Thursday, November 17, 2011

Zombify Wall Street

This is a post in two parts. Part I approaches the Occupy Wall Street movement as a largely un- or misinformed person, talking like I know what I’m talking about. In other words, it’s a commentary/discussion of OWS before the author did any research whatsoever. Knowledge about the movement was limited to brief conversations with other people and general, if light, media awareness. Part II is a reflection on Part I based on subsequent research.

Part I

As a mathematic equation, I understand Occupy Wall Street (OWS) as follows:

Variety of People+Varying Degrees of Anger/Dissatisfaction+Extensive Media Coverage=OWS.

Notably this is only one element (hunger for brains) away from a zombie occupation.

Humor aside, having a hunger for brains seems like it might be an improvement for the protestors. As it stands, they don’t appear to have a hunger for anything besides doing “something” about the 1%.  Indeed, the title “Occupy” is apt: all the protestors seem to be doing is occupying, camped out in front of building were other people come to work.

I am, of course, being unfair. OWS is at a protesting disadvantage because it’s not protesting anyone or anything in particular. There is not a particular company, government body, or individual who has specifically earned OWS’s ire. It’s protesting “the way things are.” It’s not so much protesting the 1%, that top tier of economic society where all the wealth is. It’s protesting the fact that such an imbalance exists. And since there is no particular business or person to be mad at, OWS has settled on the most obvious physical manifestation. In New York, that’s Wall Street. In other cities protestors have decided upon city hall or some other equivalent representation of “the institution.”

And let’s be honest, when we talk about the imbalance that has brought occupiers to the streets, I think we all carry a little chip on our shoulders. If it’s really true that 1% of the people in our country have most of the wealth (and I honestly don’t know, I just have seen signs to that effect), then I can certainly see that some protesting is in order. Or at least a strongly worded letter. Because you and I and everyone else want some of that money, need some of that money. And if the current economic or government or social system is encouraging this type of imbalance then we should encourage change in those systems.

The problem then, is not that the occupiers don’t have a valid complaint. In fact our country was founded on a pretty similar complaint. The problem is that OWS has identified a predicament without proffering a solution. Imagine, for example, if the Continental Congress had issued their grievances in the Declaration of Independence without later establishing a working and lasting resolution in the Constitution. A solution is one of the reasons we had the American Revolution and not the French Revolution (yes, I know about the gross historical inaccuracies here. It’s only for illustration).

Obviously the analogy is asking a lot from the protestors who appear (from pictures) to be a mix of honest, hardworking, recently unemployed, average Americans and vagrant hippies. But it’s not necessary for the protestors to channel the Founding Fathers. Some indication of some sort of leadership or clear goal or demands would suggest more is going on behind the eyes than a dull throb of angst, simmering occasionally to anger.

I guess, in summation, that I agree with OWS that there is a problem with the balance of money and power in our society and I think it’s fine that they’re waving around signs saying so. But I don’t trust or expect them to do anything lasting about it. And so, frankly, I expect OWS to go the way of Elian Gonzales, a vaguely remembered event that used to be a big deal.

On the other hand, if OWS develops a hunger for brains, I think we’ll be talking about it for years to come.

Part II

Okay. So I want to spend as little time as possible apologizing for anything I wrote above that is inaccurate, insulting, or otherwise an indication of gross ignorance. The ignorance was intentional and is intended to demonstrate a possible attitude an average “mind-my-own-business” American may have to OWS. Unfortunately, I don’t know what to think anymore about anyone’s attitude toward OWS.

I am simply blown away by how much is being said and written about OWS. To the point where I don’t really know what to say that hasn’t already been said, it would seem, hundreds of times over.  And this is after seven weeks (ending November 4).

I’ve faulted OWS pretty heavily for the lack of a clear message. And I am far from being the only one. But after learning more, I’m less certain that’s a bad thing. The movement is very, very young. Yes, it is made up of a wide collection of people with amorphous views all united behind generalized dissatisfaction with the current economic situation. And no, they don’t know what exactly to do about it. And as far as I can tell, no one is really talking for OWS; everyone is talking about OWS. But, I have been convinced that all this is just fine for right now. I am convinced that it is more important for OWS to focus on surviving than it is to focus on clear demands.

I did a Google Trends search, which allows you to look at the frequency with which terms have been searched on the engine and, as you might expect, “Occupy Wall Street” skyrockets in the end of the third quarter of 2011, coinciding with the OWS’s first activities in mid-September. Just for perspective, I compared the result with searches for “Facebook,” “Google,” and “Wikipedia.” OWS didn’t measure up (Facebook has the commanding lead).  The most interesting comparison I made was to “Tea Party,” which had a similar meteoric rise in early 2009, coinciding with the movements February 2009 protests. Both also rapidly tail off. Fortunately for the Tea Party, interest has continued to some degree and so has the Party itself. It’s too early to tell whether, OWS will have a similar continuing existence, or if it will fade into obscurity.

If it does fade, it will not matter what OWS demands. And survival may be a struggle. With the winter coming on fast, Occupy Wall Street may be forced to stop occupying Wall Street. It remains to be seen how much the solidarity and loyalty of the organization depends on its literal visibility on the streets of New York and other cities. What form will the movement’s strong social network presence take? Can a leader or a group of leaders emerge from the morass? Difficult times are ahead.

But like a rough stone rolling, each obstacle that OWS manages to overcome will help to refine and define the movement. If it survives, it will prove that it is worth listening too. And I have no doubt that if it survives, the movement will have a found a clear voice.

And it will say “BRAAAAAAIIINS….”

Just kidding.

Glen Ellsworth

Friday, November 11, 2011

Deliberately Indifferent Training and Brady Violations

John Thompson spent 18 years in prison following convictions for attempted armed robbery and murder. A month before his scheduled execution, an investigator hired by Thompson’s lawyers made a discovered a lab report which exonerated Thompson of the attempted robbery charge.  The report contained results of a test conducted on blood left by the robber on the clothing of one of the victims. The robber had type B blood. Thompson’s is type O. The prosecutor in Thompson’s attempted robbery case deliberately withheld the test results from defense counsel despite Brady v. Maryland  in which the Supreme Court held that a prosecutor has a duty to disclose exculpatory evidence to the accused. At Thompson’s subsequent trial on the murder charge, he understandably declined to testify so that the attempted robbery conviction could not be used for impeachment purposes. In course both convictions were overturned. A second trial on the murder charge produced a defense verdict after 35 minutes of jury deliberation.

When Thompson sought compensation from the District Attorney’s office, his legal options were limited. The actual prosecutors who committed the Brady violations were immune from liability. Thompson could only successfully bring a §1983 action against Connick, the New Orleans District Attorney, in his official policymaker capacity, under a theory of municipal liability. Thompson could not sue Connick on the basis of respondeat superior, disallowed by Monell v. New York City Department of Social Services. A municipality is subject to liability under § 1983 only when the violation of the plaintiff's federally protected rights was caused by enforcement of a municipal policy, a custom or practice, or a decision of a final policymaker. 

Under City of Canton, deliberately indifferent training may also give rise to §1983 liability. §1983 municipal liability may be based upon deliberately indifferent training that was the moving force of the violation of the plaintiff's federally protected rights. To make out such a claim, the plaintiff must demonstrate specific training deficiencies, and either a pattern of constitutional violations of which policymaking officials are charged with knowledge, or a showing that training is obviously necessary to avoid constitutional violations. Thompson sued under the Canton supported theory that additional training of the District Attorney’s employees was obviously necessary to prevent Brady violations.

The overwhelming evidence provided by Thompson was breathtaking. The jury found for him in less than thirty minutes to the tune of 14 million. The Fifth Circuit affirmed but the Supreme Court reversed. The Court did not take issue with the jury instructions or with the facts as presented. So what could possibly have been the problem? The majority opinion essentially claimed it is impossible for a jury to ever find deliberate indifference when it comes to prosecutors and Brady violations, regardless of the facts.  Prosecutors are already trained in the law.  Therefore, it can never be obvious to a policymaker (the DA) that additional training in the law is needed to prevent constitutional violations on the part of subordinates. As such, deliberate indifference can never be established.

The opinion ignores the evidence in the record, shows contempt for the concept of jury fact-finding, creates a new, categorical exemption from current law for prosecutors (without admitting it), and leaves a wrongly accused man who spent 14 years wasting away on death row with nothing. 

Will Ellis

Tuesday, November 8, 2011

Drug Testing For Welfare Recipients

A judge in a Florida district court issued an injunction blocking a law that would require welfare applicants to submit to a drug test.  Though the judge’s decision that such a test would be an unreasonable search under the 4th Amendment has triggered a prompt appeal from the Department of Children & Families and disapproval from the Governor Rick Scott, the issue is not unique to Florida nor 2011.  Three dozen states have debated drug tests for people receiving state assistance in one form or another, with Arizona, Indiana, and Missouri passing such programs.  Michigan instituted a program briefly in 1999 before ceasing it after a lawsuit was filed.
           
Unsurprisingly, the issue has come to the fore as the government labors to pay its bills and high unemployment rates persists. The arguments for and against the drug tests are relatively well-established.  Proponents of the test argue that in order for the state to spend its funds wisely it should screen its recipients, and that drug testing potential welfare recipients is no different than companies drug testing potential employees. Opponents argue that welfare recipients do not represent the government in the same way that employees represent companies, and that requiring drug tests without individual suspicion reinforces stereotypes about drug use amongst the poor. 

If the state denies funding to welfare recipients or the unemployed based upon drug testing, why not require any recipients of state funds, including corporate CEOs, to submit to similar testing? Recent examples of executive misconduct do little to dispel that reasoning. In fact, the Florida judge found a lack of a compelling state interest by citing statistics concluding that the percentage of welfare recipients who use drugs is in line with the rest of the general populace. The study has come under some criticism. 

The purported wisdom of the government’s policy in Florida lies in the savings it provides.  Previous attempts at instituting drug tests for welfare recipients had proven more costly than beneficial. In the brief period the Florida program was operational, it realized savings in part by seeing decreased welfare applications.  However, there is no guarantee that this will continue.  Instituting a drug testing policy certainly requires fixed costs, and eventually welfare recipients who are drug users might find a way to circumvent the testing requirements (for example, using a non drug-using friend or family member).  Running a welfare program necessarily carries the risk that some of the money dispensed will be wasted.  Adding another level of bureaucracy to address one negative consequence and that might create others (such as an increase in crime as drug users look for other sources of money) does not seem an effective answer.  If a state government commits to a welfare program, it may be better off recognizing the reality that its program will not work perfectly, but that the differences it can make will outweigh the obstacles it encounters.
           
Charles Falck

Sunday, November 6, 2011

Taking Students to Court for School Misbehavior

In Texas, the municipal courthouse is the new principal’s office.  School districts increasingly rely on ticketing to address low-level student misbehavior.  This means more students are being fast tracked into the criminal justice system.  Moreover, whether and when a school district issues tickets is completely discretionary.  This means students from certain school districts, and minority students, are disproportionately ticketed and pushed into the criminal justice system.

Since the 1990s, Texas schools have begun commissioning and padding school-based police forces.  Today, police patrol the hallways of most Texas public schools.

The increase in school-based policing coincides with schools’ increasing reliance on Class C misdemeanor ticketing to address student misbehavior.   The percentage of non-traffic tickets issued to juveniles grew from 2% in 1994 to an astounding 40% in 2008.  In Austin ISD, a recent 31% growth in police staff coincided with a 50% increase in student ticketing.  Dallas ISD recently experienced a 24% growth in police staff and a corresponding 95% jump in ticketing.   Overall, in the 2006-07 school year, Texas juveniles received a total of 275,000 non-traffic tickets.

The increasing use of ticketing as punishment for school misbehavior is concerning because of the criminal consequences for youth.  Students receiving tickets must appear in municipal court.  Students who are convicted have criminal records.   Moreover, courts issue warrants for arrest when students fail to appear or pay the court-ordered fine.   In other words, receiving a ticket for school misbehavior may put a student on the fast track to the criminal justice system.

The criminal consequences are doubly concerning because most tickets are issued for low-level, non-violent offenses.    Only 12% of tickets issued during Texas’ 2006-07 school year were for violent or weapons offenses.  The majority (52%) of tickets issued in 2006-07 were for the misdemeanors “disorderly conduct” and “class disruption.”   The disorderly conduct and class disruption categories include typical, arguably trivial, school misbehaviors like using profanity, yelling out answers in class, physical scuffling with another student, throwing paper airplanes in class, and throwing food in the cafeteria.

School districts have wide discretion when it comes to ticketing.  This means different districts answer the question of whether to ticket differently.  Some districts ticket sparingly, while others ticket regularly.  For example, in 2006-07, Humble ISD issued 431 tickets to its student body of 31,144, yielding a ticketing rate of 1%.  Compare to Galveston ISD, which issued 921 tickets to its student body of 8,430, yielding a ticketing rate of 11%. 

Different districts answer the question of when to ticket differently, too.  For example, Austin ISD only issues tickets for fighting when one student assaults another, whereas Houston ISD issues tickets for various types of fighting, including “mutual combat” between two students.   Districts also answer the question of when to ticket differently for students with different skin colors.  Across the state, African American students are disproportionately ticketed.  In a typical example, Dallas ISD issued 62% of its tickets to black students.  Yet black students comprise only 30% of total enrollment.

Overall, recent growth in school-based policing had coincided with a vast increase in the number of tickets issued to Texas students for low-level, non-violent school behaviors.  Therefore an increased number of students are pushed into the criminal justice system.  Moreover, ticketing policies vary from school district to school district, and from student to student.  Therefore students from certain school districts, and minority students, are disproportionately pushed into the criminal justice system.  The overall increase in the number of tickets issued, and the discretionary nature of ticketing, must be addressed by the Texas legislature.  Possible legislative solutions include (1) mandating a graduated model whereby students cannot receive tickets until their third consecutive offense, and (2) entirely eliminating ticketing for the low-level offenses of disorderly conduct and class disruption.

Note:  All data and statistics referenced in this post are from a recent Texas Appleseed study.

Citation:  Texas Appleseed, Texas’ School-To-Prison Pipeline: Ticketing, Arrest & Use of Force in Public Schools (2010), available at http://www.texasappleseed.net/images/stories/reports/Ticketing_Booklet_web.pdf.

Therese Edmiston

Wednesday, November 2, 2011

The Decline of African-American Players in Baseball



In 2010 and 2011, the Texas Rangers Major League Baseball Club won the first two American League pennants of their otherwise mediocre existence.  In both cases, they clinched the pennant with an active roster littered roughly equally with a mixture of Anglos and Latinos, except for one lonely African-American – 41-year old journeyman relief pitcher Darren Oliver.  However, the Rangers do have an African-American manager who America is falling in love with – the always enthusiastic, hyperactive Ron Washington.  While the playing roster itself has only one African-American contributor, the team leader is none other than the New Orleans bred African-American baseball lifer Washington, who still makes his home in the city’s infamous Ninth Ward.
            
This construction of a Major League Baseball (MLB) team is less surprising than it probably should be.  The MLB Racial and Gender Report Card, issued annually by The University of Central Florida’s Institute for Diversity and Ethics in Sports, gave MLB an “A” for its racial hiring practices in 2011.  This grade follows “A” grades in both 2010 and 2009.  Major League Baseball is receiving credit for increasing its number of minority front office employees, managers, and coaches.  The overall number of non-white players is also increasing, largely due to the percentage increase of Latino players in the game from 13% in 1990 to around 27% today.  However, this progress comes at a time when the number of African-American players in the game is steadily decreasing, from 17% in 1990 to a paltry 8.5% in 2011. 

Several factors are often cited to as the reasons for this decline.  One is that the sport itself is inherently more expensive to play than other sports, because of both the cost of equipment and the cost of joining a league. A good bat can cost between $300 and $600, and on top of that, a player needs gloves, batting gloves, and uniforms.  Furthermore, youth baseball (pre-high school) has become all about traveling teams, which cost a significant amount in both fees and traveling expenses.  Finally, at the collegiate level, NCAA Division I schools only award 11.7 baseball scholarships a year, reduced from 20 in 1981.  These costs push young African-Americans towards sports such as basketball and football, which can usually be participated in cheaply by comparison.  This disparity in the costs of playing the respective sports has contributed to the National Basketball Association (NBA) and the National Football League (NFL) being made up of roughly 80% and 70% African-American athletes, respectively, while MLB lags far behind.

Another factor causing the decline of African-American baseball players is the way the game markets itself.  Curtis Granderson, an All-Star center fielder with the New York Yankees who is also black, says when he played with Detroit that the team showed white players on all of their billboards around town, even though their roster had several black stars such as Granderson, Gary Sheffield and Jacque Jones.  Other All-star caliber African-American players such as Ryan Howard and Carl Crawford cannot seem to break into the house-hold name category.  Meanwhile, Barry Bonds, who is arguably the biggest African-American baseball star of his generation, is mostly vilified rather than celebrated as a result of his suspected steroid use, and right or wrong baseball has chosen to mostly disassociate itself with Bonds since his retirement from the game.  Young black athletes need star players that are both adequately marketed and look like them in order to retain their interest in the game, and there just is not enough of those players in today’s game.

A factor that perhaps is not discussed enough is the evolution of the economics of the game.  A black athlete who grows up in America cannot enter into the MLB draft until he’s 18, and a player picked in the first round (the only round where a player has a better chance than not to actually play an MLB game at some point) will get an average signing bonus of over $2 million.  Meanwhile, most Latin American players are signed at age 16 by a major league team for a six-figure contract, and only recently did elite-level Latin players begin receiving seven-figure deals.  As a result of both the age restriction and higher signing bonuses in America, teams sign three to four Latin American players for every young African-American athlete.  It is simply a “very pragmatic business [decision]” according to Jimmie Lee Solomon, the MLB executive vice president for baseball operations.

This brings us back to the Rangers, who were well-known to be in dire financial straits for the years leading up to their first pennant in 2010.  While the Latin American players on Texas’ current roster are mainly the product of shrewd trades, their commitment to signing and developing young Latin players is shown in the makeup of the team’s prospects: in both 2010 and 2011, 50% of the Rangers’ top 10 prospects were Latin born players.  50% were white.  0% was African-American.  The Rangers are now generally considered to be among the smartest teams in baseball, and one reason is their harvesting of cheap talent in Latin America while passing over young black players who cost more and are subject to more stringent labor restrictions.  As long as this model is a winning model, one can expect it to be mirrored by other organizations, and the number of African-Americans in the game may even further decline as a result.

Joel Eckhardt