhancing the corporation.

    Examples of context-giving initiatives include the Cisco System Networking Academy, which trains computer network administrators and provides job opportunities to those who complete the program; the DreamWorks SKG film production program that trains low-income individuals in occupations that are needed in the film and entertainment industry; and American Express Travel and Tourism Academy which trains high school youth for careers in the hospitality and tourism industry. Corporations that invest in corporate-giving social venture programs are concurrently gaining positive return on their social investment, improving the economic climate of the communities where they are located and gaining positive exposure for their organizations.

    At times social ventures do not have the intended impact on the community. A study focusing on the impact of community focused business ventures found that businesses started with the intent of enhancing a community often lose focus by becoming focused on profitability and competition. Competition and self-focused motivators were identified to be factors that played an additional role in the impact and economic role that entrepreneurial ventures have in community settings.

    While many foundations, trusts and philanthropic organizations, accumulate and distribute resources with the intent of providing services to enhance specific community or social causes, many of these organizations are looking for ways to gain public exposure for their efforts. Organizations also attempt to leverage their gifting efforts through seeking not-for-profit organizations that are willing match the funding received. The success of funded programs is evaluated through performance outcomes and indicators, and through promoting the organization’s work through success stories provided by program clients. These methods are viable ways for funding agencies to acquire value and exposure through their philanthropic efforts and simultaneously continue their efforts to enhance the communities in which they invest.

    With the social philanthropic efforts of Warren Buffet and Bill Gates gaining a high degree of attention, and many leaders engaging in activities to promote social advocacy, corporations are seeking ways to also gain exposure with social entrepreneurship. Social entrepreneurship from the corporate perspective can be defined as corporate social initiatives used by a corporate entity as vehicle to show support for social causes. In recent years, many Fortune 500 companies have implemented social ventures with the intent of enhancing their corporate image through providing funding for various social causes.

    McDonald’s is one such company that has funded social causes for many years. McDonald’s primary social venture is the Ronald McDonald House Charities. The Ronald McDonald House provides lodging for the families of adolescents, ranging in age from birth to 18, who are receiving critical care for illness in communities that are away from their community of residence. The Ronald McDonald House allows families to reside in these temporary living facilities throughout the child’s period of treatment at no charge.

    The Federal Express Corporation also funds programs focused on the implementation of socially responsible programs. FedEx is a supporter of St. Jude’s Children’s Hospital and has been acknowledged by Reader’s Digest as one of “Americas Best Charity Minded Corporation.” Federal Express has also been recognized for providing funding for numerous community and civic organizations, including March of Dimes, Heart to Heart organization, an organization that focuses on delivering food and health resources globally, the United Way and the National Civil Rights Museum. These are just a few of the charitable initiatives that allow Federal Express to present itself as a socially conscious organization.

    Virgin Mobile has partnered with Youth Noise, a not-for-profit organization that brings youth together for networking and brainstorming opportunities, and Stand Up for Kids, the largest all volunteer not-for-profit organizations in the United States, to implement an initiative to expand its corporate social responsibility activities. The project involves recording artists donating ring tones to Virgin Mobile and through partnership agreements, 5% of the proceeds received through ring tone sales are donated to various “Virgin Mobile Charity Partners.” This initiative, established in June 2006, is being positioned to raise over $250,000 annually.

    For social ventures to gain global acceptance, corporations need to become involved in ventures that allow employees and consumers to see the social, community and external benefit of these ventures. This process is identified in countries south of the United States, where the concept of social responsibility is one that has been embraced by many but implemented by few. Many government organizations expect non-government, or private organizations to take responsibility for ensuring the stability and longevity of the resources throughout this region while the private sector is looking toward government agencies for intervention.

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    Source by Paul Van Putten

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  • Population Distribution or Structure II – Sex, Occupational and Geographical Distributions

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    Sex distribution

    The sex distribution refers to the classification of a given population according to sex or gender (male or female). Sex distribution can easily be obtained from a population census of a given country which shows the total number of males and the total number of females.

    A knowledge of the total number of makes and females in a country will assist the government to make the necessary plans to cater for the population. If, for example, the population of the female is higher than that of the males, it means government will have to plan to provide goods and services for more people because such a country will give rise to high population. Nature has, however tried to balance the number of males with that of the female in such a way that the differences in number between the two is usually very small.

    Occupational distributions

    Occupational distribution of a population refers to the classification of the working population into different types of work they engage in. The occupational distribution in any population is influenced by a number of factors. These include:

    1. The level of education

    2. Availability of natural resources

    3. The level of technology

    4. The types of productive activities.

    The major types of productive activities are primary (extractive), manufacturing, construction, commercial, direct and indirect services. In west Africa for instance, majority of the occupationally distributed population are found in farming, mining fishing and lumbering.

    Geographical distribution

    Geographical distribution of a given population refers to the spread of people into separate geographical areas within a country. The distribution may be due to occupational, presence of mineral resources, historical factors, seat of government, availability of social amenities etc. Reasons for high population density due to geographical distribution are: favorable climate, fertile soil, natural attachment/historical factors, administrative headquarters, employment opportunities, presence of minerals, presence of industries, presence of social amenities and infrastructure, commercial activities and migration.

    Economic Implications or Effects of Increase in the Population of Dependants

    The Dependants are the population that are between 0-17 years, which include the infants, pupils in nursery, primary, secondary and those in tertiary institutions, and the old age (over 60 years that are not working) but depend on the working population (18-60 years) to cater for all their needs or requirement. If the population of the dependents is higher than that of the working class it has the following economic implications: high taxation, increase in prices, increase in government expenditures, low savings, low investment, fall in standard of living, increase in demand for goods and services, increase in imports, decrease in exports and low supply of labor.

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    Source by Funom Makama

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  • MLM Training – How To Answer the 30 Most Common Questions And Rejections In MLM or Network Marketing

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    Ok, so you’ve made the call, initiated the invitation, but things didn’t go as smoothly as what you expected.

    Your prospect started to ask some tough questions.

    Gulp, all of a sudden your tongue got tied up! You panic and said something stupid.

    Just yesterday, one of my downlines asked me after she made her first few calls to some prospects.

    What do you say when they ask you, Is this MLM? or Do I need to sell stuff? or Do I need to spend a lot of time?

    Here are your answers to the 30 most asked questions in MLM or Network Marketing.

    1. What is this business all about?

    Answer 1 (refer back to your website): Well, everything is explained on my website. Can you check it out today?

    Answer 2 (if your company does not provide a website): Well, I can’t explain it over the phone, so the best way is to meet up either today or tomorrow so that I can show you the details.

    * Now, the reason why we do not want to explain over the phone, is simply because there is no way the prospect can see the full big picture with some words transferred over the phone! Remember, our responsibility in MLM is to pass the message on and the clearer the message, the lower the chance of rejection or misinformation.

    2. Is this MLM?

    Answer: (Answer a question with a question) Why do you ask that? Have you done MLM before?

    * In this case, we answer a question with a question because we want to know if the prospect is NEGATIVE towards MLM. If the prospects answers your question with a negative response eg. Yes I have and I failed terribly or No I have not, but my relative/friend was involved with some MLM and failed, then you must be more tactful and answer Well, its not what you think or have seen. Check out my website or I can show you the details when we meet up today or tomorrow.

    3. Is this one of those pyramids or money games?

    Answer: No, of course not. Why do you say that? Did you have a bad experience with something like that?

    *Again, we want to find out if the prospect had a negative experience and we want to reassure them that our business is nothing like that.

    4. So do I need to sell anything?

    Answer: No, this business is not about being a super salesperson if you do not like sales.

    *The reason why we say this is because more than 90% of the worlds population does not like sales. However, its more of a fear of having to sell stuff because they do not see the benefits or whats in it for them.

    5. Do I have to sell stuff to my family and friends?

    Answer: No, you do not have to if you do not like doing that.

    * Most people fear peddling products to their family and friends, however most of the time, their opinion will change when they realize how good the products are and how they can benefit from those products.

    6. Do I have to make cold calls?

    Answer: No, you do not need to make cold calls if you do not want to.

    7. Do I have to spend long hours to do this business?

    Answer: Well, its actually flexible and totally up to you. The more time and effort you put into the business, the more you will earn as there is no limit to the amount of money you can make.

    8. I don’t have many friends.

    Answer: Its ok. You do not need to depend on your friends and relatives to succeed in this business.

    9. So what do I need to do?

    Answer: You need to go through our company training and learn the basics of the business, then follow our step by step system to guide you towards success.

    10. Do I need to invest a lot of money?

    Answer: That’s the beauty of this business. You do not need to invest a huge sum of money to start the business. How much will you need to start a McDonald’s or Kentucky Fried Chicken franchise?

    *The idea here to make a powerful reference to a business like McDonald’s which everyone knows or has heard about. Then, inform the prospect that a McDonald’s franchise takes something like US$1 million dollars to start. However, our business just needs a few hundred or thousand dollars to get started. Comparatively, that’s not a huge investment at all!

    11. I can’t talk as well as you.

    Answer: In this business, its not about being able to talk well. Besides, well be guiding you with our step by step system that does not require you to talk well or be a good salesman.

    12. I am just too busy.

    Answer: Will you like to have more time freedom then?

    *Explain to the prospect the ideas I shared in WHY MLM about exchanging your time for money and exchanging OPT(Other peoples time) for your wealth. Many people think they are doing well, but they don’t realize they are still caught in the rat race.

    13. I don’t think MLM or Network Marketing is a professional career.

    Answer: Have you heard of Donald Trump(ultra rich billionaire property mogul in the hit show THE APPRENTICE) or Robert Kiyosaki (World famous author of the book RICH DAD POOR DAD)? If both of them strongly recommend network marketing or MLM as one of the best businesses for people to get rich with, do you think that they will risk their reputation on something that is not professional?

    *The best way is to show them Donald Trump and Robert Kiyosaki’s book which they co-wrote together, Why We Want You To Be Rich? and flip to that one entire chapter where both of them recommend that we join network marketing in order to get rich!

    14. Have you made any money yet?

    Answer(if you just started): No, I just started the business and any business takes time to generate income. However, I can introduce to my upline who has made money already and is very successful. You can check out his website or I can arrange a 3 way call for a conversation with him.

    15. How long will it take for me to make any money?

    Answer: Its up to how much time and effort you put into the business. However, give yourself at least 3 months to learn the ropes first.

    16. What if I run out of friends?

    Answer: As I mentioned, you do not need to limit yourself to your friends and family. We will guide you step by step how you can have an unlimited number of people to share the business with.

    17. I don’t think I can afford the money to start.

    Answer: Do you really seriously want to achieve your dreams? If yes, figure out a way you can get the money to start. You can start saving up now so that you can start later.

    18. You are already successful, that’s why you can do it but I am not like you.

    Answer: Do you want to change your life then? If yes, start by being a good student and learn how to do it. We are willing to guide you towards success.

    19. Do I have to become a products expert?

    Answer: No, we are only the messengers who pass the information on to others. We do not need to become doctors, or nutritionists or product experts.

    20. Can I build my business overseas to other countries?

    Answer: Yes, of course. With the internet, we are able to share our business opportunity with anyone in any country around the world. So long we are able to deliver the products there, anything is possible.

    21. Can I start part time and still succeed?

    Answer: Yes, of course. Many of us start part time and build up a significant income before we go full time.

    22. How long will it take to achieve a full time income?

    Answer: Just like any business, give yourself at least 6 months to 1 year to build up a significant income.

    23. Can I register a company to do this type of business?

    Answer: Yes of course. You are already considered a self employed business owner by starting this business, so you can register a sole proprietorship, partnership or incorporated company to do this business and enjoy all the tax benefits.

    24. Can I do this business together with my spouse?

    Answer: Yes of course. In fact, we have seen many success stories of couples who work together as partners in this business and it not only helps with their finances, but their marriage as well.

    25. The money in network marketing is too slow for me.

    Answer: Well, if you’re looking for fast money, usually its associated with high risk. However, if you want low risk, but highly leveraged passive residual income i.e. income that grows while you sleep without risking high investments, network marketing will give you that if you work the business for 1 to 2 years.

    26. Too many people fail in MLM.

    Answer: Isn’t that true in any industry? Example, insurance, property agents, even 9 of 10 traditional businesses fail in any given year. Be it in MLM or in any industry, the only people who fail are those who give up. And those who succeed are those who never ever GIVE UP.

    27. I hear too many horror stories and negative comments about MLM.

    Answer: There is nothing wrong about MLM as a business model. Its just misunderstood by the general public. However, did you know that when franchising first started in USA, everyone said it’s a scam? The same thing happened when personal insurance policies were first introduced to the general public. It took more than 20 years before the public started to accept that personal insurance wasn’t a scam to cheat your money but a necessary protection instead. But if you had been one of those pioneering leaders in the Insurance industry, today you will be very rich! So its the same situation for MLM, when less people understand it, that’s when the opportunity is BIG.

    28. Do I need to convince people to buy products?

    Answer: No. Your responsibility is to pass the information to them so that they can review the DVD, website or magazine so that they can convince themselves if they are interested. You do not need to do any convincing at all.

    29. I have no extra time to do this.

    Answer: If today I told you that I’m selling my ferrari sports car for $1000 and you only have until tomorrow to grab this limited time offer, will you find the time to get $100 to me right now? If yes, it means that the point is whether you really want it bad enough to find time to do it. So do you really want to succeed or are you just fooling around?

    30. I have no idea where or how to start.

    Answer: No problem, let me guide you step by step with our new distributor orientation training system and quick start checklist.

    * By this time, your company or your organizations training system should have a simple step by step checklist or training guide that you can use to duplicate your new downline to get started.

    So there you have it!

    The 30 most common questions, answers and rejections in MLM or Network Marketing.

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    Source by Dennis Bay

    Views: 0

  • What Is Drug Court in District of Columbia Superior Court?

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    There are drug courts throughout the Country. Generally, they are special courts designed to treat people who have an addiction cases and are in the criminal justice system. There are currently more than 2,450 Drug Courts operating throughout the United States with all 50 states having a program. District of Columbia Superior Court Drug Intervention Program (SCDIP) has been in operation for over 20 years. SCDIP is a voluntary program.

    Criminal defense attorneys who make a blanket statement "I don't have clients do drug court" are doing a disservice to their clients especially if the reason they are in criminal justice system is for addiction. Good criminal defense attorneys will explore all options including participating in this program.

    Over the course of the last year, SCDIP has gone through some major changes. SCDIP requires a minimum participation of 5 months. This article gives a brief overview of how the typical defendant enters District of Columbia Superior Court Intervention Program.

    The client comes into the criminal justice system either charged with a misdemeanor or a felony case in DC. Superior Court. It should be noted that SCDIP is only applicable to charges prosecuted by the United States Attorneys Office for the District of Columbia. The Attorney General for the District of Columbia criminal prosecution division does not participate in SCDIP; and therefore, serious traffic charges are not eligible.

    Misdemeanor cases Intake

    The defendant reports for arraignment (initial charge). Thereafter, the case is set for status. The Court at arraignment may impose an evaluation and if positive program placement. If the positive test pretrial may order an addiction severity index (ASI). ASI is an evaluation where a drug counselor expert advises what treatment is required of the defendant.

    At the status hearing, pretrial services may recommend drug court as an option. If pretrial services recommends drug court, the government will be given 2 to 3 weeks to screen whether they will allow participation in drug court. The case will be set for an additional status hearing.

    At the final status hearing, if pretrial services and us attorneys and the defendant agree the case will be certified to the drug court calendar on a Tuesday or Thursday.

    Upon successful completion of a misdemeanor case in drug court, the case will be dismissed.

    Felony cases Intake

    The defendant is presented on a felony complaint. The case is set for preliminary hearing. The court at presentment may impose an evaluation and if positive program placement. If the defendant test positive test for drugs, pretrial may order an addiction severity index (ASI). An ASI is an evaluation where a drug counselor expert advises the Court what treatment is recommended.

    If pretrial services recommends participation in drug court and the defendant ais willing, he may proceed without US attorney's recommendation. Unlike the misdemeanor the defendant may have 2 separate court dates, one before the felony judge and one before the drug court judge. In fact, the defendant can request a trial or plead guilty and still participate in drug court.

    If the United States Attorney's office approves for participation the defendant, the US Attorney's office may grant an Amended Sentencing Agreements (ASAs). If the defendant successfully completes the ASA, the government will agree to permit the defendant to amend his / her plea at the final sentencing date and plead to a lesser included misdemeanor charges instead of the felony.

    If the US attorney's office did not approve participation, upon successful completion of a felony case in drug court, the court may grant a term of probation but it is not guaranteed.

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    Source by Mark Rollins

    Views: 0

  • Tips For Choosing An Eye Care Doctor

    Tips For Choosing An Eye Care Doctor

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    Taking care of your eyes is good as giving importance to your overall health. That is why choosing your eye care doctor is considered as an important health care decision. Remember that you will trust your sense of sight to this professional to help you maintain a clear vision for life. Here are some tips to remember so you can choose the best doctor to care for your eyes.

    You have to know the complete name of the doctor. This is important for you to check his record if he is really licensed by a state regulatory board. Search for the professional regulations website in your country. You can either search for his name on the database or ask a certification from the regulatory board as proof that this person is qualified to diagnose and treat various eye-related concerns. Take some time to research on his professional experience as well. Having a wealth of experience under his name speaks more of his credentials and credibility as an eye health care professional.

    Check out some printed and online resources. Did he receive any recognition for his outstanding practice for the past few years? Was he involved in anything that showcases expertise in his profession? Does he involve himself in any charity work together with other eye care professionals? This information will give you a hint on how active he is within the same community.

    Next is to know if this doctor offers wide range of services, especially the types of services you need. You would definitely be more comfortable going to that person for consultation if you know that you will have all that you need in just one place, thus saving more time and energy on your end as a patient.

    Then check for reviews from former patients through their websites or blogs. These are the people who had their first hand eye care experience with that ophthalmologist. Send an email and ask to meet with these people in person. Ask as many questions as you can and keep note of their answers and how they rate his expertise and service based from their personal experience.

    It is also worth to check if he has a website of his own. These professionals should have their own site as this also serves as their brand and identity online. Check the sites that link to his website. You can expand your research by scanning those online resources that links to him. These may be some of his other former patients or those who are also asking for more information about his expert services.

    As soon as you are armed with all the information that you need, then take time to go to his clinic. Do an ocular if you can. Was the entire place maintained neat and clean? How many patients were there during your visit? Check if they have modern eye care facilities and if they have friendly staff who patiently answers all your additional questions about this doctor’s products and services as well.

    These are just some of the important tips that you need to do in order to choose the best eye care doctor to take care of your vision. It may take weeks or months before you can zero in on one, but that’s fine. Remember that you will have him take care of your vision as long as you live, that is why you only have to settle for the best practitioner in your area.

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    Source by Wade Lockstock

    Views: 0

  • Transforming Negative Emotions Into Positive Feelings and Actions Part 2

    Transforming Negative Emotions Into Positive Feelings and Actions Part 2

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    Techniques to Release, Overcome and Transform

    1.) Observe yourself having the emotion. Just become aware and watch yourself in the process. This de-fuses it and frees you from an emotional strangle-hold and escalation. It takes will and strong desire to do this and becomes easier with practice.

    2.) Choose an image, a personal symbol, to place in your mind to stop self as soon as you recognize a negative emotion happening. For example, a stop sign, 10 deep breaths, a Danger sign or whatever means ‘stop” to you.

    3.) Consciously lift and move your energy from your solar plexus (stomach) area to your heart. The emotional charge is in the stomach and when you relocate your focus to the heart, you calm down and can see what is best. You’ll become harmless to yourself and others as your center of love is activated and replaces the negative feeling. A better decision can then be made.

    Release the Emotion (A present Feeling or one from the past):

    1.) Stomp, pound a pillow, yell, run, cry; release the emotion from the body.

    2.) Image a shower of light pouring down on you and washing the painful emotion away.

    3.) Pull the plug on the emotion. Image it as a color going down a drain.

    4.) Journal, write your feelings down.

    5.) Art Therapy. Do a simple technique that releases the emotion by taking a sheet of paper and using crayons, markers or pastels to draw/scribble your feelings on the paper. Get them out on the paper; release them. Turn the paper and see this situation differently. Now, draw. A new perspective can harmonize the emotion you’re releasing.

    6.) We release emotions with intention to be rid of them, not to fuel the fire for more. Be sure to release with the desire to be free of them.

    Transforming Negative Emotions:

    1.) Change your energy field. Close your eyes and imagine the emotion as energy around you. What does it look like, what color, shape, form etc. does it take? Now allow it to change and smooth out, becoming transformed, harmonized, peaceful. What does it look and feel like now?

    2.) Change your perspective on the situation. Re-frame it in a way that’s positive/productive for you. Ask yourself, how this situation can help you. What is good about it? How are you growing from it? A positive attitude about something can help resolve it for you, even if it’s a difficult situation. A new mindset can change everything.

    3.) Ask self what the lesson you are learning from this situation is. Knowing the lesson helps transform the negative feeling and take on the mastery of the lesson you are in the process of learning.

    4.) Put a new and positive picture in your mind about the situation that is causing the hurtful emotion. Instead of dwelling on the painful scenario or the trauma incident or being yelled at or treated disrespectfully, replace it with one of yourself healed, happy, successful, determined to move on etc. Whatever feels great and counters the old feeling. Keep the new picture in place whenever the old feeling comes up. The mind and body respond quickly to pictures, so this will shift you fast.

    5.) Inner Listening. Get very quiet and go into the silence within. Allow your inner guide to bring you new insights, wisdom and solutions for healing and transformation.

    6.) Forgiveness means letting go. It doesn’t condone bad behavior, but lets the pain go. You and others have the right to make mistakes and grow. Forgive self if needed and forgive others. This doesn’t mean that you will choose to stay connected with anyone who harms you. It means you let go of the painful movie, get the lesson and move forward. You stop the images and negative emotions from their endless control over you. Restore your self- esteem if you’ve acted poorly and wish the other person well if they have. To clean yourself completely, do a systematic of forgiveness for everyone in your life. You will be rejuvenated. Forgive; let go and say goodbye to these emotions.

    7.) Change a gripe to a goal. If you regularly complain and feel negatively about something or someone, set a goal for yourself and be determined to accomplish it. For example, if you are jealous of someone who has a degree in art; stop it and find a way to get one for yourself. If you are short of money and angry at others who have it, stop it and chart your path, make a plan to increase your income. Things happen first in the mind, so begin to visualize yourself having what you want already now. Feel the joy of it and for 5 minutes several times a day, sit quietly and feel the emotions you would have if it were yours now. Soon you begin to believe you have it. In the Biology of belief, Bruce Lipton offers scientific proof that we get what we believe.

    8.) Thoughts and emotions are intimately connected in fact, inseparable. One leads to the other. What repetitive thoughts do you have that are hurting you? Are you taking charge of your negative thoughts and transforming them? Think the opposite of your negative thought as soon as you catch yourself having it. Correct yourself on a daily basis; over and over. Repetition of the new corrected thought forges a new brain pathway and pattern. Strong intention and follow through is necessary.

    Don’t let your mind wander all day without direction or self-monitoring. You can change your mind at any moment into a more positive state. Letting your thoughts run wild will take away your peace. Take charge of yourself and choose thoughts that will help you.

    9.) What belief about yourself do you want to change? Finances, relationships, self-concept, accomplishment of a specific goal; health, personal qualities etc. Beliefs that limit and cause pain keep your emotions at a painful level, and only you can change that.

    Taking Positive New Action

    1) Set clear boundaries. You decide what you will and won’t accept from people and act on it.

    2) Practice assertive communication with others. Tell them how you feel without blame or judgment; just how you feel. Stand up for self if needed.

    3) Be creative. Create something positive from your experience.

    For example, women who have been abused have set up women’s shelters around the country. People who grew up hungry have started programs to feed poor children.

    All of these techniques work. Practice and practice and you will see yourself and your life become fulfilled and beautiful. Be very patient with yourself, as this is hard work and takes a lot of self- control, intention and discipline. It’s a progressive unfolding of the highest part of self. Over time we blossom!

    Steps in Review:

    1.) Stop and control self.

    2.) Release the emotion

    3.) Transform the emotion

    4.) Take positive new action

    5.) Replace negative emotional reactions with spiritual actions and personal spiritual qualities.

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    Source by Carole Cravath

    Views: 0

  • Should Gays Be Allowed to Marry?

    Should Gays Be Allowed to Marry?

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    Marriage is more than a piece of paper. It confers numerous benefits, such as health, disability and life insurance, pension funds and tax refunds for spouses. Many gay couples desire to marry and partake in these benefits but have been denied this right because of their sexuality and that is not fair. According to some individuals, America is the greatest country in the world. It is supposedly filled with opportunities for everyone, not just financially but an opportunity to be free from judgement. This is not true. Everyday, millions of people are denied a right many take for granted. Gay couples in most states cannot marry because it is illegal to marry someone of the same sex and that is not fair.

    Marriage is a legal commitment between two consenting adults. It is about sharing, love, trust, and legal status. Two adults who make this private personal choice to form a life-long commitment should not be denied the right to marry just because their sexual orientation. It is illegal to discriminate against gays seeking employment, education or housing. Gays keep communities safe as firefighters and police officers, staff hospitals, and pay taxes. Denying gay couples the right to legally marry takes away their legal rights in receiving employee benefits, government benefits, and other benefits that heterosexual couples enjoy.

    A person's sexuality should not be an obstacle to whether he or she wants to marry someone. A gay person has the same needs and desires as a heterosexual individual. The only difference is the way he or she has sex. If two individuals fall in love and wants the same economic advantages that marriage offers heterosexual couples, they should not be denied that right based on their sexuality.

    Although American society denies the right to marriage to gays, it glorifies heterosexuals who make a mockery out of marriage by marrying and divorcing a succession of partners. This practice is called "Serial Monogamy" and it is sickening and very hypocritical of American society to stand judgment on gays for their lifestyles but sanctions heterosexuals who do not have good judgment or morals. Most people who are opposed to gay marriage often bring up the Bible, saying that the Bible does not condone the gay lifestyle and that marriage is strictly between a man and woman.

    However, these same individuals are often involved in extra-marital affairs, are cohabitating without the benefit of marriage or are gay themselves, hiding behind pious words of morality. Gays are just like anyone else and they deserve to partake in the economic advantages that marriage has to offer. Instead of denying the right to marriage to gays, American society should concentrate on fixing the widening economic gap between the wealthy and the poor and figuring out why American society is the laughing stock of the world.

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    Source by Kathy Henry

    Views: 0

  • Questions Are the Key to Success in Business and Life

    Questions Are the Key to Success in Business and Life

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    It was Kipling who gave us what was perhaps the greatest advice for business success and, in fact, success in life that has ever been given. He told us the key to success in all areas when he said “I had six honest serving men. They taught me all I knew. Their names were: where and what and when and why and how and who.”

    The late great Earl Nightingale suggested we add two more friends to this group. They are, which and if.

    Whether you are seeking to find ways to increase sales or control and reduce costs, questions are the key. Whether you are striving to improve your customer service or the quality of your product, or your life, questions are the key.

    Asking the questions and developing the answers are the keys to any and all success you will have in business and in fact life.

    Questions like:

    If we do this, what happens?

    Why do we do it this way?

    Why don’t we do it this way?

    Who else can we sell to?

    Where else can we get this?

    What can we do to reduce costs?

    What can we do to improve productivity?

    What can we do to improve quality?

    What can we do to improve our service?

    How else can that be done?

    How can we do it better, faster, cheaper?

    How can we improve quality, service, and profits?

    How can we cut costs?

    If we do this, will we improve quality?

    If we do this, will it improve service?

    If we do this, will it increase profits?

    Which provides us with better quality?

    Which is best for our customer?

    What do we get in return for this cost?

    Who else can provide what we need?

    Why are we paying that much?

    Why do we not deal with another company?

    Why are we dealing with them?

    How many other bids have we gotten?

    What if?

    How can we replace that with equal or better quality for less?

    What are other companies charging for that product or service?

    What are other companies paying for that product or service?

    Will this process or step add value to our product or service or does it produce added profit?

    When would this investment pay off?

    You see my point I am sure. You must ask questions and seek out the answers. You must also justify the answers.

    You must never stop asking. If you are not continuously asking the questions and reacting to the answers, you are either assuming or stagnating. Either one can be deadly to your business.

    You must review every phase of your business. You may be very surprised when you see how little effort it will take to find huge savings and to make major improvements in how you conduct business.

    You can always improve how you do things. You must find ways to conduct business more efficiently, eliminate needless steps, improve quality, increase productivity, reduce errors, increase sales, ways to increase profit in a business, reduce expenses, and control costs.

    Let me give you one small example of how an assumption proved to be very costly at one company. One of the many products this company offered was a holiday label strip. This was simply a strip of peel off labels to affix to holiday presents showing “to” and “from”. Banks around the country would buy them and give them out one strip at a time to their customers around the holidays.

    For years this company shrink wrapped these in packages of 250 and sold them in a minimum quantity of 1,000. The shrink wrapping was time consuming and costly. I asked them why. Why did they need to be shrink wrapped? How did they know if this was important to the customer? What, if any, difference did packaging make to their customers?

    They asked the questions and found the answers. The answer in this case was that the customer either couldn’t have cared less about the packaging or did not like the shrink wrap as it simply meant more work for them to unwrap. After years of doing it the way they always did and assuming that was what the end user wanted, they found out differently. They now bulk package. They save between $20,000 and $30,000 per year and their customers are either happier or neutral about this change.

    Did this company sacrifice quality in any way to save money? No, they improved productivity, improved customer satisfaction, and, by doing so, improved profitability.

    Ask the questions. They are the key to the door of improvement.

    You should constantly be reviewing every area of your operation to seek ways in which you can improve. Use common sense. From office expenses to customer service, from distribution and production to quality control and shipping, you will be shocked at how little effort it will take to improve your operations, reduce waste and redundancy, and realize huge savings.

    From the way you sell things to the way you buy things, it is up to you to improve things. Improvement is always possible in everything we do.

    You possess the greatest power ever created and it sits right between your two ears. You own it, free and clear. All you need to do is put it to work.

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    Source by Derrick Welch

    Views: 0

  • A Substantive Due Process Challenge to the War on Drugs

    A Substantive Due Process Challenge to the War on Drugs

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    Substantive Due Process Analysis of the Incarceration of Drug Offenders

    A. Framework

    In Washington v. Glucksberg, Chief Justice Rehnquist described the framework for substantive due process analysis:

    Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”

    Applying this method, one must first examine freedom from incarceration to determine if it is a fundamental right. If so, government policies that require the incarceration of offenders, including drug offenders, must serve compelling interests and be narrowly tailored to achieve them. This article assumes for the sake of argument that drug problems give rise to compelling state interests. It then reviews the interests asserted by the government in its pursuit of its drug war policies and the results of those policies to determine whether the policy of incarcerating drug offenders is narrowly tailored to those asserted interests.

    B. The Fundamental Liberty Interest: Freedom from Incarceration

    Federal and state laws subject drug offenders to incarceration. Incarceration is a tremendous deprivation of liberty that triggers the protections of the Due Process Clause. The Supreme Court has recognized this right on a number of occasions. In DeShaney v. Winnebago County DSS for example, the court held:

    [I]t is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf–through incarceration, institutionalization, or other similar restraint of personal liberty–which is the “deprivation of liberty” triggering the protections of the Due Process Clause . . . .

    Perhaps the earliest explicit recognition by the Supreme Court of freedom from incarceration as a fundamental right under substantive due process came in Allgeyer:

    The ‘liberty’ mentioned in [the fourteenth] amendment means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.

    An 1891 law review article noted that Blackstone described “freedom from restraint of the person” as “perhaps the most important of all civil rights,” and that Lord Coke felt “the liberty of a man’s person is more precious to him than everything else that is mentioned [in the Magna Charta].” Blackstone states that “the rights of all mankind . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property.” Indeed, the original Latin in the Magna Charta’s “law of the land” clause uses the term “imprisonetur.”

    No court has invalidated a criminal statute through the application of substantive due process analysis to the fundamental right of freedom from incarceration. At the same time, no court has ruled to the contrary. The Supreme Court avoided the question in Reno v. Flores:

    The “freedom from physical restraint” invoked by respondents is not at issue in this case. Surely not in the sense of shackles, chains, or barred cells, given the Juvenile Care Agreement. Nor even in the sense of a right to come and go at will, since, as we have said elsewhere, “juveniles, unlike adults, are always in some form of custody,” and where the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so.

    This analysis would not apply to adult drug offenders. The Fourth Circuit also avoided addressing freedom from incarceration as a fundamental right in Hawkins v. Freeman:

    Hawkins’s rhetorical reference to the right as being “freedom from unjust incarceration,” and that of amicus, American Civil Liberties Union of North Carolina, as the “right to be free from arbitrary incarceration,” are issue-begging generalizations that cannot serve the inquiry. A properly precise description can, however, be found in the facts and legal authorities relied upon by Hawkins in support of his claim. From these, we deduce that the precise right asserted is that of a prisoner to remain free on erroneously granted parole so long as he did not contribute to or know of the error and has for an appreciable time remained on good behavior to the point that his expectations for continued freedom from incarceration have “crystallized.”

    Hawkins is distinguishable because it deals with an inmate whose parole was revoked. In any event, the casual dismissal as an “issue-begging generalization” flies in the face of nearly 800 years of common law tradition and over a century of Supreme Court decisions recognizing freedom from incarceration as a fundamental right. Indeed the language of the Supreme Court’s Ingraham decision supports the application of substantive due process proposed in this paper:

    While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment. It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.

    The Court also stressed this fundamental liberty interest in Foucha v. Louisiana, a case involving the confinement of a person found not guilty by reason of insanity:

    Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. “It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” We have always been careful not to “minimize the importance and fundamental nature” of the individual’s right to liberty.

    While the Foucha Court indicated that “a State may imprison convicted criminals for the purposes of deterrence and retribution,” the remark was dicta and did not involve any discussion of substantive limits on the police power. In Meachum v. Fano the Court made a similar remark in the context of a case dealing with prison conditions: “[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.” Again there was no discussion of substantive limits on the police power. Indeed the previous sentence noted: “The Due Process Clause by its own force forbids the State from convicting any person of crime and depriving him of his liberty without complying fully with the requirements of the Clause.”

    Recently in Zadvydas v. Davis, the Court noted:

    The Fifth Amendment’s Due Process Clause forbids the Government to “depriv[e]” any “person … of … liberty … without due process of law.” Freedom from imprisonment–from government custody, detention, or other forms of physical restraint–lies at the heart of the liberty that Clause protects.

    Freedom from incarceration is not just a fundamental right. It is the one of the most fundamental of rights.

    C. Identifying the State’s Interests

    Governmental drug policy interests identified in federal statutes include “demand reduction,” “supply reduction,” and “reducing drug abuse and the consequences of drug abuse in the United States, by limiting the availability of and reducing the demand for illegal drugs.”

    Federal law sets specific goals for the National Drug Control Strategy. These include:

    “Reduction of unlawful drug use to 3 percent of the population”;

    “Reduction of adolescent unlawful drug use to 3 percent of the adolescent population”;

    “Reduction of the availability of cocaine, heroin, marijuana, and methamphetamine”;

    “Reduction of the respective nationwide average street purity levels for cocaine, heroin, marijuana, and methamphetamine”; and

    “Reduction of drug-related crime.”

    Goals are also set forth with regard to drug-related crime:

    (i) reduction of State and Federal unlawful drug trafficking and distribution; (ii) reduction of State and Federal crimes committed by persons under the influence of unlawful drugs; (iii) reduction of State and Federal crimes committed for the purpose of obtaining unlawful drugs or obtaining property that is intended to be used for the purchase of unlawful drugs; and (iv) reduction of drug-related emergency room incidents . . . .

    D. Defining “Narrow Tailoring” in the Context of Substantive Due Process

    Assuming that the governmental interests are compelling, we must determine whether the incarceration of drug offenders is narrowly tailored to achieving them. The government must show that its policy passes strict scrutiny. The concept of narrow tailoring is not well defined in the context of substantive due process, but has been fairly well defined in regard to the First Amendment and Equal Protection. Equal Protection cases also arise out of the Fourteenth Amendment. In Wygant v. Jackson Bd. of Education the Supreme Court held: “Under strict scrutiny the means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.” In a footnote, the Court described narrow tailoring in even further detail:

    The term “narrowly tailored,” so frequently used in our cases, has acquired a secondary meaning. More specifically, as commentators have indicated, the term may be used to require consideration of whether lawful alternative and less restrictive means could have been used. Or, as Professor Ely has noted, the classification at issue must “fit” with greater precision than any alternative means. “[Courts] should give particularly intense scrutiny to whether a nonracial approach or a more narrowly-tailored racial classification could promote the substantial interest about as well and at tolerable administrative expense.”

    It is important to note here that a policy that does not advance the government’s interests violates substantive due process regardless of how it compares with the alternatives. If it does not accomplish its purpose, logic dictates it cannot be specifically and narrowly framed to accomplish its purpose.

    E. Advancing Governmental Interests

    Congress has identified certain tools for assessing the national drug control strategy. The National Household Survey is the measure for “unlawful drug use.” Similarly, “adolescent unlawful drug use” is to be measured “by the Monitoring the Future Survey of the University of Michigan or the National PRIDE Survey conducted by the National Parents’ Resource Institute for Drug Education.” On these measures, the goals are not being reached.

    The measure of adolescent drug use that was specifically identified by Congress, illicit drug use in the past 30 days, worsened in 2001. More than 25% of US twelfth graders reported using illicit drugs in the past 30 days. That is nearly double the figure for 1992 and more than eight times the stated goal of 3%. Over 40% of 12th graders tried an illicit drug in the past year.

    The PRIDE Survey and National Household Survey show similar results.

    The drug war has also failed in its other goals. The Monitoring the Future Survey tracks how twelfth graders perceive the availability of drugs. Reducing availability is an explicit goal of the drug war. The perceived availability of marijuana in 2001 was slightly higher than in 1975. The figures for harder drugs are more disturbing. From 1975 to 1986, roughly 20% of twelfth graders said heroin was easy to get. That number shot up in the late 1980s and has remained consistently higher than 30%. Cocaine remains widely available to our youth, with nearly 50% of twelfth graders saying it is easy to get. The survey began measuring the availability of ecstasy in 1989, when only 22% of twelfth graders felt it was easy to get. In 2001, that number went over 61%, having jumped from 51% the year before.

    Drug war policies are not achieving the stated drug war goals. They cannot be “specifically and narrowly framed to accomplish their purpose” because they are not accomplishing their purpose. Drug use has not been reduced in any significant way, and levels of drug use are far above the stated goals. Our children have easy access to drugs. We can’t even keep drugs out of jails. The drug war and the incarceration of drug offenders have also failed to achieve secondary goals regarding supply, demand, purity, drug-related health problems and drug-related crime. The policy of incarcerating drug offenders does not “directly advance[] the governmental interest asserted.” The War on Drugs is not working.

    F. Alternative Means

    Even if a court is persuaded that incarceration advances the government’s interests, the government must also show that its policy choice fits better than the alternatives. Critics of the drug war encompass a broad spectrum of backgrounds, and the range of “solutions” is just as wide. Libertarians and others favor outright legalization of drugs. The legalization of marijuana is a somewhat popular variation of overall legalization, and there are other variations such as the legalization of marijuana for medical purposes and decriminalization of drugs or marijuana. Another leading approach, known as harm reduction, looks at drugs from a public health perspective.

    The effectiveness of some of these alternatives is difficult to assess. Even so, certain comparisons can be made. Advocates of treatment point to studies showing that treatment is much more effective than incarceration. Spencer notes:

    The recidivism rate for first time Dade County drug offenders was sixty percent, but for those who successfully completed the Dade County Drug Court treatment programs, the recidivism rate reported by Dade County officials was only seven percent. Drug court treatment programs are also cost effective. It costs Florida only $2,000 to put a drug offender through a drug court program, as compared to $17,000 per drug offender for incarceration. As a result, other drug court programs are being established throughout the country.

    Similarly, a Rand study found treatment to be seven times more cost-effective than current supply-control policy in reducing cocaine consumption.

    G. The Incarceration of Drug Offenders is Not Narrowly Tailored

    Incarceration involves a far greater infringement of fundamental rights than alternatives which are both more effective and less intrusive. The incarceration of offenders is not advancing the state’s asserted interests. The drug war is not narrowly tailored, failing the Supreme Court’s “established method of substantive-due-process analysis” as described by Chief Justice Rehnquist. The laws requiring the incarceration of drug offenders are therefore unconstitutional, if substantive due process analysis is applied.

    IV. CONCLUSION

    It is true that the approach suggested in this paper would limit the police power. Constitutional protection of individual rights exists for that very purpose. We face coercive government action, carried out in a corrupt and racist manner, with military and paramilitary assaults on our homes, leading to mass incarceration and innocent deaths. We can never forget the tyranny of a government unrestrained by an independent judiciary. Our courts must end the War on Drugs.

    For the full article, with endnotes, see: http://www.redlichlaw.com/crim/substantive-due-process-drug-war.pdf

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    Source by Warren Redlich

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