Legislation Law Prof Blog

Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice

 

The Health Justice Project's founder and director Professor Benfer, will have her latest article published in the American University Law Review. The article is an in-depth discussion entitled Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice. An abstract can be found below with a link to the full article to follow. 

Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice

Emily A. Benfer

Loyola University Chicago School of Law; Loyola University Chicago- Stritch School of Medicine

October 20, 2015

American University Law Review, Vol. 65, No. 2, 2015

Every aspect of society is dependent upon the health of its members. Health is essential to an individual’s well-being, quality of life, and ability to participate in society. Yet the healthcare industry, even at its optimal level of functioning, cannot improve the health of the population without addressing the underlying causes of poor health. The health of approximately 46.7 million individuals, most of whom are low-income and minority, is threatened by economic, societal, cultural, environmental, and social conditions. Poor health in any population group affects everyone, leading to higher crime rates, economic impacts, decreased residential home values, increased healthcare costs, and other devastating consequences. Despite this fact, efforts to improve health among low-income and minority communities are impeded by inequitable social structures, stereotypes, legal systems, and regulatory schemes that are not designed to take into account the social determinants of health in decision-making models and legal interpretation. As a result, a large segment of the population is continually denied the opportunity to live long, productive lives and to exercise their rights under democratic principles. Health, equity, and justice make up the keystone to a functional, thriving society. Yet these principles are unsatisfied when they do not apply equally to all members of society. In this article, I describe the social roots of poor health and how social injustice, health inequity, and poverty are inextricably linked. For example, I provide an in depth overview of the social determinants of health, including poverty, institutional discrimination and segregation, implicit bias, residential environmental hazards (leading to diseases like lead poisoning and asthma), adverse childhood experiences, and food insecurity. I discuss how the law is a determinant of health due to 1) court systems that do not evaluate individual circumstances, 2) the enactment of laws that perpetuate poor health and 3) the lack of primary prevention laws. Finally, I demonstrate how addressing these issues requires true adherence to principles of equality and making justice and freedom of opportunity accessible to everyone. I recommend the creation of “health justice,” a new jurisprudential and legislative framework for the achievement and delivery of health equity and social justice.

For the full article visit the link below: 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2672396

A Check-up on Health and Hunger

        The first day of Loyola University Chicago’s annual hunger week began today Monday, November 2nd. Hunger week is a school wide tradition with the intent to increase awareness of hunger issues and raise money for organizations fighting hunger year round. Over 30% of families with food insecurity stated they had to decide whether to pay for food or medical care. With parents struggling to take care of their children’s health and nutritional needs, the American Academy of Pediatrics (AAP) is implementing a change to address these competing concerns. During the American Academy of Pediatrics’ National Conference & Exhibition in Washington, DC the organization released a statement on a new policy titled “Promoting Food Security for all Children.” According to the US Department of Agriculture (USDA) approximately 16 million children do not have access to sufficient amounts of food, and 7.9 million children are currently living in food insecure households. For many the grocery budget is one of the only flexible portions of their monthly bills. Rent and utilities are a fixed amount, but food costs can be stretched or squeezed to accommodate other immutable monetary demands.

        In their statement the AAP noted the connection between childhood food insecurity and lifelong health effects. The USDA defines food insecurity as limited access to adequate food due to financial or other resource concerns. Children in food insecure households at any level are sick more often, hospitalized more frequently, recover from illnesses more slowly, and are more likely to suffer from malnutrition which can lead to diabetes and cardiovascular disease in their adult lives. Lack of sufficient, nutritious food has also been linked with detrimental behavioral and emotional effects, such as impaired ability to concentrate and perform well at school.

        The new policy acknowledges the difficulty in recognizing malnutrition in a wide variety of demographics. During a child’s usual check-up the typical medical indicators of malnutrition may not be apparent. Dr. Sarah J. Schwarzenberg, a contributor to the policy and a director of pediatric gastroenterology and nutrition at the University of Minnesota Masonic Children’s Hospital, acknowledged the misconception that food insecurity is easily recognizable because the individuals will look ‘poor.’ Though commonly associated with children in urban low-income households, children in the suburbs and rural areas are also susceptible to food insecurity. Families with unemployment, underemployment, low-income, or those that are headed by a single parent may not match the stereotypical food insecure image. Income is more unpredictable than before which has lead to a rise in chronic hunger for families across the nation.

        Physicians are asked to screen families for food insecurity during their doctor’s appointments and recommend community or governmental resources. The screening tool asks two questions: if the parent worried that their food would run out before they could purchase more, and whether their food was able to last until they were could purchase more. Nutritional epidemiologist at the University of Maryland School of Medicine, Erin R. Hager, stated these questions would identify 97% of food insecure families. The across-the-board screenings will create an opportunity for parents to broach the subject with their physician. This intermediary step removes the fear and embarrassment of asking for help, since children and parents are unlikely to initiate a conversation about these struggles on their own. Physicians can use this moment to reassure the family that their situation is common and they’re willing to help. The new policy suggests all physicians maintain a list of community resources and familiarize themselves with the programs. Identifying food insecurity early and providing information about how to access food resources will hopefully counteract the growing numbers of child hunger and prevent negative health effects before they begin.

 

Sources: 

1. New AAP Report Targets Lack of Adequate Food as Ongoing Health Risk to U.S. Children, American Academy of Pediatrics, https://www.aap.org/en-us/about-the-aap/aap-press-room/pages/Lack-of-Adequate-Food.aspx (last visited October 29, 2015).

 

2. Catherine Saint Louis, Pediatricians Are Asked to Join Fight Against Childhood Hunger, N.Y. Times, Oct. 23, 2015, http://www.nytimes.com/2015/10/24/health/pediatricians-are-asked-to-join-fight-against-childhood-hunger.html?_r=1 9.

 

3. Allison Aubrey, Are You Hungry? Pediatricians Add A New Question During Checkups, National Public Radio, Oct. 23, 2015, http://www.npr.org/sections/thesalt/2015/10/23/450909564/are-you-hungry-pediatricians-add-a-new-question-during-check-ups.

 

4. David K. Shipler, The Working Poor: Invisible in America, 201 (2004) available at http://www.progressivewomensalliance.org/images/2005_07.pdf (last visited October 29, 2015).

 

5. Alisha Coleman-Jensen, Matthew P. Rabbitt, Christian Gregory, Anita Singh, Household Food Security in the United States in 2014, United States Department of Agriculture, http://www.ers.usda.gov/media/1896841/err194.pdf  (last visited October 29, 2015) 

Los Angeles’ $100 Million Promise to Address Homelessness

    Mayor Eric Garcetti is promising to put an end to the chronic homelessness found in Los Angeles. On September 22, 2015 the Los Angeles mayor and city counsel members proposed to declare a ‘state of emergency’ and devote up to $100 million to address homelessness. The mayor took action the day preceding the announcement by issuing a directive to gather $13 million within the next few months to fund stopgap measures such as housing subsidies and funding for extending shelter availability. Budget officials claim over $100 million is already being spent regarding homelessness issues, though the majority is through law enforcement efforts.  

    Despite the strong initiative, counsel members are encountering difficulty identifying sources for the 100 million and no clear plans have been created designating the use for the immense funding. Mayor Garcetti did give a broad over view of his three-part plan to address homelessness. The plan involves expanding the city and county system for tracking homeless individuals, adding centers where the homeless can access social services and store belongings, as well as anti-poverty measures to prevent people from becoming homeless initially. In addition, the Mayor suggested using $12 million from unexpected tax revenue to fund rent subsidies.

    The initiative could ease restrictions on nonprofit organizations and churches that shelter the homeless, as well as create funding for housing and other services. Megan Hustings, the director of the National Coalition for the Homeless, stated creating affordable housing would make a substantial impact towards resolving the homelessness epidemic. Steve Berg of the National Alliance to End Homelessness echoes the importance of housing stating “what we’ve learned about homelessness over many, many years is that you have to provide housing, and criminalizing the homeless doesn’t keep people off the streets.” Nationally homelessness has declined, however, in areas such as cities where the cost of housing is on the rise, homelessness also increases. Over the past two years the number of homeless individuals increased by 12%. With the rent in Los Angeles soaring across the city, housing vouchers are unable to cover the full cost of a unit. Gentrification of the few areas in Los Angeles with affordable housing eliminated the few units that these individuals possibly could have afforded. Attempts to create new affordable housing struggled and the city itself began to dissolve the funding these efforts to a fourth of the previous funding levels.

    UCLA law professor Gary Blasi notes the proclamation is a positive step for the city, which had previously focused on using the police force to discourage encampments. Shifting the focus to areas recognized by homeless advocates could finally quell the rising population in Los Angeles. The nascent proposition has many foundational hurdles to overcome concerning planning and funding, however, the impact could reach beyond the city’s borders. If successful, this approach could extend to cities across the country to address the state of emergency facing countless homeless individuals and families.

1. Jennifer Medina, Los Angeles Puts $100 Million Into Helping Homeless, N.Y. Times, Sept. 22, 2015, http://www.nytimes.com/2015/09/23/us/los-angeles-plans-100-million-effort-to-end-homelessness.html.

2. Peter Jamison, David Zahniser, & Matt Hamilton, L.A. to Declare ‘State of Emergency’ on Homelessness, commit $100 Million, L.A. Times, Sept. 22, 2015, http://www.latimes.com/local/lanow/la-me-ln-homeless-funding-proposals-los-angeles-20150921-story.html.

3. Shelby Grad and Gale Holland, How the Los Angeles Homeless Crisis Got So Bad, L.A. Times, Sept. 22, 2015, http://www.latimes.com/local/lanow/la-me-ln-how-los-angeles-homeless-crisis-got-so-bad-20150922-story.html.

Hallmark Housing Victory in Chicago

    Cabrini-Green was a Chicago Housing Authority (CHA) public housing project that became a symbol of the public housing deficiencies, ranging from crime to deplorable living conditions. The last of the buildings were demolished in 2011, leaving only a small set of row houses, built in the 1940s. When CHA failed to fulfill its long-standing commitment to rehabilitate the row houses and add public housing units, the Cabrini-Green Local Advisory Council, represented by LAF Chicago and Sidley Austin, brought a federal lawsuit. LAF Attorney Elizabeth Rosenthal stated the goal was to provide additional public housing in Near North Chicago, a quickly gentrifying neighborhood. The parties reached a settlement that requires the CHA to ensure that at least 176 of the rehabilitated row house units be set aside for low-income tenants. Additionally, the CHA agreed to create 1,800 total low-income units. Under the settlement, the new units must be completed by December 2022.

    The Francis Cabrini Row houses at the center of the settlement were originally built in 1942 as a part of the Chicago Housing Authority’s plan for ‘urban renewal.’ The CHA seemed to neglect the housing project for several years and sought to demolish it in the late 1990’s to begin work on their “Plan for Transformation.” The plan required demolishing thousands of units and rehabilitating them for public housing. Roughly 25 percent of the 586 row houses were rehabilitated and all high-rise apartments were demolished. However, all construction ceased in 2011. Influenced by the improving neighborhoods, CHA leaders sought to change the remainder of the site from public housing to mixed income housing. Though the CHA intended to rehabilitate the residual 440 row houses to meet the public housing needs, the houses sat unused for years.

    In their 2013 suit, the Cabrini-Green Local Advisory Council argued that hundreds of low-income units would be eliminated if the CHA incorporated mixed-income units into the site. And it would be extremely difficult to replace the units in a comparable neighborhood, the CHA would need to seek more affordable sites, which are typically located in high-poverty and segregated areas of Chicago. The row house residents would continue to be segregated into disenfranchised neighborhoods perpetuating the cycle of deepening poverty in specific communities.

    The settlement between the Advisory Counsel and the CHA is an encouraging compromise. The terms of the settlement allow the CHA to build mixed income housing where the row houses currently stand while guaranteeing that a minimum of 40% of the units created by the CHA will be for public housing. In addition, no less than 15% of the units are required be to affordable housing. The 146 row houses that were renovated as part of the Plan for Transformation will continue to be operated as public housing.

            This is a landmark victory under the Fair Housing Act that promises to make housing in a racially and economically diverse area accessible for at least 1,800 low-income families and individuals. The importance of this outcome for the future health and well being of those families cannot be overstated.

1. Jon Seidel, Judge Oks Deal to Bring More Public Housing to Near North Side, Chicago Sun-Times, Sept. 17, 2015, http://chicago.suntimes.com/news/7/71/968082/cabrini-green-public-housing-settlement.
2. Dawn Rhodes, Cabrini-Green Residents, CHA Settle Lawsuit – Adding Public Housing in Area, CHI. TRIB., Sept. 13, 2015, http://www.chicagotribune.com/news/local/breaking/ct-cabrini-green-settlement-met-20150913-story.html.
3. The End of Cabrini-Green, TIME, http://content.time.com/time/photogallery/0,29307,2034317,00.html (last visited October 1, 2015).
4. Payton Chung, Short History of Cabrini-Green, Westnorth.com, http://westnorth.com/2003/01/02/short-history-of-cabrini-green (last visited October 1, 2015).
5. Richard Florida, The U.S. Cities Where the Poor are Most Segregated From Everyone Else, The Atlantic City Lab, March 24, 2014, http://www.citylab.com/housing/2014/03/us-cities-where-poor-are-most-segregated/8655/.

Nuisance Ordinances and the Progress in Illinois

         On June 23, 2012, Lakisha Briggs was again cornered by her abusive ex-boyfriend in fear for her safety, and the safety of her three-year-old daughter. Unlike previous occasions Lakisha was faced with the appalling choice of calling the police or being evicted from her rental home. That evening her ex-boyfriend broke an ashtray against her head, then using the broken glass he stabbed her in the neck until she passed out. Hearing the disturbance, a neighbor called the police and Lakisha was flown by trauma helicopter to a nearby hospital. Despite the severity of the assault, Lakisha’s fear of eviction overpowered her and she did not call the police leaving her helpless to endure the wrath of her attacker.

        These fears and concerns are national, with a less drastic yet similar situation occurring recently in Arizona. Both Lakisha and the victim in Arizona were placed in these situations due local nuisance ordinances. The past decade has seen a rise in these ordinances and Crime Free Multi-Housing programs across the nation. They have been adopted by 48 states and around 2,00 cities across the country. Under the ordinance a building will be labeled a nuisance if a specified number of calls are made to the police within a set amount of time, such as three months. The laws are intended to prevent crime by activating individuals who are in a position to influence the environment where the acts are occurring. In Illinois, landlords can evict tenants from their homes if the tenant contacts the police an excessive number of times. The ACLU notes that these ordinances do not distinguish between victims or perpetrators of the crime, which has a disproportionate effect on victims of domestic violence.

        The risk of eviction is yet another factor to add on top of the troubling and frightening situation that is domestic violence. According to the Illinois Coalition Against Domestic Violence 17,000 adults and over 2,000 children served by their shelters in 2014 were from rental housing. However, Illinois domestic violence victims do have hope thanks to Senator Toi Hutchinson. The Senator introduced Senate Bill 1547 in February that was aimed at preventing the creation and enforcement of laws that punish both tenants and landlords if the police are contacted for “domestic or sexual violence, criminal activity, or other emergency situations.”

        As of November 19, 2015 these individuals will be protected under Public Act 099-0441. Since February Senator Hutchinson’s bill has passed through the Senate, the House, and the hands of the governor to be approved as a public act on August 21, 2015. Though the act was amended three times, the overall purpose remained intact. Under the Act it is prohibited for a city to enact or enforce regulations, which would punish tenants or landlords for contacting the police about actual or threats of domestic or sexual violence. The act also empowers a tenant or landlord who may have been wronged by noncompliant laws to bring a civil action for compensatory damages, an injunction, and other appropriate relief. This victory for Illinois is a shining example for the rest of the nation. As other states begin to protect instead of punish victims of abuse the shadow of domestic violence will finally start to recede.

 

Sources:

1. Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E. D. Pa. filed April 24, 2013) available at https://www.aclu.org/files/assets/norristown_complaint.pdf

2. Jessica M. Pieklo, Advocates: Domestic Violence Survivors Dace Housing Instability Under Arizona Housing Ordinance, RH Reality Check (August 31, 2015), http://rhrealitycheck.org/article/2015/08/31/advocates-domestic-violence-survivors-face-housing-instability-arizona-housing-ordinance/

3. The International Crime Free Association hosts a national conference and twelve- hour train the trainer program. Crime Free Multi-Housing, INTERNATIONAL CRIME FREE ASSOCIATION, http://www.crime-free-association.org/multi-housing.htm (last visited September 5, 2015).

4. Mathew Desmond, Eviction and the Reproduction of Urban Poverty, 118 AM. J. SOC. 88, 91 (2012), available at http://scholar.harvard.edu/files/mdesmond/files/desmond.evictionpoverty.ajs2012.pdf

5. New Legislation Introduced to Prevent Illinois Crime Victims From Being Evicted Under Local Ordinances, ACLU (February 23, 2015), available at http://www.aclu-il.org/new-legislation-introduced-to-prevent-illinois-crime-victims-from-being-evicted-under-local-ordinances

6. Phil Kadner, Victims of Crime Hurt By Crime-Free Laws, CHI. TRIB. (February 26, 2015), http://www.chicagotribune.com/suburbs/daily-southtown/opinion/ct-sta-kadner-tenants-st-0227-20150226-column.html. 

7. New Legislation Introduced to Prevent Illinois Crime Victims From Being Evicted Under Local Ordinances, ACLU (February 23, 2015), available at http://www.aclu-il.org/new-legislation-introduced-to-prevent-illinois-crime-victims-from-being-evicted-under-local-ordinances

8. Public Act 099-044, available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0441

9. Status of SB1547, 99th General Assembly, (2015), http://www.ilga.gov/legislation/billstatus.asp?DocNum=1547&GAID=13&GA=99&DocTypeID=SB&LegID=88215&SessionID=88&SpecSess=

 

Eviction Court: A Study of Injustice from the Galley

    Last week, Health Justice Project clinic students participated in a court watch at Chicago’s eviction court. In some instances, the students provided support to unrepresented defendants. One student, Amanda Plowman, reflected on that experience:

    On Tuesday morning, I traveled to the intimidating Daley Center for a court observation. I met two women there. The couple had received a notice of eviction from their landlord and hoped to request additional time to find an attorney. I provided moral support, which, I was surprised to learn, made a substantial difference to the couple. As we navigated the crowded courtroom, the couple expressed how stressful, foreign, and terrifying the situation was for them. One of the women showed me how badly her hands were shaking in anticipation of coming before the court. I didn’t blame her.

    The courtroom was packed with people. Every now and then one of the landlord attorneys would stand in front of the wooden gate facing the self-represented litigants with a stack of filed in their hands and yell out a tenant’s name. If someone answered, the attorney would walk with them outside and try to negotiate (or bully a tenant into) a plea of guilty. The attorneys were calm while the self-represented litigants fidgeted nervously in their seats waiting for the judge to arrive. When the judge did arrive each case was argued and over within a matter of minutes if not less. I was astonished that such an important decision- whether a tenant was to become homeless or not- was made in the blink of an eye. Unfortunately, this experience isn’t unique.

    A study of eviction court conducted in 2002 by the Lawyers’ Committee for Better Housing, Inc. (LCBH) and Chicago-Kent College of Law concluded that tenants were at a disadvantage, as evidenced by the court’s failure to require the landlord to establish their prima facie case for eviction. For example, landlords must meet due process requirements when providing notice of an eviction. Judges only examined the notice in 65% of the cases.

    The odds are also stacked against tenants. The majority of tenants do not know their rights. Even if they do have a valid habitability defense, they are unaware of the steps to properly address these issues such as notifying their landlord, or other procedures that could have sustained the viability of their defenses. Despite having a valid defense, the research shows in only 27% of the cases did judges ask if the tenant had a defense. If the tenant did raise a defense they would not have known how to present it in a legally cognizable way or how to properly establish the grounds for their defense. Both elements would need to occur within 1 minute and 44 seconds, which the study found was the average length of an eviction hearing. To complete the picture, even though 55% of tenants brought forth a valid defense to the judge, all of them were evicted from their homes.

    In addition, the majority of tenants are self-represented which also puts them at a disadvantage. Low-income parties are typically self-represented since they have difficulty obtaining legal counsel not only due to the high cost, but also due to the lack of legal services for free or low cost assistance. A New York Times opinion article by Matthew Desmond notes, that 90% of tenants across the nation appear in eviction court without an attorney. Where as 90% of landlords are represented by an attorney. The situation seems obviously in favor of the landlord since representation makes a dramatic impact in the outcome for an eviction case. In a pilot project that took place in Quincy, Massachusetts eviction courts provided free legal representation to low income tenants. Two-thirds of the fully represented tenants were able to remain in their homes, where only one-third of the self-represented tenants obtained a similar result. As compared to the self-represented tenants, the represented tenants received approximately five times more financial benefit from claims such as damages or revocation of rent that was past due.

    Similarly, the LCBH study also included quantifiable information about the difference legal counsel makes in an eviction proceeding. Overall, the average length of a hearing was 1 minute and 44 seconds. If the landlord was represented by an attorney and the tenant was not, the average length of a hearing decreased to 1 minute and 38 seconds. If the tenant was represented by an attorney and the landlord was not, the average length of a hearing was over twice as long, increasing to 3 minutes and 22 seconds. By the numbers alone, having an attorney makes a substantial difference in leveling the playing field in eviction courts.

    The couple I was with was able to advocate for themselves and did receive additional time to find an attorney to represent them. They are now one step closer to defending themselves against a system that is skewed against the tenant. Thankfully, there are organizations that do assist tenants with eviction claims. Whether it be educating the self represented on their rights, or providing low cost or even free legal aid, associations such as Lawyers’ Committee for Better Housing and Illinois Legal Aid are working to even the playing field. Chicago – like most cities - has a long way to go to rectify the imbalance in eviction court but with help from these groups tenants have a fighting chance to keep a roof over their heads.

 

Sources:

1. LAWYERS’ COMMITTEE FOR BETTER HOUSING, NO TIME FOR JUSTICE: A STUDY OF CHICAGO’S EVICTION COURT (2003), available at http://lcbh.org/sites/default/files/resources/2003-lcbh-chicago-eviction- court-study.pdf
2. The Justice Gap: Corporate Lawyers are Making Record Revenues, But Legal Aid is in Crisis, HUFFINGTON POST (Jul. 7, 2015), available at http://www.huffingtonpost.com/susan-beck/legal-aid-funding_b_7744964.html.
3. Mathew Desmond, Tipping the Scales in Housing Court, N.Y. TIMES (Jun. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/tipping-the-scales-in-housing-court.html.
4. Boston Bar Association Task Force, The Importance of Representation in Eviction Cases and Homelessness Prevention 2 (2012), available at http://www.bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf.

 

Two new articles on factors that influence the enactment of model laws

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.

New scholarship on model laws as a means of (conservative) legal innovation

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.

The Rise of the Model Law as a Mode of Governance

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. 

Facing divestment, ALEC threatens to sue critics who say it denies climate change

This post was written by Nate Ela, of COWS

Way back In the 1980s, researchers at the American Legislative Exchange Council (ALEC) recognized divestment as a threat to business as usual (see yesterday's post). At the time, the issue was apartheid, and the target for divestment was South Africa. In a 1983 legislative update, ALEC argued that “although South Africa is the initial target, it is not likely to be the last… activists can be expected to broaden their divestment strategy.”

Three decades later, the target is ALEC itself. Activists are using divestment to starve ALEC of revenue, by scaring off its corporate members. A few years ago, in the wake of the Trayvon Martin shooting and the revelation that ALEC had supported Stand Your Ground laws, corporations started canceling their ALEC memberships. Activists realized that by exposing ALEC’s extreme positions, they could pressure corporations to cut ties with ALEC.

For the past year, the issue has been whether ALEC denies the science of climate change. ALEC’s critics assert it does. ALEC denies the claim. Last month, ALEC sought to take the offensive, by sending cease-and-desist letters to its critics, saying that if they didn’t stop what it claims is defamation, it would sue.

How did things reach this point?

To understand, we need to roll the tape back to last September. Google Chairman Eric Schmidt, in an appearance on NPR’s Diane Rehm show, was asked about ALEC:

REHM: And how did you get involved with them in the first place? And were you then disappointed in what you saw?

SCHMIDT: Well, the company has a very strong view that we should make decisions in politics based on facts. What a shock. And the facts of climate change are not in question anymore. Everyone understands climate change is occurring. And the people who oppose it are really hurting our children and our grandchildren and making the world a much worse place. And so we should not be aligned with such people. They're just literally lying.

This statement seemed to blindside ALEC. Within days, it sent top Google executives a letter, asserting that “ALEC recognizes that climate change is an important issue.” And by the following week, it had posted a new statement on climate change on its website. The statement seeks to make clear that ALEC believes climate change is a problem, but also makes clear that it doesn't think much can be done about it without harming the economy.  

The statement didn’t stop the exodus. Within days, Facebook, Yahoo, and Yelp followed Google’s lead, and eBay followed suit in December. With Microsoft having jumped ship in July, by the end of 2014 ALEC was left without nearly all of its corporate sponsors from the technology sector.

Climate activists celebrated the success of their campaign to pressure tech firms. Brant Olsen of Forecast the Facts declared that "the departure of these firms from ALEC shows that denying the facts on climate change really doesn't have a place in the modern business world.” And another Forecast the Facts campaigner announced their next targets: “we’re looking to AT&T, Verizon, FedEx and UPS to follow suit and distance themselves from Alec’s extreme climate denial agenda. If they choose to stay with ALEC, we’ll be taking the issue to their customers, shareholders and employees.”

Meanwhile, energy firms have also been canceling their ALEC memberships: first ConocoPhillips, then Occidental Petroleum (Oxy), and most recently BP. The companies would not say why, but Oxy may have responded to pressure by activist shareholders. A proxy statement submitted at its 2014 annual shareholder meeting noted ALEC’s opposition to climate policies and suggested the tie to ALEC could pose a reputational and business risk to Oxy.

ALEC’s filings with the IRS from 2010 through 2013 suggest that the departure of corporate members may be cutting into the organization’s finances. (Here are the filings: 2010, 2011, 2012, 2013; 2009 numbers appear on the 2010 form.) Contributions, total revenue, and net assets all peaked in 2011, and fell off markedly in 2012 and 2013. It will be interesting to see whether ALEC was able to turn this around in 2014.

 

ALEC finances, 2009-2013

Last month, with corporate members continuing to flee, ALEC took the next step in its attempt to stanch the bleeding. In letters sent in early March to the League of Conservation Voters (LCV), Common Cause, and CREDO (available here), ALEC’s attorneys demanded that those organizations stop saying that ALEC denies climate change, and cease publishing allegedly false and misleading information.

ALEC’s move seems to have prompted Common Cause, CREDO, and a dozen allies to simply double down on their divestment campaign. On March 18, they registered alecclimatechangedenial.org, which now lays out the case against ALEC in one easy-to-digest website.

By late March, Common Cause and LCV had replied to ALEC’s demands (letters here; CREDO does not seem to have responded). Each organization declined to take down the webpages or retract the statements that ALEC asserted contained false information. LCV’s attorneys added that the ALEC letter “could be viewed as attempting to silence LCV under the threat of litigation.” They noted, with a touch of snark, that LCV was encouraged by ALEC’s support of model anti-SLAPP legislation, which aims to – in ALEC’s words – “encourage and safeguard public participation in civic society” and protect against abusive “lawsuits against those who express their views on matters of public concern.” As an example, LCV cited the anti-SLAPP law in the District of Columbia. Where, it so happens, ALEC is based. 

This exchange of letters went public late last week, and has generated a wave of media attention. As the National Journal has observed, the letters tee things up for ALEC to bring a defamation lawsuit against its critics – though legal experts believe it would be very difficult for ALEC to prevail.

With ALEC’s critics refusing to back down, its corporate members running for the doors – T-Mobile left earlier this week – and its finances apparently in decline, it is unclear what better option it has left. If it backs down, it could be seen as conceding that its critics’ statements are justified. But if it sues, it would invite even more coverage of its controversial positions, and, even worse, potentially allow its opponents to use the discovery process to rifle through its internal files. And if ALEC were to let that happen, who knows what its critics might find?

#TBT: When ALEC First Recognized the Threat Posed by Divestment

This post was written by Nate Ela, of COWS

Amid the recent RFRA controversy in Indiana, some journalists got to asking whether the American Legislative Exchange Council (ALEC) might’ve been behind the spread of “religious freedom” bills around the country. After all, over the years ALEC has promoted model bills on a wide range of topics. 

But when the Christian Science Monitor looked into it, ALEC disavowed the RFRA bill entirely. As Bill Meierling, an ALEC spokesman, put it: “Limited government, free market and Federalism –  if it doesn’t have to do with those three things we don’t do it.” 

"Limited Government, Free Markets, Federalism" is ALEC's slogan, but it's a relatively recent proposition that the slogan actually defines the scope of its activities. ALEC has until just a few years ago promoted model bills whose connections to its slogan were tenuous, at best. Most notably, after the 2012 shooting of Trayvon Martin, the organization drew attention – and controversy – over having promoted a model “stand your ground” law. So much controversy, in fact, that major corporate donors began fleeing. 

Which makes one wonder: has ALEC’s distance from RFRA been due to principle, or fear of further divestment? After all, a free market could be interpreted as one where people are free to refrain from providing services that conflict with their religious beliefs. Or, for that matter, as one where people have a right to be served without regard to their sexual orientation, skin color, or religious beliefs. 

It seems more likely that, in the wake of the stand your ground incident, ALEC's leadership has become hyper-aware of the threat of divestment – in two respects. First, the threat divestment poses for states that enact discriminatory laws, and are then targeted by campaigns like #BoycottIndiana. But also for ALEC itself, should controversial laws prompt its corporate sponsors to pull the plug on contributions. 

Which brings us to Throwback Thursday. ALEC actually saw this coming – a long time ago.

Back in the early 1980s, ALEC was concerned about South Africa. Its concern was not so much the apartheid regime that was perpetuating institutionalized racial domination and exploitation, but rather some activists' efforts to put an end to that regime. As People for the American Way has described, ALEC mobilized throughout the 1980s to oppose the campaign to divest from South Africa. As it noted in a 1983 policy paper,

The underlying problem is the strategy itself – targeting countries for economic sanctions because of actual or alleged human rights violations. Although South Africa is the initial target, it is not likely to be the last… If successful on the South African issue, these activists can be expected to broaden their disinvestment strategy.

In light of recent events, the analysis was prescient. After the Trayvon Martin shooting, there were calls to #BoycottFlorida. When discriminatory RFRA bills were passed in Arizona and enacted in Indiana, there were calls to boycott those states as well. And in the latter cases, those calls for divestment worked. They stopped the RFRA bill in Arizona, and led to it being amended in Indiana.

What's more, as ALEC foresaw, the divestment strategy has broadened. It no longer sets its sights only on governments, but also on corporations and their allies. And, having identified ALEC as a key corporate ally, divestment activists have even marched right up to its own doorstep.

More on that – and ALEC’s response to it – tomorrow.

On Right to Work, Part 3: Imagining new models, and policies, for unionism

This post was written by Nate Ela, of COWS

Half of the states in the U.S. now have “right to work” laws on the books. As earlier posts this week have discussed, such laws do not create anything resembling a real right to work. To the contrary, they create a legal privilege to have job that is covered by a collective bargaining agreement, without paying dues or joining a union.

Legalizing free-riding creates serious problems for labor unions. For decades, their membership and fundraising model has relied on dues collected from members at workplaces with collective bargaining agreements. When workers can free-ride on such agreements, both membership and dues drop off. One study found that within a decade after the passage of “right to work” laws, states generally see a 5% drop in the number of union members. This is a major hit, even in the context of a gradual decades-long decline in union density in every state (NPR’s Planet Money created a map that illustrates the decline over the past 50 years.)

The secular decline and deliberate legislative dismantling of the old model has prompted attempts to imagine what new models for labor unions might look like, and how legislative changes might support them. In a 2006 article in The Nation, Richard Freeman and Joel Rogers proposed a model of “open source unionism,” in which unions would use digital tools to represent workers individually, even at workplaces not covered by collective bargaining agreements. The table below, from their book What Workers Want, summarizes the differences.

Freeman and Rogers, What Workers Want (2006), p. 197

 

In a useful book that came out last year on innovative public policies to support low-wage workers, Freeman reports that a wide variety of “labor organizations,” many along the lines of open-source unionism, have emerged to provide services to workers in a time when unions can no longer do what they used to. 

But even as new organizations emerge to represent workers in new ways, unions themselves must figure out new strategies for representing workers. A central element of a model along the lines of open-source unionism would be allowing unions to represent workers as individual dues-paying members, rather than as workers at a site covered by a collective bargaining agreement.

In “Restoring Equity in Right to Work Law,” Professors Catharine Fisk and Benjamin Sachs note how such individual representation would be problematic under current federal and state laws. Federal labor law, designed for the traditional model of unionism, requires unions to equally represent all workers in workplaces covered by collective bargaining agreements. In “right to work” states, workers in such workplaces can now decline to pay dues and join the union. Since unions are still required to represent all workers equally, they end up representing many nonpaying nonmembers. One of the possible solutions that Fisk and Sachs propose would be to change federal law so unions can represent only members who pay dues.

This and other ideas for how to reimagine labor law came as part of a thought-provoking symposium issue of the UC Irvine Law Review last May. If you’re not interested in reading all of the contributions, a recent Washington Post Wonkblog post summarized many of their proposals, which range from giving unions a role in immigration reform legislation, to making union elections automatic, to better protecting workers’ freedom of association.

At the moment, the form or forms that workplace democracy will take in the future remains uncertain. But the spread of right to work laws and other anti-union legislation is clearly provoking worker advocates to reassess and reimagine their strategies. Even as some commentators predict that a national right to work law could come within the next decade, the White House is planning a summit on labor for this fall. We can expect to see increasing interest in how labor laws might be changed to either defend the old model of unionism, or, perhaps more realistically, help shepherd a new one into being.

On Right to Work, Part 2: Envisioning a *real* right to work, from a French revolutionary to Frank Underwood, via FDR.

This post was written by Nate Ela, of COWS

Yesterday’s post sought to understand why Scott Walker might have rebranded “right to work” as “freedom to work.” Among other things, his move makes one wonder if conservatives might be concerned that some Americans could (mis)understand “right to work” to actually mean what it says. What if people believed they should have a real right to work?

It isn’t entirely inconceivable. The notion that people should have a right to work has a long history, and has emerged from time to time in policy proposals. Once in a long while, politicians have even sought to act on the proposals. Today, the idea remains very much alive, and could even have a natural constituency.

One early proposal for a right to work came in France, in 1839. Louis Blanc, a Parisian journalist, wrote a series of articles that would be collected and published in 1840 as The Organization of Labor (l’Organisation du Travail). Blanc was a critic of social conditions, and believed that the market would never provide jobs sufficient to meet the needs of the poor. His vision? As he wrote, “ASSURE the poor man work.”

Louis Blanc

 

Blanc proposed to do this by having the state set up a system of “social workshops” in various branches of industry. The government would begin by regulating these closely, including the scale of employment; but after a few years, Blanc believed, the workshops would become self-sustaining voluntary associations.

In the wake of the Revolution of 1848, Blanc became a member of the provisional government. This provided a chance to realize his vision. The government published a decree announcing it would bind itself “to guarantee the existence of the workman by labor,” and to “guarantee labor to all citizens.”

The workshop system began to be set up, and workers were recruited to help build public infrastructure. Yet ultimately the system neither received the full support of the government, nor delivered on the promises of guaranteeing work to all citizens. Blanc fell out of favor both with the poor and the National Assembly, and was forced into exile. 

Although his experiment had failed, Blanc’s ideas lived on, and spread. By 1911, an English version of his proposal had been published in the United States.

During the Great Depression, President Franklin Delano Roosevelt began to develop the ideas that would lead him to suggest Americans have a right to work. In his 1944 state of the union address, he argued that during the course of the Depression and the Second World War, Americans “have accepted, so to speak, a second Bill of Rights.”  He put two rights at the top of the list:

• The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
• The right to earn enough to provide adequate food and clothing and recreation 

 

Roosevelt died the following year; his bill of economic and social rights was never adopted as part of our written constitution. The work relief programs of the New Deal were neither imagined as, nor converted into, ongoing social workshops. And although the Humphrey-Hawkins Full Employment Act authorized the creation of a “reservoir of public employment” as a response to high unemployment during the 1970s, such a reservoir has never been established. 

Nevertheless, FDR’s vision remains alive in contemporary political debates, and the American policy imagination. In a 2004 book, Cass Sunstein described the Second Bill of Rights as “FDR’s Unfinished Revolution,” and argued that we need it now more than ever. When Sunstein was nominated by President Obama as a top advisor, conservatives seized on this as a reason to oppose his confirmation. Glenn Beck, master of the paranoid style, even cited the Second Bill of Rights when he named Sunstein “the most dangerous man in America.” 

So the idea of a real right to work is still with us. In fact, just a few weeks ago it was proposed by none other than the President of the United States. 

[Spoiler alert: if you haven’t yet binged your way through the first two seasons of House of Cards, consider doing so before reading on. Or you can just catch up on the plot here.] 

The president in question, of course, is Frank Underwood, not Barack Obama. In the latest season of House of Cards, Underwood confronts an unemployment crisis by proposing a radical work-guarantee program. (This isn’t the first time the policy has played a leading role: Kevin Kline created such a program when he played POTUS in the 1993 film Dave.) 

The fictional political world imagined by House of Cards is incredibly cynical, and some reviewers have found its policy-focused plotlines to be tedious. But its creators have tried to imagine how a real right to work policy might play out, and are effectively screen-testing the idea in front of millions of Americans. They have prompted commentators to debate whether it could happen. Does the political deals the show depicts defy political logic? In any case, would the policy be legal? Is it doable in the real world? Is it just plain bonkers?

Meanwhile, out in the real world, scholars have laid out proposals for how a job guarantee program might work. Bill Quigley, a professor at Loyola Law School in New Orleans, has proposed a constitutional right to a job at a living wage. Pavlina Tcherneva, a professor of economics at Bard College, has argued (here and here, and in this video) for creating jobs in the social enterprise sector, rather than through direct public employment. Her proposal is informed by prior research finding that after the 2001 economic crisis in Argentina, poor women far preferred the government’s guaranteed jobs program to the cash transfer policy that replaced it. 

What might Americans think of a right to work law that lived up to its name? You might find potential supporters in unexpected places. In his book, Sunstein notes that a 1998 poll found 64% of Texans agreed that “the government should see to it that everyone who wants to work can find a job.” Even a majority of self-described conservatives agreed with the statement. (The complete polling data are here.) 

Millennials could be a natural constituency for a real right to work law. The effective unemployment rate among Millennials (18-29 years old) hit 16% as recently as 2013. Since then the situation has gotten a bit better, but the unemployment rate for younger Millennials (16-24 years old) is still more than double the overall national rate. 

A Pew study has found that Millennials are more likely than older generations to say they support an activist government. But the parents of Millennials might also see the value of a jobs program, since currently they are the ones doling out financial support to their kids, a pattern that is cutting into their retirement savings.

Whether or not politicians will propose a real right to work, and whether it could gain public support, remains to be seen. For the time being, “right to work” still refers to policies that dismantle the membership and collective bargaining models that labor unions and employers have relied on for decades. In Part 3, we’ll look at policy ideas that unions and legislators might pursue now that “right to work” is law in half of the states.

Catching up on news from the states

In case you missed them, some interesting articles came out late last week concerning legislative developments in the states.

 

ProPublica and NPR reported extensively on the ways in which many states have been rolling back worker compensation benefits in recent years. The story was released along with a set of interactive maps, graphs, and graphics that allow you to compare reforms, benefit levels, and employer premiums state by state. Lest this overwhelm readers with data, there's also a moving photo essay illustrating how cutbacks in California have affected the quality of life of an injured worker. 

 

The New York Times reported on how legislatures in a number of states have been debating whether to allow businesses to discriminate against same-sex couples on religious grounds, in anticipation that the Supreme Court will rule in favor of same-sex marriage later this year.

 

And Politico reported on a visit by progressive state legislators to Washington DC late last week, noting that their meetings with administration officials and liberal leaders in Congress "seem to signal that national Democrats are finally gearing up to counter a well-financed network of conservative groups led by the American Legislative Exchange Council (or ALEC)," by lining up in support of the State Innovation Exchange (or SiX).

The Crime of Homelessness & Guest Blog by UC Berkeley's Policy Advocacy Clinic

Increasingly, cities across the nation are making it a crime to experience homelessness. As the Director of the new Homeless Rights Advocacy Project at the Seattle University School of Law (HRAP), I'm fortunate to work alongside amazing community advocates and SU law students to combat this trend and to advance the rights of homeless adults, youth, and children. One of HRAP's core partners has been the UC Berkeley School of Law’s Policy Advocacy Clinic- an exceptional group of Berkeley law students working on under the supervision of Professor Jeff Selbin. This group recently released a bombshell of a report, detailing the scope and extent of the criminalization of homelessness throughout California. The Berkeley clinic's damning findings have prompted much-needed legislative attention to this problem. (This May, SU's HRAP students will release an analogous series of reports on criminalization of homelessness throughout Washington state). Today, the Legislation Law Prof Blog celebrates this important anti-criminalization work with a guest blog from Berkeley's Policy Advocacy clinic.

Berkeley Law’s Policy Advocacy Clinic Professor Jeffrey Selbin, and students Marina Fisher, Nathaniel Miller, and Lindsay Walter are pictured above (left to right).

Lindsay Walter is a second year law student at the University of California, Berkeley School of law. She co-authored California’s New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State as a part of Berkeley Law’s Policy Advocacy Clinic with Marina Fisher, Nathaniel Miller, and Jeffrey Selbin. Professor Selbin, Marina, Nate, and Stephanie Campos, legal fellow at the Policy Advocacy Clinic, also contributed to this blog post.

Too Close To Home: California’s Anti-Homeless Laws

“Every city.” The three of us sat dumbfounded. Two words summed up all of the data we had collected in researching the criminalization of homelessness in California. After examining municipal codes for 58 California cities and categorizing relevant code sections based on restricted activity, we analyzed the number of anti-homeless laws in each city. These laws are more commonly referred to as “quality-of-life” laws. We rejected this misnomer because these laws do not enhance the lives of housed or homeless people. On average, California cities have nine such laws. Every city studied has at least one municipal code—a restriction on sitting and sleeping in public places, resting in legally parked vehicles, begging, or sharing food—that can be used to criminalize people simply because they do not have a home. More shockingly, cities are increasing the pace of enactment of such laws.

Under the supervision of Clinical Professor Jeffrey Selbin and on behalf of the University of California, Berkeley, School of Law’s Policy Advocacy Clinic, I worked with Berkeley law student Nathaniel Miller and public policy student Marina Fisher to write a report about the criminalization of homelessness in California. We produced the report for the Western Regional Advocacy Project (WRAP), a coalition of social justice organizations dedicated to exposing and eliminating the root causes of civil and human rights abuses that impoverished and homeless people experience.

In writing the report, we understood that our objective was to compile information and present our findings about the criminalization of homeless people at the local level. We recognized that such thorough research had not been consolidated before—and after navigating and streamlining inconsistent municipal city codes and puzzling through incomplete enforcement data, we understood why we were the first to do so.

But we did not know how close to “home” the issues in this report would hit. As native Californians, we were disheartened to discover how little progress our communities had made over time in terms of recognizing the basic human rights of all people. Learning that every city had at least one municipal code section in its arsenal to criminalize those without housing seemed cruel. The pervasiveness of these laws across our state indicated that some of the more infamous parts of our American history—laden with laws criminalizing people for no reason other than being “undesirable” in the eyes of their community—lived on.

As we learned more about city municipal codes and their enforcement against homeless people, we struggled to craft a solution to address the pervasiveness of anti-homeless laws across the state. Our legal training emphasizes assigning liability—who has the obligation to remedy the harm done? From a public policy perspective, we similarly ask: what is the root of the social problem? The answer to both, unsurprisingly, is complicated: we, as a community, have the obligation to ensure that people are not criminalized for their mere existence; and we, as policymakers, elected officials, educators, lawyers, students, neighbors, and members of shared geographic space, are the root from which change must emanate.

Given the entrenchment of discrimination in our communities and in our laws, change will be incremental. We need to recognize and celebrate every step made in the right direction. Oregon and Colorado recently introduced Right to Rest bills in their state legislatures. And after months of advocacy and weeks of lobbying efforts, State Senator Carol Liu agreed to author California’s Right to Rest Bill. This bill will prohibit cities from enacting and enforcing local laws that infringe on the human right to exist by denying individuals the right to rest, sleep, and share food in public. The legislation will force cities to find alternate ways of addressing the problem of homelessness without resorting to criminalization through citations and arrests.  

Still, passing a Right to Rest Bill in California will not be enough. Enforcement patterns indicate that harassment and criminalization are the primary tools police agencies have to remove “unwanted” people from the streets. These practices reflect political agendas that respond to public sentiment, suggesting a larger cultural shift needs to happen. Collectively, we must find solutions to provide housing and social services to those in need. By doing this, we will make our communities, and California as a whole, places that we are proud to call home.

A Look Inside the Local Government Wing of ALEC

Last summer, the American Legislative Exchange Council (ALEC) announced the launch of a spinoff organization aimed at local government. The American City County Exchange (ACCE) aims to "advance limited government and free market principles in local government through model policies, conferences and online collaboration."

In December, ACCE held its first winter meeting, and it has announced that its second annual conference will be held this July. These meetings give a sense of the ACCE policy agenda, which, not surprisingly, mimics that of ALEC. As the Center for Media and Democracy reported last week, labor issues such as right to work, pensions, and minimum wages are scheduled for discussion at the upcoming meeting.

Also up at CMD's website is a fascinating report on the ACCE winter meeting by Steve Arnold, a Fitchburg, Wisconsin alderman who went "undercover" to find out what was going on. He saw a "corporate dating service in action," where industry lobbyists made presentations on their pet issues and courted officials in what Arnold describes as a "you scratch my back, I’ll scratch yours" manner. Perhaps most interesting is Arnold's reporting on ALEC's "contradictory approach to local control," exemplified by an emerging ALEC/ACCE strategy for pushing right to work through local initiatives in Republican-controlled states right to work states.

The report, available here, is a must-read for anyone interested in local government law and policy.

Right to Work Comes to Wisconsin

Last Friday, Wisconsin State Senate Majority Leader Scott Fitzgerald introduced a "right to work" bill and announced he would call an extraordinary session this week to pass it. Within hours, Governor Scott Walker, who as recently as December had maintained that pushing right to work would be "a distraction" from his legislative agenda, announced that he would sign the bill.

On Saturday, Jason Stein of the Milwaukee Journal Sentinel reported that provisions of the Wisconsin draft bill are strikingly similar to the ALEC model bill on the topic. (The text of the Wisconsin bill is here, and the ALEC model is here.) Today, Stein reports that Senator Fitzgerald started drafting his bill in mid-December -- apparently despite Walker's assertion it would be a distraction -- and looked to Michigan's right to work law as a model. (24 states have enacted right to work laws.)

A long article up at Bloomberg News lays out how Governor Walker has managed to get within reach of this major legislative victory, despite -- and perhaps partly thanks to -- years of declarations that he'd never get to this point. Among other things, the article suggests Walker may have been playing a long game of "divide and conquer," as he said on video to a major donor who asked him if Wisconsin would ever become a right to work state.

Wisconsin's union leaders have called for protests at the Capitol building tomorrow and Wednesday, but some have apparently acknowledged that the bill is fated to pass. This is part because, unlike the 2011 bill that undid collective-bargaining rights for public-sector unions, the right-to-work legislation has no fiscal provisions that require a three-fifths quorum to debate and pass. In 2011, that requirement allowed Democrats to temporarily block the legislation by fleeing to Illinois.

Of course, all of this comes at the same time as a new biennial budget bill has sparked debates in Wisconsin, and Walker is receiving national attention as a serious contender as an (all-but official) candidate to be the Republican presidential nominee. Union leaders have suggested that right-to-work is being used as a distraction from the budget bill, which among other things proposes to cut $300 million in funding for the state university system.

Although achieving such policies through a "divide and conquer" strategy might help Walker maintain his current lead among the most conservative voters, it remains to be seen whether, should he ultimately become the Republican nominee, such a hard-line reputation would continue to be a benefit, or turn into a major liability.

Supreme Court Halts Missouri Execution, Then Reverses Eighth Circuit, Sending Case Back for Conflict-Free Counsel to Litigate Equitable Tolling of Blown Statute of Limitations

We are thrilled to welcome guest bloggers, Jennifer Merrigan and Joseph Perkovich, who worked with Saint Louis University School of Law students to halt Mark Christeson’s execution and reverse a lower court decision, exercising the federal statutory right to counsel for individuals sentenced to death by a state court. Ms. Merrigan and Mr. Perkovich, along with John R. Mills, are Mark Christeson's pro bono counsel and the principal attorneys of the Phillips Black Project, a nonprofit, public interest law practice focused on death penalty representation. Phillips Black’s attorneys founded and direct the Death Penalty Proportionality Project at the Saint Louis University School of Law. The Death Penalty Proportionality Project provides law students the opportunity to provide legal representation to individuals sentenced to death and allows them to contribute to research on Missouri’s death penalty statute.

On January 22, the U.S. Supreme Court, by a vote of 7 to 2, decided Christeson v. Roper, 574 U.S. ___ (2014), 2015 WL 232187, summarily reversing the judgment of the Eighth Circuit Court of Appeals and returning Mark Christeson’s death penalty habeas corpus case to the lower federal courts for further proceedings. The Western District of Missouri and the Court of Appeals had contravened the high Court’s decision in Martel v. Clair, 565 U.S. __, 132 S.Ct. 1276 (2012), where it established the “interests of justice” standard applicable to the federal statutory right to counsel for individuals sentenced to death. 18 U.S.C. §3599. Clair held that the interests of justice shall determine motions to substitute appointed counsel pursuant to §3599(e), which “contemplates that a court may ‘replace’ appointed counsel with ‘similarly qualified counsel . . . upon motion’ of the petitioner.” Christeson, (slip op., at 4). On October 28, 2014 the Court had stayed Mr. Christeson’s scheduled execution in order to consider his certiorari petition.

The need for Mr. Christeson’s substitution of his court-appointed counsel emanated from their violation, in 2005, of his 1-year federal habeas corpus statute of limitations under 28 U.S.C. §2254 (Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). The court-appointed attorneys “failed to meet with Christeson until more than six weeks after his petition was due” and ultimately filed a cursory petition “117 days too late.” (Slip op., at 2). As the high Court noted, leading legal ethicist Lawrence Fox of the Ethics Bureau at the Yale Law School had reported to the district court that “if this was not abandonment, I am not sure what would be.” (Slip op., id). Over seven years ago, this error ended Christeson’s federal case in the Eighth Circuit without any substantive review of the constitutional violations in his 1999 trial in Missouri state court.

In April 2014, his federal court-appointed lawyers reached out for advice from the authors of this post, Jennifer Merrigan and Joseph Perkovich, after receiving an order from the Missouri Supreme Court to show cause why their client’s execution date should not be set. But, when the authors met Mr. Christeson, it was clear that he did not understand that his appointed lawyers had blown his federal statute of limitations. As the Supreme Court noted, Mr. Christeson “appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys.” A Rule 60(b) motion to re-open his case in order to litigate equitable tolling of the missed statute of limitations would be the only way to obtain any federal review of the constitutional violations in his trial and appeal.

Noting that the court-appointed attorneys were “initially receptive to . . . assistance,” the high Court found that they “soon refused to allow outside counsel access to their files,” eventually precipitating the authors to file a pro bono motion for substitution of counsel to protect his interests. While Mr. Christeson’s pro bono counsel were litigating his statutory right to appointed counsel, the Missouri Supreme Court scheduled his execution. Overall, the federal district court twice denied motions for substitution and the court of appeals twice rejected appeals before the case was able to make its way into the U.S. Supreme Court via an application for a stay of execution pending disposition of the cert. petition, which was filed with the support of amicus briefing from Former State and Federal Judges by Goldstein & Russell,  P.C. and Legal Ethicists and Capital Habeas Practitioners by the Yale Ethics Bureau.

Capital warrant litigation is complex and enormously time consuming. In Mr. Christeson's case it was especially difficult, as counsel were litigating with no resources and no case file after having been on the case for mere months. As adjunct clinical professors at the Saint Louis University School of Law, the authors enlisted clinical students, Aly Ricci and Kristin Swain, to assist with research, record review, and witness interviews. The support of SLU's clinical program, especially by the Supervisor of the Criminal Defense Clinic Susan McGraugh, and Dean Michael Wolff were instrumental in the around-the-clock litigation.

 
Saint Louis University School of Law Clinical  Students, 3Ls

On October 28, roughly twelve hours before Mr. Christeson’s scheduled execution at 12:01 a.m. CDT, Justice Alito, in his capacity as the circuit justice for the Eighth Circuit, took perhaps the unprecedented step in Supreme Court history of ordering supplemental briefing in relation to an application for a stay of execution. The order called for the parties to brief “whether the record shows” that Mr. Christeson authorized pro bono counsel to seek substitution as his attorneys. About two hours later, the parties filed their briefs, wherein pro bono counsel, after obtaining over the phone a release from Mr. Christeson in order to file attorney-client privileged communications, lodged with the Court briefing and, pursuant to Rule 32.3,  documentation manifesting his retention of the pro bono attorneys months earlier and correspondence, typed by a fellow inmate working in the law library, expressing his desire to have his appointed lawyers replaced because they did not have his “best interest in mind.” Just two hours before he was scheduled to be executed at midnight, the U.S. Supreme Court granted Mr. Christeson a stay pending the determination of his certiorari petition. After six relistings, the Court entered its opinion simultaneously granting certiorari and reversing the Eighth Circuit.

Christeson found that the Court of Appeals’ “principal error was its failure to acknowledge [the court-appointed lawyers’] conflict of interest. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for ‘serious instances of attorney misconduct.’” (Slip op., at 5), quoting Holland v. Florida, 560 U.S. 631, 651-652 (2010). The “serious instances of attorney misconduct” here regarded their abandonment of Mr. Christeson at the critical juncture in his federal case, namely when they needed to file a habeas petition within the 1-year limitations period. Justice Alito dissented, joined by Justice Thomas, acknowledging the “serious” error by the court-appointed attorneys and opining that full briefing and argument should have been ordered. (Slip op., dissenting opinion at 2-3).

Already, the Court's ruling has provided the basis for a remand in another capital case. On January 27, a panel of the Fifth Circuit Court of Appeals, “[i]n light of the Supreme Court’s decision in Christeson . . .,” sua sponte vacated in part its previous opinion denying a Certificate of Appealability under 28 U.S.C. §2553 of the denial of a federal habeas petition. Tabler v. Stephens, No. 12-70013 (unpub.), 2015 WL 327646. Tabler extends to ineffective assistance of federal habeas counsel the equitable rule in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), that the inadequate assistance of state habeas counsel “may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” The Fifth Circuit panel relied on Christeson to explain that “[b]ecause Tabler’s attorneys for his state habeas proceedings were also his attorneys for his federal habeas proceedings, they faced a conflict of interest that could have prevented them from arguing that their performance in Tabler’s competency hearing was deficient, and, accordingly, Tabler’s statutory right to counsel was violated.”

As for Mark Christeson’s case, the next step is for it to return on remand to the Eighth Circuit. In the meantime, the authors and their clinical students continue to work on his behalf.  

Losing the Hunger Games...Again

Recently, there has been a lot of press surrounding increases in hirings and gains in hourly wages, but this overlooks the millions of people that continue to struggle to make ends meet. For some of those individuals, the struggle to get basic necessities is about to get worse.

Over the course of 2015, hundreds of thousands of vulnerable Americans will be at risk of losing necessary food assistance benefits, or "Food Stamps," through the Supplemental Nutrition Assistance Program (SNAP) that, until now, has helped put food on their tables. As unemployment rates fall, around 1 million single adults will become ineligible to receive SNAP benefits due to a three-month time limit for unemployed, able-bodied adults without dependents (ABAWDs). 

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 limits SNAP benefits to just three months in a three-year time period for ABAWDs who are not working or participating in a workfare program for at least 20 hours a week. The provision includes a clause that allows states with sustained high unemployment rates to apply for a 12-month ABAWD waiver that suspends the three-month limit. Because of the poor economic climate, in recent years, many states have received ABAWD waivers, eliminating the time limit for the ABAWD population. Current waivers will expire at the end of this fiscal year and will need to be renewed for FY2016. However, as unemployment rates fall, very few states will qualify for this waiver.

Although unemployment rates are declining, many ABAWDs are still struggling to find full-time employment due to lower education levels and limited job opportunities. While states can cut off SNAP benefits for unemployed ABAWDs after three months, according to the provisions in The Farm Bill of 2002, states are not required to fund employment and training programs for ABAWDs. In other words, states can remove unemployed ABAWDs from the SNAP rolls without making an effort to find them a position in a work or training program for 20 hours a week. In fact, most states do not offer these programs, meaning that the responsibility to search for a job or a work/training program falls on the individual, which can be very difficult as workfare programs have limited resources and openings.

Even those who are actively seeking work and are willing to accept any position offered will still be cut off from SNAP benefits and will not be provided with support to find employment. According to US Department of Agriculture, individuals who will be subject to the three-month time limit have an average monthly income of 19 percent of the poverty line (or 81% below the poverty line), making them one of the most vulnerable groups in the country.  Because this population is able-bodied and without dependents, it is unlikely for them to qualify for other benefits.

Not only do SNAP benefits put food on the tables of millions of hungry Americans, but food assistance has also stimulated the economy and served as a lifeline for entire towns.  For example, in Woonsocket, Rhode Island almost $2 million of SNAP funding pours into the town each month, stimulating the city’s food industry and starting the monthly “boom-and-bust” cycle of the nearly bankrupt town. For more information, see this article in the Washington Post.

To learn more about the relationship between poverty and food insecurity from Feeding America’s Poverty and Food Insecurity Fact Sheet click here. For statistics and infographics on food insecurity from the USDA Economic Research Service click here.

For more information about which state’s have accepted the waiver for FY2015, click here.

ThinkProgress has covered the reinstatement of the work requirements in SNAP in Maine, Ohio, Indiana, and New Mexico.

Maryland Makes the Death Penalty History. Will Connecticut and New Mexico?

On May 2, 2013, Governor Martin O’Malley signed a death penalty repeal bill that abolished the death penalty for future crimes, leaving Maryland’s death row intact.  Maryland is not alone in its prospective abolition of the death penalty.  New Mexico abolished prospectively in 2009, leaving 2 inmates on death row, and Connecticut followed suit in 2012, leaving 11 inmates on death row.  Prospective bills are pending in a number of other states, including Delaware, Kansas, Colorado, Washington, and New Hampshire. 

One might call this legislative trend “gradual abolition.”  For the first time in nearly 100 years, abolition is proceeding inmate-by-inmate.  Abolition will be achieved in states like New Mexico and Connecticut when the last death row inmate in each state dies or is released from death row, or when the executive or judiciary intervenes.

Which brings us back to Maryland.  On December 31, 2014, Governor O’Malley announced his intention to end Maryland’s death penalty completely by commuting the death sentences of Maryland’s 4 remaining death row inmates.  Legal challenges to prospective death penalty repeal are pending in Connecticut’s and New Mexico’s high courts, but they will probably fail, for reasons discussed here and here.  Although New Mexico’s and Connecticut’s legislatures almost certainly have the constitutional authority to abolish the death penalty for future crimes only, there is no record of a death row prisoner ever being executed after prospective repeal of the death penalty.  This means that, if a governor or administrative board were to permit a prisoner to be executed after prospective repeal, it would be the first to do so in all of history—a dubious distinction if ever there was one.

New Mexico’s governor and Connecticut’s Board of Pardons and Paroles should take a page from Governor O’Malley’s playbook and end their death penalties completely.  And state legislatures considering prospective death penalty repeal should reconsider, and make their repeals retroactive.  Abolition for all—not some.