On Monday evening, the North Carolina Senate sent a bill that would reverse prior legislation making capital punishment virtually impossible to Gov. Bev Perdue’s desk.  Perdue’s office has not yet commented on whether or not she will veto the bill.

Senate Bill 9, “No Discriminatory Purpose in Death Penalty”, would eliminate the use of statistical trends as a means of appealing death sentences for death row inmates – the key provision of the 2009 Racial Justice Act (RJA).

While large majorities of North Carolina voters across the political spectrum are in favor of the death penalty, RJA has placed so many obstacles in prosecutors’ paths that capital punishment has been effectively repealed.  Indeed, all but three of the state’s 157 death row inmates, including non-minority defendants, are awaiting the opportunity to use the law’s new tools to thwart executions.

In short, the Racial Justice Act allows death row inmates to appeal their sentence by attempting to show racial prejudice in sentencing based on statistical evidence. If successful, the inmates can commute their sentence to life in prison.

In 2009, North Carolina became the second state in the union, after Kentucky, to enact such a measure. However, Kentucky’s law was much less onerous to prosecutors, as it did not include the statistical provisions that have bedeviled the state in death penalty prosecutions.

As a result of this law, North Carolina has extended its unofficial moratorium on the death penalty. Forsyth County Assistant District Attorney Mike Silver noted at a November 28 hearing that the law allowed defendants to evade justice. Under the RJA, defendants do not have to prove that they experienced discrimination on the part of the judge, jury, or prosecutors, only that there is a general pattern of racism in death penalty decisions. Silver noted that an RJA appeal he is working on has been delayed by several years, and seemed frustrated over the delaying tactics the law enables.

“It is impossible for the state to comply with this law,” said Silver.

The 44 elected district attorneys in North Carolina agreed, and issued a statement in early November asking for repeal of the RJA.  The statement, written by Johnston County DA Susan Doyle, asked legislators to amend or repeal the law to allow for an effective death penalty.

“The Racial Justice Act (RJA), passed in 2009, purports to protect murderers from racial bias. Let me assure you, it does not,” wrote Doyle.”This act simply allows complex statistical maneuvering to over-rule a jury’s decision, ignore the heinous acts of a murderer and ultimately put an end to the death penalty in our state.”

Doyle estimated the costs of each RJA discovery motion to cost the state at least $30,000 at a time when court budgets are already being cut.

The U.S. Supreme Court ruled in the 1986 case McClesky v. Kemp against requiring general statistical analysis before imposing the death penalty. The case considered whether Georgia’s death penalty violated the 8th and 14th Amendments in the light of a study purporting to show that application of capital punishment was largely tied to race. In his majority opinion, Justice Lewis Powell noted that requiring statistical evidence could undermine the ability of juries and prosecutors to make decisions.

“Implementation of these laws necessarily requires discretionary judgments,” wrote Powell.” Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. “

While the verdict in McClesky struck a blow to anti-death penalty advocates, the statistical case would nevertheless remain  one of the core arguments behind North Carolina’s Racial Justice Act.  The state now requires this extra-constitutional test, despite the Supreme Court’s and all other state’s rejection of this new standard.

Senate Bill 9, as approved by the state’s General Assembly and awaiting Perdue’s signature or veto, would make North Carolina consistent with the McClesky decision and eliminate any race-based statistics and instead allow for appeal based on specific cases of discrimination among jurors or during jury selection.

As citizens, North Carolinians overwhelmingly support the death penalty. Civitas polling shows 64 percent of independents and 70 percent of all likely North Carolina voters in favor of capital punishment for violent offenders. The Racial Justice Act, through its onerous requirements on prosecutors, effectively subverts the will of the people and the decision of the jury by making the death penalty impossible to impose.

It is now up to Gov. Perdue to decide the fate of the Racial Justice Act, and in so doing have a major impact on the future of the death penalty in North Carolina.

The post Time for a Return to an Effective Death Penalty appeared first on Civitas Institute.

“The fundamental premise of the CON law is that increasing health care costs may be controlled by governmental restrictions on the unnecessary duplication of medical facilities.”
-NC Division of Health Service Regulation website.

While the basic economic case against the entire Certificate of Need (CON) process has already been made, supporters of this process often say that healthcare does not, and cannot, exist in a free market. They argue that the healthcare system needs the CON process to prevent hospitals from over expanding and passing these capital costs on to healthcare consumers.

Does CON Actually Control Cost?

The Certificate of Need program’s effectiveness at reducing healthcare expenditures is verifiable; the issue has been studied by healthcare researchers, the federal government, and in analyses of various state level programs. This research suggests that Certificate of Need has been ineffective at best in controlling costs.

The federal government implemented Certificate of Need nationwide in 1974, but abandoned the process in 1987 after concluding that the procedure had done little to nothing to control costs. Congressional testimony concluded the program was a failure[i].

The repeal of nationwide Certificate of Need and subsequent division between states that kept CON and the 14 states that ended it presented a unique opportunity to analyze whether or not the program actually controls costs. Research published by Duke researchers Conover and Sloan in the Journal of Health Politics analyzed the effect of Certificate of Need laws from their early years to their repeal.

Their conclusion?

“Certificate-of-need laws had no effect on total personal health expenditure per capita or on per capita spending on physician’s services.”[ii]

While they found some evidence that CON implementation produced a small decrease in spending on acute care, removing CON laws did not lead to an increase in these areas’ costs.  Indeed, the researchers found that CON laws may have increased Medicare expenditures. Conover and Sloan also found that repealing the Certificate of Need process did not lead to a massive increase in healthcare spending, a specter often invoked by supporters.

In addition, CON has been ineffective at controlling the costs of Medicaid long-term care expenditures, according to a study published by Drs. Grabowski, Ohsfeldt, and Morrisey[iii]. They have concluded that “states have little to fear in terms of increased Medicaid nursing home expenditures from CON repeal.”

These studies are not alone. Washington State studied their own program in 1999 and found that “CON has not controlled overall healthcare spending or hospital costs.”[iv]

Conover and Sloan examined Michigan’s CON program and found “there is little evidence that CON results in a reduction in costs and some evidence to suggest the opposite.”[v]

A National Institute for Healthcare Reform study of healthcare industry views found that even healthcare providers, usually a major backer of CON laws, did not find that it is particularly effective at controlling healthcare costs.

“Some agency officials and—not surprisingly—most providers said that the CON process has a negligible effect on costs. A few respondents noted CON raises the costs of capital projects, given the expense of completing the process.”[vi]

An independent 2007 examination of Illinois’ Certificate of Need process by the Lewin Group reiterated the same uncertainty.

“Based on our review of relevant literature and our independent analysis, it is clear that the evidence on cost containment is weak, but the evidence suggests that the CON process does affect spending patterns in a state. Expecting the CON process to reduce overall expenditures, however, is unrealistic.”[vii]

These studies are only a sampling of the research questioning Certificate of Need.

The original justification of the process, a broken payment system that drove a large number of capital expansions in healthcare, has been altered and will be altered further.  Payment reforms in entitlements have significantly altered the healthcare equation, as has the rise of managed care. Insurance companies have an obvious incentive to keep costs down by negotiating with providers.

In addition, the 2010 healthcare bill and the nation’s fiscal problems have put strong downward pressure on payment rates. Payments to Medicare providers are among the federal expenditures that will be cut if the Congressional Debt Supercommittee deadlocks. Taken together, these payment reforms have removed many of the incentives for healthcare providers to drive costs up through unneeded capital expansion.

Indeed, Certificate of Need may prove to become a burden on healthcare reform efforts by restricting the growth of new facilities to match the demand generated by the newly insured.  With an explosion of new demand, Certificate of Need would presumably raise costs by delaying the needed increase in supply.

Is the system designed to protect consumers or incumbent healthcare providers?

It is clear that Certificate of Need has failed to meaningfully contain costs, the original justification for the program. However, the program has proved nearly impossible to dislodge in the 36 states that have kept the process. Despite a sustained push for repeal by the Department of Justice during the Bush years, no state has abandoned this regulation scheme since 1999, when Indiana ended a two-year resurrection of the program.

It is no coincidence that most vociferous opponents of CON repeal are hospitals and other incumbent healthcare providers. The current system allows them to have a monopoly on certain healthcare services in their area and they benefit enormously from the system.

One hospital industry respondent to a National Institute for Healthcare Reform Study reported “member hospitals initially had mixed views about the benefits of CON but banded together to support the process after realizing it was a valuable tool to block new physician-owned facilities.”[viii]

Innovation and competition are thus stifled in order to continue the profitability of existing healthcare providers. Physicians and multi-physician groups find it harder to open and operating ambulatory surgery centers, freestanding radiology practices, and other facilities that would allow consumers to enjoy healthcare that is potentially both lower-cost and higher-quality.

Non-profit hospitals already enjoy tax exemptions, state-sponsored capital financing, and, in the case of the UNC hospital system, direct subsidies from the state. Certificate of Need was not set up to guarantee every hospital’s perpetual existence, and it should not be used to prevent competition.  If lawmakers wish to ensure indigent access to care, they can legislate requirements for physician-owned facilities to accept a pro-rata share of indigent care, impose taxes, expand Medicaid rolls, or use other means to directly subsidize indigent care losses.

The CON process is a faulty answer to an outdated question.  The program has failed to implement its “fundamental premise” of controlling healthcare costs. North Carolina lawmakers should seriously consider limiting the scope of the process, or eliminating it altogether for most circumstances.

The post Certificate of Need: Does It Actually Control Healthcare Costs? appeared first on Civitas Institute.

The first North Carolina legislative and congressional redistricting maps drawn by Republicans since Reconstruction have passed the General Assembly, and they have been greeted with caterwauling from Democrats claiming they give an unfair advantage to their opponents.

The media has largely allowed Democrats to articulate these complaints without mentioning their party’s long, sordid affair with political gerrymandering – a love that did not end until they realized their party could no longer control the process.

The years 2000 through 2004 were filled with lawsuits and backdoor wheeling and dealing over lines drawn by a Democratic majority.  Those controlling the process ignored complaints from Republicans and even Democratic African American legislators.

2001 presented Democratic lawmakers with an opportunity to wipe out the 7-5 Republican Congressional majority and inroads into the legislature that Republicans had gained. Unlike Republicans in 2011, the legislative leadership didn’t even bother to present their maps as “fair and legal.”

Referring to creation of the 2001 Congressional maps, Scott Famien, then- Executive Chair of the Democratic Party said, “The General Assembly will pass a map that is essentially a 7 Democrat, 5 Republican, and 1 competitive district. That’s one of the benefits of having a majority in the Legislature.”

Of course, Brad Miller, who chaired the redistricting committee in the state Senate, infamously tailored a bizarre, expansive Congressional district that just happened to elect him to Congress. In a Slate.com ranking, four of the most egregious 20 Congressional gerrymanders in the nation were from North Carolina’s 2001 process, including Miller’s new seat.

The state legislative maps created in 2001 were even more troublesome. African American Democrats revolted at the prospect of a map with very few majority-minority districts, endangering the map’s passage in the closely divided House. Democratic Speaker Jim Black told the public that the map was drawn to ensure that Democrats would have control of the body, and that giving African Americans more seats would endanger that majority.

“Every time you change one district, you change the districts around it. Every time you do that, you change the balance of power in the state,” said Black. “I personally believe African-American citizens will be better off with Democratic leaders for the next 10 to 20 years.”

African American Democrat Alma Adams did not agree with Black.

“We’re not going to support anything that reduces African American influence,” said Adams. “In fact, we would like something to increase influence.”

Many of the same voices calling for increased numbers of minority-majority seats in 2001 are now decrying the Republican maps for doing just that.

Because the 2001 Democratic map violated the Whole County Provision of the North Carolina Constitution, the state Supreme Court struck down the legislative maps in the Stephenson decisions. The 2002 election maps were drawn by a judge, but Democrats took the opportunity to redraw the maps in 2003. The process was done with no transparency. Lawmakers were barely able to see their districts before voting on them.

The maps were effective in keeping Democrats in power. Despite winning the statewide popular vote multiple times, Republicans were unable to take control of either house of the General Assembly or the Congressional delegation.

Democrats have always been keenly aware of the advantage redistricting gave them. As late as 2010, Gov. Bev Perdue told Democrats at the annual Jefferson-Jackson dinner how important it was that they hold onto the General Assembly in a redistricting year.

“We must have Democrats redraw those maps,” she said.

Redistricting will always be politicized, especially when lawmakers can influence how their districts are drawn.  It is obvious that Republicans have used this year’s redistricting process for their own advantage, even if they have had increased opportunities for public input.  However, Republicans did not create this process out of thin air; they are simply utilizing a process that has always been used (and abused) by the other side.

Neal Inman is an intern at the Civitas Institute in Raleigh (nccivitas.org)

This op-ed originally appeared in Wake Weekly and the Lincoln Tribune the week of July 24-30, 2011

The post Redistricting Maps: Politicized or Payback? appeared first on Civitas Institute.

Gov. Bev Perdue has declared repeatedly that she wants to be remembered as North Carolina’s “jobs governor”, but the 2011 legislative session has cemented her place in history for a completely different reason: her vetoes. Perdue has vetoed more legislation than every previous governor combined. A governor previously mocked for never seeming to do anything except attend ribbon-cutting ceremonies and other photo ops has become crucial for protecting the North Carolina Left. Her 15 vetoes have shown the governor has a far more liberal tilt than she tries to project to the public.

The first veto of the 2011 session came in late February, as Republicans scrambled to pre-emptively address the anticipated $2 billion budget hole for the 2011-12 fiscal year. The Balanced Budget Act of 2011 used a variety of measures to utilize pots of money to set aside for the coming budget year, including transferring funds away from economic incentive programs. Perdue objected to these transfers and issued the first veto of the year.

Perdue’s next veto related to the intrusive “Patient Protection and Affordable Care Act” (Obamacare). On March 5, Perdue vetoed HB2, the “Healthcare Freedom Act.” The measure would have allowed North Carolina to join the Florida multi-state lawsuit against Obamacare in challenging its constitutionality.  While progressive groups cheered, many stated Perdue’s veto constituted a de facto endorsement of the highly unpopular federal healthcare overhaul. This fact will doubtlessly be used against her during her re-election campaign.

Perdue’s next three vetoes came in the middle of the long session on April 13 and 16. The first veto struck down a reform of the state employee’s health plan, which was quickly reformed and resubmitted to the governor. The second attacked a bill allowing community colleges to opt out of a federal loan program. Community college presidents asked for the legislation in order to curb their fears that their institutions would lose federal money if the default rates on these loans increased.

The third of the trio would foreshadow the budget battle that shook Raleigh two months later. By April, North Carolina had lost its eligibility to receive extended unemployment benefits for many of its unemployed. Republicans quickly passed legislation changing the formula to calculate the unemployment rate, keeping checks flowing to North Carolina’s considerable numbers of jobless citizens. However, a provision in the bill would have enacted a continuing resolution if the budget was not passed by June 30. The continuing resolution would have set spending at 87 percent of the amount contained in Perdue’s budget proposal, until a final budget bill was finalized. Perdue vetoed this legislation over her objection to the continuing resolution.

The unemployment benefits extension fight continued into the budget debate. Perdue later issued an executive order of dubious legality restoring the funds, just as Republicans were about to pass a budget doing the same thing.

North Carolina’s budget was in shambles at the start of the biennium. The economic downturn had cratered tax revenue, federal stimulus dollars had dried up, and the previous General Assembly had used many of the one-time fund transfer and other gimmicks to temporarily paper over budget holes. A temporary sales tax increase was due to expire, and Republicans refused to consider extending the tax they had explicitly campaigned against.

Nevertheless, Perdue presented a budget that retained most of the tax increase. Republicans countered with House and Senate versions of a budget that reduced taxes on small businesses, allowed the sales tax increase to expire, and spent less than the governor’s proposal.

Negotiations with five moderate Democrats produced a compromise budget that preserved Teacher Assistant funding and cut the difference between the governor’s budget and the GOP’s to only $200 million.  The compromise legislation passed by veto proof margins in both the Senate and House.

When liberal groups slammed the proposed budget bill, the governor’s office hinted at her disapproval of the legislation, so it came as little surprise when she issued the state’s first-ever veto of the state budget.

The so-called “Party of Five” moderate Democrats held firm despite enormous pressure from their own party, and soon joined with House and Senate Republicans to counter Perdue’s historic veto with their own history-making event: the first budget veto override.

In the rushed final weeks of the session, Republicans passed reams of legislation, much of it Republican priorities stymied by previous Democratic majorities. By the June 14 session adjournment, Republicans had placed over 200 bills on her desk.  Perdue, while still attacking the budget, declared that she had her veto stamp ready. She had ten days to either sign, ignore, or veto the bills.

Perdue quickly used her stamp on Senate Bill 727, the “No Dues Check Off for School Employees Act”. The act ended the NCAE’s ability to use the state to collect automatic dues from members’ paychecks.

Next, on June 23, came House Bill 351, the “Restore Confidence in Government Act,” which sought to prevent voter fraud by requiring photo ID at the polling place. Despite consistent polling that revealed well over 70 percent of North Carolinians favored the measure, Perdue listened to her liberal allies and vetoed the legislation.

Senate Bill 33, Medical Liability Reforms, which capped non-economic awards in medical liability lawsuits to $500,000, was vetoed on June 24. Perdue claimed to be in favor of malpractice reform, but wanted language expanding exceptions to the cap.

Perdue utilized her stamp twice on June 27. In a move that surprised few, Perdue blocked House Bill 854, the “Woman’s Right to Know Act”, which required women considering abortion to listen to a standard set of information about abortion, view an ultrasound, and then wait 24 hours before making a decision. Perdue claimed the legislation interfered with the doctor-patient relationship (although she apparently had no problem with Obamacare’s many onerous intrusions). Perdue also vetoed House Bill 482, “Water Violations Wavers,” claiming constitutional issues.

Perdue waited until June 30 to issue her verdicts on the remaining 11 bills left on her desk. Four of them did not meet her approval. Senate Bill 496, which altered some provider requirements for the state’s Medicaid program, and Senate Bill 532, which altered unemployment benefit requirements and moved the Employment Security Commission to the Department of Commerce, were vetoed for supposedly violating state and federal laws on eligibility requirements for these programs.

Senate Bill 709, the “Energy Jobs Act,” (the “fracking” bill) was vetoed because the Governor felt it intruded on her executive authority, but she issued executive orders accomplishing many of the legislation’s goals.

The most surprising veto of the day was Senate Bill 781, the “Regulatory Reform Act.” This legislation was a major priority for the North Carolina business community, as it cut back on the regulatory authority of state agencies and made the rulemaking process more transparent. SB 781 had looked destined for the governor’s signature, as she had championed the need for regulatory reform. However, the governor vetoed the bill for moving some authority from state agencies into the Department of Administration.

In her veto messages, Perdue claimed to have supported the goals behind all four pieces of legislation and urged lawmakers to alter the bills. Senate President Pro Tempore Phil Berger (R-Rockingham), however, did not buy Perdue’s explanations stating:

“Not so long ago, Gov. Perdue claimed to champion several of the issues she rejected. An indecisive, politically-desperate politician trying to cater to her base, she now stands squarely with fringe environmental groups and liberal special interests in opposing the job-creating sector of North Carolina’s economy.”

Without the cover of a Democratic majority in the General Assembly, Perdue has had to choose between pleasing her base and adhering to the views of a state that leans towards social and economic conservatism.

Perdue has chosen to veto major pieces of legislation when they threaten her base, such as the budget, abortion legislation, and changes to election laws.  Her vetoes of regulatory reforms, unemployment changes, and other bipartisan legislation, even when prefaced with statements of support for the legislations’ intentions, have aggravated an already rough relationship with Republicans, especially when they view the vetoes as concessions to liberal interest groups.

Gov. Perdue has consistently been ranked as one of the weakest incumbent governors in the nation, with low approval ratings. However, her approval ratings have ticked up recently as more Democrats begin to appreciate her veto power. It remains to be seen if Perdue’s use of the veto stamp will continue to bolster her image on the left without harming the moderate image she needs to win re-election.

The post The Veto Governor appeared first on Civitas Institute.

Republicans had promised to reduce the regulatory burden on small businesses as one of their 10 promises in their “100 Days That Will Change North Carolina” legislative agenda. While several major reforms passed, there is still one significant bill left on the agenda.

What Passed

Commission Begins Regulatory Reform Process

SB 17 created the Joint Commission on Regulatory Reform, which became the primary impetus for several regulatory reform bills. The commission is composed of members of both parties in both legislative chambers, with the stated goal of working “to create a strong environment for private sector job creation by lifting the undue burden imposed by outdated, unnecessary, and vague rules.” The commission’s final report is due in May of 2012.

Cost-Benefit Analysis for New Regulations

SB 22, signed by Gov. Perdue on March 25, tries to force some level of rational decision-making onto regulatory authorities. State bureaucracies are now required to perform cost-benefit analysis to determine the economic impact of proposed rules. This procedure had already been in place for some government agencies since Oct. 2010, when Gov. Perdue issued an executive order mandating cost-benefit analysis for those under her control. The new law applies this process to all state regulatory authorities.

This bill would simply require that before new regulations go into effect, state agencies must take into account the impact these rules would have on individual businesses and North Carolina’s economy as a whole.

“No More Stringent” Law

SB 781, the “Regulatory Reform Act”, ends state agencies’ ability to enact environmental regulation without a state or federal law mandating the regulation’s creation. This restriction on regulatory authority is often called a “No More Stringent Law”. North Carolina had a similar measure for decades. However, in 1991 state environmental agencies gained their authority to create regulations above and beyond what state and federal law required.

As a result of this change, North Carolina now has much stricter regulatory atmosphere than is mandated by federal and state law.  In a statement, Lew Ebert, CEO and President of the North Carolina Chamber of Commerce spoke to the problems caused by ever-growing amounts of state regulation.

“With more than 15,000 rules and regulations created over the past decade – or nearly four a day! – North Carolina businesses have expressed great concern on burdensome, redundant red tape.  For businesses, protecting the health and safety of their employees and the quality of our environment are top priorities.  But too often we find regulations that are unnecessary or go too far.  The regulatory climate is a competitiveness issue – what it costs businesses to comply with new rules, the confusion of frequently changing rules, and state rules that are more stringent than federal rules.  Businesses need predictability and certainty.”

Environmental groups are against the proposed bill, claiming that it will be an erosion of North Carolina’s ability to respond to state-specific concerns. However, the General Assembly is still able to pass any environmental legislation it feels is needed, and state agencies are allowed to respond to emergency situations.

SB 781 passed the General Assembly on June 18, and awaits the Governor’s signature. Despite pressure from environmentalists, there has been no signal that the Governor intends to veto the legislation.

Still to Come?

Streamlining State and Federal Air Quality Regulations

SB 308 removes state regulation of certain types of emissions that are also regulated by federal law.  Current North Carolina air quality standards were created in the early 1990s, before federal rules covered this area.  The bill comes as a response to concern from several industries that the cost of complying with two separate standards is too high.  Although passed by the House, the bill did not make it through the Senate by the session’s end. However, it may be revived in either the redistricting or constitutional amendment special sessions.

GOP: Makes Good on Promises, More

Historic State Budget Battle Focuses on Taxes, Jobs

Legislature Imposes New Hurdles for Involuntary Annexations

Lawmakers Perform Healthcare Reconstructive Surgery

2011 Redistricting is a Process

Session Filled With Steps – And Missteps – to Redirect and Reshape Public Education

Immigration Reform Long Time in Coming, Long Ways to Go

North Carolina’s Attempt at Election Reform

Second Amendment Gets a Fresh Look in 2011 Session

Session Gains Ground on Family Issues

Tort Reform Not Forgotten in Historic Legislative Session

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