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.