Sotomayor’s dissent in Utah v. Strieff, Part I

August 31, 2016

I want to read you a portion of a recent dissent by Justice Sonia Sotomayor in which she explains what I think many do not understand about what happens when police stop people on the street.[1] I will skip her citations but you can read them on the website. She wrote the last part of her dissent for herself alone. I think it is well worth your hearing that portion of her dissent in Justice Sotomayor’s own words:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[2] That justification must provide specific reasons why the officer suspected you were breaking the law,[3] but it may factor in your ethnicity,[4] where you live,[5] what you were wearing,[6] and how you behaved.[7] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[8]

The indignity of the stop is not limited to an officer telling you that you look like a criminal.[9] The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline.[10] Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.”[11] If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”[12]

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.”[13] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.”[14] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.[15] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.[16]

More next time.

— This commentary was broadcast on WAMC Northeast Report, August 30, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] Whren v. United States, 517 U. S. 806, 813 (1996).

[3] Terry v. Ohio, 392 U. S. 1, at 21 (1968).

[4] United States v. Brignoni-Ponce, 422 U. S. 873, 886-887 (1975).

[5] Adams v. Williams, 407 U. S. 143, 147 (1972).

[6] United States v. Sokolow, 490 U. S. 1, 4-5 (1989).

[7] Illinois v. Wardlow, 528 U. S. 119, 124-125 (2000).

[8] Devenpeck v. Alford,  [2070]  543 U. S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___,  (2014).

[9] See C. Epp et al., Pulled Over, at 5 (2014).

[10] See Florida v. Bostick, 501 U. S. 429, 438 (1991).

[11] Terry, 392 U. S., at 17.

[12] Id., at 17, n. 13.

[13] Atwater v. Lago Vista, 532 U. S. 318, 323-324 (2001).

[14] Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___,  182 L. Ed. 2d 566, 573 (2012); Maryland v. King, 569 U. S. ___, 186 L. Ed. 2d 1, 30 (2013).

[15] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33-51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[16] A. Goffman, On the Run 196 (2014).

It’s Government’s Job to Make Work Available

April 19, 2016

Bernie and Hilary argue about trade pacts. We know trade pacts cost some jobs and open up others. That’s not a satisfying trade-off if your skill is suddenly unmarketable and you’ve become unemployed or underemployed. An effective response is crucial.

But protecting specific jobs will ultimately hold America back, diminish our competitiveness, and damage our ability to develop in new directions. Government should not protect specific, unsustainable jobs or avoid trade pacts that promote economic progress, national security or other international objectives.

But – and it’s a very important but – government should make sure that we can all work to support ourselves and our families. That’s why Republican insistence on scaling back Obama’s stimulus package in 2009 and then blocking more investment in infrastructure was very much the wrong move. It shirked our responsibility to each other and made moving forward politically more difficult.

The way government can make jobs available is to hire people to do what we should be doing and building. Once people are working, business and investors will take advantage of the extra income flowing and build their businesses and inventory to satisfy the demand.

But businesses don’t invest in order to create demand. Individual businesses can’t assume their investments will change the economic picture significantly, certainly not enough to repay their investments. Individual businesses can’t assume that they will reap the benefits of having created more jobs – people spend their paychecks in many places only a fraction of which will come back to the company.

That’s just one of the reasons pouring more money into the hands of what Republicans like to call job-creators is worthless, like a Rube Goldberg invention in its totally confused complexity. Business invests to meet demand or to create a product they think will sell – they don’t invest just because they have money. And since in fact they have lots of money on hand, many have been engaging in various forms of financial manipulation, buying back stock, sending money abroad, anything but job-creating investment or investments here.

That means that both Bernie and Hilary are hitting the nail of economic doldrums for the many people who can’t find decent jobs right on the head. It’s a problem that needs government to work for us.

Putting people to work solves many problems at once. Putting people to work supplies the person-power to re-build, update and renovate infrastructure. Putting people to work, pushes the wage scale for the best of reasons – not just a legal minimum wage pegged to an arbitrary number, marketplace pressure for employees raises the payscale. Putting people to work improves the business outlook. And infrastructure improvements improves the feasibility of successful investment for everyone – not just the favored projects of a few but improved access for all of us means that people with a good idea will have the opportunity to get the resources they need and access to the customers they want.

Of course whether government can pay for doing the right thing depends on whether government can actually impose taxes on the people and companies who have money. Arguing about protecting the so-called job-creators bv reducing their taxes is actually a way of starving government so that those so-called job creators can squeeze workers who are uprotected because government can’t afford to do anything about it. A successful modern economy requires a government with the resources to play its part.

— This commentary was broadcast on WAMC Northeast Report, April 19, 2016.


People bear the cost for rulers’ misbehavior

March 29, 2016

In a still unpublished manuscript on the way conservative economics has failed us, my friend Eric Zuesse remarked, “The ‘Greek debt’ is really not a debt of the Greek people.” He goes on to identify the “institutional creditors  … Euro-banks … high risk kleptocrats, oligarchs and bankers who siphoned most of the euros into overseas Swiss accounts …. [and other foreign investments] devoid of any capacity to generate income to pay back the debt.”

Eric’s statement is profound, pointing to the ways that those in power play with our lives and then displace the responsibility to their innocent victims. While I’m sure that some will argue that elections gave the Greek people some complicity, Eric accurately points to the ability of those primarily responsible to displace the costs of their own misbehavior.

I think we can see that pattern all over modern public affairs. What responsibility did the refugees in Syria or Iraq have for the wars that took their lives, homes and livelihoods? What responsibility did unemployed Americans have for the depression that was engineered by banks too big to fail, banks which traded worthless securities in an enormous Ponzi scheme for which they have not been prosecuted? The Supreme Court has cleared the manufacturers of failed medical devices for rupturing in our bodies but why is it somehow the responsibility of the victims to absorb the injuries and the costs? This is a pattern – the rich and powerful do the damage and outsource the costs to the rest of us.

Terrorists take advantage of that. They attacked the World Trade Center and the Pentagon on 9/11. But the people of Afghanistan, Iraq and the Middle East have paid the price of our response, innocent men, women and children, polarizing regions and sweeping us into the worldwind. Our failure to calibrate the response had much wider repercussions.

The British, French, Germans and Spanish have suffered similar terrorist attacks, actually over many decades from many different groups, but they have managed to restrain their responses. England fought in the so-called “troubles” of Northern Ireland but finally learned that their response was devastating the wrong people and making the problem worse. The Spanish restrained their response to the Basques. All restrained their response to leftist terror. They responded with police work, ultimately capturing and trying many of the terrorists.

For many Americans anything but an all-out response seems unacceptable. Politicians attack restraint as weakness, not strength. And of course ordinary Americans pay the price. We pay it in the deficit, in taxes, in the lives of our loved ones in foreign wars, and in civil liberties at home. But those who benefit are immune. Major suppliers of paramilitary forces abroad like Blackwater and Halliburton get more contracts while they supply deniability to American leadership for their violations of human rights.

These are bad bargains. Will we have leadership capable of leading, capable of explaining to the American people and standing strong in the face of hotheads for whom an indiscriminate overreaction is the only so-called “manly” response. Will we have leadership capable of zeroing in on the perpetrators of economic collapse, mortgage failure, and malfunctioning products?

Isn’t it time to stop blaming the people for the misbehavior of the oligarchs? Or will the rulers, paraphrasing Thomas Hardy’s conclusion to Tess of the d’Urbervilles, end their sport with us?

— This commentary was broadcast on WAMC Northeast Report, March 29, 2016.

Jobs and the “job creator” fairy tale

December 22, 2015

At this season in which charity is high on our agenda, I’d like to address some economic issues. I recently spoke with you about what the oligarchs are doing to American democracy. This time I’d like to talk with you about is happening to our jobs and wages. Jobs have recovered slowly from the 2008 crash; wages have flatlined for a decade. Candidates should be talking about jobs and wages.

Some want to turn money over to what they call the “job creators” – fabulous, fairy tale language. When taxes were cut to the 1%, the great bulk of that money didn’t finance jobs, or even trickle down to the rest of us. The 1% used it for finance, to jack up asset prices, buy and sell companies, close factories and outsource jobs abroad, or build McMansions, everything but better lives for American workers, who put in long hours at multiple jobs, with little to show for it but worry about the future. Creating jobs by lowering taxes hasn’t worked for decades because we already did it decades ago; now it’s become a fairy tale told for the gullible. It’s amazing the demonstrable nonsense that people can convince themselves of.

Our society insists it’s everyone’s personal responsibility to find work. As a legal aid lawyer, I worked closely with unemployed, mostly African-American clients. I felt like I was watching them die. Losing a job left them feeling worthless; nothing was more deeply hurtful or more threatening. With little to tide them over, they lived where they could afford housing, far from jobs, without cars to get to interviews or available work, or any network of employed friends to point them to possible jobs. On-the-job training left them few transferable skills, and parents struggled to find affordable day care. The more they needed work, the harder it was to find a job.

We had a fellow do odd jobs, yard work, pick up bottles and cans for the deposit, after losing his last job for lack of transportation. A lawsuit for unrelated injuries got him enough to buy a car. Instantly he was working, steadily.

The stuff called tough love isn’t love but it is dumb. People without assets or work become vulnerable to doing anything just to stay alive. That affects all of us.

The unemployed cost us money, for unemployment insurance, because of the dislocation that unemployment generates, and for lots of police because we fear the jobless. They cost us money because of the decrease in property values, the poor prospects of their children and those who live in areas of high unemployment. We pay in the fear of going out at night or stepping on to the wrong street; and we lose the multi-generational workforce we want for our own programs and projects.

Any responsible business person would include all the costs to individuals and our communities in their balance sheet for deciding whether to support a job program. To evaluate the cost to each of us individually in taxes, compare it to the taxes we have to pay for not putting people to work, as well as the value of the work they could do.

The notion that all taxes are bad for us, is sloppy economics. Justice, fairness and safety are not trade-offs but different sides of the same coin. I’d put people to work rebuilding and improving the infrastructure and other needed projects. There are a lot of things we can do to boost the economy and provide jobs if we are not bamboozled by fairy tale language about what the princes would do for us if only they had even more money.

— This commentary was broadcast on WAMC Northeast Report, December 22, 2015.


Our Common Stake in Affirmative Action

October 15, 2013

The Court just heard argument in another affirmative action case. It is often put as if it is all about them and the rest of us are just losers as the result of any affirmative action for African-Americans. But do we have a stake in affirmative action, or whether African-Americans remain a permanent underclass? Read the rest of this entry »

The White House Butler

September 3, 2013

My wife and I went to see The Butler Saturday evening. There were important differences between the lives of the actual Butler, Eugene Allen, who served eight presidents, and Cecil Gaines, the butler in the film. But those differences actually got to larger truths it is worth thinking about.

In the film Cecil learns from the rape of his mother and the murder of his father what he has to do to survive in the white world. He creates a safe place for his family and is distraught when his son puts body and soul at risk in the Civil Rights Movement. That didn’t happen to Eugene Allen but it did happen to hordes of African-Americans in the South and many elsewhere. The demonstrators, trained to be peaceful and nonviolent, to take it without giving it back, were met with bombings, beatings, murders and jail. And their families were in anguish. Read the rest of this entry »

My wishes for 2013

December 18, 2012

Since the next two Tuesdays fall on Christmas and New Year’s Day when this station will be airing special holiday programming, I need to get my New Year’s wishes in now.  Read the rest of this entry »

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