The Innocence Project

December 26, 2017

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.

Advertisements

From Chaos to Monopoly – the End of Net-Neutrality

December 12, 2017

Those of us warning that American democracy is threatened have still been stunned by how fast. Political polarization elsewhere has led democracies to collapse. Polarization here has largely been the unintended consequence of a legal transformation. But the cure may be even worse.

Over the past half-century, legal changes fractured the media by helping cable television  and available broadcast channels expand. Before fake news became an industry, the fractured media promised us a more democratic marketplace of ideas. But it made us a fractured audience, no longer watching or hearing the same news.

Court decisions eliminated liability for innocent misstatements that defamed people. The fairness doctrine once required all broadcasters to provide balanced coverage of controversial issues of public import. It was dismantled in the 70s. Now TV and radio are much more one-sided. A new statute and court decisions gave internet providers immunity even for fake news. The internet rapidly became both the intended source of valuable views and information, and the unintended bastion of garbage, leaving readers, viewers and listeners much less well-informed about the competing arguments over public issues.

Meanwhile, courts and state legislatures put presidential primary elections firmly in control of the nominating system.  Primaries often drive candidates to the extremes to capture majorities of their own parties, not toward the center to capture independent voters. Instead of balancing each other, therefore, the media and nominating systems increasingly radicalized each other since the 1970s.

President Theodore Roosevelt once said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft ended in the 70s, a casualty of our disagreement about the war in Vietnam. The public schools have been hollowed out by charter schools and re-segregated with the help of suburbanization, zoning and Supreme Court decisions after Rehnquist took its helm in 1986. So neither schools nor the draft bring us together as they once did.

Federal agencies were at the heart of segregating the suburbs before and even after Brown v. Board, deepening polarization in the process. Financial institutions only compounded the damage with their sub-prime loans.

In this polarized, divided, segregated era, the Court in Washington decided the nation’s most contentious issues of race, police behavior, school prayer, abortion, equal rights for women and people with differing sexual orientations.  These were mighty battles over justice with enormous consequences. Mildred and Richard Loving could marry and live as a devoted couple near their relatives in Virginia despite their difference in racial origin.  Similar opportunities opened for women, African-Americans and members of the LGBTQ community. Some went free who would have been hanged for crimes they did not commit.

But the Court’s decisions sharpened the polarization among us. Where now can we hold a “national conversation”? In a fractured media? In a primary system designed to favor extremists? In the military tent? Or walking our kids to school? We have, unintentionally, torn the fabric of our community. Still we could rewrite some of the rules that aggravated our polarization.

But on Thursday, the Federal Communications Commission wants to eliminate net-neutrality and give a few large corporations control over what we see and hear. I’m concerned by which friends of FCC Chairman Ajit Pai would get control over our news sources. We’re going from chaos to monopoly. With Trump leading the charge against the most careful and professional news sources, it feels like we are headed to autocracy and bye-bye democracy.

— This commentary was broadcast on WAMC Northeast Report, December 12, 2017.


The Dagger in the Heart of Labor

August 15, 2017

Last week I spoke about labor. Next week is the anniversary of Martin Luther King’s speech at the 1963 March on Washington. I intended to connect the two. After hate intervened in Charlottesville, that’s even more urgent.

In the late 19th and early 20th centuries the Progressive Movement was making great strides on behalf of American workers and farmers. Gradually, the political parties adopted parts of the Progressives platform and many of their proposals were eventually adopted. But in the South, white elites drove a stake through the heart of the Progressive Movement by dividing workers on race. It took the Great Depression of the 1930s to wake America up.

The March on Washington that many of us remember as Martin Luther King’s great triumph was actually called by a coalition of labor leaders. Labor understood that workers had to stand together or they would be trashed together. If you could underpay African-American workers you could underpay everyone. The AFL-CIO, clear about the ways our fates interrelate, was a major supporter of the Civil Rights Movement.

But some politicians used racial prejudice to drive a wedge into support for progress, to prevent government from providing benefits and services for all of us, and then take the “savings” as tax breaks for themselves. Far more whites land on the public safety net but politicians want us to believe it’s just African-Americans. Far fewer African-Americans than whites depend on public schools but politicians want us to think money spent on schools is wasted because “they” get it. In area after area, politicians convinced many of us to starve public services. They want whites to think we would never need what African-Americans would get. They tell us we don’t want to spend anything on “them.” We should be allies, but the politics of race turns us into competitors.

Last time, I described how states and the Supreme Court have been undermining labor’s political role even as it augments management’s. So-called free market “conservatives” don’t want to do anything for the public, for you, your kids and your parents. They tell us that the market solves all problems for the deserving and only the undeserving need help, even while sanctimonious business men poison and defraud us. The real culprits want the freedom to take advantage of us while piling on more tax breaks for themselves. Racial prejudice just makes it easier for them to hide their own misbehavior.

So I want to make three points. First, racial prejudices do the greatest harm when politicians exploit them. I applaud those who condemn the violence and the perpetrators specifically. White supremacists don’t just object to policies – they hate everyone different from them. And no, Black Lives Matter is not a racist organization – objection to racism isn’t racism.

Second, the Supreme Court handed us heavily armed racists massing and marching to intimidate the rest of us. That must stop. Guns have no place in politics or public debate. Worse, white supremacists here admire Hitler, and study his path to power. Hitler’s Brown Shirts terrorized Germany. These folks are terrorists.

Third, Trump has done permanent damage to American politics. His close ties to groups which hate a large portion of America because they think we have the wrong parents is outrageous and highlights the danger of those hate groups. Trump has shown a path to power that every decent American must reject.

I was in front of the Lincoln Memorial when Dr. Martin Luther King shared his glorious dream. I thrilled to his words. But the March on Washington which we remember for Dr. King’s words was called and organized by the labor leaders of America dreaming of unity for all the working men and women of America. It is still a dream. We have to make it come true.

— This commentary was broadcast on WAMC Northeast Report, August 15, 2017.


Workers, the labor movement and the Triangle Shirtwaist Fire

August 7, 2017

I was driving home from the grocery store. The radio was tuned to this station. Wanda Fisher was playing a song that I hadn’t heard but I knew what the woman was singing about – it was the Triangle Shirtwaist fire. Hundreds of girls died because the doors were locked shut. They died from the fire, the smoke or jumping from windows like people did on 9-11.

You may or may not like unions. But no one who knows the history of the workers’ movement can doubt the need for regulation. Without regulations too many workers get treated like trash – locked in, poisoned and sickened by noxious toxins and cut down by unprotected machinery. My uncle was lucky – he just lost part of an ear.

Even worse, whatever profit one business can make by treating its workers like trash pushes other businesses to treat their workers like trash. That’s what business means by the need to stay competitive, skimping on what they have to do for their employees.

Regulation is pushback. That’s why we need it and that’s why those businesses that do most of the lobbying don’t – so they don’t have to spend money on the people they think of as nothing more than the means to make profit, essentially trash.

Politicians and courts have broken up the alliance among workers, white and black, by destroying the unions that united them. A large part of the decimation of unions was done through union finances. When all workers benefit from union bargaining but don’t have to contribute to the union treasuries, most people could save their dues and be free riders on the unions’ efforts – until the union becomes unable to help because its treasury is empty. So-called “right-to-work” laws have done that in many states. Those laws prohibited the union shop in which everyone paid for the unions’ services. The laws should have been called management’s-right-to-fleece-their-workers laws because they made the relation between management and labor one sided. The U.S. Supreme Court played a part in these developments, increasingly denying unions the right to charge for their services. Labor unions have lost the majority of their former strength and most workers have no organization to support them. Without labor unions creating common agendas, workers have been much easier to divide.

In past years the Supreme Court has whittled away which unions could charge what dues, and in which unions workers could opt out of paying the full union dues even though the union had been selected as the workers’ representative in negotiations.

This past term of Court, the Supreme Court was poised to block collection of a collective bargaining fee from government workers who took advantage of union bargaining but chose not to pay full union dues. Put that together with the Court’s decision in Citizens United and you get a much clearer picture of how this Court has reshaped American politics against the working man. Scalia’s death blocked the Court from reaching a decision on that issue. But the case will surely come back in some form now that Gorsuch is on the Court.

The Court has not finished playing with the relative strength of workers and bosses or of Democrats and Republicans. It has chosen a president, in Bush v. Gore. It has reshaped political finance in Citizens United. So far it has refused to touch gerrymandering, letting its Republican friends keep themselves in power like Maduro in Venezuela or Erdoğan [phonetically Erdowan] in Turkey. We are not getting the government we deserve; we are getting what the Court dictates.

— This commentary was broadcast on WAMC Northeast Report, August 8, 2017.


The Courts Stand Up for Impunity

June 27, 2017

In one of the last cases to be decided this term of Court, the Supreme Court described the death of Sergio Hernandez as “a tragic cross-border incident.”[1] Indeed. I want to make clear that I care deeply about this case. Several friends and I helped write an amicus brief to the Court about it.[2]

Sergio Hernandez was 15 years old. The Court continued, “According to the complaint,” which the Court must accept as true at this early stage of the proceedings, “Hernandez and his friends were playing a game in which they ran up the embankment on the United States side [of the Mexican border], touched the fence, and then ran back down.” Border Patrol Agent Mesa caught and detained one of Hernandez’ friends but “Hernandez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert” between the c ountries. At a distance – the Court wasn’t precise but the culvert was up to 270 feet wide – Agent Mesa shot and killed Sergio Hernandez though the Agent was in no danger.

Notice the issues that the District, Appellate and Supreme Courts have been “struggling” with.

First, the Court had to deal with whether the Constitution itself authorizes a remedy when Congress has not provided one for the violation of constitutional rights. In other words, do our rights exist at the pleasure of Congress? That’s known technically as the Bivens question.

Second, do foreigners have any constitutional rights or may American officials kill them at pleasure? The Court of Appeals had decided that Sergio had no rights under our Constitution.

Third, even if Sergio’s rights were violated, did the Agent have “immunity … from civil liability.” They would have immunity if “their conduct ‘does not violate clearly established … constitutional rights.” So the fourth question is whether killing foreigners across the border violates any clearly established rights?

Along the way the Court commented that some of the issues in the case  are “sensitive and may have consequences that are far reaching.” Sounds like the Court was thinking about foreign relations. The Bible just says “justice, justice shalt thou pursue.”[3]

The Court finished by noting that the case “result[ed] in a heartbreaking loss of life” but thought the Court of Appeals should think about those issues before the Supreme Court reached any final resolution about the issues in the case:

  • whether foreigners have any rights that American officials are bound to respect;
  • whether there is any remedy for murder;
  • whether murder by a government official is a clear violation of a constitutional right?

Abroad, and we use the same term when describing behavior in other countries, people who are protected from any responsibility for the harm they do are described as having impunity. It does not describe freedom. It describes lawlessness, in countries run for crime bosses and rapacious masters.

Think now about shootings of Americans in America by police officers, shootings of Americans with their backs turned, with their hands up, with their house keys in their hands. Are we now a nation with impunity? Does freedom still live here or are too many people here forced to bow, scrape and beg those with the power to kill. If there are people who, in the language of Dred Scott, have “no rights which … [American officials are] bound to respect,”[4] does that mean that they and we are treated like the slave in Dred Scott?

[1] Hernandez v. Mesa, U.S. Sup. Ct. No 15-118, decided June 26, 2017.

[2] Brief for Amici Curiae Legal Historians in Support of Petitioners in Hernandez v. Mesa, U.S. Sup. Ct. No 15-118.

[3] Deut. 16:20.

[4] Dred Scott v. Sandford, 60 U.S. 393, 407 ((1856).


Trump and the Swamp

June 6, 2017

Trump promised to drain the swamp. We can agree that the swamp is the predominance of special interests over Americans of ordinary means. Bernie Sanders won many hearts and minds by refusing to take big money. Trump claimed independence from big money because he had so much. Clinton lost many votes because she accepted large speaking fees and contributions. A large populist wave by financially ordinary Americans swept the country.

People credited Trump’s promise to drain the swamp. With Trump in power, we’re entitled to look at his actions. Indeed we should.

Most Democrats long tried to take big money out of political campaigns. With some exceptions, like John McCain, Republicans worked to protect the use of money in politics. In the McCain-Feingold Act, Congress managed to compromise between their positions. But the Supreme Court, dominated by Republican appointees, invalidated restrictions on campaign contributions, and held in Citizens United, that corporations could contribute funds straight from corporate treasuries. Heard anything lately from the White House about campaign finance regulation? I didn’t think so.

Trump wants to lower the tax and regulatory burdens on the wealthiest people and companies. He claims in justification that the extra costs harm American workers. I recognize the heated debates about those claims. I’ve repeatedly explained in this commentary that putting more money in the hands of the wealthiest people and corporations is unlikely to spur investment or improve the position of American workers. It won’t help American workers because corporations can and do spend extra money everywhere, including abroad. It won’t help American workers because extra wealth can be and is spent on nonproductive goods or investments. And it won’t improve the position of American workers because there is no shortage of capital in this country, so putting more in in wealthy or corporate pockets is like pouring mud into the Mississippi.

Eliminating regulations will also put money in wealthy and corporate hands but hurts everyone else. Unions have been big proponents of safety regulations because they protect the health and safety of workers, and, we should add, of consumers and citizens.

Trump’s proposed budget also pulls up the safety net and hands the savings to corporations and the wealthy. The safety net protects people when they fall on hard times, when illness drains their bank accounts and strains their budgets, when corporate decisions leave workers struggling to find new jobs and forced to feed families on minimum wage jobs. These have direct and indirect costs for all of us. Losing a job can be temporary but it can also be a fall into a rabbit hole that sucks out everything we’ve invested in our homes, our retirement, and stresses, even breaks up our families. In 2008 those factors spread and took a lot of us down. The safety net was intended in part to help slow or stop economic downturns. 2008 overwhelmed what was left of the safety net but Trump would make it worse.

And health care decisions don’t just affect the most vulnerable. None of us want people spreading serious or medicine-resistant strains of TB, Zika, MRSA and other communicable diseases. Effective strategies against communicable disease involve keeping the diseases out of the population to the extent possible.

In Trump’s budget, the savings from all these cuts go to the 1/10 of 1%, the wealthiest of the wealthy, the very people who should be giving back rather than sucking at the public til. Trump promised to drain the swamp. But Trump IS the swamp.

— This commentary was broadcast on WAMC Northeast Report, June 6, 2017.


Freedom for the Boss; Drudgery for the Rest of Us

May 16, 2017

I keep looking for ways to talk with supporters of the Administration. President Carter started the deregulation frenzy. That has become half of the Republican cut-and-deregulate refrain ever since, consistently repeated by the current White House and the Republicans in Congress. I’d like to focus on the things that will affect those of us who are, financially speaking, ordinary, middle-class Americans.

Here are changes the Administration and congressional Republicans are considering that affect working conditions:

  • The White House Office of Information and Regulatory Affairs has been postponing and considering cutting down a Labor Department rule that limits “workers’ exposure [to] toxic material, which can cause a deadly lung disease.”
  • The same White House Office is also “considering a proposal to roll back protections for workers in construction and shipbuilding.”
    • Those rules allow our employers to save cash by risking our health.
  • The Working Families Flexibility Act … would give employees a choice between taking time off or being paid time-and-a-half when they work more than 40 hours in a week.”
  • Either way, Republicans oppose changing overtime rules to raise eligibility for overtime above the current $23,660 per year.
    • Those rules allow our employers to save cash by shortchanging us.

Here are some that affect the health of financially ordinary Americans:

  • The Administraton has already taken steps to “roll back healthy school lunch standards”
  • The new head of the FDA “has invested in or consulted for dozens of healthcare companies” which suggests that the Food and Drug Administration won’t be much help in preventing unnecessary complications and expenses.
  • The House health care bill would eliminate Obamacare requirements that insurance plans cover prescriptions drugs and mental healthcare. Like all insurance, drug and mental health care coverage are intended to protect people from unplanned changes in the costs of survival.
  • Senate Republicans narrowly lost an effort to roll back a regulation that “limit[s] methane emissions from oil and natural gas drilling.” Methane is even more damaging to the climate than carbon.
    • Those rules risk our health for the sake of other people’s profits.

On savings for retirement:

  • “Trump’s Labor Department delayed the so-called fiduciary rule, ordering financial advisers to act in … [your] best interest[s] … [if you] are saving for retirement.”
  • The CHOICE Act would allow the banks that brought us the crash of 2008 to opt out of regulations adopted after the crash and intended to prevent another. And the bill renames the Consumer Financial Protection Bureau and “reduces its power to enforce pre-existing consumer protection laws.”
    • Those rules risk our financial security for the sake of other people’s profits.

Meanwhile, Republicans on the Supreme Court show little respect for working men and women.

  • With Breyer’s help they have blessed “Professional debt collectors … [who] built a business out of buying stale debt, filing claims in bankruptcy proceedings to collect it, and hoping that no one notices that the debt is too old to be enforced by the courts.”
  • The Court continues to apply a 1925 statute intended for interstate business transactions to consumer contracts and the Court bars state regulation entirely.

What Republicans continue to give us is freedom for the boss and drudgery for the rest of us. As the old folk song has it, “same song, second verse, could get better but it’s gonna get worse.”

— This commentary was broadcast on WAMC Northeast Report, May 16, 2017.


%d bloggers like this: