The “Nanny” State

Republicans complain endlessly about “The ‘Nanny’ State”. Do anything good for the people – that’s “The ‘Nanny’ State.” Can’t we do anything for ourselves? What happened to self-reliance?

Actually self-reliance doesn’t work by itself. We call it self-reliance when young people put themselves through college, but jobs have to be available and pay enough for young people to put themselves through. The college has to be there, affordable, with the support needed to to provide great educations. I remember hearing Marty Silverman, one of Albany Law’s major benefactors, describe putting himself through law school on the profits of a small gas station. That says a great deal about the relative cost of a law school education. I started law school in 1962 with a full $1600 scholarship. In today’s dollars it would have been about $14,000. Try that now. My father, by the way, was a high school teacher; mother had just died.

Based on his appreciation of knowledge workers, Peter Drucker, a leading business mind of the twentieth century, saw that our leading industries are where our best and brightest graduates had gone twenty-year earlier. Those graduates created the strength of the industries they entered.

The US built the world’s envy of an education system – everyone wants to study here – though, ironically, we are now letting that educational system atrophy. Power and economic success followed the creation of our educational system. When Kermit Hall was President of the University at Albany he addressed a breakfast crowd downtown at Whiteman, Osterman and Hanna. There were two messages he wanted to get across. One was that he had been to China and studied their university system. He wanted us to know that they were building great new universities with prodigious speed and scale. The other was that corporations that are based on technology, intellectual-property or other special skills locate where they can get the best and brightest to work for them.

That has nothing to do with a nanny state. It is about making excellent investments in workforce development. The same is true of the success of the rest of the so-called Brick countries – Brazil, Russia, India and China; and the Asian Tigers – Hong Kong, Singapore, South Korea, and Taiwan. The newer so-called Mint countries – Mexico, Indonesia, Nigeria, and Turkey – are trying the same strategy, though international politics and civil wars hold some of them back.

By contrast, Republicans continue to feed us outmoded thinking, outmoded economics, outmoded ideas about how to strengthen our communities, our industries, our education and our people. They deserve an F.

Deriding the nanny state for investing in its people isn’t even efficient in the short run, forcing business to compete for staff on the world market and outsource their work to places where it can be done by the world’s best and brightest. That, by the way, used to be us. And it could be again. But it’s not magic. It’s based on investments in people, not handouts to corporations. Give people what they need to succeed and the values we inculcate into them will have a chance to shine. Deny them the basics and whistle our future into the wind.

—This commentary was scheduled for broadcast on WAMC Northeast Report, February 25, 2020.

Political Dream Team

I keep hearing people who should know better, chattering about Democrats not having good candidates for the White House. Just the reverse, there are too many. In fact, each and every one is terrific. Except for primary rules that make them competitors, this would be the political Dream Team ready to wipe away all opposition as if it were the ‘92 Olympics.

 

Elizabeth Warren takes a deep dive into policy questions, driven to figure out what will do the most good for us. Bernie Sanders instinctively connects with young people and working people. Joe Biden and Amy Klobuchar work the room, so to speak, talking and connecting with people to figure out what works. People like Klobuchar, Sanders and mayors Pete Buttigieg and Mike Bloomberg have administrative experience. Bloomberg and Steyer are used to crunching numbers. And all strike me as having their values and ethics in the right place. I’d have said good things about some of those who dropped out too. Truly the party has had an embarrassment of riches, white and black, men and women, from rich and poor backgrounds.

The team has experience in business, finance, working with poor and minority groups, factory workers, farmers, the middle class and those of us we’ve been calling ordinary Americans. It has people rolling up their sleeves to deal with some of the country’s major problems now, not waiting until they get elected.

The problem is the scoring. Instead of giving each voter a single choice, bouncing their preferences against one another, Democrats might have done much better with forms of voting in which voters could list, in order, the candidates they’d support, so their choices could be added together to get the most widely admired candidates.

The Iowa caucuses went part way. They got everyone’s initial preference when they walked in. Then discussions winnowed that down a little. We never saw what would have happened if they’d had to get to 50% plus 1.

I’m not sure that voters are grouping candidates by their place on a spectrum from centrist to liberal rather than whether candidates seem like people they’d be comfortable with. But whatever, we wouldn’t have to eliminate candidates because they didn’t get enough first place votes and we could instead search for agreement on candidates that most of us could be enthusiastic about. A campaign like that could give us candidates who would happily become the Dream Team in office.

To be fair, it is one of the ironies of democracy that every voting system has its flaws. It’s pretty obviously too late to change this year – we’d have chaos if we did. And we might decide to try ranked choice voting on local elections before trying it out on the presidential primaries. Other systems, like cumulative voting, are better suited to legislative elections. There’s room for experimentation.

My major point is that it would be useful if we all started to think about our second choices. I think most of us would find that there’s a lot to like. I’ve had a first choice from the beginning, a woman I’ve met, like and admire. But if you asked me about my second choice, wow, there are a lot of good people and we’d be blessed with any of them – or with them all on the New Democratic Administration Team in one position or another.

— This commentary was scheduled for broadcast by WAMC Northeast Report, on February 18, 2020.

Too Liberal?

People claim Elizabeth and Bernie are too liberal, that their projects would beggar the country, so we can’t select them.

There must be something wrong with programs that have existed in Europe for decades. There must be something wrong and beyond our resources, with liberal programs, even though many corporate leaders support them.

Health care? The money is obviously there. People have been buying insurance forever. Employers have been paying for it for decades. And what they wouldn’t buy, the public has been paying for through emergency rooms. Let me explain the real difference. If employers pay their share through the tax system, they won’t have to worry about so-called employee benefits every time they hire someone. Even though corporations would pay about the same, the shift from a payroll expense to a public program would take the cost out of the calculus whenever business thinks about hiring someone. Or thinks about giving people a real job instead of a gig. Public programs help the economy flow. Many corporations understand that. Competition can be built in with a public option, for example. And small business would function much more easily. But false conservatives, playing on the fears of the public, don’t want to admit that they’re behind the logical eight ball.

Business could rarely get going if they had to build their own physical and social services. In fact business always wants the public to give them whatever they need. They don’t even want to build ballparks on their own dimes! But if they had to find and get water to their businesses and workers, or build their own electrical systems off the grid, or cut and pave their own roads, it would cost more and few could get started. They’d be stuck next to waterfalls like the old mills. But that’s what the fear mongers call socialism. And if they had to build all the physical and social infrastructure they need, they’d spend as little as possible and sacrifice the health of their employees. I’m not making that up – it’s the history of company towns that virtually enslaved employees, paying them in what was called company scrip. Complain and you lost your job, your home, and went into the world penniless, homeless and likely without your family as well.

Social investments protect our jobs and our freedom. Americans who know their history know that’s the world that President Franklin Roosevelt rescued us from with the New Deal by the end of the great depression. Some rich folk hated him for it because it gave most of us a chance at decent lives instead of slavery to corporate masters. Now that corporations are finding ways to take it back through the gig economy, outsourcing and union busting, we need to recreate the New Deal that gave us Social Security, unemployment insurance, the right to organize and that eventually led to Medicare. Far from being unsustainable, Americans had their best years since Roosevelt and the New Deal. And corporations too know that they can live with it because public programs give them the flexibility they want to add employees without the added expense of so-called benefits.

Too liberal? Don’t make me laugh through my tears at the ruin of the American worker.

— This commentary is scheduled for broadcast by WAMC Northeast Report, on February 11, 2020.

Is there a Future for Democracy in America?

I’ve been writing about gerrymandering and election law since I was in law school, long enough to feel very discouraged. When Anthony Kennedy didn’t take advantage of his last crack at gerrymandering while still on the U.S. Supreme Court, after having teased us for years about his willingness to deal with it, I was sad to the core of my being. Ezra Klein’s “Polarization and the Parties” which came out a week ago in the Sunday Times galvanized my thinking, if not my hopes.

Klein made it clear that the combination of gerrymandering, the allocation of Senate seats and the electoral college would soon leave 70% of America represented by 30% of senators and vice versa, and the electoral college will continue to “elect” presidents who have lost the popular vote. With the Supreme Court continuing to be shaped by those disproportionate advantages in the Senate and the executive, Republicans will continue to be able to stave off a more equitable representation in the House of Representatives. In other words, democracy will be a memory replaced by institutionalized minority rule.

Can we do anything about it? Klein points out that with their power resting firmly on these legal impediments, the Republicans will continue to fight fiercely against anything resembling democracy. Flipping control of the White House and Congress would certainly make a difference but would not change the electoral college, the Senate’s skew toward the least populous states or its grip on Supreme Court appointments.

There’s much talk about amending the Constitution, but that requires three-fourths of the states with the same unrepresentative dynamics to approve. So fat chance fixing the Constitution, whether by amendment or a convention as spelled out in Article V of the Constitution.

Then what? Our Constitution was adopted “illegally” by the terms of the Articles of Confederation. Could we do the same, create a new Constitution and specify, as the Founders did, how it should be ratified. That’s been tried on the state level but met an unreceptive Supreme Court. Could we expect better from this Court? And who’d count the votes? The existing and affected states or some nonpartisan entity? By what method or machine?  And who’d pay? Perhaps we should hire five thirty-eight.com to gather private polls. But we’d be mired in questions of polling methods and ethics.

Maybe we should have let the Confederacy go? Chucking Texas alone would make a big difference – although Texas is changing. Or maybe the coasts should secede. Those alternatives would leave us a smaller, weaker, country, subject to alliances with foreign powers against each other – the biggest fear and reason for action of the people who wrote and ratified our Constitution. Would such a split be like the former Czechoslovakia or the former Yugoslavia, which is to say a peaceful split or a bloodbath? Trump’s “base,” by the way, has been arming itself for that bloodbath for years.

Or maybe some of the 70% of us need to resettle with the 30% and change the country from the bottom up. But on that too, as we’d have said in Brooklyn, fat chance. I think that means that the more we care about the results, the more radical our views, the more we have to roll up our sleeves and work together that much harder on the elections, no matter which candidate becomes our standard bearer.

— This commentary was broadcast on WAMC Northeast Report, February 4, 2020.

The New Bail Law statement from the NYCLU

THE NEW BAIL LAW (an excellent brief statement from the NYCLU that corrects the nonsense being spread)

Last year, legislators passed a broad criminal justice reform bill that eliminated the use of cash bail for most misdemeanors and some nonviolent felony charges, in an overdue recognition that a person’s wealth shouldn’t determine their liberty. Under the new law, judges retain their discretion to set terms that ensure a person shows up for trial. New York has never permitted judges to guess whether a defendant is dangerous to determine whether they should be released before their trial – and lawmakers rightly rejected attempts to insert such a new standard into our law. But there has been much misinformation spread about the impacts of the new bail law. Below are the facts.

1. The new bail law, which reduces our reliance on money bail and pretrial detention, helps keep New Yorkers safer.
2. • Studies show that people who are kept in jail pretrial are more likely to be rearrested for another crime.
   • We know from decades of our mistakes: A knee-jerk, lock-‘em-up approach only furthers the cycle of violence and incarceration.

2. No system – including money bail and pretrial detention can ensure that people who are released before their trials won’t be suspected of committing another crime.

1. • The new law does not release people who were ineligible for release under the old law. Under the old law, release has always been an option for the vast majority of charges – just for those who could afford it.
   • We need to take crime seriously. The best way to do that is to stop criminalizing poverty and race, increase supportive housing, and provide mental health services and programming – not to lock up everyone who is merely accused of a crime.

3. The new bail law empowers judges – in the right way.

1. • Under the new law, judges will actually have improved ways to use their discretion to determine what is needed in each case to ensure a person’s return to court. They can use their discretion to open up pathways for defendants to receive mental health services, supportive housing, and drug treatment – services that defendants were often denied when sent to jail under the old law.
   • Judges did not have authority under the old law to guess who might be dangerous. That’s because there is no way to accurately predict who will commit a crime, and perceived dangerousness often becomes a proxy for race and skin color.

4. Impacted communities fought to pass the new bail law. Fearmongering and misleading statements are attempting to weaken support.
   • The new bail law was widely supported when it passed. Support has decreased, but only because DAs and law enforcement have stoked fear. We’ve seen this tactic before: It led to the War on Drugs and decades of harsh sentencing, over-incarceration, entrenched racial inequities, and wasted money.

5. New York must not repeat the mistakes of New Jersey and other states that have mandated pretrial risk assessment tools.
   • Studies show that risk assessment tools cannot reliably predict future actions, especially for Black and Latinx people. That’s because these algorithms rely on factors like past encounters with law enforcement and convictions from a time we know police and prosecutors were targeting, prosecuting, and punishing Black and Latinx people for drug crimes at disproportionate rates.
   • We know that Black and Brown people have been targeted and discriminated against by law enforcement for decades. We cannot double down and now use the effects of discrimination to perversely justify denial of pretrial liberty. These tools are regressive and will only deepen racial inequities, as they have done in other states.

WHAT THE NEW BAIL LAW DOES

• Reduces courts’ reliance on money bail by eliminating money bail for most misdemeanors, nonviolent felonies, burglary in the second degree and robbery in the second degree) and by guaranteeing their release either on their own recognizance or by setting the least restrictive conditions on release (i.e. check-ins or electronic monitoring).
• Improves citation-and-release policies by requiring police to issue appearance tickets with court notifications to people charged with some low-level minor offenses (violations, misdemeanors, and class E felonies, unless they qualify for exceptions).[1]
• Limits the use of electronic monitoring (EM) by permitting judges to only order EM for people charged with felonies, domestic violence misdemeanors, sex misdemeanors, and anyone who has had a misdemeanor conviction in the past five years; by imposing 60-day caps on the use of EM with the option of continuing its use only after another review; by qualifying time under EM as time subject to speedy trial dismissal protections; and by requiring judges to justify that EM is the least restrictive means to ensure return to court and is “unobtrusive to the greatest extent possible.”
• Makes judicial pretrial decisions more transparent by requiring judges to make their findings on conditions of release, bail, and remand on the record or in writing.
• Requires judges to set at least one alternative to money bail that is either partially secured or unsecured, which should make it easier for people to post bail.
• Requires any pretrial risk assessment tools used to be made public and prohibits questionnaires that discriminate on the basis of race.
• Requires court reminders for all people released pretrial in advance of all court appearances by providing text messages, telephone calls, emails, or first-class mail. Prior to issuing a bench warrant for a failure to appear, the court must provide 48 hours’ notice to the principal or their attorney.
• Requires judges to consider a person’s ability to pay when setting bail for those charged with bail-eligible charges.

[1]Exceptions:

1. no one who has an outstanding warrant
2. no one who has failed to appear in court during the past 2 years
3. no one who has failed to reasonably verify their identity and methodology of contact
4. no one charged with a sex offense
5. no one charged with a DV offense
6. no one who may need an order of protection according to police
7. no one charged with an offense that could result in suspending or revoking driver’s license
8. no one who seems to need immediate medical or mental health care

 

Don’t let fear-mongering about bail reform make things worse!

People are being scared about the new bail reform statute. What they are not being told is that the new statute doesn’t leave the public less safe and isn’t responsible for much of the crime it’s getting blamed for.

Bail means that people can get out of jail so long as they can buy a bond. All bail statutes involve some risk of what defendants may do while out on bail. The worst criminals, the ones who have garnered the most ill-gotten gains, have the least problem getting out. But the public is not being told when the defendant would have been out anyway.

Under previous statutes, judges imposed bail based on the likelihood that defendants would run away. But the bail reform statute defines situations where there is reason for concern about public safety and provides for electronic monitoring and other restrictions in those instances, restrictions that keep people from causing trouble.

So the new statute is not likely to let people loose who would have been confined under the old statute and who shouldn’t have been under the new one.

What the old statute did was to make it impossible for poorer people to hire an attorney – in jail they couldn’t earn anything to pay for lawyers, or feed their families.

DA’s liked the old statute – they could force people to plead guilty just so they could get out and try to earn a living. That’s been a scandal well known among lawyers.

And as for discovery, most lawyers in cases in all other fields have to tell the other side what they’ve got in the way of evidence. And if there’s any reason for a defendant to be scared, there are ways judges can deal with it.

Don’t be scared by misinformation.

And don’t forget the benefits. Actually we are safer when we don’t unnecessarily destroy lives, make people less able to support themselves and their families – that drives people to desperation, and it leaves their kids feeling hopeless which drives lots of counter-productive behavior. Hopelessness causes kids to drop out of school or go on drugs or both, with horrific consequences for all of us. Don’t let fear-mongering make things worse when we are on the verge on ending the scourge of mass incarceration and all the costs and damage that has been causing.

For more information, a couple of excellent articles are by Emily Bazelon and Insha Rahman, There’s a Strong Case for Sticking With Bail Reform; and by the author, John Grisham, Bail laws a lesson in New York’s strong leadership. The statute is lengthy and the currently available version includes many provisions in unrelated areas of law; it begins at page 109.

 

 

Kangaroo Court for Whitewash

Republicans charge Democrats with trying to impeach Trump since the day he took office, never mentioning that Trump announced his intention to violate the Constitution’s prohibition on foreign corrupt influence, the emoluments clause, from day one. Democrats were apparently supposed to do their patriotic duty by lying down and rolling over. Now we’re involved in a trial of exactly what the clause prohibited – foreign corrupt influence, that affected our handling of national defense, and may have affected much more. Foreign corrupt influence is serious.

Unfortunately, the impeachment process as now planned looks like a kangaroo court. No witnesses, no cross-examination, no documents, no evidence. Only McConnell could get away with allowing president Trump, the defendant, to decide how he’s to be tried and who can testify – not based on rules of evidence but whatever the defendant wants to happen. No one, of course, would ever be convicted of anything if defendants could control whether anyone can testify, and, if so, who.

Evidence is admissible if it’s relevant unless barred by the Constitution, law or statutorily authorized Supreme Court rules. Evidence is relevant if “it make[s] a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” The Chief Justice, presiding, could rule on admitting evidence according to law. The existing process makes him into window dressing. McConnell, who organized this process, gets my vote for kangaroo-in-chief.

Republicans, following Trump’s lead, claim everything they dislike is fake news. They’ve denied so much so often that one can’t tell when they’re crying wolf. But, if there is a wolf, his den is at Mar-o-Lago.

The believability of testimony is enhanced by statutes which make it a crime to lie to Congress. Absent that, why believe anything Trump’s lackeys say, especially those who can hide behind the congressional privilege not to be tried for anything they say in Congress?

What I’ve been hearing instead of any responsible defense are attacks on impeachment, attacks on Democrats for turning to impeachment, attacks on the use of circumstantial evidence and a cauldron of invectives that one can fearlessly sling around as opinion. Republicans claim everything Democrats say is political. That garbage is reversible. If we focus only on motive, then everyone is guilty and all we get is cynicism. But there are facts – testimony, documents, science, records. Republicans respond by attacking the evidence as circumstantial, though circumstantial evidence is often more reliable than words that can be continually refashioned. And Republicans attack the absence of magic words about quid pro quo from the president’s mouth because no one that the President or the Senate Republicans would allow to testify heard the president use the magic quid pro quo words, and they barred those who heard him from testifying because Republicans don’t want those words on the record.

But that makes a mockery of the Constitution and the several clauses relating to impeachment, clauses the Founding Fathers took so seriously that they wrote five different impeachment clauses into the Constitution. Responding to serious and substantial allegations that call into question the loyalty of the president by attacking the Constitution’s prohibitions and remedies makes a mockery of the obligations of every officer of the U.S. Government, from the President down. It makes crying wolf and lying to everyone, into constitutionally protected misconduct. Thanks for the civics lesson, Mr. McConnell.

— This commentary was scheduled for broadcast on WAMC Northeast Report, January 28, 2020, but since the impeachment proceedings have preempted air time, it’s not clear at this moment when it may have been aired.