Monday, October 5, 2015
Cabrini-Green was a Chicago Housing Authority (CHA) public housing project that became a symbol of the public housing deficiencies, ranging from crime to deplorable living conditions. The last of the buildings were demolished in 2011, leaving only a small set of row houses, built in the 1940s. When CHA failed to fulfill its long-standing commitment to rehabilitate the row houses and add public housing units, the Cabrini-Green Local Advisory Council, represented by LAF Chicago and Sidley Austin, brought a federal lawsuit. LAF Attorney Elizabeth Rosenthal stated the goal was to provide additional public housing in Near North Chicago, a quickly gentrifying neighborhood. The parties reached a settlement that requires the CHA to ensure that at least 176 of the rehabilitated row house units be set aside for low-income tenants. Additionally, the CHA agreed to create 1,800 total low-income units. Under the settlement, the new units must be completed by December 2022.
The Francis Cabrini Row houses at the center of the settlement were originally built in 1942 as a part of the Chicago Housing Authority’s plan for ‘urban renewal.’ The CHA seemed to neglect the housing project for several years and sought to demolish it in the late 1990’s to begin work on their “Plan for Transformation.” The plan required demolishing thousands of units and rehabilitating them for public housing. Roughly 25 percent of the 586 row houses were rehabilitated and all high-rise apartments were demolished. However, all construction ceased in 2011. Influenced by the improving neighborhoods, CHA leaders sought to change the remainder of the site from public housing to mixed income housing. Though the CHA intended to rehabilitate the residual 440 row houses to meet the public housing needs, the houses sat unused for years.
In their 2013 suit, the Cabrini-Green Local Advisory Council argued that hundreds of low-income units would be eliminated if the CHA incorporated mixed-income units into the site. And it would be extremely difficult to replace the units in a comparable neighborhood, the CHA would need to seek more affordable sites, which are typically located in high-poverty and segregated areas of Chicago. The row house residents would continue to be segregated into disenfranchised neighborhoods perpetuating the cycle of deepening poverty in specific communities.
The settlement between the Advisory Counsel and the CHA is an encouraging compromise. The terms of the settlement allow the CHA to build mixed income housing where the row houses currently stand while guaranteeing that a minimum of 40% of the units created by the CHA will be for public housing. In addition, no less than 15% of the units are required be to affordable housing. The 146 row houses that were renovated as part of the Plan for Transformation will continue to be operated as public housing.
This is a landmark victory under the Fair Housing Act that promises to make housing in a racially and economically diverse area accessible for at least 1,800 low-income families and individuals. The importance of this outcome for the future health and well being of those families cannot be overstated.
- Jon Seidel, Judge Oks Deal to Bring More Public Housing to Near North Side, Chicago Sun-Times, Sept. 17, 2015, http://chicago.suntimes.com/news/7/71/968082/cabrini-green-public-housing-settlement.
- Dawn Rhodes, Cabrini-Green Residents, CHA Settle Lawsuit – Adding Public Housing in Area, CHI. TRIB., Sept. 13, 2015, http://www.chicagotribune.com/news/local/breaking/ct-cabrini-green-settlement-met-20150913-story.html.
- The End of Cabrini-Green, TIME, http://content.time.com/time/photogallery/0,29307,2034317,00.html (last visited October 1, 2015).
- Payton Chung, Short History of Cabrini-Green, Westnorth.com, http://westnorth.com/2003/01/02/short-history-of-cabrini-green (last visited October 1, 2015).
- Richard Florida, The U.S. Cities Where the Poor are Most Segregated From Everyone Else, The Atlantic City Lab, March 24, 2014, http://www.citylab.com/housing/2014/03/us-cities-where-poor-are-most-segregated/8655/.
Friday, October 2, 2015
A flurry of lethal activity this week, with more to come next week.
Early Wednesday morning, September 30, Georgia executed Kelly Gissendaner, who was sentenced to death for recruiting Gregory Owen, a man with whom she was romantically involved, to murder her husband. She was the first woman executed in Georgia in 70 years. Owen—the man who actually committed the murder (and made a deal with prosecutors)—will be eligible for parole in 8 years. As reported by a witness to the execution, Gissendaner, who graduated from a theology program in prison, was “very, very emotional. . . . She was crying and then she was sobbing and then broke into [Amazing Grace] as well as into a number of apologies . . . . When she was not singing, she was praying.”
Also on Wednesday, Oklahoma’s governor granted a 37-day reprieve to Richard Glossip, who was scheduled to be executed that day for allegedly hiring another man, Justin Sneed, to murder his boss. Sneed, the man who committed the murder, avoided the death penalty by making a deal with prosecutors. Glossip maintains his innocence and claims he has new evidence to prove it. On Friday, October 2, the Oklahoma Court of Criminal Appeals issued indefinite stays of execution for Richard Glossip and several others after the Oklahoma Department of Corrections revealed that it had received the wrong lethal injection drug. From the Associated Press: “Just hours before Glossip was set to die [on Wednesday], prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. . . . Oklahoma's execution protocols were overhauled after last year’s botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.”
As discussed in a prior post, Glossip’s case resulted in a decision by the U.S. Supreme Court this summer upholding the constitutionality of Oklahoma’s drug protocol procedure and prompted a sweeping dissent by Justices Breyer and Ginsburg, who questioned the constitutionality of the death penalty.
On Thursday, October 1, Virginia executed a Latino man, Alfredo Prieto, despite concerns that he may have an intellectual disability—and before the U.S. Supreme Court had a chance to decide whether to grant a stay on his challenge to Virginia's execution drugs.
Next Tuesday, Missouri plans to execute an African-American man, Kimber Edwards, who—like Gissendaner and Glossip—was sentenced to death while the person who actually committed the murder was spared.
Also next Tuesday, Texas plans to execute a Latino man, Juan Garcia, for a murder-robbery committed when he was 18.
And next Wednesday, Oklahoma plans to execute Benjamin Cole, a man believed to suffer from schizophrenia and brain damage.
Oklahoma, Missouri, Texas, and Florida (and, I suppose, Georgia and Virginia)—these are the states that are defining “decency” for the rest of the country under the Supreme Court’s Eighth Amendment jurisprudence. But for how long?
For more, see the Washington Post article here.
Thursday, September 24, 2015
With historic levels of income inequality on the mind of many Americans these days, some politicians are wondering what sort of steps they might take to close the wage gap. Short of actually mandating salary reductions, an increasingly common proposal is to increase wage transparencies, so that we might better understand inequities -- between the pay of men and women, CEOs and rank and file workers, or managers and lower-level workers in the public sector. (As in this recent article by Cynthia Estlund.)
But what effects do such moves to increase transparency have on wages? This is the question that Princeton economist Alexandre Mas asks in a working paper that looks at the effects of a 2010 mandate requiring the disclosure of city managers' salaries in California. (A recent version of the paper is available here, via Harvard's Multidisciplinary Program on Inequality and Social Policy.)
What Mas found suggests a potential tension between increased transparency and good (or at least experienced) urban governance. After city managers' salaries were made public, compensation did tend to decrease, by about seven percent on average. In cities with higher initial compensation, the wage cuts tended to be larger. But cuts did not tend to be higher in cities where compensation had been out of line with fundamentals - in general, Mas notes, "wage cuts were not the result of the discovery of managers who exploited secrecy to inflate their wages."
Yet even as transparency failed to create accountability by cutting the wages of city managers whose pay was out of line with their city's performance, it had a significant effect on the ability of cities to retain managers. Mas finds that the transparency policy was associated with a 75 percent rise in voluntary separations of managers. He concludes that "a potential drawback to transparency policies in the public sector is that wages fall to the point that cities cannot retain incumbent managers." Rather than increasing accountability or decreasing inequality, then, the effect of making city managers' wages more transparent might in fact be to simply increase their turnover.
Wednesday, September 23, 2015
For the first time, the U.S. Department of Housing and Urban Development is asking public and private agencies that receive federal homelessness grants to describe how their efforts help combat the criminalization of homelessness.
The program allots $1.9 billion in grants for fiscal year 2015.
According to the National Law Center on Homelessness & Poverty, this new question on the grant application is worth two points, and could make the difference between receiving and not receiving a grant, since the process is highly competitive.
HUD's efforts to eliminate laws that unfairly target people who experience homelessness is a positive move in light of an increasing number and severity of laws that essentially punish visibly poor people for existing in public, even when they have no reasonable alternative but to do so. HUD's stance supports the rejection of the criminalization of homelessness by using evidence of anti-criminalization efforts as one of the criteria HUD will use to determine funding it allocates to cities' continuums of care programs.
In light of HUD's position and a recent DOJ Statement of Interest filed in a federal district court case, cities should take note that anti-homeless laws faced increasing federal scrutiny.
Friday, September 18, 2015
The Census Bureau issued a new annual report on poverty and income in the U.S., finding that the number of poor Americans has remained steady from 2013 to 2014. This financial stagnation is occurring despite some signs of economic growth; accordingly, some experts say this stagnation could be "fueling political dissent this campaign season." The Census pegged the nation’s official 2014 poverty rate at 14.8 percent; translated this percentage means at least 46.7 million Americans struggled with poverty last year.
On the bright side, the Census reported that the percentage of Americans without health insurance coverage declined (dropping from 41.8 million in 2013 to 33.0 million uninsured).
From our friends at the State Innovation Exchange: This week, business school professors from 88 universities signed a letter to Congress in support of paid leave. You can read the reflections of Harvard Business School Professor Stew Friedman, one of the letter's signatories, here on why paid leave is not just good for workers and their families, but also businesses and the economy.
Friday, September 11, 2015
On June 23, 2012, Lakisha Briggs was again cornered by her abusive ex-boyfriend in fear for her safety, and the safety of her three-year-old daughter. Unlike previous occasions Lakisha was faced with the appalling choice of calling the police or being evicted from her rental home. That evening her ex-boyfriend broke an ashtray against her head, then using the broken glass he stabbed her in the neck until she passed out. Hearing the disturbance, a neighbor called the police and Lakisha was flown by trauma helicopter to a nearby hospital. Despite the severity of the assault, Lakisha’s fear of eviction overpowered her and she did not call the police leaving her helpless to endure the wrath of her attacker.
These fears and concerns are national, with a less drastic yet similar situation occurring recently in Arizona. Both Lakisha and the victim in Arizona were placed in these situations due local nuisance ordinances. The past decade has seen a rise in these ordinances and Crime Free Multi-Housing programs across the nation. They have been adopted by 48 states and around 2,00 cities across the country. Under the ordinance a building will be labeled a nuisance if a specified number of calls are made to the police within a set amount of time, such as three months. The laws are intended to prevent crime by activating individuals who are in a position to influence the environment where the acts are occurring. In Illinois, landlords can evict tenants from their homes if the tenant contacts the police an excessive number of times. The ACLU notes that these ordinances do not distinguish between victims or perpetrators of the crime, which has a disproportionate effect on victims of domestic violence.
The risk of eviction is yet another factor to add on top of the troubling and frightening situation that is domestic violence. According to the Illinois Coalition Against Domestic Violence 17,000 adults and over 2,000 children served by their shelters in 2014 were from rental housing. However, Illinois domestic violence victims do have hope thanks to Senator Toi Hutchinson. The Senator introduced Senate Bill 1547 in February that was aimed at preventing the creation and enforcement of laws that punish both tenants and landlords if the police are contacted for “domestic or sexual violence, criminal activity, or other emergency situations.”
As of November 19, 2015 these individuals will be protected under Public Act 099-0441. Since February Senator Hutchinson’s bill has passed through the Senate, the House, and the hands of the governor to be approved as a public act on August 21, 2015. Though the act was amended three times, the overall purpose remained intact. Under the Act it is prohibited for a city to enact or enforce regulations, which would punish tenants or landlords for contacting the police about actual or threats of domestic or sexual violence. The act also empowers a tenant or landlord who may have been wronged by noncompliant laws to bring a civil action for compensatory damages, an injunction, and other appropriate relief. This victory for Illinois is a shining example for the rest of the nation. As other states begin to protect instead of punish victims of abuse the shadow of domestic violence will finally start to recede.
1. Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E. D. Pa. filed April 24, 2013) available at https://www.aclu.org/files/assets/norristown_complaint.pdf
2. Jessica M. Pieklo, Advocates: Domestic Violence Survivors Dace Housing Instability Under Arizona Housing Ordinance, RH Reality Check (August 31, 2015), http://rhrealitycheck.org/article/2015/08/31/advocates-domestic-violence-survivors-face-housing-instability-arizona-housing-ordinance/
3. The International Crime Free Association hosts a national conference and twelve- hour train the trainer program. Crime Free Multi-Housing, INTERNATIONAL CRIME FREE ASSOCIATION, http://www.crime-free-association.org/multi-housing.htm (last visited September 5, 2015).
4. Mathew Desmond, Eviction and the Reproduction of Urban Poverty, 118 AM. J. SOC. 88, 91 (2012), available at http://scholar.harvard.edu/files/mdesmond/files/desmond.evictionpoverty.ajs2012.pdf
5. New Legislation Introduced to Prevent Illinois Crime Victims From Being Evicted Under Local Ordinances, ACLU (February 23, 2015), available at http://www.aclu-il.org/new-legislation-introduced-to-prevent-illinois-crime-victims-from-being-evicted-under-local-ordinances
6. Phil Kadner, Victims of Crime Hurt By Crime-Free Laws, CHI. TRIB. (February 26, 2015), http://www.chicagotribune.com/suburbs/daily-southtown/opinion/ct-sta-kadner-tenants-st-0227-20150226-column.html.
7. New Legislation Introduced to Prevent Illinois Crime Victims From Being Evicted Under Local Ordinances, ACLU (February 23, 2015), available at http://www.aclu-il.org/new-legislation-introduced-to-prevent-illinois-crime-victims-from-being-evicted-under-local-ordinances
8. Public Act 099-044, available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0441
9. Status of SB1547, 99th General Assembly, (2015), http://www.ilga.gov/legislation/billstatus.asp?DocNum=1547&GAID=13&GA=99&DocTypeID=SB&LegID=88215&SessionID=88&SpecSess=
Wednesday, September 9, 2015
Last week, Health Justice Project clinic students participated in a court watch at Chicago’s eviction court. In some instances, the students provided support to unrepresented defendants. One student, Amanda Plowman, reflected on that experience:
On Tuesday morning, I traveled to the intimidating Daley Center for a court observation. I met two women there. The couple had received a notice of eviction from their landlord and hoped to request additional time to find an attorney. I provided moral support, which, I was surprised to learn, made a substantial difference to the couple. As we navigated the crowded courtroom, the couple expressed how stressful, foreign, and terrifying the situation was for them. One of the women showed me how badly her hands were shaking in anticipation of coming before the court. I didn’t blame her.
The courtroom was packed with people. Every now and then one of the landlord attorneys would stand in front of the wooden gate facing the self-represented litigants with a stack of filed in their hands and yell out a tenant’s name. If someone answered, the attorney would walk with them outside and try to negotiate (or bully a tenant into) a plea of guilty. The attorneys were calm while the self-represented litigants fidgeted nervously in their seats waiting for the judge to arrive. When the judge did arrive each case was argued and over within a matter of minutes if not less. I was astonished that such an important decision- whether a tenant was to become homeless or not- was made in the blink of an eye. Unfortunately, this experience isn’t unique.
A study of eviction court conducted in 2002 by the Lawyers’ Committee for Better Housing, Inc. (LCBH) and Chicago-Kent College of Law concluded that tenants were at a disadvantage, as evidenced by the court’s failure to require the landlord to establish their prima facie case for eviction. For example, landlords must meet due process requirements when providing notice of an eviction. Judges only examined the notice in 65% of the cases.
The odds are also stacked against tenants. The majority of tenants do not know their rights. Even if they do have a valid habitability defense, they are unaware of the steps to properly address these issues such as notifying their landlord, or other procedures that could have sustained the viability of their defenses. Despite having a valid defense, the research shows in only 27% of the cases did judges ask if the tenant had a defense. If the tenant did raise a defense they would not have known how to present it in a legally cognizable way or how to properly establish the grounds for their defense. Both elements would need to occur within 1 minute and 44 seconds, which the study found was the average length of an eviction hearing. To complete the picture, even though 55% of tenants brought forth a valid defense to the judge, all of them were evicted from their homes.
In addition, the majority of tenants are self-represented which also puts them at a disadvantage. Low-income parties are typically self-represented since they have difficulty obtaining legal counsel not only due to the high cost, but also due to the lack of legal services for free or low cost assistance. A New York Times opinion article by Matthew Desmond notes, that 90% of tenants across the nation appear in eviction court without an attorney. Where as 90% of landlords are represented by an attorney. The situation seems obviously in favor of the landlord since representation makes a dramatic impact in the outcome for an eviction case. In a pilot project that took place in Quincy, Massachusetts eviction courts provided free legal representation to low income tenants. Two-thirds of the fully represented tenants were able to remain in their homes, where only one-third of the self-represented tenants obtained a similar result. As compared to the self-represented tenants, the represented tenants received approximately five times more financial benefit from claims such as damages or revocation of rent that was past due.
Similarly, the LCBH study also included quantifiable information about the difference legal counsel makes in an eviction proceeding. Overall, the average length of a hearing was 1 minute and 44 seconds. If the landlord was represented by an attorney and the tenant was not, the average length of a hearing decreased to 1 minute and 38 seconds. If the tenant was represented by an attorney and the landlord was not, the average length of a hearing was over twice as long, increasing to 3 minutes and 22 seconds. By the numbers alone, having an attorney makes a substantial difference in leveling the playing field in eviction courts.
The couple I was with was able to advocate for themselves and did receive additional time to find an attorney to represent them. They are now one step closer to defending themselves against a system that is skewed against the tenant. Thankfully, there are organizations that do assist tenants with eviction claims. Whether it be educating the self represented on their rights, or providing low cost or even free legal aid, associations such as Lawyers’ Committee for Better Housing and Illinois Legal Aid are working to even the playing field. Chicago – like most cities - has a long way to go to rectify the imbalance in eviction court but with help from these groups tenants have a fighting chance to keep a roof over their heads.
- LAWYERS’ COMMITTEE FOR BETTER HOUSING, NO TIME FOR JUSTICE: A STUDY OF CHICAGO’S EVICTION COURT (2003), available at http://lcbh.org/sites/default/files/resources/2003-lcbh-chicago-eviction- court-study.pdf
- The Justice Gap: Corporate Lawyers are Making Record Revenues, But Legal Aid is in Crisis, HUFFINGTON POST (Jul. 7, 2015), available at http://www.huffingtonpost.com/susan-beck/legal-aid-funding_b_7744964.html.
- Mathew Desmond, Tipping the Scales in Housing Court, N.Y. TIMES (Jun. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/tipping-the-scales-in-housing-court.html.
- Boston Bar Association Task Force, The Importance of Representation in Eviction Cases and Homelessness Prevention 2 (2012), available at http://www.bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf.
Saturday, September 5, 2015
The death penalty is in retreat. Three recent legal developments have shaken the foundations of modern death penalty jurisprudence, established over forty years ago.
On June 29, 2015, in Glossip v. Gross, Justice Breyer, joined by Justice Ginsburg, argued in dissent that it is “highly likely that the death penalty violates the Eighth Amendment,” and gave a number of reasons to support his tentative conclusion, including innocence, arbitrariness, delay, and disuse.
Six weeks later, the Connecticut Supreme Court handed down a sweeping decision in State v. Santiago, which ruled Connecticut’s 400-year-old death penalty cruel and unusual in violation of the state’s constitution, citing many of the same reasons as Justice Breyer. Yesterday evening, Connecticut prosecutors filed a motion to reargue the merits of the Connecticut Supreme Court’s death penalty decision in Santiago.
This past Monday, August 31, 2015, a three-judge panel of the Ninth Circuit heard argument in Jones v. Davis, the case in which the U.S. District Court for the Central District of California declared California’s imposition of the death penalty “arbitrary” and without legitimate penological purpose in violation of the Eighth Amendment based on the extraordinary delay between sentencing and execution in California.
This is precisely the conversation we ought to be having over the death penalty. Does it kill innocent people? Is it hopelessly arbitrary and even downright racist? Has the death penalty fallen into such disuse—where life waiting for death, not death itself, is the penalty—that we need to take it off life-support?
Time will tell. When these important questions come before the U.S. Supreme Court, we should remember well the words of Justice Anthony Kennedy in Hall v. Florida last year: “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” What Nation do we aspire to be? That turns out to be the most important question of all, and I think Justice Kennedy knows the answer. I hope it’s the right one.
Monday, August 17, 2015
In public housing, energy costs amount to about 40% more per square foot than in private or market rate housing. While differences in occupant behavior may account for some of this disparity, a large portion has been attributed to energy-efficient building construction and maintenance, or in this case lack thereof. Many public housing units were built as inexpensively as possible, resulting in higher long-term operating costs. Issues such as drafty windows, insufficient insulation, older and more energy-guzzling appliances and even wiring issues can stretch renters' already strained budgets with high utility bills.
There are similar findings when comparing the rental market with owner-occupied units. Rented multifamily units show utility costs which are 37% higher per square foot than in multifamily housing that is owner-occupied such as condos or coops. Rental units are less likely to have energy-saving measures such as florescent bulbs, low-flow shower heads and adequate central heating and cooling systems. As a result, low-income households are 25% more likely to use space heaters to supplement or sometimes entirely supply heat and are 50% more likely to use window air conditioning units.
In the private housing market, there are incentives for owners and landlords. Home owners who pay their own utilities will see direct saving from updates such as energy-efficient windows, new appliances, or better insulation. For landlords who require tenants to pay their own utilities, there is little incentive to invest in greater efficiency and pass on lower utility costs to renters. It remains a paradox that those who have the least to spend on housing often end up with much higher utility costs, and the “affordable” rental stock is often coupled with deeply unaffordable utilities. It behooves policy makers and affordable housing advocates to invest in equitable energy efficiency policies and programs to address this deep divide.
Thursday, August 13, 2015
On Tuesday, July 28, 2015 Governor Rauner signed a bill that will award an additional 40,000 working households, about 100,000 individuals, access to the nutritious foods through the Supplemental Nutrition Assistance Program (SNAP). Senate Bill 1847, led by Senator Daniel Biss (D), will increase the SNAP monthly maximum gross income limit requirement from 130% of the federal poverty level (FPL) to 165% of FLP effective January 1, 2016. The federal poverty level is the minimum amount of gross income that a family needs for food, clothes, transportation, shelter and other necessities determined by the Department of Health and Human Services. The original 130% FPL level is the lowest required federal poverty limit allowed by federal law for SNAP. By increasing the federal poverty level for SNAP, Illinois is now including struggling individuals and families earning just above the monthly income limit as eligible SNAP households. Although individuals will still need to meet the maximum net income test to qualify for SNAP, increasing the gross maximum income limit will allow families, who have high expenses and qualify for childcare and medical deductions, to have more income for food.
Currently, the poverty level for an individual household in Illinois is $11,770 annually. To put this in perspective, 135% over the FPL is $15,301 and this would qualify a household of one to receive SNAP benefits. Under the new legislation, an individual who makes $19,420.50, or 165% of the federal poverty level, will now qualify for food assistance. Qualified households, households that include an elderly or disabled individual, will be eligible for SNAP at 200% of the federal poverty level.
Over 90% of increases in eligibility for benefits will go to households with a worker and 80% will go to households that include children. The Sargent Shriver National Center on Poverty Law predicts the new law will have a fiscal impact of $1 million to the state. Since SNAP is completely federally funded, the increase will add $60 million in federal dollars for Illinois that will get recirculated into the economy. As the cost of living rises and wages stagnate, this new legislation will provide much needed assistance to Illinois’ rising working poor population.
States have the ability to set the maximum gross income limit for programs such as SNAP. Ohio, Florida, Texas and Nebraska have kept the maximum gross income limit at 130% of FPL while states such as Connecticut, Florida, and California have raised the maximum gross income limits to 185%, 200% and 200% of FPL respectively. Increasing the maximum gross income limit for SNAP in all states allows vulnerable Americans access to healthy foods that they would not otherwise be able to afford.
Read more about Senate Bill 1847 and how it will increase the number of Illinoisans who will have access to healthy foods here.
Friday, August 7, 2015
From the New York Times, an interesting Voting Rights Act decision out of the Fifth Circuit:
“A federal appeals panel ruled Wednesday that a strict voter identification law in Texas discriminated against blacks and Hispanics and violated the Voting Rights Act of 1965 — a decision that election experts called an important step toward defining the reach of the landmark law. . . While the federal act still bans laws that suppress minority voting, it has been uncertain exactly what kinds of measures cross the legal line since [the Supreme Court’s ruling in Shelby County v. Holder (2013)]. The Texas ID law is one of the strictest of its kind in the country. It requires voters to bring a government-issued photo ID to the polls. Accepted forms of identification include a driver’s license, a United States passport, a concealed-handgun license and an election identification certificate issued by the State Department of Public Safety.”
And for the young, the young-at-heart, and everyone else with an interest in the grassroots advocacy that led to passage of the Voting Rights Act, check out Books One (2013) and Two (2015)of Congressman John Lewis’ graphic novel trilogy about the U.S. civil rights movement, March.
Wednesday, August 5, 2015
As part of the Legislation Law Prof Blog effort to spotlight relevant new scholarship, today we are featuring an article submitted by Professor Christopher Odinet concerning legislative and regulatory issues related to the mortgage foreclosure crisis. An abstract and link to his article follows. (If you have a compelling piece of scholarship of interest to our readers, please contact one of the blog editors for consideration.)
During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles began cropping up in newspapers and media outlets across the country recounting stories of people who had fallen behind on their mortgage payments returning home one day to find that all of their belongings had been taken and their homes heavily damaged. These homeowners soon discovered that it was not a random thief that was the culprit, but rather property management contractors hired by the homeowners' mortgage servicer.
The issues arising from these practices have become so pervasive that lawsuits have been filed in over 30 states, and legal aid organizations in California, Florida, Michigan, Nevada, and New York report that complaints against lender-engaged property managements firms number among their top grievances. This Article analyzes lender-engaged property management firms and these break-in foreclosure activities. In doing so, the paper points out the legislative and regulatory failures related to the regulation of third party contractors by lenders, particularly in the Dodd-Frank Act, and the need to strengthen state-level unfair trade practice legislation to account for these abuses.
Link to article: here
Monday, July 20, 2015
From Tracy L. Denholtz, a fellow in the Juvenile Sentencing Project at Quinnipiac University School of Law:
In 2012, the U.S. Supreme Court held in Miller v. Alabama that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, a number of states have eliminated life without parole (“LWOP”) as a sentencing option for juveniles or have provided mechanisms for juveniles serving LWOP sentences to petition courts for resentencing. The 2015 legislative session resulted in three new states abolishing this extreme sentencing practice for juveniles:
- Connecticut passed a bill that retroactively eliminates LWOP as a sentencing option for all juveniles. Governor Malloy signed SB 796 on June 23, 2015. Under the new law, juveniles may no longer be convicted of capital felony, murder with special circumstances, or arson murder—offenses that carry mandatory LWOP sentences. Instead, the most serious offense for juveniles is now murder—which carries a minimum sentence of 25 years (with parole eligibility after 15 years) and a maximum sentence of 60 years (with parole eligibility after 30 years). The new law, which applies to juveniles currently serving sentences, provides that juveniles are eligible for parole after serving 60% of their sentence, or 12 years, whichever is greater. Those serving more than 50 years are eligible for parole after serving 30 years. Thus, the new law ensures parole hearings for all juveniles after serving no more than 30 years. The law also provides specific youth-related factors for the parole board to consider. Finally, the new law requires judges to consider the hallmark features of youth and the scientific differences between juveniles and adults when sentencing a juvenile in adult court for a serious crime. This new law will affect approximately 200 individuals currently serving sentences in Connecticut for offenses committed as juveniles. Students in Quinnipiac University School of Law’s Civil Justice Clinic testified before the legislature in support of the bill.
- Nevada passed a bill that eliminates LWOP for juveniles. Governor Sandoval signed AB 267 into law on May 26, 2015. The law provides that going forward, the maximum sentence available for juveniles sentenced in adult court is life with the possibility of parole. The law also provides retroactive parole eligibility rules for all juveniles (except those convicted of offenses that resulted in the death of two or more victims). Juveniles convicted of non-homicide offenses are parole eligible after 15 years, and juveniles convicted of homicide offenses involving one victim are parole eligible after 20 years. Additionally, the law requires judges to consider the differences between juveniles and adults when sentencing a juvenile in adult court.
- Vermont passed a bill that eliminates sentences of LWOP for individuals who were under 18 at the time of the offense(s). Governor Shumlin signed H. 62 into law on May 14, 2015.
Connecticut, Nevada, and Vermont are the newest states to join a number of others that have eliminated juvenile LWOP sentences following Miller. In 2014, Hawaii, Massachusetts, and West Virginia enacted statutes abolishing juvenile LWOP. (In 2013, the Massachusetts Supreme Judicial Court held that juvenile LWOP violates the state constitution). In 2013, Delaware, Texas, and Wyoming passed laws abolishing this sentencing practice. Thus, since Miller was decided in 2012, a total of nine states have eliminated LWOP as a sentencing option for juveniles. With hope, this trend will continue.
Friday, July 17, 2015
With an increasing elderly population and a predicted need for continuous care facilities there will be an increased cost associated with these facilities. On average the cost of a nursing home private room exceeds $83,000 per year and nursing home costs have been rising at a steady rate of 4 percent per year. About 1.3 million Americans currently live in nursing homes and individuals receiving Medicaid and Medicare make up a majority of long-term facility residents, increasing the cost for Medicaid and Medicare.
After a victory for the Obama administration in King v. Burwell, there is more in store for health care reform. The administration is working on updating 30 years of old laws that determine whether a nursing home qualifies for Medicare and Medicaid payments.
The administration is proposing changes to long-term care facilities in order to make nursing homes safer and more effective in controlling diseases, not mention reduced costs. The proposed regulations include: increasing the use of electronic health records and measures to ensure that patients and their families plan for care, strengthening infection control, and monitoring the use of antibiotics and antipsychotic drugs, with the overall goal to reduce hospital readmissions.
Further, the aim is to make nursing homes feel more like a home, by changing meal times and food options, and providing individualized care. With the proposed changes, residents will be able to choose their roommates whether it is siblings, relatives, long term friends, or same-sex couples. Although the nurse to patient ratio will not increase, nurses will be required to train in dementia care and preventing elder abuse. Only long-term care facilities that enforce the proposed changes will receive Medicare and Medicaid payments.
For more information on the proposed changes to nursing home care, see Kaiser Health News.
Friday, July 3, 2015
This post was written by Nate Ela, of COWS
If you were following news earlier this week about the end of the Supreme Court term, you probably read that Arizona State Legislature v. Arizona Independent Redistricting Commission was a win for direct democracy. The Court held that an independent redistricting commission established in 2000 as the result of a voter initiative did not violate the elections clause (U.S. Const. art. I, § 4, cl. 1.: “[t]he Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof ....”). To get to this conclusion, Justice Ginsburg reasoned that the authors of the constitution, as proponents of popular sovereignty, would have understood “legislature” to have included the people themselves as a law-making body.
Many commentators hailed this as a big win for direct democracy. Richard Pildes, in a New York Times Op-Ed, noted that while it is not a panacea, “direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.” Ciara Torres-Spelliscy noted approvingly on the Brennan Center blog that the ruling “embraces not only the specific voters’ choice in Arizona, but also it supports the initiative and referendum process in other states as well.”
A few commentators decried the win for direct democracy. “Leaving policy to the passions of the people is dangerous,” warned the opinions editor of the Arizona Republic. “A representative republic excels over direct democracy. Arizona's early leaders where too hard-headed to understand that.”
If direct democracy won, who lost? Lisa Soronen, the executive director of the State and Local Legal Center, suggested on the NCSL blog that legislatures did. NCSL had filed an amicus brief in support of the Arizona Legislature, arguing that Arizona was one of only two states where legislatures had been completely divested of redistricting authority, and that the Constitution requires state legislatures to be involved substantively in the redistricting process. The majority did not find those arguments compelling.
Yet if Arizona allows legislatures to be cut entirely out of the redistricting process, what are the potential stakes? Several recent studies have concluded that non-legislative redistricting might not actually be much of a loss for partisan or incumbent legislators -- or much of a win for people who'd hope to see less political polarization. One study found that “bipartisan districts promote member moderation,” but “no evidence that commissions have distinct effects on districts or members as compared to districts drawn by legislatures.” Another found that non-legislative redistricting hasn’t increased competitiveness in elections, either by “reduc[ing] the typical margins of incumbents’ victories or increase[ing] the likelihood that incumbents would lose.” And contrary to what one might expect, one even concluded that “states with nonpartisan redistricting methods saw their legislatures become more polarized, while those states with partisan methods saw slight de-polarization, on average” (although the data were only from 1999 to 2005).
So it may be that Arizona was a win for direct democracy won and a loss for legislatures, but a wash for We the People. This could explain why some reformers, rather than hurrying to suggest replicating Arizona’s system in other states, took the opportunity instead to propose ideas for more effective reforms. FairVote, for example, responded to Arizona by calling for a new system of electing members to Congress from multi-winner districts, using ranked-choice voting. (They have a white paper on how that could work here.)
It is hard, of course, to find fault with a big win for direct democracy – especially when it comes from the current Supreme Court. But as we celebrate another Independence Day, we shouldn't stop envisioning and experimenting with new ways of making this a more perfect union. There’s plenty left to do.
Tuesday, June 23, 2015
Over the next month, roughly 6.4 million people may be losing subsidies for health insurance. The United States Supreme Court has heard oral arguments for the King v. Burwell lawsuit and a ruling is expected sometime in late June or early July.
King v. Burwell is a federal lawsuit questioning the language used in the Patient Protection and Affordable Care Act (ACA). The ACA allows individuals to access health insurance on American Health Benefit Exchanges. Currently, the legislation allows low and middle income individuals who purchase health insurance both at a state or a federal level to access a federal tax credit. However King v. Burwell argues that the language used in the ACA allows tax credits for individuals who purchase insurance on the state-run exchanges, but makes no provision for subsidies in federally established exchanges.
Presently, 34 states use the federal exchange, amounting to about 6.4 million people. Three other states, Oregon, Nevada and New Mexico, have unsuccessfully attempted to build their own exchanges and now depend on the federal government as well. If the Supreme Court rules against subsidies in the federal marketplace, then those 6.4 million people will lose the subsidies that help them pay for health insurance.
If the court rules for the plaintiffs, individuals receiving subsidies in the federal marketplace would not be the only ones affected. As a result of both an increasingly expensive health insurance market and millions of people leaving said market, the insurance pool could get smaller and sicker. Some economists have estimated that prices in the directly affected states could rise by roughly one third.
For more information on the oral arguments please see this article in the SCOTUS blog and for a commentary on the fate of ACA subsidies in the Supreme Court please see this article in the SCOTUS blog.
More information on the possible consequences can be found in this article in the The New York Times.
Wednesday, June 17, 2015
On Thursday June 11, Michigan Governor Rick Snyder (R) signed legislation that would allow private adoption agencies to refuse adoption services to individuals based on religious grounds.
Critics of the bill are concerned that the legislation would permit faith-based and religiously affiliated foster and adoption agencies to discriminate against same-sex couples, religious minorities, and single parents, while still receiving taxpayer money.
Democrats voiced their opposition to the bill before it was passed by the state Senate on Wednesday, emphasizing that the bill would allow adoption agencies to refuse placement of children with same-sex couples. Democrat lawmakers proposed several amendments to the bill that were rejected, including one that would have excluded agencies that receive more than $500,000 in state funding from being protected by the bill.
In the 2014-2015 budget year, $19.9 million state and federal funds went toward supporting adoption agencies, and nearly $10 million of the total went to faith-based agencies that will now be protected under the bill.
According to ACLU, Michigan has the fifth largest population of children waiting for adoption. The law will make it even more difficult for more than 13,000 children in the state’s adoption and foster care system to be placed into homes.
Friday, June 12, 2015
On May 29, just two days after Nebraska became the nineteenth state to abolish the death penalty, Nebraska Governor Pete Ricketts announced that he still plans to execute Nebraska’s ten death row inmates. Death penalty foes say he can’t do this; the Governor says he can.
While much has been made of Nebraska’s becoming the first conservative state to repeal the death penalty in over forty years, Nebraska’s repeal is remarkable for another reason, as the battle brewing in Nebraska suggests. For the first time in nearly fifty years, a state legislature repealed its death penalty not just for future crimes but also retroactively, that is, for those currently on death row. Nebraska’s repeal explicitly prohibits the very action that Governor Ricketts plans to take—the execution of those on Nebraska’s death row.
Over the past eight years, five other states have repealed the death penalty. None of them did so retroactively. In three of those states, New Jersey, Illinois, and Maryland, it took a governor’s commutation order to clear death row. In New Mexico and Connecticut, death row prisoners were not so lucky; a total of thirteen men remain on death row in those states after repeal. Pending legislation in Colorado, Delaware, Kansas, New Hampshire, and Washington is also not retroactive. When these states inevitably repeal the death penalty, they will join an ever-growing list of states that have repealed the death penalty while retaining death row intact. Abolition for most, but not all—not for the forty people on death row in these states.
Many will say this is at it should be. Some family members of murder victims, such as the parents of slain University of Delaware student, Lindsey Bonistall, argue that retroactive repeal unsettles their expectations of retribution. “[D]on't let the judicial process, our tragedy, trauma and pain,” they wrote to legislators, “be in vain.”
Some lawyers—including Nebraska’s attorney general—argue that retroactive repeal unconstitutionally infringes the courts’ power to render “final” judgments and the executive’s power to commute sentences. A slew of old, poorly-reasoned state court cases certainly support this cramped view of the separation of powers.
And some advocates argue that, by repealing the death penalty going forward but not retroactively, the death penalty abolition movement merely parallels the movement to end another infamous American institution: slavery. In the late eighteenth century, the Pennsylvania Abolition Society, the first organization dedicated to securing slavery’s end, supported laws that would end slavery going forward but not retroactively. “We dare not flatter ourselves with anything more than a very gradual work [of national emancipation],” the Society said in 1790, for “long habits die hard and strong interests are not overcome in an instant.”
All of these arguments against retroactivity have merit, but they should not win the day.
Family members of victims must understand that there is no record of a death row prisoner ever being executed after repeal of the death penalty. Ever. Failure to repeal the death penalty retroactively is a farce; history shows that those remaining on death row will probably never be executed, so why not do away with death row completely and eliminate the trauma that families will be forced to endure as they sit through literally endless appeals?
Lawyers must understand that the failure to repeal the death penalty retroactively is the height of arbitrariness. It is nonsensical to say that a person who murders the day before repeal can be sentenced to death, while a person who just so happens to commit an identical murder the day after repeal cannot be sentenced to death. There simply is no difference between the two murderers. If the death penalty is too expensive, too inhumane, too discriminatory, too prone to human error, too out of step with international norms, or too unfair to victims’ families today, then it was surely all of those same things yesterday. Recent statements by the Supreme Court and lower courts strongly support legislators’ elimination of arbitrary disparities like these.
And advocates must understand that, while the movement to abolish slavery began as a gradual enterprise, it yielded to a more radical movement demanding a complete end to slavery. Nebraska’s retroactive repeal of the death penalty on Wednesday marks the beginning of a more radical movement to abolish the death penalty.
The next decade will undoubtedly see more states boarding the abolition train—states like California, with over 700 people on death row. Hopefully, they, like Nebraska, will take their death rows with them. Abolition for all.
Friday, June 5, 2015
When a state legislature takes census data and carves up new voting districts, how should it count who is in those districts? Should it count all residents, or only eligible voters? This is the question presented in Evenwel v. Abbott, a case that the Supreme Court recently agreed to take up in its next term. Evenwel is being billed as the biggest redistricting case in 50 years, since the Warren Court held that voting districts with large differences in total population are unconstitutional. The case has major stakes for who holds power at the federal, state, and local levels.
Evenwel was filed in 2014, as a challenge to the state senate district plan enacted in 2013 by the Texas state legislature and signed by Governor Rick Perry. The legislature used the results of the 2010 census to create senate districts that had roughly the same number of residents.
The plaintiffs in Evenwel claim that this plan violated the Fourteen Amendment, by denying their rights to have votes that are equal in weight to voters in other districts. The claim is that the votes of eligible voters in districts that have a large proportion of non-citizen residents have greater weight than those of voters in districts that have a large proportion of eligible voters.
The Evenwel plaintiffs are Texas voters selected by the Project on Fair Representation, a one-man conservative advocacy group created by Edward Blum, a former investment banker and current fellow at the American Enterprise Institute. (New York magazine has a good profile describing how Blum has engineered a number of the Roberts Court’s recent blockbuster cases on the role of race in voting and college admissions.)
A ruling that electoral districts can or must have equal numbers of eligible voters would have huge implications for the balance of power at the federal, state, and local levels.
The impact on state-level politics is perhaps most obvious. In the case, the Court will determine how state legislatures may draw state legislative districts. (At the NCSL Blog, Lisa Soronen notes that Evenwel follows on another case this term which questions the role of state legislatures in redistricting. Arizona State Legislature v. Arizona Independent Redistricting Commission presents the question of whether a state legislature can be completely cut out of the redistricting process.)
But allowing or mandating state legislatures to draw districts in a new way would be likely to affect the balance of political power at the federal level. Nate Cohn did some calculations and writes in the New York Times that such a system would put control of the House of Representatives even farther out of reach of Democrats. Nathaniel Persily of Stanford Law School observes that it would also require a new kind of census, one that counts who is and isn’t a citizen.
Finally, the case holds the potential to alter the balance of power between cities and suburbs, particularly in states like Texas with large non-voting immigrant populations. University of Texas law professor Joseph Fishkin argued in a Yale Law Journal article that a shift to districts based on equal numbers of eligible voters “would shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”
In short, in deciding Evenwel, the Roberts Court will have the opportunity to rework how our democratic system functions -- and who it tends to empower.