Obamacare Medicaid Expansion: States Should Be Realistic, Not Optimistic

Months since the Supreme Court ruling that made the Obamacare Medicaid expansion optional, the state costs associated with expansion still remain highly uncertain—making expansion a dicey course for states and their budgets.

Indeed, states should not lose sight of the fact that the original Medicaid expansion was coercive for a reason. As Nina Owcharenko, director of Heritage’s Center for Health Policy Studies, points out, “The fact that the authors of Obamacare felt the need to threaten states with total defunding tells you that they knew many states would resist expanding their programs—even with 100 percent federal funding.”

States are still weighing their options. Many of them have commissioned studies to project the state costs of expanding. However, all cost estimates reflect the assumptions used to construct them, and using different assumptions can result in estimates varying wildly between (and sometimes within) states.

For instance, Florida Governor Rick Scott (R) released a study that projected that an Obamacare Medicaid expansion would cost his state $26 billion over 10 years. A different Florida study made alternative assumptions, concluding it would cost Florida about $3 billion over 10 years. The major difference between the competing studies is that Scott’s does not assume that the federal government’s enhanced match rate will continue as described in the law.

Scott is right to distrust the federal government. In the Administration’s 2013 budget, the President proposed using a “blended” reimbursement rate for Medicaid. A blended rate could cost states considerably more than the funding levels promised in Obamacare. According to Heritage’s Center for Data Analysis calculation, under the Obamacare rates it would cost the 50 states a total of almost $42 billion from 2014 to 2022, while under one version of a blended rate it would cost states about $120 billion over the same period.

Though White House officials recently said that the Administration no longer supports a blended match rate, states have no guarantee that the federal government—either under this President and Congress or future ones—will maintain Obamacare’s extra Medicaid funding. States simply can’t afford additional Medicaid spending, as it is already unsustainable and crowding out other state budget priorities such as education and transportation.

While 18 states have announced that they plan to expand Medicaid, immense uncertainty remains even in those states. When New Mexico Governor Susana Martinez (R) announced that her state would expand, she used the same breath to cast doubt on the federal government’s commitment to full funding:

I want all of us to remember, Medicaid expansion is a federal government promise. Unfortunately, we know that out-of-control federal spending can create uncertainty for these kinds of programs. If the federal government breaks its promise and begins to cut their reimbursement rate, we will be forced to scale back this expansion.

“Such skepticism is warranted,” Owcharenko says. “Washington has rung up a $16 trillion debt and is running more than $1 trillion in the red annually, even without any of the costs associated with the health-care law. Where will it get the money to make good on this promise? And will future administrations honor this promise, no matter what?”

If New Mexico’s faith in the federal government proves to be the wrong bet, Martinez’s pledge to roll back an existing entitlement would be quite tricky, and it would undoubtedly face opposition from this Administration.

The bottom line is that this is a highly uncertain environment, and states need to be very cautious before putting their taxpayers and other budget priorities at risk.

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Low-Income Black Youth Are More Likely To Consume Calories From Sugary Drinks

Black youth are nearly twice as likely as their white counterparts to take in large quantities of their daily calories from sugary drinks, according to a new study examining American beverage consumption. Low-income children of all racial backgrounds also tend to drink almost twice as many sugary beverages as wealthier Americans do.

Considering the fact that sugar-filled drinks have been conclusively linked to an increased risk for obesity, the study’s results reveal some of the racial and economic disparities within the nation’s obesity epidemic. “Some groups may be more at risk for soda, others may be more at risk for fruit drinks, all of which … have the same sugar base that contributes to obesity and disease,” one of the study’s co-authors, health policy researcher Lisa Powell, explained.

This particular study didn’t try to figure out why that’s the case, although Powell did suggest to Reuters that “cultural norms” and cost could both be factors. But other studies have examined the links between race, class, and nutrition — and research has confirmed that access to healthy food is divided along racial and socioeconomic lines. Even aside from cost barriers, lower-income Americans tend to live in neighborhoods that lack healthy, high-quality food in nearby grocery stores, and they often struggle to access the transportation they need to go grocery shopping. The fast food industry also contributes to nutrition disparities by targeting its marketing to low-income communities.

It’s not clear whether the soda industry is also disproportionately targeting low-income or minority groups, but it wouldn’t be the first beverage sector to try. Alcohol advertising has been proven to particularly target black youth, even despite the fact that African-American teens tend to drink less alcohol than youths from other racial groups.

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Biden tells US Conference of Mayors that it is time to act on gun control

Vice President Biden’s address to nearly 300 of the country’s mayors on Thursday couldn’t have come at a better time for the administration’s push to rally public support for its proposals on reducing gun violence.

Biden, headlining the winter meeting of the U.S. Conference of Mayors (USCM) at the Capital Hilton in Washington, D.C., spoke of the Newtown, Conn., massacre as the clarion call for the administration’s proposals.

“Newtown ... affected the public psyche in a way I’ve never seen before,” Biden said. “The image of first-graders not just shot but riddled with bullets ... we have an obligation to respond intelligently to that crisis.”

Biden, who headed a task force that presented its recommendations to President Obama this week, said gun violence had become so regular in the country that small acts of violence didn’t shock the public anymore, a “coarsening” that he called “defining deviancy down.”

“We can no longer afford to define deviancy down,” he said. “We can’t wait any longer to take action. The time has come.”

The White House has support from many of the nation's big city mayors, including New York City Mayor Michael Bloomberg (I), and USCM President and Philadelphia Mayor Michael Nutter (D), both of whom have been vocal proponents of firearms restrictions.

Nutter opened the USCM meeting, and the room quieted as he recounted the high-profile mass shootings of the past decade, beginning with Columbine and moving on through Virginia Tech, Tucson and Aurora.

“But then Dec. 14,” Nutter said. “A tragedy in Newtown that even after all the others we still cannot imagine ... a terrible unforgivable moment in American history. We cannot get those lives back ... we can and we must act to help protect the lives of those in the future.

"This has nothing to do with taking guns away from those who lawfully own them," he said. "We respect the Second Amendment ... but the right to own a firearm should not interfere with my right to live.”

That line stirred the room to loud applause.

In the immediate aftermath of Newtown, the USCM sent an open letter to Obama and Biden urging immediate action on gun reform.

On Wednesday, Obama and Biden, flanked by children they said wrote to the White House about gun safety, unveiled 23 executive actions the president signed into law. Those measures include efforts to improve existing background checks and gun safety, and even encourage doctors to ask patients about guns in their homes.

Obama also pressed lawmakers to quickly implement universal background checks on all firearm purchasers and restore the federal ban on military-style assault weapons and a limit on the size of ammunition magazines.

“Clearly the President listened to our call,” the USCM said in a statement. “We applaud him for issuing executive actions to reduce gun violence. And we applaud him for calling for critically needed legislation and urge Congress 'to do the right thing' and institute universal background checks, a ban on assault weapons and high capacity magazines, and strengthening penalties for gun trafficking.”

Biden’s speech was the latest salvo in a high-stakes fight, as the White House looks to publicly pressure Congress to act on Obama’s demand for new gun-ownership restrictions.

Obama has sought to rally public support in past battles over taxes and spending, and is leveraging his high approval rating and recent opinion polls that show public support for tighter gun restrictions in an effort to pressure Congress to take action.

On Thursday, Obama wrote an op-ed for the Connecticut Post — based in Bridgeport, just 20 miles from Newtown — urging lawmakers to “act soon” on his recommendations.

Also on Thursday, the White House sent a letter signed by Biden to its public email list looking to rally support for the president’s proposals.

The email directs supporters to the White House’s new multimedia website on preventing gun violence. The site heading reads “Now is the time to do something,” and features videos of Obama speaking about gun reform and pictures of him visiting young victims in the hospital.

Congressional Republicans and the nation’s pro-gun-rights groups, most notably the National Rifle Association (NRA), have said they will oppose Obama’s actions and proposals on guns, accusing him of seeking to gut the Second Amendment with policies that will do little to make the public safer.

Biden on Thursday said the administration’s proposed reforms would comply with the Second Amendment, while acknowledging it was a difficult federal issue to tackle because of different gun cultures in different states. The vice president said his home state of Delaware had a much bigger gun culture than most realized, primarily for duck hunting.

Gun-rights activists say criminals won’t abide by the new laws Congress imposes, so the laws will only affect law-abiding gun owners. They also argue that the legislation Obama is trying to get from Congress has been proven ineffective in the past.

The NRA has vowed “the fight of the century” in opposing Obama’s proposed initiatives.

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ObamaCare's Health-Insurance Sticker Shock

Health-insurance premiums have been rising—and consumers will experience another series of price shocks later this year when some see their premiums skyrocket thanks to the Affordable Care Act, aka ObamaCare.

The reason: The congressional Democrats who crafted the legislation ignored virtually every actuarial principle governing rational insurance pricing. Premiums will soon reflect that disregard—indeed, premiums are already reflecting it.

Central to ObamaCare are requirements that health insurers (1) accept everyone who applies (guaranteed issue), (2) cannot charge more based on serious medical conditions (modified community rating), and (3) include numerous coverage mandates that force insurance to pay for many often uncovered medical conditions.

Guaranteed issue incentivizes people to forgo buying a policy until they get sick and need coverage (and then drop the policy after they get well). While ObamaCare imposes a financial penalty—or is it a tax?—to discourage people from gaming the system, it is too low to be a real disincentive. The result will be insurance pools that are smaller and sicker, and therefore more expensive.

How do we know these requirements will have such a negative impact on premiums? Eight states—New Jersey, New York, Maine, New Hampshire, Washington, Kentucky, Vermont and Massachusetts—enacted guaranteed issue and community rating in the mid-1990s and wrecked their individual (i.e., non-group) health-insurance markets. Premiums increased so much that Kentucky largely repealed its law in 2000 and some of the other states eventually modified their community-rating provisions.

States won't experience equal increases in their premiums under ObamaCare. Ironically, citizens in states that have acted responsibly over the years by adhering to standard actuarial principles and limiting the (often politically motivated) mandates will see the biggest increases, because their premiums have typically been the lowest.

Many actuaries, such as those in the international consulting firm Oliver Wyman, are now predicting an average increase of roughly 50% in premiums for some in the individual market for the same coverage. But that is an average. Large employer groups will be less affected, at least initially, because the law grandfathers in employers that self-insure. Small employers will likely see a significant increase, though not as large as the individual market, which will be the hardest hit.

We compared the average premiums in states that already have ObamaCare-like provisions in their laws and found that consumers in New Jersey, New York and Vermont already pay well over twice what citizens in many other states pay. Consumers in Maine and Massachusetts aren't far behind. Those states will likely see a small increase.

By contrast, Arizona, Arkansas, Georgia, Idaho, Iowa, Kentucky, Missouri, Ohio, Oklahoma, Tennessee, Utah, Wyoming and Virginia will likely see the largest increases—somewhere between 65% and 100%. Another 18 states, including Texas and Michigan, could see their rates rise between 35% and 65%.

While ObamaCare won't take full effect until 2014, health-insurance premiums in the individual market are already rising, and not just because of routine increases in medical costs. Insurers are adjusting premiums now in anticipation of the guaranteed-issue and community-rating mandates starting next year. There are newly imposed mandates, such as the coverage for children up to age 26, and what qualifies as coverage is much more comprehensive and expensive. Consolidation in the hospital system has been accelerated by ObamaCare and its push for Accountable Care Organizations. This means insurers must negotiate in a less competitive hospital market.

Although President Obama repeatedly claimed that health-insurance premiums for a family would be $2,500 lower by the end of his first term, they are actually about $3,000 higher—a spread of about $5,500 per family.

Health insurers have been understandably reluctant to discuss the coming price hikes that are driven by the Affordable Care Act. Mark Bertolini, CEO of Aetna, the country's third-largest health insurer, broke the silence on Dec. 12. "We're going to see some markets go up by as much as 100%," he told the company's annual investor conference in New York City.

Insurers know that the Obama administration will denounce the premium increases as the result of greedy health insurers, greedy doctors, greedy somebody. The Department of Health and Human Services will likely begin to threaten, arm-twist or investigate health insurers in an effort to force them into keeping their premiums more in line with Democratic promises—just as HHS bureaucrats have already started doing when insurers want premium increases larger than 10%.

And that may work for a while. It certainly has in Massachusetts, where politicians, including then-Gov. Mitt Romney, made all the same cost-lowering promises about the state's 2006 prequel to ObamaCare that have yet to come true.

But unlike the federal government, health insurers can't run perpetual deficits. Something will have to give, which will likely open the door to making health insurance a public utility completely regulated by the government, or the left's real goal: a single-payer system.

Mr. Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Mr. Litow is a retired actuary and past chairman of the Social Insurance Public Finance Section of the Society of Actuaries.

A version of this article appeared January 14, 2013, on page A15 in the U.S. edition of The Wall Street Journal, with the headline: ObamaCare's Health-Insurance Sticker Shock.

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What The Consumer Protection Bureau’s New Mortgage Rules Will And Won’t Do

The Consumer Financial Protection Bureau rolled out new rules today to clean up the mortgage servicing industry, which has been at the root of several scandals, including the use of the now-infamous “robo-signers.” The new rules will provide important protections for homeowners, no longer leaving them subject to the most pernicious mortgage servicing practices. Here’s what the rules will do:

– End dual tracking. This practice involves banks starting foreclosure proceedings on a homeowner at the same time that the homeowner is being evaluated for a mortgage modification. The end result is many homeowners lose their homes when they think they are receiving a modification. Under the rule, “Servicers cannot start a foreclosure proceeding if a borrower has already submitted a complete application for a loan modification or other alternative to foreclosure, and that application is still pending review.”

– Force balance transparency. The new rules call for clearer monthly mortgage statements and more advance warnings of changes like interest rate hikes. Servicers must also “promptly” credit payments that homeowners make.

– Limit “forced place” insurance. “Forced place” insurance is the insurance that lenders purchase on behalf of borrowers if they think there has been a lapse in coverage. The policies are often far more expensive than standard home insurance, and servicers receive a cut of the payments. Abuse of forced place insurance became a big industry during and after the buildup of the housing bubble: “From 2006 to 2011, direct earned premiums for lender-placed insurance more than tripled, to $3.1 billion from $954 million.” As the New York Times noted, “the cost [of forced place insurance] more or less ensures foreclosure for a household on the brink; it can also hurt a borrower’s chances for a loan modification.” Under the new rules, servicers must warn borrowers that a forced place purchase will occur and “If servicers buy the insurance but receive evidence that it was not needed, they must terminate it within fifteen days and refund the premiums.”

However, the new rules do not create a single point of contact for borrowers (who often get the runaround at banks by being passed off between different bank employees). The California Homeowner’s Bill of Rights includes a mandatory point of contact, as does a new bill Minnesota Democrats are trying to enact. The rules will not be implemented for another year, leading one housing advocate to say that the CFPB is just “providing mortgage servicers advance notice to do their dirty work.”

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Meet The NRA-Backed Senate Democrats Who Oppose Obama’s Gun Violence Prevention Plan

On Wednesday, President Obama unveiled a comprehensive plan to reform American gun laws and take action against the 32,000 firearm-inflicted deaths per year in the United States. His proposals ranged from stricter, universal background checks to more funding for police officers to expanding access to mental health care.

Yet a group of Senate Democrats, all of them highly rated by the National Rifle Association, are refusing to say if they support the President’s reform package. Below is a list of the Senators in question, how they’re rated by the NRA, and what they’ve said about gun law reform:

1. Max Baucus, Montana (NRA Rating: A+). Baucus appeared to oppose any federal action on gun law reform, saying in a statement that “Before passing new laws, we need a thoughtful debate that respects responsible, law-abiding gun owners in Montana instead of a one-size-fits all directives from Washington.”

2. Heidi Heitkamp, North Dakota (NRA Rating: A). In a local television appearance before President Obama’s announcement, Heitkamp accused the White House of having ulterior motives besides preventing mass killing, claiming “There isn’t any amount of gun regulation or gun executive orders that will solve the problem of identifying people who could potentially do this and making sure they get the help and their families get the help so they don’ t do this. I’ve said it all along that this is wrong headed…I think it is an agenda driven by something other than school shootings.”

3. Tim Johnson, South Dakota (NRA Rating: A). Like Baucus, Johnson argued against federal solutions: “We in South Dakota have far fewer problems with guns than they do in New York or New Jersey and it makes common sense to not have one size fits all.”

4. Joe Donnelly, Indiana (NRA Rating: A). Donnelly simply said that “I am a strong supporter of the Second Amendment,” pointed to his NRA endorsement, and rejected the assault weapons ban plan of Obama’s proposal.

5. Mark Begich, Alaska (NRA Rating: A). Begich cited his support for mental health legislation, but demurred on gun restrictions, saying “there is no quick fix when it comes to keeping our families and communities safe. We must make smart investments to increase our safety while ensuring Americans’ Second Amendment rights are protected.”

6. Joe Manchin, West Virginia (NRA Rating: A). Manchin blamed a “culture of mass violence” rather than the spread of deadly weapons, wishing the president had created a “national commission [to] build the consensus we need for real action backed not only by gun control advocates, mental health experts and entertainment industry executives but also by law-abiding gun owners who fully understand the history and heritage of firearms in America.”

7. Jon Tester, Montana (NRA Rating: A-). Tester refused to take a position, saying “As Congress considers ways to address gun violence, we must look at all aspects of this issue. Our priority must be keeping all Americans–especially our kids–safe. I will look closely at all proposals on the table, but we must use common sense and respect our Constitution.”

8. Harry Reid, Nevada (NRA Rating: B). Reid, like Tester, wouldn’t say one way or another: “I thank the President’s task force for its thoughtful recommendations. I am committed to ensuring that the Senate will consider legislation that addresses gun violence and other aspects of violence in our society early this year. The tragedy at Sandy Hook was just the latest sad reminder that we are not doing enough to protect our citizens – especially our children – from gun violence and a culture of violence, and all options should be on the table moving forward.”

Fortunately, however, several Democratic Senators with high ratings have realized the gun lobby’s power is vastly overstated. Mark Warner of Virginia, who has a flat A rating, said several of the Obama proposals had “bipartisan support” and that “President Obama has laid out a comprehensive, far-reaching proposal to address the issues of gun violence and public safety. The Sandy Hook shootings compel all of us to think anew about these issues, and I believe the status quo is not acceptable.” Bob Casey (PA) and Martin Heinrich (NM), who are rated B+, supported some of the strong gun regulations in the Obama package.

An earlier version of this post attributed a statement from Rep. Don Young (R-AK) to Sen. Mark Begich (D-AK). The post has been updated to accurately reflect Sen. Begich’s remarks. We regret the error.

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Twitter has 100 percent participation by new Senate

By Alicia M. Cohn - 01/17/13 04:16 PM ET

All 100 members of the 113th Senate now have a presence on Twitter, counting both unofficial and official accounts.

Sen. Roy Blunt (R-Mo.) announced in a tweet Thursday that every GOP Senator is now on Twitter thanks to the addition of a long-standing holdout, Sen. Jim Risch (R-Idaho), who joined Thursday as @SenatorRisch with a tweet opposing “increased gun control.”

Excited to welcome my friend & colleague @senatorrisch to #Twitter today. Every GOP Senator has a presence on Twitter.

— Senator Roy Blunt (@RoyBlunt) January 17, 2013

Blunt’s count includes accounts that are both official and unofficial (personal accounts that senators continue to use in office unaffiliated to their official Senate pages or campaign sites).

Counting that way, 100 percent of the Senate is now using Twitter.

At least three freshman Democratic senators — Sens. Tammy Baldwin (Wis.), Martin Heinrich (N.M.) and Heidi Heitkamp (N.D.) — have yet to set up a new Twitter account to suit their new office, but still have a campaign presence with varying degrees of activity.

Blunt also welcomed several new Republican senators to Twitter in a second tweet on Thursday.

RT @senate_gops Newest members of the Senate Republican conference: @sentedcruz @senatorfischer @senatortimscott @jeffflake. Follow & RT

— Senator Roy Blunt (@RoyBlunt) January 17, 2013

The House and Senate leadership have stepped up to promote the accounts of new members. Creating official Twitter accounts for use by their congressional office has become one of the many necessary steps new members take during their first few weeks after taking office.

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Santarus rises on drug approval and 2013 outlook

NEW YORK -- Shares of Santarus Inc. climbed Tuesday after the company received marketing approval for a new drug and issued a strong sales outlook for 2013.

THE SPARK: The company said Monday that the Food and Drug Administration approved its drug Uceris, which is intended to put symptoms of ulcerative colitis, an inflammatory bowel disease, into remission. Santarus plans to launch the drug in March.

THE BIG PICTURE: The company said it should meet or surpass its previous guidance in 2012, and its revenue outlook for 2013 was better than analysts had expected.

The San Diego company had forecast net income of $12 million to $14 million and $210 million in revenue for 2012. FactSet says analysts had projected net income of $14.2 million, or 20 cents per share, and $209.3 million in revenue.

In 2013 Santarus expects net income of $50 million to $54 million and revenue of $320 million to $325 million. Analysts had expected income of $54 million, or 76 cents per share, and $301.3 million in revenue on average.

Santarus also makes the acid reflux drug Zegerid. It is not currently marketing Zegerid, but is getting ready to resume sales because of a favorable court ruling regarding the patents on the drug.

THE ANALYSIS: Santarus should have a good year in 2013, said Roth Capital Markets analyst Scott Henry, who has a "Buy" rating on the company's shares. He said Uceris was a key drug for the company, and was optimistic about Santarus bringing Zegerid back to market and filing for marketing approval of a new drug.

SHARE ACTION: Santarus stock rose $1.26, or 11 percent, to $12.54 in late afternoon trading. The shares are up more than 80 percent since the end of August and have nearly tripled in value of the last 12 months.

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Will Hawaii Be The Next State To Legalize Marijuana?

In the wake of laws in Washington and Colorado to legalize small amounts of marijuana and regulate it like alcohol, a new poll shows that 57 percent of Hawaiians favor a similar law. This is a 20 percent jump from the last time a poll was conducted in 2005. A whopping 69 percent think jail time for marijuana is inappropriate, and 78 percent support a medical marijuana dispensary system to bolster the state’s medical marijuana law. Arrests for mere possession of marijuana have increased 50 percent since 2004, and disproportionately affect people of native Hawaiian descent.

An accompanying study on the budgetary implications of passing such a law found that decriminalizing marijuana would save state and county governments $5 million per year, and that legalizing and regulating the industry would save another $5 million, in addition to generating $4 million to $20 million in new revenue. Of course, Hawaii would probably not be alone in taking up a measure to legalize marijuana. Oregon and California have already held referenda on the question, and drug policy advocates are eyeing a number of other states where political will has strengthened since November, several of which have already decriminalized possession.

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Texas Attorney General Invites New York Gun Owners To Move To Texas

On Tuesday, New York became the first state to pass gun legislation in response to the massacre at Sandy Hook Elementary School in December. The measures include bans on assault weapons and magazines that hold more than 7 bullets, and a requirement that gun owners in homes with mentally ill people must properly lock up their firearms.

Though these new laws are immensely popular among New York voters, Texas attorney general Greg Abbott (R) has extended an open invitation to any New Yorkers who feel threatened by the new gun violence protection measure. Abbott launched an Internet ad campaign targeting New Yorkers shortly after Gov. Andrew Cuomo (D-NY) signed the law.

The provocative web ads, paid for with Abbott campaign funds, will appear as a pop-up on screens on a variety of media web sites, including that of The New York Times, for those accessing the sites in Manhattan and Albany.

“Is Gov. Cuomo looking to take your guns? Sick of the media outing law abiding gun owns? Are you a lawful NY gun owner seeking lower taxes?” reads one of two pop-up ads.

A second reads: “Wanted: Law abiding New York gun owns looking for lower taxes and greater opportunity.”

Click on either and you are directed to a Facebook second amendment petition page with the greeting: “You’ll fit right in here in Texas!”

The Facebook page boasts that New Yorkers who move to Texas will be able “to keep more of what you earn and use some of that extra money to buy more ammo.”

Abbott’s campaign may not attract many New York defectors. A new poll found that 73 percent of New York voters supported the ban on assault weapons and high-capacity magazines. A full 91 percent support stricter penalties on purchasing illegal guns or using guns on school property. Even New York’s Republican state senators supported the new laws, passing it by a margin of 43 to 18.

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Huffington: Three Big Media Trends of 2013

 Highlight transcript below to create clipTranscript:  Print  |  Email Go  Click text to jump within videoThu 17 Jan 13 | 07:44 AM ET "Stress is one of the main reasons for why health care costs have been rising," said Arianna Huffington, Huffington Post founder, discussing how business are beginning to realize that stress reduction is actually a performance enhancement tool. Also, a look at how new technology is changing the face of media.

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Presidential Memorandum -- Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System

The White House

Office of the Press Secretary

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System

Since it became operational in 1998, the National Instant Criminal Background Check System (NICS) has been an essential tool in the effort to ensure that individuals who are prohibited under Federal or State law from possessing firearms do not acquire them from Federal Firearms Licensees (FFLs). The ability of the NICS to determine quickly and effectively whether an individual is prohibited from possessing or receiving a firearm depends on the completeness and accuracy of the information made available to it by Federal, State, and tribal authorities.

The NICS Improvement Amendments Act of 2007 (NIAA) (Public Law 110-180) was a bipartisan effort to strengthen the NICS by increasing the quantity and quality of relevant records from Federal, State, and tribal authorities accessible by the system. Among its requirements, the NIAA mandated that executive departments and agencies (agencies) provide relevant information, including criminal history records, certain adjudications related to the mental health of a person, and other information, to databases accessible by the NICS. Much progress has been made to identify information generated by agencies that is relevant to determining whether a person is prohibited from receiving or possessing firearms, but more must be done. Greater participation by agencies in identifying records they possess that are relevant to determining whether an individual is prohibited from possessing a firearm and a regularized process for submitting those records to the NICS will strengthen the accuracy and efficiency of the NICS, increasing public safety by keeping guns out of the hands of persons who cannot lawfully possess them.

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. Improving the Availability of Records to the NICS. (a) Within 45 days of the date of this memorandum, and consistent with the process described in section 3 of this memorandum, the Department of Justice (DOJ) shall issue guidance to agencies regarding the identification and sharing of relevant Federal records and their submission to the NICS.

(b) Within 60 days of issuance of guidance pursuant to subsection (a) of this section, agencies shall submit a report to DOJ advising whether they possess relevant records, as set forth in the guidance, and setting forth an implementation plan for making information in those records available to the NICS, consistent with applicable law.

(c) In accordance with the authority and responsibility provided to the Attorney General by the Brady Handgun Violence Prevention Act (Public Law 103-159), as amended, the Attorney General, consistent with the process described in section 3 of this memorandum, shall resolve any disputes concerning whether agency records are relevant and should be made available to the NICS.

(d) To the extent they possess relevant records, as set forth in the guidance issued pursuant to subsection (a) of this section, agencies shall prioritize making those records available to the NICS on a regular and ongoing basis.

Sec. 2. Measuring Progress. (a) By October 1, 2013, and annually thereafter, agencies that possess relevant records shall submit a report to the President through the Attorney General describing:

(i) the relevant records possessed by the agency that can be shared with the NICS consistent with applicable law;

(ii) the number of those records submitted to databases accessible by the NICS during each reporting period;

(iii) the efforts made to increase the percentage of relevant records possessed by the agency that are submitted to databases accessible by the NICS;

(iv) any obstacles to increasing the percentage of records that are submitted to databases accessible by the NICS;

(v) for agencies that make qualifying adjudications related to the mental health of a person, the measures put in place to provide notice and programs for relief from disabilities as required under the NIAA;

(vi) the measures put in place to correct, modify, or remove records accessible by the NICS when the basis under which the record was made available no longer applies; and

(vii) additional steps that will be taken within 1 year of the report to improve the processes by which records are identified, made accessible, and corrected, modified, or removed.

(b) If an agency certifies in its annual report that it has made available to the NICS its relevant records that can be shared consistent with applicable law, and describes its plan to make new records available to the NICS and to update, modify, or remove existing records electronically no less often than quarterly as required by the NIAA, such agency will not be required to submit further annual reports. Instead, the agency will be required to submit an annual certification to DOJ, attesting that the agency continues to submit relevant records and has corrected, modified, or removed appropriate records.

Sec. 3. NICS Consultation and Coordination Working Group. To ensure adequate agency input in the guidance required by section 1(a) of this memorandum, subsequent decisions about whether an agency possesses relevant records, and determinations concerning whether relevant records should be provided to the NICS, there is established a NICS Consultation and Coordination Working Group (Working Group), to be chaired by the Attorney General or his designee.

(a) Membership. In addition to the Chair, the Working Group shall consist of representatives of the following agencies:

(i) the Department of Defense;

(ii) the Department of Health and Human Services;

(iii) the Department of Transportation;

(iv) the Department of Veterans Affairs;

(v) the Department of Homeland Security;

(vi) the Social Security Administration;

(vii) the Office of Personnel Management;

(viii) the Office of Management and Budget; and

(ix) such other agencies or offices as the Chair may designate.

(b) Functions. The Working Group shall convene regularly and as needed to allow for consultation and coordination between DOJ and agencies affected by the Attorney General's implementation of the NIAA, including with respect to the guidance required by section 1(a) of this memorandum, subsequent decisions about whether an agency possesses relevant records, and determinations concerning whether relevant records should be provided to the NICS. The Working Group may also consider, as appropriate:

(i) developing means and methods for identifying agency records deemed relevant by DOJ's guidance;

(ii) addressing obstacles faced by agencies in making their relevant records available to the NICS;

(iii) implementing notice and relief from disabilities programs; and

(iv) ensuring means to correct, modify, or remove records when the basis under which the record was made available no longer applies.

(c) Reporting. The Working Group will review the annual reports required by section 2(a) of this memorandum, and member agencies may append to the reports any material they deem appropriate, including an identification of any agency best practices that may be of assistance to States in supplying records to the NICS.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) Independent agencies are strongly encouraged to comply with the requirements of this memorandum.

Sec. 5. Publication. The Attorney General is hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA

Watch Hinna, Taejah, Julia and Grant read the letters they wrote to President Obama, asking him to do something about gun violence.

Editorial pages across the country today are lauding the President’s broad approach to address curbing gun violence in our nation

Learn more about the new Health Insurance Marketplace, which will kick in come October and mark the beginning of new health insurance and tax credits for millions of Americans.

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Carney: Te'o girlfriend hoax story 'fascinating'

White House press secretary Jay Carney said Thursday that he found "fascinating" a Deadspin report revealing Notre Dame star linebacker Manti Te'o's girlfriend to be a hoax, but had not discussed the story with the president.

Carney said he had read the report Wednesday night, but had not mentioned it to Obama in the interim.

"I thought it was a very interesting story," Carney said.

The story, published Wednesday, shook the world of college football and quickly exploded into the national consciousness.

Multiple news outlets had reported during the football season the seemingly tragic story of T'eo's girlfriend, Lennay Kekua, dying of leukemia just hours after his grandmother passed away. But Deadspin reported they could find no record of the girlfriend having existed, and that biographical details — including her death, involvement in a car crash and enrollment at Stanford University — did not check out.

The website also reported that images of Kekua were actually those of a different woman.

Notre Dame athletic director Jack Swarbrick said in a news conference Wednesday that it appeared T'eo was the victim of an elaborate hoax by someone using a fictitious name.

"On the morning of Dec. 26, very early morning, Manti called his coaches to inform them that while he was in attendance at the ESPN awards show in Orlando, he received a phone call from a number he recognized as having been that he associated with Lennay Kekua," Swarbrick said. "When he answered it, it was a person whose voice sounded like the same person he had talked to, who told him that she was, in fact, not dead. Manti was very unnerved by that, as you might imagine."

Swarbrick said that Notre Dame had hired an independent investigative firm and, upon the conclusion of that investigation, stood by T'eo and his story.

"I want to stress, as someone who has probably been as engaged in this as anyone in the past couple of weeks, that nothing about what I have learned has shaken my faith in Manti Te'o one iota," Swarbrick said.

In a statement Wednesday, T'eo called the incident "incredibly embarrassing."

"Over an extended period of time, I developed an emotional relationship with a woman I met online. We maintained what I thought to be an authentic relationship by communicating frequently online and on the phone, and I grew to care deeply about her," T'eo said. "To realize that I was the victim of what was apparently someone's sick joke and constant lies was, and is, painful and humiliating."

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GOP-Controlled Virginia House Committee Kills Voting Rights Restoration Proposals

Convicted felons in must petition to the governor for voting rights clemency

The Virginia House of Delegates subcommittee with jurisdiction over constitutional amendments killed a series of proposals Monday that would have restored the civil rights of persons convicted of a felony who have completed their sentences. This move come days after Gov. Bob McDonnell (R-VA) endorsed changing the Virginia constitution to automatically allow non-violent felons to regain their voting rights after serving their time.

Virginia is one of a handful of states that prohibits all citizens convicted of felonies from voting, even after they serve their terms, unless they are granted clemency by the governor. A series of proposals by Democrats and Republican members of the Virginia House of Delegates were rejected, en mass, by the Constitutional Amendments Subcommittee of the House Privileges and Elections Committee. The subcommittee’s four Republicans unanimously voted to kill all of the proposals, Democrats Algie Howell (D) and Johnny Joannou (D) were the only votes in favor of any of the measures.

Both McDonnell’s Secretary of the Commonwealth Janet Vestal Kelly and Attorney General Ken Cuccinelli II (R) attended the hearing to speak in support automatic restorations. Had any of the bills passed through the Virginia General Assembly this year and again next year, it would have gone to a statewide referendum.

Deputy House Majority Leader C. Todd Gilbert (R), a former prosecutor who does not sit on the committee, told the Richmond Times-Dispatch that he opposed automatic restoration because felons already get off too easy. “These are not people we ask of much … All we ask them is to show a little personal responsibility and fill out a simple application [for rights restoration].” Far from just simple procedural act, applying for clemency is no guarantee that whoever is governor will grant the clemency request.

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FDA clears study of Neuralstem spinal cord therapy

  Published: Monday, 14 Jan 2013 | 4:34 PM ET

NEW YORK -- Adult stem cell developer Neuralstem Inc. said Monday the Food and Drug Administration approved the company's plan for a small, early-stage study of its treatment for spinal cord injury.

The company plans to enroll up to eight patients with a type of spinal cord injury that causes complete paralysis.

All patients in the study will receive six injections of stem cells, followed by physical therapy and drugs to prevent the body from rejecting the stem cells.

Neuralstem is studying several therapeutic uses of adult stem cells. The company completed phase I testing of a treatment for Lou Gehrig's disease in August.

Shares of Neuralstem Inc. rose 5 cents, or 4 percent, to close at $1.29.

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NEW YORK-- Adult stem cell developer Neuralstem Inc. said Monday the Food and Drug Administration approved the company's plan for a small, early-stage study of its treatment for spinal cord injury. Neuralstem is studying several therapeutic uses of adult stem cells. Shares of Neuralstem Inc. rose 5 cents, or 4 percent, to close at $1.29.

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First Lady and Wal-Mart team up for veterans initiative

A spokeswoman for Michelle Obama said Tuesday the First Lady would work with Walmart on an initiative to employ veterans, after the company announced a pledge to offer a job to any honorably discharged veteran in his or her first 12 months off active duty.

"The First Lady’s team was very excited and pleased by Walmart’s new national commitment to employ America’s veterans and immediately expressed an interest in working with Walmart and the entire business community to build upon and expand this commitment," Obama's deputy communications director Semonti Stephens said in an email. "In the next several weeks the White House will convene Walmart and other major American employers to discuss Walmart’s plan and encourage other businesses to make similar significant veterans employment commitments to train and employ America’s returning heroes."

Walmart has estimated it could hire more than 100,00 veterans over the next five year in stores, clubs, distribution centers and its home office.

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Possible HIV exposure at Buffalo VA hospital

BUFFALO, N.Y. -- More than 700 patients at the Buffalo Veterans Administration Center may have been exposed to HIV, hepatitis B or hepatitis C because of accidental reuse of insulin pens, according to a hospital statement and published reports.

Authorities told The Buffalo News there is a "very small risk" for the diabetic patients who may have been exposed to the reused insulin pens between Oct. 19, 2010 and November 2012. The VA memo obtained by the News said the problem was discovered by a routine pharmacy inspection last Nov. 1. The News first published the report on its website Friday.

The VA also notified western New York members of Congress of the possible exposure.

In a statement to The Associated Press, VA spokeswoman Evangeline Conley said the hospital "recently discovered that in some cases, insulin pens were not labeled for individual patients." She added that "although the pen needles were always changed, an insulin pen may have been used on more than one patient."

Conley said that once this was discovered the hospital took "immediate action" to ensure the insulin pens were being used according to pharmaceutical guidelines.

Insulin pens used by diabetics to inject insulin can be disposable or reusable with replaceable needles and cartridges. But according to the Institute for Safe Medication Practices, even reusable pens should not be used on more than one patient.

After seeing the VA's memo, Rep. Chris Collins, a Republican who represents the Buffalo area, said he spoke with Dr. Robert A. Petzel, undersecretary for health at the Department of Veterans Affairs.

"His thought was that it's a very, very low chance of passing infection," Collins said. "But it's not out of the realm of possibility, and that's why they're testing everyone," Collins told the News.

Collins said that even with a fresh needle, contamination could have occurred if bodily fluid flowed back into the insulin pens.

The VA said it is offering free blood tests to rule out any infections.

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Firearms Training CEO, Who Threatened To ‘Start Killing People’ Over Gun Debate, Loses Gun Permit

Tactical Response CEO James Yeager

James Yeager, CEO of Tennessee-based Tactical Response, delivered a frightening rant last week on YouTube, declaring that gun owners “load your damn mags” and “get ready to fight,” because if gun violence prevention “goes one inch further, I’m going to start killing people.” His followup video was not any better: Yeager clarified he does not “condone anyone committing any kind of felonies, up to and including aggravated assaults and murders, unless it’s necessary. Right now, it’s not necessary.” There was no retraction.

As a result, Yeager has had his handgun permit suspended because of “material likelihood of risk of harm to the public.” Tennessee Department of Saftey and Homeland Security Commissioner Bill Gibbons said, “Mr. Yeager’s comments were irresponsible, dangerous, and deserved our immediate attention. Due to our concern, as well as that of law enforcement, his handgun permit was suspended immediately.”

HT: Raw Story

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Drug Pipelines Begin to Fill For Big Pharma

BioMarin's CEO On Its Product Pipeline The iShare Biotech ETF is up 32 percent over the past year. Jean-Jacques Bienaime, BioMarin Pharmaceutical CEO, discusses the reason behind his company behind up 24.9 percent in the last 3 months.

Big U.S. pharma stocks are up about 5 percent so far this year. Biotechs, meanwhile, are up nearly 6 percent and have risen 17 percent over the past six months.

Jean-Jacques Bienaime, BioMarin Pharmaceutical's CEO, told CNBC his company has five products in clinical trials, which is large for a company its size.

BioMarin is most excited about a treatment for Morquio syndrome, or MPS IV, an enzyme deficiency that can lead to skeletal dysplasia, short stature, and joint abnormalities.

"It has the potential of doubling the revenues of the company and bringing it to about a billion dollars of revenues in the future," Bienaime said of the treatment. He expects to file for approval with the Food and Drug Administration by the end of the quarter and with European authorities by the end of April.

"There's a good chance to get approval this year," he added.

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Readout of the President's Meeting with Saudi Minister of Interior Prince Mohammed bin Nayef

Readout of the President's Meeting with Saudi Minister of Interior Prince Mohammed bin Nayef | The White House Skip to main content | Skip to footer site map The White House. President Barack Obama Get Email UpdatesContact Us Go to homepage. The White House Blog Photos & Videos Photo Galleries Video Performances Live Streams Podcasts 2012: A Year in Photos

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Office of the Press Secretary

For Immediate Release January 14, 2013 Readout of the President's Meeting with Saudi Minister of Interior Prince Mohammed bin Nayef

Today, President Obama met with Saudi Arabia’s Minister of Interior, Prince Mohammed bin Nayef bin Abdulaziz Al-Saud, in the Oval Office.  They affirmed the strong partnership between the United States and Saudi Arabia, and discussed security and regional issues of mutual interest.  The President congratulated Prince Mohammed bin Nayef on his appointment to Minister of Interior and asked him to convey his best wishes to King Abdullah bin Abd Al-Aziz Al Saud.

Blog posts on this issue January 14, 2013 3:30 PM ESTPresident Obama Holds the Final Press Conference of His First Term

Before taking questions from the assembled journalists, the President took a moment to reflect on the past four years, and look ahead to his agenda for the next term, which includes new jobs, new opportunity, and new security for the middle class

January 12, 2013 5:30 AM ESTWeekly Address: Ending the War in Afghanistan and Rebuilding America

President Obama talks about the bipartisan agreement that Congress reached this week which prevented a middle-class tax hike, congratulates the newly sworn-in members of Congress, and looks forward to working with the new Congress in the new year to continue to grow our economy and shrink our deficits in a balanced way.

January 11, 2013 4:50 PM ESTPresident Obama Hosts President Karzai

We'll soon reach a milestone in Afghanistan -- when Afghan forces take full responsibility for their nation's security and the war draws to a close.

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First Lady and Wal-Mart team up for veterans initiative

A spokeswoman for Michelle Obama said Tuesday the First Lady would work with Walmart on an initiative to employ veterans, after the company announced a pledge to offer a job to any honorably discharged veteran in his or her first 12 months off active duty.

"The First Lady’s team was very excited and pleased by Walmart’s new national commitment to employ America’s veterans and immediately expressed an interest in working with Walmart and the entire business community to build upon and expand this commitment," Obama's deputy communications director Semonti Stephens said in an email. "In the next several weeks the White House will convene Walmart and other major American employers to discuss Walmart’s plan and encourage other businesses to make similar significant veterans employment commitments to train and employ America’s returning heroes."

Walmart has estimated it could hire more than 100,00 veterans over the next five year in stores, clubs, distribution centers and its home office.

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Chaffetz: Obama trying 'to scare people' over debt limit

Rep. Jason Chaffetz (R-Utah) late Monday accused President Obama of trying to frighten Americans with ramped-up rhetoric about the costs of not raising the debt ceiling.

“The president does an exceptional job of scaring America,” Chaffetz said on Fox News Channel’s “On The Record With Greta van Susteren.” “He wants to use the military paychecks to try to scare people, ‘We’re going to hurt the elderly’ — you don’t have to do that.”

At a press conference on Monday, Obama warned that if Congress doesn’t raise the debt ceiling, Social Security checks might not go out and troops overseas might not be paid. He also said investors would lose confidence in the economy and markets could crash.

“Investors around the world will ask if the United States of America is, in fact, a safe bet,” he said. “Markets could go haywire; interest rates could spike.”

Obama’s warnings come as the White House and Republicans prepare for a new fight over raising the nation’s borrowing limit.

The president is pushing for a clean debt-limit hike, while the GOP sees an opportunity to use the threat of default to force Obama to agree to spending cuts and entitlement reform.

The U.S. suffered its first-ever credit downgrade after the last debt-ceiling showdown in 2011. Treasury Secretary Geithner warned congressional leaders Monday that the U.S. could default as early as mid-February.

But Chaffetz downplayed the importance of raising the debt ceiling, saying the Treasury could prioritize payments for Social Security and the military, while withholding payments on items that wouldn’t spook the markets.

“There are lots of things to do; the president has lots of discretion to curb back that spending to make sure that Social Security payments are paid, interest is paid, we don’t default on our debts,” Chaffetz said. “The president was terribly irresponsible today, to say he’s not even going to talk about it because he’s above it, blame Congress — look, in part Congress helped create this problem, but now we’re going to solve this problem.”

Many Senate Democrats have called on Obama to unilaterally raise the debt ceiling, bypassing Congress.

Chaffetz said such a move would provoke a “constitutional crisis.”

“You can only do this as authorized by law, and law is only created by the United States Congress,” Chaffetz said. “He has no ground to stand on.”

On that count, Obama appears to agree; on Monday, he likewise dismissed the idea that the White House could do anything on its own.

“I understand the impulse to try to get around this in a simple way, but there’s one way to get around this,” he said. “And that is for Congress to authorize me to pay for those items of spending that they have already authorized.”

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Chelsea Clinton to headline Inaugural service event

Chelsea Clinton will headline the first event of President Obama’s Inaugural weekend, the Presidential Inaugural Committee (PIC) announced Tuesday.

Clinton will be the honorary chairwoman of the 2013 National Day of Service on Saturday, in a weekend full of events leading up to Obama’s second swearing-in ceremony on Monday.

“We are thrilled that Chelsea Clinton will play such a critical role in mobilizing Americans across the country to take part in the National Day of Service,” PIC President and CEO Steve Kerrigan said in a statement. “Through her work with the Clinton Foundation and her recent efforts to help communities impacted by Hurricane Sandy, Chelsea sets a remarkable example for serving and strengthening our country. As honorary chair, she will be instrumental in helping lead the president’s call to service and growing this important tradition.”

The summit will take place on the National Mall. The president and first family and Vice President Biden and his family will also be on hand.

“There is no more fitting way to mark a presidential inauguration than a day of service,” Clinton said in a statement. “Coming together as a country to strengthen our communities has always been part of the American spirit. I am deeply grateful that President Obama and his administration have put service at the center of the inauguration weekend and I am proud to be part of a nationwide service effort, honoring the service and legacy of Rev. Dr. Martin Luther King Jr. and building a brighter future for all of us.”

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Statement by the Press Secretary on the Debt Limit

Statement by the Press Secretary on the Debt Limit | The White House Skip to main content | Skip to footer site map The White House. President Barack Obama Get Email UpdatesContact Us Go to homepage. The White House Blog Photos & Videos Photo Galleries Video Performances Live Streams Podcasts 2012: A Year in Photos

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Browse White House visitor logs

Issues Civil Rights It Gets Better Defense End of Iraq War Disabilities Economy Jobs Reform and Fiscal Responsibility Strengthening the Middle Class A Plan for Refinancing Support for Business Education Energy & Environment Ethics Foreign Policy Health Care Homeland Security Immigration Taxes Tax Receipt The Buffett Rule Rural Urban Policy Veterans Joining Forces Technology Seniors & Social Security Service Snapshots Creating Jobs Health Care Small Business PreK-12 Education Women Americans Spoke Out

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President Barack Obama Vice President Joe Biden First Lady Michelle Obama Dr. Jill Biden The Cabinet 2010 Video Reports White House Staff Chief of Staff Jack Lew Deputy Chief of Staff Nancy-Ann DeParle Deputy Chief of Staff Alyssa Mastromonaco Counselor to the President Peter Rouse Senior Advisor Valerie Jarrett Executive Office of the President Other Advisory Boards About the White House White House On the Go

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Our Government The Executive Branch The Legislative Branch The Judicial Branch The Constitution Federal Agencies & Commissions Elections & Voting State & Local Government Resources E-Gov Strategies and Guides E-Gov Circulars E-Gov Memoranda /* Maximize height of menu features. */if(typeof(jQuery)!='undefined')jQuery.each($('#topnav'),function(i,v){var o=$(v),oh=o.height(),sh=o.siblings().height();if(oh Home • Briefing Room • Statements & Releases   The White House

Office of the Press Secretary

For Immediate Release January 12, 2013 Statement by the Press Secretary on the Debt Limit

“There are only two options to deal with the debt limit: Congress can pay its bills or it can fail to act and put the nation into default. When Congressional Republicans played politics with this issue last time, putting us at the edge of default, it was a blow to our economic recovery, causing our nation’s credit rating to be downgraded. The President and the American people won’t tolerate Congressional Republicans holding the American economy hostage again simply so they can force disastrous cuts to Medicare and other programs the middle class depend on while protecting the wealthy. Congress needs to do its job.”

Blog posts on this issue January 14, 2013 3:30 PM ESTPresident Obama Holds the Final Press Conference of His First Term

Before taking questions from the assembled journalists, the President took a moment to reflect on the past four years, and look ahead to his agenda for the next term, which includes new jobs, new opportunity, and new security for the middle class

January 12, 2013 5:30 AM ESTWeekly Address: Ending the War in Afghanistan and Rebuilding America

President Obama talks about the bipartisan agreement that Congress reached this week which prevented a middle-class tax hike, congratulates the newly sworn-in members of Congress, and looks forward to working with the new Congress in the new year to continue to grow our economy and shrink our deficits in a balanced way.

January 11, 2013 4:50 PM ESTPresident Obama Hosts President Karzai

We'll soon reach a milestone in Afghanistan -- when Afghan forces take full responsibility for their nation's security and the war draws to a close.

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Supreme Court Reconsiders Allowing Judges To Increase Sentences Without Jury Approval

Among the major contributors to the U.S. incarceration epidemic are harsh schemes for sentencing, and some of the most disproportionate sentences come about as a result of statutorily mandated minimum sentences.

Just last week, a former medical marijuana distributor who declined to plead guilty was sentenced to a ten-year minimum prison sentence by a federal judge who said, “the court’s hands are tied.”

But for some defendants, being sentenced to the mandatory minimum prison term for the crime of which they are convicted is just the tip of the iceberg. Judges may also use their discretion to add additional time up to a maximum allowable sentence. A case before the U.S. Supreme Court today considers the scope of that discretion when judges decide unilaterally that the defendant committed acts other than that for which they were convicted.

Allen Alleyne was convicted for robbing a convenience store owner as he drove to make a bank deposit. The jury found Alleyne guilty of both having committed the robbery, and having used or carried a firearm. They acquitted him, however, of brandishing a firearm during the crime.

Nonetheless, in sentencing Alleyne, the judge independently found that Alleyne should have known his accomplice would brandish a firearm during the robbery – a finding that added two additional years to Alleyne’s  sentence above the mandatory minimum of five years. Unlike a jury, which is tasked with finding guilt “beyond a reasonable doubt,” the judge made this finding under the much lower standard of “preponderance of the evidence.”

It is easy to view Alleyne and his accomplice as serious criminals who may very well deserve to serve either a five or a seven-year sentence. But allowing a judge the discretion impinges on a criminal defendant’s constitutional right to a trial by jury. The U.S. Supreme Court has already ruled that a judge cannot use this discretion to increase a defendant’s sentence above the maximum allowable sentence. And a similar rationale prompted a controversial but landscape-changing decision to limit the enforceability of federal sentencing guidelines.

Although the severity of statutory sentencing schemes has led to grossly unjust results, particularly in drug crimes, their purpose was and is to limit the variability and bias that can be introduced by any given judge in imposing a criminal sentence. Letting judges make factual determinations that are the purview of the jury undermines this goal – and allows for the sorts of even longer prison terms that have contributed to our ever-bloated prison population.

Somewhat surprisingly, the U.S. Supreme Court agreed to hear this case on the argument that an earlier high court decision on just this issue was wrongly decided. With four new justices since the 2002 decision and Justice Stephen Breyer on the fence, the Supreme Court now has a second chance to get it right.

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