Public Defense: Getting Better, but Still not Good Enough

Fifty years after Gideon v. Wainwright, there's still a lot of room to improve public defense. Acknowledging that fact, Travis County judges recently made a proposal for the creation an independent office that would oversee the appointment of attorneys for indigent defendants.

Under the current system, judges decide which attorneys are qualified to handle indigent defense, what level of case they're equipped to handle, and how much they and their experts are paid—a process inconsistent with the independence required by the ABA's guiding principles. 

Both lawyers and judges worry about the inconsistency the current system creates. Different judges may offer different compensation for the same workload; when a judge is known for refusing to offer extra compensation for extraordinary work, there's an incentive for attorneys to push their clients into plea bargains. Attorneys and judges have complain that the system is disorganized and lacks oversight.

However, some attorneys have voiced concerns about the additional layers of bureaucracy the proposed office would add, as well as the $500,00 annual price tag. The proposal also wouldn't so anything to address the disparity in funding for defense and prosecution: Travis County spent $9.3 million for indigent defense in 2011, whereas the 2013 budget includes over $34 million for the prosecution of felonies and misdemeanors.

Beyond Standardized Tests: Legislators' Attempts to Revamp Texas K-12 Curriculum

With the advent of No Child Left Behind, high stakes testing took root as a K-12 education policy enacted into federal law.  In the past decade, many groups have criticized the policy of using high stakes testing, which includes President Obama’s Race to the Top program, to drive improved student performance.  Critics have asserted that an education system rooted in student performance on standardized tests skews the learning process toward rote memorization and away from critical thinking.  In addition, critics have questioned whether standardized tests truly measure what a student has learned and whether cultural or language differences among students may vary student performance outcomes.

Members of the Texas legislature have filed bills during the current legislative session to reduce the amount of standardized tests that K-12 students must complete.  Part of these initiatives stem from complaints about the STAAR testing regime that replaced TAKS testing.  The STAAR includes end-of-course exams that are included in a student’s GPA in high school, a change from the earlier testing regime.  Grading changes are only a part of the change in statewide testing.  The STAAR tests include more difficult questions overall. 

One might assume that the many critics of high stakes standardized testing would welcome the proposed laws by the Texas legislature to reduce the amount of tests given to students.  However, these proposals have also included changes in high school graduation requirements.  Currently, Texas has a “4 x 4” model that requires math, science, language arts, and social studies in all four years of high school.  The proposed legislation would allow students to choose electives to replace some of the “4 x 4” core classes.  Proponents of these changes argue that a more flexible curriculum would help students to begin taking classes to further their career goals at an earlier stage in their education. 

Some critics of the proposed legislation assert that reducing graduation requirements overcompensates for the rigidity of high stakes testing.  While fewer high stakes standardized tests would arguably allow for a well-rounded education system that rewards several types of learning and skills, critics of the proposed laws assert that the ills of teaching to the test can be removed while still keeping a rigorous curriculum at the high school level.  Enveloping curriculum reform inside testing reform may have unfavorable consequences overall, outweighing any benefits of reducing the weight of standardized test scores. 

Debate without Representation: How Borrowers have been Neglected in the Subprime Mortgage Conversation

It is no novel realization that freedom of speech does not include a right to be heard by the government. Those in government will only hear those who can hurt it or help it: terrorists and moneyed interests. People without malice and money have virtually no representation apart from the occasional benevolent politician who champions their causes—occasionally. Some human rights movements have gained traction by appealing to the civil rights and liberties this country champions. However, oppression excluding the lower classes from opportunities for upward social mobility does not get such traction.

However, in the wake of the global financial crisis, a sector of society used its free speech in Occupy Wall Street protests, documentaries about foreclosures, and “town halls” held by local, state and federal politicians, and demanded an end the exploitation resulting from the financial disparity between borrowers and lenders. This sector reached such a critical mass, that the federal government had to—at least appear to—crack down on the moneyed interests they usually cater to.

The “critical mass” sparked the debate on mortgage reform, but among whom? The debate is between the government and the moneyed interests. Who is representing those on whose behalf this debate is supposedly being conducted? The benevolent politicians? A common thread woven throughout the literature on how to guard against “subprime” mortgages suggests not.

This common thread is a call for a rise in down payments. This call is problematic for several reasons. However, most disturbing, is the fact that this “solution” for ending subprime mortgages would result in less home ownership—an important investment for upward social mobility—among those on whose behalf this debate is supposedly being conducted: the people who lost their homes in the subprime mortgage crisis and whose upward social mobility has been stifled, in part, through lack of access to safe credit and safe investment.

Again, the government not listening to the voices of non-moneyed interests is not a new phenomenon. However, this is a harshly lit example, given (1) the government claims it is responding to the concerns of those who do not constitute moneyed interests, and (2) the concerns derive from the fact that these non-moneyed interests have no power parity with the moneyed interests. More broadly, it is a much more direct example of how the civil liberties this country cherishes—such as freedom of speech—are far less potent when not coupled with the economic and social rights this country largely eschews.

Profiting off Prisons: A New Threat to Due Process

            In 1984, and amid a wave of scandals concerning the overcrowding of prisons with ever-increasing numbers of Drug War convictions, the United States began its experiment with private incarceration. It began simply, with a minor contract with the state of Tennessee to handle a prison in Hamilton County; the contract was given to a then-unknown Corrections Corporation of America. The decision was originally thought to be an innocuous one – after all, prisons have an established history of using contractors to outsource basic administrative tasks such as medical services and food preparation. From 1985 onward, private prison corporations such as CCA and the GEO Group have expanded vigorously, entering markets in several other states, all while championing a case of efficient prison administration, cutting costs, and easing the budgetary burden of the state legislatures.

             This expansion has been, in large part, the result of an extensive lobbying campaign that private corrections firms and consultancies have employed to influence the preferences of both legislators and the general public. From the perspective of CCA and GEO, these efforts have been wildly successful. From 1990-2009, federal and state public prison populations have doubled, whereas private prison operators have seen a 17-fold increase in the number of inmates given to their charge. Advocates of privatization urge that such success is indicative of state legislatures recognizing the apparent benefits of contracting out corrections, but the data is inconclusive that efficiency gains made by the public-private transition are very meaningful, if they exist at all. The above-referenced link discusses a New York Times analysis of a University of Utah study and subsequent state investigations that found that, in some cases, private prisons save states only pennies per day in housing costs, and those that do save meaningful amounts of money do so by engaging in a worrying practice of only contracting for healthy inmates and providing fewer and lower-quality medical and rehabilitative services.

            Indeed, one cannot understand the staggering growth of private prison contracts without acknowledging the substantial degree of influence that private prison lobbyists exert on the legislative process. From creating a labyrinthine series of “consultancies” and PACs to influence lawmakers at every level of the executive and legislative process, funding the campaigns of conservative and small-government legislators, drafting laws that limit judicial discretion and pursue incarceration even for minor infractions, to out-and-out corrupting judges to incentivize them to imprison for longer terms, private prison corporations and their supporters at ALEC have created what some term a prison-industrial complex. The goal of this partnership between those charged with maintaining the public safety and those that benefit from a robust and thriving prison population? A seemingly endless chain of incarceration, an increase in predictable profits, and the wearing down of legal protections that frustrate their goals.

            Needless to say, a prison-industrial complex – even if unintentionally – threatens the basic protections of due process and fairness of trial upon which the entire criminal justice system relies. The intersection of money and politics always creates, as it should, a suspicion of impropriety – of those using nonpublic back channels and significant resources to secure legislative concessions that would never have been allowed if the subject of public spectacle. Private corrections is now a multi-billion dollar industry, and some of that money finds its way back into the hands of those charged with maintaining the integrity of the system upon which it depends. The perverse incentives for a legislator to draft harsher sentencing guidelines, for a prosecutor to push for less leniency, and for judges to give it are too apparent to ignore. Even with regulatory safeguards, the economic and financial realities of private prisons will corrupt.

China’s One-Child Policy: Gender Gap, Loopholes, and the Future

           When scanning the Asia-Pacific section of the New York Times, more often than not the articles are focused on China and its booming economy and population. China currently hosts the largest population in the world, with an estimate of 1.3 billion people living within its borders. But with a recent birthrate decline that puts it at one of the lowest in the world, one article asks, “Will China have to abandon its One-Child Policy?”

            The One-Child Policy was established in the late 70’s and many experts estimate that it has prevented between 300-500 million births: a significant amount considering that is enough unborn children to repopulate the United States. The Chinese government cites the economic, social, and environmental benefits of a controlled population, while various humanitarian organizations decry the rise in abortions of female fetuses that has led many cities to make it illegal for doctors to reveal the gender of a baby until it has reached the point of viability. In a society where it is a son’s duty to take care of his aging parents, most Chinese parents view it as an economic hardship to have a daughter. 

            The One-Child Policy is not as all encompassing as most people think. Many families in rural areas are allowed to have multiple children thanks to the demand for extra labor on small family-run farms and a higher infant mortality rate as a result of fewer modern medical facilities. Additionally, parents who themselves are both only children are allowed to have two children if they so choose. Families who have the finances and desire simply bypass the One-Child Policy by taking the hefty fine that comes with having additional children.

            In a world where countries like Japan and Germany are trying to incentivize couples to have more children to support quickly aging populations, the long-term effects of China’s unorthodox method of family planning through the legal system are hard to foresee. In fact, when I taught in China many of my students came from rural families and I was surprised to hear that most of them had already had one or more siblings. However, when I asked them how they felt about the One-Child Policy their overwhelming response was positive. When asked why they agree with it most of them simply stated, “China is too crowded.”

DOD Women in Combat Policy Catches Up to Reality, but Gender Equality Remains Elusive

Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff General Martin Dempsey recently issued a memo purported to pave the way for more women to serve in direct combat.  The memo reversed the 1994 DOD “Direct Ground Combat Definition and Assignment Rule” which precluded women from serving in direct combat roles.  The memo also opened military occupational specialties (MOSs) previously open only to males to women. 

Though the memo has made headlines around the world it was behind the times.  It was less groundbreaking and more acknowledging reality.  Women have been serving in convoy guards and security forces for years.  These roles, in everything but name, are combat roles.  More to the point, the wars in Iraq and Afghanistan were a turning point in warfare.  There are no more front lines.  All territories are in play.  More than 150 women have died in combat since 2001 despite DOD policy that women did not serve in combat. 

Despite the fact women already serve in combat there remain some practical difficulties to making it “official.”  Perhaps the most practical of concerns: body armor.  The body armor typically used by U.S. Army soldiers consists of an Outer Tactical Vest (OTV) and two Small Arms Protective Insert (SAPI) ballistic plates.  The plates are ceramic, very hard, and not designed for even a little female comfort.  Maybe the acknowledgment by the DOD will allow them to purchase body armor in both men’s and women’s sizes.  Neither the technology of shaping nor the female form is a recent development.

The women in the military conundrum began long before the 1994 rule.  One memo won’t be enough to put servicewomen on an even plane with servicemen.  Women in the military remain in near-constant danger of sexual harassment, sexual assault, and rape.  Hopefully the memo is the first step of a concerted effort to realize  gender equity in our armed forces, not merely equity in theory.

  

A White NBA Team: Automatically Suspicious?

            Minnesota’s NBA franchise, the Timberwolves, have caught some flak early this season for the team’s racial composition.  The team is 70% white, including four-fifths of tis starting lineup, in a league that is 93% black.  Civil rights leaders have complained that the Timberwolves have intentionally constructed their roster to appeal to the team’s predominantly white fan base. Minnesota’s best player, Kevin Love, is the NBA’s most prominent American-born white player, though the core of the team also includes white players from Spain and Russia. The Timberwolves’ general manager, David Kahn, has defended the roster’s international composition, as well as through the notion that the ultimate goal is to compose a team that wins, regardless of color.

            The Timberwolves should not have to deal with accusations that their team is too racially skewed in one direction or the other.  As Kahn asserts, the team includes players from multiple countries, its starting shooting guard (Brandon Roy) is black, and the team made lucrative free agent offers in the offseason to black forwards Jordan Hill and Nicolas Batum, who accepted the contract’s terms but whose original team exercised their right to match the offer and retain him. Moreover, by indicting the team for trying to appeal to a white fan base, the civil rights leaders are really indicting the intolerance of the fan base, not the team.  Recent history does not support that attitude.

            In 1995, the Minnesota Timberwolves bucked years of traditional thought by spending its top draft pick on a high school player (a practice since outlawed by the league), 7’0” black forward Kevin Garnett.  Garnett spent a full decade as the unquestioned face of the franchise.  During that time, Minnesota did not struggle with complaints that the team was catering to a particular racial fan base, nor did they struggle with low attendance figures. The reason is evident: Garnett, now an NBA champion with the Boston Celtics, has been the Timberwolves greatest player and only certain Hall of Famer. The team enjoyed great success and notoriety with Garnett on the roster, and since he’s left, the Timberwolves have not had one winning season.  The activists criticizing the Timberwolves should show more respect for the team’s fan base and acknowledge that Minnesota is more likely trying to adhere to the model that has, across all sports, proven most successful in raising attendance and television ratings: if you win, they will watch.

Baseball, Early Voting, Mom, and Apple Pie: According to Husted, One of These Does Not Belong

 

As reported by the Toledo Blade, Ohio Secretary of State Jon Husted described a recent federal court decision by the 6th Circuit to require Ohio to offer early voting to all voters as an “un-American approach to voting.” Not unconstitutional, not unauthorized, not difficult to manage, un-American. What in the world does he mean? 

Obama for America v. Husted, the case he is referring to, is a battle in the larger war that has taken place in the courts this election season over a variety of new voting laws. In this case, President Obama’s campaign, and the Democratic National Committee sued Ohio’s Secretary of State to block enforcement of an Ohio law that allowed military and overseas voters to have more in-person early voting opportunities than ordinary voters. Specifically, only military and overseas voters were allowed to early vote in the three days before the election. Ohio justified this policy by saying military families face unique challenges in voting and that it was too difficult to administer early voting for all voters during this period. The District Court concluded that this law was a violation of the Equal Protection clause and granted an injunction, which has since been upheld by the Sixth Circuit. The U.S. Supreme Court recently denied Ohio’s request for a stay of this injunction. While the case matters for voters in Ohio, it is by-and-large an election administration issue, which shouldn’t ordinarily rise to the level of un-American activities. So, what is Mr. Husted’s problem?

Most likely he means that the court decision intrudes on states’ rights to administer elections without interference. While Mr. Husted may feel this way, there is an extensive history of federal courts imposing their will on states when states are not running elections in a constitutional way. While Mr. Husted’s comments may rest on states’ rights ideology, he described the decision as an “un-American approach to voting” not an un-American approach to election administration or the treatment of states, which indicates that something else is at work in these comments.

Maybe he means that what President Obama’s campaign is asking will result in a denial of easy access to the polls by servicemen and women. It seems some military organizations do believe this, as many expressed support for Husted. However, as is clear from OFA’s brief, that isn’t at all what they want. What the plaintiffs sought in this case was equal access to the polls for military and ordinary voters. The plaintiffs did not want Ohio to end early voting in the 3-day period before the election. Instead, they wanted to ensure that all eligible voters had the opportunity to vote in that period. Though Mr. Husted could have reacted to the decision by eliminating all early voting in the 3-day period, he instead instituted limited hours early voting for all parties. However, the decision was entirely Mr. Husted’s, so he can’t mean that the decision was un-American because it denied early voting access to military families.

The only conclusion left is that Mr. Husted thinks early voting is in some way un-American. While some consider early voting dangerous and many Republicans don’t like it for a variety of reasons, it seems pretty out-there to suggest early voting is un-American. The general consensus is that early voting creates more access to the polls and helps to eliminate burdens for a variety of voters, which ultimately helps in effective election administration. The typical early voter is more likely than an election-day voter to be member of a minority group. In a country with such a terrible history of voter suppression, any policy that improves minority voter access with no impact on election integrity should be implemented immediately. It is simply common-sense.

So why does Mr. Husted so disfavor early voting for non-military voters? While not wanting to impugn the motives of an elected official of the great state of Ohio, it seems that politics may lie closer to the heart Husted’s declaration than he might have Ohio voters believe. Minority voters tend to vote for Democrats. Military voters tend to be Republicans. With other excuses eliminated, it seems only one answer is left.

Improving access to the polls? That has been the direction of American history with Americans from the American Revolution to the Civil Rights Movements fighting and dying for access to the polls.

Opposing easier voter access at all costs because you don’t like who votes? Now that sounds un-American.

The Debate We're Not Having: National Security and Civil Liberties

 

We live in an age where police chiefs are seeking funding to purchase drones for domestic surveillance, where fusion centers indiscriminately collect information about us in mega-databases around the country, and Congress has granted the President the power to indefinitely detain U.S. citizens – all in the name of national security.

It’s rather remarkable, then, that in Monday’s Obama/Romney foreign policy debate – where we heard how everything from math teacher shortages to Iranian centerfuges impact national security – there was not one word about how civil liberties might affect our national security policy.

The third party candidate debate – hosted by Larry King the night after the last Obama/Romney debate  –  had a much different tone, and included serious discussion about PATRIOT Act repeal, cessation of drone strikes, and the status of civil liberties under the NDAA. Remarkably – as The Atlantic’s Conor Friedersdorf lauds – these candidates, “so ideologically diverse” agreed that “civil liberties are being trampled on by Democrats and Republicans.”

Given the robust discussion of the relationship between national security and civil liberties at the third party candidate debate, the silence in the Obama/Romney debate is even more striking.

Perhaps, the silence is an extension of David Sirota's analysis of DNC Chairwoman's Wasserman Schultz’s profession last week that she had never heard of Obama's widely reported "kill lists" (which were in the mainstream media as recently as this week) –

the predictable result of a political duopoly that so fundamentally agrees on extra-constitutional national security and civil liberties policies, that those policies are no longer permitted to be part of any “serious” national political discussion.

Do we live in an age where the major political parties consider civil liberties and national security inappropriate for serious discussion? I certainly hope not.

We, the people, must stand together and demand some serious discussion on these issues, or pretty soon, the Department of Homeland Security will roll out its new technology to scan our bodies with a molecular scanner from 164 feet away – and we won’t have even made mention of our concern.

By Kali Cohn

The Future of Assault Weapons

 

During Tuesday’s Presidential Debate at Hofstra University, a member of the audience asked what the candidates planned to do to “limit the availability of assault weapons.”

The question most likely referred to the shooting this summer in Aurora, Colorado, where James Holmes used a Smith & Wesson M&P15 semi-automatic rifle, along with a pistol, shotgun, and other weapons, to attack people at a Dark Knight Rises movie screening. 58 people were injured and 12 were killed, including 6-year-old Veronica Moser-Sullivan.

Holmes purchased all of his guns legally at Colorado sporting goods stores. While assault weapons like the one Holmes bought had been outlawed in 1994, the assault weapons ban expired in 2004, and Congress declined to renew it. Holmes’ legally-purchased assault rifle was capable of firing 100 consecutive shots; a deadly weapon designed for war combat with power far beyond any conceivable non-military needs.

Governor Romney reaffirmed his alignment with conservative gun rights positions, and redirected the topic to automatic weapons, instead of assault weapons: “I'm not in favor of new pieces of legislation on guns and taking guns away or making certain guns illegal. We of course don't want to have automatic weapons, and that's already illegal in this country to have automatic weapons.”

Fully automatic weapons are legal to own in the United States, but are very tightly regulated by The National Firearms Act of 1934, the Gun Control Act of 1968 and the 1986 Hughes Amendment. Under these regulations, only automatic weapons manufactured and registered with the federal government before 1986 can be bought, owned and sold, and purchasing one requires an FBI background check.

However, Romney had very little to say about assault weapons, the original question topic. Instead, he mainly focused on the idea that changes in culture are needed to reduce gun violence. He mentioned, in particular, education and family structure. “We need moms and dads helping raise kids wherever possible,” he said, and added that before having children, people “ought to think about getting married to someone.” This was likely a message to more conservative voters who believe that changing values about sex and marriage, including tolerance for homosexuality, are the true causes to larger problems in society, including violence. This point also helps resolve a potentially serious issue for those that argue for more gun rights, by reconciling support for more gun accessibility with an opposition to violence. However, the evidence has not shown a connection between single-parent families and gun violence. See Murnan, J., Dake, J. A. and Price, J. H. (2004), Association of Selected Risk Factors with Variation in Child and Adolescent Firearm Mortality by State. Journal of School Health, 74: 335–340.

President Obama, on the other hand, did not take a particularly strong position for more gun control. “We're a nation that believes in the Second Amendment,” he said. And though he did mention the Aurora shooting and supported getting “an assault weapons ban reintroduced,” Obama also seemed more interested in non-regulatory approaches to reducing gun violence such as education and “making sure we catch violent impulses before they occur.”

So returning to the original question on whether much is being planned to reduce availability of assault weapons, the real answer seems to be “very little, if anything,” under either candidate.

But what has gone mostly ignored in this discussion is that availability of weapons may become a moot issue by the end of the decade, as the internet and new technology increase access to deadly weapons beyond what any regulatory approach may be able to keep up with. In August, an engineer claimed to have printed a working gun using a personal 3D printer. And a UT Austin Law student has been seeking funding for a crowdsourcing project to make 3D gun printing easily accessible to anyone via the internet. As 3D printers become inevitably cheaper and more sophisticated, and eventually able to print metal objects affordably, even strict gun regulations may become completely ineffective. It is worth exploring, then, whether there may be any other effective approaches to reducing violence and deaths from increasingly powerful, and available, weapons.

By Leonora Camner