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.
Tuesday, May 26, 2015
Barry Taylor is the Vice President for Civil Rights and Systemic Litigation at Equip for Equality. We enthusiastically welcome a guest blog post on the recent Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana case.
The Seventh Circuit Court of Appeals recently clarified that the Girl Scouts is subject to the federal Rehabilitation Act of 1973. (Rehab Act) The Rehab Act prohibits entities that receive federal funding from discriminating based on disability.
The plaintiff in this case is Megan Runnion, who joined the Girl Scouts when she was in kindergarten. Megan is deaf and, for six years, the Girl Scouts of Greater Chicago and Northwest Indiana provided her with an American Sign Language interpreter for troop-related activities. In 2011, however, the Girl Scouts refused to provide Megan with an interpreter, and shortly thereafter, Megan's troop disbanded. Megan's mother was told by troop leaders that because of her request for interpreter services, certain restrictions were placed on the troop, making it impractical for the troop to continue.
Because the Girl Scouts receives federal funding, Megan filed suit under the Rehab Act. The Complaint alleges that by failing to provide interpreter services, and thereby failing to provide Megan effective communication, the Girl Scouts excluded her from participation solely because of her disability.
The District Court dismissed the case finding that, as a private membership organization, Girl Scouts is not subject to the Rehab Act. The District Court also found that Girl Scouts is not covered by the Rehab Act because it is not principally engaged in education, social services, health care, housing, or parks and recreation.
The Seventh Circuit Court of Appeals reversed finding that there was no basis in the Rehab Act to exclude from coverage private membership organizations like the Girl Scouts. While other statutes like the Americans with Disabilities Act and Title VII of the Civil Rights Act have provisions excluding private membership organizations, the Rehab Act does not contain an express exclusion. The court was unwilling to read into the Rehab Act an implied exemption for private membership organizations.
The court went on to hold that the proposed Amended Complaint sufficiently alleged that Girl Scouts is principally engaged in the business of providing the enumerated services under the Rehab Act (i.e. education, social services, health care, housing, or parks and recreation.) Significantly, the court held that, contrary to the Girl Scouts' argument, a private organization would fall within the Rehab Act if it principally engages in a mix of the enumerated services. In other words, the court held that Congress did not view the categories as mutually exclusive.
While this case is important with respect to coverage under the Rehab Act, the case also provides useful guidance on the right to amend under Federal Rule of Civil Procedure 15. The court confirmed that courts should take a liberal approach to amending pleadings with respect to post-judgment motions to amend. The court made clear that, despite the 2009 amendment of Rule 15(a)(1) which limited amendment as a matter of right, plaintiffs still have the benefit of the well-established liberal standard for amendment even if they choose to first challenge a motion to dismiss before seeking to amend.
Megan is represented by Equip for Equality, the National Association of the Deaf and the private law firm Much Shelist, which is handling the case on a pro bono basis. The United States Department of Justice filed an amicus brief in support of Megan's position that was cited favorably by the court.
Megan Runnion v. Girl Scouts of Greater Chicago and Northwest Indiana, No. 14-1729 (7th Cir. May 8, 2015)
Friday, May 22, 2015
The Fight for $15 in the United States’ second most populated city is finally over.
We previously posted about how Seattle took the lead on setting the highest minimum wage in the country. This April, we highlighted how public benefits subsidize low wages for big businesses and the Fight for $15 . Now we are delighted to report that progress has been made in California, Los Angeles is following in Seattle’s footsteps.
By a margin of 14-1, the Los Angeles City Council voted to increase the current minimum wage of $9 to $15 an hour over the next five years. Los Angeles’s minimum wage increase follows other large cities across America, including San Francisco, Oakland, Chicago and Seattle. This win is especially important in Los Angeles, as it is estimated that almost 50 percent of Los Angeles workers earn less than $15 an hour.
Advocates hope that more cities and states across America will duplicate these beneficial wage increases. Already Washington D.C, Kansas City, and New York City have a proposed a minimum wage of $15 an hour. Governor Andrew Cuomo of New York is considering a state-wide wage increase in the fast-food industry, and is now being pressured to accept only high wage proposals.
Although this is good news for minimum wage employees that are struggling to meet basic necessitates, some opponents of the minimum wage increase believe this increase will be detrimental to small businesses and restaurants. Since California is unique (one of eight states) in requiring tipped employees to earn minimum wage already, some restaurant owners believe a higher minimum wage will force them to let go of a majority of their staff.
However, research on minimum wage increases demonstrates that higher wages actually increase labor productivity, and lower turnover rates, which consequently covers increased costs. The City Council has also promised to look into enacting service charges at restaurants to make up for the increased costs. The wage increase will be phased in over five years: $10.50 in July 2016, $12 in 2017, $13.25 in 2018 $14.25 in 2019, and $15 in 2020. Small businesses, or those with fewer than 25 employees, will have an extra year to carry out the plan.
Next, City Council will consider a law that could require annual wage increases to meet inflation. Wages would increase each year based on the 20 year average of Consumer Price Index. The language of the law is currently being drafted. If approved by City Council, it would go into effect in 2022.
In another victory for Fight for $15 advocates, California will begin to publish names of employers who have an excess of 100 workers on Medicaid, along with how much these companies cost the state in public aid. With companies that pay low wages in the public eye, advocates hope more companies will be pressured to increase wages, thereby ensuring that hard working individuals do not have to rely on public assistance to meet basic necessities.
Wednesday, May 20, 2015
Last month, protests erupted in Baltimore after the death of Freddie Gray and in response to the larger issues of police brutality, racial profiling, and mass incarceration. These protests have furthered conversations surrounding police accountability but have failed to take into account one of the primary causes of the unrest in Baltimore and many cities across the nation: the perpetuation of poverty through segregation.
Following similar riots in the 1960s, the Kerner Commission, appointed by President Lyndon Johnson, informed Americans that the nation was “moving towards two societies, one black, one white – separate and unequal.” The Kerner Commission also stated that the “white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.” Richard Rothstein, a research associate at the Economic Policy Institute, further explains that it was not a vague white society that led to the creation of the ghetto but explicit, racially intentional laws and policies that were pursued at all levels of government.
The New Deal
The New Deal, a domestic program enacted between 1933 and 1939 by President Franklin Roosevelt federally funded public housing that led to racial segregation. Public housing could only house people of the same race as the neighborhood in which it was located. Some public housing was built in “integrated” neighborhoods but with separate buildings for whites and blacks. The policy continued when Harold Ickes, President Roosevelt’s public housing director, established the “neighborhood composition rule” to maintain the pre-existing racial composition of neighborhoods.
Federal Housing Administration
One of the most explicitly discriminatory housing policies was introduced by the Federal Housing Administration (FHA) in the 1930s and lasted until 1968. The FHA funded mass construction of buildings in metropolitan areas, specifically on the East Coast and West Coast. Builders received federal loans on the condition that the homes in those developments would not be sold to African Americans. These explicit policies prevented African Americans from moving to suburban areas.
Further, the FHA created maps that rated neighborhoods based on the demand and stability of the area. It assigned low grades to areas populated by African Americans – a policy called redlining, which indicated that those neighborhoods were credit risks. In “The Case for Reparations” Ta-Nehisi Coates explains that redlining went beyond FHA funded loans and spread to the entire mortgage industry. African Americans were even unable to obtain mortgages for homes that were developed without FHA loans. Redlining prevented investment, and as a result, limited employment opportunities wherever African Americans lived.
These discriminatory housing regulations were implemented in conjunction with other discriminatory policies, such as the Serviceman's Readjustment Act of 1944, which granted low-interest loans for mortgages to white veterans and not veterans of color. Taken together, these policies prevented African Americans from accessing the most significant opportunity to build wealth in American history.
Current Effects of Residential Segregation
Many people believe that the lack of integration today is not a result of historic policies but because most African Americans cannot afford to move to middle class neighborhoods. Richard Rothstein argues that this unaffordability is in fact a result of the mid-twentieth century policies that prevented African Americans from benefiting from equity appreciation and accessing wealth and opportunities that were disproportionately offered to whites.
Black families, who could have lived in the same neighborhoods as their white counterparts in the mid-twentieth century, can no longer afford to do so. While explicitly racist policies have ended, they continue to affect segregation and concentrate poverty in neighborhoods populated by African Americans. According to a study by Virginia Commonwealth University’s Center on Society and Health, Baltimore neighborhoods that were redlined in the 1930s have sustained lower rates of homeownership and college attainment today.
The protests in Baltimore were sparked by excessive policing in low-income black neighborhoods that were created by residential segregation. Housing segregation has not only prevented African Americans from building up wealth through equity appreciation, but has also locked them into neighborhoods with low-funded public schools and limited opportunities to escape generational poverty. Without integration and intentional efforts to minimize the wealth gap, black communities will continue to live in impoverished neighborhoods, giving rise to protests against racists political and social systems.
Saturday, May 16, 2015
On the same day that jurors in Massachusetts returned a verdict in favor of the federal death penalty for Tsarnaev, Nebraska lawmakers voted 30-16 in favor of advancing a bill to repeal their state’s death penalty. The bill faces one more vote, which is largely considered a formality. Assuming the bill keeps its veto-proof majority (Governor Pete Ricketts has promised a veto), Nebraska will become the 19th state to repeal the death penalty—the 6th state to do so in just 8 years.
Nebraska’s anticipated repeal is part of a growing movement among conservatives who question the alignment of capital punishment with conservative principles and values. According to Conservatives Concerned About the Death Penalty (CCADP):
- Some of us believe that small government and the death penalty don’t go together, especially when we compare the high costs of capital punishment to life without possibility of release.
- Some of us don’t trust the state to get it right. We already know that some innocent people have been sentenced to death, and for others it may already be too late.
- Some of us are disturbed by the roller coaster for family members of murder victims, or wonder why we’re investing so much in a system that doesn’t keep us any safer than the alternatives.
- Some of us believe that the death penalty contradicts our values about protecting life.
As Richard Viguerie, one of CCADP’s founding members has colorfully remarked, “this trend is not limited to bleeding-heart liberals and crime coddlers.”
A look at the (about-to-be 31) states with the death penalty reveals how important these conservative values will be to death penalty abolition in years to come. Bleeding-heart liberals and conservatives-- unite!
Friday, May 8, 2015
This post was written by Nate Ela, of COWS
To wrap up this week’s posts on the model law as a mode of governance, let’s look at a couple recent articles examining factors that could influence whether state legislators decide to enact a model law.
Sociologists Stephanie Kent of Cleveland State University and Jason Carmichael of McGill University looked at some of these factors in an article published in the latest volume of Social Science Research. Professors Kent and Carmichael examined where five model laws – all intended to reduce wrongful convictions, and all promoted by the Innocence Project – were enacted. Not surprisingly, they found that that states with a Republican controlled legislature or more Republican voters were less likely to pass these laws, while the presence of advocacy organizations that are part of what they call the ‘innocence movement’ make legislative change more likely. Rather disturbingly, they also found that the frequency of discovered wrongful convictions in a state does not increase the likelihood of adopting model laws aimed at preventing wrongful convictions.
One thing a well-organized movement can do to promote the adoption of model laws is to generate empirical studies that justify the policies embodied in model legislation. This is one of the conclusions of a forthcoming article by Dee Pridgen in the NYU Review of Law and Social Change. Pridgen, a professor at the University of Wyoming College of Law, analyzes how model legislation promoted by ALEC has sought to roll back private causes of action under state consumer protection acts. Empirical reports produced by the Searle Civil Justice Institute at Northwestern University School of Law have provided what Pridgen calls a “fig leaf” for the move to abolish consumer protections. In one study, the Searle Institute created a “shadow FTC” comprised of five unnamed people said to have had experience at the FTC Bureau of Consumer Protection. This panel then reviewed a sample of consumer protection decisions from state appeals courts, and concluded that 78% of the state UDAP claims would not be considered unfair or deceptive under FTC policy statements. This sort of study, Pridgen asserts, says little about the actual state of play of state consumer protection litigation, but nevertheless is used to justify passing ALEC’s model law.
Wednesday, May 6, 2015
In February, this Blog posted a comprehensive report from the Berkeley Policy Advocacy Clinic on the problem of the criminalization of homelessness in California. The Berkeley team, the Western Regional Advocacy Project, and Washington state community partners offered incredible support to me and my students as we tackled the problem in Washington.
Today, the SU School of Law's Homeless Rights Advocacy Project released four comprehensive policy briefs that we hope will impact local, statewide, and national conversations about the challenges posted by these laws. Here's the press release- links to the reports are below.
May 6, 2015
FOR IMMEDIATE RELEASE
Contact: Katherine Hedland Hansen, email@example.com; 206-793-3487
Seattle University School of Law’s Homeless Rights Advocacy Project releases groundbreaking briefs on the “criminalization of homelessness” in Washington State
The first statewide analysis of laws criminalizing homelessness finds those laws are expensive, ineffective, and disproportionately impact already marginalized individuals. Those are among the key findings of a series of in-depth policy briefs released today by the Homeless Rights Advocacy Project at Seattle University School of Law that examine the scope and extent of the problem of criminalization in the State of Washington. These briefs are the most extensive of their kind in the nation.
Among the findings:
- Washington cities are increasingly criminalizing homelessness. Since 2000, communities have enacted laws that create over 288 new ways to punish visibly poor people for surviving in public space.
- Millions of dollars could be saved if cities would redirect funds used for enforcement of these laws toward affordable housing.
- Homelessness and poverty disproportionately impact people of color, women, LGBTQ youth, individuals with mental illness, and veterans.
- The greater the income gap between the rich and the poor, the higher the rates of enforcement of these laws.
- Modern anti-homeless ordinances share the same form, phrasing, and function as historical discrimination laws, such as Jim Crow.
“The common thread is prejudice,” said Professor Sara Rankin, faculty director of the Homeless Rights Advocacy Project. “One of the underlying premises of our research is that visible poverty makes people uncomfortable. Regrettably, we often use the law to purge visibly poor people from public space. As long as we pretend that homelessness is a problem that should be addressed through the criminal justice system, we are not really addressing the root problems of homelessness and poverty.”
Rankin’s students spent months collecting data, researching, and writing their briefs. They presented their works-in-progress and incorporated feedback from experts, including prosecutors, defense attorneys, police, service providers, and people currently experiencing homelessness.
Researchers analyzed data from 72 cities and completed in-depth case studies of seven cities: Seattle, Burien, Bellingham, Spokane, Auburn, Pasco, and Vancouver. They also looked at other states that have adopted the “Housing First” movement that prioritizes providing shelter over enforcement.
“At what cost are we criminalizing homelessness?” asked one student co-author, Joshua Howard. “Criminalization is expensive and ineffective, and non-punitive options are proven to save money.”
One brief estimates the City of Seattle will spend a minimum of $2.3 million in the next five years enforcing just 16 percent of the city’s criminalization ordinances. Spokane will spend a minimum of $1.3 million enforcing 75 percent of the city’s criminalization ordinances. Investing this same money over five years on affordable housing could house approximately 55 people experiencing homelessness per year, saving taxpayers over $2 million annually and over $11 million total over the five years, according to the briefs.
“This research humanizes the problems and shows the ways in which the institutional response to homelessness has failed,” said Scott MacDonald, one of the student co-authors.
National experts praise the research.
“These reports will leave an indelible mark on constitutional, civil, and human rights discourse about how society and the law can either contribute to the problems of poverty and homelessness, or how society and the law can reverse course and contribute to more meaningful and just outcomes for all people, regardless of their housing or economic status,” said Michael Stoops, director of Community Organizing at the National Coalition for the Homeless.
“These carefully researched reports present the most complete picture of the criminalization of homeless people in any state in the country,” said Professor Jeff Selbin, a poverty law expert at UC Berkeley School of Law. “They demonstrate how municipal laws targeting the visibly poor in Washington are increasingly unjust, inhumane, and costly. State lawmakers in Washington and elsewhere should take action to end these shameful practices.”
And Tristia Bauman, senior attorney at the National Law Center on Homelessness & Poverty, said, “As more communities across the nation criminalize the life-sustaining activities of homeless people, comprehensive research on the impact of these ineffective, expensive, and often illegal policies is critical to combating them,” she said. “These reports represent a model that should be replicated across the country by advocates working to end the criminalization of homelessness."
Read the briefs:
This post was written by Nate Ela, of COWS
Monday's post described how, at the turn of the twentieth century, the model law emerged as a major new tool of governance in the United States. A hundred years later, model laws are ubiquitous, used to influence public policy across a wide range of areas. Today and Friday, we’ll highlight some recent legal and sociological scholarship on how model laws are being used, and what influences whether legislators decide to act upon them.
Model laws figure into the story Douglas NeJaime and Reva Siegel tell in a forthcoming Yale Law Journal article describing the rise of what they call “complicity-based conscience claims.” Made familiar by Burwell v. Hobby Lobby Stores, these claims arise when “Persons of faith … seek religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others.” Professors NeJaime and Siegel argue that rather than settle conflict, as is sometimes suggested, these types of claims often serve to extend it. Claiming a religious objection can offer a means of criticizing the norms of an entire community, and the actions of nonbelievers.
Pointing to the Healthcare Freedom of Conscience Act, a model anti-abortion law published in 2013 by Americans United for Life (AUL), NeJaime and Siegel argue that model laws provide a means of extending conflict via conscience-based coercion claims. The AUL model law, they note, “seeks to spread the logic of complicity-based conscience claims to more types of healthcare, to more actors, and to more acts.” And in at least some states, the strategy is getting traction: Mississippi’s recently-enacted healthcare refusal law is explicitly based on the AUL model.
Vanessa Zboreak, a professor at Wake Forest, recently published an article in the Wake Forest Journal of Law & Policy analyzing two ALEC model laws designed to preempt local land use laws that restrict large confined animal feeding operations, or CAFOs. As Zboreak points out, these models are in line with a wide range of recent bills aimed at preempting municipal lawmaking, though it would be incorrect to assume that an ALEC model lurks behind every attempt by a conservative state legislature to preempt local authority. One of the most interesting sections of the article parses the relatively innovative way in which ALEC’s “Act Granting the Authority to Rural Counties to Transition to Decentralized Land Use Regulation” law goes about preemption:
Because the grant of authority to decentralize is only available to counties, and not to municipalities, by choosing this approach counties would be able to preempt zoning or planning by municipalities located within the counties. Generally, in states where both cities and counties have land use planning authority, neither local government is subservient to the other…. Under this model bill, counties would be able to neuter the (often more progressive) voices of municipal residents and city councils. And to further encourage counties to avail themselves of this opportunity to consolidate their authority, states could quite easily tie county adoption of decentralization to other incentives, such as block grant monies, and thus ensure broad adoption of this approach.
Many recent media reports and scholarly articles have focused on how conservative activists have used model laws to advance their own favored causes. But progressives have used model legislation to promote their own causes. Friday’s post will highlight an article analyzing the success of a progressive effort to use model laws to prevent wrongful convictions.
Monday, May 4, 2015
This post was written by Nate Ela, of COWS
A while back, we noted a forthcoming article by Alexander Hertel-Fernandez, which asked who passes business’s model laws. We’ve been keeping our eyes out for other writing on model laws, and later this week we'll share a few recent articles.
First, though, it’s worth remembering that despite the recent wave of media and scholarly interest, the model law is hardly a new tool of governance. The graph below shows appearances of “model law” and some variations of the term, in books published since 1820 (and subsequently scanned by Google).
The meaning of “model law” during its first blip, around 1860, is generally different than current usage. Back then, “model law” referred to everything from a law that set the model for the Catholic church to a law seen as exemplary, but not intended to be replicated.
The rise of the model law as a mode of governance appears to have come in the Progressive Era, around 1910. In that year, the Russell Sage Foundation published a model tenement house law, and by 1912 the annual meeting of the Association of Life Insurance Presidents included a report on progress of a model law on the registration of vital statistics.
What isn’t reflected in the graph is that these social reformers and business associations were picking up on a movement for uniformity that got rolling a couple decades earlier. According to the official history of the Uniform Law Commission, the founding meeting of the American Bar Association in 1878 called for greater uniformity of state laws. By 1892, the Commission had been founded as a special committee of the ABA, and in that year, the Commission recommended its first three acts, one on the topic of acknowledgements, and two on wills and estates.
Uniformity was a hit, and the fever for model laws soon spread well beyond the ABA. By 1920 associations and reformers were circulating model laws for civil service, morbidity reports, weights and measures, and juvenile courts – and calling for more, to regulate everything from corporations to indoor ventilation. It was off to the races.
Later this week, we’ll highlight a few recent articles that give a sense of where the American passion for the model law has come, and how they are now being used to govern everything from abortion to farming, consumer protection to the right to counsel.
Wednesday, April 29, 2015
The title of this post is the title of an interesting new article authored by Evan Zoldan, available on SSRN. Here is the abstract:
The Supreme Court does not recognize a constitutional principle disfavoring special legislation, that is, legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population. As a result, both Congress and state legislatures routinely enact special legislation despite the fact that it has been linked to corruption and undermines the role of the judiciary. But the Court's weak protections against special legislation, and the resulting harms, are not inevitable. Instead, special legislation can be limited by what may be called a value of legislative generality, that is, a principle that legislation should be disfavored as suspect simply because it singles out identifiable individuals for special treatment.
In this article, I argue that the value of legislative generality should be enforced as an independent constitutional principle. Three pillars--history, text, and philosophical considerations--support the conclusion that legislative generality is a principle of constitutional significance. First, the history of the revolutionary period leading up to the framing of the Constitution suggests that a key purpose of the Constitution was to address evils associated with special legislation. Second, the Constitution contains a number of under-enforced clauses that, when read together and in context, delineate a norm of legislative generality. Third, an interpretation of the Constitution that includes a value of legislative generality fits well with a number of philosophical traditions and leads to normatively attractive results. Together, these pillars support the conclusion that legislative generality is a value with constitutional weight and suggest that current constitutional doctrine should be modified to give effect to this principle. I conclude by calling for heightened judicial scrutiny over special legislation that offends the value of legislative generality, including contemporary special legislation in the areas of immigration, public benefits, and criminal law.
Tuesday, April 28, 2015
The AALS Section on Legislation & Law of the Political Process is pleased to announce that it will host a “New Voices in Legislation” program during the 2016 AALS Annual Meeting in New York, NY. This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles. Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead discussion about the draft article.
Eligibility: The New Voices Program will be open to full-time faculty members from AALS member schools who are untenured or have been tenured for two years or less. All scholars, whether or not presenting a paper or moderating a discussion, are welcome to attend the program and participate in discussions.
Submission Requirements: Submissions should be drafts of articles relating to legislation and law of the political process, including articles related to legislative structure, the legislative process, statutory interpretation, and deliberation. Submissions should be near completion and expected to be submitted during the year following the program. Submissions should not exceed 30,000 words, including footnotes. The purpose of the program is to provide junior scholars with feedback that can be incorporated into their works-in-progress; as a result, articles are ineligible for the program if they are expected to be in print at the time of the program in January 2016. However, articles that already have been submitted to law reviews for publication, and accepted for publication, are not ineligible for this reason.
Submission Process: To be considered for participation in the program, please email a copy of the paper and abstract to Evan Zoldan, firstname.lastname@example.org by 5:00 p.m. Eastern Time, Friday, October 2, 2015. Selected participants will be notified in late October.
Friday, April 24, 2015
It is with great pleasure that we welcome guest blogger Patricia Hureston Lee, Associate Professor and Director of Saint Louis University School of Law Legal Clinics. Professor Lee has a passion for being a legal educator and has previously taught at West Virginia University College of Law, Northern Illinois University School of Law, DePaul University College of Law, and the University of Chicago Law School, where she founded the Institute for Justice Clinic on Entrepreneurship. As Director of Saint Louis University’s Legal Clinics, Professor Lee works closely with attorneys, social workers, faculty, staff and students to fight injustices that disrupt harmony in our society. Saint Louis University Legal Clinics was recently selected to receive the Excellence in a Public Interest Case or Project. Professor Lee writes about the work that is being done at Saint Louis University and encourages all members of the legal community to stand up against injustice.
Justice is harmony according to Plato’s theory of justice (book 4, 434c). Through the lens of law clinical faculty that serve underserved populations, we see justice and harmony as virtues that our clients may begin to experience when they are free from a host of injustices they confront in their day to day lives. Examples of injustices that our clients face include excessive policing, excessive incarceration, tear-gassing, racial/ethnic profiling and eminent domain abuse. These matters and others have been at the heart of the public interest work of Saint Louis University School of Law Legal Clinics (SLU LAW Clinics) in recent months.
The Clinical Legal Educational Association’s board of directors recently announced that SLU LAW Clinics won the national CLEA award. The award is to be presented at the annual AALS Clinical Association’s conference on May 6, 2015 in Palm Springs, California, for the clinics’ legal work addressing civil rights and criminal justice abuses highlighted following the death of Michael Brown. Honored, the clinical faculty looks forward to accepting this award. I blog today to share with you some of the backstory of what has been going on in the SLU LAW Clinics and in our community prior to being honored with this award.
For more than forty-one years, the SLU LAW Clinics have provided pro bono legal services to the community and currently provide legal services in six clinical programs (Civil Advocacy, Criminal Defense, Entrepreneurship and Community Development, Externships, Judicial Process Externship and Mediation) that house ten practice areas. The dynamic team of seven clinical attorneys (Professors Amany Hacking, Brendan Roediger, Dana Malkus, John Ammann, Patricia Harrison, Patricia Lee, Susan McGraugh), one social worker (Lauren Choate), Professor of Practice (Steve Hanlon), and two staff members (Greta Henderson and LeAnn Upton) found a variety of ways to engage dedicated students, faculty and the community this current academic year.
Inspired by the social justice mission of the University and long before the tragic events of Ferguson on August 9, 2014, the Legal Clinics previously represented clients in litigation, transactional and regulatory related matters. However, the gravity of the circumstances of Ferguson, called for additional responses that could provide immediate solutions. Some of the solutions included hosting panels and doing community outreach and education for those who might be stopped by law enforcement officers. The Criminal Defense Clinic faculty and students educated members of the public with a “Know Your Rights” initiative. At the same time, the Civil Litigation Clinic took numerous litigation and regulatory steps to represent clients who had been adversely affected by municipal warrants and tear-gassing abuses. Many local and national collaborations took hold in Saint Louis County. Several doctrinal and clinical faculties collaborated to offer a current class called “Ferguson” that provided students a glimpse at the many issues that caused the world to view the injustices noted in Ferguson. Faculty responded to inquiries of the media to inform the public of issues relating to civil rights, constitutional, and criminal law.
Several faculty, including myself, and clinic students provided testimony before the governor-appointed Ferguson Commission, municipal, legislative and the executive branches. When I spoke before the Ferguson Commission at its December 1, 2014 meeting in Ferguson, members of the public passionately told many chilling stories, including stories of excessive detentions, fines and fees. There were other stories told by an entrepreneur whose business had been burned down. While present, I personally reflected on the gravity and breadth of the concerns raised by those testifying from Ferguson and other cities throughout St. Louis County. Very disturbing racial interactions and relations with police, a seismic lack of economic opportunities, educational disparities, historic real property steering, excessive policing, outrageous warrant and fees enforced by municipal courts, were just a few of the issues raised that one day in Ferguson. For me, it was one more exclamation point as to why it is so important that we, as clinical faculty, continue to be a powerful voice for the community.
While the issues raised by Ferguson captured the nation’s imagination, in addition to working on the matters mentioned above, the clinics continued to work with over a hundred students each semester, engage pro-bono clients and develop practice areas relevant to serving the community and advancing the professional skills of law students. We thank Robert Kuehn and other faculty from Washington University Law School for nominating their neighbor, SLU LAW Clinics for the CLEA Excellence Award. We appreciate this honor and hope to continue to address the many glaring injustices that our communities face. Furthermore, we hope to collaborate with the readers of this blog so that we can collectively make our communities a place where justice and harmony are a reality.
Patricia Hureston Lee
Thursday, April 23, 2015
In Kansas, wealthier individuals are paying much less income tax, while the working class might have to pay more in sales tax for basic necessities.
Due to an overhaul of the state’s tax system by Republican Governor Sam Brownback, Kansas is projected to collect $187 million less in taxes through June 2016 than anticipated. Before the overhaul, the state’s budget proposal required a $150 million increase in taxes every year, but in November 2014 tax collection was reduced by $88 million. Brownback hoped that a decrease in taxes would increase revenue and stimulate the economy, making up the difference. However, there has not been an increase in revenue as a result of the modified tax system given that Kansas’s economy has only grown consistent with the rest of the nation.
In an effort to fill the budget shortfall, lawmakers are proposing to increase sales and excise taxes. These taxes will ultimately have the greatest effect on the working class and further add to economic inequality. According to a recent report by the Institute for Taxation and Economic Policy, the average working class Kansan pays 11.1% of their income in taxes, while the wealthiest in Kansas pay 3.6% of their income in taxes.
According to the proposal, sales tax would increase from 6.15% to 6.3%. The reasoning behind this proposal is that an increase in sales tax would encourage people to save more and invest their money. As an article in the Washington Post explains, the less a person earns, the greater the percentage of their income is spent to meet basic necessities. While the wealthy have the option of reducing their spending by cutting back on luxury items, low-income individuals do not have the capacity to choose how to spend their money and will continue to spend all or a majority of their income towards basic necessities. And now they will get taxed more for meeting those needs.
Making it even harder for low-income Kansans, Governor Brownback signed a bill, HB 2258, limiting the use of public assistance benefits. Kansans who receive assistance through the Temporary Assistance for Needy Families (TANF) program will be banned from using the funds to go swimming or to watch a movie. The bill also limits the amount a TANF recipient can withdraw from the ATM to $25 a day. Representative Carolyn Bridges, a Wichita Democrat, stated during the House debate, “I just think we are simply saying to people, ‘If you are asking for assistance in this state, you’re sort of less than other people and we’re going to tell you how and where to spend your money.'”
For more information, see this article in the Washington Post.
Tuesday, April 21, 2015
The Fight for $15 movement, which has recently gained momentum and press, has brought attention to the fact that many low-wage workers are unable to obtain basic necessities, such as food, and medical access, with their paychecks alone. Despite working long hours, fast-food industry employees, home health aides, and even adjunct professors require government assistance programs, such as the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and Temporary Assistance for Needy Families (TANF) to meet basic their needs.
Through tax dollars, the general public has provides the largest subsidies for employers of low wage workers. Although the economy has recently improved, the problem of stagnant wages combined with a decline in employer-based health insurance is creating a problem not only for hardworking families who struggle to make ends meet, but also for society. Since the current federal minimum wage, $7.25 an hour, is not enough to cover essential living costs such as shelter, food, and medical care, low-wage workers must rely on public assistance to survive. Tax payers’ dollars, which contribute to these programs, indirectly support businesses that outwardly refuse to pay a livable wage.
Recently, considerable emphasis has been placed on the ripple effects of low wages and the high percentage of working poor who need public assistance in order to access basic necessities. A study from the University of California Berkeley estimates that 52% of fast food workers, 48% of home health care workers, and 46% of child care workers receive public assistance. Data shows that state and federal governments are spending upwards of $150 billion a year on programs such as SNAP, Medicaid, TANF, and the Earned Income Tax Credit, programs that are intended to assist working families meet essential living costs.
A Restaurant Opportunities Center United report supports the UC Berkeley findings and reinforces the idea that low wages affect the greater population. By their estimation, working families who receive public assistance take home $9,434,067,497 from public benefits to subsidize living costs.
This issue has received growing attention through the 2012 born campaign Fight for $15, funded by the Service Employees International Union. Protests that took place on April 15, 2015 are being referred to as the largest mobilization of workers in the United States. Tens of thousands of protestors demanding better wages for fast food employees, health aides, and adjunct professors across the nation have closed a Southside Chicago McDonalds, marched through Boston, filled the streets of New York City, and protested inside of a San Francisco McDonalds.
Monday, April 20, 2015
From Prof. Marcy Karin and her clinic students, a nice roundup of new regulatory protections for LGBT workers, in the Huff Post blog.
Add to these protections a recent groundbreaking decision from the EEOC, which holds that, under Title VII, employers must provide transgender employees access to a restroom consistent with their gender identity and refer to them by their proper name.
Friday, April 17, 2015
Death Penalty Repeal in a Red State? And Family Member of Massachusetts Murder Victim Speaks Out Against Federal Death Penalty for Boston Marathon Bomber: “No More Darkness”
As a follow-up to this post last month, Nebraska just moved one significant step closer to repealing its death penalty. On Thursday, lawmakers voted 30 to 13 to advance the repeal bill—enough to override Gov. Pete Ricketts’ promised veto. Two more rounds of voting in the one-house legislature await. If Nebraska repeals its death penalty, it would join five others that have legislatively abolished the death penalty since 2007 (NJ – 2007, NM – 2009, IL – 2011, CT – 2012, MD – 2013). Importantly, it would also be the first red state to repeal the death penalty in over 40 years (North Dakota repealed its death penalty in 1973).
For more, see here.
In federal death penalty news, the sister of MIT Police Officer Sean Collier, who was killed by the Tsarnaevs following the Boston Marathon bombing, is speaking out against the death penalty for Dzhokhar Tsarnaev:
“Whenever someone speaks out against the death penalty, they are challenged to imagine how they would feel if someone they love were killed. I’ve been given that horrible perspective and I can say that my position has only strengthened,” Jennifer Lemmerman wrote. “I also can’t imagine that killing in response to killing would ever bring me peace or justice. . . . I choose to remember Sean for the light that he brought. No more darkness.”
The jury will consider Tsarnaev’s sentence during the penalty phase of the trial, set to begin April 21. (Massachusetts has not had the death penalty since 1984.)