Tuesday, January 15, 2019
As always, the most vulnerable among us bear the brunt of unreasonable and insensitive government policy. The government shutdown is no different. No surprise that when the President decided to shutdown government agencies as political leverage, he gave no thought to the impact on America's working class and those even more vulnerable economically.
The Indian Health Service has stopped receiving federal funds. Indigenous women have the highest rate of uninsured in this country and over 1 million Indian women and Alaska native women rely upon IHS for care. While not having an immediate fiscal impact, the Violence Against Women Act was left unauthorized and unfunded due to the shutdown. Those who provide services to those who have experienced abuse may have sufficient funds from prior grants to operate in the near future, funding in the long term is not likely if the government continues to be closed. SNAP (special nutritional assistance program) and WIC (the supplemental nutritional program for women, infants and children) programs are currently providing benefits through state and local sources, but those funding sources cannot be relied upon in the long term.
Those who are federally incarcerated have seen immediate impacts on their well-being. In total, half of the 36,000 Bureau of Prison employees have been furloughed. The Marshall Project reports that in at least one prison family visits have been canceled. Those providing therapeutic services have been furloughed as "non-essential". Those awaiting compassionate release must wait longer because there is no one to review their applications. Prisoner commissaries are running low and not being re-stocked. And parts of the recently passed First Step Act will likely be postponed because those charged with implementing it are furloughed. Some prisoners may begin missing release dates.
Families of employees will suffer from the impact of sudden loss of income. Eviction and creditor lawsuits are likely to follow rapidly.
No doubt this shutdown will have long-term adverse economic impacts not only on unpaid workers, but systemically as well as those who turn to other employment take their skills and expertise with them.
Thursday, May 24, 2018
A democracy cannot sustain itself when millions live in extreme poverty. UN Rapporteur for Extreme Poverty and Human Rights Philip Alston is expected to release his report in early June, having conducted a tour of the United States. As reported in a December Guardian article, one question to be answered is whether " it is possible, in one of the worlds leading democracies, to enjoy fundamental human rights such as political participation or voting rights if you are unable to meet basic living standards, let alone engage... in the pursuit of happiness."
Mr. Alston can bring a holistic perspective to the failures on both the state and federal levels. As Martha Davis noted in the Guardian article, there is a lot that Philip Alston can say about basic inequality that goes to the heart of the rights that he is reviewing.
Mr. Alston's preliminary findings found some pockets of support in communities that took it upon themselves to assist the poor, but primarily US policies work against aiding those in poverty and result in limitations on social mobility. We have been warned for decades about the growing gap between the rich and poor. We anticipate Mr. Alston's report will clarify some root causes of the gap and subsequent denial of human rights that conditions of extreme poverty promote.
This blog intends to present a series on the Rapporteur's report upon its release.
Sunday, February 11, 2018
The Public Welfare Foundation will hold a day-long forum: A Conversation on Race, Redemption and Restoration. The forum will be held on March 9, 2018 in Washington, D.C.
The invitation states "We will dive into candid conversations about: advancing racial justice, particularly within the youth and criminal justice field, the steep barriers to opportunities facing individuals who transition back to communities from the justice system; and necessary strategies to restore communities experiencing crime, violence, and lingering impacts of the criminal justice system. "
While the conference is by invitation only, it may possible to secure admission by contacting the Foundation directly to explore availability.
Tuesday, November 28, 2017
With an upcoming focus on extreme poverty, discussion must be had on how economic decisions are made in the US. Buddhist economics looks for a "middle way" between profitability, full employment and sustainability. One false foundation of US economics doctrine is a belief in certainty. We see certainty, or perhaps it is inflexibility, playing out in the tax plan pending in Congress. Those claiming that trickle down economics theory is valid believe - or claim to believe- that the more money retained by the wealthiest business owners, the more jobs that will be created. While this theory has been disproved, the notion is hawked with certainty.
In the other extreme, living a life of prayer and mediation may be ideal for some, but few can afford the luxury of a contemplative life, absent a wealthy patron. For most, spirituality must be woven into a life that includes work so that the individual can survive, meet basic needs and sustainability. Finding balance between entitlement and necessity would be one middle way. In order to establish full employment for those who need resources to support self and family, that middle option must be developed. There is no one prescription except that in Buddhism, one would be a consumer only to the extent that one's needs are met and sustainability must be a factor is business decisions.
US corporate economic policy rests in large part upon obsolescence. Products are often not made for sustainability and require frequent replacement. In other instances consumer desire for the latest version or upgrade drives consumer purchasing, again without reflection on sustainability. Attachment to goods is countered by the Buddhist principle of non-detachment. Reductions in force with no work replacement for employees counters Buddhist belief that all are connected. In Buddhist economics, sustainability, fairness and compassion are equal parts with profitability.
How do we begin to find the "middle" economic way? Business must view the creation of a healthy workforce as a priority. Corporate responsibility needs to extend to the health and happiness of employees. Business must recognize that executive success is best measured by the connection to the people that comprise the workforce, not to the dollars earned. Supporting each individual to engage in "right livelihood" is essential to Buddhist economics but also to the sustainability of US ideals of opportunity. Demanding that shared prosperity benefit all does not require income leveling. Once the lowest of employees is paid an amount that permits workers to meet their needs and the needs of their dependents, CEO compensation may be irrelevant.
Sunday, November 27, 2016
The National Law Center on Homelessness and Poverty and the National Coalition for the Homeless were the creative forces behind the development of Housing Not Handcuffs. HNH is focused on ending homelessness, but recognizing that a current barrier is the criminalization of living in public. As the number of homeless in our country has risen, so has the wave of laws that criminalize poverty.
One absurd and punitive nature of laws criminalizing homelessness is to create criminal records for those who need housing. Yet, the no-criminal records renting policy of many private and public landlords, deprives those whose housing need is greatest from achieving their goal of adequate and secure shelter.
HNH encourages localities to adopt policies that incorporate the goal of creating affordable housing as a way to end homelessness rather than short sighted and self-defeating arrests.
Preventing unlawful evictions is another method of preventing homelessness. Preventing eviction is tied significantly to the movement to provide counsel for those being evicted. We have written before on the right to counsel and for more information see the website for the National Coalition for the Civil Right to Counsel. NCCRC is one of the HNH supporting organizations.
Tuesday, September 20, 2016
Last year, the UMass Law faculty approved the creation of a Human Rights at Home Clinic. The clinic will open this coming spring semester.
Over the course of the past 18 months, myself and two colleagues (one from the Nursing School at UMass Dartmouth and one from the law school) have interviewed individuals from our community who are living with HIV. Our interviews are open ended. We want to know which of the individuals' needs are not being met.
While the study has not closed and our results have not been analyzed, anecdotally I am struck by how often lack of adequate
transportation has been mentioned as an impediment to good health and independence. Inadequate transportation impedes those dependent upon public transportation from developing to their potential. Transportation that does not run frequently or on schedule limits the ability to obtain and retain work. In addition, adequate health care can be interrupted if appointments cannot be kept due to inability to keep appointments.
As a social determinant of health, transportation is the link that can result in adequate treatment or lead to deteriorating conditions if access to treatment is denied due to the individuals inability to access care easily.
Transportation as a human right has been a concern over the past five years as more and more cities limit the hours that transportation operates as a budget saving measure. "Transportation equity is a civil and human rights priority. Access to affordable and reliable transportation widens opportunity and is essential to addressing poverty, unemployment, and other equal opportunity goals such as access to good schools and health care services."
This spring the UMass students will conduct a study of the transportation systems in local communities. I would like to hear from any others who have been involved in similar studies or who are contemplating conducting studies of their own.
Thursday, July 14, 2016
No doubt many of you read Just Mercy: A Story of Justice and Redemption by Bryan Stevenson. Today I completed this powerful book authored by a remarkable man. Mr. Stevenson is the founder of the Equal Justice Initiative located in Montgomery, Alabama. Mr. Stevenson and his colleagues at EJI represent incarcerated men and women who have been mistreated by the justice system in horrific ways. Many of the Initiative's clients live on death row. The stories of the incarcerated men and women were sad, outrageous and inspiring. But the lawyering work is painful and heartbreaking.
I will not be a spoiler and give details, but in one instance Mr. Stevenson describes a personal and professional crisis moment that followed a conversation with one of his death row clients. A reflective man, Mr. Stevenson wondered if he could continue the work. He describes the moment when he realizes that not only are his clients, the legal system and its players broken, but he is as well. How does one continue the work after realizing that "We've submitted to the harsh instinct to crush those among us whose brokenness is most visible." Mr. Stevenson realizes that we are all broken. Maybe we were broken in different ways, but we are all broken.
Not only did these passages bring me to tears, but they made me feel for all of us who engage in human rights work. I admire all of you. While we celebrate our victories and support each other's work, rarely do we stop to discuss the pain that accompanies our work.
Bryan Stevenson ultimately, and rather quickly, found strength in recognizing this shared vulnerability. He recognized that "When you experience mercy, you learn things that are hard to learn otherwise. You begin to recognize the humanity that resides in all of us." He imagines what the world would be like if we all acknowledged our fear, our weaknesses and our brokenness.
Dr. Brian Williams, who treated the shot Dallas police officers has begun that conversation by acknowledging his fear. In one interview Dr. Williams, who is black, said that when he sees a police officer he often thanks them for their work so that his daughter will learn not to be afraid of police. Because, he said, "I am afraid". Former Seattle Police Chief Norm Stamper addressed the way in which police officers are trained to be afraid and to view their community members as enemy.
What is missing are police officers willing to discuss their vulnerabilities that are at the heart of their biases and overreactions to perceived threats.
I think of how vital this acknowledgment is to resolving our race crisis. Both sides are filled with fear, but one side cannot engage that conversation. Until that happens, change will remain out of reach.
Monday, April 18, 2016
by Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law Columbia Law School
How can the United States truly universalize the new global anti-poverty agenda, and ensure its impact at home? With its pledge to “leave no one behind” and its grounding in human rights, the 2030 Sustainable Development Agendaoffers important opportunities for U.S. human rights advocates to deepen their work and measure progress on profound economic, social, and environmental challenges within the United States. The Agenda provides the United States government, too, with a significant opportunity to address issues of equality and poverty in the U.S., through the lens of human rights. This week, a group of human rights NGOs urged five principles to guide the U.S. government’s plan for domestic implementation, follow up, and review of the 2030 Sustainable Development Agenda.
- Human Rights Integration
In a significant improvement over the Millennium Development Goals, the Sustainable Development Goals (SDGs) are grounded in human rights, including the Universal Declaration of Human Rights and international human rights treaties. Human rights should thus form a basis for the U.S. government’s understanding of its SDG commitments and guide its overall implementation, follow up, and review of the Goals. In doing so, the United States can draw on resources developed by the Danish Institute for Human Rights and the UN Office for the High Commissioner for Human Rights.
Furthermore, in developing national level indicators for measuring progress on the SDGs, the United States should take into consideration the recent recommendations it has received from the human rights treaty bodies, the UN special procedures, the Universal Periodic Review, and the Inter-American Commission on Human Rights. By using these human rights recommendations as a basis for creating national indicators, the United States can measure its progress towards addressing recognized domestic human rights concerns.
- Participation and Transparency
The 2030 Agenda makes clear that implementation of the SDGs should be based on the principles of participation, inclusion, and transparency. Civil society should play a crucial role in a follow up and review process that is “open, inclusive, participatory and transparent for all people.”
To operationalize the principles of participation and transparency, the U.S. should engage in robust and meaningful consultation with civil society to both develop national indicators for the SDGs and the national process for reporting and review. And it should offer a strong role for civil society in data collection and in the reporting and review process itself. As in the treaty review and UPR processes, the United States should offer a formal role for civil society to offer perspectives on whether and how the U.S. is making progress in achieving the SDGs by providing ample space for civil society to present data, including citizen-generated and qualitative data, for consideration during the national reporting and review cycle.
- Non-discrimination and disaggregated data
To adhere to the SDG’s mandate to “leave no one behind,” and to assess gaps in implementation, the United States should ensure that national indicators call for the collection of disaggregated data. National indicators should call for data to be disaggregated according to gender, race, income, ethnicity, national origin, disability, age, and by urban, rural, metro areas, as well as other factors linked to inequality and rights violations.
- Subnational outreach and implementation
The SDGs are meant to be implemented at every level of government, including the subnational level. Goal 11 calls for inclusive, safe, resilient, and sustainable cities. As with the human rights treaties, state and local governments are essential partners in implementation of the SDGs. Cities such as Baltimore and New York have already taken up the mantle. The federal government can further these efforts and encourage others by engaging in education and outreach to state and local officials about the U.S.’ commitments under the SDGs, and engaging state and local officials in national and local indicator formation, as well as reporting and review.
- Private sector engagement
The 2030 Sustainable Development Agenda recognizes the role of the private sector in implementation of the SDGs.Core to its implementation of the SDGs, the United States should seek to measure whether and how private companies conduct themselves consistent with their human rights responsibilities, including as articulated by the UN Guiding Principles on Business and Human Rights. The United States should incorporate a regular review of the sustainable development impacts of large businesses into its national reporting and review process, including an assessment of the impact of U.S. companies within the United States.
By modeling participation and transparency, ensuring the collection of disaggregated data, engaging in strong outreach to and engagement with state and local officials and the private sector, and integrating human rights principles into every aspect of implementation, the United States can offer a global model for implementation of the SDGs, and ensure that a universal anti-poverty agenda tackles the pressing problems of poverty and inequality at home.
Sunday, January 3, 2016
Recently, the U.S. Department of Justice (DOJ) launched an effort to combat practices of local criminal justice systems in which public officials, law enforcement officers, and judges collude to incarcerate people for minor offenses in order to generate revenue.
On December 2, 2015, DOJ lawyers convened a meeting of academics, state officials, and civil rights advocates to explore how the federal government can assist them in preventing these types of constitutional violations in state and local courts.
This follows the March, 2015, release of an extensive investigative report by DOJ’s Civil Rights Division, revealing that Ferguson, Missouri, officials has engaged in such practices. Yet, despite the recent scrutiny of Ferguson’s municipal court system, change in Ferguson and elsewhere has been incremental.
From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.
But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.
Across the United States, including here in North Carolina where I teach and practice law, people convicted of even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, face an array of fees, court costs, and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment—and ultimately incarceration.
As I’ve written here before, these modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.
In North Carolina, these court fees have been steadily rising—far outpacing the rate of inflation—over the past two decades. All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court. If these fees continue to increase at the same rate, they will exceed $500 by the year 2025. Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee, and a $25 criminal record check fee.
People of color and those with low-income are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.
In 1970, the U.S. Supreme Court concluded in Williams v. Illinois that extending a prison term for an inability to pay criminal-justice debt violated the Fourteenth Amendment’s Equal Protection Clause, and in 1983 in Bearden v. Georgia, it barred a court’s revocation of probation for failure to pay a fine without first inquiring into a defendant’s ability to pay. Yet, jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful. Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
With millions of low-level offenders filling U.S. jails and prisons due (both directly and indirectly) to unpaid LFOs, private probation companies and the state and federal corrections agencies to which they supply goods and services have all thrived while the inmate population has expanded. Likewise, private corporations such as Honda, Microsoft, Starbucks, and Target have increasingly relied on prison labor, as it is cheap and virtually liability-free for the employer. Even the privatization of youth confinement facilities is now widespread in the United States, with almost half of them privately operated, creating a built-in incentive for companies to increase the number of juveniles confined and lengthen the terms of their incarceration. In short, everyone wins—except the impoverished person unable to pay off her criminal justice debt.
The proliferation of court fees, and the costs incurred by the state to collect them, has prompted some judges, politicians, and lawmakers across the U.S. to question whether the practice has gone too far.
For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions. Other states have implemented similar programs.
In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the state legislature has mandated that many fees, such as the application fee for a public defender, are not waivable.
It is encouraging that DOJ is making this issue a priority, although one hopes that they approach the issue aggressively and with purpose. Courts and lawmakers across the U.S. must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons.
Wednesday, December 2, 2015
In mid-November, an 8-year-old boy in Birmingham, Alabama, was charged with the murder of a 1-year-old girl named Kelci Lewis. The authorities announced that late on October 10, the girl’s mother and a friend had left six children, none older than 8, at the home unsupervised. They believe that the boy had “recklessly” and “viciously” beaten the toddler when she would not stop crying. The case will be heard in Jefferson County Family Court and can result in a disposition that includes long-term court supervision of the boy and confinement in a secure facility until age 21. Katerra M. Lewis, Kelsi’s 26-year-old mother, has been charged with manslaughter.
In Alabama, there is no minimum age at which children may be prosecuted in juvenile court. Criminal cases can only be transferred from family court to adult criminal court when the defendant is at least 14 at the time the alleged offense occurred. Therefore, the options available to the district attorney’s office in this instance are to prosecute the boy in family court or not to charge him at all.
The jurisdictional limits in North Carolina, where I teach and practice, are similar: the minimum age for juvenile court prosecution is 6, and juveniles must be at least 13 to be eligible for transfer to criminal court.
What could possibly justify bringing a murder charge against an 8-year-old child, who in many states is presumed not to have capacity to form criminal intent or to understand court proceedings? Lara M. Alvis, a former juvenile court prosecutor from neighboring Shelby County, Alabama, has explained, “They either had to say ‘we’re not going to charge’ or ‘we are going to charge,’ and once they say they’re not, that’s going to be a huge problem, because then the child won’t get any services by the state.”
This notion that certain families must be directed into the juvenile justice system in order to “help” the youth and facilitate services, accountability, and discipline is a common misperception.
In 2013, U.S. courts with juvenile jurisdiction handled 1.1 million delinquency cases. Nearly 18% were dismissed at intake and an additional 27% were handled informally, with the juvenile agreeing to some type of voluntary sanction, such as community service or restitution. In 55%, authorities filed a petition and handled the case formally, as they are doing in Birmingham.
In North Carolina, the numbers of cases that were dismissed or handled informally in 2013 were even lower than the national average – only 38.5% of the 158, 973 juvenile court complaints received did not result in formal charges.
In other words, police officers, prosecutors, probation officers, and judges make decisions that cumulatively ensure that more than half of the children enter and remain in the juvenile court system, while the rest are diverted out of it or manage to avoid it altogether. Research shows that the race and ethnicity of the child partially explains this result, as the rate at which black youth in the U.S. were referred to juvenile courts for a delinquency offense in 2013 was more than twice the rate for white youth.
The role of the child’s socioeconomic status has received less attention, although jurisdictions that formally keep track of the income-level of a youth’s family have found that nearly 80% of those in juvenile court were on public assistance or had annual incomes of less than $30,000.
My own research has confirmed that the assumption that court involvement is the best way for poor children and their families to access needed services merely perpetuates a cycle of disadvantage, creating a permanent underclass and contributing to mass incarceration.
This concept, which I call needs-based delinquency, is rooted in the early history of the juvenile court when the focus was on the needs of destitute youth. The founders of the juvenile court were part of a nineteenth century movement that helped elevate the status of children from that of property to a dependent class in need of protection by the state.
In 1825, reformers established the New York House of Refuge, which provided food, shelter, and education to homeless and impoverished youth, many of whom were children of recent immigrants. They made few distinctions between children who were paupers and those who committed crimes and viewed poverty and crime to be virtually synonymous. As legal historian Sanford Fox wrote in 1970, “Unattended pauperism was thought to ripen into criminality, and uncontrolled criminality—particularly vagrancy, beggary and minor thefts—swelled the ranks of paupers who had to be supported in public institutions.” The reformers of this era conceived of both of these conditions in moral terms. Philanthropists as well as public officials believed that immorality caused poverty and that the poor, by virtue of their socioeconomic status, posed a threat to lawful society.
Needs-based delinquency continues to be perpetuated through the structure and culture of the modern juvenile court, beginning with the most common points of entry into delinquency court—the child welfare system, public schools, retail stores, and neighborhood police presence. In all of these forums, typical adolescent behavior of children from poor families is more likely to be criminalized and result in court referrals than misconduct by children from families of means.
The insidious phenomenon is further sustained via juvenile code provisions and court practices as well as the individual perceptions and biases of system actors. For instance, the legislation that governs juvenile court practice in each state commonly contains provisions that explicitly call for consideration of a child’s needs and the family’s socioeconomic status. Also, court policies give decision-makers wide discretion to consider these factors at critical stages of the case.
As a result, there are two explicit tracks that exist in the juvenile justice system: one for middle- and upper-class families who are able to secure private services for their children, such as mental health counseling and drug or alcohol treatment, and the other for low-income (often minority and single-parent) families who can most readily access these resources through a court order following a juvenile delinquency adjudication.
In this way, at each stage of the process, the court gives as much or more weight to the perceived “needs” of the child than to the strength of the evidence against her or to the propriety and rationality of pursuing a criminal prosecution, as in the case of a 8-year-old boy charged with murder.
This phenomenon is particularly troubling given research indicating that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign—even when the disposition is arguably beneficial. Potential negative consequences of juvenile delinquency adjudications implicate such areas as housing, education, immigration, and employment as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized in the process.
This concern over stigma draws on sociological literature on labeling theory, the concept that attaching a label to a behavior creates further “deviance.” Once the label of juvenile delinquent is formally imposed, it is readily accepted by both the child and the community, and the child is defined and perceived by others through the lens of this label. Community members, police officers, teachers, and potential employers then interact with and judge the child according to that description.
With the increasing awareness of the income gap and how it affects the most vulnerable among us—poor children and their families—we know that children who grow up in poverty are likely to remain poor. We know that language deficits exist in poorer homes and that gaps in school achievement between higher-income and lower-income students have become chasms. We know that poverty impacts the physical health of children—from obesity and diabetes to asthma and heart disease. We know that toxic stress can develop in young children, caused by exposed to stress hormones, such as cortisol and norepinephrine. We know that this level of stress may actually reset neurological and hormonal systems, permanently impacting children’s brains and even their genes.
We also know that when young people perceive court procedures to be unfair, they reoffend at higher rates. We know that detention, even for short periods of time, can be damaging to a child’s emotional well-being and that it exposes young people to the risk of assault. We know that reducing the rate of juvenile incarceration does not increase juvenile crime or violence. And we know that the number of cases that are referred to the juvenile court system approximates the same percentage of youth who have been found to grow out of delinquent behavior through typical adolescent development without any court intervention.
Yet, we continue to use the juvenile court system as the primary safety net for poor children and their families. We allow those children with the most needs—emotional, physical, and behavioral—to be fast-tracked through an indiscriminate intake system. We watch passively as they are saddled with the stigma of juvenile delinquency adjudications and are often warehoused for months or years in juvenile detention facilities.
The 8-year-old boy in Birmingham, Alabama, may sound familiar to you. He may remind you of a friend’s child or a young neighbor. He may even resemble your own son or your younger self. Imagine if he were from a family of means with two college-educated parents who were both gainfully employed. Imagine he had access to therapists and tutors. Picture him living in a well-tended home in a suburban neighborhood. Would this have made a difference to the Jefferson County district attorney’s office? To the Birmingham Police?
Adjudicating children delinquent by reason of poverty is a counterproductive approach. All of our children deserve better.
Tuesday, October 13, 2015
Prof. Fran Quigley has written a fascinating analysis of the effectiveness of the U.S. Tax Code's charitable contributions deduction and whether the poor benefit from the current scheme. The answer is no. The charitable deduction is largely used by the very wealthy to endow college buildings, art donations and other "charitable" acts that benefit the already well off. Individuals who lack resources receive little to no benefit from charitable contributions as they are currently structured. The article, For Goodness’ Sake: A Two-Part Proposal for Remedying the U.S. Charity/Justice Imbalance is scheduled to be published by Virginia Journal of Social Policy and the Law and can be read here. The abstract reads as follows:
"The U.S. approach to addressing economic and social needs strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who despite the overall U.S. wealth struggle with inadequate access to healthcare, housing, and nutrition. This article suggests a two-part approach for remedying the charity/justice imbalance in the U.S.: First, the U.S. should eliminate the charitable tax deduction, a policy creation that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This two-part process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back; justice a step forward."
Thursday, September 10, 2015
By Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute; Lecturer-in-law, Columbia Law School
At the end of this month, an extraordinary group of world leaders will gather at the U.N. in New York to adopt a new agenda intended to eliminate global poverty by 2030. Countries have been negotiating the terms of these anti-poverty goals for several years. I’ve previously noted the significance of the Sustainable Development Goals’ (SDGs) explicit incorporation of human rights, and, with David Udell of the National Center for Access to Justice, remarked on specific implications of Goal 16, which calls on the United States and all countries to ensure access to justice as a means of accomplishing the larger goal of ending poverty.
The SDGs are not perfect. Nevertheless, with their remarkably broad scope and emphasis on universality and human rights, the SDGs offer a new tool and significant opportunities for U.S. social justice advocates. Here, I suggest five reasons why U.S. human rights advocates should pay attention to the SDGs.
The SDGs potentially will generate a significant amount of data related to U.S. human rights concerns. The SDGs are comprised of 17 goals and 169 targets on a remarkable array of social, economic, and environmental issues. By March 2016, the U.N. Statistical Commission will release a set of global indicators to guide the data collection that will help countries achieve the goals and targets. Each country, including the United States, will be expected to draw on those global indicators to form its own national-level indicators.
Through these global and national-level indicators, the U.S. will track its progress on human rights concerns including gender equality, maternal health care, access to justice, housing, hunger, education, clean water and sanitation, climate change, employment, and inequality. Thus, the SDGs will generate important statistical information which potentially will influence government programs, research, and funding, and which U.S. advocates can incorporate into their advocacy with government officials, the media, communities, and interested stakeholders.
2. Reporting Opportunities
The SDGs offer new opportunities for advocates to report on U.S. progress (or lack of progress) in improving conditions on a range of human rights issues. The SDGs call on each country to track how it is implementing the goals and targets, and to engage with civil society to conduct regular national-level reviews. Though the U.S. has not yet developed the precise mechanism it will use to monitor its implementation of the SDGs, it is expected to do so once the global reporting system is established. Because the SDGs track human rights issues, advocates will be able to use the process to raise awareness around human rights concerns within the United States, particularly on issues concerning economic, social, and cultural rights (such as access to healthcare, education, and housing). In addition, the goals, targets, and indicators will offer important benchmarks for monitoring and reporting on U.S. human rights treaty compliance and human rights progress during the Universal Periodic Review process, as well as offer U.N. special procedures important information with which to assess U.S. human rights progress and concerns.
3. Government Engagement
The SDGs offer significant opportunities for U.S. human rights advocates to engage with the federal government on domestic human rights concerns. The SDGs are intended to be highly participatory, and indeed in international negotiations over the terms of the SDGs, the United States championed Goal 16’s inclusion of participation and transparency. Moreover, the U.S. Chief Negotiator for the Post-2015 Process recently noted that the SDGs and their emphasis on “leave no one behind” largely reflect U.S. domestic policy priorities. Thus, advocates can and should engage in dialogue with the U.S. government as it develops the national-level indicators that the United States will use to measure its progress with the SDGs, as well as what process it will use to review progress at the national level.
Through these conversations, advocates can give voice to areas of human rights concern in the United States, as well as ensure that civil society plays a key function in reviewing progress. As the United States has sought to do with the Universal Periodic Review, it can use the SDGs as an opportunity to model transparency and inclusivity and engage with civil society to determine relevant national level indicators, thus sparking important conversations around pressing human rights concerns within the United States.
4. Cross-Global Learning
By establishing universal goals and a global reporting mechanism, the SDGs offer opportunities for U.S. advocates to learn from advocates and reformers around the world working to ensure robust implementation of the SDGs in other countries. Global-level indicators will generate data that will promote cross-global comparison, as well, allowing U.S. advocates to gauge U.S. progress on economic, social, and environmental concerns in light of global trends. Likewise, the SDGs may facilitate new cross-border alliances between stakeholder communities around the world as advocates work to monitor and urge progress on SDG implementation internationally.
The SDGs are not likely to result in the flow of international development funds to the United States. Nevertheless, the SDGs may influence the philanthropic community within the United States. By establishing priorities, benchmarks, and data, the SDGs may promote evidenced-based giving, and help to set priorities for grant makers on a host of human rights concerns falling within the scope of the SDGs.
Of course, with opportunities come challenges. The SDGs are no exception; there are many obstacles to ensuring that the SDGs have a positive impact on human rights within the United States. These include the challenge of ensuring that the United States adopts meaningful national-level indicators and a robust process for monitoring its domestic implementation. Other difficulties include a general lack of public education and awareness around the SDGs and human rights more generally.
Nevertheless, global adoption of cross-cutting and interconnected goals that explicitly embrace the full scope of human rights offers significant opportunities for advocacy on domestic human rights concerns. U.S. advocates should embrace the SDGs as a new tool to raise awareness, track progress, and promote the full realization of human rights at home.
Wednesday, August 26, 2015
In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms. One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty. Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings. Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter. State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration. Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter.
An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole. In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued. For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail. This was followed by a period when he once again made payments. This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:
Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food. He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.
At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration. On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:
Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding. As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”
The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road. Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments. For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration.
Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost. This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it. In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed. In states that offer hardship waivers of these fees by statute, some fail to provide them in practice. And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.
Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.
Editor's note: Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.
Monday, July 27, 2015
On November 24, 2004, a thirteen-year-old boy named Taylor M. and several other boys in Ventura County, California, threw rocks at construction equipment owned by to J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at over $170,000, including repair costs, rental expenses, and lost labor, although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.
At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade. He was failing several courses and repeatedly disciplined for misbehavior. He was diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder, and his peers ridiculed him for attending special education classes.
On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks. His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts—all ultimately unsuccessful—to find work to pay his restitution.
Despite these hurdles, Taylor made some strides. His grades improved as did his school attendance and behavior, and he managed to complete all eighty hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made…at all.”
The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration. In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1). Appellant failed to establish that he tried to do those things.”
Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs, and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families. Although the U.S. Supreme Court held in Williams v. Illinois (1970) that extending a prison term for an inability to pay criminal justice debt violates the Fourteenth Amendment’s Equal Protection Clause, and in Bearden v Georgia (1983) barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements and consider almost every failure to be “willful.” Some courts impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge. Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For non-custodial parents, failure to pay child support can also lead to time in jail, and the debt often continues to accrue during incarceration, making it nearly impossible to become current.
For youth in the juvenile court system, mandatory attorney fees, detention fees, restitution fines, and supervision fees impose a burden that increases the risk of recidivism. When these circumstances are exacerbated by aggravating factors such as unemployment, substance abuse, or mental illness, families without an extensive support network have little chance of succeeding. In short, for parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration is never a thing of the past.
One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents. This burdens the system and actually interferes with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” It also explicitly provided for enactment of supplemental legislation to enforce the amendment’s substantive provisions. Two years later, Congress passed The Peonage Act in an attempt to prohibit the practice of coerced labor for debt, but in the wake of the Civil War, southern states innovated other ways to impose peonage but avoid violations of the federal statute. Among these were criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, or use of offensive language, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court inBailey v. Alabama (1911) and U.S. v. Reynolds (1914) finally invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Peonage Act, but these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
In several instructive ways, the contemporary justice tax faced by Taylor M. and thousands like him ultimately has the same societal impact as the practice of peonage: both function to maintain an economic caste system. There are, however, a number of common sense legislative reforms for what I’ve called “the new peonage” that lawmakers should consider. They include creating and enforcing court fee exemptions for indigence; eliminating unnecessary interest, late fees, and collateral consequences for defendants; and ending incarceration and extended probationary supervision for non-willful failure to pay. For youth like Taylor M. and their families, our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.
Wednesday, July 8, 2015
One of the lower keyed but significant changes that happened during the whirlwind of opinions and celebrations was the solidification of human rights language in official government comments. Two branches of our government engaged language of spirituality and human rights principles.
In his Rose Garden comments following the release of the Burwell decision, President Obama noted: “We finally declared that in America, health care is not a privilege for a few, but a right for all.” For the moment, the country could focus on our obligation to provide all citizens with basic health care, shifting the perspective from health care as a privilege to a fundamental right.
As has been well reported here and elsewhere, Justice Kennedy continued his theme of dignity in same sex relationships when he referenced dignity as a foundation in recognizing the right of same sex partners to marry. ‘The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm… They [the plaintiffs] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
In his moving eulogy of Celementa Pickney, President Obama alluded to the everyday affronts to their dignity that African Americans experience. “That's what the black church means. Our beating heart. The place where our dignity as a people is inviolate.”
What the President alluded to and what is unstated in Justice Kennedy’s opinion is an accounting of the daily pain suffered by members of excluded communities. Microagressions are the “small” indignities that are suffered due to bias, implicit or explicit.
Thanks to the human rights references of recent weeks, the language is embedded in the American lexicon. Language will not bring a sudden end to danger for gays or blacks, or create an immediate political shift toward providing for the poor. But the language of dignity and community obligation lays the foundation for cultural change.